Kirby Ingram v. Louis Kubik

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-11310

____________________

KIRBY INGRAM,

Plaintiff-Appellant,

versus

LOUIS KUBIK,

BLAKE DORNING,

KEVIN TURNER,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 5:19-cv-00741-LCB

____________________

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2 Opinion of the Court 20-11310

Before WILLIAM PRYOR, Chief Judge, JORDAN, Circuit Judge, and

BROWN,* District Judge.

WILLIAM PRYOR, Chief Judge:

Kirby Ingram appeals the dismissal of his complaint for fail-

ure to state a claim, FED. R. CIV. P. 12(b)(6), against a sheriff’s dep-

uty and his supervisor for unlawful seizure and excessive force, see

42 U.S.C. § 1983; U.S. CONST. amends. IV, XIV, and against the

Sheriff for vicarious liability under Title II of the Americans with

Disabilities Act, see 42 U.S.C. § 12132. Ingram, an Iraq War vet-

eran, suffers from post-traumatic stress disorder. Two Sheriff’s dep-

uties conducted a welfare check after a report that Ingram slit his

wrist with a knife. When the deputies arrived, Ingram was calm

and posed no threat to them. Although Ingram expressed his will-

ingness to be arrested, one of the deputies suddenly body slammed

him headfirst, causing him a serious neck injury. We affirm the dis-

missal of Ingram’s claim for unlawful seizure but reverse the dis-

missal of his claim of excessive force and supervisory liability. And

“[b]ecause vicarious liability is not available for claims under Title

II,” Jones v. City of Detroit, 20 F.4th 1117, 1118 (6th Cir. 2021), we

affirm the dismissal of that claim.

*Honorable Michael L. Brown, United States District Judge for the Northern

District of Georgia, sitting by designation.

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20-11310 Opinion of the Court 3

I. BACKGROUND

This appeal is from a dismissal of a complaint for failure to

state a claim, see FED. R. CIV. P. 12(b)(6), so we recount the factual

allegations in the complaint, accept them as true, and construe

them in the light most favorable to Ingram, see Darrisaw v. Pa.

Higher Educ. Assistance Agency, 949 F.3d 1302, 1303 (11th Cir.

2020).

Ingram is an Iraq War veteran who suffers from post-trau-

matic stress disorder. In October 2017, while suffering from a men-

tal-health crisis, Ingram cut his wrist with a knife at his home. His

girlfriend called the Veterans Affairs suicide hotline, which con-

tacted law enforcement. Deputy Louis Kubik and another deputy

from Madison County, Alabama, were dispatched to assist Ingram.

When the deputies arrived, Ingram was calm. The deputies

searched him multiple times. They confiscated the knife with

which Ingram had cut himself. After the search, the deputies knew

that he was unarmed.

“Ingram assured the deputies [that] he was no longer sui-

cidal” and “never expressed any desire to harm himself or any other

person during his encounter with the deputies.” He “insisted that

the deputies either arrest him or leave.” Both the deputies and In-

gram’s mother “tried to convince Ingram to let them take him to a

residential program through . . . [Veterans Affairs] that Ingram’s

mother wanted him to attend.” When Ingram asked the deputies

if he was under arrest, the “deputies told [him] . . . that he was not.”

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4 Opinion of the Court 20-11310

Ingram reiterated “that he would cooperate with any arrest if that

[was] what they wanted to do.”

Because the deputies would not leave, Ingram left through

the back door “on his third try.” “Ingram ran into a cotton field

behind the house, and the deputies followed.” Ingram eventually

stopped running and “let the deputies catch up to him.” “The dep-

uties told Ingram that if he would go back to his house and refuse

medical treatment,” the deputies would leave. “Ingram agreed to

walk back to the house . . . and speak directly with [medical] per-

sonnel.” As they walked back, Ingram stated “multiple times that if

he was being arrested, the[ deputies] should . . . let him know and

he would go voluntarily,” but “[t]he deputies repeatedly told In-

gram he was not under arrest.”

When they reached the yard, “Ingram held his hands over

his head and told [medical] personnel . . . that he was refusing med-

ical treatment.” The deputies knew that Ingram was unarmed and

posed no threat to them. “Without warning, Kubik then grabbed

Ingram under his armpits, picked Ingram up, and slammed Ingram

to the ground head first, causing Ingram to suffer a serious neck

injury.” Ingram alleges that Kubik’s decision to body slam “Ingram

was motivated by hostility toward Ingram due to Ingram’s mental

illness.” Ingram was taken to the hospital. “A surgeon removed In-

gram’s C-2 vertebra and replaced it with a metal rod. The surgeon

also fused Ingram’s C-3 and C-4 vertebrae.”

“Despite widespread knowledge of th[is] incident up the

chain of command” that included then-Sheriff Blake Dorning, “the

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20-11310 Opinion of the Court 5

incident was not . . . investigated, and the deputy was not disci-

plined.” Failure to investigate excessive force incidents “ha[d] been

Dorning’s standard operating procedure”; “[e]ven obviously-un-

constitutional . . . actions of his deputies [were] immune from in-

vestigation and discipline.” Ingram’s lawyer learned from discov-

ery in other lawsuits “that formal internal investigations of officer

misconduct were not conducted,” and after he requested “records

of internal investigations of deputy misconduct,” he was “told no

such records existed.” During Dorning’s tenure, the Sheriff’s web-

site “identified no person or division to contact with a complaint

[against] a deputy.”

The complaint provides examples of excessive force that

were allegedly not investigated. In one “well-publicized revenge

beating,” “Dorning refused to investigate and discipline the depu-

ties involved,” despite being “fully informed” of the incident, “in-

cluding the revenge beating and cover-up.” “Dorning learned that

numerous deputies of various ranks were involved in the beating

or its planning, in the cover-up, or in both.” Despite that

knowledge, and even though a policy and procedure manual re-

quired him to investigate, “Dorning took no action against any of

the involved deputies” and “did not . . . initiate an internal affairs

investigation.” Dorning similarly “refused to investigate serious al-

legations related to [six] deaths at the Madison County Jail.” And

Ingram points to five other incidents that were “approved as a mat-

ter of routine through the chain of command without any investi-

gation.”

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6 Opinion of the Court 20-11310

Dorning’s inaction was “a matter of routine and de facto pol-

icy” of “approv[ing] the force used and never initiat[ing] further in-

vestigation.” “Thus, no officer was disciplined, let alone termi-

nated, for excessive force or for otherwise violating a citizen’s con-

stitutional rights during Dorning’s 16-year tenure.” As a result of

that policy, “[d]eputies under Dorning’s command learned that

their justifications for using force and other unlawful actions would

never be questioned and that they could act with impunity.” In-

gram alleges that “[t]hrough explicit instruction and long-estab-

lished custom, Dorning established a custom or policy that inci-

dents of possible, likely, or known misconduct were not investi-

gated, with the foreseeable result that deputies like Kubik believed

they could get away with violating Ingram’s rights.” Kubik be-

lieved that “he would not have to face any investigation and that

he could act with impunity.”

Ingram filed a civil-rights action, see 42 U.S.C. § 1983,

against Kubik and Dorning in their individual capacities, for an un-

lawful seizure and the use of excessive force in violation of In-

gram’s constitutional rights, see U.S. CONST. amends. IV, XIV. In-

gram also sued the current Sherriff, Kevin Turner, in his official ca-

pacity, for violating section 504 of the Rehabilitation Act, see 29

U.S.C. § 794, and Title II of the Americans with Disabilities Act, see

42 U.S.C. § 12132. Ingram alleged that he “suffered from impair-

ments that substantially limited one or more of his major life activ-

ities” and that he “had a disability within the meaning of ” both

Acts. He also alleged that “the Madison County Sheriff, through

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20-11310 Opinion of the Court 7

the actions of his officers, failed to accommodate Ingram, a disa-

bled person, and discriminated against him by seizing and assault-

ing Ingram.” Later in the litigation, Ingram voluntarily dismissed

his claim under section 504 and proceeded against Turner only un-

der Title II.

After Dorning, Kubik, and Turner moved to dismiss the

claims against them, the district court granted their motions. The

district court held that there was no unlawful seizure because Ku-

bik had probable cause to seize Ingram. On the excessive-force

claim, the district court held that Kubik was entitled to qualified

immunity because Ingram “ha[d] not shown that his constitutional

right was clearly established at the time of the seizure,” so there

was “no need to decide if his constitutional right was violated.” The

district court held that Ingram had “failed to plausibly establish a

causal connection between” Dorning’s actions and the alleged ex-

cessive force to which Ingram was subjected. The district court rea-

soned that the examples of misconduct alleged in the complaint “at

best indicate isolated events of alleged wrongdoing and do not suf-

fice to indicate a ‘custom or policy’ in the department.” And the

district court held that Ingram’s Title II claim against Turner re-

quires that he allege “deliberate indifference”; that deliberate indif-

ference requires having “actual knowledge of discrimination in the

entity’s programs and fail[ing] adequately to respond,” Silberman

v. Miami Dade Transit, 927 F.3d 1123, 1134 (11th Cir. 2019) (alter-

ation adopted); and that Ingram “failed to allege that Turner had

any actual knowledge of discrimination against people with

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8 Opinion of the Court 20-11310

disabilities in his department.” The district court did not decide

whether Title II applies to police encounters or whether vicarious

liability is available under Title II; it mentioned only that these

questions have not been settled by this Court.

II. STANDARDS OF REVIEW

We review de novo an order dismissing a complaint. Ran-

dall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). We review de novo

determinations that officers are entitled to qualified immunity. See

Piazza v. Jefferson Cnty., 923 F.3d 947, 951 (11th Cir. 2019).

III. DISCUSSION

We divide our discussion in two parts. First, we explain that

Kubik and Dorning are entitled to qualified immunity from In-

gram’s claim of an unlawful seizure but not from his claim of ex-

cessive force and supervisory liability. Second, we explain that In-

gram’s claim against Turner fails because vicarious liability is una-

vailable under Title II.

A. Kubik and Dorning Are Entitled to Qualified Immunity from

Ingram’s Claim of Unlawful Seizure But Not from His Claim of

Excessive Force and Supervisory Liability.

A complaint must be dismissed if its factual allegations, on

their face, establish an affirmative defense that bars recovery. See

Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). If a defend-

ant advances the affirmative defense of qualified immunity, the dis-

trict court must dismiss any claims that fail to allege a violation of

clearly established law. See id. Officers asserting qualified-

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20-11310 Opinion of the Court 9

immunity defenses have the burden to establish that they were act-

ing within their discretionary authority. Piazza, 923 F.3d at 951. If

the officers satisfy that burden, the burden then shifts to the plain-

tiff to establish that the officers violated a constitutional right that

was clearly established at the time of the alleged violation. Id. The

officers are entitled to qualified immunity if the plaintiff fails to

show either that there was some constitutional violation or that it

was clearly established, and we may consider these two elements

in either order. Id.

We divide this part in three subsections. First, we conclude

that Kubik could lawfully seize Ingram because there was probable

cause that Ingram was a danger to himself. Second, we conclude

that the force Kubik used against Ingram during that otherwise

lawful seizure was unconstitutionally excessive based on clearly es-

tablished law. Finally, we conclude that the complaint states a

claim of supervisory liability against Dorning for the violation of

Ingram’s clearly established right to be free from excessive force.

1. Kubik Had Probable Cause to Seize Ingram.

Ingram does not dispute that Kubik was acting within his

discretionary authority. So, Ingram must establish that Kubik

seized him in violation of his clearly established rights. See id. In-

gram cannot satisfy that burden.

“The Fourth Amendment protects people from unreasona-

ble . . . seizures.” Roberts v. Spielman, 643 F.3d 899, 905 (11th Cir.

2011). Mental-health seizures are reasonable under the Fourth

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10 Opinion of the Court 20-11310

Amendment when the officer has probable cause to believe that

the seized person is a danger to himself or to others. Id. “[T]he cor-

rect legal standard to evaluate whether an officer had probable

cause to seize a suspect is to ask whether a reasonable officer could

conclude that there was a substantial chance,” see Washington v.

Howard, 25 F.4th 891, 902 (11th Cir. 2022) (alteration adopted) (in-

ternal quotation marks omitted), “of dangerous behavior,” Rob-

erts, 643 F.3d at 906 (internal quotation marks omitted).

Kubik had probable cause to believe that Ingram was a dan-

ger to himself. “Deputy [Kubik] was dispatched in response to a 911

call for a possible suicide attempt.” Id. By the time Kubik arrived,

Ingram had cut his wrist with a knife. Ingram’s mother thought the

situation perilous enough to warrant taking Ingram “to a residen-

tial program through . . . [Veterans Affairs].” And Ingram exhibited

erratic behavior when he sought to evade the deputies and isolate

himself in a cotton field.

In the light of those facts, Kubik was not required to believe

Ingram’s innocent assurances that he no longer desired to harm

himself. See District of Columbia v. Wesby, 138 S. Ct. 577, 588

(2018). Kubik “could have disbelieved” Ingram because “people

normally do not” attempt to kill themselves by cutting their wrist

if they lack a serious desire to do so. Cf. id. at 587. And Ingram’s

argument that Kubik was “motivated by anger” is irrelevant be-

cause “[a]n officer’s evil intentions will not make a Fourth Amend-

ment violation out of an objectively reasonable use of force.” Gra-

ham v. Connor, 490 U.S. 386, 397 (1989). “[I]t was objectively

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20-11310 Opinion of the Court 11

reasonable for [Kubik] to believe that [Ingram] might still be in

need of immediate aid even though” he was not actively trying to

kill himself, see Roberts, 643 F.3d at 905, because he had recently

attempted to do just that. Because Kubik had probable cause to

seize Ingram, Kubik and Dorning are entitled to dismissal of the

unlawful-seizure claim. See Piazza, 923 F.3d at 951.

2. Kubik is Not Entitled to Qualified Immunity from the Claim for

Excessive Force.

Although Kubik could lawfully seize Ingram, the way he al-

legedly did so was excessive. “A citizen’s Fourth Amendment right

to be free from unreasonable . . . seizures includes the right to be

free from the use of excessive force in the course of an arrest.”

Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1326

(11th Cir. 2015) (internal quotation marks omitted). But “[t]o deny

qualified immunity at the motion to dismiss stage, we must con-

clude both that the allegations in the complaint . . . establish a con-

stitutional violation and that the constitutional violation was

clearly established.” Sebastian v. Ortiz, 918 F.3d 1301, 1307 (11th

Cir. 2019) (internal quotation marks omitted). We conclude that

both requirements are satisfied.

A determination that an officer used excessive force “re-

quires careful attention to the facts and circumstances of each par-

ticular case” while “recogniz[ing] that the right to make an arrest

. . . necessarily carries with it the right to use some degree of phys-

ical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396.

We apply the “Graham framework” to mental health seizures even

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though they “do[] not involve a criminal arrest.” Mercado v. City

of Orlando, 407 F.3d 1152, 1157–58 (11th Cir. 2005). Under that

framework, the force used by an officer is reasonable only if it is

“reasonably proportionate to the need for that force, which is

measured by the severity of the crime, the danger to the officer [or

others], and the risk of flight.” Lee v. Ferraro, 284 F.3d 1188, 1198

(11th Cir. 2002); see also Graham, 490 U.S. at 396. “This Court also

considers the need for application of force, the relationship be-

tween the need and amount of force used, and the extent of the

injury inflicted by the arresting officer.” Helm v. Rainbow City, 989

F.3d 1265, 1273 (11th Cir. 2021) (citing Lee, 284 F.3d at 1198 & n.7).

Kubik argues that body slamming Ingram was justified be-

cause it “had the immediate effect of immobilizing him using non-

lethal force and preventing any further threat from [Ingram], either

to himself or to the officers.” Kubik also asserts that he “took ad-

vantage of an opportunity to physically detain [Ingram]—a former

soldier experiencing a mental health crisis who had tried to commit

suicide—after he had stopped running and the officers had caught

up to him.” And Kubik maintains that he did not violate Ingram’s

rights because of Ingram’s “aberrant and erratic conduct.” We dis-

agree.

“All of the factors articulated in Graham weigh in favor of

[Ingram].” Mercado, 407 F.3d at 1157. Although Kubik implies that

“the use of force [was] justified because suicidal subjects sometimes

make erratic moves that can jeopardize the safety of the officers,”

“viewing the [alleged] facts in the light most favorable to [Ingram],”

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20-11310 Opinion of the Court 13

there is “no indication that [Ingram] made any threatening moves

toward the police.” Id. The deputies had searched Ingram and con-

fiscated the knife with which he had cut himself, so they knew he

was unarmed. Before Kubik body slammed him, Ingram had his

hands over his head. And there was no sign that he sought to flee

when he was seized. Accepting these allegations as true, Ingram

“was not actively resisting arrest, and there is no [allegation] that

he struggled with the police” at the time of the seizure. Id. Alt-

hough Kubik could lawfully seize Ingram, the “extent of the injury

[he] inflicted” was significant enough to confirm the already tenu-

ous nature of the relationship between the “need for application of

force” and the “amount of force used.” See Helm, 989 F.3d at 1273.

We conclude that the force used was not “reasonably pro-

portionate to the need for that force.” Lee, 284 F.3d at 1198. “Be-

cause [Ingram] was not committing a crime, resisting arrest, or pos-

ing an immediate threat to the officers at the time he was [body

slammed],” Kubik “used excessive force when apprehending [In-

gram].” Mercado, 407 F.3d at 1157–58. So, Ingram has satisfied his

burden to show that “the officer violated a constitutional right.”

Piazza, 923 F.3d at 951.

Ingram can establish that “the right was clearly established

at the time of the alleged violation,” id., “in any of three ways,” see

Patel v. City of Madison, 959 F.3d 1330, 1343 (11th Cir. 2020). First,

he can “point to a materially similar case that has already decided

that what the police officer was doing was unlawful.” Patel, 959

F.3d at 1343 (alteration adopted) (internal quotation marks

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14 Opinion of the Court 20-11310

omitted). Second, if he “cannot find a materially similar factual case

from the Supreme Court, our Court, or, in this case, the Supreme

Court of Alabama,” Ingram can establish “that a broader, clearly

established principle should control the novel facts in this situa-

tion.” Id. (internal quotation marks omitted). Third, Ingram can es-

tablish that the officer’s “conduct [was] so obviously at the very

core of what the Fourth Amendment prohibits that the unlawful-

ness of the conduct was readily apparent to the [officer], notwith-

standing the lack of caselaw.” Id. (internal quotation marks omit-

ted). We conclude “that a broader, clearly established principle”

controls here. See id. (internal quotation marks omitted).

Our precedents “hold that gratuitous use of force when a

criminal suspect is not resisting arrest constitutes excessive force.”

Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008); see also

id. (holding that an officer “was not entitled to use any force” after

handcuffing a suspect because the suspect “neither resisted arrest

nor posed a danger” to the officer (emphasis added)). We have held

that police officers cannot employ gratuitous and seriously injuri-

ous force against non-resisting suspects who are under control. See,

e.g., Saunders v. Duke, 766 F.3d 1262, 1265 (11th Cir. 2014) (“We

have repeatedly ruled that a police officer violates the Fourth

Amendment, and is denied qualified immunity, if he or she uses

gratuitous and excessive force against a suspect who is under con-

trol, not resisting, and obeying commands.”); Lee, 284 F.3d at 1200

(relying on “the clear and obvious principle that once an arrest has

been fully secured and any potential danger or risk of flight vitiated,

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20-11310 Opinion of the Court 15

a police officer cannot employ . . . severe and unnecessary force”).

And we have explained that “the same rationale applies to the use

of gratuitous force when the excessive force is applied prior to the

handcuffing but in the course of the investigation.” See Stephens v.

DeGiovanni, 852 F.3d 1298, 1328 & n.33 (11th Cir. 2017); see also

Patel, 959 F.3d at 1340 (citing DeGiovanni, 852 F.3d at 1328 n.33)

(rejecting the “argu[ment] that our precedent prohibiting the use

of gratuitous and excessive force against non-resisting suspects ap-

plies only when the suspect is handcuffed”). Based on precedents

that preceded Kubik’s conduct, we have explained that “our case

law is clear that serious and substantial injuries caused during a sus-

pect’s arrest when a suspect is neither resisting an officer’s com-

mands nor posing a risk of flight may substantiate an excessive

force claim.” Sebastian, 918 F.3d at 1310–11 (examining case law

from 1997 to 2017); see also Patel, 959 F.3d at 1343 (“[O]ur cases

establishing this principle date to at least 2000.”).

Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997), is instruc-

tive. There, “a police officer subjected a previously threatening and

fleeing arrestee to nondeadly force after the arrestee suddenly be-

came docile.” Id. at 1419. The suspect had “raised [a] baseball bat

in a threatening posture” before the officer drew his firearm and

“ordered [the suspect] to drop the bat.” Id. at 1418. The suspect

then dropped the bat and ran from the officer, who pursued him.

Id. When the officer caught up, the suspect “docilely submitted to

arrest upon [the officer’s] request for him to ‘get down.’” Id. The

officer then put his knee on the suspect’s lower back and, “with a

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grunt and a blow,” broke the suspect’s arm while trying to handcuff

him. Id. Because the suspect “was offering no resistance at all, the

considerable . . . force inferable from the grunt, [the suspect’s] sen-

sation of a blow, and the broken arm was obviously unnecessary

to restrain even a previously fractious arrestee,” so we concluded

“that this case falls within the slender category of cases in which

the unlawfulness of the conduct is readily apparent even without

clarifying caselaw.” Id. at 1420. “Smith established that if an ar-

restee demonstrates compliance, but the officer nonetheless inflicts

gratuitous and substantial injury using ordinary arrest tactics, then

the officer may have used excessive force” even if the arrestee “was

initially recalcitrant and even acted aggressively toward the of-

ficer.” Sebastian, 918 F.3d at 1311.

Mercado v. City of Orlando, 407 F.3d at 1154–58, is also in-

structive. There, officers were called to conduct a welfare check on

a suicidal subject who had “wrapped a telephone cord around his

neck” and “used a . . . knife to make multiple cuts on his arms.” Id.

at 1154. When the officers arrived, the subject’s wife told the offic-

ers that he “was armed with a knife and had threatened to commit

suicide.” Id. The officers found the subject “sitting on the kitchen

floor” while “holding the knife in both hands and pointing it to-

ward his heart.” Id. The officers ordered him to “drop his knife at

least two times,” “but he refused without making any threatening

moves toward the officers.” Id. Within 30 seconds of giving that

order and with no warning, an officer shot the subject in his head

with a rubber projectile, “resulting in brain injuries.” Id. at 1154–

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55, 1155 n.3. After applying the Graham factors, we held that the

use of force was excessive. Id. at 1157–58.

The facts that made the force used in Mercado excessive ob-

tain here. In Mercado, we rejected “[t]he defendants[’] claim that

the use of force [was] justified because suicidal subjects sometimes

make erratic moves that can jeopardize the safety of the officers on

the scene.” Id. at 1157. Despite the subject’s being armed and not

under control, we reasoned that there was “no indication that [the

subject] made any threatening moves toward the police,” and that

he “was not actively resisting arrest,” “struggl[ing] with the police,”

or “posing an immediate threat to [them]” before an officer used

seriously injurious, lethal force. Id. at 1157–58. Most of these facts

were true of Ingram. But unlike the subject in Mercado, Ingram

behaved less erratically, was compliant, was not an immediate

threat to himself or to the deputies, and was known to be unarmed.

Our precedents clearly established that Kubik could not use

grossly disproportionate, gratuitous, and seriously injurious force

against a non-resisting, compliant, and docile subject like Ingram.

Ingram was unarmed. He posed no threat to Kubik. He had his

hands over his head. And he reiterated that he would cooperate

with any arrest. When Kubik body slammed Ingram headfirst with-

out warning and caused a severe neck injury, that force was “ut-

terly disproportionate to the level of force reasonably necessary” in

that circumstance. See Oliver v. Fiorino, 586 F.3d 898, 908 (11th

Cir. 2009).

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To be sure, Ingram behaved erratically when he ran into the

cotton field. But using seriously injurious force against “even a pre-

viously fractious arrestee” is unlawful if at the time of arrest he

“was offering no resistance at all.” Smith, 127 F.3d at 1420; see also

Mercado, 407 F.3d at 1157. And it is of no moment that Ingram was

not yet under physical control in that circumstance. See DeGio-

vanni, 852 F.3d at 1328 n.33. Kubik’s headfirst body slam was a

“gratuitous use of force” against someone who was “not resisting

arrest” that our precedents have established “constitutes excessive

force.” Hadley, 526 F.3d at 1330. We conclude that “our case law

bars [Kubik’s] alleged actions with sufficient clarity to put any rea-

sonable officer on notice” that the use of seriously injurious force

against a compliant, docile, non-resisting, and unarmed subject like

Ingram “constituted excessive force.” Sebastian, 918 F.3d at 1311.

Kubik is not entitled to qualified immunity based on these allega-

tions.

3. Dorning is Not Entitled to Qualified Immunity from Ingram’s

Claim of Supervisory Liability.

Supervisory officials are not vicariously liable under section

1983 for the unconstitutional acts of their subordinates. Hartley v.

Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999). Plaintiffs must instead

allege that the supervisor, through his own actions, violated the

Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Because

Ingram does not allege that Dorning was present or involved in the

altercation, Dorning is liable under section 1983 only if “there is a

causal connection between [his] actions . . . and the alleged

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20-11310 Opinion of the Court 19

constitutional deprivation.” Hartley, 193 F.3d at 1269 (internal quo-

tation marks omitted).

Causation “may be established and supervisory liability im-

posed where the supervisor’s improper custom or policy results in

deliberate indifference to constitutional rights.” Id. (alterations

adopted) (internal quotation marks omitted). “A plaintiff can also

show that the absence of a policy led to a violation of constitutional

rights.” Piazza, 923 F.3d at 957. “Either way, though, to prove that

a policy or its absence caused a constitutional harm, a plaintiff must

point to multiple incidents, or multiple reports of prior misconduct

by a particular employee.” Id. (citation omitted). And allegations of

a single incident of unconstitutional conduct cannot state a claim

for supervisory liability, even when the conduct involves several

subordinates. Id. at 957–58.

Dorning makes two arguments. First, he argues that the al-

legations fail to state a claim for supervisory liability. Second, he

argues that he is entitled to qualified immunity. We disagree with

both arguments.

“A plaintiff survives a motion to dismiss only if his complaint

alleges ‘sufficient factual matter, accepted as true, that states a

claim to relief that is plausible on its face.’” McCullough v. Finley,

907 F.3d 1324, 1333 (11th Cir. 2018) (alterations adopted) (quoting

Iqbal, 556 U.S. at 678). After ignoring conclusory allegations, “we

assume any remaining factual allegations are true and determine

whether those factual allegations ‘plausibly give rise to an

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20 Opinion of the Court 20-11310

entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679). We con-

clude that Ingram’s complaint states a claim against Dorning.

Ingram’s complaint alleges that there was a causal connec-

tion between Dorning’s conduct and the excessive force used

against Ingram. The complaint alleges that Dorning established a

policy that “incidents of possible, likely, or known misconduct

were not investigated, with the foreseeable result that deputies like

Kubik believed they could get away with violating Ingram’s

rights.” Cf. Hartley, 193 F.3d at 1269 (finding relevant the lack of

evidence that a supervisor “had any sort of policy in place prior to

the [alleged misconduct] which could have led [the subordinate] to

believe that [the misconduct] was permitted by [the supervisor]”).

And Ingram’s complaint alleges that Kubik had that belief when he

used excessive force.

The complaint alleges “multiple incidents, or multiple re-

ports of prior misconduct by” officers, Piazza, 923 F.3d at 957 (cita-

tion omitted), that were not investigated by Dorning. One incident

involved a “well-publicized revenge beating” that “Dorning re-

fused to investigate” and in which he did not “discipline [the] dep-

uties involved,” despite being “fully informed” of the beating and

cover-up. Dorning knew that “numerous deputies of various ranks

were involved in the beating” or its cover-up. Dorning allegedly

took no action against any of the deputies involved and “did not

. . . initiate an internal affairs investigation.” The complaint identi-

fies five other incidents that were “approved as a matter of routine

through the chain of command without any investigation.” In one

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20-11310 Opinion of the Court 21

of these incidents, “a deputy with a history of losing his temper

with citizens punched a severely intoxicated misdemeanor arrestee

twice in the face, causing an orbital fracture.”

Dorning allegedly “was copied on all use of force reports”

and “approved of the excessive uses of force without having any of

them investigated.” “[N]o officer was disciplined, let alone termi-

nated, for excessive force or for otherwise violating a citizen’s con-

stitutional rights during Dorning’s 16-year tenure.” During that

tenure, Dorning’s website “identified no person or division to con-

tact with a complaint [against] a deputy.” In response to requests

for “records of internal investigations of deputy misconduct,” In-

gram’s lawyer was “told no such records existed,” despite a “policy

and procedure manual” that “requires thorough and prompt inves-

tigations” of allegations of misconduct. And “[d]espite widespread

knowledge of the incident” involving Kubik and Ingram “up the

chain of command (including Dorning)[,] . . . the incident was not

. . . investigated.”

Contrary to Dorning’s argument, this case is not like

McCullough v. Finley, where “we struggle[d] to find [any] factual

allegations” in a complaint that alleged only “the [officials’] names

and titles.” 907 F.3d at 1334–35. In McCullough, there was “nothing

about the significance of [the officials’] titles, their individual roles

in the [policy], their personal interactions or familiarity with [the

plaintiffs], their length of service, their management policies, or

any other characteristics that would bear on whether they knew

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22 Opinion of the Court 20-11310

about the [policy] that they allegedly operated.” Id. at 1334 (inter-

nal quotation marks omitted).

The allegations of “multiple reports of prior misconduct,”

Piazza, 923 F.3d at 957, with no investigation by Dorning “allow[]

the court to draw the reasonable inference,” Iqbal, 556 U.S. at 678,

that there is a causal connection between Dorning’s failure to in-

vestigate any allegations of serious misconduct and Kubik’s belief

that he could act with impunity. The factual allegations, if true, es-

tablish the “absence of a policy” of investigating excessive force vi-

olations, see Piazza, 923 F.3d at 957, of which Dorning had

knowledge, see Rivas v. Freeman, 940 F.2d 1491, 1495–96 (11th Cir.

1991) (“[T]he district court’s findings regarding [the] Sheriff[’s] . . .

failure to establish policies and procedures [were] supported” by

“evidence at trial which established that [he] knew of prior in-

stances of [misconduct], but allowed his deputies to [engage in that

misconduct].”). And the complaint relies on more than the incident

at issue to establish the custom or policy. See, e.g., Piazza, 923 F.3d

at 957–58.

Dorning also is not entitled to qualified immunity. Because

Ingram does not dispute that Dorning was acting within the scope

of his discretionary authority, “the burden shifts to [Ingram] to

show that (1) [Dorning] violated a constitutional right and (2) the

right was clearly established at the time of the alleged violation.”

Id. at 951. Ingram has satisfied his burden.

A supervisor can be held liable for implementing or failing

to implement a policy that causes his subordinates to believe that

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20-11310 Opinion of the Court 23

they can permissibly violate another’s constitutional rights if the

subordinates then do so based on that belief. See Hartley, 193 F.3d

at 1269. As we have explained, the complaint adequately alleges

that one of Dorning’s subordinates used excessive force and that

there is a causal connection between that excessive force and Dorn-

ing’s policy of allowing such force. And this Court has clearly es-

tablished that “a custom of allowing the use of excessive force . . .

provides the requisite fault[,] . . . as a persistent failure to take dis-

ciplinary action against officers can give rise to the inference that a

[supervisor] has ratified conduct.” Fundiller v. City of Cooper City,

777 F.2d 1436, 1443 (11th Cir. 1985). That “allegation would [also]

provide the causal link between the challenged conduct and the . . .

policy, because [the officer] would have been acting in accordance

with the policy of allowing or encouraging excessive force.” Id.

This principle applies both to municipalities and supervisors “re-

sponsible for disciplining police officers and setting police depart-

ment policy.” Id. It follows that Ingram’s complaint states a claim

that Dorning violated his clearly established constitutional rights.

B. Vicarious Liability is Unavailable under Title II of the Ameri-

cans with Disabilities Act.

Under Title II of the Americans with Disabilities Act, “no

qualified individual with a disability shall, by reason of such disabil-

ity, be excluded from participation in or be denied the benefits of

the services, programs, or activities of a public entity, or be sub-

jected to discrimination by any such entity.” 42 U.S.C. § 12132.

“Given the textual similarities between” Title II and section 504 of

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24 Opinion of the Court 20-11310

the Rehabilitation Act, 29 U.S.C. § 794(a), “the same standards gov-

ern claims under both, and we rely on cases construing Title II and

[section] 504 interchangeably.” Silberman, 927 F.3d at 1133 (altera-

tions adopted) (internal quotation marks omitted). To state a claim

under Title II, Ingram had to allege “(1) that he is a qualified indi-

vidual with a disability; (2) that he was either excluded from partic-

ipation in or denied the benefits of a public entity’s services, pro-

grams, or activities, or was otherwise discriminated against by the

public entity; and (3) that the exclusion, denial of benefit, or dis-

crimination was by reason of [his] disability.” Id. at 1134 (internal

quotation marks omitted).

Ingram seeks compensatory damages for the alleged Title II

violation. And “[t]o get damages—as [Ingram] seeks here—a plain-

tiff must clear an additional hurdle: he must prove that the entity

that he has sued engaged in intentional discrimination, which re-

quires a showing of deliberate indifference.” Id. (internal quotation

marks omitted). To recover from Turner under this standard, In-

gram must establish that Turner is “an official who at a minimum

has authority to address the alleged discrimination and to institute

corrective measures on the entity’s behalf” and “had actual

knowledge of discrimination in the entity’s programs and failed ad-

equately to respond.” Id. (alterations adopted) (internal quotation

marks omitted).

The district court applied the deliberate-indifference stand-

ard, held that Ingram “failed to allege that Turner had any actual

knowledge of discrimination against people with disabilities in his

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20-11310 Opinion of the Court 25

department,” and concluded that Ingram “failed to state a claim for

relief.” But Ingram seeks to evade that conclusion by arguing that

Turner is vicariously liable. And we have explained that “the avail-

ability of respondeat superior for Title II . . . claims remains an

open question.” Id. at 1134 n.6.

Turner argues that vicarious liability is unavailable under Ti-

tle II and that, in any event, Title II does not apply to police en-

counters. The latter argument may conflict with precedent. See

Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1084–85 (11th Cir.

2007) (explaining that a plaintiff can “attempt to show a[] . . . claim

under . . . Title II” by establishing “that he was ‘subjected to dis-

crimination’ by a public entity, the police, by reason of his disabil-

ity” (quoting 42 U.S.C. § 12132) (emphasis added)). But we need

not address that argument because we conclude that vicarious lia-

bility is unavailable under Title II.

The Supreme Court “ha[s] never decided whether” a public

“entity can be held vicariously liable [under Title II] for money

damages for the purposeful or deliberately indifferent conduct of

its employees.” City of San Francisco v. Sheehan, 575 U.S. 600, 610

(2015). And the courts of appeals are divided. Some have held that

vicarious liability is available under Title II. E.g., Duvall v. Cnty. of

Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2001); Delano-Pyle v. Victoria

Cnty., 302 F.3d 567, 574–75 (5th Cir. 2002); Rosen v. Montgomery

Cnty., 121 F.3d 154, 157 n.3 (4th Cir. 1997). The Sixth Circuit re-

cently held the opposite. Jones, 20 F.4th at 1118. We agree with the

Sixth Circuit.

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26 Opinion of the Court 20-11310

Although Title II “prohibits discrimination against the disa-

bled by public entities[, and section] 504 of the Rehabilitation Act

prohibits discrimination against the disabled by recipients of federal

funding, including private organizations,” Barnes v. Gorman, 536

U.S. 181, 184–85 (2002), both provisions incorporate the remedies

available under other anti-discrimination statutes. The enforce-

ment provision of Title II declares that “[t]he remedies, procedures,

and rights set forth in [the Rehabilitation Act] shall be the remedies,

procedures, and rights” Title II “provides to any person alleging

discrimination on the basis of disability.” 42 U.S.C. § 12133. And

the enforcement provision of section 504 declares that the “reme-

dies, procedures, and rights set forth in Title VI of the Civil Rights

Act of 1964 . . . shall be available to any person aggrieved by any

act or failure to act . . . under section [504].” 29 U.S.C. § 794a(a)(2).

It follows that the remedies, procedures, and rights “for violations

of [Title II] and [section] 504 . . . are coextensive with” those that

are “available in a private cause of action brought under Title VI of

the Civil Rights Act of 1964, which prohibits racial discrimination

in federally funded programs and activities.” See Barnes, 536 U.S.

at 185 (citation omitted). So, “Title VI tells us whether vicarious

liability is available under” Title II; if vicarious liability is unavaila-

ble under Title VI, it is unavailable under Title II. Jones, 20 F.4th at

1119.

Vicarious liability is unavailable under Title VI. Gebser v.

Lago Vista Independent School District, 524 U.S. 274 (1998), con-

trols that question. In Gebser, the Supreme Court explained that

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20-11310 Opinion of the Court 27

Title IX “was modeled after Title VI of the Civil Rights Act of 1964,

which is parallel to Title IX except that it prohibits race discrimina-

tion, not sex discrimination, and applies in all programs receiving

federal funds, not only in education programs.” Id. at 286 (citations

omitted). “The two statutes operate in the same manner . . . .” Id.

The Court held that Title IX does not “permit a damages recovery

against a school district for a teacher’s sexual harassment of a stu-

dent based on principles of respondeat superior or constructive no-

tice.” Id. at 285. The Court reasoned that both Title VI and IX “at-

tach[] conditions to the award of federal funds,” id. at 287, under

Congress’s spending power, U.S. CONST. art. I, § 8, cl. 1. The “con-

tractual nature [of those statutes] has implications for our construc-

tion of the scope of available remedies.” Gebser, 524 U.S. at 287.

The “central concern” for courts is with ensuring that the entity

receiving funds has “notice” that it will be liable for noncompliance

with the condition. Id. (internal quotation marks omitted). And

“[i]f a school district’s liability for a teacher’s sexual harassment

rests on principles of constructive notice or respondeat superior, it

will . . . be the case that the recipient of funds was unaware of the

discrimination,” a result “that Congress did not envision.” Id. at

287–88. Instead, “in cases . . . that do not involve official policy of

the recipient entity,” the Supreme Court “h[eld] that a damages

remedy will not lie . . . unless an official who at a minimum has

authority to address the alleged discrimination and to institute cor-

rective measures . . . has actual knowledge of [the] discrimination

. . . and fails to adequately respond,” id. at 290—the standard the

district court applied in this case.

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28 Opinion of the Court 20-11310

Title IX, like Title II, “incorporates the remedies established

by Title VI of the Civil Rights Act” and “uses the same remedial

scheme.” Jones, 20 F.4th at 1120. “[T]he [Supreme] Court has in-

terpreted Title IX consistently with Title VI.” Barnes, 536 U.S. at

185. And Title VI “shares all of the[] features” on which the Su-

preme Court relied to hold that vicarious liability is unavailable un-

der Title IX, so “[w]hat was true for Title IX in Gebser is true for

Title VI today.” Jones, 20 F.4th at 1121. Because vicarious liability

is unavailable under Title IX, Gebser, 524 U.S. at 285, “an entity

cannot be held vicariously liable on a respondeat superior the-

ory . . . under Title VI,” United States v. Cnty. of Maricopa, 889

F.3d 648, 652 (9th Cir. 2018). And “[b]ecause Title II . . . and the

Rehabilitation Act import Title VI’s remedial regime,” vicarious li-

ability is unavailable under Title II. Jones, 20 F.4th at 1121.

Ingram agreed to the dismissal of his Rehabilitation Act

claim under section 504 because “Gebser . . . provides support for

the position that there is not vicarious liability under [section] 504.”

He decided to “proceed [instead] only under Title II.” But we have

repeatedly explained that “the same standards govern claims under

both, and we rely on cases construing Title II and [section] 504 in-

terchangeably.” Silberman, 927 F.3d at 1133 (alterations adopted)

(internal quotation marks omitted).

Ingram’s attempt to find daylight between them is unavail-

ing. Ingram asserts that section 504 and Title IX “appl[y] only to

recipients of federal financial assistance” and correctly explains that

they “ha[ve] a similar remedial scheme.” But, he argues, “Title II

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20-11310 Opinion of the Court 29

. . . [is] not linked to acceptance of federal funds.” The problem for

Ingram is that his argument was foreclosed by the Supreme Court

in Barnes v. Gorman, 536 U.S. at 189–90 n.3.

In Barnes, the Supreme Court rejected the argument that

“Title VI does not carry over to the [Americans with Disabilities

Act] because the latter is not Spending Clause legislation.” Id. at

189 n.3. The Court held that the provisions of Title II that expressly

incorporate the remedies in the Rehabilitation Act “make discus-

sion of the [Americans with Disability Act]’s status as a ‘non Spend-

ing Clause’ tort statute quite irrelevant.” Id. at 190 n.3. Although

Title II is not Spending Clause legislation, its text expressly incor-

porates the remedies available under a statute that is—Title VI.

We conclude that “Gebser provides the correct standard”

under Title II. See Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d

334, 349 (11th Cir. 2012). Under Title II, vicarious liability is una-

vailable; instead, the “narrower approach [in Gebser] . . . requires

the deliberate indifference of an official who at a minimum has au-

thority to address the alleged discrimination and to institute cor-

rective measures on the [entity’s] behalf and who has actual

knowledge of discrimination in the [entity’s] programs and fails ad-

equately to respond.” See id. (alteration adopted) (internal quota-

tion marks omitted).

The district court applied that standard, and it correctly dis-

missed Ingram’s Title II claim. As the district court concluded, In-

gram “failed to allege that Turner had any actual knowledge of dis-

crimination against people with disabilities in his department.”

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30 Opinion of the Court 20-11310

IV. CONCLUSION

We AFFIRM in part, REVERSE in part, and REMAND for

further proceedings.