1 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 4:20-cv-10094-KMM/Becerra

BIANCA N. DIGENNARO, as the 

legal guardian of HMM, a minor, 

Plaintiff, 

v. 

 

MICHAEL L. MALGRAT, KENNETH JW WAITE,

FRED C. SIMS, ASHLEY N. HENRIQUEZ, 

KYLE SHEER, FRAN HERIN, 

CITY OF KEY WEST, FLORIDA and 

MONROE COUNTY SCHOOL DISTRICT, 

Defendants. 

 / 

ORDER1 ON MOTION FOR SANCTIONS PURSUANT TO RULE 11

THIS MATTER is before the Court on Defendants Michael L. Malgrat, Fred C. Sims, 

Kenneth JW Waite, and the City of Key West’s (“Key West”) (collectively, “City Defendants”) 

Motion For Sanctions (the “Motion For Sanctions”). ECF No. [72]. Plaintiff Bianca N. Digennaro

(“Plaintiff” or “Ms. Digenarro”) filed her Brief in Opposition (the “Response”), ECF No. [76], and 

City Defendants filed their Reply (the “Reply”), ECF No. [78]. The Court held oral argument on 

1 The Honorable K. Michael Moore, United States District Judge, referred this matter to the 

undersigned “to take all necessary and proper action as required by law.” ECF No. [73]. Because 

the undersigned has determined that sanctions are not appropriate in this case, an order, as opposed 

to a report and recommendation, may be entered. See Commercial Long Trading Corp. v. 

Scottsdale Ins. Co., No. 12-22787-CIV, 2013 WL 1100063, 1 n.1 (S.D. Fla. Mar. 15, 2013) 

(Goodman, J.) (“In determining between dispositive and non-dispositive sanctions, the critical 

factor is what sanction the magistrate judge actually imposes, rather than the one requested by the 

party seeking sanctions.”) (emphasis in original) (citing Gomez v. Martin Marietta Corp., 50 F.3d 

1511, 1519–20 (10th Cir. 1995); QBE Ins. Corp. v. Jorda Enters., Inc., 277 F.R.D. 676, 683 n.2 

(S.D. Fla. 2012) (explaining that a magistrate judge has authority to enter an order, as opposed to 

a report and recommendation, when sanctions are denied). 

Case 4:20-cv-10094-KMM Document 90 Entered on FLSD Docket 03/08/2022 Page 1 of 15
2 

this matter on January 28, 2022. ECF No. [87]. After due consideration of the briefing, the oral 

argument, the pertinent portions of the record, and being otherwise fully advised in the premises, 

it is hereby ORDERED AND ADJUDGED that City Defendants’ Motion For Sanctions, ECF 

No. [72], be DENIED. 

I. BACKGROUND

On December 4, 2020, Ms. Digennaro filed her Amended Complaint against Defendants2

seeking damages and declaratory and equitable relief arising out of an altercation between her 

eight-year-old son, HMM, and a teacher, which led to HMM’s arrest. ECF No. [35]. HMM is 

designated as a “special needs child” with a history of behavioral issues. ECF No. [69] at 2. On 

the date of the incident, HMM was sitting improperly while at school, and after he refused to 

comply with a teacher’s instructions, an altercation between HMM and the teacher occurred, in 

which HMM struck the teacher in the chest. Id. Officers who were called to the school advised 

the child that he was being arrested, patted the child down (apparently for weapons), and attempted 

to handcuff HMM but were not able to because HMM’s wrists appeared to be too small for the 

handcuffs. Id. at 3. Officers transported HMM to the Monroe County Jail. Id. at 3–4. The arrest 

was captured on body-worn camera video. Id. at 5. 

Ms. Digennaro’s Amended Complaint asserted violations of: (1) the Fourteenth 

Amendment (State Created Danger), pursuant to 42 U.S.C. § 1983; (2) the Fourth Amendment 

(Excessive Force), pursuant to 42 U.S.C. § 1983; (3) the Fourth Amendment (Duty to Intervene), 

pursuant to 42 U.S.C. § 1983; (4) the Americans with Disabilities Act (the “ADA”); and (5) the 

Fourth and Fourteenth Amendments (Municipal Liability), pursuant to 42 U.S.C. § 1983. Id. The 

2 Defendants at the time of the Amended Complaint’s filing included Ashley N. Henriquez, Kyle 

Sheer and Fran Herin (the “School District Defendants”) as well as the City Defendants who bring 

the instant Motion For Sanctions. 

Case 4:20-cv-10094-KMM Document 90 Entered on FLSD Docket 03/08/2022 Page 2 of 15
3

School District Defendants filed a Motion to Dismiss First Amended Complaint (the “School 

District Defendants’ Motion to Dismiss”), on December 18, 2020. ECF No. [37]. Plaintiff filed 

a Response in Opposition. ECF No. [40]. The School District Defendants filed a Reply. ECF No. 

[41]. On March 2, 2021, the District Court granted School District Defendants’ Motion to Dismiss. 

ECF No. [42]. On April 29, 2021, City Defendants moved for summary judgment. ECF No. [60]. 

Plaintiff filed her Opposition, ECF No. [63], and City Defendants filed a Reply, ECF No. [67]. 

On June 14, 2021, the District Court granted summary judgment for City Defendants, ECF 

No. [69]. The District Court’s opinion included the following findings and conclusions. First, as 

to Plaintiff’s excessive force and duty to intervene claims, the Court applied the balancing test set 

forth by the Supreme Court in Graham v. Connor to evaluate whether City Defendants’ actions 

were “objectively reasonable” considering the totality of the circumstances. Id. at 8–11 (applying 

the test set forth in Graham v. Connor, 490 U.S. 386 (1989)). The Court noted that “[b]alancing 

these factors does not tip the scale in either Parties’ favor” but the Court could not “overlook the 

fact that—as depicted in the Arrest Video—Waite merely attempted to handcuff HMM for less 

than thirty seconds, causing no physical pain or injury.” Id. at 9 (emphasis in original). The Court 

also noted that the relevant inquiry was whether HMM suffered any physical injury, and that “here 

Defendants were effectuating a lawful arrest.” Id. at 11. Thus, the Court granted summary 

judgment for Defendants Malgrat, Waite, and Sims on the excessive force and duty to intervene 

claims. The Court also noted that City Defendants would be entitled to qualified immunity, had 

their actions not been objectively reasonable. Id. As to Plaintiff’s municipal liability claim under 

Section 1983 against Defendant Key West, the Court granted summary judgment for Defendant

Key West, noting that because the Court determined there was no violation of HMM’s 

Case 4:20-cv-10094-KMM Document 90 Entered on FLSD Docket 03/08/2022 Page 3 of 15
4 

constitutional rights, Defendant Key West could not be liable under Section 1983. Id. at 15.3

 

Finally, the Court granted summary judgment for City Defendants on Plaintiff’s ADA claim, 

construing a claim under the theory of failure to provide reasonable accommodations, because the 

record did not demonstrate that HMM had a qualifying disability, that City Defendants knew of 

any such disability, or that an accommodation was requested. Id. at 16–17. The Court entered 

Final Judgment for Defendants on June 21, 2021. ECF No. [70]. 

II. The Instant Motion

City Defendants filed their Motion For Sanctions on June 29, 2021. ECF No. [72].4 

Specifically, City Defendants move for sanctions under Rule 11 of the Federal Rules of Civil 

Procedure, 42 U.S.C. § 12205, 28 U.S.C. §1927, and the Court’s inherent powers. City Defendants 

argue that “[t]he information in Plaintiff’s possession (or readily available to her) together with 

the Court’s March 2, 2021 Order (dismissing the School District Defendants) amply inform[ed] 

Plaintiff that the claims remaining against these Defendants lack[ed] any justiciable issue, [and 

were] frivolous.”5 Id. at 2. City Defendants argue that Plaintiff’s “claim that [a] security video 

3 The Court noted that “Plaintiff concedes that ‘[d]iscovery did not reveal a viable training claim 

against the City’ and thus abandons any claim of municipal liability on a failure to train theory” 

but also noted that “Plaintiff argues that ‘if it is determined that the use of force . . . was not 

objectively reasonable, a dispute of material fact exists regarding [whether] or not City policy was 

the moving force that caused the constitutional injury.” Id.

4 On March 18, 2021, pursuant to Federal Rule of Civil Procedure 11(c)(2), Defendants served 

Plaintiff with a copy of the instant Motion for Sanctions. ECF No. [72] at 1 n.1. Plaintiff did not 

withdraw or modify the Amended Complaint. On June 29, 2021, Defendants filed their Motion 

for Sanctions. 

5 City Defendants argue that Plaintiff’s claims that were dismissed as to the School District 

Defendants “should be dismissed within the 21-day safe harbor provision provided by Rule 11”

but “in the event these issues are ultimately presented for the Court’s determination, sanctions are 

sought as to any and all claims not dismissed within Rule 11’s safe harbor provision.” Id. at 2. 

The District Court has since granted summary judgment in favor of City Defendants as to all 

remaining claims. ECF No. [69]. 

Case 4:20-cv-10094-KMM Document 90 Entered on FLSD Docket 03/08/2022 Page 4 of 15
5

[of the altercation] – alleged to exist upon belief – would have exonerated HMM had the law 

enforcement officers taken the opportunity to review same prior to arrest, was without merit.” Id. 

at 3 (emphasis in original). City Defendants allege that such video cannot exist, given that the 

incident occurred over three years ago and after seven months of litigation. Id. City Defendants 

also argue that Plaintiff claimed “witnesses, if interviewed, would have exonerated HMM” but 

Plaintiff never disclosed those witnesses to City Defendants. Id. 

Specifically, City Defendants attack the legitimacy of each count of the indictment. As to 

Count I, Plaintiff’s Fourteenth Amendment Due Process claim, City Defendants argue that this 

claim was premised on an identical theory to that of the Fourth Amendment excessive force claim 

in Count II, and that Count I is misplaced because “well-settled law establishes that excessive force 

claims are properly analyzed under the Fourth Amendment, and not substantive due process.” Id. 

at 5 (emphasis in original). Further, City Defendants argue that Count I as to the School District 

Defendants was identical to the claim in Count I against Defendant Malgrat, and therefore, in light 

of this Court’s March 2nd ruling dismissing that count, Plaintiff should have known that the count 

was not viable and should have dismissed it. Id.

As to Counts II and III for excessive force or failure to intervene under the Fourth 

Amendment against Defendants Waite, Sims, and Malgrat, City Defendants argue that there is no 

question that a felony arrest occurred, and because the arrest was supported by probable cause, i.e. 

teacher Henriquez’ reporting a battery to law enforcement, “the only issue is whether the force 

utilized was excessive, which cannot properly be analyzed under the notion that ‘any force’ was 

excessive because this was a minor disciplinary matter.” Id. at 6. According to City Defendants, 

“[g]iven the absence of any authority converting minimal force to an actionable Fourth 

Case 4:20-cv-10094-KMM Document 90 Entered on FLSD Docket 03/08/2022 Page 5 of 15
6

Amendment claim solely by virtue of the arrestee’s age, Plaintiff’s section 1983 claims against the 

individual officers are entirely groundless.” Id. at 7.

As to Count III, Plaintiff’s ADA claim, City Defendants argue that “[n]o good faith 

arguments exists that the ADA applies” here since there is no allegation that City Defendants 

wrongfully arrested HMM by mistaking his Attention Deficit Hyperactivity Disorder for criminal 

conduct, nor that City Defendants failed to reasonably accommodate HMM and his disability after 

the arrest. Id. at 8.

Finally, as to Count IV, Plaintiff’s Section 1983 claim that Defendant Key West failed to 

properly train or establish policies, which contributed to the alleged unlawful force of the arrest, 

City Defendants argue that no claim exists “[s]ince as a threshold issue no excessive force was 

applied.” Id. at 9. Moreover, City Defendants argue that “the City policies applicable to arrest do 

not require handcuffing a minor, but instead leave it to officer discretion” and the fact that 

“Plaintiff disagrees with the discretion utilized in respect to her son does not render the customs, 

policies and practices of the City of Key West violative of the Constitution.” Id. 

In her Response, Plaintiff argues that “[t]he federal pleading rules do not require a Plaintiff 

to plead legal theories.” ECF No. [76] at 2. Plaintiff notes that, “[w]hile the Defendants argue 

that the claims were obviously frivolous when filed, the Defendants fail to explain why they opted 

to file an Answer instead of a Motion to Dismiss” and that “the purported frivolity of the Plaintiff’s 

claims [apparently] did not reveal itself to the Defendants until after the Court decided the School 

Defendants’ Motion to Dismiss.” Id. Asto City Defendants’ argument regarding Plaintiff’s failure 

to produce an alleged video, Plaintiff responds that City Defendants “do not present any evidence 

establishing that [] at the time of the filing [of] the Complaint and/or Amended Complaint, Plaintiff 

Case 4:20-cv-10094-KMM Document 90 Entered on FLSD Docket 03/08/2022 Page 6 of 15
7

knew that no security video existed or knew that Malgrat had failed to interview numerous 

available witnesses.” Id. 

As to Count I, Plaintiff argues that she did agree to dismiss Count I against Defendant 

Malgrat and that she “honored this agreement and advised the Court accordingly” in her response 

to City Defendants’ Motion for Summary Judgment. Id. As to City Defendants’ arguments 

concerning the excessive force claims, Plaintiff responds that (1) Plaintiff presented expert 

evidence that “HMM suffered a significant mental health injury” and that “the force used did not 

comport with accepted national practice”; (2) the fact that the Court resolved the factual dispute 

of whether the force was objectively reasonable in City Defendants’ favor does not mean that no 

jury could have found in favor of Plaintiff; and (3) “an officer can be found to have violated a 

plaintiff’s constitutional rights while still enjoying immunity.” Id. at 4–7. As to the ADA claim 

against City Defendants, Plaintiff argues that the Eleventh Circuit requires that a defendant know 

or reasonably be expected to know of an individual’s disability and the need for an 

accommodation. Id. at 9. Further, Plaintiff argues that her law enforcement expert provided 

evidence that Defendant Malgrat knew or should have known of HMM’s disability. Id. at 9–11. 

Finally, as to the Section 1983 claim, Plaintiff argues that “[t]he Individual Defendants testified 

that [Defendant Key West’s] policy required them to attempt handcuffing” but Defendant Key 

West disputed that claim, asserting that the city’s policy does not require attempted 

handcuffing. Id. at 11. Plaintiff argues that this is a “non-frivolous dispute of material fact.” Id. 

Finally, Plaintiff contends that “[d]iscovery did not reveal a viable training claim” against City 

Defendant and so “pursuant to 28 U.S.C. § 1927, in response to the Defendants’ Motion for 

Summary Judgment, Plaintiff concurred in its dismissal as required. Id. at 4. 

Case 4:20-cv-10094-KMM Document 90 Entered on FLSD Docket 03/08/2022 Page 7 of 15
8

In City Defendants’ Reply, they argue that Plaintiff had “ample opportunity” to dismiss 

Count I under the 21-day safe harbor provision of Rule 11, after City Defendants had served 

Plaintiff with their Motion for Sanctions, but Plaintiff failed to do so, which resulted in City 

Defendants addressing the claim in their Motion for Summary Judgment. ECF No. [78] at 1–

3. City Defendants also reasserted that the ADA claim is inapplicable here, arguing that the City 

Defendant officers did not know or have reason to know of HMM’s disability, that “the Court 

could not even discern which legal theory Plaintiff sought to advance,” and that Plaintiff failed to 

dismiss Count IV under the safe harbor provision. Id. at 3–4. Finally, City Defendants argue that, 

in granting City Defendants summary judgment, the Court “accepted Defendants’ assertion – as it 

was plainly depicted – that the ‘force’ at issue here could not properly be deemed anything more 

than an attempt to handcuff for less than 30 seconds, causing no physical pain or injury.” Id. at 5.

III. ANALYSIS

City Defendants seek sanctions under various grounds. The Court will consider each in 

turn. First, as to Rule 11 of the Federal Rules of Civil Procedure, the Rule states:

By presenting to the court a pleading, written motion, or other paper—whether by 

signing, filing, submitting, or later advocating it—an attorney or unrepresented 

party certifies that to the best of the person’s knowledge, information, and belief, 

formed after an inquiry reasonable under the circumstances: (1) it is not being 

presented for any improper purpose, such as to harass, cause unnecessary delay, or 

needlessly increase the cost of litigation; (2) the claims, defenses, and other legal 

contentions are warranted by existing law or by a nonfrivolous argument for 

extending, modifying, or reversing existing law or for establishing new law; (3) the 

factual contentions have evidentiary support or, if specifically so identified, will 

likely have evidentiary support after a reasonable opportunity for further 

investigation or discovery.

Fed. R. Civ. P. 11(b)(1)–(3). Federal Rule of Civil Procedure 11(c) provides that a litigant may 

file a motion for sanctions, and after the procedural notice requirements are met, an issue not in 

dispute here, “the court may impose an appropriate sanction on any attorney, law firm, or party 

Case 4:20-cv-10094-KMM Document 90 Entered on FLSD Docket 03/08/2022 Page 8 of 15
9

that violated the rule or is responsible for the violation.” Fed. R. Civ. P. 11(c)(1)–(2). Although 

Rule 11 plainly empowers a court to sanction parties or counsel, it is an “extraordinary remedy, 

one to be exercised with extreme caution.” Menendez v. Signature Consultants, LLC, No. 11-

61534-CIV, 2011 WL 6179727, at *1 (S.D. Fla. Dec. 13, 2011) (citation omitted). Indeed, “Rule 

11 is intended to deter claims with no factual or legal basis at all; creative claims, coupled even 

with ambiguous or inconsequential facts, may merit dismissal, but not punishment.” Davis v. Carl, 

906 F.2d 533, 538 (11th Cir. 1990) (emphasis in original); see also Fed. R. Civ. P. 11. Rule 11 

sanctions are proper “(1) when a party files a pleading that has no reasonable factual basis; (2) 

when the party files a pleading that is based on a legal theory that has no reasonable chance of 

success and that cannot be advanced as a reasonable argument to change existing law; or (3) when 

the party files a pleading in bad faith for an improper purpose.” Worldwide Primates, Inc. v. 

McGreal, 87 F.3d 1252, 1254 (11th Cir. 1996) (quoting Jones v. Int’l Riding Helmets, Ltd., 49 

F.3d 692, 694 (11th Cir. 1995)). “Sanctions are warranted when a party exhibits a ‘deliberate 

indifference to obvious facts,’ but not when the party’s evidence to support a claim is ‘merely 

weak.’” Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1294 (11th Cir. 2002) (quoting Baker v. 

Adelman, 158 F.3d 516, 524 (11th Cir. 1998)); Bathazi v. U.S. Dep’t of Homeland Sec., 667 F. 

Supp. 2d 1375, 1378–79 (S.D. Fla. 2009) (holding that plaintiff’s counsel’s persistence in 

continuing to challenge the adjudication process in light of repeated jurisdictional dismissals 

constituted “deliberate indifference” and thus ordering plaintiff’s counsel to show cause as to why 

counsel should not be subject to sanctions under Rule 11). “A factual claim is frivolous if no 

reasonably competent attorney could conclude that it has a reasonable evidentiary basis.” 

Thompson v. RelationServe Media, Inc., 610 F.3d 628, 665 (11th Cir. 2010) (J. Tjoflat, concurring 

in part) (citing Davis, 906 F.2d at 535–37). Where no evidence or only “patently frivolous” 

Case 4:20-cv-10094-KMM Document 90 Entered on FLSD Docket 03/08/2022 Page 9 of 15
10

evidence is offered to support factual contentions, sanctions can be imposed. See Davis, 906 F.2d 

at 537. If, however, the evidence supporting the claim is reasonable, but simply “weak” or “selfserving,” sanctions cannot be imposed. See id. at 536. 

Under Rule 11, the issue before the Court is whether the pleading had no reasonable factual 

basis, or was based on a legal theory that has no reasonable chance of success or legal theories, or 

whether the claims were brought in bad faith. The undersigned finds that the claims in the 

Amended Complaint do not warrant the imposition of Rule 11 sanctions. The Court cannot find 

that the claims had no reasonable factual basis, or no reasonable chance of success, or were brought 

in bad faith. To be sure, there is no argument or evidence of bad faith, instead City Defendants’ 

request under Rule 11 is based on their argument that the claims were not sufficient either legally 

or factually. To be sure, a reading of the Court’s Order granting summary judgment suggests that 

the claims at hand were weak, given the state of the law, but there is nothing in the Order or in the 

claims as the undersigned reads them to suggest that the matter is subject to sanctions. Indeed, 

loosing arguments and claims are not the stuff of which a Rule 11 claim can be made. 

Moreover, City Defendants’ argument as to Count I, for which they had specifically 

provided a Rule 11 notice under the safe harbor provisions, also fails. Indeed, as Plaintiff argues 

and as supported by the record, although Plaintiff did not file something with the Court formally 

withdrawing the claim, Plaintiff’s counsel contacted counsel for City Defendants and advised that 

they were not pursuing the claim. This representation was not challenged by City Defendants. 

Indeed, in her Response in Opposition to Defendants’ Motion for Summary Judgment, Plaintiff 

stated, “Discovery revealed that during all relevant times, MALGRAT was a CITY employee, 

acting pursuant to CITY policy. As such, prior to the filing of the instant motion, Plaintiff agreed 

to dismiss Count I against MALGRAT. As such, Plaintiff concurs in its dismissal.” ECF No. [63]

Case 4:20-cv-10094-KMM Document 90 Entered on FLSD Docket 03/08/2022 Page 10 of 15
11

at 3. Although a notice dismissing the claim should have been filed with the Court before summary 

judgment motions were due, the failure to do so does not rise to the kind of conduct that would 

support a Rule 11 sanction.

Indeed, Plaintiff’s conduct here is markedly different from the conduct that courts have 

found sanctionable. In Bathazi, for example, plaintiff’s counsel had filed various actions seeking 

mandamus relief with respect to I-140 petitions to secure permanent resident status, which had all 

been previously dismissed for lack of subject matter jurisdiction. 667 F. Supp. 2d at 1376. The 

Eleventh Circuit had even affirmed the district court’s dismissal for lack of subject matter 

jurisdiction in one of the cases brought by plaintiff’s counsel. Id. at 1376–77. The repeated filing

of a pleading that the lawyer knew had no basis in law was found to be the kind of “deliberate 

indifference” that Rule 11 was intended to address. Id. at 1378. Here, Plaintiff did not engage in 

repeated “nearly identical” filings “in the face of repeated . . . dismissals.” Id. at 1376–78. 

Plaintiff’s actions are also distinguishable from Eye v. Cohn, where the Court found that the 

plaintiff’s conduct, filing an objectively groundless complaint for no other purpose than to obtain 

retribution and forestall progress in plaintiff’s criminal case, warranted Rule 11 sanctions. No. 11-

CV-61584-KMM, 2011 WL 5508484, at *4 (S.D. Fla. Nov. 8, 2011). Unlike the groundless or 

vexatious motivation that the plaintiff in Eye exhibited, there is no support for the conclusion that 

Plaintiff acted solely to harm City Defendants or for any other improper purpose such as to harass, 

cause unnecessary delay, or needlessly increase the cost of litigation. Indeed, at the oral argument,

the undersigned inquired of City Defendants if they had any authority where a Court had 

sanctioned a party under factually similar circumstances or could point the Court to their best 

authority for their request. Counsel did not provide any and stated that they were relying on the 

Case 4:20-cv-10094-KMM Document 90 Entered on FLSD Docket 03/08/2022 Page 11 of 15
12

Rule. Given that the imposition of sanctions under Rule 11 is an extreme remedy, the Court finds 

no reason to impose such sanction here.

Second, City Defendants also seek relief under the “ADA’s fee-shifting provision, 42 

U.S.C. § 12205,” which permits a defendant to recover attorneys’ fees if “a court finds that his 

claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it 

clearly became so.” Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1176 (11th Cir. 2005) (citing 

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)). In evaluating whether a 

defendant is entitled to attorneys’ fees, courts “must focus on the question [of] whether the case is 

so lacking in arguable merit as to be groundless or without foundation rather than whether the 

claim was ultimately successful.” Id. (citing Sullivan v. Sch. Bd. of Pinellas County, 773 F.2d 

1182, 1189 (11th Cir. 1985)). Although courts must evaluate frivolity on a case-by-case basis, 

factors to consider include: “(1) whether the plaintiff established a prima facie case; (2) whether 

the defendant offered to settle; and (3) whether the trial court dismissed the case prior to trial or 

held a full-blown trial on the merits” as well as whether plaintiff failed to “introduce any evidence 

to support their claims.” Id. at 1176–77 (quoting Sullivan, 773 F.2d at 1189)). An additional factor 

for consideration is “whether there was enough support for the claim to warrant close attention by 

the court.” Beach Blitz Co. v. City of Miami Beach, 13 F.4th 1289, 1302 (11th Cir. 2021) (“Indeed, 

when the plaintiff’s claim warranted close attention, we have held that a district court abused its 

discretion in awarding fees, even when the other guideposts pointed toward finding the claim 

frivolous.”) (quoting Cordoba, 419 F.3d at 1181–82).

Defendants have failed to show that attorneys’ fees are warranted under Section 12205. 

Indeed, the Sullivan factors, while not dispositive, do not support a grant of sanctions. First, 

although City Defendants argue that there was no prima facie case here, the fact that City 

Case 4:20-cv-10094-KMM Document 90 Entered on FLSD Docket 03/08/2022 Page 12 of 15
13

Defendants never moved to dismiss the claims against them, and instead proceeded to summary 

judgment, weighs against sanctions. At the hearing, City Defendants argued that they moved for 

summary judgment, as opposed to dismissal, because the claims turned on the evidence in the 

body-worn camera video, and the video was not part of the Amended Complaint. However, City 

Defendants had access to the video from the inception of the litigation. City Defendants’ argument 

that Plaintiff did not attempt to settle does not shift the weight in their favor. Indeed, even where 

a plaintiff’s ADA claims are “weak, and it is easy at this point to recognize that the court and all 

parties involved would have been better off had they never been pursued,” the Eleventh Circuit 

has cautioned against awarding attorneys’ fees. Cordoba, 419 F.3d at 1181. Moreover, Plaintiff’s 

claims proceeded to summary judgment, warranting a detailed analysis of the facts and law 

applicable to this case, such that the claims warranted the Court’s close attention. 

Third, Defendants also seek sanctions under 28 U.S.C. § 1927, by which “[a]ny attorney . 

. . who so multiplies the proceedings in any case unreasonably or vexatiously may be required by 

the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred 

because of such conduct.” Macort v. Prem, Inc., 208 Fed. App’x. 781, 785 (11th Cir. 2006)

(citation omitted). Under Section 1927, which must be “strictly construed,” sanctions may only 

be awarded when the following three factors are present: “(1) unreasonable and vexatious conduct; 

(2) such that the proceedings are multiplied; and (3) a dollar amount of sanctions that bears a 

financial nexus to the excess proceedings.” Id. at 785–86 (citation omitted). Moreover, negligence 

is insufficient to warrant sanctions under Section 1927; rather, bad faith is required, such as “where 

an attorney knowingly or recklessly pursues a frivolous claim or engages in litigation tactics that 

needlessly obstruct the litigation of non-frivolous claims.” Id. (citation omitted). If the Court finds 

that counsel’s actions in the case at bar did not multiply the proceedings, the Court need not 

Case 4:20-cv-10094-KMM Document 90 Entered on FLSD Docket 03/08/2022 Page 13 of 15
14

consider the first component noted above, namely, whether counsel’s actions were “unreasonable 

and vexatious.” See Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997) (noting 

that the court need not decide whether counsel’s actions were unreasonable and vexatious because 

counsel had not multiplied proceedings and, thus, Section 1927 sanctions were not warranted). To

merit Section 1927 sanctions, “something more than a lack of merit is required.” Hudson v. Int’l 

Computer Negotiations, Inc., 499 F.3d 1252, 1262 (11th Cir. 2007) (citation omitted). The Court 

cannot make such a finding here. 

Sanctions are not warranted under Section 1927. “[T]he language of § 1927 makes clear 

that it only applies to unnecessary filings after the lawsuit has begun.” Macort, 208 Fed. App’x. at

786; see also 28 U.S.C. § 1927. Here, City Defendants were granted summary judgment after 

Plaintiff filed her First Amended Complaint; she did not engage in multiple unnecessary filings. 

Moreover, there is no evidence here that this litigation was frivolous, even if not ultimately 

successful, particularly considering the video evidence depicting the eight-year-old HMM’s arrest. 

See CaringOnDemand, LLC v. Ventive LLC, No. 18-CV-80211, 2018 WL 3778663, at *5 (S.D. 

Fla. Aug. 9, 2018) (finding that plaintiff’s “motions were not successful [or meritorious] but they 

were certainly not frivolous” and “there is no evidence that Plaintiff or Plaintiff’s counsel 

knowingly or recklessly raised a frivolous argument or otherwise acted in bad faith when filing 

these motions.”). 

Finally, courts may use their “inherent power to police those appearing before them,” 

including “to sanction the willful disobedience of a court order, and to sanction a party who has 

acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Purchasing Power, LLC v. 

Bluestem Brands, Inc., 851 F.3d 1218, 1223 (11th Cir. 2017) (citation omitted). However, 

“[b]ecause of their very potency, inherent powers must be exercised with restraint and discretion.” 

Case 4:20-cv-10094-KMM Document 90 Entered on FLSD Docket 03/08/2022 Page 14 of 15
15

Chambers v. Nasco, Inc., 501 U.S. 32, 44 (1991). “The key to unlocking a court’s inherent power 

is a finding of bad faith.” Purchasing Power, LLC, 851 F.3d at 1223 (citation omitted). Courts 

find bad faith where, inter alia, “an attorney knowingly or recklessly raises a frivolous argument.” 

Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998). 

Sanctions are not warranted under the Court’s inherent power. For the reasons discussed, 

the undersigned does not find that Plaintiff or her attorneys displayed unreasonable and vexatious 

conduct, nor bad faith. Indeed, there is no evidence that Plaintiff or her counsel engaged in the 

type of conduct that courts have found to warrant sanctions under a court’s inherent authority. See 

Plantation Open MRI, LLC v. Infinity Auto Ins. Co., 818 Fed. App’x. 891, 892–93 (11th Cir. 2020)

(affirming sanctions where plaintiff represented to the court that the parties had reached a 

stipulation that the parties had not in fact reached, and then “[r]ather than walk back the false 

claim, [plaintiff] doubled down and actually asked the district court to sanction [defendant] under 

Rule 11 for denying the stipulation”). 

In short, after a thorough review of the record and the law, the Court finds that there is no 

basis for the type of sanctions requested. City Defendants’ legal arguments won the day, but 

prevailing is far from sufficient. By any of the standards proposed, City Defendants are simply 

not entitled to anything more than the costs the Court has already awarded.

IV. CONCLUSION

Therefore, in accordance with the above, it is hereby ORDERED AND ADJUDGED that 

Defendants’ Motion For Sanctions, ECF No. [72], be DENIED. 

DONE AND ORDERED in Chambers in Miami, Florida on March 8, 2022.

_________________________ 

JACQUELINE BECERRA

United States Magistrate Judge

Case 4:20-cv-10094-KMM Document 90 Entered on FLSD Docket 03/08/2022 Page 15 of 15