Brenda Davis v. Josh Cothern, Glynn County, Georgia

Case: 12-10679 Date Filed: 07/24/2012 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-10679

Non-Argument Calendar

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D.C. Docket No. 2:10-cv-00110-LGW-JEG

BRENDA DAVIS,

Plaintiff-Appellant,

versus

JOSH COTHERN,

GLYNN COUNTY, GEORGIA,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Georgia

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(July 24, 2012)

Before JORDAN, ANDERSON and COX, Circuit Judges.

PER CURIAM:

Brenda Davis sued Josh Cothern (in his individual capacity) and Glynn County,

Georgia, asserting claims under 42 U.S.C. § 1983. In her complaint, Davis alleges

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that Cothern wrongfully arrested her and that he used excessive force during this

arrest. She claims that Glynn County’s policies authorized this unconstitutional arrest

and use of force. The defendants filed a motion for summary judgment. The district

court granted the motion in favor of both defendants and dismissed the case. Davis

appeals.

Davis’s appeal presents three issues for our consideration: (1) whether the

district court erred by granting summary judgment based on qualified immunity on

the claims asserted against Cothern in his individual capacity; (2) whether the court

erred by granting summary judgment on the claim against Glynn County; and (3)

whether Davis should have been allowed to assert new state law claims for the first

time in her response to the defendants’ motion for summary judgment.

“We review a district court’s grant of summary judgment de novo, viewing the

factual allegations in the light most favorable to the non-movant below.” Croom v.

Balkwill, 645 F.3d 1240, 1245 (11th Cir. 2011) (citing Penley v. Eslinger, 605 F.3d

843, 848 (11th Cir. 2010)).

We first address the grant of qualified immunity to Cothern. Davis’s claims of

wrongful arrest and excessive force rest on Cothern’s decision to detain her during

the investigation of a convenience store robbery. There is no dispute that Cothern

was acting within his discretionary authority at the time of the detention. Thus, to

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defeat a claim of qualified immunity at the summary judgment stage, Davis has the

burden to demonstrate that Cothern’s actions, when viewed in the light most

favorable to Davis, violated a clearly established constitutional right. See Hoyt v.

Cooks, 672 F.3d 972, 977 (11th Cir. 2012) (citing Lee v. Ferraro, 284 F.3d 1188,

1194 (11th Cir. 2002)). Davis has not cited any case which clearly establishes that

Cothern’s conduct during the investigation of the robbery was unlawful. None of the

cases cited in Davis’s brief would have provided Cothern “fair warning” that his

alleged treatment of Davis was unlawful. See Hope v. Pelzer, 536 U.S. 730, 741, 122

S. Ct. 2508, 2516 (2002). Therefore, the district court did not err by granting

qualified immunity to Cothern.

Turning to Davis’s claim against the county, we hold that the district court did

not err by granting summary judgment on this claim. “[A] county is liable only when

the county’s ‘official policy’ causes a constitutional violation.” Grech v. Clayton

Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc) (citing Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38 (1978)). Therefore, Davis

must identify a county policy that caused her injury. Id. (citations omitted). We

agree with the district court that Davis has failed to produce any evidence of a Glynn

County policy that caused her injuries.

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To the extent Davis contends Glynn County should be liable because it failed

to train Cothern, her claim still fails. A municipality may only be liable under § 1983

if its inadequate training “amounts to deliberate indifference to the rights of persons

with whom the police come into contact.” Am. Fed’n of Labor & Cong. of Indus.

Orgs. v. City of Miami, Fla., 637 F.3d 1178, 1188 (11th Cir. 2011) (quoting City of

Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 1204 (1989)). “To establish

a municipality’s ‘deliberate indifference,’ a plaintiff must put forward some evidence

that the municipality was aware of the need to train or supervise its employees in a

particular area.” Id. at 1188-89 (citing Gold v. City of Miami, 151 F.3d 1346, 1350-

51 (11th Cir. 1998)). Davis has failed to put forth any evidence that Glynn County

knew it needed to improve its training regarding the Fourth Amendment protections

against wrongful arrest or excessive force. Because Davis has failed to produce

evidence necessary to support her claim against Glynn County, the district court did

not err by granting summary judgment on this claim.

Regarding Davis’s state law claims raised for the first time in her response to

the defendants’ motion for summary judgment, our precedent is clear: “At the

summary judgment stage, the proper procedure for plaintiffs to assert a new claim is

to amend the complaint in accordance with Fed.R.Civ.P. 15(a). A plaintiff may not

amend her complaint through argument in a brief opposing summary judgment.”

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Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (citing

Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996)). Thus, Davis failed

to properly raise these state law claims in the district court and we need not consider

them. See Thompkins v. Lil’ Joe Records, Inc., 476 F.3d 1294, 1310 (11th Cir. 2007).

AFFIRMED.

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