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Stewart v. City of Memphis

United States District Court, W.D. Tennessee, Western Division

February 15, 2017

MARY STEWART as next of kin and Administrator Ad Litem of the Estate of DARRIUS STEWART, Deceased, and HENRY WILLIAMS as next of kin and Father of DARRIUS STEWART, Plaintiffs,
v.
CITY OF MEMPHIS, TONEY ARMSTRONG, in his official capacity as the former Police Director of the Memphis Police Department, OFFICER CONNER SCHILLING, individually and in his official capacity as a former Police Officer of the Memphis Police Department, Defendants.

          ORDER PARTIALLY GRANTING AND PARTIALLY DENYING MOTION TO DISMISS AND/OR MOTION TO STRIKE OF DEFENDANT CITY OF MEMPHIS

          S. THOMAS ANDERSON UNITED STATES DISTRICT JUDGE

         Plaintiffs Mary Stewart as next of kin and as Administrator Ad Litem of the Estate of Darrius Stewart, deceased, and Henry Williams as next of kin and father of Darrius Stewart filed this action pursuant to 42 U.S.C. § 1983 against the City of Memphis, Toney Armstrong in his official capacity as the former director of the Memphis Police Department, and Conner Schilling individually and in his official capacity as a former officer with the Memphis Police Department. Plaintiffs also allege various state law claims.

         Defendant City of Memphis has filed a motion to dismiss all claims against it and the official capacity claims against Defendants Armstrong and Schilling. (ECF No. 12.) In the alternative, Defendant has moved to strike certain portions of the complaint. Plaintiffs have filed a response to the motion (ECF No. 19), and Defendant has filed a reply to the response. (ECF No. 20.) For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN PART.

         Allegations of the Complaint

         The complaint (ECF No. 1) alleges as follows. On July 17, 2015, Darrius Stewart, a black male, was a passenger in a vehicle stopped by Officer Schilling, a white male. (Id. at ¶ 9.) The alleged basis for the stop was a faulty headlight. (Id. at ¶ 10.) Each of the occupants of the vehicle complied with Officer Schilling's instructions and answered his questions truthfully. (Id. at ¶ 11.) None of the occupants of the vehicle had used alcohol or drugs on that date. (Id. at ¶ 12.)

         For unknown reasons, Officer Schilling indicated that he was going to run a computer query regarding whether or not any of the occupants had outstanding warrants. (Id. at ¶ 13.) The Memphis Police Department has a practice of checking on young black males more often for warrants than it does for older white males. (Id. at ¶ 14.)

         Officer Schilling allegedly received information that indicated that Stewart might have outstanding warrants, although Plaintiffs dispute the validity of the warrants and allege that he was innocent of any charges purportedly made against him while he was a minor. (Id. at ¶¶ 15-17.) Stewart had been stopped previously by the Memphis Police Department but had never been advised of outstanding warrants. (Id. at ¶ 19.)

         Officer Schilling began being “rough” with Stewart before Officer Schilling knew of the warrants, and he asked Stewart to exit the vehicle. Stewart fully complied with the directions of Officer Schilling and exited the vehicle and allowed himself to be “patted down” to satisfy Officer Schilling that he was not armed and did not pose a threat. (Id. at ¶ 21.)

         Officer Schilling then placed Stewart in the caged backseat of the police car, without being handcuffed and without being placed under arrest. It is a common custom and practice that Memphis Police officers place un-arrested citizens in the back of police cars without being handcuffed. This occurs on a daily basis and is such a common occurrence that Officer Schilling believed that he was acting in accordance with the standards and practice of the Memphis Police Department. (Id. at ¶¶ 22-24.)

         Officer Schilling issued a citation to the driver of the vehicle and allowed that vehicle to leave the scene. (Id. at ¶ 26.) Before allowing the vehicle to leave, Officer Schilling had not received any radio transmissions regarding any law enforcement entity's intent to transport or detain Stewart. (Id. at ¶ 27.)

         Officer Shilling left his radio on after receiving a coded transmission that alerted him that he needed to receive radio transmission information outside the presence of Stewart. (Id. at ¶ 29.) Stewart overheard the radio transmission that he was to be held on outstanding warrants. (Id. at ¶ 30.) The Memphis Police Department has a custom and practice of allowing un-arrested individuals who are in the back of a squad car to hear this type of coded radio transmission. (Id. at ¶ 31.)

         Officer Schilling did not call for back-up support after learning that he needed to detain and transport Stewart. (Id. at ¶ 32.) It is a common custom and practice for officers of the Memphis Police Department to fail to call for back-up when placing subjects under arrest, especially when the officer is physically advantaged over smaller individuals, including youth and women. (Id. at ¶¶ 33-34.)

         Officer Schilling was physically larger and stronger than Stewart and had been trained in the use of force, hand-to-hand combat, and in physical submission tactics. (Id. at ¶¶ 35-36.) Stewart had not been trained in the use of force, hand-to-hand combat, or physical submission tactics. (Id. at ¶ 37.) These factors all played into Officer Schilling's belief that he did not need back-up, and these factors are commonly applied by Memphis police officers to determine whether back-up is needed when arresting citizens. (Id. at ¶¶ 38-39.)

         Officer Schilling then decided to arrest Stewart and place him in handcuffs. (Id. at ¶ 40.) After Officer Schilling opened the door to the back of the police car, Stewart tried to flee, and Officer Schilling began assaulting him. (Id. at ¶¶ 41-42.) While Officer Schilling was on top of Stewart on the ground, Stewart loudly cried “I can't breath” or “I can't f**king breath.” (Id. at ¶ 43.)

         During the struggle, Officer Schilling shot Stewart once in the upper right chest; the first gunshot was not a fatal shot and was not the cause of the death of Stewart. (Id. at ¶¶ 44-45.) Some period of time passed, and Officer Schilling shot Stewart again as Stewart stood up and was in the process of turning and fleeing away from the scene. (Id. at ¶ 46.) The second shot was fatal. (Id. at ¶ 47.) Stewart was unarmed when he attempted to flee and was killed by Officer Schilling. (Id. at ¶ 48.) Stewart was killed as a direct and proximate result of the actions or omissions of Defendants. (Id. at ¶ 51.)

         The City of Memphis has a history of its police officers shooting unarmed black men who are attempting to flee. (Id. at ¶¶ 49-50.)

         At all relevant times, Officer Schilling was acting in his official capacity as a law enforcement officer for the Memphis Police Department and acting under color of state law. (Id. at ¶ 53.) Alternatively, Officer Schilling was acting in his individual capacity. (Id. at ¶ 55.)

         The policies, customs, and training of the City of Memphis were allegedly the driving force behind the deprivation of constitutional rights sustained by the decedent Darrius Stewart. (Id. at ¶ 54.)

         According to Plaintiffs, the actions of Defendants violated the rights of the decedent Darrius Stewart under the Fourth and Fourteenth Amendments of the Constitution in that he was deprived of his rights to freedom from the unlawful seizure of his person, freedom from the use of unjustified and excessive force, and the freedom from deprivation of liberty without due process of law. (Id. at ¶ 57.) Specifically, those rights were violated when Officer Schilling shot the decedent Darrius Stewart who was unarmed and fleeing. (Id. at ¶ 62.)

         Plaintiffs further allege that, on the relevant date, the City of Memphis had an official pattern, custom, and practice of allowing its officers to use excessive and unjustified force knowing that such practice violated the civil rights of the decedent Darrius Stewart and others. (Id. at ¶ 58.)

         Also, on the relevant date, the City of Memphis allegedly had no policy as to how to handle individuals such as the decedent Darrius Stewart, how not to escalate a situation such as that presented in this case, did not train its officers in how to deal appropriately with such a situation, and did not properly investigate such officer shootings. (Id. at ¶¶ 59, 62.) The City of Memphis allegedly approved and/or ratified the conduct of its officers in violating the civil rights of others by failing to discipline those officers and allowing them to continue as officers and acted with deliberate indifference toward the decedent Darrius Stewart by allowing its officers to escalate situations such as the one presented in this case. (Id. at ¶¶ 60-61.) The City of Memphis and Director Armstrong have allegedly sent “the clear message to police officers that it is okay to shoot first and ask questions second if the officer thinks that there is any chance that a potential suspect or future victim may have a weapon or may pose a threat to officers, ” as evidenced by other police shootings in Memphis. (Id. at ¶ 61.) Specifically, the City of Memphis has a policy and/or custom of its officers failing to call for back-up and receiving coded radio transmissions in the presence of citizens not yet under arrest. (Id. at ¶ 72.)

         The City of Memphis allegedly violated the rights of the decedent Darrius Stewart in its hiring, firing, and supervision of Officer Schilling. (Id. at ¶ 77.) The City of Memphis allegedly fails to properly investigate complaints against its officers and encourages a “Code of Silence” whereby officers are encouraged not to report misconduct by fellow officers and not to cooperate with investigations of fellow officers. (Id. at ¶¶ 67-68, 92-97.)

         The actions of Defendants allegedly resulted in the death of Darrius Stewart whether directly or as an underlying cause of his death. (Id. at ¶¶ 71, 108.)

         Plaintiffs also allege state law claims of wrongful death (Id. at ¶ 111), negligent hiring, supervision, and retention on the part of the City of Memphis, (Id. at ¶ 112), and negligent and/or intentional infliction of emotional distress. (Id. at ¶ 113.)

         Plaintiffs seek compensatory and punitive damages, as well as injunctive and declaratory relief. (Id. at ¶¶ 115- 117.)

         Standard of Review

         The Federal Rules of Civil Procedure require that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”[1] A complaint may be attacked for failure “to state a claim upon which relief can be granted.”[2] When considering a Rule 12(b)(6) motion to dismiss, a Court will presume that all the factual allegations in the complaint are true and will draw all reasonable inferences in favor of the nonmoving party.[3]“The court need not, however, accept unwarranted factual inferences.”[4]

         Even though a “complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”[5] Instead, the plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”[6] That is, a complaint must contain enough facts “to state a claim to relief that is plausible on its face.”[7] A claim becomes plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[8] If the Court cannot “infer more than the mere possibility of misconduct, the complaint has alleged-but has not ‘show[n]'-‘that the pleader is entitled to relief.'”[9] “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.”[10]

         Rule 12(f) of the Federal Rules of Civil Procedure allows a court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”[11] The language of Rule 12(f) is permissive and not mandatory. The Sixth Circuit has stated that Rule 12(f) motions to strike “are viewed with disfavor and are not frequently granted.”[12] A motion to strike serves the purpose “to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with” them early in the case.[13] As such, a court should grant a motion to strike “if it appears to a certainty that [the moving party] would succeed despite any state of the facts which could be proved in support of the [claim for relief or] defense and are inferable from the pleadings.”[14]

         Defendant City has filed its motion under either Rule 12(b)(6) or Rule 12(f). When a defendant alleges that the plaintiff is not entitled to the relief sought, it is analyzed as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), even if the motion is denoted a “motion to strike.”[15] Accordingly, the Court has considered Defendant's motion under Rule 12(b)(6).

         Pension Board

         Defendants contend that the complaint fails to state a claim against the Pension Board of the City of Memphis. In their response, Plaintiffs have clarified that “[t]he statements regarding the actions of the City's Case Pension Board and the ratification of such actions of the City are fact allegations describing the policy of the City with regard to the actions of its officers in such cases of excessive force rather than a statement of a claim against the City's Pension Board.”[16]

         Accordingly, to the extent necessary, Defendant's motion to dismiss the claims against the Pension Board is granted.

         Section 1983 Claims

         Official Capacity Suits

         Plaintiffs have sued Defendant Armstrong in his official capacity as the former director of the Memphis Police Department and Defendant Officer Schilling in his individual and official capacities as a former officer with the Memphis Police Department. Defendant City of Memphis has moved the Court to dismiss the official capacity suits against Defendant Armstrong and Defendant Schilling.

         It is well-settled that an official capacity suit is nothing more than a suit against the governmental entity.[17] “There is no longer a need to bring official-capacity actions against local government officials, for ... local government units can be sued directly for damages and injunctive or declaratory relief.”[18] Here, the official capacity designation is redundant because Plaintiffs have named the City of Memphis as a defendant. Therefore, the portion of the motion seeking to dismiss the official capacity claims brought against Defendants Armstrong and Schilling is granted.[19]

         Claims Under the Fourteenth Amendment

         Defendant contends that Plaintiffs have failed to state a §1983 claim under the Fourteenth Amendment. To state a claim for the deprivation of a constitutional right under 42 U.S.C. § 1983, a plaintiff must allege (1) that the defendant acted under color of state law and (2) that the defendant's conduct deprived the plaintiff of rights secured by the Constitution.[20] Section 1983 does itself not confer substantive rights but serves as a means to vindicate rights already conferred by the Constitution or laws of the United States.[21] The Sixth Circuit has recognized that a claim concerning a police officer's use of excessive force can fall under the Fourth, the Eighth, or the Fourteenth Amendments.[22] A plaintiff's status at the time of the police conduct determines which amendment governs the claim.[23] The Fourth Amendment's guarantee against unreasonable searches and seizures applies to excessive force claims brought by free citizens;[24]the Eighth Amendment's protection from cruel and unusual punishment applies to excessive force claims alleged by convicted persons;[25] and the Fourteenth Amendment's Due Process Clause applies to excessive force claims “[w]hen a citizen does not fall clearly within either category-e.g., pretrial detainees.”[26]

         Applying these principles to the allegations in this case, the Court finds that Plaintiffs have failed to plead a § 1983 claim for the violation of Stewart's Fourteenth Amendment rights. The complaint alleges that Defendants violated Stewart's rights in the course of an investigative stop and subsequent arrest. It is well-settled that the “Fourth Amendment prohibits the use of excessive force by arresting and investigating officers”[27] and that an “excessive force claim [which] arises in the context of an . . . arrest or investigative stop of a free citizen” is a “seizure” invoking the Fourth Amendment.[28] In light of this authority, the Court holds that the Fourth Amendment applies to Plaintiffs' excessive force claims against Defendants during the stop and arrest of the decedent.

         The Sixth Circuit has been clear that “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process under the Fourteenth Amendment.”[29] As such, the complaint fails to state a § 1983 claim for the violation of Stewart's Fourteenth Amendment rights and must be analyzed under the Fourth Amendment.[30] Therefore, Defendant's motion to dismiss the Fourteenth Amendment claim is granted.

         Claims Against the City of Memphis

         Defendant City of Memphis also asks the Court to dismiss Plaintiffs' remaining § 1983 claims against it. Defendant contends that the complaint contains no “plausible allegations of acts or omissions attributable to the City of Memphis constituting a violation of Stewart's constitutional rights, and therefore, fails to state a claim under 42 U.S.C. §1983.”[31] To the contrary, the complaint is replete with allegations against the City.

         Plaintiffs have alleged, inte ...


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