Tims v. Dale et al

Filing 55

ORDER, GRANTING 38 Motion for Summary Judgment filed by Chief Jason Dean and the City of Atmore. Signed by Judge Callie V. S. Granade on 8/13/2014. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
REBECCA TIMS,
Plaintiff,
vs.
ORLANDO DALE, et. al.
Defendants.

)
)
)
)
)
)
)
)
)
)

Civil Action No. 13-0317-CG-C

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Chief Jason Dean’s (“Defendant
Dean”) and the City of Atmore’s (the “City”) (collectively, “Defendants”)
motion for summary judgment (Doc. 38) and supporting exhibits, along with
Plaintiff’s response in opposition (Doc. 41) and supporting exhibits, and
Defendants’ reply (Doc. 53). Upon consideration and for the reasons set forth
below, the Court finds that Defendants’ motion for summary judgment is due
to be GRANTED.
FACTUAL BACKGROUND
In the early morning hours of June 16, 2011, police officer Orlando
Dale (“Officer Dale”) picked up Rebecca Tims (“Plaintiff”) when her car ran
out of gas (Doc. 41, p. 1). After Plaintiff got into Officer Dale’s police car, he
drove her down a dark dirt road and forced her to perform oral sex on him
(Doc. 41, p. 1). This incident formed the basis of Plaintiff’s lawsuit, (Doc. 1)
which alleges causes of action against Officer Dale, police chief Jason Dean

and the City of Atmore. The Court previously entered default judgment
against Officer Dale, but Defendant Dean and the City are not bound by that
judgment (Doc. 30).
In her complaint, Plaintiff alleges Defendant Dean’s deliberate
indifference to hiring and lack of supervising Officer Dale directly and
proximately caused violations of her First, Fourth, and Fourteenth
Amendment rights (Doc. 1, p. 5). Plaintiff alleges the City of Atmore should
also be held liable under 42 United States Code Section 1983 for Dale’s
constitutional violations (Doc. 1, p. 6).
To support her claims, Plaintiff notes that in April 2011 Katie Ruth
Tims told two City of Atmore police officers about an incident involving
Officer Dale and her daughter, Breona (Doc. 41, p. 3; Exhs. 2, 3). On a
separate occasion, also in April 2011, Katie Ruth Tims personally told
Defendant Dean that she did not like Officer Dale talking to her daughter
(Doc. 41, p. 5). After hearing this complaint, Defendant Dean questioned
Officer Dale about his interaction with Breona (Doc. 41, p. 5; Doc. 53, Exh. 1,
p. 7). Officer Dale told Defendant Dean that he only spoke with Breona as she
walked along the side of the road (Doc. 41, p. 5; Doc. 53, Exh. 1, p. 7).
Defendant Dean maintains that he never learned Officer Dale’s exchange
with Breona was sexual in nature (Doc. 53, Exh. 1, p. 7), while Katie Ruth
Tims and Breona contend that they told him Officer Dale propositioned
Breona for sex (Doc. 41, Exhs. 2, 3). Katie Ruth Tims and Breona never filed

2

a formal complaint about Officer Dale with the Atmore police department or
the City (Doc. 38, Exh. 3; Doc. 53, Exh. 1, pp. 7 - 8).
On or about June 17, 2011, Plaintiff reported her encounter with
Officer Dale to the Atmore police department (Doc. 41, p. 2). After learning
about Plaintiff’s complaint, Defendant Dean told Officer Dale that he would
face disciplinary action (Doc. 53, Exh. 1, p. 8). Officer Dale then resigned from
the police force (Doc. 53, Exh. 1, p. 8).
Based on these facts, Defendants now move the Court for summary
judgment on Plaintiff’s claims, arguing 1) a municipality cannot be held liable
for the intentional torts of its employees (Doc. 38, p. 14), 2) Plaintiff failed to
identify an official city policy or custom that caused her injuries as required
for Section 1983 liability, (Doc. 38, p. 5), 3) Defendant Dean did not act with
deliberate indifference or negligently hire, train, or supervise Officer Dale
(Doc. 38, p. 17), and 4) the evidence does not show a history of widespread
abuse by Defendant Dean or the City (Doc. 53, p. 10).
SUMMARY JUDGMENT STANDARD
The Court must grant summary judgment “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.” Fed. R. Civ. P. 56(a). The trial court’s
function is not “to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “The mere existence of some

3

evidence to support the non-moving party is not sufficient for denial of
summary judgment; there must be ‘sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.’” Bailey v.
Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting Anderson, 477 U.S.
at 249).
The basic issue before the court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law.” Anderson, 477 U.S. at 251-52. The moving party bears
the burden of proving that no genuine issue of material fact exists. O’Ferrell
v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In evaluating the
argument of the moving party, the court must view all evidence in the light
most favorable to the non-moving party, and resolve all reasonable doubts
about the facts in its favor. Burton v. City of Belle Glade, 178 F.3d 1175,
1187 (11th Cir. 1999). “If reasonable minds might differ on the inferences
arising from undisputed facts, then a court should deny summary judgment.”
Id. (citations omitted).
Once the movant satisfies his initial burden under Rule 56(a), the nonmoving party “must make a sufficient showing to establish the existence of
each essential element to that party’s case, and on which that party will bear
the burden of proof at trial.” Howard v. BP Oil Co., 32 F.3d 520, 524 (11th
Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The non-

4

moving party may not rely merely on allegations or denials in its own
pleading; rather, its response, “by affidavits or as otherwise provided in [Rule
56], must set forth specific facts showing that there is a genuine issue for
trial.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 884 (1990). “A mere
‘scintilla’ of evidence supporting the [non-moving] 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)
(citation omitted).
LEGAL ANALYSIS
A. Vicarious Liability and Intentional Torts
Municipalities are persons within the meaning of Section 1983, but
Section 1983 liability does not rest on a respondeat superior theory. Okla.
City v. Tuttle, 471 U.S. 808, 817–18 (1985). As a result, “a municipality may
not be held liable under Section 1983 solely because it employs a tortfeasor.”
Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403
(1997). Alabama law further provides that a city is generally not liable for the
intentional torts of its employees. See Doe v. City of Demopolis, 799 F. Supp.
2d 1300, 1309 (S.D. Ala. 2011).
The parties do not dispute that Officer Dale committed an intentional
tort (Doc. 38, p. 14). In her response, Plaintiff concedes that municipalities
may not be held liable for constitutional deprivations on the theory of
respondeat superior (Doc. 41, p. 8). The Court, therefore, turns to whether

5

Defendants’ liability can be established through showing government conduct
caused Plaintiff harm. See Connick v. Thompson, 131 S. Ct. 1350, 1359
(2011).
B. Municipal Policy or Custom Requirement
Plaintiffs who seek to impose liability on local governments under
Section 1983 must prove that action pursuant to official municipal policy or
custom caused their injury. Id. Locating a “policy” ensures that a
municipality is held liable only for those deprivations resulting from the
decisions of its duly constituted legislative body, or of those officials whose
acts may fairly be said to be those of the municipality. McDowell v. Brown,
392 F.3d 1283, 1290 (11th Cir. 2004) (citations omitted). Similarly, an act
performed pursuant to a “custom” may subject a municipality to liability on
the theory that the relevant practice is so widespread as to have the force of
law. Bryan Cnty., 520 U.S. at 403-04. To have this effect, the custom must be
created by those whose edicts or acts may fairly be said to represent official
policy. Fundiller v. City of Cooper City, 777 F.2d 1436, 1442 (11th Cir. 1985)
(citations omitted). The policy or custom requirement prevents the
imposition of liability based upon an isolated incident. See Depew v. City of
St. Marys, 787 F.2d 1496, 1499 (11th Cir. 1986) (“Normally, random acts or
isolated incidents are insufficient to establish a custom or policy”). Rather,
the incident must result from a demonstrated practice.
The evidence does not show that Officer Dale acted pursuant to an

6

established policy or custom. The City and Defendant Dean did not adopt a
policy or create a custom that allows its officers to rape or sexually assault its
citizens. See Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.
1997) (“Obviously, the Town has no policy commanding its officers to barter
arrests for sexual favors. Likewise, the Town has no custom of allowing such
behavior on the part of its officers.”). Defendant Dean took Katie Ruth Tims’
complaint seriously, and questioned Officer Dale about his interaction with
Breona. Defendants did not condone Officer Dale’s behavior; to the contrary
Defendant Dean told Officer Dale that he would face disciplinary actions
promptly after Plaintiff filed her complaint. Accordingly, Defendants are not
liable under Section 1983 for misconduct pursuant to an established
municipal policy or custom.
C. Deliberate Failure to Train
Municipal liability also may be based on a claim of inadequate training
“where a municipality’s failure to train its employees in a relevant respect
evidences a deliberate indifference to the rights of its inhabitants [such that
the failure to train] can be properly thought of” as an actionable city policy or
custom. City of Canton v. Harris, 489 U.S. 378, 389 (1989). A city is not
automatically liable under Section 1983 even if it inadequately trained or
supervised its police officers and those officers violated a plaintiff’s
constitutional rights. Connick, 131 S. Ct. at 1359. Instead, to establish a
Section 1983 claim based on a policy or custom of inadequate training,

7

plaintiffs bear “the burden of proving both (1) that [Defendants were]
deliberately indifferent to the need to train [its police officers], and (2) that
the lack of training actually caused the violation[s].” Connick, 131 S. Ct. at
1358.
To establish “deliberate indifference,” a plaintiff must present some
evidence that the municipality or supervisor knew of a need to train or
supervise in a particular area and the municipality made a deliberate choice
not to take any action. Gold v. City of Miami, 151 F.3d 1346, 1350-51 (11th
Cir. 1998) (citations omitted). Accordingly, a plaintiff must show a defendant
had actual or constructive notice of a need to train or supervise in a
particular area; otherwise liability based on a failure to train and supervise
does not follow. Id. (citations omitted); see also Bell v. City of York, Ala., 7:09CV-0694-SLB, 2013 WL 1352022 (N.D. Ala. 2013) (plaintiff must show
defendant knew corrective measures were needed and refused to apply the
corrective measures, or that the violation of federal rights was highly
predictable). In Brooks v. Scheib, for example, even though ten citizens filed
complaints about a police officer’s misconduct, the court concluded that the
City did not have any notice of past police misconduct because plaintiff “never
demonstrated that past complaints of police misconduct had any merit” and
the number of complaints had “no relation to their validity.” 813 F.2d 1191,
1193 (11th Cir. 1987).
Plaintiff’s failure to create a fact issue as to deliberate indifference and

8

the adequacy of Defendants’ training program dooms her claim for liability
based on failure to train. Defendants’ awareness of past misconduct is key for
such a claim, and in this case a lone complaint about Officer Dale’s sexually
charged conversation with Breona did not put Defendants on notice that
Officer Dale might later use force and sexually assault a citizen. The facts
further show that the City never learned about Katie Ruth Tims’ complaint.
Moreover, Plaintiff provides no evidence of any flawed hiring practices to
establish that Defendants acted with deliberate indifference when they hired
Officer Dale. Because there is no evidence showing Defendants had actual or
constructive notice that Officer Dale might sexually assault a citizen, a jury
could not find Defendants acted with deliberate indifference for failure-totrain liability.
Additionally, Plaintiff failed to identify any specific deficiency in
Defendants’ training programs that caused the violation in this case.
Ordinarily, municipal liability based on a failure-to-train theory requires the
plaintiff to show additional training would have been helpful in making
difficult decisions, Connick, 131 S. Ct. at 1363, but a difficult decision is not
at issue here. Officer Dale violated an obvious right when he assaulted
Plaintiff; he was not faced with a difficult situation in which more training
would have been helpful. Officer Dale knew that police officers are not
authorized to assault the citizenry, and yet he deliberately engaged in
wrongful conduct. Accordingly, Defendants are not liable under Section 1983

9

based on deliberate indifference or a failure to train.
D. Single-Incident Liability or Obvious Need
In a narrow range of circumstances a city may be liable under Section
1983 based on a single incident. Connick, 131 S. Ct. at 1361. Where a lone
violation makes it so “obvious” that there is a need for training, this showing
of “obviousness” can substitute for the pattern of violations ordinarily
necessary to establish municipal culpability. Id.
The obvious need for training police officers to refrain from sexually
assaulting the public is not present here. Plaintiff has not argued or
presented any evidence upon which the Court could infer that Officer Dale or
other officers are unfamiliar with federal and state laws prohibiting sexual
assault, or that such individuals, in the absence of training, had no way to
acquire that knowledge. To this end, recurring constitutional violations are
not the “obvious consequence” of failing to provide officers with formal
training about how to keep from sexually assaulting citizens. Bryan Cnty.,
520 U.S. at 409. Defendants are not liable under Section 1983 as the result of
this single incident with Officer Dale.
E. Supervisory Liability for Fourteenth-Amendment Claim
Defendants move to dismiss Plaintiff’s claims for supervisory liability,
which are Section 1983 claims pleaded as violations of equal protection under
the Fourteenth Amendment. Plaintiff cannot show that Defendant Dean is
liable in his individual capacity under a theory of supervisory liability.

10

“Supervisory liability under Section 1983 occurs either when the supervisor
personally participates in the alleged unconstitutional conduct or when there
is a causal connection between the actions of a supervising official and the
alleged constitutional deprivation.” Cottone v. Jenne, 326 F.3d 1352, 1360
(11th Cir. 2003). “The necessary causal connection can be established when a
history of widespread abuse puts the responsible supervisor on notice of the
need to correct the alleged deprivation, and he fails to do so.” Id. (quotations
omitted). The causal connection can also be established when 1) the
supervisor’s improper “custom or policy ... resulted in deliberate indifference
to constitutional rights,” or 2) “by facts which support an inference that the
supervisor directed the subordinates to act unlawfully or knew that the
subordinates would act unlawfully and failed to stop them from doing so.”
Gonzalez v. Reno, 325 F.3d 1228, 1234 - 35 (11th Cir. 2003) (citations
omitted).
Plaintiff did not present evidence showing a causal connection between
Defendant Dean’s actions and her constitutional deprivation. First, Plaintiff
shows no history of widespread abuse that put Defendant Dean on notice that
Officer Dale might commit sexual assault. One complaint, alleging that
Officer Dale propositioned a citizen for sex, does not amount to widespread
abuse. Second, as discussed above, Defendant Dean did not establish a
custom or policy allowing officers to commit sexual assault. Defendant Dean
took Katie Ruth Tims’ complaint seriously and questioned Officer Dale about

11

the incident. Defendant Dean also informed Officer Dale that he would face
disciplinary action after Plaintiff filed her complaint against him. Defendant
Dean acted on both complaints. Finally, the facts do not show that Defendant
Dean knew Officer Dale would sexually assault Plaintiff. Although Katie
Ruth Tims’ complaint may have alerted Defendant Dean to the need to
monitor Officer Dale’s interactions with the public more carefully, this does
not amount to knowing Officer Dale would sexually assault a member of the
public. Once Defendant Dean learned about Plaintiff’s complaint, he
confronted Officer Dale and Dale resigned. Defendants are not liable under a
theory of supervisory liability.
F. Abandoned First- and Fourth-Amendment Claims
Plaintiff alleged in her complaint that Defendants violated her Firstand Fourth-Amendment rights (Doc. 1, pp. 5 - 6). In her response to
Defendants’ motion for summary judgment, however, Plaintiff only addresses
Defendants’ liability for violating her Fourteenth-Amendment rights. In
opposing a motion for summary judgment, a party may not rely on her
pleadings to avoid judgment against her. Grounds alleged in the complaint
but not relied on in summary judgment are deemed abandoned. ADR Trust
Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995). Here, Plaintiff did
not respond to Defendants’ motion for summary judgment on the First- and
Fourth-Amendment claims. Therefore, she has abandoned them.

12

CONCLUSION
After careful consideration, the Court finds that there are no genuine
disputes regarding any material facts and the movant is entitled to summary
judgment as a matter of law. After viewing the evidence in a light most
favorable to the non-moving party, Plaintiff has not established Defendants’
liability under Section 1983. Accordingly, the Defendants’ motion for
summary is hereby GRANTED.
DONE and ORDERED this 13th day of August, 2014.
/s/ Callie V.S. Granade
UNITED STATES DISTRICT JUDGE

13