JAMES D. WHITTEMORE, District Judge.
Donald J. Hinson brought this action against Grady Judd in his official capacity as Sheriff of Polk County, alleging violations of his civil rights under 42 U.S.C. §§ 1983 and 1988 and the Fourteenth Amendment. His allegations arise from an incident in the Polk County Jail, when he was attacked by another detainee. He brings two claims, Policy Liability Other Failures (Count IV), and Negligence (Count V).
On August 25, 2013, Hinson surrendered to the custody of the Polk County Sheriff's Office ("PCSO") as a pretrial detainee (Dkt. 59 ¶¶ 12, 15). He was placed in holding cell number four with another detainee, William Edwards (Id. ¶ 21).
When Edwards was placed in holding cell number four, the Polk County Jail had no system that would identify a new detainee's propensity to harm others. Rather, the practice was to rely on the charges the detainee was being booked on, the behavior of the detainee while at book-in, and any known, passed-on information about the detainee that would call for a need to separate the detainee from others. (Dkt. 55, Deputy Swenson Dep., at p. 8:12-25, 9:1-11, 22:8-25, 23:1-22); (Dkt. 65, Ex. 2, Department of Detention Directive 2.2, C.1.d.13); (Dkt. 65, Chief Allen Dep., at pp. 44:22-25, 45:1-10, 53:1-6); (Dkt. 54, Sgt. Rodriguez Dep., at p. 45:8-19).
Defendant moves for summary judgment, contending that "no genuine issue of material fact exists in the record" to support Plaintiff's claims. (Dkt. 66 at p. 2). Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine factual dispute exists only if a reasonable fact-finder `could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict.'" Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is material if it may affect the outcome of the suit under governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). All facts are viewed and all reasonable inferences are drawn in the light most favorable to the non-moving party. See Scott v. Harris, 550 U.S. 372, 380 (2007).
The moving party bears the initial burden of showing that there are no genuine disputes of material fact. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Once the moving party demonstrates the absence of a genuine issue of material fact, the non-moving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories, and admissions on file to designate facts showing a genuine issue for trial. See Celotex Corp., 477 U.S. at 324. The Court will not weigh the evidence or make findings of fact. Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). Rather, the Court's role is limited to deciding whether there is sufficient evidence upon which a reasonable juror could find for the non-moving party. See id.
In Count IV, Hinson brings a claim under 42 U.S.C. § 1983 against Sheriff Judd in his official capacity as Sheriff of Polk County. (Dkt. 59 ¶ 9). This claim is functionally against the Polk County Sheriff's Office. See Kentucky v. Graham, 473 U.S. 159, 166 (1985); Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1115 (11th Cir. 2005). Relevant to this claim, governmental entities may be liable for constitutional violations resulting from the execution of a policy or custom of the governmental entity. See Monell v. Dep't of Social Servs. of City of N.Y., 436 U.S. 658, 694 (1978).
To impose § 1983 liability on Judd in his official capacity, Hinson must demonstrate that Judd had an official policy or custom that was the "moving force" behind the constitutional violation. Id. The policy or custom must be a decision that is officially adopted by the governmental entity, or "created by an official of such rank that he or she could be said to be acting on behalf of the municipality." Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir. 2005) (citation and internal quotation marks omitted). The practice must be so permanent and well settled as to constitute a "custom or usage" with the force of law, and proof of a single incident of unconstitutional activity is not sufficient to impose liability, unless that proof shows that it was caused by an existing, unconstitutional policy attributed to the policy maker. Id.; Craig v. Floyd Cty, 643 F.3d 1306, 1310 (11th Cir. 2011). And liability attaches only where a deliberate choice to follow a course of action is made from alternatives by the official responsible for establishing final policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986).
Hinson alleges that Sheriff Judd failed to provide a safe environment, failed to protect him from serious risk of harm, and "refused to take reasonable measures to protect [him] and other inmates from harm despite knowing that [his] assailant and others like him posed a substantial risk of serious harm." (Dkt. 59 ¶ 9). He faults Judd for not having a "red flag" system in place to segregate certain detainees during the book-in process, and failing to protect pretrial detainees from violent detainees placed in the holding cell together. He alleges that Judd promoted and maintained a policy that commingled violent and non-violent detainees during booking, and that the failure to separate them was the moving force behind the attack on him. (Dkt. 59 ¶¶ 2, 59-60). Hinson's § 1983 claim is based on a failure to train the detention deputies and an unconstitutional policy or custom. See (Dkt. 66 at p. 9; Dkt. 71 at pp. 2, 4).
Hinson alleges that Judd "encouraged, tolerated, ratified and has been deliberately indifferent to . . . the need for more or different training . . . in the area of [] Detention deputy and supervisor duties and responsibilities to ensure proper classification at booking to ensure pretrial detainees have a safe environment, including, but not limited to: [] Failure to train detention deputies and supervisors to properly disclose, communicate and act upon receipt of known mentally ill, violent and predatory inmates." (Dkt. 59 ¶ 61).
A § 1983 failure to train claim will ordinarily rest on a pattern of constitutional violations which would make the need for more training so obvious, and the inadequacy of training so likely to result in the violation of constitutional rights, that the policy maker can reasonably be said to have been deliberately indifferent to that need. City of Canton v. Harris, 489 U.S. 378, 391 (1989). During the Pretrial Conference, counsel for Hinson confirmed that the § 1983 claim relies on a pattern of constitutional violations.
Sheriff Judd moves for summary judgment, contending that the record includes no facts "that point to a pattern of constitutional violations that have resulted from Sheriff Judd's alleged `failure to train.'" (Dkt. 66 at p. 12). Hinson responds that "detainee violence in cell four was an obvious consequence of a training that did not require examination of prior records kept by the sheriff's office itself." (Dkt. 71 at p. 4). Judd's arguments are persuasive. The record evidence does not demonstrate a pattern of constitutional violations resulting from a failure to train. And without notice of deficient training, Judd could not have been deliberately indifferent. See Connick v. Thompson, 563 U.S. 51, 61 (2011).
As noted, § 1983 liability is limited to circumstances where "official policy" causes a constitutional violation. Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). Hinson must therefore establish that inadequate training was a policy or custom which caused the claimed constitutional violation. Id. (citing Canton, 489 U.S. at 389-91). And since a governmental entity will "rarely" have an officially adopted policy of permitting a constitutional violation, he must show that Judd had "a custom or practice of permitting [the violation] and that [his] custom or practice is `the moving force behind the constitutional violation.'" Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999).
A failure to provide adequate training can constitute a policy or custom if the deficiency evidences a "`deliberate indifference' as to its known or obvious consequences." Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 407 (1997). The policy or custom may be established by a showing that the failure to train reflects a "deliberate or conscious choice" on the part of Sheriff Judd. Id. To avoid summary judgment on this claim, Hinson "must present some evidence that [Sheriff Judd] knew of a need to train . . . in a particular area and [he] made a deliberate choice not to take any action." Gold, 151 F.3d at 1350; Am. Fed'n of Labor & Cong. of Indus. Orgs. v. City of Miami, 637 F.3d 1178, 1188-89 (11th Cir. 2011). He has not done so.
In Am. Fed'n of Labor & Cong. of Indus. Orgs., 637 F.3d 1178, this Circuit summarized the difficulty in prevailing on a failure to train claim:
Id. at 1189 (internal citations omitted).
Hinson contends that Sheriff Judd was deliberately indifferent to the need for adequate training "to ensure proper classification at booking to ensure pretrial detainees have a safe environment, including, but not limited to: failure to train detention deputies and supervisors to properly disclose, communicate and act upon receipt of known mentally ill, violent and predatory inmates." (Dkt. 59 ¶ 61). Essentially, he alleges that Judd failed to train his detention deputies to ensure a safe environment for pretrial detainees
Hinson maintains that Judd was on notice of the need to train and was deliberately indifferent to that need based on the existence of a widespread pattern of abuse. However, he has not submitted any evidence of a widespread pattern of abuse to support this contention. See Rocker v. City of Ocala, 355 F. App'x 312, 314 (11th Cir. 2009) ("The need for training is not plainly obvious unless there is evidence of a history of widespread prior abuse.") (citation and internal quotation marks omitted). More specifically, he does not present any evidence of prior constitutional violations arising from a failure to train staff in the areas of pretrial detainee safety that would have placed Judd on notice of the need for training.
Hinson attempts to establish notice of the need to train by relying on examples
But this evidence does not establish a widespread pattern of constitutional violations resulting from a failure to train that would have put Judd on notice of a need to train. Indeed, it is undisputed that when Hinson was attacked, the detention deputies had no knowledge or information that Edwards had a history of or propensity for violence. (Dkt. 52, Donald Leach Dep., at pp. 22:4-23; 29:2-25, 30:1-25, 34:9-25, and 41:9-16). Accordingly, this evidence does not support Plaintiff's failure to train theory. See Connick, 563 U.S. at 62 ("A pattern of similar constitutional violations by untrained employees is `ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train.").
In the absence of a pattern of unconstitutional violations, § 1983 liability based on inadequate training may only be established "if the likelihood for constitutional violation is so high that the need for training would be obvious." Lewis v. City of West Palm Beach, 561 F.3d 1288, 1293 (11th Cir. 2009) (citing Gold, 151 F.3d at 1351-52). This exception is found in a footnote in Canton, 489 U.S. 378, where the Supreme Court noted a hypothetical scenario in which a police agency provides firearms to its police officers, and the unconstitutional use of deadly force might be a "highly predictable consequence" of failing to train officers in the use of deadly force. Id. at 390 n.10.
Judd contends this exception is not warranted to Hinson's claim of failure to train. (Dkt. 66 at p. 11). He argues that "the book-in process does not present the `obvious' need for training in the immediate classification and segregation of detainees that the use of deadly force" does. (Id.). In response, Hinson argues that "[t]he Court should not hamstring the doctrine by limiting it to only Canton facts." (Dkt. 71 at p. 15). Rather, "a `fitness screening' for placement in the general booking population should have occurred before one [could] cohabitate with misdemeanor pretrial detainees like Mr. Hinson."
Based on these competing contentions, the issue is whether it can be said that "the likelihood for constitutional violation is so high that the need for training would be obvious" in the classification and segregation of pretrial detainees. Lewis, 561 F.3d 1288. I think not. Edwards' conduct does not indicate a "highly predictable consequence" of failing to train detention deputies.
Hinson contends that violence among detainees was "an obvious consequence of training that did not require examination of prior behavior records kept by the sheriff's office itself" and that "booking detention deputies were not trained to identify an inmates' propensity for violence [and] were not trained to assess the potential danger to fellow detainees that known dangerous inmates posed." (Dkt. 71 at pp. 3, 4). According to Hinson, "[g]iven the staggering number of assaults this specific assailant was able to commit in the Polk County Jail, and given the fact that he went on to commit assault post-his attack of Plaintiff, it is reasonable to infer the lack of training and policies would lead to the constitutional violation and serious injury." (Id. at p. 15).
These contentions, and more importantly, the record evidence, however, are insufficient to implicate the narrow circumstance noted in Canton. Hinson's assertion that Judd was on notice of the need to train and was deliberately indifferent to that need is based only on Edwards' pattern of behavior. (Dkt. 71 at p. 13). He expressly contends that "the pattern of Edward's (sic) behavior triggers the need for obvious protection." (Id.). But Edwards' history of violent conduct and criminal history does not demonstrate that detainee violence was a "highly predictable consequence" of failing to train detention deputies, such that Judd was deliberately indifferent to the rights of detainees. Specifically, the record evidence does not demonstrate, or even give rise to material factual dispute, that the likelihood of a constitutional violation was so predictable that Judd's failure to train the deputies reflects a "deliberate or conscious choice."
The opinion of Plaintiff's expert, Donald Leach, does not give rise to a material factual dispute as to whether Sheriff Judd was on notice of a need to train or deliberately indifferent to its consequences. See Buckler v. Israel, 680 F. App'x 831, 835-36 (11th Cir. 2017); Campbell v. Sikes, 169 F.3d 1353, 1370-71 (11th Cir. 1999); Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (quoting Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666, 672-73 (D.C. Cir. 1977)) ("Rule 703 was intended to broaden the acceptable bases of expert opinion, but it was not intended, as appellants seem to argue, to make summary judgment impossible whenever a party has produced an expert to support its position."); see also Am. Key Corp. v. Cole Nat'l Corp., 762 F.2d 1569 (11th Cir. 1985) (finding summary judgment for defendant proper and no error in assigning "little weight" to plaintiff's expert because his affidavits did not create a material issue of disputed fact).
To support his contention that "detainee violence in cell four was an obvious consequence of a training that did not require examination of prior records kept by the sheriff's office itself," Plaintiff relies on Leach's opinion:
(Id. at p. 3) (citing (Dkt. 52, Donald Leach Dep., Ex. 2, Expert Report, at p. 27)).
That more could have been done to identify a detainee like Edwards' propensity to assault fellow detainees does not give rise to a material issue of fact as to whether Sheriff Judd's failure to train amounts to deliberate indifference, since mere negligence does not support liability under § 1983. Daniels v. Williams, 474 U.S. 327, 664-65 (1986); Keith v. DeKalb Cty, 749 F.3d 1034 (11th Cir. 2014) ("While there may have been ways in which the Sheriff . . . could have improved the training of officers, the deliberate indifference standard requires a showing of more than gross negligence.").
In sum, there is no evidence of a pattern of constitutional violations that would have put Sheriff Judd on notice of an existing need for improved policies and training for detention deputies, or for a system to "red flag" a detainee. Hinson's § 1983 failure to train claim therefore fails. And, as noted, even if the record evidence supports his contention that Sheriff Judd was on notice of a need to train his detention deputies, he must establish that Judd "made a choice not to do so." Am. Fed'n of Labor & Cong. of Indus. Orgs., 637 F.3d at 1189 (citing Gold, 151 F.3d at 1350) ("To establish . . . `deliberate indifference,' a plaintiff must present some evidence that the municipality knew of a need to train and/or supervise in a particular area and the municipality made a deliberate choice not to take any action.") (emphasis added). Plaintiff does not present any such evidence.
Hinson contends that Sheriff Judd acted pursuant to established policies which resulted in a violation of his constitutional rights. He cites the failure to separate inmates, despite a known propensity for violence, the failure to implement a computer system to track known violent offenders and to train staff to screen inmates using historical data from the jail, and the failure to protect pretrial detainees from violence from other detainees (Dkt. 59 ¶¶ 18, 20, 36-37, 59-61).
Sheriff Judd contends that summary judgment is appropriate on this claim because there is no evidence of an official custom or established policy which would support a "failure to protect" theory, or that Judd was deliberately indifferent to the need for such policies. In response, Hinson contends that "[u]ltimately, not having anything available regarding an individual's past assaultive behavior on other inmates while in custody at book-in at the Polk County Jail, was a violation of the United States Constitution" and "[u]ltimately, the Sheriff promotes constitutional violations through inaction." (Dkt. 71 at pp. 7, 11). Essentially, he argues that the absence of policies to identify detainees with propensities for violence and to separate them from other detainees amounts to an unconstitutional policy.
Liability may be imposed because of the absence of a policy that establishes appropriate procedures to ensure that a person's constitutional rights are not violated. See Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991). In that circumstance, a plaintiff must show that the "`policy of inaction' is the functional equivalent of a decision by the city itself to violate the constitution." Canton, 489 U.S. at 394-95 (O'Connor, J., concurring). Accordingly, to avoid summary judgment, Hinson must demonstrate that Judd's failure to maintain a policy of separating dangerous detainees amounted to deliberate indifference to its known or obvious consequences, and a conscious decision not to take action. Bd. of Cty. Comm'rs of Bryan Cty., 520 U.S. at 407.
Hinson has not shown deliberate indifference on Judd's part, or an issue of material fact that would prevent summary judgment on Judd's behalf. He acknowledges that the Sheriff has policies through the Department of Detention Directives for administrative protective custody for detainees and utilizes certain cells for protective custody. (Dkt. 65, Ex.2, Department of Detention Directive 2.2, C.1.d.13); (Dkt. 71 at p. 8); (Dkt. 55, Swenson Dep., at p. 8:12-25, p. 9:1-11). Detainees are separated based on the charges they face, their appearance and behavior during and while in book-in (Dkt. 65, Chief Allen Dep., at p. 53:1-6), and whether they need medical care (Id. at pp. 44:22-25, 45:1-10; Dkt. 54, Rodriguez Dep., at p. 45:8-19; Dkt. 55, Swenson Dep., at pp. 22:8-25, 23:1-22). He essentially contends that these policies were not sufficient to safeguard his safety. But as discussed, he has not provided evidence of widespread detainee violence which would have indicated that the likelihood of a constitutional violation was so obvious that the failure to have a policy in place reflected a deliberate or conscious choice. Without evidence establishing that the absence of policies resulted in deliberate indifference to his constitutional rights, this claim fails. See McDowell, 392 F.3d at 1291.
In Count V, Plaintiff alleges a Florida negligence claim against Judd in his official capacity. (Dkt. 59 ¶¶ 64-72). He contends Judd is vicariously liable for the injuries caused by the acts or omissions of the deputies "acting within the scope of their employment and without bad faith, malicious intent or in a manner exhibiting wanton and willful disregard" of his rights. (Id. ¶ 67). Judd argues that Count V must be dismissed because Hinson's negligence claim is barred by sovereign immunity. (Dkt. 66 at pp. 19-22).
Sovereign immunity may bar an action for negligence. Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d 1092, 1117 (11th Cir. 2005) (citing Pollock v. Fla. Dep't of Highway Patrol, 882 So.2d 928, 933 (Fla. 2004)). "[B]asic judgmental or discretionary governmental functions are immune from legal action, whereas operational acts are not protected by sovereign immunity." Id. A discretionary function "is one in which the governmental act in question involved an exercise of executive or legislative power such that, for the court to intervene . . . it would inappropriately entangle itself in fundamental questions of policy and planning were it to entertain the plaintiff's tort claim." Id. at 1117-18 (citing Henderson v. Bowden, 737 So.2d 532, 538 (Fla. 1999)). "An `operational' function, on the other hand, is one not necessary to or inherent in policy or planning, that merely reflects a secondary decision as to how those policies or plans will be implemented." Id. at 1118.
In Florida, the "operation and maintenance" of prisons is a discretionary function of the sheriff, an independent officer under the Florida Constitution. See White v. Palm Beach Cty., 404 So.2d 123, 125 (Fla. 4th DCA 1981). One function of operating and maintaining prisons is the classification and placement of inmates. Davis v. State of Fla., Dep't of Corr., 460 So.2d 452, 453 (Fla. 1st DCA 1984).
Judd's entitlement to sovereign immunity depends on whether Plaintiff's claims are based on policies concerning general classification and placement of inmates and detainees or on the specific assignment of Plaintiff to a location in the Polk County jail where he foreseeably faced danger from Edwards. In his Second Amended Complaint, Plaintiff attempts to plead a plausible claim by alleging that "the assignment of Plaintiff, a pretrial detainee, to cell four in the booking area where there was a foreseeable exposure to danger is an operational act not protected by sovereign immunity." (Dkt. 59 ¶ 70). He repeats this contention in his Response to Judd's motion, but adds that "the Sheriff made a decision that policies regarding screening inmates by their available history were not necessary or required for the safe operation of the booking area." (Dkt. 71 at pp. 18-19).
Even considering the evidence in the light most favorable to Hinson, he was placed in cell number four in accordance with the standard practice at the jail for pretrial detainees, and there is not evidence that he foreseeably faced danger from that placement. His placement in cell number four therefore necessarily reflects a discretionary policy decision concerning the classification and placement of pretrial detainees in general, not from his specific placement in holding cell number four. (See Dkt. 59 ¶ 69(a)-(f)).
The undisputed material facts of record do not support a finding of liability against Sheriff Judd on any of the theories of policy liability or negligence Hinson raises. Accordingly, Defendant Sheriff Grady Judd's Amended Dispositive Motion for Summary Judgment (Dkt. 66), is
Recently, in Marbury v. Warden, ___ F.3d ____, No. 17-12589, 2019 WL 4062675 (11th Cir. August 29, 2019), the Eleventh Circuit affirmed the dismissal of a prisoner's § 1983 claims where the plaintiff was assaulted by another inmate. The Court conducted a deliberate indifference analysis as applied to failure-to-protect claims, and held that plaintiff failed to "demonstrate[] a genuine factual issue as to whether the defendants were deliberately indifferent to a substantial risk of serious harm . . . ."
Despite the similarities between Hinson and Marbury in that both were in some form of custody and were assaulted by fellow inmates, the analysis in the cases differs. In Marbury, the decision turned on qualified immunity with respect to § 1983 claims brought against defendants in their individual capacity. Here, Plaintiff's claims are brought against Sheriff Judd in his official capacity, based on policy liability and negligence.
(Dkt. 65 at pp. 67:19-25, 68:1-8).
