Rudolph Ludaway v. City of Jacksonville , 245 F. App'x 949 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 30, 2007
No. 07-10859 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00051-CV-J-12-HTS
RUDOLPH LUDAWAY,
Plaintiff-
Counter-Defendant-
Appellant,
versus
CITY OF JACKSONVILLE, FLORIDA,
E.V. FOLEY,
A.M. HORNE,
W.D. JANES,
M.T. SUMMERS,
Defendants-
Counter-Claimants-
Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 30, 2007)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Rudolph Ludaway, a Florida state prisoner proceeding pro se, appeals the
district court’s grant of summary judgment in his 42 U.S.C. § 1983 action against
the City of Jacksonville, Florida (“City”) and several officers with the Jacksonville
Sheriff’s Office (“JSO”) (collectively, the “Defendants”). For the reasons that
follow, we affirm.
I. BACKGROUND
In January 2006, Ludaway filed an amended complaint against officers
Adam Horne, William Janes, Erica Foley, and M.T. Summers (“Officers”), all in
their official capacities, and the City of Jacksonville, alleging that the Officers
violated his Fourth Amendment rights by using excessive force during his arrest.
According to the complaint, the Officers’ use of excessive force was in accordance
with the JSO’s policy or custom, and as a result of the Officers’ conduct, he
suffered a lost fingernail, a lost fingertip, and bruises and scarring to his forearm,
shoulder, elbow, and back. In support of his complaint, he submitted a letter that
he received from the JSO’s Internal Affairs Unit following an investigation into a
complaint he had filed with the JSO regarding his arrest. In the letter, the Internal
Affairs office stated that it could not find any proof that the Officers’ actions “did
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not adhere to the Sheriff’s Office policies and procedures” and that the force used
“was legal and proper.”
The Defendants filed a motion to dismiss the complaint, which the district
court denied. Following the Defendants’ answer to the complaint and the
depositions of Ludaway and the Officers, the Defendants moved for summary
judgment, arguing that Ludaway’s constitutional rights were not violated during
the arrest because the force used was objectively reasonable under the
circumstances. The Defendants also argued that even if a constitutional violation
had occurred, because Ludaway named the City and the Officers in their official
capacities as defendants, he was required to show that the constitutional violation
occurred as a result of an official government policy or custom, and there was no
evidence that the City had a policy or custom condoning the use of excessive force.
In support of the summary judgment motion, the Defendants submitted a sworn
declaration from JSO Undersheriff Francis Maskey, explaining that the JSO
prohibited the use of excessive force and that officers found to have used such
force are disciplined. The Defendants also submitted copies of the JSO’s
disciplinary orders and use-of-force policies.
In response to the summary judgment motion, Ludaway reiterated that the
force used was not objectively reasonable, and he attached a report showing that
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over 170 complaints of excessive force had been filed with Internal Affairs from
January 2004 to December 2005. He also attached the letter he had received from
Internal Affairs following the investigation into his complaint regarding the force
used during his arrest.
In a written order, the district court granted summary judgment in favor of
the Defendants, concluding that Ludaway had “wholly failed to identify any JSO
or municipal policy which permits or promotes the unnecessary or excessive use of
force by its officers toward arrestees.” The court further concluded that Ludaway
had failed to support his assertion that there is a widespread custom of tolerating or
promoting the excessive use of force by JSO officers. Ludaway now appeals.
II. STANDARD OF REVIEW
“We review a district court’s grant of summary judgment de novo, viewing
the facts—as supported by the evidence in the record—and reasonable inferences
from those facts in the light most favorable to the nonmoving party.” Young v.
City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).
III. DISCUSSION
On appeal, Ludaway argues that the district court erred in granting summary
judgment to the Defendants because the Officers used unconstitutionally excessive
force in arresting him pursuant to the City’s policy or custom.
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A § 1983 action “against a governmental official in his official capacity is
deemed a suit against the entity that he represents.” Brown v. Neumann, 188 F.3d
1289, 1290 (11th Cir. 1999) (citing Kentucky v. Graham, 473 U.S. 159, 165, 105
S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985)) (emphasis added). Because Ludaway
has named the Officers as defendants in their official capacities, his complaint
against the Officers is essentially a complaint against the City. Accordingly, the
disposition of the complaint as to both the City and the Officers will be analyzed
under the rubric of municipal liability. See id.A municipality may be liable under § 1983 for the actions of its police
officers only if the municipality is “found to have itself caused the constitutional
violation at issue; it cannot be found liable on a vicarious liability theory.” Skop v.
City of Atlanta, Ga., 485 F.3d 1130, 1145 (11th Cir. 2007). “It is only when the
execution of the government’s policy or custom . . . inflicts the injury that the
municipality may be held liable under § 1983.” Gold v. City of Miami, 151 F.3d
1346, 1350 (11th Cir. 1998) (internal quotation marks omitted). Thus, to establish
municipal liability under § 1983, the plaintiff must show that: (1) his constitutional
rights were violated, (2) the municipality had a custom or policy that constituted
deliberate indifference to his constitutional rights, and (3) the policy or custom
caused the violation of his constitutional rights. McDowell v. Brown, 392 F.3d
51283, 1289 (11th Cir. 2004). “A policy is a decision that is officially adopted by
the municipality, 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). “A custom is a practice that is so settled and permanent that it
takes on the force of law.” Id.“In order for a plaintiff to demonstrate a policy or custom, it is generally
necessary to show a persistent and wide-spread practice.” McDowell, 392 F.3d at
1290. And “state and local positive law determine whether a particular official has
final policymaker authority for § 1983 purposes.” Cooper, 403 F.3d at 1221(quotation marks omitted).
After careful review of the record, we conclude that Ludaway has failed to
raise a genuine issue of material fact as to whether the Officers’ alleged use of
excessive force was the result of the City’s policy or custom.
First, Ludaway has failed to identify any official policy that condones or
promotes the use of excessive force by JSO officers in effecting arrests. The
record shows that the JSO’s official policies prohibit the use of excessive force by
officers and that officers who violate this prohibition are disciplined. And even if
we were to consider the JSO’s Internal Affairs Unit as the final policymaker for
§ 1983 purposes, the Internal Affairs letter upon which Ludaway relies does not
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establish the existence of a policy condoning or promoting the use of excessive
force. Indeed, the letter states that the force used by the Officers in arresting
Ludaway “was legal and proper.”
Ludaway also has failed to establish that there is a widespread custom of
using excessive force among the officers in the JSO. Ludaway states that between
January 2004 and December 2005, there were over 170 complaints to the JSO
alleging that its officers used excessive force. But as the district court observed, a
review of the record shows that only 10 of these claims of excessive force were
sustained, and the officers in those cases were disciplined or resigned while under
investigation. On this record, a reasonable juror could not find that the use of
excessive force among officers in the JSO was so widespread as to have acquired
the force of law. See Cooper, 403 F.3d at 1221.
Because Ludaway has failed to raise a genuine issue of material fact as to
whether the Officers’ alleged use of excessive force was the result of the City’s
policy or custom, his complaint fails as a matter of law.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM.
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