Moquett v. Town of Rock Island et al

Filing 38

ORDER by Judge Ronald A. White denying motion to dismiss filed 3/31/15 ( 21 Motion to Dismiss Case for Failure to State a Claim) andfinding as moot motion to dismiss filed 2/24/15 ( 11 Motion to Dismiss) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
CASS DANIEL MOQUETT,
Plaintiff,
v.
THE TOWN OF ROCK ISLAND;
BRIAN SIMPSON,
Defendants.

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Case No. CIV-14-531-RAW

ORDER
Before the court is the motion of the defendants to dismiss. Plaintiff filed his
complaint on December 5, 2014. Defendants filed a motion to dismiss on February 24, 2015.
On the next day, the court entered an order stating that plaintiff could file an amended
complaint contemporaneous with its response to the motion. Plaintiff did so, filing an
amended complaint on March 13, 2015. Defendants then filed a motion to dismiss directed
at the amended complaint.1
The amended complaint alleges that on or about January 10, 2014, plaintiff went to
a bar in Rock Island, Oklahoma, to give a friend a ride home. As the evening progressed,
plaintiff engaged in conversation at a convenience store with Brian Haynes. They were
approached by defendant Simpson, a Rock Island police officer. Simpson determined that
Haynes was a convicted felon who had violated his probation by patronizing a bar. Simpson

1

An amended complaint supersedes an original complaint and renders the original complaint without
legal effect. Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir.2007). Therefore, the original motion to dismiss
(#11) is deemed moot, although the court considers its content and attachments to the extent these also relate
to the amended complaint.

placed Haynes under arrest. He did not place plaintiff under arrest, but directed him not to
leave the scene.
Plaintiff nevertheless did leave the scene in his vehicle. Simpson followed until
plaintiff pulled over and exited his vehicle. Simpson twice in succession used his taser on
plaintiff. In the amended complaint, plaintiff alleges claims of (1) excessive use of force
against Simpson; (2) municipal liability against the Town of Rock Island; (3) negligent
training and supervision against Rock Island; (4) false arrest against Simpson, and (5)
negligence against both defendants.
Initially, defendants argue that the fifth claim of negligence should be stricken
because it did not appear in the original complaint. Defendants contend the court did not
grant leave to add additional claims. This is correct, but the court agrees with plaintiff that
Rule 15(a)(1)(B) F.R.Cv.P. permits the filing of an amended complaint as a matter of course
within 21 days after service of a Rule 12(b) motion. The amended complaint was filed
within this time period. Therefore, the additional negligence claim will not be stricken.
In considering a motion pursuant to Rule 12(b)(6), the court accepts all well-pleaded
factual allegations as true and views them in the light most favorable to the plaintiff as the
nonmoving party. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir.2014). All that is required
is “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Rule 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

2

Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). 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. Shields, 744 F.3d at 640.
Defendant Simpson seeks dismissal of the first claim on the grounds that (1) plaintiff
has insufficiently alleged excessive force and (2) Simpson is entitled to qualified immunity.2
A district court evaluating an excessive force claim must first isolate the precise
constitutional violation with which the defendant is charged because the choice of
amendment matters. Estate of Booker v. Gomez, 745 F.3d 405, 419 (10 th Cir.2014). Any
force leading up to and including an arrest may be actionable under the Fourth Amendment’s
prohibition against unreasonable seizures. Id. Thus, it is the Fourth Amendment which is
applicable here. An excessive force claim brought under the Fourth Amendment depends
on the objective reasonableness of the defendant’s actions. Id.
Under the applicable standard, the question is whether the officer’s actions are
objectively reasonable in light of the facts and circumstances confronting him without regard
to his underlying intent or motivation. Morris v. Noe, 672 F.3d 1185, 1195 (10 th Cir.2012).
In determining whether the use of force is reasonable in a particular situation, the court
considers (1) the severity of the crime at issue, (2) whether the suspect poses an immediate

2

Qualified immunity applies only when government defendants are sued in their individual
capacities, as Simpson is here. See Fisher Sand & Gravel Co. v. Giron, 465 Fed.Appx. 774, 778-79 (10th
Cir.2012).

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threat to the safety of the officer and others, and (3) whether the suspect is actively resisting
arrest or evading arrest by flight. Henry v. Storey, 658 F.3d 1235, 1239 (10th Cir.2011).
A plaintiff may only recover on an excessive force claim if he shows (1) that the
officer used greater force than would have been reasonably necessary to effect a lawful
seizure, and (2) some actual injury caused by the unreasonable seizure that is not de minimis,
be it physical or emotional. Aldaba v. Pickens, 777 F.3d 1148, 1161 n.3 (10 th Cir.2015).3
“Because the reasonableness inquiry overlaps with the qualified immunity analysis, a
qualified immunity defense [is] of less value when raised in defense of an excessive force
claim.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1314 (10 th Cir.2002).
Once the qualified immunity defense is asserted, the plaintiff bears a heavy two-part
burden to show, first, the defendant’s actions violated a constitutional or statutory right and,
second, that the right was clearly established at the time of the conduct at issue. Thomas v.
Kaven, 765 F.3d 1183, 1194 (10th Cir.2014). Simpson argues that the allegations are
insufficient as to both prongs. Although qualified immunity defenses are typically resolved
at the summary judgment stage, district courts may grant motions to dismiss on the basis of
qualified immunity; such a motion, however, subjects the defendant to a more challenging
standard of review. Id. At the motion to dismiss stage, it is the defendant’s conduct as
alleged in the complaint that is scrutinized for “objective legal reasonableness.” Id.

3

Plaintiff alleges that “[t]he tasing caused severe pain to such an extent the Plaintiff defecated.”
(Amended Complaint, ¶16). This is a sufficient allegation of injury for purposes of the present motion.

4

Under that standard, the court denies the motion. In Cavanaugh v. Woods Cross City,
625 F.3d 661, 667 (10th Cir.2010), the court held it was clearly established that a police
officer “could not use his Taser on a nonviolent misdemeanant who did not pose a threat and
was not resisting or evading arrest without first giving a warning.” See also Casey v. City
of Federal Heights, 509 F.3d 1278, 1285 (10th Cir.2007)(“The absence of any warning – or
of facts making clear that no warning was necessary – makes the circumstances of this case
especially troubling”). “Under prevailing Tenth Circuit authority, ‘it is excessive to use a
taser to control a target without having any reason to believe that a lesser amount of force –
or a verbal command – could not exact compliance.’” Estate of Booker v. Gomez, 745 F.3d
405, 424 (10th Cir.2014)(quoting Casey, 509 F.3d at 1286). It is alleged that Simpson used
the taser on plaintiff twice and failed to give any warning. (Amended Complaint, ¶15).
Simpson argues that plaintiff was in fact fleeing, as evidenced by driving off in his
car. At that time, however, plaintiff was not under arrest and had not been threatened with
arrest. Simpson had simply instructed him not to leave the scene.4 The factor articulated in
Graham v. Connor, 490 U.S. 386, 396 (1989) is not “fleeing” but “evading arrest by flight.”
Simpson provides documentation (of which he asks the court to take judicial notice) that
plaintiff pled nolo contendere to a charge of eluding a police officer, in violation of 21 O.S.

4

Simpson has not argued that disobeying a police officer is itself a criminal violation under
Oklahoma law. Under the standard appropriate to a Rule 12(b)(6) motion, the court has not made its own
inquiry. Simpson has cited 21 O.S. §540, which describes a misdemeanor offense for delaying or obstructing
a police officer. Simpson did not arrest the plaintiff for this offense, unlike the officer (based on different
actions) in Koch v. City of Del City, 660 F.3d 1228 (10th Cir.2011), and it is a matter of speculation whether
that statute encompasses plaintiff’s conduct.

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§540A.5 The court does take judicial notice of the documents, but does not share Simpson’s
conclusion. The offense as described in §540A(A) involves one who fails to stop one’s
vehicle after receiving “a visual and audible signal” (i.e., red light and siren) from a police
officer, but instead willfully increases the speed or extinguishes the lights of the vehicle in
an attempt to elude the officer. In other words, the offense can only take place when two
vehicles are involved and certain specified conduct takes place. The act of a citizen on foot
getting in his car and driving off after an officer has directed him to stay, without more, is
not “evading arrest by flight” or “actively resisting arrest.” The court finds the third Graham
factor described above weighs slightly in plaintiff’s favor.
As to the first factor, Simpson contends that the severity of the crime is great. The
court disagrees. Violation of §540A(A) is a misdemeanor under Oklahoma law. Had
plaintiff been charged with violation of §540A(B), a different situation would present itself,
under both the first and second (i.e., immediate threat to safety of others) Graham factors.
Violation of the latter subsection constitutes a felony, and involves a violation of subsection
A “in such manner as to endanger any other person.” The court documents accompanying
Simpson’s original motion make plain (from the “range of punishment” section) that it was
§540A(A) with which plaintiff was charged. See #11, Ex. 5.6
5

Although a court generally must convert a motion to dismiss to one for summary judgment when
the court considers matters outside the pleadings, a court need not do so if it takes judicial notice of facts
which are a matter of public record. Rose v. Utah State Bar, 471 Fed. Appx. 818, 820 (10th Cir.2012).
6

Simpson asks the court to employ a categorical approach, citing a statement from United States v.
McConnell, 605 F.3d 822 (10th Cir.2010). That case deals with the United States Sentencing Guidelines and
is inapposite.

6

Finally, the motion suggests that plaintiff leaving the scene would permit a reasonable
officer to suspect the plaintiff of attempting to avoid arrest related to his intoxication. This
is speculation, upon which the court need not rely if a factual record is made through
discovery. That is to say, Officer Simpson may testify for himself what he saw and what he
reasonably inferred. “[T]he reasonableness inquiry in an excessive-force case is factspecific.” King v. Hill, 2015 WL 3875551, *6 (10th Cir.2015). The present record contains
insufficient facts to find qualified immunity applicable. For the reasons stated, plaintiff’s
amended complaint survives the Rule 12(b)(6) motion.7 Defendant Simpson may renew his
argument at a later time. “[T]he denial of qualified immunity at the motion to dismiss stage
does not bind the court at the summary judgment stage.” Stoneciper v. Valles, 759 F.3d
1134, 1148 n.9 (10th Cir.2014).
Plaintiff’s second claim alleges municipal liability on the part of Rock Island. The
amended complaint alleges that “Rock Island had a policy or engaged in a pattern and
practice of conduct that led to the violations of the Plaintiff’s civil rights.”

(¶40).

Additionally, “prior incidents of the use of excessive force evidence a pattern and practice
of unlawful conduct. Further, Simpson’s widespread use of the unlawful and the excessive
use of force constituted the policy of Rock Island.” (¶41). Moreover, “[p]rior to the incident
with the Plaintiff in January, there was evidence of prior incidents where Simpson engaged

7

To cite another example, the original motion to dismiss states that Simpson “tased” plaintiff twice
in the back after plaintiff exited his vehicle and was running away. (#11 at 8). The amended complaint, by
contrast, states that plaintiff “did not resist arrest nor did attempt to flee.” [sic] (¶14). For purposes of a Rule
12(b)(6) motion, the allegations in the Amended Complaint control.

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in the excessive use of force in violation of the Fourth Amendment, with those incidents
being made known to the [town of] Rock Island.” (¶17).
Specifically, ¶18 alleges a prior incident of excessive force against another individual.
In ¶19-20, it is alleged that the incident was made known to members of “the governing
body” of Rock Island. In ¶21, it is alleged that the town took no corrective action against
Simpson despite its knowledge. Another incident of excessive force by Simpson is alleged
in ¶¶24-25 as well as knowledge on the part of Rock Island. Still another incident of
excessive force by Simpson is alleged in ¶¶26-27. Plaintiff alleges in ¶32 that “[n]o action
was taken against Simpson for his prior unlawful use of force nor were any steps taken to
prevent Simpson’s unlawful conduct from occurring in the future.” 8
To establish a claim for damages under §1983 against municipal entities or local
governmental bodies, the plaintiff must prove (1) the entity executed a policy or custom (2)
that caused the plaintiff to suffer deprivation of a constitutional or other federal rights. Moss
v. Kopp, 559 F.3d 1155, 1168 (10th Cir.2009). The court finds plaintiff’s allegations
sufficient to survive a Rule 12(b)(6) motion.
To merely state that a municipality has a policy or custom is not enough; a plaintiff
must allege facts demonstrating the municipality’s policy, such as examples of past situations
where law enforcement officials have violated constitutional rights.” Jackson v. City of

8

This appears to be inconsistent with the allegation in ¶30 that “[t]he Plaintiff believes Simpson was
fired for this incident by his supervisor the then chief of police.” This is a matter to be addressed in
discovery and perhaps by motion for summary judgment. It is alleged in ¶31 that shortly thereafter Simpson
was reinstated as an employee of Rock Island and was made chief of police.

8

Highland Park, 2015 WL 3409013, *5 (E.D.Mich.2015). An individual plaintiff can provide
fair notice by inter alia describing (1) past incidents of misconduct by the defendant to
others; (2) multiple harms that occurred to the plaintiff himself; (3) the involvement of
multiple officials in the misconduct; or (4) the specific topic of the challenged policy. Carter
v. Diamons URS Huntsville, LLC, 2015 WL 3629793 (S.D.Tex.2015). Plaintiff has done so.
The inference that a policy existed may be drawn from [allegations] that the municipality had
notice of but repeatedly failed to make any meaningful investigation into charges that police
officers had used excessive force. Poventud v. City of New York, 2015 WL 1062186, *13
(S.D.N.Y.2015).
Plaintiff alleges that Simpson’s widespread use of excessive force constitutes the
Rock Island policy, but this is not strictly correct in that §1983 rejects the tort principle of
respondeat superior and does not subject such entities to vicarious liability for the acts of
their employees. Shue v. Laramie County Detention Center, 594 Fed.Appx. 941, 944 (10 th
Cir.2014). A plaintiff alleging that he has been injured by the actions of a municipal
employee can establish municipal liability by showing that a policymaking official ordered
or ratified the employee’s actions – either expressly or tacitly. In other words, a “policy of
inaction” may exist. See Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir.2012).
Plaintiff’s third claim is also against Rock Island under §1983 for negligent training
and supervision. The Amended Complaint alleges that “Rock Island was negligent in its
training and supervision of Simpson and other employees as it relates [to] the treatment of

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the Plaintiff.” (¶45). Further, “said negligence amounted to deliberate indifference in that
there had been other instances of the use of excessive force.” (¶46).
One of the bases for establishing a policy for purposes of §1983 liability is the failure
to adequately train or supervise employees, so long as that failure results from “deliberate
indifference” to the injuries that may be caused. Bryson v. City of Oklahoma City, 627 F.3d
784, 788 (10th Cir.2010). Generally, this requires showing the municipality has actual or
constructive notice that its action or failure to act is substantially certain to result in a
constitutional violation, and it consciously or deliberately chooses to disregard the risk of
harm. Notice can be established in most instances by proving the existence of a pattern of
tortious conduct. In a narrow range of circumstances, it may be found if a violation of
federal rights is a highly predictable or plainly obvious consequence of a municipality’s
action or inaction, such as when a municipality fails to train an employee in specific skills
needed to handle recurring situations. Id. at 789. Again, the court finds the allegations
sufficient to state a claim.9
Count IV alleges false arrest on the part of Simpson. The constitutional right at issue
is the Fourth Amendment right to be free from unreasonable seizures. Cummisky v. Mines,
248 Fed.Appx. 962, 965 (10th Cir.2007). Stating a false arrest claim under the Fourth
Amendment requires the plaintiff to plausibly allege that the arrest was not supported by

9

Even after Twombly, the Tenth Circuit has described dismissal under Rule 12(b)(6) as “a harsh
remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but
also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir.2009).

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probable cause. Wesley v. Campbell, 779 F.3d 421, 429 (6th Cir.2015). Plaintiff alleges he
was arrested on “baseless charges.” (¶49). The court finds this a sufficient allegation to
survive a Rule 12(b)(6) motion, absent other considerations. The court has taken judicial
notice of the court documents provided, but plaintiff has pointed out some ambiguity as to
the documents regarding CM 2014-643. Plaintiff asserts he bases his claim for false arrest
on those charges, not CM 2014-36 (eluding a police officer). See #16 at 4. Out of an
abundance of caution, given the posture of this case, the court will allow Count IV to proceed
as well.
It is the order of the court that the motion to dismiss (#21) is denied. The earlier
motion to dismiss (#11) is moot.
ORDERED THIS 29th DAY OF JUNE, 2015.

Dated this 29th day of June, 2015.

J4h4i0

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