Sanders v. City of Dothan et al

Filing 42

MEMORANDUM OPINION AND ORDER, granting 35 MOTION to Dismiss filed by John Powell and Count III against Defendant John Powell in his individual capacity is dismissed with prejudice; Nothing in this Memorandum Opinion and Order is intended to address any of Plaintiff's other pending claims. Signed by Hon. Chief Judge Mark E. Fuller on 9/17/08. (Attachments: # 1 appeals checklist)(vma, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION E D D IE IRA SANDERS, SR., as a d m in is tra to r of the estate of EDDIE IR A SANDERS, JR., deceased, ) ) ) ) PLAINTIFF, ) v. ) CASE NO. 1:07-cv-0008-MEF ) C IT Y OF DOTHAN, JOHN POWELL in ) (W O ) h is individual and official capacity as ) C h ie f of Police for the City of Dothan, ) M A M IE GRUBBS individually and in ) h er official capacity as Jail Administrator ) fo r the City of Dothan Jail, and Officer ) B a d g e No. 774, individually and officially, ) ) DEFEN DANTS. ) MEMORANDUM OPINION AND ORDER P l a i n tif f brought this case against the City of Dothan, its chief of police, its jail a d m in istra to r, and a police officer on behalf of a man who died because the police allegedly a rre ste d and jailed him without needed medical attention. This Court previously dismissed w ith o u t prejudice a claim against the chief of police and granted Plaintiff leave to amend the c o m p la in t. (Doc. # 31.) Following the amendment, the chief of police in Defendant John P o w ell's Partial Motion to Dismiss again moved this Court to dismiss Count III of Plaintiff's A m e n d e d Complaint. (Doc. # 35.) That motion is now under submission and ready for a ru lin g . For the reasons set forth in this Memorandum Opinion and Order, the motion is due to be GRANTED. -1-

J U R IS D IC T I O N AND VENUE T h i s Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§ 1 3 3 1 , 1346(a)(4), and 1367. Defendants have not argued that the Court lacks personal ju ris d ic tio n over them, and there is no dispute that venue is proper pursuant to 28 U.S.C. § 1 3 9 1 (b ). FACTUAL AND PROCEDURAL HISTORY T h e following factual account is taken from the allegations in the Amended C o m p la in t, as it must be for the purposes of this motion.2 At approximately 7:28 p.m. on A u g u s t 24, 2005, City of Dothan Police Officer Badge No. 744 ("the officer") ordered the d ec ed en t, Eddie Ira Sanders, Jr. ("Sanders"), to pull over the car he was driving. Sanders c o m p lie d with the order without incident, but at some time during the stop and subsequent a rre st he ingested an unknown quantity of cocaine. Sanders became unconscious before the o f f ic e r placed him in the back of the police car, but it is unknown whether the officer knew S an d ers ingested the drugs. The officer took Sanders to the City of Dothan Police Jail, where

Plaintiff attached two deposition excerpts to the Motion to Dismiss. (Doc. # 32 Exs. 1, 2.) Motions to dismiss test the sufficiency of the pleadings, and the court is not permitted to consider external evidence. See Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). Federal Rule of Civil Procedure 12(d) requires that, where matters outside of the pleadings are presented and not excluded by the court, the court must treat the motion as one for summary judgment. Here, the Amended Complaint incorporates the substance of the exhibits in the light most favorable to the Plaintiff. (Doc. # 32 ¶¶ 22, 25.) Therefore, the Court has exercised its discretion to exclude the deposition excerpts as matters outside the pleadings, see Fed. R. Civ. P. 12(d), and proceed to rule on the motion as one to dismiss. Powell's arguments based on the substance of the excerpts have likewise been disregarded to the extent they concern matters outside the pleadings. (Doc. # 35 at 5-6.) -2-

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h e was held without medical treatment until approximately 8:30 p.m.

He was then

tr a n s p o r te d to the Southeast Alabama Medical Center. Sanders never regained consciousness a n d died on August 30, 2005. O n January 3, 2007, Plaintiff Eddie Ira Sanders, Sr. ("Plaintiff"), as administrator of th e estate of Sanders, filed this suit against the City of Dothan ("the City"), City of Dothan P o lic e Chief John Powell ("Powell"), City of Dothan Jail Administrator Mamie Grubbs, and O f f ice r Badge No. 744 ("the officer"). (Doc. #1.) On April 16, 2007, the City and Powell f ile d a motion to dismiss Counts II and III of the Complaint, which alleged violations of 42 U .S .C . § 1983 against the City and Powell, respectively. (Doc. # 16.) After considering that m o t io n , Plaintiff's response (Doc. # 21) and Defendants' reply (Doc. # 22), this Court d ism iss e d without prejudice Count III and granted Plaintiff leave to amend his complaint to a lle g e the § 1983 claim against Powell with greater specificity, as is required when the D e f e n d a n t is an individual to whom the qualified immunity defense is available. (Doc. # 31.) P la in tif f amended the Complaint to allege the following facts regarding the causal connection b e tw e e n the actions of Powell and the alleged deprivation of Sanders's Fourteenth A m e n d m e n t rights: T h e City of Dothan Police Department has been involved in the deaths of five pretrial d e ta in e e s since 2003. On February 7, 2003, Timothy Brooks died shortly after being chased a n d apprehended by City of Dothan police officers. On April 27, 2003, Byron Johnson was k ille d after a short police chase with City of Dothan police officers during which the

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m o torcycle he was driving crashed into another vehicle. On February 7, 2004, Jestaro R e yn o ld s was killed after eluding City of Dothan police officers for a short distance, and on Ju ly 17, 2004, Kevin Jones and Zacharia Jones were killed when they were chased by City o f Dothan police officers and crashed their vehicle into a building. According to the Amended Complaint, the City of Dothan has a history of neglecting to provide medical care for seriously injured pretrial detainees. The practice of not providing p r e tria l detainees proper medical treatment was ongoing and uncorrected as recently as 2 0 0 6 .3 On more than one occasion police brought injured inmates to the jail when they were s u p p o s e d to transport them to the hospital for medical treatment. For example, on July 11, 2 0 0 3 , pretrial detainee Claude Burns ("Burns") was transported to the City of Dothan Jail w ith a stab wound to one of his arms. Burns was placed in the custody of jail personnel who m o v e d him into a cell where he continued to suffer heavy bleeding from his wound (the b a n d a g e covering his wound was soaked through with blood). He was transported to the h o s p ita l the next day. Other pretrial detainees received delayed medical attention. On March 1 7 , 2002, Michael Preston ("Preston") and Ryan Birge ("Birge") were remitted to the custody o f the Dothan City Jail even though they were suffering from injuries and should have been im m e d iate ly taken to the hospital.4 O n April 21, 2008, Powell again filed a Partial Motion to Dismiss, arguing that the

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Powell was first employed as police chief on March 15, 2005. (Doc. # 35 5.) Plaintiff does not allege the nature of the injuries to Preston or Birge. -4-

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a b o v e -d e ta ile d factual account fails to remedy the infirmities cited by this Court in its earlier M em o ran d u m Opinion and Order. (Doc. # 31.) He therefore seeks dismissal of Count III o f the Amended Complaint, which asserts that Powell, in his individual capacity, violated 42 U .S .C . § 1983 by depriving Sanders of his substantive due process rights under the F o u rtee n th Amendment to the United States Constitution. (Doc. # 32 ¶¶ 38-45.) LEGAL STANDARD A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Therefore, for the p u rp o se s of adjudging a Rule 12(b)(6) motion to dismiss, the court will accept as true all w e ll-p le a d ed factual allegations and view them in the light most favorable to the plaintiff. S e e Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007); Pielage v. M c C o n n e ll, 516 F.3d 1282, 1284 (11th Cir. 2008). While Federal Rule of Civil Procedure 8 ( a )( 2 ) requires only that a complaint contain "a short and plain statement of the claim sh o w in g that the pleader is entitled to relief," as a general matter, to survive a motion to d ism iss for failure to state a claim, the plaintiff must allege "enough facts to state a claim to re lie f that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2 0 0 7 ).5 Plaintiff's "[f]actual allegations must be enough to raise a right to relief above a

Powell relies in the Motion to Dismiss on an outdated articulation of the applicable legal standard, citing Broadberry v. Pinnellas County, 789 F.2d 1513, 1513 (11th Cir. 1986), and Conley v. Gibson, 355 U.S. 41 (1975), for the proposition that "Dismissal of a complaint pursuant to Rule 12(b)(6) is appropriate if `it appears beyond a doubt that the Plaintiff can prove no set of facts that would entitle him to relief.'" (Doc. # 35 2.) In fact, the Supreme Court in Twombly retired this standard, saying it "is best forgotten as an incomplete, negative gloss on an accepted pleading standard." Twombly, 127 S. Ct. at 1960; see also Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 974 n.3 (11th Cir. 2008). -5-

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s p e c u la tiv e level on the assumption that the allegations in the complaint are true." Id. at 1 9 6 5 . It is not sufficient that the pleadings merely "[l]eave open the possibility that the p la in tif f might later establish some set of undisclosed facts to support recovery." Id. at 1968 (in te rn a l quotation and alteration omitted). Section 1983 claims, however, are subject to a heightened pleading standard when the d e f e n d a n t is an individual to whom the qualified immunity defense is available. Swann v. S o u th e rn Health Partners, Inc., 388 F.3d 834, 838 (11th Cir. 2004). The heightened p lead ing requirement is necessary so that the Court can determine whether a defendant's a c tio n s violated a clearly established right. See GJR Invs., Inc. v. County of Escambia, 132 F .3 d 1359, 1367 (11th Cir. 1998). The Eleventh Circuit has recently reaffirmed the validity o f the heightened pleading requirement, noting that "[u]nder the heightened pleading req u irem en t, the relevant facts must be alleged `with some specificity.'" Danley v. Allen, No. 0 7 -1 2 3 2 8 , 2008 WL 3874672, at *11 (11th Cir. Aug. 22, 2008) (citing Gonzalez v. Reno, 325

Plaintiff also presents an incorrect legal standard in its Response. (Doc. # 39 2-3.) Plaintiff cites Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), stating that Erickson reaffirmed the holding in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), that "all that is required `in a complaint is a short and plain statement of the claim showing that the pleader is entitled to relief . . . specific facts are not necessary. . . . "' (Doc. # 39 at 2-3) (citing Swierkiewicz, 534 U.S. at 508). The defendant in Erickson was not entitled to raise the qualified immunity defense, so the standard in Erickson is not relevant to this motion, in which the qualified immunity defense is available and heightened pleading applies. See Danley v. Allen, No. 07-12328, 2008 WL 3874672 at *11 (11th Cir. Aug. 22, 2008) (noting that the Supreme Court in Swierkiewicz did not address the pleading standard for § 1983 cases against officials who are able to assert qualified immunity as a defense, and that the Eleventh Circuit has continued to apply the heightened pleading standard in qualified immunity since Swierkiewicz was decided). The parties are strongly urged to accurately state the law in their briefs to this Court. -6-

F .3 d 1228, 1235 (11th Cir. 2003)) (internal quotation marks and citation omitted). A c o m p la in t must be dismissed under the heightened pleading standard where the allegations a re "vague and conclusory." Id. DISCUSSION P o w e ll seeks to have Count III--the only count in which he is implicated in his in d iv id u a l capacity--dismissed. For the purpose of this motion, the parties do not actively c o n te st the underlying issue of whether there has been a violation of a clearly established c o n stitu tio n a l right as required to overcome qualified immunity. Instead, Powell's argument is that the Amended Complaint does not allege facts that "show a causal connection between C h ief Powell's actions and the alleged deprivation." (Doc. # 35 3.) For the reasons set forth b e lo w , this Court finds that the Amended Complaint does not allege facts sufficient to meet th e standard for supervisor's liability under § 1983. The legal framework that governs the substantive issues in this case is founded on the p ro p o s itio n that "[s]upervisory officials are not liable under section 1983 on the basis of re sp o n d e a t superior or vicarious liability." Belcher v. City of Foley, 30 F.3d 1390, 1396 (1 1 th Cir. 1994). The standard by which a supervisor is held liable in his or her individual c a p ac ity for the actions of a subordinate is "extremely rigorous." Gonzalez v. Reno, 325 F.3d 1 2 2 8 , 1234 (11th Cir. 2003) (citing Braddy v. Florida Dep't of Labor & Employment Sec., 1 3 3 F.3d 797, 802 (11th Cir. 1998)). "Supervisory liability occurs either when the supervisor p e rs o n a lly participates in the alleged constitutional violation or when there is a causal

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c o n n e ctio n between actions of the supervising official and the alleged constitutional d e p riv a tio n ." Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990). A plaintiff can establish the necessary causal connection in one of three ways. First, b y showing that "a history of widespread abuse put[] the responsible supervisor on notice of th e need to correct the alleged deprivation, and he fail[ed] to do so. " Cottone v. Jenne, 326 F .3 d 1352, 1360 (11th Cir. 2003) (citation omitted). "The deprivations that constitute w id e sp re a d abuse sufficient to notify the supervising official must be obvious, flagrant, ra m p a n t and of continued duration, rather than isolated occurrences." Brown, 906 F.2d at 6 7 1 . A plaintiff can also establish the necessary causal connection by showing "facts which s u p p o rt an inference that the supervisor directed the subordinates to act unlawfully or knew th a t the subordinates would act unlawfully and failed to stop them from doing so." Gonzalez, 3 2 5 F.3d at 1235. Finally, a plaintiff can establish a causal connection by showing that a s u p e rv is o r' s "custom or policy . . . resulted in deliberate indifference to constitutional rights," R iv a s v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991). P la in tif f does not allege that Powell personally participated in the alleged m is tre a tm e n t of Sanders. Thus, Plaintiff must establish a causal connection according to one o f these three means. 1. History of Widespread Abuse T h is Court previously determined that the original complaint (Doc. # 1) did not c o n ta in allegations sufficient to show causation using the history of widespread abuse theory:

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P la in tif f alleges that "the City of Dothan Police Department has been involved in the deaths of five (5) African-American pre-trial detainees since 2003." However, none of these deaths are alleged to have involved the denial of m e d i c a l care to a pretrial detainee. The only alleged facts are that these in d iv id u a ls died during or soon after police chases. Plaintiff alleges only one in c id e n t that involved the denial of medical care to a pretrial detainee. A p re tria l detainee was transported to the City of Dothan Jail while suffering f ro m a stab wound, and he was placed in a cell overnight, despite heavy b lee d in g from his wound. He was transported to a hospital the next day. This s in g le incident is insufficient to plausibly support a finding of "widespread a b u se " that is sufficient to put Powell on notice of the need to take actions that w o u ld correct violations of arrestees' constitutional rights. (Doc. # 31 5) (internal citations omitted).6 By leave of the Court, Plaintiff amended the C o m p la in t to add allegations that "on more than one occasion injured inmates had been b ro u g h t to the jail by police officers when they were supposed to have been transported to th e hospital for medical treatment," that the City of Dothan has a "history of neglecting to prov id e medical care for seriously injured pretrial detainees," and that "neglecting or denying in ju re d pre-trial detainees medical care was an ongoing problem which the Defendants re f u se d to correct." (Doc. # 32 ¶ 22.) The Amended Complaint adds two incidents to the o n e example of a pretrial detainee being denied needed medical care. Both incidents o c c u rre d on March 17, 2002, and during which two pretrial detainees were "brought to the D o th a n City Jail with injuries . . . [and] should have been immediately taken to the hospital b u t were not." (Doc. # 32 ¶ 24.) The central issue presented by this motion is whether, with

Because Plaintiff did not add details explaining the significance of the allegations in the Amended Complaint that the City of Dothan was "involved in" the deaths of five p re tria l detainees since 2003, those allegations remain irrelevant. (Doc. # 31 5.) -9-

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th e se added allegations, Count III is pleaded with sufficient particularity to survive this m o tio n to dismiss. It is not. In Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003), plaintiffs, the estate and the f a th e r of a deceased inmate, alleged that jail supervisors were liable for the jail guards' f a ilu re to monitor a mentally disturbed individual who attacked and killed the inmate. Id. at 1 3 6 1 . The complaint further alleged that "the defendants were on notice of the widespread u n c o n s titu t io n a l conduct" by guards at the jail but had failed to properly train and supervise th e m . Id. The Eleventh Circuit held that the plaintiffs failed to adequately allege that the su p e rv iso rs were on notice of the guards' unconstitutional conduct because the complaint did n o t contain "any specific facts at all" showing that the supervisors had knowledge of the g u a rd s ' failure to monitor the inmates during this incident "or even one prior incident." Id. a t 1361-62. Because the plaintiffs in that case also failed to allege facts sufficient to support c a u sa tio n based on one of the other two theories, the Eleventh Circuit held that "the plaintiffs f a il[ e d ] to establish the necessary causal connection between the supervisors and the u n c o n stitu tio n a l conduct in issue for supervisory liability to be imposed." Id. In Danley v. Allen, on the other hand, a pretrial detainee brought a § 1983 action a g a in st jailers alleging that he was denied medical treatment after the jailers sprayed him with p e p p e r spray. 2008 WL 2874672 at *1. The plaintiff alleged that, before this incident, the superv iso rs had knowledge through "force reports and similar documents, inmate complaints, ja ile r complaints, attorney complaints, judicial officer complaints, and personal observation"

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th a t jailers"regularly used pepper spray excessively as a means of punishment and not for le g itim a te reasons." Id. at *2. The complaint also alleged that, through the same sources, the s u p e rv is o rs were aware that jailers at the detention center "regularly denied inmates prompt a n d adequate ventilation, decontamination, and medical care following pepper spray d is c h a rg e as a means of punishment and not for legitimate reasons." Id. at *13. The Eleventh C ircu it held that the plaintiff alleged sufficiently specific facts to establish the necessary c a u sa l connection between supervisors and the unconstitutional conduct of the jailers. The n u m e ro u s complaints to the supervisors about the excessive use of pepper spray and the d e n ia l of adequate medical treatment to inmates were enough to put the supervisors on notice o f misconduct that was "obvious, flagrant, rampant and of continued duration to require them to act." Id. Count III is not pleaded with sufficient particularity. The Amended Complaint does n o t contain facts sufficient to state a plausible claim of constitutional violations that were (a) " o b v io u s , flagrant, [and] rampant,"(b) "of a continued duration," or(c) "sufficient to notify" P o w e ll of the need to take corrective action. Each is required to state a claim under this th e o ry of causation. See Brown, 906 F.2d at 671; Cottone, 326 F.3d at 1360. The original complaint offered one isolated occurrence which, standing alone, was not s u f f ic ie n t to survive a motion to dismiss. (Doc. # 31 5.) The Amended Complaint adds two a d d itio n a l incidents that occurred on the same day. Three discrete incidents over the course o f a sixteen-month period that ended over two years before Sanders was allegedly subjected

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to unconstitutional conduct does not constitute widespread abuse that is "obvious, flagrant, [ a n d ] rampant." Brown, 906 F.2d 671.7 Further, an alleged pattern of behavior with a twoye a r interruption is hardly "of continued duration." Id. Quite to the contrary, these three in c id e n ts are "isolated occurrences." See id.; Danley, 2008 WL 2874672 at *1-2, 13; Valdes v . Crosby. 450 F.3d 1231, 1239-40, 43-44 (11th Cir. 2006). The three alleged incidents d o not, under the heightened pleading standard applicable to this case, evince the obvious, f la g r a n t, rampant and continuous abuse that is required to withstand a 12(b)(6) motion to d is m is s . Moreover, the other added allegations are "vague and conclusory." Danley, 2008 WL 2 8 7 4 6 7 2 , at *11. For example, the allegation that "on more than one occasion injured in m a te s had been brought to the jail by police officers when they were supposed to have been tra n sp o rte d to the hospital" is vague because it could refer to one of the specific isolated in c id e n ts mentioned elsewhere in the Complaint. There is no way to know whether this a lle g a tio n adds anything or if it is simply duplicative. Additionally, the allegations that the C ity of Dothan has a "history of neglecting to provide medical care for seriously injured pretria l detainees" and that "neglecting or denying pre-trial detainees medical care was an o n g o in g problem" are conclusory. The heightened pleading standard requires the relevant f a c ts be pleaded with some specificity--if the alleged history is "ongoing" and sufficiently

The incident involving Burns occurred on July 11, 2003, and the incident involving Preston and Birge occurred on March 17, 2002. The alleged incident that gave rise to this case occurred on August 24, 2005. -12-

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" o b v io u s , flagrant, [and] rampant," Plaintiff should be able to meet the pleading requirement b y alleging specific facts stemming from that history. Additionally, Count III suffers from fatal infirmities related to the notice requirement. L ik e the complaint dismissed in Cottone, Count III does not allege that Powell, who was not C h ie f of Police at the time of the three incidents, had knowledge of the alleged u n c o n st it u ti o n a l conduct, nor does it allege "any specific facts at all" showing that Powell h a d knowledge of the alleged relevant conduct or "even one prior incident." Cottone, 326 F .3 d at 1361. Plaintiff only presents an allegation that "Powell should have had notice of this p rac tice ," (Doc. # 32 ¶ 25) and an argument (in Plaintiff's Response to John Powell's R e n e w e d Motion to Dismiss) that "Defendant Powell does not aver that he lacked knowledge o f the practice of taking injured pre-trial detainees to jail instead of to the hospital," and that " it is difficult to imagine that a police chief would not be briefed on past and present safety is s u e s and policy violations." (Doc. # 39 3-4.) The allegation that Powell should have had n o tic e is not sufficient to survive this Motion to Dismiss. See Cottone, 326 F.3d at 1361-62; s e e also West v. Tillman, 496 F.3d 1321, 1324-26, 28-30 (11th Cir. 2007) (per curiam). T h is insufficiency, together with Plaintiff's failure to allege specific facts showing that P o w e ll had knowledge of the alleged specific incidents, which all occurred at least twenty m o n th s before Powell became chief of police,8 dooms Count III. T h e se inadequacies draw into relief the differences between the allegations in Count

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Powell was first employed as police chief on March 15, 2005. (Doc. # 35 5.) -13-

III and those in the Danley complaint, which the Eleventh Circuit held to state a claim. U n lik e the conclusory allegations regarding notice in this case, the supervisors in Danley w e re alleged to have knowledge through "force reports and similar documents, inmate c o m p la in ts , jailer complaints, attorney complaints, judicial officer complaints, and personal o b s e rv a tio n ." 2008 WL 3874672 *13. Here, the allegation is only that Powell should have k n o w n , and the argument is simply that "it is difficult to imagine" that he did not know. U n lik e the detailed allegations in Danley, these empty allegations are not pleaded with the s p e c if ic ity required to survive this Motion to Dismiss. See id. at *12-13; see also Valdes 450 F .3 d at 1239-40, 43-44 (finding triable issue as to causation because of a history of w id e sp re a d abuse where prior warden specifically warned defendant warden about certain g u a r d s ' abusive practices, saying he was "afraid they would kill an inmate," and taped a list a problem guards to defendant warden's desk).9

Powell takes issue with Plaintiff's argument, mooted by the findings in this Opinion, that "a police supervisor can be held liable pursuant to Section 1983 for past culpable conduct of his subordinates is he has knowledge of such conduct and fails to take action to prevent its recurrence," (Doc. # 39 3.) Whether a police supervisor can be held liable for past culpable conduct of his subordinates is irrelevant to this case. The issue between the parties appears to be whether specific occurrences that took place before Powell became Chief of Police can be used in the complaint to evince notice of ongoing unconstitutional conduct. The parties have not provided, and the Court has not been able to locate, precedent that explicitly distinguishes between past culpable conduct that occurred before the supervisory official in question took office and past culpable conduct that occurred after the supervisory official in question took office. In fact, the Eleventh Circuit readily considers both types when making determinations regarding notice. See Valdes v. Crosby, 450 F.3d 1231, 1236-37, 39-40, 43-44 (11th Cir. 2006) (discussing, as evidence of notice under the history of widespread abuse theory, conversations between the prior warden and the defendant warden regarding past culpable conduct of corrections officers that occurred before the change in wardens); West v. Tillman, 496 F.3d 1321, 1324-26, 28-30 (11th Cir. 2007) (per curiam) (considering a history of under-staffing problems in a jail records department between 2000 and 2003 as evidence of notice against -14-

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P lain tiff failed to allege facts sufficient under the heightened pleading standard re g a rd in g (a) "obvious, flagrant, [and] rampant" constitutional violations, that were (b) of a " c o n tin u e d duration," and that (c) were sufficient to put Powell on notice of the need to take c o rre c tiv e action. Because the Amended Complaint is infirm in these three respects, Plaintiff c a n n o t establish supervisory liability based on a history of widespread abuse theory. 2. Directing Unlawful Acts or Knowing Acts Were Ongoing and Failing to Respond P la in tif f has added no new allegations supporting a causal inference based on the s e c o n d theory of causation. The Court reaffirms its earlier holding on this score that "the a lleg e d facts do not support an inference that Powell directed or knew of the officer and jail a d m in is tra to r's conduct toward Sanders." (Doc. # 31 6.) Therefore, Count III cannot survive th is Motion to Dismiss based on this theory. 3. Custom or Policy Resulting in Deliberate Indifference to Constitutional Rights. Plaintiff has added no new allegations supporting a causal inference based on the third th e o ry of causation. The Court reaffirms its earlier holding on this score that "Plaintiff does n o t allege that Powell had a specific policy that caused the alleged mistreatment of Sanders."

various supervisory defendants, who took office at various times between 2000 and 2003); see also Chestnut v. City of Quincy, 513 F.2d 91, 92 (5th Cir. 1975) (per curiam) (holding that notice of culpable conduct that occurred before the supervisory official in question took office was not "under the circumstances" sufficient to create supervisory liability). The allegations here are not sufficient to meet the heightened pleading requirement in any event, so the Court need not decide this issue. -15-

(D o c . # 31 7.) Therefore, Count III cannot survive this Motion to Dismiss based on this th e o ry. CONCLUSION F o r the foregoing reasons, it is hereby ORDERED that Defendant John Powell's P a rtia l Motion to Dismiss (Doc. #35) is GRANTED and Count III against Defendant John P o w e ll in his individual capacity is DISMISSED WITH PREJUDICE. Nothing in this M e m o r a n d u m Opinion and Order is intended to address any of Plaintiff's other pending c la im s . DONE this the 17th day of September, 2008

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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