Smith v. Huntsville, City of et al

Filing 131

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/30/2016. (YMB)

FILED
2016 Sep-30 PM 05:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
NANCY SMITH,
Plaintiff,

vs.
CITY OF HUNTSVILLE, et al.,
Defendants.

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Civil Action Number
5:14-cv-00555-AKK

MEMORANDUM OPINION
Nancy Smith, individually and as the administrator of the Estate of Minor
N.S. (“N.S.”), brings this action against the City of Huntsville, Chief of the City of
Huntsville Police Department (“HPD”) Lewis Morris, Sergeant Dwayne
McCarver, Agent Tesla Hughes, and Agent Joseph Blake Dean (collectively,
“Defendants”) alleging claims under 42 U.S.C. § 1983 and the Alabama Wrongful
Death Act, Ala. Code § 6-5-410 (1975). 1 See generally doc. 65. The court has for
consideration motions for summary judgment filed by the City (doc. 86), Dean
1

In light of the court’s rulings on the motion to dismiss, see doc. 130, only the following claims
remain: (1) the claims under 42 U.S.C. § 1983 (Counts I and II) that (a) the City, Chief Morris,
and Sergeant McCarver failed to properly train officers regarding choking and vomiting
arrestees; (b) the City, Chief Morris, and Sergeant McCarver failed to properly supervise officers
regarding reporting the use of force; (c) Agent Dean failed to properly intervene when (i) Agent
Hughes attempted to use O.C. spray against N.S., (ii) handcuffs were used on N.S., and (iii)
Agent Hughes failed to provide medical relief to N.S.; and d) Agent Hughes failed to intervene
when (i) handcuffs were used on N.S., and (ii) Agent Dean failed to provide medical relief to
N.S.; and (2) the wrongful death claim in Count III.

(doc. 87), Hughes (doc. 88), Sergeant McCarver (doc. 89), and Chief Morris (doc.
90), and a motion to strike filed by Smith (doc. 104). The motions are fully briefed,
docs. 91; 92; 93; 94; 95; 112; 113; 114; 116; 118; 120; 124; 125; 126; 127; 128;
129, and ripe for review. 2
The tragic events here stemmed from what started as a routine drug arrest.
Unfortunately, when Officer Hughes approached N.S. and ordered him to walk
toward her, N.S. struck Hughes in the head and attempted to flee. In turn, Hughes
grabbed N.S., and Officer Dean tackled both of them to the ground. While on the
ground, N.S. violently resisted the officers — which included kicking Hughes in
the chest —, disobeyed their multiple commands, and prevented them from gaining
control of and handcuffing him. At some point during the struggle, despite the
officers’ instructions to the contrary, N.S. placed a baggie of ecstasy he had on his
person into his mouth and, according to the officers, proceeded to chew it. Fearing

2

Smith moves to strike the affidavits of Sergeant McCarver and Officer Dean, filed in support of
their motions for summary judgment. Insofar as Smith alleges that the court should strike the
affidavits because Defendants did not disclose them prior to their filing for summary judgment,
the motion is due to be denied, because Rule 56 does not require a party to disclose, as part of its
discovery disclosures, an affidavit submitted in support of a motion for or in opposition to
summary judgment. Likewise, the motion fails under the “sham affidavit doctrine.” See Van T.
Junkins & Assocs. v. U.S. Indus., Inc., 736 F.2d 656, 658 (11th Cir. 1984) (allowing a party to
strike offending sections of affidavits that present an “inherent inconsistency” with deposition
testimony). Although Smith broadly asserts that “the [a]ffidavits of the deposed witnesses and/or
Defendants provide testimony that is inexplicably conflicting with the information provided in
their respective deposition testimonies,” see doc. 104 at 3, she fails to identify to which “deposed
witnesses and/or Defendants” she refers, or to point the court toward a specific conflict between
any deposition and affidavit testimony. Because such a conclusory allegation, without more,
cannot provide the basis for relief, Smith’s motion is due to be denied.
Page 2 of 38

that swallowing the drugs would cause injury to N.S., the officers instructed N.S.
to spit the baggie out, and, when he failed to comply, Hughes used various items –
including an ink pen, a glitter eye pen, and the butt of a flashlight – to pry N.S.’s
teeth apart in an attempt to stop him from ingesting the drugs and to retrieve the
baggie. The officers contend that N.S. made sounds that led them to believe N.S.
had chewed the baggie open, escalating the urgency of the situation, and that the
situation further escalated when N.S. began to sound like he was choking on the
baggie. Ultimately, despite the officers’ successful retrieval of the baggie, N.S.’s
condition deteriorated, and he lost consciousness shortly before paramedics
arrived. He died five days later at Huntsville Hospital, at the age of seventeen. The
autopsy report proved inconclusive as to the cause of death, but noted injuries
consistent with a struggle, and N.S.’s medical reports found the presence of
amphetamines and opiates in his system. Viewing the officers’ actions, as the
Supreme Court has instructed, “from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight,” Graham v. Connor, 490 U.S.
386, 396 (1989), and with the understanding that “[a] law enforcement officer’s
right to arrest necessarily carries with it the ability to use some force in making the
arrest,” Brown v. City of Huntsville, 608 F.3d 724, 740 (11th Cir. 2010) (citations
omitted), the court finds that Smith has failed to establish that Officers Dean and
Hughes acted unreasonably under these unfortunate circumstances or that they
Page 3 of 38

violated N.S.’s constitutional rights. Accordingly, and for the reasons stated more
fully below, Defendants’ motions for summary judgment are due to be granted.
I.

STANDARD OF REVIEW

Under Fed. R. Civ. P. 56(a), summary judgment is proper “if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” To support a summary judgment motion,
the parties must cite to “particular parts of materials in the record, including
depositions,

documents,

electronically

stored

information,

affidavits

or

declarations, stipulations, admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c). Moreover, “Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the
initial burden of proving the absence of a genuine issue of material fact. Id. at 323.
The burden then shifts to the nonmoving party, who is required to “go beyond the
pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (citation
and internal quotation marks omitted). A dispute about a material fact is genuine
“if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Page 4 of 38

The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
disputes will be resolved in the non-moving party’s favor when sufficient
competent evidence supports the non-moving party’s version of the disputed facts.
See Pace v. Capobianco, 283 F.3d 1275, 1276 (11th Cir. 2002) (a court is not
required to resolve disputes in the non-moving party’s favor when that party’s
version of events is supported by insufficient evidence). However, “mere
conclusions and unsupported factual allegations are legally insufficient to defeat a
summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Furthermore, “[a] mere ‘scintilla’ of evidence supporting
the opposing party’s position will not suffice; there must be enough of a showing
that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573,
1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
II.
A.

FACTUAL ALLEGATIONS

STAC Investigation of N.S.

Dean and Hughes are HPD officers who are also members of the MadisonMorgan County Strategic Counterdrug Team (“STAC”). STAC is a federally
Page 5 of 38

funded, multi-jurisdictional task force comprised of multiple agencies located in
Madison and Morgan Counties, Alabama, that is charged with the investigation of
narcotics crimes. Docs. 96-4 at 6, 8; 99-1 at 3; 99-2 at 2. Although STAC is
“basically autonomous,” HPD is its “ultimate overseer,” because HPD facilitated
and manages STAC’s federal funding. Doc. 96-4 at 6.
On June 13, 2013, a confidential informant informed Dean that the
informant

could

purchase

“molly”

—

the

street

name

for

3,

4-

methylenedioxymethamphetamine 3 (“MDMA”), which is also known as ecstasy —
from a seventeen-year-old male known as N.S. Doc. 99-2 at 2. Dean and Hughes
directed the confidential informant to call N.S., and arrange to meet N.S. shortly
thereafter, to purchase four grams of MDMA. Docs. 96-2 at 18; 99-2 at 2. At some
point during the meeting with the confidential informant, Hughes left to conduct
surveillance on N.S.’s house, doc. 96-2 at 18, with which STAC and the HPD had
some familiarity, because HPD had executed a search warrant at the home six
months earlier when N.S.’s mother called the police after licking “stickers” she
found in the house and experiencing an accelerated heart rate, id. at 17; doc. 96-1
at 6. After arranging a meeting between the confidential informant and N.S., Dean,
who knew N.S.’s age, developed an operational plan and relayed that plan to

3

See DRUG ENFORCEMENT ADMINISTRATION, THE FACTS ABOUT MDMA: ECSTASY & MOLLY
(2014), available at https://www.dea.gov/pr/multimedia-library/publications/molly.pdf (last
visited Sept. 30, 2016).
Page 6 of 38

Hughes, Sergeant McCarver, and Terry Lucas, another member of STAC. Docs.
96-2 at 18; 99-2 at 2. Sergeant McCarver, who was Dean’s STAC supervisor,
approved the plan, which called for the officers to intercept N.S. as he exited his
residence to meet the informant, locate the MDMA, and then obtain a search
warrant for the house to confiscate the remainder of the drugs. Docs. 96-2 at 9, 18,
22; 96-3 at 19; 96-4 at 18; 99-2 at 2; 99-21 at 3. Pursuant to the operational plan,
Hughes and Dean intended to approach N.S., speak to him, pat him down for
weapons, and attempt to locate the narcotics. Doc. 96-2 at 20. In the event N.S.
became combative, the plan called for the officers to “tactically” secure him and
call for assistance. Doc. 99-21 at 3.
B.

N.S.’s Altercation with Dean and Hughes

The confidential informant and Dean drove in separate cars to the agreedupon sale location.4 Doc. 96-2 at 20. Hughes, whose car was closer to N.S.’s
house, saw N.S. exit and walk toward the prearranged meeting place. Doc. 96-2 at
20. Hughes then informed Dean by radio that she was exiting her car to approach
N.S. Id.; doc. 99-2 at 2.
As Hughes approached N.S. on the sidewalk, Dean began slowly driving
towards them. Docs. 96-2 at 20; 99-2 at 2. Hughes, who was wearing jeans, tennis
shoes, a blue t-shirt, and a hat, also wore a black vest that was solid black in the
4

N.S. instructed the informant to park down the street from his house because N.S. was “pretty
sure” his neighbors knew N.S. was selling drugs. Doc. 97-5 at 1:40–1:52.
Page 7 of 38

front but stated “POLICE” in white letters in the back. Docs. 98-15 at 2; 97-4 at
7:06–7:16. Hughes had her gun and badge on her right hip. Docs. 96-2 at 20; 99-2
at 5; Doc. 97-4 at 7:05–7:16. When she reached N.S., Hughes identified herself as
a police officer, and requested that N.S. walk towards her. Docs. 96-2 at 20; 96-3
at 31; 99-2 at 3. N.S. complied, but then struck Hughes in the head and attempted
to run.5 Docs. 99-2 at 2–3; 96-2 at 20. As N.S. fled, Dean pulled up in his truck,
turned on his emergency lights, and exited his vehicle. 6 Docs. 96-2 at 20; 96-3 at
31; 99-2 at 3. Dean then “took [N.S. and Hughes] to the ground.” Docs. 96-2 at
20–21; 96-3 at 31, 33. N.S. “continued to fight” and was “throwing elbows,
punching, [and] twisting.” Docs. 96-2 at 21; 96-3 at 31; 99-6 at 3. After
unsuccessfully instructing N.S. to stop resisting numerous times, Dean delivered
two brachial plexus strikes7 to the side of N.S.’s neck in an effort to control N.S.
Docs. 96-2 at 21; 99-2 at 3. Apparently, because N.S. kept moving and fighting
Dean, one of the strikes “glanced” the right side of N.S.’s face. Doc. 99-2 at 3.
Eventually, Dean turned N.S. onto his stomach, straddled N.S., and was able to
5

Hughes maintains that N.S. turned to run before N.S. struck her. Docs. 96-3 at 31; 98-6 at 3.
Then, as N.S. ran, Hughes grabbed his shirt, and N.S. swung and elbowed her in the head. Docs.
96-3 at 31; 98-6 at 3.

6

Unlike regular patrol cars, STAC vehicles are not equipped with cameras that turn on
automatically when the car’s emergency lights are activated. Doc. 96-2 at 16–17; 96-3 at 32–33
(“[T]here are no cameras in undercover narcotics vehicles. . . . They’re not allowed in the
vehicles.”).
7

As explained by Chief Morris, a brachial plexus stun strike is “a hard-hand technique that’s
designed to deliver a blow to an individual to create a momentary stun so that [the officer] can
move in to take control.” Doc. 96-8, at 25.
Page 8 of 38

control N.S.’s right arm with his knee. Doc. 96-2 at 21. However, because N.S.
continued to fight, Dean “did not have control” over the rest of N.S.’s person. Doc.
96-2 at 21.
During the struggle, Dean noticed that N.S. had a large plastic baggie in his
left hand. Although Dean “tried to get [N.S.] to stop,” N.S. placed the baggie in his
mouth. Docs. 96-2 at 21; 99-2 at 3. Concerned that the baggie contained a large
quantity of drugs that would kill N.S. if N.S. consumed the baggie, Dean told N.S.
to “spit the bag out” and that “if [he] swallowed it, it may kill [him].” Docs. 96-2 at
21; 96-3 at 31. Dean continued to try to gain full control over N.S., because “you
can’t put handcuffs on until somebody’s under control. It’s impossible.” Doc. 96-2
at 22. This led Dean to straddle N.S.’s back. Doc. 96-2 at 22–23, 37. Dean, who
still had his knee on N.S.’s right arm, then gained control of N.S.’s left arm;
however, N.S. was “still not under control” and Dean could not handcuff him,
because N.S. was “resisting and fighting and trying to pull away.” Doc. 96-2 at 23.
Hughes, who was holding N.S.’s legs, asked if she could let go to check
N.S.’s mouth. Doc. 96-3 at 31. Based on Dean’s affirmative response, Hughes
released N.S.’s legs. Id. However, N.S. began to kick Hughes in the chest, and
Hughes realized that “Dean wasn’t able to control [N.S.] due to his violence.” Id.
As a result, Hughes returned to restrain N.S.’s legs and did so until Dean indicated
that Hughes could let go and return to N.S.’s mouth. Id. According to Hughes, “it
Page 9 of 38

sounded like there was a plastic bag in [N.S.’s mouth]” and “he was actively
chewing.” Id. When Hughes finally saw the plastic baggie in N.S.’s mouth, she
realized that N.S. would not be able to swallow it. Id. Although Hughes and Dean
continued to instruct N.S. to spit the baggie out because “it might kill [him],” N.S.
continued to actively fight against them and chew the baggie. Id; docs. 96-2 at 23;
99-2 at 3. Then, because N.S. was “violently fighting and clenching his jaw,”
Hughes placed an ink pen between N.S.’s teeth to keep his mouth open. 8 Docs. 962 at 23; 96-3 at 31–32; 99-2 at 3. Despite using the pen to prop up N.S.’s teeth,
Hughes was unable to retrieve the plastic baggie. Docs. 96-2 at 24; 96-3 at 32. As a
result, Hughes retrieved oleoresin capsicum (“O.C.”) spray — which is sometimes
referred to as “pepper spray,” see doc. 94 at 11 — from Dean’s car but could not
use it, because the can malfunctioned. Doc. 96-2 at 24. Hughes decided instead to
use the end of her flashlight to keep N.S.’s mouth open, and then attempted to
retrieve the plastic baggie using a “glitter pen or a glitter eyeliner.” Doc. 96-2 at
24; 96-3 at 32. To give Hughes a better angle and assist her in retrieving the baggie
from N.S.’s mouth, Dean placed N.S. in an “upper body compression hold,”
without applying any pressure. Doc. 96-2 at 25. The hold consisted of Dean, whose
forearm and arm were around N.S.’s neck, lifting N.S.’s head up above the ground.

8

Dean is adamant that Hughes did not “st[i]ck [the pens or the flashlight] into [N.S.’s] mouth or
into [N.S.’s] throat” but, rather, simply used them to open N.S.’s mouth. Doc. 96-2 at 29.
Page 10 of 38

Docs. 96-2 at 25; 99-2 at 3. The maneuver proved unsuccessful in facilitating the
retrieval of the baggie from N.S.’s mouth. Doc. 96-3 at 32.
At this point, N.S. — who was still “actively fighting” — swung his arm at
Hughes and tried again to swallow the plastic baggie. Id. According to Hughes,
N.S. “took a deep inhale at that point and then [N.S.’s] breathing sounded labored
like he was actually choking on the bag.”9 Id. Dean immediately called for
paramedics, then he and Hughes again advised N.S., who was still struggling to
pull away, to spit out the baggie, and they released all pressure on N.S. and “solely
focused on [N.S.].” Docs. 96-2 at 26; 96-3 at 32; 99-2 at 3. Hughes again
attempted to open N.S.’s teeth with a pen and the end of her flashlight. Doc. 96-3
at 32. When other HPD officers arrived to the scene, Hughes asked if they had
anything she could use to remove the plastic baggie on which N.S. was choking.
Id. Because none of the officers had anything she could use, Hughes reached into
N.S.’s mouth with two of her fingers and successfully retrieved the baggie out of
his throat and placed it a few feet away. Docs. 96-2 at 25; 96-3 at 32. The baggie

9

To the extent that Smith seeks to rely upon her expert John Ryan’s testimony as to when N.S.
began choking, see doc. 116 at 11, the court finds that he is not a competent witness for these
facts. Indeed, instead of relying upon a study or an autopsy, for instance, Ryan seeks only to
reiterate his understanding of Dean’s and Hughes’s perceptions of when N.S. began choking. See
doc. 96-14 at 59–60. Smith cannot hide Ryan behind the guise of “expert witness” in order to
rephrase and alter Dean’s and Hughes’s testimony about their personal observations. See MidState Fertilizer Co. v. Exch. Nat. Bank of Chicago, 877 F.2d 1333, 1339 (7th Cir. 1989) (noting
that “experts . . . are not ‘fact witnesses’”).
Page 11 of 38

field tested (and laboratory reports later confirmed) positive for MDMA. 10 Docs.
96-5 at 16; 99-2 at 4; 101-3 at 2.
After Hughes retrieved the baggie from N.S.’s throat, N.S. stopped actively
resisting, but was still breathing and had a pulse. Doc. 98-6 at 5. However, because
N.S. still made sounds that indicated he might still be choking, Hughes again tried
to open N.S.’s mouth, to ensure that nothing else was lodged in N.S.’s throat.
Docs. 96-2 at 27; 98-6 at 5; 99-2 at 3. When N.S. refused to open his mouth,
Hughes forced it open. Docs. 98-6 at 5; 99-2 at 3–4. In light of N.S.’s condition,
Dean, who at this point had handcuffed N.S., contacted emergency personnel again
and asked them “to step it up” because N.S. continued to choke. 11 Doc. 96-2 at 26–
27. At this point, N.S. began to vomit, and Dean and Hughes rolled N.S. onto his
side to prevent him from aspirating. Docs. 96-2 at 28; 96-3 at 34; 98-6 at 5–6; 99-2

10

Officers subsequently executed a search warrant on N.S.’s house, where officers found various
drugs and drug paraphernalia. Doc. 99-2 at 4.
11

Hughes reports that one reason the N.S. incident was significant is because of the
“complications” that occurred during the take down that required she report the incident to her
supervising officers. Doc. 96-3 at 30. When asked to elaborate as to why she had to call her
supervising officers, Hughes stated, “Due to us having to call HEMSI and [N.S.] being a Priority
One.” Doc. 96-3 at 30. The term “Priority One” is used to describe someone who does not
respond to the agents when they speak to him. Id. Smith argues that this statement substantiates
her allegation that, at the time Dean initially called HEMSI to respond to the scene, “N.S. was
considered a ‘Priority One’” and therefore could not communicate with Dean and Hughes. See
doc. 116 at 11. This contention ignores that Hughes used “and,” which suggests that the Priority
One label was not tied to the call for paramedics. As such, the court does not read Hughes’s
statement to indicate that they had called HEMSI because N.S. had already become a Priority
One, nor does it support Smith’s contention that N.S. was already unresponsive the first time
Dean called HEMSI.
Page 12 of 38

at 3. However, because it sounded like N.S. was still choking, Hughes and Dean
rolled him onto his back to ensure that his throat was clear. Docs. 96-2 at 28; 96-3
at 32; 98-6 at 6. When they found nothing in N.S.’s mouth, Hughes and Dean left
N.S. on his side in case he vomited again. Doc. 96-3 at 32.
“Directly prior” to the paramedics’ arrival, N.S. became unconscious. Doc.
96-3 at 32, 35. When the paramedics arrived, Dean or someone else removed the
handcuffs and informed the paramedics that N.S. had stopped breathing, but never
relayed that Hughes had used pens or a flashlight on N.S.’s mouth. Docs. 96-2 at
28; 96-3 at 36–37; 99-2 at 4. An officer also informed the paramedics that N.S.
was choking, docs. 98-9; 98-10, and, as one of the paramedics removed the
stretcher from the ambulance, an officer told her that “[N.S.] was turning blue,”
doc. 98-9 at 2. The paramedic observed N.S. as “pulseless and apneic” and that his
face was “mottled and cyanotic.” Id.
Immediately after the paramedics arrived, Dean called Sergeant McCarver
and “notified him of the whole incident,” albeit without disclosing the upper body
compression hold he had executed on N.S. Doc. 96-2 at 28–29. Dean also
contacted Lieutenant Jimbo Winn, who subsequently drove Dean and Hughes back
to the precinct, where they met with Charlie Gray, a Major Crimes Unit
investigator, and also filed a report about the incident. Docs. 96-2 at 29–30; 96-3 at
43; 96-6 at 37; 96-7 at 5. When Sergeant McCarver responded to the scene after
Page 13 of 38

Dean’s call, based on the severity of N.S.’s injuries, he “immediately” notified
Internal Affairs, and turned the investigation over to them. Docs. 96-2 at 28; 96-4
at 24; 96-9 at 8; 99-2 at 4.
N.S. died five days later at Huntsville Hospital. Docs. 101-2 at 2; 101-19 at
2. N.S.’s autopsy report offered seven “final diagnoses,”12 but indicated that the
cause and manner of death were “[u]ndetermined.” Doc. 101-2 at 2. The report
noted that, because of the timing of the autopsy and the circumstances surrounding
the altercation, “the level of drugs in [N.S.’s] system at the time of the incident
[could not] be determined,” such that “it is difficult to discern if [N.S.] died from a
drug overdose or an asphyxia event exacerbated by either the occlusion of the
airway by a foreign object, a possible vascular occlusion associated with the neck
restraint, or from a combination of all the events that transpired.” Id.
C.

HPD’s Investigation of N.S.’s Death

The HPD conducted two investigations into the incident, one led by the
Major Crimes Unit, and the other by Internal Affairs. Both investigations
exonerated the officers. Docs. 96-7 at 10; 100-3 at 3.

12

These seven diagnoses were: (1) “Anoxic/hypoxic ischemic encephalopathy;” (2) “Minor
blunt force injuries” that consisted of, first, “[c]ontusions of the face, oral mucosa, chest, left
upper extremities and abdomen” and “[a]brasions of the oral mucosa, left ear and chest;” (3)
“Bilateral pulmonary congestion and edema;” (4) “Acute and remote myocardial ischemia;” (5)
“Acute hepatitis;” (6) “Ansarca;” (7) “Trecheitis.” Doc. 101-2 at 2.
Page 14 of 38

1.

Major Crimes Unit Investigation

Investigator Gray led the Major Crimes Unit investigation, which probed
whether the officers committed a crime during the arrest of N.S. Doc. 96-7 at 5–6,
9. Gray did not obtain statements from Smith, who is N.S.’s mother, or from N.S.’s
sister, both of whom arrived at the scene just before the paramedics transported
N.S. to the hospital. Doc. 96-7 at 12.13 Instead, Gray recorded his observations of
the scene; interviewed and obtained statements from the confidential informant,
Officer Hughes, Officer Dean, and the paramedics; obtained the ambulance report
“run sheet,” the “call for service” report, a copy of the Event Chronology, all 911
recordings, and all medical records for N.S. from Huntsville Hospital; and
interviewed N.S.’s neighbors John and Linda Frost, Earnest Colin, Larry Richards,
and Paula Payton. See generally doc. 98-4; see also docs. 96-2 at 29–30; 96-3 at
43; 96-7 at 8; 97-3; 97-6; 97-7; 98-4 at 2, 5–6; 98-6; 98-7; 98-9; 98-10; 98-11; 9812. After reviewing the materials, Gray determined that the officers had committed
no crimes. Doc. 96-7 at 10.

13

N.S.’s sister arrived at the scene before Smith. The other HPD officers, who were then at the
scene, did not let her near N.S. and, as far as the court can discern, she did not witness the
incident between her brother and the officers, aside from briefly seeing him “[f]acedown on the
ground in [their] neighbor’s yard . . . [and] [s]everal police officers . . . standing around in a
circle with him.” Doc. 96-12 at 7–8. In any event, she called her mother at work, and Smith
arrived shortly before N.S. was taken to the hospital. Docs. 96-1 at 8–10; 96-12 at 9.
Page 15 of 38

2.

Internal Affairs Investigation

Internal Affairs carried out an independent investigation to determine
whether Hughes and Dean violated any policies or procedures. Doc. 96-9 at 9. As
part of its investigation, Internal Affairs reviewed the After Action Report prepared
by Sergeant McCarver, the written statements of Hughes, Dean, Officer Oaks, and
Paramedics Burke and Porter, in-car video footage from Officer Oaks’ vehicle,
recordings of dispatch-radio traffic and the confidential informant’s phone
transaction with N.S., photographs of the crime scene, the Event Chronology, case
reports by STAC officers, and N.S.’s autopsy report. See generally doc. 100-3; see
also docs. 97-3; 97-4; 97-5; 97-7; 98-6; 98-7; 98-8; 98-9; 98-10; 98-15; 98-16; 9817; 99-2; 100-2; 100-3 at 4–6; 100-4. Ultimately, Internal Affairs concurred with
Sergeant McCarver’s finding in the After Action Report, and concluded that Dean
and Hughes “followed all policies and procedures with their actions and judgment”
and “that this incident was IN POLICY.” Doc. 100-3 at 3 (emphasis in original).
D.

The City’s Police Officer Training and Supervision
1.

General Training

To become an HPD police officer, trainees must successfully complete an
18-week academy (“HPD Academy”) certified by the Alabama Peace Officers’
Standards & Training Commission (“APOST”). Doc. 100-5 at 4. Trainees receive
instruction on record-keeping and report writing, the use of firearms, the use of
Page 16 of 38

force, ground fighting, defensive tactics (including upper body compression locks
and the use of O.C. spray), first aid, CPR, 14 and the procedures to follow when a
person is rendered unconscious or any serious physical injury occurs. Docs. 96-2 at
6–9; 100-5 at 4; 100-6; 100-7. Dean and Hughes graduated from the HPD
Academy in 2006 and 2007, respectively. Docs. 96-2 at 6; 96-3 at 37; 100-19 at
16–33; 100-20 at 18–47.
After graduating from the HPD Academy, new officers complete a 14-week
field training program. Docs. 96-2 at 6; 100-5 at 4. This program consists of
accompanying a field training officer (“FTO”) and observing how the FTO handles
daily situations, including arrests, completing reports, and the use of force. Docs.
96-2 at 6; 100-5 at 4.
To supplement the initial training, HPD also conducts regular, in-service
training. Doc. 100-5 at 4. This training covers topics such as: the use of force,
tactical disengagement training, immigration, EMS, and active shooters. Docs.
100-5 at 4; 100-18; 100-19 at 16. According to the evidence presented, Dean and
Hughes attended in-service and supplemental trainings regularly during their career
with the HPD. See generally docs. 100-18; 100-19; 100-20.

14

Dean received first aid and CPR training in 2006 and passed the respective evaluations. Doc.
100-19 at 19–20. Hughes trained in first aid and CPR in 2007, passed the respective evaluations,
and was certified in CPR from August 2007 to August 2009. Doc. 100-20 at 23–31; 46–47.
Page 17 of 38

2.

STAC Training

Only officers with at least two years of service with the HPD and a rating
above satisfactory on their most recent review are eligible to become STAC agents.
Doc. 96-3 at 18. New STAC officers undergo approximately six weeks of
additional training related to narcotics investigation and enforcement. Docs. 96-3
at 18; 101-1 at 3. The training consists of accompanying STAC officers in the field
to learn, in part, how to conduct surveillance, evaluate and utilize confidential
informants, formulate and complete operational plans, carry out takedown
procedures, and complete STAC case reports. Docs. 96-2 at 6; 96-3 at 18–19; 96-6
at 10; 101-1 at 3. Because STAC recognizes that new STAC agents will not learn
everything they need to know during the training period, STAC encourages new
agents to use their best judgment based on the training they have received and to
ask experienced STAC officers for help when they encounter a new situation in the
field. Doc. 96-3 at 20. New STAC agents also receive a manual of directives titled
“Madison-Morgan County STAC Team Policies and Procedures Guide” to review
and implement. Doc. 96-2 at 12. STAC agents are not formally tested on their
knowledge of the directives, but must merely acknowledge that they have read and
understand the directives. Docs. 96-2 at 12, 39; 96-4 at 18–19; 96-5 at 18.
In addition, Sergeant McCarver, who commanded the STAC Team at the
time of the incident, held weekly meetings, during which he presented recent
Page 18 of 38

judicial decisions and case law related to narcotics law enforcement. Doc. 101-1 at
4. The STAC Team also discussed ongoing STAC cases and debriefed operations
at the weekly meetings. Id.
3.

Choking and Vomiting

Relevant here, with respect to a choking arrestee, Dean stated he received
training on the Heimlich maneuver, but that it is impossible to utilize this
technique while an individual is resisting arrest. Doc. 96-2 at 23.15 Hughes stated
that her training instructed her to first check the individual’s airway. Doc. 96-3 at
15. If the individual is unconscious and laying on his back, Hughes’ training
instructed her to perform a finger sweep to ensure there is nothing blocking the
airway, and then to perform CPR, while continuing to intermittently check the
airway. Id. at 35. If the individual is conscious, Hughes’ training directed her to
first attempt a finger sweep or to encourage the individual to cough the item up,
and if unsuccessful, to perform the Heimlich maneuver. Id. at 35–36.
Although Dean testified about other incidences where suspects have placed
drugs into their mouths, he could not recall whether he had received training on
what to do when an individual places a baggie into his mouth that could potentially
lead to choking, or the risks associated with applying pressure to the neck of an

15

When asked, “What was your training as the first thing you’re supposed to do if you believe an
individual to be choking?” Dean responded, “We went through training, but I can’t tell you.”
Doc. 96-2 at 24.
Page 19 of 38

individual who may be choking. Doc. 96-2 at 21–22; 27. Likewise, Sergeant
McCarver recognized rare instances in which an arrestee or potential arrestee has
choked on a baggie of drugs, and testified that there is no training for officers on
how to respond if someone places drugs into his mouth during an arrest. Doc. 96-4
at 49. Finally, Chief Morris stated that it was not within policy to stick a “Mag
flashlight” or an ink pen into a choking individual’s mouth. Doc. 96-8 at 35–36.
4.

Supervision

HPD Written Directive 101-13 Use of Force sets out the policies and
procedures officers should follow during and after situations in which an officer
administers force. The Directive instructs officers to document any use of force in
corresponding arrest or case reports. Id. at 6. Officers are to notify a supervisor
immediately when the use of force results in injury that requires more than simple
first aid or results in death, and supervisors are instructed to respond and initiate an
investigation. Doc. 97-8 at 7. The use of O.C. spray or any baton technique also
requires immediate reporting to a supervisor for investigation. Id. at 7–8. The
Directive also discusses the use of force continuum, identifying the levels of force
officers can use in relation to the level of danger they face in various scenarios. Id.
at 11.
The Post Deadly Force Procedure in Written Directive 101-13 states that the
use of deadly force includes: “[a]ny serious physical injury or death caused by an
Page 20 of 38

action taken by an officer (i.e., death resulting from an accident during a pursuit).”
Id. Where an officer is involved in the use of such deadly force, the Directive
instructs officers to follow a specific set of procedures, including: (1) handcuffing
or securing the suspect; (2) notifying Communications and giving out any pertinent
information; (3) notifying a supervisor immediately; and (4) administering first aid
and/or calling for medical assistance if necessary. Id. at 11–12.
The first supervisor to arrive on a scene involving deadly force must follow
certain protocols, including: (1) escorting the officers away from the scene and to a
secure setting until the Major Crimes Unit or Internal Affairs is able to interview
the officers; (2) calling the Major Crimes Unit or Internal Affairs to the scene; (3)
notifying the Shift Commander; and (4) requiring the officers to undergo drug and
alcohol testing if the injury or death in question is believed to have been accidental
(like an accidental shooting or traffic accident). Id. at 13.
III.

ANALYSIS

Smith brings three claims against Defendants: (1) failure to train, supervise,
and investigate under § 1983 (Count I); (2) failure to intervene under § 1983
(Count II); and (3) wrongful death under the Alabama Wrongful Death Act , Ala.
Code § 6-5-410 (1975), brought via § 1988 (Count III). See generally doc. 65 at 9–
15. Each of these claims is premised upon the alleged constitutional violations
against N.S. by Hughes and Dean. Therefore, before the court can assess whether
Page 21 of 38

the City, Chief Morris, and Sergeant McCarver are liable for the actions of Hughes
and Dean, the court must determine first whether these two officers violated N.S.’s
constitutional rights.
A.

Alleged Constitutional Violations

Smith claims that Hughes and Dean violated N.S.’s Fourth and Fourteenth
Amendment rights through their (1) use of excessive force and (2) failure to
provide appropriate medical care to N.S. See generally doc. 65.
1.

Excessive Force

The Fourth Amendment’s guarantee against “unreasonable searches and
seizures,” U.S. Const. amend. IV, “encompasses the plain right to be free from the
use of excessive force in the course of an arrest[, investigatory stop, or other
‘seizure’ of his person],” Graham, 490 U.S. at 395–96. If “the nature and quality of
the intrusion on the [plaintiff’s] Fourth Amendment interests” outweigh “the
countervailing government interests at stake,” the seizure has violated the
plaintiff’s constitutional rights. Tennessee v. Garner, 471 U.S. 1, 8 (1985); see also
Graham, 490 U.S. at 388. In the Eleventh Circuit, to determine whether the “nature
and quality of the intrusion” on Fourth Amendment interests surpasses the
governmental interests at stake, courts must consider: “1) the need for the
application of force, 2) the relationship between the need and the amount of force
used, and 3) the extent of the injury inflicted.” Vinyard v. Wilson, 311 F.3d 1340,
Page 22 of 38

1347 (11th Cir. 2002) (citing Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir.
1986)); see also Lee v. Ferraro, 284 F.3d 1188, 1198 n.7 (11th Cir. 2002)
(referring to this three-element analysis as the “Leslie test”).
Critically, in analyzing the force used, courts are instructed to remember that
“[t]he calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments — in circumstances that
are tense, uncertain, and rapidly evolving — about the amount of force that is
necessary . . . .” Graham, 490 U.S. at 396–97. Moreover, the right to make an
arrest or investigatory stop necessarily entails the right to use some degree of
physical coercion or threat thereof. Brown, 608 F.3d at 737 (citations omitted). As
a result, claims alleging that an officer used excessive force during the course of an
arrest or other “seizure” are analyzed under an objective reasonableness standard.
Graham, 420 U.S. at 388; see also Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th
Cir. 2008). That is, the officer’s actions “must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396.
After careful consideration of these factors, as outlined below, the court
concludes that the amount of force used by Dean and Hughes was reasonable in
light of the circumstances and thus, did not violate N.S.’s constitutional rights.

Page 23 of 38

i.

Was there a need for force?

“Graham dictates unambiguously that the force used by a police officer in
carrying out an arrest must be reasonably proportionate to the need for that force,
which is measured by the severity of the crime, the danger to the officer, and the
risk of flight.” Ferraro, 284 F.3d at 1198; see also Graham, 490 U.S. at 396.
Courts must assess these factors with the recognition that “[a] law enforcement
officer’s right to arrest necessarily carries with it the ability to use some force in
making the arrest.” Brown, 608 F.3d at 740 (citing Ferraro, 284 F.3d at 1194). In
fact, “[f]or even minor offenses, permissible force includes physical restraint, use
of handcuffs, and pushing into walls.” Id. at 740 (citing Nolin v. Isbell, 207 F.3d
1253, 1257 (11th Cir. 2000)). However, the level of force considered reasonable
lessens when an arrestee has committed a minor offense,16 is not threatening the
officer or the public, and is not resisting arrest. Id. at 739–40; see also Ferraro,
284 F.3d at 1198 (Generally, “more force is appropriate for a more serious offense
and less force is appropriate for a less serious offense.”).
Here, the officers suspected N.S. of possessing narcotics with the intent to
distribute. This is a Class B felony and, therefore, a serious crime. See Ala. Code §
13A-12-211(d) (1975). Moreover, the court must also consider the level of danger
16

Minor offenses include crimes such as disorderly conduct and obstruction. Vinyard, 311 F.3d
at 1347; see also Reese v. Herbert, 527 F.3d 1253, 1274 (11th Cir. 2008) (“misdemeanor
obstruction is a crime of ‘minor severity’ for which less force is generally appropriate”); Fils v.
City of Aventura, 647 F.3d 1272, 1288–89 (11th Cir. 2011).
Page 24 of 38

N.S. posed to the officers. Generally, “resisting arrest without force does not
connote a level of dangerousness that would justify a greater use of force.” Fils,
647 F.3d at 1288 (emphasis added). However, here, Defendants assert that N.S. hit
Hughes in the head, attempted to flee, and, when tackled, resisted arrest by
“throwing punches and swinging his elbows . . . [,] [and] twisting and turning.”
Docs. 92 at 9; 93 at 9. N.S. also “kick[ed] Agent Hughes in the chest.” Docs. 92 at
9, 29; 93 at 9, 29. As described by the officers, N.S.’s violent resistance to his
arrest connotes a level of dangerousness that would justify a somewhat greater use
of force from the officers to detain him and effectuate his arrest. See Brown, 608
F.3d at 739 (“[T]he use of pepper spray is not excessive force in situations where
the arrestee poses a threat to law enforcement officers or others, uses force against
officers, physically resists arrest, or attempts to flee.”);17 Vinyard, 311 F.3d at 1348
(“Courts have consistently concluded that the use of pepper spray is reasonable,
however, where the plaintiff is either resisting arrest or refusing police requests,
such as requests to enter a patrol car or go to the hospital.”) (citations omitted).
In sum, the severity of N.S.’s suspected crime, his physical and violent
resistance, and his attempt to flee, lead this court to conclude that Hughes and
17

The Eleventh Circuit generally does not draw a distinction between chemical spray and tasers.
For example, Fils involved a taser, but the court found “no meaningful distinction between the
two under the[ present] circumstances.” Fils, 647 F.3d at 1289 (comparing Draper v. Reynolds,
369 F.3d 1270, 1278 (11th Cir. 2004) (stating that, while a taser shock is “unpleasant,” it “did
not inflict any serious injury” on the plaintiff) with Vinyard, 311 F.3d at 1348 (describing pepper
spray as “generally of limited intrusiveness”)).
Page 25 of 38

Dean acted reasonably, under the first factor, in using a heightened level of force to
carry out N.S.’s arrest.
ii.

The relationship between the need for and the amount
of force used

The court must next consider whether the officers used force that was
proportional to the force called-for by the situation. See Vinyard, 311 F.3d at 1347.
Smith alleges, and Defendants do not deny, that Dean and Hughes tackled N.S. to
the ground, attempted to spray N.S. with O.C. spray, handcuffed him, subjected
him to two brachial plexus strikes, and used the butt of a flashlight and a glitter eye
pen to pry his mouth open. As previously stated, “[f]or even minor offenses,
permissible force includes physical restraint, use of handcuffs, and pushing into
walls.” Brown, 608 F.3d at 740. With respect to the specific force used against
N.S., first, the attempted use of O.C. spray was reasonable in light of N.S.’s
continuing resistance to the officers’ attempts to gain control of him. Second, N.S.
was suspected of committing a felony, fled from the officers, violently resisted
arrest, and attempted to dispose of the drugs by swallowing them. The officers’ use
of the force described to effectuate N.S.’s arrest was reasonable based on N.S.’s
actions. See, e.g., Brown, 608 F.3d at 739–40; Vinyard, 311 F.3d at 1348.
As to the officers’ attempts to retrieve the drugs, when an officer reasonably
believes that an arrestee has placed drugs into his mouth, the officers can use a
higher level of force to prevent the arrestee from swallowing or ingesting the
Page 26 of 38

drugs. See Johnson v. Rogers, No. 3:10-CV-50-WKW, 2012 WL 3231327, at *8
(M.D. Ala. July 11, 2012), report and recommendation adopted sub nom. Johnson
v. Rodgers, No. 3:10-CV-50-WKW, 2012 WL 3206238 (M.D. Ala. Aug. 6, 2012).
In Johnson, the officers reasonably believed that the plaintiff had placed crack
cocaine into his mouth to hide it from the officers, and the court ruled that the
officers’ acts of placing the plaintiff
in a chokehold to prevent him from swallowing the drugs suspected to
be in his mouth, as it does not violate any clearly established right for
law enforcement officers, who reasonably believe a suspect is
attempting to swallow and/or destroy drug evidence, to use reasonable
force to prevent such occurrence, including holding the suspect’s
throat and/or attempting to pry open the suspect’s mouth by placing
pressure against his/her jaw and nose
were not unreasonable “[u]nder the tense and rapidly evolving situation
confronting [the officers.]” Id. at *8.18
There are limits, however, to the amount of force officers can use on an
arrestee whom they reasonably suspect has placed drugs into his mouth. For
instance, in King v. Reap, a plaintiff placed a baggie of crack cocaine into his

18

Citing “Williams v. Bramer, 180 F.3d 699, 704 (5th Cir.1999) (with probable cause, an officer
can search a suspect’s mouth for drugs); United States v. Caldera, 421 F.2d 152, 153 (9th
Cir.1970) (when officers observe a suspect attempting to swallow drugs, they may use
reasonable force to prevent it); see also Espinoza v. United States, 278 F.2d 802, 804 (5th
Cir.1960) (in a case in which federal officers who, without a warrant, obtained drug evidence
from defendant’s mouth as he was attempting to swallow and destroy the evidence “by grabbing
the defendant about the throat,” and “attempting to pry open his mouth by placing pressure
against his jaw and nose,” the court found defendant’s objection that search and seizure occurred
without a warrant and was an excessive use of force lacked merit).”
Page 27 of 38

mouth, and when he refused to open his mouth, the officers “slammed him to the
ground,” and “beat him in the back with a flashlight while attempting to open his
mouth.” 269 F. App’x 857, 858 (11th Cir. 2008). The officers “ground[ed] his face
into the ground,” “pepper-sprayed him, and then forced a metal object into [his]
mouth, which sliced the interior of his mouth and tongue, chipped a tooth, and
caused swelling to his lips.” Id. The Eleventh Circuit held that this amount of force
was unreasonable, because the plaintiff “was not merely ‘manhandled’: he was
beaten, while handcuffed, to the extent that two or possibly three of his ribs were
broken.” Id.
King is distinguishable, however, because there is no evidence that Hughes
and Dean “manhandled” N.S. or beat him while attempting to retrieve the baggie.
Death, especially of a seventeen year old, is a tragic event. However, the record
before this court does not support a finding that the officers violated N.S.’s Fourth
Amendment rights. In light of the escalating urgency of the situation, and viewing
the officers’ actions “from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight,” Graham, 490 U.S. at 396, the force
these officers employed was proportional to the established need to detain N.S. and
retrieve the narcotics he was attempting to swallow.
iii.

The level of injury

The court must now weigh the first two Leslie factors against the extent of
Page 28 of 38

the injury inflicted. Vinyard, 311 F.3d at 1347 (citing Ferraro, 284 F.3d at 1197–
98; Leslie, 786 F.2d at 1536). This Circuit has held that a “typical arrest involves
some force or injury,” even for minor offenses, and that such injury, therefore, is
de minimis. Johnson, 2012 WL 3231327, at *8 (quoting Rodriguez v. Farrell, 280
F.3d, 1341, 1351 (11th Cir. 2002) (citing Nolin, 207 F.3d at 1258 n.4). In contrast,
when the plaintiff incurs severe injuries, the officers’ actions may be unreasonable,
depending on the urgency presented by the circumstances. See King, 269 F. App’x
at 859.
Here, N.S.’s autopsy concluded that N.S.’s cause of death is unknown. Doc.
101-2 at 2–3. The medical report indicates that N.S. “had full cardiopulmonary
arrest,”

doc.

101-4

at

11,

“was

showing

developing

pulmonary

edema/hemorrhage,” id. at 7, and that N.S.’s “[u]rine drug screen [tested] positive
for amphetamines and opiates,”19 id. at 8. N.S.’s additional injuries included
“[c]ontusions of the face, oral mucosa, chest, left upper extremities and abdomen”
and “[a]brasions of the oral mucosa, left ear and chest.” Doc. 101-2 at 2. Even
accepting that the officers’ acts contributed to N.S.’s injuries, the evidence also
supports a finding that N.S.’s own actions, such as attempting to chew and swallow
a plastic baggie filled with MDMA and his continuing resistance, including
19

The autopsy report states “The . . . blood collected upon the decedent’s arrival into the hospital
had been discarded prior to the request for autopsy examination. Therefore, the level of drugs in
the decedent’s systems at the time of the incident cannot be determined.” Doc. 101-2 at 3.
Page 29 of 38

kicking Hughes in the chest, also contributed to his injuries. The injuries directly
resulting from the force used by Hughes and Dean — contusions and abrasions of
the face, ears, oral mucosa, chest, left upper extremities, and abdomen — are
consistent with the injuries courts have found as reasonable for a suspect who fled
and resisted arrest to have incurred. See, e.g., Johnson, 2012 WL 3231327, at *8
(quoting Farrell, 280 F.3d at 1351) (in turn citing Nolin, 207 F.3d at 1258 n.4)
(holding that the plaintiff’s medically diagnosed bruising of the next and right rib,
which was consistent with being placed in a chokehold and hit in his ribcage, were
de minimis injuries). While the use of the flashlight, ink pen, and glitter eye pen is
odd and certainly suggests a gap in the training and equipping of officers, there is
no evidence that Hughes used the objects beyond the exterior of N.S.’s mouth, “up
to his teeth.” Docs. 96-2 at 29; 96-3 at 32; 101-2 at 3. Further, there is no evidence
that these objects punctured N.S.’s mouth or throat, or caused N.S. to choke. The
only “objects” that seem to have been inserted into N.S.’s mouth cavity were
Hughes’ two fingers, which she successfully used to scoop the baggie out of N.S.’s
mouth while he was choking, and to check for any remaining objects blocking
N.S.’s airway. Based on the record before this court and the pertinent case law,
Smith has failed to establish that Hughes and Dean used excessive force during the
arrest of N.S.

Page 30 of 38

2.

Deliberate indifference to serious medical needs

Smith asserts also that Hughes and Dean violated the Fourth and Fourteenth
Amendments by failing to provide medical relief to N.S. Doc. 65 at 7, 9–10. The
court construes this as a claim of deliberate indifference to serious medical needs
under the Fourteenth Amendment. 20 To prevail on this claim, Smith “must satisfy
both an objective and a subjective inquiry. First, [Smith] must prove an objectively
serious medical need. Second, [Smith] must prove that the [government] official
acted with deliberate indifference to that need.” Andujar v. Rodriguez, 486 F.3d
1199, 1203 (11th Cir. 2004) (quoting Bozeman v. Orum, 422 F.3d 1265, 1267
(11th Cir. 2005)) (per curiam) (internal quotations omitted).
Smith easily satisfies the first element. “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.” Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir.
1994). The medical need is serious if it is “one that, if left unattended, ‘pos[es] a
substantial risk of serious harm.’” Farrow v. W., 320 F.3d 1235, 1243 (11th Cir.

20

“Claims of deliberate indifference to the serious medical needs of pretrial detainees are
governed by the Fourteenth Amendment’s Due Process Clause rather than by the Eighth
Amendment’s Cruel and Unusual Punishment Clause, which governs similar claims by convicted
prisoners.” Andujar v. Rodriguez, 486 F.3d 1199, 1204 (11th Cir. 2007) (citing Lancaster v.
Monroe Cty., 116 F.3d 1419, 1425 n.6 (11th Cir.1997)). Therefore, we analyze Smith's claim
under the decisional law of both amendments.

Page 31 of 38

2003) (quoting Taylor v. Adams, 221 F.3d 1254, 1257 (11th Cir. 2000) (internal
quotations omitted). N.S.’s breathing difficulties qualify as an objectively serious
medical need — N.S. started to choke on a plastic baggie and could not breathe,
vomited after Hughes retrieved the plastic baggie from his mouth, and stopped
breathing completely and “turn[ed] blue” before paramedics arrived.
Next, to prove that the officers acted with “deliberate indifference,” Smith
must show: “(1) that [Defendants] knew of a risk of serious harm; (2) that [they]
disregarded that risk; and (3) that the conduct of [the officers] amounted to more
than gross negligence.” Andujar, 486 F.3d at 1203–04 (internal citations omitted).
“Negligence . . . even rising to the level of medical malpractice, does not constitute
deliberate indifference.” McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir.
1999). Rather, for an officer’s response to a serious medical need to rise to
deliberate indifference, the treatment must be “so cursory as to amount to no
treatment at all.” Taylor v. Adams, 221 F.3d 1254, 1259 (11th Cir. 2000) (quoting
Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985)) (internal
quotations omitted). Relevant here, because Smith essentially contends that the
officers delayed in providing treatment to N.S., a “delay in treatment for obviously
serious conditions where ‘it is apparent that delay would detrimentally exacerbate
the medical problem,’ the delay does seriously exacerbate the medical problem,
and the delay is medically unjustified[,]” would rise to the level of deliberate
Page 32 of 38

indifference. Id. at 1259–60 (quoting Hill, 40 F.3d at 1187–89). However, the
length of the delay is critical, and, in that respect, “a split-second, emergency
choice between two options . . . under emergency circumstances demanding an
immediate decision” is distinct from longer time frames of delay in treatment. Id.
at 1260; see also Andujar, 486 F.3d at 1203 (no constitutional violation for a delay
“by two hours or less” when officers took arrestee to the hospital to stitch up his
bleeding wounds, because the original officers had already treated his wounds
while at the scene, his “vital signs were good,” and this “short delay was tolerable
to give the police an opportunity to book [him]”).
Turning now to the present facts, Smith has failed to show that the officers
acted with deliberate indifference. Based on the record before the court, the
officers did not disregard the risk N.S.’s condition posed. In fact, when the officers
realized N.S. was choking, Dean immediately called for paramedics. Moreover,
Dean and Hughes “released pressure” on N.S., and Hughes opened N.S.’s mouth to
remove the plastic baggie. After removing the baggie from N.S.’s mouth, Hughes
checked again for blockage. When N.S. began to vomit, the officers rolled N.S.
onto his side and then checked his airway again because it still sounded like he was
choking.21 As noted in Taylor, merely sending N.S. to the hospital by calling the

21

Even if the court were to determine that, at that point, the cops had no need to handcuff N.S.
after they removed the blockage, there is no evidence to support that Defendants handcuffed N.S.
with the intent to disregard a risk to N.S.’s health. If anything, it seems the officers were trying to
Page 33 of 38

paramedics would have amounted to “some medical care.” 221 F.3d at 1259. Here,
the officers not only called for paramedics, but also actively attempted to help N.S.
Unfortunately, “directly prior” to the paramedics’ arrival, N.S. stopped
breathing and was “turning blue.” Docs. 96-3 at 35, 42; 98-10 at 2. Because there
is no evidence as to whether the officers attempted CPR or waited for the
paramedics to arrive, the court assumes that the officers did not attempt CPR,
especially in light of Chief Morris’s testimony that HPD no longer trains its
officers to use CPR and other first aid. Doc. 96-8 at 35 (stating that “first response
is now for medical attention to fall to the fire . . . and ambulance service”). Still,
Smith has not provided any evidence to demonstrate that a significant amount of
time passed between the moment N.S. stopped breathing and the arrival of the
paramedics. Moreover, because this was an emergency situation and the
paramedics were en route, any split-second decision the officers may have made in
deciding to wait for the paramedics, paired with the other acts they took to help
N.S., does not rise to the level of deliberate indifference. In fact, because the
officers followed policy by calling the paramedics instead of carrying out CPR,
“[e]ven if that compliance were medically unreasonable . . ., the existence of the
policies and their dictates militates against concluding that [Defendants] actions
both secure N.S. and treat his serious medical needs. At most, the act would be considered
negligent, which does not meet the threshold for deliberate indifference. See Liese v. Indian
River Cty. Hosp. Dist., 701 F.3d 334, 344 (11th Cir. 2012) (“[D]eliberate indifference plainly
requires more than gross negligence.”) (citation omitted).
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were wanton.” Taylor, 221 F.3d at 1260 (recognizing that the jail nurse’s actions of
sending the arrestee to the hospital without carrying out any assessment or
treatment was in line with the written jail policy “requiring incoming unconscious
detainees to be ‘referred immediately for emergency care’”). In conclusion, based
on the record before the court, Smith has failed to establish that Defendants
exhibited a deliberate indifference to N.S.’s serious medical needs.
Because the officers did not subject N.S. to excessive force or exhibit
deliberate indifference to N.S.’s medical needs, Smith has failed to establish a
violation of N.S.’s constitutional rights. Consequently, and as explained briefly
below, Smith’s remaining claims also fail.
B.

Count I – Failure to Train, Supervise, and Investigate under 42
U.S.C. § 1983
1.

Municipal Liability Under 42 U.S.C. § 1983

“A municipality may be liable under § 1983 for the actions of its police
officers only if the municipality is ‘found to have itself caused the constitutional
violation at issue; it cannot be found liable on a vicarious liability theory.’”
Ludaway v. City of Jacksonville, Fla., 245 F. App’x 949, 951 (11th Cir. 2007)
(quoting Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1145 (11th Cir. 2007)).
Therefore, because in order to establish municipal liability under § 1983, a plaintiff
must show that his constitutional rights were violated, and Smith has failed to

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show that the officers violated N.S.’s constitutional rights, the City’s motion for
summary judgment is due to be granted as to Count I.
2.

Supervisory Liability Under 42 U.S.C. § 1983

“Supervisory liability under § 1983 occurs either when the supervisor
personally participates in the alleged unconstitutional conduct or when there is a
causal connection between the actions of the supervising official and the alleged
constitutional deprivation.” See Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.
1990) (citations omitted). Again, because Smith has failed to establish a
constitutional violation, her claims in Count I against Chief Morris and Sergeant
McCarver fail.
C.

Count II – Failure to Intervene under 42 U.S.C. § 1983

In Count II, Smith asserts that Dean and Hughes “failed to attempt to
prevent each other from using excessive force in violation of Minor N.S.’s
constitutional rights.” Doc. 65 at 13. It is clear that, “[i]f a police officer, whether
supervisory or not, fails or refuses to intervene when a constitutional violation such
as an unprovoked beating takes place in his presence, the officer is directly liable
under Section 1983.” Ensley v. Soper, 142 F.3d 1402 (11th Cir. 1998) (quoting
Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir.1986)). In light of the court’s finding

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that the officers did not violate N.S.’s constitutional rights, Dean and Hughes’s
motions for summary judgment are due to be granted as to Count II. 22
D.

Count III – Wrongful Death

In Count III, Smith asserts that Hughes and Dean are liable for N.S.’s death
because they “caused the death of Minor N.S. by using excessive force[.]” Doc. 65
at 13–14. “[W]hen a constitutional violation actually causes the injured parties
death, a §1983 claim can be asserted through the Alabama wrongful death statute,
Ala. Code § 6–5–410.” See Estate of Gilliam ex rel. Waldroup v. City of Pratville,
639 F.3d 1041, 1047 (11th Cir. 2011) (emphasis added).23 Summary judgment is

22

Even if Hughes and Dean had violated N.S.’s constitutional rights, the officers would have
been entitled to qualified immunity. Their use of force did not violate clearly established law
because their actions in this emergency situation were reasonable and necessary under the
circumstances. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (“Government officials
performing discretionary functions generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.”). The Circuit has found that similar types of force, such
as chokeholds, are reasonable when an arrestee attempts to swallow drugs. Espinoza v. United
States, 278 F.2d 802, 803–04 (5th Cir. 1960) (holding “that no more force was used than was
reasonably necessary” when federal officers grabbed defendant “about the throat, choking him
and attempting to pry open his mouth by placing pressure against his jaw and nose” to prevent
him from swallowing and destroying “what appeared to be . . . a quantity of narcotics”). See
Bonner v. Prichard, 661 F.2d 1206, 1209–11 (11th Cir.1981) (en banc) (adopting pre-1981 Fifth
Circuit cases).
23

The United States Supreme Court recognizes that federal law does not cover “the survival of
civil rights actions under § 1983 upon the death of either the plaintiff or defendant.” Robertson v.
Wegmann, 436 U.S. 584, 589 (1978) (quoting Moor v. County of Alameda, 411 U.S. 693, 702
n.14 (1973) (internal quotations omitted). Where federal law is “deficient” in addressing an
issue, “§ 1988 instructs us to turn to ‘the common law, as modified and changed by the
constitution and statutes of the [forum] State,’ as long as these are ‘not inconsistent with the
Constitution and laws of the United States.’” Wegmann, 436 U.S. at 588 (quoting 42 U.S.C. §
1988). Precedent in the Northern District of Alabama finds that
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due to be granted on this claim in light of the court’s finding that Smith has failed
to establish a constitutional violation.
IV.

CONCLUSION

In sum, this Court holds that Defendants did not violate N.S.’s constitutional
rights under §1983. As Counts I, II, and III all hinge on a violation of N.S.’
constitutional rights, Defendants’ motions for summary judgment are due to be
granted. The court will issue a separate order dismissing this case with prejudice.
DONE the 30th day of September, 2016.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

federal law is deficient with respect to survival, that the Alabama wrongful death
act may be adopted by reference through through § 1988, that the policies of the
federal civil rights statutes and the Alabama wrongful death act are not
inconsistent, and that the Alabama act should be adopted in toto.
Brown v. Morgan County, Ala., 518 F.Supp 661, 665 (N.D. Ala. 2013). Under Alabama’s
survivorship law, “when a constitutional violation actually causes the injured party’s death, a §
1983 claim can be asserted through the Alabama wrongful death statute, Ala. Code § 6–5–410.”
Gilliam, 639 F.3d at 1047.

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