United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
§ 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).
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.
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.
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).
Plaintiff timely filed his Amended Complaint (doc. 35), and
all Defendants jointly filed the motion to dismiss (doc. 36)
STANDARD OF REVIEW
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.
Alleged “Excessive Force” on May 30, 2015
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.
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.
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.
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
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).
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).
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. 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).
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).
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).
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.
Policy/Custom/Practice Regarding Taser Use
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
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.
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
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.
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.
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.
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.
the May 30, 2015 incident made the basis of this suit,
Officer Willis transferred to the City of Huntsville Policy
Voss has deployed his Taser on four to five
occasions 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
Regarding Taser Use
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.
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
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 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.
Federal Claims Asserted Against the City ...