Zivojinovich v. Barner

• Decision Date: 23 April 2008
• Docket Number: No. 07-11903. Non-Argument Calendar.,07-11903. Non-Argument Calendar.
• Citation: 525 F.3d 1059
• Parties: Alex ZIVOJINOVICH, Plaintiff-Counter-Defendant-Appellant, Justin Zivojinovich, Michelle Zivojinovich, Plaintiffs-Appellants, v. Frank BARNER, Ritz-Carlton Hotel Company, L.L.C., d.b.a. Ritz Carlton Naples, Defendants-Appellees, Christopher Knott, Scott Russell, Amy Stanford, Defendants-Counter-Claimants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

525 F.3d 1059

Alex ZIVOJINOVICH, Plaintiff-Counter-Defendant-Appellant Justin Zivojinovich, Michelle Zivojinovich, Plaintiffs-Appellants, v. Frank BARNER, Ritz-Carlton Hotel Company, L.L.C., d.b.a. Ritz Carlton Naples, Defendants-Appellees Christopher Knott, Scott Russell, Amy Stanford, Defendants-Counter-Claimants-Appellees.

No. 07-11903. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

April 23, 2008.

Michael R. McDonnell, McDonnell Trial Lawyers, Naples, FL, for Appellants.

Laurie Webb Daniel, Holland & Knight, Atlanta, GA, Richard A. Gluffreda, Karma D. Hall, Purdy, Jolly, Gluffreda & Barranco, P.A., Ft. Lauderdale, FL, Judith M. Mercier, Holland & Knight, Orlando, FL, for Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

This is Justin and Alex Zivojinovich's appeal of the district court's grant of summary judgment to the defendants on their § 1983 excessive force and negligence claims.¹

I.

The following are the facts viewed in the light most favorable to the Zivojinovichs, which is how we are required to view them at this stage of the proceedings. See Tinker v. Beasley, 429 F.3d 1324, 1326 (11th Cir.2005); Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003); see also Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir.1996) ("[W]hat is considered to be the `facts' at the summary judgment stage may not turn out to be the actual facts if the case goes to trial, but those are the facts at this stage of the proceeding for summary judgment purposes.").

On December 31, 2003, Justin Zivojinovich, his wife, Michelle, and his father, Alex, attended a black-tie New Year's Eve party at the Ritz-Carlton Hotel in Naples, Florida. The dance floor of the ballroom where the party took place was surrounded by dinner tables on three sides and had a small stage on the fourth side. The two bands that had been hired to play that night were alternating using the stage. At about 10:30 p.m., Justin began dancing boisterously. He circled the dance floor undulating his arms, danced with four women simultaneously, and eventually shoved apart a couple who were dancing and, without asking, began to dance with the woman. Immediately thereafter, Justin stepped onto the stage uninvited and said "Thank you, thank you. Let's give it up for the band, the next Count Basie.² Happy New Year's everyone, let's have a Happy New Year's." He then returned to his table.

At about 11:15 p.m., Justin began dancing again, this time with a male friend. The Ritz's night shift manager on duty, Frank Barner, saw Justin dancing again and decided to call the sheriff's office to have deputies come to issue a trespass warning and escort Justin off the Ritz's property. He radioed the front desk and told Azure Sorrell, the employee working there, to call the sheriff's office. Then, to be sure that all of the relevant information was conveyed, he called the Collier County Sheriff's Office himself.

Barner told the dispatcher that there were "a couple of subjects being disorderly," "screaming[,] and yelling." Barner claimed that the subjects "jumped up on a stage," tried "to commandeer the bandstand," and "were giving ... the band members a hard time." Barner also told the dispatcher that when he "tried to explain to [Justin] that he couldn't do that, he started yelling profanities, screaming, yelling and carrying on." In reality, Barner had not yet spoken to Justin.

Deputies Scott Russell and Chris Knott separately responded to the call. They were told only that there was a disturbance of some kind at the Ritz involving two men who were being unruly, refusing to cooperate, and getting onto the stage. After hearing that two deputies had gone to the Ritz, Deputy Amy Stanford decided to go there as well to provide back up.

When Sorrell spoke to the dispatcher, she requested that deputies come to remove "some disorderly people" who were "just basically trashing the place ... jumping on furniture, ripping things apart" and whom Ritz security personnel could not control. This was not true, but Sorrell's report was not relayed to any of the deputies who went to the Ritz to deal with the situation.

After dancing for a while, Justin and his friend got up on stage while one of the bands was playing. Justin's friend danced around while Justin went to the microphone. Alex, who had been dancing with his wife, joined them. Alex tapped on a conga drum in time with the music for about ten seconds before leaving the stage. A member of the band who was not playing at that time angrily told Justin to get off the stage, but Justin did not notice him. Justin tapped the microphone to see if it was on. It was not, and he and his friend stepped off the stage.

As he walked back to his table, Justin made an exaggerated bow to the other guests. One of them described it as mooning the band with his clothes on. At this point, Barner approached Justin. Barner told Justin that he was not allowed to go up on the stage where the band was playing and that, if he did it again, he would be removed from the property and charged with trespassing. Justin replied by asking him "What, no fun?" but returned to his table. While sitting there, Justin felt as though Barner was continuing to watch him. So, he turned to look at Barner and mouthed the words "Why don't you just fucking leave us alone?" before returning to his meal.

Around this time, all three deputies arrived in the ballroom. Deputy Knott, who had once worked security at the Ritz under Barner, approached Barner to ask what the disturbance was. Barner pointed out Justin and told Knott that he had been disruptive. Barner went on to recount an exaggerated version of the conversation with Justin in which he made the following claims: When Barner told Justin that he would be removed from the hotel if he went on stage again, Justin said "Fuck off, who is going to remove me?" or "Fuck off, what are you going to do?" Barner replied, saying that he would call the police. Then Justin said something to the effect of "What are they going to do?" After detailing this version of events to Knott, Barner told him that he wanted Justin off the property and asked Knott to issue Justin a trespass warning so that he could not return.

Michelle had noticed Deputies Knott and Stanford come into the ballroom, and she told Justin that the police had arrived. A few minutes later, at approximately 11:35 p.m., Knott approached Justin from behind and tapped him on the shoulder. Knott asked Justin if he would "step to the back" so that the deputies could talk to him. Justin went with Stanford and Knott to a service hallway off the ballroom, where they asked Justin to sit. When Justin was seated, Knott told him that he could collect his belongings from the table and that he was going to be escorted from the property and given a trespass warning.

Justin returned to his table, retrieved his coat, told Michelle that he was being forced to leave, and went back to the hallway with Deputies Knott and Stanford. Alex and Michelle followed them into the hallway. Justin was again told to sit in the chair in the hallway. He did so, but he stood up again shortly thereafter. Stanford had to order him to sit down a second time.

During this period, Alex told Deputy Stanford: "Please, officer, we haven't done anything. It is New Year's Eve, we haven't done anything." Stanford replied that if he didn't stand back he would be arrested. He then asked her why she was "being so hostile? It is New Year's Eve," and told her that if she wanted them to leave, they would do so. Stanford again told him to stand back or he would be arrested. Alex replied "Arrest me, you're going to arrest me for what?"

Finally, the deputies took hold of Justin's arms and began to escort him out. Alex asked Deputy Knott "Please, why are you doing this? What is going on? It is New Year's Eve." Knott replied that Justin was being removed from the Ritz. Alex and Michelle followed as the deputies walked Justin out. While being escorted out, Justin said: "Please, I just want to go home. Just let me go home." Michelle replied: "It is fine, honey, I am right behind you to go home."

The deputies held Justin's arms as they walked him down the service hallway and into the stairwell. Deputy Knott held Justin's left arm without hurting him. Deputy Stanford, however, pulled Justin's right arm up at an angle that did hurt. While walking toward the stairs, Alex continued asking the deputies not to remove Justin. At one point Knott screamed back over his shoulder at Alex. Justin then yelled that Stanford was hurting his arm, but she did not respond.

As Justin and the deputies were entering the stairwell, Justin lurched forward, pulled his arm partially free of Deputy Stanford's grip, and forced it straight. As Justin and Stanford were approaching the second landing in the stairwell, Deputy Knott pushed Justin, causing both Justin and Stanford to fall down the stairs. Justin landed on his chest. Deputy Stanford fell over him. After falling, both rose to their hands and knees. Justin then rolled over to sit with his back against the wall.

Alex and Deputy Knott ran down to the landing. Knott and Deputy Stanford began struggling with Justin, attempting to handcuff him. Knott pulled out his taser gun, aimed it at Alex, and told him to "back off" immediately. Alex held his hands out, palms open, at chest level and asked Knott not to hurt Justin. Alex shouted for Justin "not to move, not to struggle."

Deputy Knott then warned Justin that he would use his taser gun if Justin did not cooperate, but Justin did not hear him or did not understand him. Knott fired. The taser gun hit Justin in the torso, causing him to fall over. Alex attempted to get to Justin so that he could cover Justin's body with his own, but Deputy Stanford held him back. As Alex continued to...