BENDER v. TOWN of HOMER

VERNECIA L BENDER

v.TOWN OF HOMER, ET AL.

CIVIL ACTION NO. 5:10-CV-01496

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

Dated: April 13, 2011

JUDGE ELIZABETH ERNY FOOTE

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER

Before the Court is a Motion to Dismiss [Record Document 3] the claims by Plaintiff, Vernecia¹ Bender ("Bender"), against the Town of Homer, Louisiana; the Chief of Police of Homer; and four police officers of Homer, arising out of the officers' actions to restrain and arrest Bender. Defendants move to dismiss Bender's Complaint for failure to state a cause of action under Rule 12(b)(6). Plaintiff has failed to respond to the Motion to Dismiss. The Court holds: 1.) Plaintiff has sufficiently stated an excessive-force claim under the Fourth Amendment but only as to Officers Smith, McDaniel, and Thomas; 2.) Plaintiff has sufficiently stated a claim for an entitlement to relief under state law but only as to Officers Smith, McDaniel, and Thomas and the Town of Homer as their employer; 3.) Plaintiff does not sufficiently plead any cause of action under state or federal law as to Officer Glenn or Chief of Police Russell Mills; and 4.) Plaintiff does not sufficiently plead the various other federal claims in her Complaint. Therefore, for the reasons stated and to the extent explained further herein, the Court GRANTS in part and DENIES in part Defendants' Motion to Dismiss [Record Document 3].

I. Procedural History

Plaintiff, Bender, filed a Complaint alleging an entitlement to relief for violations of numerous federal and state claims². Plaintiff alleges that Defendants (the Town of Homer; the Chief of Police Russell Mills; and police officers Roger Smith, Mario Thomas, Scott Glenn, and Evan McDaniel)³ deprived and entered into a conspiracy to deprive Bender of her civil rights under federal and state law. (Complaint, ¶¶ 4.1-5.3). Plaintiff filed suit pursuant to 42 U.S.C. § 1983⁴ alleging violations of Title VII of the Civil Rights Act of 1964 and of the Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendments to the United States Constitution. Plaintiff also alleges state-law claims under Article I, Sections 2, 3, 4, and 13 of the Louisiana Constitution and of Louisiana Civil Code Article 2315, et seq.

Defendants filed a Motion to Dismiss [Record Document 3] asserting that Plaintiff's Complaint fails to state a claim upon which relief can be granted under Rule 12(b)(6). Defendants' motion argues that Defendants are immune from suit for the alleged actions under the doctrine of qualified immunity. Defendants also request, if the Court determines that Plaintiff has not asserted a federal claim, that the Court dismiss the state law claims for lack of subject-matter jurisdiction under Rule 12(b)(1).

Plaintiff has failed to respond to the Motion to Dismiss, and thus it is unopposed. Nonetheless, the Court must analyze Plaintiff's Complaint to determine if the requested relief is appropriate.

II. Law and Analysis

Under Iqbal-Twombly's two-pronged approach, the Court must determine whether the Complaint contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The first step for the Court is to determine those pleadings that are more than just "mere conclusions" and thus are entitled to the presumption of truth. Id. at 1949-50. Then, assuming the veracity of these facts, the Court must determine whether the factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged" and "plausibly give[s] rise to an entitlement to relief." Id.; see also Rhodes v. Prince, 360 Fed. Appx. 555, 557 (5th Cir. 2010) (citing Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996)) ("When reviewing a motion to dismiss, the court must accept all well-pleaded facts as true and view them in the light most favorable to the non-moving party.").

A. Factual Allegations of Bender's Complaint

Plaintiff, in her Complaint, alleges the following facts. Bender, an African- American woman who is "virtually completely hearing impaired," arrived at her home to find her sixteen-year-old daughter being restrained by police officers. Officers Roger Smith and Scott Glenn had drawn their guns on Bender's daughter who was laying on the ground. Bender, who was panicked, began to ask the officers what her daughter had done, and the officers instructed Bender to back away. Bender, who could not hear what the officers were saying to her, then went into the street to ask Officer Mario Thomas what her daughter had done.

Soon thereafter, Bender alleges she realized that her vehicle was overheating and appeared to be smoking.⁵ Bender went to the vehicle, turned the car off, removed the keys, and placed the keys in the seat of the car. After she had removed the keys from the ignition, Officer Thomas, to whom Bender had asked questions in the street, shined a flashlight in Bender's face to get her attention. Officer Thomas asked her, "slowly and loudly," what she had gotten from the car, and Bender explained to Officer Thomas what she had done.

As Officer Thomas began to say something else to Bender, Bender was "suddenly" struck by Officer Smith on her backside. Officer Smith then tased Bender on her right side. Officer Smith "continued to tase Bender" at least five more times, six times in total. Officers McDaniel and Thomas stood by without attempting to stop Officer Smith from tasing Bender. All the while, Bender was yelling that she could not hear what the officers were saying.

Officer McDaniel then told Bender that she was under arrest. Bender complied with the officer and was handcuffed while she lay on the ground. The State filed a Bill of Information charging Bender with violations of Louisiana Revised Statutes 14:130.1, for obstruction of justice, and 14:108(A), for intentional resistance of an officer. These charges were later voluntarily dismissed by the assistant district attorney on February 3, 2010.

B. Plausible Claims Stated

On a fair reading of the factual matter in the Complaint, Plaintiff has only stated a § 1983 claim arising from a violation of the Fourth Amendment of the United States Constitution for excessive use of force and state-law claims under Louisiana Constitution Article I, Section 5,⁶ and Louisiana Civil Code Article 2315. Otherwise, the federal and state constitutional articles cited in the Complaint are irrelevant to the present facts and cannot support a claim for relief given the facts stated in the Complaint. Further, Plaintiff's allegations of conspiracy are wholly conclusory and thus insufficient under Iqbal-Twombly. The Complaint alleges that Defendants "committed various acts to deprive" Bender of her civil rights and "conspired together collectively or in smaller groups to deprive" her of her rights. These allegations are insufficient to overcome a 12(b)(6) motion to dismiss because they merely recite the threadbare legal elements of a conspiracy claim. Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

1. Claim I: Fourth Amendment Violation

Plaintiff states that her Fourth Amendment claims are two-fold: (1) unreasonable and excessive use of force and (2) false arrest without probable cause. While Plaintiff has sufficiently stated a claim for excessive use of force, Plaintiff's Complaint, on its face, reveals that Plaintiff has no claim for false arrest. Further, liability on Plaintiff's excessive-force claim does not extend to all Defendants and must be restricted only to Officers Smith, McDaniel, and Thomas in their individual capacities. The Court now addresses the Plaintiff's two Fourth Amendment claims in detail.

a. The Complaint Does Not Support a § 1983 Claim for False Arrest

The Fourth Amendment protects individuals from arrests not based on probable cause. Resendiz v. Miller, 203 F.3d 902, 903 (5th Cir. 2000) ("A warrantless arrest must be based on 'probable cause.'"). "Probable cause exists when the totality of the facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense." Id.; see also Ornelas v. United States, 517 U.S. 690, 696-97, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Maslanka, 501 F.2d 208, 212 (5th Cir. 1974). "[P]robable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules." Fields v. City of South Houston, 922 F.2d 1183, 1189 (5th Cir. 1991) (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Nonetheless, "[p]robable cause does not require proof beyond a reasonable doubt, but only a showing of the probability that criminal activity has occurred." United States v. Daniel, 982 F.2d 146, 151 (5th Cir. 1993) (per curiam). "If there was probable cause for any of the charges made . . . then the arrest was supported by probable cause, and the claim for false arrest fails." Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (quoting Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995)).

Plaintiff's Complaint alleges facts that make the probable cause for her arrest readily apparent. Bender was arrested and then charged with two offenses: obstruction of justice under La. Rev. Stat. Ann. § 14:130.1 and intentional resistance of an officer under La. Rev. Stat. Ann. § 14:108(A). First, Louisiana's obstruction of justice statute, § 14:130.1, "unlike other states' statutes and the federal statute, prohibits the mere 'movement' of evidence, if done at a location of an incident which the perpetrator has good reason to believe will be the subject of any...