Hinson v. Judd et al
Filing
84
ORDER granting 66 Defendant Sheriff Grady Judd's Amended Dispositive Motion for Summary Judgment. Signed by Judge James D. Whittemore on 9/11/2019. (AKA)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DONALD J. HINSON,
Plaintiff,
v.
Case No: 8:17-cv-2039-T-27SPF
GRADY JUDD, in his official
capacity as Sheriff of the Polk County
Sheriff’s Office, et al.,
Defendants.
___________________________________/
ORDER
BEFORE THE COURT is Defendant Sheriff Grady Judd’s Amended Dispositive Motion
for Summary Judgment (Dkt. 66), and Plaintiff’s response (Dkt. 71). Upon consideration,
Defendant’s motion (Dkt. 66) is GRANTED.
I.
BACKGROUND AND UNDISPUTED MATERIAL FACTS1
Donald J. Hinson brought this action against Grady Judd in his official capacity as Sheriff
of Polk County, alleging violations of his civil rights under 42 U.S.C. §§ 1983 and 1988 and the
Fourteenth Amendment. His allegations arise from an incident in the Polk County Jail, when he was
attacked by another detainee. He brings two claims, Policy Liability Other Failures (Count IV), and
Negligence (Count V).
On August 25, 2013, Hinson surrendered to the custody of the Polk County Sheriff’s Office
(“PCSO”) as a pretrial detainee (Dkt. 59 ¶¶ 12, 15). He was placed in holding cell number four with
1
Plaintiff does not expressly contradict Defendant’s factual assertions or provide a statement of undisputed
facts.
1
another detainee, William Edwards (Id. ¶ 21).2 Both were being preliminarily processed and booked
prior to transfer to the South County Jail, where a full assessment and classification would be
completed. Hinson had no prior interaction or relationship with Edwards before the event giving rise
to this lawsuit (Id. ¶ 23). Notwithstanding, Edwards, unexpectedly and without provocation, struck
Hinson on the right side of his face. (Id. ¶¶ 12-13). The attack resulted in injuries to Hinson,
including facial bone fractures and closed head trauma. (Id. ¶ 54).
When Edwards was placed in holding cell number four, the Polk County Jail had no system
that would identify a new detainee’s propensity to harm others. Rather, the practice was to rely on
the charges the detainee was being booked on, the behavior of the detainee while at book-in, and
any known, passed-on information about the detainee that would call for a need to separate the
detainee from others. (Dkt. 55, Deputy Swenson Dep., at p. 8:12-25, 9:1-11, 22:8-25, 23:1-22); (Dkt.
65, Ex. 2, Department of Detention Directive 2.2, C.1.d.13); (Dkt. 65, Chief Allen Dep., at pp.
44:22-25, 45:1-10, 53:1-6); (Dkt. 54, Sgt. Rodriguez Dep., at p. 45:8-19).
II.
STANDARD
Defendant moves for summary judgment, contending that “no genuine issue of material fact
exists in the record” to support Plaintiff’s claims. (Dkt. 66 at p. 2). Summary judgment is appropriate
where “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). “A genuine factual dispute exists only if a reasonable factfinder ‘could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict.’”
Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012) (quoting Anderson v. Liberty
2
Edwards, a registered felon, was in custody for violating a non-expiring injunction for protection against
repeat violence. (Id. ¶ 16).
2
Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is material if it may affect the outcome of the suit
under governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). All facts are
viewed and all reasonable inferences are drawn in the light most favorable to the non-moving party.
See Scott v. Harris, 550 U.S. 372, 380 (2007).
The moving party bears the initial burden of showing that there are no genuine disputes of
material fact. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Once the moving party demonstrates the
absence of a genuine issue of material fact, the non-moving party must go beyond the pleadings
through the use of affidavits, depositions, answers to interrogatories, and admissions on file to
designate facts showing a genuine issue for trial. See Celotex Corp., 477 U.S. at 324. The Court will
not weigh the evidence or make findings of fact. Morrison v. Amway Corp., 323 F.3d 920, 924 (11th
Cir. 2003). Rather, the Court’s role is limited to deciding whether there is sufficient evidence upon
which a reasonable juror could find for the non-moving party. See id.
III.
DISCUSSION
Count IV: 42 U.S.C. § 1983 - Policy Liability
In Count IV, Hinson brings a claim under 42 U.S.C. § 1983 against Sheriff Judd in his
official capacity as Sheriff of Polk County. (Dkt. 59 ¶ 9). This claim is functionally against the Polk
County Sheriff’s Office. See Kentucky v. Graham, 473 U.S. 159, 166 (1985); Cook ex rel. Estate of
Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1115 (11th Cir. 2005). Relevant to this
claim, governmental entities may be liable for constitutional violations resulting from the execution
of a policy or custom of the governmental entity. See Monell v. Dep’t of Social Servs. of City of N.Y.,
436 U.S. 658, 694 (1978).
3
To impose § 1983 liability on Judd in his official capacity, Hinson must demonstrate that
Judd had an official policy or custom that was the “moving force” behind the constitutional
violation. Id. The policy or custom must be a decision that is officially adopted by the governmental
entity, or “created by an official of such rank that he or she could be said to be acting on behalf of
the municipality.” Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir. 2005) (citation and internal
quotation marks omitted). The practice must be so permanent and well settled as to constitute a
“custom or usage” with the force of law, and proof of a single incident of unconstitutional activity
is not sufficient to impose liability, unless that proof shows that it was caused by an existing,
unconstitutional policy attributed to the policy maker. Id.; Craig v. Floyd Cty, 643 F.3d 1306, 1310
(11th Cir. 2011). And liability attaches only where a deliberate choice to follow a course of action
is made from alternatives by the official responsible for establishing final policy. Pembaur v. City
of Cincinnati, 475 U.S. 469, 483-84 (1986).
Plaintiff’s Allegations
Hinson alleges that Sheriff Judd failed to provide a safe environment, failed to protect him
from serious risk of harm, and “refused to take reasonable measures to protect [him] and other
inmates from harm despite knowing that [his] assailant and others like him posed a substantial risk
of serious harm.” (Dkt. 59 ¶ 9). He faults Judd for not having a “red flag” system in place to
segregate certain detainees during the book-in process, and failing to protect pretrial detainees from
violent detainees placed in the holding cell together. He alleges that Judd promoted and maintained
a policy that commingled violent and non-violent detainees during booking, and that the failure to
separate them was the moving force behind the attack on him. (Dkt. 59 ¶¶ 2, 59-60). Hinson’s § 1983
claim is based on a failure to train the detention deputies and an unconstitutional policy or custom.
4
See (Dkt. 66 at p. 9; Dkt. 71 at pp. 2, 4).
i. Failure to Train
Hinson alleges that Judd “encouraged, tolerated, ratified and has been deliberately indifferent
to . . . the need for more or different training . . . in the area of [] Detention deputy and supervisor
duties and responsibilities to ensure proper classification at booking to ensure pretrial detainees have
a safe environment, including, but not limited to: [] Failure to train detention deputies and
supervisors to properly disclose, communicate and act upon receipt of known mentally ill, violent
and predatory inmates.” (Dkt. 59 ¶ 61).
A § 1983 failure to train claim will ordinarily rest on a pattern of constitutional violations
which would make the need for more training so obvious, and the inadequacy of training so likely
to result in the violation of constitutional rights, that the policy maker can reasonably be said to have
been deliberately indifferent to that need. City of Canton v. Harris, 489 U.S. 378, 391 (1989). During
the Pretrial Conference, counsel for Hinson confirmed that the § 1983 claim relies on a pattern of
constitutional violations.
Sheriff Judd moves for summary judgment, contending that the record includes no facts “that
point to a pattern of constitutional violations that have resulted from Sheriff Judd’s alleged ‘failure
to train.’” (Dkt. 66 at p. 12). Hinson responds that “detainee violence in cell four was an obvious
consequence of a training that did not require examination of prior records kept by the sheriff’s
office itself.” (Dkt. 71 at p. 4). Judd’s arguments are persuasive. The record evidence does not
demonstrate a pattern of constitutional violations resulting from a failure to train. And without notice
of deficient training, Judd could not have been deliberately indifferent. See Connick v. Thompson,
563 U.S. 51, 61 (2011).
5
As noted, § 1983 liability is limited to circumstances where “official policy” causes a
constitutional violation. Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). Hinson must
therefore establish that inadequate training was a policy or custom which caused the claimed
constitutional violation. Id. (citing Canton, 489 U.S. at 389-91). And since a governmental entity
will “rarely” have an officially adopted policy of permitting a constitutional violation, he must show
that Judd had “a custom or practice of permitting [the violation] and that [his] custom or practice is
‘the moving force behind the constitutional violation.’” Brown v. Neumann, 188 F.3d 1289, 1290
(11th Cir. 1999).
A failure to provide adequate training can constitute a policy or custom if the deficiency
evidences a “‘deliberate indifference’ as to its known or obvious consequences.” Bd. of Cty.
Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 407 (1997). The policy or custom may be
established by a showing that the failure to train reflects a “deliberate or conscious choice” on the
part of Sheriff Judd. Id. To avoid summary judgment on this claim, Hinson “must present some
evidence that [Sheriff Judd] knew of a need to train . . . in a particular area and [he] made a
deliberate choice not to take any action.” Gold, 151 F.3d at 1350; Am. Fed’n of Labor & Cong. of
Indus. Orgs. v. City of Miami, 637 F.3d 1178, 1188-89 (11th Cir. 2011). He has not done so.
In Am. Fed’n of Labor & Cong. of Indus. Orgs., 637 F.3d 1178, this Circuit summarized the
difficulty in prevailing on a failure to train claim:
Establishing notice of a need to train or supervise is difficult. A plaintiff may
demonstrate notice by showing a “widespread pattern of prior abuse” or even a single
earlier constitutional violation. But a plaintiff must also demonstrate that
constitutional violations were likely to recur without training. In some cases, the need
for training is so obvious that deliberate indifference can be established even without
an earlier violation or pattern of abuse. Still, it must have been obvious that the
municipality’s failure to train or supervise its employees would result in a
6
constitutional violation. In addition to notice, a plaintiff must also establish that the
city “made a deliberate choice” not to train its employees.
Id. at 1189 (internal citations omitted).
Hinson contends that Sheriff Judd was deliberately indifferent to the need for adequate
training “to ensure proper classification at booking to ensure pretrial detainees have a safe
environment, including, but not limited to: failure to train detention deputies and supervisors to
properly disclose, communicate and act upon receipt of known mentally ill, violent and predatory
inmates.” (Dkt. 59 ¶ 61). Essentially, he alleges that Judd failed to train his detention deputies to
ensure a safe environment for pretrial detainees3 and “screen” or separate “known mentally ill,
violent and predatory inmates” from nonviolent detainees. (Id. ¶¶ 59-61).
Hinson maintains that Judd was on notice of the need to train and was deliberately indifferent
to that need based on the existence of a widespread pattern of abuse. However, he has not submitted
any evidence of a widespread pattern of abuse to support this contention. See Rocker v. City of
Ocala, 355 F. App’x 312, 314 (11th Cir. 2009) (“The need for training is not plainly obvious unless
3
While the Eighth Amendment prohibits “cruel and unusual punishments,” “[i]t is not . . . every injury
suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials
responsible for the victim’s safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citation omitted); see also Zatler
v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986) (“It is well settled that a prison inmate has a constitutional right
to be protected from the constant threat of violence and from physical assault by other inmates. However, ‘[t]his does
not mean that the constitutional rights of inmates are violated every time a prisoner is injured. It would not be
reasonable to impose such an absolute and clearly unworkable responsibility on prison officials.’” (citations
omitted)).
Recently, in Marbury v. Warden, --- F.3d ---, No. 17-12589, 2019 WL 4062675 (11th Cir. August 29,
2019), the Eleventh Circuit affirmed the dismissal of a prisoner’s § 1983 claims where the plaintiff was assaulted by
another inmate. The Court conducted a deliberate indifference analysis as applied to failure-to-protect claims, and
held that plaintiff failed to “demonstrate[] a genuine factual issue as to whether the defendants were deliberately
indifferent to a substantial risk of serious harm . . . .”
Despite the similarities between Hinson and Marbury in that both were in some form of custody and were
assaulted by fellow inmates, the analysis in the cases differs. In Marbury, the decision turned on qualified immunity
with respect to § 1983 claims brought against defendants in their individual capacity. Here, Plaintiff’s claims are
brought against Sheriff Judd in his official capacity, based on policy liability and negligence.
7
there is evidence of a history of widespread prior abuse.”) (citation and internal quotation marks
omitted). More specifically, he does not present any evidence of prior constitutional violations
arising from a failure to train staff in the areas of pretrial detainee safety that would have placed Judd
on notice of the need for training.4
Hinson attempts to establish notice of the need to train by relying on examples5 of Edwards’
“dangerous acts” (Dkt. 71 at pp. 13-14) and the opinions of his expert, Donald Leach, to show that
alternative “acceptable correctional practices for identifying the propensity for violent behavior”
could have been put in place. (Id. at pp. 3-4). He identifies various “dangerous acts” attributed to
Edwards while in custody, including 12 instances in which he either fought with or attacked other
inmates, once in the South County Jail in Frostproof, and his criminal history, which includes arrests
for battery, killing an unborn child, robbery with a firearm, drug possession, and his mental health
history. (Id. at pp. 13-14). He contends that “[t]here [sic] mere number of records should have put
4
In support of his summary judgment motion, Judd relies on the testimony of Michael Allen, Chief of the
Polk County Sheriff’s Office Department of Detention. (Dkt. 66 at p. 16). When asked why there is no specific
directive about who is eligible for placement in cell four, Chief Allen responded,
It seems like in terms of processing people through our booking facilities, we rarely have incidents
in these holding cells where it is a concern of putting people together.
Not to say that we don’t have fights, because you put two people in there and somebody doesn’t
like somebody, well, that happens. But I think if you looked at overall, the number that we run
through there and the incidents that we have, I don’t see a pattern that would cause us to say that
we have to have a policy that says only these should be allowed or these shouldn’t be allowed.
(Dkt. 65 at pp. 67:19-25, 68:1-8).
5
In his response to Defendant’s motion, Plaintiff notes that as a result of a public records response, he was
provided with “441 pages of information with some examples of the bevy of data that clearly shows Edwards was not
fit for the cell 4 environment.” (Dkt. 71 at p. 13). Plaintiff asserts that the examples he provides in his opposition are
not limited to what he identifies from these records. (Id.). In opposing summary judgment, however, he must “point
to the specific portions of the proffered material which create[s] a material issue of fact.” Restigouche, Inc. v. Town
of Jupiter, 59 F.3d 1208, 1213 n.5 (11th Cir. 1995). The Court is not required to “search the record” for an
unidentified issue of material fact to support a claim. Id.; Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir.), reh.
den., 285 F. App’x 743 (11th Cir. 2008).
8
the Detention Deputies on notice of the severe danger Edwards presented.” (Dkt. 71 at p. 13).
But this evidence does not establish a widespread pattern of constitutional violations resulting
from a failure to train that would have put Judd on notice of a need to train. Indeed, it is undisputed
that when Hinson was attacked, the detention deputies had no knowledge or information that
Edwards had a history of or propensity for violence. (Dkt. 52, Donald Leach Dep., at pp. 22:4-23;
29:2-25, 30:1-25, 34:9-25, and 41:9-16). Accordingly, this evidence does not support Plaintiff’s
failure to train theory. See Connick, 563 U.S. at 62 (“A pattern of similar constitutional violations
by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes
of failure to train.”).6 And without notice of deficient training, Judd could not have been deliberately
indifferent.
In the absence of a pattern of unconstitutional violations, § 1983 liability based on inadequate
training may only be established “if the likelihood for constitutional violation is so high that the need
for training would be obvious.” Lewis v. City of West Palm Beach, 561 F.3d 1288, 1293 (11th Cir.
2009) (citing Gold, 151 F.3d at 1351-52). This exception is found in a footnote in Canton, 489 U.S.
378, where the Supreme Court noted a hypothetical scenario in which a police agency provides
firearms to its police officers, and the unconstitutional use of deadly force might be a “highly
predictable consequence” of failing to train officers in the use of deadly force. Id. at 390 n.10.
Judd contends this exception is not warranted to Hinson’s claim of failure to train. (Dkt. 66
at p. 11). He argues that “the book-in process does not present the ‘obvious’ need for training in the
6
Plaintiff was on notice of the necessity to bring forth evidence of a pattern of constitutional violations. The
order dismissing Plaintiff’s First Amended Complaint included a finding that “[t]here [were] simply no facts alleged
in the Amended Complaint that identify a pattern of constitutional violations of which Sheriff Judd was both aware
of and deliberately indifferent to. (Dkt. 58 at p. 6).
9
immediate classification and segregation of detainees that the use of deadly force” does. (Id.). In
response, Hinson argues that “[t]he Court should not hamstring the doctrine by limiting it to only
Canton facts.” (Dkt. 71 at p. 15). Rather, “a ‘fitness screening’ for placement in the general booking
population should have occurred before one [could] cohabitate with misdemeanor pretrial detainees
like Mr. Hinson.”7 (Id.).
Based on these competing contentions, the issue is whether it can be said that “the likelihood
for constitutional violation is so high that the need for training would be obvious” in the
classification and segregation of pretrial detainees. Lewis, 561 F.3d 1288. I think not. Edwards’
conduct does not indicate a “highly predictable consequence” of failing to train detention deputies.
Hinson contends that violence among detainees was “an obvious consequence of training
that did not require examination of prior behavior records kept by the sheriff’s office itself” and that
“booking detention deputies were not trained to identify an inmates’ propensity for violence [and]
were not trained to assess the potential danger to fellow detainees that known dangerous inmates
posed.” (Dkt. 71 at pp. 3, 4). According to Hinson, “[g]iven the staggering number of assaults this
specific assailant was able to commit in the Polk County Jail, and given the fact that he went on to
commit assault post-his attack of Plaintiff, it is reasonable to infer the lack of training and policies
would lead to the constitutional violation and serious injury.” (Id. at p. 15).
These contentions, and more importantly, the record evidence, however, are insufficient to
implicate the narrow circumstance noted in Canton. Hinson’s assertion that Judd was on notice of
7
Plaintiff cites to Farmer v. Brennan, 511 U.S. 825 (1994) under a section titled “Deliberate Indifference.”
Farmer, however, is inapplicable as it deals with § 1983 liability based on a failure to protect, rather than policy
liability. Plaintiff’s claims for failure to protect were voluntarily dismissed when he amended his complaint. See
(Dkt. 59 at p. 12 n.2). Notwithstanding, the deliberate indifference standard in Farmer is subjective, meaning that
prison officials “must both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and [they] must also draw the inference.” Farmer, 511 U.S. at 838.
10
the need to train and was deliberately indifferent to that need is based only on Edwards’ pattern of
behavior. (Dkt. 71 at p. 13). He expressly contends that “the pattern of Edward’s (sic) behavior
triggers the need for obvious protection.” (Id.). But Edwards’ history of violent conduct and criminal
history does not demonstrate that detainee violence was a “highly predictable consequence” of
failing to train detention deputies, such that Judd was deliberately indifferent to the rights of
detainees. Specifically, the record evidence does not demonstrate, or even give rise to material
factual dispute, that the likelihood of a constitutional violation was so predictable that Judd’s failure
to train the deputies reflects a “deliberate or conscious choice.”
The opinion of Plaintiff’s expert, Donald Leach, does not give rise to a material factual
dispute as to whether Sheriff Judd was on notice of a need to train or deliberately indifferent to its
consequences. See Buckler v. Israel, 680 F. App’x 831, 835-36 (11th Cir. 2017); Campbell v. Sikes,
169 F.3d 1353, 1370-71 (11th Cir. 1999); Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir.
1985) (quoting Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666, 672-73 (D.C. Cir. 1977)) (“Rule
703 was intended to broaden the acceptable bases of expert opinion, but it was not intended, as
appellants seem to argue, to make summary judgment impossible whenever a party has produced an
expert to support its position.”); see also Am. Key Corp. v. Cole Nat’l Corp., 762 F.2d 1569 (11th
Cir. 1985) (finding summary judgment for defendant proper and no error in assigning “little weight”
to plaintiff’s expert because his affidavits did not create a material issue of disputed fact).
To support his contention that “detainee violence in cell four was an obvious consequence
of a training that did not require examination of prior records kept by the sheriff’s office itself,”
Plaintiff relies on Leach’s opinion:
11
The acceptable correctional practice for identifying the propensity for violent
behavior is to examine the following information about the inmate: alert or flag
entered as a result of past behaviors; the criminal case history; the institutional
behavior history; all current behaviors; and, all relevant need assessments,
specifically any relevant mental health need assessment that might convey a
propensity for violence associated with the individual’s mental health status.
(Id. at p. 3) (citing (Dkt. 52, Donald Leach Dep., Ex. 2, Expert Report, at p. 27)).
That more could have been done to identify a detainee like Edwards’ propensity to assault
fellow detainees does not give rise to a material issue of fact as to whether Sheriff Judd’s failure to
train amounts to deliberate indifference, since mere negligence does not support liability under §
1983. Daniels v. Williams, 474 U.S. 327, 664-65 (1986); Keith v. DeKalb Cty, 749 F.3d 1034 (11th
Cir. 2014) (“While there may have been ways in which the Sheriff . . . could have improved the
training of officers, the deliberate indifference standard requires a showing of more than gross
negligence.”).
In sum, there is no evidence of a pattern of constitutional violations that would have put
Sheriff Judd on notice of an existing need for improved policies and training for detention deputies,
or for a system to “red flag” a detainee. Hinson’s § 1983 failure to train claim therefore fails. And,
as noted, even if the record evidence supports his contention that Sheriff Judd was on notice of a
need to train his detention deputies, he must establish that Judd “made a choice not to do so.” Am.
Fed’n of Labor & Cong. of Indus. Orgs., 637 F.3d at 1189 (citing Gold, 151 F.3d at 1350) (“To
establish . . . ‘deliberate indifference,’ 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.”) (emphasis added). Plaintiff does not present any such evidence.
12
ii. Unconstitutional Policy/Procedure
Hinson contends that Sheriff Judd acted pursuant to established policies which resulted in
a violation of his constitutional rights. He cites the failure to separate inmates, despite a known
propensity for violence, the failure to implement a computer system to track known violent offenders
and to train staff to screen inmates using historical data from the jail, and the failure to protect
pretrial detainees from violence from other detainees (Dkt. 59 ¶¶ 18, 20, 36-37, 59-61).8
Sheriff Judd contends that summary judgment is appropriate on this claim because there is
no evidence of an official custom or established policy which would support a “failure to protect”
theory, or that Judd was deliberately indifferent to the need for such policies. In response, Hinson
contends that “[u]ltimately, not having anything available regarding an individual’s past assaultive
behavior on other inmates while in custody at book-in at the Polk County Jail, was a violation of the
United States Constitution” and “[u]ltimately, the Sheriff promotes constitutional violations through
inaction.” (Dkt. 71 at pp. 7, 11). Essentially, he argues that the absence of policies to identify
detainees with propensities for violence and to separate them from other detainees amounts to an
unconstitutional policy.
Liability may be imposed because of the absence of a policy that establishes appropriate
procedures to ensure that a person’s constitutional rights are not violated. See Rivas v. Freeman, 940
F.2d 1491, 1495 (11th Cir. 1991). In that circumstance, a plaintiff must show that the “‘policy of
8
As noted, to impose liability on Judd in his official capacity, Plaintiff must show that the deprivation of a
constitutional right resulted from: “(1) an action taken or policy made by an official responsible for making final
policy in that area of the [Sheriff’s] business; or (2) a practice or custom that is so pervasive, as to be the functional
equivalent of a policy adopted by the final policymaker.” Church v. City of Huntsville, 30 F.3d 1332, 1343 (11th Cir.
1994). “[T]o demonstrate a policy or custom, it is generally necessary to show a persistent and wide-spread
practice,” as opposed to a single incident. McDowell v. Brown, 392 F.3d 1283, 1290 (11th Cir. 2004) (quotation
omitted).
13
inaction’ is the functional equivalent of a decision by the city itself to violate the constitution.”
Canton, 489 U.S. at 394-95 (O’Connor, J., concurring). Accordingly, to avoid summary judgment,
Hinson must demonstrate that Judd’s failure to maintain a policy of separating dangerous detainees
amounted to deliberate indifference to its known or obvious consequences, and a conscious decision
not to take action. Bd. of Cty. Comm’rs of Bryan Cty., 520 U.S. at 407.
Hinson has not shown deliberate indifference on Judd’s part, or an issue of material fact that
would prevent summary judgment on Judd’s behalf. He acknowledges that the Sheriff has policies
through the Department of Detention Directives for administrative protective custody for detainees
and utilizes certain cells for protective custody. (Dkt. 65, Ex.2, Department of Detention Directive
2.2, C.1.d.13); (Dkt. 71 at p. 8); (Dkt. 55, Swenson Dep., at p. 8:12-25, p. 9:1-11). Detainees are
separated based on the charges they face, their appearance and behavior during and while in book-in
(Dkt. 65, Chief Allen Dep., at p. 53:1-6), and whether they need medical care (Id. at pp. 44:22-25,
45:1-10; Dkt. 54, Rodriguez Dep., at p. 45:8-19; Dkt. 55, Swenson Dep., at pp. 22:8-25, 23:1-22).
He essentially contends that these policies were not sufficient to safeguard his safety. But as
discussed, he has not provided evidence of widespread detainee violence which would have indicated
that the likelihood of a constitutional violation was so obvious that the failure to have a policy in
place reflected a deliberate or conscious choice. Without evidence establishing that the absence of
policies resulted in deliberate indifference to his constitutional rights, this claim fails. See McDowell,
392 F.3d at 1291.
Count V: Negligence Claim against Sheriff Judd in his Official Capacity
In Count V, Plaintiff alleges a Florida negligence claim against Judd in his official capacity.
(Dkt. 59 ¶¶ 64-72). He contends Judd is vicariously liable for the injuries caused by the acts or
14
omissions of the deputies “acting within the scope of their employment and without bad faith,
malicious intent or in a manner exhibiting wanton and willful disregard” of his rights. (Id. ¶ 67).
Judd argues that Count V must be dismissed because Hinson’s negligence claim is barred by
sovereign immunity. (Dkt. 66 at pp. 19-22).
Sovereign immunity may bar an action for negligence. Cook ex rel. Estate of Tessier v.
Sheriff of Monroe Cty., 402 F.3d 1092, 1117 (11th Cir. 2005) (citing Pollock v. Fla. Dep’t of
Highway Patrol, 882 So. 2d 928, 933 (Fla. 2004)). “[B]asic judgmental or discretionary
governmental functions are immune from legal action, whereas operational acts are not protected by
sovereign immunity.” Id. A discretionary function “is one in which the governmental act in question
involved an exercise of executive or legislative power such that, for the court to intervene . . . it
would inappropriately entangle itself in fundamental questions of policy and planning were it to
entertain the plaintiff’s tort claim.” Id. at 1117-18 (citing Henderson v. Bowden, 737 So. 2d 532, 538
(Fla. 1999)). “An ‘operational’ function, on the other hand, is one not necessary to or inherent in
policy or planning, that merely reflects a secondary decision as to how those policies or plans will
be implemented.” Id. at 1118.
In Florida, the “operation and maintenance” of prisons is a discretionary function of the
sheriff, an independent officer under the Florida Constitution. See White v. Palm Beach Cty., 404
So. 2d 123, 125 (Fla. 4th DCA 1981). One function of operating and maintaining prisons is the
classification and placement of inmates. Davis v. State of Fla., Dep’t of Corr., 460 So. 2d 452, 453
(Fla. 1st DCA 1984).9 Nevertheless, the Florida Supreme Court has held that assigning pretrial
9
See also Dunagan v. Seely, 533 So. 2d 867, 868 (Fla. 1st DCA 1988) (“[W]hile the making of the policies
and procedures for classifying, supervising and maintaining inmates is a discretionary function to which sovereign
immunity does attach, the allegation of injury due to the failure to follow those policies is actionable because that
15
detainees to particular locations in a detention facility where they are foreseeably exposed to danger
can be an operational level act not protected by sovereign immunity. See Dep’t of Health & Rehab.
Servs. v. Whaley, 574 So. 2d 100, 104 (Fla. 1991) (holding that the assignment of juveniles to a
particular room or location in a detention facility during intake is an operational function not
protected by sovereign immunity).
Judd’s entitlement to sovereign immunity depends on whether Plaintiff’s claims are based
on policies concerning general classification and placement of inmates and detainees or on the
specific assignment of Plaintiff to a location in the Polk County jail where he foreseeably faced
danger from Edwards. In his Second Amended Complaint, Plaintiff attempts to plead a plausible
claim by alleging that “the assignment of Plaintiff, a pretrial detainee, to cell four in the booking area
where there was a foreseeable exposure to danger is an operational act not protected by sovereign
immunity.” (Dkt. 59 ¶ 70). He repeats this contention in his Response to Judd’s motion, but adds that
“the Sheriff made a decision that policies regarding screening inmates by their available history were
not necessary or required for the safe operation of the booking area.” (Dkt. 71 at pp. 18-19).
Even considering the evidence in the light most favorable to Hinson, he was placed in cell
number four in accordance with the standard practice at the jail for pretrial detainees, and there is not
evidence that he foreseeably faced danger from that placement. His placement in cell number four
therefore necessarily reflects a discretionary policy decision concerning the classification and placement
of pretrial detainees in general, not from his specific placement in holding cell number four. (See Dkt.
59 ¶ 69(a)-(f)).10 Accordingly, his claim for negligence for “failing to develop even a rudimentary
failure was an operational function and is not protected by the sovereign immunity doctrine.”).
10
For example, Plaintiff alleges: “The constitutional deficiency within the booking area is that the
processing regime has no standardized protocol to determine the threat risks of a detainee. Once processed through
housing classifications, inmates can have special designations that include security codes. . . . The booking process
16
system to flag and alert detention deputies processing people through booking about dangerous
detainees” is barred by sovereign immunity and due to be dismissed. See McCreary v. Brevard Cty.,
Case No. 609-CV-1394, 2010 WL 2509617, at *10 (M.D. Fla. June 18, 2010), on reconsideration, No.
6:09-CV-1394, 2010 WL 2836709 (M.D. Fla. July 19, 2010), and aff’d sub nom. McCreary v. Parker,
456 F. App’x 790 (11th Cir. 2012) (“Plaintiff’s allegation that [defendants] are liable for ‘failing to
properly require the classification of inmates,’ . . . concerns the failure to implement, not follow, a
policy for the classification of inmates. Thus, pursuant to Davis and Dunagan, Plaintiff’s wrongful
death claim against [defendants] for ‘failing to properly require the classification of inmates’ is barred
by sovereign immunity and should be dismissed.”).
CONCLUSION
The undisputed material facts of record do not support a finding of liability against Sheriff Judd
on any of the theories of policy liability or negligence Hinson raises. Accordingly, Defendant Sheriff
Grady Judd’s Amended Dispositive Motion for Summary Judgment (Dkt. 66), is GRANTED. The
Clerk is directed to enter judgment in favor of the Defendant, CLOSE the file, and deny any pending
motions as moot.
DONE AND ORDERED this 11th day of September, 2019.
/s/ James D. Whittemore
JAMES D. WHITTEMORE
United States District Judge
Copies to: Counsel of Record
contains no such red flag system.” (Dkt. 59 ¶ 47). And Defendant Judd “breached his official capacity duty of care
by failing to develop even a rudimentary system to flag and alert detention deputies processing people through
booking about dangerous detainees. Defendant Judd failed to implement any policies that required an alert be placed
on the files of former detainees who had been violent, mentally ill or committed crimes while in custody at the Polk
County jail.” (Id. ¶ 69).
17
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