Franklin et al v. North Central Narcotics Task Force et al

Filing 62

ORDER granting 45 Motion for Qualified Immunity as to Robert and Shannon Franklin's Fourth and Fourteenth Amendment Claims. Signed by Honorable David C. Bramlette, III on 12/20/2016 (EB)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ROBERT FRANKLIN AND SHANNON
O’QUINN FRANKLIN, EACH INDIVIDUALLY
AND EACH ON BEHALF OF LARRY D. MAYS,
A MINOR CHILD
V.

PLAINTIFFS

CIVIL ACTION NO. 5:15-cv-120-DCB-MTP

NORTH CENTRAL NARCOTICS TASK FORCE;
CLAIBORNE COUNTY, MISSISSIPPI; MARIO GRADY,
IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES;
CORY WEATHERSPOON, IN HIS OFFICIAL AND
INDIVIDUAL CAPACITIES; SCOTT STEWART,
IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES;
WILLIAM NEVELS, IN HIS OFFICIAL AND
INDIVIDUAL CAPACITIES; MICHAEL WELLS,
IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES;
AND DOE DEFENDANTS 1-10

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the Court on defendants Mario Grady,
Michael

Wells,

and

Cory

Weatherspoon,

in

their

individual

capacities, (“Individual Defendants” or “Defendants”)’s Motion for
Qualified Immunity as to Robert and Shannon Franklin’s Fourth and
Fourteenth Amendment Claims (docket entry 45).1

Having carefully

considered the motion, responses, and applicable law, and being
otherwise fully informed in the premises, the Court finds as
follows:

1

Defendant William Nevels has filed a Joinder document, expressly adopting the
assertions, arguments, and requests for relief presented by defendants Mario
Grady, Cory Weatherspoon and Michael Wells. It appears that defendant Scott
Stewart does not join the motion because he was never served in the matter. See
Defendants’ Memorandum in Support of Motion for Qualified Immunity, p.2 n.1.

1

I. Facts and Procedural History
On or about March 20, 2014, members of the Central Narcotics
Task Force and Claiborne County Sheriff’s Department, entered the
home of Robert and Shannon Franklin in search of criminal activity.
Plaintiffs’ Reply, p.3. While inside the residence, the officers
allegedly snatched the Franklins’ minor son from his bed, threw
the child to the ground and placed a gun to his head. Id.

Seeking

relief from injuries allegedly sustained during the incident,
Robert and Shannon Franklin, individually and on behalf of their
son Larry D. Mays, filed suit against the named defendants.
In addition to certain state law claims, the plaintiffs’
Complaint alleged constitutional claims against officers Mario
Grady, Cory Weatherspoon, William Nevels, and Michael Wells in
their individual capacities pursuant to 42 U.S.C. § 1983.

The

Individual Defendants, in their Original and Amended Answers,
raised qualified immunity as a defense.
entered

an

Order

instructing

the

On July 7, 2016, the Court

plaintiffs

to

address

the

defendants’ qualified immunity defense in a Reply pursuant to
Federal Rule of Civil Procedure 7(a).

In compliance with that

Order, the plaintiffs filed their Rule 7(a) Reply on July 20, 2016.
Defendants Mario Grady, Cory Weatherspoon, William Nevels,
and Michael Wells now file their Motion for Qualified Immunity as
to Robert and Shannon Franklin’s Fourth and Fourteenth Amendment
Claims.

Defendants’ motion is narrow in scope, seeking immunity
2

only with respect to the Fourth and Fourteenth Amendment claims
asserted by Robert and Shannon Franklin. The defendants do not
seek immunity as to the constitutional claims asserted on behalf
of the minor child, Larry D. Mays.
II. Discussion
The

Individual

Defendants

claim

they

are

entitled

to

qualified immunity inasmuch as Robert and Shannon Franklin have
not

shown

that

their

constitutional

rights

were

violated.

Defendants advance two arguments in support of their motion: (1)
that plaintiffs have failed to satisfy the heightened pleading
standard required to overcome qualified immunity, and (2) that
even if Plaintiffs’ factual allegations are sufficient to overcome
the qualified immunity defense, the Franklins have failed to assert
any constitutional violation as a matter of law.

In response, the

Franklins maintain that they have supported their constitutional
claims with sufficient precision and factual specificity to raise
a genuine issue as to the illegality of the defendants’ conduct.
A. Standard of Review
Motions for qualified immunity generally fall into one of two
categories: Rule 12(b)(6) motions challenging the sufficiency of
the plaintiff’s allegations to establish the deprivation of a
clearly

established

constitutional

right,

or

Rule

56

motions

arguing that the defendant’s conduct was objectively reasonable in
light of all circumstances. See Pardue v. Jackson Co., Miss., 2015
3

WL 1867145 (S.D. Miss. Apr. 23, 2015); Salcido v. Univ. of S.
Miss., 2013 WL 2367877, *1 n.1 (S.D. Miss. May 29, 2013); Watkins
v. Hawley, 2013 WL 3357703 (S.D. Miss. July 3, 2013) (“Typically,
the former can be addressed without discovery, while the latter
cannot.”).

Defendants fail to identify which procedural framework

should be used to evaluate their motion. But given the nature of
the parties’ arguments and the procedural posture of the case, it
appears that consideration pursuant to Rule 12 is appropriate. See
Tate v. Sharp, 2013 WL 664865 (N.D. Miss. Feb. 22, 2013) (a motion
for qualified immunity filed early in the litigation, but after
defendants filed their answer, would ordinarily be treated as a
Rule 12(c) motion for judgment on the pleadings).
“When considering a motion for judgment on the pleadings under
Rule 12(c), the court is generally limited to ‘the contents of the
pleadings including attachments thereto.’” Bosarge, 796 F.3d at
439.

The

“pleadings”

include the complaint, answers to the

complaint, and “if the court orders one, a reply to an answer.”
Id. (quoting Fed. R. Civ. P. 7(a)).

Generally, when a rule 12(c)

motion presents matters outside the pleadings, the court may either
exclude the evidence or treat the motion as one for summary
judgment. See Fed. R. Civ. P. 12(d); see also Gen. Retail Servs.,
Inc. v. Wireless Toyz Franchise, LLC, 225 Fed. App’x 775, 783 (5th
Cir. 2007) (“It is well known that when ‘matters outside the
pleading’ are presented with a motion to dismiss under Rule
4

12(b)(6), a district court has complete discretion to either accept
or exclude the evidence.”). Although defendant William Nevel’s
Joinder to the motion presents evidence outside the pleadings by
way of exhibit, the Court shall exclude this evidence and consider
the motion under Rule 12(c).2
Rule 12(c) motions are governed by the same standards as
motions to dismiss under Rule 12(b)(6). Bosarge v. Miss. Bureau of
Narcotics, 796 F.3d 435, 439 (5th Cir. 2015).

The Court accepts

all “well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.” Martin K. Eby Constr. Co. v. Dallas
Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004).

To survive

the motion, the plaintiff must plead sufficient facts to state a
claim for relief that is plausible on its face.
v. Twombly, 550 U.S. 544, 570 (2007).

Bell Atl. Corp.

“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.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).

“But where the well-pleaded facts do not permit

2

Defendants’ motion arguments turn on the sufficiency of the plaintiffs’
constitutional claims, an issue requiring no fact-intensive inquiry beyond the
pleadings.
Aside from the single exhibit, the defendants have presented no
other evidence outside the pleadings in support of their Motion, nor have the
plaintiffs produced any outside evidence in support of their Response. Further,
conversion to a summary judgment motion would be unwarranted at this stage
because there has been little or no discovery conducted by the parties. See
Brennan v. Nat’l Tel. Directory Corp., 850 F.Supp. 331, 335 (E.D. Pa. 1994)
(conversion was unwarranted where no factual record had been developed because
“the parties may not be able to present enough material to support or oppose a
motion for summary judgment”).

5

the court to infer more than the mere possibility of misconduct,
the complaint has alleged — but has not ‘show[n]’ — ‘that the
pleader is entitled to relief.’” Id. at 679.
B. Qualified Immunity Analysis
The doctrine of qualified immunity protects public officials
performing discretionary functions “insofar as their conduct does
not violate clearly established statutory or constitutional rights
of

which

a

reasonable

person

would

Fitzgerald, 457 U.S. 800, 818 (1982).

have

known.”

Harlow

v.

Once a defendant claims

qualified immunity, the burden shifts to the plaintiff to rebut
the defense. Jenkins v. Town of Vardaman, Miss., 899 F.Supp.2d
526, 531 (N.D. Miss. 2012) (“it is the plaintiff, rather than
defendant, who must do most of the ‘heavy lifting’ in the qualified
immunity context”).
When determining whether a defendant is entitled to qualified
immunity, the Court’s analysis is two-pronged. Langford v. Union
County, Miss., 51 Fed. App’x. 930 (5th Cir. 2002).

First, the

Court must determine whether the plaintiff has alleged a violation
of a clearly established constitutional right. Id.

Upon finding

that a constitutional violation has been alleged, the Court must
determine

whether

the

defendant’s

conduct

was

objectively

reasonable in light of clearly established law at the time of the
incident. Id.

“If the plaintiff fails to state a constitutional

claim or if the defendant’s conduct was objectively reasonable
6

under clearly established law, then the governmental official is
entitled to qualified immunity.” U.S. Technology Corp. v. Miss.
Dept. of Environmental Quality, 2016 WL 4098609, *5 (S.D. Miss.
July 28, 2016).

At this stage, Defendants’ motion argument turns

on the first prong of the qualified immunity analysis, namely
whether the Franklins have alleged a violation of their clearly
established constitutional rights.
Plaintiffs bringing suit against public officials in their
individual capacities under 42 U.S.C. § 1983 must comply with
heightened pleading requirements. See Schultea v. Wood, 47 F.3d
1427, 1434 (5th Cir. 1995) (affirming the heightened pleading
standard articulated in Elliot v. Perez, 751 F.2d 1472 (5th Cir.
1985)).

This

heightened

pleading

standard

requires

more

than

conclusory allegations; “it requires claims of specific conduct
and actions giving rise to a constitutional violation.” Baker v.
Putnal, 75 F.3d 190, 195 (5th Cir. 1996); see Reyes v. Sazan, 168
F.3d 158, 161 (5th Cir. 1999) (“heightened pleading requires
allegations of fact focusing specifically on the conduct of the
individual who caused the plaintiff’s injury”); Jackson v. City of
Beaumont

Police

Dept.,

958

F.2d

616

(5th

Cir.

1992)

(“mere

conclusory allegations and bold assertions are insufficient”).

To

overcome qualified immunity, a plaintiff must plead his claims
with “sufficient precision and factual specificity to raise a

7

genuine issue as to the illegality of [the] defendant’s conduct at
the time of the alleged acts.” Schultea, 47 F.3d at 1434.
The Franklins bring their constitutional claims pursuant to
the Fourth and Fourteenth Amendments, alleging excessive force and
asserting their right to be free from unreasonable searches and
seizures.
and

its

The Court shall therefore look to the Fourth Amendment
reasonableness

excessive force claims.3

standard

in

examining

the

Franklins’

To bring an excessive force claim under

the Fourth Amendment, the Franklins must show: “(1) an injury that
(2) resulted directly and only from the use of force that was
excessive to the need, and that (3) the force used was objectively
unreasonable.” Brothers v. Zoss, 837 F.3d 513, 518 (5th Cir. 2016).
A showing of “significant injury” is no longer required for
excessive force claims, but “the injury must be more than de
minimis.” Tarver v. City of Edna, 410 F.3d 745, 752 (5th Cir.
2005); Payne v. Parnell, 246 Fed. App’x 884, 889 (5th Cir. 2007)
(evaluating the alleged injury in the context in which the force
was deployed).
As to Robert and Shannon Franklin, the plaintiffs’ Complaint
and Rule 7(a) Reply make few allegations:


The emotional and psychological trauma caused by the
injuries sustained by Larry D. Mays directly and

3

“All claims that law enforcement officers used excessive force—deadly or not—
in the course of an arrest, investigatory stop, or other ‘seizure’ of a free
citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard, rather than under a ‘substantive due process’ approach.” Graham v.
Connor, 490 U.S. 386, 396 (1989).

8

proximately affects
Compl., ¶ 21.

all

the

Plaintiffs

herein.



Shannon O’Quinn Franklin was present and witnessed
the incident. She states the individuals she saw
accost her son and point a gun at her son’s head were
wearing black masks. Mrs. Franklin states that most
of the individuals had white noses. Reply, p. 3.



Mr. Robert Franklin states that he saw one of the
individuals, believed to be an African-American male,
remove his mask at one point. Reply, p. 3.



Mrs. Franklin states that she told the individuals
that her son had special needs and that he needed his
medicine to avoid having a seizure. Mrs. Franklin
states that she begged the individuals to allow her
son to take his seizure medicine, but they refused.
Reply, p. 3.



Upon information and belief, Robert Franklin was
arrested and his charge resulted in no jail time being
served. Reply, p. 4.



Meanwhile, the physical attack upon Larry D. Mays
resulted in significant physical injuries and
emotional distress to the Plaintiffs. Reply, p. 4.

The Court finds that these allegations lack the factual
specificity needed to determine whether the defendants violated
Robert and Shannon Franklin’s clearly established rights.

“It is

not enough for the plaintiff to allege that [a] government official
violated a clearly established right in the generalized sense . .
. the contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates
that right.”

Brown v. Glossip, 878 F.2d 871, 874 (5th Cir. 1989).

9

In Jackson v. City of Beaumont Police Dept., 958 F.2d 616,
621 (5th Cir. 1992) the Fifth Circuit determined that a plaintiff
could not overcome the heightened pleading requirement by merely
asserting

that

an

officer’s

use

justification” and in “bad faith.” Id.

of

force

was

“without

The plaintiff in Jackson

failed to provide any facts “regarding his own conduct during the
incident, the reasons given, if any, by the officers for being
called

to

the

scene,

or

any

other

factors

relating

to

the

circumstances leading to, and surrounding, his arrest and other
alleged actions by the officers.”

Finding no facts from which to

determine whether the officers’ conduct was unreasonable, the
court characterized
statements

the

insufficient

plaintiffs’
to

overcome

allegations
the

as

qualified

conclusory
immunity

defense. Id.
Aside from asserting that the defendants’ use of force was
“unprovoked and unjustified,” and that Larry Mays committed no
crime and provided no resistance, the Franklins have otherwise
failed to provide any specific facts to suggest that the officers’
conduct was objectively unreasonable under the circumstances.
Reply, p.4.
Significantly, the plaintiffs have failed to identify any
specific injuries or symptoms, emotional or otherwise, suffered by
Robert and Shannon Franklin as a result of the altercation.

From

a careful reading of the pleadings, there are no facts which, in
10

the broadest sense, would support a physical injury to Robert and
Shannon Franklin.

While the pleadings do contain specific facts

relating to injuries suffered by Larry Mays, i.e. that he suffered
a seizure immediately after the officers left the scene, and that
he now requires additional medication and suffers seizures at an
increased rate, the Franklins’ injuries are described in general
terms

as

distress.”

“physical

and

psychological

Compl., ¶ 21; Reply, p. 4.

trauma”

and

“emotional

Although psychological

injuries may give rise to a cognizable claim under Section 1983,
the Court finds that the facts provided here are incapable of
establishing that the Franklins suffered any injury that was more
than de minimis. See Flores v. City of Palacios, 381 F.3d 391, 400
(5th Cir. 2004); Khansari v. City of Houston, 14 F.Supp.3d 842
(S.D. Tex. 2014).
When faced with similar allegations, a court within the Fifth
Circuit held that parents who suffered emotional distress after
witnessing police action against their son failed to sufficiently
state a claim under Section 1983. See Khansari, 14 F.Supp.3d at
842.

In Khansari, the plaintiff parents alleged that they stood

feet away from their child as police officers, who disregarded the
mother’s attempts to explain her son’s fragile medical state, shot
him with a taser gun. Id. at 862.

The parents alleged that they

suffered shock and extreme emotional distress as a result of the
officers’ conduct and asserted claims “aris[ing] not only from the
11

horror of witnessing their son being shot with a taser in his eye
but also from the Officers’ actions aimed directly at [them].” Id.
at 863.

Despite allegations that the officers also verbally

threatened and pointed weapons towards the parents, the district
court

concluded

“that

the

only

claims

asserted

for

injuries

suffered by [the parents were] claims for emotional distress
arising from witnessing police action against their son.” Id.
Following the Fifth Circuit’s holding in Grandstaff v. City of
Borger, 767 F.2d 161 (5th Cir. 1985), the district court held that
the parents were incapable of establishing “that [they] suffered
an injury that was more than de minimis” and dismissed the parents’
individual and bystander claims. Id.
In their motion, Defendants similarly rely on Grandstaff for
the proposition that a bystander who witnesses police action but
is not himself the object of that action cannot recover for
emotional injuries under Section 1983. 767 F.2d at 172.

In

Grandstaff, the Fifth Circuit reversed a jury verdict in favor of
a deceased victim’s family members, whose claims were based solely
on emotional distress suffered as bystanders to police action
against the deceased. Id.

In view of his wife and minor stepsons,

James Grandstaff was shot and killed by police in the front yard
of his home. Id. at 165. Though the Fifth Circuit recognized that
Grandstaff’s own constitutional rights were violated during the

12

shooting,

the

Court

held

that

recovery

for

the

bystanders’

emotional trauma was not permitted under Section 1983. Id. at 172.
Considering

the

plaintiffs’

allegations

in

light

of

Grandstaff and Khansari, the Court finds that Robert and Shannon
Franklin have failed to sufficiently allege that their clearly
established

constitutional

rights

were

violated.

Like

the

plaintiffs in the Khansari, the Franklins have failed to plead any
facts to suggest they suffered harm independent of the officers’
alleged mistreatment of their child.

Further, the Complaint and

Rule 7(a) Reply identify no facts showing an unconstitutional
seizure of Robert or Shannon Franklin.

Nor are there any facts to

suggest that the defendants’ entry onto the property was improper,
or that the Franklins’ home was unlawfully searched.

From the

facts, it appears that the Franklins’ claims rest entirely on the
alleged seizure and excessive use of force against Larry Mays.
And as the Fifth Circuit provided in Grandstaff, “there is no
constitutional

right

to

be

free

from

witnessing

this

police

action.” Id. at 172.
In their Response to the motion, the plaintiffs introduce,
for the first time, subtle embellishments to the allegations
contained in their original pleadings.4

4

Plaintiffs also restate

It appears that Robert and Shannon Franklin’s names have been added to
allegations originally describing the defendants’ actions towards Larry Mays.
For example, the plaintiffs’ Rule 7(a) Reply provides that the “blows dealt to
Larry D. Mays by the officers were grossly disproportionate to the lack of
resistance he offered.” Reply, p. 11-12.
Plaintiffs’ Response now provides

13

these assertions in their Amended Complaint.5

But they add little

substance to the Franklins’ claims. The Response refers to “blows”
dealt by the defendants, and cites the defendants’ use of “physical
attack, handcuffs and unlawful restraint[s]” as excessive force.
Response, pp. 11, 13.
offer

nothing

more

Taken together, Plaintiffs’ allegations

than

the

conclusory

assertion

that

the

defendants used excessive force and caused injury. See Wells v.
Newkirk-Turner, 2014 WL 5392960, *4 (S.D. Miss. Oct. 22, 2014)
(conclusory allegations that track the elements of a claim are
insufficient to meet the heightened pleading requirements of an
individual-capacity § 1983 claim).

Without more, the Court finds

that the Franklins have failed to allege any constitutional claim
with the precision and factual specificity required to overcome
the defendants’ qualified immunity defense.
While the Court recognizes that plaintiffs should ordinarily
be given an additional opportunity to satisfy the heightened
pleading

standard

after

qualified

immunity

is

raised,

the

Franklins have already been afforded such an opportunity in this

that the “blows dealt to Larry D. Mays, Shannon Franklin and Robert Franklin by
the officers were grossly disproportionate to the lack of resistance they
offered.” Response, p. 11-12 (emphasis added).
5
Plaintiffs filed their Amended Complaint after briefing on Defendants’ Motion
for Qualified Immunity was completed in this case. In a previous Order, the
Court granted the plaintiffs leave to amend their constitutional claims against
Claiborne County. The Court did not, however, address Plaintiffs’ Section 1983
claims against the individual defendants. See Order and Opinion, p.9 [docket
entry 58]. Nevertheless, the Amended Complaint does not appear to provide any
new information insofar as it relates to the Franklins’ claims against the
individual officers.

14

case.

The Court ordered the plaintiffs to submit a Schultea reply

in accordance with Rule 7(a), and the plaintiffs complied.

The

Franklins have therefore been “apprised of the insufficiency of
their conclusory allegations . . . and have been afforded the
opportunity to plead facts that would overcome the bar of qualified
immunity.” Prater v. Wilkinson, 2014 WL 7334185 (S.D. Miss. Dec.
19, 2014).
constitute

The Court assumes that the Franklins’ allegations
their

best

case

against

the

defendants’

qualified

immunity claim, and as provided above, the Franklins’ best case
simply falls short.
The Court finds that the Motion for Qualified Immunity is
well-taken, and shall dismiss the constitutional claims asserted
by

the

Franklins

capacities.

against

the

defendants

in

their

individual

The constitutional claims asserted on behalf of Larry

Mays survive, as do the Franklins’ remaining claims that were not
subject to the motion.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Qualified
Immunity (docket entry 45) is GRANTED.
SO ORDERED AND ADJUDGED this the 20th day of December, 2016.

/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE

15