Salvato Ex Rel. Estate of Salvato v. Miley , 790 F.3d 1286 ( 2015 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12112
________________________
D.C. Docket No. 5:12-cv-00635-WTH-PRL
VINCENT SALVATO,
as Personal Representative of the Estate of Joshua Salvato,
for the benefit of Vincent Salvato, surviving parent, Ana Rodriguez,
surviving parent,
Plaintiff-Appellee,
versus
DEPUTY LAUREN MILEY,
in her individual capacity,
Defendant-Appellant.
________________________
No. 14-13424
________________________
D.C. Docket No. 5:12-cv-00635-WTH-PRL
VINCENT SALVATO,
as Personal Representative of the Estate of Joshua Salvato,
for the benefit of Vincent Salvato, surviving parent, Ana Rodriguez,
surviving parent,
Plaintiff-Appellee,
versus
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CHRIS BLAIR,
in his official capacity as Sheriff of Marion County, Florida,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(June 25, 2015)
Before WILLIAM PRYOR, JULIE CARNES, and SILER, ∗ Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
These consolidated appeals require us to decide two questions arising out of
an attempted arrest in which Deputy Lauren Miley shot and killed Joshua Salvato:
(1) whether Miley is entitled to qualified immunity against a claim for damages, 42
U.S.C. § 1983, for excessive force in violation of Salvato’s rights under the Fourth
Amendment; and (2) whether the sheriff of Marion County can be held liable for
Salvato’s death, id., on the ground that he “ratified” Miley’s use of excessive force
by failing to investigate the incident. Miley and Deputy Norman Brown attempted
to arrest Salvato after investigating reports that he was yelling at passing cars along
a Florida road. Salvato struggled, and the officers exchanged blows with Salvato.
Without warning, Miley shot Salvato in the abdomen as he backed away from the
∗
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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officers. Brown then discharged his Taser into Salvato 12 times, including multiple
times after Miley had handcuffed Salvato. Salvato died from internal bleeding
from the gunshot wound. The sheriff of Marion County did not order an internal
affairs investigation of the incident; he instead relied on investigations by a Florida
grand jury and the Florida Department of Law Enforcement. The sheriff took no
disciplinary action against Miley. Salvato’s estate filed an action for damages
against Miley in her individual capacity and the sheriff in his official capacity, id.The district court denied Miley’s motion for summary judgment based on qualified
immunity, and Miley appealed. When the claims against the sheriff went to trial,
the jury returned a verdict in favor of Salvato’s estate, and the district court later
denied the sheriff’s motion for judgment as a matter of law. The sheriff appealed,
and we consolidated his appeal with Miley’s appeal.
We affirm in part and reverse in part. When we view the facts in the light
most favorable to Salvato, we conclude that it is clearly established that Miley’s
use of deadly force was excessive and that she should have intervened against
Brown’s use of excessive force. We affirm the denial of Miley’s motion for
qualified immunity and remand for further proceedings. But the record contains no
evidence that Miley’s violation of Salvato’s federal civil rights was attributable to
the sheriff. Because a single failure to investigate an incident is insufficient to
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establish ratification, we reverse the denial of the sheriff’s motion for judgment as
a matter of law and render a judgment in his favor on the claim of excessive force.
I. BACKGROUND
We divide our discussion of the background in three parts. First, we explain
the incident that led to Salvato’s death. Second, we explain the response of the
sheriff to that incident. Third, we explain the procedural history.
A. The Shooting
At night, Miley responded to reports of a disturbance along Southeast Sunset
Harbor Road in Marion County, Florida, that a “Hispanic looking male with no
shirt” was “yelling and cussing at passing cars.” Miley found Salvato along the
side of the road. He was alone, walking in the road, shirtless, with nothing in his
hands. Miley instructed Salvato to come to her car, and he complied. He did not
have a weapon nor was he aggressive as he walked over. Without being asked, he
put his hands on the hood of the car and spread his legs apart. Miley did not
handcuff him because she did not perceive him to be a threat. Miley asked him if
he had any weapons, and he replied that “all [he] had was bread,” and he pulled
bread out of his pockets. Miley did not pat him down, but she saw that there were
no weapons tucked inside his waistband. According to Miley, Salvato “was just
talking irrationally” and stated “he wasn’t going to jail,” even though Miley never
mentioned jail. He tried to walk away twice, but both times Miley placed her hand
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on his chest to keep him from leaving. Miley felt intimidated and called for
expedited backup.
Deputy Brown arrived, and much of the remaining incident was recorded by
his in-car dashboard camera. When Brown arrived, Salvato and Miley were talking
to one another, arms-length apart, and there was no apparent confrontation. When
Brown exited the vehicle he did not communicate with Miley but instead drew his
gun and ordered Salvato to the ground. Salvato looked surprised but immediately
complied. Brown pulled Salvato’s arms backwards. When Miley attempted to
handcuff Salvato, he began to struggle. He rose to his knees, and both deputies
attempted to wrestle him to the ground. They exchanged blows. Salvato broke free
and stepped backwards, away from the officers. Brown then began to reach for
something from his belt, and Salvato rushed towards Brown and hit him again.
Miley attempted to intervene, and Salvato hit her in the head, knocking her down.
Salvato again retreated, this time far enough that he was outside of the view of the
camera, around 10 to 15 feet away from Miley. Miley drew her handgun and shot
Salvato in the abdomen without giving him any verbal warning.
Although he had been shot, Salvato continued to walk on the road. Brown
ordered Salvato to get on the ground, and when Salvato did not comply, Brown
discharged his Taser into Salvato. Salvato fell to the ground on his back after the
Taser discharged. Brown ordered Salvato to roll onto his stomach and discharged
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the Taser again when Salvato did not immediately comply. Brown ordered Salvato
to show his hands, and Brown again discharged the Taser when Salvato did not
comply. As Brown continued to discharge the Taser, Miley communicated for
emergency medical assistance, retrieved her flashlight from the ground, and took
Brown’s handcuffs to restrain Salvato. The internal memory of the Taser recorded
12 discharges during the incident. Brown discharged the Taser multiple times after
Miley handcuffed Salvato. Brown later asserted that he did so to keep Salvato from
reaching into his back pockets. Miley also kicked Salvato’s hand at one point when
it appeared to her that he was trying to reach into his back pocket. Miley later
testified that she was capable of telling Brown to stop discharging the Taser, but
she did not because she “had just gone through a traumatic event, and [she] wasn’t
really thinking about what [Brown] was doing.” At no point did either deputy
check Salvato’s back pockets or search him. Salvato was unarmed.
By the time paramedics arrived, Salvato had died from internal bleeding.
Miley suffered no injuries, and Brown sustained a minor eye injury.
B. The Response of the Sheriff’s Office
A Marion County Sheriff’s Office Operations Directive details the required
response to a police shooting. The directive requires a supervisor to submit a
“Green Team Report” of “recommendations and/or action taken.” That report is an
internal investigation by the Sheriff’s Office to determine whether a deputy has
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violated any policies or directives. The directive requires that, when a police
shooting results in a death, the State Attorney’s Office and the Florida Department
of Law Enforcement must be notified, and one of these offices or the Sheriff’s
Office conducts an investigation.
After the Florida Department conducted an investigation, the State Attorney
presented the case to a grand jury to decide whether to file criminal charges. The
grand jury did not indict Miley. The investigation by the Florida Department did
not provide any opinion about whether Miley violated Salvato’s constitutional
rights or the policies and directives of the Sheriff’s Office. The investigation by the
Department was limited to a determination about criminality.
The sheriff testified that he decided not to order an internal affairs
investigation. He concluded that the investigation by the Florida Department and
the grand jury report were “sufficient to cover all of our policies.” The sheriff
created a “task force committee” of “senior leaders” to review the reports from the
grand jury and the Department, but that committee was “only set up to look at the
external reports.” The sheriff took no disciplinary action against Miley, but he did
reassign her to a corrections officer post.
C. Procedural History
Salvato’s estate, represented by his father, Vincent Salvato, filed a complaint
against Miley and Brown in their personal capacities and the sheriff in his official
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capacity. Salvato’s estate sought damages for Brown’s and Miley’s use of
excessive force, 42 U.S.C. § 1983, and sought damages from the sheriff because
the sheriff “ratified” their use of excessive force by “failing to conduct his own
internal investigation of the . . . incident.” Salvato’s estate also alleged that Miley
and the sheriff were liable for the wrongful death of Salvato under Florida law, Fla.
Stat. §§ 768.16–.26.
Miley and the sheriff moved for summary judgment. The district court
denied Miley’s motion for summary judgment based on qualified immunity, and
Miley appealed that denial to our Court. The district court denied the sheriff’s
motion for summary judgment on the ratification claim as it related to Miley’s
shooting.
The remaining claims went to trial. The jury found that the sheriff failed to
investigate the incident and that failure “ratified” Miley’s use of excessive force.
With regard to the state claim of wrongful death, the jury found that Miley had
used excessive force against Salvato, but the jury found her not liable because she
had not acted in “bad faith,” as required by Florida law. The jury also found the
sheriff liable for wrongful death under Florida law.
The sheriff filed motions for judgment as a matter of law on the claim of
excessive force at the close of evidence and after the jury returned its verdict, and
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the district court denied both. The sheriff appealed to our Court, and after oral
argument we consolidated his appeal with Miley’s earlier appeal.
II. STANDARD OF REVIEW
We review de novo the denial of a motion for summary judgment based on
qualified immunity, and we make all reasonable factual inferences in the light most
favorable to the non-moving party. Kesinger ex rel. Estate of Kesinger v.
Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004). Likewise, we review de novo a
denial of a judgment as a matter of law, and we consider the evidence in the light
most favorable to the non-moving party. Pensacola Motor Sales Inc. v. E. Shore
Toyota, LLC, 684 F.3d 1211, 1226 (11th Cir. 2012).
III. DISCUSSION
We divide our discussion in two parts. First, we explain that Miley is not
entitled to qualified immunity for her use of excessive force against Salvato or for
her failure to intervene against Brown’s use of excessive force. Second, we explain
that the district court erred when it denied the sheriff judgment as a matter of law
because a single failure to investigate a constitutional violation is insufficient to
establish ratification.
A. Miley Is Not Entitled to Qualified Immunity.
“In resolving questions of qualified immunity at summary judgment,” we
first ask “whether the facts, [t]aken in the light most favorable to the party
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asserting the injury, . . . show the officer’s conduct violated a [federal] right.”
Tolan v. Cotton, __ U.S. __, __, 134 S. Ct. 1861, 1865 (2014) (internal quotation
marks and citation omitted). We must then decide “whether the right in question
was ‘clearly established’ at the time of the violation.” Id. at 1866. (citation
omitted). “[T]he salient question . . . is whether the state of the law at the time of
an incident provided ‘fair warning’ to the defendants that their alleged [conduct]
was unconstitutional.” Id. (internal quotation marks and citation omitted). “We do
not require a case directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, __ U.S.
__, __, 131 S. Ct. 2074, 2083 (2011). That is, “every ‘reasonable official would
have understood that what he is doing violates [the plaintiff’s] right.’” Id. (quoting
Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987)).
Salvato’s estate argues that Miley violated Salvato’s constitutional rights in
two ways. First, she personally used excessive force against him when she shot
him. Second, she failed to intervene when Brown used excessive force against
Salvato by repeatedly discharging his Taser into Salvato.
We divide our discussion in two parts. First, we explain that Miley is not
entitled to qualified immunity on the claim that she used excessive force. Second,
we explain that Miley is not entitled to qualified immunity on the claim that she
failed to intervene against Brown’s use of excessive force.
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1. Miley Is Not Entitled to Qualified Immunity with Respect to Her Alleged Use of
Excessive Force.
Salvato’s estate argues that Miley used excessive force against him when she
shot him while he was retreating and when she kicked his hand after he was
handcuffed. “We analyze a claim of excessive force under the Fourth
Amendment’s ‘objective reasonableness’ standard.” Oliver v. Fiorino, 586 F.3d
898, 905 (11th Cir. 2009) (quoting Graham v. Connor, 490 U.S. 386, 388, 109
S. Ct. 1865, 1867 (1989)). “[T]o determine whether the use of force is ‘objectively
reasonable,’ we carefully balance ‘the nature and quality of the intrusion on the
individual’s Fourth Amendment interests’ against ‘the countervailing
governmental interests at stake’ under the facts of the particular case.” Id. (quoting
Graham, 490 U.S. at 396, 109 S. Ct. at 1871). “We measure the quantum of force
employed against these factors—the severity of the crime at issue; whether the
suspect poses an immediate threat to the safety of the officers or others; and
whether the suspect actively resisted arrest or attempted to evade arrest by flight.”
Id. But we must not “mechanical[ly] appl[y] . . . these factors.” Penley v. Eslinger,
605 F.3d 843, 850 (11th Cir. 2010). “[I]n the end we must still slosh our way
through the factbound morass of ‘reasonableness.’” Scott v. Harris, 550 U.S. 372,
383, 127 S. Ct. 1769, 1778 (2007). “[M]ore force is appropriate for a more serious
offense and less force is appropriate for a less serious one.” Lee v. Ferraro, 284
F.3d 1188, 1198 (11th Cir. 2002).
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“[T]he reasonableness inquiry in an excessive force case is an objective one:
the question is whether the officers’ actions are objectively reasonable in light of
the facts and circumstances confronting them, without regard to their underlying
intent or motivation.” Graham, 490 U.S. at 397, 109 S. Ct. at 1872 (internal
quotation marks omitted). The use of deadly force is “more likely reasonable if: the
suspect poses an immediate threat of serious physical harm to officers or others;
the suspect committed a crime involving the infliction or threatened infliction of
serious harm, such that his being at large represents an inherent risk to the general
public; and the officers either issued a warning or could not feasibly have done so
before using deadly force.” Penley, 605 F.3d at 850 (citing Tennessee v. Garner,
471 U.S. 1, 11–12, 105 S. Ct. 1694, 1701–02 (1985)). Also relevant is whether the
officer “had [an] articulable basis to think [the suspect] was armed.” Garner, 471
U.S. at 20, 105 S. Ct. at 1706.
When we view the facts in the light most favorable to Salvato’s estate, we
conclude that Miley’s use of deadly force was excessive. The initial “crime” for
which she seized Salvato was only “yelling and cussing” at passing cars, and when
Miley shot Salvato, he was not an “immediate threat,” Oliver, 586 F.3d at 905, to
either officer. Salvato was retreating, apparently unarmed, and outside of striking
distance. Miley argues that Salvato had backed up once before, so his retreat was
more akin to the “stance” of a “trained fighter,” but the video evidence establishes
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that Salvato’s second retreat was further than the first. Moreover, Miley did not
give any warning, though a jury could find that the distance between her and
Salvato establishes that it was “feasibl[e]” for her to do so, Penley, 605 F.3d at
850. Miley had no reason to believe Salvato was a danger to the general public, id.,and if Miley’s fear was that Salvato would escape, her use of deadly force was
clearly unreasonable, Garner, 471 U.S. at 11–12, 105 S. Ct. at 1701–02.
To be sure, Salvato “resisted arrest,” Oliver, 586 F.3d at 905, and struck the
officers multiples times, but our en banc decision in Gilmere v. City of Atlanta,
Georgia is instructive. 774 F.2d 1495 (11th Cir. 1985) (en banc). In Gilmere, the
plaintiff was driving while intoxicated when he had a near collision with a van, and
he then got into an argument with the driver of the van. Id. at 1496. The driver
called the police and reported that the plaintiff had threatened him with a gun. Id.Police officers arrived at the plaintiff’s home and ordered him to their car for
questioning. Id. at 1496–97. The plaintiff “initially put up some resistance by
attempting to flee and then flailing his arms about, but these efforts were
ineffectual because of his drunken condition.” Id. at 1497. The officers began
escorting him out by force and “beat[] him about the head.” Id. As they neared the
patrol car, the plaintiff “broke free of their hold. During the ensuing scuffle, [one
of the officers] shot [the plaintiff] in the stomach and killed him.” Id. We held that
the use of deadly force was not justified. Id. at 1502. To be sure, in Gilmere, the
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plaintiff was “small,” “intoxicated,” and he posed little threat to the officers. Id.But the officer shot the plaintiff during the scuffle, not as he was retreating. Id.And the crime the police officers were investigating—the plaintiff’s use of a
firearm to threaten the van driver—was far more serious than Salvato’s alleged
“yelling and cussing.”
Federal law clearly established that Miley’s actions were unreasonable.
Using deadly force, without warning, on an unarmed, retreating suspect is
excessive. See Garner, 471 U.S. 1, 105 S. Ct. 1694. And although “officials must
have fair warning that their acts are unconstitutional, there need not be a case on all
fours[] with materially identical facts, . . . so long as the prior decisions gave
reasonable warning that the conduct at issue violated constitutional rights.”
Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1277 (11th Cir. 2004)
(internal quotation marks and citation omitted). Moreover, a “plaintiff can point to
a broader, clearly established principle [that] should control the novel facts in [his]
situation.” Morton v. Kirkwood, 707 F.3d 1276, 1282 (11th Cir. 2013) (internal
quotation marks and citations omitted). Because the standard for excessive force is
clearly established and our precedents and those of the Supreme Court make clear
that firing without first warning on a retreating, apparently unarmed suspect is
excessive, Miley had “fair warning,” Holloman, 370 F.3d at 1277, that her actions
were unconstitutional.
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When viewed in the light most favorable to Salvato, the record also
establishes that Miley used excessive force when she kicked Salvato’s hand after
he was already shot, handcuffed, and lying face down in the road. Miley argues
that she “merely used her foot to move Salvato’s hands away from his pockets, for
safety reasons.” But there is evidence that she “kicked” Salvato, including her own
statements. And it is undisputed that when Miley kicked Salvato, he was
handcuffed. Miley testified that she did not consider Salvato a “threat” at this point
because he was handcuffed and, even if he could have reached something in his
back pocket, he could not have “use[d]” it. Miley failed even to search Salvato’s
back pockets. On these facts, “the nature and quality of the intrusion on the
individual’s Fourth Amendment interest” in not being kicked outweighed “the
countervailing governmental interest[] at stake.” Oliver, 586 F.3d at 905 (internal
quotation marks and citation omitted).
2. Miley Is Not Entitled to Qualified Immunity with Respect to Her Failure to
Intervene when Brown Used Excessive Force.
Salvato’s estate argues that Miley is also liable for her failure to intervene
when Brown repeatedly discharged his Taser into Salvato, and we agree. “[A]n
officer who is present at the scene and who fails to take reasonable steps to protect
the victim of another officer’s use of excessive force[] can be held liable for h[er]
nonfeasance.” Fundiller v. City of Cooper City, 777 F.2d 1436, 1442 (11th Cir.
1985). Miley does not contest that Brown’s use of force was unreasonable. See
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Oliver, 586 F.3d at 906 (holding that the repeated discharge of a Taser into a
suspect who is incapacitated is excessive). Because the record, viewed in the light
most favorable to Salvato, establishes that Miley was “in a position to intervene,”
Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998), but failed to do so, the
district court did not err when it denied her qualified immunity.
Miley argues that she had “just gone through a traumatic event” and was not
completely aware of what Brown was doing, but a jury could reasonably infer
otherwise. After the “traumatic event,” Miley called for medical assistance,
retrieved her flashlight from the grass, and took Brown’s handcuffs to restrain
Salvato. And after handcuffing Salvato, she at one point kicked his hand to keep
him from reaching into his back pockets. Miley testified that she was capable of
telling Brown to stop discharging the Taser. And the video evidence tends to prove
that Miley was not “dazed” or unaware of her surroundings. Based on this
evidence, a jury could find that Miley was “in a position to intervene,” Ensley, 142
F.3d at 1407, when Brown used excessive force against Salvato, but she “fail[ed]
to take reasonable steps to protect” him, Fundiller, 777 F.2d at 1442.
B. The District Court Erred when It Failed to Grant the Sheriff Judgment as a
Matter of Law on the Claim of Excessive Force.
The sheriff argues that the district court erred when it denied his motions for
judgment as a matter of law. The sheriff argues that the failure to investigate a
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single incident, of which the sheriff was unaware until after-the-fact, cannot ratify
a constitutional violation. We agree.
Anyone who, under color of state law, “subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law.” 42 U.S.C. § 1983.
Although the sheriff did not use excessive force against Salvato, “[i]f the
authorized policymakers approve a subordinate’s decision and the basis for it, their
ratification would be chargeable to the municipality because their decision is
final.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915, 926
(1988). And “[f]or liability purposes, a suit against a public official in his official
capacity is considered a suit against the local government entity he represents.”
Owens v. Fulton Cnty., 877 F.2d 947, 951 n. 5 (11th Cir. 1989).
Salvato’s estate argues that “the Sheriff should be liable because he ratified
Miley’s use of excessive force in failing to conduct an adequate internal
investigation [after] the shooting,” but this argument fails. The sheriff must
“cause[],” 42 U.S.C. § 1983, the constitutional violation; that is, he must “officially
sanction[] or order[]” the action. Praprotnik, 485 U.S. at 123, 108 S. Ct. at 924(internal quotation marks and citation omitted). He cannot be held liable on a
respondeat superior theory of liability. Monell v. Dep’t of Soc. Servs. of City of
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New York, 436 U.S. 658, 691, 98 S. Ct. 2018, 2036 (1978). The sheriff did not
order Miley to shoot Salvato. Salvato’s estate presented no evidence of a policy,
approved by the sheriff, that led to Miley’s use of excessive force. And Salvato’s
estate fails to present evidence of any “custom” not “approv[ed] through . . .
official decisionmaking channels,” id., that led to Miley’s use of excessive force.
Salvato’s estate argues that a failure to investigate a single incident is
sufficient to establish that the sheriff ratified Miley’s actions, but we disagree.
“[W]hen plaintiffs are relying not on a pattern of unconstitutional conduct, but on a
single incident, they must demonstrate that local government policymakers had an
opportunity to review the subordinate’s decision and agreed with both the decision
and the decision’s basis before a court can hold the government liable on a
ratification theory.” Thomas ex rel. Thomas v. Roberts, 261 F.3d 1160, 1174 n.12
(11th Cir. 2001), cert. granted, judgment vacated sub nom. Thomas v. Roberts, 536
U.S. 953, 122 S. Ct. 2653, (2002), opinion reinstated, 323 F.3d 950 (11th Cir.
2003). Only when “the authorized policymakers approve a subordinate’s decision
and the basis for it” have they “ratifi[ed]” that “decision.” Praprotnik, 485 U.S. at
127, 108 S. Ct. at 926. The sheriff did not “review” any part of Miley’s actions
“before they bec[a]me final,” Thomas, 261 F.3d at 1174, much less “approve” the
“decision and the basis for it,” Praprotnik, 485 U.S. at 127, 108 S. Ct. at 926.
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In Thomas, our Court was faced with a similar argument, and we rejected it.
In Thomas, an elementary school teacher and a police officer performed
unconstitutional searches of a number of students. 261 F.3d at 1163–64. The
students sued the school district in addition to the teacher and officer who
performed the searches. Id. at 1165. The plaintiffs argued that the investigation into
the searches was inadequate, and that by clearing everyone of any wrongdoing, the
district had “ratifi[ed]” the unconstitutional searches. Id. at 1174. But we explained
that “a local government may be held liable for a constitutional tort when
policymakers have had the opportunity to review subordinates’ decisions before
they become final.” Id. (emphasis added). “Because the [d]istrict had no
opportunity to ratify the decision to search the children before the searches
occurred,” the plaintiffs’ argument was “misplaced.” Id. at 1174–75. We explained
that a “persistent failure to take disciplinary action against officers can give rise to
the inference that a municipality has ratified conduct, thereby establishing a[n]
[unconstitutional] ‘custom’. . . that can subject the government to liability.” Id. at
1174 n.12 (alterations in original) (quoting Fundiller, 777 F.2d at 1443). But where
the plaintiffs rely on a “single incident,” id., the official must have had an
“opportunity to review” the subordinate’s decision “before [it] become[s] final,”
id. at 1174.
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Salvato’s estate relies on decisions that are inapposite. For instance, it cites
Pembaur v. City of Cincinnati, where the Supreme Court stated that “municipal
liability may be imposed for a single decision by municipal policymakers under
appropriate circumstances,” 475 U.S. 469, 480, 106 S.Ct. 1292, 1298 (1986). But
in Pembaur, the “single decision” was the decision of a prosecutor to order officers
to “forcibly enter[]” the plaintiff’s medical clinic. Id. at 484, 106 S. Ct. at 1300. No
party contests that an action that “the municipality has officially . . . ordered” can
give rise to liability under section 1983. Id. at 480, 106 S. Ct. at 1298. But
“municipal liability is limited to action for which the municipality is actually
responsible,” id. at 479, 106 S. Ct. at 1298, and a single failure to investigate an
incident cannot have caused that incident. Salvato’s estate also cites our decision in
Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989), but that decision provides no help
to its position, either. In Mandel, the plaintiff was a prisoner who was repeatedly
denied medical treatment by a physician’s assistant. Id. at 785–87. We held that the
county was liable for the physician assistant’s deliberate indifference, but the
physician’s assistant was the “final policymaking authority with respect to medical
decisions at the . . . prison.” Id. at 793. We did not base our holding on a county
official’s one-time failure to investigate the deliberate indifference.
Salvato’s estate also argues that “[n]umerous courts have recognized post-
event evidence of a police department’s lack of proper internal investigation of an
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excessive force incident tends to show the customs and policy that were in effect
prior to the excessive force incident,” but this argument is irrelevant. To be sure,
“[p]ost-event evidence can shed some light on what policies existed in the city on
the date of an alleged deprivation of constitutional right.” Bordanaro v. McLeod,
871 F.2d 1151, 1167 (1st Cir. 1989). But “[t]he inferences to be made from these
[post-event] facts merely lend weight” to a finding that there was a policy “behind
the actions which led to” the constitutional violation. Kibbe v. City of Springfield,
777 F.2d 801, 809 (1st Cir. 1985). Again, no party contests that a “persistent
failure to take disciplinary action against officers can give rise to the inference that
a municipality has ratified conduct.” Thomas, 261 F.3d at 1174 n.12. But an
isolated incident is, by definition, not a “persistent failure.” Id.
Finally, Salvato’s estate cites decisions of the Sixth Circuit that it asserts
hold that a single failure to investigate is sufficient to establish liability. See
Marchese v. Lucas, 758 F.2d 181 (6th Cir. 1985) (holding a sheriff liable under
section 1983 for failing to investigate the beating of a prisoner); Leach v. Shelby
Cnty. Sheriff, 891 F.2d 1241, 1247 (6th Cir. 1989) (holding sheriff liable under
section 1983 for instituting a policy of deliberate indifference to medical needs of
physically disabled prisoners because the “Sheriff failed to supervise his
employees adequately when he knew or should have known of the danger [to]
inmates . . . [and] the Sheriff failed to investigate this incident and punish those
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responsible, in effect ratifying their actions”). Salvato also cites Kimbrough v. City
of Cocoa, a district court decision from our Circuit that relied on Marchese to rule
that a “jury could find that the City was aware of the actions taken by its officers
and their justifications, and that its failure to inquire any further or reprimand any
of the Officers, shows that the City sanctioned not only their actions, but also the
reasons behind those actions.” No. 6:05-CV-471, 2006 WL 3335066, at *8 (M.D.
Fla. Nov. 16, 2006).
These decisions are unpersuasive for three reasons. First, it is not clear that
the Sixth Circuit held that a single failure to investigate was sufficient for liability,
as both decisions involved greater misconduct than a single failure to investigate.
See Marchese, 758 F.2d at 187–88 (“Not only do the facts show that there was
official toleration, (if not complicity in instigation) of the midnight assault on the
part of the command officers on duty at the station house that night; but there was
also subsequent concealment followed by a complete failure to initiate and conduct
any meaningful investigation on the part of the Sheriff himself.”); Leach 891 F.2d
at 1248 (“[T]he district court[] f[ound] . . . deliberate indifference by the Sheriff in
that at least 14 other paraplegics had received similar deplorable treatment.”).
Second, Marchese was decided before the Supreme Court issued its decision in
Praprotnik, which clarified the requirements for municipal liability under section
1983. Third, even if the Sixth Circuit decisions were as broad as Salvato’s estate
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asserts, those decisions and the decision of the district court in Kimbrough are
unpersuasive for the reasons given above.
Because we hold that the sheriff cannot be held liable under section 1983 for
a single failure to investigate a constitutional violation, we need not reach the
sheriff’s alternative arguments. And as a final note, we decline to review the
sheriff’s argument that there was insufficient evidence to hold him liable for
wrongful death under Florida law because he did not make this argument before
the district court.
IV. CONCLUSION
We AFFIRM the denial of summary judgment in favor of Miley, and we
REVERSE the denial of the sheriff’s motion for judgment as a matter of law and
RENDER judgment in his favor on the claim of excessive force.
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