Raby v. Reece et al

Filing 43

ORDER granting 34 Motion for Summary Judgment. This action is dismissed with prejudice. Signed by Chief Judge William H. Steele on 4/25/2016. (tgw)

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
SENECA RABY,
Plaintiff,
v.
TOMMIE REESE, et al.,
Defendants.

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CIVIL ACTION 15-0159-WS-C

ORDER
This matter comes before the Court on defendants’ Motion for Summary Judgment (doc.
34). The Motion has been briefed and is now ripe for disposition.
I.

Nature of the Case.
Plaintiff, Seneca Raby, initiated this action by filing a pro se Prisoner Complaint Under

42 U.S.C. § 1983 (doc. 1) against a host of defendants relating to an incident in which he was
twice bitten by a police dog of the City of Demopolis Police Department. After filing his pro se
Complaint, Raby retained counsel, who prepared an Amended Complaint (doc. 29) that is now
the operative pleading in this lawsuit. The Amended Complaint names as defendants Tommie
Reese, in his official capacity as Chief of Police of the City of Demopolis, Alabama; Demopolis
Police Officer Chase Courtney; Demopolis Police Officer Dion Pritchett, Jr.; and the City of
Demopolis, Alabama.1

1

The Amended Complaint also purports to name as defendants “Fictitious
Defendants A through D.” The pleading describes these fictitious defendants only in general
terms as “officers on duty for the City of Demopolis Police Department at the time of the
incident.” (Doc. 29, ¶ 11.) However, fictitious-party pleading is generally not permitted in
federal court, absent certain circumstances that are not present here. See, e.g., Richardson v.
Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (“As a general matter, fictitious-party pleading is
not permitted in federal court.”); John Hancock Life Insurance Company (USA) v. Andrews,
2015 WL 8346965, *1 n.1 (N.D. Ga. Dec. 8, 2015) (“Fictitious party pleading is not permitted in
federal court, unless Plaintiff describes the defendants with enough specificity to determine their
identities.”); Dubose v. City of Hueytown, 2015 WL 5011383, *4 (N.D. Ala. Aug. 24, 2015)
(Continued)

The Amended Complaint alleges that the defendant officers used excessive force against
Raby on January 30, 2014, causing him to sustain “permanent physical and psychological
trauma.” (Doc. 29, ¶ 2.) His pleading asserts the following causes of action: (i) Count I, a §
1983 claim for excessive force alleging that defendants used unnecessary and excessive force in
causing or allowing the K-9 to attack Raby, and that the City “is liable for the actions of its
employees” (id., ¶ 21); (ii) Count II, a § 1983 failure to train / supervise claim against the City
and Chief Reese for failing “to adequately train and supervise Defendant Officers in the areas of
use of excessive force, use of canine units, and arrest procedures” (id., ¶ 28); (iii) Count III, a
state-law claim for intentional infliction of emotional distress, based on defendants having “used
a canine to scare, control, and intimidate Raby” (id., ¶ 37); (iv) Count IV, a state-law claim for
assault and battery, predicated on defendant Officer Courtney’s “harmful and highly offensive”
touching of Raby (id., ¶ 43), with vicarious liability for the City; (v) Count V, a state-law claim
for wantonness; and (vi) Count VI, a state-law claim for outrage positing that “Defendants knew
or should have known that Raby was likely to suffer mental distress and could have become
severely physically hurt by using a canine unit to attack Raby” (id., ¶ 53).
The style of the Amended Complaint reflects that Chief Reese is sued “in his official
capacity” (doc. 29, at 1); however, the pleading lacks any designation as to whether Officers
Courtney and Pritchett are sued in their individual capacities, their official capacities, or both. In
his summary judgment brief, however, Raby repeatedly, unambiguously clarifies that the
individual defendants are sued exclusively in their official capacities.2 Plaintiff is bound by his
attorney’s clear disclaimers on this point, and this Order proceeds in recognition of his express

(“Fictitious party practice is generally not permitted in federal court.”); see generally Rule 10(a),
Fed.R.Civ.P. (“The title of the complaint must name all the parties ….”). In accordance with this
general rule, and the inapplicability of the narrow exceptions to same, Raby’s claims against
Fictitious Defendants A through D are dismissed.
2

See doc. 41, at 25 (“Raby has sued the city of Demopolis in addition to the
individual defendants in their official capacities, rather than in their personal capacities”), 30
(“Raby has brought this lawsuit against the Defendants in their official, not personal capacities.
The Defendants’ state-agent immunity argument is irrelevant because it would only apply if
Raby brought this suit against the officers in their personal capacities.”).

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representations in court filings that the individual defendants are not sued in their individual
capacities, but only in their official capacities.
II.

Background Facts.3
A.

Raby’s Apprehension and Arrest.

It had snowed in Demopolis, Alabama, so Seneca Raby took the day off from work on
January 30, 2014 and played dominoes. (Raby Dep. (doc. 35-1), at 23.) That evening, Raby
went to a local restaurant/lounge called the Red Barn to shoot pool and drink beer. (Id. at 23,
25.) At some point, things turned ugly when Raby became embroiled in a verbal altercation with
an unknown female patron about a long-forgotten topic. (Id. at 26-27.) When Raby eventually
left the establishment, he was accosted by three individuals who “jumped out of the truck.” (Id.
at 27-28.) So Raby drew his firearm that he kept in his vehicle’s center console and discharged it
in the air at least three times. (Id. at 28-29.) His stated objective was “just to let them know to
leave me alone.” (Id. at 29.) The strategy succeeded, but yielded unanticipated consequences.
When he stopped shooting, Raby heard approaching sirens, causing him to surmise (correctly)
that the police were en route. (Id. at 30.) In response, Raby fled on foot to a nearby shopping
area and lay down in a “little brush” behind an AT&T store. (Id. at 30-31.) Sometime before the
police arrived, Raby threw the gun because, being a convicted felon and therefore a prohibited
person under federal law, he “didn’t want to get caught with it.” (Id. at 33.)
For their part, Officers Pritchett and Courtney had been part of a group of Demopolis
police officers congregated at a Chevron station a “couple hundred yards” from the Red Barn
when their role in the evening’s events began. (Pritchett Dep. (doc. 35-2), at 11-12; Courtney

3

The Court is mindful of its obligation under Rule 56 to construe the record,
including all evidence and factual inferences, in the light most favorable to the nonmoving party.
See Skop v. City of Atlanta, GA, 485 F.3d 1130, 1136 (11th Cir. 2007). Thus, plaintiff’s evidence
is taken as true and all justifiable inferences are drawn in his favor. Also, federal courts cannot
weigh credibility at the summary judgment stage. See Feliciano v. City of Miami Beach, 707
F.3d 1244, 1252 (11th Cir. 2013) (“Even if a district court believes that the evidence presented by
one side is of doubtful veracity, it is not proper to grant summary judgment on the basis of
credibility choices.”). Therefore, the Court will “make no credibility determinations or choose
between conflicting testimony, but instead accept[s] [Raby’s] version of the facts drawing all
justifiable inferences in [his] favor.” Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008).

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Dep. (doc. 35-3), at 43.)4 Each officer had his own patrol car at that location; moreover, Officer
Courtney was a certified K-9 officer whose dog, a German shepherd named Bo, was in his
vehicle with him. (Raby Dep., at 52; Pritchett Dep., at 12; Courtney Dep., at 44; Clarke Dep.
(doc. 35-5), at 42.) As the officers talked at the Chevron, they heard what sounded like gunshots.
Moments later, dispatch called to alert them that a suspect was shooting at the Red Barn.
(Pritchett Dep., at 13.) Multiple officers immediately drove to the scene. Upon their arrival, a
witness approached Officer Courtney’s vehicle and said that “a man had been shooting” and that
the witness, who was observed to be hobbling, “thought he had been shot in the foot.” (Courtney
Dep., at 43.) Additionally, a woman ran to Officer Pritchett’s vehicle, indicated that “Seneca
Raby was shooting,” and advised that Raby “took off running toward the wood line.” (Pritchett
Dep., at 13.) Although Officer Pritchett did not know Raby by name, he realized that he knew
Raby from the description given by the female witness (i.e., that Raby “wore those loopy
earrings, and he had a baby by another female”). (Id. at 14-15.)
Based on these witness reports, at least three officers, including Officers Courtney and
Pritchett, set up a perimeter near the wood line. Officer Pritchett angled his car towards the
woods, “turned [his] lights on bright and turned [his] take-downs on,” and activated his “bright
LED flashlight” in that direction. (Pritchett Dep., at 15, 18.) According to Officer Pritchett, he
was “flashing [his] flashlights throughout the wood line” and “light[ing] up the trees” because
“LED is pretty bright.” (Id. at 20.) Had there been a person standing or kneeling there, Officer
Pritchett “would have been able to see the person with [his] flashlight on.” (Id. at 21, 22-23.)
Meanwhile, Officer Courtney pulled his car to a stop near the wood line, with high beams,
spotlight and blue lights all activated. (Courtney Dep., at 58.) His lights were all shining
towards the woods “to illuminate whatever was in there.” (Id. at 60.)

4

In his summary judgment brief, plaintiff objects to defendants referencing
defendant Courtney as “Officer Courtney,” on the grounds that this defendant is no longer
employed as a police officer. (Doc. 41, at 1 n.2.) The objection is frivolous. At all material
times, defendant Courtney was a patrol officer with the City of Demopolis Police Department,
acting in his capacity as a patrol officer with the City of Demopolis Police Department. Raby is
suing him solely in that capacity. It is, therefore, both accurate and appropriate to refer to him as
“Officer Courtney” in the context of summary judgment briefing providing a narrative of events
on the night in question.

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As fate would have it, Officer Courtney parked on the side of the AT&T store building,
“pretty close” to Raby’s hiding place. (Raby Dep., at 34.) Upon parking, Officer Courtney
exited the vehicle and retrieved Bo (the German shepherd) from the back seat. (Courtney Dep.,
at 58.) Raby saw him do this. (Raby Dep., at 34.) At around this time, Officer Courtney yelled
for Raby to come out. (Courtney Dep., at 59; Raby Dep., at 36.) In response, Raby got onto his
knees and put his hands up in the air. (Raby Dep., at 34, 36, 38.) Raby knows that Officer
Courtney could see him at that time because Raby “wasn’t far” from Officer Courtney’s position
and his headlights were shining on Raby. (Id. at 35-36, 38.)5 Thus, Raby had complied with
Officer Courtney’s directive, and Officer Courtney knew it. (Id. at 38.)
Even though Raby had gone to his knees and put his hands in the air, Officer Courtney
turned Bo loose. (Raby Dep., at 39.) The dog ran to Raby and jumped on him, causing Raby to
“ball up” to attempt to prevent Bo from biting his face. (Id.) Officer Pritchett observed Bo
“grabbing” and “tugging” on Raby’s shoulder. (Pritchett Dep., at 31.) Bo remained on Raby for
“a good little second, good little time.” (Raby Dep., at 41.) Bo did not make a sound to alert the
officers because “[h]is mouth was full at the time.” (Courtney Dep., at 70.) Officer Courtney
saw that “[t]he dog had him here on the shoulder,” so Officer Courtney “put [his] lead on the dog

5

The Court recognizes, of course, that defendants vigorously dispute Raby’s
assertions on these points. In defendants’ view, Raby is lying when he says he was on his knees
in an open area with his hands up. (Courtney Dep., at 96.) Indeed, Officer Courtney testified
that “[i]t was entirely too dark” to see what was happening in the woods. (Id. at 71.) Defendants
also balk that Raby’s descriptions of those events “cannot be used to dispute what the officers
perceived.” (Doc. 42, at 2.) Defendants are incorrect. At a minimum, Raby’s testimony (i.e.,
that Officer Courtney’s headlights were shining on him, that he came to his knees and put his
hands up not far from where Officer Courtney was, and that there were no impediments to
Officer Courtney’s ability to see him) creates a dispute of fact because this evidence contradicts
Officer Courtney’s testimony about his own perceptions. Besides, defendants’ argument
overlooks defendant’s testimony that Officer Pritchett had located Raby, could see him clearly,
and was shining his flashlight on Raby before Officer Courtney (who was standing just 5 to 10
feet away from Officer Pritchett) released Bo. (Pritchett Dep., at 27-28 (“I still had my light on
the subject just lying down. He then gave verbal commands again. I’m fixing to send my K-9.
You need to come out.”).) Thus, defendants’ own evidence reflects that Raby was visible to the
officers before they released the K-9 unit. In light of the foregoing, and Rule 56’s directive that
evidence must be taken in the light most favorable to the nonmovant, the Court credits Raby’s
testimony for summary judgment purposes, as set forth above.

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and gave the command to let go, and the dog backed off.” (Id. at 72-73.)6 Raby was then
handcuffed and taken into custody. (Id. at 73-74; Raby Dep., at 42.) At this time, the officers
felt that they “had the situation under control,” as Raby was neither resisting nor otherwise
noncompliant. (Clarke Dep., at 41-43.) From the time Raby was handcuffed, he “just stood
there and complied with every one of their orders.” (Raby Dep., at 69-70.)
Upon arresting Raby, the officers asked him where the gun was. Raby responded,
untruthfully, that he did not know because he “didn’t want to get caught with the gun.” (Raby
Dep., at 42.) Raby also complained to the officers that “this dog already ate me up one time for
no reason.” (Id. at 54.) Officer Pritchett’s reply was, “well, if you don’t tell us where that gun at
[sic], we’re going to put him on you again.” (Id.) When Raby refused to disclose the location of
his firearm, the officers put Bo on him a second time, but then were unable to get Bo to release.
(Id.)7 Ultimately, Officer Pritchett tased Bo to force him to let go of Raby. (Id. at 62.) Officer
Courtney was close enough to Bo to grab his collar and pull the dog off. (Clarke Dep., at 66.)
Raby incurred fresh trauma in this second entanglement with Bo, including injuries to his left
arm and wrist, the latter of which occurred when the handcuffs dug into Raby’s wrist as the dog
pulled his arm. (Raby Dep., at 55.) The officers subsequently took Raby to the hospital. (Id. at
56.) Raby saw doctors on two occasions for medical treatment, which consisted of “some shots.”
(Id. at 70-71.) Raby had no broken bones, and received no stitches. (Id.)8
6

According to Raby, this first attack caused injuries to Raby’s back and left ear.
(Raby Dep. at 55.) Raby was also bitten in the back of the head. (Id. at 55-56.)
7

Once again, defendants’ version of the narrative diverges from Raby’s. Officer
Pritchett’s testimony is that, after the suspect was in handcuffs, Officer Pritchett advised Raby
not to make any “false movements like jerking away from officers” because they might cause the
K-9 to reengage. (Pritchett Dep., at 36-37, 43.) Despite this warning, Raby suddenly “jerked
away” from Officer Pritchett, at which time Bo “got a hold to his jacket.” (Id. at 37, 41-42.)
Officer Pritchett denies ever threatening to turn the dog loose on Raby again unless he divulged
the whereabouts of the firearm. (Id. at 37-38.) Officer Clarke’s testimony was consistent with
Officer Pritchett’s. (Clarke Dep., at 62-65, 79.) Nonetheless, for summary judgment purposes,
Raby’s account is credited and defendants’ is not.
8

Bo sustained minor injuries in his encounters with Raby, as Officer Courtney
observed that the dog’s “entire eye had filled with blood” following the scuffle in the woods.
(Courtney Dep., at 75.) However, Bo suffered no adverse long-term effects. A veterinary report
from February 25, 2014 cleared Bo to return to work and perform normal officer duties, as his
eye had healed from the laceration and his light response was intact. (Doc. 35-7, at 2.)

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B.

The City’s K-9 Training Policies, Procedures and Experiences.

Defendant Tommie Reese has served as Chief of the City of Demopolis Police
Department since 2009. (Reese Dep. (doc. 35-6), at 4.) During that time, a total of three K-9
officers, including Officer Courtney, have worked for the Demopolis Police Department. (Id. at
11.) According to Chief Reese, the dual purposes of the City’s K-9 unit include a primary
function of narcotics searches, along with the ability to perform apprehension as needed. (Id. at
11, 15-16.) Both Officer Courtney and Bo were certified for narcotics and apprehension
functions. (Courtney Dep., at 33.)
Before the incident in question, the City sent Bo to be trained at the Alabama K-9
Training Center in Tuscaloosa. (Reese Dep., at 12.) Similarly, Officer Courtney attended and
completed a 320-hour training program with Alabama K-9 in Samantha, Alabama beginning in
October 2013. (Courtney Dep., at 18-19.) To supplement this initial training, Chief Reese
required Officer Courtney and Bo to train together on a monthly basis, which they did. (Reese
Dep., at 21, 23-24, 35.) Most of their training exercises involved the narcotics search function
because the City does not “deal with a lot of apprehension here.” (Reese Dep., at 17-18.)
Nonetheless, Officer Courtney and Bo also “did a lot of tracking” and incorporated
“apprehension techniques” into their training exercises. (Courtney Dep., at 34.) Pursuant to
these training activities, when Officer Courtney gave the command to apprehend, Bo would go to
and bite the suspect unless Officer Courtney gave the stop command, which he would do if, for
example, the suspect had his hands up and was not resisting. (Id. at 29-31.)
The City has a written “Canine Section Policy.” (Doc. 35, Exh. 8.) Among other things,
the Policy requires a K-9 handler to “demonstrate the ability to control the canine during an
obedience performance test. Testing will be conducted using reasonable job related
distractions.” (Id. at 3.) The Policy further provides that “[u]nder the direction and reasonable
control of the handler, the canine will locate a hidden person in a structure or building and in an
outdoor area within a reasonable period of time. The dog will ‘alert’ the handler after finding the
person.” (Id. at 3-4.) On the subject of controlling the animal, the Policy states that “[t]he
Handler of the Police Canine must be able to control the canine at all times when he is not
confined in a vehicle or in a kennel. This can be done on or off-leash. If the canine is off-leash
the handler must be in direct contact with the canine and be in a close enough proximity to gain
physical control of the canine immediately if a situation presents itself.” (Id. at 7.)

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Officer Courtney testified that he kept Bo five feet away from the suspect once Raby was
in custody because “that’s just walking distance,” which he perceived as “a safe distance from
Mr. Raby.” (Courtney Dep., at 87.) He acknowledged that the City had “no standard operating
procedure on how to walk your dog,” and that Bo’s job was over as soon as he apprehended
Raby in the woods. (Id. at 87-88.) Officer Courtney further conceded that the City’s Canine
Section Policy lacked specific guidelines on the topic of apprehension, and that no other City
policy or training guide would have addressed such matters directly. (Id. at 95, 98-99.) Chief
Reese explained that the City had no specific apprehension policy because apprehension is a use
of force, and the City’s policies concerning the use of force continuum apply to police K-9
officers (including dogs and handlers) just as they would to any other officer. (Reese Dep., at
26-28.) Chief Reese further testified that he saw no need for a policy addressing post-arrest
handling of a K-9 unit, and that it was a matter reserved for the officer’s discretion whether to
keep the dog out following Raby’s arrest, return him to Officer Courtney’s patrol vehicle, or take
some other action. (Id. at 37, 41.)
Other than the Raby incident that forms the basis of this litigation, Chief Reese was
aware of no problems with the City’s K-9 units and received no complaints concerning Officer
Courtney’s handling of Bo at any time. (Reese Dep., at 12-13.)9
III.

Summary Judgment Standard.
Summary judgment should be granted only “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.” Rule
56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the
district court, by reference to materials on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to
show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make
9

That said, the record does reveal one other incident involving Bo. In March 2014,
approximately two months after the incident forming the basis of Raby’s claims, there was an
occasion in which Bo was in Officer Courtney’s yard when someone walked across the yard
carrying a stick. As Bo approached, the person swung the stick, prompting Bo to bite the person.
(Reese Dep., at 13-14.) Bo remains in service as a K-9 unit at the City of Demopolis at this time.
(Id. at 14.)

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'a sufficient showing on an essential element of her case with respect to which she has the burden
of proof,' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party
has met its burden, the court must stop short of weighing the evidence and making credibility
determinations of the truth of the matter. Instead, the evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted).
“Summary judgment is justified only for those cases devoid of any need for factual
determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987)
(citation omitted).
IV.

Analysis.
A.

Section 1983 Claims.

As discussed, supra, the only named defendants in this action are the City of Demopolis,
Chief Reese, Officer Courtney and Officer Pritchett, with all officers being named exclusively in
their official capacities.10
“Official-capacity suits … generally represent only another way of pleading an action
against an entity of which an officer is an agent.” Penley v. Eslinger, 605 F.3d 843, 854 (11th
Cir. 2010) (citation omitted); see also Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1309 (11th Cir.
2009) (“A claim asserted against an individual in his or her official capacity is, in reality, a suit
against the entity that employs the individual.”) (citation omitted); Cook ex rel. Estate of Tessler
10

The parties’ summary judgment briefs address the defense of qualified immunity.
Where individual defendants are sued only in their official capacities, however, the individualcapacity defense of qualified immunity is inapplicable. See, e.g., Young Apartments, Inc. v.
Town of Jupiter, FL, 529 F.3d 1027, 1047 (11th Cir. 2008) (“[I]t is well-settled that qualified
immunity only protects public officials from lawsuits brought against them in their individual
capacity.”) (citation omitted); Bruce v. Beary, 498 F.3d 1232, 1249 n.33 (11th Cir. 2007)
(“Sheriff Beary, sued in his official capacity, is not, of course, entitled to, nor has he asserted, the
individual capacity defense of qualified immunity.”); Marsh v. Butler County, Ala., 268 F.3d
1014, 1023 n.4 (11th Cir. 2001) (“[T]he defense of qualified immunity … is valid only against
claims asserted against a government official in her individual capacity.”); Lloyd v. Van Tassell,
318 Fed.Appx. 755, 760 (11th Cir. Jan. 27, 2009) (“the qualified immunity defense does not
apply to an official sued in his official capacity”); Brienza v. Gee, 307 Fed.Appx. 352, 353 (11th
Cir. Jan. 13, 2009) (“Qualified immunity is not available to Sheriff Gee in his official capacity,
and he does not argue that it is.”).

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v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1115 (11th Cir. 2005) (“[A]n official-capacity
suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit
against the official personally, for the real party in interest is the entity.”) (citation omitted);
Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999) (“We start with the proposition that a
suit against a governmental official in his official capacity is deemed a suit against the entity that
he represents.”); Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (“Because suits
against a municipal officer sued in his official capacity and direct suits against municipalities are
functionally equivalent, there no longer exists a need to bring official-capacity actions against
local government officials ….”). As a practical matter, then, Raby’s § 1983 claims against the
City, Chief Reese and the officers in their official capacities functionally reduce to § 1983 claims
against the City itself. The relevant question thus becomes when and under what circumstances
a municipality can be held liable under § 1983 for its employees’ misconduct.
It is well-settled, of course, that a municipality “cannot be held vicariously liable under §
1983 for constitutional violations committed by its officers.” Hoefling v. City of Miami, 811
F.3d 1271, 1279 (11th Cir. 2016); see also Hill v. Cundiff, 797 F.3d 948, 977 (11th Cir. 2015)
(explaining that a municipality “may not be held liable for constitutional deprivations on the
theory of respondeat superior”). Rather, a plaintiff must establish that “the City had a policy,
custom, or practice that caused the deprivation,” such as “an official policy enacted by its
legislative body” or “if final policymakers have acquiesced in a longstanding practice that
constitutes the entity’s standard operating procedure.” Hoefling, 811 F.3d at 1279; see also Hill,
797 F.3d at 977 (“A municipality therefore may be held liable only if such constitutional torts
result from an official government policy, the actions of an official fairly deemed to represent
government policy, or a custom or practice so pervasive and well-settled that it assumes the force
of law”) (citation omitted).
Plaintiff’s filings make clear that his claims against the City are rooted in a theory of
failure to train or supervise. (See doc. 41, at 26-27.) “A failure to adequately train municipal
employees constitutes an actionable policy or custom for § 1983 purposes only where the failure
to train amounts to deliberate indifference to the rights of persons with whom the [employees]
come into contact.” Cook, 402 F.3d at 1116 (citations and internal quotation marks omitted); see
also American Federation of Labor and Congress of Indus. Organizations v. City of Miami, FL,
637 F.3d 1178, 1188 (11th Cir. 2011) (“inadequacy of police training may serve as the basis for §

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1983 liability only where the failure to train amounts to deliberate indifference to the rights of
persons with whom the police come into contact”). “Failure to train can amount to deliberate
indifference when the need for more or different training is obvious, … and when the failure to
train is likely to result in the violation of a constitutional right.” Belcher v. City of Foley, Ala.,
30 F.3d 1390, 1397-98 (11th Cir. 1994); see generally Hill, 797 F.3d at 977 (for municipal action
to constitute deliberate indifference, “[t]he evidence must show the deprivation of the
constitutional right is a ‘plainly obvious consequence’ of the municipal action”). To meet this
stringent standard, “a plaintiff must present some evidence that the municipality knew of a need
to train and/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 (11th Cir. 1998) (citations
omitted).11 Plaintiffs typically show deliberate indifference in this context by presenting
evidence of a history of widespread prior abuse that would place the municipality on notice of
the need for improved training or supervision. Here, however, Raby concedes that he has no
evidence of “a pattern of constitutional violations of which the Defendants had notice.” (Doc.
41, at 27 n.10.)
To meet the daunting “deliberate indifference” threshold on his failure to train / supervise
theories, Raby argues that the City’s “Canine Section Policy” and “canine officer training
program” were deficient because the Policy “does not mention apprehension, seizure, or arrest”
and “had no policy concerning the procedures for handling a canine after a suspect is arrested
and handcuffed.” (Doc. 41, at 27.) In plaintiff’s view, then, the requisite deliberate indifference
is established by the City’s failure to develop and implement policies as to “(1) the proper use of
a canine unit to apprehend a suspect; and (2) what the canine officer must do with the dog after a
suspect is safely placed in custody and no longer poses a danger to the officers.” (Id.)
By all appearances, Raby is traveling under the so-called “so obvious” method of proving
deliberate indifference. In the absence of a pattern of constitutional violations, federal courts
11

More generally, “[t]he Supreme Court has noted the ‘deliberate indifference’
standard under § 1983 is a stringent standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action.” Hill, 797 F.3d at 977 (citation and
internal quotation marks omitted); see also McDowell v. Brown, 392 F.3d 1283, 1291 (11th Cir.
2004) (“To meet this burden, a plaintiff must demonstrate that the lawful action was taken with
deliberate indifference as to its known or obvious consequences.”) (citations and internal
quotation marks omitted).

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have recognized that § 1983 municipal liability may attach when “the need to train and supervise
in the particular areas in issue was so obvious and the likelihood of constitutional violations was
highly predictable so that liability attaches for this single incident.” Gold, 151 F.3d at 1352; see
also Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1293 (11th Cir. 2009) (“deliberate
indifference may be proven without evidence of prior incidents, if the likelihood for
constitutional violation is so high that the need for training would be obvious”); Barr v. Gee, 437
Fed.Appx. 865, 874 (11th Cir. Aug. 16, 2011) (“A municipality may be put on notice if either (1)
the municipality is aware that a pattern of constitutional violations exists, and nevertheless fails
to provide adequate training, or (2) the likelihood for a constitutional violation is so high that the
need for training would be obvious.”). The Eleventh Circuit has stressed that “[e]stablishing
notice of a need to train or supervise is difficult,” and that “it must have been obvious that the
municipality’s failure to train or supervise its employees would result in a constitutional
violation.” American Federation of Labor, 637 F.3d at 1189. In only a “narrow range of
circumstances” can deliberate indifference be shown without a pattern of constitutional
violations. Gold, 151 F.3d at 1352 (no obvious need for training as to arrestees’ complaints
about handcuff procedures); see also Lewis, 561 F.3d at 1293 (officers’ use of hobble restraints
and hogtying techniques “does not carry a high probability for constitutional violations in the
manner intended by the ‘so obvious’ notice that would open the door to municipal liability”).
Viewing the record in the light most favorable to plaintiff, the Court concludes that no
reasonable finder of fact could deem it “obvious” that constitutional violations would occur
unless the City developed and instituted policies as to “(1) the proper use of a canine unit to
apprehend a suspect; and (2) what the canine officer must do with the dog after a suspect is
safely placed in custody and no longer poses a danger,” which are the alleged deficiencies at the
core of Raby’s § 1983 failure-to-train theory of liability. After all, the record shows that Officer
Courtney completed a 320-hour training program with the Alabama K-9 Training Center shortly
before the subject incident occurred; that Bo the dog also underwent training at the Alabama K-9
Training Center; that both Officer Courtney and Bo were certified in the areas of narcotics and
apprehension; that the City required Officer Courtney and Bo to train together monthly; that,
while the subjects of those training exercises were left to Officer Courtney’s discretion, they
included both narcotics and apprehension techniques (the very two functions for which the City
deployed its K-9 unit); and that Officer Courtney’s use of Bo in apprehensions was subject to the

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City’s policies concerning the use of force continuum. Given the extensive training that Officer
Courtney and Bo had already received, their status as certified for apprehension work, their
ongoing training (including apprehension techniques) and the intersection of apprehension
functions with the City’s use of force policies, it was certainly not “obvious” that constitutional
violations would occur unless the City mandated further training or supervision in the specified
areas. On these facts, and given the narrowness of the “so obvious” basis for § 1983 municipal
liability, the Court readily determines that Raby’s claims fail as a matter of law. Simply put, the
risk from any possible imperfection in the training and supervision of the City’s K-9 unit here is
not obvious in the abstract, and therefore cannot support § 1983 liability on a failure to train /
supervise theory.12 Accordingly, defendants are entitled to summary judgment on Raby’s § 1983
claims against the City and individual defendants in their official capacities.

12

Again, Raby identifies two purported defects in the City’s policies. First, he says,
the City should have had a policy governing “the proper use of a canine unit to apprehend a
suspect.” (Dc. 41, at 27.) But plaintiff does not dispute that Officer Courtney and Bo had
already received training on apprehension techniques and had been certified in apprehension.
Nor does Raby make any showing that it was or should have been obvious to the City that such
training and certifications were inadequate to prevent constitutional violations in the area of
apprehensions. Moreover, plaintiff undercuts his own argument by conceding that “[t]he City’s
[existing] policy would not have allowed [Officer] Courtney to release the dog to attack Raby
while he was kneeling, in the open, and with his hands up.” (Doc. 41, at 27.) So, by plaintiff’s
own admission, the City’s existing policy prohibited the very misdeeds alleged by Raby to have
occurred here; therefore, there was no gap in the policy on this point, by plaintiff’s own
concession. Second, as for plaintiff’s assertion that the City’s policy was deficient because it
failed to address “what the canine officer must do with the dog after a suspect is safely placed in
custody,” there are myriad permutations, scenarios and possibilities that might play out, and
plaintiff has made no showing that a “one-size-fits-all” policy prescription would have been
workable, or that it even would have made sense. On that basis, Chief Reese’s explanation that it
was a matter of officer discretion what to do with the K-9 unit after an arrest was completed
appears imminently reasonable. It certainly was not obvious that constitutional violations would
result unless the City adopted a more comprehensive policy governing post-arrest K-9 handling
protocols. Besides, plaintiff’s argument appears to be that the City needed to train K-9 officers
not to use their dogs to attack, antagonize and traumatize compliant, handcuffed arrestees into
answering police questions. This kind of “common sense” prohibition is not the stuff of a § 1983
failure-to-train violation for municipal liability. See, e.g., Doe v. City of Demopolis, 461
Fed.Appx. 915, *2 (11th Cir. Mar. 20, 2012) (“If the impropriety of an action is obvious to all
without training, a failure to train a police officer to refrain from taking that action will usually
not show deliberate indifference. … The City was entitled to rely on Smith’s common sense not
to commit statutory rape, so its alleged failure to train him not to commit statutory rape does not
(Continued)
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B.

State-law Claims.

In addition to the § 1983 claims, Raby has asserted state-law claims against the
defendants for intentional infliction of emotional distress (Count III), assault and battery (Count
IV), wantonness (Count V) and outrage (Count VI). Again, all such claims are asserted against
defendants solely in their official capacities. (Doc. 41, at 30.) Plaintiff seeks an award of
compensatory and punitive damages for each of these state-law claims. (Doc. 29, at 8.)
The Alabama Supreme Court has recognized that, just as claims against county
commissioners in their official capacities constitute claims against the county, “claims that are
brought against municipal employees in their official capacity are also, as a matter of law, claims
against the municipality.” Morrow v. Caldwell, 153 So.3d 764, 771 (Ala. 2014); see also
Alabama Mun. Ins. Corp. v. Allen, 164 So.3d 568, 576 (Ala. 2014) (same); Ex parte Labbe, 156
So.3d 368, 374 (Ala. 2014) (“the claims asserted against Mayor Labbe in his official capacity are
simply claims asserted against the City”); Dickinson v. City of Huntsville, 822 So.2d 411, 415
(Ala. 2001) (reasoning that a mayor is “in her official capacity, within the line and scope of her
office, the agent of the City, through whom the City acts. Thus, to sue the mayor in her official
capacity is simply another way of suing the City.”) (emphasis added).13

show deliberate indifference to the rights of its inhabitants.”) (citations and internal quotation
marks omitted).
13

See generally Smitherman v. Marshall County Com’n, 746 So.2d 1001, 1007
(Ala. 1999) (“We hold, therefore, that claims against county commissioners and employees in
their official capacity are, as a matter of law, claims against the county and are subject to the
$100,000 cap contained in § 11-93-2.”); Todd v. Kelley, 783 So.2d 31, 38 n.1 (Ala.Civ.App.
2000) (“Because we need not separately address any claims against the city officials in their
official capacities, we will refer only to the City and not to the officials in their official capacities
when addressing [plaintiff’s] substantive claims”); Hinson v. Holt, 776 So.2d 804, 810
(Ala.Civ.App. 1998) (“Claims against officers in their official capacity are ‘functionally
equivalent’ to claims against the entity they represent.”) (citation and quotation marks omitted);
Tolbert v. Trammell, 2014 WL 3892115, *11 (N.D. Ala. Aug. 4, 2014) (“Alabama law deems
suits against agents of the city in their official capacities to be simply another way of suing the
City”) (citation and internal quotation marks omitted); Tippins v. City of Dadeville, 2014 WL
1092920, *5 (M.D. Ala. Mar. 19, 2014) (“In this case, the City is a defendant and, thus, under
the rationale of Dickinson, Mayor Ingram’s and Ms. Harrelson’s presence in their official
capacities is unnecessary and, in fact, redundant. … Accordingly, all state-law claims against
Mayor Ingram and Ms. Harrelson in their official capacities are due to be dismissed. The
remaining analysis thus relates only to the state-law claims against the City.”).

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By statute, Alabama provides that there can be no municipal liability for personal injuries
or wrongs, “unless such injury or wrong was done or suffered through the neglect, carelessness,
or unskillfulness of some agent, officer, or employee of the municipality ….” Ala. Code § 1147-190. Alabama courts have emphasized that “[t]here is no exception in the statute allowing an
action against a municipality for the wanton or willful conduct of its agents or employees.”
Morrow, 153 So.3d at 769. What this means is that, as a matter of Alabama law, “a city is liable
for negligent acts of its employees within the scope of their employment, but not intentional torts
[or wanton misconduct] of its employees.” Brown v. City of Huntsville, Ala., 608 F.3d 724, 74243 (11th Cir. 2010).14
Considering these black-letter principles of Alabama law in tandem yields the following
analysis in this case: Raby’s state-law claims against Chief Reese, Officer Courtney and Officer
Pritchett in their official capacities are simply another way of bringing those same state-law
claims against the City. As such, the individual defendants need not be considered separately;
rather, these claims are properly viewed strictly as claims against the City itself. Moreover,
because all of these state-law claims sound in theories of intentional or wanton conduct by the
City’s agents or employees (i.e., assault, battery, intentional infliction of emotional distress,
wantonness, outrage), such claims against the City are barred by operation of Alabama Code §
11-47-190. Simply put, Alabama forbids holding municipalities liable for the intentional or
wanton acts of their employees. That is precisely what Raby seeks to do here. Such reasoning
defeats all of Claims III, IV, V and VI as a matter of law because (i) all such claims allege
14

See also Labbe, 156 So.3d at 374 (“because the City cannot be held liable for
wanton or intentional conduct, it is likewise immune from suit for those claims asserted by the
plaintiffs alleging wanton and/or intentional conduct by the City”); Walker v. City of Huntsville,
62 So.3d 474, 501 (Ala. 2010) (observing that § 11-47-190 bars intentional tort claims against
city because it “limits the liability of a municipality to injuries suffered through the neglect,
carelessness, or unskillfulness of some agent”) (citation and internal quotation marks omitted);
Cremeens v. City of Montgomery, 779 So.2d 1190, 1201 (Ala. 2000) (“A municipality cannot be
held liable for the intentional torts of its employees.”); Town of Loxley v. Coleman, 720 So.2d
907, 909 (Ala. 1998) (“This Court has construed § 11-47-190 to exclude liability for wanton
misconduct.”); Waters v. City of Geneva, 47 F. Supp.3d 1324, 1340 (M.D. Ala. 2014)
(dismissing state-law claims against municipality for assault, battery, intentional inflection of
emotional distress, wantonness, and outrage, among others, pursuant to § 11-47-190); Howard v.
City of Demopolis, Ala., 984 F. Supp.2d 1245, 1262 (S.D. Ala. 2013) (“the City may be found
liable for the negligent acts of its employees but not their intentional torts”).

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wanton or intentional conduct by the City’s agents or employees, (ii) the City cannot be held
liable for any of those acts or omissions under Alabama law, and (iii) Raby has restricted all of
these state-law claims to defendants’ official capacities. Accordingly, summary judgment is
properly entered in defendants’ favor on all such causes of action.
V.

Conclusion.
For all of the foregoing reasons, the Court concludes that there are no genuine issues of

material fact and that defendants are entitled to entry of judgment in their favor as a matter of
law. As such, defendants’ Motion for Summary Judgment (doc. 34) is granted and this action is
dismissed with prejudice. A separate judgment will enter.
DONE and ORDERED this 25th day of April, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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