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Stephens v. City of Tarrant

United States District Court, N.D. Alabama, Southern Division

June 28, 2017

MAJOR STEPHENS, Plaintiff,
v.
CITY OF TARRANT, et al., Defendants.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         This § 1983 matter asserts federal claims against the City of Tarrant and various officials with its police department for excessive use of force; failure to train, supervise, discipline and investigate use of force; and various state law claims. It comes before the court on the Defendants' “Motion to Dismiss Plaintiff's Amended Complaint.” (Doc. 36). The Plaintiff filed a response (doc. 38), and the Defendants filed a reply (doc. 42).

         For the reasons stated in this Memorandum Opinion, the court WILL GRANT IN PART and DENY IN PART this motion to dismiss. More specifically, the court FINDS that all claims in Counts I and IV are due to be GRANTED; and all claims in Counts II, III and V are due to be DENIED.

         I. PROCEDURAL HISTORY

         This is the second round of briefing attacking the sufficiency of the pleadings. The City filed the first motion to dismiss (doc. 8), which the court granted in part and denied in part (doc. 25). The court dismissed with prejudice all claims under the substantive component of the Due Process Clause of the Fourteenth Amendment, and dismissed without prejudice the following claims asserted against the City: Count I's claim for failure to investigate and discipline because the alleged failures occurred after the incident made the basis of the suit and could not have been the cause or moving force behind them; and Count II's claim for failure to train, supervise, investigate, and discipline regarding the use of a patrol vehicle, because the claim did not sufficiently allege that the City had notice of a need to train or supervise in this area and that any failure on the part of the City was the moving force behind an alleged Constitutional violation. The court denied the City's motion to dismiss as to the claim in Count I alleging a failure to train and supervise regarding use of force involving Tasers, in violation of the Fourth Amendment.

         On January 16, 2017, the Plaintiff filed a motion for leave to amend the complaint (doc. 28), attaching the proposed pleading (doc. 28-1). The Defendants opposed the motion (doc. 80), and the Plaintiff's filed a reply (doc. 32). The court granted in part and denied in part the motion to amend, allowing the Plaintiff to file an amended complaint but not the one attached to the motion, as it was a shotgun complaint and suffered from other problems of clarity. (Doc.33).

         The Plaintiff timely filed his Amended Complaint (doc. 35), and all Defendants jointly filed the motion to dismiss (doc. 36) addressed here.

         II. STANDARD OF REVIEW

         The court set out the standard of review in its previous Memorandum Opinion addressing the first motion to dismiss (doc. 24), and incorporates by reference that standard here.

         III. FACTS

         The Alleged “Excessive Force” on May 30, 2015

         The parties had conducted discovery before filing the Amended Complaint, which may explain why the facts alleged here have changed from those stated in the original Complaint. The alleged excessive force occurred at approximately noon on May 30, 2015. According to the Amended Complaint, the Plaintiff, Major Stephens, was standing, unarmed, in an apartment parking lot, when two officers in a patrol car started driving toward him. The Amended Complaint does not explain why the officers were interested in approaching Stephens. When Stephens tried to get away on foot from the approaching car, Sergeant Voss accelerated and drove the car over the curb and onto the sidewalk, striking Mr. Stephens and pinning him between the car and some other surface. Mr. Stephens extricated himself and continued to move down the street on foot, away from the officers. The Amended Complaint does not allege any facts indicating that Mr. Stephens was a threat to the officers, but it does indicate that he was attempting “to retreat” from them.

         As Mr. Stephens retreated, the other officer who had been in the car, Defendant Justin Willis, commanded him to stop. Mr. Stephens immediately complied with the command and attempted to surrender. However, Officer Willis ignored his compliance and his attempt to surrender, immediately deploying his Taser toward Mr. Stephens from about fifteen to twenty feet away. At the time of this deployment, Mr. Stephens was facing Officer Willis, and the upper prong of the Taser struck Mr. Stephens in the face, with electrical current entering his right eyeball. The lower Taser prong struck his lower pant leg. Willis continued to discharge electrical current into Stephens's head and eyeball for about five seconds. At no point prior to deploying the Taser did any officer attempt to apply handcuffs to Mr. Stephens.

         As a result of the Taser strike, Mr. Stephens's right eye was damaged, and Mr. Stephens has undergone extensive medical treatment, which included the removal of his right eye.

         Prior Taser Events[1]

         In his Amended Complaint, Mr. Stephens recounts the following prior events involving Tasers to establish that the City was on notice that its officers needed Taser training but that the City was deliberately indifferent to that need; and further, to establish that the City had a policy of failing to investigate use of force incidents involving Tasers and of failing to discipline its officers when the use of Tasers was unlawful.

         (1) Prior to May 30, 2015, an unidentified City officer “unlawfully” deployed his Taser against a citizen in excess of 20 seconds, causing the citizen to be paralyzed and affecting his mental functioning. Despite the filing of a formal citizen complaint and lawsuit regarding this incident, the City “failed to discipline, provide any remedial training, or even conduct a formal investigation. . . .” (Amend. Compl. Doc. 35, at 5 ¶ 21).

         (2) Prior to May 30, 2015, an unidentified City officer, when in the midst of a personal domestic dispute, “unlawfully” used his Taser against his significant other. The City failed to discipline the officer who deployed the Taser; failed to provide remedial training to that officer regarding Taser use; and failed to conduct a formal investigation regarding the incident. (Amend. Compl. Doc. 35, at 5-6 ¶ 22).

         (3) Prior to May 30, 2015, an unidentified City officer, when in the midst of a personal domestic dispute, “unlawfully” used his Taser against the significant other's dog.[2] The City failed to discipline the officer who deployed the Taser; failed to provide remedial training to that officer regarding Taser use; and failed to conduct a formal investigation regarding the incident. (Amend. Compl. Doc. 35, at 6 ¶ 23).

         (4) In December of 2012, Defendant Officer Willis deployed his Taser for twenty-five seconds. The Amended Complaint refers to an “entry” reflecting this lengthy deployment, but does not identify in what document this “entry” was located or state whether other City officers or officials were aware prior to May 30, 2015 of this entry and/or lengthy Taser deployment. The City failed to discipline Officer Willis for this lengthy deployment; failed to provide remedial training to him regarding Taser use; and failed to conduct an investigation regarding the incident. (Amend. Compl. Doc. 35, at 13 ¶ 60). The Amended Complaint further states that Officer Willis has deployed his Taser “on an individual for at least five [ ] seconds on multiple occasions, ” but it does not provide any other details, such as when these events occurred. (Amend. Compl. Doc. 35, at 7-8 ¶ 32).

         (5) At some unidentified date prior to May 30, 2015, Defendant Officer Willis deployed his Taser on a citizen, and the Taser prongs failed to land on the citizen's lower center mass as required but landed instead on the citizen's upper back and pants leg. The City did not investigate this Taser deployment. The Amended Complaint lacks any other details about this event. (Amend. Compl. Doc. 35, at 11 ¶ 48).

         The Amended Complaint states: “Out of the numerous Taser deployments on Defendant City citizens discovered in this case, only one (1) of the Tasings was executed properly regarding placement of the Taser prongs, ” but it does not state which one. (Amend. Compl. Doc. 35, at 11 ¶ 49). These five deployments listed as “Prior Taser Events” are the only ones specifically listed in the Amended Complaint. The Amended Complaint does not specifically allege that the City or Defendant Officers (other than the officer deploying the Taser) were aware prior to May 30, 2015 that these deployments involved improperly placed Taser prongs.

         City Policy/Custom/Practice Regarding Taser Use

         In addition to these specific events, the Amended Complaint states that, although the City officers' Taser use was “common, ” the City has implemented no written policy, and no specific procedures and practices regarding use of force with Tasers to guide and monitor the actions of officers.

         Further, the Amended Complaint states that the City has a custom of not investigating use of force reports or citizen claims about officer use of force, including Taser use, either informally or formally, to determine whether the use was appropriate and/or constitutional. Nevertheless, the Amended Complaint refers to a “use of force report.” The City has no written policy requiring an investigation, whether formal or informal, after Taser deployment to determine whether the use was appropriate and/or constitutional. Rather, the City's custom and practice is to use “plain, everyday, common sense” in determining whether to investigate. The Amended Complaint states that the current policy of the City, presumably based on custom and practice, is to take the word of the officer deploying force regarding the facts and context of the use of force. That officer's “word” is not based on officer interviews, which are not required and are not performed, but is based simply on what the officer reported on the use of force report. When officers deploy force, the City's custom and practice requires no determination regarding the appropriateness or constitutionality of the force; requires no interviews of either the officer using force or witnesses to the use of force; and does not require that an independent investigation be conducted.

         Lieutenant Rice, who is currently responsible for the Patrol and Detective divisions, is tasked with reviewing reports, radio logs, detective reports, and supervising all the sergeants and police officers, including Officer Willis during his tenure. He also is responsible for receiving and investigating citizen complaints, and maintaining them and any other Internal Affairs files in his personal office. The officers, including Officer Willis during his tenure at Tarrant, submit use of force reports to Lieutenant Rice, and those reports apparently receive some sort of review, because the Amended Complaint reflects that Officer Willis occasionally had reports sent back to him for revision. However, the only requests for revision communicated to Officer Willis involved correction of grammatical errors or punctuation, even when his reports included inconsistencies. Other than the grammatical corrections, Officer Willis has received no response to his use of force reports, no investigation of multiple Taser deployments, and no discipline as a result of use of force, including Taser deployments.

         Before he became chief in 2010, Chief Reno previously held the position of Lieutenant in charge of investigating complaints against the City officers, including complaints of excessive force. During his tenure in that position, he failed to conduct any investigation based on those complaints and received no direction from the prior Chief of Police to do so. Now that Lieutenant Rice holds that position, Rice is responsible not only for investigating citizen complaints but also for providing copies of such complaints to Chief Reno. Despite that obligation, the Chief has received a copy of only one citizen complaint during his tenure as chief: the lawsuit involving a Taser strike that left the victim paralyzed described above. The Amended Complaint states, on one hand, that during his tenure as chief, Reno has failed to review a single citizen complaint regarding excessive force since 2012. On the other hand, the Amended Complaint states that Chief Reno did receive one complaint-the Taser deployment resulting in paralysis-but the Amended Complaint alleges that the Chief failed to follow up to ensure that the City conducted a formal investigation of this incident and provided remedial training. The Amended Complaint implies but does not specifically state that the City received more complaints than the one excessive force complaint forwarded to the Chief, and that Rice failed to advise the Chief of the additional complaints.

         The Chief has never asked Lieutenant Rice about how and if he conducts an investigation to determine whether an officer using force did so in compliance with the City's use of force custom/policy. Further, since becoming Chief, he has never reviewed any of the Internal Affairs files regarding use of force complaints that Lieutenant Rice maintains. The Chief has failed to institute any written policy regarding when a use of force requires investigation.

         The City has never disciplined any officer for excessive use of force with a Taser, despite “admissions of Defendants Chief and Willis and Sergeant Voss [that] prior violations of Defendant City policy” had occurred. (Doc. 35, at 7 ¶ 29). The Amended Complaint does not provide the specific content of the admissions, and does not specify whether the admissions of prior violations involved use of force with a Taser.

         The Amended Complaint gives examples of City officers who have used their Tasers on multiple occasions without investigation or discipline, although it provides no facts surrounding the deployments except the five listed in the “Prior Taser Events” section. It makes confusing statements that are difficult to decipher regarding the circumstances surrounding the Taser incidents, including the number and dates of those incidents and the content of the “admissions” of policy violations that certain officers made about them.

         Since the May 30, 2015 incident made the basis of this suit, Officer Willis transferred to the City of Huntsville Policy Department.

         Sergeant Voss has deployed his Taser on four to five occasions[3] and, like Officer Willis, has never been interviewed regarding his use of force nor has any City official asked him to provide his Taser to check whether it has been deployed. The City has not disciplined Voss for his Taser deployment.

         Training Regarding Taser Use

         The Amended Complaint states that City failed to provide its officers with “adequate” training in the use of Tasers. For example, Officer Willis received Taser training when he was originally hired that was limited to a video class and written questions without an opportunity to practice and with no updated training throughout his entire employment with the City. Mr. Stephens alleges that the City's Taser training was inadequate because: (1) no training occurred on how to stop the electrical current from entering an individual after Taser deployment, despite Taser training recommendations to do so; (2) no training occurred on how or where to point the Taser, resulting in a majority of reported Taser uses having the Taser prongs land incorrectly; (3) no training occurred on pointing the Taser light at a suspect prior to deploying the Taser to encourage compliance without deployment, despite Taser training recommendations to do so; (4) the officers received no opportunity to practice using the Tasers prior to deploying them on citizens, despite Taser training recommendations to have at least two practice deployments.

         Excessive Force Generally

         The Amended Complaint also asserts that City officers have “a widespread history of excessive force.” (Doc. 35, at 14 ¶ 66). Although the Amended Complaint does not provide specific examples of that “widespread” history, other than the Taser incidents described previously, it lists the following general “systemic deficiencies” on the part of the City:

a. failing to implement policies, procedures and practices regarding use of force that appropriately guide and monitor the actions of Tarrant Police Officers; and
b. failing to supervise Defendant City Police Officers and Supervisors adequately to prevent the reoccurrence of the use of excessive force.

(Doc. 35, at 15-16 ¶ 66). The Amended Complaint also asserts that Officer Willis never took an officer Continuing Education course that covered use of force or reporting use of force.

         IV. DISCUSSION

         The Defendants assert in their motion to dismiss that all claims in the Amended Complaint are due to be dismissed: Count I-failure to train and supervise use of force, brought pursuant to § 1983 for violations of rights under the Fourth and Fourteenth[4] Amendment, and asserted against the City and against the Chief Reno and Lieutenant Rice in their official capacities only; Count II-failure to discipline and investigate, brought pursuant to § 1983 and asserted against the City and against the Chief Reno and Lieutenant Rice in their individual capacities; Count III-use of excessive force with a Taser, brought pursuant to § 1983 and asserted against Officer Willis in his individual capacity; Count IV-tort of outrage, brought under Alabama law and asserted against Officer Willis, Chief Reno, and Lieutenant Rice; and Count V-assault and battery, brought under Alabama law and asserted against Officer Willis.

         A. Federal Claims Asserted Against the City ...


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