Opinion
No. 03-2874 DP
May 4, 2004
ORDER GRANTING IN PART AND DENYING IN PART CITY OF MEMPHIS'S DISMISSAL MOTION
This matter is before the Court on the motion of Defendant City of Memphis ("City") to dismiss the Amended Complaint of Lutrcia Buckley ("Plaintiff), suing for the use and benefit of Katrina Buckley and Nicole Buckley, and as next friend of Denvey Buckley. The Amended Complaint, brought pursuant to 42 U.S.C. § 1983, alleges violations of Plaintiff's rights under the Fourth and Eighth Amendments to the United States Constitution, as well as the Tennessee Human Rights Act. The Court has jurisdiction pursuant to 28 U.S.C. § 1331. For the following reasons, the Court grants in part and denies in part the City's dismissal motion.
I. FACTUAL BACKGROUND
Plaintiff Lutricia Buckley is the ex-wife and custodial parent of Katrina Buckley and Nicole Buckley, minors, the natural children and alleged sole heirs at law of the decedent, Denvey Buckley. For the relevant time period, Buckley resided at 111 South Rempert, Memphis, Tennessee. He had a nonviolent history of mental illness and was diagnosed as schizophrenic.
On April 19, 2002, Buckley's friends and family placed several "911" calls to the Memphis Police Department ("MPD") to report that Denvey Buckley had cut his wrists at his home. When the individual defendants arrived on the scene, Buckley was unarmed and seated on his front porch with towels wrapped around his wrists. The knife that he used was inside his home.
Upon arrival and assessment of the situation, the individual defendants decided to prevent Buckley from returning inside his home and started to surround him. Buckley became agitated at the sight of several uniformed officers converging. Buckley jumped from his chair and attempted to return inside, but the officers forcibly restrained him. The individual defendants used their batons, allegedly hitting Buckley's head, neck, and torso. An officer from the MPD Crisis Intervention Team arrived during the altercation. Buckley got up from the porch and began to run toward the street, where the individual defendants tackled him, handcuffed him, continued to beat him with batons, and sprayed him with chemical agents.
Emergency medical technicians (EMTs) arrived on the scene and allegedly waited for a few minutes as the individual defendants beat Buckley. When Buckley became unresponsive, the EMTs diagnosed Buckley with cardiac arrest and unsuccessfully attempted resuscitative measures. Buckley was declared dead on arrival at a nearby emergency room.
Plaintiff filed this action on November 21, 2003 and amended her Complaint January 30, 2004. The City filed this motion for dismissal on February 13, 2004. Plaintiff responded March 9, 2004.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) enables a defendant to file a motion to dismiss for a plaintiff's failure to state a claim upon which relief can be granted. Motions to dismiss under Rule I2(b)(6) are designed to test "whether a cognizable claim has been pleaded in the complaint." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). Dismissal under Rule 12(b)(6) is appropriate where there is no set of facts which would entitle the plaintiff to recover. Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir. 1989).
In reviewing a defendant's Rule I2(b)(6) motion to dismiss, a district court should construe the complaint in the light most favorable to the plaintiff, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief, Meador v. Cabinet for Human Res., 902 F.2d 474, 475 (6th Cir. 1990). If an allegation is capable of more than one inference, it must be construed in the plaintiff's favor. Sinay v. Lamson Sessions Co., 948 F.2d 1037, 103 9-40 (6th Cir. 1991). As the Supreme Court has said, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. Spaulding, 467 U.S. 69, 73 (1984),
III. ANALYSIS
A. Standing
Standing is a requirement of Article III of the U.S. Constitution. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing must be determined at the outset of litigation, as failure of a plaintiff to show standing deprives the federal courts of jurisdiction to hear the case. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,102 (1998). Standing consists of three elements: (1) the plaintiff must have suffered an injury in fact; (2) there must be a causal connection between the injury and the defendant's conduct of which the plaintiff complains; and (3) it must be likely that the injury will be redressed by a favorable decision. Id. at 560. The plaintiff has the burden of proving standing. See Defenders of Wildlife, 504 U.S. at 561.
The City argues that Plaintiff does not have standing to bring this suit, citing Claybrook v. Birchwell, 199 F.3d 350 (6th Cir. 2000). In holding that a § 1983 claim is personal to the victim of the alleged constitutional tort, the Court there held "only the purported victim, or his estate's representative(s), may prosecute a section 1983 claim." Id. at 357. The Court allowed the co-administrators of the decedent's estate to go forward with their claims in a representative capacity "as vindicators of [their father's] individual federal rights to the extent that his tort claims survived under Tennessee law, beyond his own death," but it dismissed their personal claims for consortium. Id. at 358 n. 7.
The City's reliance on Claybrook is misplaced. Plaintiff asserts two types of claims. First, Plaintiff asserts Buckley's personal claims as his representative and seeks compensation as his survivor. Second, Plaintiff seeks compensation for her injuries and the injuries of her children resulting from Buckley's death. Claybrook dismissed only the second type of damages. See id. at 357-58. Alexander v. Beale Street Blues Company, 108 F. Supp.2d 934 (W.D. Tenn. 1999), presented a similar situation, in which the parents of a young man who died in police custody were granted standing to sue in his capacity, but not to sue for loss of consortium damages. The Alexander Court found that consortium damages were proper as to the plaintiffs' state law causes of action, citing Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999), but such damages were "inconsistent with federal law" and therefore not available under § 1983. Alexander, 108 F. Supp.2d at 953.
Consistent with Claybrook and Alexander, the Court finds that Plaintiff has standing to sue, though consortium damages are only available for her state law causes of action. Plaintiff has proven that she has standing to bring this case.
B. Federal Claims
A municipality cannot be held liable for an injury caused by its agents or employees under § 1983 based on a theory of respondeat superior. Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978). Instead, a municipality may only be liable for a constitutional tort where the action occurred pursuant to an official municipal policy. Id. In order to hold the municipality liable, the municipal policy must be the "moving force" behind the constitutional violation. City of Canton v. Harris, 489 U.S. 378, 389 (1989). Either an affirmative policy or a policy of inaction can suffice to support municipal liability. See Doe v. Claiborne County, 103 F.3d 495, 508 (6th Cir. 1996). Consequently, a cognizable § 1983 claim against a municipality includes allegations that: (1) agents of the municipality, (2) while acting under color of state law, (3) violated the plaintiff's constitutional rights, and (4) a municipal policy or policy of inaction was the moving force behind the violation. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 167-69 (1993).
1. Failure to Train
Fourth Amendment jurisprudence is the proper framework to analyze Plaintiff's claim that the City failed to train officers properly on the use of batons. The Court notes motions to dismiss only test "whether a cognizable claim has been pleaded in the complaint." Scheid, 859 F.2d at 436. The Amended Complaint reads:
By permitting either through an actual practice and pattern or deliberate indifference improper use of batons as restraining devices and devices used to strike individuals in places other than carefully targeted, non life threatening parts of the arms and legs, the City of Memphis through its Police Division was the moving force behind the tragic events described in the Amended Complaint. This policy or practice resulted in the unnecessary death of Mr. Buckley.
(Am. Compl. ¶ 34(c).) Therefore, Plaintiff alleges in the Amended Complaint that agents of the City, while acting under color of state law, violated Buckley's constitutional rights by aggressively and needlessly beating him with batons and that the City was the "moving force" behind the beatings.
The City argues that Buckley's harm was not caused by a constitutional violation, and even if there was a violation, the City is not responsible for the violation. (City's Mem. at 7-8.) The City would like the Court to make an investigation as to whether the alleged beating of Buckley was reasonable, asserting that Buckley's mental illness makes the officer's use of force automatically reasonable. (Id.) Beating an incapacitated person is clearly an unreasonable and excessive use of force. Plaintiff has pled all four elements of the prima facie case, including allegations of beating Buckley while he was unconscious, so the Court's inquiry ends there. As the Alexander Court stated in a similar context, "[n]othing else is required at this juncture." Alexander, 108 F. Supp.2d at 949. 2. Failure to Investigate and Discipline Fourth Amendment jurisprudence is also the proper framework to analyze Plaintiff's claim that the City failed to investigate or discipline officers on the use of excessive force. Plaintiff established elements one, two, and three in the failure to train analysis. The Court considers whether Plaintiff has pled element four — a City policy that was a "moving force" behind the use of excessive force. Plaintiff alleges that the City, and its "high level command staff in particular, had a "deliberate indifference" to its police officers' use of excessive force which led to the foreseeable result of Buckley's death. (Am. Compl. ¶ 34(d).) She also argues that Officer Schilk was a "loose cannon" who "himself sought 'direction on problems he was experiencing' . . . was never effectively managed, continued to pose an unreasonable threat to fellow officers and members of the public, and was permitted to continue his patrol duties" leading to his alleged abuse of Buckley. (Am. Compl. ¶ 34(b).)
The City argues that Plaintiff's claims under a failure to investigate and discipline theory amount to a ratification theory. Defendant states, "[a]ny action taken by the City after Buckley's death, could not, logically, have been the moving force behind his death." (City's Mem. at 6.) A ratification theory, in which a person alleges that the municipality ratified the unconstitutional conduct after the fact, does not allege a moving force behind a constitutional violation. Alexander, 108 F. Supp.2d at 949. Ratification occurs after the conduct, making the municipality's ratification unable to be the moving force before the conduct.
Plaintiff has alleged more than a ratification theory. The Amended Complaint reads, "by failing to enact meaningful penalties for improper or excessive force on the part of the MPD officers as of the date of the Buckley incident, the City of Memphis was the moving force behind the constitutional deprivations." (Am. Compl. ¶ 34(d) (emphasis added).) Plaintiff alleges that the City failed to take action by investigating or disciplining the conduct of its officers prior to the date of Buckley's death. Therefore, Plaintiff argues that the City has engaged in a policy of continued acquiescence to the use of excessive force, and not that it merely ratified the officers' use of excessive force in an isolated case. Cf. Alexander, 108 F. Supp.2d at 949 ("Although ratification might tend to establish the existence of a policy of acquiescence that in itself was a 'moving force,' mere ratification of the conduct at issue by itself cannot legally suffice as a 'moving force.'")
Plaintiff alleges a policy of failure to investigate and discipline, which establishes the final element of a prima facie case. Accordingly, the Court denies Defendant's dismissal motion on all of Plaintiff's § 1983 claims.
3. Eighth Amendment
Plaintiff cannot state a claim under the Eighth Amendment. Buckley was not incarcerated or even arrested when the incident with Defendants occurred. The Sixth Circuit has established that alleged misconduct that occurs prior to conviction does not trigger Eighth Amendment protections. Bass v. Robinson, 167 F.3d 1041, 1048-1049 (6th Cir. 1999). Plaintiff concedes "the Eighth Amendment should have no applicability here." (Pl.'s Resp. at 13.) Therefore, the Court grants the City's dismissal motion as to this claim.
C. State Law Claims
1. Negligence
The City attacks Plaintiff's negligence claim on two grounds. First, the City asserts that Plaintiff pled the claim inadequately under Federal Rule of Civil Procedure 8(a). Second, the City asserts that even if the pleadings were adequate, Tennessee has not removed its immunity to suit for the conduct at issue.
Federal Rule of Civil Procedure 8(a) provides, in relevant part:
A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks.
The City asserts that Plaintiff must plead compliance with the Tennessee Government Tort Liability Act ("GTLA"), Term. Code. Ann. §§ 29-20-201 et seq., to establish jurisdiction and thus comply with Federal Rule of Civil Procedure 8(a). More specifically, the City argues that the negligence claim requires Plaintiff affirmatively to plead the City's waiver of its immunity as a jurisdictional requirement. In City of Lavergne v. Southern Silver, Inc., 872 S.W.2d 687, 690-91 (Term. Ct. App. 1993), the court held that the sovereign immunity provided by the GTLA is a jurisdictional prerequisite. This Court has no reason to believe that the Tennessee Supreme Court would find otherwise if confronted with the question. Therefore, the Court finds that in order to bring a negligence claim against the City, Plaintiff was required to plead compliance with the GTLA in order to satisfy Federal Rule of Civil Procedure 8(a). However, under the authority of Federal Rule of Civil Procedure 15, the Court grants Plaintiff leave to amend her complaint within ten (10) days of the entry of this order to comply with the jurisdictional pleading requirement.
Assuming Plaintiff so amends, the Court addresses the City's argument pertaining to the legal sufficiency of the negligence claim. The City asserts that even if the pleadings were adequate under Federal Rule of Civil Procedure 8, it is still entitled to dismissal because Tennessee has not removed the City's immunity from suit for the underlying conduct.
Count II of the Amended Complaint sets forth a negligence claim against the City. Plaintiff asserts that once MPD officers subdued Buckley, they were under a duty of care to provide for his well-being. Plaintiff further asserts that the officers breached this duty in several ways, and that such breaches directly and proximately caused Buckley's death, for which the City is liable.
Tennessee has removed governmental immunity from suit for injuries "proximately caused by a negligent act or omission of any employee within the scope of his employment." Term. Code Ann. § 29-20-205. The Tennessee Supreme Court permits municipal liability for the assault and battery torts of local government employees, which were proximately caused by the negligence of the municipality. Limbaugh v. Coffee County Med. Ctr., 59 S.W.3d 73, 84 (Tenn. 2001) (recognizing assault and battery as exceptions to a general rule of municipal immunity for intentional torts). Plaintiff analogizes Buckley's death to the situation in Limbaugh. In Limbaugh, a county was held not to be immune from suit when its nursing home employee was known to be dangerous and allegedly beat a patient. See id. at 84. Plaintiff has alleged that individual defendant Kurtis Schilk was a "loose cannon" who was bound to go off. (Am. Compl. ¶ 34(a), (b).) Therefore, Plaintiff in the instant case has alleged a situation in which the City was aware that its employee presented a threat to its residents, and the City negligently declined to address the problem.
Next the Court investigates whether the City is nevertheless immune from suit under its ability to perform discretionary functions without judicial review. The Tennessee Supreme Court has adopted the "planning-operational" test to determine whether a municipality's act is within the scope of the "discretionary function" immunity. Bowers v. City of Chattanooga, 826 S.W.2d 427, 430 (Tenn. 1992). Under this test, the City may not be held liable for deliberate, policy-like decisions made within its discretion, but it may be held liable for decisions that were purely functional or operational. Id. Plaintiff has alleged that the City failed to follow the officer discipline guidelines that it created, so if Plaintiff proves that allegation at trial, the City will not be entitled to discretionary function immunity. Limbaugh, 59 S.W.3d at 85. On this dismissal motion, Plaintiff's allegations are sufficient. See Fortenberry v. George, No. E2000-02984, 2002 WL 1446675, at *7 (Term. Ct. App. July 3, 2002) (holding this discretionary function inquiry is a fact question best addressed at trial).
Accordingly, the Court denies the City's motion to dismiss, on the condition Plaintiff amends her Complaint to conform with the pleading requirements set forth earlier in this order.
2. THRA
Plaintiff also brings a claim under the Tennessee Human Rights Act ("THRA"), Term. Code Ann. § 4-21-101 et seq. The THRA preserves the rights of individuals from discrimination in employment, public accommodations, housing, financing, and other arenas. See id Plaintiff concedes that "under Tennessee's interpretation of its Human Rights Act, T.C.A. 4-21-101, she would have no independent cause of action." (Pl.'s Resp. at 13-14.) Therefore, the Court grants the City's dismissal motion on Plaintiff's claim under the THRA.
IV. CONCLUSION
The City failed to show that no set of facts exists on which the Court may grant relief as to Plaintiff's Fourth Amendment claims pursuant to 42 U.S.C. § 1983 or her negligence claim. Accordingly the Court DENIES the City's dismissal motion on Plaintiff's Fourth Amendment and negligence claims, on the condition Plaintiff amends her Complaint to conform with pleading requirements. The Court GRANTS Plaintiff ten (10) days to make such an amendment.
For Plaintiff's failure to establish a prima facie case by a preponderance of the evidence, the Court GRANTS the City's dismissal motion on Plaintiff's THRA claim and her Eighth Amendment claim pursuant to 42 U.S.C. § 1983.
IT IS SO ORDERED.