Howe v. City of Enterprise

          MEMORANDUM OPINION AND ORDER

          EMILY C. MARKS CHIEF UNITED STATES DISTRICT JUDGE.

          Now pending before the court is the Recommendation of the Magistrate Judge (doc. 74) which recommends that the defendants' motion to dismiss the second amended complaint (doc. 55) be granted in part and denied in part. On October 22, 2018, the plaintiff filed objections to the Recommendation (doc. 79) limited “solely to the court's recommendation for dismissal of [his] federal claims for excessive force under the Fourth Amendment against [defendants] Arias and Partridge (count two).” (Id. at 2). The defendants have filed a response to the plaintiff's objections. (Doc. 82). Consequently, the Court will only specifically address in this memorandum opinion the plaintiff's objections to dismissal of count two of the second amended complaint.

         A district court judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 18 U.S.C. § 636(b)(1). The court has conducted an independent and de novo review of the Recommendation as a whole as well as those portions to which objections have been made. For the reasons that follow, the plaintiff's objections are due to be overruled and the Recommendation adopted.

         DISCUSSION

         In count two, the plaintiff alleges that “defendants, (sic) Partridge and Arias intentionally exercised deadly force by shooting their guns at plaintiff without any objectively reasonable justification to do so.” (Doc. 51 at 27-28, ¶ 119). The Magistrate Judge concluded that defendants Arias and Partridge were entitled to qualified immunity on this count because the plaintiff had “failed to plead facts that plausibly establish that the officers committed a constitutional violation.” (Doc. 74 at 57). The Magistrate Judge also concluded that even if the plaintiff had alleged sufficient facts to establish a constitutional violation, the defendants were still entitled to qualified immunity because “the plaintiff has failed to meet his burden of demonstrating that the officers violated a right that was clearly established on the date in question.” (Id.)

         A decision about qualified immunity is “completely separate from the merits of the action” and is decided by the Court because qualified immunity is not merely a defense to liability but rather immunity from suit Plumhoff v. Rickard, 572 U.S. 765, 771-72 (2014); Pearson v. Callahan, 555 U.S. 223, 237 (2009).

         Entitlement to qualified immunity is for the court to decide as a matter of law. Specifically, a court considering a defendant's claim of qualified immunity must address the following question of law:

[W]hether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, in cases where the district court has denied summary judgment for the defendant on the ground that even under the defendant's version of the facts the defendant's conduct violated clearly established law, whether the law clearly proscribed the actions the defendant claims he took.

Mitchell, 472 U.S. at 528, 105 S.Ct. 2806; see also Harlow, 457 U.S. at 818, 102 S.Ct. 2727 (“[T]he judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred.”); Cottrell v. Caldwell, 85 F.3d 1480, 1488 (11th Cir. 1996) (“Qualified immunity is a legal issue to be decided by the court....”); Stone v. Peacock, 968 F.2d 1163, 1166 (11th Cir. 1992) (“The law is now clear ... that the defense of qualified immunity should be decided by the court, and should not be submitted for decision by the jury.”); Hudgins v. City of Ashburn, 890 F.2d 396, 403 (11th Cir. 1989) (“[T]he availability of qualified immunity necessarily is a question of law.”).

Simmons v. Bradshaw, 879 F.3d 1157, 1163 (11th Cir. 2018). See also, Stephens v. DeGiovanni, 852 F.3d 1298, 1321 (11th Cir. 2017) (“In deciding whether an officer is entitled to summary judgment based on qualified immunity, the question of whether the force used by the officer in the course of an arrest is excessive is a “‘pure question of law, '” decided by the court.” Myers v. Bowman, 713 F.3d 1319, 1328 (11th Cir. 2013) (quoting Scott [v. Harris], 550 U.S. [372, ] [] 381 n.8, 127 S.Ct. [1769, ] [] 1776 n.8)).

         “The defense of qualified immunity completely protects government officials performing discretionary functions from suit in their individual capacities unless their conduct violates ‘clearly established statutory or constitutional rights of which a reasonable person would have known.'” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). See also, Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007). To receive qualified immunity, the defendants must first demonstrate that they were acting within the scope of their discretionary authority when the allegedly wrongful acts occurred. Cottone, 326 F.3d at 1357; Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). There is no dispute that defendants Arias and Partridge were acting within the course and scope of their discretionary authority during their encounter with the plaintiff. Thus, the burden shifts to the plaintiff to demonstrate that the defendants are not entitled to qualified immunity. Cottone, 326 F.3d at 1358.

         To satisfy his burden, the plaintiff must show two things: (1) that the defendants committed a constitutional violation, and (2) that the constitutional right the defendants violated was “clearly established.” Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004). “Public officials are immune from suit under 42 U.S.C. § 1983 unless they have violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” City and County of San Francisco, Ca. v. Sheehan, ___ U.S. ___, ___, 135 S.Ct. 1765, 1774 (2015) (internal citations omitted).

“To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he was doing violates that right.” Ibid. (brackets and internal quotation marks omitted). “When properly applied, [qualified immunity] protects all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. ___, ___, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted). “We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Id., at ___, 131 S.Ct. at 2083.

Taylor v. Barkes, ___ U.S. ___, ___, 135 S.Ct. 2042, 2044 (2015).

         “If the law is not clearly established, then the court should dismiss the case against the government official.” Merricks v. Adkisson, 785 F.3d 553, 559 (11th Cir. 2015).

         The plaintiff first argues that the Magistrate Judge erred in finding that he had not stated a plausible constitutional claim under the Fourth Amendment when she incorrectly assumed facts that were not included in the second amended complaint. Specifically, the plaintiff complains that the Magistrate Judge made a “judicial leap into the jury's fact-finding role.” (Doc. 79 at 8). The plaintiff objects to the Magistrate Judge's finding that he was a threat to the officers because he opened the door to his residence with a gun in his hand. The plaintiff further argues that in considering the facts of this case, “the court ignored the ...