              Case: 18-10487    Date Filed: 05/09/2019   Page: 1 of 23


                                                                         [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-10487
                           ________________________

                       D.C. Docket No. 2:16-cv-01521-MHH

ANTHONY PIAZZA,
as personal representative of the Estate of
Ricky DeAngelo Hinkle, deceased,

                                                                          Plaintiff,

NYREEKIS JARNELL HUNTER,
as personal representative of the Estate of
Ricky DeAngelo Hinkle, deceased,

                                                                Plaintiff - Appellee,


                                        versus

JEFFERSON COUNTY, ALABAMA,
an Alabama county, individually, et al,

                                                                         Defendants,

MIKE HALE,
RON EDDINGS,
HABIMANA DUKUZUMUREMYI,
each individually,

                                                          Defendants - Appellants.
               Case: 18-10487       Date Filed: 05/09/2019       Page: 2 of 23


                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                             ________________________

                                       (May 9, 2019)

Before TJOFLAT, NEWSOM, and GILMAN, * Circuit Judges.

NEWSOM, Circuit Judge:

       Ricky Hinkle died in the Birmingham City Jail after being shocked with a

taser, twice. Hinkle’s son, Nyreekis Hunter, brought suit under 42 U.S.C. § 1983

alleging several claims on his behalf, including, as relevant here, (1) an excessive-

force claim against Deputy Habimana Dukuzumuremyi and (2) supervisory-

liability claims for excessive force and deliberate indifference to Hinkle’s serious

medical needs against Sheriff Mike Hale and Captain Ron Eddings. The officers

moved to dismiss Hunter’s suit based on qualified immunity, the district court

denied their motion, and the officers now appeal.

       After careful review, we agree in part and disagree in part with the district

court’s decision. We agree that the facts as Hunter has pleaded them show that

Deputy Dukuzumuremyi violated Hinkle’s clearly established constitutional right

to be free from excessive force. In particular, we hold that Dukuzumuremyi

crossed the constitutional line, and clearly so, when, having already tased Hinkle


*
 Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
                                               2
                Case: 18-10487        Date Filed: 05/09/2019        Page: 3 of 23


once—dropping him to the floor, rendering him motionless, and causing him to

urinate on himself—Dukuzumuremyi shocked him again a full eight seconds later.

We disagree, however, that Hunter’s allegations show—as they must to support a

supervisory-liability claim—a causal connection between either the use of force

against Hinkle or any deliberate indifference to Hinkle’s serious medical needs, on

the one hand, and any policy or custom implemented by Sheriff Hale or Captain

Eddings, on the other. Accordingly, we affirm the district court’s decision to deny

qualified immunity to Deputy Dukuzumuremyi but reverse its decision to deny

qualified immunity to Sheriff Hale and Captain Eddings.

                                                 I

       Ricky Hinkle, who suffered from alcoholism, heart disease, and depression,

was arrested while “visibly intoxicated” and was taken to the Jefferson County Jail

in Bessemer, Alabama. 1 The next day, he was transferred to the Birmingham City

Jail. Soon thereafter, he began suffering from alcohol-withdrawal symptoms and

exhibiting delusional behavior. Jail officers moved Hinkle three different times

before eventually (and presumably due to his deteriorating condition) placing him

in a cell on Level 3, where Deputies Habimana Dukuzumuremyi and Christopher

Cotten were working.


1
 The factual allegations in this case are largely undisputed, but because this appeal arises in a
motion-to-dismiss posture, where the parties’ memories diverge we adopt Hunter’s re-telling.
See Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003).
                                                 3
              Case: 18-10487    Date Filed: 05/09/2019    Page: 4 of 23


      Shortly after Hinkle arrived on Level 3, Dukuzumuremyi realized that he

couldn’t see him on the video monitor, so he called to him over the loudspeaker.

When Hinkle didn’t respond, Cotten went to investigate and found Hinkle in the

corner of his cell, wearing only underpants and shoes. When Cotten asked Hinkle

why he was in the corner, Hinkle responded that he “wanted to die.” At this,

Cotten decided to move Hinkle to a padded cell. He walked Hinkle toward the cell

and asked him to remove his shoes. Hinkle initially obeyed but then ran down the

hallway to the bathroom and grabbed a shower curtain. Cotten took the shower

curtain away from Hinkle shortly before Dukuzumuremyi arrived on the scene.

      After the officers attempted three times to pull Hinkle into his new cell,

Dukuzumuremyi fired his taser, hitting Hinkle on the left side of his chest just

above his heart. As a result of that taser shock—which lasted 5 seconds—Hinkle

fell to the floor on his right side and urinated on himself. Dukuzumuremyi then

ordered Hinkle to roll over to be handcuffed, but Hinkle remained unresponsive.

Eight seconds after the end of the first shock, and while Hinkle still lay motionless

(and wet) on the ground, Dukuzumuremyi tased him again, this time on the front

left side of his neck. Shortly after the second shock, Hinkle went into cardiac

arrest. He was taken to the emergency room, where he was pronounced dead.




                                          4
                Case: 18-10487        Date Filed: 05/09/2019       Page: 5 of 23


       Hinkle’s son Nyreekis Hunter, acting as personal representative of Hinkle’s

estate, brought suit under 42 U.S.C. § 1983 on Hinkle’s behalf.2 As relevant here,

Hunter sued Deputy Dukuzumuremyi for excessive force and Deputy Cotten for

failure to intervene, and both deputies for deliberate indifference to Hinkle’s

serious medical needs. He also sued Sheriff Hale and Captain Eddings on a

supervisory-liability theory based on the excessive-force and deliberate-

indifference claims. The officers moved to dismiss on qualified-immunity

grounds.3

       The district court granted in part and denied in part the officers’ motion to

dismiss. The court dismissed the deliberate-indifference claim against

Dukuzumuremyi and Cotten, finding that the complaint “contain[ed] no allegations

to indicate that either deputy had subjective knowledge of the decedent’s medical

condition.” The court also dismissed the failure-to-intervene claim against

Cotten. 4 But the court denied the motion to dismiss as to (1) the excessive-force




2
 The initial complaint was filed by Anthony Piazza, who is not related to Hinkle. After some
dispute over whether Piazza could properly represent Hinkle’s estate, Hunter replaced Piazza as
Hinkle’s personal representative.
3
  Hunter also brought state-law claims against each officer for negligence and wrongful death;
the district court dismissed each claim on state-law grounds.
4
 Deputy Cotten is not a party to this appeal because the district court dismissed all claims against
him. Two other defendants, Dr. David Hicks and Advanced Correctional Healthcare, were also
named in Hunter’s complaint—for exhibiting deliberate indifference to Hinkle’s serious medical
needs—but neither is a party to this appeal.

                                                 5
                Case: 18-10487       Date Filed: 05/09/2019        Page: 6 of 23


claim against Dukuzumuremyi and (2) the supervisory-liability claims against Hale

and Eddings. Dukuzumuremyi, Hale, and Eddings timely appealed.5

                                                II

       We review de novo a district court’s denial of qualified immunity. Cottone

v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). Qualified immunity shields a

government official from liability unless he violates “clearly established statutory

or constitutional rights of which a reasonable person would have known.” Foy v.

Holston, 94 F.3d 1528, 1532 (11th Cir. 1996). An officer asserting a qualified-

immunity defense bears the initial burden of showing that he was “acting within

his discretionary authority.” Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th

Cir. 2007). After the officer makes this showing—and here, it is undisputed—the

burden shifts to the plaintiff to show that (1) the officer violated a constitutional

right and (2) the right was clearly established at the time of the alleged

violation. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir.

2004). We may consider these two prongs in either order; an official is entitled to




5
  We have jurisdiction over the officers’ interlocutory appeal under 28 U.S.C. § 1291 because the
district court denied qualified immunity based on questions of law—namely, whether the officers
violated Hinkle’s constitutional rights and whether those rights were clearly established. See
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (“[A] district court’s denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within
the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”).


                                                6
                Case: 18-10487        Date Filed: 05/09/2019       Page: 7 of 23


qualified immunity if the plaintiff fails to establish either. Jacoby v. Baldwin

County, 835 F.3d 1338, 1344 (11th Cir. 2016).

       We start with the excessive-force claim against Deputy Dukuzumuremyi,

and then move to the supervisory-liability claims against Sheriff Hale and Captain

Eddings.

                                                A

                                                 1

       First things first. What constitutional provision governs the use of force in

this case, and what doctrinal standard guides our analysis? While the Fourth

Amendment prevents the use of excessive force during arrests, see Graham v.

Connor, 490 U.S. 386, 388 (1989), and the Eighth Amendment serves as the

primary source of protection against excessive force after conviction, see Whitley

v. Albers, 475 U.S. 312, 327 (1986), it is the Fourteenth Amendment that protects

those who exist in the in-between—pretrial detainees. Garrett v. Athens–Clarke

County, 378 F.3d 1274, 1279 n.11 (11th Cir. 2004).6

       That pretrial detainees fall within the Fourteenth Amendment’s ambit dates

to the Supreme Court’s decision in Bell v. Wolfish, 441 U.S. 520 (1979). The


6
  Although some courts have extended Fourth Amendment protections into the pretrial detention
phase, see, e.g., Aldini v. Johnson, 609 F.3d 858, 866 (6th Cir. 2010), “[n]either [this Court] nor
the Supreme Court has decided whether the Fourth Amendment continues to provide individuals
with protection from excessive force beyond the point at which an arrest ends and pretrial
detention begins,” J W by & through Tammy Williams v. Birmingham Board of Education, 904
F.3d 1248, 1259 (11th Cir. 2018).
                                                 7
              Case: 18-10487     Date Filed: 05/09/2019     Page: 8 of 23


Court explained there that the “proper inquiry” when “evaluating the

constitutionality of conditions or restrictions of pretrial detention” is “whether

those conditions amount to punishment of the detainee.” Id. at 535. “For under

the Due Process Clause,” the Court continued, “a detainee may not be punished

prior to an adjudication of guilt in accordance with due process of law.” Id.

      Although pretrial detainees’ excessive-force claims have been analyzed

under the Fourteenth Amendment since Bell, the constitutional inquiry—at least in

this Circuit—has long resembled the one that governs prisoners’ excessive-force

claims under the Eighth Amendment. Historically, both prisoners and pretrial

detainees needed to show not only that a jail official deliberately used excessive

force, but also that the official did so “maliciously or sadistically for the very

purpose of causing harm.” Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir.

2005), overruled by Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). All

that changed a few years back, though, when the Supreme Court clarified that,

unlike a prisoner bringing an Eighth Amendment excessive-force claim, a pretrial

detainee raising a Fourteenth Amendment claim needn’t prove an officer’s

subjective intent to harm but instead need show only that “the force purposely or

knowingly used against him was objectively unreasonable.” Kingsley, 135 S. Ct.

at 2473.




                                           8
              Case: 18-10487     Date Filed: 05/09/2019    Page: 9 of 23


      Harking back to Bell, the Kingsley Court explained that, unlike in Eighth

Amendment cases, there is no need in the pretrial-detainee context to determine

“when punishment is unconstitutional” because a pretrial detainee has not yet been

adjudicated guilty and thus may not be punished at all. Id. at 2475 (emphasis

added). Although, under Bell, impermissible “punishment” could mean force

deployed with a subjective, “expressed intent to punish,” it also could mean force

that, as an objective matter, is “not rationally related to a legitimate governmental”

purpose or is “excessive in relation to that purpose.” Id. at 2473–74. After

Kingsley, then, if force used against a pretrial detainee is more severe than is

necessary to subdue him or otherwise achieve a permissible governmental

objective, it constitutes “punishment” and is therefore unconstitutional. Notably,

inasmuch as it entails an inquiry into the objective reasonableness of the officers’

actions, the Fourteenth Amendment standard has come to resemble the test that

governs excessive-force claims brought by arrestees under the Fourth Amendment.

Compare Kingsley, 135 S. Ct. at 2472–73 (holding that a pretrial detainee in the

Fourteenth Amendment context “must show only that the force purposely or

knowingly used against him was objectively unreasonable”), with Graham, 490

U.S. at 397 (explaining that the Fourth Amendment excessive-force inquiry asks

“whether the officers’ actions are ‘objectively reasonable’ in light of the facts and




                                           9
             Case: 18-10487     Date Filed: 05/09/2019   Page: 10 of 23


circumstances confronting them, without regard to their underlying intent or

motivation”).

      Obviously, “legitimate interests”—including the need to “preserve internal

order and discipline” and “maintain institutional security”—may at times require

jail officers to use force. Kingsley, 135 S. Ct. at 2473 (citation omitted). And of

course, officers facing disturbances are often forced to make “split-second

judgments” about the need for such force “in circumstances that are tense,

uncertain, and rapidly evolving.” Id. at 2474 (quoting Graham, 490 U.S. at 397).

Because of this, we can’t (and won’t) evaluate a pretrial detainee’s excessive-force

challenge in a glib, post-hoc fashion or “with the 20/20 vision of hindsight.” Id. at

2473. Instead, we must do our best to consider the situation through the lens of “a

reasonable officer on the scene.” Id.

      How do we know, then, when force is reasonable and when it is “excessive

in relation to its purpose”? Well, as relevant to this case, our decisions make one

thing clear: “Once a prisoner has stopped resisting there is no longer a need for

force, so the use of force thereafter is disproportionate to the need.” Danley v.

Allen, 540 F.3d 1298, 1309 (11th Cir. 2008) (emphasis added), abrogated on other

grounds by Kingsley, 135 S. Ct. 2466. Accordingly, “[w]hen jailers continue to

use substantial force against a prisoner who has clearly stopped resisting—whether

because he has decided to become compliant, he has been subdued, or he is


                                          10
               Case: 18-10487        Date Filed: 05/09/2019       Page: 11 of 23


otherwise incapacitated—that use of force is excessive.” Id. (emphasis added); see

also Ort v. White, 813 F.2d 318, 327 (11th Cir. 1987) (“A [F]ourteenth

[A]mendment violation occurs . . . where prison officers continue to employ force

or other coercive measures after the necessity for such coercive action has

ceased.”); Bozeman, 422 F.3d at 1271–72 (finding excessive force when officers

continued to suffocate a detainee by pushing his face into a mattress after he had

stopped struggling and said he’d had enough), overruled on other grounds by

Kingsley, 135 S. Ct. 2466.7 In other words, because force in the pretrial detainee

context may be defensive or preventative—but never punitive—the continuing use

of force is impermissible when a detainee is complying, has been forced to comply,

or is clearly unable to comply.

                                                2

       In the case before us, then, we must determine whether the force used

against Hinkle was objectively unreasonable—i.e., whether it was “excessive in

relation to [its] purpose.” Kingsley, 135 S. Ct. at 2473–74. To briefly recap, the

critical events began when Hinkle broke away from Cotten, ran down the hallway,


7
  To be clear, Bozeman and Danley remain relevant to our inquiry even though both employed
the more stringent pre-Kingsley standard of proof: whether force was applied “maliciously or
sadistically for the very purpose of causing harm.” Bozeman, 422 F.3d at 1272. Because
proving both that the force applied in a given situation was objectively excessive and that it was
applied “maliciously or sadistically for the very purpose of causing harm” will almost invariably
be more difficult than proving only that the force used was objectively excessive, these cases
continue to provide pertinent examples of excessive force in the pretrial-detainee context.

                                                11
             Case: 18-10487      Date Filed: 05/09/2019    Page: 12 of 23


and grabbed a shower curtain. (Not the curtain rod, mind you—the curtain.) After

three unsuccessful attempts to lead Hinkle into his cell, Dukuzumuremyi fired his

taser, hitting Hinkle just above the heart with a five-second shock. Eight seconds

after the first shock ended—and with Hinkle still prostrate on the ground, and

having wet himself—Dukuzumuremyi tased Hinkle again.

      The parties don’t dispute that the first shock was a permissible use of force

given Hinkle’s resistance and the officers’ need to “preserve internal order and

discipline” and “maintain institutional security.” See Kingsley, 135 S. Ct. at 2473.

The issue is the second shock. Dukuzumuremyi asserts that the second shock

doesn’t constitute excessive force in light of (1) Hinkle’s failure to roll over to be

handcuffed “after being ordered—and being given an opportunity—to do so,” and

(2) the “split-second decisions” that jail officers must make. The facts alleged,

however, undermine both assertions.

      Again, according to Hunter’s complaint, following the first taser shock

Hinkle fell to the floor, lay motionless, and urinated on himself. Even so,

Dukuzumuremyi contends that because Hinkle failed to obey the subsequent order

to roll over and be handcuffed, he was not yet fully compliant. Because Hinkle

was not following commands, the argument goes, the second shock couldn’t have

crossed the constitutional line. Oral Arg. Tr. 7:07. Wrong. It seems to us totally

unreasonable to expect that a man who is lying on the floor immobilized—and


                                           12
             Case: 18-10487      Date Filed: 05/09/2019    Page: 13 of 23


incontinent—following a taser shock should pep up, roll over, and submit to

handcuffing within eight seconds. But, Dukuzumuremyi counters, Hunter’s

complaint doesn’t specifically allege that Hinkle “could not” roll over, only that he

“did not.” Oral Arg. Tr. 7:45. Come on. The only reasonable inference is that

Hinkle, who was lying motionless on the floor after a five-second taser shock—

unable to hold his own urine—“did not” immediately roll over because he “could

not.” (Really, is there any surer indication of a grown man’s inability to control his

bodily functions than his wetting himself?)

      The same facts undermine Dukuzumuremyi’s contention that the second

shock should be swept into the zone of reasonableness by the deference owed an

officer’s split-second decisions. Although we don’t for a minute discount the

difficult decisions that jail officers must make in the heat of a tussle, simply

counting to eight aloud reveals the problem with Dukuzumuremyi’s argument. In

eight seconds, you can tie a shoe, sing the chorus of “Row, Row, Row Your Boat,”

or complete a qualified rodeo bull ride. And in eight seconds, we believe, any

reasonable officer would have concluded that a detainee who lay inert on the floor,

having soiled himself, was no longer putting up a fight. See Kingsley, 135 S. Ct. at

2473 (listing “whether the plaintiff was actively resisting” and “any effort made by

the officer to temper or to limit the amount of force used” as factors potentially

relevant to the excessive-force determination).


                                          13
             Case: 18-10487     Date Filed: 05/09/2019   Page: 14 of 23


      Our conclusion is fortified by additional considerations that the Supreme

Court mentioned in Kingsley that “bear on the reasonableness or unreasonableness

of the force used,” including the severity of the security issue posed by the detainee

and the threat reasonably perceived by the officer. See Kingsley, 135 S. Ct. at

2473. Although officers may (of course) use force to “preserve internal order and

discipline” and “maintain institutional security,” the severity of the problem and

the corresponding risk to the officers in this case were—from the very outset—

exceedingly minimal. See id. Instead of facing, say, a man armed with a knife

running toward them, the officers here faced a man armed with a shower curtain

running away from them. See, e.g., Shaw v. City of Selma, 884 F.3d 1093, 1099

(11th Cir. 2018) (officer entitled to qualified immunity on an excessive-force claim

after shooting a mentally-ill man walking toward him with a hatchet); Smith v.

LePage, 834 F.3d 1285, 1294–95 (11th Cir. 2016) (officer entitled to qualified

immunity on an excessive-force claim when a suspect holding a knife refused to

comply with orders to disarm himself); Singletary v. Vargas, 804 F.3d 1174, 1185

(11th Cir. 2015) (officer entitled to qualified immunity on an excessive-force claim

based on his reasonable belief that a car rolling toward him presented a deadly

threat). Although non-compliant, Hinkle had neither threatened nor attempted to

harm the officers. While we don’t question Dukuzumuremyi’s split-second

decision to deploy his taser once following several unsuccessful attempts to lead


                                         14
             Case: 18-10487     Date Filed: 05/09/2019    Page: 15 of 23


Hinkle into his cell, we see no legitimate basis for the second shock, particularly

considering (1) that the first shock had immobilized Hinkle and (2) the minimal

threat to order, safety, and security that Hinkle posed even from the outset.

      At the end of the day the question before us is this: Is it excessive to tase for

a second time a man who, as a result of an initial shock, is lying motionless on the

floor and has wet himself, and who presented only a minimal threat to begin with?

Undoubtedly, yes. We hold that, based on the allegations in Hunter’s complaint,

the force used against Hinkle was excessive, and thus unconstitutional.

                                           3

      Of course, to overcome Dukuzumuremyi’s qualified-immunity defense,

Hunter must further show that the law that governs his case was “clearly

established” at the time of the alleged violation. To qualify, a legal principle must

be “settled” and “clear enough that every reasonable official would interpret it to

establish the particular rule the plaintiff seeks to apply.” District of Columbia v.

Wesby, 138 S. Ct. 577, 589–90 (2018). The critical question is whether the law

gave the officer “fair warning” that his conduct was unconstitutional. Glasscox v.

City of Argo, 903 F.3d 1207, 1217–18 (11th Cir. 2018) (citing Hope v. Pelzer, 536

U.S. 730, 741 (2002)).

      Here, it certainly did. It was more than ten years ago now that this Court

held, in no uncertain terms, that “[w]hen jailers continue to use substantial force


                                          15
               Case: 18-10487        Date Filed: 05/09/2019       Page: 16 of 23


against a prisoner who has clearly stopped resisting—whether because he has

decided to become compliant, he has been subdued, or he is otherwise

incapacitated—that use of force is excessive.” Danley, 540 F.3d at 1309; see also

id. (“Once a prisoner has stopped resisting there is no longer a need for force, so

the use of force thereafter is disproportionate to the need.”).8 And Danley was no

innovation; for decades our decisions have embraced and reiterated the principle

that an officer may not continue to use force after a detainee has clearly stopped

resisting. See Skrtich v. Thornton, 280 F.3d 1295, 1303 (11th Cir. 2002)

(“[G]overnment officials may not use gratuitous force against a prisoner who has

been already subdued or, as in this case, incapacitated.”); Williams v. Burton, 943

F.2d 1572, 1576 (11th Cir. 1991) (“The basic legal principle is that once the

necessity for the application of force ceases, any continued use of harmful force

can be a violation of the Eighth and Fourteenth Amendments.”); Ort, 813 F.2d at

327 (“A [F]ourteenth [A]mendment violation occurs . . . where prison officers

continue to employ force or other coercive measures after the necessity for such

coercive action has ceased.”).9

8
  Again, although Kingsley changed the nature of the inquiry—by dropping the requirement that
a plaintiff prove the officers’ subjective malicious intent—it did not change the law with respect
to the objective reasonableness of using force against unresisting subjects.
9
 The same basic rule guides our Fourth Amendment cases concerning the use of force against
unresisting or subdued arrestees. See, e.g., Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir.
2008) (punching a suspect in the stomach constituted excessive force when he was already
subdued and not struggling); Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002) (slamming a
suspect’s head onto the hood of her car constituted excessive force when she no longer posed a
                                                16
               Case: 18-10487       Date Filed: 05/09/2019      Page: 17 of 23


       To be clear, it is no answer to say that Danley involved pepper spray, Skrtich

kicks and punches, Williams four-point restraints, etc.—and that none of those

cases concerned the use of a taser specifically. It’s true, of course, that to defeat

qualified immunity a rule must be specific enough that an act’s unlawfulness

“follow[s] immediately from the conclusion that the rule was firmly established,”

Wesby, 138 S. Ct. at 590 (citation omitted). But we have never suggested that the

longstanding prohibition on a jail officer’s use of force on an incapacitated

detainee turns on as fine a point as the particular weapon deployed. And indeed, in

the analogous Fourth Amendment context, we have flatly rejected that very

distinction—in a case involving a taser, no less. In Fils v. City of Aventura, we

considered allegations that police officers had impermissibly tased a non-violent,

unresisting suspect. 647 F.3d 1272, 1288–90 (11th Cir. 2011). In finding the law

prohibiting the tasing clearly established, we relied on one case holding that an

officer had used excessive force when he pepper-sprayed a secured suspect in the

face as she sat shackled in the backseat of his cruiser, see id. at 1289 (citing

Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002)), another holding that an officer

had used excessive force when he punched a handcuffed and unresisting plaintiff

in the stomach, see id. (citing Hadley v. Gutierrez, 526 F.3d 1324 (11th Cir.



threat to the officer nor a flight risk); Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir.
2000) (kicking a suspect in the ribs constituted excessive force when he was subdued and no
longer resisting).
                                               17
               Case: 18-10487        Date Filed: 05/09/2019        Page: 18 of 23


2008)), and yet another holding that an officer had used excessive force when he

sicced his police dog on a suspect who was lying still on the ground, see id. (citing

Priester v. City of Riviera Beach, 208 F.3d 919 (11th Cir. 2000)). We emphasized

that “[a]lthough none of these cases involved tasers,” there was “no meaningful

distinction under these circumstances” between the use of a taser on an unresisting

suspect and the use of pepper spray, fists, or police dogs. Id.; see also Wate v.

Kubler, 839 F.3d 1012, 1022 (11th Cir. 2016) (looking not only to a taser-specific

case but also to cases involving a gut-punch and a head-slam to determine that the

use of force on an unresisting arrestee violated clearly established law).

       So too here. There is “no meaningful distinction” between pepper spray to

an unresisting detainee’s face, a kick to his gut, or a taser to his chest and neck.

The crucial question is whether the law gave Dukuzumuremyi “fair warning” that

his conduct—tasing an already-tased, incapacitated, incontinent, and unresisting

detainee—violated the Fourteenth Amendment. In the light of our use-of-force

precedent, we have no trouble concluding that it did. 10


10
  A panel of this Court also found it clearly established that the repeated deployment of a taser
on an unresisting arrestee constituted excessive force in violation of the Fourth Amendment.
Glasscox v. City of Argo, 903 F.3d 1207 (11th Cir. 2018). We don’t rely on Glasscox because
law can be clearly established for overcoming qualified immunity only if it is established prior to
the relevant events, and Hinkle’s death occurred in 2014, four years before Glasscox issued.
That being said, the Glasscox Court based its decision on two earlier cases—Oliver v. Fiorino,
586 F.3d 898 (11th Cir. 2009), and Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997)—that
together establish that the repeated use of a taser on an unresisting arrestee constitutes excessive
force. Given the ample Fourteenth Amendment precedent prohibiting jail officers from using
force on an unresisting detainee, we needn’t rely on Oliver and Smith; we simply note that, given
                                                18
               Case: 18-10487      Date Filed: 05/09/2019       Page: 19 of 23


                                           * * *

       Accordingly, we hold that Deputy Dukuzumuremyi’s second taser shock

violated Hunter’s clearly established Fourteenth Amendment right to be free from

excessive force and that the district court therefore correctly rejected

Dukuzumuremyi’s qualified-immunity defense.

                                               B

       We turn, then, to consider the supervisory-liability claims against Sheriff

Hale and Captain Eddings. The standard by which a supervisor can be held liable

for the actions of a subordinate is “extremely rigorous.” Cottone, 326 F.3d at

1360. Supervisory officials cannot be held liable under § 1983 for unconstitutional

acts by their subordinates based on respondeat-superior or vicarious-liability

principles. Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999). Instead,

absent allegations of personal participation—of which there are none here

concerning Hale or Eddings—supervisory liability is permissible only if there is a

“causal connection” between a supervisor’s actions and the alleged constitutional

violation. Cottone, 326 F.3d at 1360.

       One way that a plaintiff can show the requisite causal connection is by

demonstrating that a supervisor’s policy or custom resulted in “deliberate



the similarities between the Fourth and Fourteenth Amendment inquiries, see supra at 9, they
would likely lead to the same result.

                                              19
               Case: 18-10487       Date Filed: 05/09/2019      Page: 20 of 23


indifference to constitutional rights.” 11 Id. at 1360–61. A plaintiff can also show

that the absence of a policy led to a violation of constitutional rights. Rivas v.

Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991). Either way, though, to prove that

a policy or its absence caused a constitutional harm, a plaintiff must point to

multiple incidents, see Rivas, 940 F.2d at 1495–96, or multiple reports of prior

misconduct by a particular employee, see Danley, 540 F.3d at 1315. “A single

incident of a constitutional violation is insufficient to prove a policy or custom

even when the incident involves several [subordinates].” Craig v. Floyd County,

643 F.3d 1306, 1312 (11th Cir. 2011); see also Goebert v. Lee County, 510 F.3d

1312, 1332 (11th Cir. 2007) (holding that plaintiff failed to meet the rigorous

standard for supervisory liability when she failed to show that any other inmates

had suffered the same alleged violation). Hunter has not made the requisite

showing with respect to either of the two theories that underlie his supervisory-

liability claims against Hale and Eddings.

                                               1

       With respect to excessive force, Hunter asserts that Hale and Eddings

“fail[ed] to adopt and implement adequate policies” concerning the appropriate use

of force and that this failure resulted in a violation of Hinkle’s constitutional rights.


11
  Hale was the Sheriff of Jefferson County at the time of the relevant events, and Eddings was
the Commander of the Birmingham City Jail. The parties do not dispute that both acted as
policymakers for the jail.
                                               20
               Case: 18-10487       Date Filed: 05/09/2019       Page: 21 of 23


Hunter does not, however, allege any other incidents or reports of excessive force

by jail employees. Because Hunter’s excessive-force claim focuses solely on

Hinkle’s episode—“a single incident of unconstitutional activity”—it does not, as a

matter of law, state a claim against Hale and Eddings for supervisory liability. See

Craig, 643 F.3d at 1312; see also Weiland v. Palm Beach Cty. Sheriff’s Office, 792

F.3d 1313, 1329 (11th Cir. 2015) (holding that the “conclusory allegation that the

Sheriff’s Office was ‘on notice’ of the need to ‘promulgate, implement, and/or

oversee’ policies pertaining to the ‘use of force’” was insufficient when the claim

arose from a single incident involving two deputies).12

                                                2

       The same goes for the supervisory-liability claims predicated on an alleged

deliberate indifference to Hinkle’s serious medical needs. Hunter asserts that

Hinkle was an alcoholic who was neither treated for his alcoholism nor provided

his prescription medication upon admission to the jail. Hunter does not, though,

point to other instances of inadequate medical screening or delayed medical care at



12
  Compare Valdes v. Crosby, 450 F.3d 1231 (11th Cir. 2006) (finding supervisory liability when
multiple inmate complaints, warnings from other prison guards, and letters from family members
put a prison warden on notice of a history of widespread abuse by certain prison guards and
evidenced a causal connection between an inmate’s death by beating and the warden’s policy or
custom), with Hartley v. Parnell, 193 F.3d 1263 (11th Cir. 1999) (finding no supervisory liability
for a school superintendent based on a teacher’s sexual abuse of a student in the absence of any
prior acts by a teacher that would have put the superintendent on notice that the teacher might
commit abuse or any evidence of a policy that could have led a teacher to believe that his
behavior was permissible).

                                               21
             Case: 18-10487      Date Filed: 05/09/2019    Page: 22 of 23


the Birmingham City Jail, nor does he allege any facts indicating that Hale or

Eddings were on notice of the officers’ alleged deliberate indifference. Cf.

Anderson v. City of Atlanta, 778 F.2d 678, 686 (11th Cir. 1985) (finding

supervisory liability for deliberate indifference to a pretrial detainee’s serious

medical needs when a supervisor failed to act after repeated complaints of

inadequate staffing). Because Hunter’s complaint contains only conclusory

assertions that jail officers were indifferent to Hinkle’s needs pursuant to certain

policies or customs—without alleging any facts concerning those policies or

customs—he has not stated a claim for supervisory liability for deliberate

indifference to serious medical needs. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (“[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid

of ‘further factual enhancement.’”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 557 (2007)).

                                        * * *

      Accordingly, we hold that Hunter has failed to plead facts sufficient to

sustain supervisory-liability claims against Sheriff Hale or Captain Eddings and

that the district court therefore erred in rejecting the officers’ qualified-immunity

defenses to those claims.




                                           22
            Case: 18-10487     Date Filed: 05/09/2019    Page: 23 of 23


                                         III

      For the foregoing reasons, we affirm the district court’s denial of qualified

immunity to Deputy Dukuzumuremyi and reverse its denial of qualified immunity

to Sheriff Hale and Captain Eddings.

      AFFIRMED IN PART AND REVERSED IN PART.




                                         23
