Summary
refusing to strike paragraph of complaint unless it had "no possible bearing" on the litigation
Summary of this case from Graff v. Prime Retail, Inc.Opinion
1:00CV00462
January 19, 2001
MEMORANDUM OPINION
This matter is before the court on a motion to strike and motions to dismiss filed by Defendants Town of Wagram (Wagram), Wagram Police Chief Jerry Monroe (Monroe), and Brian Keith English (English). The motions were filed following Plaintiff William Morton's (Morton) complaint alleging violations of 42 U.S.C. § 1983 and North Carolina tort law.
For the reasons discussed herein, the court will deny all of Defendants' motions.
I. Facts
The facts as pleaded by Plaintiff are as follows. On July 4, 1997, at approximately midnight, English was on duty as a Wagram police officer. English drove to Plaintiff's residence after receiving reports of shots fired there. Plaintiff alleges that he was on the back porch of his mobile home when English arrived. Plaintiff, carrying an unloaded rifle in the port arms position with the breech fully open, approached English, who was seated in his patrol car. According to the complaint, the rifle's barrel was lying across Plaintiff's left arm at 90 degrees to the direction he was facing. Plaintiff, being acquainted with English at the time, contends that he did not believe that approaching with an empty rifle would concern English.
English told Plaintiff that he wanted to take possession of the rifle, but Plaintiff indicated that he did not wish to relinquish it. Plaintiff alleges that at no time did he point the rifle at English or threaten him. When English tried to grab the rifle, Plaintiff turned away from English and began to walk back toward his trailer. Plaintiff alleges that English had not drawn his weapon at the time he turned away. As Plaintiff was walking away, his rifle unloaded and the breech still open, English shot him in the back.
II. Discussion
A. Defendants' Motion to Strike Paragraph 21
The court will firs address Defendants' motion to strike paragraph 21 of the complaint pursuant to Federal Rule of Civil Procedure 12(f). Paragraph 21 alleges that English was involved in another shooting incident about three months prior to the shooting at issue. Defendants argue that it should be stricken because it is "(a) conclusory, (b) potentially inflammatory, and (c) not relevant to the subject matter of this Complaint." (Defs.' Mot. Strike at 1.) Federal Rule of Civil Procedure 12(f) states, in relevant part, that a court may, upon motion made by a party before responding to a pleading, order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
The court will deny Defendants' motion to strike for two reasons. First, Defendants initially incorporated their motion to strike into their answer to the complaint. Defendants' answer to the complaint specifically addresses paragraph 21, stating, "[i]t is, upon information and belief, admitted that Defendant English was involved in an incident in April of 1997 in which he discharged his weapon." (Defs.' Answer ¶ 21.) Though Defendants later filed their motions separate from their answer, pursuant to a deficiency order, Defendants still failed to satisfy the requirement that a motion to strike be made before responding to a pleading. See Williamson v. Virginia First Sav. Bank, 26 F. Supp.2d 798, 805 (E.D. a. 1998) (stating that, "to prevail on a motion to strike, the defendants had to wait until the Court responded before filing an answer to the Paragraphs, or Rule 12(f)'s requirement that a motion to strike be filed before an answer would be nonsensical").
Defendants filed their answer and various motions to dismiss on the same day, July 10, 2000. The pleadings contained the same language; they were simply filed as separate documents. The defendants inWilliamson v. Virginia First Sav. Bank, 26 F. Supp.2d 798 (E.D. Va. 1998), likewise filed their answer and a motion to strike certain paragraphs on the same day.
Second, regardless of any procedural failing, the court finds that paragraph 21 is neither irrelevant nor scandalous. A matter should not be stricken "unless it has no possible bearing upon the litigation."Shellhorn v. Brad Ragan, Inc., 248 S.E.2d 103, 108 (N.C.Ct.App. 1978). Plaintiff has alleged causes of action for failure to train and negligent training and supervision by Monroe. Therefore, any prior shooting incident involving English may be relevant to the issue of notice and policy.
B. Defendants' Motion to Dismiss Counts I-III
For the purposes of Defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must take Plaintiff's factual allegations as true. See Hunt v. Republican Party of North Carolina, 980 F.2d 943, 952 (4th Cir. 1992) (citing Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848 (1869)). A motion to dismiss may not be granted unless "it can be said that on the claim as pleaded the claimant can prove no set of facts that would entitle her to relief."Labram v. Havel, 43 F.3d 918, 920 (4th Cir. 1995).
Defendants have moved for the dismissal of any § 1983 causes of action against Monroe and English for failure to state a claim upon which relief may be granted. They contend that Monroe and English are entitled to qualified immunity because they allegedly acted as a reasonable police chief and officer would act under the circumstances. Motions to dismiss claims of excessive force, as opposed to summary judgment motions, are granted only rarely — typically, "where the claim is conclusory and without factual support or where the use of force was clearly warranted." Drake v. Higgins, No. CIV.A. 97-0143-C, 1998 WL 372641, at 3 (W.D. Va. June 29, 1998) (noting that summary judgment motions are different because they are decided on a fully developed record).
Defendants also moved to dismiss for lack of subject matter and personal jurisdiction. Because Plaintiff has established both, the court will not address these grounds for dismissal.
Qualified immunity is a question of law. See Wilkerson v. C.D. Thrift, No. 1:99CV127-T, 2000 WL 1824448. at 14 (W.D.N.C. Apr. 6, 2000). When immunity is reviewed at the dismissal stage, the defendant's conduct as alleged in the complaint is scrutinized for "objective legal reasonableness." McVey v. Stacy, 157 F.3d 271, 276 (4th Cir. 1998) (citing Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 840 (1996)). As Plaintiff has alleged facts that could establish that Defendants were not entitled to a grant of qualified immunity because their conduct was not objectively reasonable, the court will deny Defendants' motion to dismiss Counts I-III as to English and Monroe.
Counts II and III also named Wagram as a defendant, but Defendants' motion to dismss Counts I-III only sought dismissal of the claims against English and Monroe.
A police officer sued in his or her individual capacity has qualified immunity unless he or she violates clearly established statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). The Fourth Circuit has held that courts should review the immunity defense critically at an early stage of litigation to determine whether the plaintiff has asserted a violation of a constitutional right and, if so, whether such constitutional right was clearly established at the time the defendant acted. See McVey, 157 F.3d at 275. Plaintiff alleges that English use excessive force by shooting him in the back without provocation or warning while Morton was retreating to his home, with his unloaded rifle in a position from which it could not be readily fired, even if it were loaded. The Fourth Amendment guarantees individuals the right to be free from unreasonable search or seizure. Thus, Plaintiff's facts as asserted allege a violation of a clearly established constitutional right.
Even if a plaintiff alleges the violation of a clearly established constitutional right, a defendant may still be immune from suit if, "under the circumstances, a reasonable officer could have believed that his particular conduct was lawful." Wilkerson, 2000 WL 1824448, at 14. Under the Fourth Amendment, police officers have a duty to exercise reasonable force in conducting arrests and seizures, as determined by the circumstances. All excessive force claims involving law enforcement officers are analyzed under the "Fourth Amendment's objective reasonableness standard." Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 1867 (1989). This standard requires "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to vade arrest by flight." Id. at 396, 109 S.Ct. at 1872. Moreover the Fourth Amendment limits an officer's use of deadly force to situations where he has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others. See Slattery v. Rizzo, 939 F.2d 213, 216 (1991), The reasonableness of an officer's use of force is judged from the perspective of a reasonable officer on the scene, not from the vantage point of hindsight, and without regard to the officer's underlying intent or motivation. See Graham, 490 U.S. at 397, 109 S.Ct. at 1872.
The Western District of North Carolina has cited an unpublished opinion from the Fourth Circuit for the proposition that a court "need not wait for resolution of issues of fact because the [objective reasonableness] standard is based upon the officer's perception, not the plaintiff's, and how a reasonable officer would respond in such circumstances."Wilkerson, 2000 WL 1824448, at 15. In Wilkerson, the district court declined to grant the police officer's motion for summary judgment because it had no basis for making t e fact-specific inquiry, as the defendant officer had not provided an affidavit setting forth his perceptions. See id. Simlarly, this court has no affidavit from English regarding is actions or perceptions during the incident in question.
Based on the facts alleged by Plaintiff and the factors set forth inGraham regarding excessive force, the court is unable to determine at this point that Defendant English's use of deadly force was objectively reasonable. Under Graham, the first factor to be considered is the severity of the crime at issue. English arrived at Plaintiff's residence after reports of shots being fired; under the facts as alleged, English had no reason to believe any person had been fired upon. Second, the alleged facts do not indicate that Plaintiff posed an immediate threat to the safety of English or others.
While Morton was holding a weapon, he alleges that it was unloaded and the breech was open, meaning that it could not be fired in that position even if loaded. Plaintiff also alleges that he held the gun in the port arms position, which means the rifle was laid across his arm from right to left. As such, it would not have been pointed at English. In addition, Morton claims that he was walking toward his trailer with his back to English and made no movements indicating an intent to fire the rifle. Third, nothing in the pleadings indicates that Morton was ever placed under arrest; therefore, he was not actively resisting arrest or attempting to evade arrest by flight. While he did refuse to surrender his gun to English, the pleadings do not indicate any sort of struggle, beyond English's initial attempt to take the gun from Morton. The lack of an immediate threat is supported by the alleged facts that English and Plaintiff were already acquainted and that English at no time warned Morton to stop moving or to put down his rifle.
The alleged facts n the complaint do not indicate whether English was aware that the rifle was unloaded.
Based on the pleadings and the Supreme Court's standards for judging excessive force claims, the court will deny Defendants' motion to dismiss Counts I-III based on a qualified immunity defense. Count I contains the excessive force claim against English, while Counts I-III deal with Wagram and Monroe's liability for the shooting based on failure to properly train English and for informal policies condoning excessive force. Because the court will deny Defendants' motion to dismiss as to Count I, Counts II and III will not be considered for dismissal until further factual findings are made regarding Wagram's policies and practices.
C. Defendants' Motion to Dismiss Count VII
Defendants have moved to dismiss Count VII, Plaintiff's state law claims for assault and battery, claiming that the statute of limitations ad run on the claims. The Supreme Court of North Carolina previously has determined that N.C. Gen. Stat. § 1-52(13) — which contains a three-year statute of limitations, rather than N.C. Gen. Stat. § 1-54(3) — which places a one-year limit on generic assault and battery claims, is the applicable statute of limitations for claims of assault and battery committed by a public officer. See Fowler v. J.M. Valencourt, 435 S.E.2d 530. 532 (N.C 1993). Therefore, a three-year statute of limitations applies to Plaintiff's claim. Plaintiff's cause of action occurred on July 4, 1997, and his complaint was filed on May 5, 2000, within the applicable period. Thus, the court will deny Defendants' motion to dismiss Count VII.
Defendants' motion refers to the state law assault and battery claims as Count V because Plaintiff's complaint numbered two consecutive Counts as Count VI. The court notes that Count VI contains the state law negligent training, supervision, and retention claim, while the assault and battery claim is properly referred to as Count VII.
D. Defendants' Motion to Dismiss Counts IV-VI
Defendants also have moved the court to dismiss Plaintiff's state law claims for excessive force, negligent/reckless use of force, and negligent training, supervision, and retention. The claims allege that Monroe are liable for the acts and omissions of English under the doctrine of respondeat superior.
North Carolina General Statute § 15A-401 prohibits the use of unreasonable force ir the course of arrest and seizure of another. North Carolina case law has allowed claims for negligent use of force, though that count arguably restates the claims provided for under N.C. Gen. Stat. § 15A-401. See Jackson v. N.C. Dep't of Crime Control and Pub. Safety, 388 S.E.2d 770, 774 (N.C.Ct.App. 1990) (holding that the Industrial Commission's finding that Alcohol Law Enforcement agents negligently used excessive force was supported by the facts); see also London v. Hamilton, No. CA 3:95CV347-MCK, 1996 WL 942865, at 9 (W.D.N.C. Nov. 27, 196) (dismissing plaintiffs' state law claim for wrongful death by negligent use of excessive force because officer acted reasonably, but recognizing it as a proper claim). North Carolina case law also has allowed tort claims based on negligent supervision and retention. See Braswell v. Braswell, 410 S.E.2d 897, 903 (1991); Medlin v. Bass, 398 S.E.2d 460, 462 (1990).
The district court in London v. Hamilton, No. CA 3:95CV347-MCK, 1996 WL 942865, at 9 (W.D.N.C. Nov. 27, 1996), stated that the plaintiffs' state law claim for wrongful death by negligent use of excessive force was governed by N.C. Gen. Stat. § 15A-401. In a footnote, the court noted that the plaintiffs also had alleged a separate state law claim for negligence, which "appears to restate the bases for their wrongful death claim." Id. at 9, n. 2. The court dismissed the negligence claim for the same reason that it dismissed the wrongful death claim. Plaintiff Morton likewise has alleged two claims that arise from the same factual and legal bases. The court will not address this matter, as Defendants' motion to dismiss relied on the prohibition against applying respondeat superior to § 1983 claims.
Defendants contend that these claims are not proper because the Supreme Court has held that governmental units cannot be held liable under § 1983 on a respondeat superior theory. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036 (1978). Since Counts IV-VI are based on state law rather than § 1983, it is unclear what basis Defendants assert for citing Monell. Their brief in support of the motion to dismiss states that Plaintiff's claims should be dismissed to the extent that they overlap or are encompassed by Plaintiff's § 1983 claims. However, Plaintiff can proceed under both state law and § 1983; the use of one does not foreclose use of the other. As Plaintiff bases Counts IV-VI on state law, the Supreme Court's holding in Monell is not applicable. North Carolina law does not bar the application of respondeat superior to tort claims against governmental units. Therefore, the court will deny Defendants' motion to dismiss Counts I-VI.
III. Conclusion
For the reasons discussed herein, the court will deny Defendants' motions for dismissal of Counts I-VII and Defendants' motion to strike.
An order in accordance with this memorandum opinion shall be filed contemporaneously herewith.