Donato Dalrymple v. Janet Reno

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_____________ ELEVENTH CIRCUIT
JUNE 19, 2003
No. 01-15990 THOMAS K. KAHN
_____________ CLERK

D.C. Docket No. 00-01773-CV-KMM

DONATO DALRYMPLE,
GREGORY PAUL ALLEN, et. al.,

Plaintiffs-Appellees,

versus

JANET RENO, in her personal capacity,

Defendant-Appellant.

____________

Appeal from the United States District Court
for the Southern District of Florida
____________
(June 19, 2003)

Before TJOFLAT, COX and BRIGHT*, Circuit Judges.

___________________________________
*Honorable Myron H. Bright, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
TJOFLAT, Circuit Judge:

Like our decision in Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003), this

case arises from the events surrounding the seizure by federal agents of Elian

Gonzalez (“Elian”) from the home of Lazaro, Angela, and Marisleysis Gonzalez

(“the Gonzalezes”) on April 22, 2000. In Gonzalez v. Reno, we held that former

Attorney General Janet Reno, former Commissioner of the Immigration and

Naturalization Service (“INS”) Doris Meissner, and former Deputy Attorney

General Eric Holder were entitled to qualified immunity from damages claims by

the Gonzalezes because the Gonzalezes failed to establish a causal connection

between the supervisory actions of Reno, Meissner, and Holder and the alleged

excessive force by the federal agents who forcibly removed Elian Gonzalez from

the Gonzalezes’ home on April 22, 2000. Now, we must decide whether former

Attorney General Reno is entitled to qualified immunity from damages claims by

Donato Dalrymple, who was in the Gonzalezes’ house when Elian was taken, and

fifty-one protestors, neighbors, and passers-by who claim they were sprayed with

gas, shoved, kicked, and threatened at gunpoint by federal agents during the raid

to seize Elian from the Gonzalezes’ home. We conclude that, like the Gonzalezes,

these plaintiffs have failed to establish a causal connection between Reno’s

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supervisory actions and the allegedly unconstitutional acts of the federal agents on

the scene.

I.

On November 25, 1999, six-year-old Elian Gonzalez, a Cuban boy, was

found floating on an innertube off the coast of Fort Lauderdale, Florida. The INS

paroled Elian into the United States without inspection and released him into the

custody of his great-uncle, Lazaro Gonzalez. After learning that Elian’s father, a

Cuban citizen, had requested that his son be returned to Cuba, the INS refused to

consider petitions for Elian’s asylum and sought to transfer the child’s custody

from his uncle to his father, who was in the United States at that time. On April

21, 2000, the INS issued an administrative arrest warrant for Elian and obtained a

search warrant for the Gonzalezes’ residence. At approximately 5:15a.m. on April

22, 2000, armed federal agents arrived at the Gonzalezes’ home to execute the

search and arrest warrants.1

On July 12, 2000, the plaintiffs commenced this action under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct.

1999, 29 L. Ed. 2d 619 (1971), by filing a three-count complaint for damages

1
The events leading up to the pre-dawn raid on April 22, 2000, are explained in more
detail in Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003).

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against Attorney General Reno, INS Commissioner Meissner, and Deputy

Attorney General Holder, in their individual capacities. Unlike the Gonzalezes’

complaint, this complaint did not bring suit against the federal agents on the scene.

The complaint alleged the following facts regarding the events that transpired in

the Gonzalezes’ neighborhood during the raid to seize Elian on April 22, 2000.

Plaintiff Dalrymple, the man who rescued Elian from the sea, was asleep on

a couch in the Gonzalezes’ front foyer when the raid began. After being awakened

by the sounds of the federal agents, Dalrymple scooped up Elian from a couch in

the living room and carried him to the rear bedroom shared by Lazaro and Angela

Gonzalez. Associated Press photographer Alan Diaz, Elian’s five-year-old cousin

Lazaro Martell, and Martell’s mother also ran into the room. Dalrymple held Elian

in his arms as federal agents kicked down the bedroom door. One federal agent

yelled at Dalrymple to give him the boy while pointing a 9mm submachine gun at

Dalrymple. INS Agent Betty A. Mills entered the room with a blanket and

grabbed Elian. The federal agents then backed out of the room with Elian, their

weapons still aimed at the occupants of the room. The agents exited the house and

carried Elian to a van waiting outside.

The other plaintiffs are protestors, neighbors, and passers-by who were

present in the Gonzalezes’ neighborhood at the time of the raid. When the convoy

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of federal agents arrived, the protestors were gathered behind a barricade to the

west of the Gonzalezes’ residence, in neighbors’ yards, and elsewhere in the

neighborhood to demonstrate support for Elian and the Gonzalezes. When the

federal agents arrived, they “immediately began indiscriminately spraying gas to

immobilize, restrain and suppress persons who had assembled peacefully behind

the barricade, as well as neighbors, passers-by, and even members of the news

media assembling along N.W. 2nd Street.” The federal agents sprayed them with

gas repeatedly, threatened to shoot them, held them at gunpoint, struck them with

battering rams, clubs, and rifle butts, kicked them, shoved them to the ground, and

shouted obscenities at them. Many of the neighbor plaintiffs were exposed to gas

in their homes or when they stepped outside to see what was happening. Thirty-

three of the plaintiffs were attempting to move closer to the Gonzalezes’ residence

when they were sprayed directly in the face with gas, held at gunpoint, struck, and

shoved to the ground. Many of the protestor plaintiffs remained behind the

barricade when their injuries occurred. The most common physical injuries

suffered by plaintiffs were eye, nose, throat and skin irritation and burning,

coughing, choking and difficulty breathing.

In the complaint, forty-three plaintiffs alleged violations of their freedoms

of assembly and expression under the First Amendment, twenty-five alleged

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violations of their rights to be free from unreasonable searches and seizures under

the Fourth Amendment, and all fifty-two alleged violations of their rights to be

free from excessive physical force under the Fifth Amendment. In a joint motion

to dismiss dated August 15, 2000, the defendants asserted the defense of qualified

immunity. In an order dated October 1, 2001, the district court granted in part and

denied in part the defendants’ motion. The court dismissed all claims against

Meissner and Holder without prejudice because the complaint failed to allege that

either Meissner or Holder supervised the attorney general or was acting in a

supervisory capacity when the order to seize Elian was given. The court

concluded that only Reno was alleged to have exercised supervisory authority in

ordering the raid.

With respect to Reno, the district court dismissed the Fourth Amendment

claims of five plaintiffs who would be unable to prove they were unlawfully seized

because they alleged that they left the scene immediately after being confronted by

federal agents. The district court also dismissed all of the plaintiffs’ Fifth

Amendment claims with prejudice because, under the alleged circumstances, “no

reasonable fact finder could conclude that Reno’s decision to send 151 armed

agent[s] to execute the warrants deprived Plaintiffs’ due process in a manner that

shocks the conscience.” Finally, construing the complaint’s allegations broadly,

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the court rejected Reno’s qualified immunity defense with respect to the remaining

First and Fourth Amendment claims because “[t]he law was clearly established

that governmental restriction of expressive conduct violated the First Amendment

if the restriction was motivated by the speaker’s message. . . . [and] a reasonable

officer in Reno’s position would know that the law forbade her from directing the

execution of a warrant in a manner that called for unjustified force against

bystanders.”

Reno now appeals, contending that she is entitled to qualified immunity for

her actions. We agree.

II.

We have jurisdiction to review the denial of the defense of qualified

immunity on interlocutory appeal pursuant to 28 U.S.C. § 1291. Mitchell v.

Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817, 86 L. Ed. 2d 411 (1985). We

review de novo a district court’s decision to grant or deny the defense of qualified

immunity on a motion to dismiss, accepting the factual allegations in the

complaint as true and drawing all reasonable inferences in the plaintiff’s favor.

Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001).

Qualified immunity protects government officials performing discretionary

functions from suits in their individual capacities unless their conduct violates

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“clearly established statutory or constitutional rights of which a reasonable person

would have known.” Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 2515, 153 L.

Ed. 2d 666 (2002)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738, 73 L. Ed. 2d 396 (1982)). Qualified immunity “protect[s] from suit

‘all but the plainly incompetent or one who is knowingly violating the federal

law.’ ” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quoting Willingham

v. Loughman, 261 F.3d 1178, 1187 (11th Cir. 2001)). Questions of qualified

immunity should be resolved at the earliest possible stage in the litigation. Hunter

v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589 (1991) (per

curiam). A district court should therefore grant the defense of qualified immunity

on a motion to dismiss if the complaint “fails to allege the violation of a clearly

established constitutional right.” Chesser, 248 F.3d at 1121 (quoting Williams v.

Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir. 1997)).

To receive qualified immunity, the government official must first prove that

she was acting within her discretionary authority. Vinyard v. Wilson, 311 F.3d

1340, 1346 (11th Cir. 2002). In this case, it is clear – and undisputed – that Reno

was acting within her discretionary authority when she ordered federal agents to

seize Elian Gonzalez.

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 Once the government official has established that she was acting within her

discretionary authority, the burden shifts to the plaintiffs to show that qualified

immunity is not appropriate. Id. The Supreme Court has set forth a two part

analysis for determining whether qualified immunity is appropriate. Saucier v.

Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). The

court must first ask the threshold question whether the facts alleged, taken in the

light most favorable to the plaintiffs, show that the government official’s conduct

violated a constitutional right. Id. If the complaint alleges the violation of a

constitutional right, the court must determine whether that right was clearly

established at the time of the violation. Id.

Our first step, then, is to determine whether the factual allegations in the

complaint, if true, establish a constitutional violation by former Attorney General

Reno. The district court properly characterized the complaint as alleging that

Reno is liable in her supervisory capacity only. Therefore, for purposes of this

opinion, we will assume, without deciding, that the alleged conduct by the agents

on the scene violated the plaintiffs’ First and Fourth Amendment rights. See

Hartley v. Parnell, 193 F.3d 1263, 1268-69 (11th Cir. 1999) (in section 1983

sexual abuse case, assuming, without deciding, that male teacher deprived female

student of substantive due process rights, then proceeding with the analysis to

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determine whether school principal caused that deprivation). This leaves us with

the task of deciding whether Reno’s supervisory actions caused the alleged

constitutional violations by the agents on the scene.

“It is well established in this circuit that supervisory officials are not liable

under [Bivens] for the unconstitutional acts of their subordinates ‘on the basis of

respondeat superior or vicarious liability.’ ” Id. at 1269 (quoting Belcher v. City

of Foley, 30 F.3d 1390, 1396 (11th Cir. 1994)). “The standard by which a

supervisor is held liable in her individual capacity for the actions of a subordinate

is extremely rigorous.” Braddy v. Florida Dep't of Labor & Empl. Sec., 133 F.3d

797, 802 (11th Cir.1998). Supervisory liability “occurs either when the supervisor

personally participates in the alleged constitutional violation or when there is a

causal connection between actions of the supervising official and the alleged

constitutional violation.” Id. at 802 (quoting Brown v. Crawford, 906 F.2d 667,

671 (11th Cir. 1990)); see also Greason v. Kemp, 891 F.2d 829, 836 (11th Cir.

1990) (explaining that a supervisor “can be held liable under [Bivens] when a

reasonable person in the supervisor's position would have known that his conduct

infringed the constitutional rights of the plaintiff, and his conduct was causally

related to the constitutional violation committed by his subordinate”) (citations

and footnote omitted). A causal connection can be established “when a history of

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widespread abuse puts the responsible supervisor on notice of the need to correct

the alleged deprivation, and he fails to do so,” id., or when the supervisor's

improper “custom or policy . . . resulted in deliberate indifference to constitutional

rights,” Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991). A causal

connection can also be established by facts which support an inference that the

supervisor directed the subordinates to act unlawfully or knew that the

subordinates would act unlawfully and failed to stop them from doing so. See

Post v. City of Fort Lauderdale, 7 F.3d 1552, 1561 (11th Cir. 1993) (finding no

supervisory liability in the absence of such an inference).

In examining the factual allegations of the complaint, we must keep in mind

the heightened pleading requirements for civil rights cases, especially those

involving the defense of qualified immunity. GJR Investments, Inc. v. County of

Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998). In such cases, the complaint

must allege the relevant facts “with some specificity.” Id. “[M]ore than mere

conclusory notice pleading is required. . . . [A] complaint will be dismissed as

insufficient where the allegations it contains are vague and conclusory.” Fullman

v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984); see also Veney v. Hogan, 70

F.3d 917, 922 (6th Cir. 1995) (holding that complaint must “include the specific,

non-conclusory allegations of fact that will enable the district court to determine

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that those facts, if proved, will overcome the defense of qualified immunity”).

Moreover, in reviewing a motion to dismiss, we need only accept “well-pleaded

facts” and “reasonable inferences drawn from those facts.” Oladeinde v. City of

Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992). “[U]nsupported conclusions

of law or of mixed fact and law have long been recognized not to prevent a Rule

12(b)(6) dismissal.” Marsh v. Butler County, 268 F.3d 1014, 1036 n.16 (11th Cir.

2001). We must also keep in mind the fact that “[w]e generally accord . . . official

conduct a presumption of legitimacy.” United States Dep’t of State v. Ray, 502

U.S. 164, 179, 112 S. Ct. 541, 550, 116 L. Ed. 2d 526 (1991).

We now turn to the complaint to determine whether plaintiffs have alleged

sufficient facts to establish a causal connection between Reno’s supervisory

actions and the alleged constitutional violations by the officers on the scene. To

support their allegation of a causal connection, plaintiffs allege that “Reno . . .

ordered the raid . . . despite knowing and intending that: (1) a strike force of 151

heavily-armed federal agents . . . would be unleashed on the Gonzalez family’s

home and neighborhood; (2) peacefully assembled supporters would be sprayed

with gas for having assembled and expressed their support for Elian and the

Gonzalez family, and to prevent them from continuing to do so; and (3) neighbors,

supporters and passers-by would be gassed, restrained, beaten, threatened and put

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in immediate fear for their lives and liberty.” Plaintiffs further allege that “the raid

was a carefully-choreographed, pre-planned event, the details of which [Reno] had

fully approved” and that “Reno admitted that the only independent authority given

to the federal agents on the scene was the precise timing of the raid.” Complt. ¶

184. Plaintiffs also rely on statements Reno made after Elian was seized in which

she stated that “[a]ll objectives for Operation Reunion were met, with no

significant injuries to either federal agents or bystanders and no fundamental

changes to the approved plan.” (emphasis in original).

Plaintiffs’ allegations of a causal connection between Reno’s supervisory

actions and the alleged constitutional violations by the agents on the scene are

vague and conclusory and fail to meet the heightened pleading requirements for

civil rights cases involving qualified immunity. Plaintiffs allege that Reno knew

and intended that the constitutional violations by the line duty officers would

occur, but they fail to allege any facts in support of this allegation. Plaintiffs fail

to allege that the detailed plan for the raid included spraying peaceful protestors,

neighbors, and passers-by with gas, beating them, detaining them at gunpoint, or

threatening to shoot them. Plaintiffs point to the fact that Reno sent 151 armed

agents into the neighborhood even though she knew protestors had assembled in

the neighborhood to support Elian. It is not reasonable to infer from these facts

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that Reno sent this many agents in order to use excessive physical force against the

plaintiffs or to infringe on their First Amendment rights. A reasonable inference

drawn from these facts would be that the presence of so many protestors in the

neighborhood added to the uncertainty and risk of the mission to seize Elian,

thereby necessitating the use of more agents to insure the agents’ safety and the

mission’s success. Indeed, the plaintiffs’ own complaint further bears this

inference out because the complaint alleges that thirty-three of the plaintiffs who

were allegedly unlawfully seized were actually moving closer to the Gonzalezes’

home as the raid was being executed, undoubtedly causing the agents to feel

uncertainty and perhaps alarm regarding the plaintiffs’ possible intentions to

interfere with the agents’ mission.

Plaintiffs’ allegations that the raid was carefully planned, virtually no

discretion was given to the agents on the scene, and the mission was executed

without deviation from the plan are likewise insufficient to establish supervisory

liability. It is not reasonable to draw from these facts the inference that the plan

Reno ordered the officers to carry out called for the agents to use excessive force

against the plaintiffs or to interfere with the plaintiffs’ rights under the First

Amendment. It would be reasonable, however, to draw from these facts the

inference that Reno ordered the agents to carry out a carefully planned mission to

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lawfully execute search and arrest warrants by seizing Elian, and that Reno’s

statements about lack of deviation from the plan refer to the fact that the plan’s

objective – seizing Elian – was achieved.

Plaintiffs have failed to allege a constitutional violation by Reno because

they have failed to allege facts that would establish a causal connection between

Reno’s supervisory actions and the alleged constitutional violations by the officers

on the scene. Reno is therefore entitled to qualified immunity under the first part

of the analysis required by Saucier v. Katz, 533 U.S. at 201, 121 S. Ct. at 2156.

Because we find no constitutional violation by Reno, we need not address whether

the constitutional rights at issue were clearly established. The district court’s

decision denying the defense of qualified immunity is hereby REVERSED.

SO ORDERED.

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