Brister v. Ford et al
Filing
9
ORDER granting 5 Motion to Dismiss as to Ben Ford, Individually. This matter is dismissed with prejudice as to Ben Ford in his individual capacity. A separate Judgment shall follow. Signed by District Judge Keith Starrett on June 13, 2012 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
CHRISTIAN LEE BRISTER
VERSUS
PLAINTIFF
CIVIL ACTION NO. 2:12cv71KS-MTP
BEN FORD, INDIVIDUALLY AND AS SHERIFF
OF COVINGTON COUNTY, MISSISSIPPI,
BRIAN PATTERSON, INDIVIDUALLY AND
JOE BULLOCK, INDIVIDUALLY
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the court on a Motion to Dismiss [#5] filed on behalf of
defendant Ben Ford, in his individual capacity. The court, having reviewed the motion,
the authorities cited, the pleadings and exhibits on file, being advised that the plaintiff
has filed no response and being otherwise fully advised in the premises finds that the
motion is well taken and should be granted. The court finds specifically as follows:
According to Plaintiff Brister, on March 24, 2011, he was parked at his
grandmother’s house across from the emergency room of the Covington County
Hospital where he intended to go “for medical treatment.” Brister contends that “out of
nowhere, Covington Deputy Joe Bullock appeared with his pistol drawn and pointed at
the Plaintiff shouting for him to freeze.” Brister then alleges that he turned and took
several steps towards Bullock and Bullock grabbed him by one arm placing the pistol
against his head and throwing him into the side of a Blazer. Subsequently, Bullock
allegedly took Brister over to a car where Deputy Brian Patterson was standing and
proceeded to search him. Finding nothing, Brister contends that Patterson told Bullock
to “get in the truck and they fled the scene.”
On March 23, 2012, Brister filed this suit in the Circuit Court of Covington County,
Mississippi, against, amongst others, Ben Ford, who was formerly Sheriff of Covington
County, Mississippi . Brister’s Complaint contends that Covington County deputies Joe
Bullock and Brian Patterson unlawfully stopped and arrested him without probable
cause and subjected him to excessive force during the allegedly illegal stop and search.
Brister’s federal claims are brought under 42 U.S.C. § 1983, thus, the case was timely
removed to this court.
Ford, in his individual capacity, has moved the Court to dismiss this matter under
Rule 12(b)(6) for failure of the Plaintiff to state a claim upon which relief can be granted.
In ruling on a 12(b)(6) motion, the Court may not go outside the pleadings, specifically
the complaint in this case. "The Rule 12(b)(6) motion . . . only tests whether the claim
has been adequately stated in the complaint." 5A C. WRIGHT & A. MILLER, FEDERAL
PRACTICE AND PROCEDURE: Civil 2d § 1356 at 298 (1990).
As the Fifth Circuit has stated, "We may not go outside the pleadings. We accept
all well-pleaded facts as true and view them in the light most favorable to the Plaintiff.
We cannot uphold the dismissal 'unless it appears beyond doubt that the Plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.'"1 Colle v.
Brazos County, Texas, 981 F.2d 237, 243 (5th Cir. 1993)(internal footnotes and citations
omitted). See also, Cinel v. Connick, 15 F.3rd 1338, 1341 (5th Cir. 1994).
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Even where the plaintiff fails to respond to the motion, as here, the Court is required to view the
facts in the light most favorable to him.
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While a complaint need not contain detailed factual allegations to survive a
12(b)(6) motion, the United States Supreme court has held that a plaintiff’s “obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 540, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d
929, 940 (2007) (other citations omitted). A court should not accept "threadbare recitals
of a cause of action's elements, supported by mere conclusory statements," which "do
not permit the court to infer more than the mere possibility of misconduct." Ashcroft v.
Iqbal, 556 U.S. 662, 677 (2009).
In addition, to fulfill the protective purpose of qualified immunity, the Fifth Circuit
has long required more than mere “notice pleadings” when a claimant asserts a Section
1983 claim against an officer in his individual capacity. Elliott v. Perez, 751 F.2d 1472
(5th Cir. 1985). More specifically, when an officer raises the qualified immunity defense,
a complaint “must present more than bald allegations and conclusory statements.”
Wicks v. Mississippi State Employment Svcs., 41 F.3d 991, 995 (5th Cir. 1995). In fact,
a plaintiff must “allege with sufficient particularity all facts establishing a right to
recovery, including facts which negate the official’s immunity defense.” Wicks, 41 F.3d
at 995. See also, Nunez v. Simms, 341 F.3d 385 (5th Cir. 2003) (holding that
heightened pleading in qualified immunity cases requires plaintiffs rest complaint on
more than conclusions alone); Foster v. City of Lake Jackson, 28 F.3d 425 (5th Cir.
1994) (burden of negating qualified immunity defense lies with plaintiff).
It is well settled that “individual liability under Section 1983 may not be predicated
on the doctrine of respondeat superior,” and that “[o]nly the direct acts or omissions of
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government officials … will give rise to individual liability under Section 1983.” Coleman
v. Houston Indep. Sch. Dist., 113 F.3d 528, 534 (5th Cir. 1997) (citing, Doe v. Taylor
Indep. Sch. Dist., 15 F.3d 443, 452 (5th Cir. 1994)). Simply put, in order to demonstrate
individual liability against Ford, Briser must allege that Ford directly engaged in an
activity that led to the alleged constitutional deprivations. In this case, it is clear from
Brister’s Complaint that former Sheriff Ben Ford was not individually involved in any
way, shape, form or fashion in the altercation that allegedly took place on March 24,
2011. Ford’s lack of direct participation in the alleged unconstitutional conduct requires
this court to dismiss the claims against him in his individual capacity.
To the extent that Brister is attempting to assert a claim against Ford in his
individual capacity under a theory of “supervisory liability,” the same must be dismissed.
The United States Supreme Court addressed this issue in Ashcroft, and explained that
supervisory liability in a Section 1983 suit is a “misnomer” as each governmental official
is only liable for his or her own conduct. 556 U.S. at 677.
However, aside from Ashcroft, Brister has failed to allege facts sufficient to state
a claim for supervisory liability or to negate Ford’s qualified immunity defense. Law
enforcement officials, “like other public officials acting within the scope of their official
duties, are shielded from claims of civil liability, including § 1983 claims, by qualified
immunity.” Morris v. Dillard Dept. Stores, Inc., 277 F.3d 743, 753 (5th Cir. 2001). A law
enforcement officer is entitled to the cloak of qualified immunity “unless it is shown that,
at the time of the incident, he violated a clearly established constitutional right.”
Mangieri v. Clifton, 29 F.3d 1012 (5th Cir. 1994). Significantly, qualified immunity
provides “ample protection to all but the plainly incompetent or those who knowingly
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violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
In assessing a claim of qualified immunity, courts should apply a two part
analysis. The threshold question is “whether Plaintiff’s allegations establish a
constitutional violation." Hope v. Pelzer, 536 U.S. 730, 736 (2002). If “no constitutional
right would have been violated were the allegations established, there is no necessity
for further inquiries concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194
(2001); see also, Pearson v. Callahan, United States Supreme Court, No. 07-751
(“order of battle” delineated in Saucier is no longer mandatory). However, “if a violation
could be made out, the next sequential step is to ask whether the right was clearly
established.” Saucier, 533 U.S. at 201.
It is vital to note that the right that the “official is alleged to have violated must
have been “clearly established. in a more particularized, and hence more relevant
sense: the contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S.
635, 640 (1987). The “relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation confronted.” Saucier, 533 U.S. at 202. Finally, it is worth
noting that “[w]hen a defendant invokes qualified immunity, the burden is on the Plaintiff
to demonstrate the inapplicability of the defense." McClendon v. City of Columbia, 307
F.3d 314, 323 (5th Cir. 2002).
The Supreme Court has explained that qualified immunity “gives ample room for
mistaken judgments' by protecting 'all but the plainly incompetent or those who
knowingly violate the law.'" Hunter v. Bryant, 502 U.S. 224 (1991) (quoting Malley v.
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Briggs, 475 U.S. 335, 341 (1986)). Without any allegations in the Complaint which
even suggest the direct involvement of former Sheriff Ben Ford in the events of March
24, 2011, Brister’s Complaint against Ford must be dismissed with prejudice as to him
(Ford).
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion to Dismiss [#5]
filed on behalf of defendant Ben Ford, in his individual capacity, is granted and this
matter is dismissed with prejudice as to Ben Ford, in his individual capacity. A separate
judgment shall be entered herein in accordance with Rule 58, Federal Rules of Civil
Procedure.
SO ORDERED AND ADJUDGED this the 13th day of June , 2012.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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