Fleming v. Hinds County et al
Memorandum Opinion and Order denying 55 MOTION of defendant Rylon Thomas to Dismiss On Basis of Qualified Immunity. Signed by District Judge Tom S. Lee on 5/1/17 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
DEDRICK A. FLEMING, SR.
CIVIL ACTION NO. 3:16CV554TSL-RHW
HINDS COUNTY, DEPUTY JEREMY
LEE, IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY, OFFICER RICHARD
THOMPSON, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY, OFFCIER RYLON
THOMPSON, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY, OFFICER JASON
CLARK, IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY, AND OFFICERS JOHN DOES (1-7)
MEMORANDUM OPINION AND ORDER
Defendant Rylon Thomas has filed in this cause a motion to
dismiss (or for summary judgment) on the basis of qualified
Plaintiff Dedrick A. Fleming, Sr. has filed a response
to the motion in which he argues that Thomas has failed to
demonstrate the absence of a genuine issue of material fact as the
documents relied on by Thomas in support of his motion are
inadmissible, making summary judgment inappropriate, and in which
he asserts, alternatively, that since there has been no discovery
as yet, he “has not had an opportunity to bring forth sufficient
evidence regarding each element” of his claim and that therefore,
pursuant to Federal Rule of Civil Procedure 56(d), the court
should defer consideration of the motion until plaintiff has had
an opportunity to conduct discovery.
The court, having considered
the motion and response, concludes that the motion should be
Plaintiff filed this action alleging claims under 42 U.S.C.
§ 1983 and state law relating to an alleged use of excessive force
by the defendant Hinds County Sheriff’s deputies during the course
of a traffic stop.
Plaintiff alleges that after he was stopped,
the defendant officers “proceeded to unlawfully attack [him],” and
to “choke, beat, discharge their tasers onto [his] mouth ... and
fractured [his] foot.”
He was transported to the hospital where
he received treatment for his injuries.
compensatory and punitive damages of at least $500,000.
Thomas has filed a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6), or, alternatively, for summary
judgment pursuant to Rule 12(b)(6), on the basis of qualified
See Collins v. Ainsworth, 382 F.3d 529, 536 (5th Cir.
2004) (motion for qualified immunity may be considered as a motion
to dismiss under Rule 12(b)(6) or Rule 56)).
shields federal and state officials from money damages unless a
plaintiff pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was
‘clearly established’ at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 2080, 179
L. Ed. 2d 1149 (2011).
Qualified immunity does not merely offer immunity from
liability, but provides immunity from suit.
Foster v. City of
Lake Jackson, 28 F.3d 425, 428 (5th Cir. 1994).
a defendant seeks dismissal based on qualified immunity, the
complaint is subject to a heightened pleading requirement,
Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995), as follows:
“‘[T]o survive [a motion to dismiss],’ a plaintiff must plead the
defendant's alleged constitutional violations ‘with factual detail
and particularity, not mere conclusionary allegations.’”
Newkirk-Turner, No. 3:13CV733-DPJ-FKB, 2014 WL 5392960, at *3
(S.D. Miss. Oct. 22, 2014) (quoting Anderson v. Pasadena Indep.
Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999)).
In this case, Thomas asserts that plaintiff “fails to allege
facts which reasonably support a claim of relief” against him in
his individual capacity.
Thomas does not elaborate, however, and
does not suggest in what way the complaint is claimed to be
Plaintiff has alleged that following a traffic stop,
he was attacked, beaten, choked, and “tasered” by the defendant
officers and was seriously injured as a result.
implication of plaintiff’s allegation is that the alleged “attack”
was unprovoked and unwarranted.
However, not every use of force
Rather, the Fourth Amendment proscribes only
the use of force that is “excessive to the need” and “objectively
See Bush v. Strain, 513 F.3d 492, 501 (5th Cir.
2008) (holding that to state a claim for excessive force in
violation of the Fourth Amendment, plaintiff “must allege (1) an
injury that (2) resulted directly and only from the use of force
that was excessive to the need, and (3) the use of force was
Plaintiff’s complaint is rather
short on details in this regard, and likely does not contain
sufficient specific facts to demonstrate that the alleged use of
force was excessive and hence unconstitutional.
any shortcomings, the court finds that dismissal of his complaint
would not be proper.
In this regard, the Fifth Circuit has held that where a
plaintiff’s § 1983 complaint against a public official fails to
satisfy the heightened pleading standard, the court may order a
Rule 7 response to ensure that the defendants are not subjected to
unnecessary and burdensome discovery or trial proceedings.
Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004) (“The
considerations that had led to the adoption of heightened pleading
would henceforth be satisfied ... through the device of a detailed
Rule 7 reply, which the district court could order on the
defendant's motion or sua sponte.”); Truvia v. Julien, 187 Fed.
App'x 346, 349 n. 2 (5th Cir. 2006) (“The purpose of the (Rule 7)
device is to require the plaintiff to satisfy the heightened
pleading standards applicable to claims implicating immunity
Although a plaintiff need not anticipate such a
defense, the district court in its discretion may require the
plaintiff to submit a Rule 7 reply in response to an immunity
defense before embarking on potentially costly discovery and
litigation.”); see also Reyes v. Sazan, 168 F.3d 158, 161 (5th
Cir. 1999) (“Faced with sparse details of claimed wrongdoing by
officials, trial courts ought routinely require plaintiffs to file
a reply under Federal Rule of Civil Procedure 7(a) to qualified
However, the Fifth Circuit has also held
that a Rule 7 response is not necessary when the briefing in
response to the motions to dismiss raising a qualified immunity
defense adequately addresses the defense.
See Truvia, 187 F.
App'x at 349-50 (holding that where plaintiff fully briefed
qualified immunity in response to defendant’s motion to dismiss,
“[r]equiring a Rule 7(a) reply in addition to the completed
briefing would be redundant.”).
Here, in his response to the
motion, plaintiff has referred the court to his sworn “Citizen
Information and Complaint Form” setting forth his version of
events surrounding the alleged attack.
In this complaint form,
plaintiff states that he was stopped by a white officer (for no
While stopped, his nose began to bleed.
Plaintiff reached to wipe his nose, at which point the officer,
ostensibly believing plaintiff had put something in his mouth,
told plaintiff to step outside the vehicle and then immediately
placed him in handcuffs.
Plaintiff denied placing anything in his
Another officer arrived, asked plaintiff what was in his
mouth and started choking him until he threw up.
A third officer
arrived, and immediately “put him on the ground and tazed [him]
until he threw up.”
An ambulance was called to transport him to
This version of events, viewed in the light most
favorable to plaintiff, is sufficient to overcome defendant’s
Accordingly, the court will not require a
Rule 7 response and will deny Thomas’s Rule 12(b)(6) motion to
Thomas has made an alternative request for summary judgment,
in support of which he has submitted two exhibits for the court’s
The first is plaintiff’s sworn citizen complaint.
The second is Thomas’s own narrative statement regarding the
subject incident which he prepared, signed and provided to his
superiors at the time of the incident.
According to Thomas’s
statement, on the date of the incident, he was dispatched to the
location where plaintiff had been stopped by another deputy,
Jeremy Lee, who reported that plaintiff was putting “dope” in his
Thomas states that as he approached, plaintiff was “making
jerking movements and shaking his head around. [His] mouth
appeared to be full and his jaws were flared. [He] began making
convulsive movements and it appeared as though he was choking on
the substance that he was attempting to swallow.”
that he “attempted to apply pressure to the side of Mr. Fleming’s
mouth with a flashlight and was going to clear his airway as he
opened his mouth.”
However, as he did this, plaintiff “began
flailing and kicking.”
The two of them fell to the ground as
another deputy stunned plaintiff with a taser to stop him from
struggling as Thomas attempted to clear his air passage.
immediately stopped touching plaintiff when directed to do so by a
Sergeant John Sanders, with whom the officers were in
communication via phone.
In his response to the motion, plaintiff objects that
Thomas’s statement is inadmissible hearsay, which may not be
properly considered on a motion for summary judgment.
Warfield v. Byron, 436 F.3d 551, 559 (5th Cir. 2006) (stating that
hearsay is inadmissible for summary judgment purposes under
Federal Rule of Civil Procedure 56).
For his part, defendant has
not acknowledged, much less responded to plaintiff’s objection.
The court, having considered plaintiff’s objection to Thomas’s
statement, finds it is well taken.
A police report, while hearsay, generally falls under at
least two well-established hearsay exceptions—Rule 803(6)
(business records exceptions) and Rule 803(8) (public records
See Valentine v. Hodnett, No. 5:14-CV-72, 2015 WL
12942069, at *3 (S.D. Tex. Sept. 16, 2015), report and
recommendation adopted, No. 5:14-CV-72, 2016 WL 806877 (S.D. Tex.
Mar. 2, 2016) (citing Fed. R. Evid. 803(6) and 803(8)).
803(6) contains five requirements for the admission of a business
record, the last of which is that “neither the source of
information nor the method or circumstances of preparation
indicate a lack of trustworthiness.”
Fed. R. Civ. P. 803(6)(E)).
Rule 803(8) likewise includes among requirements for admission
that neither “the source of information or other circumstances
indicate a lack of trustworthiness.”
Fed. R. Civ. P. 803(8)(B).
Courts considering the issue have held that incident reports by
officers involved in excessive force incidents lack the indicia of
trustworthiness required for admission under either the business
records or public records exceptions to the hearsay rule.
e.g., Bracey v. Herringa, 466 F.2d 702, 705 (7th Cir. 1972)
(finding it was “error for the district court to accept in support
of the Defendants' motion for summary judgment prison records
which included the self-serving statements of the defendants
themselves as well as statements of other prison guards.”);
Kokoska v. City of Hartford, No. 3:12-CV-01111 WIG, 2014 WL
4724875, at *3 (D. Conn. Sept. 23, 2014) (holding that officers’
narrative reports of events surrounding excessive force incident
did not come within business records or public records exceptions
in view of the officers’ self-interest “in portraying their
actions in the most reasonable light and the actions of Plaintiff
in the most unfavorable light”); McGrew v. Roundtree, No. CIV. A.
09-0859-RET, 2011 WL 1789963, at *3 n.2 (M.D. La. Mar. 9, 2011),
report and recommendation adopted, No. CIV.A. 09-859-RET, 2011 WL
1752246 (M.D. La. May 9, 2011) (expressing view that incident
reports prepared by security officers who faced potential
liability as defendants were self-serving and inherently
untrustworthy, and hence inadmissible hearsay, not subject to the
hearsay exceptions set forth in Rules 803(6) and 803(8)); Pommer
v. Vaughn, 2009 WL 1490570 (D. Conn. May 27, 2009) (observing that
“courts examining incident reports in excessive force cases have
found such reports to be inadmissible under Rule 803(6) because
they are self-serving and lack indicia of reliability.”); Lewis v.
Velez, 149 F.R.D. 474, 485-86 (S.D.N.Y. 1993) (holding that
incident reports prepared by prison officials involved in
excessive force incident lacked indicia of reliability and hence
were not admissible as business records).
As Thomas has failed to
present admissible evidence in support of his summary judgment
motion, that motion will be denied.1
There is nothing to prevent Thomas from filing a second
summary judgment motion accompanied by competent proof, e.g., a
Based on the foregoing, it is ordered that defendant Rylon
Thomas’s motion to dismiss or, alternatively, for summary
judgment, is denied.
SO ORDERED this 1st day of May, 2017.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
sworn affidavit attesting to his version of the facts.
Anticipating this possibility, the court notes that plaintiff’s
contention in response to Thomas’s present motion that he needs
time for discovery before responding in full to the motion, is not
well grounded. The Fifth Circuit has held that while Rule 56(d)
“motions are broadly favored and should be liberally granted,...
because qualified immunity is an immunity from suit rather than a
mere defense to liability, the district court should limit the
extent of discovery if it is avoidable.” Curtis v. Anthony, 710
F.3d 587, 594 (5th Cir. 2013) (per curiam) (internal quotation
marks and citation omitted). Plaintiff has given no indication as
to the discovery he claims to need or how that discovery is likely
to aid him in responding to the motion. See Am. Family Life
Assur. Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013)
(under Rule 56(d), “non-moving party must set forth a plausible
basis for believing that specified facts, susceptible of
collection within a reasonable time frame, probably exist and
indicate how the emergent facts, if adduced, will influence the
outcome of the pending summary judgment motion.”) (internal
quotation marks and citation omitted). Plaintiff purports to want
to take discovery to support his version of the facts. Yet he
does not need discovery to determine what he claims happened.
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