Meyer v. Herndon

Full title: Justin MEYER, Plaintiff, v. Jason David HERNDON, individually and in his…

Court: United States District Court, S.D. Iowa, Central Division.

Date published: Dec 3, 2019

419 F. Supp. 3d 1109 (S.D. Iowa 2019)

Opinion

Case No. 4:19-cv-00109-SMR-HCA

2019-12-03

Justin MEYER, Plaintiff, v. Jason David HERNDON, individually and in his official capacity as Polk County Jailer; William McCarthy, individually and in his official capacity as Polk County Sheriff; and Polk County, IOWA, Defendants.

Brooke C. Timmer, Nathan James Borland, Timmer & Judkins PLLC, West Des Moines, IA, for Plaintiffs. Kenneth R. Munro, Munro Law Office P.C., Julie Jean Bussanmas, Meghan L. Gavin, Polk County Attorney, Des Moines, IA, for Defendants.

STEPHANIE M. ROSE, JUDGE

Brooke C. Timmer, Nathan James Borland, Timmer & Judkins PLLC, West Des Moines, IA, for Plaintiffs.

Kenneth R. Munro, Munro Law Office P.C., Julie Jean Bussanmas, Meghan L. Gavin, Polk County Attorney, Des Moines, IA, for Defendants.

ORDER ON DEFENDANTS' MOTIONS TO DISMISS

STEPHANIE M. ROSE, JUDGE

Plaintiff Justin Meyer alleges he sustained injuries when he was physically beaten by jail staff during his brief stay in the Polk County Jail. He brings suit against the individual jailer, the local government, and the county sheriff, claiming the municipal actors maintained a policy, custom, or practice condoning the use of excessive force and failed to train or supervise the jailer who committed the assault. [ECF No. 1-1]. After removing the case to federal court, Defendants Polk County (the "County") and William McCarthy (collectively, the "Government Defendants") promptly moved to dismiss. [ECF Nos. 4; 11]. Because Plaintiff's Petition fails to sufficiently plead facts that can establish municipal liability against Defendants Polk County and Sheriff McCarthy under state and federal law, the Court GRANTS both motions and DISMISSES Counts IV and V of Plaintiff's Petition.¹

1 The parties did not request a hearing on Defendants' motions, and the Court concludes the matter regarding Plaintiff's federal claims against Polk County and McCarthy can be resolved without oral argument. See LR 7(c).

I. BACKGROUND

A. Factual Background

Plaintiff's Petition documents his version of events that transpired during his brief detention in the Polk County Jail. The crux of his allegations against the Government Defendants center on Plaintiff's interactions with Defendant Herndon and the reactions to his mistreatment from other Polk County personnel. For the purpose of Defendants' Motions to Dismiss, the Court accepts as true the factual allegations in the Complaint. See Brown v. Medtronic, Inc. , 628 F.3d 451, 459 (8th Cir. 2010) (indicating that courts must accept as true the plaintiff's factual allegations, but they need not accept as true the plaintiff's legal conclusions).

On the evening of December 2, 2018, Plaintiff and his girlfriend visited a local bar where they consumed alcohol and watched sports for several hours. [ECF No. 1-1 ¶¶ 8–9]. After becoming sick, Plaintiff left the bar and fell asleep in his car. Id. ¶¶ 10–13. West Des Moines police arrived on the scene and ordered Plaintiff to step out of his car. Id. ¶¶ 14–19. He refused, and the officers forcefully removed him from the vehicle and restrained him. Id. ¶ 21. Plaintiff was promptly arrested, charged with interference with official acts, and transported to the Polk County Jail in Des Moines. Id. ¶ 22.

The genesis of Plaintiff's allegations of mistreatment begins with his booking into the Polk County Jail. There were approximately six jailers working in the area where Plaintiff was confined the night he was arrested. Id. ¶ 42. Plaintiff claims the Polk County jailers refused him access to a telephone, mocked him for asking, and told him he had no right to make a phone call. Id. ¶¶ 25-26. When Plaintiff's girlfriend spoke up in his defense, Defendant Jason Herndon, one of the jailers, told Plaintiff he needed to get her "under control." Id. ¶ 31. Plaintiff rejected the remark. Id. ¶ 32.

Plaintiff encountered Herndon again after he was detained. As Herndon finished his rounds through the jail, Plaintiff witnessed Herndon spew racial slurs at a Hispanic inmate confined in a nearby cell. Id. ¶¶ 35–36. Plaintiff objected to Herndon's offensive language and degrading treatment, telling Herndon his behavior violated the other inmates' civil rights. Id. ¶¶ 37–39. Herndon responded by telling Plaintiff to shut up. Id. ¶ 40. When Plaintiff pressed Herndon and insisted that the jailer "can't talk to people like that," Herndon entered Plaintiff's cell and physically attacked him—grabbing Plaintiff's throat, striking his face, and throwing him to the ground. Id. ¶¶ 43–46. After forcing Plaintiff to the ground, Herndon stared down at Plaintiff with his hand around Plaintiff's neck. Id. ¶ 51. Plaintiff was unarmed, compliant, and submissive. Id. ¶ 45. Another jailer responded to the scene shortly thereafter and ordered Herndon to get out of Plaintiff's cell, but not before Plaintiff suffered physical injuries. Id. ¶¶ 47–50, 53, 56.

A sergeant and nurse documented Plaintiff's injuries shortly after the incident, after which they inquired about Plaintiff's condition. See Id. ¶¶ 57–58. Plaintiff alleges the sergeant was dismissive of Plaintiff's complaint of being assaulted by a staff member and responded to Plaintiff's complaint about the attack by informing Plaintiff he "can't talk back to staff members like that." Id. ¶¶ 50–60. Plaintiff complains he was not given an opportunity to file a formal complaint until he was booked out of the jail, despite telling staff several times that he wanted to press charges against Herndon. Id. ¶¶ 61–62. When he was later interviewed by another sergeant and detective, Plaintiff states he was asked questions that suggested he had acted irate and deserved to be assaulted by Herndon. Id. ¶¶ 64–65.

Polk County maintains two regulations promulgated by the Polk County Sheriff's Office that govern the use of force by its jail employees. [ECF No. 4-1 at 17–20, 21–31].² The first, General Order 14121, lays out the county's policy on "Jail Use of Force." Id. at 17. The Use of Force policy mandates that jail personnel "shall use only the force necessary to accomplish lawful objectives" and that any amount of force "shall be reasonable and necessary." Id. at 18; see also id. at 17 (defining "reasonable force" as "force and no more which a reasonable person, in like circumstances, would judge to be necessary to prevent an injury or loss"). The policy further provides that "[p]hysical force and restraint devices shall never be used as punishment." Id. at 18. By the same token, General Order 14609 provides guidelines governing "Ethics, Behavior, and Conduct" in relation to the use of force. Id. at 21. This policy requires employees to "use the minimum amount of force that is necessary and reasonable to effect the correction and control of any situation." Id. at 22. The ethics guidelines also offer a stern rebuke to the use of excessive force: "[t]he Polk County Sheriff's Office shall not tolerate any type of workplace violence committed by or against employees. Employees are prohibited from making threats or engaging in violent activities towards ... any member of the general public" or "[c]ausing physical injury to another person." Id. at 30.

2 Polk County asks the Court to take judicial notice of General Order 14121 and General Order 14609, [ECF No. 4-1 at 17–20, 21–31]. With no objection from Plaintiff, the Court agrees to take judicial notice of these official documents. Stahl v. U.S. Dep't of Agric. , 327 F.3d 697, 700-01 (8th Cir. 2003) (noting district courts' "complete discretion" in determining whether to take judicial notice of public records outside the pleadings offered to support a Rule 12(b)(6) motion); see also Driebel v. City of Milwaukee , 298 F.3d 622, 630 n.2 (7th Cir. 2002) (taking judicial notice of city police rules and regulations).

Herndon was ultimately charged with Assault Causing Bodily Injury related to this incident on January 3, 2019. [ECF No. 1-1 ¶ 66]. However, Sherriff McCarthy allowed Herndon to resign his position rather than fire him. See id. ¶ 67. Ultimately, Plaintiff asserts none of the other jail staff did anything to protect him or stop Herndon's attack. Id. ¶ 54. This lawsuit followed.

B. Procedural History

Plaintiff filed the instant action on March 12, 2019, in the Iowa District Court for Polk County. [ECF No. 1-1]. Counts I and II of the Petition allege Herndon's attack employed excessive force against Plaintiff in violation of his rights under article I, §§ 1 and 8 of the Iowa Constitution and the Fourth and Fourteenth Amendments to the United States Constitution. [ECF No. 1-1 ¶¶ 69-74, 76–80]. Count III alleges Herndon retaliated against Plaintiff on the basis of protected speech in violation of article I, § 7 of the Iowa Constitution. [ECF No. 1-1 ¶¶ 82–87]. Finally, in Count VI, Plaintiff sues Herndon for assault and battery. [ECF No. 1-1 ¶¶ 114–27]. Defendant Herndon denies Plaintiff's allegations. See [ECF No. 9].

The two remaining Counts of Plaintiff's Petition are levied against Polk County, Iowa, and William McCarthy, individually and in his official capacity as Polk County Sherriff. Count IV invokes Plaintiff's civil rights under the United States Constitution and advances two core complaints: first, that the Government Defendants "established, maintained, and/or enforced official policies, patterns, practices, or customs of allowing unreasonable or excessive force" and further failed to implement existing rules governing the department's use of force;³ and second, that the Government Defendants failed to properly train jail personnel in the proper use of force and supervise staff in their treatment of detained individuals. [ECF No. 1-1 ¶¶ 93, 97–98, 106]. According to Plaintiff, the Government Defendants' failure on both fronts reflects a "deliberate indifference and/or reckless disregard of the rights of [Plaintiff] and those similarly situated to him" and "authorized the actions of Herndon," leading to Plaintiff's injury. Id. ¶¶ 96 (first quote), 97–98 (second quote). Plaintiff makes nearly identical allegations under article I, §§ 1, 7, and 8 of the Iowa Constitution in Count V. Id. ¶¶ 106–112.⁴

3 Polk County points out in its opening brief that Plaintiff's pleadings do not articulate whether Plaintiff brings his federal claims against Defendants under 42 U.S.C. § 1983, as he does against Herndon, or as a Bivens action. [ECF Nos. 4-1 at 5 n.2; 11-1 at 4 n.1]. "[A] Bivens action is the federal analog to suits brought against state officials" under 42 U.S.C. § 1983. Hartman v. Moore , 547 U.S. 250, 254 n.2, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). Plaintiff acknowledges his federal claims against the Government Defendants arise under 42 U.S.C. § 1983. See [ECF Nos. 5-1 at 6; 15-1 at 4, 9, 12].

4 Plaintiff cites article I, § 7, providing for the "liberty of speech and press," in support of his state constitutional claims against the Government Defendants, though he appears to abandon that endeavor in his briefs.

After removing Plaintiff's action to federal court, the Government Defendants promptly moved to dismiss Counts IV and V under Federal Rule of Civil Procedure 12(b)(6). [ECF Nos. 4; 11]. Plaintiff resists.

II. STANDARD OF REVIEW

The Federal Rules of Civil Procedure require a complaint to present "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Conversely, a complaint is subject to dismissal when it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To meet this standard, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Braden v. Wal-Mart Stores, Inc. , 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Although the plausibility standard "is not akin to a ‘probability requirement,’ " it demands the pleadings demonstrate "more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Thus, a complaint must plead more than mere "labels and conclusions" or " ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Id. (alteration in original) (quoting Twombly , 550 U.S. at 555, 557, 127 S.Ct. 1955 ). All reasonable inferences must be drawn in the plaintiff's favor, Crooks v. Lynch , 557 F.3d 846, 848 (8th Cir. 2009), but "[t]he facts alleged in the complaint ‘must be enough to raise a right to relief above the speculative level,’ " Clemons v. Crawford , 585 F.3d 1119, 1124 (8th Cir. 2009) (quoting Drobnak v. Andersen Corp. , 561 F.3d 778, 783 (8th Cir. 2009) ); see also Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ("The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) [liability] reflects the threshold requirement of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to ‘sho[w] that the pleader is entitled to relief.’ "). In other words, pleadings that do not allow the Court to infer more than the "mere possibility of misconduct" have not shown "that the pleader is entitled to relief." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (quoting Fed. R. Civ. P. 8(a)(2) ).

III. ANALYSIS

The Government Defendants urge the Court to dismiss the claims against them in Counts IV and V. First, they contend Plaintiff's Petition fails to plead with sufficient particularity a cause of action for deprivation of constitutional rights by which to hold municipal government actors liable under 42 U.S.C. § 1983. [ECF Nos. 4-1 at 5–10; 11-1 at 4–11]. Even assuming Plaintiff has established a sufficient factual basis to support his Petition, Defendants argue his state claims fail as a matter of law because Iowa does not recognize direct causes of action against government entities under article I, §§ 1 or 8 of the Iowa Constitution, and adequate alternative remedies under state law exist to bar Plaintiff's constitutional tort. [ECF Nos. 4-1 at 10–15; 11-1 at 11–16].

The Court agrees the Petition fails to state a claim against the Government Defendants and finds dismissal of Counts IV and V to be warranted. As alleged, Plaintiff's federal claims do not meet the pleading standard of Rule 8(a)(2) to impose municipal liability and therefore "fail[ ] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). And although the Court concludes state law supports Plaintiff's constitutional torts brought directly under the Iowa Constitution, those claims fail for similar reasons. Each will be discussed in detail, below.

A. Federal § 1983 Claims

The Court first turns to Plaintiff's federal claims brought under 42 U.S.C. § 1983. Polk County's written policy unequivocally disavows the use of excessive force by its jail personnel, and Plaintiff does not appear to seriously contend otherwise. Plaintiff instead advances twin theories of municipal liability based on unwritten practices: first, Plaintiff alleges the Government Defendants authorized the use of excessive force against inmates by failing to implement its official policies and maintaining a pattern, practice, or custom of condoning such use of force; second, Plaintiff alleges the Government Defendants were deliberately indifferent to their obligation to secure detainees' rights by failing to adequately train or supervise employees in the appropriate use of force. After laying out the applicable law, the Court will analyze the claims against each defendant.⁵

5 Because "[a] suit against a public official in his official capacity is actually a suit against the entity for which the official is an agent," Elder-Keep v. Aksamit , 460 F.3d 979, 986 (8th Cir. 2006), the Court will first consider the claims against Polk County and Sheriff McCarthy in his official capacity before proceeding to evaluate the claims against Sheriff McCarthy in his individual capacity.

1. Introduction

Courts look first to the elements of a plaintiff's claim to determine whether a complaint sufficiently pleads government liability under § 1983. Iqbal , 556 U.S. at 675, 129 S.Ct. 1937. The Civil Rights Act of 1964 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

42 U.S.C. § 1983. Section 1983 claims against local governments are subject to "rigorous requirements of culpability and causation." Bd. of Cty. Comm'rs v. Brown , 520 U.S. 397, 415, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). "[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Monell v. New York City Dep't of Soc. Servs. , 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ; see also Iqbal , 556 U.S. at 676, 129 S.Ct. 1937 ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. "). Rather, to impose § 1983 liability on a local government or official, a plaintiff must specifically show that the government body, through its own actions, violated the plaintiff's constitutional rights. Monell , 436 U.S. at 694, 98 S.Ct. 2018.

An injured party can attach § 1983 liability to a municipal actor "if the violation resulted from (1) an ‘official municipal policy,’ (2) an unofficial ‘custom,’ or (3) a deliberately indifferent failure to train or supervise." Corwin v. City of Indep. , 829 F.3d 695, 699 (8th Cir. 2016) (citations omitted). An official policy may subject a local government to liability where "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell , 436 U.S. at 690, 98 S.Ct. 2018. Likewise, "[a]n act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law." Perkins v. Hastings , 915 F.3d 512, 521 (8th Cir. 2019) (quoting Brown , 520 U.S. at 404, 117 S.Ct. 1382 ). To prevail on such a theory, a plaintiff must demonstrate "(1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees; (2) deliberate indifference to or tacit authorization of such conduct by the governmental entity's policymaking officials after notice to the officials of that misconduct; and (3) that plaintiff was injured by acts pursuant to the governmental entity's custom, i.e., that the custom was a moving force behind the constitutional violation." Snider v. City of Cape Girardeau , 752 F.3d 1149, 1160 (8th Cir. 2014). Governmental liability on the theory of failure to train or supervise is an extension of claims challenging a municipality's unconstitutional policy or custom. Marsh v. Phelps Cty. , 902 F.3d 745, 751 (8th Cir. 2018). It similarly requires a "deliberate indifference to the rights of persons with whom the [employees] come into contact." City of Canton v. Harris , 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

On all theories of municipal liability, the burden is heavy. "Deliberate indifference" is "a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Brown , 520 U.S. at 410, 117 S.Ct. 1382. A less stringent standard "would result in de facto respondeat superior liability on municipalities." Canton , 489 U.S. at 392, 109 S.Ct. 1197. Turning to Plaintiff's allegations, it is clear the Petition fails to state a claim under federal law.

2. Governmental liability

The United States Court of Appeals for the Eighth Circuit has consistently rejected speculative and conclusory allegations of government liability—this case suffers similar defects. Nothing in Plaintiff's Petition pleads actual facts alleging actions by Polk County itself that, if true, would establish an unwritten policy, practice, or custom condoning the use of unconstitutional force. Plaintiff's naked assertions that the Government Defendants "established, maintained, and/or enforced official policies, patterns, practices, or customs of allowing unreasonable or excessive force," [ECF No. 1-1 ¶ 93], and "authorized the actions of Herndon by failing to train and properly supervise [him]," id. ¶ 98, amount to bald legal conclusions that are unsupported by factual allegations. As such, the Petition fails to state a § 1983 claim under Rule 8(a)(2). Mick v. Raines , 883 F.3d 1075, 1079 (8th Cir. 2018) (" ‘Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,’ are not sufficient to survive a motion to dismiss." (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 )).

To begin, nowhere does Plaintiff plead the existence of any actual continuing, widespread, persistent pattern of unconstitutional misconduct by jail personnel. Section 1983 litigants must meet a "heavy burden" to establish municipal liability through an unofficial custom, and succeed only "when [they] have produced evidence of prior complaints sufficient to demonstrate that the municipalities and their officials ignored police misconduct." Id. at 1080 (quoting Mettler v. Whitledge , 165 F.3d 1197, 1205 (8th Cir. 1999) ). Civil rights plaintiffs have met this burden in the past where they allege and prove "detailed and compelling" evidence a police department avoided, ignored, and covered up complaints of misconduct, Parrish v. Luckie , 963 F.2d 201, 204–05 (8th Cir. 1992), or show officials in positions of authority were notified of repeated acts of misconduct but failed to take any remedial action, Harris v. City of Pagedale , 821 F.2d 499, 505-06 (8th Cir. 1987). Instead, here, Plaintiff documents only a single instance of alleged mistreatment by a lone employee. This does not suffice to allege a custom or practice of excessive force pervading the Polk County Jail. See Perkins , 915 F.3d at 522 (holding that while one prior incident of police misconduct could have put the department on notice of officer misconduct, "one unjustified shooting does not establish a pattern of constitutional violations"); Raines , 883 F.3d at 1079–80 (holding three affidavits of detainees alleging similar instances of excessive force, even if admissible, were insufficient to show an unconstitutional departmental custom of excessive force); cf. Wood v. Moss , 572 U.S. 744, 763–64, 134 S.Ct. 2056, 188 L.Ed.2d 1039 (2014) (declining to "infer from alleged instances of misconduct on the part of particular agents an unwritten policy" of the governmental agency to violate citizens' constitutional rights). Plaintiff's attempt to connect other jail employees' conduct and comments in the wake of his alleged assault are only tenuously related to his claim and are speculative at best.

Plaintiff's allegations further fail to allege any facts demonstrating the county was deliberately indifferent to or tacitly authorized any such custom. Nowhere does Plaintiff even allege any facts that could allow the Court to make a plausible inference that Polk County had actual or constructive knowledge of a custom of jail staff using excessive force. See Raines , 883 F.3d at 1078–79 (affirming dismissal of claims for unconstitutional policy or practice of excessive force and failure to train or supervise when plaintiff was arrested without probable cause, beaten by jail staff, and refused medical attention because the plaintiff "made no allegations that the defendants ... had knowledge of unconstitutional acts by subordinates—a required element of each claim—nor did he make any allegations from which such knowledge could be inferred"). And without pleading facts that suggest notice, Plaintiff cannot, as a matter of law, show Defendants were deliberately indifferent or tacitly authorized Herndon's conduct.

Plaintiff's failure to train or supervise theory suffers from identical pleading deficiencies. First and foremost, the Petition fails to document any ways in which Herndon's training was deficient. Neither does it allege facts that, if true, would show Polk County had knowledge of any risks to others posed by Herndon's training or supervision that it made a " ‘deliberate’ or ‘conscious’ choice" to disregard. See Canton , 489 U.S. at 388, 109 S.Ct. 1197 ("Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality—a ‘policy’ as defined by our prior cases—can a [county] be liable for such a failure under § 1983." (citation omitted)). For that matter, Plaintiff's Petition does not even allege how any such failure in training or supervision would be the "moving force" behind his injury. See Brown , 520 U.S. at 404, 117 S.Ct. 1382 ("[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged."). Indeed, proof " ‘that an injury or accident could have been avoided if an [employee] had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct’ will not suffice." Connick v. Thompson , 563 U.S. 51, 68, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (alteration in original) (citation omitted).

Plaintiff's arguments to the contrary do not stand up to scrutiny. Plaintiff contends he has properly pleaded a viable § 1983 claim to establish municipal liability—even in the absence of a discrete custom or practice—because the "plainly obvious consequence" of such a policy would be an injury such as his. See Brown , 520 U.S. at 411, 117 S.Ct. 1382 ; see also Canton , 489 U.S. at 390 n.10, 109 S.Ct. 1197 (suggesting possibility of single-incident liability where need for training is "plainly obvious" but policymakers are "deliberately indifferent" to that need). True, a single act or decision attributable to a governmental official may, in some instances, support a cause of action under § 1983, but "only where the evidence that the municipality had acted and that the plaintiff had suffered a deprivation of federal rights also proved fault and causation." Brown , 520 U.S. at 405, 117 S.Ct. 1382. That is not the case here. The use of excessive force by a lone jail employee against a detained inmate is not the obvious consequence of an unofficial policy, custom, or practice. See Raines , 883 F.3d at 1078–89. And apart from the fact that the unprovoked use of excessive force against a detainee posing no safety threat while locked in a solitary holding cell is against official county policy, any " ‘objectively reasonable [jail employee] would know that it is impermissible’ to engage in such behavior." Marsh , 902 F.3d at 753 (concluding jail employee's lack of training specifically not to sexually assault female inmates did not impute municipal liability to the government or supervisor because "there is no patently obvious need to train an officer not to sexually assault detainees" (citation omitted)); Parrish v. Ball , 594 F.3d 993, 999 (8th Cir. 2010) (concluding there was no basis for municipal liability for county's lack of training officers not to sexually assault female detainee because there was no evidence employees had committed such offenses in the past). In the end, Plaintiff's re-characterization of his claim under a single-incident theory of liability similarly amounts to nothing more than an attempt at de facto respondeat superior municipal liability—"a result [the Court] rejected in Monell. " Canton , 489 U.S. at 392, 109 S.Ct. 1197.

Finally, the contention that Plaintiff's pleadings raise significant concerns to warrant discovery misconstrues the pleading standard in federal court. The United States Supreme Court has expressly rejected this view. Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937 (" Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions."); Twombly , 550 U.S. at 559, 127 S.Ct. 1955 ("It is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through careful case management given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side." (citations omitted)). Plaintiff's Petition ultimately fails to connect Herndon's alleged conduct with the conclusion that he was engaging in a widespread departmental custom or practice condoning excessive force. Marsh , 902 F.3d at 753.

3. Individual liability

Plaintiff's allegations are similarly insufficient to attach personal liability to Sheriff McCarthy. Iqbal controls the matter at issue here.

In Iqbal , a Pakistani national set forth a shocking array of claims of physical abuse and racial discrimination when incarcerated in the wake of the September 11, 2001 terrorist attacks. 556 U.S. at 668, 129 S.Ct. 1937. The plaintiff's complaint alleged the defendant federal officials maintained a policy of detaining thousands of Arab Muslim men like himself and subjecting them to harsh conditions of confinement solely on account of their religion, race, and national origin. Id. at 669, 129 S.Ct. 1937. But the United States Supreme Court held the plaintiff's allegations against the federal officials did not satisfy federal pleading standards because his complaint only pleaded conduct by federal law enforcement personnel that could not impute official liability under a theory of respondeat superior. Id. at 677, 129 S.Ct. 1937 (rejecting a theory of "supervisory liability" through the officials' "knowledge and acquiescence" in their subordinates' unconstitutional practices). Because the plaintiff had not pleaded facts suggesting more than a "sheer possibility" of unlawful conduct by the officials themselves, the Court held the complaint "has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief." Id. at 678–79, 129 S.Ct. 1937 (second quote citing Fed. R. Civ. P. 8(a)(2) ).

The same is true here, particularly given the far less egregious facts of this case. Nothing in Plaintiff's Petition alleges with sufficient factual particularly that Sheriff McCarthy himself maintained a policy, custom, or practice of allowing his employees to use excessive force to show a plausible inference of liability under § 1983. Iqbal , 556 U.S. at 677, 129 S.Ct. 1937 ("Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct."). Nor are there facts in the Petition to plausibly infer McCarthy had notice of any such practice occurring within the Polk County Jail. See Marsh , 902 F.3d at 755 (rejecting § 1983 liability and concluding sheriff was instead entitled to qualified immunity on claim that amounted to supervisory liability because there were no facts that suggested the sheriff had notice of a pattern of unconstitutional egregious misconduct by his subordinate). And even if there were, the Supreme Court has expressly rejected the position that "a supervisor's mere knowledge of his subordinate's [unconstitutional] purpose amounts to the supervisor's violating the Constitution." Iqbal , 556 U.S. at 677, 129 S.Ct. 1937.

Plaintiff's failure to train or supervise theory similarly fails against McCarthy individually. Plaintiff does not assert Sheriff McCarthy, himself, had notice of a pattern of excessive force by Polk County Jail staff, or that he acted with deliberate indifference in the face of such knowledge. See Marsh , 902 F.3d at 753–55 (rejecting supervisory liability for jail officials that amounted to claims of vicarious liability); Marchant v. City of Little Rock , 741 F.2d 201, 204–05 (8th Cir. 1984) (holding that isolated instances of misconduct by subordinates do not give rise to supervisory liability where official had no knowledge of or connection with improper acts). Nor does Plaintiff plead factual allegations that would show Sheriff McCarthy's personal failure to train "actually caused" Plaintiff's injuries. See Parrish , 594 F.3d at 1002 (holding sheriff was not liable as a matter of law because there was no evidence he should have known about prior officer misconduct to prompt him to more closely supervise that officer). To be sure, Plaintiff's case against McCarthy is premised solely on the notion that McCarthy is liable in his supervisory capacity as Polk County Sheriff. But claims premised on supervisory roles are "wholly inadequate" to impose liability under § 1983. Marsh , 902 F.3d at 754. "[T]hat harm occurred under [Sheriff McCarthy's] watch is not the touchstone under § 1983. Any claims raised on a vicarious liability basis are not cognizable." Id. ; cf. Canton , 489 U.S. at 394, 109 S.Ct. 1197. Plaintiff's detailed allegations about one incident of misconduct allegedly perpetrated by a government employee are not enough to infer § 1983 liability to government officials like Sheriff McCarthy.

B. State Constitutional Torts

In Bivens v. Six Unknown Federal Narcotics Agents , the United States Supreme Court held that a "cause of action for damages" arises under the United States Constitution when federal officials violate a person's rights under the Fourth Amendment. 403 U.S. 388, 395, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Since then, the Iowa Supreme Court has recognized that the Iowa Constitution similarly supports Bivens -like actions in certain circumstances and under certain provisions. Godfrey v. State , 898 N.W.2d 844, 847, 880–81 (Iowa 2017) (plurality op.).⁶ The question presented by Defendants' motions is whether Godfrey extends to claims brought under article I, §§ 1 and 8 alleging a violation of rights resulting from the use of excessive force by municipal actors against a pretrial detainee during the booking process. The Iowa Supreme Court has not yet ruled on the specific provisions at issue in this case; but "[w]hen a state's highest court has not decided an issue, it is up to this court to predict how the state's highest court would resolve that issue." Church Mut. Ins. Co. v. Clay Ctr. Christian Church , 746 F.3d 375, 380 (8th Cir. 2014) ; Davis v. Simmons , 100 F. Supp. 3d 723, 737 (S.D. Iowa 2015).⁷ The Court concludes recent decisions by the Iowa Supreme Court suggest it would indeed recognize a constitutional tort under the circumstances of this case, and that the parties have not identified adequate alternative remedies that would otherwise preclude suit. Nevertheless, Plaintiff's proposed action does not meet the federal pleading standard of Rule 8(a)(2) and therefore fails to state a claim.

6 Godfrey was a plurality decision. There, a four-justice majority agreed that the Iowa Constitution supports independent constitutional torts arising under provisions that are self-executing. 898 N.W.2d at 870–72 ; id. at 880 (Cady, C.J., concurring in part and dissenting in part). The three dissenting justices disagreed that independent torts could be brought directly under the Iowa Constitution, but they were joined by the Chief Justice in concluding such actions are barred where the legislature has crafted alternative statutory remedies that are adequate to redress the alleged injury. See id. at 888 (Mansfield, J., dissenting); see also id. at 880–81 (Cady, C.J., concurring in part and dissenting in part). Though they disagreed that was the case on the facts before them, the three justices in the lead opinion appeared to agree alternative statutory remedies can preclude constitutional torts under the state constitution. See id. at 875–880 (Appel, J.). Unless otherwise, noted, all citations to Godfrey reference the controlling plurality opinion in which a majority of justices appeared to agree.

7 The parties have not asked this Court to certify questions to the Iowa Supreme Court or abstain from ruling on this issue pending their resolution by an Iowa court.

1. Introduction: Godfrey 's constitutional quandary

The Iowa Supreme Court's 2017 decision in Godfrey v. State formally articulated a test for determining whether provisions of the Iowa Constitution support a direct cause of action for damages. "A Godfrey action is the state counterpart to a Bivens action." Baldwin v. City of Estherville , 929 N.W.2d 691, 696 (Iowa 2019) (" Baldwin V "). To support an independent cause of action, a provision under the Iowa Constitution must first be "self-executing." Godfrey , 898 N.W.2d at 870. Second, there must be no "adequate statutory remedy" as an alternative to the proposed constitutional tort. Id. at 892–83 ; see also id. at 881 (Cady, C.J., concurring in part and dissenting in part) (concluding existing statutory remedies must be "inadequate to vindicate [a plaintiff's] constitutional rights"); cf. id. at 886 (Appel, J., dissenting in part) (arguing statutory remedy was inadequate). In Godfrey , a plurality of the Iowa Supreme Court found article I, §§ 6 (equal protection) and 9 (due process) were self-executing constitutional provisions giving rise to actionable claims for money damages but concluded the Iowa Civil Rights Act provided an adequate remedy to the plaintiff's equal protection claim for sexual orientation discrimination. See id. at 847, 870–72, 880–81, 892–93.

In this case, Plaintiff brings suit against the Government Defendants for the deprivation of his right to be free from the use of excessive force under article I, §§ 1 and 8 of the Iowa Constitution. [ECF No. 1-1 ¶ 111]. Section 8 is the "Search and Seizure" provision of the Iowa Constitution; section 1 is known as the "Inalienable Rights" Clause. The Court will proceed to examine both.⁸

8 Plaintiff does not distinguish whether he pursues a direct cause of action under the Inalienable Rights Clause or simply cites article I, § 1 as an "appendage" to his claim under Iowa's Search and Seizure Clause. Cf. Baldwin v. City of Estherville , 336 F. Supp. 3d 948, 951–54 (N.D. Iowa 2018) ("Baldwin I ") (certifying questions and musing that the plaintiff's claims under article I, §§ 1 and 8 were not independent where the plaintiff had not "coherently articulated either the legal or the factual distinctions between the claims, if each section sustains an independent claim," or argued "that a violation of one section would permit different or additional damages compared to those available for a violation of the other section," though the question was moot); Baldwin v. City of Estherville , 915 N.W.2d 259, 285 (Iowa 2018) ("Baldwin II ") (Appel, J., dissenting) (contending "[t]he importance of claims brought under article I, section 1 of the Iowa Constitution cannot be rendered a mere appendage"). For purposes of this order, the Court will consider the constitutional provisions separately because the parties have argued them separately.

2. Self-executing

The Iowa Supreme Court had adopted the following standard for determining whether a constitutional provision is "self-executing," giving rise to a direct cause of action:

"A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law...."

... In short, if complete in itself, it executes itself.

Davis v. Burke , 179 U.S. 399, 403, 21 S.Ct. 210, 45 L.Ed. 249 (1900) (citation omitted); accord Godfrey , 898 N.W.2d at 870 (quoting Davis , 179 U.S. at 403, 21 S.Ct. 210 ). Ordinarily, a self-executing constitutional provision "does not contain a directive to the legislature for further action" and "takes effect immediately ‘without the necessity for supplementary or enabling legislation.’ " Godfrey , 898 N.W.2d at 870 (citations omitted). Based on the analysis below, the Court predicts the Iowa Supreme Court would find article I, § 8 to be self-executing, but § 1 unable to support a direct cause of action for damages.

i. The Search and Seizure Clause

Article I, § 8 is the Fourth Amendment analog under the Iowa Constitution:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized.

Iowa Const. art. I, § 8. By its terms, article I, § 8 condemns "unreasonable searches and seizures," and confirms Iowans' right to be "secure" in their person—it proclaims this right "shall not be violated." This clause does not contain a directive to the Iowa Legislature to take further action to secure this right and is in effect without enabling legislation. Yet, the Iowa Supreme Court has been willing to adopt a distinct and independent—and often more expansive—view of the rights contained in the clause than its federal counterpart. See, e.g. , State v. Gaskins , 866 N.W.2d 1, 13 (Iowa 2015) (approving of federal precedent's "reaching distance" limitation of the search incident to arrest under article I, § 8, but declining to adopt the alternative evidence-gathering rationale under that exception to warrantless searches); State v. Pals , 805 N.W.2d 767, 782 (Iowa 2011) (rejecting federal precedent to hold consent to a search involuntary under article I, § 8 ); State v. Ochoa , 792 N.W.2d 260, 291 (Iowa 2010) (rejecting federal precedent to conclude a parolee may not be subjected to broad, warrantless searches without particularized suspicion or reasonable limitations to the scope of the search). But see State v. Brown , 930 N.W.2d 840, 854 (Iowa 2019) (interpreting article I, § 8 "coextensive with the Fourth Amendment" to hold that the subjective motivation of an officer making a pretextual traffic stop is irrelevant insofar as the officer had objectively reasonable cause to believe a violation of the law occurred). Thus, the Search and Seizure Clause appears to be "not a mere hortatory command, but it has been implemented, day in and day out, for many, many years." Godfrey , 898 N.W.2d at 871.

Though the Iowa Supreme Court has not been squarely presented with the opportunity to consider whether article I, § 8 is self-executing, the court relied on a string of early 20th century cases invoking the Search and Seizure Clause in first recognizing and later defining liability for constitutional torts in Iowa. See Baldwin v. City of Estherville , 915 N.W.2d 259, 275–76 (Iowa 2018) (" Baldwin II ") (citing cases); Godfrey , 898 N.W.2d at 862–63 (same). In McClurg v. Brenton , the first case relied on by the Godfrey and Baldwin II majorities, the Iowa Supreme Court reversed a directed verdict in favor of public officials in an action for damages where a homeowner sued the mayor, police chief, and captain of the night force for forcibly entering his home at night to look for stolen chickens they had pursued with bloodhounds. 98 N.W. 881, 883, 123 Iowa 368 (1904). Though the action was one for "wrongful and unauthorized trespass," the court emphasized the nature of the action as against public officials in the course of using their official authority:

The right of the citizen to occupy and enjoy his home, however mean or humble, free from arbitrary invasion and search, has for centuries been protected with the most solicitous care by every court in the English-speaking world, from Magna [Carta] down to the present, and is embodied in every bill of rights defining the limits of governmental power in our own republic.

Id. at 882. Next, Krehbiel v. Henkle reversed a directed verdict dismissing the claim of a schoolteacher against a disgruntled parent who baselessly accused the teacher of theft and caused a warrant to issue against the teacher. 121 N.W. 378, 380, 142 Iowa 677 (1909). This common law suit was brought against a private party and alleged themes reminiscent of trespass and malicious prosecution, but "[t]he essence of the wrong done to [the plaintiff] was the unreasonable invasion of his home." Id. The court emphasized:

The right of the citizen to security in person and property against wrongful seizures and searches is one which the law has ever zealously safeguarded and has express recognition in our state Constitution. That a violation of this right without reasonable ground therefor gives the injured party a right of action is thoroughly well settled.

Id. at 379–80 (citing Iowa Const. art. I, § 8 ). And the Iowa Supreme Court defended the fairness of its now-overruled position rejecting the exclusionary rule for violations of article I, § 8 in criminal cases because the decision "would not detract one iota from the full protection vouchsafed to the citizen by the constitutional provisions. A trespassing officer is liable for all wrong done in an illegal search or seizure." State v. Tonn , 191 N.W. 530, 535, 195 Iowa 94 (1923), abrogated by State v. Cline , 617 N.W.2d 277, 291 (Iowa 2000) (emphasizing that "the constitutional provision is a sacred right, and one which the courts will rigidly enforce"). In another action between private parties, the Iowa court ordered a new trial when the district court erroneously permitted the jury to be instructed on "the right of a seller under a conditional sale to forcibly break and enter [the] purchaser's home ... and retake the property sold." Girard v. Anderson , 257 N.W. 400, 402–03, 219 Iowa 142 (1934). It emphasized: "[a] violation of the state and federal constitutional provisions against the unreasonable invasion of a person's home gives the injured party a right of action for damages for unlawful breaking and entering," concluding that the opposite approach was "contrary to good public policy" vindicating those rights under article I, § 8 of the Iowa constitution. Id. (citing McClurg , 98 N.W. at 881 ).

The Iowa Supreme Court's characterization of its precedent is instructive. In Godfrey , a plurality of the Court relied on this string of cases to expound "the thoroughly well settled principle" that a violation of the Iowa Constitution could, under certain circumstances, "give[ ] rise to a cause of action" and arrive at its conclusion that the due process and equal protection clauses of the Iowa Constitution were self-executing provisions. See Godfrey , 898 N.W.2d at 862–63. One year later, a majority of the court relied on the same cases to conclude that the state constitutional torts recognized in Godfrey were consistent with "some limits," holding that a police officer facing such a claim under the Search and Seizure Clause can avoid damages liability if the officer can successfully show he or she is entitled to qualified immunity. Baldwin II , 915 N.W.2d at 275–76 (answering certified questions and rejecting strict liability in light of the "Iowa precedents we singled out in Godfrey for having recognized constitutional torts"); see also id. at 275 n.4 (reminiscing that "[i]n Godfrey , we characterized Krehbiel as a damages action for violation of article I, section 8, not as a malicious prosecution case"). More recently, the Court concluded the defense is also applicable to the local government that employs the constitutional tortfeasor. Baldwin V , 929 N.W.2d at 698 (answering certified questions).⁹ These cases, as characterized by the Iowa Supreme Court, support the conclusion that it would find the Search and Seizure clause to be historically self-executing so as to recognize a Godfrey action for money damages under article I, § 8 of the Iowa Constitution.

9 The Iowa Supreme Court's decisions answering certified questions in Baldwin II and Baldwin V appear to be premised on the assumption that a Godfrey action may be brought under article I, § 8 of the Iowa Constitution, but neither party in those cases raised the issue, and the question was not certified to the Court; this preliminary matter was raised only by amicus, and the Court declined to address it. See Baldwin II at 282–83, (Appel, J., dissenting) (noting "[t]he State of Iowa, as an amicus, urges us to consider whether a local government entity may be sued for money damages for constitutional violations," but that this "distinctly different question" was not raised by the parties nor addressed by the majority).

The viability of a direct action under the Search and Seizure clause has also been considered by several federal district courts for the Northern District of Iowa in rulings pre-dating Godfrey. In McCabe v. Macaulay , the federal district court predicted the Iowa Supreme Court would recognize a Bivens -like action under article I, § 8 when several individuals protesting a visit by the President of the United States were detained, subjected to cavity inspections, and baselessly accused of criminal trespass before all charges were dropped. 551 F. Supp. 2d 771, 778–82, 784–85 (N.D. Iowa 2007) (Reade, J.). The protesters brought suit against two troopers of the Iowa State Patrol. Id. The federal court analyzed Iowa case law observing that, at most, precedent

reject[ed] a direct cause of action under the due process clause of the Iowa Constitution for monetary damages against a local governmental entity for reasons expressed in [ Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ]. It does not address whether there is an Iowa analogue to Bivens under the common law when, as here, Iowa government officials are alleged to have violated the Iowa Constitution and the Iowa General Assembly has not specifically provided a statutory remedy for such violations.

Id. at 785 (discussing Cunha v. City of Algona , 334 N.W.2d 591 (Iowa 1983) ). Another federal court later applied McCabe 's analysis specifically to two claims of excessive force brought against officers in their booking and detention of an arrestee under article I, § 8, alleging constitutional violations for conducting a strip search, using excessive force, and retaliating against protected speech while in custody. In Peters v. Woodbury County and Clay v. Woodbury County , the court simply "agree[d] with [ McCabe ]'s analysis and conclude[d] that the defendants [were] not entitled to summary judgment on any claim for a violation of the Iowa Constitution, simply because such a claim purportedly is not valid." Peters v. Woodbury Cty. , 979 F. Supp. 2d 901, 971 (N.D. Iowa 2013) (Bennett, J.); accord Clay v. Woodbury Cty. , 982 F. Supp. 2d 904, 922 (N.D. Iowa 2013) (Bennett, J.). These orders were issued prior to the Iowa Supreme Court's two-part test announced in Godfrey , but dicta in that case appears to have approved of the federal courts' interpretation of Iowa law. See Godfrey , 898 N.W.2d at 856, 863–64 (citing McCabe , 551 F. Supp. 2d at 784–85, and Peters , 979 F. Supp. 2d at 971 ).

Although the Iowa Supreme Court understandably "protect[s] [its] authority to follow an independent approach," Pals , 805 N.W.2d at 776, it often views federal authorities interpreting the Fourth Amendment to be persuasive when interpreting constitutional issues under article I, § 8 of the Iowa Constitution, see Brown , 930 N.W.2d at 847 ("We generally ‘interpret the scope and purpose of the Iowa Constitution's search and seizure provisions to track with federal interpretations of the Fourth Amendment' because of their nearly identical language." (citation omitted)); see also Godfrey , 898 N.W.2d at 856, 879 (finding extra-jurisdictional authorities persuasive in "allowing a Bivens -type claim to go forward" against state government defendants). Federal courts are split as to the constitutional source of the right to be free from excessive force during the "legal twilight zone" between arrest and sentencing, but they agree such a right exists. Wilson v. Spain , 209 F.3d 713, 715 & n.2 (8th Cir. 2000). The United States Supreme Court has left open the question of how to analyze claims for excessive force "beyond the point at which arrest ends and pretrial detention begins," though it has noted that "the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment" and the Eighth Amendment provides substantive protection against "excessive and unjustified" deliberate force after conviction. Graham v. Connor , 490 U.S. 386, 395 n.10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (citations omitted); see also id. at 394 n.9, 109 S.Ct. 1865 (analyzing excessive force claim under § 1983 but noting "[t]he same analysis applies to excessive force claims brought against federal law enforcement and correctional officials under Bivens [ ]"). The Courts of Appeals for the Second, Sixth, Eighth, Ninth, and Tenth Circuits have generally held the Fourth Amendment applies to excessive force claims by pretrial detainees. See Chambers v. Pennycook , 641 F.3d 898, 905 (8th Cir. 2011) ; Austin v. Hamilton , 945 F.2d 1155, 1160 (10th Cir. 1991), abrogated on other grounds by Johnson v. Jones , 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) ; Pierce v. Multnomah Cty. , 76 F.3d 1032, 1042-43 (9th Cir. 1996), cert. denied , 519 U.S. 1006, 117 S.Ct. 506, 136 L.Ed.2d 397 (1996) ; Powell v. Gardner , 891 F.2d 1039, 1044 (2d Cir. 1989) ; McDowell v. Rogers , 863 F.2d 1302, 1306–07 (6th Cir. 1988). The Courts of Appeals for the Fourth, Seventh, and Eleventh Circuits have applied the substantive due process provision of the Fifth and Fourteenth Amendments. See Riley v. Dorton , 115 F.3d 1159, 1164–66 (4th Cir. 1997) (en banc), cert. denied , 522 U.S. 1030, 118 S.Ct. 631, 139 L.Ed.2d 611 (1997), abrogated on other grounds by Wilkins v. Gaddy , 559 U.S. 34, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010) ; Cottrell v. Caldwell , 85 F.3d 1480, 1490 (11th Cir. 1996) ; Wilkins v. May , 872 F.2d 190, 192–95 (7th Cir. 1989), cert. denied , 493 U.S. 1026, 110 S.Ct. 733, 107 L.Ed.2d 752 (1990). In a case similar to this one, with allegations that excessive force was used against an arrestee upon detention, the Eighth Circuit applied the Fourth Amendment. Wilson , 209 F.3d at 715 ; see also Hicks v. Norwood , 640 F.3d 839, 842 (8th Cir. 2011) ("It is settled in this circuit that the Fourth Amendment's ‘objective reasonableness’ standard for arrestees governs excessive-force claims arising during the booking process."); Moore v. Novak , 146 F.3d 531, 535 (8th Cir. 1998) ; Peters , 979 F. Supp. 2d at 948–49.

Based on the above discussion and an independent reading of the constitutional text, the Court predicts the Iowa Supreme Court would find article I, § 8 to be self-executing under the Godfrey analysis and the source of claims for excessive force as a challenge to the government's seizure of the injured party. The Supreme Court's rationale for finding the Due Process Clause, article I, § 9, and Equal Protection Clause, article I, § 6, to be self-executing supports this prediction. Like both of those provisions, the Court has documented a series of cases demonstrating article I, § 8 is "capable of enforcement in a number of settings" and "has always been considered to be self-executing." Godfrey , 898 N.W.2d at 871–72. And although the meaning of Iowa's precedent was a point of contention between the Godfrey plurality and dissenting opinions, the Baldwin II majority appeared to affirm Godfrey 's characterization of those cases in which it emphasized article I, § 8 as a source of constitutional torts. See 915 N.W.2d at 275–76, 275 n.4. Moreover, this conclusion is consistent with the common law source of constitutional torts and the authority relied on by the Iowa Supreme Court:

The underlying rationale for the decision, in simplest terms, in that constitutional guarantees are worthy of protection on their own terms without being linked to some common-law or statutory tort, and that the courts have the obligation to enforce these rights by ensuring that each individual receives an adequate remedy for the violation of a constitutional duty.

Godfrey , 898 N.W.2d at 858 n.4 (quoting Brown v. State , 89 N.Y.2d 172, 652 N.Y.S.2d 223, 674 N.E.2d 1129, 1138 (1996) ); see also Restatement (Second) of Torts § 874A & cmt. a (Am. Law Inst. 1979) (supporting a judicially-created civil remedy for violation of a constitutional provision that "protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation"); cf. id. § 874A cmt. f , illus. 1 (providing, as an example, that a court may grant a civil remedy "in the nature of trespass" against an officer "who makes an unreasonable search of the plaintiff's home" because "[t]he Fourth Amendment ... prohibits unreasonable searches and seizures").

Godfrey also relied on decisions from other states recognizing direct causes of action under certain provisions of their own state constitutions. A number of states' supreme courts have found search and seizure provisions under their own state constitutions to be self-executing and support an independent cause of action for money damages. See, e.g. , Zullo v. State , 205 A.3d 466, 483-84 (Vt. 2019) (finding the "search and seizure" provision of the state constitution to be self-executing); Brown v. State , 89 N.Y.2d 172, 652 N.Y.S.2d 223, 674 N.E.2d 1129, 1137–38 (1996) (same); cf. Binette v. Sabo , 244 Conn. 23, 710 A.2d 688, 693–99 (1998) (finding a Bivens -like claim for money damages to be actionable directly under the "search and seizure" provision of the state constitution); Moresi v. State ex rel. Dep't of Wildlife & Fisheries , 567 So.2d 1081, 1091-93 (La. 1990) (same). But see Jones v. City of Phila. , 890 A.2d 1188, 1212–13, 1216 (Pa. Commw. Ct. 2006) (declining to recognize a separate cause of action for monetary damages under the search and seizure provision of the state constitution).

The rationale for Bivens also supports this prediction. The United States Supreme Court's ruling imposing civil damages for Fourth Amendment violations was premised on the notion that courts may use "any available remedy to make good the wrong done" where legal rights have been invaded, and recognized that money damages "have been regarded as the ordinary remedy for an invasion of personal interests in liberty." Bivens , 403 U.S. at 395–96, 91 S.Ct. 1999 (citation omitted); see also id. at 402, 91 S.Ct. 1999 (Harlan, J., concurring). A majority of the Iowa high court adopted this tenant under the Iowa Constitution in Godfrey . 898 N.W.2d at 865 ("We agree with Justice Harlan .... If these individual rights in the very first article of the Iowa Constitution are to be meaningful, they must be effectively enforced." (citing Bivens , 403 U.S. at 407, 91 S.Ct. 1999 (Harlan, J., concurring)). As was evident in its decision, Iowa has long relied on federal precedent as "persuasive authority" for the source of "a private cause of action for abusive government conduct" under search and seizure law. State v. Dewitt , 811 N.W.2d 460, 470 n.3 (Iowa 2012) ; cf. id. at 467 (declining "to consider a different state standard [under article I, § 8 ] under the circumstances" and resolving the "state and federal unreasonable seizure claims under the existing federal standards" because "both parties ma[de] arguments using only the federal constitutional standard"). Significantly, federal law has extended Bivens to claims of excessive force in the course of "searches" and "seizures." Graham , 490 U.S. at 394–96, 109 S.Ct. 1865. And the Godfrey Court's adoption of a self-execution standard for Iowa's state constitutional provisions relied heavily on Bivens and its rationale. See Godfrey , 898 N.W.2d at 845–881 (citing and referencing Bivens more than 136 times in majority and concurring opinions).

Considering the above discussion, the Court predicts the Iowa Supreme Court would recognize Bivens -like claims for excessive force used against individuals detained during the booking process under the Iowa Constitution's Search and Seizure Clause.

ii. The Inalienable Rights Clause

Article I, § 1 is known as the Inalienable Rights Clause. City of Sioux City v. Jacobsma , 862 N.W.2d 335, 348 (Iowa 2015). It provides:

All men and women are, by nature, free and equal, and have certain inalienable rights—among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.

Iowa Const. art. I, § 1. Though article I, § 1 of the Iowa Constitution is amorphous and indefinite, the Iowa Supreme Court has stated that it has "at least some constitutional bite." Jacobsma , 862 N.W.2d at 351. But "[i]f article I, section 1 is to have some independent meaning [from other clauses of the Iowa Constitution], ... it cannot simply be a redundant provision with the same substantive scope." Id. at 352 (citing Bruce Kempkes, The Natural Rights Clause of the Iowa Constitution: When the Law Sits Too Tight , 42 Drake L. Rev. 593, 634–35 (1993) ). It is true that the Inalienable Rights Clause "is not a mere glittering generality without substance and meaning," id. at 351 (quoting State v. Osborne , 154 N.W. 294, 300, 171 Iowa 678 (1915) ), though these pronouncements "tell us little about the substance of the constitutional guarantees or how they should be applied in a given case," id. At the very least, the Inalienable Rights Clause "secure[s] to the people of Iowa common law rights that pre-existed Iowa's Constitution" and "prevents only arbitrary, unreasonable legislative action that impacts an inalienable right." Atwood v. Vilsack , 725 N.W.2d 641, 651–52 (Iowa 2006). The protections under this clause are not absolute, however, and are "subject to reasonable regulation by the state in the exercise of its police power." Honomichl v. Valley View Swine, LLC , 914 N.W.2d 223, 235 (Iowa 2018) (quoting Gacke v. Pork Xtra, L.L.C. , 684 N.W.2d 168, 176 (Iowa 2004) ).

Like article I, § 8, the Iowa Supreme Court has never directly considered whether the Inalienable Rights Clause is self-executing, and the Government Defendants submit it is a matter of first impression. [ECF No. 4-1 at 12]. In both Baldwin cases, discussed above, the Iowa Supreme Court assumed for the sake of answering certified questions on immunities available to government actors defending constitutional torts that a cause of action was available. See Baldwin II , 915 N.W.2d at 260–61 (affirmatively answering the question: "Can a defendant raise a defense of qualified immunity to an individual's claim for damages for violation of article I, § 1 and § 8 of the Iowa Constitution ?"); Baldwin V , 929 N.W.2d at 698 (affirmatively answering the question: "Can the City assert qualified immunity to a claim for damages for violation of the Iowa Constitution based on its officers' exercise of ‘all due care’?"). Unlike the Search and Seizure Clause, however, the court has not engaged in any exegesis of case law interpreting article I, § 1.

Some states have interpreted their state constitution's equivalent to Iowa's Inalienable Rights Clause to not be self-executing so as to permit an independent action for money damages. See, e.g. , State v. Williams , 88 Ohio St.3d 513, 728 N.E.2d 342, 352–55 (2000) ; Shields v. Gerhart , 163 Vt. 219, 658 A.2d 924, 928–29 (1995). Others have at least held the provision lacks the definitiveness to give rise to enforceable rights. See Sepe v. Daneker , 76 R.I. 160, 68 A.2d 101, 105 (1949) ("The form of this clause is advisory; not mandatory." (citation omitted)); cf. Blea v. City of Espanola , 117 N.M. 217, 870 P.2d 755, 759 (Ct. App. 1994), cert. denied , 117 N.M. 328, 871 P.2d 984 (1994) (suggesting state provisions securing life, property, happiness, and safety are too vague to support a cause of action). This Court's review has not revealed a state that has interpreted the inalienable rights clause of its own constitution to be self-executing.

Implying an independent claim for money damages is not consistent with the way Iowa law has employed article I, § 1 in the past. A review of Iowa case law involving the Inalienable Rights Clause reflects a negative power to invalidate legislative action that unduly infringes on the common-law rights of Iowa citizens, as opposed to a positive right to civil damages. See, e.g. , Honomichl , 914 N.W.2d at 235 (re-examining the implied restrictions of the legislature's police power under the Inalienable Rights clause); Atwood , 725 N.W.2d at 647–52 (answering certified question that pre-trial detention did not violate pretrial detainees' rights under, inter alia , the Inalienable Rights Clause); Gacke , 684 N.W.2d at 171 (holding statutory immunity afforded to hog confinement facilities from nuisance suits constituted "an unreasonable exercise of the state's police power" in violation of article I, § 1 ); Gravert v. Nebergall , 539 N.W.2d 184, 186 (Iowa 1995) (considering whether a township order requiring fencing for livestock within city limits under Iowa Code chapter 359A violated the Inalienable Rights Clause); State ex rel. Burlington & Mo. River R.R. Co. v. Wapello Cty. , 13 Iowa 388, 395 (1862) (considering the state legislature's authority to confer power to counties to "subscrib[e] to the capital stock of railway companies" and "if so, ... whether it was competent for the Legislature to pass a valid act giving such power"). The parties have not cited to any case where damages were made available as a result of a violation of rights independently contained article I, § 1 of the Iowa Constitution, and this Court's review has been unable to locate any where that is the case.

Plaintiff claims "the plain language of the section is dispositive" that the Inalienable Rights Clause is self-executing, obviating the need for constitutional interpretation or case survey. [ECF No. 15-1 at 16]. The Court does not agree. Plaintiff offers no substantive guide to how an Iowa court would measure the notions of freedom, equality, happiness, or safety captured by article I, § 1. In the absence of any Iowa case discussing the Inalienable Rights Clause in the context of damages, this Court predicts the Iowa Supreme Court would find article I, § 1 to not be self-executing because it consists of lofty—though inspiring—language that sets forth aspirational principles rather than definitive adjudicative rules.

3. Adequacy of alternative remedies

Having predicted the Iowa Supreme Court would find article I, § 8 to be self-executing, but not § 1, the Court must look to whether, under the circumstances of this case, there are adequate alternative remedies that have been legislatively designated to address the harm Plaintiff claims. Even self-executing provisions of the Iowa Constitution cannot sustain a direct cause of action where the legislature has provided an adequate remedy to address the plaintiff's injury. Godfrey , 898 N.W.2d at 882, 892–93 (holding state constitutional torts are not available where "the legislature has already adopted a comprehensive remedial scheme to which the plaintiff has access"); see also id. at 880–81 (Cady, C.J., concurring in part and dissenting in part). The Government Defendants contend the Iowa Municipal Tort Claims Act ("IMTCA"), chapter 670 of the Iowa Code, precludes Plaintiff's action because "tort liability for an individual in his official municipal capacity is presumed" and "[e]very type of damages Plaintiff seeks in his Petition are available under Iowa Code section 670.9." [ECF No. 11-1 at 15–16]; see also [ECF No. 4-1 at 14-15]. But the IMTCA says otherwise.

In Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), the United States Supreme Court held Bivens actions were not precluded by the Federal Tort Claims Act ("FTCA") because Congress did not intend to make the FTCA the exclusive remedy for federal tortfeasors' constitutional wrongs. Id. at 18–20, 100 S.Ct. 1468. In examining a parallel issue concerning Godfrey claims and the IMTCA, the Iowa Supreme Court "[could not] say the same for the IMTCA." Baldwin V , 929 N.W.2d at 697 (holding the liability provisions in the IMTCA applied to Godfrey actions asserted against municipal actors).

However, Chapter 670 does not preclude Plaintiff's constitutional claim under article I, § 8 because it does not create substantive rights, only procedural ones. "The substance of any legal claim asserted under the IMTCA must arise from some source—common law, statute, or constitution—independent of the IMTCA." Venckus v. City of Iowa City , 930 N.W.2d 792, 809-10 (Iowa 2019). The municipal liability provision of chapter 670 merely permits suit against local government actors:

Except as otherwise provided in this chapter, every municipality is subject to liability for its torts and those of its officers and employees, acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function.

Iowa Code § 670.2(1) (2019). The original IMTCA, enacted in 1967, defined a "tort" covered by the act as "every civil wrong which results in wrongful death or injury to person or injury to property and includes but is not restricted to actions based upon negligence, breach of duty, and nuisance." 1967 Iowa Acts ch. 405 § 1 (codified at Iowa Code § 613A.1(3) (1971)); Baldwin V , 929 N.W.2d at 697. The IMTCA was amended several years later to become what is now the present configuration of the statute, defining "tort" as

every civil wrong which results in wrongful death or injury to person or injury to property or injury to personal or property rights and includes but is not restricted to actions based upon negligence; error or omission; nuisance; breach of duty, whether statutory or other duty or denial or impairment of any right under any constitutional provision , statute or rule of law.

1974 Iowa Acts ch. 1263, § 2 (codified at Iowa Code § 613A.1(3) (1975)); Iowa Code § 670.1(4) (2019) (emphasis added). Unlike the original version of the statute, the modern IMTCA expressly includes liability for violations of constitutional provisions. Baldwin V , 929 N.W.2d at 697. Indeed, according to the Iowa Supreme Court, "[t]he IMTCA ‘does not expand any existing cause of action or create any new cause of action against a municipality.’ " Venckus , 930 N.W.2d at 809 (quoting Iowa Code § 670.4(3) ). It instead abrogates sovereign immunity, permitting claims against municipalities, their officers, and their employees that would otherwise be barred. Id. ; Thomas v. Gavin , 838 N.W.2d 518, 521 (Iowa 2013) (explaining that the IMTCA abolished sovereign immunity for local governments and their officials). But "[t]he mere existence of the IMTCA itself does not provide any remedy that would preclude the recognition of a state constitutional claim." Venckus , 930 N.W.2d at 810.

The Government Defendants have not identified any other potential non-constitutional remedy available to Plaintiff under statutory or common law. Accordingly, the Court concludes there is no adequate alternative remedy that precludes Plaintiff's Godfrey action under the Search and Seizure Clause of the Iowa Constitution.

4. Failure to state a claim

Having determined that Plaintiff asserts a cognizable claim against the Government Defendants under the Iowa Constitution, the Court turns to the question of whether he has sufficiently pleaded it. The Court concludes he has not.

Unlike its federal counterparts, a plaintiff alleging a Godfrey action under the Iowa Constitution may impose municipal liability under a theory of respondeat superior. ¹⁰ Describing the question as one of "whether the [IMTCA] applies to a Godfrey action brought against the municipal employer of the constitutional tortfeasor," the Iowa Supreme Court was clear: yes. See Baldwin V , 929 N.W.2d at 696, 697–98. The IMTCA, as applicable to Godfrey claims, expressly imposes vicarious municipal liability on state and local government entities for the constitutional wrongs of their employees "acting within the scope of their employment or duties." Iowa Code § 670.2(1).

10 The Court called for additional briefing of the subject of "the standard of municipal liability for Godfrey claims brought under the Iowa Constitution and the effect of the IMTCA on Count V of Plaintiff's Petition," [ECF No. 22 at 4], and later clarified the issue as one going to "the viability of a direct action under the Iowa Constitution against Defendants Polk County and Sheriff William McCarthy in this case based solely on a theory of respondeat superior ," [ECF No. 23 at 1]. The parties filed responsive briefs detailing their positions. See [ECF Nos. 25; 26].

Defendants contend Plaintiff's Petition fails to state a claim even under a theory of vicarious liability, however, because Herndon's alleged assault did not occur within the scope of his employment duties. [ECF No. 25 at 2–3].

[F]or an act to be within the scope of employment the conduct complained of "must be of the same general nature as that authorized or incidental to the conduct authorized." Thus, an act is deemed to be within the scope of one's employment "where such act is necessary to accomplish the purpose of the employment and is intended for such purpose. The question, therefore, is whether the employee's conduct "is so unlike that authorized that it is ‘substantially different.’ "

Godar v. Edwards , 588 N.W.2d 701, 706 (Iowa 1999) (quoting Sandman v. Hagan , 261 Iowa 560, 154 N.W.2d 113, 117 (1967) ). Iowa courts adhere to the factors laid out in the Second Restatement of Agency to determine whether tortious acts committed by an employee can be vicariously attributable to his or her employer:

(a) whether or not the act is one commonly done by such [agent];

(b) the time, place and purpose of the act;

(c) the previous relations between the [principal] and the [agent];

(d) the extent to which the business of the master is apportioned between different [agents];

(e) whether or not the act is outside the enterprise of the [principal] or, if within the enterprise, has not been entrusted to any [agent];

(f) whether or not the [principal] has reason to expect that such an act will be done;

(g) the similarity in quality of the act done to the act authorized;

(h) whether or not the instrumentality by which the harm is done has been furnished by the [principal] to the [agent];

(i) the extent of departure from the normal method of accomplishing an authorized result; and

(j) whether or not the act is seriously criminal.

Id. (quoting Restatement (Second) of Agency § 229(2) (1957) ). Explained another way, the inquiry centers on "whether or not it is just that the loss resulting from the [agent]'s acts should be considered as one of the normal risks to be borne by the business in which the [agent] is employed." Restatement (Second) of Agency § 229 cmt. a. Assault and battery—both intentional torts—are not typically within the employment duties of a county jailer. See Godar , 588 N.W.2d at 707 (concluding sexual abuse by a school district employee did not occur within the scope of his employment); Riniker v. Wilson , 623 N.W.2d 220, 232 (Iowa Ct. App. 2000) (holding sex abuse by general manager of company "was not an act committed within the scope of his employment for which the corporation may be held liable"); see also Walderbach v. Archdiocese of Dubuque, Inc. , 730 N.W.2d 198, 202 (Iowa 2007) (noting the intentional tort of sex abuse was "not ordinarily considered to be within the scope of one's employment" and rejecting plaintiff's argument that the defendant "constructively ratified" such acts to be vicariously liable).

In this case, Plaintiff's own allegations defeat his claim that Herndon's alleged unconstitutional conduct can be vicariously attributed to the Government Defendants under a theory of respondeat superior. Taking Plaintiff's allegations as true, he has failed to plead facts that could be considered to fall within Herndon's scope of employment with the Polk County Jail. See Sandman , 154 N.W.2d at 118 (noting the question whether an employee's conduct is within his scope of employment is a question of law for the court). Claims of excessive force certainly can arise within the scope of an officer's employment. But Plaintiff's version of events, as pleaded in his petition, tells a different story—one of a jailer who went out of his way to enter the locked jail cell of an unarmed detainee to harm that individual for purposes unrelated to any official function of maintaining order of the facility or securing the safety of staff members. See [ECF No. 1-1 ¶¶ 43-51]. The acts complained of seem to suggest criminality, serving the private interests of Herndon as opposed to those of Polk County and deviating substantially from his official duties. The Government Defendants may have supplied Herndon with the ID badge he used to access the secure jail cell holding Plaintiff, but Plaintiff does not allege any facts that would indicate Herndon confronted and exerted force against him in a way designed to fulfill his obligations as a Polk County jailer. In fact, Plaintiff has not even pleaded facts pertaining to the scope of Herndon's employment duties are at all, let alone that his conduct was intended to fulfill them.

Instead, Plaintiff's account of the events giving rise to this lawsuit, as pleaded in his Petition, rests on the allegation that Herndon was acting pursuant to an unofficial Polk County custom or practice of using excessive force on pre-trial detainees. The problem is that Plaintiff has not properly pleaded such an action. Herndon's use of force is undeniably in violation of official Polk County policy. And as discussed above, Plaintiff has not alleged with sufficient particularity—or any particularity—a custom or practice by Polk County or Sheriff McCarthy condoning the use of such force that his conduct could be construed to have been intended to serve. Finally, Plaintiff has pleaded no facts to suggest the Government Defendants knew about any violent and indecent tendencies of Herndon to expect such conduct might occur. He offers nothing more than the boilerplate recitation that "Herndon's use of excessive force ... was foreseeable." See [ECF No. 1-1 ¶ 101]. Such pleadings are insufficient as a matter of law. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ; Twombly , 550 U.S. at 557, 127 S.Ct. 1955. Allowing Plaintiff to proceed in this case on a theory of respondeat superior based on his pleadings would be inconsistent with the Court's previous determination that Plaintiff insufficiently pleaded an unofficial policy, custom, or practice condoning the use of excessive force.

Absent vicarious liability, Plaintiff is left alleging an unconstitutional policy, custom, or practice. Resting on nearly identical allegations as his § 1983 claim, Plaintiff's Godfrey action under article I, § 8 of the Iowa Constitution fails to meet the federal pleading standard of Rule 8(a)(2) for the same reasons. Count V of Plaintiff's Petition must therefore be dismissed for failure to state a claim upon which relief can be granted.

IV. CONCLUSION

For the reasons discussed above, the Government Defendants' Motions to Dismiss are GRANTED. Counts IV and V of Plaintiff's Petition asserting federal claims under 42 U.S.C. § 1983 and state claims under article I, §§ 1 and 8 against the Government Defendants are DISMISSED.

IT IS SO ORDERED.