Shemwell v. Cannon
Opinion of the Court
Came on for consideration the motions of defendants City of Arlington ("City") and Jacob Cannon ("Cannon") to dismiss. The court, having considered the motions, the responses of plaintiff, La'Shadion Shemwell, the reply of Cannon, the record, and applicable authorities, finds that the motions should be granted.
I.
Background
On June 10, 2018, plaintiff filed his complaint in this action. Doc.
On June 10, 2016, plaintiff participated in a rally/protest in response to a grand jury decision not to indict an Arlington police officer who had shot and killed a black college student. Doc. 1, ¶ 10. Plaintiff appeared at the rally with his AK-15 rifle. Id. ¶ 11. Protesters marched from Arlington Police headquarters into the Levitt Pavilion, where a concert was ongoing. Id. ¶¶ 11-12. Plaintiff approached the stage and spoke to performers, who allowed the protesters to use their platform. Id. ¶ 12. As the protesters were leaving, an officer requested that plaintiff "sling" or reposition his rifle. Plaintiff refused. Id. ¶ 13. Officers handcuffed plaintiff without incident and put him in a squad car. Id. ¶ 16. Officers drove plaintiff to jail. Id. ¶ 17. Plaintiff was booked and charged with disorderly conduct and resisting arrest. Id. ¶ 18. Plaintiff went to trial on September 26, 2016, but the case ended in a mistrial. Id. ¶ 20. Plaintiff went to trial a second time on November 1, 2016, and was acquitted. Id. ¶ 21.
Plaintiff asserts claims under
By order signed June 22, 2018, the court struck the provision of the complaint naming "Police Officer Does 1-5" and ordered that plaintiff could seek leave to amend his complaint in the event he was able to identify any of the unnamed officers. Doc. 10. He has not done so.
By order signed September 10, 2018, the court noted that there was no record in the file of the action of proper service of summons and complaint on defendants, City, Cannon, and Sharen Wilson ("Wilson"). Doc. 11. In fact, summonses had not been issued. The court ordered that plaintiff file by September 20, 2018, either proof of proper service or an instrument *696containing a satisfactory explanation as to why such proof could not be filed. The order cautioned that failure to comply with the order might result in the dismissal of plaintiff's claims without further notice, as authorized by Fed. R. Civ. P. 4(m).
Wilson filed a motion to dismiss, Doc. 13, which the court granted. Doc. 32. The court directed entry of final judgment as to the dismissal of the claims against Wilson and there has been no appeal therefrom. Doc. 33.
II.
Grounds of the Motions
Cannon maintains that plaintiff's claims are barred by limitations. In addition, he asserts among other things that plaintiff has failed to allege any plausible causes of action, and, even if he has, Cannon is entitled to both qualified and official immunity.
City urges that plaintiff has not alleged facts sufficient to identify any custom or policy that caused him harm. Further, the malicious prosecution claim as pleaded by plaintiff does not state a plausible claim for relief.
III.
Applicable Legal Principles
A. Pleading
Rule 8(a)(2) of the Federal Rules of Civil Procedure provides, in a general way, the applicable standard of pleading. It requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests," Bell Atl. Corp. v. Twombly,
Moreover, to survive a motion to dismiss for failure to state a claim, the facts pleaded must allow the court to infer that the plaintiff's right to relief is plausible. Iqbal,
*697As the Fifth Circuit has explained: "Where the complaint is devoid of facts that would put the defendant on notice as to what conduct supports the claims, the complaint fails to satisfy the requirement of notice pleading." Anderson v. U.S. Dep't of Housing & Urban Dev.,
B. Qualified Immunity
Qualified immunity insulates a government official from civil damages liability when the official's actions do not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald,
In analyzing whether an individual defendant is entitled to qualified immunity, the court considers whether plaintiff has alleged any violation of a clearly established right, and, if so, whether the individual defendant's conduct was objectively-reasonable. Siegert v. Gilley,
The qualified immunity standard "gives ample room for mistaken judgments" by protecting "all but the plainly incompetent or those who knowingly violate the law." Malley, [475 U.S.] at 343,106 S.Ct. 1092 .... This accommodation for reasonable error exists because "officials should not err always on the side of caution" because they fear being sued....
When a defendant relies on qualified immunity, the burden is on the plaintiff to negate the defense. Kovacic v. Villarreal,
C. Municipal Liability
The law is clearly established that the doctrine of respondeat superior does not apply to § 1983 actions. Monell v. New York City Dep't of Soc. Servs.,
Proof of a single incident of unconstitutional activity is not sufficient to impose liability, unless proof of the incident includes proof that it was caused by an existing, unconstitutional policy, which policy can be attributed to a municipal policymaker. Tuttle,
*699Piotrowski v. City of Houston,
The Fifth Circuit has been explicit in its definition of an "official policy" that can lead to liability on the part of a governmental entity, giving the following explanation in an opinion issued en banc in response to a motion for rehearing in Bennett v. City of Slidell:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.
Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.
"A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Connick,
D. Texas Tort Claims Act
Under the doctrine of sovereign immunity, a governmental entity cannot be held liable for the actions of its employees unless a constitutional or statutory provision waives the entity's sovereign immunity in clear and unambiguous language. See Univ. of Tex. Med. Branch v. York,
IV.
Analysis
A. Claims Against Cannon
1. Limitations
Cannon maintains that the claims against him are barred by limitations. Plaintiff does not dispute that a two-year limitations period applies to all of his claims or that the claims accrued on the date of his arrest.
When a federal court borrows the state statute of limitations, it also borrows the state's tolling provisions. Board of Regents of Univ. of State of N.Y. v. Tomanio,
Compliance with Rule 4 of the Federal Rules of Civil Procedure has no bearing on whether limitations has run. Paredes v. City of Odessa,
Based on the foregoing authorities and the excuses
2. Qualified Immunity
As stated, plaintiff asserts claims against Cannon under § 1983 for false arrest *701(Count I) and malicious prosecution (Count III). Plaintiff does not dispute that a claim cannot be brought under § 1983 under a malicious prosecution theory. Cuadra v. Houston Indep. Sch. Dist.,
In count I, plaintiff alleges that his arrest was objectively unreasonable and performed in bad faith. Further, he did not commit a crime, "as the evidence showed during trial." Doc. 1, ¶¶ 23-24. The issue, however, is whether Cannon had probable cause to believe that plaintiff had committed a crime. Cannon is entitled to qualified immunity if a reasonable officer in his position could have believed that, in light of the totality of the facts and circumstances of which he was aware, there was a fair probability that plaintiff had committed or was committing an offense. Haggerty,
The detention of a person requires only a minimal level of objective justification. United States v. Sokolow,
Here, plaintiff alleges that while marching around carrying an AK-15 rifle--a military-style semi-automatic firearm--he entered an outdoor venue where a concert was on-going, approached the stage, interrupting the concert, and asked to make a presentation. When officers asked plaintiff to reposition his rifle or sling it, he refused. Unidentified officers removed plaintiff's rifle from him and handcuffed him. He was arrested and ultimately went to trial twice on disorderly conduct charges. Under the Texas Penal Code, disorderly conduct can include making an offensive gesture or display in a public place which tends to incite an immediate breach of the peace, Tex. Penal Code § 42.01(a)(2), displaying a firearm in a public place in a manner calculated to alarm, Tex. Penal Code § 42.01(a)(8), and obstructing or interfering with a lawful meeting, procession, or gathering by physical action or verbal utterance, Tex. Penal Code § 42.05(a).
Here, plaintiff does not allege facts sufficient to negate the existence of probable cause. That is, he has not shown that no reasonable officer would have believed, based on the totality of the facts and circumstances, that plaintiff had committed or was committing a crime. Nor has he come forward with any case where an officer acting under similar circumstances as Cannon was held to have violated the Fourth Amendment by detaining or arresting a person similarly-situated to plaintiff. District of Columbia v. Wesby, --- U.S. ----,
3. State Law Claims
Cannon argues that all of the state law claims against him must be dismissed pursuant to Tex. Civ. Prac. & Rem. Code § 101.106(a), (e), and (f). Plaintiff responds only with regard to his claims for malicious prosecution and assault and battery. Doc.
*70241 at 21-22. In count IV, plaintiff asserts a state law claim of malicious prosecution, which he describes as "Texas State Law Claim Against Defendant Officers." Doc. 1, heading preceding ¶ 52. However, the next paragraph incorporates by reference all preceding paragraphs including the allegations that City engaged in the malicious prosecution of plaintiff. Id. ¶ 52. The same is true of count VI, in which plaintiff asserts a claim for assault and battery against Cannon. He specifically alleges that City is liable. Doc. 1, ¶ 72. The court further notes that the complaint makes plain that Cannon was acting in the course and scope of his employment for City at all times. Id., ¶ 7. Having elected to sue City for malicious prosecution, and alleged that Cannon acted in his official capacity with regard to all the claims against him, plaintiff cannot also sue Cannon individually. Tex. Civ. Prac. & Rem. Code § 101.106(a), (e), and (f). Bustos v. Martini Club, Inc.,
With regard to count VI, the court notes, in any event, that plaintiff has not pleaded any facts to state an assault and battery charge against Cannon. He pleads no facts to show that the amount of force used in handcuffing him was not reasonable. Rather, he pleads that he was handcuffed without incident. Doc. 1, ¶ 16. Thus, Cannon would be entitled to official immunity. See Telthorster v. Tennell,
Finally, as Cannon points out, intentional infliction of emotional distress is a gap-filler tort, judicially created for the limited purpose of allowing recovery in those rare instances where a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress. Hoffmann-La Roche, Inc. v. Zeltwanger,
B. Claims Against City
City maintains that plaintiff has failed to identify any policy or practice that caused his alleged harm. The court agrees. Despite his argument to the contrary, plaintiff has alleged nothing but boilerplate accusations, which his own authorities say is insufficient. See Thomas v. City of Galveston,
C. Amendment Would Not Be Appropriate
At the conclusion of his responses to each motion, plaintiff includes a short two-sentence paragraph saying that "the court should generally give the plaintiff at least one chance to amend." Doc. 34 at 20; Doc. 41 at 23. Plaintiff has not sought leave to amend. See Local Civil Rule LR 15.1. Nor does he represent that he could plead facts sufficient to state a claim. In fact, as movants have noted, plaintiff's own pleading supports the existence of probable cause for his arrest. (That is, plaintiff marched into an ongoing outdoor concert with an AK-15 rifle held in his hands, refusing to sling or reposition it when requested. Based on these facts, a reasonable police officer could have believed that plaintiff intentionally or knowingly displayed a firearm in a public place in a manner calculated to alarm.) The court has no reason to *703believe that amendment would not be futile.
V.
Order
The court ORDERS that the motions to dismiss be, and are hereby, granted, and plaintiff's claims against City and Cannon be, and are hereby, dismissed.
The "Doc. ___" reference is to the number of the item on the docket in this action.
City notes that it was not timely served, but does not urge this as a ground for relief. Doc. 16 at 2.
Plaintiff does not allege any facts with regard to the conduct of any specific officer, Nevertheless, Cannon does not move to dismiss on this basis and appears to acknowledge that he was the officer who arrested plaintiff. Doc. 20.
The limitations period for § 1983 actions is borrowed from Texas's personal injury limitations period, which is two years. Jacobsen v. Osborne,
Among the excuses offered by plaintiff is that he was unable to determine whether Cannon was still employed by City. Doc. 41 at 13. However, plaintiff alleged in his complaint that Cannon was a commissioned peace officer who could be served at his place of employment, police department headquarters in Arlington. Doc. 1, ¶ 3.
Although plaintiff had no reason to address the failure to serve City, there can have been no question about accomplishing service on it.
Reference
- Full Case Name
- La'Shadion SHEMWELL v. Jacob CANNON, Individually
- Cited By
- 2 cases
- Status
- Published