Stewart v. McBride et al

Filing 25

ORDER denying 9 Motion to Dismiss, dismissing with prejudice counts 3-6, and lifting stay on discovery. Parties shall confer as required by Local Rule 26.1 by 7/4/2017 and, by 7/11/2017, parties shall submit a joint Rule 26 (f) Report. (See Order of 6/15/2016). Signed by Chief Judge J. Randal Hall on 06/27/2017. (pts)

IN THE

UNITED

FOR THE

STATES

DISTRICT

SOUTHERN DISTRICT

COURT

OF GEORGIA

AUGUSTA DIVISION

DONTE STEWART,

Plaintiff,

*
*

*

WILLIAM MCBRIDE

and WESLEY

CV

116-021

*

MARTIN,
Defendants

ORDER

The

Fourth

"unreasonable

This

Amendment

searches

and

protection prohibits

protects

seizures."

a police

individuals

U.S.

officer

Const,

from

amend.

IV.

from using deadly

force to stop a fleeing non-violent suspect unless the suspect
is a serious threat to the officer or the public.

v. Cox, 343 F.3d 1323, 1333 (11th Cir. 2003).

facts alleged in Plaintiff's complaint,

See Vaughan

According to the

Plaintiff attempted to

flee his apartment after someone complained about a party he was

throwing.

Defendant Wesley Martin saw him leaving and opened

fire on his car.

Plaintiff has now sued Officer Martin

using excessive force.

for

failing

to

for

He has also sued Chief William McBride

adequately

supervise

Officer

Martin.

Chief

McBride moves to dismiss the claim against him, arguing that he

is

entitled

to

qualified

alleged facts that,
violated

clearly

McBride's motion

Because

when taken as true,
established

(doc.

the

law,

Plaintiff

has

show that Chief McBride

the

Court

DENIES

Chief

9).

I.

Accepting

immunity.

Background

facts

alleged

in

Plaintiff's

complaint

as

true and viewing the allegations in the light most favorable to
Plaintiff,

as

the

Court

Martinez,

480

F.3d

this

are

as

case

Plaintiff,
his

must,

1043,

see Am.

1057

follows.

(11th

On

the

United Life

Cir.

night

2007),
of

Ins.

v.

facts

the

Co.

of

February 20,

2014,

a student at Augusta University,1 hosted a party at

on-campus

apartment.

(See

Doc.

1,

Compl.

11

14,

17.)

Someone — presumably a neighbor - called in a noise complaint to

the complex's Resident Advisor.

policy,

Resident

Advisors

were

(Id. 1 17.)

required

Under university

to

assistance when they investigated noise complaints.

seek

police

(Id. 1 16.)

Thus, after receiving the call about Plaintiff's apartment, the
Resident Advisor contacted campus police,

including Officer Martin,

and several officers,

(Id.

11 17-

Plaintiff left the apartment,

got in

responded to the call.

18.)

During the inquiry,
his

car,

and attempted

Officer Martin,
1

At the

University.

to leave

the

complex.

(Id.

SI

19.)

who had remained in the parking lot, overheard
time,

Augusta

University

was

known

as

Georgia

Regents

on a radio that someone was attempting to leave the complex and
parked

his

As

tried

he

car

near

to

the

leave

Martin and stopped his

saw

Plaintiff,

he

parking

the

parking

car.

drew

lot's

his

Officer

to

drive

Martin

continued

car ten times.

Officer

force.

In

(Id.

2010,

with

Gibbons

attempted

has

to

a

Officer

a paper

"became

from

and,

fire

his

saw

113-14.)
Officer

When Officer Martin

without

(IcL_ \l 19.)

Officer

M

Plaintiff then

Martin,
gun,

provocation,

and

as

striking

he

did,

Plaintiff's

SI 121.)

Martin

driving

Martin

away

(Id.

Plaintiff

115.)

weapon

"shot [Plaintiff] in the face."
attempted

lot,
1

(Id.

exit.

to

history

Martin

tag

using

stopped

on his car.

explain

outraged"

of

that

Frederick

tag

and arrested Mr.

him so tightly that his wrists bled.

1

(Id.

his

disproportionate

49.)

was

for

When Mr.

valid,

Gibbons,

(Id. )

Gibbons

Officer

handcuffing

In 2012,

Officer

Martin stopped Mr. Gibbons a second time for not having a valid

tag.
and

(Id. 1 65.)
this

time

Officer Martin once again "became outraged,"
he

tased

Mr.

Gibbons

five

times,

justification, while Mr. Gibbons was iiji his car.

without

(Id. 66-67.)

In fact, Officer Martin later admitted that he tased Mr. Gibbons
because

(Id.

Mr.

1 69.)

Gibbons

did

not

Then, in 2013,

roll

his

window

down

far

enough.

Officer Martin stopped Keith James

2 Mr. Gibbons sued Officer Martin and ChfLef McBride in this Court over
this incident.

See Gibbons v. McBride, 124 F. Supp. 3d 1342 (S.D. Ga. 2015).

for

speeding.

without

1

(Id.

reason,

77.)

Officer

shoot

Mr.

James.

James

attempted

Martin
11

(Id.

to

As

drive

Public
events.

appointed

his

Mr.

gun

and

threatened

for

his

as

he

did,

Chief of

86.)

The

life,

Officer

University,
an

Police

knew

to
Mr.

Martin

investigator

and Director of

about
to

each

these

into

look

of

both

and he received a use-of-force

report about Officer Martin's shooting at Mr.
71,

car,

Fearing

and

incidents involving Mr. Gibbons,

51,

James's

(IcL 15 78-81.)

William McBride,

He

drew

away,

Safety at Augusta

approached

77-78.)

began shooting at his car.3
Defendant

he

investigator

both

James.

times

(Id.

determined

SIS!
that

Officer Martin was justified in his use of force on Mr. Gibbons,

and

the

report

concerning Mr.

Martin acted appropriately.

James

concluded

(IdL 11 53, 72, 86.)

adopted each of these findings,

filed

this

Officer

Chief McBride

and Plaintiff alleges that he

did so to avoid punishing Officer Martin.
Plaintiff

that

lawsuit

in

(See id. SISI 91-93.)
February

2014

asserting

various claims under 42 U.S.C. § 1983 against Officer Martin and

Chief

McBride

Since then,
claims

fail

in

their

individual

and

official

capacities.

Plaintiff has stipulated that his official-capacity
and

excessive-force

has

dismissed

claim

against

all

but

Officer

two

counts:

Martin;

and

(1)

(2)

an

a

3 Plaintiff also alleges that Officer Martin used excessive force on at
least two other individuals and that Chief McBride knew about these events.
(See Compl. II 54-64.)

supervisory-liability

claim

against

Chief

McBride.

Chief

McBride now moves to dismiss the claim against him.4
II.

Legal Standard

In considering a motion to dismiss under Rule 12(b)(6),
Court tests the legal sufficiency of the complaint.
Rhodes,

416 U.S.

232,

236

(1974).

the

Scheuer v.

The Court must accept as true

all facts alleged in the complaint and construe all reasonable
inferences

in

Hoffman-Pugh
The

Court,

the

v.

light most

Ramsey,

however,

312

79

F.3d

need not

only well-pleaded facts.

favorable

1222,

accept

to

the

1225

plaintiff.

(11th Cir.

legal conclusions

See

2002).

as true,

Ashcroft v. ijqbal, 556 U.S. 662, 678-

(2009).

A complaint

also must "contain sufficient

factual matter,

accepted as true, to 'state a claim to relief that is plausible
on its face.'"

550 U.S.

544,

"factual

Id. at 678

570

content

inference

that

alleged."

Id.

(2007)).

that
the

(citing Bell Atl.

Corp.

Twombly,

A plaintiff is required to plead

allows

the

defendant

is

court

to

liable

draw
for

the
the

reasonable
misconduct

"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."

4
Federal

v.

Id.

Plaintiff voluntarily dismissed counts three through six under
Rule of Civil Procedure 41 (a) (1) (A) (i) .
For the sake of

completeness, the Court DISMISSES these claims Without prejudice.

Ill.

Under

official

right.

42

U.S.C.

liable

Discussion

§ 1983,

a

plaintiff

may

hold

a

government

for causing the deprivation of a constitutional

Plaintiff seeks to hold Chief McBride liable for Officer

Martin's

actions

McBride

moves

under
to

a

supervisory-liability

dismiss

that

claim,

theory.

asserting

Chief

qualified

immunity.

"Qualified

government

officials

their conduct

2002)

offers

sued

in

complete

their

protection

individual

for

capacities

if

'does not violate clearly established statutory or

constitutional
known/"

immunity

rights

Vinyard

v.

of which
Wilson,

(quoting Harlow v.

a reasonable
311

Fitzgerald,

F.3d

1340,

457 U.S.

For qualified immunity to be available,

person would have
1346

800,

(11th

818

Cir.

(1982)).

a government official

must show that he was acting within his discretionary authority

at the time of the allegedly wrongful act.

done that,

"the burden shifts

Id.

Once he has

to the1 plaintiff to show that

qualified immunity is not appropriate."

Id.

(citation omitted)

to

decide

(internal quotation marks omitted).

Courts

use

a

two-part

analysis

whether

government official is entitled to qualified immunity.

a

First, a

court must decide whether the plaintiff has alleged a violation

of a constitutional right.

Saucier v. Katz,

533 U.S.

194, 201

(2001) .

If

he

has,

then

the

court

must

decide

constitutional right was "clearly established."

Here,
his

whether

that

Id.

it is undisputed that Chief McBride was acting within

discretionary

authority at

the

time

of

the

alleged events.

The Court is therefore concerned only with whether Chief McBride

violated a clearly established constitutional right.
A. Whether Chief McBride Violated a Constitutional Right
Plaintiff

§ 1983

based

established
liable

contends

on

in

under

a

Circuit

1983

on

liability."

Cottone v.

Rather,

(citation

the

for

subordinates

2003)

Chief

McBride

supervisory-liability

this
§

that

that

the

basis

of

omitted)

"It

acts

superior

326 F.3d 1352,

or

1360

quotation

marks

under

is

officials

unconstitutional

(internal

liable

theory.

supervisory

respondeat

Jenne,

is

well

are
of

not

their

vicarious

(11th Cir.
omitted).

supervisors may face liability1 for their subordinates'

acts "when the supervisor personally participates in the alleged
unconstitutional

conduct

between the actions

or

when

there

is

a

causal

of a supervising official

constitutional deprivation."

Id.

connection

and the alleged

A plaintiff can establish the

necessary causal connection by, among other things, showing that
a

supervisor's

indifference

to

custom

or

constitutional

policy
rights.

results
Id.

in

deliberate

A plaintiff will

prevail on a supervisory-liability claim when he shows that a

supervisor

was

aware

of

a subordinate's

past

constitutional

deprivations and thus of the need for more supervision.
at

1361-62

(holding

that

supervisory defendants

did

Cf.

not

id.

commit

constitutional violations but noting that the plaintiffs did not

allege

that

the

subordinates']

subordinates]

defendants

failure

to

"had

any

monitor

had any past history,

knowledge

inmates

2013

WL

2155465,

(denying motion

to

dismiss

at

where

*6-7

(N.D.

Ga.

a supervisor

subordinate's "problematic history and yet

to protect the public against him");

Fla.

Sept.

19,

2005)

of

No. 1:12-CV-

May

was

17,

aware

2013)

of

a

failed to take steps

Wilson ex rel.

Wilson v. Miami-Dade Cty., No. 04-23250-CIV,

*4 (S.D.

[the

or ejven a prior incident,

failing to monitor inmates"); Murdock v.. Cobb Cty.,
01743-RWS,

[the

that

or

of

Estate of

2005 WL 3597737,

at

(denying motion to dismiss where

the county was aware of "other incidents of similar conduct,"

which supported "a theory that there was a failure to supervise
or train").

Here, Plaintiff has sufficiently alleged that Chief McBride
committed

a

constitutional

violation.

He

has

alleged

that

although Chief McBride was aware of Officer Martin's record of

using excessive force, Chief McBride took no corrective action.
Indeed,

according to Plaintiff,

Martin's prior conduct.

Chief McBride ratified Officer

Thus, at this stage of the litigation,

the Court is satisfied that Plaintiff hks established that Chief
McBride failed to adequately supervise Officer Martin and thus

"failed

to

take

steps

to

Murdock,

2013 WL 2155465,

protect

the

public

against

him."

at *7.

B. Whether the Law was Clearly Established
The inquiry into whether a constitutional right was clearly

established

specific

typically

context

proposition."

of

inquiry

established

is

Id.

his

conduct

at 202.

similar

Cir.

in

whether

was

be

the

Saucier,

dispositive

that

"must

undertaken

case,

533

as

at

in

broad

201.

U.S.

it would be

light

a

not

determining

unlawful

in

whether
clear

the

"The

a

to

a

right

of

general

relevant,

is

clearly

reasonable

situation

he

the

officer

confronted."

A plaintiff must often point to case law involving

facts.

2009) .

See Oliver v.

But

factual

Fiorino,

586

similarity with

F.3d

a

898,

prior

907

case

(11th

is

not

necessary as long as the unlawfulness pf the act is "apparent
from pre-existing law."
(11th Cir.
rule

if

it

2011) .
is

Coffin v.

Indeed,

"obvious

Brandau,

a plaintiff may

that

the

general

specific situation in question."
557,

563

(11th Cir.

The

law

And

as

1013

rely on a general

rule

Youm&ns v.

applies

Gagnon,

to

the

626 F.3d

2010).

concerning

supervisory

clear at the time of the shooting.
1360.

642 F.3d 999,

Chief

McBride

concedes,

liability

was

See Cottone,
clearly

undeniably
326 F.3d at

established

law

prohibited Officer Martin from shooting Plaintiff as he tried to
flee an investigation into a noise complaint.
9

See Tennessee v.

Garner,

471

1276,

1281-82

violated

a

excessive

cause

U.S.

1,

11-12

(11th

Cir.

plaintiff's
force

that

when

the

he

harm

or

escape);

Vaughan

("Under Garner,

that

v.

the

Kirkwood,

a

shooting

F.3d

that

right

to

plaintiff

committed

343

v.

(concluding

Amendment

shot

the

Cox,

Morton

2013)

Fourth

plaintiff

physical

(1985);

crime

was

1323,

707

an

be

officer

free

without

1332

to

(11th

from

probable

involving

necessary

F.3d

serious
prevent

Cir.

2003)

a police officer can use deadly force to prevent

the escape of a fleeing non-violent felony suspect only when the

suspect

poses

an

immediate

threat

of

serious

harm

to

police

officers or others.").

The

only

established

remaining

law

question

required

Chief

therefore
McBride

to

is whether

clearly

supervise

Officer

Martin in a way that would prevent further harm to the public.
The Court is satisfied that it did because "the need for more or

different [supervision was] obvious."
30

F.3d

1390,

1397-98

(11th

Cir.

severity of and Chief McBride's

alleged prior misconduct,

3d 1342,

1372

(S.D.

Ga.

Considering

the

it was obvious that corrective action

legal rule,

alleged in the complaint.

1994).

knowledge of Officer Martin's

was necessary to protect the public.

somewhat general

Belcher v. City of Foley,

And although this is a

it clearly applies to the facts

See Gibbons v. McBride,

2015).

10

124 F. Supp.

Because
McBride

Plaintiff

violated

clearly

has

alleged

established

entitled to qualified immunity at
The

Court

thus DENIES

In sum,
(doc.

six.

9)

and

law,

this

Chief McBride's

IV.

facts

showing
Chief

to

Chief

McBride

stage of the

motion

that

is

not

litigation.

dismiss.

Conclusion

the Court DENIES Chief McBride's motion to dismiss
DISMISSES

WITHOUT

PREJUDICE

counts

three

The Court also LIFTS the stay on discovery (doc.

through

15).

ORDER ENTERED at Augusta, Georgia this (o^7^day °f June,
2017.

J. R^NltAr «ALL, /HTOF JUDGE

UNITED/STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

11