Stout v. Long et al

Filing 133

MEMORANDUM OPINION AND ORDER granting in part and denying in part 99 Individual Defendants' Motion to Dismiss. Signed by Honorable William P Johnson on 8/1/16. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

THERESA STOUT, as personal representative of the
Estate of Christopher Stout,
Plaintiff,
v.

Case No. 14-cv-427-WPJ

UNITED STATES OF AMERICA, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART INDIVIDUAL DEFENDANTS’
MOTION TO DISMISS
THIS MATTER comes before the Court upon Defendant Individual Defendants’ Motion
to Dismiss (Doc. 99), filed October 29, 2015. Having reviewed the parties’ briefs and applicable
law, the Court finds that Defendant’s motion is well-taken in part and not well-taken in part and
therefore GRANTED in part and DENIED in part, as herein described.
FACTUAL BACKGROUND
Given the filings to date, the Court assumes the reader’s familiarity with the factual
allegations underlying this action. However, the Court highlights relevant procedural
developments. The Individual Defendants filed a Motion to Dismiss (Doc. 99) on October 29,
2015. Plaintiff Theresa Stout (“Plaintiff”) filed a Response (Doc. 103) on November 30, 2015.
The United States filed a Reply (Doc. 106) on December 7, 2015. Oral argument on Defendant’
Motion to Dismiss was held on July 7, 2016.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a case
for failure to state a claim upon which relief can be granted. Rule 8(a)(2), in turn, requires a
complaint to contain “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Thus, “[t]o 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. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Although a court must accept all the complaint’s factual allegations as true, the same is not true
of legal conclusions. See id. Mere “labels and conclusions” or “formulaic recitation[s] of the
elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555. “Thus, in ruling on a
motion to dismiss, a court should disregard all conclusory statements of law and consider
whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the
defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
DISCUSSION
Plaintiff’s Second Amended Complaint (Doc. 96) brings a claim under 42 U.S.C. § 1983
against the Individual Defendants, and in the alternative, a claim under Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971). Plaintiff alleges that the Individual Defendants used
excessive force, failed to intervene and prevent the use of excessive force, and failed to render
aid to Plaintiff. The Individual Defendants argue that Plaintiff has failed to allege a plausible
claim and that Plaintiff has failed to allege specific acts on the part of particular individual
defendants. Additionally, the Individual Defendants argue that Plaintiff has failed to override the
presumption of qualified immunity, specifically failing to allege the actions of individual
defendants, allege a constitutional violation arising from the failure to intervene claim, and allege

2

a constitutional violation arising from the failure to render care claim. The Court addresses each
of these three arguments in turn.
I.

Plaintiff Has Failed to Allege a Plausible Claim
The Individual Defendants first argue that Plaintiff’s Second Amended Complaint

implicates that all of the Defendants agreed to a bizarre conspiracy theory to execute Christopher
Stout (“Mr. Stout”). The Individual Defendants continue that in order to believe Plaintiff’s
claims, one must believe that there was a conspiracy on the part of the Federal Task Force. They
conclude that because Plaintiff’s claims are essentially fictitious, the Complaint fails to state a
claim for relief.
Plaintiff responds that common sense shows that a breakdown in gun discipline and the
emotions of the moment plausibly caused the death of Mr. Stout. Plaintiff also notes that further
information regarding the details of the incident are peculiarly within the possession and control
of the Individual Defendants. Further, motive is not relevant, as the reasonableness of force used
in seizing a person is judged on whether the force was objectively reasonable, not on the basis of
the officers’ motives.
The Court finds that Plaintiff has met the Iqbal/Twombly standard and sufficiently alleged
the plausibility that the Individual Defendants used excessive force and had a reasonable
opportunity to intervene to stop the unreasonable use of deadly force by other officers.
II.

Plaintiff Has Failed to Allege Specific Acts
The Individual Defendants next argue that Plaintiff has failed to identify any specific

actions by specific Defendants that violated Mr. Stout’s constitutional rights and instead,
Plaintiff has grouped all Defendants into a “team effort” theory of liability. Additionally,
Plaintiff alleges that each of the Individual Defendants should be assumed to have engaged in the

3

exact same conduct, yet the claims against the Individual Defendants differ. The Individual
Defendants point to Stone v. Simone, in which the plaintiff alleged specific acts but did not
identify the specific defendants who committed those acts. See 610 Fed. App’x 751, 754 (10th
Cir. 2015) (unpublished).
Plaintiff responds that the Tenth Circuit has held that an individualized inquiry is not
necessary when “all defendants actively and jointly participated in the use of force.” Estate of
Booker v. Gomez, 745 F.3d 405, 422 (10th Cir. 2014). Given that all of the Individual
Defendants are alleged to have fired into the car, it is not necessary to determine which of the
officers fired the shot that resulted in Mr. Stout’s death. Further, it is alleged that none of the
Individual Defendants acted to end this excessive use of force. Plaintiff argues that Stone
involved a plaintiff who suffered distinct injuries by distinct actors, but failed to specify which
actors caused him distinct injuries. By contrast, Plaintiff alleges that each of the Individual
Defendants used excessive force at the same time and in the same manner.
The Court finds that Plaintiff has sufficiently alleged specific acts taken by specific
Defendants. Plaintiff’s allegations are more analogous to Booker than to Stone. In Stone, the
plaintiff used collective terms such as officers and defendants in alleging a 42 U.S.C. § 1983
claim, even though his factual allegations alleged that defendant Simone drew his weapon,
another officer fired his Taser at plaintiff, and he was subsequently assaulted a third time. See
610 Fed. App’x at 754. By contrast, in Booker, several officers restrained the plaintiff at the
same time in response to alleged insubordination. The Tenth Circuit concluded that all
defendants actively participated in a coordinated use of force on plaintiff, and thus, if excessive
force occurred, all defendants contributed to it. See 745 F.3d at 422. In this case, Plaintiff has
alleged that all officers fired their weapons at Mr. Stout at around the same time, and all failed to

4

intervene and taking steps to the prevent the use of force by other officers. The Court finds that
this case involves an indivisible injury that does not require Plaintiff to identify specific actions
taken by specific Defendants, such as which Defendant fired the fatal shot. Were the Court to
agree with the Individual Defendants, a plaintiff would essentially be barred from ever moving
beyond the motion to dismiss stage when a case involved multiple defendants and an indivisible
injury.
III.

Qualified Immunity
The Individual Defendants next argue that because Plaintiff has failed to establish that

any particular Individual Defendant violated a clearly established constitutional right, Plaintiff
has failed to override the presumption of qualified immunity.
A.

Plaintiff Cannot Show That Any Particular Defendant Used Excessive Force
The Individual Defendants argue that Plaintiff must be able to make individualized

allegations to establish that each Individual Defendant seized Christopher and that the use of
force by each Individual Defendant was objectively unreasonable. As Plaintiff has failed to
identify which Individual Defendant(s) actually made the alleged seizure, the Individual
Defendants lack notice, and this lack of notice precludes Plaintiff from overcoming the
presumption of immunity. Additionally, Plaintiff has failed to allege that any Individual
Defendant violated the Constitution.
Plaintiff argues that she alleges that each officer named as a Defendant used lethal and
excessive force. Plaintiff asserts that she has overcome the presumption of qualified immunity
based on the totality of the circumstances in Graham v. Connor, 490 U.S. 386 (1989), as the
severity of the crime was generally low and non-violent, Mr. Stout did not pose an immediate
threat to the safety of the officers, and he surrendered once his truck was stopped and therefore

5

was no longer actively resisting or evading arrest. Given Plaintiff’s allegations, which are
accepted as true at the Motion to Dismiss stage, no objectively reasonable cause existed for the
use of lethal force. Plaintiff concludes that she has alleged Fourth Amendment violations of
clearly established rights prohibiting the use of excessive and unreasonable force.
The Court finds that the Individual Defendants cannot avoid liability by requiring
Plaintiff to identify which officer made the fatal shot, information which may peculiarly be only
in the hands of the Individual Defendants. Plaintiff’s allegations, accepted as true, sufficiently
overcome the presumption of qualified immunity at the Motion to Dismiss stage based on the
totality of the circumstances in Graham v. Connor, 490 U.S. at 396–97.
B.

Plaintiff Improperly Alleges a Failure to Intervene
The Individual Defendants next argue that Plaintiff has not alleged sufficient facts

showing that the Individual Defendants had a realistic opportunity to prevent the harm from
occurring. Because Plaintiff pled that the alleged shooting happened immediately after the
Individual Defendants exited the car, there was no failure to prevent excessive force. For a
successful failure to intervene claim, Plaintiff must be able to show that the defendant officer: (1)
had a realistic opportunity to intervene to prevent harm from occurring; (2) that the alleged harm
was caused by the actions of other officers; and (3) that the defendant officer observed or had
reason to know that excessive force is being used, a citizen is unjustifiably arrested, or a
constitutional violation had been committed by law enforcement. See Vondrak v. City of Las
Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008). The Individual Defendants argue that Plaintiff
cannot show that a realistic opportunity to intervene existed. The furthest the Tenth Circuit has
gone to deny qualified immunity occurred where non-participants observed excessive force over
a period of three to five minutes. See Fogarty v. Gallegos, 523 F.3d 1157, 1164 (10th Cir. 2008).

6

Plaintiff agrees that the issue in claiming that an officer failed to intervene is whether an
officer had sufficient time to intercede or was capable of preventing the harm caused by another
officer. Plaintiff alleges that there was such an extended barrage of gunfire that the officers
emptied their clips and may have stopped and reloaded. Thus, each Individual Defendant had an
opportunity not only to stop shooting themselves, but to call for others to cease fire. Plaintiff
points to cases where the opportunity to intervene can be afforded to an officer in a relatively
brief moment. See, e.g., Matta v. City of Farmington, 791 F. Supp. 2d 1118, 1157 (D.N.M. 2011)
(finding that a reasonable jury could conclude that eleven seconds elapsing while another officer
pointed his gun at the plaintiffs was a realistic opportunity to intervene). The time horizon as to
what constitutes an opportunity to intervene is fact specific and ultimately a question for the jury.
See Herrera v. Santa Fe. Pub. Sch., 956 F. Supp. 2d 1191, 1228 (D.N.M. 2013). With all officers
ready to shoot when Mr. Stout raised his hands, the Individual Defendants had an opportunity to
prevent the use of deadly force, such as instructing Mr. Stout to get out of the truck. Further, the
Individual Defendants had a duty to take reasonable steps to prevent the assault by the other
officers from continuing. Thus, Plaintiff concludes that there was a realistic opportunity to
intervene to prevent the harm from occurring.
Defendants reply that Plaintiff has defined the right too generally to overcome the
presumption of qualified immunity. The question is not whether it was clearly established that a
law enforcement official must prevent another official’s use of excessive force, but whether there
is an obligation to intervene while another defendant was shooting.
The Court finds that Plaintiff has properly pled a claim of failure to intervene. The Tenth
Circuit has denied qualified immunity at the summary judgment stage for an alleged excessive
use of force lasting between three and five minutes, reasoning that the time period along with the

7

officer’s presence for the arrest supported a conclusion that the officer could have prevented the
plaintiff’s injuries. See Fogarty v. Gallegos, 523 F.3d 1157, 1164 (10th Cir. 2008). At the
Motion to Dismiss stage, the Court must accept all the Complaint’s factual allegations as true
and evaluate whether Plaintiff has stated a claim for relief that is plausible on its face. Plaintiff
alleges that there was such an extended barrage of gunfire that the officers emptied their clips
and may have stopped and reloaded. Thus, each Defendant had an opportunity not only to stop
shooting themselves, but to call for others to cease fire. Additionally, Plaintiff has alleged that
the officers were in relatively close proximity to one another, as their vehicles surrounded Mr.
Stout’s vehicle after one of the officers performed the tactical vehicle intervention. As alleged,
the excessive force used by the Individual Defendants was not short-lived or immediate. Further,
seventy-five shots were fired and only two were lethal: one bullet striking Mr. Stout and one
bullet striking his passenger, Stacey Stout. The Court finds that Plaintiff has plausibly alleged
that each Individual Defendant had an opportunity not only to stop shooting themselves, but to
call for others to cease fire.
C.

Plaintiff Improperly Alleges a Failure to Render Care
Finally, the Individual Defendants argue that Plaintiff has failed to allege sufficient facts

to bring their failure to render care claim beyond the Motion to Dismiss stage. In order to be
liable, each Individual Defendant must recognize an unreasonable risk and actually intend to
expose Plaintiff to those risks without regard for the consequences. See Christiansen v. City of
Tulsa, 332 F.3d 1270, 1281–82 (10th Cir. 2003). The Individual Defendants conclude that
Plaintiff’s generic allegations fail to meet this pleading standard.
Plaintiff responds that in limited circumstances, the Constitution imposes upon the State
affirmative duties of care and protection with respect to particular individuals. See DeShaney v.

8

Winnebago Cty. Dep’t of Soc. Serv., 489 U.S. 189, 200 (1989). The Tenth Circuit has held that a
proper danger creation claim requires Plaintiff to demonstrate that that: “(1) the charged state
entity and the charged individual actors created the danger or increased plaintiff’s vulnerability
to the danger in some way; (2) the plaintiff was a member of a limited and specifically definable
group; (3) defendants’ conduct put plaintiff at substantial risk of serious, immediate, and
proximate harm; (4) the risk was obvious or known; (5) defendants acted recklessly in conscious
disregard of that risk; and (6) such conduct, when viewed in total, is conscience shocking.”
Christiansen v. City of Tulsa, 332 F.3d 1270, 1281 (10th Cir. 2003). Plaintiff argues that her
claim satisfies each of the criteria: (1) when the Individual Defendants surrounded Mr. Stout’s
vehicle and pointed their guns, the risk to him was markedly increased and imminent; (2) Mr.
Stout was clearly identifiable as a person at risk; (3) the conduct of the Individual Defendants
placed Mr. Stout at the substantial risk; (4) the risk was obvious and known; (5) the Individual
Defendants acted recklessly in conscious disregard when they fired upon Mr. Stout; and (6) the
actions of the Individual Defendants shocked the conscience.
While originally pled as a failure to render care, both Plaintiff and the Individual
Defendants seem to have morphed the claim into a danger creation theory, with both parties
citing to Christiansen. The Court initially finds that Plaintiff has failed to satisfy the necessary
criteria as alleged to plead the failure to render care. Plaintiff alleges that “[O]nce the Individual
Defendants detained Mr. Stout, by way of leaving him physically incapacitated in a vehicle, the
Individual Defendants had a duty to render aid, or at least not to delay others from rendering aid”
(Doc. 96, at 9). Yet Plaintiff has made no allegations that the Individual Defendants failed to
render aid or delayed others from rendering aid. Indeed, the Second Amended Complaint states
that upon information and belief, Mr. Stout was pronounced dead at the scene. As to the danger

9

creation theory, the Court agrees with the Individual Defendants that Christiansen is inapplicable
because there, the Tenth Circuit analyzed a violation of the substantive due process clause under
the Fifth Amendment, while excessive force claims in the context of a seizure are analyzed under
the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 395 (1989). Additionally,
Plaintiff’s reliance on DeShaney v. Winnebago Cty. Dep’t of Soc. Serv. is inapplicable as that
case was decided under the Eighth Amendment. See 489 U.S. 189, 200 (1989). Thus, the Court
finds that Plaintiff’s claim regarding a failure to render care shall be dismissed.
CONCLUSION
The Court finds that Plaintiff’s failure to render care claim shall be DISMISSED with
PREJUDICE. However, the Court declines to dismiss Plaintiff’s claims regarding excessive
force and failure to intervene, and as such, they will remain in the litigation.
Accordingly, the Court finds that Defendants’ Motion to Dismiss is well-taken in part and
not well-taken in part, and therefore GRANTED in part and DENIED in part for the reasons
stated herein.
SO ORDERED

________________________________
UNITED STATES DISTRICT JUDGE

10