Davis v. City of Montgomery, Alabama et al

Filing 24

MEMORANDUM OPINION AND ORDER: For the reasons stated herein, Defendant' Motion to Dismiss is GRANTED in part and DENIED in part, as follows: 1. Defendant City of Montgomerys Motion to Dismiss the City from Counts I, II, III, and IV is GRANTED, a nd those claims against the City are DISMISSED. 2. The Individual Defendants Motion to Dismiss Count IV is DENIED with respect to injuries sustained to Daviss ribs and is GRANTED as to a claim based on a failure to treat Daviss diabetes. 3. Individual Defendants Motion to Dismiss Count I is DENIED as moot, since that claim is asserted only against the City. Signed by Honorable Judge W. Harold Albritton, III on 11/10/2016. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JESSE DAVIS,
Plaintiff,
v.
CITY OF MONTGOMERY, et al.,
Defendants.

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Civil Action No.: 2:16cv346-WHA
(WO)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This cause is before the court on Defendants’ Motion to Dismiss the City of Montgomery
from Counts I, II, III, and IV and Individual Defendants, Officers G. J. Marshall, Lizenby, and
Fictitious Defendant, Officer A, from Counts I and IV of the Plaintiff’s First Amended
Complaint (Doc. # 20). Defendants initially filed a Motion to Dismiss (“(First) Motion to
Dismiss”) (Doc. # 12) on June 6, 2016, addressed to the original Complaint. The court in
granting in part and denying in part the Defendants’(First) Motion to Dismiss, also granted
Plaintiff, Jesse Davis (“Davis”), leave to amend three claims that were dismissed without
prejudice.
In response, Davis filed an Amended Complaint on July 22, 2016, asserting all of his undismissed claims, claims dismissed without prejudice, and one additional claim against the City
of Montgomery (“City”) for failure to train and supervise its police officers (Doc. # 19).
Defendants then moved for dismissal (referred to herein as Defendants’ “(Second) Motion to
Dismiss”) under Federal Rule of Civil Procedure 12(b)(6) on the three claims initially dismissed

without prejudice and the one additional claim. For reasons to be discussed, Defendants’
(Second) Motion to Dismiss is due to be GRANTED in part and DENIED in part.
II. MOTION TO DISMISS
The court accepts the plaintiff’s factual allegations as true, Hishon v. King & Spalding,
467 U.S. 69, 73 (1984), and construes the complaint in the plaintiff’s favor, Duke v. Cleland, 5
F.3d 1399, 1402 (11th Cir. 1993). In analyzing the sufficiency of pleading, the court is guided by
a two-prong approach: one, the court is not bound to accept conclusory statements of the
elements of the cause of action and, two, where there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to entitlement
to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). “[A] plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a complaint need not
contain “detailed factual allegations,” but instead the complaint must contain “only enough facts
to state a claim to relief that is plausible on its face.” Id. at 570. The factual allegations “must be
enough to raise a right to relief above the speculative level.” Id. at 555.
III. FACTS
The allegations of the Plaintiff’s Amended Complaint are as follows:
The Plaintiff, Jesse Davis, was a seventy-six (76) year old man, who, in addition to
having extreme hearing loss, also suffers from diabetes. Davis alleges that on June 22, 2014, he
was driving home from a store at around midnight when he was pulled over by a Montgomery
police officer for changing lanes without signaling. Defendant, G. J. Marshall (“Marshall”), a

2

Montgomery City police officer, conducted the traffic stop. Marshall’s dashboard camera was
running and recorded the events alleged in the Amended Complaint.
After pulling Davis over, Marshall apparently thought Davis had been drinking and
administered a field sobriety test. Davis was able to walk a straight line. Nevertheless, Marshall
continued looking for other evidence to corroborate his suspicions that Davis had been drinking.
Dash camera footage shows Marshall entering Davis’s vehicle several times during the traffic
stop. However, Marshall never mentioned having seen or smelled any alcohol in Davis’s car.
During the stop, Davis was not completely compliant with Marshall’s instructions,
however, because Davis had difficulty hearing Marshall. Davis told Marshall that he was having
a hard time hearing Marshall, and Marshall was apparently aware of Davis’s inability to hear
because Marshall began yelling questions and instructions to Davis.
Davis also told Marshall that he suffered from diabetes and needed to go home to take his
diabetes medications. Instead of allowing Davis to go home at the end of a long day, Marshall
called his supervisors for instructions. Marshall can be heard telling his supervisors, “I don’t
have anything on him” (Doc. # 19, p. 4, ¶ 17). Still, Marshall continued looking.
Eventually, Marshall called paramedics to the scene to treat Davis who had been
complaining about needing his diabetes medication. Paramedics arrived, along with the other
individuals Defendants, Officer Lizenby and Fictitious Defendant, Officer A, and began treating
Davis at the scene. The paramedics also had a hard time communicating with Davis because of
his hearing problems.
Soon thereafter, a cameraman from a Montgomery Police Department (“MPD”)
television show arrived. At that point, the entire tenor of the traffic stop changed. One of those
present, who is believed to be a paramedic, walked to the driver’s side door of Davis’s vehicle

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and exclaimed, “There it is,” gesturing towards a bottle of rubbing alcohol.1 (Doc. # 19, p. 4, ¶
22).2
Marshall then arrested Davis for driving under the influence. Marshall got behind Davis
and attempted to fasten handcuffs around Davis’s wrists. However, because of Davis’s large
wrists, Marshall experienced difficulty tightening the handcuffs. Marshall then compensated by
squeezing the handcuffs so tight that they cut through Davis’s skin, reopening a surgical scar on
Davis’s wrists, causing him severe pain. Davis told Marshall that he was hurting him and
repeatedly asked Marshall, “What do you want me to do?” (Doc. # 19, p. 5, ¶ 28). Davis turned
his ear towards Marshall, as he had done throughout the stop, to listen to Marshall’s instructions.
At that point, and apparently for no reason at all, Marshall body-slammed Davis to the
pavement, cracking multiple of Davis’s ribs. Marshall landed on top of the seventy-six (76) year
old Davis and shoved his knee into Davis’s back. Officer Lizenby and Officer A piled on top of
Davis, holding his head to the ground.
Davis was moved to a police vehicle, where he repeatedly complained about pain in his
shoulder and ribs and asked to be taken to the hospital. Officer Marshall refused his requests and,
between rehearsing lines for an interview with the MPD television show and otherwise ignoring
Davis, responded, “It’s too late.” (Doc. # 19, p. 6, ¶ 31). Davis also complained that he needed
medicine for his diabetes, to which Marshall responded sarcastically, asking Davis if he needed
medicine for ingesting rubbing alcohol.

Even though Marshall had entered Davis’s vehicle several times during the over one hour long
traffic stop and never mentioned having seen a bottle of rubbing alcohol or smelled any alcohol
whatsoever in the car, the Defendants state that the bottle was in “plain view.” (Doc. # 20, p. 3).
2
Davis alleges that he had not ingested rubbing alcohol. Rather, Davis kept a bottle of rubbing
alcohol, as advised by his doctor, to use topically to ease chronic pain in his wrists, following
surgery for carpel tunnel syndrome.
1

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Marshall then took Davis to jail. On his way to the jail, Davis reiterated that he was in
pain, but again, Marshall ignored his complaints, telling Davis to “Shut up.” (Doc. # 19, p. 6, ¶
35).
When Davis was processed into the jail, he told people there that he was in pain in his
shoulder and ribs; however, no one at the jail helped him.
Upon intake, he was administered a Draeger (breathalyzer) test in which he scored a 0.0
mg/dl, meaning there was no alcohol in his system. Nevertheless, Davis would spend the
remainder of the night in the “drunk tank.”
Although the jail personnel provided Davis some type of medication for his diabetic
condition, it was not the same medication he normally takes. Moreover, he did not receive any
medical treatment for his cracked ribs during the four days that he was in jail.
Davis was charged with Driving Under the Influence (“DUI”) and making an improper
lane change. He was found not guilty of the DUI and guilty of the improper lane change. When
he was released from jail, he went to the doctor for treatment of his ribs. He was in the hospital
for eighteen (18) days.
Davis’s Amended Complaint alleges that the City is aware that its police officers often
come into contact with citizens like Davis who suffer from disabling conditions, such as
deafness, hard of hearing, and speech impediments (Doc. # 19, p. 7, ¶ 44). Moreover, that the
City has a policy, pattern, or practice of arresting individuals who suffer from these conditions,
and using excessive force upon non-resisting individuals who are otherwise compliant and nonresisting (Doc. # 19, p. 7, ¶¶ 45–46). Finally, Davis alleges that the City has a policy, pattern, or
practice of failing to train its police officers on how to properly recognize and deal with
individuals who suffer from these disabling conditions (Doc. # 19, p. 8, ¶ 47).

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IV. DISCUSSION
There are two issues before the court: (1) whether Davis set forth sufficient facts to
support a plausible inference that the City’s failure to train its police officers in recognizing and
dealing with individuals with hearing and speech disabilities amounts to an official policy that is
actionable under 42 U.S.C. § 1983; and (2) whether Davis plausibly alleged that Defendants
were deliberately indifferent to Davis’s serious medical needs because they allegedly did not
provide any treatment for Davis’s broken ribs during the four (4) days he was in the Municipal
Jail.
A. Claims Against the City
When the court earlier dismissed all federal claims against the City, it gave the Plaintiff
an opportunity to amend to allege facts that would support those claims. Plaintiff’s Amended
Complaint attempts to do that in amended Counts II, III, and IV and in the added Count I.
42 U.S.C. § 1983 (2012) states:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
Municipalities are considered “persons” and, thus, may be sued directly under § 1983.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). To hold a municipality liable, however,
a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality
had a custom or policy that constituted deliberate indifference to that constitutional right; and (3)
that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th
Cir. 2004).

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Davis alleges (1) that his Fourth and Fourteenth Amendment rights were violated because
the individual defendants used excessive force in arresting him; (2) that “[t]he City of
Montgomery was deliberately indifferent to Mr. Davis’s Fourth and Fourteenth Amendment
rights, through its failure to properly train its police officers to recognize citizens with hearing
and speech disabilities, such as Davis” (Doc. # 23, p. 6); and (3) that “[t]he individual
defendants’ baffling failure to recognize Mr. Davis’ hearing disability and speech impediment
(related to his hearing disability) directly led to his unlawful arrest and the excessive force used
against him” (Doc. # 23, p. 5).
Defendant City, however, moves for dismissal of the § 1983 claims against it in Count I
(Failure to Train and Supervise), Count II (Wrongful Arrest, False Imprisonment), Count III
(Excessive Force), and Count IV (Deliberate Indifference to Serious Medical Needs) under the
second prong of the McDowell analysis, arguing that Davis’s Amended Complaint fails to
sufficiently establish a custom or policy constituting deliberate indifference to Davis’s
constitutional rights (Doc. # 20, p. 4).
1. Official Policy
A municipality may only be liable for the tortious acts of its employees if action taken
“pursuant to official municipal policy” results in a deprivation of a federally protected right.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). “The ‘official policy’ requirement was
intended to distinguish acts of the municipality from acts of employees of the municipality, and
thereby make clear that municipal liability is limited to action for which the municipality is
actually responsible.” Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986) (emphasis original); see
also Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403 (1997) (“We have
consistently refused to hold municipalities liable under a theory of respondeat superior.”)

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While “‘official policy’ often refers to formal rules or understandings—often but not
always committed to writing—that are intended to, and do, establish fixed plans of action to be
followed under similar circumstances over time,” Pembaur, 475 U.S. at 480–81, it also includes
actions of a policymaker that are representative of official government policy, see Monell, 436
U.S. at 694, as well as situations where a policymaker’s “failure to provide proper training may
fairly be said to represent a policy for which the city is responsible, and for which the city may
be held liable if it actually causes injury.” City of Canton v. Harris, 489 U.S. 378, 390 (1989).
This third line of so-called failure-to-train liability is especially rare. See City of Canton,
489 U.S. at 387 (noting “that there are limited circumstances in which an allegation of a ‘failure
to train’ can be the basis for liability under § 1983”). That is because the failure to train must be
the “moving force” behind the constitutional violation in order to establish municipal liability
under § 1983. Monell, 436 U.S. at 694; see also Pembaur, 475 U.S. 483 (“[M]unicipal liability
under § 1983 attaches where—and only where—a deliberate choice to follow a course of action
is made from among various alternatives by the official or officials responsible for establishing
final policy with respect to the subject matter in question.”) “Only where a failure to train
reflects a ‘deliberate’ or ‘conscious’ choice by a municipality—a ‘policy’ as defined by our prior
cases—can a city be liable for such a failure under § 1983.” City of Canton, 489 U.S. at 389.
To determine whether a failure to train amounts to a deliberate or conscious choice by a
municipality, courts are instructed to look at the “degree of fault” of a municipality’s failure to
train. City of Canton, 489 U.S. at 388. “Only where a municipality’s failure to train its
employees in a relevant respect evidences a ‘deliberate indifference’ to the rights of its
inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’ that is
actionable under § 1983.” Id.

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With respect to police officer training, the deliberate indifference standard is
appropriately a high threshold. See City of Canton, 489 U.S. at 391 (finding that adopting a lesser
standard of fault and causation would “engage the federal courts in an endless exercise of
second-guessing municipal employee training programs[,] . . . an exercise we believe the federal
courts are ill suited to undertake . . . .”); see also Connick v. Thompson, 563 U.S. 51, 70 (2011)
(quoting Brown, 520 U.S. at 406) (noting that “we must adhere to a ‘stringent standard of fault,’
lest municipal liability under § 1983 collapse into respondeat superior”). Nevertheless, “it may
happen that in light of the duties assigned to specific officers or employees the need for more or
different training is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need.” City of Canton, 489 U.S. at 390 (emphasis added).
Ordinarily, to make out a prima facie showing of deliberate indifference with respect to
police training, a plaintiff must allege a pattern of similar constitutional violations that would put
the municipality on notice of its inadequate training. See Connick, 563 U.S. at 62
(“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.”) (internal quotations and citations omitted); see also Wright v. Sheppard, 919 F.2d 665
(11th Cir. 1990) (finding “no evidence of a history of widespread prior abuse by [Sheriff’s]
Department personnel that would have put the sheriff on notice of the need for improved training
or supervision”); Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994) (quoting Brooks v.
Scheib, 813 F.2d 1191 (11th Cir. 1987)) (“A municipality’s failure to correct the constitutionally
offensive actions of its police department may rise to the level of a ‘custom or policy’ if the

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municipality tacitly authorizes these actions or displays deliberate indifference towards the
police misconduct.”)
In the alternative, the Supreme Court in City of Canton left open the possibility that “in a
narrow range of circumstances” a plaintiff may proceed on a failure to train claim based upon a
single incident of misconduct.3 Brown, 520 U.S. at 409. The City of Canton Court posed the
hypothetical of a municipality that failed to train its police officers on the use of deadly force.
See City of Canton, 489 U.S. at 390, n.10. It reasoned that given the fact that policymakers know
that police officers are required to shoulder deadly weapons and may be required to use them to
protect the public from fleeing felons, the need to train police officers on the constitutional
limitations of the use of deadly force would be so obvious that a failure to do so would amount to
deliberate indifference. Id.
Eight years later, the Supreme Court in Brown clarified that a plaintiff could succeed on a
theory of so-called “single-incident” liability if he alleged “a single violation of federal rights,
accompanied by a showing that a municipality has failed to train its employees to handle
recurring situations presenting an obvious potential for such a violation.” Brown, 520 U.S. at
409. The Brown Court reasoned further:
In leaving open in Canton the possibility that a plaintiff might
succeed in carrying a failure-to-train claim without showing a
3

Four years before City of Canton, in Oklahoma City v. Tuttle, the Supreme Court declared,
“Proof of a single incident of unconstitutional activity is not sufficient to impose liability under
Monell, unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy, which policy can be attributed to a municipal policy maker.”
471 U.S. 808, 823–24 (1985). However, “Tuttle [dealt] with the requirements for proving the
existence of a custom.” Latuszkin v. Chicago, 250 F.3d 502, 505 (7th Cir. 2001). Certainly, “[a]
single incident would not be so pervasive as to be a custom.” Grech v. Clayton Cnty., Ga, 335
F.3d 1326, 1329 (11th Cir. 2003). But where a constitutional violation is a “plainly obvious
consequence” of a failure to train and the situation in which the violation occurs is likely to
recur, a municipality may be said to have been deliberately indifferent to the need. Brown, 520
U.S. at 411; City of Canton, 489 U.S. at 390, n.10.
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pattern of constitutional violations, we simply hypothesized that, in
a narrow range of circumstances a violation of federal rights may
be a highly predictable consequence of a failure to equip law
enforcement officers with specific tools to handle recurring
situations. The likelihood that the situation will recur and the
predictability that an officer lacking specific tools to handle that
situation will violate citizens’ rights could justify a finding that
policymakers’ decision not to train the officer reflected “deliberate
indifference” to the obvious consequence of the policymakers’
choice—namely, a violation of a specific constitutional or statutory
right. The high degree of predictability may also support an
inference of causation—that the municipality’s indifference led
directly to the very consequence that was so predictable.
Brown, 520 U.S. at 409. Accordingly, single-incident liability is predicated on (1) the likelihood
that a police officer will be confronted with a specific situation and (2) the predictability that an
officer, when confronted with that situation, will violate a person’s constitutional rights. See id.;
see also Sewell v. Town of Lake Hamilton, 117 F.3d 488, 490 (11th Cir. 1997) (quoting Walker v.
City of New York, 974 F.2d 293, 299–300 (2d Cir. 1992), cert. denied, 507 U.S. 972 (1993)) (“It
is not enough to show that a situation will arise and that taking the wrong course in that situation
will result in injuries to citizens . . . City of Canton also requires a likelihood that the failure to
train or supervise will result in the officer making the wrong decision.”)
In this case, Davis’s allegations are mere conclusory statements of the elements of the
cause of action for failure to train. Davis alleges that the City is “aware that Police Officers often
come into contact with citizens who are deaf, who are hard of hearing and/or who have speech
impediments,” (Doc. # 19, p. 7, ¶ 44), and that “[t]he City has a policy, and/or pattern and
practice, of having its police officers use excessive force upon non-resisting individuals when
effecting an arrest against an individual who is deaf, hard of hearing, or has a speech impediment
and is otherwise compliant and non-resisting.” (Doc. # 19, p. 7, ¶ 46). Davis further alleges that
“it was highly predictable that failure to train Police Officers to deal with such disabled citizens

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would result in violations of their federal rights.” (Doc. # 19, p. 8, ¶ 49). These allegations are
not “detailed factual allegations,” but rather are mere conclusions. See Twombly, 550 U.S. at
555; Iqbal, 556 U.S. at 678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”)
Davis has not alleged any facts showing a history of constitutional violations against
persons with hearing and speech disabilities such that the need for training would have been so
obvious to the City that a failure to train amounted to deliberate indifference towards the
constitutional rights of such persons. Although Davis has alleged that Montgomery police
officers often encounter individuals with similar hearing and speech disabilities as Davis, Davis
has not alleged how often, if at all, those encounters resulted in constitutional violations.
Moreover, Davis has not alleged facts to support an allegation that it is a highly predictable
consequence of the City’s failure to train that police officers would violate the constitutional
rights of these individuals. Accordingly, Davis has not pled sufficient facts to support a plausible
inference that the City’s failure to train amounted to deliberate indifference.
Though Davis would like this court to infer deliberate indifference on the part of the City
from the “unexplainable ease to which Defendant Marshall and the other defendants assumed, or
confused, Mr. Davis’ hearing disability and related speech impediment with alcohol (or other
substance) abuse,” (Doc. # 23, p. 6) (emphasis removed), the facts alleged in Davis’s Amended
Complaint more likely suggest that Officer Marshall acted independently and allegedly
committed a constitutional tort. See Brown, 520 U.S. at 403 (recognizing “that a municipality
may not be held liable under § 1983 solely because it employs a tortfeasor”).

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Accordingly, Davis’s claim against the City for failure to train its police officers (Count
I) is due to be dismissed. For the same reasons discussed above, the claims against the City in
Counts II, III, and IV are also due to be dismissed.
B. Deliberate Indifference to Serious Medical Needs
Defendants also move to dismiss the individual Defendants from Count IV—Violation of
Fourteenth Amendment and 42 U.S.C. § 1983 Deliberate Indifference to Serious Medical
Needs—“because any injury suffered by Davis was not obvious and no defendant was
deliberately indifferent to Davis’s medical needs.” (Doc. # 20, p. 9).
To state a claim for deliberate indifference to serious medical needs, a plaintiff must
allege sufficient facts to “satisfy both an objective and a subjective inquiry. First, the plaintiff
must prove an objectively serious medical need. Second, the plaintiff must prove that the [public]
official acted with deliberate indifference to that need.” Brown v. Johnson, 387 F.3d 1344, 1351
(11th Cir. 2004) (internal quotation marks omitted) (quoting Farrow v. West, 320 F.3d 1235,
1243 (11th Cir. 2003).
1. Serious Medical Need
Defendants first argue that Davis’s broken ribs and diabetes were not a serious medical
condition. “A serious medical need is ‘one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize the necessity
for a doctor’s attention.’ ” Id. at 1307 (quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d
1176, 1187 (11th Cir. 1994), overruled in part on other grounds by Hope v. Pelzer, 536 U.S.
730, 739 (2002)). Alternatively, “the medical need must be one that, if left unattended, poses a
substantial risk of serious harm.” Farrow, 320 F.3d at 1243.

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Defendants contend that “the amended complaint does not allege a doctor diagnosed him
with a broken rib, or that the injury was ‘so obvious’ to a lay person that he needed treatment.”
(Doc. # 20, p. 10).4 While Davis does not allege that his broken ribs were diagnosed until after
his four-day stay at the Municipal Jail, (Doc. # 19, p. 7, ¶ 42), Davis’s injuries as alleged were
obvious to Officers Marshall, Lizenby and Fictitious Officer A. (Doc. # 19, p. 15, ¶ 76). It does
not take a degree from a medical school to realize the peril facing a seventy-six (76) year old
after he has just been violently body-slammed to the ground. (Doc. # 19, p. 5, ¶ 29). This peril,
coupled with his alleged repeated complaints of pain in his shoulder and ribs and requests to go
to the hospital (Doc. # 19, pp. 5–6, ¶¶ 31, 33, 35, 37, 77–79), would have made his injuries
obvious to a lay person that he needed treatment.5
2. Deliberate Indifference
Defendants also argue that, even if Davis had a serious medical need, they were not
deliberately indifferent to it. In order to prove that a police officer acted with deliberate
indifference, Plaintiffs must show: “(1) subjective knowledge of a risk of serious harm; (2)
disregard of that risk; and (3) conduct that is more than mere negligence.” Brown v. Johnson,
387 F.3d 1344, 1351 (11th Cir. 2004); see also Farmer v. Brennan, 511 U.S. 825, 839 (1994)

Defendants also cite Jackson v. Capraun for the contention that “pain alone may does [sic] not
rise to the level of a ‘serious medical need’” (Doc. # 20, p. 11). See 534 Fed. Appx. 854, 857
(11th Cir. 2013). However, the Jackson court never made such a finding. Indeed, to the contrary,
the Jackson court assumed, merely for the sake of argument, that “back pain did constitute a
‘serious medical need.” Id. (emphasis added). Accordingly, to the extent Defendants rely on
Jackson to support its argument that pain alone is insufficient to support a deliberate indifference
to serious medical needs claim, the court finds this argument unsupported from the case law.
5
Although Defendants correctly argue that they were not deliberately indifferent to Davis’s
diabetes because they did, in fact, treat it, (Doc. # 19, p. 7, ¶ 40, 80), the court disagrees with the
Defendants’ appraisal of diabetes as a non-serious medical condition. (Doc. # 20, p. 10). It is
common sense that a failure to treat diabetes may be severely detrimental to a person’s health,
making it a serious medical condition under the alternative standard. Farrow, 320 F.3d at 1243.
4

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(noting that deliberate indifference requires a finding that a person consciously disregarded a
substantial risk of serious harm6) (internal citations and quotations omitted). 7
In this case, Davis has alleged facts supporting a deliberate indifference to medical needs
claim with respect to his broken ribs. Davis alleges that Marshall threw him to the ground. (Doc.
# 19, p. 5, ¶ 29). Moreover, as stated above, the officers must have been aware of the serious risk
of harm that a delay in treatment could pose the seventy-six (76) year-old Davis after being
body-slammed on the ground. Davis repeatedly complained that he was experiencing pain in his
shoulder and ribs and that he needed to go to the hospital. (Doc. # 19, p. 5–6, ¶¶ 31, 33, 35, 37,
77–79). However, nobody rendered Davis aid. Instead, Officer Marshall told Davis to “Shut up”
and sarcastically asked if he needed medicine for ingesting rubbing alcohol. (Doc. # 19, p. 6, ¶¶
33, 35, 77, 78). In addition, the jail staff completely ignored Davis’s complaints and “treated him
as though he were drunk.” (Doc. # 19, p. 6, ¶ 37, 79).
These facts, taken as true, support a plausible inference of deliberate indifference to
Davis’s serious medical needs. See Brown v. Hughes, 894 F.2d 1533 (1990) (denying prison
guard’s motion for summary judgment as to inmate’s deliberate indifference to serious medical
needs claim because there was a genuine issue of material fact as to whether the guard knew
about the inmate’s condition when there was evidence that the guard was called to the inmate’s

6

The Farmer Court also rejected any allusion comparing deliberate indifference in § 1983
context, see infra, with deliberate indifference in Eighth Amendment context, finding the latter to
contain a state of mind requirement not found in the former.
7
Ordinarily, plaintiffs must establish for each defendant that his medical needs were “so obvious
that a lay person—in that Defendant’s place—would recognize the need for treatment.” Burnette
v. Taylor, 533 F.3d 1325; see also Valderrama v. Rousseau, 780 F.3d 1108, 1116–1121 (11th
Cir. 2015) (considering each officer’s subjective appreciation and disregard for plaintiff’s
medical needs separately). However, in this case, Davis alleges that all Defendants were at the
scene and active participants in his arrest. Therefore, at this stage of the proceedings, the court
will consider their actions together. See Mann, 588 F.3d at 1306–08 (considering multiple
officers’ actions together).
15

cell to break up a fight, the inmate had a limp and complained about his foot, and the guard told
the inmate that he would send someone to look at it but never did); Cf. Hughes v. Noble, 295
F.2d 495 (5th Cir. 1961) (finding a complaint that alleged officers arrested a man after he lost
control of his automobile, ran off the highway, and broke his neck and refused to provide him
medical treatment but instead locked him in a cell for eleven (11) hours before releasing him
sufficient to survive a motion to dismiss under the Conley v. Gibson pleading standard).
Defendants argue that “at best” their “failure to diagnose [Davis’s] broken ribs” only
amounts to mere negligence.” (Doc. # 20, p. 10). However, it is not the failure to diagnose, but
rather the failure to provide any medical assistance whatsoever that gives rise to Davis’s claim.
The Eleventh Circuit has repeatedly held “[c]onduct that is more than mere negligence includes .
. . knowledge of a serious medical need and a failure or refusal to provide care.” Magwood v.
Sec’y, Fla. Dep’t of Corr., No. 15-10854, 2016 WL 3268699, at *3 (11th Cir. June 15, 2016)
(citing McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)); see also PourmoghaniEsfahani v. Gee, 625 F.3d 1313, 1317 (11th Cir. 2010) (stating “[d]eliberate indifference may
result . . . from failure to provide medical care at all”); Tucker v. Randal, 948 F.2d 388, 391 (7th
Cir. 1991) (finding the deliberate nontreatment of broken bones to constitute a deliberate
indifference to serious medical needs). Davis claims that Defendants refused to treat his broken
ribs from the time of his arrest until his release four (4) days later. (Doc. # 23, p. 11). Because
none of the officers sought any medical treatment whatsoever for Davis’s broken ribs, under the
facts as alleged, Davis has pled a plausible claim for relief for deliberate indifference to his
serious medical needs.
Accordingly, Defendants’ Motion to Dismiss Davis’s deliberate indifference to serious
medical needs claim is due to be denied to the extent Davis’s claim relates to his broken ribs.

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V. CONCLUSION
For the reasons stated herein, Defendants’ Motion to Dismiss is GRANTED in part and
DENIED in part, as follows:
1. Defendant City of Montgomery’s Motion to Dismiss the City from Count’s I, II, III, and
IV is GRANTED, and those claims against the City are DISMISSED.
2. The Individual Defendants’ Motion to Dismiss Count IV is DENIED with respect to
injuries sustained to Davis’s ribs and is GRANTED as to a claim based on a failure to
treat Davis’s diabetes.
3. Individual Defendants’ Motion to Dismiss Count I is DENIED as moot, since that claim
is asserted only against the City.

Done this 10th day of November, 2016.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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