PERDUE v. HARRISON
Filing
23
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 10/24/2017. RECOMMENDED that Defendant's Motion to Dismiss be granted as to the official-capacity claim and denied as to the individual-capacity claim.(Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BOBBY JOHNATHAN PERDUE, II,
Plaintiff,
v.
TITUS HARRISON,
Defendant.
)
)
)
)
)
)
)
)
)
1:17cv403
MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
the
undersigned
United
States
Magistrate Judge for a recommendation on Defendant’s Motion to
Dismiss (Docket Entry 14) (the “Motion”).
For the reasons that
follow, the Court should grant in part and deny in part the Motion.
BACKGROUND
Bobby Johnathan Perdue, II (the “Plaintiff”), a pretrial
detainee proceeding pro se, commenced this action pursuant to 42
U.S.C. § 1983 against Titus Harrison (the “Defendant”) in his
individual and official capacities, alleging that Defendant used
excessive force against Plaintiff in violation of his fourteenthamendment rights.
(See Docket Entry 2 (the “Complaint”) at 5.)1
According to the Complaint:
On April 23, 2017, Defendant, a sergeant with the Rockingham
County Sheriff’s Department, conducted a search of Plaintiff’s cell
1
Citations to Docket Entry pages utilize the CM/ECF footer’s
pagination.
in the Rockingham County Jail.
(Id. at 4.)
Defendant “skipped
cells 108-112 and came in [Plaintiff’s cell] first. This [wa]s the
second time [Defendant] ha[d] singled [Plaintiff] out.”
7.)
(Id. at
Defendant “found contraband under the mat of Plaintiff[’]s
cell mate” and “handcuffed and escorted [Plaintiff and his cell
mate] to holding cells in Booking.”
(Id. at 4.)
“Plaintiff and
his cell mate were then escorted back to their cell and told to
pack,” and subsequently “were escorted . . . to Segregation.”
(Id.)
This exchange then occurred:
[Plaintiff] asked [Defendant,] “[W]hy do you have it out
for me? You[’re] always fucking with me.” [Defendant]
mocked [Plaintiff] in reply.
[Plaintiff] asked
[Defendant] to “stop mocking [him],” to which [Defendant]
mocked [him] again in reply.
[Plaintiff] told
[Defendant] he “was a child and need[ed] to grow up.
You[’re] a sergeant act like it!” [Defendant’s] reply
was “you[’re] a pill head.
You need to stop doing
pills[,] your eyes are rolling in the back of your head!”
[Plaintiff] said[,] “You need to stop doing steroids.
That[’]s why Miss Terry won[’]t marry you, your dick[’]s
shribbled [sic] up!”
(Id. at 9; accord id. at 4-5.)
At
that
point,
Defendant
“told
Plaintiff
to
enter
the
bubble,”2 “closed the door sep[a]rating himself and Plaintiff from
the other officers,” and “directed Plaintiff to put his box down.”
(Id. at 5.)
After Plaintiff did so, Defendant “stepped into
Plaintiff[’]s face” (id.), in response “to which [Plaintiff] held
2
“The bubble consist[s] of three cells within a glass
enclosure that usually houses mentally ill persons . . . .”
(Docket Entry 2 at 9.)
-2-
[his] hands out to [his] side in a non threat[en]ing way and tried
to back away” (id. at 9; accord id. at 5).
Defendant then “grabbed
Plaintiff by his throat using his right hand, he then slammed
Plaintiff on the ground by his throat.
While still choking
Plaintiff[, Defendant] used his left hand to strike Plaintiff in
the right eye causing bruising and swelling.”
(Id. at 5.)
point did Plaintiff resist or refuse [Defendant].”
(Id.)
“At no
“Some
other officers then piled on top of [Plaintiff] and restrained
[his] hands while [Defendant] was still choking [him].
The whole
time [Defendant] was on top of [Plaintiff] he was smiling saying
(Id. at 10.)3
‘you ain’t ready for this’ repeatedly.”
“The following day . . . Plaintiff was took [sic] to the nurse
and treated for a swollen bruised right eye, scrapes and abrasions
on his left hand, a possible sprain of his right arm and wrist and
bruising on his neck, legs, and hip.”
(Id. at 5; see also id. at
11 (alleging that the nurse prescribed Plaintiff ibuprofen).)
Plaintiff contends that Defendant’s use of excessive force violated
3
In Exhibit B to the Complaint, Plaintiff describes
additional interactions with Defendant and other officers that
occurred on April 23, 2017. (See Docket Entry 2 at 10.) However,
as explained below, the incident in the bubble independently states
a claim as alleged, and accordingly, at least at this stage of the
proceedings, the Court need not further address the allegations
regarding subsequent events.
-3-
his constitutional rights (id. at 5),4 and requests declaratory and
injunctive relief as well as money damages (id. at 14).
In response, Defendant moved to dismiss the Complaint (see
Docket Entry 14), alleging first that it fails to assert a viable
official-capacity claim (see Docket Entry 15 at 5-6).
Defendant
further maintains that the Complaint lacks sufficient factual
matter
regarding
its
individual-capacity
claim
regardless, qualified immunity precludes relief.
11.)
Plaintiff filed a response.
did not reply.
and
that,
(See id. at 7-
(Docket Entry 18.)
Defendant
(See Docket Entries dated Aug. 8, 2017, to
present.)
DISCUSSION
I. Official Capacity Claim
With respect to local government officials, official capacity
liability attaches under Section 1983 only if “execution of a
government’s policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury.”
Collins v. City of Harker Heights,
4
Plaintiff cites the Eighth Amendment as the predicate for
his excessive force claim (Docket Entry 2 at 5), but the Eighth
Amendment does not apply until after conviction and sentence, Lee
v. O’Malley, 533 F. Supp. 2d 548, 552 n.5 (D. Md. 2007). Instead,
pretrial detainees in state custody, such as Plaintiff, may bring
excessive force claims under the Fourteenth Amendment.
See
Kingsley v. Hendrickson,
U.S.
,
, 135 S. Ct. 2466, 2475
(2015); see also Haizlip v. Alston, No. 1:14CV770, 2016 WL 4184426,
at *9 (M.D.N.C. Aug. 5, 2016) (analyzing pro se pretrial detainee’s
excessive force claim under the Fourteenth Amendment although his
complaint referenced only the Eighth Amendment).
-4-
Tex., 503 U.S. 115, 121 (1992) (internal quotation marks omitted).
Notably, an official’s discretionary acts, exercised in carrying
out official duties, do not necessarily represent official policy.
Gantt v. Whitaker, 203 F. Supp. 2d 503, 509 (M.D.N.C. 2002).
“Rather, the official must have ‘final authority’ over government
policy with respect to the action in question” to trigger official
capacity liability.
Id. (quoting Pembaur v. Cincinnati, 475 U.S.
469, 481-82 (1986)).
Here, Plaintiff alleges injury from Defendant’s actions, but
does not assert that Defendant acted pursuant to any official
policy or custom of either the Rockingham County Sheriff’s Office
or the Rockingham County Detention Facility where Defendant works.
(See generally Docket Entry 2.) Nor does the Complaint allege that
Defendant possesses “final authority” over any such policy.
(Id.)
Accordingly, the Court should dismiss Plaintiff’s claim against
Defendant in his official capacity.
II. Individual Capacity Claim
A. Adequacy of the Complaint
Defendant also argues that Plaintiff’s Complaint fails to
satisfy the pleading standards set forth in Rule 8 of the Federal
Rules of Civil Procedure (the “Rules”).
7.)
(See Docket Entry 15 at
Specifically, Defendant asserts that the Complaint fails to
(1) adequately state the grounds for the Court’s jurisdiction, and
-5-
(2) plead sufficient factual matter to survive Rule 12(b)(6)
dismissal.
(See id. at 7-8.)
These arguments lack merit.5
Rule 8 states that a pleading must contain “a short and plain
statement for the court’s jurisdiction.”
Fed. R. Civ. P. 8(a)(1).
Defendant contends that Plaintiff’s “mere use of a standard stock
form with a heading that references the ‘Civil Rights Act, 42
U.S.C. § 1983’” does not “fulfill the requirement set forth in
[Rule 8].”
(Docket Entry 15 at 7.)
Defendant does not (and
cannot) provide decisional authority to support this contention
(see id.), as courts do not take such a hyper-technical view of
Rule 8(a), see, e.g., Carr v. Virginia Dep’t of Veterans Servs.,
No. 3:13CV355, 2014 WL 1369467, at *1 (E.D. Va. Apr. 7, 2014) (“It
is true that [the pro se plaintiff] has not included an explicit
statement of jurisdiction in his Complaint, and that this omission
violates Fed.
R.
Civ. P.
8(a)(1).
. .
.
However,
given
a
reasonable construction, the Complaint seeks redress for violation
of federal law by an entity acting under the color of state law.
5
Defendant further contends that, by failing to mention the
Fourteenth Amendment in the Complaint, Plaintiff forfeited any
claim pursuant to that Amendment. This argument falls short as
well. First, a pro se complaint must “be liberally construed” and
“held to less stringent standards than formal pleadings drafted by
lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
quotation marks omitted). Second, Plaintiff’s misidentification of
the relevant constitutional provision does not constrain the Court.
See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)
(“When an issue or claim is properly before the [C]ourt, the
[C]ourt is not limited to the particular legal theories advanced by
the parties, but rather retains the independent power to identify
and apply the proper construction of governing law.”).
-6-
Thus, it is preferable to interpret the Complaint as if it purports
to assert federal jurisdiction.”).
Moreover, this Court directs
prisoners to use the referenced form for pursuing Section 1983
claims.
See, e.g., Perdue v. Page, No. 1:16CV1323, Docket Entry 5
(M.D.N.C. Jan. 12, 2017) (dismissing Plaintiff’s Section 1983 claim
with instructions to refile using proper 1983 forms); M.D.N.C. LR
7.1(d) (“All pro se complaints filed by state prisoners seeking
relief under 42 U.S.C. [§] 1983 shall be filed . . . on appropriate
forms . . . .”).
Finally, the factual allegations combined with
the Section 1983 reference in the Complaint satisfy Rule 8's
requirements.
Defendant’s Rule 8 argument thus fails.
Defendant also suggests, without factual or legal support,
that this Court should dismiss the Complaint for lack of personal
jurisdiction.
(See Docket Entry 15 at 7.)
This Court may exercise
personal jurisdiction over Defendant if (1) North Carolina’s longarm statute authorizes it and (2) the exercise of jurisdiction
comports
with
due
process
under
the
Fourteenth
Amendment.
Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th
Cir. 2014).
Plainly, this Court possesses personal jurisdiction
over Defendant.
Plaintiff alleges that the events giving rise to
the instant suit occurred in Reidsville, North Carolina, located
within the Middle District of North Carolina.
at
3-4.)
The
Complaint
does
not indicate
(See Docket Entry 2
whether
Defendant
qualifies as a domiciliary of North Carolina, but, even if he does
-7-
not, North Carolina’s long-arm statute authorizes jurisdiction over
Defendant in this instance, see N.C. Gen Stat. § 1-75.4(3), and
existing law clearly indicates that this Court’s exercise of
jurisdiction over Defendant would not offend due process, see
generally Hess v. Pawloski, 274 U.S. 352 (1927) (holding that
Massachusetts’s exercise of personal jurisdiction over an out-ofstate motorist involved in an accident in the state did not violate
the Fourteenth Amendment).
Moreover, Plaintiff’s Complaint pleads sufficient factual
matter to survive a motion to dismiss under Rule 12(b)(6).
A
motion to dismiss pursuant to Rule 12(b)(6) “tests the sufficiency
of a complaint,” but “does not resolve contests surrounding the
facts, the merits of a claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.3d 943, 952 (4th Cir.
1992). Accordingly, in reviewing a Rule 12(b)(6) motion, the Court
must “accept the facts alleged in the complaint as true and
construe them in the light most favorable to the plaintiff.”
Coleman v. Maryland Court of Appeals, 626 F.3d 187, 189 (4th Cir.
2010), aff’d sub nom., Coleman v. Court of Appeals of Md., 566 U.S.
30 (2012).
The Court must also “draw all reasonable inferences in
favor of the plaintiff.”
E.I. du Pont de Nemours & Co. v. Kolon
Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (internal quotation
marks omitted).
-8-
To survive a Rule 12(b)(6) motion, a complaint must contain
enough factual allegations “to ‘state a claim to relief that is
plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). To qualify as plausible, a claim needs sufficient factual
content to support a reasonable inference of the defendant’s
liability for the alleged misconduct.
Id. (citing Twombly, 550
U.S. at 556). The complaint need not contain detailed factual
recitations, but must provide “fair notice of what the . . . claim
is and the grounds upon which it rests.”
(ellipsis
in
original)
(internal
Twombly, 550 U.S. at 555
quotation
marks
omitted).
Moreover, a pro se complaint must “be liberally construed” and
“held to less stringent standards than formal pleadings drafted by
lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
quotation marks omitted), although the United States Court of
Appeals for the Fourth Circuit has “not read Erickson to undermine
Twombly’s requirement that a pleading contain more than labels and
conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th
Cir. 2008) (internal quotation marks omitted).
As to the particular claim in this case, the Due Process
clause of the Fourteenth Amendment protects pretrial detainees from
an officer’s use of excessive force.
U.S.
,
See Kingsley v. Hendrickson,
, 135 S. Ct. 2466, 2475 (2015).
In Kingsley, the
Supreme Court observed that “pretrial detainees (unlike convicted
-9-
prisoners) cannot be punished at all.”
S. Ct. at 2475.
Id.,
U.S. at
, 135
Accordingly, a pretrial detainee can “prevail [on
an excessive force claim] by showing that the [defendant’s] actions
are
not
‘rationally
related
to
a
legitimate
nonpunitive
governmental purpose’ or that the actions ‘appear excessive in
relation to that purpose.’”
2473
(quoting
Bell
v.
Id.,
Wolfish,
U.S. at
441
U.S.
, 135 S. Ct. at
520,
561
(1979)).
Ultimately, a standard of objective reasonableness applies to a
pretrial detainee’s excessive force claim.
Id.,
U.S. at
,
135 S. Ct. at 2472-73.6
The Supreme Court has provided several factors to analyze “the
reasonableness or unreasonableness” of the alleged force used:
the relationship between the need for the use of force
and the amount of force used; the extent of the
plaintiff’s injury; any effort made by the officer to
temper or to limit the amount of force; the severity of
the security problem at issue; the threat reasonably
perceived by the officer; and whether the plaintiff was
actively resisting.
Id.,
U.S. at
, 135 S. Ct. at 2473 (citing Graham v. Connor,
490 U.S. 386, 396 (1989)).
Although not exclusive, these factors
6
Kingsley’s “objective reasonableness” standard for
fourteenth-amendment excessive force claims abrogates the previous
standard used in the Fourth Circuit, which considered the officer’s
subjective intent as a factor. See Orem v. Rephann, 523 F.3d 442,
446 (4th Cir. 2008) (“In determining whether [this] constitutional
line has been crossed, a court must look to such factors as . . .
whether the force was applied in a good faith effort to maintain
and restore discipline or maliciously and sadistically for the very
purpose of causing harm.” (quoting Johnson v. Glick, 481 F.2d 1028,
1033 (2d Cir. 1973)) (brackets in original)).
-10-
“illustrate
the
types
of
objective
circumstances
potentially
relevant to a determination of excessive force.” Id. In addition,
“mere use of foul language . . . does not justify an objectively
reasonable police officer knocking the [detainee] down, jumping on
him, and breaking his nose. . . .
[U]se of ‘foul language’ in a
confined area . . . constitutes a mere ‘nuisance’ and not an
immediate threat to the safety of the officers or others . . . .”
Jones v. Buchanan, 325 F.3d 520, 530 (4th Cir. 2003).7
Against
this
backdrop,
the
first
Kingsley
factor
(the
relationship between the need for the use of force and the amount
of force used) weighs in Plaintiff’s favor.
Complaint,
Plaintiff
did
not
behave
in
reasonably require Defendant to use force.
4-5.)
a
According to the
manner
that
would
(See Docket Entry 2 at
Plaintiff complied with Defendant’s orders to pack up and
move to a different cell, and, even when Defendant “stepped into
[his] face,” Plaintiff “kept his hands low[,] placed by his sides
in a non threatening manner, and tried to back away.”
Assuming
the
situation
required
any
force
at
(Id. at 5.)
all,
“choke
slam[ming]” and “jabb[ing]” Plaintiff in his eye constitute a
disproportionate amount of force.
7
Although Jones involved an excessive force claim under the
Fourth Amendment, see Jones, 325 F.3d at 527, the Fourth Circuit
has relied on Jones in the context of a pretrial detainee’s
fourteenth-amendment excessive force claim, see Sawyer v. Asbury,
537 F. App’x 283, 297 (4th Cir. 2013).
-11-
The second Kingsley factor (the extent of the plaintiff’s
injury) “weighs somewhat in [D]efendant’s favor.” Greene v. County
of Durham Office of the Sheriff Dep’t, No. 1:14-CV-153, 2016 WL
4507355, at *10 (M.D.N.C. Aug. 26, 2016).
Plaintiff alleges that
he suffered bruising, scrapes and abrasions, and a possible sprain,
for which the nurse prescribed ibuprofen.
(See id. at 5, 11.)
Given that medical personnel deemed these injuries treatable with
ibuprofen, they appear to qualify as “relatively minor.”
Greene, 2016 WL 4507355, at *10
fact-finder
to
conclude
on
See
(“It is possible for a reasonable
this
record
that
suffered bruising, soreness, and a head injury.
[the
plaintiff]
Nonetheless, the
record reflects that these injuries were relatively minor, so [the
second Kingsley] factor weighs in favor of the defendants.”).
The third Kingsley factor (any effort made by the officer to
temper or to limit the amount of force) favors Plaintiff.
The
Complaint contains no indication that Defendant attempted to limit
the amount of force used.
(See Docket Entry 2 at 10 (alleging that
Defendant “was on top of” Plaintiff and “smiling[,] saying ‘you
ain’t ready for this’” while other officers restrained Plaintiff’s
hands).)
Finally, the fourth, fifth, and sixth Kingsley factors (the
severity of the security problem at issue, the threat reasonably
perceived by the officer, and whether the plaintiff actively
resisted) also favor Plaintiff. The Complaint lacks any suggestion
-12-
that Plaintiff failed to comply with Defendant’s orders or behaved
threateningly toward him.
Rather, it asserts that “[a]t no point
did Plaintiff resist or refuse [Defendant],” but instead that he
followed Defendant’s orders to “put his box down” (id. at 5), and
that Plaintiff “held [his] hands out to [his] side in a non
threat[en]ing way and tried to back away” when Defendant “[got] in
[his] face” (id. at 9).
In sum, all six Kingsley factors except the second clearly
weigh in
favor
of
Plaintiff.
Thus,
contrary
to
Defendant’s
contentions, the Complaint states a claim of excessive force under
the
Fourteenth
Amendment
and
sets
out
more
conclusions of law” (Docket Entry 15 at 9).
than
“arbitrary
Defendant’s Rule
12(b)(6) argument therefore fails.
B. Qualified Immunity
Defendant further asserts that qualified immunity shields him
from Plaintiff’s fourteenth-amendment claim.
(See id. at 9-11.)
“The doctrine of qualified immunity protects government officials
from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.”
Pearson v. Callahan,
555 U.S. 223, 231 (2009) (internal quotation marks omitted).
“The
protection extends to all but the plainly incompetent or those who
knowingly violate the law.”
Raub v. Campbell, 785 F.3d 876, 881
(4th Cir. 2015) (internal quotation marks omitted).
-13-
Under this
doctrine, “officials are not liable for bad guesses in gray areas;
they are liable for transgressing bright lines.”
Id. (internal
brackets and quotation marks omitted).
In evaluating qualified immunity, courts consider “(1) whether
the plaintiff has established the violation of a constitutional
right, and (2) whether that right was clearly established at the
time of the alleged violation.”
881 (4th Cir. 2015).
Raub v. Campbell, 785 F.3d 876,
As to the first prong, for reasons discussed
in the preceding subsection, Plaintiff has sufficiently alleged a
violation of his constitutional right to freedom from excessive
force.
With respect to the second prong of the qualified immunity
inquiry, the Court must deem a right “clearly established . . .
[if] it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.”
Saucier v. Katz, 533
U.S. 194, 202 (2001), overruled in part on other grounds, Pearson,
555 U.S. at 227. In other words, “[t]he unlawfulness of the action
must
be
apparent
assessed
reasonable
objectively
when
official
established law.”
1990).
from
the
charged
perspective
with
of
an
knowledge
of
Lopez v. Robinson, 914 F.2d 486, 489 (4th Cir.
“This is not to say that an official action is protected by
qualified
immunity
unless
the
very
action
in
question
has
previously been held unlawful, but it is to say that in the light
-14-
of pre-existing law the unlawfulness must be apparent.”
Anderson
v. Creighton, 483 U.S. 635, 640 (1987) (citation omitted).
In this case, the Complaint’s allegations, taken as true,
would show that Defendant violated Plaintiff’s clearly established
right.
In rejecting a defense of qualified immunity under similar
circumstances prior to the incident in question here, the Fourth
Circuit noted that controlling “precedent made it clear to any
reasonable officer that ‘mere use of foul language . . . does not
justify
an
objectively
reasonable
police
officer
knocking
arrestee down, jumping on him, and breaking his nose.’”
an
Sawyer v.
Asbury, 537 F. App’x 283, 297 (4th Cir. 2013) (quoting Jones, 325
F.3d at 530) (internal brackets omitted).
In this case, although
Defendant did not break Plaintiff’s nose, he allegedly knocked
Plaintiff
down,
choked
retaliation to insults.
circumstances,
reasonable
him,
and
struck
him
in
(See Docket Entry 2 at 4-5.)
the
face
officer
would
of
the
have
conduct qualified as unlawful.
Complaint
known
that
the
eye
in
Under these
indicates
Defendant’s
that
a
alleged
Therefore, at least at this stage
of the proceedings, the Court should deny Defendant’s qualified
immunity defense.
CONCLUSION
The Complaint does not state a claim against Defendant in his
official capacity.
However, the Complaint adequately states a
claim for relief against Defendant in his individual capacity, and
-15-
the
facts
as
alleged
do
not
entitle
Defendant
to
qualified
immunity.
IT IS THEREFORE RECOMMENDED that Defendant’s Motion to Dismiss
be granted as to the official-capacity claim and denied as to the
individual-capacity claim.
This 24th day of October, 2017.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
-16-
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