Dillingham v. Millsaps (809 F. Supp. 2d 820, 2011)

United States District Court for the Eastern District of Tennessee 2011-08-10

Citations

Full opinion text

MEMORANDUM AND ORDER

THOMAS W. PHILLIPS, District Judge.

This matter is before the Court on the Motion for Summary Judgment [Doc. 67] filed by Sheriff William Bivens (“Sheriff Bivens”) and Monroe County (collectively, “Defendants”). On June 1, 2007, plaintiffs Rodney Dillingham (“Dillingham”) and William Mills (“Mills”) (collectively, “Plaintiffs”) filed this civil rights action under 42 U.S.C. § 1983. Plaintiffs allege that Defendants violated several of their constitutional rights, including the Fourth Amendment of the United States Constitution. In particular, Plaintiffs allege that Deputy Sheriff Brian Millsaps (“Deputy Mill-saps”) and Deputy Sheriff Keith McLemore (“Deputy McLemore”) used “excessive force” in violation of the Fourth Amendment. Plaintiffs also claim that Sheriff Bivens should be held supervisorily liable for this conduct, and that Monroe County should be held liable for having a “custom” or “policy” authorizing the use of “excessive force.”

Plaintiffs have also brought Section 1983 claims based upon Fifth and Sixth Amendment violations, but those claims are not presently before the Court. Instead, the Court will be reviewing Plaintiffs’ “excessive force” clams against Sheriff Bivens in his individual capacity and Monroe County. Because Sheriff Bivens was not present during the alleged incident, he may only be liable under a theory of “supervisory” liability. To reach this question, however, the Court must first address Plaintiffs’ underlying “excessive force” claims against Deputy Millsaps and Deputy McLemore. Obviously, Sheriff Bivens can only be liable if the underlying conduct was unconstitutional. Consequently, even though Deputy Millsaps and Deputy McLemore did not join in the Motion for Summary Judgment [Doc. 67], the Court must still address Plaintiffs’ “excessive force” claims against them in their individual capacities. After the Court reviews Plaintiffs’ “excessive force” claims against Deputy Millsaps, Deputy McLemore, and Sheriff Bivens (all in their individual capacities), the Court will then determine whether Monroe County — acting through the Monroe County Sheriffs Department — had a “custom” or “policy” encouraging the use of “excessive force.” Finally, the Court will address Plaintiffs’ state law claims against Monroe County and Sheriff Bivens in his individual capacity.

Based upon the following, the Motion for Summary Judgment [Doc. 67] is GRANTED, whereby the Court makes the following rulings:

• There is a genuine issue of material fact regarding Dillingham’s Section 1983 claim based upon a Fourth Amendment violation against Deputy Millsaps and Deputy McLemore in their individual capacities. Specifically, there is a genuine issue of material fact regarding whether Deputy Millsaps and Deputy McLemore used “excessive force” in violation of the Fourth Amendment.

• Mills’s Section 1983 claim based upon a Fourth Amendment violation against Deputy Millsaps in his individual capacity is DISMISSED WITH PREJUDICE. • Mills’s Section 1983 claim based upon an Eighth Amendment violation against the Defendants is DISMISSED WITH PREJUDICE.

• Dillingham’s Section 1983 claim based upon an Eighth Amendment violation against the Defendants is DISMISSED WITH PREJUDICE.

• Dillingham’s Section 1983 claim based upon a Fourteenth Amendment violation against Deputy Mill-saps and Deputy McLemore in their individual capacities is DISMISSED WITH PREJUDICE.

• Mills’s Section 1983 claim based upon a Fourteenth Amendment violation against Deputy Millsaps in his individual capacity is DISMISSED WITH PREJUDICE.

• Mills’s Section 1983 claims based upon a Fourteenth Amendment violation against Monroe County and Sheriff Bivens in his individual capacity are DISMISSED WITH PREJUDICE.

• Dillingham’s Section 1983 claim based upon a Fourth Amendment violation against Sheriff Bivens in his individual capacity is DISMISSED WITH PREJUDICE.

• Dillingham’s Section 1983 claim based upon a Fourth Amendment violation against Monroe County is DISMISSED WITH PREJUDICE.

• Plaintiffs’ state law claims against Monroe County are DISMISSED WITH PREJUDICE.

• Plaintiffs’ state law claims against Sheriff Bivens in his individual capacity are DISMISSED WITH PREJUDICE.

I. BACKGROUND

On May 11, 2007, Plaintiffs and others were camping at a lake near their home on Miller Road in Monroe County, Tennessee. Around 11:00 p.m., after they had been drinking alcohol for a while, Plaintiffs decided to leave and pick up Dillingham’s wife. Two other individuals, Joe Holloway (“Holloway”) and an unknown person (“John Doe”), decided to leave with Plaintiffs. Leaving the campsite, the men proceeded down Miller Road with John Doe driving, Mills in the front passenger seat, and Dillingham and Holloway in the back seat. At some point, the vehicle veered off the right side of the road, went down an embankment, and flipped over. Plaintiffs were rendered unconscious.

Mills awoke first and found himself in the car along with Dillingham and Holloway. John Doe, the driver of the car, was nowhere to be found. Realizing that his leg was broken, Mills woke Dillingham to help him out of the car. Mills also attempted to wake Holloway, but Holloway had sustained a serious head injury, and would remain unconscious for several days following the accident.

Dillingham suffered only cuts and bruises, and was able to help Mills out of the car. Once out, Mills attempted to stand, but instead fell down the embankment and blacked out again. Around this same time, a passing motorist stopped by. At this point, Dillingham asked the motorist to call for help. Following this interaction, Dillingham fell back down the embankment himself. Shortly thereafter, deputies from the Monroe County Sheriffs Department (“Sheriff Department”) and emergency medical personnel arrived.

A. Mills’s Allegations

Mills claims that he was lying on the ground, unconscious, when he was awakened by something striking his right leg. [Mills Dep., Doc. 69-2, at 7, 26:11-15, Sep. 27, 2010]. Upon opening his eyes, Mills claims that he saw Deputy Millsaps move his right leg back into a standing position. [Id. at 10, 37:20-21], Mills screamed and asked Deputy Millsaps why he “kicked” him. [Id. at 7, 26:14-20]. Defendants, however, state that Deputy Millsaps only nudged Mills’s leg. [Defendants’ Memorandum in Support of their Motion for Summary Judgment, Doc. 69, at 7].

Deputy Millsaps then asked Mills about the car accident, specifically, how many people were in the car. [Mills Dep., Doc. 69-2, at 7, 26:14-20]. Mills told the deputy that his leg was broken, at which point, according to Mills, Deputy Millsaps simply walked away. [Id. at 8, 32:1-4]. After Deputy Millsaps walked away, emergency medical services (“EMS”) began tending to Mills. [Id. at 10, 39:3-15], They strapped Mills to a backboard, carried him up the embankment, and placed him on the road behind an ambulance. [7d]. This is when Mills claims that he heard Dillingham screaming in pain. [Id. at 9, 34:21-36:17]. According to Mills, it sounded as though Dillingham was being attacked. [Id.]. However, Mills admits that he could not see what was happening. [Id.]. Because he could only hear Dillingham, Mills does not know if Dillingham was fighting with emergency personnel or law enforcement. [7cZ. ]. During his deposition testimony, Mills was asked if he heard anyone tell Dillingham to stop fighting. [Id. at 9, 36:20-23]. Mills states that he could not remember because he “wasn’t really focusing on any of that.” [Id.].

At some point after Mills overhead the incident involving Dillingham, he was loaded onto a stretcher behind the ambulance and approached by Deputy McLemore. [Id. at 9, 33:17-34:4], This was the first time that Mills encountered Deputy McLemore. [7d]. Deputy McLemore never touched Mills, and only asked questions about the car accident. [Id.]. This was Mills’s only contact with Deputy McLemore. [Id.]. As such, Mills makes no allegations with respect to Deputy McLemore. [Id.].

After his encounter with Deputy McLemore, Mills was taken by ambulance to the University of Tennessee Medical Center. [Id. at 13, 51:2-52:16]. Once there, Mills was diagnosed with a fractured right femur and underwent surgery the following day. [7d]. Mills spent approximately one week in the hospital before being released. [7d].

B. Dillingham’s Allegations

While the record is not clear, it appears that during the initial encounter between Mills and Deputy Millsaps, emergency personnel were tending to Dillingham. According to his deposition testimony, when Deputies Millsaps and McLemore approached Dillingham, he was still down the embankment, but EMS were in the process of securing him on a backboard. [Dillingham Dep., Doc. 69-1, at 34, 136:17— 138:7, Dec. 16, 2010]. Dillingham claims that the deputies began interrogating him about the car accident, specifically asking about the driver of the vehicle. [Id.]. When he replied that he did not know who was driving, the deputies allegedly told everyone around to “look at the stars.” [7d]. This, Dillingham states, is when the deputies began to beat and “taser” him. [7d].

Dillingham claims that he was immobilized on the backboard as the deputies beat and tasered him, all while continuing to question about who was driving the vehicle. [Id. at 35, 137:1-144:18]. Allegedly, the deputies held a flashlight in Dillingham’s face so that he could not see them as they hit, kicked, and tasered him repeatedly. [7d]. Dillingham claims that Deputy McLemore hit him in the face with a flashlight and kicked him in the side. [7d]. He also alleges that Deputy Millsaps stood on his testicles, and repeatedly tasered his testicles and stomach. [7d]. While Dillingham claims that he was not combative with law enforcement officers or medical personnel, he admits that the officers told him to stop fighting and to cooperate. [Id. at 38,148:8-149:21],

Although he does not know the exact amount of time, Dillingham believes that the beating lasted around thirty minutes. [Id. at 35, 137:7-16]. Dillingham claims that he suffered bruising, neck pain, back pain, fractures, missing teeth, and taser burns. [Id. at 39, 153:15-156:19]. Dillingham provided pictures at his deposition that apparently depicted these injuries. [Id]. However, aside from the taser marks, it is unclear from the record which injuries, if any, were the result of the car accident, or if most of the injuries were related to the alleged beating. Notably, Dillingham admits that he received some cuts on his head and face as a result of the accident. [Id.].

Following the car accident, Dillingham was transported to the University of Tennessee Medical center, where he remained for around five days. [Id. at 40, 159:11-160:24], Unfortunately, the record does not indicate what injuries he was diagnosed with, or what treatment he was given. However, Dillingham claims that his doctors encouraged him to seek a specialist for back injuries following his medical discharge. [Id.]. In addition, Dillingham claims that he continues to suffer from pain and memory loss related to his injuries. [Id. at 1, 7:22-8:1; at 8, 30:11-19].

C. Deputy Millsaps

Deputy Millsaps disputes Dillingham’s account of the events. In particular, Deputy Millsaps claims that he only used force because Dillingham was being combative. [Deputy Millsaps Dep., Doc. 78-1, at 11, 25:23-25]. According to Deputy Millsaps, only Dillingham’s legs were strapped down, not his whole body, and it appeared that Dillingham was trying to hit the emergency personnel. [Id. at 11, 26:9-22]. Deputy Millsaps also denies that he kicked Dillingham, stepped on his testicles, or used his flashlight. [Id. at 10, 25:14-18]. Notwithstanding, Deputy Millsaps does admit that he used the taser on Dillingham. [Id.]. Dillingham was apparently not suffering from significant injuries at the time. [Id. at 13, 28:9-17]

According to Deputy Millsaps, Dillingham did not comply with his verbal commands to stop fighting with the medical personnel. [Id. at 15, 30:24-31:13]. Instead, Dillingham kept “flailing” his fists at emergency workers. [Id.]. In response to the alleged combative behavior, Deputy Millsaps tasered Dillingham once in the upper body. [Id. at 10, 25:14-17; at 16, 31:19-32:6]. Deputy Millsaps states that he tasered Dillingham only once because it did not work, and because he did not want to risk hurting himself or Dillingham by doing it again. [Id. at 16, 31:19-32:6], Further, Deputy Millsaps states that Deputy McLemore was next to his side during the tasering and that he (Deputy Millsaps) never told anyone to turn away prior to using his taser. [Id. at 13, 28:18-20, at 14, 29:11-13],

Following the incident, Dillingham and Mills filed formal complaints with the Sheriffs Department. [Defendants’ Statement of Material Facts, Doc. 70, at 3, ¶ 20], Although it is not clear why, Deputy Mill-saps was discharged following his interview with department investigators. [Id. at ¶ 22], The District Attorney was notified about the complaints and the Tennessee Bureau of Investigation (“TBI”) conducted their own investigation. [Id. at 4, ¶ 29]. Ultimately, a grand jury refused to indict either of the deputies. [Id.].

Deputy Millsaps further testified about his training on the appropriate use of force. [Id. at 4, 6:2-5, at 6, 11:4-6]. Deputy Millsaps graduated from the Tennessee Law Enforcement Training Academy (the “Academy”) in 1996 where he received training on the use of force. [Id]. At the time of the incident (May 11, 2007), Deputy Millsaps was in good standing with the Sheriffs Department and had not received any complaints. [Sheriff Bivens Affidavit, Doc 68, at 3, ¶ 5]. Deputy Millsaps was also up to date on his annually-required forty hours of continuing education. [Bivens Affidavit, Doc 68, at 3, ¶ 5]. Additionally, Deputy Millsaps states that he received training at the Academy on how to deal with belligerent individuals. [Deputy Mill-saps Dep., Doc. 78-1, at 8, 13:5-16]. This training was refreshed every couple of years. [7d]. Despite receiving this training, Deputy Millsaps admits that he never received, or saw, a copy of the Monroe County Sheriffs Department Policy Manual (“Policy Manual”). [Id. at 5, 9:2-7].

Deputy Millsaps also attended a taser training class in the fall of 2006 that lasted four to eight hours. [Id. at 6, 11:10-18]. During this class, he was instructed on the appropriate use of force, both generally and specifically with regard to using tasers. [Id. at 6, 11:7-12]. For example, Deputy Millsaps was taught that using a taser is appropriate when a person does not respond to verbal commands and is being combative. [Id. at 8, 13:17-14:12].

D. Sheriff Bivens

Sheriff Bivens, by his own affidavit, states that he was not at the scene of the accident, and that he has never had any contact with the Plaintiffs. [Sheriff Bivens Affidavit, Doc. 68, at 2, ¶ 4], Plaintiffs also confirm that they have never spoken with Sheriff Bivens, or had contact with him. [Plaintiffs’ Responses to Defendants’ Statement of Material Facts, Doc. 74, at 5, ¶ 19]. Additionally, Sheriff Bivens claims that he is unaware of any previous complaints being filed against Deputies Mill-saps and McLemore. [Sheriff Bivens Affidavit, Doc. 68, at 3, ¶ 6]. Although it is disputed by Deputy Millsaps, Sheriff Bivens claims to have provided both deputies with copies of the Policy Manual. [Id. at 3, ¶ 5]. Sheriff Bivens also states that both deputies were up to date on their required forty hours of inservice. [Id.].

It was only after Dillingham and Mills filed their complaints that Sheriff Bivens learned about the incident. [Id. at 2, ¶ 4], Sheriff Bivens attempted to interview Deputies Millsaps and McLemore about the complaints. [Id. at 4, ¶ 7]. However, Deputy McLemore did not appear and was discharged. [Id.]. While Deputy Millsaps did provide an interview, he was discharged as a result of some confusion about the interview process. [Id.]. According to Sheriff Bivens, he has never made a finding that the incident happened as Plaintiffs allege. [Id. at 4, ¶ 8]. Instead, he states that the deputies were discharged for failing to follow the internal investigation procedures. [Id]. As previously mentioned, Sheriff Bivens notified the District Attorney who, after a TBI investigation, presented the case to a grand jury that ultimately decided not to indict the two deputies. [Id. at 4, ¶ 9].

II. STANDARD OF REVIEW

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In considering a motion for summary judgment, a court must construe the facts and draw all inferences therefrom in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The central inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. The burden then shifts to the non-moving party to demonstrate the existence of genuine issues of material fact. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The non-moving party must present “significant probative evidence” to show that there is more than “some metaphysical doubt as to the material facts.” Moore v. Philip Morris Co., 8 F.3d 335, 339-40 (6th Cir.1993). Notably, the Court “is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989). If the non-moving party fails to meet this burden, the moving party is entitled to summary judgment.

III. ANALYSIS

A. Plaintiffs’ Section 1983 Claims Based Upon “Excessive Force”

1. Defining the Parties

In addressing civil rights claims brought under 42 U.S.C. § 1983, courts must always begin with the following question: who did the plaintiff sue, and in what capacity? This is an important question, as it determines what the plaintiff must prove, and what defenses are available. In the present case, Plaintiffs have sued three local government officers: Sheriff Bivens, Deputy Millsaps, and Deputy McLemore. Plaintiffs have sued the officers in their individual and official capacities. Based upon the capacity, Plaintiffs will have different burdens of proof, and Defendants will have different defenses. To the extent that Plaintiffs have sued Sheriff Bivens, Deputy Millsaps, or Deputy McLemore, in their official capacities, that is nothing more than a suit against Monroe County. See, e.g., Leach v. Shelby Cnty., 891 F.2d 1241, 1245-46 (6th Cir.1989) (“[The plaintiffs] suit against the Mayor and the Sheriff of Shelby County in then-official capacities is, therefore, essentially and for all purposes, a suit against the County itself.”); Petty v. Cnty. of Franklin, 478 F.3d 341, 349 (6th Cir.2007) (“To the extent that [the plaintiffs Section 1983] suit is against [the sheriff] in his official capacity, it is nothing more than a suit against Franklin County itself.”) (citing Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (“[A]n official capacity suit is, in all respects other than name, to be treated as a suit against the entity.”)).

In addition to suing three individuals, Plaintiffs have sued Monroe County— which includes the Monroe County Sheriffs Department. For purposes of Section 1983, Monroe County is considered a municipal (or local) government. See, e.g., Leach, 891 F.2d at 1245-46.

2. Only Dillingham Has Standing to Bring a Fourth Amendment Claim

To state a claim under 42 U.S.C. § 1983, the plaintiff must establish “(1) that [the] defendant was acting under color of state law, and (2) the offending conduct deprived the plaintiff of rights secured under federal law.” Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.2005). As an initial matter, the Court must determine whether the Plaintiffs have standing to bring a claim under the Fourth Amendment. The Plaintiffs will only have standing if they were “seized” during the alleged “excessive force.” See, e.g., Smoak v. Hall, 460 F.3d 768, 778 (6th Cir.2006) (recognizing that the “safeguards of the Fourth Amendment, with respect to police/citizen contact, vest only after a citizen has been seized”) (citation and internal quotation marks omitted). A seizure occurs when, “in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

Generally, a “seizure” occurs in two ways: (1) through the use of physical force by the officer; or (2) through “show of authority” by the officer, in which the suspect actually submits. See Peete v. Metro. Gov’t of Nashville & Davidson Cnty., 486 F.3d 217, 220 (6th Cir.2007) (citing Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). The Court of Appeals for the Sixth Circuit (“Sixth Circuit”) has recognized the following circumstances as indicative of a seizure: “ ‘the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.’ ” United States v. Jones, 562 F.3d 768, 772 (6th Cir.2009) (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870). Because Plaintiffs were not arrested following the car accident, the Court must look to other facts to determine whether they were “seized.” In addition, the Court must analyze the standing question separately for each Plaintiff. See Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (citations omitted) (“Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.”).

First, the Court finds that Dillingham was seized for purposes of the Fourth Amendment. Notably, Deputy Millsaps admits that he shot Dillingham with a taser gun in an attempt to restrain him. Courts across the country, including the Sixth Circuit, have recognized that the use of tasers may constitute a “seizure” for purposes of the Fourth Amendment. See Kijowski v. City of Niles, 372 Fed.Appx. 595, 598-99 (6th Cir.2010) (implicitly recognizing that the use of a taser twice constitutes a “seizure” for purposes of the Fourth Amendment); Landis v. Baker, 297 Fed.Appx. 453, 463 (6th Cir.2008) (recognizing that the multiple use of a taser, in combination with the use of a police baton, constitutes a “seizure” for purposes of the Fourth Amendment); Bryan v. MacPherson, 630 F.3d 805, 810 (9th Cir.2010) (finding that the use of tasers and similar devices constitutes an “intermediate, significant level of force that must be justified by the governmental interests involved”) (citation omitted); Orem v. Rephann, 523 F.3d 442, 447-48 (4th Cir.2008) (rejecting the contention that a taser constitutes a de minimus level of force); Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir.1993) (“We find defendants’ attempt, on appeal, to minimize the pain of being shot with a stun gun ... to be completely baseless. The defendants’ own testimony reveals that a stun gun inflicts a painful and frightening blow, which temporarily paralyzes the large muscles of the body, rendering the victim helpless.”); Crowell v. Kirkpatrick, 667 F.Supp.2d 391, 408 (D.Vt.2009) (recognizing that tasers have “been described by other courts as “moderate, non-lethal force” ” and cause “acute — even severe — physical pain”). It does not matter whether Dillingham was combative (that fact is only relevant to whether the officers’ force was “reasonable” under the Fourth Amendment); the point is that the deputy sheriffs used physical force to restrain a person against his will. That is the very definition of a “seizure”: intentionally restricting a person’s physical movement. Considering the facts as a whole, and viewing the evidence in the light most favorable to Dillingham, the Court finds that a reasonable person in Dillingham’s position would “have believed he was not free to leave.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. Accordingly, the Court finds that Dillingham was “seized,” and therefore has standing to bring a Fourth Amendment claim under 42 U.S.C. § 1983.

Second, the Court finds that Mills was not seized for purposes of the Fourth Amendment. Having reviewed the record, there is no evidence that Deputy Millsaps or Deputy McLemore restrained Mills by “show of authority.” After Deputy Millsaps and Deputy McLemore arrived at the scene, Deputy Millsaps questioned Mills about the car accident (and specifically, about the driver of the vehicle who was no longer present). There is no evidence that Deputy Millsaps was forceful, abrasive, or controlling with Mills. There is no evidence that Deputy Millsaps pointed a weapon at Mills, or threatened him in some manner. Deputy Millsaps simply asked questions about the car accident; he was not interrogating him or accusing him of criminal liability. There is no evidence that it went beyond general questioning. As the Supreme Court has made clear, general questioning by the police in public does not constitute a “seizure.” See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (“Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions.... ‘Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.’ ”) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). See also United States v. Jahkur, 409 F.Supp.2d 28, 30-31 (D.Mass.2005) (finding that a plaintiff who had just been in a car accident was not seized, even though he was questioned by police officers, because the questioning only amounted to “general questioning” and therefore was a consensual encounter).

Moreover, the fact that Deputy Millsaps and Deputy McLemore “controlled” the environment — they were investigating a car accident — makes no difference. As the Sixth Circuit has recognized, “[t]he distinguishing feature of a seizure is the restraint of the subject’s liberty — specifically, his or her freedom to walk away. Control [by law enforcement] over one’s environment does not establish a seizure unless that control somehow restricts the subject’s physical liberty.” Ewolski v. City of Brunswick, 287 F.3d 492, 507 (6th Cir.2002). Even though Deputy Millsaps and Deputy McLemore had control over the environment, that does not mean that they restricted Mills’s physical liberty. Even if Deputy Millsaps “nudged” or “kicked” Mills’s leg, there is no evidence that it was done to restrain him from leaving the scene. Mills could not walk away because he had a broken leg; it was not because law enforcement prevented him from doing so. In other words, the fact that Mills did not leave the scene does not mean that he submitted to authority. His movement was restrained by his own condition, not by law enforcement.

Mills’s entire Fourth Amendment claim against Deputy Millsaps rests upon his broken leg being “kicked.” At this time, however, Dillingham had not yet started screaming in response to the taser or other force being applied. Because Mills was unaware of his surroundings at the time he was allegedly kicked, there is no reason to think that he was somehow influenced— that is, decided to submit to authority— based upon what was happening to Dillingham. Consequently, the Court does not find that a reasonable person in Mills’s situation would have felt restrained from leaving the scene based upon the actions of law enforcement. It was his condition— not law enforcement — -that made him incapable of leaving. Accordingly, the Court finds that Mills does not have standing to bring a Fourth Amendment “excessive force” claim under 42 U.S.C. § 1988. Consequently, Mills’s Fourth Amendment “excessive force” claims against Sheriff Bivens in his individual capacity, Deputy Millsaps in his individual capacity, Deputy McLemore in his individual capacity, and Monroe County, are DISMISSED WITH PREJUDICE.

3. Plaintiffs’ Eighth Amendment Claims are Dismissed

To the extent that Plaintiffs have asserted “excessive force” claims under the Eighth Amendment, [Plaintiffs’ Amended Complaint, Doc. 42, at 5, ¶ 28], those claims are dismissed. In order to raise an Eighth Amendment “excessive force” claim, (which falls under the category of “cruel and unusual punishment”), the plaintiff must have suffered an injury as a prisoner. See Aldini v. Johnson, 609 F.3d 858, 864 (6th Cir.2010) (citations omitted); Whitley v. Albers, 475 U.S. 312, 318, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (recognizing that the Eighth Amendment “was designed to protect those convicted of crimes and consequently ... applies only after the State has complied with constitutional guarantees traditionally associated with criminal prosecutions”) (citation and internal quotations omitted); Phelps v. Coy, 286 F.3d 295, 299-300 (6th Cir.2002) (“Which amendment applies depends on the status of the plaintiff at the time of the incident, whether free citizen, convicted prisoner, or something in between.... If the plaintiff was a free person ... and the use of force occurred in the course of an arrest or other seizure ... [then] the plaintiffs claim arises under the Fourth Amendment and its reasonableness standard.”) (internal citations omitted). When Dillingham and Mills were questioned by the officers, they were obviously not prisoners. Consequently, to the extent that Plaintiffs have asserted Eighth Amendment “excessive force” claims, those claims are DISMISSED WITH PREJUDICE.

4. Dillingham’s Fourteenth Amendment Substantive Due Process Claim is Dismissed

In their Amended Complaint [Doc. 42], Plaintiffs allege that “[t]he battery, taser ‘shocking,’ and other misconduct by defendants Millsaps and McLemore violated the substantive Due Process rights of the Plaintiffs guaranteed by the 14th Amendment.” [Plaintiffs’ Amended Complaint, Doc. 42, at 5, ¶ 26], However, as the Court previously explained, Dillingham’s claims based upon “excessive force” must be analyzed under the Fourth Amendment, not the Eighth or Fourteenth Amendments, because he was “seized” during the alleged incident. See Rodriguez v. Passinault, 637 F.3d 675, 680 n. 4 (6th Cir.2011) (“Where a plaintiff complains of an unreasonable seizure, the claim is more properly analyzed under the Fourth Amendment than the Fourteenth Amendment’s substantive due process provision, since the former is a ‘more explicit textual source of constitutional protection.’ ”) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)); Reiff v. Marks, No. 08-CV-05963, 2009 WL 2058589, at *3 (E.D.Pa. Jul. 15, 2009) (rejecting a substantive due process claim brought for conduct that allegedly occurred during an arrest because “the Court must follow Graham ... and its progeny, which require the Court to analyze the alleged incident under the Fourth Amendment because, regardless of the label or caption, [the plaintiffs’s] factual allegations amount to allegations of excessive force in the context of an arrest”). Accordingly, Dillingham’s “substantive due process” claim (based upon “excessive force”) under the Fourteenth Amendment is DISMISSED WITH PREJUDICE.

5. Mills’s Fourteenth Amendment Substantive Due Process Claim is Dismissed

While Mills does not have standing to bring a claim under the Fourth Amendment — he was not “seized” following the car accident, see Part III.A.2 — he may still bring an “excessive force” claim under the substantive due process clause of the Fourteenth Amendment. In Darrah v. City of Oak Park, the Sixth Circuit recognized that “[w]hile excessive force claims are often best analyzed under the Fourth Amendment’s protection against unreasonable seizures,” there may be instances in which a plaintiff is subjected to “excessive force,” but was not “seized” at the time and therefore cannot rely upon the Fourth Amendment. 255 F.3d 301, 305-06 (6th Cir.2001). Under these circumstances, “the substantive component of the Fourteenth Amendment’s due process clause is the most appropriate lens with which to view an excessive force claim.” Id. (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843-44, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). See also Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir.2000) (recognizing that “constitutional tort claims asserted by persons collaterally injured by police conduct who were not intended targets of an attempted official ‘seizure’ are adjudged according to substantive due process norms”) (citing Lewis, 523 U.S. 833,118 S.Ct. 1708).

Under this standard, plaintiffs will face “[a] substantially higher hurdle” than the Fourth Amendment’s “objective reasonableness” test. Darrah, 255 F.3d at 306 (citations omitted). Rather, the substantive due process clause of the Fourteenth Amendment is not violated unless the alleged conduct “shocks the conscience.” Lewis, 523 U.S. at 846,118 S.Ct. 1708. This, of course, will depend upon the facts and circumstances of each case. Id. at 851-53, 118 S.Ct. 1708. Specifically, the Supreme Court held that in situations where the implicated government actors

are afforded a reasonable opportunity to deliberate various alternatives prior to electing a course of action ..., their actions will be deemed conscience-shocking if they were taken with ‘deliberate indifference’ towards the plaintiffs federally protected rights. In contradistinction, in a rapidly evolving, fluid, and dangerous predicament which precludes the luxury of calm and reflective preresponse deliberation ..., public servants’ reflexive actions ‘shock the conscience’ only if they involved force employed ‘maliciously and sadistically for the very purpose of causing harm’ rather than ‘in a good faith effort to maintain or restore discipline.’

Id. at 852-53, 118 S.Ct. 1708. Because the present case involves a situation in which Deputy Millsaps had a “reasonable opportunity to deliberate various alternatives prior to electing a course of action,” he will be held liable if his actions were done with “deliberate indifference towards the plaintiffs federally protected rights.” Id. at 853, 118 S.Ct. 1708. See also Hunt v. Sycamore Comm. Sch. Dist. Bd. of Educ., 542 F.3d 529, 541 (6th Cir.2008) (stating that “if the situation is an emergency, the heightened intent standard would apply, and if there is time to deliberate, the lower deliberate indifference standard would apply”) (collecting cases in the Sixth Circuit). Even when viewing the facts in the light most favorable to Mills — the non-moving party — there is not a genuine issue of material fact regarding whether Deputy Mill-saps acted with “deliberate indifference.”

As a result of the car accident, Mills suffered a broken leg (fractured right femur) and was unconscious for a period of time. It is possible, even likely, that Deputy Millsaps touched Mills’s leg in an attempt to wake him. At most, Deputy Millsaps was negligent in causing harm to Mills. While Mills claims that his leg was “obviously” broken, there was not a compound fracture, and he was wearing blue jeans (which may have obscured the injury). Combined with the fact that Mills was previously unconscious — and therefore could not state whether he was injured — it is entirely possible that Deputy Millsaps was unaware of the severity of Mills’s injuries. While Deputy Millsaps may have made a mistake in touching Mills’s leg, that is not the type of conduct that “shocks the conscience.” As the Supreme Court made clear in Lewis, negligence is not enough to support a cause of action under the substantive due process clause. Id. at 849, 118 S.Ct. 1708 (recognizing that “the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process”) (citations omitted). Rather, “[i]t is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.” Id. (citation omitted). Given this high standard, and the lack of evidence showing that Deputy Millsaps was more than negligent, Mills’s “substantive due process claim” (based upon “excessive force”) under the Fourteenth Amendment is DISMISSED WITH PREJUDICE. In addition, Mills’s substantive due process claims (based upon “excessive force”) under the Fourteenth Amendment against Monroe County and Sheriff Bivens in his individual capacity — that is, for “failure to train” — are also DISMISSED WITH PREJUDICE. Having found that there was no underlying constitutional violation, Monroe County and Sheriff Bivens cannot be held liable. In Claybrook, the Sixth Circuit affirmed the dismissal of a Section 1983 claim against the county, based upon a substantive due process violation (“excessive force” in the form of “failure to train,” as in the present case), after finding that there was no underlying unconstitutional conduct:

Furthermore, because the charged official conduct did not inflict any constitutional deprivation upon Quintana, defendant Kirchner, in his official capacity as the Chief Executive Officer of the Nashville — Davidson County Metropolitan Police Department, cannot be liable to her for any alleged neglect to train or supervise those officers, or failure to develop appropriate deadly force policies

199 F.3d at 361. The same holds true in this case.

6. The Court Must First Address Dillingham’s Fourth Amendment Claims Against Deputy Millsaps and Deputy McLemore in their Individual Capacities

As a basis for his Fourth Amendment claim against Sheriff Bivens in his individual capacity, Dillingham argues that Sheriff Bivens should be held supervisorily liable for the alleged “excessive force” used by Deputy Millsaps and Deputy McLemore. While Sheriff Bivens was not present during the incident, Plaintiffs may still hold him liable under a theory of “supervisory” liability.

However, before the Court can analyze Dillingham’s claims against Sheriff Bivens in his individual capacity, the Court must first examine Dillingham’s claims against Deputy Millsaps and Deputy McLemore in their individual capacities. Obviously, Sheriff Bivens can only be liable if the underlying conduct was unconstitutional. For those same reasons, Monroe County cannot be held liable if Deputy Millsaps’s and Deputy McLemore’s actions were constitutional. See City of L.A. v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam) (“If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of unconstitutionally excessive force is quite beside the point.”); Jones v. City of Cincinnati, 521 F.3d 555, 560 (6th Cir.2008) (“A municipality cannot be held liable under § 1983 absent an underlying constitutional violation by its officer.”). While Deputy Mill-saps and Deputy McLemore did not join in the Motion for Summary Judgment [Doc. 67], the Court must still consider Dillingham’s claims against them in their individual capacities. In addition, the Court must examine the individual actions of each officer separately. Gaddis v. Redford Twp., 364 F.3d 763, 772 (6th Cir.2004).

7. Dillingham’s Fourth Amendment Claim Against Deputy Millsaps and Deputy McLemore in their Individual Capacities: There is a Genuine Issue of Material Fact Regarding Whether Deputy Millsaps and Deputy McLemore Used “Excessive Force” in Violation of the Fourth Amendment

When a plaintiff brings a claim of “excessive force” against an officer, and the plaintiff was “seized” at the time of the alleged incident, that claim is analyzed under the Fourth Amendment. Graham, 490 U.S. at 395, 109 S.Ct. 1865. These claims are evaluated under the “objective reasonableness” standard, “which depends on the facts and circumstances of each case viewed from the perspective of a reasonable officer on the scene and not with 20/20 hindsight.” Fox v. DeSoto, 489 F.3d 227, 236 (6th Cir.2007) (citing Graham, 490 U.S. at 395-96, 109 S.Ct. 1865). Relevant considerations include “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, 109 S.Ct. 1865. As the Sixth Circuit has stated, the Fourth Amendment “does not require officers to use the best technique available as long as their method is reasonable under the circumstances.” Dickerson v. McClellan, 101 F.3d 1151, 1160 (6th Cir.1996). Thus, the inquiry is an objective one: “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. In determining whether there has been a violation of the Fourth Amendment, “we consider not the ‘extent of the injury inflicted’ but whether an officer subjects a detainee to ‘gratuitous violence.’ ” Miller v. Sanilac Cnty., 606 F.3d 240, 252-53 (6th Cir.2010) (citation omitted).

Ultimately, the Court must decide whether “under the totality of the circumstances, the officer’s actions were objectively reasonable.” Fox, 489 F.3d at 236-37 (citing Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir.2001)). In evaluating the reasonableness of an officer’s use of force, the Court must consider “(1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the police officers or others, and (3) whether the suspect resisted arrest or attempted to evade arrest by fight.” Floyd v. City of Detroit, 518 F.3d 398, 407 (6th Cir.2008) (citing Smoak, 460 F.3d at 783).

The Sixth Circuit recently held that multiple taser applications over a period of “several seconds” can, when coupled with other abuses, amount to excessive force. Landis, 297 Fed.Appx. at 460-61. In Landis, the plaintiff (who was the daughter of a suspect who died in police custody) brought a Section 1983 civil rights action against a Michigan State Trooper and three deputy sheriffs. Id. Like the present case, the plaintiff argued that the government officers used “excessive force” in violation of the Fourth Amendment. Id.

In Landis, police officers arrived at an interstate highway after receiving calls that a bulldozer was blocking traffic lanes. Id. at 455. When the police officers found the suspect (who had allegedly moved the bulldozer), he immediately fled on foot. Id. Eventually, the officers caught up with the suspect, at which point, the suspect choked one of the officers and fled away. Id. at 456. Shortly thereafter, officers found the suspect again. Id. This time the suspect was standing in a pool of water, without a weapon, and unresponsive. Id. The officers hit the suspect with a baton ten times, and tased him a total of five times. Id. In addition, the officers submerged the suspect’s face in water for 10-15 seconds. Id. at 456-57.

During this time, the suspect was unarmed and no longer a threat to anyone’s safety. Id. In addition, while the suspect had previously fled the scene, he was not suspected of committing a violent offense (again, he was suspected of moving a bulldozer). Id. In considering these facts, the Sixth Circuit held that the officers used “excessive force” in violation of the Fourth Amendment. Id. As one district court has stated, “Landis instructs that, where the troubling use of force was committed against a suspect that was at most guilty of a ‘minor and non-violent crime,’ and the suspect was ‘surrounded,’ ‘unarmed,’ and ‘no longer a threat,’ the likelihood that the troubling use of force may be considered a constitutional violation is significantly heightened.” Lee v. Metro. Gov’t of Nashville & Davidson Cnty., 596 F.Supp.2d 1101, 1117 (M.D.Tenn.2009) (citing Landis, 297 Fed.Appx. at 460-61).

In applying the first factor (“severity of the crime”), Floyd, 518 F.3d at 407, the Court notes that when law enforcement arrived on scene, there was no evidence that Dillingham had committed a violent offense. At most, Dillingham was responsible for driving while intoxicated, or failing to tell the officers where the unknown driver was. Because this is not a violent offense, this factor weighs in Dillingham’s favor. This not to downplay the seriousness of drunk driving; it is simply meant to distinguish Dillingham from the types of plaintiffs who commit violent offenses prior to being “seized,” and therefore pose a greater threat to officer safety.

As for the second factor, there is mixed evidence regarding whether Dillingham posed an “immediate threat” to law enforcement. Dillingham claims that at the time he was tased, he was already secured on a backboard by medical personnel, and that the taser shot was therefore unnecessary. [Dillingham Dep., Doc. 69-1, at 34, 136:17-138:7]. Dillingham also claims that Deputy McLemore hit him in the face with the flashlight and kicked him in his side, and that Deputy Millsaps tased him in his testicles and stomach — all while being immobilized on a backboard. [IcL, at 35, 137:1-144:18], In contrast, Deputy Mill-saps states that he only tasered Dillingham once, and that it was because Dillingham was being combative with the medical personnel. [Deputy Millsaps Dep., Doc. 78-1, at 16, 31:19-32:6]. Deputy Millsaps also denies that he or Deputy McLemore used any additional force on Dillingham. [Id.]. In addition, the Court notes that while Dillingham was involved in a car accident, he only suffered cuts and bruises, and was not severely injured. Dillingham was in a much better condition than Mills, who fractured his right femur. Thus, even though Dillingham was injured in a car accident, he was still capable of posing a threat to law enforcement or medical personnel.

If Dillingham was combative, this would be an important distinction from Landis. In that case, the suspect was not combative with law enforcement when he was beaten and tased. Landis, 297 Fed.Appx. at 460-61. In addition, it unclear how many times Dillingham was tased, or if he was physically beaten. In Landis, the suspect was beaten with a police baton ten times and tased five times over a short amount of time. Id. In the present case, the only fact that both parties agree upon is that Deputy Millsaps tased Dillingham at least once. Obviously, if Dillingham was tased after being immobilized on the backboard, this factor would weigh in his favor. The same would be true if he was beaten with a flashlight, kicked, or hit after being immobilized. However, if Dillingham was combative with medical personnel, and Deputy Millsaps only tased Dillingham once, that fact would weigh in the Defendants’ favor. Based upon the conflicting evidence in the record — particularly, the deposition testimony — this factor does not weigh in either party’s favor.

As for the third factor, while Dillingham did not resist an “arrest” (he was never actually arrested), he did resist medical attention. While Dillingham claims that he was not being combative, he does admit that the deputy sheriffs told him to stop fighting and cooperate. [Dillingham Dep., Doc. 69-1, at 38, 148:8-149:21], Again, based upon the mixed evidence in the record, this is a question of credibility. Neither party has provided evidence to support their position, other than their own word.

For purposes of summary judgment, the Court must draw all reasonable inferences in favor of the non-moving party. See Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003) (in construing a motion for summary judgment, “the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party”) (citing Matsushita Elec. Indus., 475 U.S. at 587, 106 S.Ct. 1348). At issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. In this case, the evidence — which is mostly testimony — is not “so one-sided that one party must prevail as a matter of law.” Id. There are too many important questions, and not enough answers. Was Dillingham combative with the medical personnel or law enforcement? When was Dillingham tased? Was it after he was immobilized, or before? How many times was he tased? If there were multiple applications, did they happen close in time? These are ultimately going to be credibility determinations for the jury — not the Court — to make. See Vaughn v. City of Lebanon, 18 Fed.Appx. 252, 266 (6th Cir.2001) (“The determination of objective reasonableness is particularly fact-based, and, when accounts differ, requires credibility determinations among witnesses to assess the propriety of an officer’s actions. Such determinations are matters for the jury, and not the court.”). At this time, the Court cannot hold, as a matter of law, in favor of either party. Accordingly, the Court finds that there is a genuine issue of material fact regarding Dillingham’s Fourth Amendment “excessive force claim” against Deputy Millsaps and Deputy McLemore in their individual capacities.

8. Dillingham’s Fourth Amendment Claim Against Sheriff Bivens in His Individual Capacity: Dillingham Has Failed to Raise a Genuine Issue of Material Fact Regarding Whether Sheriff Bivens Encouraged or Authorized the Alleged “Excessive Force” by Deputy Millsaps or Deputy McLemore

To be clear, the Court did not state that Dillingham prevailed in his Fourth Amendment “excessive force” claims against Deputy Millsaps and Deputy McLemore in their individual capacities. Rather, the Court simply held that those claims survived the summary judgment stage. The Court only analyzed these claims to determine whether the underlying conduct was unconstitutional. As the Court previously explained, Sheriff Bivens cannot be held supervisorily liable for conduct that was constitutional. See Part III.A.6. In addition, the Court notes that only Dillingham can bring a Fourth Amendment “excessive force” claim (which is really a “failure to train” claim) against Monroe County and Sheriff Bivens in his individual capacity. Because Mills does not have standing to bring a Fourth Amendment claim against Deputy Millsaps or Deputy McLemore in their individual capacities, he does not have standing to bring a Fourth Amendment claim against Monroe County or Sheriff Bivens in his individual capacity. In addition, because the Court dismissed Mills’s substantive due process claim (based upon “excessive force”) under the Fourteenth Amendment against Deputy Millsaps in his individual capacity, see Part III.A.5, the Court also dismissed his “excessive force” claims against Monroe County and Sheriff Bivens in his individual capacity, also brought under the substantive due process clause of the Fourteenth Amendment, Id. Consequently, only Dillingham may assert “excessive force” claims against Monroe County or Sheriff Bivens in his individual capacity. This is because Dillingham’s underlying “excessive force” claim survived summary judgment.

Supervisory liability cannot be imposed in a Section 1983 action based on the theory of respondeat superior without proof of personal involvement. Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 80-81 (6th Cir.1995). Notably, “Supervisory liability under § 1983 does not attach when it is premised on a mere failure to act; it ‘must be based on active unconstitutional behavior.’ ” Greene v. Barber, 310 F.3d 889, 899 (6th Cir.2002) (quoting Leach, 891 F.2d at 1246). As the Sixth Circuit has stated, “[a] supervisor is not liable under § 1983 for failing to train unless the supervisor ‘either encouraged the specific incident or misconduct or in some other way directly participated in it. At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.’ ” Everson v. Leis, 556 F.3d 484, 495 (6th Cir.2009) (emphasis added) (quoting Hays v. Jefferson Cnty., 668 F.2d 869, 874 (6th Cir.1982)). The central question, therefore, is whether Sheriff Bivens “implicitly authorized, approved, or knowingly acquiesced” in Deputy Millsaps’s and Deputy McLemore’s alleged use of “excessive force.” For purposes of this analysis, the Court will assume — without deciding — that Deputy Millsaps and Deputy McLemore engaged in unconstitutional conduct.

In support of their “supervisory” liability claim, Plaintiffs allege that Sheriff Bivens implicitly authorized the alleged misconduct by fading to properly train Deputy Millsaps and Deputy McLemore regarding the appropriate use of force. To prevail on a “supervisory” liability claim, however, Plaintiffs must point to some specific act by Sheriff Bivens. A general “failure to train” claim has been routinely rejected by the Sixth Circuit in this context (trying to impose liability on a supervisor in his or her individual capacity). In Ontha v. Rutherford Cnty., the Sixth Circuit addressed a Fourth Amendment “excessive force” claim against the Sheriff of Rutherford County in his individual capacity. 222 Fed.Appx. 498, 503-05 (6th Cir.2007). In Ontha, the plaintiffs attempted to hold the sheriff liable for the alleged misconduct of his deputy sheriffs. Id. Specifically, the plaintiffs alleged that the sheriff failed to train the deputy sheriffs in the use of appropriate force, and therefore “authorized” their alleged misconduct. Id. The Sixth Circuit rejected this argument, finding that the plaintiffs failed to highlight specific, affirmative acts by the sheriff:

To extent that Plaintiffs even assert that this standard of supervisory liability can be met here, they evidently contend that Sheriff Jones implicitly authorized the alleged misconduct of Deputies Emslie and Morrow by failing to properly train these deputies regarding the appropriate use of force and, more particularly, the inappropriateness of using a patrol car to strike or seize an individual. As Plaintiffs point out, Sheriff Jones acknowledged in his affidavit that the Rutherford County Sheriffs Office ‘does not have a written policy specifically prohibiting’ the use of a patrol car to strike a person who is fleeing on foot [which was the basis for the alleged excessive force claim in that case]. Plaintiffs posit that this lack of training served as implicit authorization of or knowing acquiescence in Deputy Ems-lie’s allegedly inappropriate use of his patrol car to chase and strike Tommy Ontha as he attempted to flee.

Yet, to establish supervisory liability, it is not enough to point after the fact to a particular sort of training which, if provided, might have prevented the harm suffered in a given case. Rather, such liability attaches only if a constitutional violation is ‘part of a pattern’ of misconduct, or ‘where there is essentially a complete failure to train the police force, or training that is so reckless or grossly negligent that future police misconduct is almost inevitable or would properly be characterized as substantially certain to occur. Only in such circumstances can it be said that a supervisor’s liability rests upon ‘active unconstitutional behavior,’ as opposed to ‘a mere failure to act.’

In this case, Plaintiffs do not contend that Deputy Emslie’s purported misuse of his patrol car was part of a pattern of comparable violations, as opposed to an isolated occurrence. Neither have Plaintiffs suggested any basis for us to conclude that the tragic events of this case were an ‘almost inevitable’ or ‘substantially certain’ byproduct of a lack of training as to the proper operation of a patrol car when pursuing an individual traveling on foot. Rather, Sheriff Jones states without contradiction that ‘we have never had an instance where a Rutherford County Sheriffs deputy intentionally struck a person with his or her patrol car,’ and that he is ‘not aware of a problem or trend in the law enforcement community regarding law enforcement officers using their vehicles to intentionally strike fleeing suspects or other persons on foot.’ Under this record, we find as a matter of law that Plaintiffs cannot sustain their § 1983 claims against Sheriff Jones in his individual capacity.

Id. at 504-05 (citations and quotations omitted). In sum, the Sixth Circuit in Ontha rejected the general “failure to train” claim as a basis for imposing supervisory liability on the sheriff. Id. This 31 generalized “failure to train” claim was not enough to constitute “active constitutional behavior.” Id.

In the present case, Plaintiffs argue that Sheriff Bivens should be held supervisorily liable because Deputy Mill-saps did not receive a copy of the Policy Manual. [Plaintiffs’ Response in Opposition to Motion for Summary Judgment, Doc. 75, at 3-4]. Plaintiffs then state— ignoring the different constitutional standards for individual liability and municipal liability — that “courts have held that the absence of a policy can be sufficient to establish municipal liability.” [Id., at 4] [emphasis added]. The claim brought against Sheriff Bivens — a general “failure to train” claim — is exactly what the Sixth Circuit warned against in Ontha, 222 Fed. Appx. at 504-05. Plaintiffs have incorrectly conflated the constitutional standards for individual supervisory liability and municipal liability. See Harvey v. Campbell Cnty., — Fed.Appx. -, -, No. 09-5041, 2011 WL 1789955, at *6 (6th Cir. May 10, 2011) (recognizing that “absent evidence of personal involvement in the underlying misconduct, failure-to-train claims against individual defendants are not properly deemed brought against them in their official capacities, to be treated as claims against the county”) (citing Miller v. Calhoun Cnty., 408 F.3d 803, 817 n. 3 (6th Cir.2005)). Absent personal involvement in the underlying unconstitutional act, the attempt to hold “[municipal supervisors] liable in their individual capacities for their alleged failure to adequately train employees ... ‘improperly conflates a § 1983 claim of individual supervisory liability with one of municipal liability.’ ” Harvey, — Fed.Appx. at-, 2011 WL 1789955, at *6 (quoting Phillips v. Roane County, Tenn., 534 F.3d 531, 543-44 (6th Cir.2008)). In this case, there is no evidence that Sheriff Bivens was personally involved or authorized the alleged incident. Consequently, Plaintiffs have improperly brought suit against Sheriff Bivens in his individual capacity.

Generally, there are two ways of imposing supervisory liability: (1) a pattern of conduct; or (2) a truly egregious single incident. Ontha, 222 Fed.Appx. at 504-05. Because Plaintiffs have failed to establish a pattern of sim