Ingram v. Kubik

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

KIRBY INGRAM, )

)

Plaintiff, )

)

v. ) Case No.: 5:19-cv-00741-LCB

)

LOUIS KUBIK, et al., )

)

Defendants. )

MEMORANDUM OPINION

Plaintiff Kirby Ingram brought this case for injuries he allegedly suffered

during a welfare check on October 22, 2017. (Doc. 26 at 2). Plaintiff claims that

Defendant Louis Kubik slammed him against the ground outside his home, causing

serious injuries to his neck. Before the Court are Defendants Dorning’s, Turner’s,

and Kubik’s Motions to Dismiss Plaintiff’s Amended Complaint (Docs. 30, 32 &

34). For the reasons stated below, the Court finds Defendants motions are due to be

granted.

I. FACTUAL BACKGROUND

On October 22, 2017, Plaintiff, a veteran who suffers from Post-Traumatic

Stress Disorder (PTSD), was in the throes of a mental health crisis and cut one of his

wrists. (Doc. 26 at 2). Plaintiff’s girlfriend called the VA suicide hotline, and two

sheriff’s deputies, Defendant Kubik among them, were dispatched to the scene. (Id.).

The deputies searched him for weapons and confiscated the pocketknife he had used

to cut his wrist. (Id.). Although Plaintiff was now no longer suicidal, the deputies

and Plaintiff’s mother together tried to persuade him to let the deputies take him to

a VA residential treatment program. (Id. at 3). Throughout this discussion, Plaintiff

asked repeatedly whether he was under arrest, and repeatedly he was assured that he

was not. (Id.). Plaintiff informed the officers that if they wanted to arrest him, he

would cooperate. (Id.).

Plaintiff eventually concluded that the deputies were not going to leave and

ran outside into a cotton field behind the house. (Id.). The deputies followed behind

him. (Id.). Plaintiff soon stopped to let them catch up. (Id.). When they reached him,

the deputies told Plaintiff that if he would go back to the house and refuse treatment

from HEMSI, the local medical services, the deputies would leave. (Id.). Plaintiff

then agreed to walk back with the deputies to speak with HEMSI. (Id.). On the walk

back, Plaintiff again asked whether he was under arrest, emphasizing that if he was,

they should say so, and he would go voluntarily. (Id. at 3–4). Plaintiff was once again

assured he was not under arrest. (Id. at 4). As they approached the yard, Plaintiff

called out to HEMSI that he would be refusing treatment. (Id.).

Suddenly, Defendant Kubik grabbed Plaintiff under his armpits, picked him

up, and slammed him into the ground head-first, seriously injuring Plaintiff’s neck.

(Id.). HEMSI took Plaintiff by ambulance to the hospital, where a surgeon fused his

C-3 and C-4 vertebrae and replaced his C-2 vetebra with a metal rod. (Id. at 5).

For his injuries, Plaintiff now seeks damages under § 1983 against Defendant

Kubik for his alleged use of excessive force and allegedly illegal seizure in violation

of the Fourth and Fourteenth Amendment, and against Defendant Blake Dorning,

former Sheriff of Madison County, for allegedly “establish[ing] a custom and policy

of tolerating misconduct by his officers.” Plaintiff also seeks damages under Title II

of the Americans with Disabilities Act (ADA) against current Sheriff Defendant

Kevin Turner in his official capacity only, for allegedly failing to provide adequate

accommodations for Plaintiff’s disability during the welfare check.1 (Id. at 11–12).

II. LEGAL STANDARDS

Under Federal Rule of Civil Procedure 12(b)(6), a civil claim may be

dismissed for failing “to state a claim upon which relief can be granted.” While the

complaint need not include “detailed factual allegations” to survive, Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009), it must offer more than “a formulaic recitation of

the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007). To survive a motion to dismiss, a plaintiff must “state a claim to relief

that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

570). A claim is facially plausible “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

1 Plaintiff voluntarily dismissed his claim that Defendant Turner violated Section 504 of the

Rehabilitation Act in his Reply Brief. (Doc. 42 at 2).

misconduct alleged.” Iqbal, 556 U.S. at 678. When reviewing a motion to dismiss,

a court must “accept[] the allegations in the complaint as true and constru[e] them

in the light most favorable to the plaintiff.” Hunt v. Aimco Properties, 814 F.3d 1213,

1221 (11th Cir. 2016). A party’s vague recitation “of the elements of a cause of

action, supported by mere conclusory statements, do[es] not suffice.” Iqbal, 556 U.S.

at 678.

III. DISCUSSION

A. Defendant Dorning’s Motion to Dismiss (Doc. 30)

Defendant Dorning argues that Plaintiff has not stated a claim against him

because he has not pled enough facts to satisfy the standards of supervisory liability

under § 1983. (Doc. 31 at 4). Defendant Dorning also asserts qualified immunity.

(Id. at 17).

“Supervisory officials cannot be held liable under § 1983 for unconstitutional

acts by their subordinates based on respondeat-superior or vicarious-liability

principles.” Piazza v. Jefferson Cty., Ala., 923 F.3d 947, 957 (11th Cir. 2019). A

supervisor that does not personally participate in the alleged wrongdoing can be held

liable under § 1983 only “if there is a ‘causal connection’ between [the] supervisor’s

actions and the alleged constitutional violation.” Id. (quoting Cottone v. Jenne, 326

F.3d 1352, 1360 (11th Cir. 2003)).

A causal connection can be established “when a history of widespread abuse

puts the responsible supervisor on notice of the need to correct the alleged

deprivation, and he fails to do so.” Cottone, 326 F.3d at 1360 (quoting Gonzalez v.

Reno, 325 F.3d 1228, 1234 (11th Cir. 2003)). A connection can also be established

“when a supervisor’s ‘custom or policy’ . . . result[s] in deliberate indifference to

constitutional rights.” Id. A government office or official’s “custom is a practice that

is so settled and permanent that it takes on the force of law.” Sewell v. Town of Lake

Hamilton, 117 F.3d 488, 489 (11th Cir. 1997). Likewise, “a policy is a decision that

is officially adopted by the municipality, or created by an official of such rank that

he or she could be said to be acting on behalf of the municipality.” Id. The standard

for holding a supervisor personally liable for the conduct of his subordinate is

“extremely rigorous.” Braddy v. Fla. Dept. of Labor and Emp’t Sec., 133 F.3d 797,

802 (11th Cir. 1998).

Plaintiff claims that Defendant Dorning’s “standard operating procedure” has

been to ignore the alleged misconduct of his deputies and fail to investigate incidents

of abuse. (Doc. 26 at 6). In support of his argument that this was Defendant

Dorning’s custom or policy, Plaintiff asserts that Dorning conducted “zero internal

investigations of deputy misconduct and zero disciplinary actions against deputies

for misconduct.” (Doc. 40 at 11). He also specifically lists five incidents from the

Northern District of Alabama in which Defendant Dorning allegedly oversaw deputy

misconduct and did not intervene.2

Here, Plaintiff’s allegations against Defendant Dorning do not meet the

“rigorous standards” to hold him liable as a supervisor for Kubik’s conduct. See

Braddy, 133 F.3d at 802. Several of Plaintiff’s allegations against Defendant

Dorning, such as his alleged refusal to investigate past incidents of deputy

misconduct and his alleged cover-up (Doc. 26 at 7–8), are mere conclusory

allegations and must therefore be disregarded. Iqbal, 556 U.S. at 678. Although

Plaintiff cited five instances of alleged misconduct by Defendant Dorning’s deputies

that led to out-of-court settlements, this does not equate to a “custom or policy” of

indifference to constitutional violations. Assuming, arguendo, that each of these

incidents was evidence of police misconduct, these five cases are not enough to

establish that Defendant Dorning’s custom or policy is to permit deputy misbehavior

with no repercussions. These cases reference separate incidents that occurred

respectively in 2008, 2009, 2010, 2012, and 2013. (Doc. 26 at 10). These

occurrences at best indicate isolated events of alleged wrongdoing and do not suffice

to indicate a “custom or policy” in the department. See Depew v. City of St. Mary’s,

2 These cases are: Bryant v. Watson, et. al., (No. 5:14 -cv-00414-CLS); Johnson v. Jones, (No.

5:09-cv-01940-IPJ); Ratliff v. Pyle, et. al., (No. 5:11-cv-03612-TMP); Summers v. Martin, (No.

5:12-cv-01816-CLS); and Kennebrew v. Dejong, et.al. (No. 5:15-cv-00372-CLS). (Doc. 26 at 9–

10; Doc. 40 at 8).

Ga., 787 F.2d 1496, 1499 (11th Cir. 1986) (holding “random acts or isolated

incidents” are typically insufficient to establish a custom or policy). Because

Plaintiff failed to plausibly establish a causal connection between Defendant

Dorning and alleged constitutional violations, a qualified immunity discussion is

unnecessary.

Accordingly, considering the facts in the light most favorable to Plaintiff,

Plaintiff has failed to state a claim against Defendant Dorning. Defendant Dorning’s

Motion to Dismiss the Amended Complaint (Doc. 30) is therefore due to be

GRANTED.

B. Defendant Turner’s Motion to Dismiss (Doc. 32)

Defendant Turner moves to dismiss Plaintiff’s claims brought against him in

the amended complaint for failing to state a claim under Title II of the ADA. (Doc.

32 at 1). Specifically, Defendant Turner contends that Plaintiff has failed to plausibly

allege that Turner had any discriminatory intent towards him (Doc. 33 at 3); that

Plaintiff cannot prove that he was discriminated against because of his disability (Id.

at 11); and that Title II of the ADA does not apply to Fourth Amendment seizures

(Id. at 15).

Title II of the ADA provides that “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. To state a claim under Title

II of the ADA, a plaintiff must demonstrate

(1) that he is a qualified individual with a disability; (2) that he

was either excluded from participation in or denied the benefits

of a public entity’s services, programs, or activities, or was

otherwise discriminated against by the public entity; and (3) that

the exclusion, denial of benefit, or discrimination was by reason

of the plaintiff’s disability.

Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1083 (11th Cir. 2007). Typically, a Title

II claim would entitle a plaintiff only to injunctive relief. Silberman v. Miami Dade

Transit, 927 F.3d 1123, 1134 (11th Cir. 2019). However, a plaintiff may recover

compensatory damages under the statute if he can “prove that the entity that he has

sued engaged in intentional discrimination,” proof “which requires a showing of

‘deliberate indifference.’” Id. (quoting Liese v. Indian River Cty. Hosp. Dist., 701

F.3d 334, 348 (11th Cir. 2012)). Proving deliberate indifference is an “exacting

standard” and requires proof that “the defendant knew that the harm to a federally

protected right was substantially likely and . . . failed to act on that likelihood.” Id.

(quoting Liese, 701 F.3d at 344).

“[T]o hold a government entity liable, the plaintiff must demonstrate that an

‘official who at a minimum has authority to address the alleged discrimination and

to institute corrective measures on the [entity’s] behalf’ had ‘actual knowledge of

discrimination in the [entity’s] programs and fail[ed] adequately to respond.” Id.

(quoting Gesber v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998)). In this

context, an official is one “whose actions can be fairly said to represent the actions

of the organization.” Liese, 701 F.3d at 350.

Here, Plaintiff has failed to state a claim against Defendant Turner in his

official capacity.3 Plaintiff contends that the correct standard of liability is

respondeat superior. (Doc. 42 at 7). Indeed, Plaintiff correctly notes the availability

of respondeat superior under Title II of the ADA “remains an open question” in the

Eleventh Circuit. Silberman, 927 F.3d at 1134 n.6. However, until that question is

resolved, the Court will follow the precedent established by Liese and apply the

deliberate indifference standard for holding government entities liable for Title II

violations.4 Accordingly, to succeed under Title II of the ADA at this stage of

litigation, Plaintiff must not only allege facts sufficient to state a claim under Bircoll,

he must also allege that Turner was an official that was deliberately indifferent with

“actual knowledge of discrimination in the [entity’s] programs and fail[ed] to

adequately respond.” Id. at 1134.

Construing the facts in the light most favorable to Plaintiff, Plaintiff has failed

to allege that Turner had any actual knowledge of discrimination against people with

3 As Defendant Turner is being sued in his official capacity, “this is deemed a suit against the

entity that he represents.” Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999).

4 The Court also notes that the Eleventh Circuit “has never addressed whether police officers can

violate Title II of the ADA.” Estate of Osorio v. Miami Dade Cty., 717 F. App’x 957 (11th Cir.

2018) (per curium). However, when confronted with this situation in Estate of Osorio, the Court

applied the Liese “deliberate indifference” standard. Id.

disabilities in his department. Because Plaintiff failed to show actual knowledge of

discrimination, he cannot show that Turner was deliberately indifferent to his

disability, thus has failed to state a claim for relief. As there is no claim, it is

unnecessary to address Defendant Turner’s remaining arguments. Defendant

Turner’s Motion to Dismiss the Amended Complaint (Doc. 32) is therefore due to

be GRANTED.

C. Defendant Kubik’s Motion to Dismiss (Doc. 34)

Defendant Kubik moves to dismiss the amended complaint on the grounds

that he had probable cause to effect a mental health seizure and did not use excessive

force towards Plaintiff. (Doc. 35 at 10, 13). Additionally, he argues he is entitled to

qualified immunity. (Id. at 16).

Qualified immunity protects government officials “sued in their individual

capacities” if their actions do not violate “clearly established statutory or

constitutional rights of which a reasonable person would know.” Lee v. Ferraro, 284

F.3d 1188, 1193–94 (11th Cir. 2002). To receive qualified immunity, a defendant

must establish that he was acting within his discretionary authority. Id. at 1194. If a

defendant successfully asserts he was acting within his discretionary authority, the

burden shifts to the plaintiff “to show that qualified immunity is not appropriate.”

Id. Courts conduct a two-step analysis to determine if qualified immunity is

appropriate. Davis v. Williams, 451 F.3d 759, 762 (11th Cir. 2006). First, construing

the facts “in the light most favorable to the party asserting injury, do the facts show

the officer’s conduct violated a constitutional right?” Id. If a party’s constitutional

rights were violated, the court then “determine[s] ‘whether, at the time of the

incident, every objectively reasonable police officer would have realized the acts

violated clearly established federal law.” Id. An officer is entitled to qualified

immunity in excessive force cases “unless application of the standard would

inevitably lead every reasonable officer [in a defendant’s position] to conclude the

force was unlawful.” Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir. 2000). When

determining whether qualified immunity applies, the Court has the discretion to

decide whether a constitutional violation exists and if it is clearly established in

either order. Wate v. Kubler, 839 F.3d 1012, 1019 (11th Cir. 2016).

1. Unlawful Seizure

The Fourth Amendment guarantees freedom from unreasonable searches and

seizures. U.S. Const. amend. IV. When a law enforcement agent “restrains the

freedom of a person to walk away, he has seized that person.” Tennessee v. Garner,

471 U.S. 1, 7 (1985). Generally, warrantless searches and seizures are prohibited.

Bates v. Harvey, 518 F.3d 1233, 1243 (11th Cir. 2008). However, a warrantless

seizure is allowed when exigent circumstances exist, such as when a suspect can

potentially harm himself or others. Id. at 1244. For example, an officer may seize an

individual to determine his or her mental state, consistent with the guarantees of the

Fourth Amendment, if he has “probable cause to believe the person is dangerous

either to himself or to others.” Roberts v. Spielman, 643 F.3d 899, 905 (11th Cir.

2011).

Construing the facts in the light most favorable to Plaintiff, the Court finds

that on October 22, 2017, Defendant Kubik had probable cause to seize Plaintiff.

Defendant Kubik and his fellow deputy arrived at Plaintiff’s home in response to his

“mental health crisis.” (Doc. 26 at 2). By the time they had arrived, Plaintiff had

already cut his wrist with a pocketknife. (Id. at 2). And though he claimed he was no

longer suicidal, (Id. at 2), his actions were unpredictable: Plaintiff tried three times

to escape the deputies, and when he finally succeeded, he ran out back into a cotton

field to be alone. (Id. at 3). Given Plaintiff’s suicidal actions and his displays of

erratic behavior, a reasonable officer could conclude that Plaintiff remained a danger

to himself. Accordingly, Defendant Kubik had probable cause to seize Plaintiff.

Because there was no constitutional violation, Defendant Kubik is entitled to

qualified immunity for this claim.5

2. Excessive Force

“The Fourth Amendment’s freedom from unreasonable searches and seizures

encompasses the plain right to be free from excessive force in the course of an

5 That Defendant Kubik was acting within his discretionary authority is undisputed for purposes

of a qualified immunity analysis.

arrest.” Lee, 284 F.3d at 1197. Courts have “long recognized that the right to make

an arrest or investigatory stop necessarily carries with it the right to use some degree

of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386,

396 (1989). However, the force that an officer uses must be reasonable. Id. at 394.

Determining whether use of force is reasonable in a situation “must be judged from

the prospective of a reasonable officer on the scene, rather than the 20/20 vision of

hindsight.” Id. at 396. Typically, the Court will consider three factors to determine

whether the use of force was objectively reasonable: “(1) the severity of the crime at

issue; (2) whether the suspect poses an immediate threat to the officer or others; and

(3) whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.

A constitutional right is clearly established if a law enforcement officer is “on

notice that his conduct [is] clearly unlawful.” Terrell v. Smith, 668 F.3d 1244, 1255

(11th Cir. 2012). There are three ways for a plaintiff to prove that his constitutional

right was “clearly established.” Id. First, a plaintiff can show “a materially similar

case has already been decided.” Id. (quoting Mercado v. City of Orlando, 407 F.3d

1152, 1159 (11th Cir. 2005)). When deciding whether cases are “materially similar”

courts will “ask whether the factual scenario that the official faced is ‘fairly

distinguishable from the circumstances facing a government official’ in a previous

case.” Terrell, 668 F.3d at 1256. Only the “binding decisions of the Supreme Court

of the United States, the United States Court of Appeals, and the highest court of the

pertinent state” are controlling. Wate, 839 F.3d at 1018. Next, a plaintiff “can point

to a ‘broader, clearly established principle [that] should control the novel facts [of

the] situation.” Id. Finally, he can demonstrate the right was clearly established by

showing that the officer’s conduct “so obviously violates the constitution that prior

case law is unnecessary.” Id. Cases rarely arise under “[t]he second and third

methods . . . generally known as ‘obvious clarity’ cases.” Gaines v. Wardynski, 871

F.3d 1203, 1209 (11th Cir. 2017).

Plaintiff argues that Defendant Kubik’s actions were obviously

unconstitutional, relying on Landsman v. City of Vero Beach, 621 F. App’x 559

(11th Cir. 2015).6 The Court in Landsman found “[t]here is a broad statement of

principle ensconced in our case law that clearly establishes that the use of force

against an arrestee who, inter alia, is not a threat, has not exhibited aggressive

behavior, and has not actively resisted arrest is excessive.” Id. at 563. However,

while Plaintiff was not resisting when the seizure happened, a reasonable officer

could interpret his behavior as threatening. Deputies arrived after Plaintiff threatened

to kill himself, had already cut his wrist, and ran into a cotton field because law

enforcement would not leave. (Doc. 26 at 2, 3). Accordingly, this broad principle

does not apply in this case.

6 The Court notes that the case cited by Plaintiff is persuasive, not binding, authority. See Ray v.

McCullough Payne & Haan, LLC, 838 F.3d 1107, 1109 (11th Cir. 2016).

Plaintiff also presents many cases he claims are materially similar in which

officers were not granted qualified immunity. (Doc. 41 at 14–16). However, while

these cited cases7 establish the general proposition that applying more than de

minimis force is excessive when a suspect is not resisting or poses minimal threat to

law enforcement, they are not materially similar to this case. Construing the facts in

the most favorable light to Plaintiff here, Plaintiff eventually cooperated with the

deputies, but previously threatened suicide, cut his wrist, and ran into a cotton field

after deputies arrived. (Doc. 26 at 2–3). While Plaintiff was no longer suicidal and

eventually cooperative, a reasonable officer in Defendant Kubik’s position could

find his behavior was unpredictable, and he posed a threat to the deputies and

himself. This situation is “fairly distinguishable” and factually distinct from the

cases Plaintiff presented. Terrell, 668 F.3d at 1256. Plaintiff has not adequately

demonstrated his constitutional right was clearly established during the encounter,

so Defendant Kubik was not “on notice that his conduct [was] clearly unlawful.” Id.

7 The cases Plaintiff cited in support of his position are: Scott v. City of Red Bay, Ala., 686 F.

App’x 631 (11th Cir. 2017); Stephens v. DeGiovanni, 852 F.3d 1298 (11th Cir. 2017); West v.

Davis, 767 F.3d 1063 (11th Cir. 2014); Saunders v. Duke, 766 F.3d 1262 (11th Cir. 2014); Fils v.

City of Aventura, 647 F.3d 1272 (11th Cir. 2011); Payton v. City of Florence, Ala., 413 F. App’x

126 (11th Cir. 2011); Brown v. City of Huntsville, Ala., 608 F.3d 724 (11th Cir. 2010); Oliver v.

Fiorino, 586 F.3d 898 (11th Cir. 2009); Galvez v. Bruce, 552 F.3d 1238 (11th Cir. 2008); Reese

v. Herbert, 527 F.3d 1253 (11th Cir. 2008); Walker v. City of Riviera Beach, 212 F. App’x 835

(11th Cir. 2006); Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002); Lee v. Ferraro, 284 F.3d

1188 (11th Cir. 2002); Priester v. City of Riviera Beach, Fla., 208 F.3d 919 (11th Cir. 2000);

Slicker v. Jackson, 215 F.3d 1225 (11th Cir. 2000); and Smith v. Mattox, 127 F.3d 1416 (11th Cir.

1997). Three of these cases, Scott, Payton, and Walker are unpublished. Therefore, they are not

binding on this Court.

at 1255. As Plaintiff has not shown that his constitutional right was clearly

established at the time of the seizure, there is no need to decide if his constitutional

right was violated. Accordingly, Defendant Kubik is entitled to qualified immunity

on this claim. Defendant Kubik’s Motion to Dismiss the Amended Complaint (Doc.

34) is therefore due to be GRANTED.

IV. CONCLUSION

For the reasons stated above, Defendants Dorning’s, Turner’s, and Kubik’s

Motions to Dismiss the Amended complaint (Docs. 30, 32 & 34) are due to be

granted. An Order consistent with this Memorandum Opinion will be entered.

DONE and ORDERED this March 12, 2020.

SZ C Sha

LILES C. BURKE

UNITED STATES DISTRICT JUDGE

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