Rainwater v. Sikes et al

Filing 48

Memorandum Opinion and Order... Came on for consideration the motion of defendant Officer A. Smith ("Smith"), the motion of defendants Officer A. Aguirre ("Aguirre"), Officer C. Vistine ("Vistine"), Officer M. Montgom ery ("Montgomery"), and Officer J. Nichols ("Nichols"), and the second motion of defendant Sgt. S.C. Sikes ("Sikes") to dismiss. The court, having considered the motions, the responses of plaintiff, Jeremi Rainwater, the replies, the record, and applicable authorities, finds that the motions should be denied. (Ordered by Judge John McBryde on 4/23/2018) (wxc)

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D.S. DISTRICT COURT
NORTHERN D lSTFICT OF TEXl\S

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IN THE UNITED STATES DISTRIC'Il COUR'TI
NORTHERN DISTRICT OF TEX~S
FORT WORTH DIVISION !
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APR 23 2(18

J

JEREMI RAINWATER,

.J

I

i
,

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t--r.: f( r lX)lJ1(J'

§
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Plaintiff,

§
§

VS.

§

NO. 4:17-CV-967-A

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SERGEANT SC SIKES, BADGE 3285,
ET AL.,
Defendants.

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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant Officer A.
Smith ("Smith"), the motion of defendants Officer A. Aguirre
("Aguirre"), Officer C. Vistine ("Vistine"), Officer M.
Montgomery ("Montgomery"), and Officer J. Nichols ("Nichols"),
and the second motion of defendant Sgt. S.C. Sikes ("Sikes") to
dismiss. The court, having considered the motions, the responses
of plaintiff, Jeremi Rainwater, the replies, the record, and
applicable authorities, finds that the motions should be denied.
I.

Plaintiff's Claims
On December 5, 2017, plaintiff filed his original complaint
in this action. Doc. 1 1. On February 22, 2018, having first
obtained leave of court, plaintiff filed his amended complaint.
Doc. 33.

'The "Doc.

"reference is to the number of the item on the docket in this action.

I
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Plaintiff alleges: Around 10:00 p.m. on December 19, 2015,
he was at home in bed with his dogs when the dogs started
disturbing him and barking. Doc. 33, , , 15-16. Plaintiff did not
hear anyone knock or ring his bell, but the dogs would not stop
barking. Id., , 17. Plaintiff got up, grabbed his pistol for
security, and went to his front door. He opened the door but did
not see or hear anything. It was a dark night and the moon had
not yet risen. Id., , 18. Plaintiff went out onto his porch to
see if he could figure out what was causing the dogs to be so
disturbed. He carried his pistol by his right side with the
muzzle pointed at the ground. Id., , 19-20. Unbeknownst to
plaintiff, police officers were forming a perimeter around his
house and making sure plaintiff could not see them. They were
investigating criminal mischief damages to an unoccupied vehicle
in another location, not a crime involving harm or threatened
harm to any person. Id., , 21. The officers did not park their
cars on the street or under any streetlight, so that plaintiff
would not be aware of their presence. Aguirre and Nichols set up
in the dark at a house one or two houses away; Smith and Sikes
set up in a dark area outside the garage of a house one house
away from plaintiff's house. People were in the garage of that
house and Sikes went in to talk to them. Montgomery and Vistine
were about 150-200 yards away and never came down the street

2

until plaintiff had been shot. Id., , 22. Aguirre and Nichols
were on the opposite side of plaintiff's house from Smith. Id.,
, 43. Smith, wearing all black, was standing in the dark by a
second house away from plaintiff's property with a rifle with a
scope pointed at plaintiff. Neither Smith nor any other officer
notified plaintiff via any means that they were present.
Plaintiff never saw or heard anything. He turned his back to
Smith and started to go back inside his home. Id., ,

24.

Plaintiff felt a thud in his back and heard what sounded like a
gunshot. It was from the rifle fired by Smith. Almost
immediately, plaintiff fell to the porch face down. He was not
even aware at the time that he had been shot a second time. Id.,
, 25. Both shots hit plaintiff within one inch of the middle of
his back. Id., , 33. Plaintiff first knew of the presence of the
police when they came to handcuff him after he had been shot.
Id., , 27. The bullets caused several broken ribs, a fractured
pelvis, and splintered right arm in two places. Id., , 28.
Further: Plaintiff was charged with criminal mischief for
the damage to the vehicle that police came to his house to
investigate. Each defendant officer filed a separate criminal
charge of aggravated assault of a public servant against
plaintiff. Id.,

, 35. The charges were all based on the same

deliberately fabricated evidence that Smith shot plaintiff when

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plaintiff pointed his weapon at Smith. Id., ,

37. As a result of

the aggravated assault charges, plaintiff's bail was set at
$185,000,

instead of the $5,000 that the criminal mischief charge

warranted. Plaintiff was kept in jail until approximately March
7,

2016, when the grand jury no billed all of the aggravated

assault charges and plaintiff's bail was reduced to $5,000, which
he quickly posted. Id., , , 45, 46.
II.
Grounds of the Motions
Each movant alleges that plaintiff has failed to state a
claim against him upon which relief can be granted and that he is
entitled to qualified immunity.
III.
Applicable Legal Standards
A.

Pleading
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. S(a) (2),

''in order to give the defendant fair

notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
quotation marks and ellipsis omitted) .

4

(internal

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.

Twombly, 550 U.S. at 555 & n.3.

Thus, 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.
556 U.S. 662, 679 (2009)

See Ashcroft v. Igbal,

("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, the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible.
U.S. at 678.

Igbal, 556

To allege a plausible right to relief, the facts

pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient. Id. In other
words, where the facts pleaded do no more than permit the court
to infer the possibility of misconduct, the complaint has not
shown that the pleader is entitled to relief. Id. at 679.
"Determining whether a complaint states a plausible claim for
relief .

[is] a context-specific task that requires the

reviewing court to draw on its judicial experience and common
sense.

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Id.

5

As the Fifth Circuit has explained: "Where the complaint is
devoid of facts that would put the defendant on notice as to what
conduct supports the claims, the complaint fails to satisfy the
requirement of notice pleading." Anderson v. U.S. Dep't of
Housing & Urban Dev., 554 F.3d 525, 528

(5th Cir. 2008). In sum,

"a complaint must do more than name laws that may have been
violated by the defendant; it must also allege facts regarding
what conduct violated those laws. In other words, a complaint
must put the defendant on notice as to what conduct is being
called for defense in a court of law." Id. at 528-29. Further,
the complaint must specify the acts of the defendants
individually, not collectively, to meet the pleading standards of
Rule 8(a). See Griggs v. State Farm Lloyds, 181 F.3d 694, 699
(5th Cir. 1999); see also Searcy v. Knight

(In re Am. Int'l

Refinery), 402 B.R. 728, 738 (Bankr. W.D. La. 2008).
In considering a motion to dismiss for failure to state a
claim, the court may consider documents attached to the motion if
they are referred to in the plaintiff's complaint and are central
to the plaintiff's claims. Scanlan v. Tex. A&M Univ., 343 F.3d
533, 536 (st• Cir. 2003). The court may also refer to matters of
public record. Davis v. Bayless, 70 F.3d 367, 372 n.3
1995); Cinel v. Connick, 15 F.3d 1338, 1343 n.6

(5th Cir.

(st• Cir. 1994).

This includes taking notice of pending judicial proceedings.

6

Patterson v. Mobil Oil Corp., 335 F.3d 476, 481 n.1
2003). And,

(5th Cir.

it includes taking notice of governmental websites.

Kitty Hawk Aircargo,

Inc. v. Chao, 418 F.3d 453, 457 (5th Cir.

2005); Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005).
B.

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."
Fitzgerald, 457 U.S. 800, 818 (1982).

Harlow v.

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.•
(1987).

Anderson v. Creighton, 483 U.S. 635, 640

Individual liability thus turns on the objective legal

reasonableness of the defendant's actions assessed in light of
clearly established law at the time.
224, 228

Hunter v. Bryant, 502 U.S.

(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."

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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.
510, 512

(1994).

Elder v. Holloway, 510 U.S.

If public officials of reasonable competence

could differ on the lawfulness of defendant's actions, the
defendant is entitled to qualified immunity. Mullenix v. Luna,
136 S. Ct. 305, 308 (2015); Malley v. Briggs, 475 U.S. 335, 341
(1986); Fraire v. City of Arlington,
Cir. 1992) .

957 F.2d 1268, 1273 (5th

"[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

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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
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). Although Supreme Court

precedent does not require a case directly on point, existing
precedent must place the statutory or constitutional question
beyond debate. White v. Pauly, 137 S. Ct. 548, 551 (2017). That
is, the clearly established law upon which plaintiff relies
should not be defined at a high level of generality, but must be
particularized to the facts of the case. Id. at 552. Thus, the
failure to identify a case where an officer acting under similar
circumstances was held to have violated a plaintiff's rights will
most likely defeat the plaintiff's ability to overcome a
qualified immunity defense. Id.; Surratt v Mcclarin, 851 F.3d
389, 392

(5th Cir. 2017).

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C.

Excessive Force
The elements of an excessive force claims are (1) an injury,

(2) that resulted directly and only from a use of force that was
clearly excessive, and (3) the excessiveness was clearly
unreasonable. Freeman v. Gore, 483 F.3d 404, 416

(5th Cir. 2007).

A use of deadly force is presumptively reasonable when an officer
has reason to believe that the suspect poses a threat of serious
harm to the officer or to others. Mace v. City of Palestine, 333
F.3d 621, 624

(5th Cir. 2003). The reasonableness is to be

determined from the perspective of the officer on the scene and
not with "the 20-20 vision of hindsight." Id. at 625

(quoting

Graham v. Connor, 490 U.S. 386, 396 (1989)). Further, that the
officer himself may have created the situation does not change
the analysis. In other words, that the officer could have handled
the situation better does not affect his entitlement to qualified
immunity. Young v. City of Killeen, 775 F.2d 1349, 1352-53 (5th
Cir. 1985). See also City & Cty. Of San Francisco v. Sheehan,
S. Ct. 1 765, 1 777 (2 015) (failure to follow training does not
itself negate entitlement to qualified immunity) .

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135

IV.
Analysis
A.

Officer Smith
Plaintiff's only claim against Officer Smith is based on the

alleged use of excessive force. Doc. 33 at 13-14. The court thus
considers whether plaintiff's allegations, if true, establish a
constitutional violation. And, if so, the court considers whether
Smith's actions violated clearly established statutory or
constitutional rights of which a reasonable person would have
known. Hope v. Pelzer, 536 U.S. 730, 736, 739 (2002).
In determining whether the use of deadly force is
reasonable, the court considers the severity of the crime at
issue, whether the suspect posed an immediate threat to the
safety of the officer or others, and whether the suspect was
actively resisting arrest or attempting to evade arrest by
flight. Hogan v. Cunningham, 722 F.3d 725, 734

(5th Cir. 2013)

Whether the force used is excessive or unreasonable depends on
the facts and circumstances of each case. Deville v. Marcantel,
567 F.3d 156, 167 (5th Cir. 2009).
In this case, plaintiff has pleaded that defendants were
investigating criminal mischief that occurred earlier in the
evening when an unoccupied vehicle in a parking lot at a

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different location was damaged.' Officers were not investigating
a crime involving any physical harm or threat to any person. Had
defendants run a background check on plaintiff, at worst they
would have discovered some traffic tickets and a public
intoxication conviction. Plaintiff did not know that defendants
were present outside his home. His dogs would not stop barking,
so he took a pistol with him onto his porch to investigate. He
kept the pistol by his right side with the muzzle pointed down.
He was not committing any crime or threatening anyone. Defendants
never notified plaintiff of their presence. As plaintiff turned
to go back inside his house, Smith shot him in the back.
As plaintiff notes, the only thing that could possibly be
perceived as a threat in this case was his carrying of a pistol
on his front porch. But merely having a gun in one's hand does
not per se equate to dangerousness or a threat. Graves v.
Zachary, 277 F. App'x 344, 348 (5th Cir. 2008). Of course, the
officer does not have to wait until the suspect shoots to confirm
that a serious threat of harm exists. Ramirez v. Knoulton, 542
F.3d 124, 130 (5th Cir. 2008). Nevertheless, the officer must
have probable cause to believe that in that moment in time when
deadly force is used the suspect posed a threat of serious

2

The indictment and plea agreement of which the court takes judicial notice reflect that plaintiff
shot the vehicle with a firearm. Doc. 35.

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physical harm, either to the officer or to others. Id. The
question is one of objective reasonableness of the officer's
conduct. Manis v. Lawson, 585 F.3d 839, 843

(5th Cir. 2009).

The parties do not dispute plaintiff's constitutional right
under the Fourth Amendment to be free from the unreasonable use
of excessive force. And, the facts alleged show that plaintiff
posed no threat to any person at the time he was shot. Rather,
plaintiff was turning to go back inside his house. He was not
aware of the location of the officers, much less their presence.
A reasonable officer would have known that shooting plaintiff in
the back under those circumstances would not have been justified.
See, e.g., Tennessee v. Garner, 471 U.S. 1 (1985); Mason v.
Lafayette, 806 F.3d 268
F.3d 153

(4th Cir. 2013); Graves, 277 F. App'x 344; Bennett v.

Murphy, 120 F. App'x 914
190

(5th Cir. 2009); Cooper v. Sheehan, 735

(3d Cir. 2005); Baker v. Putnal, 75 F.3d

(5th Cir. 1996); Baulch v. Johns, 70 F.3d 813

(5th Cir.

1995). The evidence may well show that the facts as pleaded by
plaintiff are not true, but, at this stage, the court cannot
conclude that Smith's use of deadly force was reasonable.'

3

1n other words, the issue of qualified immunity should be presented by motion for summaiy
judgment in a case like this one.

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B.

Other Officers
Plaintiff alleges that the officers other than Smith

violated his substantive due process rights by filing false
charges against him. Each of them filed a criminal charge of
aggravated assault of a public servant, which he says is defined
as follows:
A person intentionally or knowingly threatens a public
servant with imminent bodily injury and the accused
knows the threatened person is a public servant while
the public servant is lawfully discharging an official
duty, or in retaliation or on account of an exercise of
official power or performance of an official duty as a
public servant.
Doc. 33 at ,

36. Plaintiff says he never knew the officers were

present or threatened any of them. Id. at , 39. And, because of
the officers' physical locations, plaintiff could not have
assaulted any of them4 even if he did point his weapon at Smith.
Id. at , , 41-43. As a result of these charges being filed against
him, plaintiff's bail was set at $185,000 instead of $5,000, and
he remained in jail because he could not pay $185,000. Id.

, 45.

Once the aggravated assault charges were dropped, plaintiff
quickly posted the $5,000 and was released. Id.,

, 46. Only after

the aggravated assault charges were dropped was a plea bargain on
the criminal mischief charge made. Id., , 47.

'Apparently, each officer claimed that plaintiff had intentionally and knowingly threatened him
with imminent bodily injury. Copies of the charges have not been provided.

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The officers (other than Smith) allege that plaintiff has
not pleaded a Fourth Amendment claim against them because there
was probable cause to arrest plaintiff on the criminal mischief
charge. See Devenpeck v. Alford,

543 U.S. 146, 153-54

Cole v. Carson, 802 F.3d 752, 764-65
other grounds, 137 S. Ct. 497

(2004);

(5th Cir. 2015), vacated on

(2016) . 5 Further,

they seem to

argue that only a Fourth Amendment claim may be asserted when the
basis for the claim is false arrest. See Manuel v. City of
Joliet,

137 S. Ct. 911 (2017). Manuel is not so limiting. Jauch

v. Choctaw Cty., 874 F.3d 425, 429

(5th Cir. 2017). In a case

like this one, plaintiff properly asserts his claim under

§

1983

based on a violation of his substantive due process rights.
Jauch,

874 F.3d at 429-30; Rogers v. Johnson,

390 (5th Cir. 2017). And,

684 F. App'x 380,

that is what plaintiff has alleged.

Doc. 33 at 15-17.
As the Fifth Circuit has recognized,

"[b]y 2010, no

reasonable law enforcement officer would have thought it
permissible to frame somebody for a crime he or she did not
commit." Cole, 802 F.3d at 773
39, 50

(citing Limone v. Condon, 372 F.3d

(1st Cir. 2004)). The allegation here is that each of the

officers (other than Smith) did just that--frame plaintiff for a

'The judgment in Cole was vacated so that the Fifth Circuit could consider whether qualified
immunity applied to the excessive force claim in light of the Supreme Cou1t's ruling in Mullenix v. Luna,
136 S. Ct. 305 (2015). 137 S. Ct. 497.

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crime he did not commit. Based on the facts as pleaded, those
officers are not entitled to qualified immunity.'
C.

Other Grounds
Sikes argues that plaintiff has failed to state a conspiracy

claim against him. Doc. 40 at 12-13. The court does not interpret
the amended complaint to allege such a claim apart from
plaintiff's due process claim. Doc. 33 at 15-17.
Sikes also asserts that plaintiff is not entitled to
punitive damages, but the argument is based on the contention
that plaintiff has not stated a claim upon which he could recover
actual damages. Doc. 40 at 13-14. As discussed, plaintiff has
stated such a claim.

v.
Order
The court ORDERS that the motions to dismiss be, and are
hereby, denied.
SIGNED April 23, 2018.

Distri t Judge

'Again, the facts pleaded may not be e true facts. The qualified immunity of these officers may
be determined by motion for summary judgment.

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