                                                       [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                          Dec. 03, 2009
                           No. 09-13827                 THOMAS K. KAHN
                       Non-Argument Calendar                CLERK
                     ________________________

              D. C. Docket No. 07-00465-CV-OC-10-GRJ

PRECIOUS ROCKER,


                                                         Plaintiff-Appellant,

                                versus

CITY OF OCALA, FLORIDA,
et al.,

                                                                Defendants,

SHERIFF OF MARION COUNTY, FLORIDA,
in his official capacity,

                                                        Defendant-Appellee.


                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Florida
                   _________________________

                          (December 3, 2009)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

      Precious Rocker appeals the district court’s order of summary judgment and

award of costs in favor of the Marion County Sheriff on her claim under 42 U.S.C.

§ 1983 that the Sheriff’s failure to train officers under his supervision resulted in

the violation of her Fourth Amendment rights.1 We affirm both the district court’s

summary judgment order and its award of costs.

                                         I. Background

      On September 11, 2006, members of the Marion County Multi-Agency Drug

Enforcement Team (“MADET”) videotaped an unidentified man and woman

selling illegal drugs to Peter Barbato, a confidential informant. On October 25,

2006, MADET detective T. Liberatore displayed a photographic lineup to Barbato.

Barbato immediately identified the male suspect but could not identify the female

suspect from the photographic lineup. Barbato then asked to see the videotape

surveillance and incorrectly identified the female suspect as Rocker.

      Liberatore added the drug charges against Rocker, who was already in the

Marion County Jail on unrelated charges.2 The Sheriff’s Office never inquired into



      1
          The district court dismissed Rocker’s state law claims without prejudice.
      2
          The unrelated charges were dropped on December 1, 2006.

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Rocker’s alibi and failed to notice that the female suspect had a visible deformity

and different body type from Rocker. Rocker repeatedly protested her innocence

and was released without charge on April 13, 2007.

       Rocker sued the Sheriff of Marion County in his official capacity under 42

U.S.C. § 1983, claiming that the Sheriff’s lack of a policy or procedure for training

officers in identifying suspects from photographic lineups led to a violation of her

Fourth Amendment rights. Deposition testimony pointed to a total of three

incorrect photographic lineup identifications, all made by Barbato as part of his

576 identifications for MADET. The district court issued a protective order that

prevented Rocker from deposing the Sheriff, granted the Sheriff’s motion for

summary judgment, and awarded him costs. Rocker appeals, arguing that (1) the

district court erred in granting summary judgment, and (2) the district court abused

its discretion in taxing the Sheriff’s costs to her.

                                     II. Discussion

       We review the district court’s grant of summary judgment de novo and

construe all reasonable doubts about the facts in favor of the non-movant. Gilmour

v. Am. Nat’l Red Cross, 385 F.3d 1318, 1321 (11th Cir. 2004). We review the

district court’s protective order and decision to tax costs to Rocker for an abuse of

discretion. Chapman v. AI Transp., 299 F.3d 1012, 1039 (11th Cir. 2000) (en



                                             3
banc).

         Rocker argues that summary judgment was improper because § 1983

liability is appropriate when the lack of a policy or procedure for training officers

demonstrates deliberate indifference to constitutional rights. See Rivas v.

Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991). She claims that the Sheriff’s lack

of a training policy demonstrated that he was deliberately indifferent to arrests

made without probable cause.

         Responsible policy makers or the governmental entity they represent may be

held liable under § 1983 when a constitutional injury suffered by the plaintiff is the

direct result of the implementation of a custom or policy of the government. The

failure to establish a policy or procedure for adequately training officers may

constitute a “policy” giving rise to § 1983 liability, even in cases where the

supervising official was not personally involved. City of Canton v. Ohio, 489 U.S.

378 (1989). Taken in the light most favorable to Rocker, the facts show that the

Sheriff did not have a policy for training his officers in the use of photographic

lineups.

         The next question is whether this lack of a policy demonstrated a deliberate

indifference to Rocker’s Fourth Amendment rights. Rocker relies on Rivas v.

Freeman, in which we found deliberate indifference when the defendant sheriff



                                            4
“knew of prior instances of mistaken identity, but allowed his deputies to detain

individuals even where discrepancies existed.” 940 F.2d 1491, 1496 (11 Cir.

1991); see also Hernandez v. Metro-Dade County, 992 F. Supp. 1365 (S.D. Fla.

1997). She claims that the Sheriff had actual or constructive knowledge of

previous misidentifications and was deliberately indifferent toward the need for a

new photographic lineup policy.

       Rivas must be read alongside our other cases discussing § 1983 liability for a

failure to establish training policies. The Supreme Court has made it clear that, in

this context, deliberate indifference only arises in “limited circumstances” and

requires a “deliberate” or “conscious” choice. City of Canton, 489 U.S. at 387-

389. Moreover, “[b]efore such liability arises . . . the need for such training must

be plainly obvious to Department decisionmakers.” Wright v. Sheppard, 919 F.2d

665, 674 (11th Cir. 1990). The need for training is not plainly obvious unless there

is “evidence of a history of widespread prior abuse.” Id.

       In this case, the evidence revealed only three mistaken identifications out of

hundreds. Barbato alone had an error rate of less than one percent.3 In two of

those instances, evidence showed that he confused siblings with a strong family

resemblance. These three misidentifications are not enough to create a genuine


       3
       There is no evidence in the record reporting misidentifications by other confidential
informants.

                                                5
issue of material fact as to whether there was a history of widespread abuse that

made it plainly obvious training procedures were required.

      Rocker also claims that summary judgment was inappropriate because the

court abused its discretion by refusing to allow her to depose the Sheriff. See

Jones v. Columbus, 120 F.3d 248 (11th Cir. 1997) (holding that parties opposing

summary judgment must be allowed adequate opportunity to complete discovery

before consideration of the motion). The court granted the protective order on the

condition that Rocker could depose the Sheriff upon establishing that he had

unique knowledge about her case. The Sheriff made all of his officers available for

depositions; they should have been able to testify to the incidence of

misidentifications in MADET. Thus, the court did not abuse its discretion in

requiring Rocker to make a special showing to depose the Sheriff.

      Finally, Rocker argues that the district court abused its discretion in taxing

costs to her because she was indigent. In support, she points to a sworn declaration

stating that she is unemployed, has not earned more than $2,200 in a year, and that

her son is on Medicaid. The financial status of the non-prevailing party, however,

is a factor that the court “may, but need not consider, in its award of costs pursuant

to Rule 54(d).” Chapman, 229 F.3d at 1039. Thus, the district court did not abuse

its discretion in entering costs against Rocker.



                                           6
    The district court’s order of summary judgment and award of costs are

AFFIRMED.




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