Stephens v. Tarrant, City Of et al
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 6/28/17. (SAC )
2017 Jun-28 PM 03:37
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CITY OF TARRANT, et. al.,
CASE NO. 2:16-CV-274-KOB
This § 1983 matter asserts federal claims against the City of Tarrant and various officials
with its police department for excessive use of force; failure to train, supervise, discipline and
investigate use of force; and various state law claims. It comes before the court on the
Defendants’ “Motion to Dismiss Plaintiff’s Amended Complaint.” (Doc. 36). The Plaintiff
filed a response (doc. 38), and the Defendants filed a reply (doc. 42).
For the reasons stated in this Memorandum Opinion, the court WILL GRANT IN PART
and DENY IN PART this motion to dismiss. More specifically, the court FINDS that all claims
in Counts I and IV are due to be GRANTED; and all claims in Counts II, III and V are due to be
I. PROCEDURAL HISTORY
This is the second round of briefing attacking the sufficiency of the pleadings. The City
filed the first motion to dismiss (doc. 8), which the court granted in part and denied in part (doc.
25). The court dismissed with prejudice all claims under the substantive component of the Due
Process Clause of the Fourteenth Amendment, and dismissed without prejudice the following
claims asserted against the City: Count I’s claim for failure to investigate and discipline because
the alleged failures occurred after the incident made the basis of the suit and could not have been
the cause or moving force behind them; and Count II’s claim for failure to train, supervise,
investigate, and discipline regarding the use of a patrol vehicle, because the claim did not
sufficiently allege that the City had notice of a need to train or supervise in this area and that any
failure on the part of the City was the moving force behind an alleged Constitutional violation.
The court denied the City’s motion to dismiss as to the claim in Count I alleging a failure to train
and supervise regarding use of force involving Tasers, in violation of the Fourth Amendment.
On January 16, 2017, the Plaintiff filed a motion for leave to amend the complaint (doc.
28), attaching the proposed pleading (doc. 28-1). The Defendants opposed the motion (doc. 80),
and the Plaintiff’s filed a reply (doc. 32). The court granted in part and denied in part the motion
to amend, allowing the Plaintiff to file an amended complaint but not the one attached to the
motion, as it was a shotgun complaint and suffered from other problems of clarity. (Doc.33).
The Plaintiff timely filed his Amended Complaint (doc. 35), and all Defendants jointly
filed the motion to dismiss (doc. 36) addressed here.
II. STANDARD OF REVIEW
The court set out the standard of review in its previous Memorandum Opinion addressing
the first motion to dismiss (doc. 24), and incorporates by reference that standard here.
The Alleged “Excessive Force” on May 30, 2015
The parties had conducted discovery before filing the Amended Complaint, which may
explain why the facts alleged here have changed from those stated in the original Complaint.
The alleged excessive force occurred at approximately noon on May 30, 2015. According to the
Amended Complaint, the Plaintiff, Major Stephens, was standing, unarmed, in an apartment
parking lot, when two officers in a patrol car started driving toward him. The Amended
Complaint does not explain why the officers were interested in approaching Stephens. When
Stephens tried to get away on foot from the approaching car, Sergeant Voss accelerated and
drove the car over the curb and onto the sidewalk, striking Mr. Stephens and pinning him
between the car and some other surface. Mr. Stephens extricated himself and continued to move
down the street on foot, away from the officers. The Amended Complaint does not allege any
facts indicating that Mr. Stephens was a threat to the officers, but it does indicate that he was
attempting “to retreat” from them.
As Mr. Stephens retreated, the other officer who had been in the car, Defendant Justin
Willis, commanded him to stop. Mr. Stephens immediately complied with the command and
attempted to surrender. However, Officer Willis ignored his compliance and his attempt to
surrender, immediately deploying his Taser toward Mr. Stephens from about fifteen to twenty
feet away. At the time of this deployment, Mr. Stephens was facing Officer Willis, and the upper
prong of the Taser struck Mr. Stephens in the face, with electrical current entering his right
eyeball. The lower Taser prong struck his lower pant leg. Willis continued to discharge
electrical current into Stephens’s head and eyeball for about five seconds. At no point prior to
deploying the Taser did any officer attempt to apply handcuffs to Mr. Stephens.
As a result of the Taser strike, Mr. Stephens’s right eye was damaged, and Mr. Stephens
has undergone extensive medical treatment, which included the removal of his right eye.
Prior Taser Events1
In his Amended Complaint, Mr. Stephens recounts the following prior events involving
Tasers to establish that the City was on notice that its officers needed Taser training but that the
City was deliberately indifferent to that need; and further, to establish that the City had a policy
of failing to investigate use of force incidents involving Tasers and of failing to discipline its
officers when the use of Tasers was unlawful.
(1) Prior to May 30, 2015, an unidentified City officer “unlawfully” deployed his Taser
against a citizen in excess of 20 seconds, causing the citizen to be paralyzed and affecting his
mental functioning. Despite the filing of a formal citizen complaint and lawsuit regarding this
incident, the City “failed to discipline, provide any remedial training, or even conduct a formal
investigation. . . .” (Amend. Compl. Doc. 35, at 5 ¶ 21).
(2) Prior to May 30, 2015, an unidentified City officer, when in the midst of a personal
domestic dispute, “unlawfully” used his Taser against his significant other. The City failed to
discipline the officer who deployed the Taser; failed to provide remedial training to that officer
regarding Taser use; and failed to conduct a formal investigation regarding the incident.
(Amend. Compl. Doc. 35, at 5-6 ¶ 22).
The court notes that the Defendants argue in their brief that the court should consider
that the officers involved in the first three incidents listed are no longer employees of the City.
(Doc. 36, at 19). However, this information is not part of the Amended Complaint, and, as Mr.
Stephens pointed out in his brief, is not appropriate fodder for argument at this stage.
(3) Prior to May 30, 2015, an unidentified City officer, when in the midst of a personal
domestic dispute, “unlawfully” used his Taser against the significant other’s dog.2 The City
failed to discipline the officer who deployed the Taser; failed to provide remedial training to that
officer regarding Taser use; and failed to conduct a formal investigation regarding the incident.
(Amend. Compl. Doc. 35, at 6 ¶ 23).
(4) In December of 2012, Defendant Officer Willis deployed his Taser for twenty-five
seconds. The Amended Complaint refers to an “entry” reflecting this lengthy deployment, but
does not identify in what document this “entry” was located or state whether other City officers
or officials were aware prior to May 30, 2015 of this entry and/or lengthy Taser deployment. The
City failed to discipline Officer Willis for this lengthy deployment; failed to provide remedial
training to him regarding Taser use; and failed to conduct an investigation regarding the incident.
(Amend. Compl. Doc. 35, at 13 ¶ 60). The Amended Complaint further states that Officer Willis
has deployed his Taser “on an individual for at least five [ ] seconds on multiple occasions,” but
it does not provide any other details, such as when these events occurred. (Amend. Compl. Doc.
35, at 7-8 ¶ 32).
(5) At some unidentified date prior to May 30, 2015, Defendant Officer Willis deployed
his Taser on a citizen, and the Taser prongs failed to land on the citizen’s lower center mass as
required but landed instead on the citizen’s upper back and pants leg. The City did not
investigate this Taser deployment. The Amended Complaint lacks any other details about this
The Amended Complaint does not identify the officer or the date and does not specify
whether the Taser use against the dog occurred in the same domestic dispute as the Taser use
against the significant other. Therefore, this third incident may or may not be a separate incident
from the second, and indeed, the Defendants indicate in their brief that the two incidents
involved the same officer and the same domestic dispute.
event. (Amend. Compl. Doc. 35, at 11 ¶ 48).
The Amended Complaint states: “Out of the numerous Taser deployments on Defendant
City citizens discovered in this case, only one (1) of the Tasings was executed properly regarding
placement of the Taser prongs,” but it does not state which one. (Amend. Compl. Doc. 35, at 11
¶ 49). These five deployments listed as “Prior Taser Events” are the only ones specifically listed
in the Amended Complaint. The Amended Complaint does not specifically allege that the City
or Defendant Officers (other than the officer deploying the Taser) were aware prior to May 30,
2015 that these deployments involved improperly placed Taser prongs.
City Policy/Custom/Practice Regarding Taser Use
In addition to these specific events, the Amended Complaint states that, although the City
officers’ Taser use was “common,” the City has implemented no written policy, and no specific
procedures and practices regarding use of force with Tasers to guide and monitor the actions of
Further, the Amended Complaint states that the City has a custom of not investigating use
of force reports or citizen claims about officer use of force, including Taser use, either informally
or formally, to determine whether the use was appropriate and/or constitutional. Nevertheless,
the Amended Complaint refers to a “use of force report.” The City has no written policy
requiring an investigation, whether formal or informal, after Taser deployment to determine
whether the use was appropriate and/or constitutional. Rather, the City’s custom and practice is
to use “plain, everyday, common sense” in determining whether to investigate. The Amended
Complaint states that the current policy of the City, presumably based on custom and practice, is
to take the word of the officer deploying force regarding the facts and context of the use of force.
That officer’s “word” is not based on officer interviews, which are not required and are not
performed, but is based simply on what the officer reported on the use of force report. When
officers deploy force, the City’s custom and practice requires no determination regarding the
appropriateness or constitutionality of the force; requires no interviews of either the officer using
force or witnesses to the use of force; and does not require that an independent investigation be
Lieutenant Rice, who is currently responsible for the Patrol and Detective divisions, is
tasked with reviewing reports, radio logs, detective reports, and supervising all the sergeants and
police officers, including Officer Willis during his tenure. He also is responsible for receiving
and investigating citizen complaints, and maintaining them and any other Internal Affairs files in
his personal office. The officers, including Officer Willis during his tenure at Tarrant, submit use
of force reports to Lieutenant Rice, and those reports apparently receive some sort of review,
because the Amended Complaint reflects that Officer Willis occasionally had reports sent back to
him for revision. However, the only requests for revision communicated to Officer Willis
involved correction of grammatical errors or punctuation, even when his reports included
inconsistencies. Other than the grammatical corrections, Officer Willis has received no response
to his use of force reports, no investigation of multiple Taser deployments, and no discipline as a
result of use of force, including Taser deployments.
Before he became chief in 2010, Chief Reno previously held the position of Lieutenant in
charge of investigating complaints against the City officers, including complaints of excessive
force. During his tenure in that position, he failed to conduct any investigation based on those
complaints and received no direction from the prior Chief of Police to do so. Now that
Lieutenant Rice holds that position, Rice is responsible not only for investigating citizen
complaints but also for providing copies of such complaints to Chief Reno. Despite that
obligation, the Chief has received a copy of only one citizen complaint during his tenure as chief:
the lawsuit involving a Taser strike that left the victim paralyzed described above. The Amended
Complaint states, on one hand, that during his tenure as chief, Reno has failed to review a single
citizen complaint regarding excessive force since 2012. On the other hand, the Amended
Complaint states that Chief Reno did receive one complaint—the Taser deployment resulting in
paralysis—but the Amended Complaint alleges that the Chief failed to follow up to ensure that
the City conducted a formal investigation of this incident and provided remedial training. The
Amended Complaint implies but does not specifically state that the City received more
complaints than the one excessive force complaint forwarded to the Chief, and that Rice failed to
advise the Chief of the additional complaints.
The Chief has never asked Lieutenant Rice about how and if he conducts an investigation
to determine whether an officer using force did so in compliance with the City’s use of force
custom/policy. Further, since becoming Chief, he has never reviewed any of the Internal Affairs
files regarding use of force complaints that Lieutenant Rice maintains. The Chief has failed to
institute any written policy regarding when a use of force requires investigation.
The City has never disciplined any officer for excessive use of force with a Taser, despite
“admissions of Defendants Chief and Willis and Sergeant Voss [that] prior violations of
Defendant City policy” had occurred. (Doc. 35, at 7 ¶ 29). The Amended Complaint does not
provide the specific content of the admissions, and does not specify whether the admissions of
prior violations involved use of force with a Taser.
The Amended Complaint gives examples of City officers who have used their Tasers on
multiple occasions without investigation or discipline, although it provides no facts surrounding
the deployments except the five listed in the “Prior Taser Events” section. It makes confusing
statements that are difficult to decipher regarding the circumstances surrounding the Taser
incidents, including the number and dates of those incidents and the content of the “admissions”
of policy violations that certain officers made about them.
Since the May 30, 2015 incident made the basis of this suit, Officer Willis transferred to
the City of Huntsville Policy Department.
Sergeant Voss has deployed his Taser on four to five occasions3 and, like Officer Willis,
has never been interviewed regarding his use of force nor has any City official asked him to
provide his Taser to check whether it has been deployed. The City has not disciplined Voss for
his Taser deployment.
Training Regarding Taser Use
The Amended Complaint states that City failed to provide its officers with “adequate”
training in the use of Tasers. For example, Officer Willis received Taser training when he was
originally hired that was limited to a video class and written questions without an opportunity to
practice and with no updated training throughout his entire employment with the City. Mr.
Stephens alleges that the City’s Taser training was inadequate because: (1) no training occurred
on how to stop the electrical current from entering an individual after Taser deployment, despite
Taser training recommendations to do so; (2) no training occurred on how or where to point the
The Amended Complaint does not specify whether any or all of these occasions
occurred prior to May 30, 2015.
Taser, resulting in a majority of reported Taser uses having the Taser prongs land incorrectly; (3)
no training occurred on pointing the Taser light at a suspect prior to deploying the Taser to
encourage compliance without deployment, despite Taser training recommendations to do so; (4)
the officers received no opportunity to practice using the Tasers prior to deploying them on
citizens, despite Taser training recommendations to have at least two practice deployments.
Excessive Force Generally
The Amended Complaint also asserts that City officers have “a widespread history of
excessive force.” (Doc. 35, at 14 ¶ 66). Although the Amended Complaint does not provide
specific examples of that “widespread” history, other than the Taser incidents described
previously, it lists the following general “systemic deficiencies” on the part of the City:
a. failing to implement policies, procedures and practices regarding use of
force that appropriately guide and monitor the actions of Tarrant Police
b. failing to supervise Defendant City Police Officers and Supervisors
adequately to prevent the reoccurrence of the use of excessive force.
(Doc. 35, at 15-16 ¶ 66). The Amended Complaint also asserts that Officer Willis never took an
officer Continuing Education course that covered use of force or reporting use of force.
The Defendants assert in their motion to dismiss that all claims in the Amended
Complaint are due to be dismissed: Count I—failure to train and supervise use of force, brought
pursuant to § 1983 for violations of rights under the Fourth and Fourteenth4 Amendment, and
asserted against the City and against the Chief Reno and Lieutenant Rice in their official
In his brief, Mr. Stephens acknowledges that he does not bring any claims in the
Amended Complaint based on the Fourteenth Amendment’s right to substantive due process, and
the court had previously dismissed with prejudice any such claims.
capacities only; Count II—failure to discipline and investigate, brought pursuant to § 1983 and
asserted against the City and against the Chief Reno and Lieutenant Rice in their individual
capacities; Count III—use of excessive force with a Taser, brought pursuant to § 1983 and
asserted against Officer Willis in his individual capacity; Count IV—tort of outrage, brought
under Alabama law and asserted against Officer Willis, Chief Reno, and Lieutenant Rice; and
Count V—assault and battery, brought under Alabama law and asserted against Officer Willis.
A. Federal Claims Asserted Against the City and/or City Officials
1. Count I: Section 1983–Failure to Train and Supervise Use of Force, Asserted
against City, and against Chief Reno & Lieutenant Rice
a. The City’s Failure to Train and Supervise
Recognizing that the “failure to train” and “failure to supervise” are often interrelated
omissions, the Eleventh Circuit explained that the court’s proper focus in addressing these
interrelated claims is on the “element common to both claims: the alleged failure to train.” Kerr
v. City of West Palm Beach, 875 F.2d 1546, 1555 (11th Cir. 1989). A city’s failure to train a
police officer rises to the level of a municipal custom or policy only in the “limited
circumstances” when its failure shows a “‘deliberate indifference’ to the rights of its inhabitants”
and the city policy causes the employees to violate a citizen’s constitutional rights. City of
Canton v. Harris, 489 U.S. 378, 387, 389-91 (1989); see also Gold v. City of Miami, 151 F.3d
1346, 1350 (11th Cir. 1998) (“Since a municipality rarely will have an express written or oral
policy of inadequately training or supervising its employees, . . . a plaintiff may prove a city
policy by showing that the municipality’s failure to train evidenced a ‘deliberate indifference’ to
the rights of its inhabitants.”). To establish deliberate indifference, a plaintiff must show “‘that
the municipality knew of a need to train . . . in a particular area and the municipality made a
deliberate choice not to take any action.’” Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1293
(11th Cir. 2009) (quoting Gold, 151 F.3d at 1350) (emphasis supplied).
The court reiterates that the mere fact that officers may be inadequately trained does not
implicate municipal liability; to be deliberately indifferent, the City must have had notice prior to
the acts made the basis of this suit of a need to train or supervise, and yet, failed to train and
supervise despite that notice. Further, a causal link must exist between the deliberate indifference
and the denial of the constitutional right. See Lewis, 561 F.3d at 1293.
In the instant case, the Amended Complaint alleges that, although the City provided Taser
training to its officers, the training was not adequate. The Amended Complaint states that the
inadequacy existed in part because the City did not follow Taser recommended training in the
following ways: (1) failed to provide two practice deployments of a Taser prior to certification;
(2) failed to train officers on how to stop the electrical current from entering an individual after a
Taser has been deployed; and (3) failed to train officers on pointing the Taser light at a suspect
prior to deploying the Taser as a less forceful means of achieving compliance. The allegations
are that the officer who deployed a Taser against Mr. Stephens, Officer Willis, did not have an
opportunity to practice using the Taser before he used it on citizens; did not stop the electrical
current when it hit Mr. Stephens in the eye but continued to deploy the current into his head for
five seconds; and did not provide Mr. Stephens with a warning by pointing the Taser light at him
before deploying the Taser.
A reasonable inference from the Amended Complaint is that the Taser training
recommendations were communicated to the City but that the City deliberately ignored at least
some of those recommendations and, as a result, that the training program was deficient.
However, allegations that the City ignored training guidelines do not necessarily mean that the
City had notice prior to May 30, 2015 that any deviation from training guidelines caused
violation(s) of federally protected rights.
A plaintiff may show notice and deliberate indifference in a failure to train case in two
ways: he may show “a widespread pattern of similar constitutional violations by untrained
employees”; or he may show that the need for training, or different training, was “so obvious that
a municipality’s failure to train its employees would result in a constitutional violation.” Mingo
v. City of Mobile, 592 F. App’x 793, 799 (11th Cir. 2014) (citing Connick v. Thompson, 563 U.S.
51, 62 (2011); see also Gold, 151 F.3d at 1350-52 (to same effect).
(1). Widespread Pattern
In the instant case, the allegations of the Amended Complaint list several prior Taser
incidents involving City officers and assert that these incidents form a widespread pattern of
similar constitutional violations sufficient to show notice to the City of training insufficience and
deliberate indifference when it failed to respond. The first incident, involving a City officer’s
“unlawful” deployment of a Taser in excess of twenty seconds resulting in a citizen’s paralysis,
arguably provides notice of one constitutional violation involving Taser use. The Amended
Complaint does not identify the officer, so he is presumably not Officer Willis. Another
incident listed involved Officer Willis’s deployment of a Taser for twenty-five seconds, but
provides no further information about the deployment except its length and does not indicate
whether any physical injury resulted. Because of the length of these deployments, a reasonable
inference exists that the lack of training about how to stop the Taser current once deployed could
likely be the moving force behind any constitutional violations.
Two other incidents listed do not help to establish a pattern showing inadequate training:
they involve an unidentified officer using his Taser against his significant other and her dog
during his own domestic dispute. The training failures listed in the Amended Complaint do not
include prohibiting Taser use off-the-job. For the same reasons, the alleged training failures
would not be the moving force behind these two incidents. And, in any event, these incidents are
not sufficiently similar to the incident in the instant case to form the requisite pattern establishing
notice to the City.
The last incident described in the Amended Complaint involves Officer Willis and a
misplaced prong, but the allegation of a misplaced prong does not state sufficient facts showing
excessive force or a constitutional deprivation.
Therefore, the Amended Complaint states, at most, two prior incidents involving force
with a Taser that arguably resulted from the failure to follow training guidelines and arguably
violated constitutional rights to be free from excessive force. The two incidents alleged here do
not establish a pattern sufficient to show deliberate indifference. See Denham v. Corizon Health,
Inc., 675 F. App’x 935, 942-43 (11th Cir. Jan. 13, 2017) (per curiam) (finding that only two prior
incidents of allegedly similar constitutional violations do not establish a pattern sufficient to
support a failure to train theory against a county); Keith v. DeKalb Cnty, 749 F.3d 1034, 1053
(11th Cir. 2014) (finding that one prior “incident did not provide the requisite notice to [the
supervisor] that the training provided to detention officers was constitutionally deficient.”).
Therefore, the court FINDS that the Amended Complaint does not allege a pattern of prior
constitutional violations sufficient to support a failure to train theory.
(2). “So Obvious”/Single Incident Exception
A second means of establishing notice of a need to train in a particular area is if “the need
for more or different training is so obvious, and the inadequacy so likely to result in the violation
of constitutional rights, that the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need.” Canton, 489 U.S. at 390 & n.10. Where the “so obvious”
theory applies, no showing of a pattern of prior constitutional offenses is required, so this theory
is also known as the “single incident” theory.
The Supreme Court of the United States has not yet decided a case in which it specifically
found that such an obvious need existed to support a failure to train without a prior pattern of
constitutional violations. Rather, the Supreme Court has “given only a hypothetical example” in
a footnote of such an obvious training need: training in “the use of deadly force where firearms
are provided to police officers.” Gold, 151 F.3d at 1352 (citing Canton, 489 U.S. at 390 n. 10).
As the Supreme Court explained in a subsequent case: “[t]he Court sought not to foreclose the
possibility, however rare, that the unconstitutional consequences of failing to train could be so
patently obvious that a city could be liable under § 1983 without proof of a pre-existing pattern
of violations.” Connick, 563 U.S. at 64 (explaining the Canton case). Neither has the Eleventh
Circuit “ever found an appropriate use for Canton’s narrow, rare, hypothetical exception to the
pattern-of-constitutional-violations requirement.” Robinson v. Brassel, 2017 WL 2437265, at
*12 (June 5, 2017) (granting summary judgment in favor of the defendant city on the failure to
train claim in a Taser case).
In its opinion on the first motion to dismiss in the instant case, this court noted that one
reading of the original Complaint could be that when the City issued Tasers to its officers, it
provided no Taser training at all. Mr. Stephens asserted that the need for such training was “so
obvious” to provide notice supporting the failure to train theory; however, in the first round of
briefing, the City failed to acknowledged this single incident exception and did not address it.
Accordingly, the court found that the City had not met its burden of establishing that the failure
to train claim was due to be dismissed.
Mr. Stephens also argued in the first round of briefing (doc. 12, at 8), and reiterates wordfor-word the argument in his current briefing (doc. 38, at 12), as follows: “If a Defendant Officer
believed it was reasonable force to deploy a Taser device into an unarmed individual’s eyeball
without even attempting to place him in handcuffs . . ., a reasonable person can draw the
inference such officer was improperly trained or supervised in his duties as an employee of
Defendant City, thus amounting to a § 1983 violation.” In its Memorandum Opinion addressing
the first motion to dismiss, this court rejected the argument that the court can infer inadequate
training solely from the use of unreasonable force in the incident made the basis of the suit.
More importantly, the Supreme Court of the United States has rejected this argument,
instructing that “adequately trained officers occasionally make mistakes” and “the fact that they
do says little about the training program . . . .” City of Canton, 489 U.S. at 391. Therefore, mere
allegations of constitutional deprivation by officers, standing alone, do not support a claim
against the City or the supervisors for failure to train or for deliberate indifference. Such an
argument is, in effect, calling for the imposition of respondeat superior liability, which is a
theory of liability that the Supreme Court has repeatedly refused to impose under section 1983
for municipal liability. In its Memorandum Opinion addressing the prior motion to dismiss, this
court explained the reason for its rejection of this argument; reiterating it here does not change
In the Amended Complaint, Mr. Stephens acknowledges that the City provided some
Taser training, but asserts that the training was inadequate and did not meet the training
recommendations, as previously discussed. In their motion to dismiss and supporting briefing,
the Defendants address the “so obvious”/single incident theory for the first time and argue that
the facts alleged in the Amended Complaint do not fall within the limited hypothetical that the
Supreme Court suggested in its Canton footnote. Defendants argue that issuing Tasers is not the
same as issuing firearms, which involve deadly force, and they cite several non-controlling cases
characterizing Tasers as non-deadly force and refusing to apply the Canton “so obvious” theory
to allegedly inadequate Taser or beanbag gun training. See, e.g., Gilliam ex rel. Waldroup v. City
of Prattville, 667 F. Supp. 2d 1276, 1293 (M.D. Ala. 2009) (finding that the failure to re-train
officers on the use of their Tasers every year did not fit within the Canton hypothetical because
“[t]he use of a firearm is presumptively the use of deadly force, while the use of a taser is not
presumptively the use of deadly force.”) (emphasis added), rev’d in part on the grounds that the
excessive force claim did not survive the arrestee’s death by Estate of Gilliam v. City of
Prattville, 639 F. 3d 1041 (11th Cir. 2011). The one controlling case Defendants cite, Smith v.
LePage, 834 F.3d 1285, 1294-95 (11th Cir. 2016), did not address a failure to train claim;
however, it is an excessive force case characterizing a Taser as “nonlethal” force.
In the instant case, the facts do not precisely fall within the one “so obvious” hypothetical
that the Supreme Court has provided: providing firearms, which are deadly force weapons,
without providing training in their use. Here, the training issue involved Tasers, which are
designed to incapacitate and not kill. In addition, the court is aware of the reluctance of Courts
of Appeal in failure to train cases to extend the “so obvious” parameters beyond Canton’s deadly
force example. See, e.g., Estate of Davis ex. rel. McCully v. City of North Richland Hills, 406
F.3d 375, 385-86 (5th Cir. 2005) (acknowledging that it has been “reluctant to expand” to
narrow, “single incident exception”); see also Flores v. County of Los Angeles, 758 F.3d 1154,
1159-60 (9th Cir. 2014) (refusing to expand the “so obvious” parameters to allegations of failing
to train police officers not to commit sexual assault); Heyerman v. Cnty. of Calhoun, 680 F.3d
642, 648-49 (6th Cir. 2012) (refusing to expand the “so obvious” exception to the need to train
officers in timely presentation of a defendant to the trial court after remand from the court of
And, the court notes that the instant fact situation does not involve a complete failure to
train officers in how to use Tasers, as the original Complaint suggested. Instead, it involves the
quality of the training.
The court acknowledges Mr. Stephens’s argument that the City’s failure to follow the
“Taser recommended training” represented notice to the City that the Taser training was
inadequate under the “so obvious” exception. The Amended Complaint states that the City failed
to provide certain “recommended training” for the Taser, but did not specify who recommended
the training. The court does not know whether the referenced training recommendations
emanated from the manufacturer of the Taser, or from some other source, whether wellestablished or not. To the extent, if any, that the Amended Complaint is alleging that the
inadequacy of the Taser training was patently obvious because the City failed to follow the
manufacturer’s recommendations for Taser training, this allegation is troubling. However,
absent specific guidance to do so from the Supreme Court of the United States and/or the
Eleventh Circuit, this court refuses to extend Canton’s “narrow” and “rare” so obvious/singleincident exception to this circumstance, when the City did provide some Taser training. In sum,
the court FINDS that the allegations in this case do not fit within the confines of the singleincident hypothetical in Canton.
Accordingly, the court FINDS that the failure to train claim asserted in Count I against
the City fails to state a claim; the court WILL GRANT the motion to dismiss as to that claim.
b. Official Capacity Claims Asserted Against Chief Reno and Lieutenant
Official capacity claims are redundant when the complaint also names the city as a
defendant; “[w]hen an officer is sued under Section 1983 in his or her official capacity, the suit is
simply another way of pleading an action against an entity of which an officer is an agent . . . .
Such suits against municipal officers are therefore, in actuality, suits directly against the city that
the officer represents.” Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (internal
citations and quotations omitted). Thus, when Mr. Stephens sues the City, and Chief Reno and
Lieutenant Rice in their official capacities, he is naming the Defendant City in three different
ways. Here, naming the individual Defendants in their official capacities as separate, additional
parties adds nothing to the claims except an additional layer of redundancy.
The court is aware that Mr. Stephens requests equitable relief; however, he cites no cases
that treat the rule in Busby differently in cases requesting equitable relief where the employing
entity is also sued. Cf. Welch v. Laney, 57 F.3d 1004, 1008-09 (11th Cir. 1995) (finding that the
Eleventh Amendment immunity did not bar a plaintiff’s claims against a sheriff and sheriff’s
deputy in their official capacities for prospective injunctive relief where those individuals were
the only defendants; the county for which they worked was not sued). Of course, in the instant
case, Mr. Stephens asserts claims against not only the individual Defendants but also against the
Accordingly, the court WILL GRANT the motion to dismiss as to the claims asserted
against Chief Reno and Lieutenant Rice in their official capacities5 because those claims are
redundant and potentially confusing.
c. Individual Capacity Claims Asserted against Chief Reno & Lieutenant
Although the caption of Count I specifies that it asserts claims against Chief Reno and
Lieutenant Rice in their official capacities but does not include individual capacity claims, the
last two paragraphs of the Count refer to individual capacity claims. See Doc. 35, at 8-9 & 15 ¶¶
68 & 69. This inconsistency is both confusing and troubling. In his brief, Mr. Stephens argues
that Defendants Reno and Rice are not entitled to qualified immunity as to the failure to train and
supervise claims and confirms that, despite the caption, he intended for Count I to assert claims
against the Chief and Lieutenant in both official and individual capacities. Therefore, the court
next will address individual capacity claims for this Count.
In their individual capacities, government officials, including officers, are entitled to
immunity from suit for actions performed within the scope of their discretionary authority
“unless the law preexisting [their] supposedly wrongful act was already established to such a
high degree that every objectively reasonable official standing in [their] place would be on notice
Count I is the only Count that specifically states official capacity claims. (Doc. 35, at
9). A footnote states that official capacity claims against Defendant Rice and Defendant Chief
are interchangeable with those against the City. (Doc. 35, at 3 n. 1 & 2).
that what the defendant official was doing would be clearly unlawful given the circumstances.”
Pace v. Capobianco, 283 F.3d 1275, 1282 (11th Cir. 2002).
Qualified immunity protects “all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). “To defeat the presumption of
qualified immunity, a plaintiff must demonstrate both that the facts, when viewed in a light most
favorable to the plaintiff, establish a constitutional violation and that the illegality of the officer’s
actions was ‘clearly established’ at the time of the incident.” Glenn v. City of Columbus, 375 F.
App’x 928, 931 (11th Cir. 2010) (emphasis in original) (citing Pearson v. Callahan, 555 U.S.
223, 231 (2009)).
The court FINDS that the alleged conduct of Chief Reno and Lieutenant Rice falls within
the scope of their discretionary authority, because training and supervision of their officers is
conduct “‘undertaken pursuant to the performance of [their] duties’” and “‘within the scope of
[their] authority.’” See Hardy v. Town of Hayneville, 50 F. Supp. 2d 1176, 1189 (M.D. Ala.
1999) (quoting Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994)).
Next, the court must analyze the qualified immunity defense under a two part framework:
(1) whether the allegations establish a constitutional violation, and (2) whether the constitutional
right is “clearly established.” Saucier v. Katz, 533 U.S. 194, 200-02 (2001). The court has
already determined that the City’s alleged failure to train did not state a claim for deliberate
indifference because the Amended Complaint does not sufficiently allege facts establishing
notice. The same analysis would apply to the deliberate indifference claims against Chief Reno
and Lieutenant Rice, and the court FINDS that Count I of the Amended Complaint does not
sufficiently allege facts that would establish their deliberate indifference.
Even assuming arguendo that the facts in Count I do so, Chief Reno and Lieutenant Rice
are still entitled to qualified immunity because the facts alleged do not meet the “clearly
established” prong of the qualified immunity analysis. As discussed previously in section IV.A.1.
a. (2), no clearly established law existed as of May 30, 2015 that would have put Chief Reno and
Lieutenant Rice on notice that their failure to provide specific additional Taser training violated
the constitution or would likely result in constitutional violations.
Therefore, the court FINDS that Chief Reno and Lieutenant Rice are entitled to qualified
immunity as to the failure to train claims asserted against them in Count I; the court WILL
GRANT the motion to dismiss as to those claims.
2. Count II: Section 1983–Failure to Discipline/Investigate Use of Force against
City, and against Chief Reno & Lieutenant Rice in their Individual Capacities
a. City Liability
In Monell v. Department of Social Services, the Supreme Court of the United States held
that municipal liability must be predicated upon more than a respondeat superior theory; it may
be predicated upon a showing that the unconstitutional action of a government employee
implements or executes a city policy or city custom “even though such custom has not received
formal approval through the body’s official decision-making channels.” 436 U.S. 658, 690-91
(1978). To support city liability, the policy or custom must be the moving force behind the
constitutional violation. City of Oklahoma City v. Tuttle, 471 U.S. 808, 820 (1985).
In support of this claim in Count II, Mr. Stephens alleges that the current custom and
practice of the City is to not investigate Taser use or any other use of potentially excessive force,
either informally or formally, to determine whether the use was appropriate and/or constitutional.
Instead, the City apparently requires officers who deploy Tasers against citizens to fill out a “use
of force” report and submit it to Lieutenant Rice, who accepts the officer’s explanation for the
use of force without investigating. According to the Amended Complaint, neither Lieutenant
Rice nor Chief Reno, who held the Lieutenant position before Rice, has ever formally
investigated an incident involving a Tarrant officer’s use of force with a Taser; nor have they
ever disciplined a Tarrant officer for such use of force. After he became Chief, Reno has never
reviewed any use of force reports involving Tasers with the exception of one incident that was
the subject of a lawsuit, and has never asked Lieutenant Rice how or if he were investigating
incidents in use of force reports. Mr. Stephens asserts that these failures have created an
“atmosphere of tolerance and ratification of officers’ use of force without an expectation of
investigation or accountability, resulting in the use of excessive force being allowed and
encouraged by Defendant City, Defendant Chief, and Defendant Rice.” (Doc. 35, at 22).
The Eleventh Circuit has explained that “a persistent failure to take disciplinary action
against officers can give rise to the inference that a municipality ratified conduct, thereby
establishing a ‘custom’ within the meaning of Monell.” Fundiller v. City of Cooper City, 777
F.2d 1436, 1443 (11th Cir. 1985); see Feliciano v. City of Miami Beach, 847 F. Supp. 2d 1359,
1367 (S.D. Fla. 2012) (finding no deliberate indifference existed because the plaintiff did not
show that the government entity had failed to investigate previous incidents).
In the instant case, the first Complaint referred only to the failure to investigate the single
incident made the basis of this suit, and the court dismissed the failure to investigate and
discipline claim because the single failure to investigate was insufficient for liability. See Doc.
24, at 19; see also Salvato v. Miley, 790 F.3d 1286, 1297-98 (11th Cir. 2015) (holding that a
single failure to investigate did not support liability under section 1983). However, the
allegations of the Amended Complaint state that the failure to investigate and discipline use of
force incidents, including those with Tasers previously discussed, existed before the incidents
made the basis of this suit and covered all use of force incidents during the tenures of Lieutenant
Rice and of Reno in his positions of Chief and Lieutenant.
The court notes that the allegations are not that the investigations of previous use of force
incidents under Defendants Rice and Reno were inadequate, but rather, that no
investigations—and consequently, no discipline—occurred at all. The City cannot successfully
argue that it had no notice of previous use of force violations when, according to the allegations,
it failed to conduct any investigations at all of use of force incidents but had the means to do so;
if this argument prevailed, then every police department could successfully avoid deliberate
indifference liability simply by failing to investigate any use of force and citizen complaints, then
denying notice that it had a problem.
If established, these allegations provide the requisite fault on behalf of the City and the
causal link between the challenged conduct and the City’s policy; Chief Reno and Lieutenant
Rice would have been acting, or failing to act, consistent with the custom of allowing,
encouraging, or ratifying excessive force, a custom of which Officer Willis would have been
aware when he allegedly used excessive force against Mr. Stephens. Therefore, the court FINDS
that the motion to dismiss is due to be DENIED as to the failure to investigate and discipline
claim against the City in Count II.
b. Liability of Chief Reno and Lieutenant Rice
Mr. Stephens also asserts claims in Count II against Chief Reno and Lieutenant Rice in
their individual capacities, alleging that their failures to investigate any use of force incidents
during their tenures meant that they created an atmosphere of tolerance for use of excessive force
and were deliberately indifferent to the rights of those victims of excessive force. At the time of
the May 30, 2015 incident and for some years prior to it, Lieutenant Rice, and not Chief Reno,
was the officer responsible for investigation and discipline; however, Chief Reno held the
lieutenancy prior to becoming chief. According to the Amended Complaint, both men followed
the same modus operandi of failing to investigate use of force and failing to discipline officers
even though the Chief acknowledged that prior use of force violations of City policy occurred,
including use of force with a Taser. The Amended Complaint characterizes the failure to
investigate as a complete one: no investigations and no discipline regarding use of force.
In the briefing on this motion, Chief Reno and Lieutenant Rice raise qualified immunity
as to all claims against them. However, they do not specifically address the failure to
discipline/investigate claim but merely “adopt and assert the same reasoning and arguments made
hereinabove for Stephens’ claim for [Count I].” (Doc. 36, at 26 & Doc. 42). This adoption is
perplexing because the allegations of a complete failure to investigate and discipline differ from
the failure to adequately train with a Taser when some Taser training was provided. In their
briefs, the Defendants failed to develop this and other issues, including whether the alleged
violation based on a failure to investigate was well established at the time of the incident made
the basis of this suit
In any event, regardless of whether the court ultimately finds that the allegations in Count
II are inadequate, the Defendants’ briefing on this issue is inadequate. The inadequacy provides
the court with no grounds—much less sufficient ones—on which to find they are entitled to
qualified immunity. Based on the facts and arguments currently before the court, the court
cannot say that Chief Reno and Lieutenant Rice have established their entitlement to qualified
immunity from the allegations that they completely failed to investigate any use of force. The
court FINDS that the motion to dismiss is due to be DENIED as to this claim in Count II.
3. Count III - Excessive Force with Taser against Officer Willis individually
In this Count, Mr. Stephens asserts that Officer Willis used excessive force when he
discharged electrical current from his Taser through Mr. Stephens’s head and right eyeball for
five seconds, resulting in the loss and removal of that eye, and neurological and other damages.
As stated in the Facts section, when Officer Willis deployed the Taser, Mr. Stephens was
unarmed, complying with Officer Willis’s commands to stop, attempting to surrender, and was
fifteen to twenty feet away.
All parties agree that this claim is properly analyzed under the Fourth Amendment as
opposed to substantive due process of the Fourteenth Amendment. See Ds.’ Br. Doc. 36, at 29;
Resp. Br. Doc. 38, at 16; see also Graham v. Connor, 490 U.S. 386, 395; Carr v. Tatangelo, 338
F.3d 1259, 1267 n.15 (11th Cir. 2003). “The Fourth Amendment’s freedom from unreasonable
searches and seizures encompasses the right to be free from excessive force during the course of
a criminal apprehension.” Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009). Because Mr.
Stephens asserts this claim against Officer Willis in his individual capacity, and the officer raises
qualified immunity, the court must determine if the immunity attaches to him.
The court first FINDS that the actions identified in the Amended Complaint fall within
the scope of his discretionary authority; indeed, Mr. Stephens so stipulates. (Resp. Br. Doc. 38,
at 17). Therefore, qualified immunity attaches unless Mr. Stephens meets his burden of pleading
sufficient facts to demonstrate, in the two-part immunity framework, both “that the facts, when
viewed in a light most favorable to the plaintiff, establish a constitutional violation and that the
illegality of the officer’s actions was ‘clearly established’ at the time of the incident.” Glenn, 375
F. App’x at 931 (emphasis in original). The court can address these two requirements in any
order. Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
Mr. Stephens argues that a constitutional violation exists because Officer Willis deployed
the Taser into his eye when he was complying with the officer’s commands to stop and
attempting to surrender, and when he was unarmed and too far from the officers to be a physical
threat. Defendants, on the other hand, deny that a constitutional violation exists. They assert that
Officer Willis had the right to use some degree of reasonable force to effect Mr. Stephens’s arrest
and that the Amended Complaint includes no allegation that Officer Willis intended to hit Mr.
“An officer’s use of force is excessive under the Fourth Amendment if the use of force
was ‘objectively [un]reasonable in light of the facts and circumstances confronting’ the officer.”
Fils v. City of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011) (quoting Graham, 490 U.S. at
397). The court judges reasonableness objectively “from the perspective of the reasonable
officer on the scene.” Graham, 490 U.S. at 396. The reasonableness standard “allow[s] 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.” Id. at 396-97.
In making a reasonableness determination for Fourth Amendment purposes, “‘a court
must carefully balance the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing government interests.’” Mann v. Taser Int’l,
Inc., 588 F.3d 1291, 1305 (11th Cir. 2009) (quoting Graham, 490 U.S. at 396)). The officer may
use force that is “necessary in the situation at hand.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th
Cir. 2002) (omitting internal quotations). This court determines whether the force was necessary
by balancing relevant factors, including: “the severity of the crime at issue[;] whether the suspect
poses an immediate threat to the safety of the officers or others[; ] whether [the suspect] is
actively resisting arrest or attempting to evade arrest by flight [;] the need for the application of
force [;] the relationship between the need and amount of force used [;] and . . . the extent of the
injury inflicted.” Mobley v. Palm Beach Cnty. Sheriff Dep’t, 783 F.3d 1347, 1353 (11th Cir.
2015) (internal quotations omitted) (quoting the first three factors from Graham, 490 U.S. at 396,
and last factors from Lee v. Ferraro, 284 F.3d at 1198). At times, the Eleventh Circuit has
evaluated the excessive force only in light of the first three “Graham” factors. See, e.g.,
Stephens v. DeGiovanni, 852 F.3d 1298, 1321-22 (11th Cir. 2017).
Applying that law to the instant case, the court FINDS that the allegations reflect that the
force Officer Willis used was excessive under the circumstances alleged. According to the
Amended Complaint, Mr. Stephens was unarmed and simply standing in a parking lot when the
officers unaccountably pursued him in the police vehicle and pinned him with the car. That
scenario does not reflect that he had committed any crime, much less a serious one. Further, the
factual allegations indicate that Mr. Stephens was not an immediate threat to anyone, that the
need for force was slight, and that he was not actively resisting arrest: he was unarmed,
compliant, and attempting to surrender at the time of the Tasing. Finally, the extent of the injury
was significant: he eventually lost his right eye.
While Mr. Stephens initially did attempt to walk away from the situation after he
extricated himself from being pinned by the car, Officer Willis did not use the Taser against him
at that point. Instead, according to the Amended Complaint, the Tasing occurred after Mr.
Stephens complied with Officer Willis’s commands to stop: he had halted and was attempting to
surrender when Officer Willis deployed the Taser into his head and eye.
In Fils, the Eleventh Circuit found that the use of a Taser on a suspect was excessive
force when the crime for which the suspect was arrested was a non-serious crime such as
disorderly conduct; when the suspect was merely having a private conversation and did not
present a threat to anyone’s safety; and when he put his hands in the air upon seeing the Taser,
took one step backward, and did not resist arrest or ignore any verbal instruction from the officer.
647 F.3d at 1288-89. The court finds the facts in Fils to be analogous to the ones alleged here
and to clearly establish that the Taser use was unreasonable, disproportionate and excessive.
Although, according to the allegations, Mr. Stephens did walk away from the police
vehicle when he extricated himself, he immediately obeyed commands to stop, so he was not
fleeing at the time of the Taser use, and instead, was in the process of surrendering. Like the
suspect in Fils, he was unarmed and no threat to anyone, and had committed no serious crime.
Under these facts, the Tasing of Mr. Stephens, like that of the suspect in Fils, represented
excessive force in violation of the Fourth Amendment.
In their reply brief, Defendants challenge the sequence of events. They characterize the
factual allegations of the Amended Compaint as implying that Mr. Stephens’s act of walking
away or fleeing may have ended so close to the Tasing that Officer Willis deployed the Taser
before realizing that Mr. Stephens had stopped fleeing. The court recognizes that the evidence
ultimately may reflect facts different from the Amended Complaint’s allegations, but, at this
motion to dismiss stage, the court must accept those allegations. When viewed in the light most
favorable to the party asserting the injury, those allegations state that at the time of the Tasering,
Mr. Stephens was no longer walking away; he had complied with the command to stop, and was
facing Officer Willis and attempting to surrender. To the extent that walking away could be
considered resisting arrest, Mr. Stephens had stopped that conduct.
Numerous Eleventh Circuit cases clearly establish that, even if the suspect had previously
resisted arrest, the court must look at his conduct at the time of the use of excessive force;
qualified immunity does not attach when a genuine issue of material fact exists about whether the
suspect was no longer resisting at the time of the use of excessive force. See, e.g., Hadley v.
Gutierriz, 526 F.3d 1324. 1330-31 (11th Cir. 2008) (“gratuitous use of force when a criminal
suspect is not resisting constitutes excessive force”); Smith v. Mattox, 127 F.3d 1416, 1418-20
(1997) (affirming denial of qualified immunity where unlawful force breaking the suspect’s arm
was “readily apparent even without clarifying caselaw”; although the suspect threatened officers
in a drug sting with a baseball bat and then fled, he was later apprehended, and had “docilely
submitted to arrest” and had lain down on the ground at the time of the excessive force).
Even given the facts alleged in the Amended Complaint, the Defendants argue that the
single use of the Taser was reasonably proportionate. As support for their position, they cite the
case of Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004) in which the Eleventh Circuit
found that the officer’s single “use of the [T]aser gun to effectuate the arrest of Draper was
reasonably proportionate to the difficult, tense and uncertain situation that [the officer] faced in
this traffic stop, and did not constitute excessive force.” In Draper, the plaintiff was not
complying with the officer’s commands: he was belligerent, he used foul language and spoke
loudly or yelled, paced continually, gestured animatedly, and, despite the officer’s numerous
requests, failed to obtain papers such as proof of insurance, the log book, and bill of lading that
the officer had repeatedly requested. Under those circumstances, the Eleventh Circuit reasoned
that “the single use of the [T]aser gun may well have prevented a physical struggle and serious
harm to either [the suspect] or [the officer].” Id.
The facts in Draper are not analogous to those alleged in the Amended Complaint here.
The alleged facts do not reflect that the officers or Mr. Stephens were in danger or that the Taser
deployment prevented a physical struggle. Defendants also cite Mann v. Taser Int’l, Inc., 588 F.
3d 1291, 1306 (11th Cir. 2009), which involved a suspect who refused to comply with the
deputies’ requests and actively resisted their efforts to arrest her—facts distinguishable from
those alleged here.
In short, the cases that Defendants cite do not involve analogous facts and do not support
a finding that the force used against Mr. Stephens was reasonable under the Fourth Amendment.
See also Hoyt v. Cooks, 672 F.3d 972, 980 (11th Cir. 2012) (finding no constitutional violation
where safety threats existed or non-compliance with officers’ demands). The court FINDS that
the allegations in Count III, if proven, reflect that Officer Willis used excessive force in violation
of Mr. Stephens’s rights under the Fourth Amendment.
Given Officer Willis’s assertion of qualified immunity, the court must next determine the
second prong of that immunity framework: whether the violation was clearly established at the
time of the May 30, 2015 incident. “For the law to be ‘clearly established,’ case law must
ordinarily have been earlier developed in such a concrete and factually defined context to make it
obvious to all reasonable government actors, in the defendant’s place, that what he is doing
violates federal law.” Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926 (11th Cir. 2000).
“If case law, in factual terms, has not staked out a bright line, qualified immunity almost always
protects the defendant.” Post v. City of Fort Lauderdale, 7 F.3d 1442, 1557 (11th Cir. 1993).
In what the Eleventh Circuit characterizes as a “narrow exception [ ]to the rule requiring
particularized case law to establish clearly the law in excessive force cases” (Priester, 208 F.3d
at 926), a plaintiff claiming excessive force may also meet the clearly established prong by
showing “that the official’s conduct lies so obviously at the very core of what the Fourth
Amendment prohibits that the unlawfulness of the conduct was readily apparent to the official,
notwithstanding the lack of caselaw.” Mattox, 127 F.3d at 1419. Put another way, “plaintiff
must show that the official’s conduct was so far beyond the hazy border between excessive and
acceptable force that the official had to know he was violating the Constitution without case law
on point.” Id.
The Defendants, who do not bear the burden on this issue, assert that clearly established
law supports the attachment of qualified immunity, not a finding of excessive force. They state
that “[t]he United States Supreme Court has clearly established the right of police officers to use
some degree of physical coercion or threats to effect arrests.” (Ds’ Br. Doc. 36, at 34). While
that general proposition is true, it does not clearly establish that the force here was appropriate.
Instead, the Fils case, which this court finds to be closely analogous, is a 2011 case, so it
existed well before the May 30, 2015 events at issue here. That case clearly establishes that use
of a Taser on a suspect who has not committed a serious crime, who is unarmed, who poses no
safety threat, and who is compliant represents use of excessive force and violates the Fourth
Amendment. 647 F.3d at 1288-89; see also Oliver v. Fiorino, 586 F.3d at 908 (addressing
disproportionate use of force in the context of Taser deployment, applying the Graham factors,
and not characterizing the plaintiff’s act of walking away from officers as an effort to flee within
the meaning of the third Graham factor).
This court FINDS that the violation of the Fourth Amendment was clearly established as
of May 30, 2015, and further FINDS that, based on the allegations of the Amended Complaint,
Officer Willis is not entitled to qualified immunity as to the claim of excessive force in Count III.
Accordingly, the court WILL DENY the motion to dismiss as to the claim in Count III that
Officer Willis used excessive force in violation of Mr. Stephens’s rights under the Fourth
Amendment. Of course, Officer Willis may revisit the issue of immunity by filing a motion for
summary judgment if discovery establishes that the facts are different than those alleged and that
no genuine issue of material fact exists that he is entitled to immunity.
B. State Law Claims
1. Count IV - Tort of Outrage against Officer Willis, Chief Reno, and Lieutenant
Mr. Stephens alleges that Officer Willis committed the tort of outrage under Alabama law
when he intentionally or recklessly deployed the Taser into his eye, causing the loss of his eyeball
and physical and emotional distress. He further alleges that Chief Reno and Lieutenant Rice
committed the tort of outrage in allowing, ratifying, and encouraging such blatant violations of
constitutional rights and in refusing to take any action to remedy the situation. According to Mr.
Stephens, Lieutenant Rice’s failure to investigate constitutional violations and his creation of an
environment of tolerance on the use of force in the City’s police department were conduct
establishing that tort.
In Alabama, to prevail on a claim for the tort of outrage, a plaintiff must prove that the
defendant’s conduct: “(1) was intentional and reckless; (2) was extreme and outrageous; and (3)
caused emotional distress so severe that no reasonable person could be expected to endure it.”
Thomas v. BSE Indus. Contractors, Inc., 624 So. 2d 1041, 1043 (Ala. 1993). The Supreme Court
of Alabama has explained that the tort of outrage is
an extremely limited cause of action. It is so limited that this Court has
recognized it in regard to only three kinds of conduct: (1) wrongful conduct in
the family-burial context. Whitt v. Hulsey, 519 So. 2d 901 (Ala. 1987); (2)
barbaric methods employed to coerce an insurance settlement, National Sec.
Fire & Cas. Co. v. Bowen, 447 So. 2d 133 (Ala. 1983); and (3) egregious
sexual harassment, Busby v. Truswal Sys. Corp., 551 So. 2d 322 (Ala. 1989).
Potts v. Hayes, 771 So. 2d 462, 465 (Ala. 2000).
In Little v. Robinson, the Alabama Supreme Court qualified Potts by stating as follow:
That is not to say, however, that the tort of outrage is viable in only the three
circumstances noted in Potts. Recently, this Court affirmed a judgment on a
tort-of-outrage claim asserted against a family physician who, when asked by a
teenage boy’s mother to counsel the boy concerning his stress over his
parents’ divorce, instead began exchanging addictive prescription drugs for
homosexual sex for a number of years, resulting in the boy’s drug addiction.
See O’Rear v. B.H., 69 So. 2d 106 (Ala. 2011). It is clear, however, that the
tort of outrage is viable only when the conduct is “‘so outrageous in character
and so extreme in degree as to go beyond all possible bounds of decency, and
to be regarded as atrocious and utterly intolerable in a civilized society.’”
Horne v. TGM Assocs., L.P., 56 So. 3d 615, 631 (Ala. 2010) (quoting Am. Rd.
Svc. Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1980)).
Little, 72 So. 3d 1168, 1172-73 (Ala. 2011).
Keeping in mind the guidance of the Supreme Court of Alabama and the confines of the
tort it created, this court FINDS that the conduct alleged against Officer Willis, Chief Reno and
Lieutenant Rice does not fall within the extremely limited confines of the Alabama tort of
outrage. The conduct alleged is not “so outrageous in character and so extreme in degree as to go
beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in
a civilized society.” Because the court finds that the conduct alleged does not constitute the tort
of outrage, the court need not determine whether immunity would attach to the Defendants if it
did. Thus, the court FINDS that the motion to dismiss is due to be GRANTED as to the tort of
outrage claim, which WILL BE DISMISSED WITH PREJUDICE.
2. Count V: Assault and Battery asserted against Officer Willis individually
Officer Willis does not address the assault and battery claim in his brief except in a
caption—“OFFICER WILLIS IS ENTITLED TO QUALIFIED IMMUNITY AS TO THE
EXCESSIVE FORCE AND ASSAULT AND BATTERY CLAIMS—and in a general prefatory
statement that “Officer Willis is entitled to qualified immunity. Therefore, Count III and V
should be dismissed.” (Ds.’ Br. Doc. 36, at 31). However, qualified immunity applies to federal
§ 1983 claims asserted against government officials in their individual capacities, not to state law
claims brought against government officials. See D’Aguanno v. Gallagher, 50 F.3d 877, 879 (11
th Cir. 1995) (“Because qualified immunity is a defense only to federal claims, we hold that the
district court erred in concluding that defendants were entitled to qualified immunity on the
claims for violation of state law.”) (emphasis added).
Defendant Willis makes no further mention of assault and battery, of the statutory tort
elements, of case law regarding assault and battery, and fails to apply the facts of this case or to
discuss any entitlement to immunity under Alabama state law. Accordingly, the court FINDS
that Officer Willis has not met his burden to establish that this claim is due to be dismissed; the
court WILL DENY the motion as to the assault and battery claim under Alabama law.
In sum, for the reasons stated above, the court WILL ORDER as follows:
1. Count I–Failure to Train/Supervise Claim brought pursuant to § 1983
Claim against the City: the court WILL GRANT the motion to dismiss as to that claim.
Claims against Chief Reno and Lieutenant Rice: the court WILL GRANT the motion to
dismiss as to both the official capacity and individual capacity claims.
2. Count II–Failure to Investigate/Discipline Claim brought pursuant to § 1983
Claim against the City: the court WILL DENY the motion as to that claim.
Claims against Chief Reno and Lieutenant Rice: the court WILL DENY the motion as to
3. Count III–Excessive Force Claim against Officer Willis brought pursuant to § 1983: the court
WILL DENY the motion to dismiss as to that claim.
4. Count IV–Tort of Outrage Claim under Alabama State Law against the Officer Willis, Chief
Reno and Lieutenant Rice: the court WILL GRANT the motion to dismiss as to that
5. Count V–Assault and Battery Claim under Alabama State Law against Officer Willis: the
court WILL DENY the motion to dismiss as to that claim.
The claims that remain at this point are Count II—§ 1983 claims for failure to
investigate/discipline against the City, and individual capacity claims against Chief Reno and
Lieutenant Rice; Count III—§ 1983 excessive force claim against Officer Willis in his individual
capacity; and Count V— Assault and Battery claim against Office Willis under Alabama state
Dated this 28th day of June, 2017.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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