Case: 13-12339     Date Filed: 05/07/2014   Page: 1 of 6


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-12339
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:12-cv-00614-KD-M


JONIE KEY,

                                                                  Plaintiff-Appellee,

                                     versus

JERRY C. LUNDY,
STEVE A. REED, et al.,


                                                           Defendants-Appellants.

                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Alabama
                          ________________________

                                  (May 7, 2014)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      In September 2012 Jonie Key filed suit against various public officials, law

enforcement officers, and the Town of Mount Vernon, Alabama, alleging that she
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was sexually assaulted by Mount Vernon Police Officer James Mott. In this

appeal, four of the defendants—Mount Vernon Mayor Jerry C. Lundy, Mount

Vernon Chief of Police Steve A. Reed, Acting Mount Vernon Chief of Police Joe

Cassidy, and Mount Vernon Public Safety Director Jerry K. Taylor (the

Defendants)—challenge the district court’s denial of their motion to dismiss based

on qualified immunity. Mott did not move to dismiss Key’s action against him and

he is not a party to this appeal. Upon review, we remand to allow Key to amend

her complaint in light of our recent decision in Franklin v. Curry, 

(11th Cir. 2013).

                                         I.

      Key makes the following factual allegations in her Amended Complaint,

which at the motion to dismiss stage are accepted as true. See Keating v. City of

Miami, 

, 762 (11th Cir. 2010). On September 29, 2010, Key was in

custody in the Mount Vernon city jail. Officer James Mott was on duty at the jail

that day. Mount Vernon’s policy or practice did not require same gender

supervision of inmates. While supervising Key’s use of the telephone located in a

small room at the jail, Mott forced Key to have nonconsensual sexual intercourse.

      As background Key alleges that Mott was hired as a police officer by the

town of Mount Vernon, Alabama, in April 2010. Prior to working for Mount

Vernon, Mott had been terminated for cause or left each of his previous law


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enforcement positions due to reasons that included improper interactions with

inmates, failure to comply with prisoner handling guidelines, improper comments

to fellow employees, altering records, and allegations of sexual harassment.

        Key alleges that the Defendants were policy makers with regard to the hiring

practices, supervisory practices, and training practices of the Mount Vernon Police

Department. She claims Defendants hired Mott despite their knowledge of his

previous employment record, and then failed to train or supervise him. Key further

alleges that the Defendants failed to take any action despite their belief that Mott

regularly drank alcohol and engaged in sexual activity in his patrol car while on

duty.

        Based on these allegations, Key filed suit in the Southern District of

Alabama. All defendants (again, except for Mott) filed motions to dismiss Key’s

Amended Complaint. The district court granted these motions in substantial part.

The only claims remaining against the four Defendants who bring this appeal after

the district court’s order were those brought under 42 U.S.C. § 1983 based on

violations of the Eighth Amendment. The district court rejected the Defendants’

argument that these § 1983 claims were barred by qualified immunity, finding Key

had stated a constitutional claim sufficient to survive a motion to dismiss. The

Defendants then filed this appeal.




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                                           II.

      We review the denial of a motion to dismiss de novo and determine whether

the complaint alleges a clearly established constitutional violation, accepting the

facts alleged in the complaint as true and drawing all reasonable inferences in the

plaintiff’s favor. St. George v. Pinellas County, 

, 1337 (11th Cir.

2002) (citations omitted). To survive a motion to dismiss, a “complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 

, 678, 

, 1949

(2009) (quotation marks omitted). A plaintiff must assert “more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 

, 555, 

, 1964–65

(2007).

      To establish supervisory liability under § 1983 for a constitutional violation,

as Key attempts to do here, she must allege that the supervisor-defendant

“personally participated in the alleged unconstitutional conduct or that there is a

causal connection between the actions of a supervising official and the alleged

constitutional deprivation.” 

(emphasis added). A

causal connection can be established in a variety of circumstances, including where

the supervisor’s policy or custom resulted in deliberate indifference. See Cottone

v. Jenne, 

, 1360 (11th Cir. 2003).


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      Deliberate indifference requires the plaintiff allege subjective knowledge of

a risk of serious harm and disregard of that risk by conduct that is more than gross

negligence. 

. In order to prevail on the merits in a

§ 1983 action against a defendant in his individual capacity, the plaintiff generally

must show that the defendant was personally involved in specific acts or omissions

that resulted in the constitutional deprivation. See, e.g., Harper v. Lawrence Cnty.,

Ala., 

, 1236–37 (11th Cir. 2010); see also 

n.5 (noting that “[m]eeting these requirements without any individualized

allegations other than Appellants’ names and titles is unlikely”).

      As in our recent decision in Franklin, the Defendants here argue that a claim

of deliberate indifference is no longer sufficient after Ashcroft v. Iqbal, 

, 

(2009). Instead they argue that Key must allege a purposeful

and intentional violation of her constitutional rights. However, we rejected that

argument in Franklin, another Eighth Amendment 

n.7. As

we noted in Franklin, the factors necessary to establish a § 1983 claim will vary

with the constitutional provision at issue. 

556 U.S. at 

). We also distinguished Iqbal—which involved claims of invidious

discrimination—from the Eighth Amendment deliberate indifference claim at issue

in Franklin. 

§ 1983 claims against the Defendants for

violations of the Eighth Amendment can survive without allegations of purposeful


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and intentional conduct as long as she meets this Circuit’s standard for deliberate

indifference.

      Franklin also addressed the sufficiency of allegations of supervisory liability

under the deliberate indifference standard in a factual scenario strikingly similar to

that alleged by Key. 

Because the parties and the district court did

not have the benefit of our decision in Franklin, we remand with instructions that

the district court give Key an opportunity to amend her complaint in accordance

with that decision. Brisson v. Ford Motor Co., 349 F. App’x 433, 435 (11th Cir.

2009); Friedlander v. Nims, 

, 813 (11th Cir. 1985) (noting “well-

established rule that ‘a complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claims which would entitle him to relief’” (quoting Conley v.

Gibson, 

, 45–46, 

, 101–02 (1957) (footnote omitted)). The

Defendants may then renew their motion to dismiss if warranted.

                                         III.

      In light of our recent decision in Franklin, we REMAND for further

proceedings consistent with this opinion.

      REMANDED.




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