Opinion
Civil Action No. 04-2663 Section: "C" (3).
February 18, 2005
ORDER AND REASONS
Before the Court is Defendants' Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) and 12(c). Having reviewed the parties' motion and opposition and the applicable law, the Court hereby rules that Defendants' Motion to Dismiss is GRANTED in part and DENIED in part.
I. BACKGROUND
This case arises out of allegations that defendant Officer Fitzhugh Farris used excessive force during an arrest of the plaintiff, Jovon Scott, which occurred on November 9, 2003 in Independence, Louisiana in Tangipahoa Parish. (Rec. Doc. 14). Under the plaintiff's factual assertions in the Amended Complaint, it appears that Officer Farris lawfully arrested the plaintiff "in connection with an alleged theft of merchandise from the [Piggly Wiggly] store." ( Id. at 4). In the plaintiff's briefing here, however, the factual scenario of the arrest becomes murky. In his Opposition to the instant motion, the plaintiff makes a vague, unsubstantiated claim that the arrest was "illegal." (Rec. Doc. 17 at 4). In his Supplemental Opposition, the plaintiff seems to imply that Officer Farris provoked him into resisting arrest, then used the resistance as a pretext to put him in an arm-lock. (Rec. Doc. 18). Notwithstanding the issue of the arrest's legality, the plaintiff alleges that Officer Farris used excessive force at three instances during the arrest: (1) when the plaintiff was placed in an arm-lock after he "yanked back" from the officer who had told the plaintiff to be quiet; (2) when the defendant "slammed" the plaintiff against a window after the plaintiff complied with the officer's request to be quiet; and (3) when the defendant "slammed" the plaintiff against a wall, injuring him, when the plaintiff moved "to reduce the pain" of the arm-lock. (Rec. Doc. 14 at 3-4). Plaintiff alleges that this conduct violates " 42 U.S.C. § 1985," and that the conduct amounted to battery by Officer Farris and negligence by Defendant Chief Jesse Pingo (as a representative of the city) in violation of state law. ( Id.)
The plaintiff made these allegations in response to the defendants' Motion for Rule 7(a) Reply pursuant to the heightened pleading requirement under Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163 (1993), and Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995).
It is unclear whether the plaintiff is contending that Officer Farris lacked probable cause to arrest him, or whether the arrest was rendered illegal due to an alleged excessive use of force at the inception of the arrest. Defendants strenuously note that in the Complaint and Amended Complaint, the plaintiff made no particular factual allegations to suggest that the arrest was unlawful. Defendants also object to the plaintiff's raising any new argument here that the arrest itself was in some manner unlawful. (Rec. Doc. 17 at 3-4).
The plaintiff identifies the central issue as whether Officer Farris " created the need to use force that he employed." (Rec. Doc. 18) (emphasis added). In his Opposition, the plaintiff makes a similar conclusory assertion that Officer should have known "he could not provoke resistance [, and] that the plaintiff had a right to resist." (Rec. Doc. 17 at 5).
With respect to the plaintiff's various "Counts" alleging unlawful conduct under 42 U.S.C. § 1985, the Court construes the plaintiff's Complaint to allege violations of 42 U.S.C. § 1983 since Mr. Scott appears to contend that Officer Farris violated his Fourth Amendment right to be free of unreasonable use of police force. Since Officer Farris's purportedly unconstitutional conduct was carried under color of law, the Complaint can only be understood as making out allegations under 42 U.S.C. § 1983.
Section 1985 pertains to "conspiracy to interfere with civil rights." Since Officer Farris was acting alone, and there have been no allegations that he acted in concert with Chief Pingo or any other person, a conspiracy, which requires two or more actors, cannot exist by definition.
II. STANDARD OF REVIEW
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, a district court must accept the factual allegations of the complaint as true and resolve all ambiguities or doubts regarding the sufficiency of the claim in favor of the plaintiff. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993). Unless it appears "beyond a doubt that the plaintiff can prove no set of facts in support of his claim," the complaint should not be dismissed for failure to state a claim. Id. at 284-285 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed.2d 80 (1957)). However, conclusory allegations or legal conclusions masquerading as factual conclusions will not defeat a motion to dismiss. See Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (citing Fernandez-Montes, 987 F.2d at 284). The standard for a Rule 12(c) motion is the same as under Rule 12(b)(6). Great Plains Trust Co. v. Morgan Stanley Dean Whitter Co., 313 F.3d 305, 313 n. 8 (5th Cir. 2002).
II. LAW AND ANALYSIS
Defendants move to dismiss under the theory that Officer Farris was reasonably responding to the suspect-plaintiff who, by his own admission, was resisting an allegedly lawful arrest. Defendants thus assert that Officer Farris used reasonable force in restraining the somewhat uncooperative plaintiff, or in the alternative, that qualified immunity provides sufficiently wide latitude to cover any reasonable mistakes Officer Farris might have committed during the arrest, i.e., in case he was somewhat rougher with the plaintiff than necessary. In addition to dismissing the § 1983 claim, the defendants ask the Court to exercise its supplemental jurisdiction under 28 U.S.C. § 1367 to dismiss the state law claims. The plaintiff contends that Officer Farris's conduct exceeded the confines of what was reasonably necessary under the circumstances where Mr. Scott allegedly was complying with the officer.
A. § 1983 and Qualified Immunity
Section 1983 provides that every person, who, under color of law, subjects, or causes to be subjected, any person within the jurisdiction of the United States to "a deprivation of any rights, privileges, or immunities under 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. Claims of excessive force in the context of arrests or investigatory stops should be analyzed under the Fourth Amendment's "objective reasonableness" standard. Graham v. Connor, 490 U.S. 386, 394 (1989).
As a threshold inquiry, however, the Supreme Court has ruled that the district court must determine as early as possible in the litigation whether the defendant is entitled to qualified immunity. See Katz v. Saucier, 553 U.S. 194, 201 (2001). Qualified immunity protects officers charged with discretionary duties from suit unless their conduct violates a clearly established constitutional right. Harlow v. Fitzgerald, 457 U.S. 800 (1982). The burden is on the plaintiff to overcome a defendant's defense of qualified immunity. Saldana v. Garza, 684 F.2d 1159, 1163 (5th Cir. 1982), cert. denied, 460 U.S. 1012 (1983).
In Katz, the Supreme Court refined its earlier Harlow ruling and set forth a two-pronged analysis to determine the propriety of qualified immunity in the context of allegations of excessive use of force. An officer is barred from qualified immunity if: (1) there is a violation of a clearly established constitutional right, and (2) the reasonable officer would be aware that his conduct was unlawful in the situation he confronted. Katz, 553 U.S. at 207-208. The effect of qualified immunity is to grant officers immunity from reasonable mistakes as to the legality of their actions. Id. at 206. It should be further emphasized that qualified immunity obtains in addition to the deference owed the officer on the underlying constitutional claim, for instance in allowing wide latitude for officer safety or to guard against potential flight. See id. (emphasis added). The objective reasonableness standard as applicable here is "intended to provide government officials with ability reasonably [to] anticipate when their conduct may give rise to liability for damages.'" Anderson v. Creighton, 483 U.S. 635, 646 (1987) (internal citations omitted). The objective reasonableness standard "provides ample protection to all but the plainly incompetent and those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).
B. Excessive Use of Force
The Supreme Court recognized in Graham, 490 U.S. 386, the constitutional right to be free of objectively excessive force during an investigatory stop or arrest. Under a standard of objective reasonableness, the Court will determine whether a reasonable police officer would have used a similar degree of force in light of the particular facts and circumstances the officer confronted at the time of the incident. Id. at 396. When gauging the reasonableness of an officer's actions, the Court should consider the following factors: 1) the severity of the crime at issue, 2) whether the suspect poses an immediate threat to the safety of the officers or others, 3) and whether he is actively resisting arrest or attempting to evade arrest by flight. Id.
As to the plaintiff's state law battery claim, a police officer is privileged to commit assault and battery provided that the force used is reasonable. See La.C.Cr.P. art. 220; Kyle v. City of New Orleans, 353 So.2d 969 (La. 1977). For the present purpose, the overarching reasonableness standard will inform the Court's analysis with respect to both the federal and state claims.
In regard to the first step of the qualified immunity analysis under Katz, it is beyond question that the Graham authority establishes a clear constitutional right. The plaintiff asserts generally that his Fourth Amendment right to be free of unreasonable use of police force was breached during the arrest. (Rec. Doc. 17 at 5). Defendants argue under the first step of Katz that no violation occurred because the incident, or steps of the incident, flowed from the officer's decision to use the arm-lock. (Rec. Doc. 15 at 7-8). This argument is misplaced because it is appropriately addressed under the second step of the Katz analysis (see below) as to the objective reasonableness of the officer's actions.
1. Legality of arrest
As to the legality of the arrest, the Court finds that the plaintiff has not met its burden in overcoming the qualified immunity defense by pleading factual allegations under the Schultea heightened requirement. See also Saldana, 684 F.2d at 1163 (requiring plaintiff in summary judgment context to produce evidence demonstrating inapplicability of qualified defense). The Court recognizes that a Rule 12(c) motion typically arises when there are no contraverted facts. Cf. Hebert Abstract Co. v. Touchstone Properties, 914 F.2d 74, 76 (5th Cir. 1990). Here, however, the requirement under Schultea that a plaintiff must plead with particular facts when confronted with a defense of qualified immunity is significant. The combined burden under Schultea and Saldana, therefore, operate to compel the plaintiff to make out coherent factual allegations to support a finding that the arrest was illegal at its inception.
Plaintiff only vaguely alleges some illegality to the arrest despite multiple opportunities in the Amended Complaint/Rule 7(a) Reply, an Opposition and Supplemental Opposition to the instant motion.
The plaintiff has failed to meet this burden. It remains unrefuted that the plaintiff was involved in a shoplifting incident of some kind, that this apparent illegality on the plaintiff's part prompted Officer Farris to initiate an arrest, that he encountered some resistance from the plaintiff, and that Officer Farris responded by putting the plaintiff in an arm-lock. The plaintiff's attempts to elicit some inference that Officer Farris provoked the plaintiff into resisting is unavailing when the plaintiff cannot state straightforwardly what happened from his perspective. Accordingly, the Court finds for the purpose of this motion that the arrest was legal at its inception.
The plaintiff's lengthy citation of Myers v. Oklahoma County Bd. of Commissioners, 151 F.3d 1313, 1319-1320 (10th Cir. 1998), a case factually distinguishable from the present case, is unhelpful in revealing what happened between Officer Farris and Mr. Scott on November 9, 2003.
2. Objective reasonableness of forced used
Whereas the defendants assert that Officer Farris's conduct in the course of his official duty was concentrated in a single incident — the decision to place the plaintiff in an arm-lock — the plaintiff, as indicated above, alleges that the arrest took place in three phases. Defendants claim that no case authority exists to support a finding that an arm-lock is so flagrantly unreasonable as to vitiate an officer's qualified immunity. ( Id. at 10-11).
Because the Court under Rule 12(b)(6) must view all factual allegations in a light favorable to the plaintiff, the analysis will address each temporal step individually. With respect to the arm-lock, the plaintiff asserted that he "yanked back" from Officer Farris when he was "snatched" and told to be quiet. (Rec. Doc. 14 at 4). While "snatched" could have several connotations, it appears that the plaintiff was resisting arrest at least somewhat by recoiling from Officer Farris.
A lawful arrest, as appears to be the case here, entails by definition that the suspect is apprehended. Being "snatched" is roughly synonymous with being apprehended. Even if "snatched" is intended to mean that the plaintiff was apprehended in a gruffer manner than necessary, the plaintiff does not allege that the snatching was so egregious as to exceed the "gray area" afforded to officers who might make reasonable mistakes with respect to the amount force needed to restrain a suspect resisting arrest. See Hart v. O'Brien, 127 F.3d 424, 453 (5th Cir. 1997) ("Qualified and official immunities protect police officers in the `gray area' between absolute certainty on the one hand and reckless or wanton conduct on the other. In the regular course of police work, this gray area can cover a wide range of reasonable conduct"). The purported counter-authority relied on by the plaintiff is distinguishable and unavailing.
Under La.C.Cr.P. art. 220, an arrest is defined as "the taking of one person into custody by another."
Hart was abrogated by the Supreme Court's decision in Kalina v. Fletcher, 522 U.S. 118 (1997), but upon the different issue of prosecutorial immunity.
In support of a finding of no qualified immunity, the plaintiff cites cases that involve instances of severe force, either in magnitude or repetitiveness. (Rec. 17 at 3-4). For instance, in McCrory v. N.O.P.D., 558 So.2d 1322 (La. 4th Cir. 1990), a state case dealing with police brutality, the suspect's arm was fractured from the arm-lock. No such severe injury is alleged here.
Arm-locks are not excessive in and of themselves, and the plaintiff does not allege they are. With respect to the arm-lock at issue in this case, the Court rules that the defendants are entitled to dismissal of the plaintiff's claim. Even if the arm-lock was such as to be "very painful," such force would fall within the reasonable mistake range allowed under qualified immunity.
With respect to the remaining allegations, however, the Court finds that dismissal would be inappropriate. The core of the Complaint pertains to allegations that the plaintiff was twice "slammed" — against a window and a wall outside the Piggly Wiggly store — during the course of the arrest. As mentioned above, the defendants attempt to minimize these allegations as being associated with the initial arm-lock and thus somehow immunized. It may be true that the officer could reasonably conclude that the suspect was resisting. Under the Rule 12(b)(6) standard, however, the Court cannot find that "slamming" a suspect is objectively reasonable. The reasonableness of the degree of force used must be gauged under the totality of the circumstances, and, based on the scant evidence currently before the Court, will likely turn on the credibility of the parties. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge"). Accordingly, the Court denies the motion in regard to the § 1983 claim and state law battery allegations against Officer Farris because factual issues remain as to the reasonableness of the force used given the plaintiff's allegation that he was "slammed" during the arrest.
The factors under Mathieu v. International Toy Corp., 646 So.2d 318, 323 (La. 1994), are not helpful at this point. All that can be determined on the evidence and allegations before the Court is that shoplifting is a relatively innocuous offense, and that Officer Harris did not employ any weaponry in subduing the plaintiff. But this information sheds little light on whether "slamming" was objectively reasonable.
Defendants argue derivatively that the City and Chief Pingo should be dismissed because, they contend, no underlying Fourth Amendment claim obtains given the cover of qualified immunity. As the Court denies the defendants' motion under Rule 12(b)(6) in regard to the underlying battery claim, it must likewise deny the motion with respect to Chief Pingo's negligent supervision.
III. CONCLUSION
IT IS ORDERED that Defendants' Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) and 12(c) be GRANTED with respect to any claim of unlawful arrest and with respect to the qualified immunity defense regarding the decision to place the plaintiff in an arm-lock. The Court DENIES Defendants' motion with respect to the remainder of the excessive use of force claim, state law battery and Chief Pingo's negligence in supervising Officer Farris.