                       United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 01-3621
                                      ___________

Daniel Morris,                         *
                                       *
           Plaintiff - Appellant,      *
                                       *
     v.                                * Appeal from the United States
                                       * District Court for the Western
Crawford County, Arkansas; Bob Ross; * District of Arkansas.
John McAlister1; Larry G. Ruiz,        *
                                       *
           Defendants - Appellees.     *
                                  ___________

                                Submitted: May 14, 2002

                                     Filed: August 12, 2002
                                      ___________

Before BOWMAN, LOKEN, and BYE, Circuit Judges.
                          ___________

BYE, Circuit Judge.

      Daniel Morris appeals from an adverse grant of summary judgment on his
deliberate indifference claim against Sheriff Bob Ross and Crawford County,
Arkansas. For the reasons explained below, we affirm the district court's2 judgment.



      1
          In their brief, defendants refer to "John McAllister," a usage we adopt herein.
      2
      The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
                                           I

       Morris was arrested and charged with driving while intoxicated and disorderly
conduct. He was transported to the Crawford County Detention Center for a
breathalyser test, but he refused to take the test. After deputies placed him in a cell,
Morris and his cell-mate began to yell and bang on the cell door. Four deputies
responded to the clamor. Morris alleges the deputies entered the cell, grabbed him
by his arms and legs, and repeatedly assaulted him as they dragged him to another
cell. In the new cell, Morris alleges he was forced to the floor and struck in the face
by Deputy John McAllister. Morris also alleges Deputy Larry Ruiz dropped his full
weight behind his knee into Morris’s torso as he lay on his back on the floor. This
“knee drop” severed Morris’s intestine.

      Morris brought an array of claims under 42 U.S.C. § 1983 against Crawford
County, Sheriff Ross, Deputy McAllister and Deputy Ruiz; some of the defendants
were sued both in their individual and official capacities. Of principal importance to
this appeal, Morris’s complaint included a wrongful hiring claim that alleged
Crawford County was liable for Sheriff Ross’s decision to hire Deputy Ruiz in 2000.3

       The district court granted summary judgment against Morris on the wrongful
hiring claim. Although the district court believed Deputy Ruiz likely employed
excessive force in executing the “knee drop,” the court determined there was
insufficient evidence from which Sheriff Ross could have discerned “an obvious risk
that [Deputy Ruiz] would use excessive force if hired.” The district court therefore
concluded Sheriff Ross’s decision to hire Deputy Ruiz was not deliberate


      3
         To be precise, Deputy Ruiz was rehired by Sheriff Ross in 2000. Sheriff Ross
had initially hired Deputy Ruiz to work at the Detention Center in June 1997, but he
later fired Deputy Ruiz in September 1997 for disobeying his supervisor, failing to
answer his radio and leaving his post.

                                          -2-
indifference, and, absent a showing of deliberate indifference on the part of Sheriff
Ross, the court concluded Crawford County could not be held liable under § 1983.

       The district court granted summary judgment on some, but not all, of the
remaining claims in the action. Following entry of the court’s order, Morris and the
defendants took matters into their own hands, stipulating to a voluntary dismissal
without prejudice of the outstanding claims. See Fed. R. Civ. P. 41(a)(1). The
stipulation had the dual effect of resolving all claims against the defendants and
bestowing us with appellate jurisdiction. See Chrysler Motors Corp. v. Thomas Auto
Co., Inc., 939 F.2d 538, 540 (8th Cir. 1991).

       Distilling this complicated procedural background to a palpable core, the
present appeal requires us to evaluate three claims: the wrongful hiring claim against
Crawford County, plus official and individual capacity claims against Sheriff Ross
stemming from the same events. As the district court properly observed, the official
capacity claim against Sheriff Ross is legally identical to the direct claim against
Crawford County and must be so construed. Likewise, Morris insists that his
individual capacity claim against Sheriff Ross pertains to the alleged wrongful hiring
of Deputy Ruiz; in effect, Morris suggests a plaintiff may raise a deliberate
indifference claim against a policymaker in his individual capacity based on a single
hiring decision. We need not decide whether this breed of individual capacity claim
exists because it is readily apparent that if it does, the claim would be identical to the
official capacity claim. Thus, the three claims at issue in this appeal reduce to the
single charge that Crawford County should be liable for Sheriff Ross’s decision to
hire Deputy Ruiz in 2000. Our analysis therefore proceeds as if but one claim
remains.




                                           -3-
                                           II

       We review the district court's summary judgment de novo, applying the same
standard as the district court. Jeseritz v. Potter, 282 F.3d 542, 545 (8th Cir. 2002).
Accordingly, we view the facts in the light most favorable to Morris and will affirm
the summary judgment if there is no genuine issue of material fact and defendants are
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Clark v. Kellogg
Co., 205 F.3d 1079, 1082 (8th Cir. 2000).

                                          III

       Morris contends Sheriff Ross acted with deliberate indifference when he hired
Deputy Ruiz. This claim requires us to determine whether Morris has demonstrated
that Sheriff Ross's decision to hire Deputy Ruiz, with knowledge of his background,
reflected a conscious disregard for a high risk that Deputy Ruiz would use excessive
force in violation of Morris's federally protected rights. In making this determination,
we seek guidance from the Supreme Court's decision in Bd. of County Comm'rs of
Bryan County v. Brown, 520 U.S. 397 (1997).

A.    Bryan County

       In Bryan County, the Supreme Court addressed the issue of municipal liability
under § 1983 for a single hiring decision made by a sheriff. Deputy Burns broke Jill
Brown's knee caps when he forcibly removed her from the passenger's side of a truck
driven by her husband. Brown filed a claim for damages under § 1983 against Bryan
County, alleging Deputy Burns used excessive force while arresting her, and that
Deputy Burns's employer, Bryan County, was liable for her injuries based on its
sheriff's decision to hire Deputy Burns. A jury agreed: Deputy Burns was held liable
for using excessive force and Bryan County was held liable because of Sheriff
Moore's decision to hire Deputy Burns, who had a record of driving infractions and

                                          -4-
had pleaded guilty to various driving-related and other misdemeanors, including
assault and battery, resisting arrest, and public drunkenness. Id. at 401. The Fifth
Circuit upheld the jury's verdict against Bryan County based on Sheriff Moore's
decision to hire Deputy Burns in light of his rap sheet.

       The Supreme Court, however, reversed the Fifth Circuit. Justice O'Connor
observed that "[c]ases involving constitutional injuries allegedly traceable to an ill-
considered hiring decision pose the greatest risk that a municipality will be held liable
for an injury that it did not cause." Id. at 415. Concerned that municipal liability
could very easily collapse into respondeat superior liability in the context of a single,
facially lawful hiring decision, the Court adopted stringent culpability and causation
requirements, noting that "[a] showing of simple or even heightened negligence will
not suffice." Id. at 407.

       The Court demanded that courts "carefully test the link between the
policymaker's inadequate decision and the particular injury alleged." Id. at 410.
"Only where adequate scrutiny of an applicant's background would lead a reasonable
policymaker to conclude that the plainly obvious consequence of the decision to hire
the applicant would be the deprivation of a third party's federally protected right can
the official's failure to adequately scrutinize the applicant's background constitute
'deliberate indifference.'" Id. at 411. The Court proceeded to explain that

      a finding of culpability simply cannot depend on the mere probability
      that any officer inadequately screened will inflict any constitutional
      injury. Rather, it must depend on a finding that this officer was highly
      likely to inflict the particular injury suffered by the plaintiff. The
      connection between the background of the particular applicant and the
      specific constitutional violation alleged must be strong.

Id. at 412. The Court ultimately concluded there was insufficient evidence on which
a jury could base a finding that Sheriff Moore's decision to hire Deputy Burns

                                          -5-
reflected conscious disregard of an obvious risk that Deputy Burns would use
excessive force. Id. at 415. Although Sheriff Moore's conduct may have "reflect[ed]
indifference to [the officer's] record, . . . what is required is deliberate indifference to
a plaintiff's constitutional right." Id. at 414-15.

       Bryan County teaches us that liability may not be imposed unless a plaintiff
directly links the applicant's background with the risk that, if hired, that applicant
would use excessive force. In other words, a plaintiff must show that the hiring
decision and the plaintiff's alleged constitutional injury are closely connected—an
applicant's background is that causal link. What then must an applicant's background
reveal for a plaintiff's alleged injury to be the plainly obvious consequence of the
hiring decision?

B.     Post Bryan County Cases

       Courts strictly adhere to Bryan County's directive that "[t]he connection
between the background of the particular applicant and the specific constitutional
violation alleged must be strong." Id. at 412. The prior complaints in an applicant's
background must be nearly identical to the type of officer misconduct that caused the
constitutional deprivation allegedly suffered by a plaintiff. Courts routinely reject
attempts to satisfy Bryan County's causal connection requirement where none of the
prior complaints in an applicant's background were of the same or similar type of
officer misconduct that caused the plaintiff's injury.

       Aguillard v. McGowen, 207 F.3d 226 (5th Cir. 2000), involved an officer,
Deputy McGowen, who shot and killed Susan Harrison White while on duty. White's
estate brought a wrongful death action under § 1983 against the County based on its
decision to hire Deputy McGowen. Deputy McGowen's record showed that, inter
alia, he had threatened the mother of a juvenile with arrest, and had assaulted and
pistol-whipped a teenage boy. Deputy McGowen, however, was neither arrested nor

                                            -6-
convicted of the alleged assault and pistol-whipping incident. His informal
disciplinary record included infractions for using police radio for broadcasting
personal messages and for refusing to convey information to one party in a car
accident. The Fifth Circuit reversed the district court's judgment, which upheld the
jury's verdict against the County, because the requisite causal connection was lacking;
Deputy McGowen's record did not show "one shred of solid evidence foreshadowing
McGowen's tragic killing of White." Id. at 230 (emphasis added). Aguillard
explained "McGowen had never wrongfully shot anyone before, nor did his record
reveal him to be likely to use excessive force in general or possess a trigger-happy
nature in particular" and concluded that "[w]hile the County may have been negligent
in its employment decision, the magnitude of its error does not reach constitutional
cognizance." Id.

       Gros v. City of Grand Prairie, 209 F.3d 431 (5th Cir. 2000), involved a police
officer who allegedly sexually assaulted two women during traffic stops. At the time
of that officer's hire, his file contained statements regarding aggressiveness, letters
of reprimand and complaints for being overbearing and abusive during a prior traffic
stop. The Fifth Circuit reversed the district court's judgment, concluding the police
chief was not deliberately indifferent in hiring the officer, because the requisite causal
connection was absent. Id. at 435. The Fifth Circuit explained the officer "had never
sexually assaulted, sexually harassed, falsely arrested, improperly searched or seized,
or used excessive force against a third party." Id. While the officer's records
suggested the police chief may have been negligent in hiring him, the Fifth Circuit
determined the officer's records did not provide sufficient evidence of deliberate
indifference to a third party's constitutional rights. Id.

      Barney v. Pulsipher, 143 F.3d 1299 (10th Cir. 1998), involved a male
correctional guard, Gerald Pulsipher, who allegedly sexually assaulted several female
inmates. Pulsipher had been arrested at age seventeen for possession of alcohol and
had several speeding tickets. The Tenth Circuit explained there was nothing in

                                           -7-
Pulsipher's background that would have indicated he would have committed sexual
assault on the inmates. Id. at 1309. In other words, the plaintiffs had failed to satisfy
the strong causal connection required by Bryan County.

       Riddick v. Sch. Bd. of the City of Portsmouth, 238 F.3d 518 (4th Cir. 2000),
involved a male coach who secretly videotaped members of the female high school
track team while undressing. Three years prior, in 1989, the coach had been
investigated for openly filming fully-clothed female students. Although the coach
had been investigated for that incident, the Fourth Circuit concluded summary
judgment in favor of the School Board was appropriate because it was not plainly
obvious the coach would secretly videotape other students while undressing nearly
three years later. Id. at 525. "Put simply, the causal connection between the 1989
incident and the alleged constitutional deprivation is simply too attenuated to impose
municipal liability on the Board." Id. at 526.

       These cases also reveal that municipalities are not necessarily liable even when
an applicant's background contains complaints of physical violence, including acts
of aggression and assault. For example, in Aguillard, although Deputy McGowen's
record included complaints of assault and threatening behavior, it did not reveal that
he had ever wrongfully shot anyone before or used excessive force. In Gros, although
the officer's record revealed that he was aggressive and that he had been abusive
during a previous traffic stop, it did not reveal that he had ever sexually assaulted,
sexually harassed, falsely arrested, improperly searched or used excessive force.
Courts have determined that such complaints must be closely aligned with a plaintiff's
alleged injury, and absent that close nexus, there can be no municipal liability based
on a single hiring decision. In sum, to avoid summary judgment, a plaintiff must
point to prior complaints in an applicant's background that are nearly identical to the
type of misconduct that causes the constitutional deprivation allegedly suffered by the
plaintiff. This is a rigorous test to be sure.



                                          -8-
C.    Application of Bryan County

       Has Morris presented evidence sufficient to create a genuine issue of material
fact that the plainly obvious consequence of rehiring Deputy Ruiz would be his use
of excessive force against an inmate? We do not believe he has.

      Morris claims Deputy Ruiz's record contains a violent felony conviction. As
noted by the district court, however, the record does not reveal that the conviction
was for a violent felony offense. See Appellant's App. 264. During oral argument,
moreover, we learned that, after Deputy Ruiz paid a fine, it appears the conviction
was reduced to a misdemeanor, and was ultimately expunged from his record.

       Deputy Ruiz's background does not reveal that he knee-dropped an inmate (or
anyone for that matter), nor does it reveal a single complaint of excessive force.
Deputy Ruiz's record includes slapping an inmate at the Sebastian County Detention
Center in 1996; mishandling inmates' money and property; "mouthing off" to two
fellow deputies at Sebastian County and "invit[ing] [one of them] to the gym any day,
any time . . . to take care of it" in 1997; disobeying a nurse during which the nurse
overheard Deputy Ruiz say "he was going to knock that bitch out"; and acting
insubordinate at work, disobeying orders, cursing other employees, failing to adhere
to rules (i.e., leaving his post with no officer on duty and failing to answer his radio
when a supervisor attempted to contact him). There are also accusations by Deputy
Ruiz's ex-wife that, in 1997, he ran her off the road, tore a necklace off her neck, and
pushed her, as well as accusations by Deputy Ruiz's girlfriend that, in 1999, he
grabbed her arm and threw her, and threatened to assault her.

       Morris emphasizes Deputy Ruiz's past incidents of domestic violence, arguing
such acts portend violence in the workplace. Both Deputy Ruiz's ex-wife and
girlfriend obtained ex parte protective orders against him, but none of their claims
were ever substantiated. Morris relies on Parrish v. Luckie, 963 F.2d 201 (8th Cir.

                                          -9-
1992), for the proposition that violent or abusive behavior of any kind indicates a
strong potential for violent behavior against persons in custody. We need not decide
whether Parrish stands for such a proposition, however, because even if it did, Bryan
County implicitly rejected such an argument in the context of municipal liability
based on a single hiring decision. The plaintiff in Bryan County retained an expert
witness who testified that Deputy Burns's arrest record showed "a blatant disregard
for the law and problems that may show themselves in abusing the public or using
excessive force." 520 U.S. at 429. In fact, Bryan County's own expert opined that
Deputy Burns's record should have caused concern. Id. Despite this evidence, the
Court concluded the plaintiff had not demonstrated that Sheriff Moore's decision to
hire Deputy Burns constituted deliberate indifference. Id. at 415.

        Morris also stresses the jail administrator's statement to Sheriff Ross that
Deputy Ruiz would cause trouble if hired, and relies on an expert witness who
testified that violent or abusive behavior of any kind indicates a strong potential for
violent behavior against persons in custody. The jail administrator made the
statement to Sheriff Ross in 1997, when Deputy Ruiz was first hired to work at the
Crawford County Detention Center. Deputy Ruiz did cause trouble and was fired, but
not because he was violent with inmates or displayed any violent propensity toward
inmates; he was fired for insubordination, failing to answer his radio and leaving his
post. With respect to the expert testimony, as noted above, Bryan County considered
similar evidence and concluded it did not carry the day.

       Morris attempts to distinguish his case from Bryan County, arguing Deputy
Ruiz's record reveals several separate instances of violence, whereas Deputy Burns's
record revealed only one incident that produced several violent charges. But the facts
of record do not substantiate Morris's distinction. The 1996 slapping of an inmate by
Deputy Ruiz is the only violent act in his record. It is true that ex parte protective
orders were obtained against Deputy Ruiz by both his ex-wife and girlfriend, but they
are unsubstantiated accusations. More importantly, it is the nature of the prior

                                         -10-
complaints with which we are concerned. We do not believe the complaints
mentioned above satisfy Bryan County's requirement of a "strong" causal connection
between Deputy Ruiz's background and the specific constitutional violation alleged
by Morris. We agree with the district court's assessment that "[Deputy] Ruiz's record
may have made him a poor candidate for a position as a detention center deputy, but
it would not have lead [sic] a reasonable supervisor to conclude that there was an
obvious risk that he would use excessive force if hired." See Appellant's App. 265.

                                         IV

       We believe Morris has failed to present evidence sufficient to create a genuine
issue of material fact that Sheriff Ross acted with deliberate indifference when he
hired Deputy Ruiz. Accordingly, the district court's summary judgment in favor of
Sheriff Ross and Crawford County is affirmed in its entirety.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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