it please the court police brutality has become a topic of ever increasing conversation in today's society these instances of questionable police conduct undermine the legitimacy of our criminal system not because they are discussed but because our justice system works on the belief of the population that it is inherently fair our constitution protects against the abuses of known history from arbitrary arrests to excessive punishment to remedies for wrongs that have been committed by those in power this case speak to each of those issues the overarching question for this court to determine is have we created such artificial barriers to petitioning the court have the have the barriers been created so high that abuses of power remain unchecked undermining the very credibility of the system we believe this case underscores the necessity of the stronger to sherry taking action to right the wrongs of those exercising police authority over the population in this instance the police officers and the jail term they were violated our client civil rights by entering his home and arresting him without probable cause beating him repeatedly by beating him repeatedly causing him over three hundred sixty seven thousand dollars in medical bills and failing to get him appropriate medical care once the beatings to taken their toll on him at one point plaintiff was handcuffed to a wall when the officers shoved him to the ground in the jail door on his shoulder breaking it they have claimed justification clearly and unequivocally that the individuals were sued individually as well as the the organizations for training and the failure to train and for pattern practice so the defendant didn't even raise that in their motion to dismiss instead the court court's to a spontaneous dismissed the individual claims based on the baker case saying that there wasn't a specific sentence that said we are pursuing these and of these individuals however if you look at the plead individual authority however the augusta case then looked through the petition and looking through the petition found that because of the way it had been pleaded it was clear from the face of the petition that the individuals that sued in their individual capacity ok if you yes the second the first amended complaint and if yes that would be correct and if you look in the first first if you look at in the allegations common to all counts you will see him in paris forty three forty five and forty seven that he is talking about the acts of the individual then if you look at forty nine and fifty he's delineating different acts against the organisations so from that you can see first of all that he is delineating acts against the individuals separate from the acts of the organisation then if you look at each of the count forty three forty five and forty seven deal with the individuals forty nine and fifty deal with the organizations then if you look at the causes of action themselves under each cause of action it will say each of the defendant individually said and so when you're looking in the counts themselves the count specifically say the individuals then using the a ghost a case as some reference in the a goes to case they said clearly they were not doing it in their official capacities only because a certain cause of action that they had filed would not then be held against the organization in each of the counts we have asked for punitive damages you cannot get punitive  petition as a whole we had the exact same kinds of allegations in the petition that mr costin's biled in this matter as well so this is the only circuit that requires plaintive to put in a specific sentence concerning official capacity versus individual capacity every other circuit in the united states looks at the course of proceedings between the parties to determine whether or not the capacity in which they're being sued is official or if it's individual the supreme court has recognized that that type of analysis is appropriate therefore that the eighth circuit is the outlier on exactly hal you have to plead whether you're suing individually or if you're suing in official capacity we believe that especially since this was a removal action where it was removed from state court and under the state court provisions we were clearly within the provisions that allow the court to determine that it was both individual capacity and official capacity that then it's a it's a substantial gotcha to be removed from  well first the the additional briefing yes the additional briefing the request for additional briefing had to do with the summary judgment motion that came later the motion to dismiss  dismiss wasn't ruled on immediately upon the filing of the case however there was no argument by the defendants in the motion to dismiss stage that this was an official capacity only so there wasn't the opportunity for the plaintiff to even argue with oh wait a minute hey no we intended to sue them both individually and in their official capacities because it was to a spontaneous just dismissed by the court so there wasn't the opportunity to argue that that or have it brought to their attention that something the it had been completely appropriate under state law so would be unfair to say this is for a lawyer in because mr clapham stein fully complied with the jurisdiction in which he filed the case law to look at and so it is possible that he missed that particular case but then none of us know all of the case law that has been issued by the eighth circuit over the course of the printer the generations wor well i don't believe that there was any argumentation with regard to that in any of the briefing if there was i missed it but based upon my reading of it i do not see that there was anything in any briefing in any argument before the court that indicated that he was conceding that there was a this was in individual capacity or official capacity only now i do believe that there was a discussion between counsel with regard to who would seek to collect against and clearly the police officers wouldn't be at the pocket for purposes of collection but that's a completely different issue than whether they are being sued in their individual or their official capacity well i do think there are two key two key issues i think the first is this whether or not they were sued in their individual capacities but i do think the second issue is whether or not the proof that was a deuced in the summary judgment motion w avoid summary judgment with regard to the pattern of practice claims and the failure to train claims against a cat county and against clinton county the evidence to do so by the plaintiffs was that he had been horribly beaten on three occasions during the course of one night at clinton county jail and three other inmates indicated that not only had they been similarly beaten without cause but they had also seen other inmates beaten and one of them thompson indicated that he was there heard and saw the beating that that our client took and so we believe that this is because of the time frame that we're talking about that this was a widespread continuing problem at the clinton county jail that is documented by three separate point individuals in affidavits now the affidavit that we produced the argument from the lower court was we didn't have sufficient information in the a failure of clinton county to investigate the claims made by these individuals which were carried up in grievances and lawsuits and appeals these individuals clearly established that there is a pattern of practice at the clinton county jail of taking individuals into the drunk tank and beating them there as a matter of fact even the videotape from the drunk tank there is a video from the drunk tank that was appended to the summary judgment but the police officers from some time prior had pointed the videotape to the ceiling so the only thing you could see was the ceiling you could hear the scuffle you could hear the cries for help you could hear the screams you cannot see any portion of the beating that establishes that there was an intent on the part of these officers to be prisoners who come into the dock and it also establishes that there is notice or actual or constructive to the individuals or supervisor that they should take note that these individuals these cops are engaging in behavior that is unconstitutional directed toward these inmates then if you move to the cab county the cab county actually is a little bit different in that dekalb county has a specific policy that says if a and maid asks for medical attention it shall be given to them it takes away all discretion with regard to when how and under what circumstances you must call for medical attention in this instance mr mc was not given medical attention at the time that he requested it even beginning in the clinton county jail the other inmates and he had testified he was screaming he was begging for help he was begging them to stop and they would and he begged for medical attention when he was among the ambulance he begged for medical attention and still they didn't do it and at that point in time the cab county officers were in the ambulance with him at the moment that he said i want medical care the policy of the to tab county jail required them at that moment to get him medical attention they didn't do that that is a ministerial act that is not a discretionary act or governmental function at that point because the policy circumscribes the manner in which they kept county can request medical attention when he got to the cap county jail he continued to moan in pain he continued to ask for help he continued to ask for medical attention and still it was denied to him two things the first is there was reports made the following day so they were on notice subsequent to but more importantly this was such a widespread long standing abuse that under the atkinson case we believe that that fulfills the constructive well in the summary judgment motion we did actually dispute that it was it was written both individually and in official capacity at individual and besides a summary judgment came after the motion to dismiss that already been if you're going to accuse a district court of committing reversible error i would suggest that your case with already from this circuit and every other one that i'm aware of we quiet requires you to at least raise that issue at the district court level to give that court a chance to examine the issue here what they're choosing to district court of is committing reversible error with regard to the capacity in which these claims were present individual versus official capacity that issue was not addressed by the plaintiffs at the district court level at any time she had mrs randall miserables has mentioned in her argument that this was somehow raised by the courts to a spontaneous that is an official capacity claim that is not what happened what happened is as judge you just noted we had asserted in our summary judgment motions that only official capacity claims had been presented to court and the initial order granting or at least talking about summary judgment noted that official capacity claims were the only ones that had been presented and then a directed additional briefing on that at no time while the case was before the district court did plaintiffs ever suggest that anything other than official capacity claims had been presented in fact the plaintiff noted in their initial opposition to the summary judgment that the case presented official capacity claims and that's going to be at their briefing at your appendix four thirty eight and four forty three the motion to dismiss did not in any way shape or form addressed the capacity in which the claims were being presented the only time the first time the only time that the capacity was addressed was in summary judgment she at respectfully i think she's got that mixed up  we found we filed motions to dismiss with regard to the claims that were presented against the supervisors and to my client the sheriff and the county commissioners alleging that there was no allegation of fact to support a claim that there was an unconstitutional policy or unconstitutional custom presented as to those those defendants that motion was filed back and fourteen if i recall the record accurately may think i do in the summary judgment please were not submitted until the fall and winter initially of last year sixteen and when the court ruled the motion to dismiss the court did two things on the motion to dismiss not only did the court initially said you're right that counts against the sheriff the commissioners are gone but mr plaintiff we're going to give you a chance to amend again to add additional facts just by having a road map and being given this order from the court that outlined what the deficiencies were the ten second a minute complaint is missed and labeled as the first of many complained in your record but that it that a minute complaint still contained insufficient facts if i heard ms randall's talking a moment ago she said referred to i think you can clarify judge it's called the first minute clause of action that's actually the second minute petition what happened is original it is it was written in final state court as a petition before service obtained that as an amendment filed which is also in your record and that would have been the first amendment which was found in state court then we removed it thout the motion to dismiss that motion was sustained plaintiff had asked lee for leave to amend the now complaint additionally so this document the first minute petition is actually the second and then it complaint because he filed the original that amendment in state court she referred us that i'm sorry i thought you start to say something she referred us then to several paragraphs including forty three forty five forty seven forty nine and fifty i've reviewed those i see nothing in those allegations or anything else in this petition which refers to individual capacity claims over thirty years ago this court told us the practitioners how to address this issue and were simply to include someplace either in the caption of the complaint or in a pleaded out a geisha and that the individuals are being sued both in their individual and official capacities we don't have that here and if you're going to convict or charge a district court with reversible error this is not them this is not the case to do that for the simple reason that issue was not addressed to the district court and in opposing the summary judgment the plaintiff conceded that only official capacity claims  were dressed i once wanted then addressed with the time this is my time in the jurors i also want to dress very briefly the the other issue that ms randall's wants this case to be about and that is whether there is sufficient evidence in the record to support the court's deter the lower court's determination that summary judgment was proper was grand as i understand the arguments in the issues that have been addressed this case is not the about an unconstitutional policy and unconstitutional policy is one that directs unconstitutional behavior here we don't have that we have what she's alleging at least with regard to the regional jail is a constitutional policy that was not followed but i'll let mr lightener address they act with regard to my clients i don't i do not understand or to be any argument that the results that she claims happened to her client were the result of when a constitutional policy clinton counties or the county in the jail yeah we have two jails think that is before the court and was before the district court is that sheriff porter henson submitted a declaration and he talked about the written policies of the jail including the prohibition against the use of excessive force and the prohibition against  medical care not being provided in the types of things that she's addressi with well then you get what you're talking about then is either you have an unconstitutional custom or you have a deliberately indifferent they are to train both of which require that there be a notice to the final policy maker of the county of that kind of a problem in this case it's undisputed that that final policy maker is sheriff the former sheriff porter henson and his declaration establishes i don't think what's really without any significant rebuttal that we had these policies that wind there with allegations of excessive force he investigated then with regard to the illegal entry into the mother's residence his affidavit if i recall the record correctly states that he had no information previously that that kind of conduct had occurred his declaration is what we based our summary judgment motion on with regard to showing that there was no left constitutional policy a custom and finally with regard to the deliberate indifference issue the record is is clear that all of my deputies all of my deputies had post were post sort of fide they gone through the police academy and they had received on the job training to acquaint them with how they were to function in their in their assignments and this case in the or this court heard me in the tucker vs evans case talks about several cases in this circuit have held that attendance at a training academy and on the job training is sufficient for proper training there's no dispute about that the record in this case and the other thing that she did that the plaintiff tries to do is talk about these these affidavits and i think the district court pretty aptly summarized what those at the davids don't support those affidavits don't support the broad wide ranging type of pattern of abuse that the plaintiff is is trying to attribute when you review the record there are two things to me on these issues that are before you the company coming mediately apparent first there was no allegation in this lawsuit about individual capacity claims has been raised soley for the very first time on this appeal second the affidavit a sure offense and which is primarily what i'm relying on and did relying on at the district court level provides the necessary support to show that there was not in a constitutional policy custom or liberally indifferent figure training it's all i have if you have any questions i'm happy to address them thank i have the davies the cab jail the second location where mr make was was taken i don't want to belabor issues but i want to point out in the appendix the two places in our summary judgment briefing where the appellant again and went with official immunity and waived any claim to the contrary he in its five awaited five fourteen of the appendix and that's what the truck were relied on in saying plaintiff i want some supplemental briefing bill let me tell you that the issue has been flagged the summary judgment is based on the fact that your allegations are only official immunity now's your chance to say something or do something and what he said or did was he said ok i'm going to take that route he'll let that his remaining he went with official capacity it was never raised to the court he never said judge my bad now i see the dilemma let me amend my complaint never did that never raised it even after we've made it clear you're on notice here's what the summary judgements about even after the judge made it clear a second warning i'm going to give you a supplemental opportunity to do something about this and instead he said ok i'll go on official immunity or fish official passy and that's what was brief and that was what was presented to the trial court the truck court was never asked to take any action to allow him to pursue an individual capacity claim and to bring it up at this point is contrary to the law and it shouldn't be allowed  the he certainly was on notice that that's how the claims are being treated and he's he's trying to raise an issue on appeal that was not raised at the at the truck or level with respect to the motion to dismiss which came much earlier and only was raised with respect to supervisory officials who had no hands on kind of contact with this appellant it's it's important also remember on that motion that we're in a unique circumstance because by virtue of the way this played out it's it demonstrates that there's no way the appellant could have been prejudiced by that dismissal because the record was developed and the official capacity issues were addressed in summary judgment and the record didn't support an official capacity claim and so therefore by that same the same claims are were dismissed in the motion dismissed were also dealt with on summary judgment in a subsidy fashion he had no evidence to support those claims with respect to the issue of medical attention and i did and as you pointed out we're really not arguing about whether there was a violation of policy that's not the question before the court but even if it were there and we've we've we've raised this in the briefing there is no evidence of a customer widespread pattern appellant put forth two affidavits by two former prisoners mr stewart mr turner and these affidavits did nothing but make some conclusory opinions that the officers over used mace and this case has nothing to do with use of mace the pellet actually admit it is deposition that he was not mayes and with respect to medical attention he we see within twenty four hours of the time he arrived at the jail he was taken to the emergency room and treated at the physician was called the minute he got to the facility he was taken to the emergency room a tree within twenty four hours and voluntarily chose to leave that facility and came back a week later when surgery was alternately performed so he elected to take a five day delay in treatment whereas the jail got him there within twenty four hours happy to try to address any this case has a little bit of a tortured history as you can tell from me the argumentation of torture procedural history the real issue here is that time of the motion to dismiss it was mr cotton stains and or standing that the court had already determined that this was an official capacity case it was not an individual capacity case therefore two years later when the summary judgment motion was argued of course it was argued as an official capacity case because that's the way that it had been developed through the course of the amended complaint that took out those individuals because there had already been a finding that those individuals did there was not a cause of action against those individuals in their individual capacity so as a result the case became after the motion to dismiss hearing an official capacity case it would have been highly unusual in that circumstance to go back and say your honor wait a minute let's go back and revisit the ruling that you you issued two years ago rather that is something that we handle on appeal if we believe that a decision from a motion to dismiss early in a case is inappropriate we go forward we go ahead and try to try the key so that the case that we have but then we appeal that issue at a later point in time and that's exactly what's happened in this manner now i'd like to speak for moment to the idea custom liability it is the existence of a widespread and continuing persistent pattern of unconstitutional behavior to the extent the pattern becomes very  widespread that in and of itself can raise an inference that there was notice either actual or constructive on the part of the policymakers what's more we have in the affidavit mr thompson that he had made a grievance i'm sorry the proof that has been a deuce by the plaintiffs and so we have a factual issue because our guys are saying i told them they had noticed there was a pattern that was established before during and after before and during he didn't specify the number of inmates the he'd seen the during that time frame and that he had heard people who would show him then the medical evidence that they had been be so he had several i'm a dozen or more individuals that he had been can concerned about having been beaten although we don't have the exact numbers set forth in the affidavit that is something that we could have done or could do