United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge.
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.
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”). Small is presently incarcerated in the
Natchitoches Parish Detention Center (“NPDC”) in
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
contends he exhausted his administrative remedy (Doc.
and timely filed this action.
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.
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).
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
Deputy Marshal Turner
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).
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).
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).
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).
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).
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).
further testified that neither the white pickup nor any other
task force vehicle rammed into Small's car (Doc. 11-2,
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).
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).
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).
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).
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).
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).
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.
Deputy Sheriff Jenkins
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).
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).
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).
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.
Deputy Sheriff Rollins
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).
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).
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).
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).
Probation and Parole Officer Rachal
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).
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,
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).
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).