Bright v. City of Killeen et al
ORDER GRANTING IN PART AND DENYING IN PART 20 DEFENDANT CUSTANCES Motion to Dismiss. Signed by Judge Alan D Albright. (lad)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
DIANE REED BRIGHT,
INDIVIDUALLY, and as the
FOR THE ESTATE OF THE
DECEDENT, JAMES SCOTT REED
THE CITY OF KILLEEN, TEXAS;
ANTHONY R. CUSTANCE;
RICHARD A. HATFIELD, JR.;
FRED L. BASKETT; and
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT CUSTANCE’S MOTION TO DISMISS
Before the Court is Defendant Custance’s Motion to Dismiss pursuant to Fed. R. Civ. P
12(b)(6), which was filed on July 7, 2020. Def.’s Mot., ECF No. 20. Plaintiff filed her Response
on July 24, 2020. Pl.’s Resp., ECF No. 24. Custance filed his Reply on July 30, 2020. Def.’s
Reply, ECF No. 27. Plaintiff filed her Sur-Reply on July 24, 2020. Pl.’s Sur-Reply, ECF No. 33.
The Court has considered the Motion, all relevant filings, and the applicable law. For the reasons
set forth below, the Court finds that the Defendant Custance’s Motion to Dismiss hould be
GRANTED in part and DENIED in part.
A. Procedural Background
Plaintiff Diane Reed Bright, mother of the decedent, brings this claim as the Personal
Representative for the estate of James Scott Reed, the decedent. Pl.’s Compl., ECF No. 1 at 116.
Had the decedent survived, he would have this right of action for wrongful conduct against the
Defendants. Id. at 118. Plaintiff brings this claim against The City of Killeen, Texas, and Killeen
Police Department (KPD) SWAT Officers Anthony R. Custance, Richard A. Hatfield, Jr. Fred L.
Baskett, Christian Suess. Id. at 1. Specially Plaintiff alleges Defendant Custance’s actions
violated Reed’s constitutional rights pursuant to the Fourth Amendment. Id. at 76. Furthermore,
Plaintiff alleges that Defendants’ Custance, Hatfield, Baskett, and Suess conspired to deprive
Reed of equal protection of the law pursuant to 42 U.S.C. § 1985(3). Id. at 105. Lastly, Plaintiff
alleges that all the defendants conspired to deprive Reed of his constitutional rights pursuant to
42 U.S.C. § 1983. Id. at 110.
B. Factual Background
On February 27, 2019, around 6:00 a.m., eighteen KPD SWAT officers, including
Defendant Custance, executed a no-knock narcotics warrant at Reed’s apartment in Killeen,
Texas. ECF No. 1 at 17. At the no-knock narcotics search warrant’s execution, an officer set a
charge at the front door. Id. at 21. A window team officer used a window breaking tool to break
Reed’s bedroom window and initiate a Flash Noise Diversion Device. Id. Officers fired
numerous shots and consequently pronounced Reed dead on the scene from gunshot wounds. Id.
at 22. The autopsy report showed that Reed suffered traumatic injuries to his vital organs from a
single bullet entering under his right armpit, traveling through both lungs, and severing his aorta.
After the raid, KPD determined who shot at Reed based upon the officers’ own
admissions or denials during brief interviews. Id. at 23. During his interview, Custance denied
shooting his firearm at Reed. Id.
At the request of the KPD, the Texas Ranger Department performed an investigation at
approximately 8:00 a.m. on the day of the shooting. Id. at 24. Ranger Adam Russell was the lead
investigator assisted by Rangers Justin Duck and Randy Lewis. Id. KPD Sergeant Wilts told
Ranger Russell that KPD SWAT officers killed Reed after Reed produced a handgun and opened
fire on the officers. Id. at 25. The Sergeant told Russell that KPD SWAT members Hatfield and
Baskett shot at Reed. Id.
Ranger Duck conducted an in-custody recorded interview with Eva Marie Brocks, who
was in the bedroom with Reed during the police raid. Id. at 26. During this interview directly
following Reed’s death, Brocks stated she did not see whether Reed shot at the officers or not.
Id. In this interview, Brocks also stated that someone shot at Reed’s apartment two weeks before
the raid, so he had obtained a small grey gun and a shotgun. Id. In a written statement outside the
scene of the police raid, Brocks confirmed that she believed Reed had not fired any shots. Id. at
27. Brocks also indicated in this written statement that she did not believe Reed would have been
able to fire any shots because of how fast the unannounced shooting commenced. Id.
During his initial walkthrough, Ranger Russell determined that there was likely a third
KPD SWAT officer who shot at Reed based on his observation of ten bullet defects under the
bathroom window. Id. at 28. Russell determined that whomever shot these ten bullets was
shooting from outside into the residence based on a “bullet wipe.” Id. A bullet wipe is the dark
area around the margins of a bullet hole caused by the bullet lubricant, lead, or other possible
material used to identify an entry site of a bullet. Id. Russel found that the defects’ angle seemed
to track towards the west side broken window of Reed’s master bedroom. Id. During his
investigation, Ranger Duck marked fired cartridges behind the Reed residence on the north side.
Id. at 30. The Rangers associated the ten defects that Russell found during his initial walkthrough
with these cartridges. Id. After examining of the cartridges, Russell determined they were the
same manufacture and caliber issued to the KPD SWAT team. Id.
Russell then informed the KPD Sergeants Manges and Wilts that a third KPS SWAT
member had shot at Reed and was covering it up. Id. The Sergeants recalled the KPD SWAT
team for a meeting with Russell at 6:30 p.m. on the day of the police raid. Id. at 31. Russell
relayed the evidence at the scene to the entire raid team, which showed that a third KPD SWAT
member had shot at Reed a minimum of ten times. Id. During the meeting, Custance admitted he
did shoot at the back of the Reed residence. Id. at 32. He alleged that he began shooting when he
saw muzzle flashes and heard gunfire. Id. At this time, Russell took possession of and inspected
Custance’s rifle, an HK-416D assault rifle. Id.
The Defendants each had five to seven days before being required to give written
statements. Id. at 33. Allegedly a small gray .380 Cobra pistol was found near the right hand of
Reed’s body. Id. When asked, the Defendants stated that the initial gunfire was from Reed using
a small arms pistol or handgun. Id. Officer Hatfield alleges he heard a pop from a handgun in the
direction of Reed’s window and that he saw a right hand and arm holding a handgun coming out
of the bedroom window pointed at Officers Baskett and Suess. Id. at 34. Officer Baskett and
Suess both claim they observed a black arm holding a handgun out of the bedroom window. Id.
at 39–40. Officer Swan, a member of the window team, did not claim to see Reed’s hand or arm
come out of the window shooting from a handgun. However, Swan did state that he heard several
gunshots “go off at the window.” Id. at 42.
During the raid, Custance’s role was “to watch for any movement dangers that may have
presented themselves that would disrupt the operations” at the northeast corner of the house. Id.
at 36. After hearing shots and ‘shots fired’ over the radio, Custance moved to the north side of
the property, approximately thirty to forty feet away from the house, a position not assigned to
him. Id. Custance alleges he saw a muzzle flash and suspected it was from someone inside the
room shooting towards the window team. Id. at 37. He then fired several rounds of his rifle in the
direction he allegedly saw the muzzle flashes coming from. Id.
The Ranger investigation revealed that by the end of April 2019, Custance had resigned
from the KPD. Id. at 45. In June 2019, the Bell County grand jury presented evidence that
Custance lied, concealed, and altered evidence during the Reed investigation. Id. The grand jury
entered a true bill of tampering with physical evidence against Custance, and he pled guilty to
the felony of tampering with physical evidence. Id.
The Rangers investigation found thirteen 5.56 fired cartridges, eight 9mm fired
cartridges, and one 9mm brass fired cartridges recovered. Id. at 46. Except for the one brass
cartridge, these findings are consistent with Baskett’s handgun and rifles fired by the Custance
and Hatfield. Id. Ranger Russell’s analysis found a jam in Reed’s semi-automatic .380 Cobra
handgun’s ejection port, and the magazine in the handgun filled to capacity with seven rounds of
.380 ammunition. Id. at 48. While the Rangers analysis found Reed’s DNA on the gun, there was
no finding of fired .380 brass cartridges during their investigation of the scene. Id. at 50–51.
Also, the analysis of Gun Shot Residue collected from Suess’ face was inconclusive about where
it came from. Id. at 52.
II. LEGAL STANDARD
A. Failure to State a Claim 12(b)(6)
Motions to dismiss under Rule 12(b)(6) “are viewed with disfavor and are rarely
granted.” Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). A complaint will
not be dismissed merely because it contains an imperfect statement of the legal theory supporting
the claim asserted. Johnson v. City of Shelby, 135 S. Ct. 346, 346 (2014). Federal pleading rules
call for “a short and plain statement of the claim showing that the pleading is entitled to relief.”
Id. (citing Fed. R. Civ. P. 8(a)(2)).
The ultimate question in a motion to dismiss is whether the complaint states a valid claim
when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v. Morgan
Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir. 2002). Two primary principles guide the
plausibility analysis: courts must liberally construe the complaint in favor of the plaintiff and
must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009). Courts do not evaluate the merits of the allegation but only consider whether plaintiff has
adequately pled a legally cognizable claim. United States ex rel. Riley v. St. Luke’s Episcopal
Hosp., 355 F.3d 370, 376 (5th Cir. 2004). A pleading needs to provide “enough facts to raise a
reasonable expectation that discovery will reveal evidence of the necessary claims or elements.”
Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009).
i. 42 U.S.C. § 1983 Fourth Amendment Excessive Force
42 U.S.C. § 1983 creates a cause of action against any person who, under color of law,
causes another to be deprived of a federally protected constitutional right. Two allegations are
required to state a cause of action under 42 U.S.C. § 1983. “First, the plaintiff must allege that
some person has deprived him of a federal right. Second, he must allege that the person who has
deprived him of that right acted under color of state or territorial law.” Gomez v. Toledo, 446
U.S. 635, 640 (1980); Manax v. McNamara, 842 F.2d 808, 812 (5th Cir. 1988).
“All claims that law enforcement officers have used excessive force—deadly or not—in
the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed
under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S.
386, 395 (1989). “Plaintiff must allege: (1) an injury that (2) resulted directly and only from the
use of force that was excessive to the need and (3) the use of force was objectively
unreasonable” to plead an excessive force claim under § 1983. Bush v. Strain, 513 F.3d 492, 502
(5th Cir. 2008).
To determine whether the individual Defendants’ actions were objectively reasonable, the
analysis is an “objective (albeit fact-specific) question whether a reasonable officer could have
believed” that he was violating the plaintiff’s constitutional rights “under the circumstances of
the complained of action.” Mangieri v. Clifton, 29 F.3d 1012, 1017 (5th Cir. 1994) (quoting
Anderson v. Creighton, 483 U.S. 635, 641 (1987)). “The ‘reasonableness’ of a particular use of
force must be judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. “To gauge the objective reasonableness
of the force used by the law enforcement officer, the Court must balance the amount of force
used against the need for force.” Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004).
ii. Qualified Immunity
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss an action barred by
qualified immunity. See Bustillos v. El Paso Cnty. Hosp. Dist., 226 F. Supp. 3d 778, 793 (W.D.
Tex. 2016) (Martinez, J.) (dismissing a plaintiff’s claim based on qualified immunity). Qualified
immunity shields government officials from civil liability for claims under federal law unless
their conduct “violates a clearly established constitutional right.” Mace v. City of Palestine, 333
F.3d 621, 623 (5th Cir. 2003). Qualified immunity balances “the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). Because qualified immunity shields “all but the plainly
incompetent or those who knowingly violate the law,” the Fifth Circuit considers qualified
immunity the norm and admonishes courts to deny a defendant immunity only in rare
circumstances. Romero v. City of Grapevine, 888 F.3d 170, 176 (5th Cir. 2018).
Courts use a two-prong analysis to determine whether an officer is entitled to qualified
immunity. Cole v. Carson, No. 14-10228, 2019 WL 3928715 at 5 (5th Cir. Aug. 20, 2019), as
revised (Aug. 21, 2019). A plaintiff must show (1) the official violated a constitutional right; and
(2) the constitutional right was “clearly established” at the time of the defendant’s alleged
misconduct. Reed v. Taylor, 923 F.3d 411, 414 (5th Cir. 2019). Although qualified immunity is
an affirmative defense, the plaintiff bears the burden to rebut the defense and assert facts to
satisfy both prongs of the analysis. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). If a
plaintiff fails to establish either prong, the public official is immune from suit. Zarnow v. City of
Wichita Falls, 500 F.3d 401, 407 (5th Cir. 2007).
A heightened pleading requirement is imposed on a civil rights plaintiff suing a state
actor in his individual capacity. Elliott v. Perez, 751 F.2d 1472, 1479 (5th Cir. 1985). To satisfy
the heightened pleading requirement and maintain a § 1983 action against an official who raises
a qualified immunity defense, a complaint must allege with particularity all material facts
establishing a plaintiff’s right of recovery, including “detailed facts supporting the contention
that [a] plea of immunity cannot be sustained.” Leatherman v. Tarrant Cnty. Narcotics
Intelligence and Coordination Unit, 954 F.2d 1054, 1055 (5th Cir. 1992). Mere conclusory
allegations are insufficient to meet this heightened pleading requirement. Elliott, 751 F.2d at
iii. 42 U.S.C. § 1985(3) Conspiracy
To maintain a claim under § 1985(3), a plaintiff must allege that “(1) the defendants
conspired (2) for the purposes of depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal privileges and immunities under the laws,
and (3) one or more of the conspirators committed some act in furtherance of the conspiracy;
whereby (4) another person is injured in his person or property or deprived of having and
exercising any right or privilege of a citizen of the United States; and (5) the action of the
conspirators is motivated by racial animus.” Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d
261, 270 n. 12 (5th Cir. 2001) (quoting Wong v. Stripling, 881 F.2d 200, 202-3 (5th Cir. 1989)).
iv. 42 U.S.C. § 1983 Conspiracy
To state a § 1983 conspiracy claim, a plaintiff must allege: (1) an agreement between a
defendant and others, involving at least one person acting under color of state law to commit an
illegal act; and (2) an actual deprivation of the plaintiff’s constitutional rights in furtherance of
that agreement. See Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995); see also Whisenant v.
City of Haltom City, 106 Fed. Appx. 915, 917, 2004 WL 1778247 at *1 (5th Cir. 2004). A
plaintiff who asserts a conspiracy claim under a civil rights statute must plead the operative facts
upon which their claim is based. Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991).
v. Intracorporate Conspiracy Doctrine
“A corporation cannot conspire with itself any more than a private individual can, and it
is the general rule that the acts of the agent are the acts of the corporation.” Hilliard v. Ferguson,
30 F.3d 649, 653 (5th. Cir. 1994) (citing Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d
911, 914 (5th Cir. 1952)). The Fifth Circuit and several district courts within the Circuit have
applied this “intracorporate conspiracy” doctrine to entities other than corporations. See Hilliard,
30 F.3d at 653 (finding the doctrine applied to a school board and its members); Thompson v.
City of Galveston, 979 F.Supp. 504, 512 (S.D. Tex. 1997) (finding the Galveston Police
Department and its employees constitute a single legal entity incapable of conspiring with itself);
Baldwin v. Univ. of Tex. Med. Branch at Galveston, 945 F.Supp. 1022, 1034 (S.D. Tex. 1996)
(applying doctrine to a medical school and its employees); Moody v. Jefferson Parish Sch. Bd.,
803 F.Supp. 1158, 1166 (E.D. La. 1992), aff’d, 2 F.3d 604 (5th Cir. 1993) (school board,
principal, vice-principal, and various teachers were all employed by Jefferson Parish School
Board, thus, were one entity).
While the Fifth Circuit does not speak to it directly, an exception exists where the alleged
conspirators are acting for their own personal purposes. Dussouy v. Gulf Coast Inv. Corp., 660
F.2d 594, 603 (5th Cir.1981) (stating in dicta that where “the officers of a corporation act for
their own personal purposes, they become independent actors, who can conspire with the
corporation”); Benningfield v. City of Houston, 157 F.3d 369, 379 (5th Cir.1998) (a possible
exception to the doctrine exists where corporate employees act for their own personal
purposes); Nelson Radio, 200 F.2d at 914 (“Nor is it alleged affirmatively, expressly, or
otherwise, that these officers, agents, and employees were actuated by any motives
personal to themselves.”).
Another exception, that the Fifth Circuit has not addressed, existed when the defendants
act outside the scope of their employment, their actions exceed the bounds of their authority, or
they have engaged in unauthorized acts. See e.g. Buschi v. Kirven, 775 F.2d 1240, 1252–53 (4th
Cir. 1985) (the doctrine does not apply when the employees exceed the bounds of their authority
or they engage in unauthorized acts in furtherance of the conspiracy); Cross v. General Motors
Corp., 721 F.2d 1152, 1156 (8th Cir.1983) (recognizing an actionable conspiracy where the
alleged conspirators acted outside the scope of their employment).
The ultimate question in a motion to dismiss is whether the complaint states a valid
claim, the court must take all well-pleaded facts of the complaint as true and construe those facts
in the light most favorable to the plaintiff. Great Plains Trust Co. v. Morgan Stanley Dean
Witter, 313 F.3d 305, 312 (5th Cir. 2002). Granting dismissal is not proper “unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999).
A. Official Capacity
Suing a government official in his official capacity is another way of pleading against the
entity of which the official is an agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985). If the
government entity receives notice and an opportunity to respond, an “official-capacity suit” is
treated as a suit against the entity. Kentucky, 473 U.S. at 166. A suit against a municipal official
in his official capacity is not a suit against the official personally because the real party in
interest is the entity. Id.
Plaintiff alleges that at all material times during and after the incident involving Reed,
Defendant Custance was a police officer acting in the course and scope of his employment for
The City of Killeen and KPD. ECF No. 1 at 6. Furthermore, Plaintiff alleges that former Officer
Custance violated his duty and responsibility to treat all persons in compliance with
constitutional and statutory requirements and in compliance with the KPD’s rules, regulations,
policies and procedures, customs and/or practices relating to detention, arrests, and the use of
deadly force. Id. at 6. Plaintiff also names the City of Killeen, the municipal body that funds the
KPD, as a party to the suit, alleging that the City has inadequate and unconstitutional policies
and customs related to the use of force. Id. at 85.
Defendant Custance performed all the allegations that form the basis of Plaintiff’s official
capacity claim pursuant to policies, procedures, customs, and practices of the City of Killeen.
Accordingly, because the City of Killeen received notice and an opportunity to respond,
Plaintiff’s claim against Defendant Custance in his official capacity is treated as a claim against
the City. Defendant Custance’s Motion to Dismiss Plaintiff’s official capacity claim is
B. Section 1983 Fourth Amendment Excessive Force and Qualified Immunity
Plaintiff asserts that Custance’s use of force during the police raid deprived Reed of his
constitutional right to be free from excessive and deadly force guaranteed by the U.S.
Constitution’s Fourth Amendment. ECF No. 1 at 77. “All claims that law enforcement officers
have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other
‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). “Plaintiff must allege:
(1) an injury that (2) resulted directly and only from the use of force that was excessive to the
need and (3) the use of force was objectively unreasonable.” Bush v. Strain, 513 F.3d 492, 502
(5th Cir. 2008).
Defendant Custance was a government official at the time of the raid. Therefore, Plaintiff
must plead specific facts that both allow the court to draw the reasonable inference that the
defendant is liable for the harm alleged and that defeat a qualified immunity defense with equal
specificity.” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). A plaintiff must show (1) the
official violated a constitutional right; and (2) the constitutional right was “clearly established” at
the time of the defendant’s alleged misconduct. Reed v. Taylor, 923 F.3d 411, 414 (5th Cir.
2019). Additionally, even with sufficient development of the facts, if factual disputes still there
remain, disputed issues of material fact relative to immunity go to a properly instructed jury to
determine. Presley v. City of Benbrook, 4 F.3d 405, 410 (5th Cir. 1993).
i. An Injury
Viewed in the light most favorable to the plaintiff, it is plausible Defendant Custance
caused injury to Reed by shooting the bullet that killed him. During the raid, Defendant Custance
fired his rifle in the direction of where he allegedly saw the muzzle flashes coming from. ECF
No. 1 at 37. Given that we do not yet know whose bullet killed Reed, granting Custance’s motion
to dismiss is not proper “unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.” Beanal v. Freeport-McMoran,
Inc., 197 F.3d 161, 164 (5th Cir. 1999). Without proof that Custance’s gun did not fire the bullet
that killed Reed, it is plausible that Custance shot the bullet that killed Reed.
Defendant Custance alleges that based on Plaintiff’s facts, Custance’s bullets came from
a different trajectory than the one that ultimately killed Reed. ECF No. 20 at 5. Therefore,
Custance could not have caused the injury. Id. However, even though Bright did not specifically
identify Custance as the officer who shot Reed, Bright is bound by Rule 11 to allege those facts
for which she has or will likely have evidentiary support. Williams v. City of Denton, Tex., No.
4:17-CV-00811, 2019 WL 438403, at 10 (E.D. Tex. Jan. 10, 2019), report & recommend.
adopted, 2019 WL 430913 (E.D. Tex. Feb. 4, 2019) (quoting Schultea v. Wood, 47 F.3d 1427,
1432 (5th Cir. 1995)). To that extent, Bright is not yet able to identify which officer’s bullet
killed Reed. The failure of specificity in regard to the particular defendant who caused the injury
does not preclude the Plaintiff’s claim because she has not yet had the benefit of discovery.
ii. Excessive to the Need and Objective Unreasonableness
The clearly established law is that “the right to make an arrest necessarily carries with it
the right to use some degree of physical coercion or threat thereof to effect it.” Bush, 513 F.3d at
502. But, where a suspect poses no immediate threat to the officer and no threat to others, the
harm resulting from failing to apprehend him does not justify the use of deadly force. Tennessee
v. Garner, 471 U.S. 1, 11 (1985). Plaintiff’s facts allege that Reed did not raise his arm to shoot
or shoot a gun during the police raid. Plaintiff supports this with Brocks statement, the officers’
stories inconsistencies’, and the lack of conclusive forensic proof that Reed fired his gun. These
facts, viewed in the light most favorable to the plaintiff, sufficiently allege that Reed did not pose
a threat to the officer who shot and killed Reed and therefore the officer’s use of force was
excessive to the need and objectively unreasonable.
iii. Qualified Immunity
Excessive force claims are necessarily fact-intensive; whether the force used is excessive
or unreasonable depends on the facts and circumstances of each particular case. Darden v. City
of Fort Worth, Texas, 880 F.3d 722, 728 (5th Cir. 2018); see also Graham, 490 U.S. at 396.
During the arrest, “the permissible degree of force depends on the severity of the crime at issue,
whether the suspect posed a threat to the officer’s safety, and whether the suspect was resisting
arrest or attempting to flee.” Id. Whether Reed shot at the officers and if it was reasonable for the
officers to believe Reed would shoot during the police raid are critical factors in determining the
reasonableness of the officers’ conduct. Given the uncertainty in the factual record, this is not an
obvious case in which the court can determine the entitlement to qualified immunity without
further development of the facts. See Backe, 691 F.3d at 648.
Viewed in the light most favorable to the plaintiff, it is plausible that Reed’s death
resulted directly and only from Defendant Custance’s excessive and objectively unreasonable
use of force in violation of Reed’s Fourth Amendment right to be free from excessive force.
Plaintiff has asserted facts which, if true, are specific enough that they would overcome the
defense of qualified immunity. However, the Court is unable to rule on the immunity defense
without further clarification of the facts. Therefore, Defendant Custance’s Motion to Dismiss
Plaintiff’s § 1983 unconstitutional use of excessive force claim is DENIED.
C. Section 1985(3) Conspiracy
Under § 1985(3), a plaintiff must show that class-based animus motivated the conspiracy.
Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1952). Plaintiff’s alleged § 1985(3) conspiracy
claim focuses on the Defendants’ statements following the incident, the time between the
incident and Defendants’ interviews, and Defendant Custances tampering of evidence. ECF No.
1. Plaintiff’s allegations fail to show underlying facts that suggest Custance and the other
Defendants conspired to violate Reed’s rights based on Reed’s membership in a protected class
of persons. Therefore, Custance’s Motion to Dismiss Plaintiff’s § 1985(3) conspiracy claim is
D. Section 1983 Conspiracy
There must be an actual deprivation of constitutional rights in furtherance of an
agreement between conspirators to establish a § 1983 claim. See Hanna v. Home Ins. Co., 281
F.2d 298, 303 (5th Cir. 1960). After death, there can be no deprivation of rights within the
constitutional and statutory framework as one is no longer a person and has no rights to be
deprived of. Whitehurst v. Wright, 592 F. 2d 834, 840 (5th Cir. 1979). Here, Plaintiff alleges that
after the police raid, the Defendants reached an agreement to cover up their actions. ECF No. 1 at
16. Therefore, all events of the alleged cover-up took place after Reed’s death. There are no
allegations made that any conspiracy to kill Reed or cover up the events existed before the police
raid took place. Allegations that the officers conspired to cover-up misconduct after the police
raid does not alone point to a constitutional violation of Reed’s rights.
For the first time in her response, Plaintiff states that the alleged conspiracy deprived
Bright of her Fourteenth Amendment right to seek recovery for Reed’s constitutional injuries and
his wrongful death. ECF No. 24 at 16. The Fifth Circuit has held that the right of access to the
courts as guaranteed and protected from unlawful interference and deprivations by the state.
Ryland v. Shapiro, 708 F.2d 967, 972 (5th Cir. 1983). Plaintiff claims that Defendant Custance
and the other officers carried out the alleged conspiracy to obstruct justice or deny Bright’s right
of access to the courts, amounting to a denial of equal protection of the laws by persons acting
under color of state law. ECF No. 24 at 18. However, while the plaintiff does seek leave to
amend her Complaint, the face of Plaintiff’s Complaint does not plead this deprivation of
Plaintiff’s Complaint fails to plead a violation of Reed’s constitutional rights. Therefore,
Defendant Custance’s Motion to Dismiss the § 1983 conspiracy claim is GRANTED.
E. Intracorporate Conspiracy Doctrine
The intracorporate conspiracy doctrine would generally bar Plaintiff’s conspiracy claims.
See Hilliard v. Ferguson, 30 F.3d 649, 653 (5th. Cir. 1994). As it is the general rule that the acts
of the agent are the acts of the corporation. Id. Plaintiff alleges that the Defendant’s reached an
agreement amongst themselves to cover up their actions during the police raid. ECF No. 1 at 16.
The basis of Plaintiff’s allegations are the inconsistencies in the officer’s stories and Defendant
Custances tampering with evidence during the investigation of the raid. Id. at 59.
However, while not addressed directly by the Fifth Circuit, viewed in the light most
favorable to the plaintiff, Custance did engage in the alleged conspiracy for his own personal
purpose of covering up his actions of allegedly shooting an unarmed Reed when Reed posed no
threat. Further, Custance acted outside the scope of his employment by engaging in unauthorized
acts by tampering with evidence. Assuming Plaintiff has successfully pled that there was a
deprivation of Reed’s constitutional rights because of a conspiracy by the Defendants under
§ 1985(3) or § 1983, viewed in the light most favorable to the plaintiff, the allegations are
sufficiently specific to plead exceptions to the intracorporate conspiracy doctrine. Therefore, the
intracorporate conspiracy doctrine does not apply, and Plaintiff’s conspiracy claims are decided
on other grounds.
Accordingly, it is ORDERED Defendant’s Motion to Dismiss is GRANTED in part and
DENIED in part, in accordance with this order.
SIGNED this 31st day of March, 2021.
ALAN D ALBRIGHT
UNITED STATES DISTRICT JUDGE
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