Timothy Holmes v. Daniel Billings

Filing

Opinion issued by court as to Appellant Timothy T. Holmes. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-14712
Non-Argument Calendar
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D.C. Docket No. 2:15-cv-01383-RDP

TIMOTHY T. HOLMES,
Plaintiff-Appellant,
versus
MIKE HALE,
Jefferson County Sheriff Department,
Defendant,
OFFICER DANIEL BILLINGS,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
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(June 28, 2017)

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Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Timothy Holmes brought 42 U.S.C. § 1983 and Alabama state law claims
against a Jefferson County, Alabama sheriff and deputy sheriff. The district court
dismissed his claims based on the officers’ immunity. Proceeding pro se, Holmes
appeals.1
I.
In reviewing the district court’s judgment, we accept as true the allegations
in Holmes’ amended complaint. See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189,
1194 (11th Cir. 2007). Around 3:00 p.m. on June 20, 2014, while in his home
office, Holmes heard a “knock[ ]” and “banging” on his front door. He was
wearing only pajama pants, and as he began to put on more clothes, he saw “some
people running through [his] backyard” and heard “the crashing of his back door.”
Frightened, he hid in his closet. He was not armed.
Two police officers pulled him out of his closet and threw him on the floor.
One of those officers “placed his boot on [Holmes’] neck and head as he grinded
[Holmes’] face into the carpet.” The other officer “twisted [Holmes’] arms to
place them in a handcuff.” A third officer, Deputy Daniel Billings, “placed his
knee on [Holmes’] back.”

1

Holmes was represented by counsel in the district court but is pro se on appeal.
2

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Holmes repeatedly asked the officers why he was being arrested, and they
told him to “shut up” and “further pressed down on him with their knee and foot,
and even ground his face into the floor.” They eventually told him that he was the
subject of a warrant, although they never showed him the warrant. The officers
dragged him out of his home, threw him into a patrol car, and took him to the
Jefferson County police station.
At the police station Holmes lost consciousness. After he regained
consciousness, his cellmates told him that he had been dragged into the cell.
Holmes twice asked for medical attention, but both an officer and a nurse rejected
his requests. An hour later, he was released. Although he asked for a copy of the
arrest warrant or incident report, he received neither.
Holmes sued Sheriff Mike Hale and Deputy Billings. 2 Against Hale, he
asserted a § 1983 failure to supervise claim under the doctrine of respondeat
superior. Against Billings, he asserted a § 1983 Fourth Amendment excessive
force claim, as well as state law assault and battery claims. He sought
compensatory damages based on “the neck operation, humiliation, and shame” that
resulted from the officers’ conduct. Billings and Hale each moved to dismiss
Holmes’ amended complaint, based on various immunities, and the district court
granted their motions.
2

Holmes also sued two “fictitious officers,” but the district court dismissed those claims.
He does not challenge that dismissal.
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II.
We construe pro se briefs liberally. See Finch v. City of Vernon, 877 F.2d
1497, 1504 (11th Cir. 1989). Holmes contends that the district court erred by
dismissing (1) his § 1983 claims against the officers in their official capacities
based on sovereign immunity, (2) his § 1983 claims against the officers in their
individual capacities based on qualified immunity, and (3) his state law claims
against Billings based on absolute immunity under Alabama law. Whether the
officers are entitled to sovereign immunity, qualified immunity, or absolute
immunity are all questions of law that we review de novo. See Melton v. Abston,
841 F.3d 1207, 1220 (11th Cir. 2016); Tinney v. Shores, 77 F.3d 378, 383 (11th
Cir. 1996).
A.
Holmes first contends that the district court erred in dismissing his § 1983
claims against Hale and Billings in their official capacities. “Section 1983
provides a federal forum to remedy many deprivations of civil liberties, but it does
not provide a federal forum for litigants who seek a remedy against a State for
alleged deprivations of civil liberties.” Will v. Mich. Dep’t of State Police, 491
U.S. 58, 66, 109 S. Ct. 2304, 2309 (1989). “The Eleventh Amendment bars such
suits unless the State has waived its immunity, or unless Congress has exercised its
undoubted power under § 5 of the Fourteenth Amendment to override that

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immunity.” Id. (citations omitted). Alabama has not waived its Eleventh
Amendment immunity in § 1983 cases, nor has Congress abrogated it. Carr v. City
of Florence, 916 F.2d 1521, 1525 (11th Cir. 1990).
Suits against state officials in their official capacities are treated as suits
against the State. Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 361 (1991). In
Alabama, sheriffs and deputy sheriffs — such as Hale and Billings — are state
officials and, as a result, are immune to money damages claims brought against
them in their official capacities. See Carr, 916 F.2d at 1527. Because the Eleventh
Amendment bars Holmes’ § 1983 claims against them in their official capacities,
the district court did not err in dismissing those claims.
B.
Holmes next contends that the district court erred by concluding that Hale
and Billings were entitled to qualified immunity and dismissing his § 1983 claims
against them in their individual capacities. To be entitled to qualified immunity,
“the government official must first prove that he was acting within the scope of his
discretionary authority when the allegedly wrongful acts occurred.” Mathews v.
Crosby, 480 F.3d 1265, 1269 (11th Cir. 2007). Holmes does not appear to dispute
that Hale was acting within his discretionary authority in hiring and training
deputies, and he concedes that Billings was acting within his discretionary
authority when he arrested Holmes. As a result, the burden shifts to Holmes to

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show that qualified immunity is not appropriate. See Holloman ex rel. Holloman
v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004). To do that, he must allege facts
showing that Hale and Billings violated a constitutional right that was clearly
established at the time of the alleged violation. See id.; Lee v. Ferraro, 284 F.3d
1188, 1194–95 (11th Cir. 2002) (“Qualified immunity offers complete protection
for government officials sued in their individual capacities as long as their conduct
violates no clearly established statutory or constitutional rights of which a
reasonable person would have known.”) (quotation marks omitted). We first
address Holmes’ failure to supervise claim against Hale before turning to his
excessive force claim against Billings.
1.
Holmes contends that Sheriff Hale is liable for the actions of “the three
[d]eputies” who used excessive force because he hired and trained them.
“Government officials may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556
U.S. 662, 676, 129 S. Ct. 1937, 1948 (2009); see also Keith v. DeKalb County, 749
F.3d 1034, 1047 (11th Cir. 2014) (“[I]t is well established in this Circuit that
supervisory officials are not liable under § 1983 for the unconstitutional acts of
their subordinates on the basis of respondeat superior or vicarious liability.”).
“Instead, to hold a supervisor liable a plaintiff must show that the supervisor either

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directly participated in the unconstitutional conduct or that a causal connection
exists between the supervisor’s actions and the alleged constitutional violation.”
Keith, 749 F.3d at 1047–48.
Holmes alleged only that Hale should be liable “under respondeat superior”
for failing to supervise the three officers who allegedly entered his home without a
warrant and used excessive force in arresting him. Because Holmes’ failure to
supervise claim against Hale rests only on the basis of respondeat superior, and
because “supervisory officials are not liable under § 1983 . . . on the basis of
respondeat superior,” id. at 1047, Holmes’ failure to supervise claim against Hale
fails. The district court did not err in dismissing that claim.
2.
Holmes next contends that Billings was “plainly incompetent” in using
excessive force to arrest him, and that it is “well established that officers may not
use excessive force.” The Fourth Amendment encompasses the right to be free
from the use of excessive force during an arrest. Graham v. Connor, 490 U.S. 386,
394–95, 109 S. Ct. 1865, 1871 (1989). We analyze an excessive force claim under
the “objective reasonableness” standard. McCullough v. Antolini, 559 F.3d 1201,
1205 (11th Cir. 2009). This Court has recognized that the typical arrest may
involve some force and injury and that “the use of force is an expected, necessary
part of a law enforcement officer’s task of subduing and securing individuals

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suspected of committing crimes.” Lee, 284 F.3d at 1200. Because police officers
are often required to make split-second judgments “in circumstances that are tense,
uncertain, and rapidly evolving,” the “reasonableness of a particular use of force
must be judged from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396–97, 109 S. Ct.
at 1872. In other words, reasonableness must be evaluated under the totality of the
circumstances. Id. at 396, 109 S. Ct. at 1872.
As this Court explained in Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir.
2000), “the application of de minimis force, without more, will not support a claim
for excessive force in violation of the Fourth Amendment.” In that case, an officer
grabbed an arrestee, shoved him against a car, kneed him in the back, pushed his
head against the car, and searched his groin area in an uncomfortable manner. Id.
at 1255. The arrestee “suffered bruising to his forehead, chests, and wrists.” Id.
We held that those facts showed only a “minimal amount of force and injury, . . .
[which] will not defeat an officer’s qualified immunity in an excessive force case.”
Id. at 1258. We also noted that those facts “sound little different from the minimal
amount of force and injury involved in a typical arrest.” Id. at 1258 n.4.
Holmes alleged that Billings, who “weighs between 250–280 pounds, placed
his knee on [his] back.” But accepting that as true, it is not enough to state a claim
for excessive force. Billings found Holmes hiding in a closet, where he could have

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been lying in wait with a weapon. The facts giving rise to Holmes’ claim — that
Billings placed his knee on Holmes’ back — sound little different from the facts of
the Nolin decision, which “sound[ed] little different from the minimal amount of
force and injury involved in a typical arrest.” Id. And the fact that Holmes was
not armed when the officers pulled him out of the closet does not change the result.
The officers did not know whether he was armed or unarmed, and this Court must
judge the reasonableness of Billings’ conduct “from the perspective of a reasonable
officer on the scene,” not with the benefit of hindsight. Graham, 490 U.S. at 396–
97, 109 S. Ct. at 1872.
Holmes also alleged that he suffered a neck injury from the arrest that
“resulted in a neck surgery.” But he alleged that another officer, not Billings,
stepped on his neck, and as noted earlier, that officer is not a party in this case.
Although Holmes asserts that Billings’ “action in concert” with that officer —
“excessive force being applied to [Holmes’] back and his twisted neck
simultaneously” — caused his injury, he does not provide any factual content to
support that conclusory assertion. See Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949
(“[T]he pleading standard Rule 8 [of the Federal Rules of Civil Procedure]
announces does not require detailed factual allegations, but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.”) (quotation
marks omitted). And based on that, we cannot “draw the reasonable inference that

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[Billings] is liable for the misconduct” that allegedly resulted in Holmes’ neck
injury. See id. That is particularly true given that Billings is entitled to a separate
analysis of the applicability of the qualified immunity doctrine to his actions. See
Corey Airport Servs., Inc. v. Decosta, 587 F.3d 1280, 1288 n.6 (11th Cir. 2009)
(“In the qualified immunity analysis, we generally compare the acts of each
defendant to analogous case law to determine whether each defendant has violated
a clearly established constitutional right.”).
Because Holmes failed to allege facts showing that Billings used excessive
force in arresting him, he has not alleged facts showing a violation of his Fourth
Amendment rights. As a result, Billings is entitled to qualified immunity from
Holmes’ excessive force claim against him in his individual capacity.
C.
Holmes also contends that the district court erred in dismissing his state law
claims against Billings, arguing that Alabama’s doctrine of absolute immunity does
not excuse an officer from personal liability for a tort that he commits.3
Article I, § 14 of the Alabama Constitution provides that “the State of
Alabama shall never be made a defendant in any court of law or equity.” That
section “wholly withdraws from the legislature, or any other state authority, the
3

The district court stated that, “to the extent that [Holmes] asserts state-law claims for
money damages against Sheriff Hale, those claims cannot stand because Sheriff Hale is
absolutely immune to them under the Alabama Constitution.” Holmes’ amended complaint does
not appear to allege any state law violations against Hale. In any event, Holmes does not
challenge that part of the district court’s judgment, so we do not address it.
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power to consent to an action against the [S]tate.” Parker v. Amerson, 519 So. 2d
442, 445 (Ala. 1987). “Under Alabama law, sheriffs and deputy sheriffs, in their
official capacities and individually, are absolutely immune from suit when the
action is, in effect, one against the [S]tate.” Tinney, 77 F.3d at 383. “Suits against
[sheriffs] for actions taken in the line and scope of their employment inherently
constitute actions against the [S]tate, and such actions are prohibited by § 14.” Ex
parte Shelley, 53 So. 3d 887, 895 (Ala. 2009). “[D]eputy sheriffs are immune from
suit to the same extent as sheriffs.” Id. at 896.
Holmes alleged that Billings, in arresting him, “acted with extreme
indifference toward [his] wellbeing,” which amounted to assault and battery under
Alabama law. But because a deputy sheriff’s duties include making arrests, see
Ala. Code § 15-10-1, Billings’ actions were “taken in the line and scope of [his]
employment,” Shelley, 53 So. 3d at 895. As a result, he is absolutely immune
from Holmes’ state law claims. The district court did not err in dismissing those
claims.
III.
Finally, Holmes contends that the district court erred in denying his request
for discovery. We review for abuse of discretion a district court’s discovery
rulings. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306
(11th Cir. 2011).

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“The defense of sovereign or qualified immunity protects government
officials not only from having to stand trial, but from having to bear the burdens
attendant to litigation, including pretrial discovery.” Blinco v. Green Tree
Servicing, LLC, 366 F.3d 1249, 1252 (11th Cir. 2004). As a result, immunity
questions “should be resolved at the earliest possible stage of a litigation,”
Anderson v. Creighton, 483 U.S. 635, 646 n.6, 107 S. Ct. 3034, 3042 n.6 (1987),
and “[u]ntil th[e] threshold immunity question is resolved, discovery should not be
allowed,” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982).
Hale and Billings each moved to dismiss Holmes’ complaint based on
sovereign, qualified, and absolute immunities. Because those doctrines protected
them from having to bear the burdens of litigation, including discovery, see Blinco,
366 F.3d at 1252; see, e.g., Ex parte Walker, 97 So. 3d 747, 753 (Ala. 2012), the
district court did not abuse its discretion in denying Holmes’ request for discovery
until the threshold question of immunity was resolved, see Harlow, 457 U.S. at
818, 102 S. Ct. at 2738.
AFFIRMED.

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