[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12410

Non-Argument Calendar

____________________

AUDREY MALONE, 

Plaintiff-Appellant,

versus

CITY OF ATLANTA, GEORGIA, 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:19-cv-05248-TCB

____________________

USCA11 Case: 21-12410 Date Filed: 04/15/2022 Page: 1 of 10
2 Opinion of the Court 21-12410

Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:

Audrey Malone, proceeding pro se, appeals the district 

court’s grant of summary judgment to the City of Atlanta, 

Georgia (“City”) in her 42 U.S.C. § 1983 action, and its decision to 

assess costs against her. She argues that she established that the 

City had an official policy or custom which led to constitutional 

violations. Additionally, she argues that her case was not 

frivolous, and, therefore, there was no basis for assessing costs 

against her. After review, we affirm the district court’s summary 

judgment decision. We dismiss Malone’s appeal of the costs 

award for lack of jurisdiction. 

I. Background 

In 2019, Malone filed a pro se § 1983 action against the 

City, alleging that the City’s failure to train its police officers 

resulted in a violation of her Fourth and Fourteenth Amendment

rights, including an unconstitutional traffic stop, false arrest, false 

imprisonment, an unlawful seizure of the vehicle and personal 

items, and deliberate indifference to her serious medical needs. In 

support of her claim, she asserted that the City’s policies and 

standard operating procedures (“SOP”) regarding searches and 

seizures was unclear, and that the City had a practice of deploying 

poorly trained police officers. 

USCA11 Case: 21-12410 Date Filed: 04/15/2022 Page: 2 of 10
21-12410 Opinion of the Court 3

Evidence produced during discovery established that, in 

2017, former Atlanta Police Officer Matthew Williams pulled over 

Malone, a Lyft driver, and informed Malone that the license plate 

on the vehicle she was driving had been reported stolen. When 

Williams ran a check on Malone’s driver’s license, the search

revealed that she had an outstanding warrant in Georgia for 

failure to appear. Malone denied ever receiving notice of the 

court date that resulted in the failure to appear warrant. Williams 

placed Malone under arrest, but after he handcuffed her, she 

began to show signs of medical distress. An ambulance was 

eventually called, Malone received treatment at Grady Memorial 

Hospital, and she was then transferred to the Fulton County Jail 

based on her outstanding warrant. The vehicle was impounded, 

and Malone’s personal property seized. 

Following the traffic stop and arrest, Malone filed a 

complaint with the Atlanta Citizen Review Board (“ACRB”), and 

the Atlanta Police Department’s Office of Professional Standards 

(“OPS”) opened an investigation into the traffic stop. OPS found 

inconsistencies in Williams’s statements concerning what 

prompted him to stop Malone’s vehicle as there were no hits on 

his cruiser’s license plate reader for Malone’s tag, and Williams 

did not run the tag until six minutes into the stop. Additionally, 

Williams failed to detect that, although Malone’s tag number 

matched a stolen tag from North Carolina, her tag was issued by 

the state of Georgia, and was not stolen. OPS recommended that 

USCA11 Case: 21-12410 Date Filed: 04/15/2022 Page: 3 of 10
4 Opinion of the Court 21-12410

Williams be dismissed, but he resigned after receiving the OPS 

recommendation. 

The City moved for summary judgment, and Malone filed 

a cross-motion for partial summary judgment. In support of her 

motion for partial summary judgment, Malone submitted, in 

relevant part, 25 complaints from citizens to the ACRB alleging 

similar instances of false arrest, unlawful traffic stops, and failure 

to provide timely and adequate medical assistance by other APD 

officers between 2011 and 2018. She asserted that those 

complaints established that APD had an official policy or custom 

of deploying untrained police officers.

1

The district court granted the City’s motion for summary 

judgment, concluding, in relevant part that, even if Malone could 

show a deprivation of a constitutional right, she failed to show the 

City was on notice of any inadequate training policies or that the 

City acted with deliberate indifference. The district court denied 

Malone’s motion for partial summary judgment. In the final 

judgment, the district court ordered “that the plaintiff take 

nothing; [and] that the defendant recover its costs of this action.” 

However, the City has not yet filed a bill of costs in the district 

1 Several months after the City filed its response in opposition to Malone’s 

motion for partial summary judgment, Malone filed a proposed amended 

motion for summary judgment. The district court ultimately denied this 

motion as moot. 

USCA11 Case: 21-12410 Date Filed: 04/15/2022 Page: 4 of 10
21-12410 Opinion of the Court 5

court, and no formal taxation of costs has been entered against 

Malone. This appeal followed. 

II. Discussion 

Malone argues that the district court erred in granting 

summary judgment because she demonstrated that the City failed 

to provide unambiguous and proper training policies on “the 

constitutional limitations on false imprisonment, false arrest, and 

when to call for medical [assistance],” and that the need for such 

training was obvious as evidenced by the 25 citizen complaints 

she submitted that were sustained by the ACRB. Additionally, 

she argues that the district court erred in (1) denying as moot her 

motion to amend her motion for partial summary judgment and 

in not considering the new evidence she submitted with that 

motion,

2 and (2) failing to address her failure to call for medical 

attention claim. Finally, she argues that the district court abused 

its discretion in assessing costs against her.3

 

2

The new evidence Malone submitted included new SOPs concerning traffic 

stops and arrests issued by APD in 2020 as a result of litigation in Calhoun v. 

Pennington, Case No. 1:09-cv-03286-TCB, Doc. 434 (N.D. Ga. 2018), which 

she maintains demonstrates the City’s awareness of inadequate training. 

3 Federal Rule of Civil Procedure 54(d)(1) provides that, “[u]nless a federal 

statute, these rules, or a court order provides otherwise, costs—other than 

attorney’s fees—should be allowed to the prevailing party.” We lack 

jurisdiction to review the award of costs because “[w]hile the district court

has announced its intention to award costs to [the City], it has yet to fix the 

amount.” Mekdeci ex rel. Mekdeci v. Merrel l Nat’l Lab’ys, 711 F.2d 1510, 

1523 (11th Cir. 1983). Thus, the costs order is not final and appealable. Id.; 

USCA11 Case: 21-12410 Date Filed: 04/15/2022 Page: 5 of 10
6 Opinion of the Court 21-12410

We review the grant of summary judgment de novo, 

viewing the record and drawing all reasonable inferences in favor 

of the nonmoving party “to the extent supportable by the 

record.” Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 

2009) (emphasis and quotation omitted). 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). “A genuine issue of material 

fact exists when the evidence is such that a reasonable jury could 

return a verdict for the non-moving party.” Quigg v. Thomas 

Cnty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016) (alteration 

adopted) (quotation omitted). “Once the movant submits a 

properly supported motion for summary judgment, the burden 

shifts to the nonmoving party to show that specific facts exist that 

raise a genuine issue for trial. If the nonmoving party presents 

evidence that is merely colorable or not significantly probative, 

summary judgment is appropriate.” Boyle v. City of Pell City, 

866 F.3d 1280, 1288 (11th Cir. 2017) (quotations and internal 

citations omitted). “We may affirm for any reason supported by 

the record, even if not relied upon by the district court.” Hill v. 

Emp. Benefits Admin. Comm. of Mueller Grp. LLC, 971 F.3d 

1321, 1325 (11th Cir. 2020) (quotation omitted).

see also Morillo-Cedron v. Dist. Dir. for the U.S. Citizenship & Immigr. 

Servs., 452 F.3d 1254, 1256 (11th Cir. 2006) (same). Accordingly, we dismiss 

Malone’s claim as to this issue. 

USCA11 Case: 21-12410 Date Filed: 04/15/2022 Page: 6 of 10
21-12410 Opinion of the Court 7

A municipality is liable under § 1983 if the plaintiff shows 

that: (1) her constitutional rights were violated; (2) the 

municipality had a custom or policy indicating deliberate 

indifference to the right; and (3) the policy or custom caused the 

violation. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 

2004). “[M]unicipal liability . . . may be based on a claim of 

inadequate training ‘where a municipality’s failure to train its 

employees in a relevant respect evidences a “deliberate 

indifference” to the rights of its inhabitants such that the failure to 

train can be properly thought of as a city “policy or custom” that 

is actionable under § 1983.’” Sewell v. Town of Lake Hamilton, 

117 F.3d 488, 489 (11th Cir. 1997) (alteration adopted) (quoting 

City of Canton v. Harris, 489 U.S. 378, 389 (1989)). A 

“municipality cannot be held liable solely because it employs a 

tortfeasor—or, in other words, a municipality cannot be held 

liable under § 1983 on a respondeat superior theory.” Monell v. 

Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (emphasis in 

original). Additionally, “[a] municipality’s culpability for a 

deprivation of rights is at its most tenuous where a claim turns on 

a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011).

“[D]eliberate indifference is a stringent standard of fault, 

requiring proof that a municipal actor disregarded a known or 

obvious consequence of his action.” Id. (quotation omitted).

Thus, the failure to train must “reflect[] a ‘deliberate’ or 

‘conscious’ choice by a municipality.” Canton, 489 U.S. at 389. 

“To establish a ‘deliberate or conscious choice’ or such ‘deliberate 

USCA11 Case: 21-12410 Date Filed: 04/15/2022 Page: 7 of 10
8 Opinion of the Court 21-12410

indifference,’ a plaintiff must present some evidence that the 

municipality knew of a need to train and/or supervise in a 

particular area and the municipality made a deliberate choice not 

to take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350 

(11th Cir. 1998). 

 “A pattern of similar constitutional violations by 

untrained employees is ordinarily necessary to demonstrate 

deliberate indifference for purposes of failure to train.” Connick, 

563 U.S. at 62 (quotation omitted). “Policymakers’ continued 

adherence to an approach that they know or should know has 

failed to prevent tortious conduct by employees may establish the 

conscious disregard for the consequences of their action—the 

deliberate indifference—necessary to trigger municipal liability.” 

Id. (quotation omitted).

However, “[t]hat a particular officer may be 

unsatisfactorily trained will not alone suffice to fasten liability on 

the city, for the officer’s shortcomings may have resulted from 

factors other than a faulty training program.” Canton, 489 U.S. at 

390–91. “Neither will it suffice to prove that an injury or accident 

could have been avoided if an officer had had better or more 

training, sufficient to equip him to avoid the particular injurycausing conduct.” Id. at 391.

Malone asserted in her motion for partial summary 

judgment that the City “promulgat[ed] . . . an official policy or 

custom that deploys untrained police officers.” She argued that 

the 25 ACRB complaints she submitted for incidents between 

USCA11 Case: 21-12410 Date Filed: 04/15/2022 Page: 8 of 10
21-12410 Opinion of the Court 9

2011 and 2018, established that the City was on notice that its 

training in the areas of traffic stops, arrests, and obtaining medical 

attention was inadequate. These 25 sustained complaints by the 

ACRB were not sufficient to establish that APD had a policy or

custom of undertraining its officers for purposes of § 1983 liability. 

See Canton, 489 U.S. at 390–91 (“That a particular officer may be 

unsatisfactorily trained will not alone suffice to fasten liability on 

the city, for the officer’s shortcomings may have resulted from 

factors other than a faulty training program.”). Malone has not 

explained why the City’s training policies were inadequate. At 

best, these 25 incidents reflect isolated acts over an eight-year 

period by individual officers, which “says little about the training 

program or the legal basis for holding the city liable.” Id. at 391; 

see also Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 

1293 (11th Cir. 2009) (“In resolving the issue of the City’s liability, 

the focus must be on the adequacy of the training programs in 

relation to the tasks the particular officers must perform, and not 

merely on the training deficiencies for a particular officer.” 

(quotation omitted)).

Moreover, even assuming those complaints could establish 

a pattern for purposes of § 1983 liability, Malone failed to present 

any evidence tending to demonstrate that the City “deliberate[ly] 

cho[se] not to take any action” when it became aware of issues

with its training, as the record is devoid of information 

concerning what action the City took after receiving the ACRB 

USCA11 Case: 21-12410 Date Filed: 04/15/2022 Page: 9 of 10
10 Opinion of the Court 21-12410

complaints.

4

 Gold, 151 F.3d at 1350; see also Am. Fed’n of Lab. 

& Cong. of Indus. Org. v. City of Miami, Fla., 637 F.3d 1178, 1189 

(11th Cir. 2011) (holding summary judgment was appropriate 

where evidence may have put the City on notice of inadequate 

training but there was no evidence produced that the 

municipality made a choice not to take any action). 

Accordingly, the district court properly entered summary 

judgment because Malone failed to provide sufficient evidence to 

create a genuine issue of fact concerning the City’s § 1983 liability 

under a failure-to-train theory.

AFFIRMED IN PART and DISMISSED IN PART. 

4 Malone’s proposed amended motion for summary judgment similarly did 

not demonstrate that the City was on notice of any alleged inadequacies in 

its training of officers or, assuming that it was on notice of issues with 

training, that it made a deliberate choice not to take any action. Accordingly, 

we cannot say that the district court abused its discretion in denying her 

motion to amend the motion for partial summary judgment as moot. 

Furthermore, to the extent that she sought to raise additional claims in her 

proposed amended motion, summary judgment briefs may not be used to 

amend a complaint. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 

1315 (11th Cir. 2004). 

USCA11 Case: 21-12410 Date Filed: 04/15/2022 Page: 10 of 10