April Harvey v. Campbell County, TN , 453 F. App'x 557 ( 2011 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 11a0307n.06
    FILED
    No. 09-5041
    May 10, 2011
    UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
    FOR THE SIXTH CIRCUIT
    APRIL ANN HARVEY, wife and next of                )
    kin to Ramsey Robert Harvey, deceased;            )
    and RYAN A. HARVEY, a minor child, by             )
    and through his mother and next friend,           )
    MISTY GILLIAM,                                    )
    )    ON APPEAL FROM THE UNITED
    Plaintiffs-Appellees,                      )    STATES DISTRICT COURT FOR THE
    )    EASTERN DISTRICT OF TENNESSEE
    v.                                                )
    )
    CAMPBELL COUNTY, TENNESSEE;                       )                     OPINION
    RON McCLELLAN, individually and in his            )
    official capacity as former Sheriff of            )
    Campbell County; and CHARLES SCOTT,               )
    individually and in his official capacity as      )
    former Deputy Sheriff of Campbell County,         )
    )
    Defendants-Appellants.                     )
    Before: DAUGHTREY, SUTTON and McKEAGUE, Circuit Judges.
    McKEAGUE, Circuit Judge. In this civil rights action, presenting claims under 42 U.S.C.
    § 1983 and the Tennessee Governmental Tort Liability Act, defendants – Campbell County, former
    Campbell County Sheriff Ron McClellan, and his former Chief Deputy, Charles Scott – appeal the
    district court's order denying them summary judgment. The litigation arises out of the death of
    Ramsey Robert Harvey, who was shot and killed by Richard Lowe, then a Campbell County Sheriff's
    Deputy. The action is brought by Harvey’s wife, April Ann Harvey, and his son, Ryan A. Harvey.
    Liability is predicated on claims of inadequate screening of Lowe prior to hiring and failure to train
    Harvey v. Campbell County
    No. 09-5041
    and supervise him in the use of deadly force. The district court granted defendants summary
    judgment on the screening claim but denied summary judgment on the failure-to-train claim, finding
    that defendants had “failed to meet their burden of establishing an absence of genuine issues of
    material fact.” The court also rejected the individual defendants' request for qualified immunity on
    the same basis. Because we conclude that the district court's ruling is based in part on a
    misapplication of the standards governing summary judgment practice, we conclude that a pure
    question of law is presented over which we have jurisdiction. We further conclude that this
    misapplication of law resulted in reversible error. For the reasons more fully explained below, we
    reverse the denial of summary judgment to defendants on plaintiff’s § 1983 failure-to-train claim.
    I. FACTUAL AND PROCEDURAL BACKGROUND1
    Deputy Lowe began pursuing Harvey in his patrol car in the early morning hours on
    December 23, 2005, but the record fails to show why. Lowe radioed the Sheriff's Department
    dispatch to report that he was in pursuit, and when Harvey stopped his car a few minutes later, Lowe
    called for backup. Both Lowe and Harvey apparently got out of their vehicles and, within three
    minutes, during the ensuing encounter, Lowe shot Harvey in the head. Harvey died two days later
    from the gunshot wound. In the meantime, Lowe justified the shooting in a statement to a local
    newspaper reporter by explaining that Harvey was armed with a knife when he got out of his car and
    1
    This summary of the facts is based on the allegations of the complaint and the parties’
    concise statements of material facts, largely undisputed, filed in the district court in conjunction with
    the motion for summary judgment. R. 1, Complaint; R. 22, Defendants’ Concise Statement of
    Material Facts; R. 28, Plaintiffs’ Response to Defendants’ Statement of Material Facts.
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    No. 09-5041
    refused to stop or put the knife down in response to Lowe's instruction, forcing Lowe to shoot in
    self-defense. This statement turned out to be false, however.
    As a result of the fatal shooting, the Campbell County Sheriff's Department placed Lowe on
    administrative leave, and the Tennessee Bureau of Investigation (TBI) was called in to investigate.
    Approximately one week after the incident, Lowe took and failed a polygraph test administered by
    the TBI. He then admitted that he had planted a knife at the scene of the shooting. The next day,
    Lowe was discharged from the Sheriff's Department for tampering with evidence at a crime scene.
    He was later indicted on three felony charges—fabricating evidence, making a false police report,
    and engaging in official misconduct—and pleaded guilty to all three offenses.
    Plaintiffs, Harvey’s wife and son, originally filed suit in the Circuit Court for Campbell
    County, Tennessee, stating claims under 42 U.S.C. § 1983 and the Tennessee Governmental Tort
    Liability Act, Tennessee Code Annotated §§ 29-20-101 to -408, against Lowe and defendants
    Campbell County, former Sheriff McClellan, and former Chief Deputy Scott. Defendants removed
    the action to the District Court for the Eastern District of Tennessee. The district court dismissed
    Lowe from the suit, without prejudice, after three attempts to serve him proved unsuccessful. The
    court subsequently granted summary judgment to the remaining defendants on plaintiffs’ claim that
    defendants inadequately screened Lowe before hiring him. However, the district court denied
    summary judgment on the claim that defendants failed to train Lowe adequately and on McClellan’s
    and Scott's qualified immunity defense. The individual defendants now appeal, arguing that the
    district court erred in denying them qualified immunity. Recognizing that issues involving Campbell
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    County are not otherwise reviewable on an interlocutory basis, the County predicates pendent
    appellate jurisdiction on its contention that those issues are “inextricably intertwined” with the matter
    of qualified immunity, over which the court properly has jurisdiction.
    II. JURISDICTION
    We have appellate jurisdiction over final decisions of the district court under 28 U.S.C. §
    1291. A denial of summary judgment is not ordinarily considered a final decision, but a denial of
    summary judgment to a defendant raising the defense of qualified immunity is appealable on an
    interlocutory basis under the collateral order doctrine “to the extent that it turns on an issue of law.”
    Mitchell v. Forsyth, 
    472 U.S. 511
    , 530 (1985). See also Chappell v. City of Cleveland, 
    585 F.3d 901
    , 905 (6th Cir. 2009); Harrison v. Ash, 
    539 F.3d 510
    , 521 (6th Cir. 2008); Leary v. Livingston
    County, 
    528 F.3d 438
    , 447 (6th Cir. 2008).          This exception is narrow, however. Appellate
    jurisdiction exists “only to the extent that a summary judgment order denies qualified immunity
    based on a pure issue of law.” Leary, 
    528 F.3d 447-48
    (quoting Gregory v. City of Louisville, 
    444 F.3d 725
    , 742 (6th Cir. 2006)). A defendant may not appeal the denial of qualified immunity if the
    district court’s order was based on a question of “evidence sufficiency” rather than “the application
    of ‘clearly established’ law to a given (for appellate purposes undisputed) set of facts.” Johnson v.
    Jones, 
    515 U.S. 304
    , 313 (1995).
    Here, the district court granted summary judgment to defendants in part, but denied summary
    judgment on plaintiffs’ claim that defendants had failed to train and supervise Lowe in the use of
    deadly force. The court held that defendants had “failed to meet their burden of establishing an
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    absence of genuine issues of material fact.” In so ruling, the court misapplied the Supreme Court’s
    teaching on summary judgment practice. It is not for the moving party to establish the absence of
    a triable fact issue, but for the nonmovant to establish the existence of one. Yes, “a party seeking
    summary judgment always bears the initial responsibility of informing the district court of the basis
    for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
    interrogatories, and admissions on file, together with affidavits, if any,’ which it believes
    demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 
    477 U.S. 317
    ,
    323 (1986). But there is “no express or implied requirement in Rule 56 that the moving party
    support its motion with affidavits or other similar materials negating the opponent’s claim.” 
    Id. (emphasis in
    original).
    Contrary to the district court’s reasoning in this case, Celotex teaches that the moving party
    need not “show the absence of a genuine issue of material fact,” but discharges its initial burden by
    “‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support
    the nonmoving party’s case.” 
    Id. at 325.
    Once the party moving for summary judgment has satisfied
    its burden, the nonmoving party must “go beyond the pleadings and by her own affidavits, or by the
    ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing
    that there is a genuine issue for trial.’” 
    Celotex, 477 U.S. at 324
    (quoting Fed. R. Civ. P. 56(e)).
    Here, as more fully explained below, defendants carried their initial burden by pointing out
    an absence of evidence tending to satisfy any of three essential elements of plaintiffs’ claim, i.e., that
    Lowe’s training was inadequate, that any inadequacy resulted from defendants’ deliberate
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    indifference, and that the inadequacy was closely related to plaintiffs’ injury. Plaintiffs, in
    responding, did not present any evidence of specific facts tending to establish any off these three
    elements. Instead, they argued simply that the defendants’ showing of the adequacy of Lowe’s
    training is inconclusive and therefore insufficient to demonstrate the absence of a genuine issue of
    material fact. Though this is precisely the argument rejected in Celotex, the district court accepted
    it as persuasive.
    We acknowledge that the denial of summary judgment appears to be based on factual issues,
    not a pure question of law. “Yet, the district court’s characterization of the basis for its ruling does
    not necessarily dictate the availability of appellate review.” 
    Chappell, 585 F.3d at 906
    ; see also
    Livermore ex rel. Rohm v. Lubelan, 
    476 F.3d 397
    , 402-03 (6th Cir. 2007); Estate of Carter v. City
    of Detroit, 
    408 F.3d 305
    , 309 (6th Cir. 2005). “If, apart from impermissible arguments regarding
    disputes of fact, defendants raise purely legal issues bearing on their entitlement to qualified
    immunity, then there are issues properly subject to appellate review.” Chappell, 
    585 F.3d 906
    .
    “Hence, the district court’s determination that there is a factual dispute does not necessarily preclude
    appellate review where the ruling also hinges on legal errors as to whether the factual disputes (a)
    are genuine and (b) concern material facts.” 
    Id. The district
    court here committed legal error not unlike the error committed by the Eleventh
    Circuit in Scott v. Harris, 
    550 U.S. 372
    , 378-80 (2007), where the Court reversed denial of qualified
    immunity because the lower court had erred in finding a genuine issue of material fact. As we
    explained in Chappell:
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    In Scott, the Eleventh Circuit was held to have erred by accepting the plaintiff’s
    version of the facts as true even though that version was so conclusively contradicted
    by the record that no reasonable jury could believe it. . . . In other words, the court
    is not obliged to, and indeed should not, rely on the nonmovant’s version where it is
    “so utterly discredited by the record” as to be rendered a “visible fiction.” . . . The
    court’s duty to view the facts in the light most favorable to the nonmovant does not
    require or permit the court to accept mere allegations that are not supported by factual
    evidence. . . . This is so because the nonmovant, in response to a properly made and
    supported motion for summary judgment, cannot rely merely on allegations but must
    set out specific facts showing a genuine issue for trial.
    
    Chappell, 585 F.3d at 906
    .
    The district court here, too, erred as a matter of law in determining that plaintiffs’ claim could
    withstand a properly supported motion for summary judgment through reliance on the allegations
    of their complaint alone without any supporting factual evidence. Defendants’ appeal from this
    ruling therefore implicates a question of law. Defendants are not “merely quibbling with the district
    court’s reading of the factual record,” but have identified a legal issue that is subject to interlocutory
    appellate review. 
    Id. (quoting Leary,
    585 F.3d at 441). It follows that, to this extent, we have
    jurisdiction to review the district court’s denial of summary judgment. Further, insofar as Campbell
    County’s liability is dependent on the same showing that defendants McClellan and Scott were
    deliberately indifferent to Lowe’s need for additional training, we conclude that we have pendent
    appellate jurisdiction over its appeal, too, as the issues are inextricably intertwined. See Bates v.
    Dura Automotive Systems, Inc., 
    625 F.3d 283
    , 286-87 (6th Cir. 2010).
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    III. ANALYSIS
    A. Governing Legal Standards
    Where a motion for summary judgment is denied on the basis of a genuine issue of material
    fact, review is for an abuse of discretion. Hamad v. Woodcrest Condominium Ass’n, 
    328 F.3d 224
    ,
    235 (6th Cir. 2003). Where the denial is based solely on legal grounds, review is de novo. 
    Id. at 235-36.
    A motion for summary judgment permits a movant to challenge the opposing party to
    present its evidence on a critical issue. Street v. J.C. Bradford & Co., 
    886 F.2d 1472
    , 1478 (6th Cir.
    1989). The movant bears the initial burden of “pointing out to the court that the respondent, having
    had sufficient opportunity for discovery, has no evidence to support an essential element of his or
    her case.” 
    Id. at 1479.
    Thereafter, the claim will only survive summary judgment if the nonmovant
    can adduce “more than a scintilla of evidence” in support of the claim; it cannot rely on “the hope
    that the trier of fact will disbelieve the movant’s denial of a disputed fact.” 
    Id. Further, not
    just any
    factual dispute will defeat a properly supported motion for summary judgment; the dispute must
    present a genuine issue of material fact. “A dispute is ‘genuine’ only if based on evidence upon
    which a reasonable jury could return a verdict in favor of the non-moving party” . . . and “[a] factual
    dispute concerns a ‘material’ fact only if its resolution might affect the outcome of the suit under the
    governing substantive law.” Gallagher v. C.H. Worldwide, Inc., 
    567 F.3d 263
    , 270 (6th Cir. 2009)
    (citations omitted).
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    In terms of the substantive law, a plaintiff, to prevail on a § 1983 claim, must establish a
    deprivation of a constitutional or other federally protected right by a person acting under color of
    state law. The apprehension of a suspect “by the use of deadly force is a seizure subject to the
    reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 
    471 U.S. 1
    , 7 (1985).
    A claim that an officer used excessive force during the course of a seizure is evaluated under an
    “objective reasonableness” standard. 
    Chappell, 585 F.3d at 908
    (citing Graham v. Connor, 
    490 U.S. 386
    , 396 (1989)). The use of deadly force is reasonable only if “the officer has probable cause to
    believe that the suspect poses a threat of serious physical harm, either to the officer or others.” 
    Id. (quoting Garner,
    471 U.S. at 11). Accepting the incomplete but undisputed facts, we presume that
    Lowe acted under color of state law and unreasonably used deadly force to restrain the apparently
    unarmed Harvey.
    Yet, neither the County nor Lowe’s superiors, defendants McClellan and Scott, can be held
    liable for Lowe’s acts on a theory of respondeat superior. Phillips v. Roane County, Tenn., 
    534 F.3d 531
    , 543 (6th Cir. 2008); Miller v. Calhoun County, 
    408 F.3d 803
    , 817, n.3 (6th Cir. 2005). The
    County may, however, be held liable under § 1983 if it maintained a policy or custom that caused
    the violation of Harvey’s rights. See Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 
    455 F.3d 690
    , 700 (6th Cir. 2006). “One way to prove an unlawful policy or custom is to show a policy of
    inadequate training or supervision.” 
    Id. (citing City
    of Canton v. Harris, 
    489 U.S. 378
    , 387 (1989)).
    The County may be held liable if Lowe’s actions can be attributed to its failure to adequately train
    Deputy Lowe and this failure amounts to “deliberate indifference” to the rights of members of the
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    public like Harvey. See City of 
    Canton, 489 U.S. at 388
    . Specifically, as the district court observed,
    plaintiffs must show three elements: (1) that Lowe’s training was inadequate to prepare him for the
    tasks that officers in his position must perform; (2) that the inadequacy persisted due to the County’s
    deliberate indifference; and (3) that the inadequacy is closely related to or actually caused the
    plaintiffs’ injury. Plinton v. County of Summit, 
    540 F.3d 459
    , 464 (6th Cir. 2008).
    In Plinton, we identified two ways of demonstrating the second element, deliberate
    indifference. First, plaintiffs could show deliberate indifference through evidence of prior instances
    of unconstitutional conduct demonstrating that the County had notice that the training was deficient
    and likely to cause injury but ignored it. 
    Id. (citing Fisher
    v. Harden, 
    398 F.3d 837
    , 849 (6th Cir.
    2005)). Alternatively, plaintiffs could show deliberate indifference through evidence of a single
    violation of federal rights, accompanied by a showing that the County had failed to train its
    employees to handle recurring situations presenting an obvious potential for such a violation. 
    Id. (citing Bd.
    of County Comm'rs of Bryan County v. Brown, 
    520 U.S. 397
    , 409 (1997)). Here,
    plaintiffs rely on the second alternative.
    “‘Deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal
    actor disregarded a known or obvious consequence of his action.” Connick v. Thompson, 563 U.S.
    —, 
    131 S. Ct. 1350
    , 1360 (2011) (quoting Bryan 
    County, 520 U.S. at 410
    ). While it may seem
    contrary to common sense to conceive of the County having a “policy” of not taking reasonable steps
    to train its employees, if the need for more or different training is so obvious that the County
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    policymaker, i.e., then-Sheriff McClellan or potentially former Chief Deputy Scott, is shown to have
    been deliberately indifferent to the need, then the County may be deemed to have had a policy of
    deliberate indifference. Id.; 
    Miller, 408 F.3d at 815-16
    . However, mere allegations that an officer
    was improperly trained or that an injury could have been avoided with better training are insufficient
    to make out deliberate indifference. 
    Id. at 816.
    Further, whereas the County’s liability may be premised on its policymaker’s deliberate
    indifference, neither of the individual defendants, McClellan or Scott, can be held liable in his
    individual capacity unless he “either encouraged the specific incident of misconduct or in some other
    way directly participated in it.” 
    Phillips, 534 F.3d at 543
    (quoting Shehee v. Luttrell, 
    199 F.3d 295
    ,
    300 (6th Cir. 1999)). To hold either individual defendant liable, plaintiffs, at a minimum, must show
    that McClellan or Scott “at least implicitly authorized, approved, or knowingly acquiesced” in
    Lowe’s shooting of Harvey. 
    Id. Plaintiffs have
    neither alleged nor presented any evidence to
    support a finding of McClellan’s or Scott’s personal involvement in the shooting. The attempt to
    hold McClellan and Scott liable in their individual capacities for their alleged failure to adequately
    train employees in Lowe’s position “improperly conflates a § 1983 claim of individual supervisory
    liability with one of municipal liability.” Id; see also 
    Miller, 408 F.3d at 817
    n.3 (absent evidence
    of personal involvement in the underlying misconduct, failure-to-train claims against individual
    defendants are properly deemed brought against them in their official capacities, to be treated as
    claims against the county). To the extent plaintiffs have adduced evidence supporting findings that
    McClellan or Scott was a County policymaker on matters of training and was so deliberately
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    indifferent to the need for more comprehensive training as to render the training deficiency a matter
    of de facto County policy, he would be liable, if at all, in his official capacity, i.e., rendering the
    County liable. See Scott v. Clay County, Tenn., 
    205 F.3d 867
    , 879 n.21 (6th Cir. 2000).
    B. Qualified Immunity Framework
    Qualified immunity does not protect municipalities, see 
    id., but shields
    government officials
    performing discretionary functions from individual-capacity liability if their actions did not violate
    clearly established statutory or constitutional rights of which a reasonable person would have known.
    Pearson v. Callahan, 
    129 S. Ct. 808
    , 815 (2009). “Qualified immunity ordinarily applies unless it
    is obvious that no reasonably competent official would have concluded that the actions taken were
    unlawful.” 
    Chappell, 585 F.3d at 907
    . “Qualified immunity ‘gives ample room for mistaken
    judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’”
    
    Id. (quoting Hunter
    v. Bryant, 
    502 U.S. 224
    , 229 (1991)). Qualified immunity protects officials from
    liability for mistakes of judgment whether the error was a mistake of law or a mistake of fact, or a
    mistake based on mixed questions of law and fact. 
    Pearson, 129 S. Ct. at 815
    .
    Plaintiffs bear the burden of showing that the individual defendants are not entitled to
    qualified immunity. 
    Chappell, 585 F.3d at 907
    . They must show, viewing the evidence in the light
    most favorable to them, both that a constitutional right was violated and that the right was clearly
    established at the time of the violation. 
    Id. They must
    show that the right allegedly violated was
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    clearly established in a particularized sense, such that a reasonable official confronted with the same
    situation would have known that his or her actions would violate that right. 
    Id. C. Essential
    Elements of Deliberate Indifference Claim
    The district court correctly recognized that plaintiffs’ success in holding the County liable
    for Lowe’s shooting of Harvey based on a failure-to-train theory is dependent on their ability to
    adduce evidence of deliberate indifference on the part of Sheriff McClellan or Chief Deputy Scott
    as policymaker for the County. As explained above, however, any such showing of deliberate
    indifference by McClellan or Scott will not—because of the utter absence of evidence of their
    personal involvement in Lowe’s shooting of Harvey—support a judgment against either of them in
    his individual capacity. Although plaintiffs have alleged undisputed facts tending to show that
    Harvey was subject to an unreasonable seizure, they have neither alleged facts nor adduced evidence
    that would support a finding that McClellan or Scott was personally involved in the shooting or
    approved of or acquiesced in the shooting. It follows that McClellan and Scott can only be held
    liable in their official capacities and the action against them is properly deemed to be against the
    County. Plaintiffs have not, therefore, carried their burden of showing that the individual defendants
    are not entitled to qualified immunity from liability in their individual capacities. The denial of the
    individuals defendants’ motion for summary judgment based on qualified immunity must be
    reversed. As to whether plaintiffs have adduced sufficient evidence to create a triable question on
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    the County’s liability for McClellan’s or Scott’s deliberate indifference, three elements must be
    satisfied, as outlined in Plinton.
    1. Adequacy of Lowe’s Training
    First, plaintiffs must come forward with evidence tending to show that Lowe’s training was
    inadequate. Although defendants were not required to support their motion for summary judgment
    with evidence negating plaintiffs’ claim, both individual defendants filed affidavits attesting to the
    adequacy of Lowe’s training. Also attached to each affidavit is a copy of Lowe’s personnel record
    and a copy of the Campbell County Sheriff’s Department Policies and Procedures Manual.
    According to Lowe's personnel file, he worked for the Campbell County Sheriff's Department
    for less than six months before he was terminated. Before he was hired in Campbell County, Lowe
    had been a reserve police officer with the City of LaFollette (Tennessee) Police Department for less
    than six months (January 2005 to June 2005); had been employed by the Union County (Tennessee)
    Sheriff’s Department as a school security officer and patrol officer for sixteen months (August 2003
    to January 2005); and prior thereto had served for approximately four years as a school security
    officer for the Knox County (Tennessee) School Division.
    The file further shows that Lowe had received police officer training in the form of a
    seven-week course at the Walters State Community College Law Enforcement Academy in 2002.
    In January 2004, Lowe earned certification as a law enforcement officer from the State of
    Tennessee's Peace Officer Standards and Training Commission (“POST”). Defendants McClellan
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    and Scott stated in their affidavits that Lowe “obtained his forty (40) hours of in-service training each
    and every year following his POST certification, otherwise, his POST certification would have been
    revoked.” The record does not detail the substance of the original POST training or post-certification
    training Lowe received. In regard specifically to Lowe’s training in the use of deadly force, his
    personnel record indicates that he received “training in the constitutional application of force by a
    law enforcement officer” before he was hired. Both McClellan and Scott stated in their affidavits
    that Lowe was “trained by the Campbell County Sheriff's Department in the use of force.” Neither
    affiant attested to having personally trained Lowe, but both confirmed that when he was hired, Lowe
    was given a copy of and had access to the Sheriff's Department Policies and Procedures Manual.
    The 340-page manual includes a 12-page Policy on the “Use of Force & Deadly Force.”
    Plaintiffs have offered no evidence disputing these sworn statements and have not identified
    any particular deficiency in the training. Instead, they claim that the absence of facts in the record
    regarding the precise nature and contents of Deputy Lowe’s training in the constitutional use of force
    shows that the training was inadequate. They cite McClellan’s and Scott’s failure to describe their
    personal training of Lowe and their own personal unfamiliarity with Lowe’s understanding of use-of-
    deadly-force policies as evidence that the training was inadequate. They argue that the inadequacy
    of the training is further demonstrated by the fact that Lowe was acting within the scope of his
    employment when he shot and killed the unarmed Harvey.
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    Plaintiffs’ position is thus based not on evidence in the record that shows their cup is half-
    full, but on the failure of defendants to show conclusively that their cup is full to the brim. Plaintiffs
    would have us draw inferences that are not reasonably supported by the record evidence. As
    indicated above, our duty to view the facts in the light most favorable to plaintiffs does not require
    or permit us to accept as true mere allegations that are not supported by factual evidence. 
    Leary, 528 F.3d at 443-44
    . Plaintiffs, in response to a properly supported motion for summary judgment, cannot
    rely merely on allegations and arguments, but must set out specific facts showing a genuine issue for
    trial. 
    Id. at 444.
    Plaintiffs have not done so. They have presented no facts. In fact, it appears they
    have not even conducted discovery designed to uncover facts supporting their allegations. They rely
    instead on speculative, unsupported allegations to create metaphysical doubt, which clearly does not
    amount to a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
    
    475 U.S. 574
    , 586 (1986).
    The district court overlooked these shortcomings in plaintiffs’ case, concluding that
    defendants had not met their burden. The court held that defendants had failed to conclusively show
    that Lowe’s training was so adequate to the tasks performed as to demonstrate the absence of any
    genuine issue of material fact. In so ruling, the court did not identify a single item of evidence
    supporting plaintiffs’ allegation that the training was inadequate. The district court thus improperly
    excused plaintiffs from their burden of coming forward with specific facts demonstrating a triable
    fact issue.
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    Comparing the facts of this case with those presented in Plinton further illustrates the error
    in the district court’s ruling. In Plinton, the plaintiff sued the county, asserting that an officer’s
    training was inadequate, and that this caused the officer to improperly investigate and maliciously
    prosecute the plaintiff’s son, causing him to commit 
    suicide. 540 F.3d at 461
    . The officer had not
    received his department’s written policies, though he professed to know them and to have received
    on-the-job training. 
    Id. He had
    been with the department for two years and had been a police officer
    for six. 
    Id. The plaintiff
    argued that the department’s failure to provide the written policies and
    formal orientation or training in those policies constituted inadequate training, and presented a report
    conclusorily stating that training on written policies is the “foundation to police performance” that
    county officials failed to provide. 
    Id. at 464.
    The court held that although the plaintiff “may” have
    shown a genuine issue of material fact on the inadequacy prong, he had failed to show any evidence
    of deliberate indifference because the officer in question was already a trained and experienced
    officer, had testified that he knew the policies and could ask questions of supervisors if he had any,
    and the department had not encountered any bad outcomes in the past six years which would have
    put them on notice of the potential for unconstitutional behavior. 
    Id. at 464-65.
    The plaintiff’s
    assertions of the “obvious” need for more training and the “conclusory remarks” of the report on
    police training were held not to satisfy the “stringent” deliberate indifference standard, which
    requires more than “even heightened negligence.” 
    Id. at 465.
    The court thus affirmed the award of
    summary judgment to the defendant county.
    -17-
    Harvey v. Campbell County
    No. 09-5041
    Plaintiffs in this case have presented even less evidence than the plaintiff in Plinton. Unlike
    the officer in Plinton, Lowe had actually received the Campbell County Sheriff’s Department
    Policies and Procedures, including the Policy on the Use of Deadly Force. While Lowe had not been
    on the job as long as the officer in Plinton, he still had significant experience as a police officer,
    having served with three different police departments and two school systems. Further, the record
    shows that Lowe had completed police academy training and POST training before he was hired by
    the Campbell County Sheriff’s Department. Here, plaintiffs have not produced any affirmative
    evidence refuting, impugning or challenging this showing. Hence, whereas the Plinton plaintiff’s
    claim “may” have survived summary judgment on the issue of inadequacy of training—before losing
    for lack of evidence of deliberate indifference—the Harvey plaintiffs’ claim falls short in both
    respects. Deputy Lowe received arguably more training than the officer in Plinton, and the plaintiffs
    have not produced even a scintilla of affirmative evidence tending to show this training was so
    inadequate as to evidence deliberate indifference.
    Moreover, plaintiffs’ argument and the district court’s ruling completely ignore the fact that
    it was manifestly not the defendants’ duty to show that Deputy Lowe’s training was adequate; it was
    plaintiffs’ burden to show that such training was inadequate. Plaintiffs were obligated to come
    forward with affirmative evidence above and beyond the pleadings to show that the training Lowe
    received was not sufficient. But when defendants challenged plaintiffs to present their evidence of
    deficient training, plaintiffs’ only response has been to argue essentially that defendants’ affidavits
    are insufficient to rebut plaintiffs’ unsupported allegations. This is not enough. For lack of evidence
    -18-
    Harvey v. Campbell County
    No. 09-5041
    of inadequate training alone, defendants are entitled to summary judgment. Yet, the factual support
    for the remaining two elements of plaintiffs’ deliberate indifference theory is just as lacking.
    2. Deliberate Indifference and Causation Elements
    Plaintiffs have proffered even less evidence to support the second and third prongs of the
    Plinton test. They have provided no evidence that any inadequacy, if one indeed existed, was the
    result of defendants’ deliberate indifference. Evidence that a particular officer was unsatisfactorily
    or even negligently trained will not suffice to attach liability to a municipality unless the failure to
    train is shown to have been the product of deliberate indifference. City of 
    Canton, 489 U.S. at 388
    -
    89. Plaintiffs have offered no evidence to refute defendants’ sworn statements that Lowe received
    training in the constitutional use of force through his POST certification, the provision of
    departmental procedures, and from the Campbell County Sheriff’s Department. There is no evidence
    that defendants were or should have been aware that the training Deputy Lowe received was
    inadequate, necessitating additional instruction. There is no evidence that other police departments
    in Tennessee routinely provide additional training for their officers in the constitutional use of force.
    Moreover, here, as in Plinton, the record is devoid of evidence of prior misuses of deadly
    force that could be deemed to have put McClellan and Scott on notice of any deficiency in training.
    Plaintiffs have not even alleged that the County ignored a history of excessive force by Lowe or other
    deputies. “A pattern of similar constitutional violations by untrained employees is ‘ordinarily
    necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Connick, 131
    -19-
    Harvey v. Campbell County
    No. 09-5041
    S.Ct. at 1360 (quoting Bryan 
    County, 520 U.S. at 409
    ). For liability to attach in the instance of a
    single violation, the record must show “a complete failure to train the police force, training that is
    so reckless or grossly negligent that future police misconduct is almost inevitable or would properly
    be characterized as substantially certain to result.” Hays v. Jefferson County, 
    668 F.2d 869
    , 874 (6th
    Cir. 1987) (internal citations omitted).
    In City of Canton, the Court hypothesized that a history or pattern of prior violations might
    not be necessary to show deliberate indifference if the need for more or different training were
    “obvious.” See 
    Connick, 131 S. Ct. at 1360-61
    . However, the Court’s hypothesis was premised on
    the assumption that the municipality had decided not to train its officers about the constitutional
    limits of the use of force. 
    Id. at 1361.
    Under such circumstances, the highly predictable
    consequence that deadly force could be misused in violation of citizens’ rights could be deemed so
    obvious as to reflect deliberate indifference. 
    Id. Here, however,
    unlike the City of Canton
    hypothetical, it is undisputed that Lowe had received some training in the use of deadly force.
    Plaintiffs therefore had to show that the County, through its policymaker(s), was on notice that,
    absent additional training, it was so highly predictable that sheriff’s deputies would misuse deadly
    force as to amount to conscious disregard for citizens’ rights. Plaintiffs, like Connick, see 
    id. at 1365,
    failed to make this showing.
    Furthermore, outside plaintiffs’ bare assertions, there is not even a scintilla of evidence that
    defendants’ deliberate indifference created a training regimen so deficient that it was the actual cause
    -20-
    Harvey v. Campbell County
    No. 09-5041
    of Lowe’s apparently unreasonable decision to fatally shoot Harvey. What specifically transpired
    between Lowe and Harvey immediately before the fatal shooting is unknown. The record is devoid
    of information explaining what motivated Lowe to use deadly force in response to the actions of the
    apparently unarmed Harvey. It may be that Lowe reasonably apprehended that Harvey threatened
    him with imminent and serious bodily harm even though he had no gun or knife. Lowe may have
    made some mistake of law or fact that resulted in his use of greater force than necessary. Lowe may
    have acted out of sheer unmitigated malice, without any justification whatsoever—an intentional
    crime that no amount of training would have prevented. It is simply impossible to reasonably
    conclude, based on the present record, that Harvey’s death can somehow be traced back to a
    particular inadequacy in Lowe’s training to which defendants had been deliberately indifferent.
    To reiterate, it is not reasonable to draw inferences—as the district court appears to have
    done—of inadequate training, deliberate indifference and causal effect from the mere fact that, given
    the training he had, Lowe still shot and killed Harvey. Because plaintiffs have thus utterly failed to
    put forth any evidence to support reasonable jury findings that the training program was inadequate,
    that McClellan or Scott was deliberately indifferent to the deficiency, and that the deficiency was
    causally related to Lowe’s shooting of Harvey, we conclude that defendants are entitled to summary
    judgment.
    -21-
    Harvey v. Campbell County
    No. 09-5041
    D. State-Law Claim
    The parties have not—either in the district court or in their appellate briefing—separately
    addressed the factual support for plaintiffs’ state-law claim for negligence. In their motion for
    summary judgment, defendants asked for summary judgment on plaintiffs’ § 1983 claim and asked
    the court to decline to exercise continuing supplemental jurisdiction over the state-law claim under
    28 U.S.C. § 1367. The district court denied both requests. Hence, while we reverse the denial of
    defendants’ motion for summary judgment, no question has been presented regarding the state-law
    claim and we express no opinion on its merits.
    IV. CONCLUSION
    This action stems from a tragic loss of life, caused by a sheriff’s deputy’s apparent misuse
    of power. Despite our sympathies for the family members of the decedent, however, we hold, for
    the reasons set forth above, that plaintiffs have not adduced sufficient evidence to justify further
    proceedings on their claim that defendants are liable under a failure-to-train theory. Accordingly,
    the district court’s interlocutory order denying defendants’ motion for summary judgment is
    REVERSED. The matter is REMANDED to the district court for entry of judgment in favor of
    defendants on plaintiffs’ § 1983 failure-to-train claim and for further proceedings as appropriate on
    plaintiffs’ state-law claim.
    -22-
    Harvey v. Campbell County
    No. 09-5041
    MARTHA CRAIG DAUGHTREY, Circuit Judge, concurring in part and
    dissenting in part. Quoting Celotex Corp. v. Catrett, 
    477 U.S. 317
    (1986), the majority
    recognizes:
    A party seeking summary judgment always bears the initial responsibility of
    informing the district court of the basis for its motion, and identifying those
    portions of ‘the pleadings, depositions, answers to interrogatories, and
    admissions on file, together with affidavits, if any,’ which it believes
    demonstrate the absence of a genuine issue of material fact.”
    
    Id. at 323
    (emphasis added). The movant may discharge that duty by showing “an
    absence of evidence to support the nonmoving party’s case.” 
    Id. at 325.
    The nonmoving
    party must then “go beyond the pleadings and by [its] own affidavits, or by the depositions,
    answers to interrogatories, and admissions on file, designate specific facts showing that
    there is a genuine issue for trial.” 
    Id. at 324
    (citation and internal quotation marks omitted).
    The defendants in this case did not meet their initial burden of showing an absence of
    evidence supporting the plaintiff’s claims. And, in any event, the plaintiffs identified
    information that, when viewed in the light most favorable to the non-movants, clearly
    highlights genuine issues of material fact for trial. Because the district court denied the
    defendants’ motion for summary judgment due to the existence of such factual disputes,
    I believe that we are without jurisdiction at this time to rule upon the plaintiffs’ failure-to-train
    claim. See Johnson v. Jones, 
    515 U.S. 304
    (1995). I respectfully dissent from that portion
    of the majority opinion that concludes to the contrary.
    -23-
    Harvey v. Campbell County
    No. 09-5041
    To buttress its decision in this matter, the majority asserts that the plaintiffs “have
    not identified any particular deficiency in [Lowe’s] training,” but have instead, in order to
    establish that such training was inadequate, relied only upon the absence of facts in the
    record regarding the training Lowe received. Maj. Op. at 15. To require the plaintiffs to do
    more in this case would, however, paint the litigants into a corner from which there is no
    logical escape. The plaintiffs were not involved in the “training” given to Lowe, and they
    thus have no first-hand knowledge of the efforts undertaken by the defendants. Instead,
    by necessity, they must rely upon the information provided by the individuals and entities
    familiar with the instruction offered. To press upon the plaintiffs the onus of establishing
    the deficiencies in the instruction given to Lowe when the defendants failed to divulge the
    content of that instruction is not only illogical but manifestly unjust.
    What information then did the defendants deign to divulge during discovery? The
    record before us on appeal contains only the following tidbits:
    •      Lowe had served as a Campbell Country sheriff’s deputy for only six months
    at the time he killed Harvey.
    •      Prior to his service with the Campbell County’s Sheriff’s Department, Lowe
    was a reserve police officer in LaFollette, a small Tennessee community.2
    2
    According to the most recent edition of the Tennessee Bluebook, LaFollette had a population
    of 7,977 in 2009.              See Tennessee Blue Book (2009-2010), available at
    http://state.tn.us/sos/bluebook/.
    -24-
    Harvey v. Campbell County
    No. 09-5041
    •     Before his stint with the LaFollette Police Department, Lowe served for 16
    months as a school security officer and patrol officer in Union County
    (Tennessee) and for approximately four additional years as a school security
    officer in another jurisdiction.
    •     Lowe completed a seven-week law-enforcement course three years prior to
    killing Harvey.
    •     Lowe received 40 hours of in-service training in 2004 and, presumably, in
    2005, even though no information was provided as to the content of that
    training.
    •     Lowe’s personnel record indicates only that he received “training in the
    constitutional application of force by a law enforcement officer.” Again,
    however, the record gives no indication about the content of that “training.”
    •     Defendants McClellan and Scott stated, without further elaboration, in
    identical affidavits -- identical even in misspellings and typographical errors
    contained therein -- that Lowe was “trained by the Campbell County Sheriff’s
    Department in [the] use of force.” McClellan and Scott did not, however,
    indicate whether they had been personally involved in training Lowe.
    -25-
    Harvey v. Campbell County
    No. 09-5041
    •      When hired by the sheriff’s department, Lowe received a 340-page policies-
    and-procedures manual, a manual that discussed “deadly force” in little more
    than one page and that focused more on procedures than on actual training.
    •      No one individual actually ensured that Lowe understood the intricacies of
    the department’s deadly-force policies. Instead, Lowe’s personnel file merely
    included a form that Lowe signed indicating that he had read and understood
    the manual and that his supervisor had been available to answer any
    questions he may have had.
    The defendants’ bald assertions that Lowe was certified as a law enforcement
    officer and that he himself had indicated that he had read and understood a manual
    provided to him do not, in the absence of any mention of exactly what standards were
    required for certification, negate any element of the plaintiffs’ case.         Moreover, the
    information before the district court went further and actually validated the plaintiffs’ claims
    by showing both that the 340-page manual was actually what it purported to be – a mere
    explanation of departmental policies, and that no county official was able to testify to the
    actual “training” that Lowe received. Viewing this information in the light most favorable
    to the plaintiffs, I do not believe we can legitimately dispute that the plaintiffs have
    highlighted a genuine factual issue regarding the adequacy of the defendant county’s
    training program.
    -26-
    Harvey v. Campbell County
    No. 09-5041
    Unlike the majority, I also believe that the plaintiffs have satisfied their burden of
    proposing a nexus between the alleged lack of training and the shooting and killing of
    Ramsey Robert Harvey. It is true, as stated by the majority, that “[w]hat specifically
    transpired between Lowe and Harvey immediately before the fatal shooting is unknown.”
    Maj. Op. at 21. It is equally as true, however, that we, as a reviewing court, are not
    required to know with certitude what precipitated the senseless killing. Instead, we are
    asked at this stage of the litigation only whether the information contained in the record
    raises the possibility that Lowe, a person who has to-date successfully eluded process
    servers, killed an unarmed man whom he stopped during the course of his police duties,
    and whether that killing could be attributable to a lack of proper training -- a deficiency
    evidenced by the fact that no individual has yet detailed the nature of any training Lowe
    received. In my view, the answer to those questions is an unqualified “yes.” I thus firmly
    believe that the plaintiffs have established genuine issues of material fact regarding the
    first and third elements of their cause of action as set forth in our prior decision in Plinton
    v. County of Summit, 
    540 F.3d 459
    , 464 (6th Cir. 2008).
    The remaining element of a failure-to-train claim – whether the inadequate training
    can be traced to the county’s deliberate indifference – also does not present an
    insurmountable hurdle for the plaintiffs at the summary judgment stage of these
    proceedings. It is indeed true that proof of “[a] pattern of similar constitutional violations
    by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for
    -27-
    Harvey v. Campbell County
    No. 09-5041
    purposes of failure to train.” Connick v. Thompson, 563 U.S. ___, 
    2011 WL 1119022
    , at
    *8 (Mar. 29, 2011) (citing Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 
    520 U.S. 397
    , 409
    (1997)). However, as the Supreme Court recognized in Connick:
    In Canton [v. Harris, 
    489 U.S. 378
    (1989)], the Court left open the
    possibility that, “in a narrow range of circumstances,” a pattern of similar
    violations might not be necessary to show deliberate indifference. Bryan
    
    Cty,, supra, at 409
    , 
    117 S. Ct. 1382
    . The Court posed the hypothetical
    example of a city that arms its police force with firearms and deploys the
    armed officers into the public to capture fleeing felons without training the
    officers in the constitutional limitation on the use of deadly force. 
    Canton, supra, at 390
    , n. 10, 
    109 S. Ct. 1197
    . Given the known frequency with which
    police attempt to arrest fleeing felons and the “predictability that an officer
    lacking specific tools to handle that situation will violate citizens’ rights,” the
    Court theorized that a city’s decision not to train the officers about
    constitutional limits on the use of deadly force could reflect the city’s
    deliberate indifference to the “highly predictable consequence,” namely,
    violations of constitutional rights. Bryan 
    Cty., supra, at 409
    , 
    117 S. Ct. 1382
    .
    The Court sought not to foreclose the possibility, however rare, that the
    unconstitutional consequences of failing to train could be so patently obvious
    that a city could be liable under § 1983 without proof of a pre-existing pattern
    of violations.
    
    Id. Although the
    Court in Connick distinguished the situation before it from the
    hypothetical situation posed in Canton, the majority opinion in Connick did speak
    forebodingly about the issue now facing us. The Court stated:
    There is no reason to assume that police academy applicants are familiar
    with the constitutional constraints on the use of deadly force. And, in the
    absence of training, there is no way for novice officers to obtain the legal
    -28-
    Harvey v. Campbell County
    No. 09-5041
    knowledge they require. Under those circumstances there is an obvious
    need for some form of training.
    
    Id. (emphasis added).
    The majority opinion in this case accuses the district court of misapplying the
    standards governing summary-judgment practice in the federal courts. See Maj. Op. at
    2. As I read the record in this matter, however, it is actually the majority opinion that
    misapplies settled summary-judgment law. That opinion bases its conclusion that the
    plaintiffs did not establish the deliberate indifference necessary to support a failure-to-train
    cause of action on its understanding that the “[p]laintiffs have offered no evidence to refute
    defendants’ sworn statements that Lowe received training in the constitutional use of force
    through his POST certification, the provision of departmental procedures, and from the
    Campbell County Sheriff’s Department.” Maj. Op. at 19. Of course, the plaintiffs have no
    basis for disputing that Lowe received POST certification or that he was provided a
    departmental policies-and-procedures manual by the Campbell County Sheriff’s
    Department. What the plaintiffs alleged in this suit, however, is that the information
    provided to Lowe was insufficient to apprise him of the limits of the use of deadly force in
    confrontations with unarmed citizens. In response to this claim, it is the defendants who
    have failed to offer any evidence whatsoever regarding the content of the deadly-force
    training that Lowe received.
    -29-
    Harvey v. Campbell County
    No. 09-5041
    At the summary judgment stage of the proceedings, it is incumbent upon the non-
    moving party not to establish conclusively the validity of the assertions made in its
    complaint but, rather, merely to raise a genuine issue of fact regarding those assertions.
    Once such an issue has been identified, our procedures call for resolution of factual
    disputes to be made by a jury empaneled for that purpose. Because the district court in
    this matter recognized the presence of genuine issues of material fact regarding the
    establishment of the elements of a failure-to-train claim, it denied the defendants’ motion
    for summary judgment. I am convinced the district court was correct in doing so and
    therefore believe that we do not have jurisdiction over this appeal at this time. I respectfully
    dissent from the majority’s ruling to the contrary.
    -30-
    

Document Info

Docket Number: 09-5041

Citation Numbers: 453 F. App'x 557

Judges: Daughtrey, Sutton, McKeague

Filed Date: 5/10/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024

Authorities (23)

rossie-marie-miller-personal-representative-of-the-estate-of-john-king , 408 F.3d 803 ( 2005 )

Connick v. Thompson , 131 S. Ct. 1350 ( 2011 )

kevin-l-shehee-v-mark-h-luttrell-individually-jonathan-c-miner , 199 F.3d 295 ( 1999 )

City of Canton v. Harris , 109 S. Ct. 1197 ( 1989 )

Board of the County Commissioners of Bryan County v. Brown , 117 S. Ct. 1382 ( 1997 )

Pearson v. Callahan , 129 S. Ct. 808 ( 2009 )

Gallagher v. C.H. Robinson Worldwide, Inc. , 567 F.3d 263 ( 2009 )

Chappell v. City of Cleveland , 585 F.3d 901 ( 2009 )

Plinton v. County of Summit , 540 F.3d 459 ( 2008 )

Udine Ellis, Guardian for Lateasha Pendergrass v. Cleveland ... , 455 F.3d 690 ( 2006 )

Bates v. Dura Automotive Systems, Inc. , 625 F.3d 283 ( 2010 )

Celotex Corp. v. Catrett, Administratrix of the Estate of ... , 106 S. Ct. 2548 ( 1986 )

Graham v. Connor , 109 S. Ct. 1865 ( 1989 )

Scott v. Harris , 127 S. Ct. 1769 ( 2007 )

Phillips v. Roane County, Tenn. , 534 F.3d 531 ( 2008 )

Estate of Tori Carter Brenda Chambers v. City of Detroit, ... , 408 F.3d 305 ( 2005 )

william-thomas-gregory-plaintiff-appelleecross-appellant-04-6482-v , 444 F.3d 725 ( 2006 )

Leary v. Livingston County , 528 F.3d 438 ( 2008 )

William E. "Buster" Fisher v. Tom E. Harden, in His ... , 398 F.3d 837 ( 2005 )

Hunter v. Bryant , 112 S. Ct. 534 ( 1991 )

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