Gutierrez v. Hassel et al

Filing 20

ORDER - Having reviewed and considered the materials in the court file, including the report and recommendation and Mr. Gutierrezs objections, the Court adopts the magistrate judges report and accepts his recommendation. The Court DISMISSES WITHOUT P REJUDICE all of Mr. Gutierrezs claims, except the excessive force claims against defendants Pittman, Fileccia, Chowhan, and Purdy. The Court RECOMMITS the excessive force claims against defendants Pittman, Fileccia, Chowhan, and Purdy to the magistrate judge for further proceedings. Signed by Judge Madeline Hughes Haikala on 6/28/2017. (KEK)

FILED
2017 Jun-28 AM 09:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
LEONARDO GUTIERREZ,
Plaintiff,
vs.
SCOTT HASSEL, et al.,
Defendants.

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Case No. 4:14-cv-00738-MHH-JHE

ORDER
On April 21, 2015, the magistrate judge entered a report in which he
recommended that the Court dismiss without prejudice all claims, except the
excessive force claims against defendants Pittman, Fileccia, Chowhan, and Purdy,
for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). (Doc. 13). The magistrate judge advised plaintiff Leonardo
Gutierrez of his right to file specific, written objections to the report and
recommendation within 14 days. (Doc. 13, pp. 8-9). On May 6, 2015, Mr.
Gutierrez filed objections to the report and recommendation. (Doc. 15).
When a party objects to a report and recommendation, the district court must
“make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. §§
636(b)(1)(B)-(C). The Court reviews de novo legal conclusions in a report and

reviews for clear error factual findings to which no objection is made. Garvey v.
Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir. 1993); see also LoConte v. Dugger, 847
F.2d 745, 749 (11th Cir. 1988); Macort v. Prem, Inc., 208 Fed. Appx. 781, 784
(11th Cir. 2006). A district court “may accept, reject, or modify, in whole or part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1)(C).
In his objections, Mr. Gutierrez contends that Warden Hassell should be held
responsible for the actions of the officers who Mr. Gutierrez alleges used excessive
force because Warden Hassell is a supervisor who is “responsible for the day to
day activities of the detainees.” (Doc. 15, p. 2). Mr. Gutierrez states that he filed a
grievance regarding the alleged excessive force, but Warden Hassell “failed to
remedy a wrong after learning of it” through the grievance process. (Id.). Mr.
Gutierrez seems to use this language because the magistrate judge used similar
language in his report and recommendation regarding supervisory personnel’s
failure to “remedy a wrong after learning of it through report or appeal.” (See Doc.
13, pp. 4-5) (citing Williams v. Smith, 781 F.2d 319, 323 (2nd Cir. 1986)). This
rule, however, “applies only to situations where an alleged violation is ongoing,
not situations involving a one-time violation.”

Self v. LaValley, 2102 WL

7810950, at *9 (N.D.N.Y. Dec. 27, 2012). “Therefore, a supervisor may be liable
for [his] failure to remedy a violation only in those circumstances where the

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violation is ongoing and the [supervisor] has the opportunity to stop the violation
after being informed of it.” Id. Because Mr. Gutierrez’s claims involve a one-time
incident of excessive force which Warden Hassell could not have prevented
without advance warning, the rule that Mr. Gutierrez cites does not apply in this
case.

See Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990) (“The

deprivations that constitute widespread abuse sufficient to notify the supervising
official must be obvious, flagrant, rampant and of continued duration, rather than
isolated occurrences.”).

Accordingly, the Court overrules Mr. Gutierrez’s

objection regarding Warden Hassell.
Mr. Gutierrez also objects to the magistrate judge’s recommendation that the
Court dismiss defendants Lund, Ingram, and Miller. Mr. Gutierrez identifies these
defendants as “Field Office Directors and [the] Chief of the Immigration and
Customs Enforcement Agency.” (Doc. 15, p. 2). Mr. Gutierrez contends that these
defendants failed to train the “deportation officers” who he alleges used excessive
force. (Id.). He states that these defendants “are always aware of the need to train”
their subordinates because of the “hundreds of complaints” that are submitted to
the Office of the Inspector General and the Department of Homeland Security’s
Office for Civil Rights and Civil Liberties. (Id. at 3).
A supervisory official may be held liable under § 1983 for failure to train if
“‘his failure to train amounts to deliberate indifference to the rights of the persons

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with whom the subordinates came in contact and the failure has actually caused the
injury of which the plaintiff complains.’” Belcher v. City of Foley, Ala., 30 F.3d
1390, 1397 (11th Cir. 1994) (quoting Popham v. City of Talladega, 908 F.2d 1561,
1564-65 (11th Cir. 1990)). To establish deliberate indifference, Mr. Gutierrez
must assert factual allegations which demonstrate that the defendants were “aware
of the need to train or supervise [their subordinates] in a particular area.” Am. Fed.
of Labor and Congress of Industrial Orgs. v. City of Miami, FL., 637 F.3d 1178,
1189 (11th Cir. 2011). Mr. Gutierrez “must also demonstrate that constitutional
violations were likely to recur without training” and that the defendants “‘made a
deliberate choice’” not to train their subordinates despite an obvious need. Id.
(quoting Gold v. City of Miami, 151 F.3d 1346, 1350-52 (11th Cir. 1998)).
Neither Mr. Gutierrez’s complaint nor his objections to the report and
recommendation contains sufficient factual allegations to meet the requirements
outlined above. Therefore, the Court overrules Mr. Gutierrez’s objections with
respect to defendants Lund, Ingram, and Miller.
Having reviewed and considered the materials in the court file, including the
report and recommendation and Mr. Gutierrez’s objections, the Court adopts the
magistrate judge’s report and accepts his recommendation.
The Court DISMISSES WITHOUT PREJUDICE all of Mr. Gutierrez’s
claims, except the excessive force claims against defendants Pittman, Fileccia,

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Chowhan, and Purdy.

The Court RECOMMITS the excessive force claims

against defendants Pittman, Fileccia, Chowhan, and Purdy to the magistrate judge
for further proceedings.
The Court asks the Clerk to please mail a copy of this order to Mr. Gutierrez.
DONE and ORDERED this June 28, 2017.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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