Humberto Pellegrino, et al v. Gerald Wengert, et al

Filing

Opinion issued by court as to Appellants Pedro Claveria and Humberto Pellegrino. 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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Date Filed: 08/09/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15372
Non-Argument Calendar
________________________
D.C. Docket No. 0:15-cv-60535-BB

HUMBERTO PELLEGRINO,
PEDRO CLAVERIA,
Plaintiffs-Appellants,
versus
GERALD WENGERT,
a deputy with the Broward Sheriff's Office,
DAVIS ACEVEDO,
a deputy with the Broward Sheriff's Office,
BROWARD COUNTY SHERIFF'S OFFICE,
Scott J. Israel, Sheriff in his official capacity,
LEONARD SMITH,
Defendants-Appellees,
STEPHEN ROBERTS,
a deputy with the Broward Sheriff's Office,
Defendant.

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________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 9, 2017)
Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit
Judges.
PER CURIAM:
Humberto Pellegrino and Pedro Claveria filed this action against Sheriff
Scott Israel, in his official capacity as Broward County Sheriff, 1 as well as against
certain deputies of the Sheriff’s Office. They assert claims for excessive force
under 42 U.S.C. § 1983 against the Sheriff’s Office and the deputies, and state law
claims against the deputies. The Sheriff’s Office moved for summary judgment as
to the claims against it, and the district court granted that motion and certified its
judgment as final under Federal Rule of Civil Procedure 54(b). This is the
plaintiffs’ appeal of the judgment in favor of the Sheriff’s Office itself.

1

The parties refer to the claims against Israel in his official capacity as claims against the
Sheriff’s Office, and we will also. See Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.
1991) (“In contrast to individual capacity suits, when an officer is sued under Section 1983 in his
or her official capacity, the suit is simply another way of pleading an action against an entity of
which an officer is an agent. Such suits against municipal officers are therefore, in actuality,
suits directly against the [local government body] that the officer represents.”) (quotation marks
and citations omitted).
2

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I.
In January 2014 Pellegrino and Claveria, who are “street artists,” trespassed
onto some property to spray paint train cars. 2 A security guard on neighboring
property spotted them and called the police. Three Sheriff’s Office deputies,
Gerald Wengert, Davis Acevedo, and Leonard Smith, arrived at the scene along
with Acevedo’s K-9 partner. After the deputies identified themselves as law
enforcement and told Pellegrino and Claveria to lie down on the ground, Claveria
climbed from underneath a train car, lay face-down with his arms out, and
surrendered. According to Pellegrino and Claveria, Acevedo’s K-9 partner then
attacked Claveria, biting his body for “three to four minutes.” Pellegrino also
obeyed the officers’ instructions and after he got down on the ground, Acevedo’s
K-9 partner turned his attention to Pellegrino, attacking him for “a few minutes.”
While the dog was attacking them, Pellegrino and Claveria heard the three officers
encouraging the dog to “get him” and to “eat, boy.”
II.
We review de novo the district court’s grant of summary judgment.
See Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). Under
Federal Rule of Civil Procedure 56, “[s]ummary judgment is appropriate if the
evidence before the court shows that there is no genuine issue as to any material
2

“At summary judgment we view the facts in the light most favorable to the nonmoving
party.” Crawford v. Carroll, 529 F.3d 961, 964 n.1 (11th Cir. 2008).
3

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fact and that the moving party is entitled to a judgment as a matter of law.” Haves
v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (quotation marks omitted).
The claims at issue in this appeal are against the Sheriff’s Office, which is
considered a municipal local government body that “cannot be held liable for the
actions of its employees under § 1983 based on a theory of respondeat superior.”
Griffin v. City of Opa-Locka, 261 F.3d 1295, 1307 (11th Cir. 2001). Instead,
“only deprivations undertaken pursuant to governmental custom or policy may
lead to the imposition of governmental liability.” Id. (quotation marks omitted).
And “an act performed pursuant to a custom that has not been formally approved
by an appropriate decisionmaker may fairly subject a municipality to liability on
the theory that the relevant practice is so widespread as to have the force of law.”
Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403, 117 S. Ct. 1382, 1388 (1997).
Custom can also take the form of a “policy of inaction” when the municipality has
notice that failing to discipline misconduct will cause constitutional violations, but
that inaction must be “the functional equivalent of a decision by the [municipality]
itself to violate the Constitution.” Connick v. Thompson, 563 U.S. 51, 61–62, 131
S. Ct. 1350, 1360 (2011) (quotation marks omitted). To establish the Sheriff’s
Office’s liability, the plaintiffs must show that it acted with deliberate indifference,
which is “a stringent standard of fault, requiring proof that a municipal actor

4

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disregarded a known or obvious consequence of his action.” Id. at 61, 131 S. Ct. at
1360 (quotation marks omitted).3
III.
The plaintiffs first contend that there was a genuine issue of material fact as
to whether the Sheriff’s Office was deliberately indifferent to their constitutional
rights to be free from excessive force because it did not discipline or terminate
Wengert before the alleged events giving rise to this case. The plaintiffs point to
the following evidence to support that contention: (1) Wengert had numerous
excessive force complaints filed against him before the plaintiffs were attacked, (2)
the Sheriff’s Office brought a self-generated excessive force investigation about an
unrelated incident involving Wengert, (3) the plaintiffs’ expert testified that
Wengert should have been fired or at least removed from the K-9 unit, and
(4) before the plaintiffs were attacked by Acevedo’s K-9 someone distributed
“community warning” flyers asserting that Wengert was “an aggressive and
abusive officer and under investigation.”
The plaintiffs presented evidence that five excessive force complaints had
been filed against Wengert and that the Sheriff’s Office had opened a self-

3

The Sheriff’s Office does not dispute, for purposes of this appeal, whether the facts
viewed in the light most favorable to the plaintiffs establish that Wengert, Acevedo, and Smith
violated the plaintiffs’ constitutional rights by using excessive force. We assume that there was
an underlying constitutional violation.
5

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generated investigation into another incident where he had used force.4 After
reviewing the evidence regarding four excessive force complaints, the Professional
Standards Committee concluded that Wengert was “exonerated,” which, according
to the Sheriff’s Office’s manual, that means that the “[a]lleged actions occurred,
but were lawful and proper.” For one complaint, the Committee concluded that it
was “unfounded,” which, according to the Sheriff’s Office’s manual, means that
the “[a]llegations are false or not supported by facts.” As for the self-generated
investigation, Major Angelo Cedeno of the Sheriff’s Office testified in his
deposition that it involved a claim of excessive force against Wengert but that the
investigation was still active and, as a result, Cedeno would not discuss the details
of it. 5
The plaintiffs do not take issue with the procedures used to reach those
conclusions. They do not contend that the Sheriff’s Office ignored or improperly
investigated those complaints. Instead, the plaintiffs are arguing that the
Committee’s findings of “unfounded” or “exonerated” were erroneous and that the

4

When the Sheriff’s Office receives an excessive force complaint, its internal affairs
department investigates and gathers evidence about the allegations. The internal affairs
department then gives that evidence to a Professional Standards Committee, which is a panel
composed of law enforcement and detention employees, union members, and civilians. The
Committee considers the evidence and decides under a preponderance standard whether it shows
that the officer used excessive force.
5

The plaintiffs also point to another occasion when Wengert allegedly used excessive
force, which internal affairs did not investigate. The citizen involved in that incident, however,
never filed a use of force complaint with internal affairs to prompt any investigation.
6

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Sheriff’s Office, having followed admittedly proper procedures for investigating
and resolving the complaints against Wengert, should have disregarded the
Committee’s findings and disciplined or fired Wengert anyway. They assert that
the Sheriff’s Office acted with deliberate indifference by failing to second guess
the Committee’s conclusions, even though no evidence showed that the Sheriff’s
Office should have known that the conclusions were erroneous.6
The excessive force complaints do not raise a genuine issue as to whether
the Sheriff’s Office’s failure to discipline Wengert was functionally equivalent to
deciding to violate the Constitution. See Connick, 563 U.S. at 61–62, 131 S. Ct. at
1360. The evidence showed that the internal affairs investigations and the
Committee’s actions in dealing with the excessive force complaints were
conducted in accordance with the Sheriff’s Office’s policies, which the plaintiffs
do not challenge. And the plaintiffs have failed to raise a genuine issue as to
whether the Sheriff’s Office knew or should have known that the Committee’s
conclusions were erroneous.7 As a result, the Sheriff’s Office’s decision to accept

6

The plaintiffs proffered an expert opinion along the same lines. Their expert concluded
that Wengert should have been fired or disciplined, but he based that conclusion on the premise
that the Sheriff’s Office should have rejected the Committee’s findings. Following undisputedly
proper procedures for investigating complaints then accepting the findings that result from those
procedures does not amount to deliberate indifference.
7

As evidence that the Committee’s conclusions were wrong, the plaintiffs point to
anonymously distributed flyers, which stated that Wengert was “known to beat up high school
students,” has had complaints filed against him, and has been sued for his aggressive behavior.
But it is undisputed that the Sheriff’s Office investigated the use of force complaints against
Wengert, including one involving a high school student. As we have already discussed, the
7

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the Committee’s conclusions that discipline was not warranted does not raise a
genuine issue of material fact showing that the Sheriff’s Office was deliberately
indifferent to the plaintiffs’ constitutional rights.8
IV.
The plaintiffs also contend that the Sheriff’s Office is liable because it had
an unofficial custom of allowing officers to use excessive force. See Brown v.
City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991) (“To prove § 1983
liability against a municipality based on custom, a plaintiff must establish a
widespread practice that, although not authorized by written law or express
municipal policy, is so permanent and well settled as to constitute a custom or
usage with the force of law.”) (quotation marks omitted). As evidence of that
custom they point to (1) the use of force complaints filed against Wengert and the
Sheriff’s Office’s decision to accept the Committee’s findings that discipline was

Committee concluded that the use of force complaints were “unfounded” or “exonerated” and
the Sheriff’s Office accepted those conclusions. It is far from deliberately indifferent for the
Sheriff’s Office to credit the Committee’s findings over the allegations in an anonymous flyer in
determining whether one of its officers should be disciplined or fired.
8

Even if the plaintiffs had shown that the Sheriff’s Office’s failure to discipline Wengert
demonstrated deliberate indifference, they still have not raised a genuine issue of material fact as
to causation. See City of Canton v. Harris, 489 U.S. 378, 391, 109 S. Ct. 1197, 1206 (1989)
(“For [municipal] liability to attach in this circumstance the identified deficiency . . . must be
closely related to the ultimate injury. Thus in the case at hand, [the plaintiff] must still prove that
the deficiency . . . actually caused the [constitutional violation].”). Wengert’s role in the
plaintiffs’ K-9 attack was one involving a failure to intervene, and it was Acevedo who handled
the dog that night. The plaintiffs offer no evidence showing that, had the Sheriff’s Office
disciplined Wengert for using excessive force, Acevedo would not have sicced his K-9 on the
plaintiffs or that Wengert would have intervened to stop him.
8

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not warranted, (2) four internal affairs complaints asserting excessive force based
on other officers’ K-9 use, (3) the fact that the Sheriff’s Office demoted an officer
after he raised concerns about a different agency’s use of excessive force, and
(4) their expert’s testimony that the Sheriff’s Office improperly failed to discipline
their officers for using excessive force.
The Sheriff’s Office’s decision to accept the Committee’s findings that the
complaints against Wengert did not warrant discipline is not evidence of a custom
of allowing officers to use excessive force. As we have already explained, the
internal affairs investigations and the Committee’s meetings were conducted
according to the Sheriff’s Office’s written policies and procedures, which the
plaintiffs concede are adequate.
As for the four K-9 excessive force complaints brought against other officers
at the Sheriff’s Office, Major Cedeno testified in his deposition that three of those
complaints underwent preliminary investigations to see if an internal affairs
investigation was warranted, which revealed that no misconduct had taken place.
The fourth complaint, after undergoing a preliminary investigation, was
investigated further and the Committee found that it was “unsustained.” Without
any evidence that those investigations were improperly carried out or that the
Sheriff’s Office knew that the Committee’s conclusion of “unsustained” was

9

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incorrect, those excessive force complaints do not raise a genuine issue as to a
custom of allowing officers to use excessive force.
The plaintiffs also point to evidence showing that the Sheriff’s Office
demoted Officer Jeffrey Kogan after he reported that another police department’s
officer had unnecessarily allowed a K-9 to attack a suspect. After he reported that
incident, Kogan told his supervisor that the Florida Department of Law
Enforcement had asked him to give a statement about it, and he was later
reclassified from homicide detective to beach patrol officer.9 That demotion might
be evidence that the Sheriff’s Office punishes officers who report another officer’s
misconduct,10 but it is not evidence that the Sheriff’s Office has a custom of
allowing its own officers to use excessive force.
The plaintiffs also point to their expert, who testified that the Sheriff’s
Office had an informal custom of allowing and ratifying officers’ use of excessive
force. The expert came to that conclusion based on (1) the Sheriff’s Office’s
decision to accept the Committee’s findings that Wengert and others should not be
disciplined after evaluating the evidence gathered from the investigations of
excessive force complaints, (2) Kogan’s demotion, and (3) the expert’s belief that a
9

It is unclear from the record how much time elapsed between Kogan notifying his
supervisor about the statement and his reassignment to beach patrol.
10

In his deposition, Acevedo testified that he did not know Kogan and had not heard
about the demotion. Smith, in his deposition, said that demoting Kogan could have sent a
subliminal message that the Sheriff’s Office did not want officers reporting another officer’s use
of excessive force.
10

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captain at the Sheriff’s Office had testified that he viewed a K-9 as a “weaponless”
device. 11
As we have already explained, in concluding that the Sheriff’s Office should
have disciplined Wengert, the expert relied on his opinion that the Sheriff’s Office
should not have trusted the Committee’s conclusions, should have independently
examined the excessive force allegations, and should have determined based on
that independent examination that Wengert was engaging in excessive force. But
no evidence supports the expert’s belief that the Sheriff’s Office had reason to
know that its written policies, having been properly followed, led to erroneous
results.
Likewise, the expert’s conclusion that Kogan’s demotion “create[d] a
delinquent police subculture of officers who believe they can do what they want to
do” was based on that demotion coupled with the Sheriff’s Office’s decision not to
discipline Wengert. But, again, the expert’s conclusion that Wengert should have
been disciplined was premised on an unsupported belief that the Sheriff’s Office

11

The district court concluded that the plaintiffs’ expert’s opinion — that the Sheriff’s
Office ratified its officers’ excessive force — went to an ultimate issue and did not raise a
genuine issue of material fact to overcome summary judgment. The plaintiffs argue that the
district court erred in relying on that basis to disregard their expert’s testimony. Because we
conclude that the expert’s testimony failed to raise a genuine issue of material fact, we need not
address that argument. See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001)
(noting that we may affirm the district court’s grant of summary judgment on any ground that
finds support in the record).
11

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should have second-guessed the Committee’s conclusions about the excessive
force complaints against Wengert.
The plaintiffs’ expert also relied on the deposition testimony of a captain
employed with the Sheriff’s Office. According to the expert, the captain testified
that he did not see a K-9 as a weapon, and the expert concluded that “set the tone”
in the Sheriff’s Office for the belief that using a K-9 was not a use of force. The
captain, however never testified that he believed a K-9 was not a weapon. Instead,
while reading from an accreditation report’s categorization of different uses of
force, he explained that a use of force falls within the “weaponless” category if the
force is used through a means not specifically listed as its own category. And
because use of a K-9 was not listed as a separate category, the captain stated that
for purposes of that report, the use of a K-9 would be categorized as a
“weaponless” use of force.
The captain was not asked, and there is no evidence showing, whether he
believed that the use of a K-9 could be a use of force. No evidence supported the
expert’s conclusion that the captain “set the tone” in the Sheriff’s Office that the
use of a K-9 was not a use of force. As a result, the expert’s testimony failed to
raise a genuine issue of material fact to overcome summary judgment. 12

12

The plaintiffs also contend that an adverse inference should be drawn from the fact that
Wengert invoked his Fifth Amendment right to remain silent in response to some questions
asked during his deposition. They argue that Wengert’s state of mind about whether he used
12

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The plaintiffs failed to raise a genuine issue of material fact as to their
claims against the Sheriff’s Office. 13 The district court did not err in granting
summary judgment to the Sheriff’s Office on those claims.
AFFIRMED.

excessive force “can only be learned from Wengert.” But Wengert’s subjective belief about
whether he used excessive force is irrelevant. See Johnson v. Breeden, 280 F.3d 1308 (“Fourth
Amendment claim[s] of use of excessive force against an arrestee are purely objective. They
turn solely on the objective reasonableness of the amount of force used in the circumstances,
regardless of the intent or other subjective state of mind of the defendant officer.”). For that
reason, the district court did not err in denying their request that it draw those adverse inferences.
13

The plaintiffs also contend that “the district court wrongfully ignored evidence of
thirty-seven excessive force . . . lawsuits against [the Sheriff’s Office] or its officers.” But they
never cited in their summary judgment briefing the evidence of those lawsuits, which was in the
record attached to a motion to compel. See Fed. R. Civ. P. 56(c)(3) (“[When addressing a
motion for summary judgment], [t]he court need consider only the cited materials . . . .”).
Because our review is de novo, we have considered the evidence, which consists only of a list of
the names of plaintiffs bringing those lawsuits and a notation that two of those actions resulted in
judgments for the plaintiffs. That evidence, a list of names and an indication that two plaintiffs
won favorable judgments, does not raise a genuine issue of material fact about whether the
Sheriff’s Office had a custom or policy of permitting officers to use excessive force.
13