Merrill v. Seagraves

RYAN TYLER MERRILL, Plaintiff, v. JONATHAN SEAGRAVES, GREG FELL, CITY OF BROKEN ARROW, and BRANDON BERRYHILL, Defendants.

No. CIV-22-07-RAW-GLJ

United States District Court, E.D. Oklahoma

November 28, 2022

REPORT AND RECOMMENDATION

GERALD L. JACKSON, UNITED STATES MAGISTRATE JUDGE

Ryan Merrill (“Plaintiff') filed this civil rights action against Defendants Jonathan Seagraves and Greg Fell Officers with the Broken Arow Police Department, as well as Broken Arrow Police Chief Brandon Berryhill and the City of Broken Arrow, alleging he was subject to excessive force under the Fourth and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983, as well as alleging claims of failure to train and failure to supervise. This matter now comes before the Court on Defendant Greg Fell's Motion to Dismiss Amended Complaint and Brief in Support [Docket No. 29]. On October 14, 2022, the Court referred this case to the undersigned Magistrate Judge for all further proceedings in accordance with jurisdiction pursuant to 28 U.S.C. § 636. See Docket No. 45. For the reasons set forth below, the undersigned Magistrate Judge now finds that Defendant Fell's Motion to Dismiss should be DENIED.

Background

As relevant to this motion, Plaintiff states in his Amended Complaint that he was driving on December 3, 2020, in Broken Arrow, Oklahoma when he was pulled over by Seagraves. See Docket No. 24, p. 3, ¶¶ 10-11. Seagraves was not wearing a mask when he approached the vehicle, so Plaintiff only partially rolled down his window to pass his license and insurance verification out of concern regarding the high level of COVID-19 at the time. Id. Seagraves went back to his car, prepared a citation, and returned to the vehicle where Plaintiff again only partially rolled down his window to receive a citation for an expired tag. Seagraves demanded he fully roll down the window, but Plaintiff declined to roll it further than he deemed necessary to receive and sign the citation. Seagraves then returned to his vehicle without giving further instructions. Id., p. 4, ¶ 12. It is not clear from the Amended Complaint whether Seagraves attempted to pass the citation through the partially open window or whether Plaintiff signed the citation before Seagraves returned to his vehicle.

Plaintiff next stated that after Seagraves returned to his patrol vehicle, he waited “several more minutes” then drove within the speed limit toward his stepbrother's house while being followed by Seagraves. During the drive Seagraves was also joined by other officers, including Fell. Upon arriving, Plaintiff states that he “ran up on a porch where he had been working,” turned to face the approaching officers, and held his hands in the air with his phone in his right hand. He asserts that he had no weapon and did not act in an aggressive manner. Id., p. 4 ¶¶ 13-14. Both Seagraves and Fell approached Plaintiff with their firearms pointed at him while he pleaded with the officers not to kill him. Id. p. 5, ¶ 15. Without warning, Seagraves drew his Taser and shot Plaintiff in the chest, incapacitating him and causing him to fall face down. Without warning, Seagraves then discharged the Taser a second time, hitting Plaintiff in the back. Id., p. 5, ¶¶ 17-19. As relevant here, Plaintiff alleges that Fell failed to intervene to prevent the second Taser hit to his back. Id., ¶ 18. He alleges that Fell observed Seagraves pointing the Taser at Plaintiff for longer than fifteen seconds, knew that unreasonable force was being threatened and used, and failed to intervene to protected Plaintiff when he posed no threat of danger to the officers or anyone else. Id., p. 5, ¶ 22. EMSA personnel responded to the scene, but Seagraves and Fell refused transport and instead took Plaintiff to the Broken Arrow City jail before transporting him to St. John Medical Center in Tulsa, Oklahoma, where he was admitted in restraints. Id., ¶¶ 22-23.

Procedural History

Plaintiff filed this case on January 4, 2022. See Docket Nos. 1-2. He alleges several causes of action in his Amended Complaint, all pursuant to § 1983, including excessive force as to Seagraves and municipal liability as to the City of Broken Arrow and Police Chief Berryhill, while his sole claim as to Fell alleges failure to intervene. See Docket No. 25. Fell filed a Motion to Dismiss the claim against him [Docket No. 29].^[1]

Analysis

Fell moved to dismiss the claims against him, asserting that he had no reasonable opportunity to prevent the alleged excessive force, and that he is entitled to qualified immunity as the alleged acts and omissions were not prohibited by clearly established law. Plaintiff contends he has sufficiently alleged a claim as required under Fed.R.Civ.P. 8(a).

Applicable Standards

To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557, 570 (2007)). Detailed factual allegations are not required, but the statement of the claim under Rule 8(a)(2) must be “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555 (2007)). See generally Fed.R.Civ.P. 8(a)(2) (complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]”). “While the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in h[is] complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). Thus, the appropriate inquiry is “whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (quoting Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007)). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement[.]” Iqbal, 556 U.S. at 678.

Fell contends that he is entitled to qualified immunity at this stage. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity is ‘an immunity from suit rather than a mere defense to liability.'” Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). While Twombly “rejects a heightened pleading standard[,]” Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008), “[t]he Twombly standard may have greater bite in such contexts, appropriately reflecting the special interest in resolving the affirmative defense of qualified immunity at the earliest possible stage of a litigation.” Acosta v. Jani-King of Oklahoma, Inc., 905 F.3d 1156, 1160 (10th Cir. 2018) (quoting Robbins, 519 F.3d at 1249). Indeed, “Iqbal reinforced our earlier statement that in a § 1983 action it is particularly important that the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations against the state.” Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011) (emphasis in original) (quotations omitted).

Once a defendant has asserted a qualified immunity defense, “the plaintiff must meet a strict two-part test” to establish “‘(1) that the defendant violated a constitutional or statutory right, and (2) that this right was clearly established at the time of the defendant's conduct[.]'” McBeth v. Himes, 598 F.3d 708, 716 (10th Cir. 2010) (quoting Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009)). See also Brown, 662 F.3d at 1164 (same). “When qualified immunity is asserted in the context of a motion to dismiss, the factual allegations of the complaint are assumed to be true, and the court's analysis generally aligns with the analysis applied with determining the sufficiency of a claim.” Harper v. Woodward County Bd. Of County Commissioners, 2014 WL 7399367, at *8 (W.D. Okla. Dec. 29, 2014) (citing Brown, 662 F.3d at 1162-1164 and Iqbal, 556 U.S. at 666, 673-675, 677-684). This means that, even at the dismissal stage, Plaintiff bears the burden of showing he has alleged a constitutional violation that was clearly established. See Bledsoe v. Carreno, 2022 WL 16942631, at *21 n.25 (10th Cir. Nov. 15, 2022) (slip op.) (“Appellants are correct that once they asserted qualified immunity in the district court, which they did here, it was Bledsoe's burden to show both that he had alleged a constitutional violation and that that violation was clearly established.”) (citing Cox v. Glanz, 800 F.3d 1231, 1245 (10th Cir. 2015)). The question before the Court, then, is whether Fell is entitled to qualified immunity on Plaintiff's claim for failure to intervene. The undersigned Magistrate Judge finds that he should not be granted qualified immunity at this stage.

Failure to Intervene

“A plaintiff states a constitutional violation in the form of failure to intervene by...