Mann v. Taser Int'l, Inc.
Mann v. Taser Int'l, Inc.
2008 WL 11423970 (N.D.Ga. 2008)
November 25, 2008

Murphy, Harold L.,  United States District Judge

Exclusion of Pleading
Exclusion of Evidence
Video
Adverse inference
Bad Faith
Spoliation
Failure to Preserve
Sanctions
Forensic Examination
Initial Disclosures
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Summary
The court found that the WCSD Defendants had no control over the alleged spoliation of evidence, and that Plaintiffs had not shown that the WCSD Defendants acted in bad faith by failing to preserve the evidence. The court also found that the WCSD Defendants did not violate any duty to preserve evidence based on the destruction of the Jail videotape, and that Plaintiffs had failed to respond properly to Defendants' Statement of Material Facts (DSMF), which contained ESI. As a result, the Court deemed the statements contained in DSMF admitted.
Ruby Mann, as Administrator of the Estate of Melinda Neal Fairbanks, and John William Fairbanks, Jr., individually and as spouse of Melinda Neal Fairbanks, Deceased, Plaintiffs,
v.
Taser International, Inc., Joe Burge, individually and in his official capacity as Deputy Sheriff of Whitfield County, Shawn Giles, individually and in his official capacity as Deputy Sheriff of Whitfield County, Claude Craig, individually and in his official capacity as Deputy Sheriff of Whitfield County, Terry Storey, individually and in his official capacity as Deputy Sheriff of Whitfield County, Scott Chitwood, individually and in his official capacity as Sheriff of Whitfield County, Phillip Herren, as Lieutenant Sheriff of Whitfield County, individually and in his official capacity, DGG Taser and Tactical Supply Co., f/k/a DGG Taser, Inc., and Suzanne Parker, individually and in her official capacity as Deputy Sheriff of Whitfield County, Defendants
CIVIL ACTION FILE NO. 4:05-CV-0273-HLM
United States District Court, N.D. Georgia, Rome Division
Filed November 25, 2008
Murphy, Harold L., United States District Judge

ORDER

*1 This is an action filed under 42 U.S.C.A. § 1983 and Georgia law, arising from the death of Melinda Neal Fairbanks (“Ms. Fairbanks”). The case is before the Court on the Motion for Summary Judgment filed by Defendants Burge, Chitwood, Craig, Herren, Parker, and Storey (the “WCSD Defendants”) [498].
I. Initial Matters
A. Statement of Material Facts
Plaintiffs filed their own Statement of Material Facts (“PSMF”), which Plaintiffs contend responds “by corresponding number to Defendants['] Statement of Facts.” (Docket Entry No. 524-2 at 1.) For the most part, the statements contained in PSMF do not expressly state whether Plaintiffs admit or deny the statements contained in the Statement of Material Facts filed by the WCSD Defendants (“DSMF”), but instead contain Plaintiffs' own version of the facts.
Local Rule 56.1 B(2) states, in relevant part:
A respondent to a summary judgment motion shall include the following documents with the response brief:
a. A response to the movant's statement of undisputed facts.
(1) This response shall contain individually numbered, concise, nonargumentative responses corresponding to each of the movant's numbered undisputed material facts.
(2) This Court will deem each of the movant's facts as admitted unless the respondent: (i) directly refutes the movant's fact with concise responses supported by specific citations to evidence (including page or paragraph number); (ii) states a valid objection to the admissibility of the movant's fact; or (iii) points out that the movant's fact is not material or otherwise has failed to comply with the provisions set out in LR 56.1 B.(1).
(3) The court will deem the movant's citations supportive of its facts unless the respondent specifically informs the court to the contrary in the response.
(4) The response that a party has insufficient knowledge to admit or deny is not an acceptable response unless the party has complied with the provisions of Fed.R.Civ.P.56(f).
N.D. Ga. R. 56.1B(2).
The United States Court of Appeals for the Eleventh Circuit has observed: “Local Rule 56.1 protects judicial resources by ‘mak[ing] the parties organize the evidence rather than leaving the burden upon the district judge.’ ” Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008) (quoting Alsina-Ortiz v. Laboy, 400 F.3d 77, 80 (1st Cir. 2005)). Local Rule 56.1 “also streamlines the resolution of summary judgment motions by ‘focus[ing] the district court's attention on what is, and what is not, genuinely controverted.’ ” Id. (quoting Mariani-Colon v. Dep't of Homeland Sec., 511 F.3d 216, 219 (1st Cir. 2007)).
PSMF clearly does not comply with the requirements of Local Rule 56.1 B(2). First, as previously noted, virtually all of the statements contained in PSMF fail to expressly admit or deny the statements contained in DSMF. Second, virtually all of the statements contained in PSMF are argumentative. Third, virtually all of the statements contained in PSMF fall far short of being concise, as required by the Local Rules. As United States Magistrate Judge Walter E. Johnson has observed in another case:
*2 [P]laintiffs must remember that a response to a statement of undisputed material facts is not an opportunity to write another brief. If the fact stated is true, admit it. If the fact is legitimately disputed, then say why, cite the evidence that supports the denial, and stop.
Darnell v. Georgia Power Co., No. 4:04-CV-0166-HLM, slip op. at 8 (N.D. Ga. Dec. 21, 2005) (unpublished) (footnote omitted).
Under those circumstances, the Court finds that PSMF fails to comply with Local Rule 56.1B(2). The Court therefore deems all of the statements contained in DSMF admitted.[1]
The Court next must determine the practical effect of deeming all of the statements contained in DSMF admitted. The Eleventh Circuit has observed:
The proper course in applying Local Rule 56.1 at the summary judgment stage is for a district court to disregard or ignore evidence relied on by the respondent–but not cited in its response to the movant's statement of undisputed facts–that yields facts contrary to those listed in the movant's statement. That is, because the non-moving party has failed to comply with Local Rule 56.1–the only permissible way for it to establish a genuine issue of material fact at that stage–the court has before it the functional analog of an unopposed motion for summary judgment.
Reese, 527 F.3d at 1268. However, “after deeming the movant's statement of undisputed facts to be admitted pursuant to Local Rule 56.1, the district court must then review the movant's citations to the record to ‘determine if there is, indeed, no genuine issue of material fact.’ ” Id. at 1269 (quoting United States v. One Piece of Real Prop. Located at 5800 S.W. 74th Ave., Miami, Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004)).
Here, as previously discussed, the Court deems the statements contained in DSMF admitted. N.D. Ga. R. 56.1B(2). The Court, however, still must review the citations to the record provided by the WCSD Defendants in DSMF to determine whether a genuine dispute remains. Reese, 527 F.3d at 1269. The Court does so infra Part III.[2]
B. Spoliation
Plaintiffs also allege that Defendants tampered with, or spoiliated, material evidence by: (1) failing to test the hospital blood or to obtain a valid quantitative toxicology report before it degraded; (2) failing to secure the clothing of Melinda Neal Fairbanks (“Ms. Fairbanks”) for forensic examination; (3) failing to disclose to the Georgia Bureau of Investigation that Defendant Burge contended that his TASER weapon was not functioning, and that he used a second TASER; and (4) destroying the intake videotape depicting Ms. Fairbanks' arrival at the Whitfield County Jail (the “Jail videotape”). Plaintiffs request that the Court strike Defendants' Answers based on spoilation of evidence or, alternatively, that the Court deny summary judgment and exclude the testimony of Dr. William Oliver concerning Ms. Fairbanks' cause of death and other expert opinions based upon the level of methamphetamine allegedly found in Ms. Fairbanks' body, as well as expert opinions that the evidence was insufficient to show that Ms. Fairbanks' suffered injury from the TASER's electrical current, and that the Court charge the jury concerning spoliation of evidence and the presumption to be inferred from spoliation. The Court first sets forth the general law applicable to spoliation claims, and then discusses Plaintiffs' contentions in turn.
1. General Law Applicable to Spoliation Claims
*3 “ ‘Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use in pending or reasonably foreseeable litigation.’ ” Brown v. Chertoff, 563 F. Supp. 2d 1372, 1377 (S.D. Ga. 2008) (quoting Griffin v. GMAC Commercial Fin., L.L.C., No. 1:05-CV-199-WBH-GGB, 2007 WL 521907, at *3 (N.D. Ga. Feb. 15, 2007)). The “ ‘obligation to preserve evidence arises when the party receives notice that the evidence is relevant to litigation–most commonly when suit has already been filed, providing the party responsible for the destruction with express notice, but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation.’ ” Sapeu v. Bland, No. 6:04CV129, 2007 WL 2694781, at *1 n.3 (S.D. Ga. Sept. 10, 2007) (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)). An obligation to preserve evidence may arise when a party has notice of potential litigation. Id.
District courts have discretion to impose spoliation sanctions against parties. Brown, 563 F. Supp. 2d at 1377. “[F]ederal law governs the imposition of spoliation sanctions.” Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005). The Eleventh Circuit, however, also refers to Georgia law when determining whether spoliation sanctions are warranted. Id. (“Federal law in this circuit does not set forth specific guidelines, therefore, we will examine the factors enumerated in Georgia law.”).
To determine whether spoliation sanctions are warranted, “the court must consider: (1) whether the [aggrieved party] was prejudiced as a result of the destruction of evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the [offending party] acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.” Flury, 427 F.3d at 945. “As sanctions for spoliation, courts may impose the following: (1) dismissal of the case; (2) exclusion of expert testimony; or (3) a jury instruction on spoliation of evidence which raises a presumption against the spoliator.” Id.
In the Eleventh Circuit, “an adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith.” Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (per curiam). “Georgia law does not require a showing of malice in order to find bad faith.” Flury, 427 F.3d at 946. The Eleventh Circuit, however, has observed: “ ‘Mere negligence’ in losing or destroying the records is not enough for an adverse inference, as ‘it does not sustain an inference of consciousness of a weak case.’ ” Bashir, 119 F.3d at 931 (quoting Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1976)).[3]
Keeping the above standards in mind, the Court addresses Plaintiffs' spoliation arguments in turn.
2. Failure to Test the Hospital Admission Blood
Plaintiffs first contend that Defendants spoliated evidence because Dr. William Oliver, who conducted an autopsy of Ms. Fairbanks in connection with a Georgia Bureau of Investigation (“GBI”) investigation, failed to test Ms. Fairbanks' hospital admission blood for methamphetamine. Plaintiffs contend that Dr. Oliver was influenced by Whitfield County, Georgia, officials and Defendant Taser. (Pls.' Resp. WCSD Defs.' Mot. Summ. J. at 5-6.)
Plaintiffs, however, have adduced no probative evidence to demonstrate that the WCSD Defendants or Defendants Taser and DGG had anything to do with, or any control over, Dr. Oliver's decision not to obtain or test a peripheral, or hospital admission, blood sample. Given those circumstances, the Court clearly cannot apply a spoliation presumption against the WCSD Defendants based on Dr. Oliver's alleged failure to test or obtain a peripheral, or hospital admission, blood sample. See Boswell v. Overhead Door Corp., 292 Ga. App. 234, 235-36, 644 S.E.2d 262, 263 (2008) (concluding that spoliation presumption could not apply against door manufacturer based on removal of door, where city, not manufacturer, removed the door, and no evidence indicated that city removed door at behest of manufacturer).[4]
3. Failure to Secure Ms. Fairbanks' Clothing
*4 Next, Plaintiffs complain that either Dr. Oliver or the WCSD Defendants spoliated evidence by failing to secure Ms. Fairbanks' clothing for examination. As an initial matter, there is absolutely no admissible evidence in the record suggesting that the WCSD Defendants had any control over Ms. Fairbanks' clothing or its disposition after Ms. Fairbanks' transport to, and admission to, the hospital. The Court therefore cannot hold the WCSD Defendants responsible for failing to secure Ms. Fairbanks' clothing.
Additionally, as previously noted, to the extent that Plaintiffs complain that Dr. Oliver failed to obtain Ms. Fairbanks' clothing, Plaintiffs have adduced no probative evidence to demonstrate that the WCSD Defendants had anything to do with, or any control over, Dr. Oliver's decision not to retain or obtain Ms. Fairbanks' clothing. The Court consequently cannot impose spoliation sanctions on the WCSD Defendants based on this argument.
4. Alleged Failure to Provide the Version of Events Discussed in the Burge Declaration to the GBI
Plaintiffs next contend that the Court should sanction the WCSD Defendants because Defendant Burge failed to provide his version of the facts, as set forth in his Declaration filed in support of Defendants' respective Motions for Summary Judgment, to the GBI during its investigation of this case. As an initial matter, the Court observes that this argument does not relate to destruction of evidence, but instead contends that Defendant Burge failed to provide the GBI with information. Spoliation sanctions consequently are not appropriate for this alleged deficiency.
Even if Defendant Burge's alleged failure to provide information to the GBI concerning the version of events set forth in his Declaration somehow constituted spoliation of evidence, spoliation sanctions are not warranted. First, Plaintiffs have suffered no appreciable prejudice from Defendant Burge's alleged failure to provide this information to the GBI. Defendant Burge disclosed his version of the facts, as contained in his Declaration, during his deposition. Plaintiffs thus have known of that version of the facts for some period of time.
Similarly, even if Plaintiffs had suffered prejudice, that prejudice has been cured. As previously noted, Plaintiffs have been aware of the version of the facts contained in Deputy Burge's Declaration for quite some time, and have had ample opportunity to conduct discovery concerning those issues. Additionally, the evidence that Plaintiffs claimed they missed as a result of the alleged failure to disclose information to the GBI is of little practical importance.
Further, Plaintiffs simply have not shown that Defendant Burge or the WCSD Defendants acted in bad faith by failing to disclose the version of the facts contained in Defendant Burge's Declaration to the GBI. Plaintiffs also have not demonstrated that a potential for abuse will result if the Court fails to exclude expert testimony concerning the evidence.[5]
For the above reasons, the Court finds that sanctions are not warranted based upon Defendant Burge's alleged failure to disclose the version of the facts as contained in his Declaration to the GBI. The Court therefore declines to impose spoliation sanctions on the WCSD Defendants based on this alleged failure.[6]
5. Alleged Destruction of the Jail Videotape
*5 Finally, Plaintiffs contend that the WCSD Defendants destroyed the Jail videotape, which depicted Ms. Fairbanks' arrival at the Jail and her condition. Even assuming that Plaintiffs suffered prejudice from the destruction of the Jail videotape, any prejudice that Plaintiffs may have suffered has been cured, as Plaintiffs have had ample opportunity to conduct discovery concerning Ms. Fairbanks' condition with respect to her arrival at the Jail. Additionally, given the volume of evidence in this case concerning Ms. Fairbanks' condition upon arrival at the Jail, the Court cannot conclude that the Jail videotape was of significant practical importance to this case.
Further, the Court simply cannot find that the WCSD Defendants acted in bad faith by destroying the Jail videotape. Although Plaintiffs make much of the fact that the Jail videotape disappeared after the GBI requested it and after Jail staff viewed it, Plaintiffs failed to inform the Court of the evidence in the record indicating that the Jail's videotape system automatically overwrote videotapes within a fairly short period of time, and that the WCSD Defendants may not have been aware of that fact. (See Pls.' Resp. WCSD Defs.' Mot. Summ. J. Ex. U (consisting of GBI investigative summary stating that Jail's intake personnel reviewed Jail videotape, but had not copied it, and that Sheriff's Office reported that it did not know that Jail's videotape system overwrote itself periodically); Dep. of Scott Chitwood at 41 (indicating Jail videotape system re-writes itself every twenty-four hours).)[7]In light of that evidence, the Court simply cannot find that the WCSD Defendants acted in bad faith, so as to warrant imposing spoliation sanctions. See Bashir, 119 F.3d at 931 (declining to draw adverse inference based on missing speed tape where no probative evidence indicated that defendant purposely lost or destroyed relevant portions of tape); Keaton v. Cobb County, Ga., 545 F. Supp. 2d 1275, 1307-08 (N.D. Ga. 2008)(observing that Eleventh Circuit law does not require adverse inference based solely on destruction of notes, and such inference was not warranted where plaintiff provided no evidence of bad faith); Perdue v. Union City, Ga., No. 1:05-CV-00753-MHS, 2006 WL 2523094, at *10 n.6 (N.D. Ga. Aug. 28, 2006) (refusing to make adverse inference based on disappearance of jail videotape where plaintiff failed to show that any defendant destroyed or tampered with the tape or otherwise acted in bad faith); Frey v. Gainey Transp. Servs., Inc., No. 1:05-CV-1493-JOF, 2006 WL 2443787, at *9 (N.D. Ga. Aug. 22, 2006) (declining to conclude that defendant acted in bad faith where, among other things, satellite tracking data was automatically deleted from system in normal course of business).[8]
6. Summary
*6 In sum, the Court finds that Plaintiffs are not entitled to sanctions against the WCSD Defendants based on spoliation of evidence. The Court therefore declines to draw an adverse inference against the WCSD Defendants, to strike the WCSD Defendants' Answer, or to exclude Dr. Oliver's expert testimony.
C. Claims Alleged By Plaintiffs
In Plaintiffs' Response to the WCSD Defendants' Motion for Summary Judgment, Plaintiffs contend that they “clarified,” or “amended” their Fourth Amended Complaint to assert various claims, or to correct mistakes in drafting the Fourth Amended Complaint, by making statements in their Initial Disclosures.[9] (Pls.' Br. Resp. WCSD Defs.' Mot. Summ. J. at 2.) Plaintiffs, however, may not amend or correct a Complaint simply by making assertions in their Initial Disclosures. As the Court previously noted, Plaintiffs have received a number of opportunities to amend their Complaint. (Order of Jan. 20, 2007.) Plaintiffs have, as previously noted by the Court, reached the point at which “enough is enough.” (Id. at 6.) Consequently, the Court finds that all of the claims asserted by Plaintiffs are as set forth in Plaintiffs' Fourth Amended Complaint, and not as allegedly “supplemented” or “clarified” by Plaintiffs' responses to the Initial Disclosures.[10]
II. Factual Background
Keeping in mind that when deciding a motion for summary judgment, the Court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion, the Court provides the following statement of facts. See Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007) (observing that, in connection with summary judgment, court must review all facts and inferences in light most favorable to non-moving party). This statement does not represent actual findings of fact. In re Celotex Corp., 487 F.3d 1320, 1328 (11th Cir. 2007). Instead, the Court has provided the statement simply to place the Court's legal analysis in the context of this particular case or controversy.[11]
A. The Events Giving Rise to this Lawsuit
On June 22, 2005, Plaintiff John Fairbanks and Ms. Fairbanks smoked methamphetamine. (DSMF ¶ 1.) At approximately 10:00 a.m., Plaintiff Fairbanks and Ms. Fairbanks traveled to the home of Sonya Neal, Ms. Fairbanks' sister, to borrow a trailer so that they could load scrap metal and try to sell it. (DSMF ¶ 2.) Ms. Neal followed Plaintiff Fairbanks and Ms. Fairbanks to a rental property owned by Plaintiff Mann, where Ms. Neal, Plaintiff Fairbanks, and Ms. Fairbanks began to load scrap metal onto the trailer. (Id.)
At some point while loading scrap metal, Plaintiff Fairbanks and Ms. Fairbanks began arguing. (DSMF ¶ 2.) According to Plaintiff Fairbanks, Ms. Neal asked him to try to calm Ms. Fairbanks, but he responded, “that's not going to work.” (ld. ¶ 3.)
*7 Ms. Fairbanks began jumping up on the back of the trailer, getting in Plaintiff Fairbanks' way. (DSMF ¶ 3.) Ms. Fairbanks became agitated, and rifled through Ms. Neal's truck and purse. (Id.) Ms. Fairbanks took out Ms. Neal's driver's license and broke it. (Id.) Ms. Fairbanks also threatened to call the police. (Id.)[12]
Ms. Fairbanks walked to a nearby house, where an elderly couple, Ruth and Melvin Phillips, lived. (DSMF ¶ 4.) Ms. Fairbanks knocked on the door, and then followed Mrs. Phillips inside the house. (Id.)
Ms. Neal testified that she went to the door of the Phillips' residence and called Ms. Fairbanks' name two or three times; however, Ms. Fairbanks refused to come outside. (DSMF ¶ 4.) Ms. Neal returned to Plaintiff Fairbanks and told him that Ms. Fairbanks had called the law on him. (Id. ¶ 5.)
Ms. Neal saw Ms. Fairbanks digging through stuff and throwing things out the door of the Phillips' residence. (DSMF ¶ 6.) Ms. Neal recalls that Ms. Fairbanks became more agitated when Ms. Neal attempted to get her to leave the residence. (Id.)
Meanwhile, Plaintiff Fairbanks did not attempt to calm Ms. Fairbanks. (DSMF ¶ 7.) Instead, he left the scene and drove down the street, where he parked in another driveway and watched. (Id. ¶ 8.) According to Plaintiff Fairbanks, he wanted to leave because he was afraid that the police would come and take him to jail. (Id. ¶ 7.)
Ms. Fairbanks and Mrs. Phillips both telephoned 911. (DSMF ¶ 9.) Police were dispatched to the Phillips' residence, and Defendant Giles responded to the dispatch call. (Id.) Defendant Parker, an animal control officer and a deputy, responded as back up and arrived on the scene shortly before Defendant Giles arrived. (Id. ¶ 10.)
When Defendant Parker exited her vehicle at the Phillips' residence, she heard a woman screaming. (DSMF ¶ 10.) Defendant Parker knocked on the residence's door, and spoke with Mr. and Mrs. Phillips in an attempt to determine what was happening. (Id.) Mr. and Mrs. Phillips, an elderly, disabled couple, were upset and distraught. (Id. ¶ 11.)
When Defendant Giles arrived on the scene, he spoke briefly with Defendant Parker. (DSMF ¶ 12.) By that time, Ms. Fairbanks had walked out of the Phillips' residence and into the back yard. (Id.) Ms. Fairbanks began yelling at Defendant Giles, complaining that someone had stolen her things. (Id.)
Defendant Giles went back into the Phillips' residence to speak with Mrs. Phillips. (DSMF ¶ 12.) Mrs. Phillips informed Defendant Giles that Ms. Fairbanks would not answer her questions, and that Ms. Fairbanks began going through all of Mrs. Phillips' belongings, throwing those, and taking out drawers and dumping those. (Id.) After speaking to Mr. and Mrs. Phillips and viewing the scene inside the Phillips' residence, Defendant Giles decided to place Ms. Fairbanks under arrest. (Id. ¶ 13.)
At some point, Deputy Chris Griffin arrived at the residence and attempted to speak with Ms. Fairbanks. (DSMF ¶ 14.) Deputy Griffin knew Ms. Fairbanks from previous calls to law enforcement and from a previous arrest of Ms. Fairbanks for drugs. (Id.) Deputy Griffin knew that Ms. Fairbanks had used methamphetamine in the past. (Id.)
*8 Defendant Giles and Defendant Parker exited the Phillips' residence. (DSMF ¶ 15.) Defendant Giles approached Ms. Fairbanks, asked Ms. Fairbanks to place her hands behind her back, and informed Ms. Fairbanks that she was under arrest. (Id.)
Because Ms. Fairbanks was a large woman who weighed at least 200 pounds, Defendant Giles decided to link two sets of handcuffs together to handcuff Ms. Fairbanks, purportedly for her comfort. (DSMF ¶ 16.) When Defendant Giles attempted to place the second interlaced handcuff on Ms. Fairbanks' wrist, Ms. Fairbanks became combative. (ld. ¶ 17.) Specifically, Ms. Fairbanks began screaming, and kicked Deputy Griffin in the leg, attempting to “shin-scrape” him with her foot. (Id.) Ms. Fairbanks also attempted to break the deputies' hold on her. (Id.) Ms. Fairbanks continued screaming, and, according to Defendant Parker, shouted that someone was attempting to steal her dope. (Id.)
Defendant Giles held one of Ms. Fairbanks' arms, while Deputy Griffin held the other. (DSMF ¶ 18.) Ms. Fairbanks continued screaming, yelling, and trying to jerk away from the deputies as they escorted her to the patrol car. (Id.) Defendant Parker assisted Defendant Giles and Deputy Griffin in attempting to place Ms. Fairbanks in the back seat of the patrol car. (Id.) The deputies believed that Ms. Fairbanks was too combative to pat down at that point. (Id.)
Once Ms. Fairbanks was inside the patrol car, the deputies became concerned because they observed her digging into her pockets. (DSMF ¶ 19.) The deputies decided to take Ms. Fairbanks out of the patrol car to have Defendant Parker, a female officer, pat her down for weapons or contraband. (Id.)
According to Defendants, as Defendant Parker tried to pat down Ms. Fairbanks, Ms. Fairbanks began to slam her head against the trunk lid, to flail her legs, and to try to hit Defendant Parker with her arms and head. (DSMF ¶ 20.) Defendant Parker recalls that Ms. Fairbanks spit on her and threatened to “kick her ass.” (Id.) Ms. Fairbanks remained combative throughout this encounter. (Id.)
After the pat down, the deputies attempted to place Ms. Fairbanks back in the patrol car. (DSMF ¶ 21.) Ms. Fairbanks refused to get into the patrol car, and used her head and legs to brace herself outside the car. (Id.) The deputies repeatedly instructed Ms. Fairbanks to stop resisting and to get into the patrol car. (Id. ¶ 22.)
Defendants Giles and Parker eventually placed Ms. Fairbanks in a seated position in the back seat of the patrol car. (DSMF ¶ 22.) Deputy Griffin went around to the other side of the patrol car, intending to reach into the car and help pull Ms. Fairbanks further inside the car. (Id.) According to the deputies, Ms. Fairbanks began kicking so hard against the car that, when Deputy Griffin opened the door on the other side of the car, she propelled herself out of the opened door, ultimately landing on the ground on her head. (Id.)
Deputy Griffin immediately called for EMS because it appeared as though Ms. Fairbanks hit her head on the ground when she propelled herself out of the patrol car. (DSMF ¶ 24.) Defendants Parker and Giles attempted to help Deputy Griffin pick Ms. Fairbanks up; however, Ms. Fairbanks continued to flop around, to kick, and to fight with the deputies. (Id. ¶ 25.) The deputies attempted to hold Ms. Fairbanks on the ground to keep her from harming herself while they waited for back up to arrive. (Id.) According to Defendant Parker, Ms. Fairbanks exhibited “superman strength.” (Id.)
*9 Lieutenant Lyle Grant of the Varnell Police Department arrived on the scene as back-up. (DSMF ¶ 26.) Lieutenant Grant observed Ms. Fairbanks struggling and kicking while the deputies attempted to hold her down. (Id.) A camera in Lieutenant Grant's car captured a portion of the incident on videotape. (Id.)
Lieutenant Grant had leg shackles with him, which he grabbed and placed on Ms. Fairbanks' ankles. (DSMF ¶ 27.)[13] Lieutenant Grant intended to minimize Ms. Fairbanks' kicking and to keep her from harming herself and the deputies. (Id.) The videotape of the incident depicts Lieutenant Grant removing the shackles from his vehicle and placing those on Ms. Fairbanks. (Id.)
Defendant Burge arrived on the scene as the other deputies and Lieutenant Grant were attempting to control Ms. Fairbanks. (DSMF ¶ 28.) Defendant Burge walked up to Ms. Fairbanks and told her to comply with the deputies' instructions. (Id.) According to Defendant Burge:
[W]hen I got to the scene and all the deputies were there and they were struggling on the ground with Ms. Fairbanks and I went back to my car and got the Taser and took the - the projectile end off of it and squeezed it once or twice and said, you know, you don't need to have any part of this, please cooperate, or something to that effect, I don't know word for word, and she began telling me basically what she thought of me, and we got her over to the car and when I – when they were putting her in the car is when I put the cap back on the – on the weapon.
(Id.) Ms. Fairbanks ignored Defendant Burge's commands and continued to yell and scream. (Id. ¶ 29.)
Four officers--Defendants Giles and Parker, Deputy Griffin, and Lieutenant Grant–eventually succeeded in placing Ms. Fairbanks back into the patrol car. (DSMF ¶ 30.) Once inside the patrol car, Ms. Fairbanks continued to kick, eventually shattering the rear passenger window of the patrol car and bending the door frame. (Id. ¶ 31.) Defendant Storey took photographs of the scene. (Id.)
Defendant Burge instructed Ms. Fairbanks to stop kicking the badly damaged door, and attempted to calm her down. (DSMF ¶ 32) Ms. Fairbanks told Defendant Burge “no,” and continued to kick the door and to slam her head against the door. (Id.) Ms. Fairbanks' continued combativeness and violence escalated the situation. (Id.)
After several warnings and request to Ms. Fairbanks to stop kicking, Defendant Burge discharged the TASER. (DSMF ¶ 33.) Ms. Fairbanks continued to fight hard to get out of the patrol car. (Id. ¶ 34.) Deputy Griffin recalls that the first TASER deployment seemed to subdue Ms. Fairbanks momentarily, but that he never observed the TASER affect her “anymore after the first time.” (Id. ¶ 35.) Lieutenant Grant testified that the TASER had no effect on Ms. Fairbanks. (Id.) Defendant Parker recalls that Ms. Fairbanks gave no kind of emotional or verbal response indicating that the TASER made good contact. (Id. ¶ 36.) Defendant Giles testified that the TASER had “very little” effect on Ms. Fairbanks. (Id. ¶ 37.)
Defendant Burge discharged the TASER toward Ms. Fairbanks a total of three times. (DSMF 38.) Defendant Burge saw Ms. Fairbanks tighten up–the expected physical response–in response to the first TASER discharge, when she stopped kicking momentarily. (Id.) Defendant Burge contends that the other TASER applications had no effect on Ms. Fairbanks. (Id.) According to Defendant Burge, this probably occurred because one of the TASER leads came loose while Ms. Fairbanks struggled, likely preventing the TASER from charging Ms. Fairbanks. (Id.) According to Defendant Burge, the TASER had such little effect on Ms. Fairbanks that the TASER might not have been functioning properly. (Id.)
*10 Defendant Storey arrived on the scene shortly after Defendant Burge discharged his TASER. (DSMF ¶ 39.) Defendant Storey could see the TASER leads going into Ms. Fairbanks' shirt, but he recalls that Ms. Fairbanks “was moving so much and kicking and stuff it was hard to just tell anything in particular.” (Id.)
Defendant Burge informed Defendant Storey that something was wrong with his TASER and that he had used the TASER and it was initially effective, but it then stopped. (DSMF ¶ 40.) Defendant Burge wanted to see if anything was wrong with his TASER, and Defendant Storey retrieved his own TASER. (Id.) Defendant Burge removed the cartridge from his TASER, plugged it into Defendant Storey's TASER, and discharged it. (Id.) According to Defendants, nothing happened. (Id.)
None of the deputies ever struck Ms. Fairbanks or placed her in a choke hold. (DSMF 46.) Further, none of the deputies used pepper spray on Ms. Fairbanks. (Id.)
EMS personnel arrived on the scene and attempted to examine Ms. Fairbanks. (DSMF ¶ 41.) Ms. Fairbanks screamed profanities at the EMS personnel, and appeared as though she might kick them. (Id.) Ms. Fairbanks yelled at Paramedic Thomas Sainthill to “get his fat ass away from her, you're one of those MF's, son of a bitches.” (Id.) EMS personnel could not assess Ms. Fairbanks fully because she was so combative. (Id.) The videotape depicts the EMS paramedics on the scene, looking at and approaching Ms. Fairbanks several times over several minutes. (Id.)
One of the EMS personnel, Mr. Singleton, testified that Ms. Fairbanks did not appear to be in any immediate medical distress, because she was talking, breathing, and responding. (DSMF ¶ 42.) Mr. Singleton noticed no injuries requiring immediate medical attention. (Id.)
Because Ms. Fairbanks was so combative, Deputy Parker, the lone female officer, was asked to remove the TASER dart from Ms. Fairbanks' breast. (DSMF ¶ 43.) Defendant Parker observed only one dart connected to Ms. Fairbanks, and did not see blood on Ms. Fairbanks' shirt. (Id.) Two TASER darts are required to complete a circuit, and nothing indicated that the other TASER dart made good contact with Ms. Fairbanks' skin. (Id. ¶¶ 43-44.)
The EMS personnel left the scene. (DSMF ¶ 45.) Defendant Giles then transported Ms. Fairbanks to the Whitfield County Jail (the “Jail”) in a patrol car. (Id.) Defendant Giles believed that EMS had medically cleared Ms. Fairbanks. (Id.) None of the officers discussed transporting Ms. Fairbanks to the hospital, because Ms. Fairbanks was not in obvious medical distress. (Id.) Defendant Giles recalls that Ms. Fairbanks continued kicking and screaming after the TASER was discharged, and he believed that she was physically okay. (Id. ¶ 47.) The deputies recall that Ms. Fairbanks did not appear to have problems with her breathing, and that she was not in obvious physical distress. (Id. ¶ 48.) Other than having a scrape on her arm and being dirty and sweaty, Ms. Fairbanks did not appear injured to the deputies or to the EMS personnel. (Id. ¶ 49.)
According to Defendants, Ms. Fairbanks continued to yell, kick, and scream on the way to the Jail, to the point that Defendant Giles feared that Ms. Fairbanks would kick open the patrol car's damaged rear door. (DSMF ¶ 50.) Defendant Giles contacted Defendant Craig to see if he could “pick up” the pace because Ms. Fairbanks was continuing to kick and scream, and Defendant Craig instructed Defendant Giles to transport Ms. Fairbanks to the Jail. (Id.) Other than Ms. Fairbanks' violent state, Defendant Giles did not observe anything that led him to believe that Ms. Fairbanks was in physical distress or needed medical attention. (Id.) Ms. Fairbanks stopped kicking and screaming when the patrol car was approximately fifteen to thirty seconds away from the Jail. (Id. ¶¶ 50-51.)
*11 When the jailers opened the door to get Ms. Fairbanks out of the patrol car, Ms. Fairbanks was unresponsive, but appeared to have no difficulty breathing on her own. (DSMF ¶ 52.) Based on Ms. Fairbanks' appearance, Sergeant Vickie Burge believed that Ms. Fairbanks might be overheated and in danger of a heat stroke. (Id. ¶ 53.) Sergeant Burge's immediate concern was to get Ms. Fairbanks into a cool environment and to try to cool her down. (Id.) Sergeant Burge did not think Ms. Fairbanks was in danger of dying. (Id. ¶ 54.)
Because Ms. Fairbanks had become unresponsive, Jail deputies called EMS shortly after Ms. Fairbanks arrived at the Jail. (DSMF ¶ 55.) Jail staff provided Ms. Fairbanks with a cool compress and first aid while they waited for EMS to arrive. (Id.) EMS personnel arrived at the Jail approximately five minutes later. (Id.) EMS personnel ultimately transported Ms. Fairbanks to the hospital. (Id.)
Ms. Fairbanks did not go into cardiac arrest until she arrived at the hospital, over an hour after her TASER exposure. (DSMF ¶ 56.) Dr. William Oliver of the Georgia State Crime Laboratory conducted an autopsy of Ms. Fairbanks on behalf of the GBI. (DSMF ¶ 57.) Dr. Oliver concluded that the cause of Ms. Fairbanks' death was malignant hyperthermia, secondary to ingestion of toxic levels of methamphetamine, and that the TASER played no role in Ms. Fairbanks' death. (Id.)
The GBI conducted an investigation concerning Ms. Fairbanks' death, as is standard procedure in connection with an in-custody death. (DSMF ¶ 58.) In connection with that investigation, Plaintiff Fairbanks was charged with criminal solicitation, based on his statements to the GBI investigator that he talked Ms. Fairbanks into obtaining methamphetamine for them. (Id.) Plaintiff Fairbanks pleaded guilty to that charge. (Id.) Plaintiff Fairbanks testified that he felt guilt in connection with Ms. Fairbanks' death. (ld. ¶ 59.)
B. Training
Defendant Burge was certified to use a TASER in 2001, but had not used a TASER on an individual prior to deploying one on Ms. Fairbanks. (DSMF ¶ 60.) Defendant Burge had attended monthly in-service training, and had received all of his Peace Officer Standards Council (“POST”) required training. (Id.)
Defendant Herren is one of two training officers for the WCSD. (DSMF ¶ 60.) The WCSD also has other certified instructors who conduct training. (Id.)
C. Policies
The WCSD had TASER and use of force policies in place prior to Ms. Fairbanks' death. (DSMF ¶ 62.) The WCSD trained deputies according to those policies. (Id. ¶ 62.)
D. Complaints
The WCSD's patrol division captain had received no complaints concerning TASER use. (DSMF ¶ 63.) The captain of the WCSD's criminal investigations division was aware of no TASER-related injuries, other than prong removal, or deaths that occurred prior to this incident. (Id. ¶ 64.) Over the last seven years, no deaths from use of force have occurred, other than deaths in which officers returned fire on a suspect. (Id.)
E. Knowledge
None of the deputies involved in the incident that gave rise to this lawsuit had heard of the term “excited delirium” prior to that incident. (DSMF ¶ 65.) The WCSD did not conduct training concerning excited delirium until after Ms. Fairbanks' death. (Id.)
F. The TASER
The TASER's data port is a mechanism that logs trigger pulls. (DSMF ¶ 66.) The data port does not distinguish between test fires, dry fires, or effective discharges. (Id.) Stated differently, the data port records every time the TASER's trigger is pulled, regardless of whether a cartridge is inserted into the TASER or the electrical current is delivered. (Id.) A printout of the data port does not indicate whether a broken wire or loose probe prevented an effective discharge of the TASER. (Id.)
III. Procedural Background
*12 On December 12, 2005, Plaintiffs filed this lawsuit. (Docket Entry No. 1.) On December 27, 2005, Plaintiffs filed an Amended Complaint for Damages and Demand for Trial by Jury. (Docket Entry No. 9.)
On January 19, 2006, Defendant Taser filed a Motion to Dismiss. (Docket Entry No. 16.) On January 31, 2006, Plaintiffs filed a Motion to Amend. (Docket Entry No. 21.)
On February 22, 2006, the Court entered an Order granting Defendant Taser's Motion to Dismiss with respect to Plaintiffs' fraud claim, but denying the Motion with respect to Plaintiffs' punitive damages claim. (Order of Feb. 22, 2006.) The Court's February 22, 2006, Order also granted Plaintiffs' Motion to Amend. (Id.) On February 27, 2006, Plaintiffs filed a Second Amended Complaint for Damages and Demand for Jury Trial. (Docket Entry No. 34.)
On May 30, 2006, Plaintiffs filed a Motion to Amend and Substitute Identities for John Does I, II, and III. (Docket Entry No. 108.) On June 20, 2006, the Court granted that Motion, and, on June 22, 2006, Plaintiffs filed a Third Amended Complaint for Damages and Demand for Jury Trial. (Docket Entry No. 120.)
On July 25, 2006, Defendants Giles, Craig, Storey, and Burge filed a Motion for Leave to File Answer to Third Amended Complaint. (Docket Entry No. 131.) On August 2, 2006, the Court granted that Motion. (Order of Aug. 2, 2006.)
On December 28, 2006, Plaintiffs filed a Motion for Leave to Substitute Plaintiff and Amend Adding Two Party Defendants. (Docket Entry No. 201.) On January 19, 2007, the Court granted that Motion. (Order of Jan. 19, 2007.) On January 22, 2007, Plaintiffs filed their Fourth Amended Complaint for Damages and Demand for Jury Trial. (Docket Entry No. 211.)
On January 22, 2007, Plaintiffs filed a Motion to Quash and for Protective Order Pursuant to Patient Therapist Privilege. (Docket Entry No. 212.) On February 14, 2007, the Court entered an Order denying that Motion. (Order of Feb. 14, 2007.)
On July 11, 2007, Plaintiffs filed an Emergency Motion for Protective Order and to Quash. (Docket Entry No. 282.) On July 12, 2007, the Court granted in part and denied in part that Motion. (Order of July 12, 2007.)
On August 1, 2007, Plaintiff Fairbanks filed a Motion to Dismiss Taser's Counterclaim. (Docket Entry No. 297.) On August 7, 2007, Plaintiffs filed a Motion to Exclude Opinions, in Part, of William Oliver, M.D. (Docket Entry No. 302.)
On August 15, 2007, Plaintiffs filed a Motion to Compel Production of Documents to Defendant Sheriff of Whitfield County. (Docket Entry No. 314.) On August 20, 2007, Plaintiffs withdrew that Motion. (Docket Entry No. 318.)
On September 10, 2007, the Court denied Plaintiff Fairbanks' Motion to Dismiss Taser's Counterclaim. (Order of Sept. 10, 2007.) On October 1, 2007, the Court denied Plaintiffs' Motion to Exclude Opinions, in Part, of William Oliver, M.D. (Order of Oct. 1, 2007.)
On October 31, 2007, Defendant Taser filed a Motion to Exclude the Medical Causation Opinions of Charly Miller. (Docket Entry No. 358.) On December 27, 2007, the Court entered an Order that granted in part and denied in part that Motion. (Order of Dec. 27, 2007.) On January 2, 2008, Plaintiffs filed a Motion for Clarification of the December 27, 2007, Order, which the Court denied on that same day. (Docket Entry Nos. 386, 388.)
*13 On January 10, 2008, Plaintiffs filed a Motion to Exclude Testimony of Defendant Taser's Expert Witness, Mark Lehto, Ph.D. (Docket Entry No. 396.) On January 11, 2008, Plaintiffs filed a Motion to Exclude Testimony of Defendant Taser's Expert Tom Neuman, M.D. (Docket Entry No. 400.) On February 4, 2008, the Court denied those Motions to Exclude. (Orders of Feb. 4, 2008, Docket Entry Nos. 416 (Neuman), 417 (Lehto).)
On January 28, 2008, the Court entered an Order granting a Motion for Summary Judgment filed by then-party Hamilton Emergency Medical Services, and dismissed the wrongful death claims asserted by Plaintiffs on behalf of Haley and Jonathan Fairbanks. (Order of Jan. 28, 2008.) On that same day, Plaintiffs filed a Motion for Clarification with respect to the January 28, 2008, Order. (Docket Entry No. 403.) On that same day, the Court denied the Motion for Clarification. (Order of Jan. 28, 2008, Docket Entry No. 405.)
On February 1, 2008, Plaintiffs filed a Motion to Exclude Testimony of Defendant Taser's Executives Designated as Expert Witnesses. (Docket Entry No. 411.) On February 14, 2008, the Court approved a stipulation presented by the parties, and denied the Motion to Exclude Testimony of Defendant Taser's Executives Designated as Expert Witnesses as moot and without prejudice. (Order of Feb. 14, 2008; Docket Entry No. 421 (approving stipulation).)
On February 1, 2008, Plaintiffs filed a Motion to Amend Complaint based on the Court's January 28, 2008, Orders. (Docket Entry No. 415.) On February 21, 2008, the Court denied that Motion. (Order of Feb. 21, 2008.)
On May 13, 2008, Plaintiffs filed a Motion to Exclude Testimony of Defendant Taser's Expert Witness Dorin Panescu, Ph.D. (Docket Entry No. 432.) On May 21, 2008, Defendant Taser filed a Motion to Exclude Theoretical Causation Opinions of Dr. Gerald Gowitt. (Docket Entry No. 435.) On that same day, Defendant Taser filed a Motion to Exclude Opinions of Darrell Tidwell. (Docket Entry No. 436.) On June 30, 2008, the Court entered an Order denying Plaintiffs' Motion to Exclude with respect to Dr. Panescu, granting in part and denying in part Defendant Taser's Motion to Exclude with respect to Dr. Gowitt, and granting Defendant Taser's Motion to Exclude with respect to Mr. Tidwell. (Order of June 30, 2008.)
On July 7, 2008, Plaintiffs filed a Motion for Clarification concerning the June 30, 2008, Order. (Docket Entry No. 471.) On July 8, 2008, the Court denied the Motion for Clarification. (Order of July 8, 2008.)
On June 20, 2008, Plaintiffs filed a Motion to Exclude Medical Causation and Legal Conclusions of Defendant Taser's Designated Expert Witness John Peters. (Docket Entry No. 463.)
On June 27, 2008, Plaintiffs and Defendant Hamilton Emergency Medical Services, Inc. filed a Stipulation of Dismissal. (Docket Entry No. 467.) On June 30, 2008, the Court entered an Order directing the parties to file any objections that they might have to the proposed dismissal of Defendant Hamilton Emergency Medical Services within ten days. (Order of June 30, 2008.) No party filed objections, and, on July 21, 2008, the Court approved the stipulation and dismissed Defendant Hamilton Emergency Medical Services from this action with prejudice. (Order of July 21, 2008.)
On July 17, 2008, Defendant Taser filed a Motion to Exclude Plaintiffs' Untimely Disclosure of Expert Opinions. (Docket Entry No. 474.) On July 29, 2008, the Court granted that Motion. (Order of July 29, 2008.)
*14 On August 21, 2008, Plaintiffs filed a Motion for Partial Summary Judgment against the WCSD Defendants. (Docket Entry No. 482.)[14] On September 30, 2008, the WCSD Defendants filed their Motion for Summary Judgment. (Docket Entry No. 498.) The briefing process for that Motion is complete, and the Court therefore concludes that the Motion is ripe for resolution by the Court.[15]
IV. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) authorizes summary judgment when “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial burden of showing the Court that summary judgment is appropriate, and may satisfy this burden by pointing to materials in the record. Reese, 527 F.3d at 1269 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)); Allen v. Bd. of Public Educ. for Bibb County, 495 F.3d 1306, 1313 (11th Cir. 2007). Once the moving party has supported its motion adequately, the non-movant has the burden of showing summary judgment is improper by coming forward with specific facts that demonstrate the existence of a genuine issue for trial. Allen, 495 F.3d at 1314.
When evaluating a motion for summary judgment, the Court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion. Optimum Techs., Inc., 496 F.3d at 1241. The Court also must “ ‘resolve all reasonable doubts about the facts in favor of the non-movant.’ ” Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008) (quoting United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am., 894 F.2d 1555, 1558 (11th Cir. 1990)). Further, the Court may not make credibility determinations, weigh conflicting evidence to resolve disputed factual issues, or assess the quality of the evidence presented. Reese, 527 F.3d at 1271; Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir. 2007). Finally, the Court does not make factual determinations. In re Celotex Corp., 487 F.3d at 1328.
V. Discussion
A. Individual Capacity Claims
1. Whether Plaintiffs Have Established Constitutional Violations
a. Eighth Amendment Claims
Plaintiffs' Fourth Amended Complaint alleges that the WCSD Defendants subjected Ms. Fairbanks to cruel and unusual punishment, in violation of the Eighth Amendment. The Eighth Amendment, however, applies only to convicted prisoners. Andujar v. Rodriguez, 486 F.3d 1199, 1203 n.3 (11th Cir. 2007), cert. denied, 128 S. Ct. 385 (2007); Daniel v. U.S. Marshall Serv., 188 F. App'x 954, 961 (11th Cir. 2006) (“The Eighth Amendment governs the conditions under which convicted prisoners are confined and the treatment they receive while in prison.”), cert. denied, 127 S. Ct. 1275 (2007). During the time period relevant to this action, Ms. Fairbanks was an arrestee or a pretrial detainee. Consequently, the Eighth Amendment has no application to this case, and Plaintiffs' Eighth Amendment claims fail as a matter of law. See Daniel, 188 F. App'x at 961 (“[B]ecause the Eighth Amendment's prohibitions against cruel and unusual punishment do not apply to pretrial detainees, ... claims involving the mistreatment of pretrial detainees in custody are limited to a due process claim.”).
b. False Arrest
*15 Plaintiffs also allege that the WCSD Defendants arrested Ms. Fairbanks without probable cause, in violation of the Fourth Amendment. “An arrest does not violate the Fourth Amendment if a police officer has probable cause for the arrest.” Wood v. Kesler, 323 F.3d 872, 878 (11th Cir. 2003). When determining whether probable cause exists to support an arrest, the Court considers whether the arresting officer's actions were “objectively reasonable based on the totality of the circumstances.’ ” Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004) (citing Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998)). “This standard is met when the facts and circumstances within the officer's knowledge, of which he or she has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.’ ” Id. (quoting Rankin, 133 F.3d at 1435) (internal quotation marks omitted).
“ ‘Although probable cause requires more than suspicion, it does not require convincing proof, and need not reach the [same] standard of conclusiveness and probability as the facts necessary to support a conviction.’ ” Wood, 323 F.3d at 878 (quoting Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002)) (alteration in original). The officer's subjective intent is immaterial, and the Court instead must consider the facts objectively. Williams v. City of Homestead, Fla., No. 06-11092, 2006 WL 3102305, at *1 (11th Cir. Nov. 2, 2006) (per curiam). The existence of probable cause for an arrest bars a § 1983 false arrest claim. Kingsland, 382 F.3d at 1226.
Here, the evidence in the record demonstrates that the WCSD Defendants had probable cause to arrest Ms. Fairbanks for criminal trespass or for disorderly conduct. O.C.G.A. § 16-7-21 provides, in relevant part:
(a) A person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less or knowingly and maliciously interferes with the possession or use of the property of another person without the consent of that person.
(b) A person commits the offense of criminal trespass when he or she knowingly and without authority:
(1) Enters upon the land or premises of another person ... for an unlawful purpose;
(2) Enters upon the land or premises of another person ... after receiving, prior to such entry, notice from the owner, rightful occupant, or upon proper identification, and authorized representative of the owner or rightful occupant that such entry is forbidden; or
(3) Remains upon the land or premise of another person ... after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant to depart.
O.C.G.A. § 16-7-21. O.C.G.A. § 16-11-39(a) states, in relevant part:
A person commits the offense of disorderly conduct when such person commits any of the following:
(1) Acts in a violent or tumultuous manner toward another person whereby such person is placed in reasonable fear of the safety of such person's life, limb, or health;
(2) Acts in a violent or tumultuous manner toward another person whereby the property of such person is placed in danger of being damaged or destroyed;
(3) Without provocation, uses to or of another person in such person's presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinarily circumstances will, when used to or of another person in such other person's presence, naturally tend to provoke violent resentment, that is, words commonly called “fighting words.”
O.C.G.A. § 16-11-39(a).
*16 Here, Defendant Giles, who placed Ms. Fairbanks under arrest, received information indicating that Ms. Fairbanks had entered the Phillips' residence after requesting to use the telephone, had refused to answer the Phillips' questions or to leave, and had ransacked the Phillips' residence, going through and dumping out drawers and furniture. This information, at a minimum, was sufficient to give Defendant Giles probable cause to arrest Ms. Fairbanks for criminal trespass. Further, given Ms. Fairbanks' conduct while inside the Phillips' residence, and given that the deputies, including Defendant Giles, observed Ms. Fairbanks in the yard of the residence “ranting and raving” and cursing, Defendant Giles had probable cause to arrest Ms. Fairbanks for disorderly conduct.[16]
Plaintiffs apparently contend that Defendant Giles had no probable cause to arrest Ms. Fairbanks because Ms. Fairbanks lacked the requisite criminal intent or mental capacity to commit a crime. Defendant Giles, however, was not required to investigate Ms. Fairbanks' mental state or mental capacity prior to placing her under arrest. See Spalsbury v. Sisson, 250 F. App'x 238, 246 (10th Cir. 2007) (observing that officer was not required to forego arrest pending further investigation if facts, as initially discovered, provided probable cause). In any event, the information available to Defendant Giles indicated that Ms. Fairbanks intentionally entered the Phillips' residence and ransacked it. Moreover, the disorderly conduct statute does not appear to include an intent requirement. Under those circumstances, Plaintiffs' arguments relating to Ms. Fairbanks' alleged mental state or mental capacity do not defeat probable cause.
In sum, the Court finds that Defendant Giles had probable cause to arrest Ms. Fairbanks. Plaintiffs' § 1983 false arrest claim therefore fails.[17]
c. Excessive Force
Next, Plaintiffs assert that the WCSD Defendants used excessive force when attempting to place Ms. Fairbanks under arrest. “The Fourth Amendment's freedom from unreasonable searches and seizures also encompasses the right to be free from the use of excessive force in the course of an investigatory stop, or other ‘seizure’ of the person.” Kesinger v. Herrington, 381 F.3d 1243, 1248 (11th Cir. 2004). When determining whether the force used to effect a seizure is reasonable for purposes of the Fourth Amendment, a court must carefully balance “ ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)) (internal quotation marks omitted). In conducting this analysis, a court should determine “whether the officer's actions are ‘objectively reasonable’ in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation.” Kesinger, 321 F.3d at 1248 (quoting Graham, 490 U.S. at 397). The court must ask whether a reasonable officer would believe that the level of force used was necessary to resolve the situation at hand. Id. at 1248 n.3. In making that determination, the court must pay “careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396.
*17 The Supreme Court has observed:
The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, nor by the mistaken execution of a search warrant on the wrong premises. With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,” violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving–-about the amount of force that is necessary in a particular situation.
As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers' actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.
Graham, 490 U.S. at 396-97 (citations omitted).
It is well settled in the Eleventh Circuit that “an officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer's use of excessive force, can be held liable for his nonfeasance.” Velazquez v. City of Hialeah, 484 F.3d 1340, 1341-42 (11th Cir. 2007) (quoting Skrtich v. Thornton, 280 F.3d 1295, 1302 (11th Cir. 2002)and citing several Eleventh Circuit opinions stating same) (internal quotation marks omitted).
The Eleventh Circuit has observed that “ ‘the application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment.’ ” Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir. 2000) (quoting Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir. 2000)); see Nolin, 207 F.3d at 1256-58 & n.4 (concluding force used to arrest plaintiff was de minimis where officer grabbed plaintiff and shoved him a few feet against a vehicle, pushed his knee into plaintiff's back and plaintiff's head against a van, searched plaintiff's groin in uncomfortable manner, and placed plaintiff in handcuffs); Jones v. City of Dothan, 121 F.3d 1456, 1460-61 (11th Cir. 1997) (finding force was de minimis where officer slammed plaintiff against wall, kicked plaintiff's legs apart, required plaintiff to raise his arms above his head, and pulled plaintiff's wallet from his pants); Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559-60 (11th Cir. 1993) (holding force used was de minimis where officer pushed unresisting plaintiff against wall and applied choke-hold before placing plaintiff in handcuffs); see also Gainor v. Douglas County, Georgia, 59 F. Supp. 2d 1259, 1287-88 (N.D. Ga. 1998) (concluding use of pepper spray did not constitute excessive force; pepper spray is of limited intrusiveness).
*18 Here, the evidence, even viewed in the light most favorable to Plaintiffs, indicates that Ms. Fairbanks began struggling and fighting when the WCSD deputies attempted to place her in handcuffs and to place her in the patrol car. The evidence further indicates that the deputies removed Ms. Fairbanks from the patrol car to pat her down after they observed her reaching into her pockets, and that Ms. Fairbanks resumed kicking, struggling, and screaming, and began banging her head against the patrol car at this point.[18] The evidence further indicates that Ms. Fairbanks continued to struggle and resist being placed in the patrol car, and that Ms. Fairbanks continued to struggle, yell, and kick even after the deputies placed her back into the patrol car. Additionally, the evidence demonstrates that Ms. Fairbanks propelled herself out of the patrol car and landed on her head, then began struggling again with the deputies as the deputies attempted to place her back into the patrol car.[19] Given those circumstances, the deputies were justified in using force against Ms. Fairbanks to attempt to restrain her. The evidence demonstrates that the deputies used minimal, non-lethal force, and that Ms. Fairbanks did not suffer significant injuries from that force. The Court consequently cannot find that the force used by the deputies to attempt to restrain Ms. Fairbanks and to place her in the patrol car was excessive.[20]
The evidence also indicates that Ms. Fairbanks continued to behave combatively after the deputies placed her in the patrol car and placed leg shackles on her. Indeed, the evidence demonstrates that Ms. Fairbanks continued to kick and yell, and that her kicking ultimately broke the rear driver's side window of the patrol car and bent the door frame, even though she already was handcuffed and wearing leg shackles. Defendant Burge warned Ms. Fairbanks that he would deploy a TASER against her if she did not stop kicking the patrol car; however, Ms. Fairbanks did not stop. Under those circumstances, the Court cannot find that Defendant Burge's initial deployment of a TASER device against Ms. Fairbanks constituted excessive force.[21] See Draper, 369 F.3d at 1277 (observing that single use of TASER gun to effect arrest was not excessive force, where arrestee was hostile, belligerent, and uncooperative, and refused no fewer than five times to comply with deputy's instructions to retrieve documents); Green v. Garris, No. 8:07-CV-969-T-17EAJ, 2008 WL 2222321, at *7-9 (M.D. Fla. May 28, 2008) (concluding deputy did not use excessive force against suspect, who was resisting being handcuffed, by deploying TASER twice against suspect); see also Buckley v. Haddock, No. 07-10988, 2008 WL 4140297, at *3 (11th Cir. Sept. 9, 2008) (finding that single deployment of TASER against arrestee who refused to comply with officer's commands did not constitute excessive force).
*19 Moreover, the evidence in the record demonstrates that, although Ms. Fairbanks momentarily stopped kicking and struggling after Defendant Burge deployed the TASER, Ms. Fairbanks soon resumed yelling, kicking, and struggling. According to the statements in DSMF, which Plaintiffs admitted by failing to refute those statements properly, Defendant Burge deployed the TASER only three times against Ms. Fairbanks. Moreover, although Ms. Fairbanks suffered some burns from the TASER exposure, and may have suffered some pain, her injuries from the TASER exposure were not severe. Under those circumstances, Defendant Burge's continued deployment of the TASER did not constitute excessive force. See Buckley, 2008 WL 4140297, at *3-5 (concluding officer did not use excessive force against uncooperative arrestee where officer deployed TASER three times and arrestee did not suffer severe injuries from TASER exposure); Zivojinovich v. Barner, 525 F.3d 1059, 1072-73 (11th Cir. 2008) (finding deputies did not use excessive force against handcuffed, uncooperative arrestee where deputies deployed TASERs against arrestee two times while leading arrestee out of hotel in handcuffs) (per curiam).[22]
In sum, the Court cannot find that the WCSD Defendants used excessive force against Ms. Fairbanks. No genuine dispute therefore remains with respect to Plaintiffs' § 1983 excessive force claims.[23]
d. Deliberate Indifference to Medical Needs
Plaintiffs also contend that the WCSD Defendants were deliberately indifferent to Ms. Fairbanks' serious medical needs by failing to assist EMS personnel in transporting Ms. Fairbanks to a hospital, by failing to transport Ms. Fairbanks directly to the hospital, rather than to the Jail, and by failing to provide Ms. Fairbanks with emergency medical care immediately upon her arrival at the Jail. Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment's prohibition against unnecessary and wanton infliction of pain. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To survive a motion for summary judgment, Plaintiffs must demonstrate that a genuine dispute exists whether: (1) Ms. Fairbanks suffered from a serious medical need; (2) the WCSD Defendants were deliberately indifferent to that need; and (3) the WCSD Defendants' deliberate indifference caused harm to Ms. Fairbanks. Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000).
“[A]n official acts with deliberate indifference when he or she knows that an inmate is in serious need of medical care, but he fails or refuses to obtain medical treatment for the inmate.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (quoting Lancaster v. Monroe County, 116 F.3d 1419, 1425 (11th Cir. 1997)). Allegations that an official refused to provide treatment other than medicine that was plainly inadequate or inappropriate under the circumstances may state a claim of deliberate indifference. Id. at 1257. Additionally, “ ‘[w]hen the need for treatment is obvious, medical care which is so cursory as to amount to no treatment at all may amount to deliberate indifference.’ ” Id. at 1255 (quoting Mandel v. Doe, 888 F.2d 783, 789 (11th Cir. 1989)) (alteration in original).
*20 Moreover, a delay in access to medical care that is “tantamount to ‘unnecessary and wanton infliction of pain’ ” may constitute deliberate indifference. Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (per curiam) (quoting Estelle, 429 U.S. at 104). “The tolerable length of delay in providing medical attention depends on the nature of the medical need and the reason for the delay. A few hours' delay in receiving medical care for emergency needs such as broken bones and bleeding cuts may constitute deliberate indifference.” Harris v. Coweta County, 21 F.3d 388, 393-94 (11th Cir. 1994). When determining whether a delay in providing medical treatment rises to the level of a constitutional violation, a court must consider “the context of the seriousness of the medical need,” “whether the delay worsened the medical condition,” and “the reason for the delay.” Ciccone v. Sapp, No. 06-14944, 2007 WL 1841079, at *4 (11th Cir. June 28, 2007) (per curiam) (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1189 (11th Cir. 1994), abrogated on other grounds by Hope v. Pelzer, 536 U.S. 730 (2002)), cert. denied, 128 S. Ct. 898 (2008). Finally, “ ‘[a]n inmate who complains that [a] delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of [the] delay in medical treatment to succeed.’ ” Surber v. Dixie County Jail, 206 F. App'x 931, 933 (11th Cir. 2006) (per curiam) (quoting Hill, 40 F.3d at 1188).
Here, the evidence in the record fails to demonstrate that Ms. Fairbanks had a serious medical need at the arrest scene, or that the WCSD Defendants were aware that Ms. Fairbanks had a serious medical need at the time of her arrest. Instead, the record shows that Deputy Griffin called EMS personnel to report to the scene simply because Ms. Fairbanks had fallen on her head. The WCSD Defendants did not observe Ms. Fairbanks experiencing any significant medical distress, and Ms. Fairbanks continued to yell, kick, and be combative even after EMS personnel arrived.
The EMS personnel could not fully assess Ms. Fairbanks because she was so combative; however, the EMS personnel testified that Ms. Fairbanks did not appear to be in any immediate or serious medical distress. Under those circumstances, the WCSD Defendants were not deliberately indifferent to Ms. Fairbanks' serious medical needs by failing to accompany EMS personnel to the hospital or by deciding to transport Ms. Fairbanks to the Jail, rather than to the hospital.[24]
Moreover, the evidence demonstrates that Ms. Fairbanks continued to be combative while en route to the Jail, by yelling and kicking. Defendant Giles testified that he believed that Ms. Fairbanks was in no apparent immediate distress because she was kicking and screaming. Ms. Fairbanks stopped yelling and kicking and became quiet when Defendant Giles was only fifteen to thirty seconds away from the Jail. Under those circumstances, the WCSD Defendants were not deliberately indifferent to Ms. Fairbanks' serious medical needs by transporting her to the Jail, rather than to the hospital.
When Ms. Fairbanks arrived at the Jail, she was unresponsive, but was breathing on her own. The Jail personnel believed that Ms. Fairbanks was having a heat stroke, and took Ms. Fairbanks into the Jail to attempt to cool her down and to provide first aid. Shortly after Ms. Fairbanks' arrival at the Jail, Jail personnel summoned EMS personnel to treat Ms. Fairbanks. The record demonstrates that the EMS personnel arrived approximately five minutes later, and that, in the meantime, Jail personnel provided Ms. Fairbanks with a cold compress and cleaned her cuts and abrasions. Although, in hindsight, Jail personnel would have been better served to call EMS personnel immediately or to order Ms. Fairbanks to be transported to the hospital immediately, the Court cannot find that the Jail personnel or the WCSD Defendants' actions at the Jail constituted deliberate indifference to Ms. Fairbanks' serious medical needs.[25]
*21 In sum, the Court finds that the evidence fails to support Plaintiffs' claims for deliberate indifference to Ms. Fairbanks' serious medical needs. The WCSD Defendants therefore are entitled to summary judgment for those claims.
e. Supervisory Liability Claims
“[S]upervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates ‘on the basis of respondeat superior or vicarious liability.’ ” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (quoting Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th Cir. 1994)).
“Supervisory liability [under § 1983] occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation. The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so. The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant and of continued duration, rather than isolated occurrences.”
Id. (quoting Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990)) (alteration in original). “In addition, the causal connection may be established and supervisory liability imposed where the supervisor's improper ‘custom or policy ... result[s] in deliberate indifference to constitutional rights.’ ” Id. (quoting Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991)).
i. Defendants Storey and Craig
Plaintiffs have named Defendants Storey and Craig as parties to this action, alleging that Defendants Storey and Craig assisted in falsely arresting Ms. Fairbanks, used excessive force against Ms. Fairbanks, or were deliberately indifferent to Ms. Fairbanks' serious medical needs. Those claims fail for the reasons discussed supra Parts V.A.1.a.-d. To the extent that Plaintiffs assert claims against Defendants Storey and Craig under a theory of supervisory liability, those claims fail because the underlying § 1983 claims fail. Beshers v. Harrison, 495 F.3d 1260, 1264 n.7 (11th Cir. 2007) (citing Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999)). Further, to the extent that Plaintiffs complain that Defendants Storey and Craig purportedly did not require each deputy to prepare a use-of-force form and that Defendant Storey allegedly approved a false use-of-force form prepared by Defendant Burge, in violation of WCSD policy and procedure and Peace Officer Standards, those allegations do not give rise to valid § 1983 claims. The WCSD Defendants therefore are entitled to summary judgment for those claims.
ii. Defendant Herren
Plaintiffs also assert § 1983 claims against Defendant Herren, contending that Defendant Herren failed to train WCSD deputies concerning proper use of the TASER device, failed to follow the manufacturer's recommendations concerning TASER use, training, and recertification, and failed to keep his TASER training and certification current. The last two complaints–Defendant Herren's failure to follow the manufacturer's recommendations and Defendant Herren's failure to keep his TASER training and certification current-sound in negligence and are insufficient to state a § 1983 claim against Defendant Herren.[26] The first allegation, that Defendant Herren failed to train the WCSD deputies concerning proper use of TASER devices, fails for the reasons set forth below.
*22 “[T]he inadequacy of police training may serve as the basis for § 1983liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). “Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality—a ‘policy’ as defined by [the Supreme Court's] prior cases—can a [defendant] be liable for such a failure under § 1983.” Id. at 389. A “[f]ailure to train can amount to deliberate indifference when the need for more or different training is obvious, such as when there exists a history of abuse by [employees] that has put the [defendant] on notice of the need for corrective measures, and when the failure to train is likely to result in the violation of a constitutional right.” Belcher, 30 F.3d at 1397-98 (citations omitted). A direct causal link must exist between the failure to train and the plaintiff's injury. Cook v. Sheriff of Monroe County, 402 F.3d 1092, 1116 (11th Cir. 2005.)
Here, the evidence, even viewed in the light most favorable to Plaintiffs, fails to demonstrate that a direct causal link exists between Defendant Herren's alleged failure to train the WCSD deputies and Ms. Fairbanks' injuries. Further, the evidence fails to demonstrate that, prior to the incident that gave rise to this lawsuit, a widespread number of incidents had occurred in which officers improperly used TASER devices against suspects.[27] Under those circumstances, Plaintiffs have failed to establish a § 1983 claim against Defendant Herren based on an alleged failure to train deputies concerning the use of the TASER.
In sum, the Court finds that no genuine dispute remains with respect to Plaintiffs' claims asserted against Defendant Herren in his individual capacity. The WCSD Defendants therefore are entitled to summary judgment for those claims.
iii. Defendant Chitwood
Plaintiffs allege that Defendant Chitwood failed to ensure that WCSD Deputies received proper training concerning the use of TASER devices. For the reasons set forth supra Part V.A.1.e.ii., no genuine dispute remains with respect to this claim.
Plaintiffs also complain that Defendant Chitwood maintained a use of force policy that placed the TASER device on a continuum above verbal commands and below the use of open hard hands. Plaintiffs, however, have not demonstrated that this policy itself is unconstitutional on its face, and, as discussed supra Part V.A.1.e.ii., have not shown that the policy gave rise to a widespread pattern or practice of abusive use of TASER devices by WCSD deputies. No genuine dispute therefore remains with respect to this claim.
In sum, the Court finds that no genuine dispute remains with respect to Plaintiffs' claims asserted against Defendant Chitwood in his individual capacity. The WCSD Defendants therefore are entitled to summary judgment for those claims.
2. Whether Defendants Are Entitled to Qualified Immunity
Alternatively, the WCSD Defendants argue that they are entitled to qualified immunity with respect to Plaintiffs' § 1983 claims asserted against them in their individual capacities. The Court first sets forth the general standard governing qualified immunity, and then applies that standard to Plaintiffs' claims.
a. General Standard
*23 The doctrine of qualified immunity protects government officials performing discretionary functions from suits for damages brought against them in their individual capacities. Rioux, 520 F.3d at 1282. The Eleventh Circuit applies a two-part analysis to determine whether a defendant is entitled to qualified immunity. Crawford v. Carroll, 529 F.3d 961, 977 (11th Cir. 2008).
Under the qualified immunity analysis used in this Circuit, the defendant official first must prove that the allegedly unconstitutional conduct occurred while the defendant official was acting within the scope of his or her discretionary authority. Al-Amin v. Smith, 511 F.3d 1317, 1324 (11th Cir. 2008), cert. denied, 129 S. Ct. 104 (2008). To determine whether the defendant acted within his discretionary authority, the Court asks “whether the [defendant] was (a) performing a legitimate job-related function (that is, pursuing a job-related goal), (b) through means that were within his power to utilize.” Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). In making this determination, the Court does not inquire “ ‘whether it was within the defendant's authority to commit the allegedly illegal act.’ ” Id.(quoting Harbert Int'l Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998)). Instead, the Court must “look to the general nature of the defendant's action, putting aside the fact that it may have been committed for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent, or under constitutionally inappropriate circumstances.” Id.
Once the defendant shows that he acted within his discretionary authority, the burden shifts to the plaintiff to demonstrate that (1) the defendant's conduct violated the plaintiff's constitutional right and (2) that the constitutional right violated was “clearly established.” Al-Amin, 511 F.3d at 1324. If the plaintiff fails to make either of those showings, the defendant is entitled to qualified immunity. Smith v. Siegelman, 322 F.3d 1290, 1295 (11th Cir. 2003) (“Without a constitutional violation, there can be no violation of a clearly established right.”).
For a constitutional right to be clearly established, the contours of that right must be clear enough that a reasonable official would understand that what he is doing violates that right. Rioux, 520 F.3d at 1282. To make this showing, a plaintiff need not show that the official's “conduct specifically has been held unlawful; instead, the plaintiff simply must demonstrate that, in light of pre-existing law, the unlawfulness of the official's conduct was apparent.” Bates v. Harvey, 518 F.3d 1233, 1248 (11th Cir. 2008), cert. denied, No. 08-260 (U.S. Oct. 14, 2008). In determining whether the unlawfulness of the official's act was apparent, the Court must ask “whether the state of the law at the time [of the official's action] gave [the official] ‘fair warning’ that [his] conduct was unconstitutional.” Id.
The Eleventh Circuit has explained that a defendant may have received “fair warning” in one of three ways. Vinyard, 311 F.3d at 1350. “First, conduct may be clearly established as illegal through explicit statutory or constitutional statements.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1208-09 (11th Cir. 2007) (citing Vinyard, 311 F.3d at 1350), cert. denied, 128 S. Ct. 2055 (2008).[28] “Second, certain ‘authoritative judicial decision[s]’ may establish broad principles of law that are clearly applicable in a variety of factual contexts going beyond the particular circumstances of the decision that establishes the principle.” Id. at 1209 (citing Vinyard, 311 F.3d at 1351). “Third, and most common, is the situation where case law previously elucidated in materially similar factual circumstances clearly establishes that the conduct is unlawful.” Id. (citing Vinyard, 311 F.3d at 1351-52).
b. Application to Plaintiffs' Claims
i. False Arrest
*24 As an initial matter, the evidence in the record demonstrates that the WCSD Defendants who participated in the effort to arrest Ms. Fairbanks were acting within their discretionary authority when they placed Ms. Fairbanks under arrest. Consequently, the WCSD Defendants have satisfied the first part of the qualified immunity test.
For purposes of Plaintiffs' § 1983 false arrest claims, qualified immunity will protect the WCSD Defendants if arguable probable cause existed for the WCSD Defendants to arrest Ms. Fairbanks. Storck v. City of Coral Springs, 354 F.3d 1307, 1315 (11th Cir. 2003). “ ‘Arguable probable cause exists when an officer reasonably could have believed that probable cause existed, in light of the information the officer possessed.’ ” Id. (quoting Durruthy v. Pastor, 351 F.3d 1080, 2003 WL 22799497, at *5 (11th Cir. 1997)) (internal quotation marks omitted). “ ‘Even law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity.’ ” Wood, 323 F.3d at 878 (11th Cir. 2003) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)).
For the reasons discussed supra Part V.A.1.b., arguable probable cause existed for the WCSD Defendants to arrest Ms. Fairbanks for criminal trespass and for disorderly conduct. As previously noted, the WCSD Defendants received information indicating that Ms. Fairbanks had entered into the Phillips' residence, Ms. Fairbanks had refused to answer the Phillips' questions or to leave, and Ms. Fairbanks had gone through the Phillips' belongings, leaving the house in disarray. Ms. Fairbanks also was screaming and used profanity in the deputies' presence. Under those circumstances, the WCSD Defendants certainly had at least arguable probable cause to arrest Ms. Fairbanks for criminal trespass or for disorderly conduct. The WCSD Defendants consequently are entitled to qualified immunity with respect to Plaintiffs' § 1983 false arrest claims asserted against them in their individual capacities.
ii. Excessive Force
As an initial matter, the evidence in the record demonstrates that the WCSD Defendants who participated in the effort to arrest Ms. Fairbanks were acting within their discretionary authority to make and effect arrests when they attempted to secure Ms. Fairbanks and place her in the patrol car. Consequently, the WCSD Defendants have satisfied the first part of the qualified immunity test.
Further, as previously discussed supra Part V.A.1.b., the force used against Ms. Fairbanks was not excessive. The WCSD Defendants therefore are entitled to qualified immunity on this claim. Smith, 322 F.3d at 1295(“Without a constitutional violation, there can be no violation of a clearly established right.”). Alternatively, even if the force used by the WCSD Defendants was excessive, the Court cannot determine that every reasonable officer in the WCSD Defendants' place would have known that the force was unlawful. Even viewed in the light most favorable to Plaintiffs, the facts indicate that Ms. Fairbanks continued to struggle with the officers and to resist being handcuffed and being placed in the patrol car. The evidence also indicates that, once placed in the patrol car, Ms. Fairbanks continued to kick, scream, and struggle, even going so far as to kick out the patrol car's rear side window and to bend the door frame. The evidence further indicates that Ms. Fairbanks continued to struggle and scream even after Defendant Burge deployed his TASER. Given those circumstances, the Court simply cannot find that the facts and circumstances would have inevitably led every reasonable officer to conclude that the force used by the WCSD Defendants against Ms. Fairbanks was unlawful. The WCSD Defendants consequently are entitled to qualified immunity for Plaintiffs' § 1983 excessive force claim asserted against them in their individual capacities.
*25 For the reasons discussed above, the Court concludes that qualified immunity protects the WCSD Defendants with respect to Plaintiffs' excessive force claims asserted against those Defendants in their individual capacities. The Court therefore grants the WCSD Defendants' Motion for Summary Judgment as to those claims.
iii. Deliberate Indifference to Medical Needs
The evidence in the record demonstrates that the WCSD Defendants acted within their discretionary authority when the WCSD Defendants determined whether to provide medical care to Ms. Fairbanks. The WCSD Defendants thus have satisfied the first part of the qualified immunity test.
With respect to the second part of the qualified immunity test, for the reasons previously discussed supra Part V.A.1.c., the WCSD Defendants were not deliberately indifferent to Ms. Fairbanks' serious medical needs. The WCSD Defendants therefore are entitled to qualified immunity on this claim. Smith, 322 F.3d at 1295 (“Without a constitutional violation, there can be no violation of a clearly established right.”). In the alternative, even if the WCSD Defendants' actions constituted deliberate indifference to Ms. Fairbanks' serious medical needs, the Court cannot determine that every reasonable officer in the WCSD Defendants' place would have known that their actions were unlawful. The Court therefore cannot conclude that the WCSD Defendants' actions with respect to Ms. Fairbanks' medical needs violated clearly established law.
For the reasons discussed above, the Court finds that the WCSD Defendants acted within their discretionary authority with respect to providing medical care to Ms. Fairbanks, and that the WCSD Defendants' actions did not violate clearly established law. Qualified immunity therefore protects the WCSD Defendants with respect to Plaintiffs' § 1983 deliberate indifference to medical needs claims asserted against those Defendants in their individual capacities. The Court consequently grants the WCSD Defendants' Motion for Summary Judgment as to those claims.
iv. Supervisory Liability
aa. Defendants Craig and Storey
The evidence in the record, even viewed in the light most favorable to Plaintiffs, demonstrates that Defendants Craig and Storey acted within their discretionary authority as law enforcement officers and as supervisors when they assisted in placing Ms. Fairbanks under arrest, when they decided to transport Ms. Fairbanks to the Jail and made decisions concerning her need for immediate medical care, and when they approved use-of-force reports or decided not to require use-of-force reports, concerning this incident. The Court therefore finds that Defendants Storey and Craig have satisfied the first part of the qualified immunity test with respect to Plaintiffs' claims asserted against them in their supervisory capacities.
Moreover, as discussed supra Part V.A.1.d.i., Plaintiffs' supervisory capacity claims against Defendants Storey and Craig fail. Defendants Storey and Craig therefore are entitled to qualified immunity on those claims. Smith, 322 F.3d at 1295). Alternatively, even if Defendants Storey and Craig acted unlawfully, the Court cannot determine that every reasonable officer in their places would have known that their actions violated clearly established law. Consequently, qualified immunity protects Defendants Craig and Storey with respect to Plaintiffs' § 1983 claims asserted against them in their supervisory capacities.
bb. Defendant Herren
*26 The evidence in the record, even viewed in the light most favorable to Plaintiffs, demonstrates that Defendant Herren acted within his discretionary authority as a supervisor within the WCSD when he made decisions concerning TASER training. The Court therefore finds that Defendant Herren has satisfied the first part of the qualified immunity test with respect to Plaintiffs' claims asserted against him in his supervisory capacity.
Moreover, as discussed supra Part V.A.1.d.ii., Plaintiffs' supervisory capacity claims against Defendant Herren fail. Defendant Herren thus is entitled to qualified immunity for those claims. Smith, 322 F.3d at 1295. Alternatively, even if Defendant Herren acted unlawfully, the Court cannot determine that every reasonable officer in Defendant Herren's position would have known that his actions violated clearly established law. Consequently, qualified immunity protects Defendant Herren with respect to Plaintiffs' § 1983 claims asserted against him in his official capacity.
cc. Defendant Chitwood
The evidence in the record, even viewed in the light most favorable to Plaintiffs, shows that Defendant Chitwood acted within his discretionary authority as Sheriff when he made decisions concerning TASER training and when he adopted the WCSD's use-of-force policy. Defendant Chitwood consequently has satisfied the first part of the qualified immunity test.
Additionally, as discussed supra Part V.A.1.d.iii., Plaintiffs' supervisory capacity claims against Defendant Chitwood fail, and qualified immunity therefore protects Defendant Chitwood with respect to those claims. Smith, 322 F.3d at 1295). Alternatively, even if Defendant Chitwood acted unlawfully, every reasonable sheriff in Defendant Chitwood's position would not necessarily have known that his actions were unlawful. Defendant Chitwood therefore is entitled to qualified immunity with respect to Plaintiffs' § 1983 claims asserted against him in his official capacity.
B. Official Capacity Claims
A claim asserted against an individual in his or her official capacity is, in reality, a suit against the entity that employs the individual. Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999) (per curiam). The WCSD Defendants argue that they are state, rather than county, actors.
This Court and the Eleventh Circuit have concluded that a sheriff and his deputies are arms of the State of Georgia for the purposes of establishing policies concerning use of force and conditions of confinement at a county Jail. Powell v. Barrett, 496 F.3d 1288, 1305-07 (11th Cir. 2007), opinion on reh'g en banc, 541 F.3d 1298 (11th Cir. 2008); Purcell v. Toombs County, 400 F.3d 1313, 1324-25 (11th Cir. 2005); Manders v. Lee, 338 F.3d 1304, 1309-28 (11th Cir. 2003) (en banc); Copeland v. Burkhalter, No. 4:06-CV-0221-HLM, slip op. at 111-130 (N.D. Ga. Oct. 31, 2007) (unpublished). The Court further finds that this holding extends to use of force policies and training policies adopted by a sheriff's office.[29] The Court therefore concludes that the WCSD Defendants acted as arms of the State for purposes of Plaintiffs' § 1983 claims asserted against those Defendants in their official capacities.[30]
*27 “The Eleventh Amendment provides that the ‘Judicial power of the United States shall not be construed to extend to any suit ... commenced or prosecuted against one of the ... States' by citizens of another State, U.S. Const., Amdt. 11, and (as interpreted) by its own citizens.” Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618 (2002). Because the WCSD Defendants are considered arms of the State for purposes of Plaintiffs' § 1983 claims asserted against those Defendants in their official capacities, those Defendants are entitled to Eleventh Amendment immunity with respect to those claims. Similarly, as discussed infra Part V.C.2., the WCSD Defendants are entitled to sovereign immunity with respect to those claims. The Court therefore grants the Motion for Summary Judgment filed by the WCSD Defendants with respect to any § 1983 claims that Plaintiffs may assert against those Defendants in their official capacities.[31]
C. State Law Claims
1. Individual Capacity Claims
The Georgia Constitution provides, in relevant part: “State officers and employees may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official duties.” Ga. Const. art. I, § II, ¶ IX(d). Thus, “ ‘[a] suit against a public officer acting in his or her official capacity will be barred by official immunity unless the public officer (1) negligently performed a ministerial duty, or (2) acted with actual malice or an actual intent to cause injury while performing a discretionary duty.’ ” Tant v. Perdue, 278 Ga. App. 666, 668, 629 S.E.2d 551, 553 (2006) (quoting Wanless v. Tatum, 244 Ga. App. 882, 536 S.E.2d 308 (2000)).
*28 “A discretionary act ‘calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.’ ” Todd v. Kelly, 244 Ga. App. 404, 406, 535 S.E.2d 540, 542 (2000) (quoting Teston v. Collins, 217 Ga. App. 829, 830, 459 S.E.2d 452 (1995)) (internal quotation marks omitted). In contrast, “[a] ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.”Nichols v. Prather, 286 Ga. App. 889, 896, 650 S.E.2d 380, 386-87 (2007)(quoting Standard v. Hobbs, 263 Ga. App. 873, 875, 589 S.E.2d 634, 636 (2003)). The facts of the case determine whether an act is discretionary or ministerial. Id. “Whether a duty is ministerial or discretionary turns on the character of the specific act itself.” Reed v. Dekalb County, 264 Ga. App. 83, 86, 589 S.E.2d 584, 587 (2003).
Here, the WCSD Defendants clearly were performing discretionary acts when they decided to investigate in response to the 911 call, when they decided to arrest Ms. Fairbanks and transport Ms. Fairbanks to the Jail, and when they decided to book Ms. Fairbanks. See Tant, 278 Ga. App. at 668, 629 S.E.2d at 553 (concluding officer performed discretionary act when he concluded from his investigation that plaintiff had been driving recklessly and under the influence and signed arrest warrant application to that effect); Delong v. Domenici, 271 Ga. App. 757, 758-59, 610 S.E.2d 695, 698 (2005)(finding officer's act of arresting plaintiff was discretionary act); Todd, 244 Ga. App. at 406, 535 S.E.2d at 542 (noting decision of officer to seek arrest warrants after investigation was discretionary act); Woodward v. Gray, 241 Ga. App. 847, 851, 527 S.E.2d 595, 600 (2000) (concluding officer's arrest of plaintiff was discretionary act). Similarly, Defendants Chitwood and Herren were performing discretionary acts when training officers or adopting use-of-force and training policies.[32] Consequently, the WCSD Defendants will be liable for Plaintiffs' state law claims only if the WCSD Defendants acted with malice or actual intent to injure Ms. Fairbanks.
“In the context of official immunity, ‘actual malice’ means a deliberate intent to do wrong.” Reed, 264 Ga. App. at 86, 589 S.E.2d at 587 (quoting Merrow v. Hawkins, 266 Ga. 390, 392, 467 S.E.2d 336 (1996)). Proof of ill will, standing alone, is insufficient to establish actual malice. Adams v. Hazelwood, 271 Ga. 414, 415, 520 S.E.2d 896, 898 (1999). Instead, “in the context of official immunity, actual malice means a deliberate intention to do a wrongful act.” Id. at 415, 520 S.E.2d at 898. “Such act may be accomplished with or without ill will and whether or not injury was intended.” Id. at 415, 520 S.E.2d at 898.
Here, no evidence indicates that the WCSD Defendants acted with actual malice or an intent to injure Ms. Fairbanks. Even though the WCSD Defendants involved in Ms. Fairbanks' arrest and the decisions concerning Ms. Fairbanks' medical care could have investigated further or might have acted in a misguided manner, those failures do not amount to actual malice. Touchton v. Bramble, 284 Ga. App. 164, 168, 643 S.E.2d 541, 545 (2007)(noting that failure to take additional investigative steps did not amount to actual malice or intent to injure); Reed, 264 Ga. App. at 86, 589 S.E.2d at 588 (finding defendant did not act with actual malice or intent to injure, even though defendant's decision might have been misguided). Consequently, official immunity protects the WCSD Defendants with respect to Plaintiffs' state law claims asserted against those Defendants in their individual capacities.
2. Official Capacity
*29 Plaintiffs also apparently assert state law claims against the WCSD Defendants in their official capacities. The WCSD Defendants argue that sovereign immunity bars those claims.
Sovereign immunity is a common-law doctrine that “protect[s] governments at all levels from unconsented-to legal action.” Gilbert v. Richardson, 264 Ga. 744, 745, 452 S.E.2d 476, 478 (1994). The State of Georgia first adopted sovereign immunity in 1784. Id. at 745, 452 S.E.2d at 478. In 1974, Georgia adopted sovereign immunity as a constitutional provision. ld. at 745, 452 S.E.2d at 478.
Georgia “remained absolutely immune from suit until 1983 after voters approved an amendment to the State Constitution waiving the sovereign immunity of the ‘state or any of its departments and agencies’ in actions for which liability insurance protection was provided.” Gilbert, 264 Ga. at 745-46, 452 S.E.2d at 478. In 1991, Georgia amended its constitution “to extend sovereign immunity ‘to the state and all of its departments and agencies.’ ” Id. at 746, 452 S.E.2d at 478.
The Georgia Constitution now provides, in relevant part:
Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.
Ga. Const. Art. 1, § 2, ¶ IX(e). The sovereign immunity provided in the Georgia Constitution to the “state or any of its departments or agencies” also applies to Georgia's counties. Gilbert, 264 Ga. at 747, 452 S.E.2d at 479.[33]
The Georgia Tort Claims Act, O.C.G.A. §§ 50-21-20 through 50-21-37, waives the State's sovereign immunity for the torts of its officers or employees.[34] Gilbert, 264 Ga. at 747, 452 S.E.2d at 479. The Georgia Tort Claims Act, however, “expressly excludes counties from the ambit of this waiver.” Id. at 747, 452 S.E.2d at 479.
*30 O.C.G.A. § 33-24-51 states, in relevant part:
The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived as provided in Code Section 36-92-2. Whenever a municipal corporation, a county, or any other political subdivision of this state shall purchase the insurance authorized by subsection (a) of this Code section to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his or her official duties in an amount greater than the amount of immunity waived as in Code Section 36-92-2, its governmental immunity shall be waived to the extent of the amount of insurance so purchased.
O.C.G.A. § 33-24-51(b). O.C.G.A. § 36-92-2(a) provides limits for the waiver of the sovereign immunity of local government entities for losses that arise from claims for the negligent use of a covered motor vehicle. O.C.G.A. § 36-92-2(a). O.C.G.A. § 36-92-2(b), however, expressly states:
The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived only to the extent and in the manner provided in this chapter and only with respect to actions brought in the courts of this state. This chapter shall not be construed to affect any claim or cause of action otherwise permitted by law and for which the defense of sovereign immunity is not available.
O.C.G.A. § 36-92-2(b).
Sovereign immunity is not an affirmative defense under Georgia law. Sherin v. Dept. of Human Res., 229 Ga. App. 621, 625, 494 S.E.2d 518, 522 (1997). Instead, the party who seeks to benefit from a waiver of sovereign immunity bears the burden of showing that the waiver has occurred. Id. at 625, 494 S.E.2d at 522.
In Woodard v. Laurens County, 265 Ga. 404, 456 S.E.2d 581 (1995), a driver of a logging truck failed to obey a stop sign at the intersection of two county roads. 265 Ga. at 404, 456 S.E.2d at 582. The truck crossed into the path of oncoming traffic, and a vehicle driven by the plaintiffs collided with the truck. Id. at 404, 456 S.E.2d at 582. The plaintiffs sued the driver of the truck, his employer, Laurens County, Georgia, two employees of Laurens County, and the county commissioners of Laurens County. Id. at 404, 456 S.E.2d at 582. The plaintiffs alleged that Laurens County had negligently inspected and maintained a stop sign at the intersection. Id. at 404, 456 S.E.2d at 582.
The Supreme Court of Georgia concluded in Laurens that the waiver of sovereign immunity for counties based on the purchase of liability insurance for the negligence of county officers, agents, servants, attorneys, and employees arising from the use of a motor vehicle did not apply. 265 Ga. at 405, 456 S.E.2d at 583. The court reasoned that the liability of Laurens County, its commissioners, and its employees was “not predicated upon their alleged negligent use of an insured motor vehicle.” 265 Ga. at 405, 456 S.E.2d at 583.
*31 Similarly, in Harry v. Glynn County, 269 Ga. 503, 501 S.E.2d 196 (1998), the Georgia Supreme Court found that sovereign immunity barred a claim against Glynn County based on the plaintiff's contention that a paramedic employed by Glynn County failed to provide proper treatment to the plaintiff's decedent. 269 Ga. at 503, 501 S.E.2d at 198. The plaintiff contended that the motor vehicle liability insurance waiver applied because an ambulance was used to bring the paramedic to the scene, because part of the diagnosis and treatment at issue occurred in the ambulance, and because the ambulance was used to transport the decedent to a hospital. Id. at 504, 501 S.E.2d at 198.
The Georgia Supreme Court noted in Harry that “[w]hether an event arises from the ‘use’ of a motor vehicle depends largely on the circumstances, and a bright-line definition is elusive.” 269 Ga. at 504, 501 S.E.2d at 198. The court observed, however, that “the alleged negligence must involve the use of a motor vehicle.” Id. at 504, 501 S.E.2d at 198. The court reasoned that the alleged negligence at issue involved the paramedic's misdiagnosis and his failure to use defibrillation, and that those acts did not involve the use of an ambulance. Id. at 504, 501 S.E.2d at 198. The court further noted that no evidence indicated that the ambulance or its use played any role in the paramedic's diagnosis or choice of treatment. Id. at 504, 501 S.E.2d at 198. Thus, the court found that any negligence associated with the paramedic's actions “simply did not ‘arise from the use of a motor vehicle,’ ” and that “no waiver based on the purchase of insurance occurred.” Id. at 504, 501 S.E.2d at 198.
Here, the WCSD Defendants' liability is not predicated upon the alleged negligent use of a motor vehicle insured by Whitfield County. Indeed, Plaintiffs' various allegations do not implicate the alleged negligent use of a motor vehicle insured by Whitfield County in any way. Sovereign immunity therefore bars Plaintiffs' claims asserted against the WCSD Defendants in their official capacities.
3. Claims Against Whitfield County
Plaintiffs also may assert claims directly against Whitfield County. The WCSD Defendants argue, and the Court agrees, that Plaintiffs failed to serve Whitfield County with Plaintiffs' Fourth Amended Complaint. Whitfield County consequently is entitled to summary judgment with respect to Plaintiffs' claims asserted against it.
In any event, Plaintiffs allege that Whitfield County failed to dispatch properly EMS employees, and failed to train or require those employees to transport arrestees such as Ms. Fairbanks. O.C.G.A. § 46-5-131 clearly bars this claim.[35] Consequently, Whitfield County is entitled to summary judgment on that claim.
D. Summary
*32 In sum, the Court concludes that no genuine dispute remains with respect to any of Plaintiffs' claims. The Court therefore grants the WCSD Defendants' Motion for Summary Judgment.
VI. Conclusion
ACCORDINGLY, the Court GRANTS the Motion for Summary Judgment filed by Defendants Burge, Chitwood, Craig, Herren, Parker, and Storey [498], and DISMISSES Plaintiffs' claims against those Defendants. Because the Court dismisses Plaintiffs' claims asserted against the remaining Defendants, Defendants Taser International and DGG Taser, in a separate Order, none of Plaintiffs' claims remain pending. The Court therefore DIRECTS the Clerk to CLOSE this case.
This Order is not intended for publication. Any party or attorney who seeks to make this Order available for publication first must request, and obtain, the Court's permission to publish the Order.
IT IS SO ORDERED, this the 25th day of November, 2008.

Footnotes

Plaintiffs' counsel is an experienced attorney, and certainly should be familiar with the requirements of the Local Rules.
Even if the Court had considered the statements contained in PSMF, the Court's conclusion would not change.
Opinions of the Fifth Circuit issued prior to October 1, 1981, the date marking the creation of the Eleventh Circuit, are binding precedent on this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1209-11 (11th Cir. 1981) (en banc).
Plaintiffs apparently contend that Dr. Oliver had some pre-existing connection with the WCSD Defendants and Defendant Taser based on a May 3 and 4, 2006, e-mail exchange between Dr. Oliver and Doug Klint with Defendant Taser. (Pls.' Resp. WCSD Defs.' Mot. Summ. J. Ex. H.) As an initial matter, that exchange occurred long after Dr. Oliver conducted his autopsy of Ms. Fairbanks and allegedly failed to obtain the evidence that Plaintiffs contend he should have obtained.
In any event, that exchange clearly fails to support Plaintiffs' apparent contention that some “grand conspiracy” to destroy evidence exists in this case. Dr. Oliver's initial e-mail to Mr. Klint states:
I attended a session at the American Academy of Forensic Sciences in Seattle regarding TASER issues. During that session Rick Smith indicated that TASER was willing to provide sources of experts and such in civil cases against jurisdictions involving the TASER. I have been approached by a District Attorney regarding one such case, the estate of Melinda Neal vs. Whitfield County, Georgia, TASER and others. He has contacted TASER a couple of times and has not gotten a response. I would appreciate a call at your earliest convenience.
(Pls.' Resp. WCSD Defs.' Mot. Summ. J. Ex. H.) Mr. Klint's response indicates that he sent “4 emails with attachments” to Dr. Oliver, and thanks Dr. Oliver “for [his] intellectual honesty.” (Id.) In reply, Dr. Oliver thanks Mr. Klint for the references. (Id.)
With all due respect to Plaintiffs, the above e-mail exchange simply does not support their contention that Dr. Oliver acted on behalf of the WCSD Defendants or Defendant Taser when he conducted his autopsy and allegedly failed to test Ms. Fairbanks' hospital admission blood or obtain her clothing. The e-mail exchange also does not support Plaintiffs' apparent theory that Dr. Oliver, the WCSD Defendants, and Defendant Taser acted in concert to destroy or suppress evidence. Frankly, Plaintiffs' contentions are so unsupported that they border on warranting sanctions for frivolity. Consequently, the Court cannot hold the WCSD Defendants responsible for any alleged spoliation of evidence by Dr. Oliver.
It is highly unlikely that any expert testimony in this case relies upon Defendant Burge's Declaration. In any event, given that Defendant Burge's, and Defendant Storey's, deposition testimony set forth the essential facts contained in Defendant Burge's Declaration, the expert witnesses had ample access to that version of the facts.
Plaintiffs also may contend that Defendant Burge's Declaration is a sham, and that the Court should disregard it. To the extent that Plaintiffs contend that Defendant Burge's Declaration contradicts his previous deposition testimony, under Eleventh Circuit law, “a party cannot give ‘clear answers to unambiguous questions’ in a deposition and thereafter raise an issue of material fact in a contradictory affidavit that fails to explain the contradiction.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir. 1987) (quoting Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984)). If this contradiction occurs, the court may disregard the contradictory affidavit as a sham affidavit. Id. The Eleventh Circuit has instructed district courts to apply the sham affidavit rule sparingly “because of the harsh effect this rule may have on a party's case.” Id. The Eleventh Circuit also has stated: “To allow every failure of memory or variation in a witness's testimony to be disregarded as a sham would require far too much from lay witnesses and would deprive the trier of fact of the traditional opportunity to determine which point in time and with which words the witness (in this case, the affiant) was stating the truth.” Tippens v. Celotex Corp., 805 F.2d 949, 953-54 (11th Cir. 1986) (parenthetical in original).
The Court thus must find “some inherent inconsistency between an affidavit and a deposition before disregarding the affidavit.” Rollins, 833 F.2d at 1530. If no such inherent inconsistency exists, then the Court must apply the general rule of allowing an affidavit to create a genuine dispute, even though the affidavit conflicts with a party's earlier deposition testimony. Id. Under those circumstances, the jury may consider any conflict or discrepancy between the affidavit and the deposition testimony at trial.
Applying the above rule, the Court cannot find that Defendant Burge's Declaration and his previous deposition testimony are inherently inconsistent so as to allow the Court to disregard Defendant Burge's Declaration under the sham affidavit rule. The Court therefore declines to strike Defendant Burge's Declaration.
Plaintiffs point to Defendant Burge's deposition testimony, in which Defendant Burge stated that he was not aware that the Jail videotape had been destroyed, and that he would not think that such destruction would be common, as support for their contention that the WCSD Defendants acted in bad faith. (Dep. of Joseph Burge at 184.) When read in context, however, that testimony fails to indicate that Defendant Burge had personal knowledge of the Jail's videotape system's operations or any control over those operations. (Id.)
Plaintiffs also may contend that their ante litem notice imposed a duty on the WCSD Defendants to preserve evidence. On July 26, 2005, Plaintiffs' counsel wrote a letter to Whitfield County's attorney and to Defendant Chitwood that provided, in relevant part:
Finally, this letter is to formally place you on notice to preserve all evidence in this matter to include the dispatch call from Ms. Fairbanks to 911 seeking police assistance on the day of her arrest, the intake report at the correctional center and all forensic evidence of any nature.
(Pls.' Resp. WCSD Defs.' Mot. Summ. J. Ex. I at 2.) The record, however, indicates that the Jail videotape was destroyed prior to the date of that letter. (Id. Ex. U.) Consequently, the WCSD Defendants did not violate any duty allegedly imposed upon them by the July 26, 2005, letter simply based on the destruction of the Jail videotape.
Plaintiffs cite no authority supporting this proposition.
Plaintiffs' Fourth Amended Complaint certainly is no model of clarity, and, frankly, borders on being a shotgun pleading. In hindsight, the Court and the parties would have been well-served if the Court had required Plaintiffs to re-plead their Fourth Amended Complaint using concise language.
As discussed supra Part I.A., however, the Court deems the statements contained in DSMF admitted based on Plaintiffs' failure to admit or deny those statements properly.
According to Plaintiffs, Ms. Fairbanks had been off a medication that she had been taking for quite some time. (DSMF ¶ 3 n.2.)
The leg shackles were an oversized pair of handcuffs intended to minimize kicking, and were not connected to the handcuffs already placed on Ms. Fairbanks. (DSMF ¶ 27 n.6.)
The Court addresses that Motion in a separate Order.
On September 12, 2008, Defendants Taser and DGG Taser filed a Motion for Summary Judgment. (Docket Entry No. 487.) The Court addresses that Motion in a separate Order.
“ ‘[W]hen an officer makes an arrest, which is properly supported by probable cause to arrest for a certain offense, neither his subjective reliance on an offense for which no probable cause exists nor his verbal announcement of the wrong offense vitiates the arrest.’ ” Lorenzo v. City of Tampa, 259 F. App'x 239, 242-43 (11th Cir. 2007) (quoting United States v. Saunders, 476 F.2d 5, 7 (5th Cir. 1973)).
In their brief in response to the WCSD Defendants' Motion for Summary Judgment, Plaintiffs claim that the WCSD Defendants had a “preconceived bias” against methamphetamine users, as demonstrated by statements to GBI investigators that the deputies knew immediately that Ms. Fairbanks was probably high on methamphetamine. (Pls.' Br. Resp. WCSD Defs.' Mot. Summ. J. at 42.) Any subjective intent on behalf of the WCSD Defendants, however, is irrelevant when determining whether the WCSD Defendants had probable cause to arrest Ms. Fairbanks. Draper v. Reynolds, 369 F.3d 1270, 1275 (11th Cir. 2004) (“ulterior motives will not invalidate police conduct based on probable cause to believe a violation of the law occurred”); Durruthy v. Pastor, 351 F.3d 1080, 1088 n.5 (11th Cir. 2003)(observing that officer's personal motivation for arresting individual is irrelevant to determination whether probable cause exists to support arrest).
Although the wiser course of action likely would have been to pat Ms. Fairbanks down before placing her in the patrol car, the deputies were not required to sit idly by and allow Ms. Fairbanks to remain in the patrol car while Ms. Fairbanks dug into her pockets. The deputies were not required to wait to determine whether Ms. Fairbanks was looking for her inhaler, as Plaintiffs contend, or whether Ms. Fairbanks had a weapon in her pockets.
Even if Plaintiffs had responded properly to DSMF, Plaintiffs' contention that the deputies used a “ground stun” technique against Ms. Fairbanks, thus bruising her head, is not supported by the evidence. Indeed, the videotape presented by the WCSD Defendants depicts Ms. Fairbanks propelling herself out of the car on her own power, landing on her head.
Plaintiffs argue that the WCSD Defendants used pepper spray on Ms. Fairbanks. Plaintiffs, however, failed to respond properly to DSMF, and consequently admitted the WCSD Defendants' contention that they did not use pepper spray. Even if the WCSD Defendants had used pepper spray on Ms. Fairbanks, however, the Court cannot find that this use of pepper spray constitutes excessive force under the circumstances.
Plaintiffs also contend that the WCSD Defendants used police weapons, such as batons, against Ms. Fairbanks and placed her in a chokehold while attempting to restrain her. Plaintiffs admitted the portions of DSMF stating that the WCSD Defendants did not use such weapons or tactics by failing to respond properly to DSMF. In any event, even if the Court could accept Plaintiffs' view of the evidence, the Court could not conclude that the use of police weapons or a chokehold during the course of attempting to arrest and restrain Ms. Fairbanks constituted excessive force, given her extreme combativeness.
This case thus is distinguishable from Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002), in which the Eleventh Circuit concluded that a deputy used excessive force while transporting a detainee who was restrained in the back of a police car. 311 F.3d at 1347-49. The detainee in Vinyard was screaming and using foul language, but was not posing a threat to the safety of the officer who was transporting her. Id. Consequently, the Eleventh Circuit concluded that the deputy used excessive force when he stopped the patrol car, grabbed the detainee roughly, bruising her arm and breast, and sprayed her with pepper spray. Id.
Ms. Fairbanks, unlike the detainee in Vinyard, continued to behave in a physically aggressive manner, even after being restrained in the back of a patrol car, to the point of kicking out one of the patrol car's windows and bending the door frame. Ms. Fairbanks did not stop this physically aggressive and confrontational behavior, even though the deputies instructed her to stop. Under those circumstances, the facts of this case are not comparable to those of Vinyard. See Vinyard, 311 F.3d at 1348 n.9 (observing that under defendant's version of the facts, in which defendant contended that plaintiff kicked at back seat of patrol car, kicked car's window, beat her head against window, presenting safety risk to herself, and attempted to kick him, force used by defendant would not have been excessive).
Even if Plaintiffs had responded properly to DSMF, the Court could not determine that repeated application of a TASER device against an arrestee who was as combative as Ms. Fairbanks constituted excessive force.
Plaintiffs contend, among other things, that the WCSD Defendants should have placed Ms. Fairbanks in a seatbelt, and should have used hobbles, rather than leg shackles, to secure her feet. Those contentions, however, sound in negligence and do not impact Plaintiffs' § 1983 excessive force claim.
Similarly, although Plaintiffs contend that the other WCSD deputies on the scene are liable for Defendant Burge's use of the TASER device because those deputies failed to intervene to prevent it, Plaintiffs' Fourth Amended Complaint does not contain failure-to-intervene allegations. The other deputies thus cannot be liable for Defendant Burge's use of the TASER. In any event, even if Plaintiffs had successfully pleaded a failure-to-intervene excessive force claim, that claim would fail because Plaintiffs' primary excessive force claim fails.
Even if the Court could accept Plaintiffs' contentions that Defendants Craig and Storey told EMS personnel that deputies would transport Ms. Fairbanks to a hospital, or that EMS personnel requested assistance from the deputies to transport Ms. Fairbanks, the WCSD Defendants still would not have been deliberately indifferent to Ms. Fairbanks' serious medical needs. The undisputed evidence in the record indicates that Ms. Fairbanks was in no immediate medical distress at that time.
Deputy Vickie Burge, who treated Ms. Fairbanks at the Jail, is not a party to this action. It is unclear whether any of the WCSD personnel who are named as Defendants in this action were involved in the Jail's decision to summon EMS personnel or to provide Ms. Fairbanks with first aid treatment.
Plaintiffs have not demonstrated, and cannot demonstrate, that failure to follow a manufacturer's recommendations and failure to keep current with one's TASER training or certifications amount to constitutional violations.
Even if Plaintiffs had not admitted the statements contained in DSMF by failing to respond properly to those statements, all but one of the incidents that Plaintiffs cite in support of their contention that WCSD deputies had a pattern and practice of improperly deploying TASER devices occurred after this incident. Consequently, those incidents cannot establish that Defendant Herren had a policy of inadequate training. Further, a single incident is not sufficient to establish that a policy of inadequate training existed. Freeman v. Mack, No. 8:08-cv-1612-T-23EAJ, 2008 WL 4790532, at *4 (M.D. Fla. Oct. 31, 2008) (“a plaintiff may not rely on a single incident to allege a ‘policy’ of inadequate training”).
This exception, however, is a narrow one, and applies “only when the conduct in question is so egregious that the government actor must be aware that he is acting illegally.” Thomas v. Roberts, 323 F.3d 950, 955 (11th Cir. 2003).
Plaintiffs cite Valdes v. Crosby, 450 F.3d 1231 (11th Cir. 2006), cert. dismissed, 127 S. Ct. 2028 (2007), in support of their argument that the WCSD and Defendant Chitwood are not state actors. Valdes, however, involved Florida law, not Georgia law, and consequently is inapplicable to this case.
Moreover, Plaintiffs' reliance on Duffey v. Bryant, 950 F. Supp. 1168 (M.D. Ga. 1997), also is misplaced. In Duffey, the court observed that “a county and its commissioners are without authority over the sheriff or his deputies.” 950 F. Supp. at 1175. It is unclear how this proposition supports Plaintiffs' contention that the WCSD and Defendant Chitwood are county actors. To the extent that the court in Duffey concluded that a genuine dispute remained with respect to the plaintiff's claims asserted against the sheriff, Duffey is factually distinguishable from this case and is not controlling.
Plaintiffs argue that the WCSD and Sheriff Chitwood are arms of the county, rather than the state, because the WCSD and Sheriff Chitwood make budget requests and receive funds from Whitfield County. The Court rejected a similar argument in Copeland v. Burkhalter, No. 4:06-CV-0221-HLM, slip op. at 111-130 (N.D. Ga. Oct. 31, 2007) (unpublished).
In any event, those claims would fail. “[T]o impose § 1983liability on a municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 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.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997). A custom may exist for purposes of municipality under § 1983 if a practice is so settled, widespread, and permanent that the custom has the force of law. Bd. of County Comm'rs v. Brown, 520 U.S. 397, 404 (1997); McDowell, 392 F.3d at 1290. To demonstrate that a policy or custom exists, the plaintiff generally must “show a persistent and widespread practice.” McDowell, 392 F.3d at 1290. “[A] municipality's failure to correct the constitutionally offensive actions of its employees can rise to the level of a custom or policy ‘if the municipality tacitly authorizes these actions or displays deliberate indifference towards the misconduct.’ ” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1308 (11th Cir. 2001) (quoting Brooks v. Scheib, 813 F.2d 1191, 1193 (11th Cir. 1987)).
Further, a plaintiff may attempt to show that a municipality's failure to provide adequate training is a custom or policy for purposes of § 1983 liability. A failure to train an employee adequately will constitute a policy or custom for § 1983purposes only if the failure to train amounts to deliberate indifference. City of Canton, 489 U.S. at 388 (1989).
For the reasons stated supra Part V.A.1.d.ii. and iii., however, no genuine dispute exists concerning whether the WCSD's alleged failure to train deputies concerning use of the TASER constituted deliberate indifference, and no genuine dispute remains concerning whether a widespread pattern or practice of abusive use of TASER devices existed prior to the incident that gave rise to this lawsuit. Consequently, Plaintiffs' § 1983 claims asserted against the WCSD Defendants in their official capacities fail on their merits.
Plaintiffs cite Howard v. City of Columbus, 239 Ga. App. 399, 521 S.E.2d 51 (1999), in support of their contention that Defendants Chitwood and Herren were performing only ministerial acts. Howard, however, involved a sheriff's duty to adopt and enforce policies concerning the provision of medical care to inmates housed in a jail. 239 Ga. App. at 411-12, 521 S.E.2d at 66-67. The duty to provide medical care to inmates housed in a jail is a statutory duty and is not discretionary. O.C.G.A. § 42-4-4.
Sovereign immunity applies equally to ministerial and discretionary acts. Seay v. Cleveland, 270 Ga. 64, 65, 508 S.E.2d 159, 160 (1998). Although Plaintiffs cite Seay, that case is of little help to Plaintiffs. The Seay court observed that, even if the acts at issue were ministerial rather than discretionary, sovereign immunity still barred the plaintiffs claims. 270 Ga. at 65, 508 S.E.2d at 160-61.
The Georgia Tort Claims Act provides that “the state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment.” O.C.G.A. § 50-21-23(a). The Georgia Tort Claims Act, however, also provides “that the state's sovereign immunity is not waived for liability arising from the performance or failure to perform a discretionary function by a state officer or employee.” Nichols v. Prather, 286 Ga. App. 889, 891 n.2, 650 S.E.2d 380, 383 n.2 (2007) (citing O.C.G.A. § 50-21-24(2)). In Nichols, however, the Georgia Court of Appeals concluded that the Georgia Tort Claims Act does not apply to local sheriffs departments, because “the [Georgia Tort Claims Act's] definition of ‘State officer or employee’ excludes county officers and employees, and ‘State government entity’ excludes county agencies and departments.” Id. at 892-93, 650 S.E.2d at 384(quoting O.C.G.A. § 50-21-22). The Nichols court also noted that a sheriffs department and sheriff's deputies may be state actors for purposes of § 1983 and still be county actors for other purposes. Id.
O.C.G.A. § 46-5-131 (a) states:
Whether participating in a state-wide emergency 9-1-1 system or an emergency 9-1-1 system serving one or more local governments, neither the state nor any local government of the state nor any emergency 9-1-1 system provider or service supplier or its employees, directors, officers, and agents, except in cases of wanton and willful misconduct or bad faith, shall be liable for death of injury to any person or for damage to property as a result of either developing, adopting, establishing, participating in, implementing, maintaining, or carrying out duties involved in operating the emergency 9-1-1 system ....
Absolutely no evidence in the record indicates that anyone with the Whitfield County 911 system acted in bad faith or engaged in wanton and willful misconduct with respect to the events at issue.