Daniel R. Thompson v. Sheriff, Pinellas County FLorida , 542 F. App'x 826 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10101
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D. C. Docket No. 3:08-cv-00063-WS-CJK
DANIEL R. THOMPSON,
Plaintiff-Appellant,,
versus
SHERIFF, PINELLAS COUNTY FL,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 18, 2013)
Before PRYOR and ANDERSON, Circuit Judges, and RESTANI, ∗ Judge.
∗
Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
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PER CURIAM:
In this case, plaintiff Daniel Thompson has sued Sheriff Jim Coats in his
official capacity as Sheriff of the Pinellas County Sheriff’s Office (the “Sheriff”).
Previous litigation has established that Richard Farnham, then a deputy sheriff in
the Pinellas County Sheriff’s Office, violated the constitutional rights of plaintiff
when he tased plaintiff in the course of arresting him. For purposes of this appeal,
the Sheriff does not contest the fact of that violation of constitutional rights. The
incident occurred in the aftermath of Hurricane Ivan at which time there was
concern about looters. The incident occurred in Santa Rosa County, and Deputy
Farnham had been sent to assist the Santa Rosa County Sheriff’s Department.
However, the law is well established that a sheriff in his official capacity (i.e, the
county) may not be subjected to liability predicated upon a theory of respondeat
superior. The Supreme Court has established a high threshold for plaintiffs in cases
like this. See Bd. of County Com’rs of Bryan County v. Brown, 520 U.S. 397, 405,
117 S. Ct. 1382, 1389 (“Where a plaintiff claims that the municipality has not
directly inflicted an injury, but nonetheless has caused an employee to do so,
rigorous standards of culpability and causation must be applied to ensure that the
municipality is not held liable solely for the actions of its employee.”). The district
court found no liability in this case and entered summary judgment in favor of the
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Sheriff. Plaintiff appeals.
In this appeal, plaintiff seeks to impose official capacity liability upon the
Sheriff of Pinellas County on the basis of one of three theories. First, plaintiff
argues that Sheriff Coats knew or should have known of a need to supervise his
deputies with respect to the use of excessive force but was deliberately indifferent
to that need with the predictable consequence that his deputies would use excessive
force, thus violating the constitutional rights of arrestees. Second, plaintiff also
seeks to impose liability pursuant to the theory that Sheriff Coats ratified Farnham’s
unconstitutional conduct. Third, plaintiff seeks to impose liability under the theory
that his constitutional injuries were caused by former Sheriff Everett Rice’s
decision to hire Farnham despite red flags in Farnham’s background. We turn
initially to plaintiff’s first theory.
I. PLAINTIFF’S FAILURE TO SUPERVISE THEORY
Plaintiff first asserts that three citizen complaints against Farnham before the
September 20, 2004, incident at issue here placed the Sheriff on notice that deputies
were engaging in conduct constituting an excessive use of force, and thus on notice
that, in the absence of additional supervision, his deputies would engage in the use
of excessive force and deprive citizens of their constitutional rights. As the
Supreme Court indicated in Connick v. Thompson, __ U.S. ___, 131 S. Ct. 1350(2011):
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A pattern of similar constitutional violations by untrained employees
is “ordinarily necessary” to demonstrate deliberate indifference for
purposes of failure to [supervise]. 1 … Policymakers’ continued
adherence to an approach they know or should know has failed to
prevent tortious conduct by employees may establish the conscious
disregard for the consequences of their action—the deliberate
indifference—necessary to trigger municipal liability.
Id. at ___, 131 S. Ct. at 1360 (internal citations and quotations omitted). Plaintiff in
this case argues that the three citizen complaints against Farnham constitutes such a
“pattern of similar constitutional violations” that the Sheriff was placed on notice
that his deputies were engaging in the use of excessive force, and that the Sheriff’s
failure to provide additional supervision evidenced a deliberate indifference to the
likely consequence of deprivation of constitutional rights of arrestees.
We agree with the district court that plaintiff’s evidence falls far short of the
requisite proof. We note that Sheriff Coats has 900 deputies and that plaintiff has
adduced evidence only with respect to Deputy Farnham. We also note that plaintiff
has not challenged the existence and efficacy of the Sheriff’s written policies with
respect to the use of force. And we note that the record contains ample evidence of
adequate written policies with respect to the use of force, as well as evidence of
satisfactory procedures and means to monitor use of force incidents by deputies. 2
1
The rule suggested by the Supreme Court for purposes of failure to train also
applies to the failure to supervise. See Gold v. City of Miami, 151 F.3d 1346, 1350–51 (11th Cir.
1998).
2
Plaintiff suggests that the computerized Personnel Intervention System was
deficient in that it experienced operational challenges during 2004, and plaintiff argues that the
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The record also reveals that the deputies receive training, and that Farnham received
training, with respect to the appropriate use of the taser.
Even if we assume arguendo that the “ordinarily necessary” pattern of similar
constitutional violations might be demonstrated under some circumstances by a
pattern of violations on the part of a single deputy, notwithstanding that he is one of
many, and even if we assume arguendo that three previous violations by that deputy
might under some circumstances be sufficient, we conclude that the three citizen
complaints relied upon by plaintiff fall far short. We have carefully examined the
record evidence with respect to each of these three. In each case, an investigation
was conducted. In each case, relevant witnesses were interviewed. In each case,
the investigation concluded that any complaint of wrong doing was unsubstantiated.
We conclude that the investigation in each case was adequate; a perfect
investigation is not necessary. We are satisfied that nothing in the investigation
files, and nothing related to these three citizen complaints, indicates an obvious
need for additional supervision. We cannot conclude that anything related to these
three citizen complaints could put the Sheriff on notice of a need for additional
supervision such that his failure to provide same would constitute deliberate
Sheriff’s Office was unable to monitor its deputies to identify officers at risk of using excessive
force. However, the record indicates that the Sheriff’s Office had a manual system as a back-up.
In any event, the record evidence falls far short of indicating any deficiency in the system
sufficiently obvious to place the Sheriff on notice that additional supervision was necessary to
prevent the likely use of excessive force and deprivation of constitutional rights.
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indifference.3
Plaintiff also relies upon several citizen complaints which occurred after the
September 20, 2004, incident at issue in this case. We conclude that such post-
incident complaints could not have put the Sheriff on notice of a need for
supervision as of September 20, 2004. See Connick, ___ U.S. at ___, 131 S. Ct. at
1360 n.7 (“[C]ontemporaneous or subsequent conduct cannot establish a pattern of
violations that would provide notice to the city and the opportunity to conform to
constitutional dictates.”) (internal citations and quotations omitted). Moreover,
each of these complaints was also investigated, relevant witnesses were
interviewed, and the complaint was found to be unsubstantiated. We have carefully
reviewed the record with respect to each of these, and we cannot conclude either
that the investigation was inadequate or that the finding was not supported by the
evidence.
We cannot conclude that the district court erred in rejecting plaintiff’s failure
to supervise theory.
3
We note incidentally that we seriously doubt that the Peterson incident even
involved a use of force comparable to the tasing at issue in this case. The complaint by Peterson
was that Officer Farnham had roughly handcuffed her and that the handcuffs were too tight. See
Connick, ___ U.S. at ___, 131 S. Ct. at 1360 (“Without notice that a course of training is deficient
in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training
program that will cause violations of constitutional rights.”) (emphasis added). We harbor similar
doubts about whether the Blau complaint involved a comparable use of force. There, the
complaint was that Officer Farnham drove his patrol car too close to the motorcycles on which
complainant and his companion were riding, and that the officer placed his hand on his gun
during his conversation with complainant.
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II. PLAINTIFF’S RATIFICATION THEORY
Plaintiff first argues that post-incident nomination of Deputy Farnham for an
award constitutes ratification of Farnham’s unconstitutional acts. We summarily
reject this argument. The nomination was made by Sgt. Luben, not by Sheriff
Coats, the policymaker. Even if Sheriff Coats approved the nomination, we readily
conclude that this could not constitute ratification. The nomination occurred on
December 18, 2004, at which time the Sheriff was not even aware of allegations of
wrongdoing on the part of Farnham.
Plaintiff also argues that the failure to discipline Deputy Farnham constitutes
ratification. On the instant facts, we disagree. As noted above, there is no evidence
of a “persistent failure to take disciplinary action,” which we have held can
constitute ratification. See Fundiller v. City of Cooper City, 777 F.2d 1436, 1443
(11th Cir. 1985). Obviously, there could be no ratification in the absence of
knowledge on the part of Sheriff Coats that Farnham had violated plaintiff’s
constitutional rights by using excessive force. The record indicates that the Sheriff
did not even know of allegations of excessive force until February 2005 when he
was alerted to the FBI investigation. At that time, his Administrative Investigative
Division (“AID”) began an investigation. Plaintiff had not filed a complaint with
Pinellas County; rather, plaintiff only informally complained to Santa Rosa County,
where the incident occurred.
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The Sheriff’s AID obtained the investigation file compiled by Santa Rosa
County. It reflected interviews with what appeared to be all relevant witnesses, and
included written statements of many. None of the statements except that of plaintiff
and his wife even hinted of improper action by Deputy Farnham. On the other
hand, Farnham’s version of the events was corroborated by the only other deputy
who could have witnessed the tasing. His statement said: “Deputy Farnham
approached [Thompson] who was refusing to comply with Deputy Farnham’s
commands. Deputy Farnham deployed his taser at [Thompson] to gain
compliance.” Another deputy reported having spoken with Knowling (Thompson’s
companion who was arrested with him at the time). The deputy’s account of what
Knowling told him also is not inconsistent with Farnham’s version. According to
the deputy, Knowling told him that he and Thompson were “approached by two
persons holding [a] flash light and claiming to be Sheriff’s deputies”; Knowling
described them as ordering Thompson and him to drop their weapons, which they
refused to do initially because they did not believe the two men were deputies.
Another deputy stated that when he arrived at the scene he observed:
two white males, one ‘proned out’ and the other on his knees. The
suspect on his knees went down to the ground. A white female
standing in the yard behind the suspects were screaming he is a cop.
The suspect later identified as Thompson had a handgun that he laid
down in front of them when he went all the way down to the prone
position.
The statement of plaintiff’s wife also indicated a time that she could see that the
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two men approaching them with flashlights were deputies, and that her husband did
not at this time immediately lie down on the ground and drop his gun as had been
ordered, but rather “raised his hands and said ‘I am the homeowner – I called you.’”
In short, it is clear from the investigation file that all of the officers present thought
that plaintiff and his friend, Knowling, were armed and were suspected looters who
were not complying immediately with the orders of the deputies. The Sheriff also
received a copy of a polygraph which was not indicative of deception when
Farnham indicated that he deployed his taser because Thompson would not follow
his lawful commands. Although asked for a statement, Thompson indicated that he
was only going to deal with the FBI. The AID investigation concluded that no
violations had occurred.
Although the Sheriff did not take disciplinary action until later, when
Farnham was indicted, we cannot conclude this failure could constitute ratification
by the Sheriff of the unconstitutional acts of Deputy Farnham. The record does not
establish that the Sheriff knew that unconstitutional acts had occurred, nor can we
conclude that it was obvious from the facts available to the Sheriff at the time that
unconstitutional acts had in fact occurred. 4
4
Plaintiff also argues that the Sheriff’s Office assisted in Farnham’s defense during
his criminal trial. However, a Florida statute requires that an employing agency shall
provide an attorney for any officer in the criminal action commenced against the officer
under the circumstances that reasonably appeared at the time to the Sheriff. Whatever the
facts later developed at Farnham’s trial may have shown, nothing in the facts available to
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We cannot conclude that the district court erred in granting summary judgment that
the Sheriff had not ratified Deputy Farnham’s unconstitutional act. 5
III. PLAINTIFF’S THEORY OF A DELIBERATELY
INDIFFERENT HIRING DECISION
We summarily reject plaintiff’s argument in this regard. We conclude that
Bd. of County Com’rs of Byran County v. Brown, 520 U.S. 397, 117 S. Ct. 1382(1997), forecloses plaintiff’s position.
For the foregoing reasons, the judgment of the district court is
AFFIRMED. 6
the Sheriff at the time indicated that Deputy Farnham’s actions were “manifestly
indefensible.” Coon v. Ledbetter, 780 F.2d 1158, 1162 (5th Cir. 1986).
5
Plaintiff also suggests that the response of the Sheriff’s Office to this incident, and
the failure to discipline Farnham, somehow constituted evidence establishing liability under
plaintiff’s failure to supervise theory. However, plaintiff fails to explain how the September 20,
2004, single incident could have placed the Sheriff on notice beforehand of a need for additional
supervision. See Connick, ___ U.S. at ___, 131 S. Ct. at 1360–61 n.7 (“[C]ontemporaneous or
subsequent conduct cannot establish a pattern of violations that would provide notice to the city
and the opportunity to conform to constitutional dictates.”) (internal citations and quotations
omitted). Plaintiff’s reliance on that single incident also falls far short of that “narrow range of
circumstances” that the Supreme Court has suggested might rarely “reflect the city’s deliberate
indifference to the highly predictable consequence … [of] violations of constitutional rights.” Id.
at ___, 131 S.Ct. at 1361 (internal citations and quotations omitted). Nothing about the
September 20, 2004, incident indicated that it would have been patently obvious to the Sheriff
beforehand that, in the absence of additional supervision, Deputy Farnham would be highly likely
to tase improperly or otherwise use excessive force. Indeed, Farnham had received training with
respect to the use of the taser.
6
We cannot conclude that the district court erred with respect to its handling of Dr.
Lyman’s affidavit. Arguments raised on appeal by appellant but not expressly addressed in this
opinion are rejected without need for further discussion.
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