BORTON v. CITY OF DOTHAN

to use any force on Ms. Borton. See Lee, 284 F.3d at 1198 (Where the plaintiff's crime was insignificant (honking a car horn on a busy downtown street), and the plaintiff neither posed a threat nor attempted to flee arrest, the Eleventh Circuit could "discern no reason, let alone any legitimate law enforcement need, for [the officer] to have led [the plaintiff] to the back of her car and slammed her head against the trunk after she was arrested and secured in handcuffs.").

Sixth, there are ample facts from which a jury could conclude that the force was not applied in good faith, but rather maliciously for the purpose of inflicting pain. For one, as stated, there was arguably no need for any force given that Ms. Borton was restrained. For another, one tasing allegedly lasted well over a minute (Pl. Dep. 34), which is more than twelve times the automatic five-second cycle, and the shock and pain of that tasing equated electrocution in Ms. Borton's mind. (Pl. Dep. 34, 36.) And, the electric shock of another tasing left a scar on Ms. Borton's face, and was inflicted in an area prohibited by the Dothan Police Department's regulations on the use of the taser. (Procedural General Order No. 107 (Ex. to Etress Aff.) ("Officers shall not intentionally aim a TASER at a suspect's head, unless deadly force is justified.").)

Having weighed the relevant factors in light of the summary judgment facts, the court finds that a reasonable jury could conclude that tasing a mentally unstable patient three times — once for more than a minute and another on the face, while her arms and legs were restrained on a gurney with handcuffs and Posey restraints — constituted an amount of force that was objectively unreasonable. The totality of the circumstances analysis compels this conclusion.

On these facts, the court rejects Officer Schulmerich's additional argument that summary judgment is proper because his use of a taser to drive stun Ms. Borton constituted de minimis force, and resulted in de minimis injury. (Defs. Summ. J. Br. 28-29.) It is true that the "application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment." Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000); see also Gold v. City of Miami, 121 F.3d 1442, 1446 (11th Cir. 1997) ("[T]he minor nature of [an] injury [can] reflect[] that minimal force was used."); McCall v. Crosthwait, 590 F. Supp. 2d 1337, 1342-44 (M.D. Ala. 2008) (collecting de minimis force/injury cases), aff'd, 336 F. App'x 871 (11th Cir. 2009). However, Nolin, the sole case relied upon by Officer Schulmerich, is distinguishable. See 207 F.3d at 1254. In Nolin, where "a minimal amount of force and injury" defeated an excessive force claim on qualified immunity grounds, the plaintiff was under lawful arrest when the officer "grabbed" and shoved him several feet into a van, kneed him in the back, and pushed his head into the side of a van, id. at 1255, and the plaintiff sustained only temporary bruising that "quickly disappeared" without medical treatment, id. at 1258 n. 4. Moreover, in Nolin, unlike here, the alleged excessive force occurred prior to the plaintiff being handcuffed. In short, on Ms. Borton's version of facts (as opposed to Officer Schulmerich's version), Officer Schulmerich's argument that the use of force was de minimis in terms of both force and injury is unpersuasive.

Finally, Officer Schulmerich argues that he was dispatched to SAMC in his role as a community caretaker and that, therefore, he did not need probable cause that Ms. Borton had committed a crime to "employ[] reasonable force necessary to control the situation." (Defs. Summ. J. Br. 29-30); see, e.g., United States v. McGough, 412 F.3d 1232, 1233 (11th Cir. 2005) (assuming, without deciding, that there is a community caretaking exception to the Fourth Amendment's warrant requirement); see also Cannon v. State, 601 So. 2d 1112, 1115 (Ala. Crim. App. 1992) (recognizing that police perform a "community caretaking function" separate and apart from the enforcement of criminal statutes). Here, there are genuine issues of material fact as to whether the force was reasonable, and Officer Schulmerich has cited no case, and none has been found, that provides that the community caretaker function permits the use of excessive force.

In sum, Defendants' version of the facts and Ms. Borton's version are directly at odds on the salient points surrounding the tasing. While it may be that the trial facts turn out differently than the summary judgment facts, the foregoing cases demonstrate that on Ms. Borton's facts, she has raised a genuine issue of fact as to whether Officer Schulmerich used excessive force when he tased her three times while she was face down on a gurney, with her wrists and ankles restrained.

ii. Officer Weed

Ms. Borton alleges that Officer Weed is liable for failing to intervene and prevent Officer Schulmerich's unconstitutional use of the taser. (Am. Compl. ¶ 37; Pretrial Order 5.) "[I]f a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable." Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 924 (11th Cir. 2000).

Officer Weed argues that because Officer Schulmerich's use of the taser to drive stun Ms. Borton was not excessive force, there is no underlying constitutional violation on Officer Schulmerich's part and, thus, he (Officer Weed) also is entitled to summary judgment. (Defs. Summ. J. Br. 23-34.) As discussed above, there is a genuine issue of material fact with respect to the use of excessive force by Officer Schulmerich. For this reason, Officer Weed is not entitled to summary judgment on Ms. Borton's claim for failing to stop a constitutional violation.

Officer Weed did not argue in the alternative that assuming an excessive force violation by Officer Schulmerich on Ms. Borton's version of the facts, he still would not be liable for failing to stop Officer Schulmerich from tasing Ms. Borton. While evidence appears to be lacking that Officer Weed could have anticipated and then prevented the first tasing, given that Ms. Borton testified that Officer Schulmerich gave no warning that he was about to tase her, it is questionable whether the same conclusion could be reached as to the second and third tasings, as reported by Ms. Borton. Because the argument was not raised, however, it is unnecessary to resolve it.

b. Clearly Established

Having found sufficient evidence of excessive force on the part of Officer Schulmerich, the court addresses the second prong of the qualified immunity inquiry concerning whether the constitutional right was clearly established at the time of the tasing. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001); see also Hope v. Pelzer, 536 U.S. 730, 741 (2002) ("[T]he salient question . . . is whether the state of the law . . . gave [the officers] fair warning that their alleged treatment of [the plaintiff] was unconstitutional.").

Based upon the authority cited in the preceding subsection, the court finds that Officer Schulmerich had fair warning. Three unprovoked tasings on a mentally disturbed patient, who is not under arrest and who has been secured face down on a gurney with handcuffs and Posey restraints, amount to excessive force in violation of the Fourth Amendment. On these facts, no particularized preexisting case law is needed for it to be clearly established that Officer Schulmerich's tasing of Ms. Borton violated her Fourth Amendment right to be free from the use of excessive force. Thus, Officer Schulmerich had fair warning that his conduct violated the Constitution. Moreover, because Officer Weed's only argument is that there was no underlying constitutional violation, see supra note 17, he also has not presented a basis that would entitle him to qualified immunity. Qualified immunity is, therefore, inappropriate as to both Officer Schulmerich and Officer Weed on the summary judgment facts. 2. The City (Counts III and VIII)

If the evidence at trial is different from the evidence presently taken in the light most favorable to Ms. Borton, Officers Schulmerich and Weed may raise qualified immunity anew at trial in motions for judgment as a matter of law, and the issue will be revisited.

Ms. Borton brings § 1983 claims against the City and Powell in his official capacity as the former chief of police. Mr. Powell is not sued in his individual capacity. The Eleventh Circuit has held that suits against a municipal officer in his or her official capacity and suits against the municipality itself are functionally equivalent. See Snow v. City of Citronelle, Ala., 420 F.3d 1262, 1270 (11th Cir. 2005). Ms. Borton's claims, thus, need only be addressed in relation to the City. See id.

Because sufficient evidence of a Fourth Amendment excessive force violation has been found, the next issue is whether the City can be held liable for that violation. Ms. Borton alleges that the City maintained a custom or policy of inadequately investigating citizens' complaints about police misconduct. She further avers that the City failed to adequately train its police officers in the proper use of force concerning mentally impaired individuals, and failed to properly supervise abusive officers. These grounds serve as the basis for § 1983 liability against the City. The City argues that none of these grounds can hurdle summary judgment.

a. Failure to Investigate Adequately Citizens' Complaints

The City contends that summary judgment is warranted on this claim because it has presented evidence that all citizens' complaints are adequately investigated through its Internal Affairs Division and that there is no competent evidence that even one citizen's complaint regarding police misconduct was not investigated. (Defs. Summ. J. Br. 9-10.) The City further maintains that Ms. Borton "has not shown how a failure to investigate citizens' complaints had a causal link between this alleged policy and the injury she complain[s] of." (Defs. Summ. J. Br. 10.)

The City undisputedly has a policy — even if unwritten — of investigating citizen complaints concerning police misconduct that provides for discipline of police officers where appropriate. Ms. Borton alleges, however, that this policy resulted in a practice of inadequate investigations of excessive force complaints against officers. As Ms. Borton surmises, the City has a practice of not interviewing the offending officer or the complaining citizen, but instead only "favorable witnesses." (Pl. Summ. J. Resp. 8.) The investigations, in her opinion, are "superficial." (Pl. Summ. J. Resp. 7.) Although not clearly articulated, Ms. Borton appears to argue that, if the City more thoroughly investigated complaints of police misconduct, it would have learned of a pattern of excessive force by its officers that, if remedied, would have prevented her constitutional injury.

An officially promulgated written policy, if there is one, is not part of the record.

For the reasons to follow, Ms. Borton's claim falters based upon evidentiary deficiencies and a failure to satisfy the legal elements. To establish § 1983 liability against the City, Ms. Borton relies on two prior alleged complaints of excessive force against officers that she contends were inadequately investigated. The first complaint arises from Rebecca Nelson's ("Nelson") tasing in 2004 by a City police officer. (Etress Aff. 3.) However, Ms. Nelson's "statement," submitted by Ms. Borton as evidence of a prior incident of police brutality inadequately investigated, is unsigned and unverified (Pl. Ex. 6); it is not proper summary judgment evidence and, thus, cannot be credited. Regardless, Ms. Nelson's statement does not contain any discussion of the City's investigation of her allegations. Ms. Borton has submitted no other evidence to cure this deficiency. Her testimony that Ms. Nelson's complaint was not adequately investigated (Pl. Dep. 65-66) is cursory, conclusory and lacks any foundation showing personal knowledge. Juxtaposed with this lack of evidence is the competent evidence that, after Ms. Nelson filed a damages claim with the City's clerk in June 2005, the Dothan Police Department's Internal Affairs Division conducted an investigation and found the use of force justified. (Etress Aff. 3.) This evidence stands unrefuted, and there simply is no evidence to back up Ms. Borton's claim that this complaint was not adequately investigated.

The second prior complaint relied upon by Ms. Borton is one lodged against Officer Schulmerich in 1999 involving excessive force. (Pl. Summ. J. Resp. 8.) The evidence submitted by Defendants fairly indicates that the complaint was promptly investigated by the Internal Affairs Division, but that the investigation found that the complaint was not meritorious. (Etress Aff. 3-4.) Ms. Borton argues, however, that the investigation was inadequate because Officer Schulmerich testified during his deposition that he was not aware that any other complaint of excessive force had been filed against him, implying that he neither was told of or interviewed during the 1999 investigation. (Pl. Summ. J. Resp. 8 (Schulmerich Dep. 42-43).)

Initially, it should be emphasized that Ms. Borton does not assert that the City failed to conduct any investigation at all of this complaint of excessive force. Rather, Ms. Borton critiques the adequacy or quality of the investigation that was conducted. The Eleventh Circuit has found facts supporting § 1983 municipal liability where there was a total failure of a law enforcement agency to investigate citizens' complaints of police brutality. See Vineyard, 990 F.2d at 1212-13; see also Gold, 151 F.3d at 1353 (discussing Vineyard). Ms. Borton cites Gold, but she does not cite any decision, much less a binding one, that addresses § 1983 liability based upon inadequate investigations of complaints of police misconduct as opposed to nonexistent investigations. Further probing of the law and independent research on this issue are not required, however, because there is no evidence that any alleged practice of inadequate investigations was the "moving force" or cause of Ms. Borton's constitutional violation. Vineyard, 990 F.2d at 1213.

Brooks v. Scheib, 813 F.2d 1191 (11th Cir. 1987), which involved the City of Atlanta's "procedures for investigating citizens' complaints against police officers," is instructive. Id. at 1192. In Brooks, cited by Defendants, the plaintiff brought a § 1983 custom or policy claim against the city, arguing that citizens should be given a role in reviewing police misconduct complaints. Observing that "[t]he federal judiciary should avoid limiting the discretion of state and local governments by dictating specific remedial measures," the Eleventh Circuit questioned in the first instance whether a "failure to adopt a specific procedure can fall within the Monell definition of custom or policy." Id. at 1194 n. 4. Nonetheless, assuming the validity of such a claim, the Eleventh Circuit held that the plaintiff failed "to establish the causal element — the `affirmative link' between the procedures for investigating citizens' complaints and [the officer's] deprivation of [the plaintiff's] constitutional rights — necessary to prove a section 1983 claim." Id. at 1195. In particular, the plaintiff "was obligated" but failed "to produce some evidence that the complaints against [the defendant-officer] had some merit and that more effective citizens' complaint procedures would have prevented his injuries." Id.; see also Gold, 151 F.3d at 1353 ("[B]ecause [the plaintiff] presented no evidence of a prior false arrest for disorderly conduct or even a valid complaint of such false arrest, there is no showing that the City's procedures for handling false arrest complaints affected the officers' conduct here." (citing Brooks, 813 F.2d at 1195)).

Here, it is simply Ms. Borton's own opinion, unsupported by any evidence, that Officer Schulmerich should have been interviewed in 1999 as part of the investigation, and that the failure to interview him, if that is what occurred, led to her injuries. She has presented no evidence that the absence of additional or different procedures pertaining to witness interviews would have improved the investigative procedures or, assuming arguendo deficient investigative procedures, that different procedures would have forestalled her constitutional injuries. Causation also is lacking because Ms. Borton has not submitted any evidence that the 1999 complaint against Officer Schulmerich actually had merit.

Ms. Borton, thus, is left with her criticism of the investigation conducted after her sister filed a complaint on her behalf complaining about Officer Schulmerich's tasing. (Pl. Summ. J. Resp. 6-7.) Corporal Draughon, a seasoned veteran of the Dothan Police Department, investigated the complaint against Officer Schulmerich. The uncontroverted parts of his affidavit establish that he interviewed not only Ms. Borton, but also the on-duty nurses, and the paramedics who brought her to the hospital. (Draughon Aff. 1-3.) Ms. Borton contends, however, that the investigation was inadequate because Ms. Whitfield was not interviewed. (Pl. Summ. J. Resp. 6.) While it perhaps can be argued successfully on the summary judgment facts that the wrong conclusion was reached, Ms. Borton's arguments as to whom she contends should have been interviewed during the investigation are not persuasive on the issue of the City's liability. For one, Ms. Borton has not explained, and it is difficult to envision, how the failure to interview Ms. Whitfield puts at issue the adequacy of the City's investigative procedures, particularly given that Ms. Whitfield testified that she did not witness any of the three tasings about which Ms. Borton complains. (Whitfield Dep. 29, 63, 73.) For another, this is but a single incident, see Wideman, 826 F.2d at 1032. Last but not least, Ms. Borton has not articulated how an inadequate investigation occurring after the constitutional violation at issue, could have caused that violation. See Fox v. Van Oosterum, 987 F. Supp. 597, 604 (W.D. Mich. 1997) (explaining that the argument that a decision not to investigate, made after alleged violation took place, somehow caused that violation, "defies logic"), aff'd, 176 F.3d 342 (1999).

Because the record is devoid of any evidence demonstrating a policy or custom of inadequate investigation of citizens' complaints that caused her constitutional injuries, Ms. Borton cannot establish § 1983 liability on behalf of the City. The summary judgment motion will be granted on this claim.

b. Failure to Train

Ms. Borton argues that the City had a policy or custom of inadequately training its police officers. More specifically, Ms. Borton contends that the training is inadequate because the Dothan Police Department provides "no training in how to handle mental patients, or any special restraining techniques for holding such people without injury." (Pl. Summ. J. Resp. 9 (citing Schulmerich Dep. 26; Blissett Dep. 38).)

The theory for the § 1983 failure-to-train claim, as argued in Ms. Borton's brief, is different from the theory alleged in the Amended Complaint. The Amended Complaint alleges that the City provided inadequate training for officers who are guilty of "police misconduct." (Am. Compl. ¶ 66.) The theory relied upon in the Amended Complaint is deemed abandoned (but, in any event, there is no evidence to support it). For the sake of thoroughness, and because it was incorporated in Ms. Borton's contentions in the Pretrial Order without objection (Pretrial Order 8), the theory argued in Ms. Borton's brief will be addressed.

"A city may only be held liable under 42 U.S.C. § 1983 when the injury caused was a result of municipal policy or custom." Lewis v. City of W. Palm Beach, Fla., 561 F.3d 1288, 1293 (11th Cir. 2009). This "may include a failure to provide adequate training if the deficiency `evidences a deliberate indifference to the rights of [the city's] inhabitants.'" Id. (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)). When a failure to train is at issue, a plaintiff must "`present some evidence that the municipality knew of a need to train . . . in a particular area and the municipality made a deliberate choice not to take any action.'" Gilliam ex rel. Waldroup v. City of Prattville, 667 F. Supp. 2d 1276, 1292 (M.D. Ala. 2009) (quoting Gold, 151 F.3d at 1350). This requirement is "intentionally onerous" to avoid permitting a municipality to suffer respondeat superior liability. Gold, 151 F.3d at 1351 n. 10. Notice may be established in two ways. "First, if the city is aware that a pattern of

constitutional violations exists, and nevertheless fails to provide adequate training, it is considered to be deliberately indifferent." Lewis, 561 F.3d at 1293. Second, "deliberate indifference may be proven without evidence of prior incidents, if the likelihood for constitutional violation is so high that the need for training would be obvious." Id.

Here, Ms. Borton has not submitted evidence of, or argued that there is, a pattern of occurrences where police officers employed excessive force in restraining "mental patients" in a similar manner as in this case. (Pl. Summ. J. Resp. 9.) Rather, Ms. Borton argues that "[h]andling citizens in an altered mental state is something that should be expected and foreseen by the City" and that, therefore, training should have been provided on this subject. (Pl. Summ. J. Resp. 10.) The City contends, on the other hand, that Ms. Borton "cannot establish that the lack of training in this specific area of restraining a mental patient was so likely to cause a constitutional violation that the need for the special training was obvious." (Defs. Reply Br. 7; see also Defs. Summ. J. Br. 11-13.) For the reasons to follow, the "obvious need" test is not met on this record.

There must be a "`glaring omission,'" not merely an "`imperfection [],'" in the training program. Gold, 151 F.3d at 1352 (quoting Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 410 (1997)). As observed by another judge of this court, the Supreme Court "in dictum, has given only one example of a need to train being `so obvious' that a municipality could be liable without a pattern of constitutional violations," and that example is failing to train police officers in the use of deadly firearm force. Gilliam, 667 F. Supp. 2d at 1292 (citing City of Canton, 489 U.S. at 390); accord Gold, 151 F.3d at 1352 (observing that in City of Canton the example cited was the "obvious need to train police officers on the constitutional limitations on the use of deadly force, when the city provides the officers with firearms and knows the officers will be required to arrest fleeing felons"). The Eleventh Circuit has repeatedly rejected attempts to extend failure-to-train liability to other law-enforcement situations, such as the use of "hobble" restraints, Lewis, 561 F.3d at 1293, responding to complaints about the use of handcuffs, Gold, 151 F.3d at 1352, and the identification and treatment of mentally ill inmates by jail staff, see Young v. City of Augusta, Ga., 59 F.3d 1160, 1171-72 (11th Cir. 1995). See also Gilliam, 667 F. Supp. 2d at 1293 ("The City's failure to re-train its officers on the use of their tasers every year is not a `particularly glaring omission' because the use of a taser is distinguishable from the use of a firearm in the Supreme Court's sole hypothetical example.").

Based upon the Eleventh Circuit's clear reluctance to extend failure-to-train liability to the situations above, an extension of the failure-to-train liability to including training on proper techniques to restrain mentally impaired individuals is not justified. Indeed, Ms. Borton cites no case that holds, or even discusses, a constitutional claim against a municipality for similar conduct.

c. Failure to Supervise

The City argues that the failure-to-supervise claim fails because it is predicated solely on Officer Schulmerich's tasings of Ms. Borton on August 15, 2006, and that this single incident is insufficient to hold the City liable under § 1983. (Defs. Summ. J. Br. 13-14 (citing Pl. Dep. 69).) In any event, the City contends that the Dothan Police Department has in place numerous mechanisms to oversee its officers, including extensive training for its officers, annual evaluations with repercussions for negative performance, a "military style chain of command," and an Internal Affairs Division for investigating complaints of police misconduct, and that Ms. Borton has not "present[ed] any evidence . . . that the City had a policy or custom of failing to supervise its officers." (Defs. Summ. J. Br. 13-15.) Ms. Borton's only rebuttal is that the City's alleged inadequate investigation of citizens' complaints concerning excessive force by officers "allows [them] to overstep their boundaries and violate the civil rights of citizens without fear of any disciplinary action." (Pl. Summ. J. Resp. 10.)

A failure-to-supervise claim is closely akin to a failure-to-train claim. A plaintiff may prove that a failure to supervise is a city policy by demonstrating that the city's failure "evidenced a `deliberate indifference' to the right of its inhabitants." Gold, 151 F.3d at 1350. Deliberate indifference requires proof that "the municipality knew of a need to train and/or supervise in a particular area and the municipality made a deliberate choice not to take any action." Id. "[W]ithout notice of a need to train or supervise in a particular area, a municipality is not liable as a matter of law for any failure to train and supervise." Id. at 1351.

Ms. Borton's argument directly and expressly ties her failure-to-supervise claim to her contention that the City has a custom or policy of inadequately investigating citizens' complaints. Because the latter claim failed, it necessarily follows that the former fails as well. Ms. Borton makes no other argument, and as discussed in other parts of this opinion, there is no evidence that the City knew of a prior substantiated complaint of excessive force by one of its officers or knew of a prior incident in which an individual's constitutional right to be free from excessive force was violated. In light of the evidence submitted by Defendants as to supervisory mechanisms, and given Ms. Borton's cursory treatment of her claim, without citation to any convincing evidence, there is insufficient evidence to raise a genuine issue of material fact. Summary judgment, therefore, is due to be entered in favor of the City on Ms. Borton's § 1983 failure-to-supervise claim against the City.

d. A Word About Count VIII as Pertains to the City

Although the source of law relied upon by Ms. Borton in Count VIII is not crystal clear, Defendants have characterized it as a Fourth Amendment excessive force claim, and Ms. Borton has not refuted that characterization. Although the City is named in this count (alongside Officer Schulmerich and Officer Weed), it contains no allegations that a municipal custom or policy caused Ms. Borton's constitutional rights to be violated. Because under § 1983 a municipality cannot be held liable for the individual actions of its officers on the basis of respondeat superior, Count VIII presents no potentially viable theory of liability against the City. In other words, all of Ms. Borton's allegations pertaining to customs or policies of the City are set forth in Count III; there are none in Count VIII.

B. State Law Claims

1. State Law Claims Against the City and Chief of Police Powell in his Official Capacity

a. Negligent Retention (Count VI)

Ms. Borton concedes that summary judgment is appropriate as to her state law negligent retention claim. (Pl. Summ. J. Resp. 12.) Based upon this concession, Defendants' motion is due to be granted on this cause of action.

b. Negligent Training and Supervision (Counts IV and V)

Ms. Borton alleges that the City of Dothan, through its former chief of police (Powell), negligently and wantonly failed to train and supervise its officers (including Officers Schulmerich and Ward) with respect to the "proper use" of a taser. (Am. Compl. ¶¶ 78, 88.) The City argues that by statute, it cannot be held liable for wanton conduct, and that under case law, there is no "cause of action against a municipality for negligent . . . supervision or training." (Defs. Summ. J. Br. 16-17.) Ms. Borton merely responds that, even if the court dismisses the wantonness claims, the City "can still be held responsible for the negligent [training and] supervision of its employees." (Pl. Summ. J. Resp. 11.) The City has the better argument.

First, § 11-47-190 of the Alabama Code limits the liability of a city. That statute provides in, pertinent part, that

[n]o city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employee of the municipality engaged in work therefor and while acting in the line of his or her duty. . . ."

Ala. Code § 11-47-190. The Supreme Court of Alabama has held that § 11-47-190 "exclude[s] liability for wanton misconduct" attributable to a city within Alabama's boundaries. Town of Loxley v. Coleman, 720 So. 2d 907, 909 (Ala. 1998) (quoting Hilliard v. City of Huntsville, 585 So. 2d 889, 891 (Ala. 1991)). Based upon this clear authority and Ms. Borton's failure to offer any substantive argument to the contrary, the City is entitled to summary judgment on Ms. Borton's claim against it alleging wanton training and supervision.

Second, as this court previously has observed, no Alabama court has expressly recognized a cause of action against a municipality for a supervisor's negligent training or supervision of a subordinate. Cornelius v. City of Andalusia, No. 06cv312, 2007 WL 4224036, at *5 (M.D. Ala. Nov. 28, 2007) (citing Ott v. City of Mobile, 169 F. Supp. 2d 1301, 1314-15 (S.D. Ala. 2001)); see also Styron v. City of Foley, No. 03-0572, 2005 WL 3098926, at *4-5 (S.D. Ala. Nov. 18, 2005). Ms. Borton has not cited any authority from any state or federal court contradicting or rejecting the finding in Ott. The court also has not located any such authority. Accord Ott, 169 F. Supp. 2d at 1314 ("The plaintiffs have identified, and the Court has located, no authority for the proposition that such a cause of action exists."). To the contrary, other federal district courts in Alabama have followed in Ott's footsteps. See Hamilton v. City of Jackson, 508 F. Supp. 2d 1045, 1057-58 (S.D. Ala. 2007) (Police chief could not be liable for negligent training or supervision because, as explained in Ott, "no such cause of action exists under Alabama law" and, therefore, the claim also could not proceed against the city "since its liability, if any, flows derivatively from its employee."); McLaurine v. City of Auburn, Ala., No. 06cv1014, 2007 WL 1548924, at*3 n. 5 (M.D. Ala. 2007) (adopting magistrate judge's recommendation that favorably cited Ott). Accordingly, Ms. Borton has not demonstrated that Alabama law recognizes her cause of action for negligent training and supervision against the City, and the weight of authority does not support her claim.

However, assuming the validity of the claim under Alabama law, the negligent supervision and training claim would fail on the merits. An essential element of this claim requires "affirmative proof" that the employee's incompetence was actually or constructively known by the master. Voyager Ins. Cos. v. Whitson, 867 So. 2d 1065, 1073 (Ala. 2003). Defendants have submitted evidence that Officers Schulmerich and Weed were certified to carry tasers, had maintained mandatory annual training, and had favorable evaluations. There also is no evidence, as discussed earlier, that a meritorious claim of excessive force has been previously filed against these officers. Ms. Borton has not identified any competing evidence from which the City's awareness can be inferred. Accordingly, summary judgment on Ms. Borton's state law claim against the City for negligent training and supervision is due to be entered in favor of the City. 2. State Law Claims Against Officers Schulmerich and Weed

a. Assault and Battery

An assault and battery claim under Alabama law is brought against Officer Schulmerich and Officer Weed. The elements of assault and battery are an "`intentional, unlawful offer to touch the person of another in [a] rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a wellfounded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt if not prevented.'" Ex parte Am. Heritage Life Ins. Co., No. 1080868, 2010 WL 1170513, *2 (Ala. March 26, 2010) (published) (quoting Wright v. Wright, 654 So. 2d 542, 544 (Ala. 1995)). A battery is a "successful assault" and requires a touching in a "hostile manner." Surrency v. Harbison, 489 So. 2d 1097, 1104 (Ala. 1986); see also Ex parte Atmore Cmty. Hosp., 719 So. 2d 1190, 1193 (Ala. 1998) (defining a battery as an intentional touching "conducted in a harmful or offensive manner"). Moreover, under appropriate circumstances, one need not have personally committed the assault and battery to be held liable alongside the actual tortfeasor. In Abney v. Mize, 46 So. 230 (1908), the Supreme Court of Alabama approved a jury instruction that "if Ben Abney aided, abetted, or encouraged Dee Abney in entering into or continuing an unlawful assault on plaintiff, then he would be responsible for whatever Dee Abney did in the furtherance of such assault, notwithstanding that he may not have explicitly encouraged, aided, or abetted any one particular act of defendant Dee Abney." Id. at 230; see also Deal ex rel. Barber v. Hill, 619 So. 2d 1347, 1349 (Ala. 1993) (citing Abney with approval).

i. Officer Schulmerich

Officer Schulmerich contends that on his version facts — two tasings by him for the purpose of controlling an uncontainable, unrestrained and hysterical mentally disturbed patient — is lawful, and not an assault and battery. (Defs. Summ. J. Br. 34-35.) On Ms. Borton's facts, however, a reasonable jury could conclude that three unprovoked tasings on a patient secured to a gurney with no possibility of escape or harming herself or others amount to assault and battery. Because the evidence as to whether an assault and a battery in fact occurred is conflicting, the question as to the lawfulness of the tasings under Alabama's assault and battery law is for the jury.

ii. Officer Weed

The factual basis for holding Officer Weed liable for assault and battery is that he "took no action to stop" Officer Schulmerich from tasing Ms. Borton and that he "threatened [Ms. Borton] with further physical harm while assisting Officer Schulmerich." (Am. Compl. ¶ 48.) As to the former, because the only basis argued by Officer Weed for summary judgment is that Officer Schulmerich's tasing of Ms. Borton was neither an assault nor a battery, he also has not presented grounds that warrant the grant of summary judgment. As to the latter, it would appear that Ms. Borton is referring to her testimony that, while in the SAMC examination room, Officer Weed for "no reason" said that if she "spit on him," he would "knock [her] out," and he "drew his fist back . . . over his head." (Pl. Dep. 39.) Officer Weed, however, has not addressed this arguably independent ground for assault, and, thus, summary judgment is not appropriate on this claim either.

b. State-Agent Immunity

Officers Schulmerich and Weed nonetheless contend that they are entitled to state-agent immunity in their individual capacities. (Defs. Summ. J. Br. 35-37; Pl. Summ. J. Resp. 12.) State-agent immunity is extended to police officers when a tort claim is based on "exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons," or serving as peace officers under circumstances entitling such officers to immunity pursuant to § 6-5-338(a), Ala. Code 1975." Hollis v. City of Brighton, 950 So. 2d 300, 309 (Ala. 2006) (emphasis in original). The test for state-agent immunity is "set forth in Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), as modified in Hollis," which "incorporat[ed] the peace-officer-immunity standard provided in § 6-5-338(a) into the State-agent-immunity analysis found in Cranman." Suttles v. Roy, No. 1071453, 2010 WL 2034827, *3 (Ala. 2010) (published).

In Alabama, there is state-agent immunity defined by case law and discretionary function immunity defined by statute. See Brown v. City of Huntsville, Ala., 608 F.3d 724, 740-41 (11th Cir. 2010). As explained in Brown, the principles of state-agent immunity now govern whether a peace officer is entitled to statutory immunity. Id. at 740.

State-agent immunity is subject to a burden-shifting framework. The police officer bears the burden of demonstrating that the plaintiff's claims arise from a function that would give rise to immunity. See Brown v. City of Huntsville, Ala., 608 F.3d 724, 741 (11th Cir. 2010) (citing Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006)). When the police officer has shown this, the burden shifts to the plaintiff to show that the police officer "`acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority.'" Id. (citing Ex parte Estate of Reynolds, 946 So. 2d at 452).

There appears to be no dispute that Officer Schulmerich and Officer Weed were serving as peace officers on August 15, 2006. Ms. Borton, thus, has the burden of showing that Officer Schulmerich and Officer Weed acted willfully, maliciously, fraudulently, in bad faith, or beyond their legal authority.

For substantially the same reasons that Officer Schulmerich was denied qualified immunity on the Fourth Amendment excessive force claim, he also is not entitled to state-agent immunity for that conduct. Construing the facts in the light most favorable to Ms. Borton, Officer Schulmerich's use of a taser drive stun on Ms. Borton was done intentionally, gratuitously, and in violation of Ms. Borton's clearly established constitutional rights. See Brown, 608 F.3d at 742 (Police officer was not entitled to state-agent immunity when the summary judgment facts established that he sprayed pepper spray on a cooperative, non-combative, non-threatening suspect.).

Although perhaps a closer call, state-agent immunity as to Officer Weed is not appropriate at this time either. A reasonable jury could conclude on Ms. Borton's facts that Officer Weed, at the very least, acted intentionally in taking absolutely no action to prevent Officer Schulmecher from tasing Ms. Borton the second and third times, see supra note 17. Of course, if at trial the facts pan out more in line with Defendants' version of the events, state-agent immunity may bar Ms. Borton's claims.

The assault and battery claim also is lodged against Officers Schulmerich and Weed in their official capacities. (Am. Compl. 13.) In the § 1983 context, as discussed earlier, the official-capacity claim against these officers is really one against the City. Officers Schulmerich and Weed have not raised or addressed whether the same dichotomy is recognized under Alabama law. In other words, Officers Schulmerich and Weed have not briefed whether a claim for assault and battery against a city police officer is treated as a claim against the City and, if so, whether the City is immune from liability Because these issues have not been raised or briefed, this opinion does not resolve them.

VI. CONCLUSION

Based upon the facts viewed in the light most favorable to Ms. Borton, there is sufficient evidence that Officer Schulmerich used excessive force when he activated his taser three times on Ms. Borton while she was lying face down on a gurney with all limbs tightly secured by handcuffs and Posey restraints, and that Ms. Borton's right not to be subjected to this force was clearly established on August 15, 2006. Moreover, because a reasonable jury could conclude that Officer Schulmerich's tasing subjects him to liability for assault and battery under Alabama law, summary judgment is due to be denied on this claim.

Furthermore, because Officer Weed (whose liability is predicated on allegations of a failure to stop Officer Schulmerich's tasing) hangs his summary judgment motion on the sole ground that Officer Schulmerich's tasing was neither excessive force, in violation of the Fourth Amendment, nor assault and battery under Alabama law, he also is not entitled to summary judgment on the Fourth Amendment excessive force claim and the state law assault and battery claim. Summary judgment, however, is due to be entered in Defendants' favor on all other claims subject to the motion.

Accordingly, it is ORDERED that Defendants' motion for summary judgment (Doc. # 66) is GRANTED in part and DENIED in part as follows:

(1) GRANTED as to Ms. Borton's § 1983 Fifth Amendment and Eighth Amendment claims against Officers Schulmerich and Weed in their individual capacities;

(2) DENIED on the merits as to Ms. Borton's § 1983 Fourth Amendment excessive force claims against Officers Schulmerich and Weed in their individual capacities;

(3) DENIED on Officer Schulmerich's and Officer Weed's defense of qualified immunity on Ms. Borton's § 1983 Fourth Amendment excessive force claims against them in their individual capacities;

(4) DENIED on the merits on Ms. Borton's state law claim for assault and battery against Officers Schulmerich and Weed;

(5) DENIED on Officer Schulmerich's and Officer Weed's defense of state-agent immunity on Ms. Borton's state law claim for assault and battery against them in their individual capacities; and

(6) GRANTED as to the state law claims alleging negligent training, supervision and retention against the City and Chief of Police Powell in his official capacity.

A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c). (b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998). (c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." 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Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits: (a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below. (b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." 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(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. 3. Format of the notice of appeal : Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant. 4. Effect of a notice of appeal : A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).