Audrey Malone v. City of Atlanta, Georgia

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12410
Non-Argument Calendar
____________________
AUDREY MALONE,
Plaintiff-Appellant,
versus
CITY OF ATLANTA, GEORGIA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-05248-TCB
____________________
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2 Opinion of the Court 21-12410
Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Audrey Malone, proceeding pro se, appeals the district
court’s grant of summary judgment to the City of Atlanta,
Georgia (“City”) in her 42 U.S.C. § 1983 action, and its decision to
assess costs against her. She argues that she established that the
City had an official policy or custom which led to constitutional
violations. Additionally, she argues that her case was not
frivolous, and, therefore, there was no basis for assessing costs
against her. After review, we affirm the district court’s summary
judgment decision. We dismiss Malone’s appeal of the costs
award for lack of jurisdiction.
I. Background
In 2019, Malone filed a pro se § 1983 action against the
City, alleging that the City’s failure to train its police officers
resulted in a violation of her Fourth and Fourteenth Amendment
rights, including an unconstitutional traffic stop, false arrest, false
imprisonment, an unlawful seizure of the vehicle and personal
items, and deliberate indifference to her serious medical needs. In
support of her claim, she asserted that the City’s policies and
standard operating procedures (“SOP”) regarding searches and
seizures was unclear, and that the City had a practice of deploying
poorly trained police officers.
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21-12410 Opinion of the Court 3
Evidence produced during discovery established that, in
2017, former Atlanta Police Officer Matthew Williams pulled over
Malone, a Lyft driver, and informed Malone that the license plate
on the vehicle she was driving had been reported stolen. When
Williams ran a check on Malone’s driver’s license, the search
revealed that she had an outstanding warrant in Georgia for
failure to appear. Malone denied ever receiving notice of the
court date that resulted in the failure to appear warrant. Williams
placed Malone under arrest, but after he handcuffed her, she
began to show signs of medical distress. An ambulance was
eventually called, Malone received treatment at Grady Memorial
Hospital, and she was then transferred to the Fulton County Jail
based on her outstanding warrant. The vehicle was impounded,
and Malone’s personal property seized.
Following the traffic stop and arrest, Malone filed a
complaint with the Atlanta Citizen Review Board (“ACRB”), and
the Atlanta Police Department’s Office of Professional Standards
(“OPS”) opened an investigation into the traffic stop. OPS found
inconsistencies in Williams’s statements concerning what
prompted him to stop Malone’s vehicle as there were no hits on
his cruiser’s license plate reader for Malone’s tag, and Williams
did not run the tag until six minutes into the stop. Additionally,
Williams failed to detect that, although Malone’s tag number
matched a stolen tag from North Carolina, her tag was issued by
the state of Georgia, and was not stolen. OPS recommended that
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4 Opinion of the Court 21-12410
Williams be dismissed, but he resigned after receiving the OPS
recommendation.
The City moved for summary judgment, and Malone filed
a cross-motion for partial summary judgment. In support of her
motion for partial summary judgment, Malone submitted, in
relevant part, 25 complaints from citizens to the ACRB alleging
similar instances of false arrest, unlawful traffic stops, and failure
to provide timely and adequate medical assistance by other APD
officers between 2011 and 2018. She asserted that those
complaints established that APD had an official policy or custom
of deploying untrained police officers.1
The district court granted the City’s motion for summary
judgment, concluding, in relevant part that, even if Malone could
show a deprivation of a constitutional right, she failed to show the
City was on notice of any inadequate training policies or that the
City acted with deliberate indifference. The district court denied
Malone’s motion for partial summary judgment. In the final
judgment, the district court ordered “that the plaintiff take
nothing; [and] that the defendant recover its costs of this action.”
However, the City has not yet filed a bill of costs in the district
1
Several months after the City filed its response in opposition to Malone’s
motion for partial summary judgment, Malone filed a proposed amended
motion for summary judgment. The district court ultimately denied this
motion as moot.
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21-12410 Opinion of the Court 5
court, and no formal taxation of costs has been entered against
Malone. This appeal followed.
II. Discussion
Malone argues that the district court erred in granting
summary judgment because she demonstrated that the City failed
to provide unambiguous and proper training policies on “the
constitutional limitations on false imprisonment, false arrest, and
when to call for medical [assistance],” and that the need for such
training was obvious as evidenced by the 25 citizen complaints
she submitted that were sustained by the ACRB. Additionally,
she argues that the district court erred in (1) denying as moot her
motion to amend her motion for partial summary judgment and
in not considering the new evidence she submitted with that
motion, 2 and (2) failing to address her failure to call for medical
attention claim. Finally, she argues that the district court abused
its discretion in assessing costs against her.3
2
The new evidence Malone submitted included new SOPs concerning traffic
stops and arrests issued by APD in 2020 as a result of litigation in Calhoun v.
Pennington, Case No. 1:09-cv-03286-TCB, Doc. 434 (N.D. Ga. 2018), which
she maintains demonstrates the City’s awareness of inadequate training.
3
Federal Rule of Civil Procedure 54(d)(1) provides that, “[u]nless a federal
statute, these rules, or a court order provides otherwise, costs—other than
attorney’s fees—should be allowed to the prevailing party.” We lack
jurisdiction to review the award of costs because “[w]hile the district court
has announced its intention to award costs to [the City], it has yet to fix the
amount.” Mekdeci ex rel. Mekdeci v. Merrel l Nat’l Lab’ys, 711 F.2d 1510,
1523 (11th Cir. 1983). Thus, the costs order is not final and appealable. Id.;
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6 Opinion of the Court 21-12410
We review the grant of summary judgment de novo,
viewing the record and drawing all reasonable inferences in favor
of the nonmoving party “to the extent supportable by the
record.” Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir.
2009) (emphasis and quotation omitted). Summary judgment is
appropriate if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue of material
fact exists when the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Quigg v. Thomas
Cnty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016) (alteration
adopted) (quotation omitted). “Once the movant submits a
properly supported motion for summary judgment, the burden
shifts to the nonmoving party to show that specific facts exist that
raise a genuine issue for trial. If the nonmoving party presents
evidence that is merely colorable or not significantly probative,
summary judgment is appropriate.” Boyle v. City of Pell City,
866 F.3d 1280, 1288 (11th Cir. 2017) (quotations and internal
citations omitted). “We may affirm for any reason supported by
the record, even if not relied upon by the district court.” Hill v.
Emp. Benefits Admin. Comm. of Mueller Grp. LLC, 971 F.3d
1321, 1325 (11th Cir. 2020) (quotation omitted).
see also Morillo-Cedron v. Dist. Dir. for the U.S. Citizenship & Immigr.
Servs., 452 F.3d 1254, 1256 (11th Cir. 2006) (same). Accordingly, we dismiss
Malone’s claim as to this issue.
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21-12410 Opinion of the Court 7
A municipality is liable under § 1983 if the plaintiff shows
that: (1) her constitutional rights were violated; (2) the
municipality had a custom or policy indicating deliberate
indifference to the right; and (3) the policy or custom caused the
violation. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.
2004). “[M]unicipal liability . . . may be based on a claim of
inadequate training ‘where a municipality’s failure to train its
employees in a relevant respect evidences a “deliberate
indifference” to the rights of its inhabitants such that the failure to
train can be properly thought of as a city “policy or custom” that
is actionable under § 1983.’” Sewell v. Town of Lake Hamilton,
117 F.3d 488, 489 (11th Cir. 1997) (alteration adopted) (quoting
City of Canton v. Harris, 489 U.S. 378, 389 (1989)). A
“municipality cannot be held liable solely because it employs a
tortfeasor—or, in other words, a municipality cannot be held
liable under § 1983 on a respondeat superior theory.” Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (emphasis in
original). Additionally, “[a] municipality’s culpability for a
deprivation of rights is at its most tenuous where a claim turns on
a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011).
“[D]eliberate indifference is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or
obvious consequence of his action.” Id. (quotation omitted).
Thus, the failure to train must “reflect[] a ‘deliberate’ or
‘conscious’ choice by a municipality.” Canton, 489 U.S. at 389.
“To establish a ‘deliberate or conscious choice’ or such ‘deliberate
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8 Opinion of the Court 21-12410
indifference,’ a plaintiff must present some evidence that the
municipality knew of a need to train and/or supervise in a
particular area and the municipality made a deliberate choice not
to take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350
(11th Cir. 1998).
“A pattern of similar constitutional violations by
untrained employees is ordinarily necessary to demonstrate
deliberate indifference for purposes of failure to train.” Connick,
563 U.S. at 62 (quotation omitted). “Policymakers’ continued
adherence to an approach that they know or should know has
failed to prevent tortious conduct by employees may establish the
conscious disregard for the consequences of their action—the
deliberate indifference—necessary to trigger municipal liability.”
Id. (quotation omitted).
However, “[t]hat a particular officer may be
unsatisfactorily trained will not alone suffice to fasten liability on
the city, for the officer’s shortcomings may have resulted from
factors other than a faulty training program.” Canton, 489 U.S. at390–91. “Neither will it suffice to prove that an injury or accident
could have been avoided if an officer had had better or more
training, sufficient to equip him to avoid the particular injury-
causing conduct.” Id. at 391.
Malone asserted in her motion for partial summary
judgment that the City “promulgat[ed] . . . an official policy or
custom that deploys untrained police officers.” She argued that
the 25 ACRB complaints she submitted for incidents between
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21-12410 Opinion of the Court 9
2011 and 2018, established that the City was on notice that its
training in the areas of traffic stops, arrests, and obtaining medical
attention was inadequate. These 25 sustained complaints by the
ACRB were not sufficient to establish that APD had a policy or
custom of undertraining its officers for purposes of § 1983 liability.
See Canton, 489 U.S. at 390–91 (“That a particular officer may be
unsatisfactorily trained will not alone suffice to fasten liability on
the city, for the officer’s shortcomings may have resulted from
factors other than a faulty training program.”). Malone has not
explained why the City’s training policies were inadequate. At
best, these 25 incidents reflect isolated acts over an eight-year
period by individual officers, which “says little about the training
program or the legal basis for holding the city liable.” Id. at 391;
see also Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288,
1293 (11th Cir. 2009) (“In resolving the issue of the City’s liability,
the focus must be on the adequacy of the training programs in
relation to the tasks the particular officers must perform, and not
merely on the training deficiencies for a particular officer.”
(quotation omitted)).
Moreover, even assuming those complaints could establish
a pattern for purposes of § 1983 liability, Malone failed to present
any evidence tending to demonstrate that the City “deliberate[ly]
cho[se] not to take any action” when it became aware of issues
with its training, as the record is devoid of information
concerning what action the City took after receiving the ACRB
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10 Opinion of the Court 21-12410
complaints. 4 Gold, 151 F.3d at 1350; see also Am. Fed’n of Lab.
& Cong. of Indus. Org. v. City of Miami, Fla., 637 F.3d 1178, 1189
(11th Cir. 2011) (holding summary judgment was appropriate
where evidence may have put the City on notice of inadequate
training but there was no evidence produced that the
municipality made a choice not to take any action).
Accordingly, the district court properly entered summary
judgment because Malone failed to provide sufficient evidence to
create a genuine issue of fact concerning the City’s § 1983 liability
under a failure-to-train theory.
AFFIRMED IN PART and DISMISSED IN PART.
4
Malone’s proposed amended motion for summary judgment similarly did
not demonstrate that the City was on notice of any alleged inadequacies in
its training of officers or, assuming that it was on notice of issues with
training, that it made a deliberate choice not to take any action. Accordingly,
we cannot say that the district court abused its discretion in denying her
motion to amend the motion for partial summary judgment as moot.
Furthermore, to the extent that she sought to raise additional claims in her
proposed amended motion, summary judgment briefs may not be used to
amend a complaint. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312,
1315 (11th Cir. 2004).