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holding that where complaints are wholly unsubstantiated, they are of "little value for purposes of establishing previous constitutional violations" on which municipal liability may be imposed
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No. 99-6033-CIV.
9-20-2001
Alma M. OWENS, et al., Plaintiffs. v. CITY OF FORT LAUDERDALE, et al., Defendants.
Bradley Winston, Winston & Clark, Plantation, FL, for plaintiffs. Michael Ross Piper, Johnson Anselmo Murdoch Burke & George, Fort Lauderdale, FL, for Sheriff of Broward County, Kenn Jenne, Michael Sokolowski, Gregory Brown, defendants. Dieter Klaus Gunther, Alain E. Boileau, Adorno & Zeder, Fort Lauderdale, FL, for Thomas Mangifesta, Frank DelRio, defendant.
Alma Owens, as the survivor of Byron Owens, and together with his other survivors, sues the City of Fort Lauderdale, the North Broward Hospital District, Officer Thomas Mangifesta, and Officer Frank DelRio for violations of the Fourth and Fourteenth Amendments to the United States Constitution. See 42 U.S.C. § 1983. The plaintiffs allege that Officers Mangifesta and DelRio are liable for their role in Byron's death in their individual capacities and that the City of Fort Lauderdale and the North Broward Hospital District ("the Hospital") are liable based on failure to train and negligence amounting to deliberate indifference. Jurisdiction exists pursuant to 28 U.S.C. § 1331. By prior order, I granted the officers' motion for summary judgement on qualified immunity grounds [D.E. 350] (May 8, 2001).
The Hospital moves for summary judgment, arguing that the force used to restrain Byron was not excessive and that, in any event, it did not have policies or customs which worked a deprivation of Byron's constitutional rights. For the reasons explained below, the Hospital's motion for summary judgment [D.E. 135] is GRANTED.
I. RELEVANT STANDARD
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A material fact is one that might affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where the non-moving party fails to prove an essential element of its case for which it has the burden of proof at trial, summary judgment is warranted. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hilburn v. Murata Elecs. North, Am., Inc., 181 F.3d 1220, 1225 (11th Cir.1999). Thus, the task is to determine whether, considering the evidence in the light most favorable to the plaintiffs, the non-moving parties, there is evidence on which a jury could reasonably find a verdict in their favor. See Liberty Lobby, 477 U.S. at 251, 106 S.Ct. 2505; Hilburn, 181 F.3d at 1225; Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).
II. RELEVANT FACTS
On September 22, 1997, Ms. Owens, Byron's mother, received a call at her work from Byron, who explained that he was calling to say goodbye to her. See Deposition of Alma Owens at 18-19 [D.E. 123] (Oct. 1, 1999). Ms. Owens explained that she viewed Byron's call as a cry for help, and she returned home, where Byron also lived, to try to talk to him and to make sure he was fine. See id. at 19-20. When Ms. Owens arrived at the home, Byron was talking to his father, Johnnie Owens. See id. at 20. Byron was upset over a paycheck that he should have received, and his father, Mr. Owens, left the house to try to speak to Byron's employer and obtain the check. See id. at 21. After his father left, Byron remained upset, and was crying. See id. Byron grabbed a vacuum hose and headed out to the car in the garage when he slipped and fell. See id. at 22. At that point, Ms. Owens decided to call 911 to seek help because Byron was threatening to commit suicide. See id. at 22-23.
An ambulance, with an EMS squad, accompanied by Broward County Sheriff's Deputy Michael Sokolowski, responded to the call. Byron at first resisted his parents' and the officers' attempts to transport him to the hospital. See id. at 23-24. At some point, Ms. Owens told the officers and EMS workers to forget about the call, that she was sorry she had bothered them. See id. at 25. Ms. Owens was informed, however, that once emergency workers were present, they had a duty to ensure Byron's safety. Given Byron's behavior, they could not simply leave and were obligated to take him to the hospital. See id. Ms. Owens and her husband eventually persuaded Byron to go to Broward General Medical Center in the ambulance for a psychiatric evaluation. See id. at 25-26. The officers dispute Byron's voluntariness, and contend that his transport was the result of the commencement of an involuntary commitment proceeding under Florida's Baker Act, FLA.STAT. § 394.463.
Once they arrived at the hospital, Byron calmed down, and fell asleep. See id. at 26. While he was sleeping, Byron's father left the hospital. See id. at 27. After his father left, Byron awoke, and a nurse came in to obtain a urine sample from him. See id. Byron refused to provide a urine sample, rose from the gurney where he had been lying, and attempted to leave the hospital. See id. at 28. Ms. Owens attempted to prevent Byron from leaving by holding onto his waist, but his physical size — 6'2" in height and approximately 300 pounds — prevented her from doing so. See id. Byron said he wanted to go to be with his deceased grandmother. See id. at 29.
While Byron was attempting to leave, two off-duty City of Fort Lauderdale police officers, Frank DelRio and Thomas Mangifesta, acting as security detail for the Hospital, were notified that they were needed. See Deposition of Frank DelRio at 40 [D.E. 124] (Dec. 10, 1999); Deposition of Thomas Mangifesta at 26 [D.E. 125] (Dec. 10, 1999). When the officers responded, they were informed that they had been called because a "Baker Act," i.e., Byron, was trying to leave and needed to be restrained. See DelRio Deposition at 44; Mangifesta Deposition at 28. Officer Mangifesta, the first of the two at the scene, testified that when he was told that a Baker Act needed to be restrained, he asked whether the papers had been signed, referring to a physician's signature, and was told that they had. See Mangifesta Deposition at 28. Officer DelRio testified that he asked whether they were sure Byron had been Baker Acted, and was assured that he had, and needed to be restrained. See DelRio Deposition at 45.
Neither officer could remember exactly who was at the scene. Both remembered the presence of the Hospital's patient care assistant, Wilson Quintero, as well as Broward County Sheriff's deputies Michael Sokolowski and Gregory Brown, and several other Hospital employees. See DelRio Deposition at 48-49: Mangifesta Deposition at 29, 36-37. Ms. Owens was still attempting to persuade Byron to stay and see a doctor when one of the deputies entered the room. See id. at 30. The deputy attempted to speak with Byron, but Byron told him to "save it." Id. at 31. After this exchange, more deputies arrived on the scene, and Ms. Owens released Byron (she had been holding onto his waist, trying to physically restrain him) and went to the waiting room to tell her sister that Byron was trying to leave. See id. at 33. By the time Ms. Owens returned to the room with her sister, Byron was on the floor. See id. Ms. Owens testified that she could not even see Byron because he was underneath the deputies, but assumed that he was struggling with the officers because she heard one of the officers say "Give it up, big man." Id. at 34.
Ms. Owens testified that during the ensuing struggle, approximately seven officers or Hospital employees were attempting to restrain Byron. See Owens Deposition at 34.
Initially, the officers attempted to calm Byron by speaking with him, but Byron was clenching his fists, rocking back and forth, and making statements, such as "You do what you have to do," and "Come on, you want some of this?" See DelRio Deposition at 50; Mangifesta Deposition at 32. Officer Mangifesta testified that he was concerned that Byron was going to injure himself or others if he attempted to evade the officers. See Mangifesta Deposition at 32. After several minutes of the officers trying to verbally calm Byron down, or negotiate with him, Byron attempted to leave by running directly through the officers, and Officer DelRio sprayed him with pepper spray. See DelRio Deposition at 50; Mangifesta Deposition at 32-33. The pepper spray did not hit Byron, but distracted him sufficiently for the officers to attempt to restrain him. See DelRio Deposition at 51-52; Mangifesta Deposition at 33. The officers wrestled Byron to the ground and attempted to handcuff him. See DelRio Deposition at 53; Mangifesta Deposition at 36. At no time before he was wrestled to the ground did Byron attempt to hit or kick the officers. See DelRio Deposition at 53; Mangifesta Deposition at 34.
Once he was on the ground, the officers testified that Byron continued to resist them; he was kicking and thrashing, and he started trying to bite anyone who came close to his mouth. See DelRio Deposition at 56-57; Mangifesta Deposition at 45-46. Officer DelRio, who was holding Byron's shoulders, ended up on top of him. See DelRio Deposition at 54-55. Officer Mangifesta was at Byron's head. See Mangifesta Deposition at 36. Byron was face down in a corner, holding his hands underneath his chest. See DelRio Deposition at 55; Mangifesta Deposition at 36-37. Officer Mangifesta was attempting to pull Byron's hands out from under him so that he could be handcuffed. See DelRio Deposition at 56; Mangifesta Deposition at 39, 45. Officer DelRio, laying on top of Byron, was holding his head back by placing one arm underneath his chin and using the other arm to hold his forehead back. See DelRio Deposition at 57. Officer DelRio's hands were "up around [Byron's] chin ... around the chin and all, and [he] had [Byron's] head" in an attempt to prevent Byron from biting either of the officers. Id. at 56. Officer DelRio switched the position of his arms back and forth because Byron continued to try to bite him. See id. at 58. Officer DelRio described the incident as follows:
I would change my hold back and forth. What I was doing is was [sic] keeping his neck up and his head because that's the — like this, I was trying to keep his head up and then switch because he would try to — [] once he felt this hand underneath him, he tried to go for it, so I'd have to switch over real quick and go back. So my hands were back and forth all the time. At one time I even grabbed his forehead and had his head up, trying to do it, but that started to slip also.
Id. at 58. Officer DelRio conservatively estimated that this struggle continued for ten to fifteen minutes. See id. Officer DelRio did not testify as to exactly how long he may have held Byron's head back or how long he may have held Byron's neck, other than the testimony excerpted above. Nor did anyone else.
Officer Mangifesta described Officer DelRio as holding Byron's head by "bringing his arm around so that the inside portion of his elbow [was] right in the area of Mr. Owens' chin." Mangifesta Deposition at 46. Officer Mangifesta did not characterize Officer DelRio's restraint of Byron as a chokehold. See id. at 40. While Officer DelRio was attempting to control Byron's head, Officer Mangifesta was kneeling over Byron's head, attempting to pull at least one of his arms out from underneath him. See id. at 46. Officer Mangifesta believed the struggle lasted approximately ten minutes, but offered no specific testimony as to how long any one of Officer DelRio's head restraints lasted. See id. at 48.
During the struggle, a nurse injected Byron with medication to sedate him. See DelRio Deposition at 61; Mangifesta Deposition at 48. Once Byron had been somewhat subdued, which both officers attributed to the sedatives, the officers were able to handcuff him, and he remained restrained, face down on the floor, until he was moved to the gurney. See DelRio Deposition at 65; Mangifesta Deposition at 50. Once Byron was placed on the gurney, the handcuffs were exchanged for leather hospital restraints, which were placed on his wrists and ankles. See DelRio Deposition at 61; Mangifesta Deposition at 51.
While Byron was on the gurney, Officer Mangifesta could hear him breathing heavily, and "huffing and puffing." Mangifesta Deposition at 51. Officer DelRio also testified that when he was first placed on the gurney, Byron was breathing heavily. See DelRio Deposition at 71-72. Officer Mangifesta testified that approximately three to four minutes after Byron was placed on the gurney, several paramedics entered the room and noticed that Byron's breathing was labored. See Mangifesta Deposition at 52-53. Officer DelRio estimated that the time period between Byron finally being restrained and the paramedics noticing his labored breathing was closer to five or ten minutes. See DelRio Deposition at 72. Ms. Owens testified that when the officers placed Byron on the gurney, he appeared to be breathing, but he was staring straight ahead, and seemed not to recognize her. See Owens Deposition at 36. Ultimately, Byron suffered a cardiac arrest. See id. at 38. He was resuscitated, but never fully regained consciousness, and he died almost two years later, on August 1, 1999.
Ms. Owens testified that the day after the incident, September 23, 1997, while she was at the hospital, her cousin, Rosella Dent, came to visit her and Byron in the intensive care unit. See Owens Deposition at 40-41. Ms. Dent worked in the emergency room, although she was not on duty at the time of the incident. See id. at 41. Ms. Dent told Ms. Owens that she had heard about the incident, but had not been told that the patient was Byron. Ms. Owens testified that Ms. Dent told her that she had overheard someone named Frank — presumably Officer DelRio — boasting that he had restrained the patient by putting him in a choke hold. See id. at 42, 81-83. Ms. Dent later denied making such a statement to Ms. Owens, and expressed her anger that Ms. Owens had involved her in the lawsuit. See id. at 82-83. Officer DelRio denied ever making such a statement to Ms. Dent. See DelRio Deposition at 77. Officer DelRio admitted, however, that he discussed the incident with Ms. Dent, who had identified herself to him as a friend of the family. See id. at 78.
The Hospital and the Fort Lauderdale Police Department have an arrangement regarding off-duty FLPD officers working for the hospital. The Hospital employs off-duty police officers in order to maintain a constant police presence in the emergency room. The officers are employed in their capacity as police officers, rather than private security officers, and they wear their FLPD uniforms, including gun and badge, while on duty. See Deposition of Dennis Kalam at 21 [D.E. 134, Exh. D] (Jan. 24, 2000). The function of the police officers, in the Hospital's view, is to maintain the peace, deter unlawful activity, and deal with criminal activity when it occurs. See id. at 8, 17, 21. The reason that the Hospital employs FLPD officers, rather than private security officers, is that the FLPD officers retain the ability to act as police officers at all times. See id. at 17.
The officers who work at the Hospital do so under the supervision of FLPD Sergeant Jim Polan. See id. at 14-16; Deposition of Jim Polan at 19 [D.E. 131] (Sept. 21, 1999). According to Sergeant Polan, the FLPD officers who work at the Hospital are always acting in their capacity as FLPD officers, and they remain subject to all policies and procedures of the FLPD. See Polan Deposition at 9. Sergeant Polan further explained his belief that the officers continued to act "under color of state law" while working at the Hospital. Id. In fact, both Officer DelRio and Officer Mangifesta were wearing their FLPD uniforms on September 22, 1997. See DelRio Deposition at 40; Mangifesta Deposition at 15. The Hospital does not dispute, for purposes of summary judgment, that Officers DelRio and Mangifesta were acting as employees of the Hospital.
The Hospital does not conduct any training for the police officers, such as Officers DelRio and Mangifesta, who act as security detail for the Hospital. See Kalam Deposition at 22. Because the Hospital hires the officers to act as police officers, the Hospital relies on the training the officers have received from the respective police departments and police academies. See id. at 22-23. Officer Mangifesta testified that he never received training in nonviolent patient restraint from either the City of Ft. Lauderdale or the Hospital. See Mangifesta Deposition at 14. Sergeant Polan, Officer DelRio, and Officer Mangifesta each testified that they did not receive any training in the use of choke holds or lateral vascular neck restraints by either the City or the Hospital. See Polan Deposition at 22; DelRio Deposition at 18-19; Mangifesta Deposition at 14.
In May of 1995, Lazaro Perera lodged an excessive violence complaint against Officer DelRio. See Internal Affairs Complaint Report Form [D.E. 154, Exh. G] (June 27, 1995). Mr. Perera was a patient at the Hospital and Officer DelRio was working the security detail. See id. at 2. The Hospital had discharged Mr. Perera, who was having difficulty locating a ride, and according to witnesses at the scene, he was becoming increasingly agitated. See id. at 2-3. Mr. Perera alleged that Officer DelRio approached him from behind and choked him for three to four minutes, forcing him to plead for his life. See id. at 1. Officer DelRio contended that Mr. Perera's version of events was fabricated, and that while he and the other officers were forced to arrest Mr. Perera, he did not resist arrest and no force of any kind was used. See id. After Mr. Perera filed his complaint, the internal affairs division of the Fort Lauderdale Police Department investigated. It concluded that Mr. Perera had fabricated his complaint. See id. at 10.
On April 25, 1998, Josephine Muro was at the Hospital due to her mother's hip injury, and was in the emergency room waiting area with her father. See Affidavit of Josephine Muro ¶ 2 [D.E. 170] (June 26, 2000). Ms. Muro's father — who is 76 years old — became upset with the nurses about the amount of time they had spent waiting to see a physician. See id. ¶¶ 3-4. While Ms. Muro's father was with her mother in an examining room, a Fort Lauderdale police officer told him that he would have to wait outside. See id. ¶ 5. According to Ms. Muro, when her father refused to leave, the officer placed him in a choke hold. See id. The only record of this incident is Ms. Muro's affidavit, and there is no evidence that she or her father complained either to the Hospital or to the Fort Lauderdale Police Department.
III. EXCESSIVE FORCE
The plaintiffs argue that Officers DelRio and Mangifesta used excessive force to restrain Byron during the scuffle at the hospital. The Hospital argues that it is entitled to summary judgment because the force used to restrain Byron was, as a matter of law, not excessive. Although § 1983 does not contain an independent state of mind requirement, the Supreme Court has made it clear that a municipality must act "deliberately" in order for liability to be imposed. See Board of County Comm'rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ("[A] plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights."). Thus, the threshold inquiry is whether Byron suffered a violation of his constitutional rights. To be entitled to summary judgment, the Hospital must show that the plaintiffs failed to produce evidence such that a reasonable jury could find that the amount of force used to restrain Byron was excessive and therefore in violation of Byron's Fourth Amendment rights. See Priester v. City of Riviera Beach, 208 F.3d 919, 924 (11th Cir.2000).
Excessive force claims resulting from arrests or other stops by the police are "most properly characterized as arising out of the Fourth Amendment." Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Such claims are measured under a "reasonableness" standard, which requires a careful balancing of "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. at 395-96, 109 S.Ct. 1865 (citations omitted). Application of the reasonableness standard "requires careful attention to the facts and circumstances of each particular case." Id. at 396, 109 S.Ct. 1865 (citing Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). The relevant inquiry in such a case is whether the officer's conduct was objectively reasonable under all the circumstances, regardless of any intent on the officer's part. See id. at 397, 109 S.Ct. 1865 (citing Scott v. United States, 436 U.S. 128, 137-39, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)). See also Jackson v. Sauls, 206 F.3d 1156, 1169-70 (11th Cir.2000) (discussing the excessive force standards pronounced by the Supreme Court in Graham). Whether an officer's use of force in a given case was excessive cannot be determined by a bright-line rule, and "[t]he hazy border between permissible and forbidden force is marked by a multi-factored, case-by-case balancing test ... [which] requires weighing of all the circumstances." Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir.1997). The factors courts should weigh include the severity of the detainee's offense, whether the detainee poses an immediate risk to himself or to others, and whether the detainee is actively resisting his restraint. See Graham, 490 U.S. at 396, 109 S.Ct. 1865 (citing Garner, 471 U.S. at 8-9, 105 S.Ct. 1694 (examining the totality of the circumstances)). Courts may also consider factors such as the severity of the injury inflicted, the number of persons the police have to deal with at one time, the duration of the action, and the dangerousness of the person subject to the police action in making this objective assessment. See Crosby v. Paulk, 187 F.3d 1339, 1351 (11th Cir. 1999) (citing Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.1997)).
The reasonable force analysis does not change because of the existence or status of any involuntary commitment proceedings. See Doby v. DeCrescenzo, 171 F.3d 858, 871 (3d Cir.1999) (analyzing the plaintiff's claims of excessive force during an involuntary commitment proceeding under the Fourth Amendment); Dowdell v. Chapman, 930 F.Supp. 533, 543 (M.D.Ala. 1996) (same) (citing Glass v. Mayas, 984 F.2d 55, 58 (2d Cir.1993); Maag v. Wessler, 960 F.2d 773, 775 (9th Cir.1991)). Cf. Wood v. City of Lakeland, 203 F.3d 1288, 1293 (11th Cir.2000) (finding that officer who shot plaintiff during attempted seizure for involuntary commitment acted reasonably under all the circumstances and was entitled to qualified immunity on interlocutory appeal). Thus, the same factors the Supreme Court enumerated in Graham will be weighed and analyzed in determining whether Officers DelRio and Mangifesta acted reasonably in their seizure of Byron.
Under Florida's Baker Act, the officers could have instituted involuntarily commitment proceedings against Byron if (1) they had reason to believe he was mentally ill and as a result had refused voluntary examination or was unable to determine for himself whether the examination was necessary, and (2) they believed that there was a "substantial likelihood that without care or treatment" Byron would have suffered from neglect which posed a "real and present threat of substantial harm" to Byron's well-being, or that Byron would have caused "serious bodily harm to himself [] or others in the near future, as evidenced by [his] recent behavior." FLA.STAT. § 394.463(1).
The Hospital argues that Byron posed a danger to himself and others. The Hospital contends that because the force used was only to restrain and subdue him, it was not excessive. The plaintiffs contend that Byron was in fact not being involuntarily committed under the Baker Act. As a result, no justification for using force existed, and therefore any force used was excessive. The plaintiffs also note that, even assuming Byron was in custody as a Baker Act detainee, the force used to restrain him was excessive under the circumstances. The Hospital replies that Byron's behavior during the incident necessitated the use of force, which was reasonable under the circumstances.
The Hospital's argument that because the officers were justified in using some force, the force used was not excessive, fails as a matter of law. See, e.g., Graham, 490 U.S. at 393-94, 109 S.Ct. 1865. The plaintiffs contend that Officer DelRio's restraint of Byron by holding his head back, placing one arm around Byron's head, and the other around his neck, with the inside of the elbow under Byron's chin, was a choke hold. They further argue that this hold, which by the officers' own admissions may have lasted as long as ten or fifteen minutes, was unreasonable.
The Hospital also contends that the officers' restraint of Byron's head was necessary because Byron was attempting to bite the officers. The plaintiffs have not contradicted the officers' testimony that the hold was the result of Byron's attempts at biting Officer Mangifesta, but they do contend that the hold was more in the nature of a choke hold than a restraint. Even without Ms. Owens' testimony regarding Ms. Dent's statement that she had overheard "Frank" boasting about a choke hold, which I do not consider because it presents a double hearsay problem, I find that a material issue of fact exists as to whether Officer DelRio actually placed Byron in a choke hold or merely attempted to restrain his head, given the description of the incident by the officers themselves.
The plaintiffs assert that Officer DelRio's application of a choke hold on Byron was deadly force, which was unreasonable under the circumstances. The Eleventh Circuit has not held, however, that a choke hold is, as a matter of law, deadly force. See Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559-60 (11th Cir.1993) (holding that the application of a choke hold, although unnecessary, was not, as a matter of law, unreasonable under the circumstances, and finding qualified immunity). But cf. Gahn v. Fujino, Nos. 93-35525, 93-35535, 1994 WL 587527, at *3 (9th Cir. Oct.21, 1994) ("A choke hold can cause serious bodily injury or even death.") (citing Maddox v. City of Los Angeles, 792 F.2d 1408, 1411 (9th Cir. 1986)). The Fort Lauderdale Police Department does not have a written policy regarding the use of choke holds. See Polan Deposition at 22. See also Scott v. Henrich, 39 F.3d 912, 915-16 (9th Cir. 1994) (explaining that internal police policies may be useful in determining the amount of force that is objectively reasonable, and using as an example a police policy against choke holds).
I must weigh and balance the factors the Supreme Court highlighted in Graham, 490 U.S. at 396, 109 S.Ct. 1865, and consider the totality of the circumstances to determine whether the officers used excessive force in restraining Byron. Even assuming that a reasonable officer would have believed that Byron was subject to involuntary commitment under the Baker Act, he had committed no offense or crime. The officers could have reasonably believed, however, based on Byron's behavior. that he posed a threat to himself or to others. Additionally, whether involuntary commitment proceedings had begun or not, it is undisputed that Byron was at the hospital as a result of his suicidal and depressed demeanor. According to the testimony of those present, Byron tried to run through the deputies, actively resisted the officers' attempts to restrain him, and attempted to bite the officers. Thus, the police could have reasonably believed that some amount of force was necessary to keep Byron in the hospital and prevent him from harming himself or others.
Viewing the totality of the circumstances, and taking the facts in the light most favorable to the plaintiffs, I find that material issues of fact exist as to whether the force used by the officers was excessive, and thus summary judgment is inappropriate on this issue. For instance, a material issue of fact exists as to whether Officer DelRio actually used a choke hold on Byron or merely held his head back with a restraining maneuver. While this force may have been reasonable had Byron been in custody as the result of a lawful arrest, given that he was merely a mentally disturbed patient, who may or may not have been subject to the Baker Act, the officers may not have been acting reasonably. Furthermore, the record is unclear as to how long Officer DelRio applied the restraint to Byron, and it is fair to infer at this stage that the restraint was applied for more than just a couple of minutes. Accordingly, for summary judgment purposes, there is enough evidence to permit a trier of fact to conclude that Byron suffered a violation of his Fourth Amendment rights by being subjected to unreasonable force.
IV. MUNICIPAL LIABILITY
To impose liability on the Hospital for failing to act to preserve a constitutional right under § 1983, the plaintiffs must establish (1) that Byron's constitutional rights were violated; (2) that the Hospital had a policy or custom that constituted a deliberate indifference to Byron's constitutional rights; and (3) that the violation was caused by the policy or custom. See City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
It is well settled, and undisputed here, that municipalities and their agencies can be sued directly under § 1983. See Monell v. Department of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, municipalities bear liability only if the unconstitutional action implements an official municipal policy or is pursuant to a governmental custom. See id. Municipalities are not subject to liability on respondeat superior theory, as only direct liability may be imposed. See id. at 691, 98 S.Ct. 2018.
The plaintiffs allege that the Hospital's failure to train the officers resulted in the violation of Byron's constitutional rights. Inadequacy of training may serve as the basis of liability under § 1983 only where the "failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." See City of Canton, 489 U.S. at 388, 109 S.Ct. 1197. "Only where a municipality's failure to train its employees in a relevant respect evidences a `deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city `policy or custom' that is actionable under § 1983." Id. at 389, 109 S.Ct. 1197. See also Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489-90 (11 th Cir.1997) (discussing the standards in a failure to train claim brought under § 1983). Deliberate indifference can be shown by "continued adherence to an approach that [policymakers] know or should know has failed to prevent tortious conduct" or by "the existence of a pattern of tortious conduct by inadequately trained employees." Brown, 520 U.S. at 407-08, 117 S.Ct. 1382. Cf. Farmer v. Brennan, 511 U.S. 825, 839-40, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ("[S]ubjective recklessness as used in the criminal law is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments clause as interpreted in our cases, and we adopt it as the test for `deliberate indifference' under the Eighth Amendment.").
To impose municipal liability, the plaintiffs must show either that "the need for a particular type of training [is] obvious because [officials] face clear constitutional duties in recurrent situations," Young v. City of Augusta, 59 F.3d 1160, 1172 (11th Cir.1995) (citing City of Canton, 489 U.S. at 390 & n. 10, 109 S.Ct. 1197), or that "the need for more or better training [is] obvious [because] a pattern of constitutional violations exists such that the municipality knows or should know that corrective measures are needed." Id. (citing Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991)). Accord Brown, 520 U.S. at 409-410, 117 S.Ct. 1382. Under either theory, the plaintiffs must show that the Hospital knew or should have known of the need to train the officers in dealing with mentally ill patients and made a deliberate choice not to do so. See Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir.1998) (citing Brown, 520 U.S. at 407-09, 117 S.Ct. 1382). Additionally, the plaintiffs must show that the training program itself is deficient, and not simply that a particular officer was inadequately trained. See City of Canton, 489 U.S. at 390-91, 109 S.Ct. 1197 ("That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the [municipality], for the officer's shortcomings may have resulted from factors other than a faulty training program. .. Neither will it suffice to prove that an injury or accident could have been avoided if an officer had better or more training, sufficient to equip him to avoid the particular injury-causing conduct.").
The plaintiffs contend that the Hospital's failure to either prohibit the use of neck restraints by the off-duty police officers or to train the officers in the safe application of a neck restraint rises to the level of deliberate indifference. The Hospital responds that the plaintiffs have failed to demonstrate the existence of prior incidents sufficient to show that the Hospital was on notice of the need for additional training, thus the alleged failure to train cannot be said to have been deliberately indifferent.
In support of their contentions, the plaintiffs rely on the affidavit of Ken Katsaris. The Hospital has filed a separate motion to strike the Katsaris affidavit. Because the affidavit is so intertwined with the plaintiffs' response to the motion for summary judgment, I will address the motion to strike concurrently with the motion for summary judgment.
The Hospital argues that the Katsaris affidavit is fatally deficient because it is wholly conclusory. An affidavit containing conclusory assertions will not create an issue of fact sufficient to defeat a motion for summary judgment. See Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir.2000); Beard v. Annis, 730 F.2d 741, 743 (11th Cir.1984). See also Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, 224 (5th Cir. 1991) ("We have recognized that there is a level of conclusoriness below which an affidavit must not sink if it is to provide the basis for a genuine issue of material fact."). The Hospital is correct that the Katsaris affidavit contains many conclusory statements of fact as well as legal conclusions. See Affidavit of Ken Katsaris ¶¶ 4, 5, 13- 17, 19, 22-24 [D.E. 154, Exh. H] (June 5, 2000). For example, Mr. Katsaris' opinion that the Hospital was deliberately indifferent is of very little moment to me; that determination is precisely within the scope of my duties. See Gold, 151 F.3d at 1352 n. 10 ("[A]n expert's conclusory testimony does not control this Court's legal analysis of whether any need to train and/or supervise was obvious enough to trigger municipal liability without any evidence of prior incidents putting the municipality on notice of that need."); Tennant v. Florida, 111 F.Supp.2d 1326, 1334-35 n. 10 (S.D.Fla.2000) (same); Ideal World Marketing, Inc. v. Duracell, Inc., 15 F.Supp.2d 239, 244 n. 2 (E.D.N.Y.1998) (holding that a "proposed `expert' report, which offers a legal conclusion based upon the undisputed facts before the Court, impinges upon the Court's role, would be inadmissible at trial, and is of no probative value" on a motion for summary judgment). Similarly, Mr. Kastaris' conclusory testimony that "the amount and type of force used by Defendants in this case to restrain Byron Owens was objectively unreasonable and violated accepted police practice" is insufficient to overcome the Hospital's summary judgment motion. See Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir.1996) (holding that a similar statement by an expert was conclusory and noting that Farmer, 511 U.S. at 837-38, 114 S.Ct. 1970, requires "a great deal more of the plaintiff than a showing that the defendants violated generally accepted customs and practices").
PATTERN OF CONSTITUTIONAL VIOLATIONS: WIDESPREAD ABUSE
Even allowing for Mr. Katsaris' non-conclusory opinions, the plaintiffs have failed to show that the Hospital was deliberately indifferent to Byron by way of a failure to train Officers DelRio and Mangifesta. The plaintiffs have not shown a "`history of widespread prior abuse'" such that the Hospital was on notice of the need for training regarding choke holds on Baker Act patients or other mentally disturbed patients. See Gold, 151 F.3d at 1351 (quoting Wright v. Sheppard, 919 F.2d 665, 674 (11th Cir.1990)). The plaintiffs have simply failed to present evidence that rises to the level of a municipal policy under the law of this circuit. For example, in Gold, the plaintiff, proceeding on a false arrest claim for his disorderly conduct arrest, submitted evidence that between 1986 and 1991 there were 8201 disorderly conduct arrests, 601 of which were dismissed and 700 of which were nol prossed. See id. The Eleventh Circuit held that this evidence was insufficient to show that the City had a policy of effecting false arrests for disorderly conduct. See id. The Eleventh Circuit also noted that the plaintiff had failed to present any evidence of prior incidents of constitutional injuries similar to his. See id. Moreover, it cannot be said here that the need to train officers in the use of neck restraints when dealing with mental patients was so obvious as to require training. See id. at 1352 (noting that the only example of a need to train that is "so obvious" even without notice of prior constitutional violations is the use of deadly force when the police carry firearms) (citing Brown, 520 U.S. at 409-10, 117 S.Ct. 1382).
For example, Mr. Katsaris' assertions regarding his own training with the Lateral Vascular Neck Restraint and his belief that improperly trained or untrained persons should not apply neck restraints are based on personal experience and are not conclusory. See Katsaris Affidavit ¶¶ 10-11. Similarly, Mr. Katsaris' testimony that neither the City nor the Hospital provided any training as to neck restraints, and that off-duty detail officers at the Hospital did not receive training on neck restraints from any other source, are not conclusory. See id. ¶¶ 12, 18. Mr. Katsaris' affidavit is, however, rife with legal conclusions regarding whether certain actions were deliberately indifferent, and conclusions regarding causation, which, as noted above, I disregard. See id. ¶¶ 4-7, 13-17, 19, 22, 23, 24.
The plaintiffs allege only one previous incident involving an arguably similar situation, the incident between Officer DelRio and Mr. Perera. As an initial matter, it is the rare instance that only one previous incident will be sufficient to place a municipality on notice of "widespread abuse" constituting deliberate indifference. See Gold, 151 F.3d at 1351-53. See also Church v. City of Huntsville, 30 F.3d 1332, 1345-46 (11th Cir.1994) ("[T]he evidence did not establish that City employees had a pervasive practice of violating the plaintiffs' constitutional rights."); Sims v. Greenville County, No. 99-1732, 2000 WL 380122, at *3 (4th Cir. Apr.14, 2000) (finding that one prior incident, which was factually distinguishable, did not place the municipality on notice of an inadequacy of training). Still, had Mr. Perera's complaint been substantiated, and a concomitant determination been made that Officer DelRio violated Mr. Perera's constitutional rights, such an incident could have formed the basis of liability if the plaintiffs had also shown an unconstitutional policy which caused Byron's death. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (plurality opinion) ("Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. Otherwise the existence of the unconstitutional policy, and its origin, must be separately proved. But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the `policy' and the constitutional deprivation.") (footnotes omitted); Allen v. Muskogee, Okla., 119 F.3d 837, 842 (10th Cir.1997) ("[E]vidence of a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation, is sufficient to trigger municipal liability.") (emphasis added) (citations omitted); Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir.1991) (holding that a single decision may form the basis for liability "`under appropriate circumstances'") (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). Unfortunately for the plaintiffs, the complaint lodged by Mr. Perera was found to be fabricated, rendering it of little value for purposes of establishing notice or previous constitutional violations. See Brooks v. Scheib, 813 F.2d 1191, 1193 (11 th Cir.1987) (finding that 10 previous complaints, each of which were investigated and found to be meritless, was insufficient evidence that officials should have been aware of past misconduct).
The plaintiffs have provided Ms. Muro's affidavit as evidence of a second incident at the Hospital. The affidavit is insufficient, however, to establish a previous incident for the purposes of notice to the Hospital of an ongoing constitutional violation. While I do not, at least for summary judgment purposes, doubt the veracity of Ms. Muro's testimony, she does not claim that she informed the City or the Hospital of the incident. Without some complaint to the Hospital, the plaintiffs cannot demonstrate that the Hospital should have known of an ongoing pattern of constitutional violations based on this incident. Thus, I consider only the complaint lodged by Mr. Perera to demonstrate notice.
To the extent that the plaintiffs contend that the Hospital's failure to either prohibit the use of neck restraints by the off-duty police officers or to train the officers in the safe application of a neck restraint is unconstitutional in and of itself, and therefore actionable under Tuttle, this argument fails. See 471 U.S. at 823-24, 105 S.Ct. 2427 (holding that a single incident will be actionable only where "proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy"). The plaintiffs have simply not shown that the Hospital policy, or lack thereof, regarding the officers' training was unconstitutional. The policy of the Hospital — which employs the officers for the sole purpose of maintaining a police presence in the emergency room, see Kalam Deposition at 8, 17, 21 — appears to be to rely on the training the officers receive from their respective academies and police departments. The plaintiffs' sole support for the proposition that the Hospital's failure to provide additional training to police officers regarding neck restraint is per se unconstitutional is the Katsaris affidavit. Mr. Katsaris asserts that the failure of the Hospital to provide training on neck restraints exhibited a reckless disregard for Byron's rights and was therefore deliberately indifferent. See Katsaris Affidavit ¶¶ 16, 17, 19, 20-24. As noted above, however, this affidavit is an insufficient authority for the plaintiffs to base their constitutional argument. In short, the failure of the Hospital to provide specific training on neck restraints is not unconstitutional such that the single incident with Byron can be said to have been the result of a municipal policy.
Given that the plaintiffs have presented only one previous incident, and given that the incident was completely unsubstantiated, the plaintiffs have failed to present the kind of pattern or series of violations which would place the Hospital on notice that its training program was inadequate. See Dowdell v. Chapman, 930 F.Supp. 533, 545-46 (M.D.Ala.1996) (finding that municipal liability could not be predicated on a "single and isolated occurrence ... because such an unusual occurrence does not rise to the level of `deliberate indifference' necessary to succeed on a claim for failure to adequately train police officers") (citing Tuttle, 471 U.S. at 823-24, 105 S.Ct. 2427); Cf. Daskalea v. District of Columbia, 227 F.3d 433, 441 (D.C.Cir.2000) (holding that where evidence showed that a federal district court had previously found the defendant liable for same type of violations in present case, and the defendant failed to institute a training program following that decision, jury heard ample evidence on which to base a finding of deliberate indifference); Young, 59 F.3d at 1172-73 (holding that evidence that numerous inmates, in addition to the plaintiff, had complained about inadequate treatment for medical conditions, and that the alleged mistreatment lasted over the course of several months, was sufficient to permit a jury to infer that the City was deliberately indifferent, thus providing a basis for municipal liability).
B. CLEAR CONSTITUTIONAL DUTIES IN RECURRENT SITUATIONS: NO OBVIOUS NEED
Nor have the plaintiffs shown that this case fits into the narrows range of circumstances in which the need to train was so obvious that the failure to do so can be said to have been deliberately indifferent. See Brown, 520 U.S. at 409-410, 117 S.Ct. 1382; City of Canton, 489 U.S. at 390, 109 S.Ct. 1197. The only hypothetical example the Supreme Court has given of a need to train that is "so obvious" without prior constitutional violations is the use of deadly force when officers are provided with firearms. See Gold, 151 F.3d at 1352 (citing City of Canton, 489 U.S. at 390 n. 10, 109 S.Ct. 1197). The Eleventh Circuit found in Gold that the plaintiff's contentions that the City had failed to train officers regarding the disorderly conduct statute and responding to handcuff complaints fell "`far short of the kind of obvious need for training that would support a finding of deliberate indifference to constitutional rights on the part of the city.'" Id. (quoting City of Canton, 489 U.S. at 396-97, 109 S.Ct. 1197). Similarly, in Palmquist v. Selvik, 111 F.3d 1332, 1346-47 (7th Cir.1997), the Seventh Circuit held that a single incident, in which a mentally disturbed citizen was shot by police attempting to take him into custody, was insufficient to "make a lack of training so obvious, and any inadequacy therein so likely to result in the violation of constitutional rights," that the municipality could be said to have been deliberately indifferent. Such is the case here. The plaintiffs simply cannot show that the likelihood that officers will be forced to restrain mental patients using choke-holds, or lateral vascular neck restraints, is so obvious, and constitutional violations so likely to result, that the failure of the Hospital to train on the use of such holds or restraints was deliberately indifferent.
The plaintiffs further contend that the fact that the Hospital adopted restraint policies which it distributed to the nursing department is evidence that the Hospital knew of a need to train the officers regarding patient restraint. This argument is no more successful than the others the plaintiffs urge. The mere fact that the Hospital adopted restraint policies for its nursing staff to follow is not indicative of knowledge that the officers also needed such directives. First, the nursing staff is not trained by any other organization, such as a police department. Second, the nursing staff is not employed for the primary purpose of deterring and dealing with criminal activity or disruptive behavior. The plaintiffs' comparison between the policies for the nursing staff and the officers is simply not evidence that the Hospital knew the officers needed to be trained on neck restraints and turned a blind eye. In sum, on this record the need for training of off-duty Ft. Lauderdale Police Department officers on neck restraints is simply not obvious enough that the Hospital's failure to provide it can be said to have been deliberately indifferent as a constitutional matter.
V. CONCLUSION
In sum, I find that while a reasonable jury could find that Officers DelRio and Mangifesta may have acted with an unreasonable (and unconstitutional) amount of force, there is no basis on which to hold the Hospital liable under § 1983. Accordingly, the Hospital's motion for summary judgment [D.E. 135] is GRANTED.