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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11310
____________________
KIRBY INGRAM,
Plaintiff-Appellant,
versus
LOUIS KUBIK,
BLAKE DORNING,
KEVIN TURNER,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 5:19-cv-00741-LCB
____________________
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2 Opinion of the Court 20-11310
Before WILLIAM PRYOR, Chief Judge, JORDAN, Circuit Judge, and
BROWN,* District Judge.
WILLIAM PRYOR, Chief Judge:
Kirby Ingram appeals the dismissal of his complaint for fail-
ure to state a claim, FED. R. CIV. P. 12(b)(6), against a sheriff’s dep-
uty and his supervisor for unlawful seizure and excessive force, see
42 U.S.C. § 1983; U.S. CONST. amends. IV, XIV, and against the
Sheriff for vicarious liability under Title II of the Americans with
Disabilities Act, see
42 U.S.C. § 12132. Ingram, an Iraq War vet-
eran, suffers from post-traumatic stress disorder. Two Sheriff’s dep-
uties conducted a welfare check after a report that Ingram slit his
wrist with a knife. When the deputies arrived, Ingram was calm
and posed no threat to them. Although Ingram expressed his will-
ingness to be arrested, one of the deputies suddenly body slammed
him headfirst, causing him a serious neck injury. We affirm the dis-
missal of Ingram’s claim for unlawful seizure but reverse the dis-
missal of his claim of excessive force and supervisory liability. And
“[b]ecause vicarious liability is not available for claims under Title
II,” Jones v. City of Detroit,
20 F.4th 1117, 1118 (6th Cir. 2021), we
affirm the dismissal of that claim.
*Honorable Michael L. Brown, United States District Judge for the Northern
District of Georgia, sitting by designation.
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20-11310 Opinion of the Court 3
I. BACKGROUND
This appeal is from a dismissal of a complaint for failure to
state a claim, see FED. R. CIV. P. 12(b)(6), so we recount the factual
allegations in the complaint, accept them as true, and construe
them in the light most favorable to Ingram, see Darrisaw v. Pa.
Higher Educ. Assistance Agency,
949 F.3d 1302, 1303 (11th Cir.
2020).
Ingram is an Iraq War veteran who suffers from post-trau-
matic stress disorder. In October 2017, while suffering from a men-
tal-health crisis, Ingram cut his wrist with a knife at his home. His
girlfriend called the Veterans Affairs suicide hotline, which con-
tacted law enforcement. Deputy Louis Kubik and another deputy
from Madison County, Alabama, were dispatched to assist Ingram.
When the deputies arrived, Ingram was calm. The deputies
searched him multiple times. They confiscated the knife with
which Ingram had cut himself. After the search, the deputies knew
that he was unarmed.
“Ingram assured the deputies [that] he was no longer sui-
cidal” and “never expressed any desire to harm himself or any other
person during his encounter with the deputies.” He “insisted that
the deputies either arrest him or leave.” Both the deputies and In-
gram’s mother “tried to convince Ingram to let them take him to a
residential program through . . . [Veterans Affairs] that Ingram’s
mother wanted him to attend.” When Ingram asked the deputies
if he was under arrest, the “deputies told [him] . . . that he was not.”
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4 Opinion of the Court 20-11310
Ingram reiterated “that he would cooperate with any arrest if that
[was] what they wanted to do.”
Because the deputies would not leave, Ingram left through
the back door “on his third try.” “Ingram ran into a cotton field
behind the house, and the deputies followed.” Ingram eventually
stopped running and “let the deputies catch up to him.” “The dep-
uties told Ingram that if he would go back to his house and refuse
medical treatment,” the deputies would leave. “Ingram agreed to
walk back to the house . . . and speak directly with [medical] per-
sonnel.” As they walked back, Ingram stated “multiple times that if
he was being arrested, the[ deputies] should . . . let him know and
he would go voluntarily,” but “[t]he deputies repeatedly told In-
gram he was not under arrest.”
When they reached the yard, “Ingram held his hands over
his head and told [medical] personnel . . . that he was refusing med-
ical treatment.” The deputies knew that Ingram was unarmed and
posed no threat to them. “Without warning, Kubik then grabbed
Ingram under his armpits, picked Ingram up, and slammed Ingram
to the ground head first, causing Ingram to suffer a serious neck
injury.” Ingram alleges that Kubik’s decision to body slam “Ingram
was motivated by hostility toward Ingram due to Ingram’s mental
illness.” Ingram was taken to the hospital. “A surgeon removed In-
gram’s C-2 vertebra and replaced it with a metal rod. The surgeon
also fused Ingram’s C-3 and C-4 vertebrae.”
“Despite widespread knowledge of th[is] incident up the
chain of command” that included then-Sheriff Blake Dorning, “the
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20-11310 Opinion of the Court 5
incident was not . . . investigated, and the deputy was not disci-
plined.” Failure to investigate excessive force incidents “ha[d] been
Dorning’s standard operating procedure”; “[e]ven obviously-un-
constitutional . . . actions of his deputies [were] immune from in-
vestigation and discipline.” Ingram’s lawyer learned from discov-
ery in other lawsuits “that formal internal investigations of officer
misconduct were not conducted,” and after he requested “records
of internal investigations of deputy misconduct,” he was “told no
such records existed.” During Dorning’s tenure, the Sheriff’s web-
site “identified no person or division to contact with a complaint
[against] a deputy.”
The complaint provides examples of excessive force that
were allegedly not investigated. In one “well-publicized revenge
beating,” “Dorning refused to investigate and discipline the depu-
ties involved,” despite being “fully informed” of the incident, “in-
cluding the revenge beating and cover-up.” “Dorning learned that
numerous deputies of various ranks were involved in the beating
or its planning, in the cover-up, or in both.” Despite that
knowledge, and even though a policy and procedure manual re-
quired him to investigate, “Dorning took no action against any of
the involved deputies” and “did not . . . initiate an internal affairs
investigation.” Dorning similarly “refused to investigate serious al-
legations related to [six] deaths at the Madison County Jail.” And
Ingram points to five other incidents that were “approved as a mat-
ter of routine through the chain of command without any investi-
gation.”
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6 Opinion of the Court 20-11310
Dorning’s inaction was “a matter of routine and de facto pol-
icy” of “approv[ing] the force used and never initiat[ing] further in-
vestigation.” “Thus, no officer was disciplined, let alone termi-
nated, for excessive force or for otherwise violating a citizen’s con-
stitutional rights during Dorning’s 16-year tenure.” As a result of
that policy, “[d]eputies under Dorning’s command learned that
their justifications for using force and other unlawful actions would
never be questioned and that they could act with impunity.” In-
gram alleges that “[t]hrough explicit instruction and long-estab-
lished custom, Dorning established a custom or policy that inci-
dents of possible, likely, or known misconduct were not investi-
gated, with the foreseeable result that deputies like Kubik believed
they could get away with violating Ingram’s rights.” Kubik be-
lieved that “he would not have to face any investigation and that
he could act with impunity.”
Ingram filed a civil-rights action, see
42 U.S.C. § 1983,
against Kubik and Dorning in their individual capacities, for an un-
lawful seizure and the use of excessive force in violation of In-
gram’s constitutional rights, see U.S. CONST. amends. IV, XIV. In-
gram also sued the current Sherriff, Kevin Turner, in his official ca-
pacity, for violating section 504 of the Rehabilitation Act, see
29
U.S.C. § 794, and Title II of the Americans with Disabilities Act, see
42 U.S.C. § 12132. Ingram alleged that he “suffered from impair-
ments that substantially limited one or more of his major life activ-
ities” and that he “had a disability within the meaning of ” both
Acts. He also alleged that “the Madison County Sheriff, through
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20-11310 Opinion of the Court 7
the actions of his officers, failed to accommodate Ingram, a disa-
bled person, and discriminated against him by seizing and assault-
ing Ingram.” Later in the litigation, Ingram voluntarily dismissed
his claim under section 504 and proceeded against Turner only un-
der Title II.
After Dorning, Kubik, and Turner moved to dismiss the
claims against them, the district court granted their motions. The
district court held that there was no unlawful seizure because Ku-
bik had probable cause to seize Ingram. On the excessive-force
claim, the district court held that Kubik was entitled to qualified
immunity because Ingram “ha[d] not shown that his constitutional
right was clearly established at the time of the seizure,” so there
was “no need to decide if his constitutional right was violated.” The
district court held that Ingram had “failed to plausibly establish a
causal connection between” Dorning’s actions and the alleged ex-
cessive force to which Ingram was subjected. The district court rea-
soned that the examples of misconduct alleged in the complaint “at
best indicate isolated events of alleged wrongdoing and do not suf-
fice to indicate a ‘custom or policy’ in the department.” And the
district court held that Ingram’s Title II claim against Turner re-
quires that he allege “deliberate indifference”; that deliberate indif-
ference requires having “actual knowledge of discrimination in the
entity’s programs and fail[ing] adequately to respond,” Silberman
v. Miami Dade Transit,
927 F.3d 1123, 1134 (11th Cir. 2019) (alter-
ation adopted); and that Ingram “failed to allege that Turner had
any actual knowledge of discrimination against people with
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8 Opinion of the Court 20-11310
disabilities in his department.” The district court did not decide
whether Title II applies to police encounters or whether vicarious
liability is available under Title II; it mentioned only that these
questions have not been settled by this Court.
II. STANDARDS OF REVIEW
We review de novo an order dismissing a complaint. Ran-
dall v. Scott,
610 F.3d 701, 705 (11th Cir. 2010). We review de novo
determinations that officers are entitled to qualified immunity. See
Piazza v. Jefferson Cnty.,
923 F.3d 947, 951 (11th Cir. 2019).
III. DISCUSSION
We divide our discussion in two parts. First, we explain that
Kubik and Dorning are entitled to qualified immunity from In-
gram’s claim of an unlawful seizure but not from his claim of ex-
cessive force and supervisory liability. Second, we explain that In-
gram’s claim against Turner fails because vicarious liability is una-
vailable under Title II.
A. Kubik and Dorning Are Entitled to Qualified Immunity from
Ingram’s Claim of Unlawful Seizure But Not from His Claim of
Excessive Force and Supervisory Liability.
A complaint must be dismissed if its factual allegations, on
their face, establish an affirmative defense that bars recovery. See
Cottone v. Jenne,
326 F.3d 1352, 1357 (11th Cir. 2003). If a defend-
ant advances the affirmative defense of qualified immunity, the dis-
trict court must dismiss any claims that fail to allege a violation of
clearly established law. See
id. Officers asserting qualified-
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20-11310 Opinion of the Court 9
immunity defenses have the burden to establish that they were act-
ing within their discretionary authority. Piazza, 923 F.3d at 951. If
the officers satisfy that burden, the burden then shifts to the plain-
tiff to establish that the officers violated a constitutional right that
was clearly established at the time of the alleged violation. Id. The
officers are entitled to qualified immunity if the plaintiff fails to
show either that there was some constitutional violation or that it
was clearly established, and we may consider these two elements
in either order. Id.
We divide this part in three subsections. First, we conclude
that Kubik could lawfully seize Ingram because there was probable
cause that Ingram was a danger to himself. Second, we conclude
that the force Kubik used against Ingram during that otherwise
lawful seizure was unconstitutionally excessive based on clearly es-
tablished law. Finally, we conclude that the complaint states a
claim of supervisory liability against Dorning for the violation of
Ingram’s clearly established right to be free from excessive force.
1. Kubik Had Probable Cause to Seize Ingram.
Ingram does not dispute that Kubik was acting within his
discretionary authority. So, Ingram must establish that Kubik
seized him in violation of his clearly established rights. See id. In-
gram cannot satisfy that burden.
“The Fourth Amendment protects people from unreasona-
ble . . . seizures.” Roberts v. Spielman,
643 F.3d 899, 905 (11th Cir.
2011). Mental-health seizures are reasonable under the Fourth
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10 Opinion of the Court 20-11310
Amendment when the officer has probable cause to believe that
the seized person is a danger to himself or to others.
Id. “[T]he cor-
rect legal standard to evaluate whether an officer had probable
cause to seize a suspect is to ask whether a reasonable officer could
conclude that there was a substantial chance,” see Washington v.
Howard,
25 F.4th 891, 902 (11th Cir. 2022) (alteration adopted) (in-
ternal quotation marks omitted), “of dangerous behavior,” Rob-
erts,
643 F.3d at 906 (internal quotation marks omitted).
Kubik had probable cause to believe that Ingram was a dan-
ger to himself. “Deputy [Kubik] was dispatched in response to a 911
call for a possible suicide attempt.”
Id. By the time Kubik arrived,
Ingram had cut his wrist with a knife. Ingram’s mother thought the
situation perilous enough to warrant taking Ingram “to a residen-
tial program through . . . [Veterans Affairs].” And Ingram exhibited
erratic behavior when he sought to evade the deputies and isolate
himself in a cotton field.
In the light of those facts, Kubik was not required to believe
Ingram’s innocent assurances that he no longer desired to harm
himself. See District of Columbia v. Wesby,
138 S. Ct. 577, 588
(2018). Kubik “could have disbelieved” Ingram because “people
normally do not” attempt to kill themselves by cutting their wrist
if they lack a serious desire to do so. Cf.
id. at 587. And Ingram’s
argument that Kubik was “motivated by anger” is irrelevant be-
cause “[a]n officer’s evil intentions will not make a Fourth Amend-
ment violation out of an objectively reasonable use of force.” Gra-
ham v. Connor,
490 U.S. 386, 397 (1989). “[I]t was objectively
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20-11310 Opinion of the Court 11
reasonable for [Kubik] to believe that [Ingram] might still be in
need of immediate aid even though” he was not actively trying to
kill himself, see Roberts,
643 F.3d at 905, because he had recently
attempted to do just that. Because Kubik had probable cause to
seize Ingram, Kubik and Dorning are entitled to dismissal of the
unlawful-seizure claim. See Piazza, 923 F.3d at 951.
2. Kubik is Not Entitled to Qualified Immunity from the Claim for
Excessive Force.
Although Kubik could lawfully seize Ingram, the way he al-
legedly did so was excessive. “A citizen’s Fourth Amendment right
to be free from unreasonable . . . seizures includes the right to be
free from the use of excessive force in the course of an arrest.”
Weiland v. Palm Beach Cnty. Sheriff’s Off.,
792 F.3d 1313, 1326
(11th Cir. 2015) (internal quotation marks omitted). But “[t]o deny
qualified immunity at the motion to dismiss stage, we must con-
clude both that the allegations in the complaint . . . establish a con-
stitutional violation and that the constitutional violation was
clearly established.” Sebastian v. Ortiz,
918 F.3d 1301, 1307 (11th
Cir. 2019) (internal quotation marks omitted). We conclude that
both requirements are satisfied.
A determination that an officer used excessive force “re-
quires careful attention to the facts and circumstances of each par-
ticular case” while “recogniz[ing] that the right to make an arrest
. . . necessarily carries with it the right to use some degree of phys-
ical coercion or threat thereof to effect it.” Graham,
490 U.S. at 396.
We apply the “Graham framework” to mental health seizures even
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12 Opinion of the Court 20-11310
though they “do[] not involve a criminal arrest.” Mercado v. City
of Orlando,
407 F.3d 1152, 1157–58 (11th Cir. 2005). Under that
framework, the force used by an officer is reasonable only if it is
“reasonably proportionate to the need for that force, which is
measured by the severity of the crime, the danger to the officer [or
others], and the risk of flight.” Lee v. Ferraro,
284 F.3d 1188, 1198
(11th Cir. 2002); see also Graham,
490 U.S. at 396. “This Court also
considers the need for application of force, the relationship be-
tween the need and amount of force used, and the extent of the
injury inflicted by the arresting officer.” Helm v. Rainbow City,
989
F.3d 1265, 1273 (11th Cir. 2021) (citing Lee,
284 F.3d at 1198 & n.7).
Kubik argues that body slamming Ingram was justified be-
cause it “had the immediate effect of immobilizing him using non-
lethal force and preventing any further threat from [Ingram], either
to himself or to the officers.” Kubik also asserts that he “took ad-
vantage of an opportunity to physically detain [Ingram]—a former
soldier experiencing a mental health crisis who had tried to commit
suicide—after he had stopped running and the officers had caught
up to him.” And Kubik maintains that he did not violate Ingram’s
rights because of Ingram’s “aberrant and erratic conduct.” We dis-
agree.
“All of the factors articulated in Graham weigh in favor of
[Ingram].” Mercado,
407 F.3d at 1157. Although Kubik implies that
“the use of force [was] justified because suicidal subjects sometimes
make erratic moves that can jeopardize the safety of the officers,”
“viewing the [alleged] facts in the light most favorable to [Ingram],”
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20-11310 Opinion of the Court 13
there is “no indication that [Ingram] made any threatening moves
toward the police.”
Id. The deputies had searched Ingram and con-
fiscated the knife with which he had cut himself, so they knew he
was unarmed. Before Kubik body slammed him, Ingram had his
hands over his head. And there was no sign that he sought to flee
when he was seized. Accepting these allegations as true, Ingram
“was not actively resisting arrest, and there is no [allegation] that
he struggled with the police” at the time of the seizure.
Id. Alt-
hough Kubik could lawfully seize Ingram, the “extent of the injury
[he] inflicted” was significant enough to confirm the already tenu-
ous nature of the relationship between the “need for application of
force” and the “amount of force used.” See Helm, 989 F.3d at 1273.
We conclude that the force used was not “reasonably pro-
portionate to the need for that force.” Lee,
284 F.3d at 1198. “Be-
cause [Ingram] was not committing a crime, resisting arrest, or pos-
ing an immediate threat to the officers at the time he was [body
slammed],” Kubik “used excessive force when apprehending [In-
gram].” Mercado,
407 F.3d at 1157–58. So, Ingram has satisfied his
burden to show that “the officer violated a constitutional right.”
Piazza, 923 F.3d at 951.
Ingram can establish that “the right was clearly established
at the time of the alleged violation,” id., “in any of three ways,” see
Patel v. City of Madison,
959 F.3d 1330, 1343 (11th Cir. 2020). First,
he can “point to a materially similar case that has already decided
that what the police officer was doing was unlawful.” Patel, 959
F.3d at 1343 (alteration adopted) (internal quotation marks
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14 Opinion of the Court 20-11310
omitted). Second, if he “cannot find a materially similar factual case
from the Supreme Court, our Court, or, in this case, the Supreme
Court of Alabama,” Ingram can establish “that a broader, clearly
established principle should control the novel facts in this situa-
tion.” Id. (internal quotation marks omitted). Third, Ingram can es-
tablish that the officer’s “conduct [was] so obviously at the very
core of what the Fourth Amendment prohibits that the unlawful-
ness of the conduct was readily apparent to the [officer], notwith-
standing the lack of caselaw.” Id. (internal quotation marks omit-
ted). We conclude “that a broader, clearly established principle”
controls here. See id. (internal quotation marks omitted).
Our precedents “hold that gratuitous use of force when a
criminal suspect is not resisting arrest constitutes excessive force.”
Hadley v. Gutierrez,
526 F.3d 1324, 1330 (11th Cir. 2008); see also
id. (holding that an officer “was not entitled to use any force” after
handcuffing a suspect because the suspect “neither resisted arrest
nor posed a danger” to the officer (emphasis added)). We have held
that police officers cannot employ gratuitous and seriously injuri-
ous force against non-resisting suspects who are under control. See,
e.g., Saunders v. Duke,
766 F.3d 1262, 1265 (11th Cir. 2014) (“We
have repeatedly ruled that a police officer violates the Fourth
Amendment, and is denied qualified immunity, if he or she uses
gratuitous and excessive force against a suspect who is under con-
trol, not resisting, and obeying commands.”); Lee,
284 F.3d at 1200
(relying on “the clear and obvious principle that once an arrest has
been fully secured and any potential danger or risk of flight vitiated,
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20-11310 Opinion of the Court 15
a police officer cannot employ . . . severe and unnecessary force”).
And we have explained that “the same rationale applies to the use
of gratuitous force when the excessive force is applied prior to the
handcuffing but in the course of the investigation.” See Stephens v.
DeGiovanni,
852 F.3d 1298, 1328 & n.33 (11th Cir. 2017); see also
Patel, 959 F.3d at 1340 (citing DeGiovanni, 852 F.3d at 1328 n.33)
(rejecting the “argu[ment] that our precedent prohibiting the use
of gratuitous and excessive force against non-resisting suspects ap-
plies only when the suspect is handcuffed”). Based on precedents
that preceded Kubik’s conduct, we have explained that “our case
law is clear that serious and substantial injuries caused during a sus-
pect’s arrest when a suspect is neither resisting an officer’s com-
mands nor posing a risk of flight may substantiate an excessive
force claim.” Sebastian, 918 F.3d at 1310–11 (examining case law
from 1997 to 2017); see also Patel, 959 F.3d at 1343 (“[O]ur cases
establishing this principle date to at least 2000.”).
Smith v. Mattox,
127 F.3d 1416 (11th Cir. 1997), is instruc-
tive. There, “a police officer subjected a previously threatening and
fleeing arrestee to nondeadly force after the arrestee suddenly be-
came docile.”
Id. at 1419. The suspect had “raised [a] baseball bat
in a threatening posture” before the officer drew his firearm and
“ordered [the suspect] to drop the bat.”
Id. at 1418. The suspect
then dropped the bat and ran from the officer, who pursued him.
Id. When the officer caught up, the suspect “docilely submitted to
arrest upon [the officer’s] request for him to ‘get down.’”
Id. The
officer then put his knee on the suspect’s lower back and, “with a
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16 Opinion of the Court 20-11310
grunt and a blow,” broke the suspect’s arm while trying to handcuff
him.
Id. Because the suspect “was offering no resistance at all, the
considerable . . . force inferable from the grunt, [the suspect’s] sen-
sation of a blow, and the broken arm was obviously unnecessary
to restrain even a previously fractious arrestee,” so we concluded
“that this case falls within the slender category of cases in which
the unlawfulness of the conduct is readily apparent even without
clarifying caselaw.”
Id. at 1420. “Smith established that if an ar-
restee demonstrates compliance, but the officer nonetheless inflicts
gratuitous and substantial injury using ordinary arrest tactics, then
the officer may have used excessive force” even if the arrestee “was
initially recalcitrant and even acted aggressively toward the of-
ficer.” Sebastian, 918 F.3d at 1311.
Mercado v. City of Orlando,
407 F.3d at 1154–58, is also in-
structive. There, officers were called to conduct a welfare check on
a suicidal subject who had “wrapped a telephone cord around his
neck” and “used a . . . knife to make multiple cuts on his arms.”
Id.
at 1154. When the officers arrived, the subject’s wife told the offic-
ers that he “was armed with a knife and had threatened to commit
suicide.”
Id. The officers found the subject “sitting on the kitchen
floor” while “holding the knife in both hands and pointing it to-
ward his heart.”
Id. The officers ordered him to “drop his knife at
least two times,” “but he refused without making any threatening
moves toward the officers.”
Id. Within 30 seconds of giving that
order and with no warning, an officer shot the subject in his head
with a rubber projectile, “resulting in brain injuries.”
Id. at 1154–
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20-11310 Opinion of the Court 17
55, 1155 n.3. After applying the Graham factors, we held that the
use of force was excessive.
Id. at 1157–58.
The facts that made the force used in Mercado excessive ob-
tain here. In Mercado, we rejected “[t]he defendants[’] claim that
the use of force [was] justified because suicidal subjects sometimes
make erratic moves that can jeopardize the safety of the officers on
the scene.”
Id. at 1157. Despite the subject’s being armed and not
under control, we reasoned that there was “no indication that [the
subject] made any threatening moves toward the police,” and that
he “was not actively resisting arrest,” “struggl[ing] with the police,”
or “posing an immediate threat to [them]” before an officer used
seriously injurious, lethal force.
Id. at 1157–58. Most of these facts
were true of Ingram. But unlike the subject in Mercado, Ingram
behaved less erratically, was compliant, was not an immediate
threat to himself or to the deputies, and was known to be unarmed.
Our precedents clearly established that Kubik could not use
grossly disproportionate, gratuitous, and seriously injurious force
against a non-resisting, compliant, and docile subject like Ingram.
Ingram was unarmed. He posed no threat to Kubik. He had his
hands over his head. And he reiterated that he would cooperate
with any arrest. When Kubik body slammed Ingram headfirst with-
out warning and caused a severe neck injury, that force was “ut-
terly disproportionate to the level of force reasonably necessary” in
that circumstance. See Oliver v. Fiorino,
586 F.3d 898, 908 (11th
Cir. 2009).
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18 Opinion of the Court 20-11310
To be sure, Ingram behaved erratically when he ran into the
cotton field. But using seriously injurious force against “even a pre-
viously fractious arrestee” is unlawful if at the time of arrest he
“was offering no resistance at all.” Smith,
127 F.3d at 1420; see also
Mercado,
407 F.3d at 1157. And it is of no moment that Ingram was
not yet under physical control in that circumstance. See DeGio-
vanni, 852 F.3d at 1328 n.33. Kubik’s headfirst body slam was a
“gratuitous use of force” against someone who was “not resisting
arrest” that our precedents have established “constitutes excessive
force.” Hadley,
526 F.3d at 1330. We conclude that “our case law
bars [Kubik’s] alleged actions with sufficient clarity to put any rea-
sonable officer on notice” that the use of seriously injurious force
against a compliant, docile, non-resisting, and unarmed subject like
Ingram “constituted excessive force.” Sebastian, 918 F.3d at 1311.
Kubik is not entitled to qualified immunity based on these allega-
tions.
3. Dorning is Not Entitled to Qualified Immunity from Ingram’s
Claim of Supervisory Liability.
Supervisory officials are not vicariously liable under section
1983 for the unconstitutional acts of their subordinates. Hartley v.
Parnell,
193 F.3d 1263, 1269 (11th Cir. 1999). Plaintiffs must instead
allege that the supervisor, through his own actions, violated the
Constitution. Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009). Because
Ingram does not allege that Dorning was present or involved in the
altercation, Dorning is liable under section 1983 only if “there is a
causal connection between [his] actions . . . and the alleged
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20-11310 Opinion of the Court 19
constitutional deprivation.” Hartley, 193 F.3d at 1269 (internal quo-
tation marks omitted).
Causation “may be established and supervisory liability im-
posed where the supervisor’s improper custom or policy results in
deliberate indifference to constitutional rights.” Id. (alterations
adopted) (internal quotation marks omitted). “A plaintiff can also
show that the absence of a policy led to a violation of constitutional
rights.” Piazza, 923 F.3d at 957. “Either way, though, to prove that
a policy or its absence caused a constitutional harm, a plaintiff must
point to multiple incidents, or multiple reports of prior misconduct
by a particular employee.” Id. (citation omitted). And allegations of
a single incident of unconstitutional conduct cannot state a claim
for supervisory liability, even when the conduct involves several
subordinates. Id. at 957–58.
Dorning makes two arguments. First, he argues that the al-
legations fail to state a claim for supervisory liability. Second, he
argues that he is entitled to qualified immunity. We disagree with
both arguments.
“A plaintiff survives a motion to dismiss only if his complaint
alleges ‘sufficient factual matter, accepted as true, that states a
claim to relief that is plausible on its face.’” McCullough v. Finley,
907 F.3d 1324, 1333 (11th Cir. 2018) (alterations adopted) (quoting
Iqbal,
556 U.S. at 678). After ignoring conclusory allegations, “we
assume any remaining factual allegations are true and determine
whether those factual allegations ‘plausibly give rise to an
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20 Opinion of the Court 20-11310
entitlement to relief.’”
Id. (quoting Iqbal,
556 U.S. at 679). We con-
clude that Ingram’s complaint states a claim against Dorning.
Ingram’s complaint alleges that there was a causal connec-
tion between Dorning’s conduct and the excessive force used
against Ingram. The complaint alleges that Dorning established a
policy that “incidents of possible, likely, or known misconduct
were not investigated, with the foreseeable result that deputies like
Kubik believed they could get away with violating Ingram’s
rights.” Cf. Hartley, 193 F.3d at 1269 (finding relevant the lack of
evidence that a supervisor “had any sort of policy in place prior to
the [alleged misconduct] which could have led [the subordinate] to
believe that [the misconduct] was permitted by [the supervisor]”).
And Ingram’s complaint alleges that Kubik had that belief when he
used excessive force.
The complaint alleges “multiple incidents, or multiple re-
ports of prior misconduct by” officers, Piazza, 923 F.3d at 957 (cita-
tion omitted), that were not investigated by Dorning. One incident
involved a “well-publicized revenge beating” that “Dorning re-
fused to investigate” and in which he did not “discipline [the] dep-
uties involved,” despite being “fully informed” of the beating and
cover-up. Dorning knew that “numerous deputies of various ranks
were involved in the beating” or its cover-up. Dorning allegedly
took no action against any of the deputies involved and “did not
. . . initiate an internal affairs investigation.” The complaint identi-
fies five other incidents that were “approved as a matter of routine
through the chain of command without any investigation.” In one
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20-11310 Opinion of the Court 21
of these incidents, “a deputy with a history of losing his temper
with citizens punched a severely intoxicated misdemeanor arrestee
twice in the face, causing an orbital fracture.”
Dorning allegedly “was copied on all use of force reports”
and “approved of the excessive uses of force without having any of
them investigated.” “[N]o officer was disciplined, let alone termi-
nated, for excessive force or for otherwise violating a citizen’s con-
stitutional rights during Dorning’s 16-year tenure.” During that
tenure, Dorning’s website “identified no person or division to con-
tact with a complaint [against] a deputy.” In response to requests
for “records of internal investigations of deputy misconduct,” In-
gram’s lawyer was “told no such records existed,” despite a “policy
and procedure manual” that “requires thorough and prompt inves-
tigations” of allegations of misconduct. And “[d]espite widespread
knowledge of the incident” involving Kubik and Ingram “up the
chain of command (including Dorning)[,] . . . the incident was not
. . . investigated.”
Contrary to Dorning’s argument, this case is not like
McCullough v. Finley, where “we struggle[d] to find [any] factual
allegations” in a complaint that alleged only “the [officials’] names
and titles.” 907 F.3d at 1334–35. In McCullough, there was “nothing
about the significance of [the officials’] titles, their individual roles
in the [policy], their personal interactions or familiarity with [the
plaintiffs], their length of service, their management policies, or
any other characteristics that would bear on whether they knew
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22 Opinion of the Court 20-11310
about the [policy] that they allegedly operated.” Id. at 1334 (inter-
nal quotation marks omitted).
The allegations of “multiple reports of prior misconduct,”
Piazza, 923 F.3d at 957, with no investigation by Dorning “allow[]
the court to draw the reasonable inference,” Iqbal,
556 U.S. at 678,
that there is a causal connection between Dorning’s failure to in-
vestigate any allegations of serious misconduct and Kubik’s belief
that he could act with impunity. The factual allegations, if true, es-
tablish the “absence of a policy” of investigating excessive force vi-
olations, see Piazza, 923 F.3d at 957, of which Dorning had
knowledge, see Rivas v. Freeman,
940 F.2d 1491, 1495–96 (11th Cir.
1991) (“[T]he district court’s findings regarding [the] Sheriff[’s] . . .
failure to establish policies and procedures [were] supported” by
“evidence at trial which established that [he] knew of prior in-
stances of [misconduct], but allowed his deputies to [engage in that
misconduct].”). And the complaint relies on more than the incident
at issue to establish the custom or policy. See, e.g., Piazza, 923 F.3d
at 957–58.
Dorning also is not entitled to qualified immunity. Because
Ingram does not dispute that Dorning was acting within the scope
of his discretionary authority, “the burden shifts to [Ingram] to
show that (1) [Dorning] violated a constitutional right and (2) the
right was clearly established at the time of the alleged violation.”
Id. at 951. Ingram has satisfied his burden.
A supervisor can be held liable for implementing or failing
to implement a policy that causes his subordinates to believe that
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20-11310 Opinion of the Court 23
they can permissibly violate another’s constitutional rights if the
subordinates then do so based on that belief. See Hartley, 193 F.3d
at 1269. As we have explained, the complaint adequately alleges
that one of Dorning’s subordinates used excessive force and that
there is a causal connection between that excessive force and Dorn-
ing’s policy of allowing such force. And this Court has clearly es-
tablished that “a custom of allowing the use of excessive force . . .
provides the requisite fault[,] . . . as a persistent failure to take dis-
ciplinary action against officers can give rise to the inference that a
[supervisor] has ratified conduct.” Fundiller v. City of Cooper City,
777 F.2d 1436, 1443 (11th Cir. 1985). That “allegation would [also]
provide the causal link between the challenged conduct and the . . .
policy, because [the officer] would have been acting in accordance
with the policy of allowing or encouraging excessive force.”
Id.
This principle applies both to municipalities and supervisors “re-
sponsible for disciplining police officers and setting police depart-
ment policy.”
Id. It follows that Ingram’s complaint states a claim
that Dorning violated his clearly established constitutional rights.
B. Vicarious Liability is Unavailable under Title II of the Ameri-
cans with Disabilities Act.
Under Title II of the Americans with Disabilities Act, “no
qualified individual with a disability shall, by reason of such disabil-
ity, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be sub-
jected to discrimination by any such entity.”
42 U.S.C. § 12132.
“Given the textual similarities between” Title II and section 504 of
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24 Opinion of the Court 20-11310
the Rehabilitation Act,
29 U.S.C. § 794(a), “the same standards gov-
ern claims under both, and we rely on cases construing Title II and
[section] 504 interchangeably.” Silberman, 927 F.3d at 1133 (altera-
tions adopted) (internal quotation marks omitted). To state a claim
under Title II, Ingram had to allege “(1) that he is a qualified indi-
vidual with a disability; (2) that he was either excluded from partic-
ipation in or denied the benefits of a public entity’s services, pro-
grams, or activities, or was otherwise discriminated against by the
public entity; and (3) that the exclusion, denial of benefit, or dis-
crimination was by reason of [his] disability.” Id. at 1134 (internal
quotation marks omitted).
Ingram seeks compensatory damages for the alleged Title II
violation. And “[t]o get damages—as [Ingram] seeks here—a plain-
tiff must clear an additional hurdle: he must prove that the entity
that he has sued engaged in intentional discrimination, which re-
quires a showing of deliberate indifference.” Id. (internal quotation
marks omitted). To recover from Turner under this standard, In-
gram must establish that Turner is “an official who at a minimum
has authority to address the alleged discrimination and to institute
corrective measures on the entity’s behalf” and “had actual
knowledge of discrimination in the entity’s programs and failed ad-
equately to respond.” Id. (alterations adopted) (internal quotation
marks omitted).
The district court applied the deliberate-indifference stand-
ard, held that Ingram “failed to allege that Turner had any actual
knowledge of discrimination against people with disabilities in his
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20-11310 Opinion of the Court 25
department,” and concluded that Ingram “failed to state a claim for
relief.” But Ingram seeks to evade that conclusion by arguing that
Turner is vicariously liable. And we have explained that “the avail-
ability of respondeat superior for Title II . . . claims remains an
open question.” Id. at 1134 n.6.
Turner argues that vicarious liability is unavailable under Ti-
tle II and that, in any event, Title II does not apply to police en-
counters. The latter argument may conflict with precedent. See
Bircoll v. Miami-Dade Cnty.,
480 F.3d 1072, 1084–85 (11th Cir.
2007) (explaining that a plaintiff can “attempt to show a[] . . . claim
under . . . Title II” by establishing “that he was ‘subjected to dis-
crimination’ by a public entity, the police, by reason of his disabil-
ity” (quoting
42 U.S.C. § 12132) (emphasis added)). But we need
not address that argument because we conclude that vicarious lia-
bility is unavailable under Title II.
The Supreme Court “ha[s] never decided whether” a public
“entity can be held vicariously liable [under Title II] for money
damages for the purposeful or deliberately indifferent conduct of
its employees.” City of San Francisco v. Sheehan,
575 U.S. 600, 610
(2015). And the courts of appeals are divided. Some have held that
vicarious liability is available under Title II. E.g., Duvall v. Cnty. of
Kitsap,
260 F.3d 1124, 1141 (9th Cir. 2001); Delano-Pyle v. Victoria
Cnty.,
302 F.3d 567, 574–75 (5th Cir. 2002); Rosen v. Montgomery
Cnty.,
121 F.3d 154, 157 n.3 (4th Cir. 1997). The Sixth Circuit re-
cently held the opposite. Jones, 20 F.4th at 1118. We agree with the
Sixth Circuit.
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26 Opinion of the Court 20-11310
Although Title II “prohibits discrimination against the disa-
bled by public entities[, and section] 504 of the Rehabilitation Act
prohibits discrimination against the disabled by recipients of federal
funding, including private organizations,” Barnes v. Gorman,
536
U.S. 181, 184–85 (2002), both provisions incorporate the remedies
available under other anti-discrimination statutes. The enforce-
ment provision of Title II declares that “[t]he remedies, procedures,
and rights set forth in [the Rehabilitation Act] shall be the remedies,
procedures, and rights” Title II “provides to any person alleging
discrimination on the basis of disability.”
42 U.S.C. § 12133. And
the enforcement provision of section 504 declares that the “reme-
dies, procedures, and rights set forth in Title VI of the Civil Rights
Act of 1964 . . . shall be available to any person aggrieved by any
act or failure to act . . . under section [504].” 29 U.S.C. § 794a(a)(2).
It follows that the remedies, procedures, and rights “for violations
of [Title II] and [section] 504 . . . are coextensive with” those that
are “available in a private cause of action brought under Title VI of
the Civil Rights Act of 1964, which prohibits racial discrimination
in federally funded programs and activities.” See Barnes,
536 U.S.
at 185 (citation omitted). So, “Title VI tells us whether vicarious
liability is available under” Title II; if vicarious liability is unavaila-
ble under Title VI, it is unavailable under Title II. Jones, 20 F.4th at
1119.
Vicarious liability is unavailable under Title VI. Gebser v.
Lago Vista Independent School District,
524 U.S. 274 (1998), con-
trols that question. In Gebser, the Supreme Court explained that
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20-11310 Opinion of the Court 27
Title IX “was modeled after Title VI of the Civil Rights Act of 1964,
which is parallel to Title IX except that it prohibits race discrimina-
tion, not sex discrimination, and applies in all programs receiving
federal funds, not only in education programs.”
Id. at 286 (citations
omitted). “The two statutes operate in the same manner . . . .”
Id.
The Court held that Title IX does not “permit a damages recovery
against a school district for a teacher’s sexual harassment of a stu-
dent based on principles of respondeat superior or constructive no-
tice.”
Id. at 285. The Court reasoned that both Title VI and IX “at-
tach[] conditions to the award of federal funds,”
id. at 287, under
Congress’s spending power, U.S. CONST. art. I, § 8, cl. 1. The “con-
tractual nature [of those statutes] has implications for our construc-
tion of the scope of available remedies.” Gebser,
524 U.S. at 287.
The “central concern” for courts is with ensuring that the entity
receiving funds has “notice” that it will be liable for noncompliance
with the condition.
Id. (internal quotation marks omitted). And
“[i]f a school district’s liability for a teacher’s sexual harassment
rests on principles of constructive notice or respondeat superior, it
will . . . be the case that the recipient of funds was unaware of the
discrimination,” a result “that Congress did not envision.”
Id. at
287–88. Instead, “in cases . . . that do not involve official policy of
the recipient entity,” the Supreme Court “h[eld] that a damages
remedy will not lie . . . unless an official who at a minimum has
authority to address the alleged discrimination and to institute cor-
rective measures . . . has actual knowledge of [the] discrimination
. . . and fails to adequately respond,”
id. at 290—the standard the
district court applied in this case.
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28 Opinion of the Court 20-11310
Title IX, like Title II, “incorporates the remedies established
by Title VI of the Civil Rights Act” and “uses the same remedial
scheme.” Jones, 20 F.4th at 1120. “[T]he [Supreme] Court has in-
terpreted Title IX consistently with Title VI.” Barnes,
536 U.S. at
185. And Title VI “shares all of the[] features” on which the Su-
preme Court relied to hold that vicarious liability is unavailable un-
der Title IX, so “[w]hat was true for Title IX in Gebser is true for
Title VI today.” Jones, 20 F.4th at 1121. Because vicarious liability
is unavailable under Title IX, Gebser,
524 U.S. at 285, “an entity
cannot be held vicariously liable on a respondeat superior the-
ory . . . under Title VI,” United States v. Cnty. of Maricopa,
889
F.3d 648, 652 (9th Cir. 2018). And “[b]ecause Title II . . . and the
Rehabilitation Act import Title VI’s remedial regime,” vicarious li-
ability is unavailable under Title II. Jones, 20 F.4th at 1121.
Ingram agreed to the dismissal of his Rehabilitation Act
claim under section 504 because “Gebser . . . provides support for
the position that there is not vicarious liability under [section] 504.”
He decided to “proceed [instead] only under Title II.” But we have
repeatedly explained that “the same standards govern claims under
both, and we rely on cases construing Title II and [section] 504 in-
terchangeably.” Silberman, 927 F.3d at 1133 (alterations adopted)
(internal quotation marks omitted).
Ingram’s attempt to find daylight between them is unavail-
ing. Ingram asserts that section 504 and Title IX “appl[y] only to
recipients of federal financial assistance” and correctly explains that
they “ha[ve] a similar remedial scheme.” But, he argues, “Title II
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20-11310 Opinion of the Court 29
. . . [is] not linked to acceptance of federal funds.” The problem for
Ingram is that his argument was foreclosed by the Supreme Court
in Barnes v. Gorman,
536 U.S. at 189–90 n.3.
In Barnes, the Supreme Court rejected the argument that
“Title VI does not carry over to the [Americans with Disabilities
Act] because the latter is not Spending Clause legislation.”
Id. at
189 n.3. The Court held that the provisions of Title II that expressly
incorporate the remedies in the Rehabilitation Act “make discus-
sion of the [Americans with Disability Act]’s status as a ‘non Spend-
ing Clause’ tort statute quite irrelevant.”
Id. at 190 n.3. Although
Title II is not Spending Clause legislation, its text expressly incor-
porates the remedies available under a statute that is—Title VI.
We conclude that “Gebser provides the correct standard”
under Title II. See Liese v. Indian River Cnty. Hosp. Dist.,
701 F.3d
334, 349 (11th Cir. 2012). Under Title II, vicarious liability is una-
vailable; instead, the “narrower approach [in Gebser] . . . requires
the deliberate indifference of an official who at a minimum has au-
thority to address the alleged discrimination and to institute cor-
rective measures on the [entity’s] behalf and who has actual
knowledge of discrimination in the [entity’s] programs and fails ad-
equately to respond.” See
id. (alteration adopted) (internal quota-
tion marks omitted).
The district court applied that standard, and it correctly dis-
missed Ingram’s Title II claim. As the district court concluded, In-
gram “failed to allege that Turner had any actual knowledge of dis-
crimination against people with disabilities in his department.”
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30 Opinion of the Court 20-11310
IV. CONCLUSION
We AFFIRM in part, REVERSE in part, and REMAND for
further proceedings.
