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Small v. United States

United States District Court, W.D. Louisiana, Alexandria Division

September 21, 2018


          DRELL JUDGE.


          Joseph H.L. Perez-Montes United States Magistrate Judge.

         Defendant United States of America filed a Motion to Dismiss (Doc. 11) Plaintiff's complaint pursuant to Fed.R.Civ.P. rule 12(b)(6), for failure to state a claim on which relief may be granted. Because Plaintiff's claims are barred by the Eleventh Amendment and Heck v. Humphrey, Defendant's Motion to Dismiss should be granted.

         I. Background

         A. Procedural Background.

         Plaintiff Darrell Small (“Small”) filed a complaint pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680. The sole Defendant is the United States of America (“the government”).[1] Small is presently incarcerated in the Natchitoches Parish Detention Center (“NPDC”) in Natchitoches, Louisiana.

         Small contends that, when he was arrested by the United States Marshal's Service (“USMS”), deadly force was used (he was tased and shot) even though he was no longer resisting arrest. Small contends the USMS agents: (1) intentionally used excessive and deadly force that resulted in physical and mental pain and suffering; and (2) were negligent in pointing loaded firearms and a taser at Small after he had been secured, resulting in severe physical pain and suffering. Small seeks monetary damages, costs, and attorney's fees.

         Small contends he exhausted his administrative remedy (Doc. 23)[2] and timely filed this action.

         The government filed a Motion to Dismiss (Doc. 11), contending Small's claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994). Small filed a response (Doc. 14), to which the government replied (Doc. 15). The government's Motion to Dismiss is now before the Court for disposition.

         B. Factual Background.

         In 2014, an arrest warrant was issued for Small by a Texas state court for aggravated assault causing bodily injury by use of a deadly weapon (a firearm) (Doc. 11-4, p. 3/7; Doc. 11-6). On August 12, 2014, Small was arrested in Natchitoches, Louisiana pursuant to that warrant. In 2017, in the Louisiana Tenth Judicial District Court in Natchitoches Parish, Small was tried and convicted by a jury of one count of aggravated obstruction of a highway of commerce (Doc. 11-7). Small was then sentenced as a habitual offender to 22 years of imprisonment (Doc. 11-8).

         Small's arrest in 2014 is the subject of this lawsuit. Defendant attached an excerpt from Small's Louisiana criminal trial transcript to its Motion to Dismiss (Doc. 11). The trial testimony is summarized here. Small's objection to consideration of the trial testimony is discussed below in the analysis.

         1. Deputy Marshal Turner

         At Small's 2017 trial, U.S. Deputy Marshal Donnie Turner testified the USMS received a telephone call on August 12, 2014, informing them that Small, a violent offender wanted in Texas on a felony warrant, was in Natchitoches (Doc.11-2, pp. 3-5/223). Small had recently purchased a new vehicle with a GPS locator in it (Doc. 11-2, p. 5/223). The dealership provided the USMS with the coordinates of Small's vehicle (Doc. 11-2, p. 6/223).

         Turner testified that the USMS violent offender task force, composed on that day of contingents from Shreveport, Alexandria, and Natchitoches for a total of about 20 officers, met in Natchitoches at about 4 p.m. in unmarked vehicles (Doc. 11-2, pp. 6-7/223). The officers parked in the parking lot of a nearby electric company (Doc. 11-2. P. 27/223). They wore tactical gear and bullet-proof vests that were visibly marked (Doc. 11-2, p. 8/223). Some officers waited outside the apartment complex where Small's vehicle was located (Doc. 11-2, p. 9/223).

         Deputy Marshal Turner testified that, as a supervisor, he was never told that people had difficulty identifying task force participants as law enforcement officers when they were deployed (Doc. 11-2, pp. 24/-25/223). Turner testified they are always visibly marked as a U.S. Marshal task force (Doc. 11-2. P. 25/223).

         Deputy Marshal Turner testified that, when Small exited an apartment in the complex, he moved quickly to his car and left in it (Doc. 11-2, p. 11/223). The task force did not have an opportunity to intercept Small before he got into his vehicle (Doc. 11-2, p. 12/223). It was still daylight when Small got into his vehicle, a gold Impala, and the task force completed the take-down (Doc. 11-2, p. 27/223).

         The task force waited until they saw what direction Small was driving, then intercepted Small's vehicle in the street by blocking access to the intersection with lights and sirens on, forcing him to stop his car (Doc. 11-2, pp. 27, 48/223). Everyone in Turner's vehicle and the task force vehicle next to him exited their cars with their weapons drawn (Doc. 11-2, p. 27/223). There were units behind Small at each exit and units in front of him, for the purpose of making his vehicle immobile (Doc. 11-2, p. 39/223).

         Deputy Marshal Turner testified that all of the law enforcement personnel began giving Small verbal commands, saying “Police, police, show hands.” (Doc. 11-2, p. 29/223). After the officers exited their vehicles, Small began driving down the street in reverse at a high rate of speed (about 50 miles per hour) (Doc. 11-2, pp. 28-29, 49/223). Another task force vehicle-a white pickup that had been trailing Small's car-was stopped in the road about 50 yards behind Small (Doc. 11-2, pp. 28-29, 42/223). While the pickup remained parked in the road, Small continued to drive in reverse until he crashed into it (Doc. 11-2, pp. 29, 46/223). Turner testified it took only seconds for Small to drive in reverse and hit the pickup (Doc. 11-2, p. 49/223).

         Turner further testified that neither the white pickup nor any other task force vehicle rammed into Small's car (Doc. 11-2, pp. 46-47/223).

         The rear of Small's Impala was lifted off the ground and stuck “on the bumper grill” of the white pickup, so it could not move (Doc. 11-2, p. 32/2332). The four officers who had been in the white pickup exited, as well as officers in two other vehicles, and stood by Small's car with weapons drawn (Doc. 11-2, pp. 32, 42-44/223). Deputy Marshal Turner arrived and warned the others about crossfire, so they wouldn't accidentally shoot one another (Doc. 11-2, p. 48/223).

         Turner testified that Small made no effort to surrender (Doc. 11-2, p. 32/223). The officers were standing in front of and on one side of Small's car, in an “L” shaped assault designed to avoid being hit by their own cross-fire (Doc. 11-2, p. 33/223). The officers again gave Small verbal commands to put his hands up, stop the car, and get out of the car, and an officer tried to break the passenger side window glass so they could see inside the vehicle (Doc. 11-2, p. 45/223). The windows were tinted too dark to allow the officers to see well inside (Doc. 11-2, p. 45/223). Small continued to press the gas pedal, spinning his tires continuously until his car broke free of the truck and began to fishtail (Doc. 11-2, pp. 31-33/223). Deputy Marshal Turner testified that Small's wheels never stopped spinning (Doc. 11-2, p. 45/223). It took less than a minute for Small's vehicle to break free from the white pickup (Doc. 11-2, p. 49/223). Once Small broke free, the officers near Small's vehicle began to fire shots (Doc. 11-2, pp. 32-33/223). Turner testified that, at that point, Small's vehicle was a deadly weapon (Doc. 11-2, pp. 32-33/223). Small drove away from the officers, cutting across the grass (and perhaps a small ditch) to get around their vehicles (Doc. 11-2, pp. 33, 47/223).Deputy Marshal Turner testified that shots were fired as Small drove away (Doc. 11-2, p. 33/223). He assumed Small had been hit when his car drifted some, but it suddenly picked back up, went up to the stop sign at the intersection (where the task force had initially attempted to stop Small), and drove toward town (Doc. 11-2, p. 34/223). The white pickup pursued Small (Doc. 11-2, pp. 34, 36/223). Turner testified that, by the time he and other officers returned to their vehicles and caught up with the white pickup and Small, the occupants of the pickup had again exited their vehicles and were “making contact with” Small (Doc. 11-2, p. 36/223). Small was in custody (Doc. 11-2, p. 37/223).

         Deputy Marshal Turner testified that the “final takedown” occurred in a sharp curve in Mill Street (Doc. 11-2, p. 37/223). Turner testified that Small appeared to have been hit in his leg by gunfire, and he was transported to the hospital (Doc. 11-2, p. 37/223). The Natchitoches Police Department investigated the incident (Doc. 11-2, p. 38/223). Marshal Turner did not participate in that investigation (Doc. 11-2, p. 38/223).

         2. Officer Collins

         Officer Nickeo Collins of the Natchitoches Police Department (and commander of the Natchitoches drug task force) also testified (Doc. 11-2, p. 53/223). Collins testified that the USMS asked him for assistance in locating Small in the Natchitoches area (Doc. 11-2, p. 54/223). The marshals met with Collins to formulate a plan to apprehend Small as quickly and safely as possible (Doc. 11-2, pp. 55, 57/223).

         Officer Collins testified that he participated in the apprehension (Doc. 11-2, p. 57/223). Collins was in an unmarked white pickup (Ford F150) that was parked beside nearby trailers (Doc. 11-2, pp. 57-58/223). Collins watched Small exit the apartment building and quickly get into his car and pull out (Doc. 11-2, p. 59/223). Collins saw Small's vehicle approach the intersection where the task force vehicles converged, lights on, to stop Small (Doc. 11-2, p. 59/223). The white pickup was approaching the scene from behind Small and stopped in the road (Doc. 11-2, p. 60/223). Collins saw Small's car stop, and the officers exited their vehicles and began pointing and yelling at Small (Doc. 11-2, p. 60/223). Small then began to drive in reverse, at about 40 mph and accelerating, until it hit the pickup Collins was riding in (Doc. 11-2, pp. 60, 71/223). Collins suffered a laceration to the right side of his face when Small's vehicle hit the white pickup Collins was riding in (Doc. 11-2, pp. 67-68/223).

         Collins and the other officers exited the pickup (Doc. 11-2, p. 60/223). Collins saw Small's vehicle lurching forward and backwards, trying to dislodge itself from the truck (Doc. 11-2, p. 57/223). Collins was standing behind Small's car, and could see Small because the rear window was broken out (Doc. 11-2, p. 61/223). Collins also saw officers trying to break out one of Small's windows (Doc. 11-2, p. 61/223). Collins explained that, if they could break out a window, they would be able to reach in and stop Small (Doc. 11-2, pp. 61-62/223). They wanted to stop Small because he still had control of his vehicle, which was a threat to them all (Doc. 11-2, p. 62/223). Someone then fired a shot (Doc. 11-2, p. 62/223). Collins did not know whether Small or an agent had fired the shot (Doc. 11-2, p. 62/223). Then there was another shot, then a brief pause, and Small's vehicle pried itself loose from the truck (Doc. 11-2, p. 62/223). The agents dove out of the way of Small's vehicle and Small sped off, going around the right side of the vehicle that was blocking it (Doc. 11-2, p. 62/223). As Small drove away, Collins, Deputy Marshal Belgard, and Deputy Jenkins got back into the white pickup truck and began following Small (Doc. 11-2, p. 62/223). The other agents were out of position to follow quickly (Doc. 11-2, p. 62/223).

         Collins testified they followed Small as he drove toward an intersection (Doc. 11-2, p. 62/223). Collins told the driver they should try to stop him because he would hurt someone if he got to the intersection (Doc. 11-2, p. 63/223). As Small began to turn onto another street, the pickup truck bumped the back end of Small's car, causing it to spin around and lodge the front of the car against the driver's side of the truck (Doc. 11-2, p. 63/223). Collins and Belgard exited the truck, but the driver was unable to get out (Doc. 11-2, p. 63/223). Concerned that, if armed, Small would be able to shoot Jenkins in the truck, Collins and Belgard rushed to cover Small with their weapons and order him to put his hands up (Doc. 11-2, p. 63/223). Small did not comply with their orders, and was instead “moving and doing different things” (Doc. 11-2, p. 63/223). As the other task force units began to arrive, Collins moved to the passenger side of Small's car while Belgard moved toward the broken rear window and pulled out his taser (Doc. 11-2, p. 63/223). The arriving officers also began to order Small to show his hands and get out of the car, while providing lethal cover for Belgard (Doc. 11-2, p. 63/223). Small still did not cooperate (Doc. 11-2, p. 63/223). As Marshal Belgard tased Small, another agent was able to break the glass, open the car door, pull Small out of the car, and handcuff him (Doc. 11-2, p. 63/223). Collins did not participate in the criminal investigation of the incident (Doc. 11-2, p. 68/223).

         3. Deputy Sheriff Jenkins

         Rapides Parish Sheriff's Deputy Sergeant Jason Jenkins testified that he was attached to the USMS violent offender task force and participated in arresting Small (Doc. 11-2, p. 80/223). Jenkins drove the white pickup truck (Doc. 11-2, pp. 80-81/223). When he was alerted that Small was driving his car (above the posted speed limit), Jenkins drove onto the street behind it and tried to catch up to it (Doc. 11-2, p. 84/223). When Small's car approached the intersection, the other vehicles (that were semi-marked and using their lights) initiated a traffic stop at the intersection (Doc. 11-2, p. 85/223). When the agents exited their vehicles, Small slammed on his brakes (the nose of the car went down and the trunk went up), then began driving in reverse (Doc. 11-2, p. 85/223).

         Jenkins testified his truck was going to be the rear “pinch vehicle” to block Small in (Doc. 11-2, p. 86/223). When Jenkins saw Small driving backwards towards him, he immediately came to a complete stop with his blue emergency lights activated (Doc. 11-2, p. 86/223). Small then rammed into Jenkins's truck, causing Jenkins to hit his head on the sun visor area (Doc. 11-2, p. 86/223). Jenkins suffered a large contusion on his head and a broken right hand (Doc. 11-2, p. 89/223). The officers exited the truck and Jenkins and Officer Rollins went to Small's driver's window and instructed him to show his hands, unlock his car, and get out of his car (Doc. 11-2, p. 86/223). Rollins began to try to break the driver's window (Doc. 11-2, pp. 86, 90/223). Jenkins testified that he holstered his gun and pulled out his taser because it was less lethal (Doc. 11-2, p. 87/223).

         Jenkins testified that, the entire time, Small continuously rocked his car forward and backwards to try to free it from the truck (Doc. 11-2, p. 87/223). Jenkins decided to return to his truck (Doc. 11-2, p. 87/223). He heard shots fired and saw Small driving away (Doc. 11-2, p. 87/223). Jenkins initially had difficulty getting his truck going, but was able to drive after Small (Doc. 11-2, p. 87/223). Lt. Collins and Deputy Marshal Belgard jumped in the truck with him as he took off (Doc. 11-2, p. 87/223).

         Jenkins testified that both cars were somewhat disabled (Doc. 11-2, p. 88/223). Jenkins was unable to keep up with Small until Small slowed down to weave in and out of oncoming traffic (Doc. 11-2, p. 87/223). Jenkins was aware of the dangerous intersection coming up and the rush-hour traffic, and realized Small was about to endanger people (Doc. 11-2, p. 88/223). Jenkins “got enough speed” in a sharp curve to do a “pit maneuver”-he bumped Small's rear quarter panel on the driver's side and Small spun around in front of him (Doc. 11-2, pp. 88-89/223). Jenkins's truck turned into the Small's driver's door and the two vehicles stopped with the truck's front bumper in the car's front driver's side fender well (Doc. 11-2, p. 89/223). Belgard and Collins exited the pickup, other officers arrived, and Jenkins was able to leave the truck through the passenger's side door (Doc. 11-2, p. 89/223). Jenkins went to stand in front of the car as the taser was deployed, then helped handcuff Small (Doc. 11-2, p. 89/223).

         4. Deputy Sheriff Rollins

         Rapides Parish Sheriff's Deputy Jerry Rollins testified that he is with the USMS violent offender task force and participated in the arrest of Small (Doc. 11-2, p. 109/223). Rollins rode in Jenkins's white pickup truck, in the rear driver's side seat (Doc. 11-2, p. 111/223). Rollins testified that, when the agents blocked Small's access to the intersection with their vehicles, Small stopped and then started driving in reverse at a high rate of speed (Doc. 11-2, p. 112/223). Rollins testified they did not have time to get out of Small's way, so Small struck their truck hard (Doc. 11-2, p. 112/223).

         Rollins testified that he exited the truck and ran to the driver's side of Small's car, tried to unlock it, and yelled at him to show his hands (Doc. 11-2, p. 112/223). Although the car had darkly tinted glass, Rollins could see Small had one hand on the wheel and one hand on the stick shift (Doc. 11-2, pp. 112-13/223). Small seemed to have difficulty shifting his gears (Doc. 11-2, p. 113/223). At one point, Small looked at Rollins, lifted his hands briefly, then put them down again (Doc. 11-2, p. 113/223). Small's tires were spinning backwards but the car was not moving (Doc. 11-2, p. 113/223). Rollins had his M4 rifle with him with the flash pressed on it (Doc. 11-2, p. 113/223). Although Rollins did not have a glass tool on his rifle, he steadily hammered the window to break it, so he could deploy his taser (Doc. 11-2, p. 113/223). However, the window did not break (Doc. 11-2, p. 113/223).

         Eventually, Small put his car in drive, the tires squealed, and the vehicle took off (Doc. 11-2, p. 113/223). As Small's car moved to the left, Rollins could hear several pops, so he turned and went to the right, away from the car (Doc. 11-2, p. 113/223). The pickup truck pursued Small's car and Rollins was left behind (Doc. 11-2, p. 113/223). Rollins got in another vehicle and arrived at the second crash site in time to hear the taser being deployed, and to see Small being pulled from the car and cuffed on the ground (Doc. 11-2, pp. 113-14/223). Rollins testified that the pickup had its blue lights on at the second crash site (Doc. 11-2, p. 114/223).

         5. Officer Connell

         Natchitoches City Police Detective William Connell testified that he investigated the arrest of Small after it occurred, and did not participate in his apprehension (Doc. 11-2, p. 117/223). Detective Connell searched Small's car and found three spent rounds and one unspent .45 caliber round in the trunk (Doc. 11-2, pp. 123-24/223). A bullet from an AR15 hit Small in the leg (Doc. 11-2, p. 132/223). Connell also measured and found Small had travelled 50 yards when he drove backwards into the pickup truck (Doc. 11-2, p. 125/223).

         6. Probation and Parole Officer Rachal

         Louisiana Probation and Parole Officer Murphy Rachal also participated in the task force that apprehended Small (Doc. 11-2, p. 134/223). Officer Rachal testified that he rode in Deputy Marshal Turner's vehicle (Doc. 11-2, p. 135/223). Deputy Marshal Turner stopped his vehicle in the intersection to block Small (Doc. 11-2, p. 135/223). When Small stopped his car in front of them, they jumped out of their cars and ran up to his car with their weapons drawn, giving verbal commands to turn off his car and get out of it (Doc. 11-2, p. 135/223). Small began driving in reverse at a high rate of speed until he crashed into Deputy Jenkins's pickup truck (Doc. 11-2, pp. 135, 147/223).

         Officer Rachal testified that the crash was very hard and caused a lot of damage to both vehicles (Doc. 11-2, p. 137/223). Rachal ran to the front of the truck with his weapon drawn, ordering Small to get out of the car (Doc. 11-2, p. 137/223). Rachal could hear Small's car engine revving and saw his tires spinning in reverse (Doc. 11-2, p. 144/223). They could not see what Small was doing inside the car but he was moving around and the car was “gunning and revving, ” “up and drop-down” (Doc. 11-2, p. 137/223). Rachal heard someone yell “crossfire” so he moved to the driver's side of the car, at the driver's window, next to Deputy Rollins (Doc. 11-2, pp. 137, 145/223). Small's car kept rocking and revving, so Deputy Rollins tried to break the driver's window (Doc. 11-2, pp. 137, 146/223). Small kept rolling his wheels until the cars came apart, with officers in front of the car and beside it (Doc. 11-2, p. 138/223). Officer Rachal saw other weapons drawn and heard shots going off around him (Doc. 11-2, pp. 139, 143/223).

         Rachal had a clear shot and fired his weapon once at Small to try to prevent him from running over the officers in front of his car (Doc. 11-2, p. 138/223). Rachal was standing next to the driver's door when he discharged his gun at Small through the driver's side window (Doc. 11-2, p. 138/223). Officer Rachal testified he did not fire again because the window had cracked and he could no longer see anything through it (Doc. 11-2, pp. 138, 148/223). Officer Rachal thought he had hit Small (Doc. 11-2, p. 138/223). Rachal explained that he fired his gun because he thought Small was about to hurt or kill the officers around the vehicles (Doc. 11-2, p. 139/223). Small had not done anything up to that point that would lead Officer Rachal to believe he was about to surrender (Doc. 11-2, p. 139/223).

         When Small drove away, Deputy Jenkins drove his truck in pursuit and Rachal got into Deputy Marshal Turner's vehicle (Doc. 11-2, p. 138/223). When they arrived at the second crash site, Officer Rachal went up to the pickup truck in time to hear Deputy Marshal Belgard's taser deploy (Doc. 11-2, p. 139/223). Rachal went to the car, saw the taser had made contact and Small was compliant, so they opened the passenger side door, removed Small from car, put him on the ground, and cuffed him (Doc. 11-2, p. 139/223). Small was then given medical assistance from Officer John Boone, a medic (Doc. 11-2, p. 139/223).

         7. Deputy ...

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