Ira Koves v. City of Orlando , 319 F. App'x 783 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15085 ELEVENTH CIRCUIT
MARCH 16, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 02-01355-CV-ORL-28JGG
IRA KOVES,
Plaintiff-Appellant,
versus
CITY OF ORLANDO, FL,
a municipal corporation,
JON E. HATHAWAY,
GREGORY T. DOUBERLEY,
KIRK GLOVER,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 16, 2009)
Before DUBINA, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Ira Koves appeals pro se the summary judgment in favor of the City of
Orlando and three of its police officers, Jon Hathaway, Gregory Douberley, and
Kirk Glover, and against Koves’s complaint of false imprisonment, excessive
force, and battery. The district court ruled that the officers had probable cause to
arrest Koves and did not use excessive force or commit a battery during that arrest.
We affirm.
I. BACKGROUND
Koves filed a complaint in a Florida court against the City of Orlando and
Officers Hathaway, Douberley, and Glover and alleged that he suffered injuries
during his arrest for disorderly conduct and resisting arrest at the Orlando
International Airport. The defendants removed the case to the federal district
court. After Koves filed an amended complaint, the defendants filed motions to
dismiss two claims for relief. The district court twice issued scheduling orders that
notified the parties that the “[f]ailure to oppose” a motion for summary judgment
“may result in the entry of a judgment for the movant without further
proceedings.” The first order provided the nonmovant twenty days to oppose a
motion, but the second order provided the nonmovant thirty days to oppose a
motion for summary judgment. The district court dismissed Koves’s complaint
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without prejudice to his right to file an amended complaint.
In August 2007, Koves filed a second amended complaint against the City
and the officers. Koves alleged that the officers assaulted and falsely arrested him
after he refused to leave the ticket counter of Spirit Airlines. Koves alleged that,
when he requested boarding passes for himself, his “two 8 year old twin sons[,]
and their 8 year old friend,” a Spirit representative, Gerri Wilson, told Koves that
he had been “shut out” of the flight. Koves questioned Wilson, but she failed to
give a reason for the decision and warned Koves that she would call airport
security if he did not leave the ticket counter. When Officers Hathaway,
Douberley, and Glover arrived, they explained to Koves that they would arrest him
if he did not move away from the ticket counter. The officers then “tackled”
Koves and “violently” threw him face down on the floor, one officer “wilfully or
intentionally jumped or fell” on his right leg, then the officers prodded him through
the airport “while his terrified children watched helplessly.” Koves alleged that his
behavior did not suggest that he was violent or would become violent and he did
not resist the officers. Koves also alleged that he was fifty-one years old at the
time of the incident, he had undergone heart surgery six months earlier, and he
took medication for anxiety.
On April 18, 2008, the City, Hathaway, Douberley, and Glover moved for
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summary judgment and presented evidence that Koves obstructed the airline ticket
counter and refused to cooperate with the officers’ investigation. According to the
officers, Koves became irate after Wilson told Koves that he was too late to board
his flight. After Koves argued with Wilson using profanity and refused to leave
the ticket counter, another Spirit representative, Linda Sheldon, called airport
security. Officers Hathaway, Douberley, and Glover arrived at the scene and asked
Koves to move away from the ticket counter and to produce identification. Koves
refused, became belligerent, and “swung” at Officer Glover, at which point the
three officers placed Koves under arrest. To contain Koves, Officer Glover
grabbed Koves’s right shoulder, Officer Hathaway grabbed Koves’s right arm, and
Officer Douberley grabbed his left side. Koves “resisted by stiffening his body,”
and the officers lowered Koves to the floor to apply handcuffs. Koves was
transported to the Orange County Jail and charged with disorderly conduct and
both resisting with and without violence. The City and the officers submitted
copies of the depositions of Sheldon and Officers Douberley and Glover, and an
affidavit from a third airline agent, Wanda Brooks. Koves did not oppose the
motions.
On August 6, 2008, the district court granted summary judgment in favor of
the City and the officers. The district court held that the officers were entitled to
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qualified immunity against Koves’s allegations of false arrest and excessive force
because the officers had probable cause to arrest Koves and the officers used de
minimis force to make the arrest. The district court also ruled that Koves’s
allegations of battery against the City and the officers “fail[ed] as a matter of state
law.”
Koves later mailed two letters to the district court. The district court entered
an order stating that “[m]ailings directly to the Court are improper.” The district
court ordered the clerk to strike the docket entries and to return the letters to
Koves.
II. STANDARDS OF REVIEW
We review the refusal to review a pleading for abuse of discretion. See
Young v. City of Palm Bay, Fla., 358 F.3d 859, 863–64 (11th Cir. 2004). Under
this standard, “so long as the district court does not commit a clear error in
judgment, we will affirm the district court’s decision.” Id. We review a summary
judgment de novo. Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1136 (11th Cir.
2007).
III. DISCUSSION
Koves challenges the summary judgment in favor of the City and Hathaway,
Douberley, and Glover. Koves argues that the district court failed to consider his
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opposition to the motions for summary judgment, but he concedes that his
opposition was untimely. He contends that if the district court had considered the
facts recited in a letter written by his stepdaughter, the court “would have
concluded that genuine issues of material fact exist.”
The record does not establish that Koves opposed the motions for summary
judgment. Koves asserts that he filed an opposition that was untimely, but there is
no entry on the docket sheet to support Koves’s assertion. Koves asks that we
consider a letter written by his stepdaughter, but the letter is not in the record. We
cannot review evidence not considered by the district court. See Selman v. Cobb
County Sch. Dist., 449 F.3d 1320, 1332 (11th Cir. 2006) (“In deciding issues on
appeal we consider only evidence that was part of the record before the district
court.”).
Koves offers no basis for relief. Koves did not submit to the district court
any evidence to dispute the facts presented by the officers. Although Koves
alleges that his stepdaughter can corroborate his version of events, there is no
statement in any of Koves’s pleadings to suggest that she witnessed the incident.
Koves does not otherwise argue that the district court erred, and he has abandoned
any other challenge to the summary judgment. See Timson v. Sampson, 518 F.3d
870, 874 (11th Cir. 2008) (“While we read briefs filed by pro se litigants liberally,
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issues not briefed on appeal by a pro se litigant are deemed abandoned.” (citations
omitted)).
IV. CONCLUSION
We AFFIRM the summary judgment in favor of the City and Officers
Hathaway, Douberley, and Glover.
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