USA Entertainment Group, Inc. v. Sheriff Scott Israel

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 25, 2021
• Docket: 20-12682
• Status: Unpublished

Opinion

USCA11 Case: 20-12682 Date Filed: 02/25/2021 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12682 Non-Argument Calendar ________________________

D.C. Docket No. 0:18-cv-62740-RAR

USA ENTERTAINMENT GROUP, INC., a Florida corporation d/b/a Club Cinema,

Plaintiff-Appellant,

versus

SHERIFF GREGORY TONY, in his official capacity; SHERIFF SCOTT ISRAEL, in his individual capacity and individually; WAYNE ADKINS; CITY OF POMPANO BEACH, a Florida municipal corporation; LAMAR FISHER, in his individual capacity; and CHARLOTTE BURRIE, in her individual capacity;

Defendants-Appellees. ________________________

Appeal from the United States District Court for the Southern District of Florida ________________________ (February 25, 2021) USCA11 Case: 20-12682 Date Filed: 02/25/2021 Page: 2 of 12

Before MARTIN, BRANCH, and BRASHER, Circuit Judges.

PER CURIAM:

USA Entertainment Group, Inc., doing business as Club Cinema, brought a

Section 1983 suit against the city of Pompano Beach and two city officials (City

Defendants) as well as three members of the Broward County Sheriff’s Office (BSO

Defendants). Club Cinema alleged that the defendants had violated its First

Amendment right to free speech and its Fourteenth Amendment right to equal

protection through “excessive policing” that eventually forced it to close. The district

court granted a motion to dismiss based on the statute of limitations. But the district

court allowed Club Cinema to file an amended complaint delineating later incidents,

which it did. The district court then granted the City Defendants’ and the BSO

Defendants’ motions for summary judgment. Club Cinema appeals all three of those

orders. For the reasons below, we affirm.

I. BACKGROUND

Club Cinema was a large nightclub in Pompano Beach, Florida, which is a

municipality in Broward County. Pompano Beach does not operate its own police

department. Instead, it contracts with the Broward County Sheriff’s Office to

provide its police services.

Club Cinema has never had an easy relationship with local law enforcement.

Seven and a half years ago, Pompano Beach filed suit to declare Club Cinema a 2 USCA11 Case: 20-12682 Date Filed: 02/25/2021 Page: 3 of 12

public nuisance because of the number of arrests and emergency medical calls at its

location. In response, Club Cinema sent a cease-and-desist letter to five city officials

and the sheriff, demanding that BSO stay off its property and not enter the club

building, even if an officer legally bought a ticket. It threatened to file a counter suit

seeking an injunction against Pompano Beach and BSO.

Instead, Club Cinema and Pompano Beach entered into a stipulated agreement

in the public nuisance case. The agreement required Club Cinema to hire private

security and EMTs for events, coordinate with BSO about crowd and traffic control,

“specifically authorize[] … BSO[] to access and occupy all common areas … for

any and all valid and customary law enforcement purposes,” and increase its security

measures to combat alcohol abuse and illegal drug activity. In the midst of that

litigation, an independent state department revoked Club Cinema’s liquor license.

Eventually Club Cinema closed its doors for good. In 2018, it filed this

Section 1983 lawsuit, alleging that BSO, at the City Defendants’ directive, violated

its First and Fourteenth Amendment rights through “excessive and unwarranted

police activities.” At first, Club Cinema sought to litigate over the city’s actions in

2013. But, after the district court granted a motion to dismiss based on the statute of

limitations, Club Cinema amended its complaint to focus on policing at 36 concerts

between 2015 and 2018.

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Club Cinema argues that, during these 36 concerts, BSO enforced the law at

its venue more strictly than it did at other venues because of its musical expression

and because it had refused to gift a piece of its property to Pompano Beach. When

the time came to support its allegations in response to a motion for summary

judgment, Club Cinema relied on six exhibits.

Two of the exhibits are separate declarations by the same Club Cinema

employee who was involved in day-to-day operations at Club Cinema the whole

time it was in business. He states that BSO’s “harassment” began shortly after he

chose not to donate land to Pompano Beach and that he was present during all 36

shows during the relevant time period and saw BSO officers at all of them. He also

states that at some of those 36 shows, “BSO officers would be wearing military

tactical gear, balaclavas, and other military-style uniforms” and that he had videos

of those encounters. But Club Cinema does not include any of those videos in

support of its opposition to summary judgment.

Club Cinema does include two exhibits containing a total of seven

photographs. Although those photographs now lack time stamps, several were

attached to the original complaint with time stamps. They are from 2013 and 2014—

outside the relevant time period for this case. So, Club Cinema is left with three or

four photos, all without any indication of where or when they were taken or who

took them, which mostly depict police and civilian cars parked somewhere outside.

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The last two exhibits Club Cinema relies on are excerpts from the sheriff’s

and mayor’s depositions in the public nuisance suit. The mayor described two Club

Cinema employees coming to his private business and threatening him. He admitted

that he was “heated” because he does not “take threats lightly,” and he “respectfully

request[s]” that no Club Cinema employee come to his private business again. The

sheriff stated that he had discussed general police services with the City Defendants,

but he never had a meeting about Club Cinema with any of them. He also explained

that Pompano Beach citizens had complained to BSO about Club Cinema but that

no one who worked for Pompano Beach had ever asked him to “crack down” on

Club Cinema or suggested that it needed to be shut down. In his affidavit he also

stated that he never discussed trying to “close” Club Cinema with anyone at BSO.

In response to Club Cinema’s arguments, Defendants point to the history of

emergency calls in Club Cinema’s vicinity, which included calls about drugs,

overdoses, robbery, assault, and various other felonies. They also cite two

declarations and an affidavit from BSO officers explaining that because of public

safety concerns, BSO would assign officers to Club Cinema during events without

regard to the type of performance. Club Cinema agrees; it describes the 36 relevant

events as involving a wide variety of musical genres—hip-hop, gospel, electronic

dance music, country, rap, and more—and emphasizes that BSO officers were at all

36 events.

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The district court granted both the City Defendants’ and BSO Defendants’

motions for summary judgment. It held that the City Defendants did not have the

authority to direct BSO’s policing activities and, more importantly, that there was

no evidence in the record that BSO took any retaliatory action against Club Cinema

or that it treated Club Cinema differently than other similarly situated businesses.

II. STANDARD OF REVIEW

We review a district court’s application of the statute of limitations de novo.

Foudy v. Miami-Dade Cnty., 823 F.3d 590, 592 (11th Cir. 2016). We also review de

novo a district court’s grant of summary judgment, applying the same legal standard

as the district court. Metlife Life & Annuity Co. of Conn. v. Akpele, 886 F.3d 998,

1003 (11th Cir. 2018).

III. DISCUSSION

We look first at the district court’s grant of the motion to dismiss Club

Cinema’s claims as time-barred. Next, we turn to the district court’s conclusion that

Club Cinema’s First Amendment claims fail because “there is no evidence of any

actual retaliatory action taken against Club Cinema by BSO.” Next, we address the

district court’s holding that Club Cinema failed to show that it was treated differently

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than any other similarly situated business. Finally, we address Club Cinema’s claims

against the City Defendants.

A. Statute of Limitations

In Florida, the statute of limitations for a Section 1983 suit is four years. See

City of Hialeah v. Rojas, 311 F.3d 1096, 1103 n.2 (11th Cir. 2002); Fla. Stat. §

95.11(3). Club Cinema filed its first complaint on November 9, 2018. But the

complaint was based on instances of alleged retaliation or discrimination from 2013

or March 2014—more than four years before the case was filed. The district court

dismissed the complaint with leave to amend to complain about any discrimination

occurring after November 9, 2014. Club Cinema filed an amended complaint,

alleging that BSO engaged in excessive policing at 36 events in the relevant time

period.

Club Cinema argues that the district court erroneously applied the statute of

limitations, but we disagree. In a similar context, we have held that “the timely-filing

requirement erects an absolute bar on recovery for ‘discrete discriminatory or

retaliatory acts’ occurring outside the limitations’ periods,” Ledbetter v. Goodyear

Tire & Rubber Co., Inc., 421 F.3d 1169, 1178 (11th Cir. 2005) (quoting Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002)), even if “they are related to

acts alleged in the timely filed charges,” Morgan, 536 U.S. at 113. “Each incident of

discrimination and each retaliatory adverse” action is separately actionable, id., and

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has a “limitations period [that] begins running the day the discrete act occurs,”

Chambless v. La.-Pac. Corp., 481 F.3d 1345, 1349 (11th Cir. 2007). A plaintiff “can

only file a charge to cover discrete acts that occurred within the appropriate time

period.” Morgan, 536 U.S. at 114 (internal quotation marks omitted). A party

“lose[s] the ability to recover for [acts outside the statute of limitations]” because

they can no longer “form the basis for liability.” Ledbetter, 421 F.3d at 1179 (citing

Morgan, 536 U.S. at 113); cf. Hialeah, 311 F.3d at 1102 (“‘A discriminatory act

which is not made the basis for a timely charge … is merely an unfortunate event in

history which has no present legal consequences;’ … time-barred discriminatory

conduct has no legal significance.” (quoting United Air Lines, Inc. v. Evans, 431

U.S. 553, 558 (1977))).

Club Cinema argues that it can sue over police action outside the statute of

limitations under the continuing violation doctrine. We disagree. When discussing

Section 1983 claims, this Court has explained that the continuing violation doctrine

does not apply “to plaintiffs who were able to avoid the problem by filing within the

statute of limitations.” McGroarty v. Swearingen, 977 F.3d 1302, 1308 (11th Cir.

2020). Here, there is no question that Club Cinema could have filed within the statute

of limitations. In November 2013, Club Cinema sent six cease-and-desist letters

about the alleged excessive policing that it now argues violated its First and

Fourteenth Amendment rights. It even threatened to take legal action. Instead, it

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entered into a stipulated agreement with City Defendants to increase security

measures and coordinate with BSO on event nights. All of that happened over four

years before Club Cinema filed this Section 1983 action.

B. First Amendment Retaliation Claims

Club Cinema first argues that BSO retaliated against it for exercising its First

Amendment right to free speech. To prevail on this claim, Club Cinema must show

that (1) its speech was constitutionally protected; (2) BSO’s conduct adversely

affected its protected speech, meaning BSO’s conduct “would likely deter a person

of ordinary firmness from the exercise of First Amendment rights”; and (3) BSO

acted that way because of Club Cinema’s protected speech. Echols v. Lawton, 913

F.3d 1313, 1320 (11th Cir. 2019). We assume that Club Cinema’s speech was

constitutionally protected. But, like the district court, we conclude that Club Cinema

has no evidence on the second or third elements.

First, BSO’s conduct would not “deter a person of ordinary firmness from the

exercise of First Amendment rights.” The evidence of BSO’s conduct at Club

Cinema during the relevant time period is scant. One Club Cinema employee

asserted that BSO officers were present at all 36 events and that at “some” of the 36

events “BSO officers would be wearing military tactical gear, balaclavas, and other

military uniforms.” The only other evidence that Club Cinema points to is seven

undated photographs of BSO officers. But the mere presence of police officers is not

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a First Amendment violation, even if they are wearing riot gear. Andree v. Ashland

Cnty., 818 F.2d 1306, 1316 (7th Cir. 1987). Indeed, where a club is free to and does

hold its concerts and patrons are free to and do attend, “the passive attendance and

visibility of the deputy sheriffs … before and during the … concert[s] [is] not a

violation of First Amendment rights.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181,

212 (5th Cir. 2009). Club Cinema has evidence that BSO officers were present at its

events. Club Cinema has no evidence of any harassment or intimidation of its patrons

or any attempt to shut down any event.

Second, even if the mere presence of police were enough to state claim of

retaliation, there is no evidence that the police were present because of Club

Cinema’s speech. Club Cinema argues that BSO retaliated against it for two reasons

related to allegedly protected speech: first, because it rejected a City Defendant’s

solicitation for a donation, and second, because it hosted events that catered to a

primarily African American audience. No evidence supports these theories. BSO

officers were at all 36 events listed in its complaint without regard to the race of the

audience. The genres of music at those events included hip-hop, gospel, electronic

dance music, country, rap, and a ranchero band. The executive officer of the sheriff’s

office testified that the office policed Club Cinema for crowd-control and crime

suppression. BSO also submitted evidence of emergency calls in the vicinity, which

included calls about drugs, overdoses, robbery, assault, and various other felonies.

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No evidence supports Cinema Club’s theory that the BSO policed its vicinity

because of its speech.

C. Fourteenth Amendment Equal Protection Claims

Nor is there any evidence supporting Club Cinema’s equal protection claim.

Because Club Cinema is not a member of a protected class, it brings its equal

protection claim under the “class of one” theory. To prevail under that theory, Club

Cinema must prove “(1) that [it] was treated differently from other similarly situated

[businesses], and (2) that [BSO] unequally applied a facially neutral ordinance for

the purpose of discriminating against [it].” Leib v. Hillsborough Cnty. Pub. Transp.

Comm’n, 558 F.3d 1301, 1307 (11th Cir. 2009). Club Cinema does not show either.

Even assuming that Club Cinema has identified similarly situated businesses,

nothing in the record suggests that BSO policed those venues differently. In fact, the

only potentially relevant evidence in the record cuts against differential treatment.

That evidence includes two BSO officers’ statements that another nightclub was shut

down in 2018 because of a history of criminal activity. And the rest of the record is

silent as to BSO’s presence at Club Cinema’s proffered comparators. Club Cinema

admits that deficiency, stating that “it has no evidence” that BSO treated “its

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comparators” differently. That dearth of evidence forecloses Club Cinema’s equal

protection claim.

D. Claims against the City Defendants

Club Cinema argues that the City Defendants are liable for BSO’s allegedly

unconstitutional actions. Because there is no evidence that BSO violated Club

Cinema’s constitutional rights, its claims against the City Defendants also fail. Paez

v. Mulvey, 915 F.3d 1276, 1291 (11th Cir. 2019).

IV. CONCLUSION

For the foregoing reasons, the district court is AFFIRMED.