Hawk v. Klaetsch et al
Order granting 5 MOTION to Dismiss. Conecuh County, the Conecuh County Commission and Sheriff Edwin Booker are dismissed as defendants for failure to state a claim on which relief can be granted. The defendants' request for award of costs and fees is denied. Signed by Chief Judge William H. Steele on 4/3/2012. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MICHAEL GABRIEL HAWK,
SEAN KLAETSCH, et al.,
) CIVIL ACTION 12-0058-WS-B
This matter is before the Court on the motion of defendants Conecuh County
Commission (“the Commission” or “the County”)1 and Conecuh County Sheriff Edwin
Booker to dismiss. (Doc. 5). The parties have filed briefs in support of their respective
positions, (Docs. 6, 19, 22), and the motion is ripe for resolution.
As relevant to the movants, the complaint alleges that the plaintiff was arrested by
a city police officer for failure to register as a sex offender and was taken to the Conecuh
County jail, where he was placed in isolation. After seven days he was allowed to take a
shower. Although other inmates in isolation were taken to the trustees’ dorm for their
shower, the plaintiff was taken to a dorm known to have violent criminals and gang
members. A guard stated he would stand outside the shower, but he left. Inmates
attacked the plaintiff at the request of another defendant and inflicted a broken nose, a
broken tooth and two lost teeth, among other injuries. The altercation occurred in an area
The complaint describes the Commission as the governing body of the County and
identifies the defendant sometimes as the County and sometimes as the Commission. (Doc. 1 at
3, 15-16). They are for present purposes the same.
clearly visible from the jail’s control booth, but no one came to assist the plaintiff until he
managed to push a wall button to summon assistance. The plaintiff was thereafter denied
permission to see a dentist, receive pain medication or be sent to a mental health facility,
although he was taken to a hospital. (Doc. 1 at 6-7).
Count VIII alleges that Booker’s “deliberate indifference to the hiring, lack of
training and supervision of his deputies, jailers and of other jail personnel” resulted in the
plaintiff being “brutally assaulted, suffer[ing] injuries, and [being] denied needed medical
attention,” in violation of the plaintiff’s Fifth, Eighth and Fourteenth Amendment rights.
Count IX alleges that Booker’s actions represent official policy of the
Commission, rendering the Commission liable for the constitutional violations set forth in
The movants first attack the sufficiency of the plaintiff’s pleading under Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937
(2009). Booker also invokes qualified immunity, and the Commission denies potential
legal liability for the conduct of Booker. The Court considers these arguments in turn.
To survive dismissal under Rule 12(b)(6), a complaint must first satisfy the
pleading requirements of Rule 8(a)(2). Twombly, 550 U.S. at 555. “A pleading that
states a claim for relief must contain … a short and plain statement of the claim showing
that the pleader is entitled to relief ….” Fed. R. Civ. P. 8(a)(2). Rule 8 establishes a
regime of “notice pleading.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 513-14
(2002). It does not, however, eliminate all pleading requirements.
First, the complaint must address all the elements that must be shown in order to
support recovery under one or more causes of action. “At a minimum, notice pleading
requires that a complaint contain inferential allegations from which we can identify each
of the material elements necessary to sustain a recovery under some viable legal theory.”
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 960 (11th Cir. 2009) (emphasis and
internal quotes omitted).
Pleading elements is necessary, but it is not enough to satisfy Rule 8(a)(2). The
rule “requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do” to satisfy that rule. Twombly, 550 U.S. at 555.
There must in addition be a pleading of facts. Though they need not be detailed,
“[f]actual allegations must be enough to raise a right to relief above the speculative level
....” Id. That is, the complaint must allege “enough facts to state a claim for relief that is
plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. “The
plausibility standard … asks for more than a sheer possibility that the defendant has acted
unlawfully,” and “[w]here a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Id. (internal quotes omitted). A complaint lacking “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face” will
not “survive a motion to dismiss.” Id. But so long as the plausibility standard is met, the
complaint “may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 556
(internal quotes omitted).
Booker is sued as a supervisor, because he “was in charge of the deputies and
jailers … and was responsible for the hiring, training, supervision, direction and conduct
of the jail staff.” (Doc. 1 at 3). “Supervisory liability lies where the defendant personally
participates in the unconstitutional conduct or there is a causal connection between such
conduct and the defendant’s actions.” Harper v. Lawrence County, 592 F.3d 1227, 1236
(11th Cir. 2010). The causal connection can be established in any of three ways (for a
total of four potential bases of liability). The first requires both a “history of widespread
abuse” placing the supervisor “on notice of the need to correct the alleged deprivation”
and the supervisor’s failure to do so. The second is established “when a supervisor’s
custom or policy … result[s] in deliberate indifference to constitutional rights.” The third
requires that the supervisor “directed the subordinates to act unlawfully” or “knew” they
would do so “and failed to stop them from doing so.” Id. (internal quotes omitted). As
discussed below, the complaint alleges no facts making any of these four potential bases
of Booker’s supervisory liability plausible.2
First, the complaint does not accuse Booker of personally participating in the
plaintiff’s beating or in the denial of medical treatment, and it is quite plain from the
complaint’s thorough rendition that Booker did not personally participate. Even in brief,
the plaintiff does not contend otherwise.
Second, the complaint does not allege that Booker directed his subordinates to
beat the plaintiff and deny him treatment. Similarly, it does not allege that he knew the
subordinates would do so and yet failed to stop them. Again, the plaintiff in brief does
not attempt to rescue his complaint on this ground.
As noted, the complaint faults Booker for failing to train and supervise jail
personnel adequately. A failure to train or supervise can support supervisory liability, but
there must be a history of widespread abuse putting the supervisor on notice of the need
to correct the conduct by additional training or supervision. Cotton v. Jenne, 326 F.3d
1352, 1361-61 (11th Cir. 2003). The complaint alleges no such history and no such
notice. Nor does the plaintiff assert any such history or notice in his brief.
The only avenue left open to the plaintiff, then, is to establish that a custom or
policy of Booker resulted in deliberate indifference to his constitutional rights.
The movants suggest there is no such animal as supervisory liability after Iqbal. (Doc.
6 at 11, 12 n.4). Given the Court’s analysis herein, there is no need to explore this suggestion in
detail. The Court notes, however, that the Eleventh Circuit in Harper upheld a supervisory
liability claim post-Iqbal.
Though the plaintiff cites no authority for the proposition, the Court assumes for
argument that a supervisor’s studied refusal to train or supervise can amount to a “custom
or policy” for purposes of imposing supervisory liability. But the complaint alleges no
such custom or policy. In his brief, the plaintiff suggests that the mere fact he was
assaulted and denied treatment makes it plausible that such a custom or policy existed,
(Doc. 19 at 3), but the Eleventh Circuit has already rejected that proposition. Barr v.
Gee, 437 Fed. Appx. 865, 875 (11th Cir. 2011) (county liability).
Even had the existence of such a custom or policy been plausibly alleged, the
claim would fail. A municipal custom or policy of failure to train or supervise is
actionable only if the city was deliberately indifferent to the rights of its inhabitants,
Lewis v. City of West Palm Beach, 561 F.3d 1288, 1293 (11th Cir. 2009), and the plaintiff
acknowledges that the same standard requires him to show that Booker was deliberately
indifferent to the danger posed by his failure to train or supervise. (Doc. 1 at 14-15; Doc.
19 at 4). Deliberate indifference requires a showing that the defendant was on notice of a
need to train or supervise in a particular area and made a deliberate choice not to do so.
Lewis, 561 F.3d at 1293. That notice must spring either from a past “pattern of
constitutional violations” or a likelihood of such violations “so high that the need for
training would be obvious,” id., and the complaint alleges neither. An unadorned
allegation of deliberate indifference (which is all the complaint provides) is but a label, a
conclusion, a formulaic recitation of elements, which Twombly identifies as inadequate to
satisfy Rules 8(a)(2) and 12(b)(6). 550 U.S. at 555. Without a pleading of facts making
the allegation of deliberate indifference plausible, the claim must be dismissed. E.g., Lee
v. Alachua County, 2012 WL 555805 at *1 (11th Cir. 2012); Simpson v. Stewart, 386 Fed.
Appx. 859, 861 n.1 (11th Cir. 2010); Brown v. Hillsborough County Sheriff’s Office, 342
Fed. Appx. 552, 554-55 (11th Cir. 2009).
Because the complaint as to Booker fails to comply with the precepts of Twombly
and Iqbal, it is due to be dismissed on that basis. Because the complaint as to the
Commission depends on the complaint as to Booker, it is due to be dismissed on the same
II. Qualified Immunity.
“[G]overnment 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “[T]he burden is first on the
defendant to establish that the allegedly unconstitutional conduct occurred while he was
acting within the scope of his discretionary authority.” Harbert International, Inc. v.
James, 157 F.3d 1271, 1281 (11th Cir. 1998). The burden then shifts to the plaintiff to
show that the defendant’s conduct “violated a clearly established statutory or
constitutional right.” Grayden v. Rhodes, 345 F.3d 1225, 1231 (11th Cir. 2003). The
inquiry may be broken down into two parts: (1) whether the facts alleged, if true, would
establish a violation of the plaintiff=s rights; and (2) whether these rights were clearly
established at the time of the alleged deprivation. Id.
“[T]he burden is first on the defendant to establish that the allegedly
unconstitutional conduct occurred while he was acting within the scope of his
discretionary authority. ... If, and only if, the defendant does that will the burden shift to
the plaintiff to establish that the defendant violated clearly established law.” Harbert
International, 157 F.3d at 1281 (emphasis added). The reason is that an official acting
outside the scope of his discretionary authority “ceases to act as a government official
and instead acts on his own behalf,” so that “the policies underlying the doctrine of
qualified immunity no longer support its application.” Id.
For purposes of federal qualified immunity analysis, a defendant acts within his
discretionary authority when “his actions were undertaken pursuant to the performance of
his duties and within the scope of his authority.” Rich v. Dollar, 841 F.2d 1558, 1564
(11th Cir. 1988) (internal quotes omitted). That is, “[w]e ask whether the government
employee was (a) performing a legitimate job-related function (that is, pursuing a jobrelated goal), (b) through means that were within his power to utilize.” Holloman ex rel.
Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). “The inquiry is not whether
it was within the defendant’s authority to commit the allegedly illegal act,” but “whether
the act complained of, if done for a proper purpose, would be within, or reasonably
related to, the outer perimeter of an official=s discretionary duties.” Harbert
International, 157 F.3d at 1282 (internal quotes omitted). For example, the issue is not
whether a marshal has the authority to deliver a prisoner into unconstitutional conditions
but whether he has the authority to transport and deliver prisoners. Id. (describing Jordan
v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994)).
On its face, the complaint alleges that Booker was responsible for the training,
supervision, direction and conduct of jail personnel. (Doc. 1 at 3). It then alleges that
Booker was deliberately indifferent to these official responsibilities. (Id. at 14-15). The
complaint itself thus establishes that Booker was acting within his discretionary authority,
a proposition the plaintiff does not dispute. (Doc. 19 at 3-5).3
The discussion in Part I resolves the second part of the qualified immunity
analysis. The facts alleged, if true, would not establish a violation of the plaintiff’s
constitutional rights by Booker, because they do not present a plausible basis for
supervisory liability. Thus, Booker is entitled to qualified immunity and dismissal under
See, e.g., Daniels v. City of Hartford, 645 F. Supp. 2d 1036, 1057 (M.D. Ala. 2009)
(“[C]ourts have uniformly held that supervision of a jail and training of corrections of officers
[sic] is an activity within the discretionary authority of a County Sheriff in Alabama.”); Btesh v.
City Maitland, 2011 WL 3269647 at *37 n.34 (M.D. Fla. 2011) (police chief’s “alleged failure to
train and supervise police officers is a matter within his discretionary authority”); Herrick v.
Carroll County, 2009 WL 3094843 at *9 (N.D. Ga. 2009) (“There is no question that Sheriff
Langley was acting within his discretionary authority in training and supervising his subordinates
Rule 12(b)(6). Pearson v. Callahan, 555 U.S. 223, 232 (2009); Skrtich v. Thornton, 280
F.3d 1295, 1306 (11th Cir. 2002).4
III. County Liability.
The complaint alleges that Booker’s actions represent the official policy of the
County “in matters of law enforcement, general operation of the Conecuh County Jail,
and the jail’s security.” The complaint concludes that the County is liable for Booker’s
alleged constitutional violations. (Doc. 1 at 15).
In Alabama, “the duties of the counties with respect to the jails are limited to
funding the operation of the jail and to providing facilities to house the jail,” and “[t]he
County has no authority to manage the sheriff’s employees.” Turquitt v. Jefferson
County, 137 F.3d 1285, 1289 (11th Cir. 1998) (en banc) (internal quotes omitted).
Consequently, “[t]he County cannot be liable for the harms that befall jail inmates due to
improper operation of the jail or negligent supervision of its inmates because the County
has no responsibility in that area.” Id. at 1291.
Attempting to dodge this bullet, the plaintiff claims that the complaint actually
bases the County’s liability on its failure to satisfy its obligation, as delineated in
Turquitt, to provide adequate jail funding, including for training and for surveillance
monitoring equipment. (Doc. 19 at 5). But the complaint patently makes no such
allegation. While its preliminary description of the Commission mentions its duty “to
provide funding for personnel, equipment, medical care, services and facilities necessary
to properly operate the jail,” (Doc. 1 at 3), nowhere does the complaint allege that the
“Because qualified immunity is only a defense to personal liability for monetary awards
resulting from government officials performing discretionary functions, qualified immunity may
not be effectively asserted as a defense to a claim for declaratory or injunctive relief.” Ratliff v.
DeKalb County, 62 F.3d 338, 340 n.4 (11th Cir. 1995); accord Swint v. City of Wadley, 51 F.3d
988, 1001 (11th Cir. 1995); D’Aguanno v. Gallagher, 50 F.3d 877, 879 (11th Cir. 1995). The
complaint, however, seeks only damages. (Doc. 1 at 15).
Commission violated this duty. Instead, as quoted above, it charges only a failure with
respect to law enforcement, jail security and general operation of the jail – all of which
areas lie beyond the County’s authority and thus, under Turquitt, beyond the reach of
civil rights liability.
For the reasons set forth above, the motion to dismiss is granted. Conecuh
County, the Conecuh County Commission and Sheriff Edwin Booker are dismissed as
defendants for failure to state a claim on which relief can be granted.5
DONE and ORDERED this 3rd day of April, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
The movants’ motion includes a request for an award of costs and attorneys’ fees under
Section 1988. (Doc. 5 at 2; Doc. 6 at 18). Their briefing does not address, much less
demonstrate satisfaction of, the exacting standard for such an award to a prevailing defendant.
The request, construed as a motion for such costs and fees, is thus denied.
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