Jones v. City of Albertville et al

Filing 24

MEMORANDUM OPINION AND ORDER that the Motion to Dismiss is DENIED and the parties are directed to resume the discovery process forthwith; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 9/12/2012. (AHI) Modified on 9/13/2012 (AHI).

FILED
2012 Sep-13 PM 02:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
)
)
)
)
)
)
Plaintiff,
)
)
vs.
)
NATHAN SHIP and MICHAEL )
)
MAHER,
)
Defendants.
SANDRA JONES, as personal
representative of, and on behalf of the
survivors of, CHRIS JONES,
deceased,

Civil Action No. CV-12-S-96-NW

MEMORANDUM OPINION AND ORDER
Plaintiff, Sandra Jones, is the widow of Chris Jones, deceased, who allegedly
was shot and killed by Albertville, Alabama Police Officers Nathan Ship (“Officer
Ship”) and Michael Maher (“Officer Maher”) (collectively, “the Officers”) during a
police pursuit that occurred on March 21, 2011.1 She commenced his suit in a
representative capacity, as personal representative of her decedent’s estate. Her
original complaint asserted constitutional claims against the Officers, their employer,

1

See doc. no. 1 (Complaint filed January 11, 2012) ¶ 3-7. While plaintiff spells Officer
Michael Maher’s last name as “Maher,” defendants spell his last name, variously, as “Maher,”
“Mahr,” or “Mayer.” Compare, e.g., doc. no. 1 (spelled as “Maher”); doc. no. 15 (Brief in Support
of Motion to Dismiss by Michael Maher and Nathan Ship), at 2 (spelled as “Maher”); id. at 1
(spelled as “Mahr”); id. at 6 (spelled as “Mayer”). Because that officer’s last name was spelled as
“Maher” in the first document filed in this case, and is, therefore, in the official caption of this case,
this court will call him “Officer Maher,” with apologies if this is incorrect.

the City of Albertville (“the City”), and their supervisor, Albertville Police Chief
Doug Pollard (“Chief Pollard”).2 All parties filed motions to dismiss plaintiff’s
claims,3 as well as motions to stay discovery and all other proceedings during the
pendency of their motions to dismiss.4 This court granted plaintiff’s consent motion
to dismiss her claims against the City and Chief Pollard without prejudice,5 leaving
two claims against Officers Ship and Maher: i.e., an excessive force claim under 42
U.S.C. § 1983;6 and a wrongful death claim under state law. See Ala. Code § 6-5-410
(1975).7 The following opinion addresses the Officers’ motion to dismiss based on
the doctrine of qualified immunity, which will be denied for the reasons explained
below.
I. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a
complaint for, among other reasons, “failure to state a claim upon which relief can be

2

See doc. no. 1 ¶ 15-33.

3

See doc. no. 7 (Motion to Dismiss by City of Albertville); doc. no. 9 (Motion to Dismiss
by Doug Pollard); doc. no. 14 (Motion to Dismiss by Michael Maher and Nathan Ship).
4

See doc. no. 11 (Motion to Stay Discovery and Temporarily Suspend Obligations Under
Fed.R.Civ.P.26 Pending Resolution of Motions to Dismiss by the City of Albertville and Doug
Pollard); doc. no. 16 (Joinder in Motion to Stay Discovery and Contemporaneously Suspend
Obligations Under F.R.C.P 26 Pending Resolution of Motions to Dismiss by Michael Maher and
Nathan Ship); doc. no. 23 (Order that Motion to Stay is Granted).
5

See doc. no. 21 (Order Dismissing Fewer than All Defendants).

6

See doc. no. 1 ¶ 25-28.

7

Id. ¶ 15-17.
2

granted.” Fed. R. Civ. P. 12(b)(6). This rule must be read together with Rule 8(a),
which requires that a pleading contain only a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While that
pleading standard does not require “detailed factual allegations,” Bell Atlantic Corp.
v. Twombly, 544 U.S. 544, 550 (2007), it does demand “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted).
To survive a motion to dismiss founded upon Federal Rule of
Civil Procedure 12(b)(6), for failure to state a claim upon which relief
can be granted], a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.”
Id., at 570. A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. Id., at 556. The
plausibility standard is not akin to a “probability requirement,” but it
asks for more than a sheer possibility that a defendant has acted
unlawfully. Ibid. Where a complaint pleads facts that are “merely
consistent with” a defendant’s liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id., at 557
(brackets omitted).
Iqbal, 556 U.S. at 678.
For many years, the Eleventh Circuit applied a heightened pleading standard
to claims asserted under § 1983 against individual police officers. See, e.g., GJR
Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359 (11th Cir. 1998)
(observing that “this circuit . . . has tightened the application of Rule 8 with respect
3

to § 1983 cases in an effort to weed out nonmeritorious claims”). Even so, the
Circuit’s later opinion in Randall v. Scott, 610 F.3d 701 (11th Cir. 2010), backed away
from that position, and held that utilization of such a pleading standard is no longer
warranted, in light of the plausibility requirement articulated in Iqbal.
[Even though] the Iqbal opinion concerns Rule 8(a)(2) pleading
standards in general, the Court specifically describes Rule 8(a)(2)
pleading standards for actions regarding an unconstitutional deprivation
of rights. The defendant federal officials raised the defense of qualified
immunity and moved to dismiss the suit under a 12(b)(6) motion. The
Supreme Court held, citing Twombly, that the legal conclusions in a
complaint must be supported by factual allegations, and that only a
complaint which states a plausible claim for relief shall survive a motion
to dismiss. The Court did not apply a heightened pleading standard.
While Swann [v. Southern Health Partners, Inc., 388 F.3d 834
(11th Cir. 2004)] , GJR, and Danley [v. Allen, 540 F.3d 1298 (11th Cir.
2008)] reaffirm application of a heightened pleading standard for § 1983
cases involving defendants able to assert qualified immunity, we agree
. . . that those cases were effectively overturned by the Iqbal court.
Pleadings for § 1983 cases involving defendants who are able to assert
qualified immunity as a defense shall now be held to comply with the
standards described in Iqbal. A district court considering a motion to
dismiss shall begin by identifying conclusory allegations that are not
entitled to an assumption of truth-legal conclusions must be supported
by factual allegations. The district court should assume, on a
case-by-case basis, that well pleaded factual allegations are true, and
then determine whether they plausibly give rise to an entitlement to
relief.
Randall, 610 F.3d 709-10 (bracketed alterations and emphasis supplied).

4

II. FACTS AS ALLEGED8
Plaintiff’s terse statement of facts reads as follows:
3. On March 21, 2011, Chris Jones was pursued in his truck by
Nathan Ship (“Ship”) and Michael Maher (“Maher”).
4. At all times relevant to this Complaint, Ship and Maher were
working as agents, specifically as on-duty police officers, for the City of
Albertville (“Albertville”).
5. Following the pursuit, the truck driven by Chris Jones was
stopped and prevented from [traveling] any further.
6. Ship and/or Maher fired more than 20 shots into Chris Jones’s
truck.
7. Several rounds struck Chris Jones, and he died as a result of
those gunshot wounds.9
III. DISCUSSION
A.

Excessive Force Under § 1983
8

As always is the case in the context of ruling upon a motion to dismiss, especially one
based upon a contention of qualified immunity, this court
must assume the facts set forth in the plaintiffs’ complaint are true. See Anza [v.
Ideal Steel Supply Corp., 547 U.S. 451, 453,] 126 S. Ct.[1991,] 1994 (stating that on
a motion to dismiss, the court must “accept as true the factual allegations in the
amended complaint”); Marsh v. Butler County, 268 F.3d 1014, 1023 (11th Cir. 2001)
(en banc) (setting forth the facts in the case by “[a]ccepting all well-pleaded factual
allegations (with reasonable inferences drawn favorably to Plaintiffs) in the
complaint as true”). Because we must accept the allegations of plaintiffs’ complaint
as true, what we set out in this opinion as “the facts” for Rule 12(b)(6) purposes may
not be the actual facts.
Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1281 n.1 (11th Cir. 2006) (alterations
supplied).
9

Doc. no. 1 ¶ 3-7 (alteration supplied).
5

In response to plaintiff’s claim for excessive force under § 1983,10 the Officers
urge this court to grant the motion to dismiss on two separate grounds: first, that
plaintiff has failed to plead sufficient facts to support an excessive force claim; and
second, that the Officers are entitled to qualified immunity from such a claim.11 At
this point in the proceedings, this court is unable to accept either argument.
1.

Was the Officers’ use of force objectively unreasonable?

“The Fourth Amendment’s freedom from unreasonable searches and seizures
encompasses the plain right to be free from the use of excessive force in the course of
an arrest.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002). Analysis of an
excessive force claim requires a court to examine “whether the officer’s conduct [was]
objectively reasonable in light of the facts confronting the officer.” Vinyard v. Wilson,
311 F.3d 1340, 1347 (11th Cir. 2002) (alteration supplied). However, the Supreme
Court has made plain that the “right to make an arrest or investigatory stop necessarily
carries with it the right to use some degree of physical coercion or threat thereof to
effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989). The “reasonableness
standard” requires the court to balance “the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing governmental
interests at stake.” Id.
10

Id. ¶ 25-28.

11

Doc. no. 15, at 3.
6

“In determining whether the use of force was reasonable, factors to consider
include: (1) ‘the severity of the crime at issue’; (2) ‘whether the suspect poses an
immediate threat to the safety of the officers or others’; and (3) ‘whether he is actively
resisting arrest or attempting to evade arrest by flight.’” Lloyd v. Van Tassell, 318
Fed. Appx. 755, 757 (11th Cir. 2009) (quoting Graham, 490 U.S. at 396). Also
relevant to this determination are “(1) the need for the application of force, (2) the
relationship between the need and amount of force used, and (3) the extent of the
injury inflicted.” Lee, 284 F.3d at 1198 (citing Leslie v. Ingram, 786 F.2d 1533, 1536
(11th Cir. 1986)).
“The reasonableness of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Long v. Slaton, 508 F.3d 576, 580 (11th Cir. 2007) (internal citation and
quotation marks omitted). “[T]he question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397.
“‘[N]ot every push or shove, even if it may later seem unnecessary in the peace of a
judge’s chambers,’ violates the Fourth Amendment.” Id. at 396 (quoting Johnson v.
Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

The objective reasonableness

determination “must embody allowance for the fact that police officers are often
7

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.
“Qualified immunity offers complete protection for government officials sued
in their individual capacities if their conduct ‘does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Vinyard, 311 F.3d at 1346 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The threshold question in determining whether an officer is entitled to qualified
immunity is whether he was “acting within the scope of his discretionary authority
when the allegedly wrongful acts occurred.” Lee, 284 F.3d at 1194 (citation and
internal quotation marks omitted). Once this is demonstrated, as it undisputably is in
this action, the court must ask: “[t]aken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer’s conduct violated a
constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by
Pearson v. Callahan, 555 U.S. 223 (2009). Even if this inquiry is answered in the
affirmative, law enforcement officers will nonetheless be entitled to qualified
immunity “unless the law preexisting the defendant official’s supposedly wrongful act
was already established to such a high degree that every objectively reasonable
official standing in the defendant’s place would be on notice that what the defendant
8

officials were doing would be clearly unlawful given the circumstances.” Pace v.
Capobianco, 283 F.3d 1275, 1282 (11th Cir. 2002).
Under the Vinyard “reasonableness standard,” this court is unable to hold that
plaintiff has failed to state an excessive force claim as a matter of law at this point in
the proceedings. Plaintiff alleges that Chris Jones “was stopped and prevented from
[traveling] any further” when one or both of the Officers fired over twenty gunshots
into his truck.12 Because this court is required to consider only the allegations in the
complaint, it must assume that plaintiff was restrained and subdued, not actively
threatening the Officers or resisting arrest. If that was the case, then firing over
twenty shots into his truck far exceeded the force necessary to effect a lawful arrest.
Thus, plaintiff has succeeded in pleading that the Officers’ use of force was not
objectively reasonable in violation of his Fourth Amendment rights.
2.

Did the Officers’ use of force violate clearly established law?

Having held the Officers’ use of force objectively unreasonable, this court must
still ask whether the law was sufficiently clearly established to withdraw the shield of
qualified immunity. A plaintiff can show that an officer’s use of force violated clearly
established law in two ways: (1) “a controlling and materially similar case [that]
declares the official’s conduct unconstitutional;” or (2) “the official’s conduct lies so

12

Doc. no. 1 ¶ 5-6 (alteration supplied).
9

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 case law.” Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir.
2000) (internal citation and quotation marks omitted). As plaintiff does not seem to
satisfy the first prong of the Priester test because the cases she cites are not
controlling,13 this court could deny the Officers qualified immunity only if their
actions went “so far beyond the hazy border between excessive and acceptable force
that [they] had to know [that they were] violating the Constitution even without
caselaw on point.” Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997) (alterations
supplied). “This test entails determining whether application of the excessive force
standard would inevitably lead every reasonable officer in the Defendants’ position
to conclude the force was unlawful.” Priester, 208 F.3d at 926-27 (citation, brackets,
and internal quotation marks omitted) (alteration in original). Based purely upon the
facts plaintiff alleges, the court must hold that the Officers are not entitled to qualified
immunity at the motion to dismiss stage of this action.
This decision is bolstered by several cases in which the Eleventh Circuit has
13

Under the second prong of the Priester test, this court may recognize controlling authority
from the United States Supreme Court, the Eleventh Circuit, and the Alabama Supreme Court. See
Marsh v. Butler County, 268 F.3d 1014, 1032 n.10 (11th Cir. 2001). Here, plaintiff relies largely
on authority from outside this Circuit: e.g., Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005);
Brockington v. Boykins, 637 F.3d 503 (4th Cir. 2011); and Parks v. City of Chicago, 2011 U.S. Dist.
LEXIS 103832 (N.D. Ill. Sept. 14, 2011).
10

determined that the application of force to an arrestee after he has been subdued is
significantly more likely to violate the Fourth Amendment standards. In Smith v.
Mattox, 127 F.3d 1416 (11th Cir. 1997), a plaintiff who had previously fled and
threatened officers with a baseball bat ultimately voluntarily lay upon the ground and
surrendered. Id. at 1418. Taking the facts in the light most favorable of the plaintiff,
the court found that the plaintiff was “offering no resistance at all” and, thus, that a
use of force that broke the plaintiff’s arm was “obviously unnecessary to restrain even
a previously fractious arrestee.” Id. at 1420. Similarly, in Lee v. Ferraro, 284 F.3d
1188, 1197 (11th Cir. 2002), an officer stopped a woman over for improperly honking
her horn, pulled her out of her vehicle and handcuffed her. Id. at 1198. Although she
then posed no risk to the officer or risk of flight, the officer slammed her head against
the trunk of her car. Id. This constituted excessive force, and the officer was not
entitled to qualified immunity because the law was sufficiently clearly established that
all reasonable officers would have known the force was unconstitutionally excessive.
Id. at 1198-99. In determining that qualified immunity was not available, the Eleventh
Circuit stated “the clear and obvious principle that once an arrest[ee] has been fully
secured and any potential danger or risk of flight vitiated, a police officer cannot
employ the severe and unnecessary force allegedly used here.” Id. at 1200 (alteration
supplied).
11

While the facts that come to light in discovery may ultimately tell a different
tale, this court holds that plaintiff has stated a claim for using excessive force in
violation of clearly established law. Again, plaintiff alleges that Chris Jones “was
stopped and prevented from [traveling] any further” when one or both of the Officers
fired over twenty gunshots into his truck.14 Because this court can infer that a suspect
who was stopped and immobilized was not actively threatening the Officers or
resisting arrest, the act of firing over twenty shots into his truck was so excessive that
the Officers were sufficiently on notice of its unconstitutionality to deprive them of
qualified immunity. Accordingly, this court must deny their motion to dismiss.
B.

Wrongful Death Under Alabama Law
In response to plaintiff’s state-law claim for wrongful death,15 the Officers raise

the defense of “peace officer/state agent immunity.”16 To determine whether a
particular plaintiff has a viable assault claim, the district court must examine the
doctrine of “discretionary function immunity,” defined by an Alabama statute reading
as follows:
Every peace officer, except constables, who is employed or
appointed pursuant to the Constitution or statutes of this state, whether
appointed or employed as such peace officer by the state or a county or
municipality thereof, . . . and whose duties prescribed by law, or by the
14

Doc. no. 1 ¶ 5-6 (alteration supplied).

15

See id. ¶ 15-17.

16

Doc. no. 15, at 14.
12

lawful terms of their employment or appointment, include the
enforcement of, or the investigation and reporting of violations of, the
criminal laws of this state, and who is empowered by the laws of this state
to execute warrants, to arrest and to take into custody persons who
violate, or who are lawfully charged by warrant, indictment, or other
lawful process, with violations of, the criminal laws of this state, shall at
all times be deemed to be officers of this state, and as such shall have
immunity from tort liability arising out of his or her conduct in
performance of any discretionary function within the line and scope of his
or her law enforcement duties.
Alabama Code § 6-5-338(a) (1975) (emphasis supplied); see also Sheth v. Webster,
145 F.3d 1231, 1236-38 (11th Cir. 1998) (holding that Alabama’s discretionary
function immunity, like the qualified immunity applicable to claims based upon 42
U.S.C. § 1983, provides law enforcement officers immunity from the burdens and
expenses of vexatious suits, and not merely a defense to liability at trial).
The first step in a discretionary function analysis is to determine whether the
police officer whose conduct is challenged was engaged in the performance of a
discretionary function at the time the alleged tort occurred. See Scarbrough v. Myles,
245 F.3d 1299, 1303 n.9 (11th Cir. 2001); Sheth, 145 F.3d at 1238. The term
“discretionary acts” has been defined as “those acts to which there is no hard and fast
rule as to the course of conduct that one must or must not take and those acts requiring
exercise in judgment and choice and involving what is just and proper under the
circumstances.” Ex parte City of Montgomery, 758 So. 2d 565, 569 (Ala. 1999)
(quoting Wright v. Wynn, 682 So.2d 1, 2 (Ala. 1996)); see also L.S.B. v. Howard, 659
13

So. 2d 43, 44 (Ala. 1995). If the officer was performing a discretionary act, the
burden shifts to the plaintiff to demonstrate that the officer acted willfully, with malice
or in bad faith. See Sheth, 145 F.3d at 1239. “Acts of such nature are not considered
by Alabama law to be discretionary.” Wright v. Wynn, 682 So. 2d at 2; see also
Couch v. City of Sheffield, 708 So.2d 144, 153 (Ala. 1998) (holding that discretionary
function immunity insulates law enforcement officers from tort liability, “unless the
officer’s conduct is so egregious as to amount to willful or malicious conduct or
conduct engaged in bad faith”).
Ultimately, “the core issue” under both Alabama and federal law is “whether
a defendant violated clearly established law.” Sheth, 145 F.3d at 1239 (citations
omitted); see also id. at 1240 (observing that “[t]he Alabama Supreme Court has
equated qualified immunity with discretionary function immunity.”) (footnote
omitted).
Generally, a motion to dismiss on grounds of state-agent immunity is
premature.
“‘[A] motion to dismiss is typically not the appropriate vehicle by
which to assert . . . State-agent immunity and . . . normally the
determination as to the existence of such a defense should be reserved
until the summary-judgment stage, following appropriate discovery.’”
Ex parte Alabama Dep’t of Youth Servs., 880 So. 2d 393, 398 (Ala.
2003) (emphasis added) (quoting Ex parte Alabama Dep’t of Mental
Health & Mental Retardation, 837 So. 2d 808, 813-14 (Ala. 2002)).
This is so because the question whether a State agent was acting
14

“willfully, maliciously, fraudulently, in bad faith,” or was not
“exercising . . . judgment in the manner set forth in the examples in
Cranman,” Howard [v. City of Atmore], 887 So. 2d [201,] 205 [(Ala.
2003)], is generally fact specific. See Ex parte City of Tuskegee, 932 So.
2d 895, 908 (Ala. 2005); Ex parte Alabama Dep’t of Mental Health &
Mental Retardation, supra. Also, in reviewing the grant or denial of a
motion to dismiss, the question “‘is whether, when the allegations of the
complaint are viewed most strongly in the pleader’s favor, it appears that
the pleader could prove any set of circumstances that would entitle [him]
to relief.’” Ex parte Alabama Dep’t of Youth Servs., 880 So. 2d at 398
(quoting Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)).
Ex parte Dangerfield, 49 So. 3d 675, 682-83 (Ala. 2010) (emphasis in original,
alterations supplied).
In Dangerfield, the plaintiffs challenged the officials’ decision to execute a
search warrant upon their dealership, id. at 677, which satisfied the Cranman standard
for conferring immunity on officials exercising judgment while engaged in
enforcement. See Cranman, 792 So. 2d at 405. Nevertheless, the court upheld an
order denying the officials’ motion to dismiss those claims on official immunity
grounds because plaintiffs alleged that the officials acted willfully, wantonly,
maliciously, and in bad faith, and because “there has yet been no discovery and,
therefore, no development of facts central to the State-agent-immunity defense.”
Dangerfield, 49 So. 3d at 683.
Likewise, in Hardy v. Town of Hayneville, 50 F. Supp. 2d 1176 (M.D. Ala.
1999) , the plaintiff challenged, e.g., an officer’s “decisions to arrest the Plaintiff, use
15

force against him, transport him to the county jail, and bring charges against him” for
preaching in public. Id. at 1195. In holding that the officer had borne his burden of
proving that plaintiff’s claims arose from a function that entitled him to immunity, the
Hardy court reasoned that “[a]ll of these acts typically are within the line and scope
of the officers’ law enforcement duties and require the exercise of judgment under the
given circumstances.” Id. However, the court denied the officer’s motion to dismiss
those claims because the complaint stated that
“all of the acts, conduct, and behavior of each of the Defendants, were
performed knowingly, intentionally, and maliciously. . . .” Compl. P 62.
Accordingly, because [the plaintiff] asserts that the Defendants
possessed the requisite state of mind to defeat application of
discretionary function immunity, [the plaintiff] may pursue all of his
state law claims against [the officer].
Defendants are free to renew their contention that discretionary
function immunity bars the Plaintiff’s state tort claims in a motion for
summary judgment. At the summary judgment stage, Plaintiff would
have to produce evidence showing that the Defendants acted willfully,
maliciously, or in bad faith.
Id. at 1195.
Unlike the plaintiffs in Dangerfield and Hardy, plaintiff here does not explicitly
allege that the Officers acted willfully, wantonly, maliciously, or in bad faith.
Nevertheless, this court must accept as true plaintiff’s allegation that Chris Jones “was
stopped and prevented from [traveling] any further” when one or both of the Officers
16

fired over twenty gunshots into his truck.17 If that was the case, then the Officers’
behavior were so excessive that this court can infer willfulness, wantonness, malice,
and bad faith. As the parties have not engaged in discovery, plaintiff has yet to
receive the chance to prove her claims. Thus, this court must deny the Officers’
motion to dismiss and leave them free to renew their immunity arguments at summary
judgment.
IV. CONCLUSION AND ORDER
For the reasons explained above, the motion to dismiss is DENIED. As a result,
this court hereby dissolves the stay previously entered in this action, and directs the
parties to resume the discovery process forthwith, consistent with the Federal Rules
of Civil Procedure.
DONE and ORDERED this 12th day of September, 2012.

______________________________
United States District Judge

17

Doc. no. 1 ¶ 5-6 (alteration supplied).
17