Opinion
Civil Action No. 03-1507.
June 28, 2004
SECTION "K" (5)
ORDER AND REASONS
Before the Court is a Motion to Dismiss filed by the Town of Franklinton ("Franklinton") Franklinton Police Department, Police Chief Lynn Armand ("Armand"), Sergeant James Holmes ("Holmes") and Detective William Stogner ("Stogner"). They seek the dismissal of the following claims:
(1) the claims brought against Armand, Holmes and Stogner in their individual capacities based on qualified immunity;
(2) the claims brought by Johnny S. Conerly and Sandra F. Conerly as parents of Felicia Fox;
(3) the punitive damage claim against Franklinton; and
(4) the claims against "the Franklinton Police Department."
Having reviewed the pleadings, memoranda, and the relevant law, the Court finds as follows.
Background
Plaintiffs in this matter are Johnny and Sandra Conerly, individually and as the Provisional Tutor and Undertutrix of the minor children, Jordan Wilson and Adrian Fox. Johnny S. and Sandra S. Conerly are persons of full age and majority domiciled in the Parish of Washington, Louisiana. Defendants are the Town of Franklinton, Franklinton Police Department, Police Chief Lynn Armand, Sergeant James Holmes, and Detective William Stogner.
Plaintiffs allege in their Complaint that on May 26, 2002, Felicia Fox was killed by Robert Toomer, Jr. after he broke into her house. Prior to her murder, there were several incidences of domestic violence involving Fox and Toomer.
On May 17, 2002, plaintiffs allege Fox was assaulted by Toomer at her residence in Franklinton. Fox called the police, and Patrolman Jay Herring responded. He was able to make Toomer leave the house, but no arrest was made.
On May 22, 2002 plaintiffs contend that Fox was assaulted and partially strangled by Toomer again at her home in Franklinton. Fox placed a call to the police again. Responding officers included the defendants Sergeant James Holmes and Detective William Stogner. Plaintiffs maintain that no arrest was made or any official action taken by these officers. [Complaint, ¶ VIII]
The next day on May 23, 2002, plaintiffs claim that Toomer assaulted Fox at her home and attempted to shoot her. Fox's mother placed a call to the police who, including Sergeant Holmes, responded and arrested Toomer charging him with three counts of aggravated assault, illegal use of weapons, simple battery and domestic violence. Toomer was on probation being convicted of marijuana use in Washington Parish, Louisiana.
Later during the day of May 26 [sic], 2002, plaintiffs allege that Fox was assaulted by two of Toomer's friends, Shaquanta McClain and Rhonda LNU. A call was made to the Franklinton Police. Sergeant Review and defendant William Stogner responded but no arrest was made. [Complaint, ¶ XI]
On May 23, 2002, Toomer was released from prison, and plaintiffs contend that he should not have been released because he was in violation of his probation which requires a revocation hearing be held before his release. Plaintiffs, Fox, and Alex Weary say that they complained to Chief Lyn Armand about the quick release of Defendant Toomer, and their belief that Toomer had actually been generally present at the Fox residence when she was beaten by Toomer's friends. [Complaint, ¶ XII]
Plaintiffs contend that Fox obtained a restraining order on May 24, 2002. Then, at about midnight May 25, 2002, Toomer attempted to break-in despite the additional locks Fox placed on the outside of her mobile home. Fox was in her home with her children and Colie Wilson. She telephoned the police, and Sergeant James Holmes and an additional unknown officer came to the scene and found Toomer but did not arrest him. Plaintiffs also maintain that the officers did not take statements from Fox or Colie Wilson. [Complaint, ¶ XIII]
On May 26, 2002 at approximately 5:00 a.m., Toomer allegedly returned to Fox's home and shot her twice, killing her. Toomer left the home but was injured by a gunshot wound inflicted by Colie Wilson. The Franklinton Police Department was notified and Toomer was arrested for second degree murder of Felicia Fox.
Plaintiffs allege that a call was made to the Franklinton Police Department on the late hours of May 25th or early hours of May 26th, but the officer did not respond because he already told Fox to lock her door and keep it locked.
Procedural Posture
Plaintiffs filed suit against the defendants on May 27, 2003. Defendants Town of Franklinton, Franklinton Police Department, Police Chief Lynn Armand, Sergeant James Holmes, and Detective William Stogner filed an answer on September 2, 2003 and a motion to dismiss on March 31, 2004.
Causes of Action
Plaintiffs first contend that the actions of the Franklinton Police Department, the Town of Franklinton, and the named individual officers, along with the felonious conduct of Toomer, resulted in the death of Felicia Fox. Plaintiffs allege the police's failure to respond and refusal to arrest Toomer on the night of May 25 or early morning of May 26, demonstrates a policy or custom of defendants to provide less police protection with domestic assault victims than to other assault victims. Moreover, plaintiffs argue that a motivating factor in defendants' actions is giving a lower priority to black female victims of domestic violence. Finally, they allege Felicia Fox was injured in fact by this police custom or policy. Plaintiffs allege these facts claiming defendants have violated the Equal Protection clause of the 14th Amendment and institute this suit to recover damages for the violation pursuant to 42 U.S.C. § 1983.
Plaintiffs' second claim is state that the Town of Franklinton, the Franklinton Police Department, and the named law enforcement officers, also failed to fulfill the affirmative obligations set forth under Louisiana Revised Statutes 14:79(c), which provides that police officers shall use every reasonable means, including immediate arrest, to enforce a protective order.
Plaintiffs' third claim is against Robert Toomer, Jr. for having committed an intentional tort against Felicia Fox by assault with a deadly weapon resulting in her death, and he is responsible to her under Louisiana state law provided in Louisiana Civil Code Article 2315.
Plaintiffs' fourth cause of action is against the Town of Franklinton and the Franklinton Police Department for its failure to appropriately train its law enforcement officers, and to provide adequate policy and education to its officers in responding to domestic violence such that it caused Felicia Fox's death.
Plaintiffs request all damages for the wrongful death of Felicia Fox.
Motion to Dismiss
As previously noted, defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted the following claims:
(1) the claims brought against Armand, Holmes and Stogner in their individual capacities based on qualified immunity;
(2) the claims brought by Johnny S. Conerly and Sandra F. Conerly as parents of Felicia Fox;
(3) the punitive damage claim against Franklinton; and
(4) the claims against "the Franklinton Police Department."
A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is to be evaluated only on the pleadings; however a complaint sought to be dismissed under Rule 12(b)(6) may generally be amended to cure its deficiencies. Jackson v. Procunier, 789 F.2d 307 (5th Cir. 1986). In testing the sufficiency of a § 1983 complaint, at issue here, the complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. Watts v. Graves, 720 F.2d 1416, 1418-19 (5th Cir. 1983) (quoting Conley v. Gibson, 355 U.S. 41 (1957); Richardson v. Fleming, 651 F.2d 366 (5th Cir. 1981)). However, conclusory allegations or legal conclusions masquerading as facts will not prevent a motion to dismiss. Hingle v. Hebert, No. 99-1123, 2000 U.S. Dist. LEXIS 7054 at (E.D.La. May 16, 2000). The Court will now address each argument with this standard in mind.
FN1. Section 1983 provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any person withing the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983 (1976).
1. Qualified Immunity
Defendants assert that when a plaintiff asserts a civil rights claim against public officials individually and qualified immunity is pleaded as an affirmative defense, there are heightened pleading requirements for the plaintiff. The "complaint must allege facts that, if proven, would demonstrate that [the defendant] violated clearly established statutory or constitutional rights." Williams v. City of New Orleans, 1999 WL 820553, p. *4 (E.D.La. 1999) (Barbier, J.), quoting Wicks v. Mississippi Employment Services, 41 F.3d 991, 995 (5th Cir. 1995).
Relying on Supreme Court jurisprudence, defendants maintain that the qualified immunity defense is available in a § 1983 claim, Imbler v. Pachtman, 424 U.S. 409, 418 (1976), and that this defense succeeds if defendant establishes that the officer's discretionary actions is objectively reasonable in light of established law. Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). The law or legal rule which creates the right must be "sufficiently clear that a reasonable officer would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Defendants rely on McKee v. City of Rockwell, Texas, 877 F.2d 409 (5th Cir. 1989), in which the Fifth Circuit interpreted the Supreme Court's decision in Deshaney v. Winnebago County, D.D.S., 489 U.S. 189 (1989) decision for the proposition that plaintiffs' equal protection claim is without merit. In Mckee, the Fifth Circuit held that in the context of a motion for summary judgment, the plaintiff failed to establish that the city had a policy of discouraging arrests in domestic violence cases. While the court did not provide a test for what would be sufficient evidence to establish an unconstitutional policy, it found that a statement allegedly made by the police chief, "indicating that officers `do not like to make arrests' in domestic violence cases" constitutes merely a dislike and not a policy. Moreover, the court held that the statistical evidence presented by plaintiff indicating a bias by police in domestic violence cases was spurious at best. Id. at 414. Defendants thus contend that there are no allegations in the complaint against the individual officers which even if liberally construed in favor of the plaintiff would defeat the qualified immunity defense.
Defendants contend that with respect to Chief Armand there are no allegations which suggest he could reasonably anticipate that his conduct would give rise to liability such that it would overcome a qualified immunity defense. The only allegations are that Felicia Fox, Mrs. Conerly, and Alice Fay Weary complained to Chief Armand about the quick release of Toomer. There are no allegations that Chief Armand was responsible or played any role in Toomer's release from the parish, not city, jail. Thus, the defendants argue the suit against Chief Armand should be dismissed by the court.
With respect to Detective Stogner and Sergeant Holmes, defendants argue that the plaintiff fails to allege any facts which even if true would overcome the defense of qualified immunity. Defendants say that there is no allegation that there was probable cause to arrest Toomer, and even if there was, there is no constitutional duty to arrest:
`the Deshaney rule leaves officers and law enforcement agencies with some discretionary authority: they need not fear that, in any close case, they must choose between liability for a potential false arrest and liability for a potentially action of non-arrest." Mckee, 877 F.2d at 414."
The other allegations involving these two individual officers, the movers suggest, also cannot defeat a plea of qualified immunity. Paragraph IX of the Complaint only mentions Sergeant Holmes and his being part of the arrest of Toomer. There is no allegation of a constitutional violation.
Defendants argue that Paragraph XI (which describes the incident involving Detective Stogner and his response to the assault by alleged friends of Toomer) does not contain an allegation which suggests there was probable cause to make an arrest against Toomer or which suggest Detective Stogner's actions were in violation of plaintiff's constitutional rights.
The next incident involving Sergeant Holmes was his response to the alleged attempted break-in by Toomer occurring late on May 25th or early May 26th. Defendants argue that there are no allegations of facts which would establish probable cause to arrest Toomer. Moreover, defendants say that there is no allegation that Ms. Fox informed Sergeant Holmes or anyone associated with the Town that she had such an order.
Thus, defendants conclude that the Complaint does not have allegations of facts which would overcome the qualified immunity defense to the § 1983 claims; therefore, movers ask the court to dismiss the claims against the individual officers.
Defendants' reliance on McKee ignores recent case history concerning the availability of a claim under the Equal Protection Clause for intentionally discriminatory policies, practices and customs of law enforcement with regard to domestic assault cases. In Shipp v. McMahon, 234 F.3d 907, 914 (5th Cir. 2000), the Fifth Circuit specifically approved the approach in Watson v. City of Kansas City, 857 F.2d 690 (10th Cir. 1988), and state unequivocally that:
to sustain a gender-based Equal Protection claim based on law enforcement policies, practices and customs toward domestic assault and abuse cases, a plaintiff must show: (1) the existence of a policy, practice or custom of law enforcement to provide less protection to victims of domestic assault than to victims of other assaults; (2) that discrimination against women was a motivating factor; and (3) that the plaintiff was injured by the policy custom or practice.Shipp, 234 F.3d at 914. In Shipp, the circuit court found that because this approach had not been adopted by the Fifth Circuit that it could not be said that it was "clearly established" such that the defense of qualified immunity would be defeated. More recently in Beltran v. City of ElPaso, 367 F.3d 299, 304-05 (5th Cir. 2004), the Fifth Circuit reiterated the test noted above as contained in Shipp. Thus, clearly there is an established cause of action under the Equal Protection clause of the type alleged herein.
In McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002), the Fifth Circuit overruled that portion of Shipp concerning whether a right was "clearly established" for qualified immunity purposes and held that it is appropriate for a court to look at the law of other circuits when neither the Fifth Circuit nor the Supreme Court has spoken to that issue.
The facts as alleged are indeed shocking; however, there is a need for plaintiffs to squarely address whether defendants are entitled to qualified immunity. The method by which they may accomplish this feat is allow them to file a Rule 7(a) reply to clearly delineate the facts and allegations underlying this lawsuit in light of the clearly delineated law.
Under Fifth Circuit jurisprudence, because defendants base their motion on the defense of qualified immunity, this Court must offer the plaintiff an opportunity to file a Rule 7(a) reply to the defendants' assertion. Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999) (finding that district court's failure to require a Rule 7 reply to a defense of qualified immunity was an abuse of discretion thereby vacating district court's grant of qualified immunity to arresting officers); see also Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995) (en banc); Mahrous v. O'Brien, No. 97-1294, 1998 U.S. Dist. LEXIS 5201 at *2-3 (E.D.La. Apr. 8, 1998). Public officials performing discretionary functions are generally shielded from suit unless it is shown by specific allegations that the officials violated clearly established statutory or constitutional rights of which reasonable individuals would be aware. See Harlow, 457 U.S. at 800; Shultea, 47 F.3d at 1431; Mahrous, 1998 U.S. Dist. LEXIS 5201 at *3. Thus in order to survive a qualified immunity defense the plaintiff must allege particularized facts that support his allegations. Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996) (holding that when a defendant asserts qualified immunity, a plaintiff must respond by pleading "specific conduct and action giving rise to a constitutional violation") (emphasis added).
While the Court must hold plaintiffs to this heightened pleading standard, the Court does not require plaintiffs to have anticipated this defense when drafting their original complaint. Rather a separate pleading procedure has been developed, wherein plaintiffs are first required to file a short and plain statement of their complaint which relies on more than mere conclusions and then, subject to the district court's discretion, file a reply specifically responding to the defendants' assertions of qualified immunity. Mahrous, 1998 U.S. Dist. LEXIS 5201 at *4-6. Because the Court's "discretion not to order such a reply is very narrow" and the Court is mindful of the potential for reversal by the Fifth Circuit should the Court not order such a reply, the Court will defer ruling on this motion pending the filing of a Rule 7(a) reply as discussed herein. Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996).
(2) Claims of Johnny and Sandra Conerly as parents of Felicia Fox
Defendants contend that plaintiffs, Johnny and Sandra Conerly, individually have no claim for the wrongful death of Felicia Fox under state and federal law. Defendants argue that Louisiana Civil Code Article 2315.2(A)(1) only allows Felicia Fox's children, Jordan Wilson and Adrian Fox, to bring a claim for her alleged wrongful death. Furthermore, under the deficiency clause of 42 U.S.C. § 1988, federal courts look to state law where federal law is deficient, and the state law is consistent with the purposes of the deficient federal statute. See Irvin v. Foti, 1999 WL 504916 (E.D. La. 1999), p. 4-5; Felder v. Casey, 487 U.S. 131, 140 (1988); Irvin v. Foti, 1999 WL 504916 (E.D. La. 1999), p. 5, citing Burnett v. Grattan, 104 S.Ct. 2924, 2928-9 (1984). Thus, they are likewise barred under federal law. Plaintiffs concede and the Court concurs in defendants' application of the law. Johnny S. and Sandra F. Conerly may not maintain any claim individually under § 1983 or Louisiana state law. Accordingly, the Motion to Dismiss will be granted in this regard.
3. Punitive Damages
Defendants argue that plaintiffs cannot seek punitive damages from the Town of Franklinton under § 1983, and thus, ask the court to dismiss this demand with prejudice. See City of Newport, et. al. v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Plaintiffs respond that the prayer to the original complaint inartfully asserted its damages. Regardless, based on City of Newport, the Motion to Dismiss will be granted in this regard.
4. Franklinton Police Department
Defendants finally contest that plaintiffs may not bring a claim against the Franklinton Police Department because it is not sui juris, and thus, ask the court to dismiss all claims against the police department. They allege that the police department does not have the capacity to be sued because it is merely a department of the Town of Franklinton. See Maxwell v. Henry, 815 F. Supp. 213 (S.D. Tex. 1993). Plaintiffs recognize the holding in Maxwell, and suggest that if the court determines the police department to be merely a department of the Town of Franklinton, a suit against it separately must be dismissed. In light of Fed.R.Civ.P. 11, as it has been represented to this Court by counsel that it is not an independent entity but is a department within the Town of Franklinton and no evidence or argument to the contrary has been made, the Court will grant the Motion to Dismiss in this regard as well. Accordingly,
IT IS ORDERED that a ruling on the Motion to Dismiss is DEFERRED with respect to the claims against Police Chief Lynn Armand, Sergeant James Holmes and Detective William Stogner in their individual capacities.
IT IS FURTHER ORDERED that plaintiffs shall file a Rule 7(a) reply addressing these defendants' qualified immunity defenses by July 14, 2004 at which time the Court will rule on this aspect of the Motion to Dismiss. IT IS FURTHER ORDERED that the Motion to Dismiss is GRANTED with respect to the claims of Johnny S. Connerly and Sandra F. Conerly on their own behalf, claims for punitive damages against the Town of Franklinton and claims against the Franklinton Police Department.