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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

 

 

ORDER AND REASONS

 

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.

 

CLAIMS AGAINST SHERIFF STRAIN

 

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.

 

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