REGINALD SMALL VERSUS ST. TAMMANY PARISH SHERIFF, JACK STRAIN, ET AL
CIVIL ACTION NO: 00-3441 SECTION: "T"(1)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OFLOUISIANA
2001 U.S. Dist. Lexis 21809
December 17, 2001,
Decided
December 17, 2001, Filed; December 18, 2001, Entered
Before the undersigned is the motion of the defendants, Rodney J.
Strain, Jr., Sheriff of St. Tammany
Parish ("Sheriff Strain"),
Deputy Ryan Wuerz, Deputy Frank Caminta, and Deputy Benjamin Sadowski, to
dismiss the complaint of the plaintiff, Reginald Small ("Small" ), pursuant to Fed. R. Civ. P. 12
(b)(1)(4)(5) and (6), for lack of jurisdiction over the subject matter;
insufficiency of service of process; and failure to state a claim upon which
relief can be granted (sometimes referred to as the "second motion to
dismiss"). Rec. doc. 19. Pursuant to 28 U.S.C. § 636(c) the parties
consented to the trial of this action before the undersigned. Rec. doc. 22.
PROCEDURAL BACKGROUND
On November 20, 2000, Small filed a complaint
against the defendants under 42 U.S.C. § 1983 for damages, including
punitive damages. Rec. doc. 1. On April 30, 2001, the defendants filed a motion
to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1)(4)(5) and (6) for
lack of jurisdiction over the subject matter; insufficiency of service of
process; and failure to state a claim upon which relief can be granted
(sometimes referred to as the "first motion to dismiss"). Rec. doc.
6. Small submitted an opposition to the first motion to dismiss and a motion to
amend his complaint, where he alleged Sheriff Strain was liable under the
theory of respondeat superior. Small alleged Sheriff Strain failed to
adequately train, supervise and hire the three deputies who were made
defendants. The first motion to dismiss came before the undersigned on an
automatic referral and a report and recommendation was issued. Since then the
parties consented to trial before the undersigned. In response to the first
motion to dismiss the undersigned recommended that: (1) Small's service on the
defendants be quashed; (2) Small be required to amend his complaint; and (3)
Small be required to file returns of the service on the defendants of the
amended complaint. Rec. doc. 10. There was no objection to the report and
recommendation and it was adopted by the Court. Rec. doc. 14.
Small filed an amended complaint and waivers of service of process on
the following: Sheriff Strain and two of the three deputies: Deputies Wuerz and
Sadowski. Rec. docs. 13 and 15-18. Small did not file a waiver of service or a
return of service on Deputy Caminta. All defendants, including Caminta, filed
an answer and the second motion to dismiss. In the answer Caminta raised the
defense of insufficiency of service of process. Rec. docs. 18 and 19.
ALLEGATIONS AGAINST THE DEFENDANTS
Small, a resident of
Indianapolis and an African American, alleges that on November 19, 1999, he
parked his Freightliner tractor trailer on Louisiana Highway 1077 in such a
manner that it blocked a driveway. Small acknowledges that after he drank
"a few beers" while visiting relatives, he attempted to move his
tractor trailer to clear the driveway and backed it into a ditch.
Two Louisiana state troopers arrested Small
for driving while intoxicated. The troopers took him to the St. Tammany Parish Sheriff's office, where he was beaten and sprayed with pepper
spray by three of the defendants, Deputies Sadowski, Wuerz and Caminta, while
he was handcuffed. Small describes the beating as occurring
after Small, "in an act of humor" allegedly licked one of the state
troopers on the face.
Small contends that Sheriff Strain is
liable under the theory of respondeat superior in that he failed to adequately
train, supervise and hire the three defendant deputies which resulted in
Small's beating. Small also alleges that Sheriff Strain did not implement a
policy for the handling of physical humor that resulted in Small's beating.
Small contends the three defendant deputies used excessive force in violation
of his civil rights. Rec. doc. 13. n1
STANDARD FOR MOTION TO DISMISS IN § 1983 CLAIM
"A motion to dismiss for failure to state a claim upon which relief
can be granted is a disfavored means of disposing of a case." Kennedy
v. Tangipahoa Parish Library Board of Control, 224 F.3d 359, 365 (5th Cir.
2000) (citations omitted). "A motion to dismiss an action for failure
to state a claim 'admits the facts alleged in the complaint, but challenges
plaintiff's right to relief based upon those facts.'" Crowe v. Henry,
43 F.3d 198, 203 (5th Cir. 1995)(quoting Ward v. Hudnell, 366 F.2d 247,
249 (5th Cir. 1966)). "The district court may not dismiss a complaint
under rule 12(b)(6) unless it appears beyond a doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to
relief.'" Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th
Cir. 2000) (quoting Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 102, 2
L. Ed. 2d 80 (1957). In order to avoid dismissal for failure to state a
claim, however, a plaintiff must plead specific facts, not mere conclusory
allegations. Kaiser Aluminum &
Chemical Sales v. Avondale Shipyards, 677 F.2d 1045 (5th Cir. 1982). It is
well established that courts do not have to accept every allegation in the
complaint as true in considering its sufficiency. 5A Wright & Miller,
Federal Practice & Procedure § 1357 (2d ed. 1990) at 311. Courts do not
have to accept legal conclusions, unsupported conclusions, unwarranted
references, or sweeping legal conclusions cast in the form of factual
allegations. Causey v. The Parish of
Tangipahoa, 167 F. Supp. 2d 898, 903 (2001).
In
the context of 42 U.S.C. § 1983 claims, it is well established that the
claimant must plead specific facts, not mere conclusory allegations to survive
a motion to dismiss. Streetman v. Jordan, 918 F.2d 555, 557 (5th Cir. 1990).
In cases such as this, where civil rights complaints are lodged against public
officials for actions undertaken in their official capacities, the Fifth
Circuit has recognized that "liberal notions of notice pleading must
ultimately give way to immunity doctrines that protect us from having the work
of our public officials chilled or disrupted by participation in the trial or
the pretrial development of civil lawsuits." Morrison v. City of Baton
Rouge, 761 F.2d 242, 244 (5th Cir. 1985). As such, the United States Court
of Appeals for the Fifth Circuit has "consistently held that plaintiffs
who invoke § 1983 must plead specific facts that, if proved, would overcome the
individual defendant's immunity defense; complaints containing conclusory
allegations, absent reference to material facts, will not survive motions to
dismiss." Geter v. Fortenberry, 849 F.2d 1550, 1553 (5th Cir.988).
The heightened pleading requirement in civil rights cases against those
asserting immunity is necessary because to allow traditional discovery to
commence based on broadly worded complaints "effectively eviscerates
important functions and protections of official immunity." Id at 1553.
In evaluating the merit of defendants' immunity defense, the Court
"accept[s] the allegations of [plaintiff's] complaint as true." Kalina
v. Fletcher, 522 U.S. 118, 122, 118 S. Ct. 502, 505, 139 L. Ed. 2d 471 (1997)
(citation omitted); and Causey 167 F. Supp. at 903-904.
Small's amended petition for damages for violation of civil rights
contains only two paragraphs that refer to Sheriff Strain: paragraphs VIII and
X. Rec. doc. 13. In paragraph VIII Small alleges that Sheriff Strain is liable
for the actions of his deputies under the theory of respondeat superior. In
paragraph X Small alleges that Sheriff Strain failed to implement a policy for
the handling of physical humor by the Sheriff's office. In the motion to
dismiss Sheriff Strain argues that he cannot be liable under a theory of
respondeat superior and raises the defense of qualified immunity. Citing the
allegations in paragraph X, Small states in his opposition to the second motion
to dismiss that respondeat superior is not the sole basis of liability for
Sheriff Strain. Small does not state whether Sheriff Strain is sued in his
official or individual capacity. The undersigned will treat Small as proceeding
against Sheriff Strain in both capacities.
In Turner
v. Houma Municipal Fire and Police Civil Service Bd., 229 F.3d 478 (5th Cir.
2000), the Court of Appeals criticized omnibus assertions of liability and
immunity, stating that "the performance of official duties creates two
potential liabilities, individual-capacity liability for the person and
official capacity liability for the municipality." Id. at 484.
Recognizing the distinction is fundamental because "defenses such as
absolute quasi-judicial immunity, that only protect defendants in their
individual capacities, are unavailable in official capacity suits." Id.
at 483 (citing Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 361-62, 116
L. Ed. 2d 301 (1991)).
In Leatherman
v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163,
113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993), the Supreme Court held that,
because municipalities do not enjoy absolute or qualified immunity from suit,
plaintiffs need not satisfy a heightened pleading standard when suing such
entities. Applying the Court's reasoning with respect to Leatherman, the Fifth
Circuit Court of Appeals has stated that since official capacity suits are in
essence suits against the municipality, defendants sued in their official
capacities do not get the added protection of heightened pleading standards. Anderson
v. Pasadena Independent School Dist., 184 F.3d 439 (5th Cir.1999).
Therefore, the claim against Sheriff Strain in his official capacity must be
analyzed under the liberal pleading requirements of Fed. R. Civ. P. 8(a). The
heightened pleading standard must be applied to the claim against Sheriff
Strain in his individual capacity.
Small alleges that his constitutional rights were violated by the three
deputies when they beat him and sprayed him with pepper spray, while he was
handcuffed. A municipality may be held liable under section 1983. Monell v. New York City Dept. Of Social
Serv., 436 U.S. 658, 98 S. Ct. 2018, 2035, 56 L. Ed. 2d 611 (1978).
However, a municipality cannot be held liable under section 1983 solely because
it employs a tortfeasor. Id. at 2035. Rather, a plaintiff must identify a
municipal "policy" or "custom" that caused his or her
injury. Id. at 2027. In Board of the County Commissioners of Bryan County v.
Brown, 520 U.S. 397, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997) the test set
out in Monell was significantly narrowed, when the Supreme Court stated:
It is not enough for a § 1983 plaintiff to
identify conduct properly attributable to the municipality. The plaintiff must
also demonstrate that, through its deliberate conduct, the municipality was the
"moving force" behind the injury alleged. That is, a plaintiff must
show that the municipal action was taken with the requisite degree of culpability
and must demonstrate a direct causal link between the municipal action and the
deprivation of federal rights.
Brown,
117 S. Ct. at 1388.
Under section 1983, the "requisite degree of culpability" is
that the municipality acted with at least "deliberate indifference"
to the consequences of its actions. Small must show not only that the deputies
violated his constitutional rights but that Sheriff Strain's policies were the
"moving force" behind his injury through actions done with
"deliberate indifference" to the likelihood of injury. To show an
unconstitutional policy or custom, the plaintiff must identify the policy or
custom, connect the policy or custom with the government entity itself, and
show that the particular injury was incurred because of the execution of that
policy. Bennett v. City of Slidell,
728 F.2d 762, 767 (5th Cir. 1984)(en banc). If plaintiff fails to allege an
official policy or custom, then his claim is subject to dismissal. See Meadowbriar
Home for Children, Inc. v. Gunn, 81 F.3d 521, 532-33 (5th Cir. 1996).
Assuming that Small's
allegations against the deputies are sufficient to show a constitutional
violation, Small's allegations against Sheriff Strain state that: (1) he was
the decision maker for his office; (2) he failed to adequately train, supervise
and hire the deputies; and (3) he implemented no policy for the handling of
physical humor. In his opposition, Small suggests that as a joke he licked the
face of one of the state troopers that arrested him. At that point the deputies
responded by beating him.
Small alleges no direct causal
link between the alleged beating and the alleged failure of Sheriff Strain to
either train the deputies or have a policy on "physical humor". If
the court accepted Small's allegations as sufficient to state a claim against
Sheriff Strain in his official capacity, the Supreme Court's requirement in
Brown that a plaintiff demonstrate that the deliberate conduct of the
municipality was the moving force behind the alleged injury would be nullified.
The claim against Sheriff Strain in his official capacity must therefore be
dismissed.
The
remaining issue with respect to Sheriff Strain is Small's claim against him in
his individual capacity. Sheriff Strain has raised the issue of qualified
immunity and this defense is pertinent to a claim against him in his individual
capacity. "One of the principal purposes of the qualified immunity
doctrine is to shield officers not only from liability, but also from defending
against a lawsuit." Jackson v. City of Beaumont Police Department, 958
F.2d 616 (5th Cir. 1992). It is well settled that the qualified immunity
analysis entails a two step process. First, a court must determine whether
plaintiff has alleged the violation of a constitutional right. Second, if the
plaintiff has alleged a constitutional violation, the court must decide if the
conduct was objectively reasonable in light of clearly established law at the
time the challenged conduct occurred. Glenn
v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001) (citations omitted).
In this case, Small does not
satisfy the heightened pleading requirement necessary to overcome the qualified
immunity defense because he has not plead that Sheriff Strain's actions
violated a constitutional right or were done in knowing violation of the law.
Small cannot rely on the mere assertion of Sheriff Strain's liability. See Jackson
v. City of Beaumont Police Department, 958 F.2d 616, 620 (5th Cir. 1992)
(mere conclusory allegations and bold assertions are insufficient to meet
heightened pleading standard necessary to overcome qualified immunity defense).
The complaint is devoid of any
specific factual allegations of the deficiencies in the training of the
deputies or how a policy would have altered the response of the deputies to
Small's action in licking the face of one of the state troopers. Even if Small
alleged a violation by Sheriff Strain of a constitutional right, which he did
not, Sheriff Strain would nevertheless be entitled to qualified immunity
because the complaint does not reflect that he acted objectively unreasonably.
Mere negligence is not a ground for Section 1983 liability. See Evans v.
City of Marlin, Texas, 986 F.2d 104, 108 (5th Cir. 1993). Small's claims
against Sheriff Strain in his individual capacity must be dismissed.
CLAIMS
AGAINST THE DEPUTIES
Small alleges that Deputies Sadowski, Wuerz and Caminta beat him and
sprayed him with a pepper like substance while he was handcuffed. n2 Small
describes the beating as the use of excessive force and alleges that it
included throwing him to the ground, kicking him and beating him. In response,
the deputies raise the defense of qualified immunity. As discussed above, the
court must first determine whether Small alleged the violation of a
constitutional right; and second, whether the conduct was objectively
reasonable in light of clearly established law at the time the challenged
conduct occurred. Glenn v. City of
Tyler, 242 F.3d 307, 313 (5th Cir. 2001).
At
the time of the alleged incident Small was a pretrial detainee. In Hare v.
City of Corinth, Mississippi, 74 F.3d 633 (5th Cir. 1996) (Hare II), the
Fifth Circuit said the constitutional rights of a pretrial detainee flow from
the procedural and substantive due process guarantees of the Fourteenth
Amendment. Id. at 639. A pretrial detainee cannot be subjected to
conditions or restrictions that are not reasonably related to a legitimate
governmental purpose. Id. at 640.
Under the heightened pleading requirements, the undersigned must conclude that the deputies acted
in response to Small's action in licking the face of the state trooper. While
Small attempts to suggest this may have been done in humor, even Small's
allegations do not show that the deputies knew Small was just joking or having
fun with the state trooper when he licked his face. Indeed, such a suggestion
defies credibility. In this era of concern over the transmission of disease,
the undersigned must view the actions of the deputies as their response to a
bizarre assault on a state trooper by a handcuffed and intoxicated pretrial
detainee. Under
these circumstances the allegation that the deputies used a pepper spray on
Small does not constitute a violation of his constitutional rights. See Wagner
v. Bay City, Texas, 227 F.3d 316, 324 (5th Cir. 2000)(the use of chemical
spray was objectively reasonable where the suspect physically resisted arrest).
The allegation that the
handcuffed Small was thrown to the ground, where he was kicked and beaten,
however, does allege an excessive use of force. Small has therefor alleged a
violation of his constitutional rights with respect to the alleged beating
administered by three deputies. The allegations do not show that the deputies
alleged conduct in beating Small was objectively reasonable in light of clearly
established law at the time the challenged conduct occurred. On the face of the
complaint, as amended, there is no objectively reasonable basis for the
deputies to have beaten Small. n3
Small's claim that his constitutional
rights were violated when Deputies Wuerz and Sadowski sprayed him with a pepper
like substance is dismissed with prejudice. The defendants' motion to dismiss
Small's claim that his constitutional rights were violated when he was
allegedly beaten by Deputies Wuerz and Sadowski, while handcuffed, is denied.
INSUFFICIENCY OF SERVICE OF PROCESS
The
defendants show that there has been no service of the amended complaint on
Deputy Caminta. Waivers of service were filed in the record on behalf of the
other defendants. Rec. docs. 15-17. The defendants state there was no such
waiver on behalf of Deputy Caminta, because he is no longer employed by Sheriff
Strain. Rec. doc. 19. Small replies that the attorneys for the defendants
refused to waive service on Caminta, so they cannot move for a dismissal. Small
ignores that the report and recommendation showed that if service was not
waived, the burden rested on Small to make service in one of the four ways
provided by Fed. R. Civ. P. 4(e). Rec. doc. 10 at p. 3. Small was given a
reasonable an opportunity to make service on Caminta (Rec. doc. 14), but he has
not done so. It has been more than a year since the complaint was filed.
Pursuant to Fed. R. Civ. P. 4(m) a plaintiff only has 120 days from the filing
of the complaint to make service on a defendant. The motion to dismiss Deputy
Caminta is granted.
IT
IS ORDERED as follows:
1.
The motion of the defendants to dismiss the claims against Sheriff Strain and
Deputy Caminta with prejudice (Rec. doc. 19) is GRANTED;
2.
The motion of the defendants to dismiss with prejudice the claims against
Deputies Wuerz and Sadowski with prejudice (Rec. doc. 19) is GRANTED in PART
and DENIED in PART; and
3.
Within thirty (30) calendar days of the entry of this order Deputies Wuerz and
Sadowski shall file a motion for summary judgment on the issue of whether the
injuries allegedly sustained by Small were de minimis and, if appropriate, the
issue of qualified immunity for Deputies Wuerz and Sadowski in the alleged use
of excessive force. Plaintiff will file his opposition within twenty (20)
calendar days of the defendants filing their motion for summary judgment.
New
Orleans, Louisiana, this 17 day of December, 2001.
SALLY SHUSHAN
United States Magistrate Judge
FOOTNOTES:
n1 Small contends that he
suffered severe mental trauma, bruises and irritation of the skin and eyes. As
discussed below Small's allegations do not support the claim that his constitutional
rights were violated when the deputies used pepper spray on him. Small's
remaining injuries are the alleged mental trauma and bruises. There is no
evidence before the court, but these damages may be de minimis and insufficient
to raise an excessive use of force claim.
Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997).
n2 Small has not served
Deputy Caminta and the defendants ask that the claims against him be dismissed.
This issue is discussed below.
n3 In their memorandum in
support of their motion to dismiss the defendants contend that Small was
brought to jail by a state trooper to be booked on charges of driving while
intoxicated, careless operation of a motor vehicle and battery on a police
officer. After his arrival at the jail, defendants allege Small committed
battery on the three deputies after resisting officers and striking the
deputies. Although evidence of these facts may support summary judgment if
Small cannot raise a material issue of fact, they may not be considered on a
motion to dismiss.