United States District Court, E.D. Louisiana
RICHARD DOUGLAS ET AL.
MATTHEW DEPHILLIPS ET AL.
ORDER AND REASONS
M. AFRICK, UNITED STATES DISTRICT JUDGE.
March 2016, Joshua Douglas led law enforcement officers on a
car chase through the streets of St. Tammany Parish. By the
end of it, he was dead as a result of an officer's use of
force. This case is about whether such use of force, and
other actions taken by officers at the time, violated the
U.S. Constitution and Louisiana law.
have filed a joint motion to dismiss all of plaintiffs'
claims in the amended complaint
(“complaint”). Because plaintiffs untimely filed their
opposition, the Court could have treated the motion as
unopposed. The Court nevertheless read
plaintiffs' untimely filings and considered the arguments
presented therein. For the following reasons, the Court
grants defendants' joint motion to dismiss.
approximately 5:00 pm on March 19, 2016, a National Crime
Information Center camera detected a license plate that had
been reported stolen. The license plate was attached to a
silver, four-door Infiniti sedan.
camera relayed the detection to the St. Tammany Parish
sheriff's office (“Sheriff's Office”),
whose dispatch alerted officers to the
sighting. Deputy James Kelly
responded. At the time, Deputy Kelly was in a
Kelly spotted the Infiniti near the intersection of
Interstate 12 and Highway 59 “[a]lmost
immediately.” Deputy Kelly noticed a male driver, later
identified as Joshua Douglas
(“Douglas”). Jessica Sheppard
(“Sheppard”) was also in the Infiniti, sitting in
the front passenger seat. Deputy Kelly turned on his
cruiser's emergency lights and began to pursue the
Infiniti on the basis of the stolen license
plate. Douglas refused to stop.
Kelly pursued Douglas north on Highway 59. Douglas then
took a series of turns, eventually ending up on 3rd
Avenue. From 3rd Avenue, Douglas entered
“the dead-end square of Judy Avenue to the north,
Barbara Avenue to the south, Bode Avenue to the east, and
Janice Avenue to the west.”
Kelly stopped on 3rd Avenue, and was joined by Deputies
Matthew DePhillips and Jacob Jenkins, who drove their own
“fully-marked” vehicles.Deputies Kelly,
DePhillips, and Jenkins then drove into the square to pursue
Douglas. Deputies Kelly and Jenkins went south on
Janice Avenue; Deputy DePhillips went east on Judy
Avenue. After Deputy DePhillips turned from Judy
Avenue onto Bode Avenue, he encountered Douglas, who was
driving the Infiniti in reverse down Bode Avenue at a
“high rate of speed.” The complaint suggests
that Douglas may have struck one or more of the deputies'
vehicles in the process, although in no “appreciable
then backed the Infiniti into a ditch on Bode Lane, which
“juts out like a scorpion's tail” from the
corner of Bode and Barbara Avenues. The Infiniti's
driver's side was leaning against the embankment, which
allegedly prevented Douglas from being able to exit the
Infiniti through the driver's door.
DePhillips, Kelly, and Jenkins pulled up to Bode
Lane. The three officers left their vehicles
and “rushed” the Infiniti with firearms
drawn. Deputy DePhillips “positioned
himself at the rear passenger door, ” Deputy Kelly at
the front passenger door, and Deputy Jenkins at the passenger
side front fender. The time was on or about 5:12 pm, and
the weather was clear with “sufficient natural
officers positioned themselves, Sheppard's hands were
“in the air, ” and Sheppard was screaming that
she was pregnant. Douglas “put his hand(s) near the
top” of Sheppard's arms. Douglas's face was
“within inches” of Sheppard's
DePhillips opened the Infiniti's rear passenger door and
“immediately fired one shot” with his firearm,
hitting Douglas near his right eye. According to the
complaint, “Deputy DePhillips claimed with certainty
that he assessed and concluded . . . that he believed”
Douglas had a firearm in his hand, which was hidden
underneath Sheppard's hair. No firearm was recovered
from the scene.
Deputy DePhillips discharged his firearm at Douglas, Deputy
Jenkins removed Sheppard from the Infiniti as
Sargent Alex Dantaghan and Deputy Cristen Graham
arrived on the scene. Deputy Jenkins allegedly
“threw” Sheppard face-down on the ground, and
then either he or Deputy Graham handcuffed her and placed her
in the back seat of his vehicle.
arrived twelve to fourteen minutes later. Deputy Graham
recalled that the paramedics “‘came out
after' the scene was ‘declared
safe.'” One of the paramedics “checked
[Douglas's] pulse with an EKG patch on his right arm,
consulted with a physician, and declared
death.” According to the complaint, an
examination of Douglas's body after these events suggests
that Douglas lived for some time after he had been
addition to checking Douglas, the paramedics attended to
Sheppard, who was transported to Lakeview Regional Medical
Center (“Lakeview”) at approximately 5:46
pm. Deputy Grey Thurman accompanied
her. Both before and until she arrived at
Lakeview, Sheppard “repeatedly asked for her purse,
” which no officer provided to her.
arrived at Lakeview around 5:56 pm, where she remained
“against her will.” Upon arrival, Sheppard
was isolated from the general population. She chose to
end her medical treatment at approximately 8:35 pm.
ending her treatment, Sheppard gave a statement at the St.
Tammany Parish Law Enforcement Center, beginning at 9:48 pm
and ending at 10:22 pm.Sheppard alleges that the statement
was “effectively forced.” She was then
point either during or after this incident, law enforcement
discovered that the Infiniti driven by Douglas had been
stolen. The St. Tammany Parish sheriff's
office returned the Infiniti to its lawful owner before
plaintiffs' counsel had an opportunity to inspect
response to these events, plaintiffs filed this lawsuit,
alleging over a dozen theories of liability against a dozen
defendants. Defendants now jointly move to dismiss
all claims against them for failure to state a claim.
Defendants also assert qualified immunity as a defense to
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
district court may dismiss a complaint, or any part of it,
where a plaintiff has not set forth well-pleaded factual
allegations that would entitle him to relief. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007);
Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007). A plaintiff's factual allegations must
“raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. 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 (2009) (quoting Twombly, 550 U.S. at 570)).
facially plausible claim is one where “the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at
678. If the well-pleaded factual allegations
“do not permit the court to infer more than the mere
possibility of misconduct, ” then “the complaint
has alleged-but it has not ‘show[n]'-‘that
the pleader is entitled to relief.'”
Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P.
8(a)(2)) (alteration in original).
Rule 12(b)(6) motion to dismiss, a court limits its review
“to the complaint, any documents attached to the
complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010);
see also Spivey v. Robertson, 197 F.3d 772,
774 (5th Cir. 1999). In assessing the complaint, the Court
must accept all well-pleaded factual allegations as true and
liberally construe all such allegations in the light most
favorable to the plaintiff. Spivey, 197 F.3d at 774;
Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247
(5th Cir. 1997).
“the complaint ‘on its face show[s] a bar to
relief, '” then dismissal is the appropriate
course. Cutrer v. McMillan, 308 Fed. App'x. 819,
820 (5th Cir. 2009) (quoting Clark v. Amoco Prod.
Co., 794 F.2d 967, 970 (5th Cir. 1986)). Where
applicable, qualified immunity can operate as such a bar.
doctrine of qualified immunity “balances two important
interests-the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officials from harassment, distraction and liability when
they perform their duties reasonably.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). In striking this
balance, qualified immunity shields “government
officials performing discretionary functions” from
civil liability “insofar as their conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);
see also Ashcroft v. al-Kidd, 563 U.S. 731, 743
(2011) (“Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments
about open legal questions.”).
public official invokes qualified immunity as a defense to a
civil action against him, the plaintiff then has the burden
“to demonstrate the inapplicability of the
defense.” Club Retro, L.L.C. v. Hilton, 568
F.3d 181, 194 (5th Cir. 2009) (citing McClendon v. City
of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en
banc)). To meet this burden, a plaintiff must show “(1)
that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly
established' at the time of the challenged
conduct.” Morgan v. Swanson, 659 F.3d 359, 371
(5th Cir. 2011) (en banc). “Courts have discretion to
decide which prong of the qualified-immunity analysis to
address first.” Id.
a right to be clearly established, ‘[t]he contours of
the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.'” Turner v. Lieutenant Driver, 848
F.3d 678, 685 (5th Cir. 2017) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)) (alteration in
original). Once a plaintiff alleges that an official's
conduct violated a clearly established right, the court must
then determine “whether the official's conduct was
objectively reasonable under the law at the time of the
incident.” Michalik v. Hermann, 422 F.3d 252,
258 (5th Cir. 2005); see also Thompson v. Upshur Cnty.,
Tex., 245 F.3d 447, 457 (5th Cir. 2001).
official's conduct is not objectively unreasonable
“unless all reasonable officials in the
[official's] circumstances would have then known that the
[official's] conduct violated the plaintiff's
rights.” Carroll v. Ellington, 800 F.3d 154,
169 (5th Cir. 2015). When denying qualified immunity, a court
must point to “controlling authority-or a robust
consensus of persuasive authority-that defines the contours
of the right in question with a high degree of
particularity.” Wyatt v. Fletcher, 718 F.3d
496, 503 (5th Cir. 2013). Precedent existing at the time of
the challenged conduct “must have placed the statutory
or constitutional question beyond debate.”
al-Kidd, 563 U.S. at 741.
the defense of qualified immunity is raised in a motion filed
pursuant to Rule 12(b)(6), “it is the defendant's
conduct as alleged in the complaint that is
scrutinized for ‘objective legal
reasonableness.'” McClendon, 305 F.3d at
323 (emphasis in original) (quoting Behrens v.
Pelletier, 516 U.S. 299, 309 (1996)). A court must
determine that a plaintiff's pleadings “assert
facts which, if true, would overcome the defense of qualified
immunity.” Zapata v. Melson, 750 F.3d 481, 485
(5th Cir. 2014). The allegations must be pleaded with
“sufficient precision and factual specificity to raise
a genuine issue as to the illegality of defendant's
conduct at the time of the alleged acts.” Clayton
v. Columbia Cas. Co., No. 11-845, 2012 WL 2952531, at
*2-*3 (M.D. La. July 19, 2012) (Africk, J.) (internal
quotation marks omitted).
assert numerous federal and state law claims against numerous
defendants, including: 1) Fourth Amendment claims for use of
excessive force, 2) Fourth Amendment claims for unreasonable
seizure, 3) a Fourteenth Amendment claim for failure to
render medical care,  4) Monell claims against the
Sheriff of St. Tammany Parish, 5) claims against Sheriff
Rodney Jack Strain, Jr. in his individual capacity, 6) a
Fourteenth Amendment claim for “deprivation of
[plaintiff Richard Douglas's] right of familial
association and parenthood, ” 7) survival claims, 8)
wrongful death claims, and 9)-13) claims for false
imprisonment, intentional infliction of emotional distress,
negligent infliction of emotional distress, battery, and
intentional spoliation of evidence. With respect to their
state law theories, plaintiffs seek to impose both
respondeat superior liability and joint-and-several
liability. Plaintiffs also seek costs and
considering the viability of these claims, the Court must
address the issue of standing. Defendants allege that
plaintiff Richard Douglas does not have standing to sue on
behalf of Douglas, his deceased son. However, a review of the
complaint reveals that Richard Douglas does not assert any
claims on behalf of Douglas. Rather, the only plaintiff who
asserts claims on behalf of Douglas is L.C., on behalf of her
minor child, G.D.
Court will now turn to whether plaintiffs have successfully
pleaded federal law claims against any defendant. The Court
will first address Richard Douglas's Fourteenth Amendment
claim for “deprivation of [plaintiff Richard
Douglas's] right of familial association and
parenthood.” The Court will then address
plaintiffs' Monell claims against the Sheriff of
St. Tammany Parish and the claims against Sheriff Strain in
his individual capacity. Next, the Court will consider the
federal law claims at the heart of the case: the Fourth
Amendment claims for use of excessive force, the Fourth
Amendment claims for unreasonable seizure, and the Fourteenth
Amendment claims for failure to render medical care.
Douglas contends that his son's death has deprived him of
his “right of familial association and parenthood in
violation of the Fourteenth Amendment.”Worded
differently, Richard Douglas asserts a federal constitutional
right to recover damages for the death of his adult son at
the hands of a state actor. To this end, he seeks recovery
from Deputies DePhillips, Kelly, and Jenkins. The deputies
counter that they are entitled to qualified immunity.
Court concludes that the deputies are entitled to qualified
immunity from Richard Douglas's putative constitutional
right. “A Government official's conduct violates
clearly established law when, at the time of the challenged
conduct, ‘[t]he contours of [a] right [are]
sufficiently clear' that every ‘reasonable official
would have understood that what he is doing violates that
right.'” al-Kidd, 563 U.S. at 741 (quoting
Anderson, 483 U.S. at 640) (alterations in
original). In short, “existing precedent must have
placed the statutory or constitutional question beyond
debate.” Id.; see also Pasco ex rel. Pasco
v. Knoblauch, 566 F.3d 572, 578 (5th Cir. 2009)
(“Qualified immunity shields government officials from
civil damages liability ‘insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have
known.'” (quoting Harlow, 457 U.S. at
respect to Richard Douglas's putative constitutional
right, neither the U.S. Supreme Court nor the Fifth Circuit
has held that such a right exists. See Irvin v.
Foti, No. 99-1526, 2000 WL 280026, at *4 (E.D. La. Mar.
13, 2000) (Duval, J.) (“[N]either the Supreme Court nor
the Fifth Circuit has directly addressed the issue of whether
the parent of an adult child has a cause of action under
section 1983 for injury to the [Fourteenth Amendment] right
of intimate association with that child.”); see
also Bedingfield v. Deen, No. 09-369, 2011 WL 3206872,
at *15-*16 (W.D. La. July 27, 2011) (Hicks, J.) (same). In
other words, the “constitutional
question”-whether the Fourteenth Amendment protects the
relationship between a parent and his adult child from state
intrusion-is far from “open and shut.”
Irvin, 2000 WL 280026, at *4.
Fifth Circuit case on which Richard Douglas relies to support
his putative right-Logan v. Hollier, 711 F.2d 690
(5th Cir. 1983)-does not assist him with respect to the
qualified immunity issue. In Logan, the Fifth
Circuit vacated a district court's opinion and remanded
the case “for the determination by the district court
whether [the plaintiff] has a cognizable claim under §
1983 for the injury to her constitutionally protected liberty
interest in parenthood, separate and apart from the state law
created wrongful death action.” 711 F.2d at 690. In the
process of remanding the case, the Logan panel
“share[d] a few observations” on the question
that it posed to the district court. Id. at 691.
These observations seem to suggest that the panel believed
that the district court should endorse such a claim. See
observations are not conclusions of law. Despite at least one
district court's conclusion to the contrary in
Guilbeaux v. City of Eunice, No. 16-1464, 2017 WL
1305254, at *3 (W.D. La. Jan. 6, 2017) (Whitehurst, M.J.),
adopted in relevant part by 2017 WL 889742 (W.D. La.
Mar. 2, 2017) (James, J.), the Fifth Circuit's
Logan opinion did not hold-and in fact expressly
declined to hold-that a parent may bring a claim to recover
damages under § 1983 for violation of a Fourteenth
Amendment right to familial association and parenthood
arising from the death of an adult child. See Grandstaff
v. City of Borger, Tex., 767 F.2d 161, 173 (5th Cir.
1985) (Garwood, J., dissenting) (observing that
“whether a nondependent parent can recover under
section 1983 for grief over the death” of an
independent adult child “is an open question in this
Circuit” and citing Logan).
also point the Court to a slew of out-of-circuit cases that
recognize a parent's ability to recover damages under
§ 1983 for a child's death,  implying that
“a robust consensus of persuasive authority”
demonstrates that the right asserted by Richard Douglas is
clearly established. Wyatt, 718 F.3d at 503. Yet the
circuits vary widely in how they define parents'
constitutional right to recover damages for a child's
death. As such, the contours of a parent's
putative Fourteenth Amendment right to familial association
with an adult child-and ability to bring a § 1983 claims
for damages where a state actor infringes on the right-are
not “sufficiently clear” to label the right
“clearly established” on the basis of persuasive
authority. al-Kidd, 563 U.S. at 741 (quoting
Anderson, 483 U.S. at 640) (internal quotation marks
omitted). As such, Deputies DePhillips, Kelly, and Jenkins
are entitled to qualified immunity from Richard Douglas's
Fourteenth Amendment claims and so those claims will be
assert Monell claims against the Sheriff of St.
Tammany Parish for, among other things, failure to
train. Under Monell v. Department of Social
Services, municipalities and local governing bodies are
subject to liability for constitutional violations involving
official policies or practices. See 436 U.S. 658,
690 (1978). Monell claims consist of three elements:
“(1) a policymaker; (2) an official policy [or custom];
and (3) a violation of constitutional rights whose
‘moving force' is the policy or custom.”
Davis v. Tarrant Cty, Tex., 565 F.3d 214, 227 (5th
Cir. 2009) (citing Rivera v. Houston Indep. Sch.
Dist., 349 F.3d 244, 247 (5th Cir. 2003)). In their
complaint, plaintiffs do nothing more than articulate the
elements of a Monell claim; they do not support
those elements with factual allegations. In
particular, plaintiffs identify no policy or custom of the
Sheriff that resulted in a violation of anyone's
constitutional rights, let alone their own.
to the extent that they ground their Monell claims
in a failure to train on the part of the Sheriff, “the
Supreme Court has held that a single incident, standing
alone, is usually insufficient as a matter of law to
establish a failure to train violation.” Batiste v.
Theriot, 458 Fed. App'x 351, 358 (5th Cir. 2012).
“Nowhere in their [complaint] do the Plaintiffs assert
a pattern of incidents or incompetence on the part of the
[Sheriff] which would be a prerequisite to proving a failure
to train claim.” Id. at 358-59. Therefore, the
Monell claims will be dismissed.
also assert claims against Sheriff Strain in his individual
capacity.(Sheriff Strain was serving as the
Sheriff of St. Tammany Parish at the time that the events in
this case unfolded.) To the extent that plaintiffs seek to
hold Sheriff Strain responsible for the actions of his
subordinates, they may not do so. It is long settled that
“supervisory officials are not liable for the actions
of subordinates on any theory of vicarious
liability” under § 1983. Roberts v. City of
Shreveport, 397 F.3d 287, 292 (5th Cir. 2005) (quoting
Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir.
1987)) (emphasis added); see also Thompson v. L.A.
Steele, 709 F.2d 381, 382 (5th Cir. 1983)
(“Personal involvement is an essential element of a
civil rights cause of action.”). As such, “[i]n
order to state a cause of action under section 1983, the
plaintiff must identify defendants who were either personally
involved in the constitutional violation or whose acts are
causally connected to the constitutional violation
alleged.” Woods v. Edwards, 51 F.3d 577, 583
(5th Cir. 1995); see also Thompkins, 828 F.2d at 304
factual allegations in the complaint barely mention Sheriff
Strain at all, referring to him only as one of the recipients
of a letter from plaintiff's counsel in which counsel
made certain requests. Plaintiffs' allegation that the
requests made in the letter were not honored is far from
sufficient to plead that Sheriff Strain was “personally
involved” in violating any plaintiffs'
constitutional rights or that his actions were
“causally connected” to any alleged
constitutional violations. Woods, 51 F.3d at 583
(5th Cir. 1995). All claims against Sheriff Strain in his
individual capacity will be dismissed.
on behalf of G.D., asserts Fourth Amendment claims for use of
excessive force on behalf of Douglas against Deputies
DePhillips, Kelly, and Jenkins.
excessive force claims asserted on behalf of Douglas derive
solely from Deputy DePhillips's use of deadly force
against Douglas. While Deputies Kelly and Jenkins did not
use deadly force against Douglas, they were present at the
scene, and so the Court reads the complaint as asserting
bystander liability claims against them.
Court will first address the excessive force claims asserted
on behalf of Douglas against Deputy DePhillips. The Court
will then consider such claims against Deputies Kelly and
force is a subset of excessive force.” Bazan v.
Hidalgo Cty., 246 F.3d 481, 487 (5th Cir. 2001). To
state a Fourth Amendment excessive force claim, a plaintiff
must allege “(1) an injury, (2) which resulted directly
and only from the use of force that was clearly excessive,
and (3) the excessiveness of which was clearly
unreasonable.” Manis v. Lawson, 585 F.3d 839,
843 (5th Cir. 2009) (internal quotation marks omitted). Where
death is the injury caused by the use of deadly force, the
only issue for a court “is whether the use of that
deadly force was unreasonable.” Carnaby v. City of
Houston, 636 F.3d 183, 187 (5th Cir. 2011).
officer's use of deadly force “is not unreasonable
when [the] officer would have reason to believe the suspect
poses a threat of serious harm to the officer or
others.” Id. at 188 (quoting Mace v. City
of Palestine, 333 F.3d 621, 624 (5th Cir. 2003))
(internal quotation marks omitted). A court's
“primary concern” in the use-of-deadly-force
context, then, is whether the officer who used force was,
“[at] the moment of the shooting, reasonably trying to
prevent serious injury or death.” Carnaby, 636
F.3d at 188 n.4 (internal quotation marks omitted); see
also Rockwell v. Brown, 664 F.3d 985, 993 (5th Cir.
2011) (observing that the inquiry is “confined to
whether the [officer or another person] was in danger at
the moment of the threat that resulted in the
[officer's use of deadly force]” (internal
quotation marks omitted) (alterations and emphasis in
original)). “If the officer reasonably believes the
suspect poses a threat of serious harm, the use of deadly
force is not excessive.” Guerra v. Bellino,
No. 15-51252, 2017 WL 3397430, at *3 (5th Cir. Aug. 8, 2017)
U.S. Supreme Court has instructed that “[t]he calculus
of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second
judgments-in circumstances that are tense, uncertain, and
rapidly evolving-about the amount of force that is necessary
in a particular situation.” Graham v. Connor,
490 U.S. 386, 396-97 (1989). “A creative judge engaged
in post hoc evaluation of police conduct can almost
always imagine some alternative means by which the objectives
of the police might have been accomplished.”
Ramirez v. Knoulton, 542 F.3d 124, 129-30 (5th Cir.
2008) (quoting United States v. Sharpe, 470 U.S.
675, 686-87 (1985)) (internal quotation marks omitted). Thus
“[t]he ‘reasonableness' of a particular use
of force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham, 490 U.S. at 396.
“[i]t is a question of objective reasonableness in
light of the facts and circumstances confronting [the
officer], without regard to [the officer's] underlying
intent or motivation.” Ontiveros v. City of
Rosenberg, Tex., 564 F.3d 379, 382-83 (5th Cir. 2009)
(internal quotation marks omitted) (alteration in original).
In other words, “the proper inquiry is an
objective one”; officers'
“subjective beliefs” are
“irrelevant.” Hudspeth v. City of
Shreveport, 270 Fed. App'x 332, 337 (5th Cir. 2008)
(per curiam) (emphasis in original).
argue that the factual allegations in the complaint state an
excessive force claim on behalf of Douglas against Deputy
DePhillips. However, the Court need not decide this issue to
determine the viability of the claim.
Court previously explained, plaintiffs carry the burden of
demonstrating that the defense of qualified immunity does not
apply. See Club Retro, 568 F.3d at 194 (citing
McClendon, 305 F.3d at 323). To meet this burden,
not only must plaintiffs state a violation of a
constitutional right, but plaintiffs must also show that,
“at the time of the incident, the law clearly
established that [the officer's] conduct would violate
the [plaintiff's] right” to be free from use of
deadly force. Ontiveros, 564 F.3d at 383 n.1.
“This inquiry focuses not on the general standard- when
may an officer use deadly force against a suspect?-but on the
specific circumstances of the incident-could an officer have
reasonably interpreted the law to conclude that the perceived
threat posed by the suspect was sufficient to justify deadly
the violation is ‘obvious, ' there must be relevant
case law that ‘squarely governs' the situation with
which the officers were presented and gives ‘fair
notice' that such conduct would violate the law.”
Reyes v. Bridgewater, 362 Fed. App'x 403, 408
(5th Cir. 2010) (quoting Brosseau v. Haugen, 543
U.S. 194, 200 n.4, 201 (2004)). More specifically,
“[e]xcessive force incidents are highly fact-specific
and without cases squarely on point, officers receive the
protection of qualified immunity.” Ontiveros,
564 F.3d at 383 n.1.
cases need not involve “exactly the same facts.”
Reyes, 362 Fed. App'x at 408. “The central
concept is that of ‘fair warning': The law can be
clearly established ‘despite notable factual
distinctions between the precedents relied on and the cases
then before the Court, so long as the prior decisions gave
reasonable warning that the conduct then at issue violated
constitutional rights.'” Kinney v. Weaver,
367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope
v. Pelzer, 536 U.S. 730, 740 (2002)).
case, Douglas was “set on avoiding capture through . .
. vehicular flight.” Mullenix v. Luna, 136
S.Ct. 305, 309 (2015). After a car chase that included
Douglas driving the Infiniti backwards at a “high rate
of speed” in an apparent attempt to avoid capture,
Douglas drove the Infiniti into a ditch. Douglas, as
well as Sheppard, remained in the vehicle.
DePhillips left his cruiser and “positioned himself at
the rear passenger door.” At this time,
Sheppard's hands were “in the air, ” and
Sheppard was screaming that she was pregnant. Douglas
“put his hand(s) near the top” of Sheppard's
arms. Douglas's face was “within
inches” of Sheppard's face. This is the
scene that Deputy DePhillips confronted.
have failed to point to any precedent existing as of the date
of the events in this case that “placed the conclusion
that [Deputy DePhillips] acted unreasonably in these
circumstances beyond debate.” Id. (internal
quotation marks omitted). The cases on which plaintiffs rely
in their opposition to defendants' first motion to
dismiss-which plaintiffs purport to incorporate by reference
in their untimely opposition to the present motion-involve
excessive force claims by suspects who were handcuffed at the
time that force was used against them. Yet the
factual allegations in the complaint show that Douglas was
not handcuffed when Deputy DePhillips discharged his
firearm. Douglas remained free to move within the Infiniti,
and “[a]s long as [Douglas] remained in [the Infiniti],
he posed a potential danger to the officers and
others.” Brothers v. Zoss, 837 F.3d 513, 519
(5th Cir. 2016). After all, even a purportedly immobilized
motor vehicle “can be used as a dangerous
weapon.” Id. This is to say nothing of
Douglas's movements inside the Infiniti.
have not met their burden of demonstrating that, at the time
that the events in this case occurred, “adequate
authority at a sufficiently high level of specificity [ ] put
[Douglas] on notice that his conduct [was] definitively
unlawful.” Vincent v. City of Sulphur, 805
F.3d 543, 547 (5th Cir. 2015); see also Thompson,
245 F.3d at 460 (“[I]t is the plaintiff's burden to
demonstrate that all reasonable officials similarly situated
would have then known that the alleged acts of the defendants
violated the United States Constitution.”). As such,
Deputy DePhillips is entitled to qualified immunity from the
excessive force claim asserted on behalf of Douglas.
on behalf of G.D., also asserts excessive force claims on
behalf of Douglas against Deputies Kelly and Jenkins.
“[A]n officer who is present at the scene and does not
take reasonable measures to protect a suspect from another
officer's use of excessive force may be liable under
section 1983.” Hale v. Townley, 45 F.3d 914,
919 (5th Cir. 1995). To state a bystander liability claim, a
plaintiff must show that an officer “(1) knows that a
fellow officer is violating an individual's
constitutional rights; (2) has a reasonable opportunity to
prevent the harm; and (3) chooses not to act.”
Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013).
assuming that Deputy DePhillips's use of deadly force
against Douglas amounted to constitutionally excessive force,
the factual allegations illustrate that Deputies Kelly and
Jenkins still cannot be held liable for this use of force
under a bystander theory of liability. According to the
complaint, “mere seconds” passed between the time
that Deputy DePhillips exited his cruiser and the time that
he discharged his firearm at Douglas. The complaint
further alleges that Deputy DePhillips “immediately
fired” his weapon “[u]pon reaching and opening
the rear passenger door.”
the alleged speed with which the incident unfolded, the
factual allegations cannot be reasonably construed to support
the inference that Deputies Kelly and Jenkins
“acquiesced in the alleged use of excessive
force.” Hale, 45 F.3d at 919. The excessive
force claims asserted on behalf of Douglas against Deputies
Kelly and Jenkins are dismissed.
both for herself and on behalf of M.S., asserts Fourth
Amendment claims for unreasonable seizure and for use of
excessive force. Specifically, she asserts excessive
force claims against Deputies DePhillips, Kelly, and Jenkins,
and unreasonable seizure claims against Deputies DePhillips,
Kelly, Jenkins, Graham, and Thurman, as well as Corporal
initial matter, M.S. was in utero when the events in
this case took place. Pointing to this fact, the named law
enforcement officers contend that the Court should dismiss
all claims asserted on behalf of M.S. for alleged
injuriessustained in utero, because
“no cause of actions exists for an alleged