               Case: 13-10101       Date Filed: 10/18/2013       Page: 1 of 10


                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-10101
                               ________________________

                        D. C. Docket No. 3:08-cv-00063-WS-CJK

DANIEL R. THOMPSON,

                                                                          Plaintiff-Appellant,,

                                             versus

SHERIFF, PINELLAS COUNTY FL,

                                                                         Defendant-Appellee.

                               ________________________

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

                                     (October 18, 2013)

Before PRYOR and ANDERSON, Circuit Judges, and RESTANI, ∗ Judge.




∗
 Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
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PER CURIAM:

      In this case, plaintiff Daniel Thompson has sued Sheriff Jim Coats in his

official capacity as Sheriff of the Pinellas County Sheriff’s Office (the “Sheriff”).

Previous litigation has established that Richard Farnham, then a deputy sheriff in

the Pinellas County Sheriff’s Office, violated the constitutional rights of plaintiff

when he tased plaintiff in the course of arresting him. For purposes of this appeal,

the Sheriff does not contest the fact of that violation of constitutional rights. The

incident occurred in the aftermath of Hurricane Ivan at which time there was

concern about looters. The incident occurred in Santa Rosa County, and Deputy

Farnham had been sent to assist the Santa Rosa County Sheriff’s Department.

However, the law is well established that a sheriff in his official capacity (i.e, the

county) may not be subjected to liability predicated upon a theory of respondeat

superior. The Supreme Court has established a high threshold for plaintiffs in cases

like this. See Bd. of County Com’rs of Bryan County v. Brown, 520 U.S. 397, 405,

117 S. Ct. 1382, 1389 (“Where a plaintiff claims that the municipality has not

directly inflicted an injury, but nonetheless has caused an employee to do so,

rigorous standards of culpability and causation must be applied to ensure that the

municipality is not held liable solely for the actions of its employee.”). The district

court found no liability in this case and entered summary judgment in favor of the


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Sheriff. Plaintiff appeals.

       In this appeal, plaintiff seeks to impose official capacity liability upon the

Sheriff of Pinellas County on the basis of one of three theories. First, plaintiff

argues that Sheriff Coats knew or should have known of a need to supervise his

deputies with respect to the use of excessive force but was deliberately indifferent

to that need with the predictable consequence that his deputies would use excessive

force, thus violating the constitutional rights of arrestees. Second, plaintiff also

seeks to impose liability pursuant to the theory that Sheriff Coats ratified Farnham’s

unconstitutional conduct. Third, plaintiff seeks to impose liability under the theory

that his constitutional injuries were caused by former Sheriff Everett Rice’s

decision to hire Farnham despite red flags in Farnham’s background. We turn

initially to plaintiff’s first theory.

          I.    PLAINTIFF’S FAILURE TO SUPERVISE THEORY

       Plaintiff first asserts that three citizen complaints against Farnham before the

September 20, 2004, incident at issue here placed the Sheriff on notice that deputies

were engaging in conduct constituting an excessive use of force, and thus on notice

that, in the absence of additional supervision, his deputies would engage in the use

of excessive force and deprive citizens of their constitutional rights. As the

Supreme Court indicated in Connick v. Thompson, __ U.S. ___, 131 S.Ct. 1350

(2011):


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       A pattern of similar constitutional violations by untrained employees
       is “ordinarily necessary” to demonstrate deliberate indifference for
       purposes of failure to [supervise]. 1 … Policymakers’ continued
       adherence to an approach they know or should know has failed to
       prevent tortious conduct by employees may establish the conscious
       disregard for the consequences of their action—the deliberate
       indifference—necessary to trigger municipal liability.

Id. at ___, 131 S. Ct. at 1360 (internal citations and quotations omitted). Plaintiff in

this case argues that the three citizen complaints against Farnham constitutes such a

“pattern of similar constitutional violations” that the Sheriff was placed on notice

that his deputies were engaging in the use of excessive force, and that the Sheriff’s

failure to provide additional supervision evidenced a deliberate indifference to the

likely consequence of deprivation of constitutional rights of arrestees.

       We agree with the district court that plaintiff’s evidence falls far short of the

requisite proof. We note that Sheriff Coats has 900 deputies and that plaintiff has

adduced evidence only with respect to Deputy Farnham. We also note that plaintiff

has not challenged the existence and efficacy of the Sheriff’s written policies with

respect to the use of force. And we note that the record contains ample evidence of

adequate written policies with respect to the use of force, as well as evidence of

satisfactory procedures and means to monitor use of force incidents by deputies. 2


       1
                The rule suggested by the Supreme Court for purposes of failure to train also
applies to the failure to supervise. See Gold v. City of Miami, 151 F.3d 1346, 1350–51 (11th Cir.
1998).
       2
                Plaintiff suggests that the computerized Personnel Intervention System was
deficient in that it experienced operational challenges during 2004, and plaintiff argues that the
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The record also reveals that the deputies receive training, and that Farnham received

training, with respect to the appropriate use of the taser.

       Even if we assume arguendo that the “ordinarily necessary” pattern of similar

constitutional violations might be demonstrated under some circumstances by a

pattern of violations on the part of a single deputy, notwithstanding that he is one of

many, and even if we assume arguendo that three previous violations by that deputy

might under some circumstances be sufficient, we conclude that the three citizen

complaints relied upon by plaintiff fall far short. We have carefully examined the

record evidence with respect to each of these three. In each case, an investigation

was conducted. In each case, relevant witnesses were interviewed. In each case,

the investigation concluded that any complaint of wrong doing was unsubstantiated.

We conclude that the investigation in each case was adequate; a perfect

investigation is not necessary. We are satisfied that nothing in the investigation

files, and nothing related to these three citizen complaints, indicates an obvious

need for additional supervision. We cannot conclude that anything related to these

three citizen complaints could put the Sheriff on notice of a need for additional

supervision such that his failure to provide same would constitute deliberate



Sheriff’s Office was unable to monitor its deputies to identify officers at risk of using excessive
force. However, the record indicates that the Sheriff’s Office had a manual system as a back-up.
In any event, the record evidence falls far short of indicating any deficiency in the system
sufficiently obvious to place the Sheriff on notice that additional supervision was necessary to
prevent the likely use of excessive force and deprivation of constitutional rights.
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indifference.3

       Plaintiff also relies upon several citizen complaints which occurred after the

September 20, 2004, incident at issue in this case. We conclude that such post-

incident complaints could not have put the Sheriff on notice of a need for

supervision as of September 20, 2004. See Connick, ___ U.S. at ___, 131 S. Ct. at

1360 n.7 (“[C]ontemporaneous or subsequent conduct cannot establish a pattern of

violations that would provide notice to the city and the opportunity to conform to

constitutional dictates.”) (internal citations and quotations omitted). Moreover,

each of these complaints was also investigated, relevant witnesses were

interviewed, and the complaint was found to be unsubstantiated. We have carefully

reviewed the record with respect to each of these, and we cannot conclude either

that the investigation was inadequate or that the finding was not supported by the

evidence.

       We cannot conclude that the district court erred in rejecting plaintiff’s failure

to supervise theory.


       3
                 We note incidentally that we seriously doubt that the Peterson incident even
involved a use of force comparable to the tasing at issue in this case. The complaint by Peterson
was that Officer Farnham had roughly handcuffed her and that the handcuffs were too tight. See
Connick, ___ U.S. at ___, 131 S. Ct. at 1360 (“Without notice that a course of training is deficient
in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training
program that will cause violations of constitutional rights.”) (emphasis added). We harbor similar
doubts about whether the Blau complaint involved a comparable use of force. There, the
complaint was that Officer Farnham drove his patrol car too close to the motorcycles on which
complainant and his companion were riding, and that the officer placed his hand on his gun
during his conversation with complainant.
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             II.    PLAINTIFF’S RATIFICATION THEORY

      Plaintiff first argues that post-incident nomination of Deputy Farnham for an

award constitutes ratification of Farnham’s unconstitutional acts. We summarily

reject this argument. The nomination was made by Sgt. Luben, not by Sheriff

Coats, the policymaker. Even if Sheriff Coats approved the nomination, we readily

conclude that this could not constitute ratification. The nomination occurred on

December 18, 2004, at which time the Sheriff was not even aware of allegations of

wrongdoing on the part of Farnham.

      Plaintiff also argues that the failure to discipline Deputy Farnham constitutes

ratification. On the instant facts, we disagree. As noted above, there is no evidence

of a “persistent failure to take disciplinary action,” which we have held can

constitute ratification. See Fundiller v. City of Cooper City, 777 F.2d 1436, 1443

(11th Cir. 1985). Obviously, there could be no ratification in the absence of

knowledge on the part of Sheriff Coats that Farnham had violated plaintiff’s

constitutional rights by using excessive force. The record indicates that the Sheriff

did not even know of allegations of excessive force until February 2005 when he

was alerted to the FBI investigation. At that time, his Administrative Investigative

Division (“AID”) began an investigation. Plaintiff had not filed a complaint with

Pinellas County; rather, plaintiff only informally complained to Santa Rosa County,

where the incident occurred.


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      The Sheriff’s AID obtained the investigation file compiled by Santa Rosa

County. It reflected interviews with what appeared to be all relevant witnesses, and

included written statements of many. None of the statements except that of plaintiff

and his wife even hinted of improper action by Deputy Farnham. On the other

hand, Farnham’s version of the events was corroborated by the only other deputy

who could have witnessed the tasing. His statement said: “Deputy Farnham

approached [Thompson] who was refusing to comply with Deputy Farnham’s

commands. Deputy Farnham deployed his taser at [Thompson] to gain

compliance.” Another deputy reported having spoken with Knowling (Thompson’s

companion who was arrested with him at the time). The deputy’s account of what

Knowling told him also is not inconsistent with Farnham’s version. According to

the deputy, Knowling told him that he and Thompson were “approached by two

persons holding [a] flash light and claiming to be Sheriff’s deputies”; Knowling

described them as ordering Thompson and him to drop their weapons, which they

refused to do initially because they did not believe the two men were deputies.

Another deputy stated that when he arrived at the scene he observed:

      two white males, one ‘proned out’ and the other on his knees. The
      suspect on his knees went down to the ground. A white female
      standing in the yard behind the suspects were screaming he is a cop.
      The suspect later identified as Thompson had a handgun that he laid
      down in front of them when he went all the way down to the prone
      position.

The statement of plaintiff’s wife also indicated a time that she could see that the
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two men approaching them with flashlights were deputies, and that her husband did

not at this time immediately lie down on the ground and drop his gun as had been

ordered, but rather “raised his hands and said ‘I am the homeowner – I called you.’”

In short, it is clear from the investigation file that all of the officers present thought

that plaintiff and his friend, Knowling, were armed and were suspected looters who

were not complying immediately with the orders of the deputies. The Sheriff also

received a copy of a polygraph which was not indicative of deception when

Farnham indicated that he deployed his taser because Thompson would not follow

his lawful commands. Although asked for a statement, Thompson indicated that he

was only going to deal with the FBI. The AID investigation concluded that no

violations had occurred.

       Although the Sheriff did not take disciplinary action until later, when

Farnham was indicted, we cannot conclude this failure could constitute ratification

by the Sheriff of the unconstitutional acts of Deputy Farnham. The record does not

establish that the Sheriff knew that unconstitutional acts had occurred, nor can we

conclude that it was obvious from the facts available to the Sheriff at the time that

unconstitutional acts had in fact occurred. 4



4
         Plaintiff also argues that the Sheriff’s Office assisted in Farnham’s defense during
his criminal trial. However, a Florida statute requires that an employing agency shall
provide an attorney for any officer in the criminal action commenced against the officer
under the circumstances that reasonably appeared at the time to the Sheriff. Whatever the
facts later developed at Farnham’s trial may have shown, nothing in the facts available to
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We cannot conclude that the district court erred in granting summary judgment that

the Sheriff had not ratified Deputy Farnham’s unconstitutional act. 5

                III.    PLAINTIFF’S THEORY OF A DELIBERATELY
                          INDIFFERENT HIRING DECISION

       We summarily reject plaintiff’s argument in this regard. We conclude that

Bd. of County Com’rs of Byran County v. Brown, 520 U.S. 397, 117 S.Ct. 1382

(1997), forecloses plaintiff’s position.

       For the foregoing reasons, the judgment of the district court is

       AFFIRMED. 6




the Sheriff at the time indicated that Deputy Farnham’s actions were “manifestly
indefensible.” Coon v. Ledbetter, 780 F.2d 1158, 1162 (5th Cir. 1986).
       5
                 Plaintiff also suggests that the response of the Sheriff’s Office to this incident, and
the failure to discipline Farnham, somehow constituted evidence establishing liability under
plaintiff’s failure to supervise theory. However, plaintiff fails to explain how the September 20,
2004, single incident could have placed the Sheriff on notice beforehand of a need for additional
supervision. See Connick, ___ U.S. at ___, 131 S. Ct. at 1360–61 n.7 (“[C]ontemporaneous or
subsequent conduct cannot establish a pattern of violations that would provide notice to the city
and the opportunity to conform to constitutional dictates.”) (internal citations and quotations
omitted). Plaintiff’s reliance on that single incident also falls far short of that “narrow range of
circumstances” that the Supreme Court has suggested might rarely “reflect the city’s deliberate
indifference to the highly predictable consequence … [of] violations of constitutional rights.” Id.
at ___, 131 S.Ct. at 1361 (internal citations and quotations omitted). Nothing about the
September 20, 2004, incident indicated that it would have been patently obvious to the Sheriff
beforehand that, in the absence of additional supervision, Deputy Farnham would be highly likely
to tase improperly or otherwise use excessive force. Indeed, Farnham had received training with
respect to the use of the taser.
       6
               We cannot conclude that the district court erred with respect to its handling of Dr.
Lyman’s affidavit. Arguments raised on appeal by appellant but not expressly addressed in this
opinion are rejected without need for further discussion.
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