Mary Goodman v. Clayton County Sheriff Kemuel Kimbrough , 718 F.3d 1325 ( 2013 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10732
________________________
D.C. Docket No. 1:10-cv-03066-AT
MARY GOODMAN,
as next friend Bruce Goodman,
MARY GOODMAN,
Plaintiffs - Appellants,
versus
CLAYTON COUNTY SHERIFF KEMUEL KIMBROUGH,
ROBYN BOLAND,
HERBERT FEEMSTER,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 21, 2013)
Before WILSON and COX, Circuit Judges, and VOORHEES, * District Judge.
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WILSON, Circuit Judge:
Bruce Goodman (Goodman), a 67-year-old man suffering from dementia
and prone to disorientation and confusion, was severely beaten by his cellmate
while detained at the Clayton County Jail (the Jail) in the early morning hours of
September 9–10, 2008. By and through his wife and next friend, Goodman filed
suit under 42 U.S.C. § 1983 against the two officers charged with his supervision
at the Jail in their individual capacities, and against the Sheriff of Clayton County
in his official capacity. The district court granted the defendants’ motion for
summary judgment. This is the appeal. Although the officers’ dereliction of duty
on the night in question concerns us, the law compels that we affirm the judgment
of the district court.
I. Background
We relate the facts—as we must at this stage of the litigation—in the light
most favorable to Goodman. See Goebert v. Lee County, 510 F.3d 1312, 1316
(11th Cir. 2007). In January 2008, Bruce Goodman suffered a stroke. In the
months that followed, his cognitive functioning deteriorated rapidly, and by
September he presented symptoms of early onset dementia, including occasional
confusion, disorientation, and wandering. Goodman has been married to his wife,
*
Honorable Richard L. Voorhees, United States District Judge for the Western District of
North Carolina, sitting by designation.
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Mary Goodman, for over 30 years. On September 9, Mary Goodman awoke to
find that her husband was not in bed and had left the couple’s trailer. He had
apparently taken a walk, become confused, and attempted to gain entry to another
trailer. When the trailer’s occupants called the police, Goodman was arrested for
loitering and brought to the Jail.
Upon phoning 911 and learning that her husband had been arrested, Mary
Goodman went to the Jail. She showed the officer at the second-floor desk her
husband’s medical records, explained that he was cognitively impaired and
showing signs of dementia, and asked the officer to ensure that her husband
received his medication and that he be placed either in the infirmary or in isolation
so that he would not unintentionally insult another inmate and thereby come in
harm’s way.
Goodman was assigned to Housing Unit 7, an orientation unit in the Jail. He
was specifically placed in Section 6 of Unit 7, the administrative segregation (or
“admin”) section, where inmates are placed out of concern for their own safety or
the safety of others. Though administrators at the Jail generally endeavor to place
only one prisoner per cell in the admin section, Goodman was housed with another
inmate, Antonio Raspberry.
Officers Robyn Boland and Herbert Feemster were the officers assigned to
Unit 7 on the night in question. Boland worked in the control tower and Feemster
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served as the “runner,” orienting new detainees and—or so it was thought—
performing “head counts” and “cell checks” of all the inmates in the unit. Clayton
County Sheriff’s Department (Sheriff’s Department) policy required that Officers
Boland and Feemster perform a “head count,” which involves entering the cells
and physically looking at the inmates’ faces and arm bands, at 6 p.m. and midnight
each night. Policy also required the officers to walk by each cell and look into the
window (known as a “cell check”) once per hour after midnight. Although
Feemster reported having completed the 6 p.m. head count, he only checked the
cells in the admin section through the cell window and failed to enter the cells as
required. Neither officer conducted the required head count at midnight, nor did
they conduct a single cell check on the night Goodman was injured.
The officers claim that the night of September 9 was extraordinarily busy,
and that 42 detainees were awaiting orientation when the officers arrived to start
their shift. They contend that they asked for additional manpower to assist them in
their duties, but a supervisor denied their request. They also claim that during the
6 p.m. head count, an inmate had reported a desire to harm himself, a contingency
that required Feemster to escort the troubled inmate to the infirmary and prepare a
report about the incident. Despite the officers’ protestations that they were too
busy to complete the required head counts and cell checks, Officer Boland made a
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long visit to another section of the Jail and took two lunch breaks rather than the
one lunch break to which she was entitled.
At around 5 a.m. the next morning, Officer Feemster entered Goodman and
Raspberry’s cell to deliver breakfast. Goodman was sitting on his bunk, covered in
blood. He had contusions about his face. His eyes were swollen shut. The cell
was laden with blood. Feemster called a supervisor, who asked Goodman what
had caused his injuries. Goodman, clearly bewildered, lifted up his hands and said,
“These two right here.” When asked why he had harmed himself, Goodman
responded, “They told me to.” Despite Goodman’s statements, a Sheriff’s
Department investigative report subsequently found that Raspberry, Goodman’s
cellmate, had inflicted the beating on Goodman. Goodman’s injuries were severe:
he was taken to the intensive care unit at the local hospital and held there for seven
days, and he spent two to three weeks in the Jail infirmary after being released
from the hospital.
The Internal Affairs Division of the Sheriff’s Department subsequently
conducted an investigation, which revealed that one inmate, El Hadji Toure, had
pushed the emergency call button in his cell several times during the night in
question. Toure would later tell a Sheriff’s Department investigator that he had
pushed the button in order to notify officers that he heard a fight going on in
Goodman’s cell. Boland and Feemster both admitted that—contrary to Sheriff’s
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Department policy—they had deactivated Toure’s call button because they
believed he was pushing the button so that he could request free time to use the
telephone. Boland further testified that she sent an inmate worker to ask Toure
what he wanted, and the inmate worker reported back that Toure wanted to use the
telephone.
The Sheriff’s Department investigative report also included the statements of
two other inmates, Darin Slocum and Calandra Carmichael, who both reported that
they heard sounds of a man being beaten coming from Goodman’s cell throughout
the night. Boland and Feemster both adamantly deny having been aware of any
violence or anything out of the ordinary in Goodman’s cell on the night of the
incident. Both officers testified that they neither saw nor heard anything that
would have made them aware of any risk to Goodman that night. Goodman did
not depose any of the inmates who heard the melee in Goodman’s cell that night,
nor did Goodman depose the inmate worker regarding what message he received
from Toure or what he in turn relayed to Boland or Feemster.
Based in part on the investigative report, the Sheriff’s Department obtained a
criminal arrest warrant charging Raspberry with Goodman’s beating. Upon the
conclusion of the Internal Affairs investigation, the Sheriff’s Department
recommended that Officers Boland and Feemster be permanently terminated
because they had been “neglectful in [their] duties . . ., which allowed Bruce
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Goodman #3574959 to become injured.” Nonetheless, after further review, the
Sheriff’s Department reduced Boland and Feemster’s suspensions to 30 days, and
these 30-day suspensions were later shortened to 14 days.
Mary Goodman claims that ever since the violent episode at the Jail, her
husband has been permanently altered and that, due to the advancement of his
dementia, he is now indefinitely confined to a nursing home.
Acting as next friend to her husband, Mary Goodman sued Boland and
Feemster in their individual capacities for violating Goodman’s Fourteenth
Amendment rights by demonstrating a deliberate indifference to a substantial risk
that he would be seriously injured at the Jail. She also sued Sheriff Kimbrough in
his official capacity for her husband’s injuries and, lastly, sued on her own behalf
for loss of support and consortium. The district court granted summary judgment
as to all claims, and Goodman appeals.
II. Discussion
We review the district court’s grant of summary judgment de novo, viewing
the facts and drawing all reasonable inferences in the light most favorable to
Goodman, the nonmoving party. Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d
334, 341–42 (11th Cir. 2012). We will affirm the grant of summary judgment if
we conclude that there is no genuine issue of material fact—that is, if no “fair-
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minded jury could return a verdict for the plaintiff on the evidence presented.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512 (1986).
1. Individual Capacity Claims Against Boland and Feemster
“A prison official’s deliberate indifference to a known, substantial risk of
serious harm to an inmate violates the Fourteenth Amendment.” Cottone v. Jenne,
326 F.3d 1352, 1358 (11th Cir. 2003) (alteration omitted) (internal quotation marks
omitted). 1 To survive summary judgment in a case alleging deliberate
indifference, a plaintiff must “produce sufficient evidence of (1) a substantial risk
of serious harm; (2) the defendants’ deliberate indifference to that risk; and (3)
causation.” Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003) (per
curiam) (internal quotation marks omitted).
The second element—that Boland and Feemster have evidenced a deliberate
indifference to a serious risk that Goodman would be injured—forms the crux of
the matter at hand. To prove that Boland and Feemster were deliberately
indifferent to the risk that he would be injured, Goodman had to prove:
“(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk;
1
Technically, the deliberate indifference cause of action grew up in Eighth Amendment
jurisprudence and applies only to convicted prisoners. See Purcell ex rel. Estate of Morgan v.
Toombs County, 400 F.3d 1313, 1318 n.13 (11th Cir. 2005). Where, as here, the plaintiff is a
pretrial detainee such as Goodman, the Due Process Clause of the Fourteenth Amendment, not
the Eighth Amendment’s prohibition against cruel and unusual punishment, governs our
analysis. See Hale v. Tallapoosa County, 50 F.3d 1579, 1582 n.4 (11th Cir. 1995). Regardless
of the particular taxonomy under which we analyze the case, however, the result is the same,
because “the standards under the Fourteenth Amendment are identical to those under the
Eighth.” Goebert, 510 F.3d at 1326.
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(3) by conduct that is more than gross negligence.” Townsend v. Jefferson County,
601 F.3d 1152, 1158 (11th Cir. 2010) (alteration omitted) (internal quotation marks
omitted). Proof of deliberate indifference requires a great deal more than does
proof of negligence: “To be deliberately indifferent a prison official must know of
and disregard ‘an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.’” Purcell, 400 F.3d at1319–20 (emphasis supplied) (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114
S. Ct. 1970, 1979 (1994)).
In other words, a plaintiff in Goodman’s position must show not only that
there was a substantial risk of serious harm, but also that Boland and Feemster
“subjectively knew of the substantial risk of serious harm and that [they]
knowingly or recklessly disregarded that risk.” Hale, 50 F.3d at 1583 (alteration
omitted) (internal quotation marks omitted). Whether prison officials had the
requisite awareness of the risk “is a question of fact subject to demonstration in the
usual ways, including inference from circumstantial evidence, and a factfinder may
conclude that a prison official knew of a substantial risk from the very fact that the
risk was obvious.” Farmer, 511 U.S. at 842, 114 S. Ct. at 1981 (citation omitted).
At the same time, the deliberate indifference standard—and the subjective
awareness required by it—is far more onerous than normal tort-based standards of
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conduct sounding in negligence: “Merely negligent failure to protect an inmate
from attack does not justify liability under [§] 1983.” Brown v. Hughes, 894 F.2d
1533, 1537 (11th Cir. 1990) (per curiam). And needless to say, to defeat a motion
for summary judgment, Goodman must adduce specific evidence from which a
jury could reasonably find in his favor; “[t]he mere existence of a scintilla of
evidence in support of [his] position will be insufficient.” Anderson, 477 U.S. at
252, 106 S. Ct. at 2512.
We turn then to the facts of this case. Viewing the facts and taking all
reasonable inferences in Goodman’s favor, the evidence shows that: (1) Boland
and Feemster failed to perform the required cell checks and the midnight head
count in Section 6; (2) Feemster reported having completed the 6 p.m. head count
even though he did not actually enter the cells in Section 6; (3) Boland and
Feemster deactivated emergency call buttons that evening without investigating the
reason the buttons had been pressed; (4) Toure told an inmate worker that there
was a fight in Goodman’s cell; (5) three inmates, including Toure, heard sounds of
violence emanating from Goodman’s cell; and (6) despite claiming that she was
swamped with inmates awaiting orientation, Boland took two lunch breaks and
made a long visit to intake on the night Goodman was attacked.
In our view, the problem with this case is that no evidence presented would
support a reasonable jury’s finding that Boland and Feemster harbored a subjective
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awareness that Goodman was in serious danger while in his cell on the night of
September 9–10, 2008. The failure to conduct the cell checks and head counts is
negligence of the purest form; it is of no value in answering the key question
here—namely, whether Boland and Feemster knew of a substantial risk of serious
harm to Goodman. The deactivation of the emergency call buttons is more
egregious, but here too we find evidence of negligence—perhaps gross
negligence—but nothing indicating that the officers knew Goodman was in danger
and, equipped with that knowledge, deliberately disregarded the risk. To begin, no
call button was ever activated in Goodman’s cell—instead, the evidence shows that
Toure’s call button was the one activated and subsequently ignored. The fact that
one inmate was pressing his call button does not suggest that Boland and Feemster
were subjectively aware of a risk to another inmate entirely, and it is the risk to
Goodman that matters here. Further, even accepting Toure’s statement that he told
an inmate worker about the ruckus ensuing in Goodman’s cell, that does nothing to
show that Boland or Feemster were ever told of this report or otherwise made
subjectively aware of the emergent situation in Goodman’s cell. 2 Goodman did
2
To boot, all of this ignores the fact that Toure’s statements, included as part of the
Sheriff’s Department investigative report, are rank hearsay. Even accepting that the conclusions
drawn in the report itself are admissible under the public records exception to the hearsay rule,
see Fed. R. Evid. 803(8), the statements of third-parties within that report are double hearsay not
within any exception to the rule. “[P]lacing otherwise inadmissible hearsay statements by third-
parties into a government report does not make the statements admissible.” United Techs. Corp.
v. Mazer, 556 F.3d 1260, 1278 (11th Cir. 2009) (internal quotation marks omitted); see also
Jones v. UPS Ground Freight, 683 F.3d 1283, 1293–94 (11th Cir. 2012) (noting that a district
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not depose the inmate worker or any of the other inmates in Section 6, so there is
no evidence indicating that Officer Boland or Feemster walked by Goodman’s cell
while audible noises of violence could be heard from within. Indeed, the only
evidence of what Officers Boland and Feemster were actually aware of is their own
adamant denials of the fact that they ever feared for Goodman’s safety in any way.
Make no mistake—we do not quarrel with the proposition that, by failing to
diligently carry out their duties at the Jail, Boland and Feemster wronged
Goodman. See Purcell, 400 F.3d 1319 (“[P]rison officials have a duty . . . to
protect prisoners from violence at the hands of other prisoners.” (alterations in
original) (internal quotation marks omitted)). But we are mindful that, just as not
every injury is an injury of constitutional magnitude, not every wrong that would
be actionable at state or common law is cognizable as a constitutional tort under
§ 1983. Indeed, “[i]t is not . . . every injury suffered by one prisoner at the hands
of another that translates into constitutional liability for prison officials responsible
for the victim’s safety.” Farmer, 511 U.S. at 834, 114 S. Ct. at 1977.
court can consider hearsay in ruling on a motion for summary judgment only “if the statement
could be reduced to admissible evidence at trial or reduced to admissible form” (internal
quotation marks omitted)). Goodman argues that the statements in the investigative report fall
under the hearsay exception for statements against interest, but he is wrong. Putting aside the
fact that the declarant must be unavailable for the statement-against-interest exception to apply,
see Fed. R. Evid. 804(b)(3), the statements at issue must also be against the interest of the
declarant—here, Toure—in order to fall within the exception’s terms. See United Techs. Corp.,
556 F.3d at 1279–80. Toure’s statement that he heard a scuffle in Goodman’s cell is not against
Toure’s interest in any way, and the statement-against-interest exception is therefore
inapplicable. At any rate, it does not matter whether Toure’s statements are inadmissible
hearsay, because even considering them, they are not probative of the pertinent question at issue
here: whether Boland and Feemster were subjectively aware of a risk to Goodman.
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That subtle distinction is dispositive of this appeal. Our cases are clear that
to survive summary judgment on a deliberate indifference claim, the plaintiff must
present some evidence of prison officials’ subjective awareness of a substantial
risk of serious harm to the inmate. See, e.g., McElligott v. Foley, 182 F.3d 1248,
1255 (11th Cir. 1999) (explaining that “a finding of deliberate indifference requires
a finding of the defendant’s subjective awareness of the relevant risk” (internal
quotation marks omitted)). Goodman has adduced no evidence that either Boland
or Feemster was subjectively aware of the peril to which Goodman was exposed on
the night in question, and that failure is fatal to his claim. And though Goodman
points to the officers’ failure to conduct head counts and cell checks and their
disengagement of the emergency call buttons in support of his assertions, the fact
that the officers deviated from policy or were unreasonable in their actions—even
grossly so—does not relieve Goodman of the burden of showing that the officers
were subjectively aware of the risk; in other words, he cannot say, “Well, they
should have known.” Were we to accept that theory of liability, the deliberate
indifference standard would be silently metamorphosed into a font of tort law—a
brand of negligence redux—which the Supreme Court has made abundantly clear it
is not. See Farmer, 511 U.S. at 838, 114 S. Ct. at 1979 (“[A]n official’s failure to
alleviate a significant risk that he should have perceived but did not, while no
cause for commendation, cannot under our cases be condemned as [a constitutional
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violation].”); see also Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct. 1155, 1160
(1976) (noting “the constitutional shoals that confront any attempt to derive from
congressional civil rights statutes a body of general federal tort law” (internal
quotation marks omitted)). Although we view the evidence and draw all inferences
in the light most favorable to Goodman, we cannot reasonably base an inference on
mere supposition, and nothing in this record creates a genuine issue of fact as to
whether Officers Boland and Feemster were subjectively aware of a substantial
risk of serious harm to Goodman. See Carter, 352 F.3d at 1350. The district court
did not err in granting summary judgment in the officers’ favor. 3
Our decision in this case should not be taken to condone Boland and
Feemster’s actions. To the contrary, we are disturbed by the dereliction of duty
that facilitated the violence visited upon Goodman while he was under the officers’
charge. But we are federal judges, not prison administrators, and the standards for
coloring a constitutional claim in this area of the law are exacting for the very
purpose of preventing federal judges like us from meddling, even by our best
lights, in the administration of our nation’s prisons. Cf. Rhodes v. Chapman, 452
U.S. 337, 349, 101 S. Ct. 2392, 2400 (1981) (explaining that many of the
administrative considerations attendant to operating a correctional institution
“properly are weighed by the legislature and prison administration rather than a
3
Because Goodman’s deliberate indifference claim fails, Boland and Feemster have no
need of qualified immunity, and we do not address it. See Carter, 352 F.3d at 1350 n.10.
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court”). Therefore, and although we empathize with Goodman’s plight, it is the
law—and not our personal sympathies or desires—that must ultimately govern the
resolution of this case, and the law requires that we affirm the district court’s grant
of summary judgment. See Carter, 352 F.3d at 1350; Hale, 50 F.3d at 1582
(affirming grant of summary judgment where jailer failed to make required rounds
every thirty minutes and pretrial detainee was severely beaten).
2. Official Capacity Claims Against Sheriff Kimbrough
Goodman’s claim against Sheriff Kimbrough in his official capacity fares no
better. “It is well established in this [c]ircuit that supervisory officials are not
liable under § 1983 for the unconstitutional acts of their subordinates on the basis
of respondeat superior or vicarious liability.” Cottone, 326 F.3d at 1360 (internal
quotation marks omitted). Instead, to establish liability against Sheriff Kimbrough
in his official capacity, Goodman had to prove that he suffered a constitutional
deprivation as the result of: “(1) an action taken or policy made by an official
responsible for making final policy in that area of the [Sheriff’s Department’s]
business; or (2) a practice or custom that is so pervasive, as to be the functional
equivalent of a policy adopted by the final policymaker.” Hale, 50 F.3d at 1582
(internal quotation marks omitted).4 Demonstrating a policy or custom generally
4
Though Sheriff Kimbrough is the named defendant, “a suit 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) (per curiam).
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requires the plaintiff “to show a persistent and wide-spread practice.” McDowell v.
Brown, 392 F.3d 1283, 1290 (11th Cir. 2004) (internal quotation marks omitted).
Goodman does not allege that any official Sheriff’s Department policy
violated his constitutional rights. In fact, he concedes that the Sheriff’s
Department’s written policy required Boland and Feemster to conduct head counts
inside every cell at 6 p.m. and midnight, and to conduct visual cell checks once per
hour after midnight. He also concedes that Sheriff’s Department policy expressly
forbade Boland and Feemster from deactivating emergency call buttons in the cells
at the Jail. Therefore, Goodman cannot claim that an official action or policy of
the Sheriff’s Department caused his injury. Nonetheless, Goodman contends on
appeal that Boland and Feemster’s violation of written Sheriff’s Department
policies was so widespread that it constituted a custom with the force of law. See
Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997) (“A custom
is a practice that is so settled and permanent that it takes on the force of law.”).
We cannot agree.
“Our decisions establish that supervisory liability for deliberate indifference
based on the implementation of a facially constitutional policy requires the plaintiff
to show that the defendant had actual or constructive notice of a flagrant, persistent
pattern of violations.” Goebert, 510 F.3d at 1332. Boland and Feemster did testify
that it was common practice at the Jail to deactivate emergency call buttons and to
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remain outside the cells in the admin section when doing head counts. But in
determining whether a custom existent at the Jail caused Goodman’s injuries for
purposes of § 1983, the relevant inquiry is whether the Sheriff’s Department “had
established customs and policies that resulted in deliberate indifference to
constitutional violations.” Mathews v. Crosby, 480 F.3d 1265, 1275 (11th Cir.
2007).
As we see it, the fact that jailers in Clayton County did not enter every cell
in accordance with policy and commonly deactivated emergency call buttons is
simply insufficient to meet the “extremely rigorous standard for supervisory
liability” that our cases demand in cases such as these. See Goebert, 510 F.3d at
1332 (internal quotation marks omitted); West v. Tillman, 496 F.3d 1321, 1329
(11th Cir. 2007) (per curiam) (affirming district court’s grant of summary
judgment because “Plaintiffs have failed to meet the ‘extremely rigorous’ standard
for supervisory liability” (quoting Cottone, 326 F.3d at 1360)). We are unable to
conclude that these policy violations are sufficient to create a genuine issue of fact
as to the existence of a custom, so settled and permanent as to have the force of
law, that ultimately resulted in deliberate indifference to a substantial risk of
serious harm to Goodman. See Cook ex rel. Estate of Tessier v. Sheriff of Monroe
Cnty., 402 F.3d 1092, 1116 (11th Cir. 2005) (explaining that sheriff’s policies or
customs must themselves evidence a deliberate indifference to, and therefore a
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subjective awareness of, a substantial risk of serious harm). That is especially so
in light of the undisputed evidence that Officers Boland and Feemster were
disciplined—and in fact recommended for termination—following their violations
of Sheriff’s Department policy on the night Goodman was injured. See West, 496
F.3d at 1329–30. And all of that says nothing about the remarkable fact that
Goodman’s complaint is bereft of any allegation that Sheriff’s Department policy
or custom actually caused Goodman’s injuries. The district court did not err in
granting summary judgment for Sheriff Kimbrough. 5
3. Mary Goodman’s Loss of Consortium Claim
Having resolved Goodman’s constitutional claims, Mary Goodman’s state-
law loss of consortium claim falls neatly into place. Under Georgia law, a claim
for loss of consortium by one spouse is derivative and dependent upon the
existence of some viable claim by the other spouse. Henderson v. Hercules, Inc.,
324 S.E.2d 453, 454 (Ga. 1985); see Sevcech v. Ingles Mkts., Inc., 474 S.E.2d 4, 9
(Ga. Ct. App. 1996) (“Loss of consortium claims are derivative.”). Because
Goodman’s principal claims fail, it follows that Mary Goodman’s derivative loss
of consortium claim must fail too.
III. Conclusion
5
Goodman also brought a claim against Kimbrough for negligent hiring, supervision, and
retention. The district court granted summary judgment as to this claim, and Goodman does not
raise it in his briefs. We deem it abandoned. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1335 (11th Cir. 2004).
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Although the facts of this case are disturbing, we conclude that the district
court did not err in granting the defendants’ motion for summary judgment.
AFFIRMED.
COX, Circuit Judge, specially concurring:
I do not join Judge Wilson’s opinion, but I concur in the result.
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