            Case: 16-16103    Date Filed: 07/05/2017   Page: 1 of 10


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-16103
                         ________________________

                     D.C. Docket No. 5:15-cv-00006-MTT



DEMETRICE MARTIN,

                                                             Plaintiff - Appellant,

versus

CITY OF MACON GEORGIA,
OVERLOOK GARDENS PROPERTIES LLC,
THE WOODRUFF COMPANIES,
JUSTIN FOX,
in his individual and official capacity as a Macon Police Officer
and as a Courtesy Officer for Overlook Garden Apartment Complex,
WOODRUFF PROPERTY MANAGEMENT COMPANY,

                                                         Defendants - Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Georgia
                        ________________________

                                 (July 5, 2017)
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Before JULIE CARNES and FAY, Circuit Judges, and GOLDBERG, ∗ Judge.

PER CURIAM:

       Plaintiff Demetrice Martin (“Plaintiff”) sued Defendant Macon-Bibb County

(“Defendant”) under 42 U.S.C. § 1983 over the allegedly unconstitutional behavior

of a Macon Police Department officer. The officer handcuffed Plaintiff’s eight-

year-old son while investigating a complaint from the officer’s girlfriend that the

child had thrown something at the couple’s dog. The district court granted

Defendant’s motion for summary judgment, finding no evidence of a policy,

custom, or practice that supported or caused the officer’s actions. Upon review,

and with the benefit of oral argument, we affirm.

I. INTRODUCTION

       A. Factual Background

       While employed as a police officer by the Macon Police Department, Justin

Fox also worked for Woodruff Property Management Company (“Woodruff”) as

an “Independent Contractor Courtesy Officer” at Overlook Gardens Apartments,

formally Overlook Gardens Properties, LLC (“Overlook”), where Fox lived with

his girlfriend. Fox’s duties required him to patrol the apartment complex, to keep a

log documenting any breaches of the law, and to “immediately contact the proper

local authorities when confronted with any situation involving a breach of the local

∗
 The Honorable Ricard W. Goldberg, of the United States Court of International Trade, sitting
by designation
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law.” At no time did Overlook or Woodruff instruct Fox to make any arrests as

part of his duties.

       On the day of the incident, Fox was engaged in police-related activities

when he received a text message from his girlfriend informing him that a boy had

thrown something at Fox’s dog. Though not dispatched by the police department

to respond to the incident, Fox drove to Overlook, in uniform, and began searching

for the child his girlfriend described. Fox found a boy who identified his eight-

year-old brother, E.M., as the child Fox was looking for, and the boy took Fox to

the apartment where the two boys resided with Plaintiff, their mother.

       Fox entered the apartment, placed E.M. in handcuffs, and informed Plaintiff

and E.M. that E.M. could be charged with animal cruelty. Plaintiff testified that

E.M. eventually admitted to throwing pine straw at the dog to get its attention, and

that E.M. apologized after he began to cry. Fox removed the handcuffs and said

that this should be a lesson to E.M. that he could get into trouble for throwing

things at dogs. Fox did not report this incident to anybody at Overlook or

Woodruff.

       After learning of the incident, the Macon Police Department removed Fox

from patrol duty and began an Internal Affairs investigation. According to

Henderson Carswell, the deputy police chief at the time, Fox violated policies,

including a strict prohibition on using handcuffs “merely to frighten or impress”


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and a direction that handcuff use should be restricted to juveniles who are capable

of resisting arrest, who are attempting to escape, or who pose a threat to the safety

of themselves or others. After the investigation, the Disciplinary Review Board

unanimously recommended Fox’s termination, and Fox resigned after receiving

notice of his pending termination.

       B. Procedural History

       Plaintiff sued Defendant 1 and Fox under 42 U.S.C. § 1983 for various

federal and state claims. Plaintiff also sued Woodruff and Overlook for various

state laws claims. Defendant, Woodruff, and Overlook moved for summary

judgment, which the district court granted. Plaintiff voluntarily dismissed her suit

against Fox on August 15, 2016, and judgment was entered in favor of Defendant,

Overlook, and Woodruff four days later. Plaintiff timely appealed.

       On appeal, Plaintiff only addresses her claim against Defendant, and so

appears to have abandoned her claims against Woodruff and Overlook. We

accordingly affirm the district court’s grant of summary judgment in favor of

Woodruff and Overlook, and turn to the only remaining issue in this case: whether

Fox’s actions create liability for Defendant.




1
  Plaintiff’s complaint initially named the City of Macon as Defendant in this suit, but the City
of Macon and Bibb County have consolidated, and so Macon-Bibb County is the proper
Defendant here.
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II. DISCUSSION

      A. Standard of Review

      We review de novo a district court’s grant of summary judgment, viewing all

evidence in the light most favorable to the non-moving party. Owen v. I.C. Sys.,

Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). A movant is entitled to summary

judgment if there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A dispute about a

material fact is genuine “if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

      B. Plaintiff’s Monell Claim

      As the parties do not dispute the issue, we assume without deciding, as did

the district court, that Fox’s actions were unconstitutional. Nevertheless, we agree

with the district court that Fox’s actions do not create liability for Defendant.

      A municipality can be liable under § 1983 for the unconstitutional actions of

its employees only when the county’s “official policy” causes a constitutional

violation. Grech v. Clayton Cty., 335 F.3d 1326, 1329 (11th Cir. 2003) (citing

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). Without an officially

promulgated policy, a plaintiff can also establish liability by pointing to “an

unofficial custom or practice of the county shown through the repeated acts of a


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final policymaker for the county.” Id. at 1329. This requires showing not only the

existence of such a custom or practice, but that the custom or practice is the

“moving force behind the constitutional violation.” Id. at 1330 (internal quotation

marks omitted). When a plaintiff alleges that a municipality has failed to train or

supervise its employees, this showing usually requires “some evidence that the

municipality knew of a need to train and/or supervise in a particular area and the

municipality made a deliberate choice not to take any action.”2 Gold v. City of

Miami, 151 F.3d 1346, 1350 (11th Cir. 1998).

       A single instance of unconstitutional conduct can create Monell liability only

when “proof of the incident includes proof that it was caused by an existing

unconstitutional municipal policy, which policy can be attributed to a municipal

policymaker.” Schmelz v. Monroe Cty., 954 F.2d 1540, 1544 (11th Cir. 1992)

(quoting Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985)). Thus a single

instance of unconstitutional behavior cannot establish proof of the policy itself.

See Craig v. Floyd Cty., 643 F.3d 1306, 1310 (11th Cir. 2011) (“A single incident

would not be so pervasive as to be a custom . . . because a custom must be such a

longstanding and widespread practice that it is deemed authorized by the

policymaking officials because they must have known about it but failed to stop
2
  “In a narrow range of circumstances,” a plaintiff may not need to show evidence of knowledge
of prior incidents when “the need to train and supervise in the particular areas in issue [is] so
obvious and the likelihood of constitutional violations [is] highly predictable.” Gold, 151 F.3d at
1351–52. We agree with the district court that this exception does not apply to this case.

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it.” (internal citations and quotation marks omitted)); see also Bd. of Cty. Comm’rs

v. Brown, 520 U.S. 397, 404 (1997) (“Similarly, an 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.”); City of Canton v. Harris, 489 U.S.

378, 390 (1989) (“That a particular officer may be unsatisfactorily trained will not

alone suffice to fasten liability on the city.”).

       Here, Defendant had no official policy calling for an officer to behave as

Fox did. To the contrary, it is undisputed that Fox acted against Defendant’s

official policy when he used handcuffs on E.M. under the circumstances. This

means that Plaintiff must prove the existence of a custom or policy that caused the

constitutional violation. Plaintiff alleges that the police department’s failure to

properly train, supervise, and retain its officers is a custom and practice that was

the moving force behind Fox’s actions. The only evidence Plaintiff offers to

support this claim is testimony from Fox, which Plaintiff claims provides evidence

that Fox was trained to place handcuffs on people before conducting an

investigation. Fox’s testimony is insufficient to support Plaintiff’s argument,

however.

       In his deposition testimony, Fox was asked, “when you do an investigation,

you just put handcuffs on people while you’re doing an investigation?” He replied,


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“Sometimes, yes,” and proceeded to explain that sometimes officer safety required

it. During cross-examination, Fox responded “Yes” to a question asking whether it

was his testimony that “training taught [him] to place people in handcuffs while

[he] conducted an investigation.” Plaintiff asserts that the latter exchange is

evidence of negligent training—or at least conflicting testimony—and sufficient to

avoid summary judgment. Yet this testimony does not provide evidence that Fox

was trained to always handcuff before investigating, or even to use handcuffs in

the circumstances that he did. Nor are these statements inherently contradictory

such that they create a disputed issue of fact that a jury needs to resolve.

      Similarly, Plaintiff argues that Fox’s comments during the Internal Affairs

investigation raise a question of fact as to Defendant’s training and policies. When

asked why he was detaining E.M. when his mother was standing right there, Fox

stated, “that’s the way I was taught. I mean from [field training] when a juvenile

[is] involved we just placed them in handcuffs and then we talk to the parents.”

While Plaintiff argues that this statement is evidence of Defendant’s failure to

train, it is clear that Fox is referring to training on using handcuffs in the presence

of the juvenile’s parent—as the statement was made in response to a question to

that effect—rather than handcuffing juveniles as a matter of course. Fox later

stated that he was aware of department policy that juveniles can be placed in

handcuffs when it is “justifiable and reasonable” and that a parent or guardian must


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be present during questioning. Fox also stated several times in the same interview

that he used handcuffs because he intended to arrest E.M. or otherwise press

charges for animal cruelty. When asked why he did not first ascertain E.M.’s age

before using handcuffs, 3 Fox said he “just didn’t think about it”—not that his

training said it did not matter. While Fox’s statements certainly suggest his poor

judgment in the situation, they do not provide evidence that Fox’s actions were

caused by Defendant’s allegedly negligent training and supervision.

         Not only does the evidence offered by Plaintiff fail to support her claim, she

offers no evidence of other similar incidents, which is necessary for her claim to

succeed. Standing alone, the fact that Fox acted unconstitutionally cannot provide

evidence that Defendant had a custom or practice that condoned negligent training

or supervision. See City of Canton, 489 U.S. at 390–91; Craig, 643 F.3d at 1310.

Additionally, without evidence of any other incidents aside from Fox’s, Plaintiff

cannot show that Defendant knew that its training and supervision were

inadequate. See Gold, 151 F.3d at 1350. In short, Plaintiff has not shown that any

policy of Defendant’s—official or otherwise—was the “moving force” behind

Fox’s actions. Grech, 335 F.3d at 1330. Defendant therefore cannot be liable to

Plaintiff under a Monell theory.




3
    Fox acknowledges that an eight-year-old cannot be charged with a crime in Georgia.
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III. CONCLUSION

      Plaintiff has provided no evidence sufficient to establish Defendant’s

liability under Monell, and so the district court’s grant of summary judgment is

AFFIRMED.




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