Opinion
Civil Action No: SA-02-CA-106-XR
June 9, 2004
ORDER ON MOTION FOR SUMMARY JUDGMENT
On this date, the Court considered Defendants' Motion for Summary Judgment, Plaintiff's Response, and Defendants' Reply. After careful consideration, the Court will grant in part and deny in part Defendants' Motion (docket no. 18).
I. Facts and Procedural Background
Plaintiff Robert Mark Roach filed this suit on February 4, 2002, against Defendants for alleged violations of his civil rights under the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution that allegedly occurred during his arrest and subsequent detention at the Bandera County Jail. According to Plaintiff's First Amended Complaint, on February 18, 2000, Plaintiff suffered personal injuries to his head, left shoulder, and right wrist when Deputy Sheriff David McGilvray slammed his head into a jail cell door while Plaintiff was handcuffed and being escorted into the Jail for booking. Plaintiff further alleges that Defendant McGilvray hit him about his head and body while he was handcuffed and inside the Jail. Plaintiff asserts that McGilvray used an unreasonable amount of force to restrain Plaintiff, which resulted in Plaintiffs hospitalization for his injuries. Plaintiff was taken by ambulance to Sid Peterson Hospital for medical treatment. Plaintiff further states that he "makes no Eighth Amendment claim of cruel and unusual punishment claim [sic] against Defendant, David McGilvray."
The Court notes that the summary judgment evidence indicates that the arrest actually occurred during the early morning hours of February 19, 2000.
The Amended Complaint further alleges that, after his arrest and while he was detained in the Bandera County Jail, he was subject to being stripped down to his underwear and handcuffed to a metal bar covering a pit toilet, directly under an air conditioning vent, for "three days straight" at the direction of Defendants Delia Baker, the Jail Administrator, and Frank Zapata, a jailor. Plaintiff alleges that this conduct is a violation of his Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment.
The Court notes that Delia Baker appears to be incorrectly named, and that her actual name may be Delia Baker. However, because she is named in the Complaint as Delia Baker, the Court will refer to her as such.
Plaintiff states that he makes no claim of excessive force against Defendants Zapata and Baker. Plaintiff alleges that the Bandera County Sheriff's Department had policies and/or customs in place and enabled its agents and employees to act with deliberate indifference to individuals' constitutional rights. The Amended Complaint further alleges that Defendant James MacMillan, the duly elected Sheriff of Bandera County, "failed to adequately supervise his employees by allowing them to violate Plaintiff, Robert Mark Roach's constitutional rights and to violate 42 U.S.C. § 1983." Plaintiff further alleges that Defendant Bandera County, a political subdivision of the State of Texas, is responsible for the acts and omissions of its employees in the course and scope of their duties, and that, at all times, Defendants McGilvray, MacMillan, Zapata, and Baker were acting within the course and scope of their employment.
Defendants filed a motion for summary judgment on October 6, 2003, and Plaintiff filed his response on April 26, 2004. Defendants assert that they are entitled to summary judgment because "there is no evidence that Plaintiff has complied with the exhaustion of administrative remedies as required under the Prison Litigation Reform Act (PLRA) contained in 42 U.S.C. § 1997e." Defendants sued in their individual capacities assert that they are entitled to summary judgment on the basis of qualified immunity. In addition, Sheriff MacMillan asserts that he cannot be held vicariously liable for his subordinate's actions. Defendants "further assert their 11th Amendment Immunity any claims for damages which may have been brought against them in their official capacities."
II. Analysis A. Failure to Exhaust Available Administrative Remedies
Defendants assert that Plaintiff has failed to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e, which provides:
No action shall be brought with respect to prison conditions under Section 1983 of this title, or any other Federal Law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
"Prisoner" is defined to include "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for violations of criminal law or the terms and conditions of parole, probation, pre-trial release, or diversionary program." 42 U.S.C. § 1997e(h). Because Plaintiff was a person detained in a facility who was accused of the crime of terroristic threats, the Court concludes that section 1997e is applicable to any of his claims that concern prison conditions at the Bandera County Jail.
In 2002, the Supreme Court addressed the scope of the exhaustion requirement contained in the PLRA in Porter v. Nussle. In that case, a state prisoner brought suit under section 1983 for cruel and unusual punishment under the Eighth Amendment, as made applicable to the states under the Fourteenth Amendment. Although there was a grievance system available, the plaintiff did not use it, instead bringing suit in federal court almost three years after the incident. The Court examined the PLRA, noting that, although exhaustion had once been discretionary, it was now mandatory in all cases covered by section 1997e. Moreover, all "available" remedies must now be exhausted, although those remedies need not meet federal standards, nor must they be "plain, speedy, and effective." Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Finally, the Court held that the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Thus, Porter v. Nussle establishes that Plaintiff must exhaust available administrative remedies before pursuing his Eighth Amendment cruel and unusual punishment claims.
The PLRA became effective on April 26, 1996. Underwood v. Wilson, 151 F.3d 292, 293 (5th Cir. 1998).
Defendants argue that the business records from the Bandera County Sheriff's Department contain no documentation of any grievance filed by Plaintiff regarding civil rights violations and that the affidavits of Delia Baker and Frank Zapata, which state that they were not aware of any grievances filed by Plaintiff, establish that Plaintiff failed to exhaust the administrative remedies available to him. Plaintiff responds that Defendant Baker "testified that the Inmate Handbook does not list any grievance process." In contrast, Plaintiff responds, the facility involved in Porter v. Nussle provided a written grievance system for prisoners. Plaintiff further points out that Baker testified that she orally tells the inmates that the Sheriff would be the person of last resort in the grievance procedure because that is not included in the Inmate Handbook. Thus, Plaintiff contends, "[a]s there is no such grievance system provided for in the Inmate Handbook, there is no way for an inmate to know how to follow a grievance system for the inmate to comply with 42 U.S.C. § 1997e." In the alternative, Plaintiff contends that, assuming Bandera County did have a grievance system and that Sheriff MacMillan is the final authority, then it was complied with because Sheriff MacMillan states in his affidavit that he investigated the complaint and dismissed it. Defendants respond that Plaintiff has mischaracterized Baker's statement, and that the Jail did have a grievance procedure.
Defendants attached a document with Bates Number 322, and although they do not state what the document is or where it was obtained from, it appears to be either all or part of the Inmate Handbook. It states: "This facility does have a grievance procedure. If you wish to file a grievance, seal it in an envelope and address to `Grievance Officer.' Grievances concern criminal acts, prohibited acts by jailers, proscribed acts and civil rights violations." At the bottom, there is a notation "Rules Regs eff. 05-17-00." Defendants also produced a two-page document with Bates Numbers 323 and 324. It states "Chapter 16: Grievance Procedure" at the top. It provides: "Upon admission to general population, inmates will read, or have read to them, and sign the rules of the jail which include grievance procedures. All inmates will receive the inmate handbook, English or Spanish version, which will outline the inmate grievance process." Further, "[t]he Grievance Board shall consist of the Jail Administrator or his/her designated representative." Under the grievance procedures, if a formal grievance is filed, the inmate shall ask the correctional staff for a grievance form, and after completing the form, the inmate is to seal the envelope and write his initials across the seal and give it to the staff to be forwarded to the Jail Administrator. The inmate may also deliver the grievance to the Jail Administrator personally. Upon receipt of a grievance, the Jail Administrator is to review the grievance to determine, among other things, if it is a civil rights violation, and shall provide a written response to the inmate within fifteen days. In the event an inmate wishes to appeal a decision of the grievance procedure, the inmate shall request, in writing within five days of the grievance decision, a review by the Sheriff. All decisions of the Sheriff are final.
Although Defendants do not provide any evidence that Plaintiff was given this information or when the procedures contained in the two-page document were in effect, they have provided evidence that Plaintiff was aware of and utilized the grievance procedure on at least three different occasions (once on July 26, 2000 and twice on March 16, 2001). The grievances did not concern the events alleged in this lawsuit. Further, Defendants produced evidence that Sheriff MacMillan's investigation of Plaintiff's complaints was not the result of a grievance procedure, but rather was in cooperation with an FBI investigation that ultimately determined that Plaintiff's claims were without merit.
From the evidence before the Court, it appears that there was a grievance procedure in effect by May 2000, the date on the Inmate Handbook, or at least no later than July 2000, when Plaintiff first utilized the procedure. Although there is no evidence before the Court that Plaintiff was ever given an Inmate Handbook, there is evidence that Plaintiff was aware of the grievance procedure because he utilized it in July 2000 and March 2001. In addition, Delia Baker testified that, although the Inmate Handbook does not inform the inmates that they may appeal a grievance decision to the Sheriff, she told Plaintiff that fact. Plaintiff has not offered any evidence to dispute these facts. Although the Court currently has no summaryjudgment evidence that conclusively establishes that a grievance procedure was in place and available before July 2000, the grievance procedure submitted in the summaryjudgment evidence (Bates Numbers 323-324) contains no time limitation in which an inmate must begin grievance procedures. Thus, even if no grievance procedure was in effect before July 2000, Plaintiff could have instituted a grievance regarding his complaints at any time during his incarceration after July 2000, even concerning events that occurred before July 2000. Again, Plaintiff does not dispute this. Thus, the PLRA required Plaintiff to utilize the grievance procedure before filing any suit relating to prison conditions. But despite his knowledge of the available grievance procedure, Plaintiff chose to bypass the grievance procedure and proceed directly to federal court.
The Court rejects Plaintiff's contention that the fact that the Sheriff investigated his allegations effectively renders administrative remedies complied with. As Defendants point out, the investigation was not the result of any grievance procedure, but was an independent investigation conducted by the Sheriff in cooperation with the FBI. In addition, the summary judgment evidence does not establish whether the Sheriff's investigation occurred before or after Plaintiff filed this suit. In Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998), the Fifth Circuit considered whether the fact that an inmate exhausted his administrative remedies after suit was filed rather than before justified dismissal. The Court noted that the exhaustion requirement is not jurisdictional, and thus there may be an exception, in rare instances, where dismissal would be inefficient and would not further the interests of justice or the purposes of the PLRA. Although dismissal in that case was inefficient, given that the inmate had exhausted his administrative remedies, the Court concluded that dismissal was not an abuse of discretion because it could serve as a deterrent to premature filing by the inmate and other potential litigants. Applying that logic, the Court concludes that the purposes of the PLRA are better served by dismissal than by excusing Plaintiff's failure to comply based on a fortuitous independent investigation by the Sheriff and FBI. Plaintiff complains that he was handcuffed to the pit toilet floor grate on several occasions. Had he filed a grievance after the first occasion, perhaps the other occasions would have been prevented. In addition, even considering the Sheriff's investigation, Plaintiff fails to technically satisfy the PLRA's requirement that a prisoner exhaust all available remedies. A grievance procedure — submitting a grievance to the grievance officer/jail administrator — was available, yet Plaintiff failed to utilize it. If a prisoner has not exhausted all available administrative remedies, dismissal is appropriate. Alexander v. Tippah County, Miss., 351 F.3d 626, 630 (5th Cir. 2003).
Although Defendants appear to assume that the exhaustion requirement applies to all of Plaintiff's claims, the Court disagrees with that assumption. The PLRA requires exhaustion of administrative remedies with regard to "prison conditions." The Court concludes that the term "prison conditions" can reasonably be construed to apply only to events and conditions occurring at or related to the prison or jail. See Porter, 534 U.S. at 529 ("It is at least equally plausible . . . that Congress inserted `prison conditions' into the exhaustion provision simply to make it clear that preincarceration claims fall outside of § 1997e(a), for example, . . . a § 1983 claim against [an] arresting officer."). In addition, the PLRA requires exhaustion by a prisoner who is confined and defines prisoner as one who is incarcerated or detained. Thus, Plaintiff's complaint that Defendants McGilvray violated his Fourth Amendment right to be free from excessive force during his arrest at the motel is not covered by the PLRA's exhaustion requirement. In contrast, Plaintiff's complaint regarding his allegedly being handcuffed in his underwear to the pit toilet floor grate during his incarceration is covered by the exhaustion requirement and, because Plaintiff failed to utilize the grievance procedure available to him, must be dismissed for failure to exhaust administrative remedies.
Plaintiff's complaint concerning Defendant McGilvray allegedly beating him upon arrival at the Jail, while walking him down the hall, and while placing him in his cell is more difficult to categorize. However, the use of "incarcerated or detained" in the PLRA suggests that Congress intended the exhaustion requirement to apply only to convicted persons and pretrial detainees. In determining when due process protections attach in addition to Fourth Amendment protections, courts have struggled to determine when pretrial detention begins. The Fifth Circuit has recognized that "the point at which an arrest ends and pretrial detainment begins is not always clear." Gutierrez, 139 F.3d at 452. However, the Fifth Circuit has concluded that an arrestee becomes a pretrial detainee protected by due process rather than the Fourth Amendment after he is arrested, processed by the police department, and has spents significant period of time in detention. Brothers v. Klevenhagen, 28 F.3d 452 (5th Cir. 1994). The Fifth Circuit has also recognized that other circuits endorsed the extension of the Fourth Amendment to the period between arrest and charge and through the period in which an arrestee remains in the arresting officer's custody. Thus, applying these cases, Plaintiff was not yet a pretrial detainee during the time he remained in McGilvray's custody at the Jail; he was merely in custody. Although the term "prison conditions" could be broad enough to include all events occurring once an arrestee is brought inside the Jail, regardless of whether the arrestee qualifies as a pretrial detainee for purposes of due process protections, the PLRA's exhaustion requirement must be limited by its plain application only to a prisoner who is incarcerated or detained. Thus, because Plaintiff was not yet confined or detained in the Jail at the time McGilvray allegedly used excessive force against him at the Jail, the Court concludes that Plaintiff's claim that McGilvray used excessive force against him at the Jail is not precluded by the PLRA's exhaustion requirement.
Accordingly, the Court grants in part Defendants' motion and dismisses without prejudice for failure to exhaust administrative remedies Plaintiff's claim under the Eighth and Fourteenth Amendments concerning the alleged handcuffing to the pit toilet grate on four separate occasions during Plaintiff's confinement at the Jail. However, because the PLRA's exhaustion requirement does not attach until a prisoner is confined or detained, the Court denies the motion to dismiss with regard to Plaintiff's Fourth Amendment excessive force claim, which includes the alleged excessive force at the motel and at the Jail on February 19, 2000.
Plaintiff's First Amended Complaint expressly states that Plaintiff makes no claim of excessive force against Defendants Baker and Zapata. Thus, no claims remain against these Defendants.
B. Qualified Immunity
The Court notes that, although Plaintiff's First Amended Complaint alleges no facts with regard to excessive force used at the motel, it does state that Deputy Sheriff David McGilvray "used excessive force to arrest" Plaintiff. Plaintiffs summary judgment evidence concerns the events unfolding during his arrest at the motel, before he was brought to the Jail, in addition to the alleged excessive force at the Jail. However, perhaps because of Plaintiff's failure to include facts regarding the events at the motel in his Complaint, Defendants' brief does not expressly address the events surrounding the arrest at the motel, instead focusing on events at the Jail as alleged in Plaintiff's First Amended Complaint.
Qualified immunity shields police officers from suit in their individual capacities "unless their conduct violates a clearly established constitutional right." Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir. 2003). Bandera County and the Bandera County Sheriff's Department are not entitled to assert the defense of qualified immunity. Brown v. Lyford, 243 F.3d 185, 191 n. 18 (5th Cir. 2001) (defense of qualified immunity protects only the individual officer, not the municipality); see also Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 166 (1993) (municipalities do not enjoy immunity from suit — either absolute or qualified — under section 1983). However, individual defendants sued in their individual capacities may assert a qualified immunity defense. Claims of qualified immunity require the Court to decide: (1) whether the alleged facts taken in the light most favorable to the party asserting the injury show that the officer's conduct violated a constitutional right; and (2) if so, whether the right was clearly established — that is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id.
1. Excessive Force/Fourth Amendment Claim against McGilvray
The first inquiry for the Court is whether the facts alleged, taken in the light most favorable to Plaintiff, show that Defendant McGilvray violated his Fourth Amendment rights. See Graham v. Connor, 490 U.S. 386, 395 (1989) (an excessive force claim arising in the context of an arrest is most properly characterized as invoking the protections of the Fourth Amendment). Claims that police officers used excessive force are analyzed under the Fourth Amendment's objective reasonableness standard. Id. This reasonableness determination requires a balancing of "the nature and intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Gutierrez v. City of San Antonio, 139 F.3d 441, 447 (5th Cir. 1998). Proper application of the Fourth Amendment's reasonableness test requires careful attention to the facts and circumstances of each particular case. The Court must consider "the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight." Id. The fact that police officers are required to make split second judgments under tense and rapidly evolving circumstances is considered. Id. If the officer reasonably but mistakenly used excessive force, he is entitled to qualified immunity. See id.The facts related to Plaintiffs arrest are in dispute. However, because this is a motion for summary judgment, the Court must view the disputed facts in the light most favorable to the Plaintiff. According to the Plaintiff's deposition testimony, after serving a ninety-day sentence at the Bandera County Jail, Plaintiff was released on February 18, 2000. Plaintiff states that he visited some friends and had a few beers. Plaintiff called several individuals, including Carrie Wallace. Carrie Wallace then called the police and told them that Plaintiff had threatened her. Defendants obtained an arrest warrant and Defendant McGilvray, accompanied by two officers, served the warrant on Plaintiff at a motel Although the First Amended Complaint contains no factual allegations concerning the arrest itself, Plaintiff testified at his deposition that he fell asleep on the bed and later awoke on the floor with three law enforcement officers holding him face down, one with a foot on his neck, one with a knee in his back, and one with his feet on his calves. He believed that he had been pulled from the bed onto the floor while asleep and had been knocked unconscious by a blow to the head with a club. He testified that he felt a pain in the back of his head and heard an officer say "Don't hit him anymore, you're going to kill him." Plaintiff further stated that they handcuffed him and "then they just yanked me up off the floor and began to bounce me around the room." He testified that they shoved him face first into the wall and then they threw him to the side and he hit the open door with his right shoulder and upper arm. He further stated that he went "down the stairs with a little help and [he] stumbled and [he] fell down out in the parking lot." He also stated that they may have rammed him into the side of the police car, but he did not remember.
With regard to the events at the Jail, Plaintiff testified that as he was going in the back door, he "receive[d] a little bit of help from one of the officers, if you want to call it help. He pushed me, and I hit the bars in the sally port." He was not sure which officer had pushed him. Roach testified he was pushed into the walls at least twice as he was being walked through the hallway. He further testified that, once inside the Jail, he was beginning to lose his temper, and he cussed at and spit on McGilvray, who was then sitting behind a desk. He stated that, in response, McGilvray came out from behind the desk, grabbed him by the face, which tore up the inside of his cheeks and made them bleed, and slammed his head into the wall. Next, he stated that, as a jail employee was opening the door to the drunk tank, McGilvray stepped behind Roach, grabbed him by the elbows, and rammed him into the edge of the cell door, injuring his head. He further testified that his shoulder caught the edge of the door as McGilvray kept pushing him through, and that McGilvray pushed him so that he flew head first across the drunk tank and hit his forehead on a concrete shoulder. Last, Roach states that McGilvray then ran in, got on Roach with his knee in his back, and removed the handcuffs. Then, McGilvray left and someone locked the cell door.
Defendants dispute Plaintiff's version of the arrest, asserting instead that Plaintiff, who appeared highly intoxicated, fell and hit his head on one of the motel nightstands. Defendants contend that Plaintiff was further injured when he resisted being placed into the cell, and as the officers tried to force him in, Roach lost his balance and hit his head on the cell wall and floor. It is undisputed that Plaintiff spit on Defendant McGilvray before being forced into the cell, and the undisputed evidence indicates that Plaintiff was threatening violence against McGilvray and his family. All parties agree that Plaintiff was taken to the hospital that night for his injuries, which included injuries to his left shoulder, right wrist, and head. The medical records indicate that he was uncooperative and abusive.
Taking the Plaintiff's alleged facts as true, Plaintiff has alleged and produced some evidence that his Fourth Amendment rights were violated. Although making terroristic threats is a relatively serious offense, accepting Plaintiffs facts as true, Plaintiff was not resisting arrest and did not pose any threat to the officers during the initial arrest at the motel. In addition, if Roach was asleep and later awake but cooperative, there were no exigent circumstances requiring McGilvray to react quickly. Thus, because the events surrounding the events at the motel are in dispute, material fact issues exist regarding whether the alleged use of excessive force was reasonable. With regard to the events at the Jail, again taking Plaintiff's allegations that he was pushed into the bars at the sally port and walls as true, use of such unnecessary physical force would not have been reasonable. Defendants contend that Plaintiff yelled, used abusive language, and threatened McGilvray as he was transported to the Jail. Defendants contend that he threatened to kill McGilvray even if it meant an early death for him. Plaintiff testified that he does not remember the drive to the Jail, stating "it would seem that I would have had to have lost consciousness sometime between there and the jail." At the Jail, Defendants assert that Plaintiff spat on McGilvray and threatened the lives of McGilvray and his family. Defendants assert that Plaintiff resisted being placed into the cell, that Officer Sharp placed Plaintiff in a bear hug from behind, picked him up and walked him to a cell, and that Plaintiff used his feet in an attempt to prevent him from being placed into the cell. Eventually, Plaintiff lost his grip on the entry way and fell to the ground, hitting his head. However, the facts are in dispute, and Plaintiff's version of the facts would establish a Fourth Amendment violation.
Turning to the second prong of the qualified immunity analysis, whether a reasonably competent officer in McGilvray's position could reasonably have thought his actions to be consistent with the right he alleged to have violated, the Court concludes that the right allegedly violated by Defendant McGilvray was clearly established in February 2000. Certainly, the Fourth Amendment's prohibition of the use of excessive force by the police against seized persons was clearly established prior to that time. Gutierrez, 139 F.3d at 446 (noting that the general right to be free from excessive force was clearly established by 1994). In addition, it was clearly established by February 2000 that beating an individual with a club while sleeping and pushing him into doors and walls when he is handcuffed and not resisting arrest is a violation of the individual's Fourth Amendment rights. The Court further concludes that, if Plaintiff's allegations are true, it would have been apparent to an officer in Defendant McGilvray's position that the actions taken were in violation of Plaintiff's Fourth Amendment rights. Accordingly, the Court denies summary judgment on the basis of qualified immunity on Plaintiff's Fourth Amendment excessive force claim against Defendant McGilvray.
2. Claims Against Sheriff MacMillan
With regard to Plaintiff's claims against Defendant James MacMillan, the Sheriff, the issue of whether a supervisor may be held liable under 42 U.S.C. § 1983 requires a separate analysis than that applied for McGilvray. Evett v. DETNTFF, 330 F.3d 681, 689 (5th Cir. 2003). Section 1983 does not create vicarious or respondeat superior liability. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691(1978); Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987). Rather, a plaintiff must show either that the supervisor personally was involved in the constitutional violation or that there is a "sufficient causal connection" between the supervisor's conduct and the constitutional violation. Thompkins, 828 F.2d at 304; see also Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539, 550 (5th Cir. 1997) ("[T]he misconduct of the subordinate must be affirmatively linked to the action or inaction of the supervisor."). A supervisory official is held to a standard of "deliberate indifference," which requires proof that the supervisor "disregarded a known or obvious consequence of his action." Southard, 114 F.3d at 551 (internal quotation marks omitted). A supervisor will not be held liable for unintentional oversights. Id.
Plaintiff has alleged that MacMillan failed to adequately supervise his employees. The knowledge requirement applies when a section 1983 claim is premised on a failure to train, supervise, or to act affirmatively. Thus, an official is liable under section 1983 for a failure to train or supervise only when the plaintiff establishes that: "(1) the [official] failed to train or supervise the officers involved; (2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of the plaintiff's rights; and (3) the failure to train or supervise constituted deliberate indifference to the plaintiffs constitutional rights." Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir. 2001); see also City of Canton v. Harris, 489 U.S. 378 (1989) ("The inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact."). Proof of deliberate indifference generally requires a showing "of more than a single instance of the lack of training or supervision causing a violation of constitutional rights." Thompson, 245 F.3d at 459. Rather, deliberate indifference generally requires that a plaintiff demonstrate "at least a pattern of similar violations" arising from training that is so clearly inadequate as to be "obviously likely to result in a constitutional violation." Id.
Plaintiff has offered no evidence to support his failure to supervise allegation. Accordingly, summary judgment is granted in favor of Defendant MacMillan.
C. Eleventh Amendment
Defendants "further assert their 11th Amendment Immunity against any claims for damages which may have been brought against them in their official capacities." The Court notes that the First Amended Complaint does not specify whether the individually named Defendants are being sued in their official capacities. To the extent that they are, suit against them is equivalent to suit against Bandera County and the Bandera County Sheriff's Department. Brandon v. Holt, 469 U.S. 464, 471-72 (a judgment against a public servant "in his official capacity" imposes liability on the entity he represents); Ashe v. Corley, 992 F.2d 540, 541 n. 1 (5th Cir. 1993) (lawsuit against a county official in his official capacity is the equivalent of an action against the county). To the extent that the defendants sued in their official capacities assert immunity under the Eleventh Amendment, the Court concludes that the County and the Sheriff's Department are not arms of the state and thus are not entitled to Eleventh Amendment immunity from suit. See Southwestern Bell Tel. Co. v. City of El Paso, 243 F.3d 936, 938 (5th Cir. 2001); Crane v. State of Tex., 759 F.2d 412, 415-17 (5th Cir. 1985).
D. Claims Against Bandera County Bandera County Sheriff's Department
Plaintiff's First Amended Complaint alleges that the exercise of established policies and/or customs violated Plaintiff's clearly established right to be free from unreasonable, unnecessary, and excessive force under the Fourth Amendment. Defendants argue that Plaintiff cannot show that Bandera County Jail's policies are unconstitutional. To prevail on a section 1983 claim against the Sheriff's Department and the County, Plaintiff must demonstrate that an official policy or custom caused the deprivation of a constitutional right; a County cannot be held liable for the actions of its non-policy-making employees under a theory of respondeat superior. Monell, 436 U.S. at 694. Sheriff MacMillan is the County's official policymaker with regard to county-related law enforcement. Williams v. Kaufman County, 352 F.3d 994, 1013 (5th Cir. 2003). Thus, the County can be held liable for MacMillan's intentional conduct, to the extent it constitutes the "moving force" behind the alleged injury. Id. at 1013-14. However, Plaintiff has offered no summary judgment evidence regarding any conduct or policy by Sheriff MacMillan, much less any conduct that was a moving force behind his injuries. Accordingly, summary judgment for Bandera County and the Bandera County Sheriff's Department is granted.
III. Conclusion
The Court grants inpart and denies in part Defendants' Motion for Summary Judgment (docket no. 18). The Court dismisses without prejudice Plaintiff's Eighth Amendment claims relating to his allegedly being handcuffed to the pit toilet floor grate during his incarceration at the Bandera County Jail because Plaintiff failed to exhaust available administrative remedies. Thus, no claims remain against Defendants Baker and Zapata. The Court further grants summary judgment in favor of Sheriff James MacMillan, Bandera County, and the Bandera County Sheriff's Department. The Court denies summary judgment on the basis of qualified immunity on Plaintiffs claim against Defendant David McGilvray in his individual capacity for excessive force in violation of Plaintiff's Fourth Amendment rights, and thus this claim remains for trial.