Opinion
CASE NO. 4:10cv343-RH/WCS
03-11-2011
ESTATE OF Nabel BASHIMAM, etc., et al., Plaintiffs, v. CITY OF TALLAHASSEE et al., Defendants.
Attorneys and Law Firms Melissa Ann Horwitz, Law Offices of Richard Johnson, Richard Errol Johnson, Richard E. Johnson PA, James Vernon Cook, James V. Cook PA, Tallahassee, FL, for Plaintiffs. Billy Jack Hendrix, City Attorneys Office, Brett Michael Waronicki, Lisa Ann Barclay, Michael Patrick Spellman, Robert Jacob Sniffen, Sniffen & Spellman PA, Tallahassee, FL, for Defendants.
Only the Westlaw citation is currently available.
Attorneys and Law Firms
Melissa Ann Horwitz, Law Offices of Richard Johnson, Richard Errol Johnson, Richard E. Johnson PA, James Vernon Cook, James V. Cook PA, Tallahassee, FL, for Plaintiffs.
Billy Jack Hendrix, City Attorneys Office, Brett Michael Waronicki, Lisa Ann Barclay, Michael Patrick Spellman, Robert Jacob Sniffen, Sniffen & Spellman PA, Tallahassee, FL, for Defendants.
ORDER DISMISSING THE CLAIMS AGAINST DEFENDANT McNEIL AND OTHERWISE DENYING THE MOTIONS TO DISMISS
Robert L. Hinkle, United States District Judge
*1 This case arises from a police shooting. An officer shot and killed a person he was trying to arrest and shot at the person's companion. The decedent's personal representative and the companion have sued the officer, the police chief, and the city. The defendants have moved to dismiss. This order dismisses the claims against the police chief but denies the motions to dismiss the claims against the officer and the city. The order also denies the officer's motion for a more definite statement.
I
The plaintiffs' claims as now pending are set out in the second amended complaint. On the defendants' motions to dismiss, the second amended complaint's factual allegations—though not its legal conclusions—of course must be accepted as true. This order sets out the facts as alleged.
City of Tallahassee police officer Richard Pulido saw a pickup truck at a gas station and ran its license plate. It was registered to Nabel Bashimam. A Colorado warrant was out for Mr. Bashimam's arrest for violating conditions of probation on a drug conviction.
Officer Pulido approached the driver and learned that it was indeed Mr. Bashimam. Officer Pulido attempted an arrest. Mr. Bashimam fled on foot, and Officer Pulido gave chase, also on foot. The truck's single passenger, Melissa Dixon, began driving the truck.
Mr. Bashimam jumped into the truck's bed. Officer Pulido followed Mr. Bashimam into the truck's bed and shot him several times, killing him. Officer Pulido next shot at Ms. Dixon, but a metal support in the seat back stopped the bullet. She suffered injuries from shattered glass or shrapnel.
II
In the second amended complaint, Mr. Bashimam's personal representative and Ms. Dixon assert that Officer Pulido used excessive force in violation of the Fourth Amendment. The plaintiffs have named as defendants not only Officer Pulido but also the police chief at the time—Walter McNeil—and the City of Tallahassee. The plaintiffs seek compensatory damages from all defendants and punitive damages from Officer Pulido and Chief McNeil. The personal representative also asserts a claim on behalf of Mr. Bashimam's survivors—his parents—for their mental anguish.
Officer Pulido has moved to dismiss or for a more definite statement. The City and Chief McNeil have moved to dismiss.
III
The second amended complaint is easily sufficient to state a claim on which relief can be granted against Officer Pulido. It alleges that Mr. Bashimam was fleeing but otherwise threatening nobody. It alleges he posed no danger to anyone and that Officer Pulido had no reason to believe otherwise. And it alleges that Officer Pulido had no reason to believe Mr. Bashimam had committed a violent crime. If these are the facts—as must be accepted on the motion to dismiss—shooting Mr. Bashimam was unconstitutional as a matter of clearly established law:
Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.
*2 Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 85 L.Ed. 2d 1 (1985).
Officer Pulido says, though, that the second amended complaint fails to state a claim because it does not sufficiently allege a basis for recovery for the survivors' mental anguish. This is not so. On any fair reading, the second amended complaint alleges a claim precisely as authorized by the Florida wrongful-death statute. See Fla. Stat. § 768.21. When a person dies as the result of a constitutional violation in Florida, the personal representative may recover under 42 U.S.C. § 1983—on behalf
of the estate and survivors—the damages authorized by the Florida wrongful-death statute. This is so because § 1983 incorporates state remedial provisions of this kind. See Carringer v. Rodgers, 331 F.3d 844, 850 (11th Cir. 2003); Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961). And Officer Pulido does not need a more definite statement; the second amended complaint is clear enough on these points.
Officer Pulido says that if this is the basis for recovery, the claim is barred by the statute of limitations, because the case was filed more than two years—though less than four—after the shooting. The statute of limitations in Florida for a wrongful-death claim is indeed two years. But the statute of limitations for a § 1983 claim in Florida is four years, even when the claim results from a death. This is so because, as the United States Supreme Court and the Eleventh Circuit have both squarely held, there is but a single statute of limitations for § 1983 claims that arise in a state, and it is the state's residual personal-injury statute of limitations. See Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L.Ed. 2d 594 (1989); Jones v. Preuit & Mauldin, 876 F.2d 1480 (11th Cir. 1989). See also Niesen v. City of Clearwater, No. 8:08-cv-1599-T-30TBM, 2009 WL 1046122 (M.D. Fla. April 20, 2009) (applying—without discussion—Florida's residual personal-injury four-year statute of limitations to a § 1983 claim in Florida arising from a wrongful death). The Eleventh Circuit explained this in Jones:
[Under a prior, now-abandoned approach], federal courts in section 1983 actions applied the limitations period of the most closely analogous action under the law of the forum state, providing that that limitations period was not inconsistent with federal policy. See, e.g., Board of Regents v. Tomanio, 446 U.S. 478, 100 S. Ct. 1790, 64 L.Ed. 2d 440 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S. Ct. 1716, 44 L.Ed. 2d 295 (1975). This led to a variety of limitations periods being applied to section 1983 actions in a given state depending on the characterization of a particular action. See generally Burnett v. Grattan, 468 U.S. 42, 49-50, 104 S. Ct. 2924, 2929-30, 82 L.Ed. 2d 36 (1984); see, e.g., Hess v. Eddy, 689 F.2d 977 (11th Cir. 1982) (two years for wrongful death), cert. denied, 462 U.S. 1118, 103 S. Ct. 3085, 77 L.Ed. 2d 1347 (1983); Nathan Rodgers Construction & Realty Corp. v. City of Saraland, 670 F.2d 16 (5th Cir. Unit B. 1982) (one year for denial of sewer permit); see also Jones v. Preuit & Mauldin, 763 F.2d [1250,] 1253 n. 1 [ (11th Cir. 1985) ] (collecting cases in Alabama). The district court in this case characterized plaintiff's claim as most analogous to claims brought under Alabama's residual statute of limitations, Ala.Code § 6-2-39(a)(5) (repealed) (1985). That section contained a one-year limitations period. Because plaintiff filed suit twenty-two months after his cause of action arose, the district court dismissed the case as time-barred. Plaintiff appealed.
*3 While the appeal was pending, the Supreme Court changed the way federal courts select the most appropriate statute of limitations in section 1983 actions. In Wilson v. Garcia, 471 U.S. 261, 105 S. Ct.1938, 85 L.Ed. 2d 254 (1985), the Supreme Court abandoned the patchwork approach followed in Johnson, supra, and held that principles of uniformity, certainty, and efficiency required application of a single limitations period for all actions brought in a single state under section 1983. The Court then held that the forum state's statute of limitations for personal injury actions should provide that single limitations period. Id. at 275-76, 105 S. Ct. at 1946-47.
A panel of this Court applied Wilson on the appeal from the district court's dismissal of plaintiff's case. The Court held that Alabama's six-year statute of limitations for trespass, Ala.Code § 6-2-34(1), should apply rather than the residual personal injury statute of limitations, Ala.Code § 6-2-39(a)(5) (repealed). 763 F.2d at 1256. Plaintiff filed suit well within this six-year period. Consequently, the panel reversed the district court's dismissal and remanded the case for further proceedings.
On remand, the district court granted summary judgment to defendants. On appeal, a panel of this Court affirmed in part and reversed in part. On petition for rehearing en banc, this Court vacated the panel opinion and granted the petition for rehearing. A sharply divided Court affirmed the grant of summary judgment. After the plaintiff filed a petition for writ of certiorari to the United States Supreme Court, the Supreme Court decided Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L.Ed. 2d 594 (1989). In Owens, the Court held that, in states like Alabama with more than one statute of limitations for personal injury actions, the residual personal injury statute of limitations applies to all actions brought under section 1983.
Jones, 876 F.2d at 1482.
In Florida, the residual personal-injury statute of limitations is four years. It applies to all § 1983 actions arising in Florida. The plaintiffs filed this case within four years after the shooting. The statute of limitations does not bar the claims.
In sum, the second amended complaint adequately alleges that Officer Pulido shot and killed Mr. Bashimam and shot at and injured—with broken glass and shrapnel—Ms. Dixon. The second amended complaint adequately alleges that this was unconstitutionally excessive force. The second amended complaint states a claim against Officer Pulido on which relief can be granted and is not barred by the statute of limitations.
IV
The result is different for Chief McNeil. The second amended complaint alleges no personal involvement by Chief McNeil in any of the events at issue. It asserts, instead, a claim for "supervisory liability."
At least prior to Ashcroft v. Iqbal, 556 U.S. —, 129 S. Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009), the supervisory-liability standard in this circuit was this:
[S]upervisory liability under § 1983 occurs either when the supervisor personally participates in the alleged unconstitutional conduct or when there is a causal connection between the actions of a supervising official and the alleged constitutional deprivation.... The necessary causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so.... Alternatively, the causal connection may be established when a supervisor's custom or policy ... result[s] in deliberate indifference to constitutional rights or when facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so.... The standard by which a supervisor is held liable in [his] individual capacity for the actions of a subordinate is extremely rigorous.
*4 Cottone v. Jenne, 326 F.3d 1352, 1360-61 (11th Cir. 2003) (internal citations and quotations omitted).
In Iqbal, though, the Supreme Court cast at least some doubt on the continued validity of this standard in at least some circumstances. Equating the standards applicable to claims against state officials under § 1983 and claims against federal officials under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L.Ed. 2d 619 (1971), the Court said:
Iqbal "argues that, under a theory of "supervisory liability," petitioners can be liable for "knowledge and acquiescence in their subordinates' use of discriminatory criteria to make classification decisions among detainees." Iqbal Brief 45-46. That is to say, respondent believes a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution. We reject this argument. Respondent's conception of "supervisory liability" is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeeds of their agents. In a § 1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term "supervisory liability" is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to
overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.
Iqbal, 129 S. Ct. at 1949.
Iqbal involved a claim of discrimination based on race, religion, or nationality, so an element of the claim was discriminatory intent. On an excessive-force claim, in contrast, the underlying standard is objective, and, at least prior to Iqbal, supervisory liability required a showing only of deliberate indifference, not a showing of intent. Whether Iqbal raised the bar for supervisory liability when the underlying constitutional claim requires a lesser showing than discriminatory intent could perhaps be debated. See generally Kit Kinports, Iqbal and Supervisory Immunity, 114 Penn St. L. Rev. 1291(2010); Sheldon Nahmod, Constitutional Torts, Over-Deterrence and Supervisory Liability after Iqbal, 14 Lewis & Clark L. Rev. 279 (2010); Adam N. Steinman, The Pleading Problem, 62 Stan. L. Rev. 1293 (2010). But at least so far, the Eleventh Circuit has continued to apply its prior supervisory-liability decisions without suggesting that Iqbal changed the law. See, e.g., Duff v. Steub, 378 Fed.Appx. 868 (11th Cir. 2010); Keating v. City of Miami, 598 F.3d 753 (11th Cir. 2010); Harper v. Lawrence Cnty., Ala., 592 F.3d 1227 (11th Cir. 2010); Campbell v. Johnson, 586 F.3d 835 (11th Cir. 2009); Bryant v. Jones, 575 F.3d 1281 (11th Cir. 2009), cert. denied 130 S. Ct. 1281, 176 L.Ed. 2d 115 (2010); Gross v. White, 340 Fed.Appx. 527 (11th Cir. 2009).
*5 Even under the pre-Iqbal standard, the plaintiffs' allegations here are thin. The second amended complaint accuses Chief McNeil of not doing a number of things, including not taking action against Officer Pulido for these shootings and not firing or taking other sufficiently serious disciplinary action against other officers for using excessive force on other occasions. And the second amended complaint alleges that Chief McNeil approved "thousands of uses of force as 'justified' each year" while disapproving "fewer than one per year on average." Second Am. Compl., ECF No. 32, at ¶ 86.
A victim of excessive force can assert a claim for the use of the excessive force, but the victim has no independent claim for any later failure to discipline the officer. Whether Chief McNeil took disciplinary action against Officer Pulido for these shootings is wholly irrelevant to the question whether the Chief's actions caused the shootings.
The rate at which the Chief previously found uses of force justified may be relevant but surely establishes little without knowledge of the facts of particular cases or at least knowledge of the relative frequency with which officers used force properly or excessively. That a police chief finds few uses of force excessive might indicate, as the plaintiffs apparently believe, that the chief tolerates excessive force. But an equally plausible explanation is that the chief runs a good department whose officers rarely use excessive force. The plaintiffs' assertion seems to be that this high a percentage of uses of force cannot have been justified because officers simply cannot perform this well, but if that is so, it means a chief can do nothing to prevent the higher number of unjustified uses of force—and thus cannot be said to have caused them.
In any event, qualified immunity applies to damages claims against public officials and protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L.Ed. 2d 271 (1986). See generally Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L.Ed. 2d 666 (2002); Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L.Ed. 2d 396 (1982). Thus a police chief can be held individually liable only for conduct that violates clearly established law. Whatever it is the plaintiffs contend Chief McNeil should have done, they have cited no clearly established law that required it. His motion to dismiss will be granted on this basis.
V
That leaves for consideration the City's motion to dismiss. The standards governing a city's liability under § 1983 for a constitutional violation are set out in Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L.Ed. 2d 611 (1978). There the Court said a city can be held liable only if (1) the violation was based on a city policy or custom or (2) the employee who committed the violation is one whose edicts or acts may fairly be said to represent official policy. An individual police officer is not a person whose edicts or acts represent official policy, so the question here is whether the plaintiffs have adequately alleged that the shootings resulted from a city policy or custom.
The plaintiffs assert that the City hired Officer Pulido despite his use of excessive force at a prior job in law enforcement and that the City inadequately trained him on the standards governing uses of force. The plaintiffs say that the inadequate training, at least, resulted from the City's policy on training. This sufficiently states a claim on which relief can be granted. See, e.g., Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (holding that a city can be held liable under § 1983 based on inadequate training if the city "inadequately trains or supervises its employees, this failure to train or supervise is a city policy, and that city policy causes the employees to violate a citizen's constitutional rights").
*6 The plaintiffs also allege that the City had a custom or policy of using excessive force. The second amended complaint is long on conclusions and short on specifics, but it is sufficient, if just barely, to state a claim on this basis, even under the pleading standards set out in Iqbal.
VI
For these reasons,
IT IS ORDERED:
1. The motion to dismiss filed by the City of Tallahassee and Mr. McNeil, ECF No. 34, is GRANTED IN PART and DENIED IN PART. The claims against Mr. McNeil are dismissed with prejudice. I do not direct the entry of judgment under Federal Rule of Civil Procedure 54(b). The claims against the City are not dismissed.
2. Mr. Pulido's motion to dismiss, ECF No. 36, is DENIED.
SO ORDERED on March 11, 2011.
All Citations
Not Reported in Fed. Supp., 2011 WL 13232538