Cornett v. Ward et al

Filing 46

MEMORANDUM OPINION AND ORDER. For the reasons stated herein, the Court denies 37 Defendant Clayton Ward's Motion to Dismiss the Second Amended Complaint. (Ordered by Judge Karen Gren Scholer on 2/25/2020) (chmb)

United States District Court
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

TROJUAN CORNETT

§
§
§
§
§

v.
CLAYTON WARD

CIVIL ACTION NO. 3:18-CV-1395-S

MEMORANDUM OPINION AND ORDER

This Order addresses Defendant Clayton Ward's Motion to Dismiss the Second Amended
Complaint [ECF No. 37]. For the following reasons, the Court denies the Motion.
I.

BACKGROUND

As the present action is the subject of a prior opinion of this Court, see ECF No. 31, the
Court will discuss the background facts only to the extent necessary for this Memorandum Opinion
and Order.
On May 31, 2018, Plaintiff Trojuan Cornett ("Plaintiff') brought this action against
Defendant Clayton ("Ward"), an officer of the Balch Springs Police Department, under
42 U.S.C. § 1983 alleging excessive force, false arrest, failure to intervene, and conspiracy to
deprive Plaintiff of his constitutional rights. See ECF No. 1. On July 10, 2018, Ward filed his
first motion to dismiss, which the Court denied without prejudice after granting Plaintiff an
opportunity to replead. See ECF Nos. 7, 20. After Plaintiff filed his First Amended Complaint,
Ward filed his second motion to dismiss, which the Court granted in part and denied in part. See
ECF Nos. 21, 23, 31. Specifically, the Court granted Ward's motion as to Plaintiffs excessive
force, failure to intervene, and conspiracy claims without prejudice, but denied the motion as to
the false arrest claim. See ECF No. 31 at 15. The Court further granted Plaintiff leave to amend
the dismissed claims. See id.

Plaintiff timely filed a Second Amended Complaint, bringing three claims against Ward:
(I) an excessive force claim in Count I; (2) a false arrest claim in Count II; and (3) a conspiracy

claim in Count III. See ECF No. 35. On December 13, 2019, Ward filed the present Motion,
seeking the dismissal of the excessive force and conspiracy claims of the Second Amended
Complaint, which is now fully ripe and before the Court.
II.
A.

ANALYSIS
Excessive Force Claim

In his Motion, Ward seeks the dismissal of Plaintiffs excessive force claim for failure to
state a claim and under the doctrine of qualified immunity. See Br.~~ 3, 13-14. For the reasons
explained below, the Court denies the Motion as to the excessive force claim.
(1)

Rule 12(b)(6)

"To succeed on an excessive[Jforce claim, the plaintiff must show'(!) injury, (2) which
resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness
of which was clearly unreasonable."' DeJ;.ates v. Podany, 789 F. App'x 427,432 (5th Cir. 2019)
(quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)). To satisfy the first element of
the claim, a plaintiff must demonstrate that the conduct resulted in more than de minimis injury.
See Westfall v. Luna, 903 F.3d 534,548 (5th Cir. 2018) (citing Brooks v. City ofW Point, 639 F.

App'x 986, 990 (5th Cir. 2016)). Where injuries from laser or pepper spray are concerned, a
plaintiff must allege some long-term effect and not mere pain. See Martinez v. Nueces Cty., Civ.
A. No. 2:!3-CV-178, 2015 WL 65200, at *10 (S.D. Tex. Jan. 5, 2015) (collecting authorities).
Here, the Court finds that Plaintiff pleaded sufficient facts as to the first element of his excessive
force claim because he alleged that the laser permanently scarred him and caused him to limp for
several weeks. See Second. Am. Comp!.

11~ 32-34, 72-75. Thus, the Court finds that the laser

resulted in more than de minim is injury.
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The second and third elements are "intertwined and [so are addressed] together." Deji-ates,
789 F. App'x at 432 (citing Darden v. City of Fort Worth, 880 F.3d 722, 728 (5th Cir. 2018)).
"Fourth Amendment jurisprudence has long recognized that the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of physical coercion or
threat thereof to effect it." Graham v. Connor, 490 U.S. 386,396 (1989) (citation omitted). For
this reason, "[ e]xcessive force claims are necessarily fact-intensive; whether the force used is
'excessive' or 'unreasonable' depends on 'the facts and circumstances of each particular case."'
Ayala v. Aransas Cty., 777 F. App'x 100, 104 (5th Cir. 2019) (quoting Deville, 567 F.3d at 167).

"Factors to consider include 'the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight."' Deville, 567 F.3d at 167 (quoting Graham v. Connor,
490 U.S. 386, 396 (1989)). "Even if [an individual is] not under arrest, ' [o]fficers may consider a
suspect's refusal to comply with instructions ... in assessing whether physical force is needed to
effectuate the suspect's compliance."' Westfall v. Luna, 903 F.3d 534,548 (5th Cir. 2018) (first
alteration added) (quoting Darden v. City of Fort Worth, 880 F.3d 722, 729 (5th Cir. 2018)).
Viewing the Second Amended Complaint in the light most favorable to Plaintiff, the Court
finds that Plaintiff pleaded sufficient facts to show that his injuries resulted directly and only from
a use of force that was clearly excessive, and the excessiveness of which was clearly unreasonable.
The circumstances, as described in the Second Amended Complaint, demonstrate that Plaintiff
was not engaged in any crime and did not pose any risk to the safety of the officers or others. See
Deville, 567 F.3d at 167. According to Plaintiff, Ward attempted to arrest Plaintiff while Plaintiff

was at his home. See Second Am. Comp!.~~ 16, 19. No exigency warranted immediate action by
Ward, as evidenced by the fact that Ward had walked away from Plaintiffs residence, had the time

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to question Plaintiffs neighbors, and even drove away from the residence. 1 See id.

,r,r 10-11,

13.

Moreover, Plaintiffs daughter affirmatively notified Ward that "she was okay" during Ward's first
interaction with Plaintiff, and took shelter behind her father following Ward's return.
id.

See

ir,19, 18.
Although Plaintiff did attempt to evade arrest, see id.

,r,r 21-22,

the Second Amended

Complaint states that "Ward's hand hovered over his taser" before Plaintiff attempted to escape,
that "Ward did not attempt to negotiate with [Plaintiff] or give warnings that he would laser him,"
and that Plaintiff "had already fallen to the ground when ... Ward shot him with his taser." Id.

,r,r 19, 21-22, 25, 26.

Taken in the light most favorable to Plaintiff, as is required at this stage of

the litigation, these factual allegations suggest that Ward did not appear to respond "with
'measured and ascending' actions that corresponded to [Plaintiffs] escalating ... physical
resistance." Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir. 2012). Rather, Plaintiffs
allegations show that Ward suddenly attempted to apprehend Plaintiff and resorted to his taser
soon after Plaintiff showed any sign ofresistance. See D~fi'ates, 789 F. App'x at 433 ("[A]n officer
cannot, in the face of minimal to no resistance, immediately resort to overwhelming force when
stopping a suspect for a minor [infraction]."). Accordingly, the Court finds that Plaintiff alleged
sufficient facts to state an excessive force claim.
(2)

Qualified Immunity

Furthermore, the Court denies Ward's Motion as to the excessive force claim on qualified
immunity grounds. When a defendant raises a qualified immunity defense, the plaintiff has the

1

Ward contends that the force used was justified pai1ly "due to [P]laintiffs intoxication and aggressive demeanor."
Br.~ 14. As the Court previously explained, this argument requires the Court to improperly consider facts in a party's
brief. See ECF No. 31 at 10 (citing, among other authorities, Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999)).
"Should discovery lead to the conclusion that" the force was justified and "there is no genuine issue of fact that could
suppo11 [an excessive force] claim, there will be no procedural or substantive barrier to the filing of a motion for
summary judgment on the issue of qualified immunity." Khansari v. City of Houston, 14 F. Supp. 3d 842, 861 (S.D.
Tex. 2014).

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burden of demonstrating the inapplicability of that defense. Cantrell v. City of Murphy, 666 F.3d
911, 918 (5th Cir. 2012). To meet this burden, the plaintiff must show "(I) that the official violated
a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the
challenged conduct." Whitley v. Hanna, 726 F.3d 631,638 (5th Cir. 2013) (quoting Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011 )). When considering whether a defendant is entitled to qualified

immunity, the Court "must ask whether the law so clearly and unambiguously prohibited his
conduct that 'every reasonable official would understand that what he is doing violates [the law]."'
Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (alteration in original) (emphasis omitted)

(quoting al-Kidd, 563 U.S. at 741).
Here, "[ w]hen the arrest occurred, [Plaintiff! had a clearly established right to be free from
excessive force," Deville, 567 F.3d at 169 (citing Tarver v. City of Edna, 410 F.3d 745, 753-54
(5th Cir. 2005)), and, as explained above, Plaintiff alleged sufficient facts to demonstrate, in the
context of a motion to dismiss, that Ward violated that right. Viewing the Second Amended
Complaint in the light most favorable to Plaintiff, the Court finds that "a reasonable officer would
have known that the degree of force was unconstitutionally excessive," id., because Plaintiff
alleges that Ward resorted to a laser without attempting to apprehend Plaintiff without it, see
Second Am. Comp!.~~ 19, 21-22, 25, 26, and Plaintiff"had not committed any criminal offense,"
~

Second Am. Comp I.
or others, see id.

~~

with his laser," id.

21, "was not being lawfully detained," id., did not pose a danger to himself

9-11, 13, 18, and "had already fallen to the ground when ... Ward shot him

~

25. Accordingly, the Court denies Ward's Motion as to the excessive force

claim.
B.

Conspiracy Claim

Ward contends that Plaintiffs conspiracy claim should be dismissed for three reasons:
(I) Plaintiff did not plead an underlying deprivation of civil rights; (2) Plaintiff did not plead

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sufficient facts to establish the existence of an agreement; and (3) the intracorporate conspiracy
doctrine bars the conspiracy claim. See Br. ~~ 15-17. The Court disagrees.
To state a conspiracy claim under§ 1983, a plaintiff must allege facts to support"(!) the
existence of a conspiracy involving state action" and "(2) a deprivation of civil rights in
futiherance of the conspiracy by a party to the conspiracy." Shaw v. Villanueva, 918 F.3d 414,
419 (5th Cir. 2019) (quoting Pfannstiel v. City of Nfarion, 918 F.2d 1178, 1187 (5th Cir. 1990)).
With regards to the first element, a plaintiff must plead facts showing an agreement between two
or more persons or entities. See Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911,914
(5th Cir. 1953); Rodriguez v. Neeley, 169 F.3d 220, 222 (5th Cir. 1999) ("A conclusory allegation
of conspiracy is insufficient." (citation omitted)).

Here, "Plaintiff ... pleaded circumstantial

facts" that make it plausible that Ward "acted in conceti with [Valentin] to" fabricate evidence and
justify Ward's use ofa laser. Woolen v. Roach, Civ. A. No. 4:18-cv-380, 2019 WL 7067136, at
*18 (E.D. Tex. Dec. 23, 2019). According to Plaintiff, Ward and Valentin jointly "fabricated
evidence in [a] police report," "came up with a fabricated story," 2 and claimed that their body
cameras were destroyed or malfunctioned. Second Am. Comp!. ~~ 44, 45, 50, 54-55. Viewing
the Complaint in the light most favorable to Plaintiff, these allegations are sufficient to establish
the existence ofan unlawful agreement. See Zervas v. Faulkner, 861 F.2d 823,836 (5th Cir. 1988)
("[A] conspiracy is usually proved by circumstantial evidence.").
Similarly, the Court finds that the "intracorporate conspiracy doctrine" does not preclude
a finding of an agreement between two or more person. Under the intracorporate conspiracy
doctrine, a plaintiff cannot state a conspiracy claim against police officers of the same department,

2

Specifically, Plaintiff contends that Ward and Valentin agreed to falsely state in their repo1t that Plaintiff "struck
Officer Ward in the chest, with an open palm strike with enough force to send him to the ground" and that Plaintiffs
"daughter had a look of fear on her face." Second Am. Comp!. ~~ 44, 45. These are specific, factual allegations
demonstrating the alleged fabrication. See Cantzi v. Moody, 933 F.3d 414,420 (5th Cir. 2019).

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because the officers and the department are a single entity that is "incapable of conspiring with
itself for the purposes of§ 1983." Thompson v. City of Galveston, 979 F. Supp. 504, 511 (S.D.
Tex. 1997) (citations omitted); see also Ezell v. Wells, No. 2:15-CV-00083-J, 2015 WL 4191751,
at *18 (N.D. Tex. July 10, 2015) (collecting authorities). The intracorporate conspiracy doctrine
may not apply, however, where the agents engage in acts that exceed the bounds of their authority.
See, e.g., Collins v. Bauer, Civ. A. No. 3:11-CV-00887-B, 2012 WL 443010, at *8-9 (N.D. Tex.

Jan. 23, 2012) (finding that the intracorporate conspiracy doctrine did not apply where the officers
"engaged in unauthorized acts" by "mov[ing] Plaintiff out of the dashboard camera's view, ...
tamper[ing] with evidence, and fil[ing] a false police report in an effort to conceal their actions").
The allegations of evidence tampering and other misconduct contained within the Second
Amended Complaint are sufficient to deny the application of the intracorporate conspiracy
doctrine at the motion to dismiss stage, as the Court must accept as true Plaintiffs factual
allegations.
Finally, the Court finds that Plaintiff adequately pleaded the deprivation of a civil right in
furtherance of the conspiracy by Ward-an alleged party to the conspiracy. Plaintiff brought a
claim for false arrest, see Second Am. Campi.

,r,r 76-83, and the Court denied Ward's motion to

dismiss this claim, see ECF No. 31 at 8-11. The alleged fabrication of evidence supports the same
false arrest claim. See Can/11, 933 F.3d at 420 n.2 (citing Jvfanuel v. City ofJoliet, 137 S. Ct. 911,
921-22 (2017)). Accordingly, the Court finds that Plaintiff adequately pleaded both elements ofa
§ 1983 conspiracy claim to survive a motion to dismiss. See Shaw, 918 F.3d at 419 (quoting

Pfannsliel, 918 F.2d at 1187).

III.

CONCLUSION

For the reasons discussed above, the Court denies Ward's Motion to Dismiss the Second
Amended Complaint.
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SO ORDERED.

✓~~

SIGNED February 25, 2020.

KAREN GREN SCHOLER
UNITED STATES DISTRICT JUDGE

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