Hinson v. Judd

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 fact-

finder ‘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

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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.

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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).

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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).

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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:

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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.

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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

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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

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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).

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