Robert Williams v. DeKalb County , 327 F. App'x 156 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 6, 2009
No. 07-14367 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-03056-CV-WSD-1
ROBERT WILLIAMS,
Plaintiff-Appellant,
versus
DEKALB COUNTY,
a political subdivision of State of Georgia,
RONALD W. JONES,
Individually,
LEWIS GRAHAM,
Individually,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 6, 2009)
Before TJOFLAT and CARNES, Circuit Judges, and HOOD,* District Judge.
PER CURIAM:
Six hours before Lewis Graham started his first day as DeKalb County Chief
of Police, one of his officers saw a man loitering. That officer, Ronald Jones, put
the man, Robert Williams, into his patrol car and drove him to a wooded spot in a
neighboring county. There Jones beat Williams and stabbed him. When Jones
realized the trouble he was going to be in, he tried to flip the facts by accusing
Williams of kidnaping and assaulting him.
After Officer Jones eventually admitted the truth, Williams filed a state-
court lawsuit against him, Chief Graham, and DeKalb County based on the injuries
Williams had suffered. That lawsuit alleged violations of 42 U.S.C. § 1983 and of
the Georgia laws against false imprisonment, kidnaping, and aggravated assault. It
was later removed to the federal district court, where Williams and Graham and the
County filed cross-motions for summary judgment. The district court granted the
motion filed by Graham and the County after determining that the County was not
liable for Williams’ injuries under § 1983, that Williams’ state-law claims against
the County were barred by sovereign immunity, and that Williams had abandoned
all his claims against Graham by failing to respond to Graham’s arguments that
*
Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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qualified and official immunity barred them. This is Williams’ appeal from the
resulting judgment in favor of Graham and the County.
I.
A.
In the Fall of 2004 Robert Williams sat at a DeKalb County bus stop near
Wesley Chapel Road in Atlanta. While he rested there in the early morning hours,
Officer Ronald Jones of the DeKalb County Police Department approached
Williams and told him to move along.
Williams, who was homeless, left the bus stop and went behind a nearby
Chinese food restaurant to lay down to sleep. Minutes later Officer Jones
approached him a second time. Once again he asked Williams to move on.
Williams told Jones that he had nowhere else to go. Jones gave Williams a choice:
he could either find another place to sleep or he would find himself in jail.
Williams chose jail.
After patting Williams down, Jones opened the back door of his police car
and Williams climbed inside. Williams, who had been taken to jail for loitering
before, noticed as they drove away that they were heading in wrong direction.
When he asked where Jones was taking him, Jones told Williams that they were
going to the place Jones took homeless people he found on his beat. Jones did not
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call in his location or destination to the dispatcher even though Williams
remembered that other officers had contacted dispatch during his previous loitering
arrests.
Jones eventually stopped the police cruiser in a wooded part of Rockdale
County. There were no street lights, and it was dark. Jones got out, walked around
to the passenger side, opened the rear door, and ordered Williams out of the car.
Worried for his safety, Williams refused to leave the vehicle. Jones then attempted
to force Williams out by hitting him with a baton. It worked, but during the scuffle
that followed outside the vehicle, Jones stabbed Williams in the arm, abdomen, and
leg with a knife. He also tried to cut Williams’ neck, but missed and sliced
Williams’ chin instead.
At some point in the fight Jones drew his gun, but Williams managed to
wrestle it from him. As he ran into the surrounding woods to escape Jones,
Williams threw the weapon to the ground. He stumbled in the darkness, fell into a
creek, and then stripped down to his boxer shorts to keep the noise his soaked jeans
were making from giving him away. Williams hid in the woods until daybreak.
In the hours between the attack and sunrise, Officer Jones told an
investigator from the DeKalb Major Felony Unit that he had been kidnaped and
assaulted by Williams. Because of that, Williams was arrested when he emerged
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from the woods. Jones admitted in an interview conducted several days later that
he had lied about Williams instigating the attack. Jones resigned from the police
department, and the charges against Williams were dropped. He was released after
having spent a day in jail.
B.
Williams filed this lawsuit in the Superior Court of Fulton County, but it was
removed to federal district court. The complaint included both individual and
official-capacity claims against Officer Jones and Chief Graham, but the official-
capacity claims were dismissed by consent order. After the cross-motions for
summary judgment, the court granted Graham and the County’s motion. (The
court also entered a default judgment against Jones, who had failed to appear.)
The district court divided Williams’ contentions about the County’s § 1983
liability into two theories. On the first theory, that “the County was negligent in
hiring Jones and inadequately trained and supervised him,” the court found that
Williams had “not submitted evidence showing that the County’s use of force
training was deficient or that it did not adequately supervise officers in the
application of force.” The court concluded that the “facts show[ed] that the County
was not deliberately indifferent to the inappropriate use of force by officers and has
in place policies and practices to address and respond to claims of excessive use of
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force, including those made against Jones.” Williams had also failed, the court
believed, “to identify and present evidence that a final policymaker negligently
hired” Jones. The court pointed out that Jones got his job and was on the force
before Graham became the Chief of Police.
Williams’ second theory of § 1983 liability was that “the County allowed a
policy or widespread practice to develop among police officers of removing
homeless people outside of the County” which “led to the violation of [Williams’]
right to be free from the excessive use of force.” The district court again
concluded that Williams had failed to satisfy his burden, because there was “little
direct evidence, other than the belief of a few police officers, that these types of
removals were actually carried out.” “More importantly,” the court noted, there
was “no evidence, even if the removals occurred, that homeless people were
harmed during or as a result of removal.” Because it thought that Williams had not
adequately proven a basis for holding the County liable for Jones’ actions, the
court granted summary judgment for it on Williams’ § 1983 claim.
The district court also reasoned that Williams had abandoned his § 1983
claim against Graham by not responding to the argument that qualified immunity
barred it, and on that basis the court granted summary judgment for Graham on
Williams’ § 1983 claim.
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Because Williams also failed to respond to Graham’s argument that official
immunity blocked the state-law claims against him, the court deemed those claims
abandoned as well. Finally, the court concluded that sovereign immunity barred
Williams’ state-law claims against the County. Although Williams argued that the
County had waived its immunity for losses arising out of its officers’ use of motor
vehicles, at least up to the amount of any vehicle liability insurance the County
held, the court noted that the statute granting that waiver applied only to negligent
use of motor vehicles. Because Williams’ complaint had alleged Jones
intentionally harmed him, the statute did not waive the County’s sovereign
immunity in Williams’ case. On those bases the court granted summary judgment
for Graham and the County on the state-law claims.
II.
Williams contends that the district court erred in granting summary
judgment for DeKalb County and Chief Graham on his § 1983 claims against
them. He argues his evidence created a genuine issue of material fact about
whether the County violated his “fundamental constitutional right to be free from
unlawful seizure and . . . brutality” because it was aware of Officer Jones’
propensities for untruthfulness and violence but failed to train and supervise Jones
properly to “protect the public.” He also asserts that there is a genuine issue about
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the County negligently hiring Jones, because his evidence shows the County
offered Jones a job even though it knew about those propensities. Williams
contends that the evidence shows that the County had a policy or custom of
involuntarily relocating the homeless to neighboring jurisdictions to “clean up”
DeKalb County, and he points to the testimony offered by his expert that the
County’s policy made the constitutional violations he suffered foreseeable.
A.
We review de novo a district court’s grant of summary judgment, resolving
all issues of material fact in favor of the nonmovant. McDowell v. Brown, 392
F.3d 1283, 1288 (11th Cir. 2004). Although the Supreme Court has held that
counties are subject to liability under § 1983, a plaintiff cannot rely on the doctrine
of respondeat superior to hold a county liable. See Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 692, 98 S. Ct. 2018, 2036 (1978) (finding that § 1983 “cannot be
easily read to impose liability vicariously on governing bodies solely on the basis
of the existence of an employer-employee relationship with a tortfeasor”);
McDowell, 392 F.3d at 1289. The initial question is whether a county has a policy
or custom that caused the injury. City of Canton v. Harris, 489 U.S. 378, 385, 109
S. Ct. 1197, 1203 (1989) (“It is only when the execution of the government’s
policy or custom . . . inflicts the injury that the municipality may be held liable.”
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(internal quotation marks omitted)); see also Gilmere v. City of Atlanta, 737 F.2d
894, 901–02 (11th Cir. 1984) (noting that a custom consists of those practices of
city officials that are “so permanent and well settled” as to have “the force of law”
(internal quotation marks omitted)). If a plaintiff establishes that a policy exists, he
must then show that the policy was the “moving force behind the constitutional
deprivation.” Farred v. Hicks, 915 F.2d 1530, 1532–33 (11th Cir. 1990) (internal
quotation marks omitted).
1.
A police department’s failure to train or supervise its officers can constitute
a “policy” sufficient to trigger governmental liability but only in limited
circumstances, such as when that failure “amounts to deliberate indifference to the
rights of persons with whom the police come into contact.” City of Canton, 489
U.S. at 388, 109 S. Ct. at 1204; see also Farred, 915 F.2d at 1533. To establish
deliberate indifference, “a plaintiff must present some evidence that the [county]
knew of a need to train and/or supervise in a particular area and the [county] made
a deliberate choice not to take any action.” Gold v. City of Miami, 151 F.3d 1346,
1350 (11th Cir. 1998). We have noted that “deliberate indifference has three
components: (1) subjective knowledge of a risk of serious harm; (2) disregard of
that risk;[and (3)] conduct that is more than mere negligence.” McElligott v.
9
Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (internal quotation marks omitted).
“[S]ince a finding of deliberate indifference requires a finding of the [county]’s
subjective awareness of the relevant risk, a genuine issue of material fact exists
only if the record contains evidence, albeit circumstantial, of such subjective
awareness.” Id.The district court concluded that Williams failed to show that the County
knew Jones (or other officers) needed additional training or supervision and
deliberately chose not to provide it. The court noted Williams’ attempt to highlight
Jones’ propensity for violence as a way of demonstrating the County’s failure to
train or supervise him adequately but found that each time Jones acted violently
prior to this incident, the County had “responded appropriately and consistently”
by sending Jones for counseling and additional training. Noting that the County
“has in place policies and practices to address and respond to claims of excessive
use of force,” the court found that there was no evidence that it had been
“deliberately indifferent to a need to train or to supervise officers on the use of
force and the circumstances in which it is appropriate.”
We agree. Williams presents essentially the same arguments to us about
Jones’ propensities for lying and violence as he did to the district court, and like
that court we are not persuaded that the evidence creates a genuine issue of
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material fact that the County knew it risked causing harm by failing to improve the
training or supervision of its officers. See McElligott, 182 F.3d at 1255. The
County investigated Jones each time it was notified that Jones may have been
involved in an on-the-job violent incident, including the one that led to this lawsuit,
and the County disciplined Jones when it determined that was the appropriate
response to his behavior.
The first of those incidents occurred in December 2001when Jones got into
an altercation while attempting to issue a noise citation. When the noise offender
refused to sign the citation, Jones handcuffed him. The man resisted, and Jones
knocked the man to the ground to subdue him. Jones sought out his supervisor the
following day and apologized for his overreaction, explaining that he had “messed
up.” The supervisor accepted Jones’ apology but still filled out a written report on
the incident. Jones was not disciplined on that occasion because his supervisor did
not believe the behavior would re-occur. The supervisor did note that Jones had
been “counseled on the proper way to handle county ordinance charges and the
correct manner in which to defuse these types of incidents.”
About nine months later in September 2002, Jones was accused of using
profanity and brandishing his firearm at a bystander whom he was questioning in
response to a domestic dispute down the street. The bystander filed a complaint,
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and the police department conducted an investigation into the incident. That
investigation concluded that the evidence was insufficient to sustain the
allegations. Because the investigative report noted that there had been “two
additional non-sustained complaints” against Jones based on his “interaction with
citizens,” the department required Jones to complete a retraining course on
communication and crisis intervention.
In addition to these two documented instances of inappropriate behavior,
Williams offers evidence about two other ones that may have involved Jones. As to
the first, Williams notes that one of Jones’ fellow officers testified during his
deposition for this lawsuit that Jones had assaulted an unconscious, handcuffed
suspect while using racial slurs and profanity in February 2002. The officer
claimed to have reported Jones’ behavior to supervisors, but he could not
remember to whom he had made the report.
As evidence of the second other instance of inappropriate behavior,
Williams notes that in December 2003 a homeless man told Rockdale County
police that a DeKalb County officer had driven him across county lines, assaulted
him, and left him there. A medical examination of the man performed after the
incident showed no injuries, and he could remember neither the type of car he rode
in nor the officer who drove it. Nonetheless, the Rockdale County incident report
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stated that DeKalb County Internal Affairs had been notified. Although Jones’
admitted attack on Williams makes it more plausible that this similar-sounding
incident involved Jones, it was not until November 9, 2004—eight days after
Williams was assaulted—that the man tentatively identified Jones as his abuser.
What these four incidents show is that when the County knew about Jones’
violent behavior, it responded appropriately by investigating and, when needed,
disciplining Jones. Indeed, the investigation into Jones’ attack on Williams not
only prompted Jones to resign, but also resulted in criminal charges being filed
against him. The County’s response does not support a conclusion that it was
deliberately indifferent to Williams’ constitutional rights. See City of Canton, 489
U.S. at 388, 109 S. Ct. at 1204; Gold, 151 F.3d at 1350. The district court’s
conclusion that the County was not liable under § 1983 on a failure-to-train theory
was not error.
2.
We also agree that the County cannot be held liable under § 1983 for
negligently hiring Jones. To support a conclusion that a county’s “isolated
decision to hire [an officer] without adequate screening” is sufficient to subject the
county to § 1983 liability, a plaintiff must demonstrate “that [the county’s]
decision reflected a conscious disregard for a high risk that [the officer] would use
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excessive force in violation of [the plaintiff’s] federally protected right.” Bd. of
County Comm’rs v. Brown, 520 U.S. 397, 415–16, 117 S. Ct. 1382, 1394 (1997).
Williams did not offer enough evidence to show that the County knew about and
consciously disregarded what he calls Jones’ “propensity for violence.”
The only incident Williams can point to in support of his argument that
Jones had a propensity for violence before he was hired by the County in 2000 is a
1993 altercation in which Jones shot an invader in his home. During the process of
screening Jones for work as a police officer, a psychologist hired by DeKalb
County evaluated Jones’ conduct in the 1993 shooting. The psychologist gave
Jones a “favorable evaluation” and recommended him to the County. That is not
enough evidence to meet the high burden the Supreme Court has articulated for
establishing that a governmental entity’s hiring decision violated a plaintiff’s
constitutional rights in circumstances like these. See id. at 412, 117 S. Ct. at 1392(noting that a plaintiff must show the offending “officer was highly likely to inflict
the particular injury suffered by the plaintiff” and that the “connection between the
background of the particular applicant and the specific constitutional violation
alleged must be strong”). We agree with the district court’s conclusion that the
County was not liable under § 1983 on a negligent hiring theory.
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3.
Williams’ other theory for imposing § 1983 liability on the County is that
his injuries were caused by the County’s policy of solving its homelessness
problem by having police officers take homeless people to neighboring counties.
The district court found “little direct evidence, other than the belief of a few police
officers, that these types of removals were actually carried out.” To the extent that
the district court based its decision to grant summary judgment on this finding of
“little direct evidence,” it erred.
There does not have to be any direct evidence, much less more than a little
of it, to present a genuine issue of material fact about whether the County had a
homeless relocation policy. The district court’s words give us the impression that
it weighed the evidence Williams offered instead of simply drawing a threshold
admissibility line. While district courts must resolve admissibility-of-evidence
questions, they are not permitted to weigh evidence. See, e.g., Ballou v. Henri
Studios, Inc., 656 F.2d 1147, 1154–55 (5th Cir. 1981).1 That is the jury’s job.
Williams offered testimony from at least five members of the DeKalb
County Police Department who had some knowledge of a homeless relocation
1
In our en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981), we adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
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policy. One officer testified that he had heard of the practice while he was still in
the police academy. Another officer noted that he had heard from his superiors
that officers needed to take homeless citizens “somewhere” if officers could not
think of a reason to arrest them. A third officer stated that it was “common
knowledge” that supervisors encouraged officers to relocate the homeless. A
fourth officer admitted that officers actually did relocate the homeless. Finally, a
supervisory officer testified that relocation was “done all the time” and had been
going on for twenty years.
Despite the fact that none of the officers could name any specific officer
who had relocated a homeless person, and none of the five admitted to having done
it himself, we think their testimony is enough from which a jury could find that the
County had a policy of involuntarily relocating homeless citizens. While the
circumstantial nature of the officers’ testimony may lead a jury to conclude that
Williams has not sufficiently proved a policy existed, that is the jury’s decision to
make.
Of course, that Williams has offered enough evidence of a homeless
relocation policy to survive a motion for summary judgment is not the end of the
matter. Williams must also show that the policy was the “moving force” behind
his injuries. Cuesta v. Sch. Bd. of Miami-Dade County, 285 F.3d 962, 967 (11th
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Cir. 2002) (“The official policy or custom must be the moving force of the
constitutional violation in order to establish liability of a government body under §
1983.” (internal quotation marks omitted)); see also Brown, 520 U.S. at 404, 117
S. Ct. 1388 (noting that a plaintiff “must demonstrate a direct causal link between
the municipal action and the deprivation of federal rights”); Farred, 915 F.2d at1532–33.
The district court concluded that Williams had offered “no evidence, even if
the removals occurred, that homeless people were harmed during or as a result of
removal.” The undisputed facts about what happened to Williams proves that
conclusion untrue. At least one homeless person was harmed as a result of his
removal from DeKalb County.
In addition to the evidence about what happened to him, Williams presented
an expert in police policy and procedure who testified in deposition that a homeless
relocation policy would make constitutional violations like the ones Williams
sustained “very definitely foreseeable.” The expert’s report also concluded that
“[m]ore likely than not, if the custom and practice of DeKalb County of taking
homeless and other undesirables and transporting them over the county line to
other jurisdictions did not exist, the false arrest and injuries sustained by Mr.
Williams would not have occurred.” We cannot agree with the district court’s
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conclusion that there was “no evidence” that homeless people were harmed as a
result of the alleged relocation policy.
Williams’ own injuries and his expert’s opinion may not be overwhelming
evidence that the alleged policy was the “moving force” behind the violation of his
constitutional rights, but they are sufficient evidence of a “causal link” between the
policy and the injuries to get the case to a jury. See Brown, 520 U.S. at 404, 117 S.
Ct. 1388; Cuesta, 285 F.3d at 967; Lowe v. Aldridge, 958 F.2d 1565, 1569 (11th
Cir. 1992).
We note that the district court does not appear to have based its decision to
grant summary judgment regarding the causal connection element on a theory that
the expert testimony was due to be excluded under Daubert v. Merrill Dow
Pharmaceuticals, Inc., 509 U.S. 579, 114 S. Ct. 2786 (1993). See also id. at
592–93, 113 S. Ct. at 2796 (noting that the district court must conduct a
“preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue” before deciding expert admissibility
questions); City of Tuscaloosa v. Harcos Chems., Inc., 158 F.3d 548, 564 n.21
(11th Cir. 1998). We will not supply a reason that neither the district court nor the
County has suggested. We do not imply any view on whether it would have been
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an abuse of discretion for the district court to have excluded the testimony of
Williams’ expert on Daubert grounds, nor any view on whether there would have
been sufficient evidence of a causal link without that testimony. Instead, we
decide only the issues that have been brought to us. As to the grant of summary
judgment to the County on the claim that it had a policy of dealing with the
homeless in a way that violated their rights and led to Williams’ injuries, the
judgment of the district court cannot stand on the record before us.
B.
Chief Graham contends, as he did before the district court, that qualified
immunity bars the § 1983 claim against him. Williams fails to address that
contention, just as he failed to address it in the district court. We, like the district
court before us, consider Williams’ § 1983 claim against Graham to be abandoned.
See, e.g., Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1256 n.6 (11th
Cir. 2005). We also reiterate that Graham did not even assume his role as Chief of
Police until several hours after this incident occurred. This claim is frivolous.
III.
On the state law claims, Williams renews the argument that he made his
district-court argument that the County waived its sovereign immunity by
purchasing auto insurance to cover negligent acts of its agents arising out of the
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use of motor vehicles. See Ga. Code Ann. § 33-24-51(b) (“The sovereign
immunity of local government entities for a loss arising out of claims for the
negligent use of a covered motor vehicle is waived . . . [w]henever a municipal
corporation, a county, or any other political subdivision of this state shall purchase
[] insurance . . . to provide liability coverage for the negligence of any duly
authorized officer, agent, servant, attorney, or employee in the performance of his
or her official duties . . . . [I]ts governmental immunity shall be waived to the
extent of the amount of insurance so purchased.”). He asserts that Jones’ actions
involved the use of a “covered motor vehicle” because Jones drove Williams in a
patrol car to the place where the assault occurred.
Even if we were to accept this theory, however, Williams’ argument still
fails. It is clear from the statutory text that the waiver is meant to encompass
negligent acts, not intentional ones. As the district court noted, Williams’
complaint alleged that Jones acted intentionally. We agree with the district court
that Georgia Code § 33-24-51(b) does not waive the County’s sovereign immunity.
Williams offers no argument about whether his state-law claims against
Chief Graham are barred by official immunity, as Graham contends they are. We,
like the district court, consider those claims abandoned. See Solantic, 410 F.3d at1256 n.6.
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IV.
In conclusion, we AFFIRM the judgment of the district court in all respects,
except that insofar as it concerns the claim against the County on the theory that its
policy of dealing with the homeless caused Williams’ injuries we REVERSE the
judgment and REMAND for further proceedings consistent with this opinion.
AFFIRMED in part, REVERSED and REMANDED in part.
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