Turner v. Driver et al
Filing
29
Memorandum Opinion and Order granting 17 Dismiss for Failure to State a Claim filed by Grinalds, 20 Dismiss for Failure to State a Claim filed by Dyess, 19 Motion to Dismiss filed by Driver: The court ORDERS that the motions to dismis s of Driver, Grinalds, and Dyess, be, and are hereby, granted, and that plaintiff's claims against those defendants be, and are hereby, dismissed. The court determines that there is no just reason for delay in, and hereby directs, entry of final judgment as to the dismissal of plaintiff's claims against Driver, Grinalds, and Dyess. The court further ORDERS that from this point forward City of Fort Worth is the only defendant in this action and that the style of this action shall be "Phillip Turner, Plaintiff, v. City of Fort Worth, Defendant." (Ordered by Judge John McBryde on 2/19/2016) (trs)
U.S. ll!STIUCT COURT
NORTHERN DISTI\ICTOI'TEXAS
IN THE UNITED STATES DISTRIC
NORTHERN DISTRICT OF TEX
FORT WORTH DIVISION
PHILLIP TURNER,
vs.
LIEUTENANT DRIVER, ET AL.,
Defendants.
. CLERK, U.S. DISTRICT COUHT
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Plaintiff,
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~r1 r~~;;:lsl
Dy _ _-..c=--l)qHI!y
NO. 4:15-CV-824-A
MEMORANDUM OPINION
and
ORDER
Carne on for consideration the motions to dismiss filed in
the above-captioned action by defendants Lieutenant Driver
("Driver"), Officer Grinalds, Badge 3825 ("Grinalds"), and
Officer Dyess, Badge 2586 ( "Dyess•)
(collectively •rnovants•)
Plaintiff, Phillip Turner, has responded.
1
Having considered the
motions, the response, rnovants• replies, the first amended
complaint, and the applicable legal authorities, the court
concludes that the motions should be granted.
1
The movants filed separate motions to dismiss plaintiffs claims. Because the comt concludes
that all movants are entitled to qualified immunity for the same reason, the court deals with all three
motions in this memorandum opinion and order. This memorandum opinion and order does not address
plaintiff's claims against the City ofF ott Wmth as it did not file a motion to dismiss. ·
I.
Background
In summary form plaintiff made the following allegations in
his first amended complaint:
Plaintiff alleged that he was arrested in violation of his
First Amendment right to videotape a police station and the
activity at the station, and his right to refuse to identify
himself when officers from the station asked him to do so.
According to plaintiff, he was conducting his videotape activity
while standing on a public sidewalk across the street from the
police station.
Turner and Grinalds came from the station and
asked plaintiff to identify himself.
When plaintiff refused to
provide identification, he was handcuffed and placed in the back
of a police car.
Turner and Grinalds requested that a supervisor
come to the scene, and Driver responded.
Driver also requested
identification from plaintiff. Plaintiff again refused to provide
identification.
Driver lectured plaintiff but eventually allowed
him to leave.
Plaintiff alleged that the actions of movants in response to
his conduct were in violation of his First, Fourth, and
Fourteenth Amendment rights.
2
II.
The Motions to Dismiss
Each of the motions to dismiss seeks dismissal for failure
of plaintiff state a claim upon which relief may be granted
against the movant.
In each instance, a ground of the motion is
that the movant is entitled to qualified immunity.
Inasmuch as
the court is dismissing the claims against movants on that
ground, the court is not devoting attention to other grounds
asserted by movants.
III.
Pertinent Legal Principles
A.
Standards Applicable to the Motion to Dismiss
Rule 8(a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8(a) (2),
"in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests."
Twombly,
550 U.S. at 555 (internal quotation marks and ellipsis
omitted) . Although a complaint need not contain detailed factual
allegations, the "showing" contemplated by Rule 8 requires the
plaintiff to do more than simply allege legal conclusions or
recite the elements of a cause of action. Id. at 555 & n.3. Thus,
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while a court must accept all of the factual allegations in the
complaint as true, it need not credit bare legal conclusions that
are unsupported by any factual underpinnings. See Iqbal, 556 U.S.
at 679 ("While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.")
Moreover, to survive a motion to dismiss for failure to
state a claim under Rule 12{b) (6), the facts pleaded must allow
the court to infer that the plaintiff's right to relief is
plausible. Id. at 678. To allege a plausible right to relief, the
facts pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient. Twombly, 550
U.S. at 566-69. "Determining whether a complaint states a
[is] a context-specific task
plausible claim for relief .
that requires the reviewing court to draw on its judicial
experience and common sense." Iqbal, 556 U.S. at 679.
The court generally is not to look beyond the pleadings in
deciding a motion to dismiss. Spivey v. Robertson, 197 F.3d 772,
774
(5th Cir. 1999). "Pleadings" for purposes of a Rule 12 (b) (6)
motion include the complaint, its attachments, and documents that
are referred to in the complaint and central to the plaintiff's
claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,
498-99
(5th Cir. 2000).
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B.
Standards Applicable to Qualified Immunity
Qualified immunity insulates a government official from
civil damages liability when the official's actions do not
•violate clearly established statutory or constitutional rights
of which a reasonable person would have known.• Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). For a right to be •clearly
established, • the right's contours must be •sufficiently clear
that a reasonable official would understand that what he is doing
violates that right.• Anderson v. Creighton, 483 U.S. 635, 640
(1987) . Individual liability thus turns on the objective legal
reasonableness of the defendant's actions assessed in light of
clearly established law at the time. Hunter v. Bryant, 502 U.S.
224, 228
(1991); Anderson, 483 U.S. at 639-40. In Harlow, the
court explained that a key question is "whether that law was
clearly established at the time an action occurred" because •[i]f
the law at that time was not clearly established, an official
could not reasonably be expected to anticipate subsequent legal
developments, nor could he fairly be said to 'know' that the law
forbade conduct not previously identified as unlawful. • 457 U.S.
at 818. In assessing whether the law was clearly established at
the time, the court is to consider all relevant legal authority,
whether cited by the parties or not. Elder v. Holloway, 510 U.S.
510, 512
(1994). If public officials of reasonable competence
5
could differ on the lawfulness of defendant's actions, the
defendant is entitled to qualified immunity. Malley v. Briggs,
475 U.S. 335, 341 (1986); Fraire v. City of Arlington,
1268, 1273
957 F.2d
(5th cir. 1992). "[A]n allegation of malice is not
sufficient to defeat immunity if the defendant acted in an
objectively reasonable manner." Malley, 475 U.S. at 341.
In analyzing whether an individual defendant is entitled to
qualified immunity, the court considers whether plaintiff has
alleged any violation of a clearly established right, and, if so,
whether the individual defendant's conduct was objectively
reasonable. Siegert v. Gilley, 500 U.S. 226, 231 (1991); Duckett
v. City of Cedar Park, 950 F.2d 272, 276-80 (5th Cir. 1992). In
so doing, the court should not assume that plaintiff has stated a
claim, i.e., asserted a violation of a constitutional right.
Siegert, 500 U.S. at 232.
Rather, the court must be certain
that, if the facts alleged by plaintiff are true, a violation has
clearly occurred. Connelly v. Comptroller, 876 F.2d 1209, 1212
(5th Cir. 1989). A mistake in judgment does not cause an officer
to lose his qualified immunity defense. In Hunter, the Supreme
Court explained:
The qualified immunity standard "gives ample room for
mistaken judgments" by protecting "all but the plainly
incompetent or those who knowingly violate the law."
Malley, [475 U.S.] at 343. .
This accommodation for
reasonable error exists because "officials should not err
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always on the side of caution" because they fear being sued.
502 u.s. at 229.
When a defendant relies on qualified immunity, the burden is
on the plaintiff to negate the defense. Kovacic v. Villarreal,
628 F.3d 209, 211 (5th Cir. 2010); Foster v. City of Lake
Jackson, 28 F.3d 425, 428
(5th Cir. 1994).
IV.
Application of Law to Facts
Movants assert that they are entitled to qualified immunity
from plaintiff's claims. Doc.' 17 at 8-9; Doc. 19 at 6-8; & Doc.
20 at 8-9.
Thus, the burden falls on plaintiff to show that
movants have violated a clearly established statutory or
constitutional right of plaintiff, and that movants took action
that was objectively unreasonable.
Kovacic,
628 F.3d at 211.
See Harlow, 457 U.S. at 818;
Plaintiff's claims are based on an
asserted violation of plaintiff's First Amendment right to
videotape the police station and the activities there and an
asserted violation of his Fourth Amendment rights after he
refused to identify himself.
2
The "Doc._" references are to the numbers assigned to the referenced documents on the
docket of this case, No. 4:15-CV-824-A.
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The Supreme Court and Fifth Circuit have not addressed
whether or not there is a First Amendment right to videotape
police activities.
Circuit courts that have addressed the issue
in different contexts are split as to whether or not there is a
clearly established First Amendment right to record the public
activities of police.
(1st Cir. 2014)
Compare Gericke v. Begin, 753 F.3d 1, 9
(holding that there can be a First Amendment
right to film a police officer making a traffic stop) , and Smith
v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000)
(holding
that there is a First Amendment right to videotape police
activity, subject to reasonable time, manner and place
restrictions), with Kelly v. Borough of Carlisle, 622 F.3d 248,
262-63 (3d Cir. 2010)
(holding that a First Amendment right to
videotape police officers during a traffic stop was not clearly
established), and Szymecki v. Houck, 353 Fed. App'x 852
2010)
(4th Cir.
(agreeing with a lower court that there was qualified
immunity because the asserted right to record police activities
on public property was not clearly established in the Fourth
Circuit) .
An official is entitled to qualified immunity unless
preexisting law makes apparent the unlawfulness of the official's
conduct.
See Anderson, 483 U.S. at 640.
There is nothing in the
case law to suggest that police officers are constitutionally
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prohibited from making reasonable inquiry, and taking reasonable
steps, to identify an unknown person who is seen videotaping
their place of work and the place where they come and go in their
private vehicles.
In this day and age, the risk to public
officials, particularly police officers, is such that a police
officer could reasonably believe that he had the right to require
plaintiff to identify himself after plaintiff was observed
videotaping the police station and to take appropriate action in
response to plaintiff's refusal to identify himself.
When the unique facts of this case, as alleged by plaintiff,
are considered, all movants enjoy qualified immunity for the
actions they took in response to plaintiff's conduct.
Plaintiff
has not carried his burden to show that movants are not entitled
to qualified immunity as to the claims plaintiff is making
against them.
He has not demonstrated that any of the actions of
movants violated any clearly established statutory or
constitutional right of plaintiff or that any action taken by any
of the movants was objectively unreasonable.
* * * * *
Tucked near the end of plaintiff's response is an
alternative request that, if the court determines to grant all or
part of movants' motions, the court give plaintiff leave to
conduct discovery as to qualified immunity and "to amend his
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lawsuit in accordance with what the discovery reveals and in
accordance with findings of the Court."
Doc. 15 at 22,
§
II.
Nothing in the title of the responsive document discloses that
any such request or motion is contained therein.
Thus,
plaintiff's request is made in violation of Rule LR 5.1(c) of the
Local Civil Rules of this court, which requires that any filed
document "must clearly identify each included pleading, motion,
or other paper in its title."
The court further notes that it is the duty of the
plaintiff, not the court, to evaluate the need for him to file an
amended complaint after he receives and reviews motions to
dismiss such as those filed by movants.
Particularly is that the
case here since plaintiff already has filed an amended complaint
in response to earlier motions of movants to dismiss.
Docs. 6,
7, 11, and 15.
For the reasons stated, the court is denying the request
made by plaintiff on page 22 of plaintiff's response.
v.
Order
Therefore,
The court ORDERS that the motions to dismiss of Driver,
Grinalds, and Dyess, be, and are hereby, granted, and that
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plaintiff's claims against those defendants be, and are hereby,
dismissed.
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to the
dismissal of plaintiff's claims against Driver, Grinalds, and
Dyess.
The court further ORDERS that from this point forward City
of Fort Worth is the only defendant in this action and that the
style of this action shall be "Phillip Turner, Plaintiff, v. City
of Fort Worth, Defendant."
SIGNED February 19, 2016.
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