Opinion
Civil Action No. 00-3466 Section "N"
September 17, 2001
ORDER AND REASONS
Before the Court is a Motion to Dismiss Pursuant to Rule 12(b)(6) and/or Summary Judgment filed by the City of New Orleans, Police Superintendent Richard Pennington, and police officers Robinson Del Castillo and Daniel Anderson. For the following reasons, the defendants' motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
Plaintiff Jerry M. Howard ("Howard") has brought the instant civil rights claim seeking damages for an alleged beating he received at the hands of two New Orleans police officers. On November 29, 1999, police officers Robinson Del Castillo ("Del Castillo") and Daniel Anderson ("Anderson") observed Howard and another individual engaged in what appeared to be a drug transaction in the intersection of Peace Court and Music Street in New Orleans, Louisiana. Officer Del Castillo approached Howard, who pushed Del Castillo away and began to flee. Del Castillo gave chase, and Anderson assisted him in subduing and arresting Howard. Howard was booked on charges of possession of crack cocaine, battery of a police officer, and resisting arrest. Immediately after his arrest, Howard was hospitalized for a broken jaw and eye-injuries. On January 13, 2000, Howard pled guilty to possession of crack and entered an Alford plea to the battery charge. He is currently serving a 40 month prison sentence.
In the instant civil case, Howard alleges that the police officers used excessive force in arresting him and, further, that they beat him after he had been subdued. He has brought suit against the officers and Police Superintendent Richard Pennington under 42 U.S.C. § 1983. The defendants ask the Court to dismiss Howard's complaint on the grounds that he has failed to state a claim, or, alternatively, to grant summary judgment in their favor.
STANDARD OF REVIEW
In a motion to dismiss for failure to state a claim upon which relief may be granted, the Court must accept all well-pleaded facts as true and view the facts in the light most favorable to the plaintiffs. See Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995). Dismissal is warranted if "it appears certain that the plaintiff[s] cannot prove any set of facts in support of [their] claim that would entitle [them] to relief." Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994)).
Alternatively, summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c). A genuine issue of fact exists where the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the burden of demonstrating an absence of evidence to support the non-movant's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the opposing party bears the burden of proof at trial, the moving party need not submit evidentiary documents to properly support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party's case. See Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991). To oppose a motion for summary judgment, the non-movant must set forth specific facts to establish a genuine issue of material fact and cannot merely rest on allegations and denials. See Celotex, 477 U.S. at 324. Factual controversies are to be resolved in favor of the non-moving party. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
LAW AND ANALYSIS 1. City of New Orleans and Superintendent Pennington
The defendants first assert that Howard has failed to state a claim against the City of New Orleans (the "City"). The Court is puzzled by this argument because the City has not been named as a defendant. Further adding to the confusion, the defendants claim that "[t]he Court denied plaintiff s attempt to amend his complaint." Rec. Doc. No. 13 at 2. However, no motion to amend has been filed. Because a claim against the City would involve many of the same legal issues as a claim against Superintendent Pennington and because the defendants have not separately addressed Howard's claim against Pennington, the Court will treat the defendants' arguments with respect to the City as if they were offered on behalf of Pennington.
Howard seeks to hold Pennington responsible for the injuries allegedly incurred by Anderson and Del Castillo. However, neither a local government nor a supervisory official may be held liable under a respondeat superior theory for constitutional torts committed by a municipal employee. See Monell v. Dep't of Soc. Serv., 436 U.S. 658 (1978) (city's liability); Alton v. Texas A M Univ., 168 F.3d 196, 200 (5th Cir. 1999) (supervisor's liability). Instead, the government as an entity is held responsible under section 1983 only "when execution of a government's policy or custom . . . inflicts the injury," Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998), and a supervisory official such as Superintendent Pennington is liable only if "(i) [he] affirmatively participate[s] in acts that cause constitutional deprivation; or (ii) implement[s] unconstitutional policies that causally result in plaintiff's injury." Baker v. Putnal, 75 F.3d 190, 199 (5th Cir. 1996).
The defendants argue that any claim against the City or Pennington must be dismissed because Howard has not alleged that his injuries were caused by some "action pursuant to [an] official municipal policy." Monell, 436 U.S. at 691. To the contrary, Howard alleges that Pennington has not properly trained his officers to perform their duties. Compl. at ¶ 8. In City of Canton, Ohio v. Harris, 489 U.S. 378, 387 (1989), the Supreme Court held that there are "limited circumstances in which an allegation of `failure to train' can be the basis for liability under § 1983." Inadequacy of training can serve as a basis for liability "only where the failure to train amounts to deliberate indifference to the rights of the persons with whom the police come into contact." Id. at 388. In the instant case, Howard alleges that:
[t]he defendant has been on notice for some time, or should have been on notice that his employees were not properly trained to perform their duties. The defendant has taken no reasonable steps to determine whether his policies and procedures for the use of force by deputies were adequate or whether his employees were properly carrying out those policies.
Compl. at ¶ 8. This conclusory paragraph fails to allege specific facts from which a policy or custom of failure to train can be inferred; nor does it allege any other incidents in which an individual's federal rights were violated. At best, Howard has pled facts which support a single incident of excessive force against himself. The Supreme Court explained in Bd. of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 407-08 (1997) that:
the existence of a pattern of tortious conduct by inadequately trained employees may tend to show that the lack of proper training, rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular incident, is the "moving force" behind the plaintiff's injury.
By failing to allege facts that suggest "a pattern of conduct or a continued adherence to a program," Howard "has not pled the deliberate indifference necessary to trigger municipal liability." Clouatre v. Taylor, 1998 WL 46819 at *4 (E.D.La. Feb. 4, 1998) (Vance, J.).
In the instant case, the only connection between the alleged acts of the officers and Pennington is the fact of their employment, and this is clearly insufficient to establish municipal liability under section 1983. In the absence of an allegation of a pattern of conduct or a continued adherence to a program, the Court cannot find the deliberate indifference necessary to trigger liability against Superintendent Pennington. Accordingly, the defendants' motion to dismiss Howard's claims against Pennington is granted.
2. Officers Del Castillo and Anderson
Officers Del Castillo and Anderson ask the Court to dismiss Howard's complaint on two grounds. First, they argue that Howard's cause of action for excessive force is barred by his conviction for battery on a police officer. Second, they assert the defense of qualified immunity.
In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Supreme Court held that to recover damages for constitutional violations relating to arrests or convictions, section 1983 plaintiffs "must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." In other words, if Howard's criminal conviction stands, he cannot bring a section 1983 claim arising out of the same facts.
The petitioner submits that Heck is inapplicable to his case because he pled guilty pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). Howard cites the Ninth Circuit case of Smithart v. Towery, 79 F.3d 951 (9th Cir. 1996) in support of his proposition. Smithart entered anAlford plea to assault with a deadly weapon after threatening to run over two police officers with his truck. He subsequently brought a section 1983 action, contending that the officers beat him after he exited his truck and after the assault was completed. Because excessive force was allegedly used after the assault, the Ninth Circuit held that a successful section 1983 claim "would not necessarily imply the invalidity of Smithart's arrest and conviction" and reversed the district court's dismissal of his excessive force claim. Contrary to Howard's assertions, the fact that Smithart entered an Alford plea did not affect the Ninth Circuit's decision to apply the Heck analysis.
In Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996), the Fifth Circuit applied Heck to a section 1983 excessive force claim. Like Howard, Hudson was convicted of battery on a police officer and sought damages for injuries sustained during his arrest. The Fifth Circuit dismissed Hudson's claim because a finding that the police officer used excessive force would necessarily "imply the invalidity of [Hudson's] arrest and conviction for battery of an officer." Id. at 873. Put differently, if the police officer's use of force was excessive, then Hudson could not have committed battery because he would have been entitled to defend himself. See id.
Like Hudson, Howard alleges that the police officers used excessive force during his arrest. A finding that excessive force was used during Howard's arrest would imply the invalidity of his battery conviction, and therefore his claim for injuries sustained up to the point he was subdued is dismissed. However, like the petitioner in Smithart, Howard also alleges that he was beaten while he was handcuffed, after he had been arrested and subdued and after he had committed battery on the officer. Where a plaintiff's action "even if successful will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit." Heck, 512 U.S. at 487 (emphasis in original). A section 1983 claim that the police used excessive force after Howard's arrest does not necessarily imply the invalidity of Howard's battery conviction because this beating may have occurred after the battery was over. See, e.g., Smithart, 79 F.3d at 952-53 (reversing dismissal of excessive force claim under section 1983 where plaintiff alleged he was beaten after his assault on police officers was completed); Swangin v. Ca. State Police, 168 F.3d 501 (9th Cir. 1999) (reversing dismissal of section 1983 claim where the assault serving as basis for plaintiff's conviction occurred prior to alleged use of excessive force by the police officer).
Because the defendants have not addressed Howard's allegation that he was beaten after he was placed in handcuffs, the Court cannot determine whether force was used only while the officers were subduing Howard or whether excessive force was used after Howard had already been subdued. Since the Court cannot rule out the possibility that Howard was beaten after his assault on the officers had been completed and when he was no longer resisting them, the defendants' motion to dismiss/motion for summary judgment is denied.
Alternatively, officers Del Castillo and Anderson argue that Howard's claim should be dismissed because they are entitled to qualified immunity. It is well established that qualified immunity shields public officials from suit and liability under § 1983 "unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994) (internal quotations omitted). If possible, issues of qualified immunity are determined from the face of the pleadings, without resort to pre-trial discovery. Id.
In the Fifth Circuit, a two-step test is used to determine whether the defense of qualified immunity applies. "First, a court must determine whether plaintiff has alleged a violation of a clearly established right." Fontenot v. Cormier, 56 F.3d 669, 673 (5th Cir. 1995). "Second, the court must determine whether the officer's conduct was objectively reasonable in light of the legal rules applicable at the time of the alleged violation." Id. Since Howard was hospitalized for a broken jaw and eye injuries incurred by the police, the Court finds that he has alleged a violation of a constitutional right.
With respect to the reasonableness of the officers' conduct, the Court notes that the defendants have not responded to Howard's allegations that they beat him after he was handcuffed and subdued and have simply asserted their defense of qualified immunity in a conclusory manner. See Schultea, 47 F.3d at 1433 (stating that "[a] defendant has an incentive to plead his defense [of qualified immunity] with some particularity because it has the practical effect of requiring particularity in the reply"). In light of the vague nature of the officers' immunity defense and their failure to address the allegation that they beat Howard after his arrest, the Court finds that a genuine issue of material fact exists as to whether the officers' conduct was objectively reasonable. See, also, Clouatre, 1998 WL 46819 (denying motion to dismiss on grounds of qualified immunity because issues of fact existed as to the illegality of the defendants' conduct at the time of the alleged act); Papp v. Snyder, 81 F. Supp.2d 852, 857 (N.D.Ohio 2000) (holding that use of aggressive maneuvers on handcuffed suspect goes beyond any reasonable notion of acceptable force). Accordingly, because the defendants have submitted no evidence bolstering their allegation that their use of force was reasonable, the defendants' motion to dismiss/motion for summary judgment on the grounds of qualified immunity is denied. However, the Court expresses no opinion as to whether the plaintiff's claims could withstand a properly supported motion for summary judgment.
CONCLUSION
For the reasons given above, IT IS ORDERED that the defendants' Motion to Dismiss Pursuant to Rule 12(b)(6) and/or Summary Judgment is GRANTED as to Howard's claims against Police Superintendent Richard Pennington and GRANTED as to his claims against officers Del Castillo and Anderson for injuries sustained during his arrest.
However, Howard's claims against Anderson and Del Castillo remain viable to the extent that he alleges he was beaten after he had been arrested and subdued.