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dismissing failure-to-train claim where plaintiff did "not set forth any facts that there were prior instances of similar misconduct to show that White County was on notice that its training and supervision with respect to vehicular pursuits or the use of force was deficient"
Summary of this case from Karsner v. Hardin Cnty.Opinion
No. 2:18-cv-00015
02-01-2019
Robyn SPAINHOWARD, as Administratrix of the Estate of Michael Zennie Dial II, Plaintiff, v. WHITE COUNTY, TENNESSEE, et al., Defendants.
Benjamin K. Raybin, David J. Weissman, Raybin & Weissman, P.C., Nashville, TN, J. Michael Shipman, II, Shipman & Crim, PLLC, Cookeville, TN, for Plaintiff. Kristin Ellis Berexa, Farrar & Bates, LLP, Michael T. Schmitt, Ortale, Kelley, Herbert & Crawford, Nashville, TN, for Defendants.
Benjamin K. Raybin, David J. Weissman, Raybin & Weissman, P.C., Nashville, TN, J. Michael Shipman, II, Shipman & Crim, PLLC, Cookeville, TN, for Plaintiff.
Kristin Ellis Berexa, Farrar & Bates, LLP, Michael T. Schmitt, Ortale, Kelley, Herbert & Crawford, Nashville, TN, for Defendants.
MEMORANDUM OPINION
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE Robyn Spainhoward, the Administratrix of the Estate of Michael Zennie Dial II, brings this action arising out of a vehicular pursuit and shooting of Dial by law enforcement that resulted in Dial's death. Spainhoward brings claims against individual and municipal defendants under 42 U.S.C. § 1983 based upon alleged violations of the Fourth and Fourteenth Amendments to the United States Constitution. Before the Court are all Defendants' Motions to Dismiss pursuant to Federal Rule of Procedure 12(b)(6). (Doc. Nos. 18, 36, 40.) Spainhoward has responded in opposition (Doc. Nos. 28, 49, 50), and Defendants have replied (Doc. Nos. 39, 56, 57). For the following reasons, (1) the Motions to Dismiss of Defendants Sims and City of Sparta will be granted and (2) the Motion to Dismiss of Defendants West, Shoupe, and White County will be granted in part and denied in part.
I. Legal Standard
To survive a Rule 12(b)(6) motion, " ‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ). "If the plaintiffs do not nudge their claims across the line from conceivable to plausible, their complaint must be dismissed." Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013) (citation and brackets omitted). Dismissal is likewise appropriate where the complaint, however factually detailed, fails to state a claim as a matter of law. Mitchell v. McNeil, 487 F.3d 374, 379 (6th Cir. 2007). In deciding a motion to dismiss, the court is not required to accept summary allegations, legal conclusions, or unwarranted factual inferences. Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999) ; Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996).
The Court may consider public records and exhibits attached to the pleadings in deciding a motion to dismiss. Rondigo LLC v. Twp. of Richmond, 641 F.3d 673, 680-81 (6th Cir. 2011) ; see also Wyser-Pratte Mgmt. Co., Inc. v. Telxon Corp., 413 F.3d 553, 560 (6th Cir. 2005) (noting that in deciding a motion to dismiss "the court may also consider other materials that are integral to the complaint, are public records, or are otherwise appropriate for the taking of judicial notice").
In addition to the factual allegations of the Complaint, the Court has considered the video exhibit attached to the Complaint. (Doc. No. 6 (manually filed).) This is a compilation of several discrete videos taken by law enforcement cameras. Nonetheless, the images of the pursuit and seizure therein speak for themselves. For purposes of resolving the instant motions, the Court does not rely upon the additional videos submitted by Defendants as exhibits to the motions to dismiss. These videos are not part of the pleadings, are not explicitly referenced in the Complaint, are not necessarily integral to the Complaint, and, most importantly, are not necessary for purposes of this decision. The Court also relies upon Dial's autopsy report, a public record attached to the motion to dismiss briefing that no party has questioned regarding authenticity.
Spainhoward, a resident of Davidson County, Tennessee, was the legal wife of Dial at the time of his death. Defendants White County and the City of Sparta are political subdivisions of the state of Tennessee. Defendant Charlie Sims is a Sparta Police Department officer. Defendant Oddie Shoupe is the Sheriff of White County. Defendant Adam West is a White County Reserve Deputy Sheriff.
On April 13, 2017, Dial was stopped by law enforcement in a parking lot in Dekalb County, Tennessee. During this stop, officers with the Smithville Police Department learned that Dial's driver's license was suspended, and, thus, Dial was prohibited from driving by law. However, Dial was later observed by Smithville Police driving his 1976 Chevrolet pick-up truck with a fully loaded trailer in tow. Smithville Police therefore attempted to stop Dial for driving on a suspended license. Dial did not stop and continued driving along Tennessee State Highway 70 from Smithville towards the City of Sparta in White County. Tennessee Highway Patrol joined the pursuit as it continued into White County and, later, the City of Sparta. Eventually, White County Sheriff's deputies and Sparta Police Department officers joined the pursuit. While traveling along State Highway 111 at speeds of approximately fifty miles per hour, law enforcement attempted to stop Dial by utilizing what are known as "PIT maneuvers." (Doc. No. 1 at ¶ 22.) During Dial's flight, numerous vehicles passed by traveling in the other direction. Dial accelerated and decelerated, and several times drove into the grassy median of a four-lane highway as cars moved quickly past. The movement of Dial's vehicle caused objects that were not well-secured in the trailer to be flung onto the roadway.
The PIT maneuver, or "Precision Intervention Technique," is a pursuit tactic by which a pursuing car can force a fleeing car to turn sideways abruptly, causing the driver to lose control and stop, by applying lateral pressure to the rear quarter panel of the target vehicle. The PIT maneuver requires precision to produce this outcome, and, traditionally, has been effective because vehicle mechanics and physics make the outcome predictable. See Scott v. Harris, 550 U.S. 372, 375, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Pete Tortortell, et al., Federal Law Enforcement Training Centers: Effects of Electronic Stability Control on the Precision Immobilization Technique, available at http://www.policechiefmagazine.org/effects-esc-pit/ (last accessed January 18, 2019).
The Complaint alleges that (1) law enforcement officers were unsuccessful and damaged their own patrol vehicles in the PIT maneuver efforts; (2) Dial continued to travel northbound on Highway 111 at speeds of approximately fifty miles per hour; and (3) "[a]t no point after turning onto Highway 111 did Dial pose a threat to any members of the public ... [i]n fact ... Dial was in reasonable control of his vehicle." (Id. at ¶¶ 23-24.) The video, however, shows Dial continuing to drive aggressively in the general area of other cars and pursuing police vehicles. (Doc. No. 6, Video Ex.) Eventually, Sims moved in front of Dial's truck and tried to stop him by slowing. (Id.)
The Complaint alleges that, upon hearing that PIT maneuvers were in use, Shoupe, who was not present on the scene, communicated "to instead use deadly force." (Doc. No. 1 at ¶ 25.) Specifically, the radio dispatch stated, "per 59 [Sheriff Shoupe], take him out by any means necessary including deadly force." (Doc. No. 6, Video Ex.) Upon a request to repeat, the dispatcher stated, "per 59 [Sheriff Shoupe]. Use deadly force if necessary. Take the subject out by any means necessary." (Id.) The Complaint alleges that Shoupe gave this order "for no legitimate law enforcement purpose but rather solely to prevent damage to patrol cars." (Doc. No. 1 at ¶ 26.)
Upon hearing the command to use deadly force, West immediately drew his weapon. Meanwhile, White County Deputy Sheriff Brandon Young continued efforts to utilize a PIT maneuver. Deputy Young was successful in causing Dial to veer sideways off Highway 111 into a ditch-like area on the side of the road. The Complaint claims that, again, at this time, "there was no imminent safety threat that required the use of deadly force." (Id. at ¶ 30.) As Dial was being pushed off the right shoulder, West reached out the driver's side window of his vehicle with his left hand and fired three shots. Dial's driver-side window shattered, and his vehicle shifted off to the right side of the steep embankment. Sims saw Dial's vehicle wrecking and turned his patrol car around on Highway 111 facing Dial's general direction. West stopped his vehicle, exited and continued to fire shots at Dial until his magazine was empty. Sims exited his vehicle and fired approximately four or five shots as Dial's car slowly drove past him. Dial then slumped down and crashed his vehicle into the tree line which was below and parallel to Highway 111.
Deputy Young is not a defendant in this action.
Dial was non-responsive as law enforcement approached his vehicle and immediately pulled him out of it. Deputy Young noted a bullet hole in Dial's head and Dial's blood-covered white shirt. Dial was taken to Highlands Medical Center in Sparta, where he died from the injury. Dial had not been armed, nor had the individual Defendants been advised that Dial was armed. The Complaint alleges that "it appears neither law enforcement agency was aware of why or who they were pursuing." (Id. at ¶ 51.) The traffic stop was allegedly "initiated entirely because of a suspended driver's license." (Id. at ¶ 52.)
Shortly after the shooting, Sims repeated several times, "Guess I'm fired now." (Doc. No. 6, Video Ex.) After that, Shoupe, while discussing the shooting with a deputy, was unknowingly recorded saying: "I told him, I said ‘take him out.’ Damn, I don't give a sh-t. They said, ‘we'll ram him’, I said ‘don't ram him, shoot him!’ F-ck that shit. Ain't gonna tear my cars up. But I got two cars tore up again." (Doc. No. 1 at ¶ 43; Doc. No. 6, Video Ex.) Shoupe also said: "Let me tell you something, [name]. If they don't think I'll give the damn order to kill that motherf-cker, they're full of sh-t." (Doc. No. 1 at ¶ 44; Doc. No. 6, Video Ex.) Shoupe further declared: "I love this sh-t. God, I tell you what, I thrive on it." (Doc. No. 1 at ¶ 45; Doc. No. 6, Video Ex.)
In Dial's autopsy report, it is explained that Dial "rammed or hit several cars with his truck or trailer" and "ramm[ed] police cars and hit[ ] them with his trailer" during a pursuit ending in White County, before dying of a single gunshot wound across the "back of his head." (Doc. No. 20-1 at 1, 6-7.) Dial's autopsy blood testing revealed amphetamines, methamphetamines, and marijuana in his system. (Id. at 11.)
III. Discussion
Spainhoward sues Sims, West, and Shoupe in their individual capacities for the use of excessive force against Dial. She sues White County and the City of Sparta for (1) having policies, procedures, practices, or customs that amount to deliberate indifference to the use of excessive force; and (2) failing to adequately train and educate their officers in the proper use of force to subdue a citizen (e.g., during vehicle stops). In addition, she sues White County under the theory that Shoupe, as a final policymaker, instructed officers to follow a course of action that violated Dial's constitutional rights. Defendants move to dismiss all claims on the grounds of qualified immunity and failure to state a claim.
As a threshold matter, Spainhoward invokes both the Fourth and Fourteenth Amendments in the Complaint. However, "[a]ll claims that law enforcement officers have used excessive force – deadly or non – in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness standard, rather than under a [Fourteenth Amendment] ‘substantive due process’ approach." Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Here, the use of force against Dial occurred during the attempt of law enforcement to pursue and seize Dial. The Court therefore analyzes Spainhoward's claims under the Fourth Amendment, not the Fourteenth Amendment.
A. Claims Against Defendant Sims and City of Sparta
To state a Section 1983 claim against Sims, Spainhoward must plead that Sims acted under color of state law and that his actions caused the violation of a federal right of Dial. 42 U.S.C. § 1983 ; Thomas v. Nationwide Children's Hosp., 882 F.3d 608, 612 (6th Cir. 2018). To state a Section 1983 claim against the City of Sparta, there must be an alleged underlying violation of a federal right of Dial by a Sparta employee (here, Sims). See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ; Hancock v. Dodson, 958 F.2d 1367, 1376 (6th Cir. 1992) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 391, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ).
Sims was acting under color of state law during the pursuit of Dial. The Court must then determine whether a deprivation of constitutional rights has occurred. "The Fourth Amendment protects against ‘unreasonable seizures,’ not unreasonable or even outrageous conduct in general." Galas v. McKee, 801 F.2d 200, 202 (6th Cir. 1986) (emphasis added). A "seizure" triggering the Fourth Amendment's protections occurs only when government actors have, "by means of physical force or show of authority, ... in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19, n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; see also United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ("[A] person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained."). Mere initiation or continuation of a high-speed pursuit of a traffic offender does not constitute the "exercise of physical force" necessary to constitute a "seizure" for Fourth Amendment purposes. See Galas, 801 F.2d at 203 (concluding that police officer's pursuit of minor concluding in an accident injuring the minor did not constitute a seizure). Nor does a police officer's firing of a weapon that, "while designed to apprehend [an individual], did not stop or in any way restrain him," constitute a seizure. Cameron v. City of Pontiac, Mich., 813 F.2d 782, 785 (6th Cir. 1987) ; see also Adams v. City of Auburn Hills, 336 F.3d 515, 519-520 (6th Cir. 2003) ("This court specifically has held that shooting at a fleeing felon, but missing, is not a ‘seizure.’ "); Ferrante v. Peters, 135 F. App'x 846, 848 (6th Cir. 2005) (finding no seizure where officers shot at and hit plaintiffs' moving car but did not restrain their movement). The underlying rationale of these Sixth Circuit cases is that an individual is not restrained during flight, and an individual in flight is not "seized" by a specific officer unless subjected to a show of authority resulting in an actual physical restraint. See Galas, 801 F.2d at 203 ; Cameron, 813 F.2d at 785 ; Adams, 336 F.3d at 520. Accordingly, even a use of deadly force that does not restrain liberty, "standing alone[,] does not constitute a seizure, and "absent an actual physical restraint or physical seizure, the alleged unreasonableness of the officers' conduct cannot serve as a basis for a [ Section] 1983 cause of action anchored in the Fourth Amendment." Cameron, 813 F.2d at 785.
See also, e.g., Latta v. Keryte, 118 F.3d 693, 699-700 (10th Cir. 1997) (finding that the plaintiff was "seized" only when he stopped at a roadblock and not when the defendant-officer shot the tires of plaintiff's car in an unsuccessful pursuit); Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993) ("[T]he shots that were fired at the truck and that did not hit [plaintiff] were not seizures because they too failed to produce a stop."); McAllister v. New York City Police Dep't, 49 F.Supp.2d 688, 698-99 (S.D.N.Y. 1999) (granting defendant-officers' motion for summary judgment on plaintiff's excessive force-shooting claim because plaintiff suffered no damage when police fired into the car but the plaintiff was not hit or hurt); Palmer v. Williamson, 717 F. Supp. 1218, 1223 (W.D.Tex. 1989) ("[M]ere firing does not establish a ‘seizure’ within the meaning of the Fourth Amendment.")
Sims and the City of Sparta move for dismissal of the claims against them on the ground that, under the above rationale, they are not responsible for any seizure of Dial, and, consequently, there is no basis for a Section 1983 action against them premised on the Fourth Amendment. They argue that the Complaint and video footage establish that it is impossible that Sims, effectively positioned in front of Dial, could have shot the one bullet that struck Dial across the back of the head and killed him. In other words, they contend that Sims' firing his weapon at Dial's vehicle but missing did not constitute an actionable "seizure" for Fourth Amendment purposes.
In response to the motion to dismiss, Spainhoward concedes that "based on the video evidence, autopsy and reports contained within the T.B.I. investigative file, it clearly appears [ ] West is the person who fired the fatal shot that killed Mr. Dial.... Plaintiff agrees that the video evidence reflects that [ ] West fired the fatal shot." (Doc. No. 50 at 1-2, 5 (emphasis added).) Spainhoward states that, "if the Court agrees," the motions to dismiss of Sims and the City of Sparta should be granted because "no seizure occurred on the part of [ ] Sims. " (Id. at 1, 5 (emphasis added).) Based upon the Complaint, the video exhibit, and the autopsy report, it does appear that (1) West fired from a position behind Dial; (2) Dial's window contemporaneously shattered; (3) Sims subsequently fired from a position facing Dial's disabled vehicle; and (4) Dial died from a gunshot that struck him across the back of his head. However, it is not necessary for the Court to make any definitive factual findings at this time. It is sufficient for the Court that Spainhoward has conceded that she believes Sims did not "seize" Dial because Sims did not shoot Dial. (Doc. No. 50 at 1-2, 5.) Moreover, Spainhoward admits that her claims against the City of Sparta cannot survive the dismissal of her claim against Sims. (Id. at 5.)
The claims against Sims and the City of Sparta will therefore be dismissed.
B. Claim Against Deputy West
Spainhoward also brings a Section 1983 claim against Deputy West. In response, West asserts that he is entitled to qualified immunity. Public officials are entitled to qualified immunity from suits for civil damages if either the official's conduct did not violate a constitutional right or if that right was not clearly established at the time of the conduct. Godawa v. Byrd, 798 F.3d 457, 462-63 (6th Cir. 2015) (citing Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ). Courts may consider those two inquiries in either order. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ).
In the context of evaluating claims of excessive force under the Fourth Amendment, the Sixth Circuit recently explained:
While officers may use some degree of physical coercion to make an arrest, the Fourth Amendment requires the amount of force to be objectively reasonable under the totality of the particular circumstances. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Among the factors analyzed to determine the constitutionally permissible amount of force are "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 evade arrest by flight." Id.
The reasonableness inquiry is an objective one, considered from the perspective of a hypothetical reasonable officer in the defendant's position and with his knowledge at the time, but without regard to the actual defendant's subjective intent when taking his actions. Id. at 397, 109 S.Ct. 1865. The court must avoid "the 20/20 vision of hindsight," recognizing that officers in tense and evolving situations may have to make a split-second decision about the amount of force that is necessary. Id. at 396-97, 109 S.Ct. 1865. The reasonableness analysis thus includes some "built-in measure of deference to the officer's on-the-spot judgment." Mullins v. Cyranek, 805 F.3d 760, 766 (6th Cir. 2015) (citations omitted). At the same time, the "fact that a situation unfolds quickly does not, by itself, permit officers to use deadly force. Rather, qualified immunity is available only where officers make split-second decisions in the face of serious physical threats to themselves and others." Id. at 766–67 (internal quotation marks, brackets, and citations omitted).
As a general rule, the Fourth Amendment prohibits the use of deadly force to prevent the escape of fleeing suspects unless "the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others." Tennessee v. Garner, 471 U.S. 1, 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Of the three non-exclusive factors listed in Graham, "the threat factor is ‘a minimum requirement for the use of deadly force.’ " Mullins, 805 F.3d at 766 (quoting Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005) ); see also Ciminillo v. Streicher, 434 F.3d 461, 468 (6th Cir. 2006) (stating that a person has a "right not to be shot unless they are perceived as posing a threat to officers or others").
The Sixth Circuit has developed "a consistent framework in assessing deadly-force claims involving vehicular flight." Cass v. City of Dayton, 770 F.3d 368, 375 (6th Cir. 2014). The "critical question" is whether the officer had objective " ‘reason to believe that the [fleeing] car presents an imminent danger’ to ‘officers and members of the public in the area.’ " Id. (quoting Smith v. Cupp, 430 F.3d 766, 775 (6th Cir. 2005) ). Deadly force is justified against "a driver who objectively appears ready to drive into an officer or bystander with his car," but generally not "once the car moves away, leaving the officer and bystanders in a position of safety," unless "the officer's prior interactions with the driver suggest that the driver will continue to endanger others with his car." Id. (citations omitted). The Sixth Circuit has
found deadly force justified by prior interactions demonstrating continuing dangerousness only when the "suspect demonstrated multiple times that he either was willing to injure an officer that got in the way of escape or was willing to persist in extremely reckless behavior that threatened the lives of all those around." Cupp, 430 F.3d at 775 (characterizing the suspects in both Scott v. Clay Cty., 205 F.3d 867, 872 (6th Cir. 2000), and Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992) ).
Latits v. Phillips, 878 F. 3d 541, 547-48 (6th Cir. 2017).
In Latits, a traffic stop involving drugs turned into a multi-minute vehicle pursuit involving several law enforcement vehicles. Id. at 544-45. After a series of maneuvers in an empty parking lot, the chase moved onto a ten-lane divided highway. Id. The vehicles moved at high speed and ran two red lights. Id. The fleeing driver attempted to make a U-turn and ran over a median. Id. Several times, officers collided with his car. Id. Eventually the driver lost control over his car and swerved across several lanes; when it straightened out, it was rammed by an officer and pushed off the road onto an area of grass and concrete. Id. at 546. Several officers approached to block the driver. Id. At about the same time, the officer in question jumped out of his car and ran towards the driver's car from behind. Id. The driver reversed past the officer, but no cars or persons were behind the car as he reversed. Id. The officer shot and struck the driver, killing him. Id.
Latits was on appeal after a ruling on summary judgment. Here, the Court is asked to make the qualified immunity determination at the motion to dismiss stage. The Court, however, can consult the video exhibit of the incident in the same manner as the court in Latits because it was filed with the Complaint.
In an opinion by Judge Stranch, the Court of Appeals analyzed both the moments before the shots were fired by the officer at the vehicle and the prior interactions between the officer and the driver. Id. at 548. As mentioned, just before the shots, the videos showed that the driver reversed past the officer before the officer raised his gun and gunshots were heard. Id. Citing a prior holding that once "the hood of [a suspect's] car already passed the point where it could harm [the officer]," [he] "would have had time to realize that he was no longer in the path of the car and no longer in immediate danger," Hermiz v. City of Southfield, 484 F. App'x 13, 16 (6th Cir. 2012), the Court of Appeals concluded that, because the officer fired after the car had passed the point where it could harm him, he had sufficient time to realize that he was no longer in immediate danger. Latits, 878 F.3d at 548. The court found that this conclusion was bolstered because no other officers or civilians were in danger from the driver when the officer fired his weapon. Id. (citing Cupp, 430 F.3d at 774 (finding deadly force unreasonable where the "record does not establish the presence of any bystander ... whose physical safety could have been endangered by [the driver's] actions")). In short, the Latits court found it important that the driver was threatening neither the officer who shot him nor persons or cars in the immediate vicinity at the time of the shooting. See Latits, 878 F.3d at 549 ("Latits did not objectively appear ready to drive into someone when Officer Phillips shot him."). Several other Court of Appeals panels have also concluded that deadly force was objectively unreasonable when the officer was to the side of the moving car or the car had already passed by the officer – i.e., taking the officer out of harm's way – when the officer shot the driver. See Godawa, 798 F.3d at 466–67 ; Hermiz, 484 F. App'x at 16 ; Sigley v. City of Parma Heights, 437 F.3d 527, 531, 537 (6th Cir. 2006) ; Cupp, 430 F.3d at 774-75.
As the Sixth Circuit has advised, "the fact that no one was in the car's direct path at the time the driver was shot does not end the analysis." Latits, 878 F.3d at 549 (citing Cass, 770 F.3d at 376 ). The Court must also look to the prior interactions between a fleeing driver and pursuing officer and the potential of imminent danger to other officers or members of the public in the area. See id. The parties do not dispute that Dial was fleeing to avoid arrest, so the Court turns to the Graham factor that analyzes the severity of the crime at issue. Id. Dial was originally suspected of driving on a suspended license – clearly not a serious or violent crime. The second Graham factor asks if Dial posed an immediate threat to the safety of an officer or others. The Complaint alleges that Dial did not. (Doc. No. 1 at ¶ 50.) The video exhibit, however, shows that Dial engaged in a lengthy pursuit of varying speeds on roads in use by innocent drivers. The video also shows that Dial made several risky maneuvers and repeatedly collided with law enforcement vehicles. Put succinctly, the video exhibit is simply not consistent with the Complaint's description of an incident that was a danger to no one. See Latits, 878 F.3d at 544 (citing Scott, 550 U.S. at 381, 127 S.Ct. 1769 (because the events of the case were sufficiently recorded by video cameras, it is appropriate to describe the events in the "light depicted by the videotape").
Furthermore, the Complaint alleges that the White County deputies did not know specifically why they were pursuing Dial.
The Court of Appeals also instructs that the Court must view the allegations with due deference to the quick decisions West had to make in a tense, uncertain, and rapidly evolving situation. Latits, 878 F.3d at 550 (citing Graham, 490 U.S. at 396-97, 109 S.Ct. 1865 ). The Court of Appeals has allowed that "[w]ithin a few seconds of reasonably perceiving a sufficient danger, officers may use deadly force even if in hindsight the facts show that the persons threatened could have escaped unharmed." Mullins, 805 F.3d at 767 (quoting Untalan, 430 F.3d at 315 ). Thus, officers were entitled to qualified immunity in cases like Mullins and Untalan, where a dangerous situation had evolved into a safe one before the officers had a chance to realize the change. There, officers were engaged in physical, hand-to-hand confrontations with suspects who moments before being shot had held a gun or knife. Id. ; Untalan, 430 F.3d at 315. Here, the Complaint alleges that there was no imminent safety threat to West, and, under the objective analysis of Dial's car after it had been struck and pushed off the road by Deputy Young, video evidence reflects that neither West's life nor another officer's or civilian's life was endangered in the moments before West fired. See also Cupp, 430 F.3d at 775 ("The fact that this was a rapidly evolving situation does not, by itself, permit [an officer] to use deadly force.").
The Court finds that Latits is sufficiently analogous to this case for purposes of the qualified immunity analysis. Here, as in Latits, there was a pursuit involving danger to others. Dial drove dangerously on a multi-lane highway as numerous civilian cars passed in the opposite direction, dodging and striking police vehicles and moving in and out of a grassy median. But here, as in Latits, Dial had been rammed and pushed off the road by an officer. As in Latits, Dial did not immediately threaten the life of West or other cars or persons from his position on the side of the road at the time of the shooting. In sum, the Court concludes that Spainhoward has sufficiently alleged that West's shooting of Dial was not objectively reasonable such that his Fourth Amendment right to be free from excessive force was violated.
However, even if West violated Dial's constitutional right to be free from this alleged use of excessive force, West is entitled to qualified immunity unless that right was clearly established at the time of the incident in April of 2017. See Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam) ("Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct."). Although the Supreme Court "does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate. " Kisela v. Hughes, ––– U.S. ––––, 138 S. Ct. 1148, 200 L.Ed.2d 449 (2018) (emphasis added) (quoting White v. Pauly, 575 U.S. 600, 137 S. Ct. 548, 551, 196 L.Ed.2d 463 (2017) (per curiam) (internal quotation marks omitted)). "In other words, immunity protects all but the plainly incompetent or those who knowingly violate the law." Id. (internal quotation marks omitted). Critically, the Supreme Court has repeatedly instructed that courts are "not to define clearly established law at a high level of generality.’ " City and Cty. of San Francisco v. Sheehan, ––– U.S. ––––, 135 S. Ct. 1765, 1775-76, 191 L.Ed.2d 856 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ).
Indeed, the Supreme Court has explained that "specificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine ... will apply to the factual situation the officer confronts." Kisela, 138 S. Ct. at 1152 (emphasis added) (quoting Mullenix v. Luna, ––– U.S. ––––, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (internal quotation marks omitted)). Use of excessive force is an area of the law "in which the result depends very much on the facts of each case," and thus police officers are entitled to qualified immunity unless existing precedent "squarely governs " the specific facts at issue. Mullenix, 136 S. Ct. at 309 (internal quotation marks omitted and emphasis added). Precedent involving similar facts moves a case beyond the otherwise "hazy border between excessive and acceptable force" and thereby provides an officer notice that a specific use of force is unlawful. Id. at 312 (internal quotation marks omitted). Importantly, because "general statements of the law are not inherently incapable of giving fair and clear warning to officers," the general rules set forth in " Garner and Graham do not by themselves create clearly established law outside an ‘obvious case.’ " Kisela, 138 S. Ct. at 1153 (emphasis added) (quoting White, 137 S. Ct. at 552 (internal quotation marks omitted)). "Where constitutional guidelines seem inapplicable or too remote, it does not suffice for a court simply to state that an officer may not use unreasonable and excessive force, deny qualified immunity, and then remit the case for a trial on the question of reasonableness." Kisela, 138 S. Ct. at 1153. An officer "cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it. " Plumhoff v. Rickard, 572 U.S. 765, 778-79, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) (emphasis added).
"There need not be a case with the exact same fact pattern" in order to find an officer is not entitled to qualified immunity, Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (emphasis added), but "the sine qua non of the ‘clearly established’ inquiry is ‘fair warning.’ " Baynes v. Cleland, 799 F.3d 600, 612-13 (6th Cir. 2015).
In Latits, the Court of Appeals examined prior caselaw and determined that there was no case, as of 2010, in which an officer was held to have violated the Fourth Amendment under sufficiently similar circumstances. Latits, 878 F.3d at 553-54. The court explained that while there were cases involving the shooting of non-violent drivers as they attempted to initiate flight, there were no precedential cases involving the shooting of a driver after he had led police on a car chase on open roads that had involved collisions between the suspect and police cars. Id. at 554. Accordingly, Latits concluded that, while the officer's conduct was "outside the bounds of the Fourth Amendment," controlling authority at the time of the events had not clearly established "the rights we identify today. " Id. at 553. As a matter of common sense, if the Latits court had found these rights to have been clearly established at any time prior to December 2017, the statement that the court was explicitly "identifying" rights "today" would have been unnecessary surplusage. Stated differently, this language indicates that in December 2017 the Court of Appeals found no precedent that "squarely governed" a Latits-type situation and therefore felt the need to state that such rights were clearly established as of that day.
Foster v. Patrick, 806 F.3d 883, 889 (6th Cir. 2015), relied upon by Spainhoward as "early established" law prior to Latits despite Latits' statement that it was clearly identifying rights "today" (see Doc. No. 28 at 8-9), is of little assistance in that regard. In that case, a woman stole a police cruiser, and an officer fired 13 shots as she began driving away, striking her eight times and killing her. Foster, 806 F.3d at 886. In denying qualified immunity, the Court concluded that, while an officer may "continue to fire at a fleeing vehicle ... when ‘the officer's prior interactions with the driver suggest that the driver will continue to endanger others with [the] car,’ " Foster, 806 F.3d at 888 (citing Cass, 770 F.3d at 375 ), "nothing suggested that Foster would endanger others with the cruiser," id. That being the case, the court distinguished Foster because it did not involve "a dangerous ... car chase" and the woman was "merely fleeing in a police cruiser without any indication that she would harm [the officer] or anyone else with the cruiser." Id. at 888-89. Thus, the "clearly established" right that Foster was based upon was that a law enforcement officer may not shoot an individual initiating non-dangerous flight. That is not the case here, where Dial led officers on a lengthy highway car chase of variable speeds, passing other vehicles, crossing into the median, and repeatedly contacting law enforcement vehicles that were trying to stop him. (Doc. No. 6, Video Ex.) Dial persisted despite damage to his vehicle, his trailer, and the police vehicles around him. Based on the video exhibit, it cannot be said that Dial was non-dangerous or that there were no indications that he posed a threat to public safety. (Id.); Cf. Scott, 550 U.S. at 384, 127 S.Ct. 1769 (noting that it was clear from the videotape that the driver posed a threat to the lives of "any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase").
In short, the Supreme Court has (1) repeatedly warned the lower courts that qualified immunity is not to be defined at high levels of generality and (2) mandated that law enforcement officers are entitled to qualified immunity for claims of excessive force unless existing precedent "squarely governs" the specific facts at issue so that the law is so clearly established that any reasonable official in an officer's shoes' would understand that a particular action violated another's rights. As discussed above, the Court finds that Latits is "squarely" applicable. Indeed, the instant case presents precisely the scenario in which precedent such as Latits helps clear the "hazy border between excessive and acceptable force" and thereby puts an officer on notice that certain use of force is constitutionally excessive. However, Latits was decided on December 27, 2017, eight months after the shooting death of Dial, and the Court of Appeals made clear that it was clearly identifying certain rights that day. If Dial's shooting had happened after Latits, the claim against West might withstand his assertion of qualified immunity. As the law stands, however, the Supreme Court demands that qualified immunity protect "all [officers] but the plainly incompetent or those who knowingly violate[d] the law" as it clearly stood on April 13, 2017. The Court therefore finds that until December 2017 the law was not so clearly established that "any reasonable official" in West's shoes would have understood that discharging his weapon at Dial's vehicle in these precise circumstances constituted a use of unconstitutional excessive force. West is therefore entitled to qualified immunity.
Likely in part because this standard is so high, the Supreme Court has never found the use of deadly force in connection with a dangerous car chase to be a basis for denying qualified immunity. See, e.g., Scott, 550 U.S. at 385, 127 S.Ct. 1769 ("[W]e are loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people's lives in danger.").
The Court acknowledges that qualified immunity is a controversial doctrine that can (1) lead to the head-scratching and frustrating outcome of a "right" becoming "clearly established" at the pleasure and indeterminate speed of various jurists, and (2) undercut some of the core purposes of 42 U.S.C. § 1983. See, e.g., Scott Michelman, The Best Branch Qualified to Abolish Immunity, 93 Notre Dame L. Rev. 1999, 2000 (May 2018) ("The critics and critiques of qualified immunity ... are by now legion. Qualified immunity has been attacked as ahistorical; unjustified as a matter of statutory interpretation; grounded on inaccurate factual assumptions; antithetical to the purposes of official accountability and of the statute of which it is putatively a part; unadministrable; regularly misapplied; a hindrance to the development of constitutional law; a basis for strategic manipulation by judges; and a source of jurisdictional problems."); William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45 (Feb. 2018) ("Th[e qualified immunity] framework makes it hard to find a roadmap to the denial of immunity that could give a lower court confidence in its conclusion."); Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 64 (Oct. 2017) ("Commentators have long criticized qualified immunity doctrine for protecting government officials at the expense of Section 1983's accountability goals."). But it is within this framework that the Court currently must operate. That courts are so restricted by the restrictions and technicalities of this judicial doctrine is somewhat ironic given that the Supreme Court has broadly instructed that judges are to look to the "factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Maryland v. Pringle, 540 U.S. 366, 370, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003).
C. Claim Against Sheriff Shoupe
Spainhoward also brings a Section 1983 excessive force claim against Sheriff Shoupe. Shoupe has also asserted that he is entitled to qualified immunity. "While an individual supervisor may still be held liable in his or her individual capacity ... [a plaintiff] must point to a specific action of each individual supervisor to defeat a qualified immunity claim." Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir. 2016) (citing Phillips v. Roane Cty., Tenn., 534 F.3d 531, 544 (6th Cir. 2008) ). It is well-settled that "[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under the theory of respondeat superior. " Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In other words, a supervisor cannot be held liable simply because he or she was charged with overseeing a subordinate who violated the constitutional rights of another. See Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006). Therefore, supervisory liability requires some "active unconstitutional behavior" on the part of the supervisor. Peatross, 818 F.3d at 242 (citing Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999) ). "However, ‘active’ behavior does not mean ‘active’ in the sense that the supervisor must have physically put his hands on the injured party or even physically been present at the time of the constitutional violation." Id. (collecting cases). The Court of Appeals has interpreted this standard to mean that "at a minimum," a plaintiff must show that a supervisory police officer defendant "at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct" of subordinate offending police officers. Id. (citing Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) ; Roane, 534 F.3d at 543 ).
In Iqbal, the Supreme Court of the United States concluded that in § 1983 suits, "the term ‘supervisory liability’ is a misnomer." 556 U.S. at 677, 129 S.Ct. 1937. The Court reasoned that "each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Id. The Sixth Circuit has sometimes referred to a Section 1983 supervisory liability claim as a claim for "personal liability for a failure to train and supervise." See, e.g., Coley v. Lucas Cty., Ohio, 799 F.3d 530, 542 (6th Cir. 2015).
According to the Complaint, Shoupe was not present during the pursuit or shooting of Dial; his role was solely the authorization of the use of deadly force by the officers during the pursuit as he learned that officers were engaged in PIT maneuvers. To advance this supervisory liability claim against Shoupe, Spainhoward must "show that the right that [West] violated was clearly established at the time of the violation." Peatross, 818 F.3d at 245 ; see also Coley, 799 F.3d at 539-541 (examining whether the right the subordinate officers violated was clearly established before concluding that the sheriff could be held liable for their actions under § 1983 ). As discussed above, it was not. Shoupe is therefore also entitled to qualified immunity.
Spainhoward argues at length that the comments that Shoupe made after the shooting reflect an improper motive that should invalidate his qualified immunity. Indeed, the alleged comments might appear to be objectively unreasonable in and of themselves. However, the Supreme Court has made abundantly clear that "subjective motivations of the individual officers ... has no bearing on whether a particular seizure is ‘unreasonable’ under the Fourth Amendment," Graham, 490 U.S. at 397-98, 109 S.Ct. 1865, and thus do not impact the qualified immunity analysis. See also Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ("We have since held that the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.") (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978) ); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (holding that, in analyzing the reasonableness of a search or seizure, "it is imperative that the facts be judged against an objective standard"). As discussed above, without a clearly established right violated by West, there can be no individual supervisory liability against Shoupe. The Court must therefore leave it to others in the public sphere to evaluate the appropriateness of Shoupe's remarks. D. Claims Against White County
Spainhoward also argues that there is an independent line of law – the "least intrusive means" precedent – that forecloses qualified immunity. However, the cases presented to the Court demonstrate that the least intrusive means analysis is generally applicable to cases involving investigatory detentions and arrests, not broadly toward all alleged uses of excessive force. Spainhoward has certainly presented no case in which this rubric was applied to a scenario involving a vehicular pursuit. Regardless, in Lyons v. City of Xenia, the Court of Appeals explained that the proper question is whether the facts demonstrate that a hypothetical reasonable officer would have known that his actions, under the circumstances, were objectively unreasonable, not whether the officer used the least intrusive means available. 417 F.3d 565, 576 (6th Cir. 2005) (quoting Scott v. Clay Cty., 205 F.3d 867, 877 (6th Cir. 2000) (citations omitted)); see also Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983) (noting in the Fourth Amendment context that reasonableness of governmental activity does not hinge on existence of a less-intrusive alternative).
A municipality is not entitled to claim qualified immunity. Meals v. City of Memphis, Tenn., 493 F.3d 720, 727 (6th Cir. 2007) (citing Owen v. City of Independence, 445 U.S. 622, 650, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) ); Ruby v. Horner, 39 F. App'x 284, 285 (6th Cir. 2002). At the same time, "a municipality cannot be held liable solely because it employs a tortfeasor[.]" Monell, 436 U.S. at 691, 98 S.Ct. 2018. In other words, "under [ Section] 1983, local governments are responsible only for ‘their own illegal acts.’ ... They are not vicariously liable under [ Section] 1983 for their employees' actions." Connick v. Thompson, 563 U.S. 51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) ). Therefore, a municipality may be held liable under Section 1983 if the challenged conduct occurs pursuant to "a municipality's ‘official policy,’ such that the municipality's promulgation or adoption of the policy can be said to have ‘cause[d]’ one of its employees to violate the plaintiff's constitutional rights." D'Ambrosio v. Marino, 747 F.3d 378, 386 (6th Cir. 2014) (quoting Monell, 436 U.S. at 692, 98 S.Ct. 2018 ). "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law." Connick, 563 U.S. at 61, 131 S.Ct. 1350. Thus, to state a municipal liability claim, a plaintiff must adequately allege "(1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom of tolerance [of] or acquiescence [to] federal rights violations." Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) ; accord Boulton v. Swanson, 795 F.3d 526, 531 (6th Cir. 2015).
Spainhoward attempts to establish a Monell claim in three of the four possible ways: policy or custom; failure to train; and single act of a policymaker authorizing an illegal action. The Court will address the first two of these together, followed by the third.
These three claims are included in Counts 2 and 3 of the Complaint. (Doc. No. 1 at ¶¶ 61-88.)
1. Custom or Policy and Failure to Train Claims
Regarding the theory of municipal liability based on deliberate indifference to an unconstitutional policy or custom, a plaintiff bears the burden of showing "that [an] unconstitutional policy or custom existed, that the policy or custom was connected to the [municipality], and that the policy or custom caused [the] constitutional violation." Napier v. Madison Cty., 238 F.3d 739, 743 (6th Cir. 2001). "The question here is whether there was some sort of policy, custom, or practice in the [White County Sheriff's Office] of condoning excessive force, and ... such a policy must be shown by a clear and persistent pattern." Thomas v. City of Chattanooga, 398 F.3d 426, 432 (6th Cir. 2005). To the extent Spainhoward seeks to hold White County liable for its officers' unconstitutional actions under a "custom" theory, Spainhoward "must show that White County has (1) an unwritten custom (2) of remaining deliberately indifferent (3) to a clear and persistent pattern of illegal uses of force and seizures (4) that it knew or should have known about." Okolo v. Metro. Gov't of Nashville, 892 F. Supp. 2d 931, 941-42 (M.D. Tenn. 2012) (citing Thomas, 398 F.3d at 433 ).
Regarding a theory of liability based on a failure to properly train or supervise police officers, a plaintiff may show prior instances of unconstitutional conduct demonstrating that a governmental entity has ignored a history of abuse and was clearly on notice that the training in a particular area was deficient and likely to cause injury. Slusher v. Carson, 540 F.3d 449, 457 (6th Cir. 2008) ; Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005). In the alternative, where the constitutional violation was not alleged to be part of a pattern of past misconduct, a municipality may be held liable only where there is essentially a complete failure to train the police force or training that is so reckless or grossly negligent that future police misconduct is almost inevitable or would properly be characterized as substantially certain to result. Hays v. Jefferson Cty., Ky., 668 F.2d 869, 874 (6th Cir. 1982). "Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Fisher, 398 F.3d at 849 (citing Stemler v. City of Florence, 126 F.3d 856, 865 (6th Cir. 1997) ). White County cannot be held liable under Monell "for the actions of a rogue official[,]" even if West or Shoupe could be characterized as such, Arnold v. Metro. Gov't of Nashville and Davidson Cty., 2009 WL 2430822 at *3 (M.D. Tenn. Aug. 6, 2009), because an "officer's shortcomings may have resulted from factors other than a faulty training program." City of Canton, Ohio v. Harris, 489 U.S. 378, 390-391, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Rather, Spainhoward must allege facts showing a plausible right to relief because White County was deliberately indifferent to the need to train, supervise or discipline its police officers, and that such inadequacies were likely to result in the violation of a citizen's constitutional rights. Id. at 390, 109 S.Ct. 1197.
In support of these two theories of liability, the Complaint contains notably insufficient allegations. Spainhoward alleges only that White County has unknown policies, procedures, practices or customs within its Sheriff's Office that allow the excessive use of force "when other more reasonable and less drastic methods are available." (Doc. No. 1 at ¶ 83.) While Spainhoward's allegations concerning a failure to train are longer, they are similarly lacking in substance. She alleges that (1) White County "had in place at the time of the incident rules, regulation, practices, or customs for situations such as the one at issue herein [and t]he failure to properly train and implement proper policies and procedures was a proximate cause of the injuries to the Plaintiff"; (2) not only did White County "fail to adequately train and educate their officers in the proper use of force to subdue a citizen, they affirmatively instructed the officers present to follow a course of action that they knew or should have known would violate the constitutional rights of the Plaintiff"; (3) White County failed to adequately train and educate its officers "in the proper use of force to subdue a citizen"; (4) White County "implicitly or explicitly failed to train and supervise their officers [and s]aid failure amounts to deliberate indifference to the rights of the Plaintiff to be free from excessive force under the Fourth and Fourteenth Amendments to the Constitution of the United States"; (5) "[i]t was reasonably foreseeable that the failure of [ ] White County to train and supervise its officers to properly handle vehicle stops would result in the use of excessive force"; (6) "[i]t was reasonably foreseeable that the failure of [ ] White County to train and supervise its officers to coordinate tactical maneuvers with each other and other agencies would result in the use of excessive force"; and (7) the failure of White County to adequately train and supervise West "amounts to deliberate indifference and reckless disregard to the rights of the Plaintiff to be free from excessive force and under the Fourth and Fourteenth Amendments to the Constitution of the United States." (Id. at ¶¶ 92-98.)
In the context of Section 1983 municipal liability, district courts in the Sixth Circuit have interpreted the Iqbal / Twombly pleading standards strictly. To reiterate the nub of Iqbal and Twombly: a claim is plausible only when a plaintiff pleads facts that allow the court to draw the reasonable inference that defendant is liable for the misconduct alleged, and a claim fails if it stops short of the line between possibility and plausibility of relief. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The Court must therefore "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679, 129 S.Ct. 1937. Applying this standard, the Court finds that the policy or custom and failure to train allegations related above are boilerplate and conclusory and contain insufficient factual assertions.
"In numerous cases, courts (including this one) have found that boilerplate allegations premised on a single incident of alleged police brutality – i.e., the incident that caused the plaintiff's injury – are insufficient to state a municipal liability claim, thereby justifying dismissal under Rule 12(b)(6)." Minick v. Metro. Gov't of Nashville, No. 3:12-cv-0524, 2014 WL 3817116, at *2 (M.D. Tenn. Aug. 4, 2014) (parenthetical in original). First, although the assertion that one or more of the individual defendants engaged in the use of unauthorized excessive force is couched as a factual allegation, the Complaint contains no well-pleaded facts to support a conclusion that White County had a specific policy, practice, or custom of directing or endorsing the unconstitutional use of excessive force by its officers. See, e.g., Hall v. Metro. Gov't of Nashville and Davidson Cty., Case No. 3:17-cv-01268, 2018 WL 305751, at *19 (Jan. 5, 2018) (where complaint alleged that Metro "implicitly or explicitly adopted and implemented careless and reckless policies, procedures, customs, or practices" that authorized Metro police officers "to perform ‘on-scene cavity searches’ upon the citizenry of Nashville" and, more generally, to use "excessive and unwarranted force" in the course of performing their duties, dismissing municipal liability claim as insufficiently pleaded); Mhoon v. Metro. Gov't of Nashville and Davidson Cty., 2016 WL 6250379, at * 7 (M.D. Tenn. Oct. 26, 2016) (where plaintiff failed to "identify or describe any of Metro's actual policies" and "extrapolate[d] ... one instance into a general hypothesis," dismissing policy or custom claim as vague and lacking well-pleaded facts to support the legal conclusion that Metro had actually adopted any policy or unwritten custom or practice). Second, Spainhoward has not set forth any facts that there were prior instances of similar misconduct to show that White County was on notice that its training and supervision with respect to vehicular pursuits or the use of force was deficient. See Burgess, 735 F.3d at 478. Indeed, "the Amended Complaint does not identify or describe any of [White County's] policies, procedures, practices, or customs relating to training; it does not identify any particular shortcomings in that training or how those shortcomings caused the alleged violation of [Dial's] rights; and it does not identify any other previous instances of excessive force or similar violations that would have put [White County] on notice of a problem." Minick, 2014 WL 3817116, at *2 (dismissing, for same reasons, failure to train claim where officers struck arrestee until he fell into a coma and later died); see also Okolo v. Metro. Gov't of Nashville and Davidson Cty., 892 F. Supp. 2d 931, 944 (M.D. Tenn. 2012) (dismissing Section 1983 claim premised on failure to train, supervise, and adequately screen police officers that was alleged without supporting facts). Nor does the Complaint allege a "complete failure" or grossly negligent training of the police force such that future police misconduct is almost inevitable.
The Complaint recognizes that the officers involved in the pursuit did not use deadly force until authorized to do so by Shoupe, and the video exhibit reveals that West even sought confirmation of Shoupe's order before drawing his weapon. (Docs. No. 1, 6.)
Numerous other district courts in this circuit have, where appropriate, reached similar conclusions concerning these types of Section 1983 municipal liability claims, often involving the alleged use of excessive force. See, e.g., French v. Davidson Cty. Sheriff's Office, No. 3:18-cv-00073, 2018 WL 1763207, at *2 (M.D. Tenn. Apr. 12, 2018) (concluding that the complaint was insufficient because it did not identify or describe any of Davidson County's policies, procedures, practices, or customs relating to training, identify any specific shortcomings in training, or identify any previous similar violations that would have put Davidson County on notice of a problem); Hall v. City of Williamsburg, Ky., Civil Action No. 6:16-304-DCR, 2017 WL 3668113, *13 (E.D. Ky. Aug. 24, 2017) ("[T]he majority of [plaintiff's] allegations relating to the City['s] liability are vague recitations of the elements for a claim that are unsupported by any factual allegations.... These allegations are deficient under pleading standards. [Plaintiff] cannot reasonably expect entitlement to relief on the basis of a claim that is entirely unsupported by any particularized factual support."); Cooper v. Rhea Cty., Tenn., 302 F.R.D. 195, 201 (E.D. Tenn. 2014) (dismissing allegation that "[t]he customs, practices, and policies of the Rhea County Sheriff's Department, as promulgated by [d]efendant, Rhea County, Tennessee through [d]efendant, [Sheriff] Mike Neal, facilitated a substantial risk of serious harm and injury to [p]laintiff, and [d]efendant, [Sheriff] Mike Neal, failed to properly train and supervise the [a]rresting [o]fficers so as to prevent the serious bodily injuries suffered by the Plaintiff" as a "string of legal conclusions that cannot be credited without factual support" to form a basis for municipal liability); Vidal v. Lexington-Fayette Urban Cty. Gov't, No. 5:13-117-DCR, 2014 WL 4418113, *4 (E.D. Ky. Sept. 8, 2014) (where plaintiff alleged that the municipality "negligently trained and/or supervised [the officer] with respect to arrest, proper police procedures, use of excessive force, and use of force and seizure policies," dismissing claim because it was a legal conclusion did no more than "recite[ ] the legal requirements for a claim against a municipality without any factual allegations that would raise a right to relief above the speculative level) (citations and quotation marks omitted); Chacon v. Clarksville Police Dep't, No. 3:12-cv-00884, 2012 WL 6699655, at *4 (M.D. Tenn. Dec. 21, 2012) (collecting cases and dismissing municipal liability claims premised upon boilerplate allegations arising from one incident of alleged police brutality); Johnson v. Gannon, No. 3:09-0551, 2010 WL 1658616, at *3-4 (M.D. Tenn. Apr. 23, 2010) (in excessive force case arising from fatal shooting, dismissing municipal liability claim where plaintiff made only a "formulaic recitation of the elements" of a failure to train claim" requiring the court to conclude that the complaint lacked "any supporting facts to patch the threadbare legal claims for failure to train, supervise and discipline police officers and for adoption of improper pursuit policies or customs"); Hutchison v. Metro. Gov't of Nashville and Davidson Cty., 685 F. Supp. 2d 747, 751 (M.D. Tenn. 2010) (dismissing municipal liability claim where plaintiff alleged that defendant had both policy and failure to train regarding stopping vehicles and using excessive force but provided "no additional factual support," thus "stop[ping] short of the line between possibility and plausibility"); Birgs v. City of Memphis, 686 F. Supp. 2d 776, 780 (W.D. Tenn. 2010) (dismissing municipal liability claims because, "a plaintiff has the burden to plead more than conclusory statements," and, "[s]tripped of legal language, [p]laintiff's [c]omplaint contains no fact that could plausibly lead one to believe that the City deliberately ignored a history of abuse by officers in the Memphis Police Department[, ... and] fails to allude to any incident of brutality other than the one [the plaintiffs] allegedly suffered," and thus the complaint failed to allege "more than a sheer possibility that a defendant ha[d] acted unlawfully").
Accordingly, the Court concludes that the Complaint does not contain sufficient allegations to state a claim for municipal liability against White County on a policy or custom or failure to train theory. The Court recognizes that presenting certain municipal liability claims has grown considerably more difficult in the decade since Twombly and Iqbal, "but the prevailing view within this circuit and within this district is that allegations that essentially amount to notice pleading of a municipal liability claim are insufficient." Minick, 2014 WL 3817116, at *2 ; see also Johnson v. Metro. Gov't of Nashville and Davidson Cty., 2010 WL 3619790, at *2-*3 (reluctantly dismissing municipal liability claim); Hutchison, 685 F. Supp. 2d at 752 (noting discomfort with the application of this pleading standard to Section 1983 municipal liability claims). Accordingly, these claims will be dismissed.
2. Single Act of Policymaker Claim
There remains Spainhoward's third theory of municipal liability – Shoupe's single act as policymaker of authorizing the use of deadly force against Dial. The Court discussed above that Spainhoward has alleged that Dial's rights were violated but explained that West and Shoupe were entitled to qualified immunity on the individual claims against them. Here, Spainhoward seeks to hold White County liable for the specific role Shoupe played in this incident. As a threshold matter, the termination of claims against individuals who allegedly perpetuate harms does not necessarily extinguish separate Section 1983 municipal liability claims. See, e.g., Moldowan v. City of Warren, 578 F.3d 351, 394 & n. 20 (6th Cir. 2009) (holding that, although the plaintiff might not be able to establish that the officer who destroyed case evidence violated his rights, he "nevertheless may be able to show that the individual with final policymaking authority who directed ... the destruction of the evidence was aware of its materiality ... and thus did violate [the plaintiff's] rights" under relevant law); Gregory, 444 F.3d at 760-61 (affirming summary judgment for individual defendants sued in their individual and official capacities, but finding that the city could be still liable for Monell claims based on same subject matter); Nichols v. Knox Cty., Tenn., 718 F. App'x 338, 341 (6th Cir. 2017) (concluding settlement of individual Section 1983 claims "did not resolve separate Monell claims"). "A plaintiff does not need to establish a pattern of past misconduct where the actor was a policymaker with final policymaking authority." Burgess, 735 F.3d at 479 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481-84, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion); Miller v. Calhoun Cty., 408 F.3d 803, 816 (6th Cir. 2005) ); Arnold v. City of Columbus, 515 F. App'x 524, 538 (6th Cir. 2013). On a single-act theory, a plaintiff must demonstrate that a "deliberate choice to follow a course of action is made from among various alternatives by the official ... responsible for establishing final policy with respect to the subject matter in question." Burgess, 735 F.3d at 479 (citing Pembaur, 475 U.S. at 483, 106 S.Ct. 1292 (holding that municipal liability can attach "only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered")); see also Meyers v. City of Cincinnati, 14 F.3d 1115, 1118 (6th Cir. 1994) ("If the decision to punish him for exercising his constitutional rights was made by the ‘government's authorized decisionmakers’ the [c]ity is responsible."). As the Supreme Court explained in Pembaur:
To be sure, "official policy" often refers to formal rules or understandings—often but not always committed to writing – that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time.... However, as in Owen and Newport [v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981)], a government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government's authorized decision-makers, it surely represents an act of official government "policy" as that term is commonly understood. More importantly, where action is directed by those who establish governmental policy, the municipality is equally responsible whether the action is to be taken only once or to be taken repeatedly. To deny compensation to the victim would therefore be contrary to the fundamental purpose of § 1983.
Pembaur, 475 U.S. at 480-81, 106 S.Ct. 1292 (emphasis added). "Final" authority is "unreviewable and ... not constrained by the official policies of superior officials." Miller, 408 F.3d at 814. Moreover, the final policymaker's one-time course of action must actually cause or be the moving force behind the plaintiff's harm. Monell, 436 U.S. at 694, 98 S.Ct. 2018 ; Pembaur, 475 U.S. at 484-85, 106 S.Ct. 1292. Thus, for at least twenty years, the courts have held that, in appropriate circumstances, a municipality may be held liable for the actions of a final policymaker "even though those actions were not taken pursuant to an overarching policy." Moldowan, 578 F.3d at 394.
The Supreme Court has instructed that it is the "court's task ... to identify those officials or governmental bodies who speak with final policymaking authority" for the municipal entity whose action is alleged to have caused the constitutional violation at issue. McMillian v. Monroe Cty., 520 U.S. 781, 784-85, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997). In Tennessee, a county sheriff is a municipal policymaker as to law enforcement decisions. Holloran v. Duncan, 92 F. Supp. 3d 774, 786 (W.D. Tenn. 2015) (citing Spurlock v. Sumner Cty., 42 S.W.3d 75, 82 (Tenn. 2001) (answering certified question)); Siler v. Webber, Case No. 3:05-cv-341, 2009 WL 10680020, at *26 (E.D. Tenn. Apr. 21, 2009) (same). Spainhoward alleges that Shoupe, acting as "the ultimate authority on creation, implementation and enforcement of [law enforcement] policy for White County," "affirmatively ordered the officers present to act in a fashion that violated the federal constitutional rights of citizens, including specifically [Dial]," when, upon hearing the deputies were attempting to use PIT maneuver, "he communicated to instead use deadly force ... solely to prevent damage to patrol cars." (Doc. No. 1 at ¶¶ 25-26, 91.) As discussed above, the video exhibit demonstrates that the radio dispatcher stated, "per 59 [Sheriff Shoupe], take him out by any means necessary including deadly force."
The Court concludes that the Complaint sufficiently alleges that Shoupe, as the final policymaker directing the law enforcement officers involved in the pursuit, made a deliberate choice to follow a course of action from among various alternatives – that is, to issue a blanket order authorizing the use of deadly force to "take out" Dial – and that he did so without regard for evolving circumstances and driven by a fleeting desire to preserve police property. In other words, she alleges that Shoupe authorized the use of deadly force for improper reasons and in disregard of what else might occur during the pursuit that could affect the legality of the use of deadly force. The Complaint further alleges that, despite Dial being pushed off the roadway by Deputy Young in a PIT maneuver and not posing an immediate safety threat to West or others, West (who had unholstered his weapon upon hearing Shoupe's authorization) immediately began firing at Dial "because he was ordered to do so by" Shoupe (id. at ¶¶ 27-32), and, thus, Shoupe's authorization "actually caused" the eventual injuries to Dial. Therefore, because Spainhoward alleges that Dial was deprived of his constitutional rights by Shoupe in his role as final policymaker for the Sheriff's Office, municipal liability could attach to White County. See Pembaur, 475 U.S. at 484-85, 106 S.Ct. 1292 (finding Monell liability where final policymaker made a "decision based on his understanding of the law," "commanded the officers [to] forcibly to enter [plaintiff's] clinic," and "that decision directly caused the violation of [plaintiff's] Fourth Amendment rights"). Accordingly, dismissal of this claim is not appropriate.
White County suggests that because the Complaint does not provide additional information about what specific information Shoupe had about the pursuit at the time he issued his order, this claim is not plausible. (Doc. No. 19 at 18.) But regardless of what information Shoupe had, Shoupe could not possibly have known what events might transpire. The Complaint thus alleges that his blanket command was improper. Beyond this, however, White County calls for information that Spainhoward cannot be expected to have at this stage of the case. After appropriate discovery, this is an argument more suited to a motion for summary judgment.
IV. Conclusion
There is no "easy-to-apply legal test in the Fourth Amendment context." Davenport v. Causey, 521 F.3d 544, 551 (6th Cir. 2008). In this difficult case, a suspended driver's license led to a loss of human life. At the motion to dismiss stage, however, the role of the Court is not to render judgment of anyone involved in this tragedy. Rather, the Court is required to examine whether the plaintiff has sufficiently alleged violations of federal law such that this case may proceed under certain theories of liability. As explained above, (1) the Motions to Dismiss of Defendants Sims and City of Sparta (Doc. Nos. 36, 40) will be granted and (2) the Motion to Dismiss of Defendants West, Shoupe, and White County (Doc. No. 18) will be granted in part and denied in part. Defendants West and Shoupe are entitled to qualified immunity and dismissal of the individual claims against them. All other claims will be dismissed under Federal Rule of Civil Procedure 12(b)(6) except for the "single act of a policymaker" municipal liability claim against White County. This case will be returned to the Magistrate Judge for further case management.
An appropriate order will enter.