United States District Court, N.D. Alabama, Middle Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
April 21, 2015, the magistrate judge entered a report in
which he recommended that the Court dismiss without prejudice
all claims, except the excessive force claims against
defendants Pittman, Fileccia, Chowhan, and Purdy, for failure
to state a claim upon which relief can be granted pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii). (Doc. 13). The magistrate
judge advised plaintiff Leonardo Gutierrez of his right to
file specific, written objections to the report and
recommendation within 14 days. (Doc. 13, pp. 8-9). On May 6,
2015, Mr. Gutierrez filed objections to the report and
recommendation. (Doc. 15).
party objects to a report and recommendation, the district
court must “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§§ 636(b)(1)(B)-(C). The Court reviews de novo
legal conclusions in a report and reviews for clear error
factual findings to which no objection is made. Garvey v.
Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir. 1993); see
also LoConte v. Dugger, 847 F.2d 745, 749 (11th
Cir. 1988); Macort v. Prem, Inc., 208 Fed.Appx. 781,
784 (11th Cir. 2006). A district court “may accept,
reject, or modify, in whole or part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C).
objections, Mr. Gutierrez contends that Warden Hassell should
be held responsible for the actions of the officers who Mr.
Gutierrez alleges used excessive force because Warden Hassell
is a supervisor who is “responsible for the day to day
activities of the detainees.” (Doc. 15, p. 2). Mr.
Gutierrez states that he filed a grievance regarding the
alleged excessive force, but Warden Hassell “failed to
remedy a wrong after learning of it” through the
grievance process. (Id.). Mr. Gutierrez seems to use
this language because the magistrate judge used similar
language in his report and recommendation regarding
supervisory personnel's failure to “remedy a wrong
after learning of it through report or appeal.”
(See Doc. 13, pp. 4-5) (citing Williams v.
Smith, 781 F.2d 319, 323 (2nd Cir. 1986)). This rule,
however, “applies only to situations where an alleged
violation is ongoing, not situations involving a one-time
violation.” Self v. LaValley, 2102 WL 7810950,
at *9 (N.D.N.Y. Dec. 27, 2012). “Therefore, a
supervisor may be liable for [his] failure to remedy a
violation only in those circumstances where the violation is
ongoing and the [supervisor] has the opportunity to stop the
violation after being informed of it.” Id.
Because Mr. Gutierrez's claims involve a one-time
incident of excessive force which Warden Hassell could not
have prevented without advance warning, the rule that Mr.
Gutierrez cites does not apply in this case. See Brown v.
Crawford, 906 F.2d 667, 671 (11th Cir. 1990) (“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.”). Accordingly, the Court overrules Mr.
Gutierrez's objection regarding Warden Hassell.
Gutierrez also objects to the magistrate judge's
recommendation that the Court dismiss defendants Lund,
Ingram, and Miller. Mr. Gutierrez identifies these defendants
as “Field Office Directors and [the] Chief of the
Immigration and Customs Enforcement Agency.” (Doc. 15,
p. 2). Mr. Gutierrez contends that these defendants failed to
train the “deportation officers” who he alleges
used excessive force. (Id.). He states that these
defendants “are always aware of the need to
train” their subordinates because of the
“hundreds of complaints” that are submitted to
the Office of the Inspector General and the Department of
Homeland Security's Office for Civil Rights and Civil
Liberties. (Id. at 3).
supervisory official may be held liable under § 1983 for
failure to train if “‘his failure to train
amounts to deliberate indifference to the rights of the
persons with whom the subordinates came in contact and the
failure has actually caused the injury of which the plaintiff
complains.'” Belcher v. City of Foley,
Ala., 30 F.3d 1390, 1397 (11th Cir. 1994) (quoting
Popham v. City of Talladega, 908 F.2d 1561, 1564-65
(11th Cir. 1990)). To establish deliberate indifference, Mr.
Gutierrez must assert factual allegations which demonstrate
that the defendants were “aware of the need to train or
supervise [their subordinates] in a particular area.”
Am. Fed. of Labor and Congress of Industrial Orgs. v.
City of Miami, FL., 637 F.3d 1178, 1189 (11th Cir.
2011). Mr. Gutierrez “must also demonstrate that
constitutional violations were likely to recur without
training” and that the defendants “‘made a
deliberate choice'” not to train their subordinates
despite an obvious need. Id. (quoting Gold v.
City of Miami, 151 F.3d 1346, 1350-52 (11th Cir. 1998)).
Mr. Gutierrez's complaint nor his objections to the
report and recommendation contains sufficient factual
allegations to meet the requirements outlined above.
Therefore, the Court overrules Mr. Gutierrez's objections
with respect to defendants Lund, Ingram, and Miller.
reviewed and considered the materials in the court file,
including the report and recommendation and Mr.
Gutierrez's objections, the Court adopts the magistrate
judge's report and accepts his recommendation.
Court DISMISSES WITHOUT PREJUDICE all of Mr. Gutierrez's
claims, except the excessive force claims against defendants
Pittman, Fileccia, Chowhan, and Purdy. The Court RECOMMITS
the excessive force claims against defendants Pittman,
Fileccia, Chowhan, and Purdy to the magistrate judge for
Court asks the Clerk to please mail a copy of this ...