Kevin BUCKLER, Veronica Ekanem, Plaintiffs-Appellants, v. Scott ISRAEL, in his official capacity as Sheriff of Broward County, et al., Defendants-Appellees.
No. 16-11115
United States Court of Appeals, Eleventh Circuit.
February 23, 2017
Non-Argument Calendar
680 F. App‘x 831
Here, the threats Mr. Duenas Burgos received were to his entire family, yet other family members have remained in El Salvador without harm, and the threats have since ceased. Moreover, as discussed, Mr. Duenas Burgos has not established that his membership in a social group will be at least one central reason for persecution—much less that he will be persecuted because of such membership. See
III
Because substantial evidence supports the finding that Mr. Duenas Burgos failed to show a well-founded fear of future persecution, it necessarily supports the finding that he failed to meet the higher “more likely than not” standard for withholding of removal. See Sepulveda, 401 F.3d at 1232-33 (“If an applicant is unable to meet the well-founded fear standard for asylum, [he] is generally precluded from qualifying for ... withholding of deportation[,]” which requires an applicant to demonstrate that it is “more likely than not” he will be persecuted upon return) (internal quotation marks and citation omitted).
IV
For the reasons stated above, we deny Mr. Duenas Burgos’ petition.
PETITION DENIED.
Richard T. Woulfe, Billing Cochran Lyles Mauro & Ramsey, PA, Fort Lauderdale, FL, Louis Reinstein, Bunnell & Woulfe, PA, Fort Lauderdale, FL, Gregg Alan Toomey, The Toomey Law Firm, LLC, Fort Myers, FL, for Defendants-Appellees
Before HULL, MARCUS, and JORDAN, Circuit Judges.
PER CURIAM:
Kevin Buckler and Veronica Ekanem appeal the district court‘s grant of summary judgment in favor of Scott Israel, in his official capacity as Sheriff of Broward County, as to their state law tort claim (Count VI) and civil rights claim under
I
Because we write for the parties, we assume their familiarity with the underlying record and recite only what is necessary to resolve this appeal.
Mr. Buckler‘s claims arise out of an incident that occurred in March of 2010. According to Mr. Buckler, Deputy Gerald Wengert allegedly pulled him from his car during a traffic stop, brought him to the ground, and repeatedly punched him in the face. Mr. Buckler claims that Deputy Curtis Roberts also repeatedly punched and kneed him, and falsely claimed that he was resisting arrest. Mr. Buckler further alleges that Deputy Geoff Brown contributed false information to a prosecution brought against him for violently resisting arrest and battery against Deputy Wengert, charges on which Mr. Buckler was acquit-
Ms. Ekanem‘s claims arise from an incident that occurred in April of 2011. Ms. Ekanem alleges that Deputies Nicholas DeGiovanni and Steve Santiago handcuffed her and brought her to the ground. She alleges that Deputy Papens Lamisere pressed her face into the pavement with a knee on the back of her neck or head, causing a closed head injury and multiple cuts and abrasions on her face. Ms. Ekanem filed state law tort claims for assault and battery and
The appellants also jointly filed against Sheriff Israel a state law claim for negligent hiring, supervision, and retention of the named deputies and a claim under
The appellants further rely on the opinions from their expert, Kenneth Harms. He concluded that the BSO “has a long history that has developed into a systemic custom of known deficient practices in the selection, supervision, and discipline of its officers contrary to its own policies.” D.E. 111-16 at 16.
In response to the two joint claims, Sheriff Israel cites to the BSO‘s multiple accreditations from the Commission on Accreditation for Law Enforcement Agencies (“CALEA“). He also points to the BSO‘s written policies and procedures regarding use of force reports and investigations.
The district court granted summary judgment in favor of Sheriff Israel as to the joint state law tort claim (Count VI) and the joint
II
We review a district court‘s grant of summary judgment de novo, applying the same legal standard used by the district court and drawing all factual inferences in the light most favorable to the nonmoving party. See Johnson v. Bd. of Regents, 263 F.3d 1234, 1242-43 (11th Cir. 2001). Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the nonmoving party is entitled to
III
The appellants argue that the district court erred in granting summary judgment in favor of Sheriff Israel on their joint state law tort claim for negligent hiring, supervision, and retention. We, however, agree with the district court that this claim fails as a matter of law.
Under Florida law, a claim for negligent hiring, retention, or supervision requires that an employee‘s wrongful conduct be committed outside the scope of employment. See Mallory v. O‘Neil, 69 So. 2d 313, 315 (Fla. 1954). See also Delaurentos v. Peguero, 47 So. 3d 879, 882 (Fla. 3d DCA 2010) (“Where, as here, a plaintiff alleges and a defendant admits that the alleged torts took place during the course and scope of employment, employer liability can only be pursued on the basis of respondeat superior and not on the basis that the employer was negligent.“). The appellants themselves pled that the deputies acted within the scope of their employment with Sheriff Israel and the BSO. See Second Am. Compl. ¶ 142. Accordingly, we affirm the district court‘s grant of summary judgment as to Count VI against Sheriff Israel.
IV
The appellants also argue that the district court erred in granting summary judgment in favor of Sheriff Israel as to their joint
“A
A municipality‘s “policy of inaction” in light of actual or constructive notice “that its program will cause constitutional violations is the functional equivalent of a decision by the [county] itself to violate the Constitution.” Id. 61-62. “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Id. See also McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (“[D]eliberate indifference has three components: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence.“). “A pattern of similar constitutional violations” is therefore “ordinarily necessary to demonstrate deliberate indifference.” Connick, 563 U.S. at 62.
To the extent that the appellants argue that the BSO failed to punish or correct deputies for their improper and excessive uses of force, we note 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). The appellants have not cited to any instances in which there was a finding of excessive force or other misconduct and the BSO failed to take corrective action. To the contrary, Sheriff Israel submitted evidence of disciplinary action taken when charges of misconduct or violations of the law or BSO policies were sustained. See D.E. 124-1. Accordingly, the appellants have not provided sufficient evidence such that a reasonable jury could find that the BSO exhibited a widespread custom or practice of failing to punish deputies for the use of excessive force or other similar misconduct.
In support of their contention that the BSO exhibited a widespread custom or practice of failing to document or investigate potential misconduct, the appellants cite to a number of incidents involving the use of force by the named deputies. They argue that these incidences demonstrate that the deputies’ use of force was never questioned by supervisors or command staff. In total, the appellants filed four volumes of use of force reports, as well as a matrix summarizing these incidents. See D.E. 105-108, 107-9.
We first note that the sheer number of use of force incidents, without more, does not establish a widespread custom of acquiescence to the use of excessive force. See Graham, 490 U.S. at 396. Cf. Brooks v. Scheib, 813 F.2d 1191, 1193 (11th Cir. 1987) (“[T]he number of complaints bears no relation to their validity.“). It appears that the appellants rely upon the report of their expert, Mr. Harms, as the lynchpin between these incidents and their claim. In his report, Mr. Harms ultimately concludes that the BSO has a systemic custom of deficient practices in selection, supervision, and discipline of its officers, and specifically states that the BSO‘s use of force reports and the internal investigations into this use of force were inadequate.
The report, however, cites only generally to over 100 use of force reports for the proposition that deputies “were frequently using extreme levels of force to effectuate arrests or to otherwise physically control. subjects/suspects,” D.E. 111-16 at 6, and that “appropriate review of officers[‘] use of force was, for the most part, non-existent,” id. at 8. A plaintiff cannot survive
The report also states that under best practices, use of force reports should contain photographs, and cites to various BSO employee deposition testimony stating conflicting beliefs regarding whether BSO policy requires photographs to be included in use of force reports. See D.E. 111-16 at 13-14. The report further states that use of force internal investigations were inadequate, again citing BSO employee depositions, in which high-ranking employees stated, under various iterations, that they did not know of or had reviewed any instances in which deputies used excessive force, and that their evaluations of use of force incidents often relied on the deputies’ narrative or report. See id. at 15-16. These general statements, however, are not sufficient for a reasonable jury to find a pattern or practice of inadequate investigation, particularly in light of the evidence presented by the BSO regarding its policies and procedures involving use of force incidents. Cf. Vineyard v. Cty. of Murray, Ga., 990 F.2d 1207, 1212 (11th Cir. 1993) (finding substantial evidence to support a jury‘s conclusion that the county had inadequate policies of supervision, discipline, and training sufficient to establish deliberate indifference to the use of excessive force based on evidence that a dispatcher had discretion about the initial handling of a complaint; the department did not log complaints; the accused officers were assigned to investigate complaints about them; and the sheriff had no policies and procedures manual).
Nor do the lawsuits cited by the appellants serve to put Sheriff Israel on notice of a pattern of constitutional violations. Of the eight suits provided by appellants, only two—the Hill and Goad decisions—resulted in a jury finding against the BSO and its deputies. Those suits that were settled or voluntarily dismissed do not, without admissions of liability, put the BSO on notice of any pattern of constitutional violations. Nor are two jury verdicts from the late-1980s sufficient to establish a genuine issue of fact as to whether Sheriff Israel or the BSO had notice of a custom or widespread practice of the use of excessive force, particularly when the appellants have not demonstrated that these cases involved substantially similar factual situations. See Mercado v. City of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005).3
V
For the foregoing reasons, the district court‘s grant of summary judgment in favor of Sheriff Israel as to Counts VI and VII of the second amended complaint is affirmed.
AFFIRMED.