                                                       [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT                     FILED
                    ________________________          U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           AUGUST 30, 2007
                           No. 07-10859                  THOMAS K. KAHN
                       Non-Argument Calendar                 CLERK
                     ________________________

              D. C. Docket No. 06-00051-CV-J-12-HTS

RUDOLPH LUDAWAY,


                                                                 Plaintiff-
                                                        Counter-Defendant-
                                                                Appellant,

                                versus

CITY OF JACKSONVILLE, FLORIDA,
E.V. FOLEY,
A.M. HORNE,
W.D. JANES,
M.T. SUMMERS,

                                                               Defendants-
                                                         Counter-Claimants-
                                                                 Appellees.

                     ________________________

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

                          (August 30, 2007)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Rudolph Ludaway, a Florida state prisoner proceeding pro se, appeals the

district court’s grant of summary judgment in his 42 U.S.C. § 1983 action against

the City of Jacksonville, Florida (“City”) and several officers with the Jacksonville

Sheriff’s Office (“JSO”) (collectively, the “Defendants”). For the reasons that

follow, we affirm.

                                 I. BACKGROUND

      In January 2006, Ludaway filed an amended complaint against officers

Adam Horne, William Janes, Erica Foley, and M.T. Summers (“Officers”), all in

their official capacities, and the City of Jacksonville, alleging that the Officers

violated his Fourth Amendment rights by using excessive force during his arrest.

According to the complaint, the Officers’ use of excessive force was in accordance

with the JSO’s policy or custom, and as a result of the Officers’ conduct, he

suffered a lost fingernail, a lost fingertip, and bruises and scarring to his forearm,

shoulder, elbow, and back. In support of his complaint, he submitted a letter that

he received from the JSO’s Internal Affairs Unit following an investigation into a

complaint he had filed with the JSO regarding his arrest. In the letter, the Internal

Affairs office stated that it could not find any proof that the Officers’ actions “did



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not adhere to the Sheriff’s Office policies and procedures” and that the force used

“was legal and proper.”

      The Defendants filed a motion to dismiss the complaint, which the district

court denied. Following the Defendants’ answer to the complaint and the

depositions of Ludaway and the Officers, the Defendants moved for summary

judgment, arguing that Ludaway’s constitutional rights were not violated during

the arrest because the force used was objectively reasonable under the

circumstances. The Defendants also argued that even if a constitutional violation

had occurred, because Ludaway named the City and the Officers in their official

capacities as defendants, he was required to show that the constitutional violation

occurred as a result of an official government policy or custom, and there was no

evidence that the City had a policy or custom condoning the use of excessive force.

In support of the summary judgment motion, the Defendants submitted a sworn

declaration from JSO Undersheriff Francis Maskey, explaining that the JSO

prohibited the use of excessive force and that officers found to have used such

force are disciplined. The Defendants also submitted copies of the JSO’s

disciplinary orders and use-of-force policies.

      In response to the summary judgment motion, Ludaway reiterated that the

force used was not objectively reasonable, and he attached a report showing that



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over 170 complaints of excessive force had been filed with Internal Affairs from

January 2004 to December 2005. He also attached the letter he had received from

Internal Affairs following the investigation into his complaint regarding the force

used during his arrest.

      In a written order, the district court granted summary judgment in favor of

the Defendants, concluding that Ludaway had “wholly failed to identify any JSO

or municipal policy which permits or promotes the unnecessary or excessive use of

force by its officers toward arrestees.” The court further concluded that Ludaway

had failed to support his assertion that there is a widespread custom of tolerating or

promoting the excessive use of force by JSO officers. Ludaway now appeals.

                          II. STANDARD OF REVIEW

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

the facts—as supported by the evidence in the record—and reasonable inferences

from those facts in the light most favorable to the nonmoving party.” Young v.

City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).

                                 III. DISCUSSION

      On appeal, Ludaway argues that the district court erred in granting summary

judgment to the Defendants because the Officers used unconstitutionally excessive

force in arresting him pursuant to the City’s policy or custom.



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      A § 1983 action “against a governmental official in his official capacity is

deemed a suit against the entity that he represents.” Brown v. Neumann, 188 F.3d

1289, 1290 (11th Cir. 1999) (citing Kentucky v. Graham, 473 U.S. 159, 165, 105

S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985)) (emphasis added). Because Ludaway

has named the Officers as defendants in their official capacities, his complaint

against the Officers is essentially a complaint against the City. Accordingly, the

disposition of the complaint as to both the City and the Officers will be analyzed

under the rubric of municipal liability. See id.

      A municipality may be liable under § 1983 for the actions of its police

officers only if the municipality is “found to have itself caused the constitutional

violation at issue; it cannot be found liable on a vicarious liability theory.” Skop v.

City of Atlanta, Ga., 485 F.3d 1130, 1145 (11th Cir. 2007). “It is only when the

execution of the government’s policy or custom . . . inflicts the injury that the

municipality may be held liable under § 1983.” Gold v. City of Miami, 151 F.3d

1346, 1350 (11th Cir. 1998) (internal quotation marks omitted). Thus, to establish

municipal liability under § 1983, the plaintiff must show that: (1) his constitutional

rights were violated, (2) the municipality had a custom or policy that constituted

deliberate indifference to his constitutional rights, and (3) the policy or custom

caused the violation of his constitutional rights. McDowell v. Brown, 392 F.3d



                                           5
1283, 1289 (11th Cir. 2004). “A policy is a decision that is officially adopted by

the municipality, or created by an official of such rank that he or she could be said

to be acting on behalf of the municipality.” Cooper v. Dillon, 403 F.3d 1208, 1221

(11th Cir. 2005). “A custom is a practice that is so settled and permanent that it

takes on the force of law.” Id.

      “In order for a plaintiff to demonstrate a policy or custom, it is generally

necessary to show a persistent and wide-spread practice.” McDowell, 392 F.3d at

1290. And “state and local positive law determine whether a particular official has

final policymaker authority for § 1983 purposes.” Cooper, 403 F.3d at 1221

(quotation marks omitted).

      After careful review of the record, we conclude that Ludaway has failed to

raise a genuine issue of material fact as to whether the Officers’ alleged use of

excessive force was the result of the City’s policy or custom.

      First, Ludaway has failed to identify any official policy that condones or

promotes the use of excessive force by JSO officers in effecting arrests. The

record shows that the JSO’s official policies prohibit the use of excessive force by

officers and that officers who violate this prohibition are disciplined. And even if

we were to consider the JSO’s Internal Affairs Unit as the final policymaker for

§ 1983 purposes, the Internal Affairs letter upon which Ludaway relies does not



                                           6
establish the existence of a policy condoning or promoting the use of excessive

force. Indeed, the letter states that the force used by the Officers in arresting

Ludaway “was legal and proper.”

      Ludaway also has failed to establish that there is a widespread custom of

using excessive force among the officers in the JSO. Ludaway states that between

January 2004 and December 2005, there were over 170 complaints to the JSO

alleging that its officers used excessive force. But as the district court observed, a

review of the record shows that only 10 of these claims of excessive force were

sustained, and the officers in those cases were disciplined or resigned while under

investigation. On this record, a reasonable juror could not find that the use of

excessive force among officers in the JSO was so widespread as to have acquired

the force of law. See Cooper, 403 F.3d at 1221.

      Because Ludaway has failed to raise a genuine issue of material fact as to

whether the Officers’ alleged use of excessive force was the result of the City’s

policy or custom, his complaint fails as a matter of law.

                                 IV. CONCLUSION

      For the foregoing reasons, we AFFIRM.




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