Simpson v. Commonwealth of Virginia et al
Filing
36
MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 09/27/16. (kgra, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
JO ANN SIMPSON, individually
and as personal representative
of the estate of JOSHUA
SIMPSON,
Plaintiff,
v.
COMMONWEALTH OF VIRGINIA, et
al.,
Defendants.
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M E M O R A N D U M
1:16cv162 (JCC/TCB)
O P I N I O N
This matter is before the Court on Plaintiff’s Motion
to Reconsider [Dkt. 29].
Plaintiff seeks reconsideration of
this Court’s Order granting Defendant’s Motion to Dismiss [Dkt.
3], and dismissing Plaintiff’s Complaint [Dkt. 1-1].
For the
following reasons, the Court will deny Plaintiff’s Motion to
Reconsider.
I. Background
The facts of this case were discussed at length in
this Court’s previous Memorandum Opinion issued on July 21, 2016
[Dkt. 27], and are discussed here only as relevant to
Plaintiff’s Motion to Reconsider.
Plaintiff Jo Ann Simpson (“Plaintiff” or “Mrs.
1
Simpson”) brings this suit as the personal representative and
administrator of the estate of the deceased, Joshua Michael
Simpson (“Decedent” or “Mr. Simpson”).
Decedent was an
individual with a mental illness living in Warrenton, Virginia
in 2014.
(Compl., ¶¶ 4, 6.)
Plaintiff brings claims against
Defendant, the Commonwealth of Virginia (“the Commonwealth”);
Defendant, Steven Flaherty in his official capacity as the
Superintendent of the Virginia Department of State Police
(“Superintendent Flaherty”); and Defendants, John Does (“Doe
Defendants”), who are currently unidentified police officers
employed by the Virginia Department of State Police (“VSP”).
(Id. at ¶¶ 7-9.)
Collectively, the Court will refer to the
Commonwealth, Superintendent Flaherty, and the Doe Defendants as
“Defendants.”
On July 21, 2016, this Court issued an Order and
accompanying Memorandum Opinion granting Defendant’s Motion to
Dismiss and dismissing Plaintiff’s Complaint.
On August 18,
2016, Plaintiff filed the instant Motion to Reconsider pursuant
to Rule 59 of the Federal Rules of Civil Procedure.
On August
31, 2016, Defendants filed their Memorandum in Opposition [Dkt.
33].
Plaintiff filed her Reply brief on September 6, 2016 [Dkt.
34].
The motion is set for oral argument on September 22, 2016,
at which point it will be ripe for decision.
2
II. Legal Standard
Plaintiff asks the Court to reconsider its Order
dismissing her Complaint pursuant to Federal Rule of Civil
Procedure 59(e).
A court may amend a judgment under Rule 59(e)
in the following three circumstances: “(1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear error
of law or prevent manifest injustice.”
994 F.2d 1076, 1081 (4th Cir. 1993).
Hutchinson v. Staton,
Amending a judgment “is an
extraordinary remedy that should be applied sparingly.”
Mayfield v. NASCAR, Inc., 674 F.3d 369, 379 (4th Cir. 2012).
In
order to justify reconsideration due to clear error, the error
cannot be “just maybe or probably wrong; it must . . . strike
[the Court] as wrong with the force of a five-week-old,
unrefrigerated dead fish.”
Fontell v. Hasset, 891 F.Supp.2d
739, 741 (D. Md. 2012)(quoting TFWS, Inc. v. Franchot, 572 F.3d
186, 194 (4th Cir. 2009)(citations omitted)).
III. Analysis
Plaintiff contends that relief pursuant to Rule 59(e)
is appropriate here because: (1) there were relevant
developments in Fourth Circuit case law subsequent to oral
argument, but prior to issuance of the Order granting
Defendants’ Motion to Dismiss; and (2) the failure of this Court
to “consider these new cases, as well as [unspecified] other
3
factors,” when ruling on Defendant’s Motion to Dismiss
“represents a manifest injustice.”
(Pl.’s Mem. in Supp. at 2.)
The Court will consider each of these bases for reconsideration
in turn.
A. Failure to Consider New Case Law
Plaintiff first argues that her supplemental brief
cited “new case law that the Court did not cite in its opinion.”
(Pl.’s Mem. in Supp. at 2.)
Plaintiff is correct that the
Court’s previous Memorandum Opinion did not cite every case
included in Plaintiff’s briefings on Defendant’s Motion to
Dismiss.
However, the Court’s decision not to cite to the
authority offered by Plaintiff did not stem from a failure to
consider those cases.
Rather, those cases did not appear in the
forty-two page Memorandum Opinion granting Defendant’s Motion to
Dismiss out of a concern for the efficient management of
judicial resources, as well as because the Court considered them
to be so obviously distinguishable from the case at hand that
extended discussion of them was unnecessary.
To quell
Plaintiff’s concern that this Court may have ignored or
overlooked relevant case law, the Court will now proceed to
discuss and distinguish each case cited by the Plaintiff in her
Motion to Reconsider.
1. Estate of Armstrong v. Village of Pinehurst
Plaintiff first contends that this Court “ignore[d]
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recent Fourth Circuit precedent addressing mental illness,”
specifically the case of Estate of Armstrong v. Village of
Pinehurst, 810 F.3d 892 (4th Cir. 2016).
at 5.)
(Pl.’s Mem. in Supp.
Plaintiff seems to argue that Armstrong stands for the
proposition that the use of force is presumptively unreasonable
when deployed against individuals who are mentally ill.
It
would be far more accurate to say instead that Armstrong
clarified that mental illness is one of several factors that,
when apparent, must be taken into consideration by officers when
deciding when and how to use force.
In Armstrong, police officers attempted to seize the
decedent, pursuant to a mental health custody order, after he
had fled from a nearby hospital.
Armstrong, 810 F.3d at 896-98.
The officers were therefore aware of the decedent’s mental
health issues.
The decedent in Armstrong reacted by “wrapping
himself around a [nearby stop sign].”
Id. at 896.
The decedent
“was stationary, seated, clinging to a post, and refusing to
move” when the officers decided to use a Taser.
Id. at 901.
The Fourth Circuit used three factors to determine
whether the use of force in Armstrong was reasonable: (1) “‘the
severity of the crime at issue;’” (2) “the extent to which ‘the
suspect poses an immediate threat to the safety of the officers
or others;’” and (3) “‘whether [the suspect] is actively
resisting arrest or attempting to evade arrest by flight.’”
5
Id.
at 899 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
Because the Plaintiff appears to only take issue with this
Court’s analysis of the first factor, the second and third
factors will not be discussed here.
The first factor—the severity of the crime at issue—
weighed against the imposition of force in Armstrong, as the
decedent had not committed a crime and was minimally dangerous
at the time that force was used.
Armstrong, 810 F.3d at 899.
While discussing this factor, the Fourth Circuit emphasized that
where “‘a reasonable officer on the scene’ would ascertain” an
individual’s mental illness, he or she “must account for [the
mental illness] when deciding when and how to use force.”
at 900.
Id.
The Plaintiff argues that Armstrong goes even further,
claiming that “officers confronting a person exhibiting
conspicuous signs of mental illness . . . must deescalate the
situation and adjust the application of force downward.”
(Pl.
Mem. in Supp. at 6 (quoting Armstrong, 810 F.3d at 899)
(emphasis added)).
However, the Plaintiff’s artful editing of
the Fourth Circuit’s opinion left out that Court’s efforts to
carefully qualify this language, as it applies only to officers
“who encounter an unarmed and minimally threatening individual.”
810 F.3d at 900.
The Decedent in the instant case was neither
unarmed nor minimally threatening.
As in Armstrong, the officers here were initially
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acting pursuant to a mental health custody order and, as a
result, they were aware of Decedent’s mental health issues.
that is where the similarities with Armstrong end.
But
Going beyond
merely resisting, Mr. Simpson barricaded himself inside his
house, passed police a receipt indicating he had committed a
crime by obtaining a shotgun illegally, and cut off
communication with officers after they attempted to subdue him
with a Taser.
(Compl., ¶¶ 16-17, 23.)
When officers deployed
flashbangs, the Decedent responded by firing shots outside.
(Compl., ¶ 24.)
tear gas.
Later, officers made the decision to deploy
(Compl., ¶ 25.)
Throughout the ensuing standoff, the
Decedent remained barricaded inside his house, continued to
intermittently fire shots outside, and refused to communicate
with police.
(Compl., ¶ 26.)
shots as he did so. 1
He later exited the house, firing
(Compl., ¶ 27.)
Mr. Simpson committed a crime.
In contrast to Armstrong,
This crime then made it possible
for him to be armed and dangerous.
Indeed, Armstrong does not establish that the
Plaintiff’s mental illness must always weigh against the use of
force.
Just like any other factor, there are circumstances,
like those here, where mental illness will weigh in favor of the
force deployed.
The Fourth Circuit recognized this point in
1
Plaintiff’s counsel conceded at the hearing held on September 22, 2016 that
when Mr. Simpson came out of his house firing shots at the police, officers
on the scene were “in a tough spot.” Moreover, “[the officers] may have been
faced with a hostile choice at that point.”
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Armstrong itself, noting that “[m]ental illness, of course,
describes a broad spectrum of conditions and does not dictate
the same police response in all situations.”
Armstrong, 810
F.3d at 900.
To illustrate how mental illness may render the use of
force less reasonable in some contexts and more reasonable in
others, consider the sign post in Armstrong.
Because the
decedent was seated, anchoring himself to the sign post at the
time that force was applied, and because that force led to his
death, the Fourth Circuit held that “the justification for the
seizure [preventing a mentally ill man from harming himself]
does not vindicate any degree of force [a Taser] that risks
substantial harm to the subject.”
97.
Armstrong, 810 F.3d at 896-
If, on the other hand, the decedent had uprooted the sign
post from the ground and began swinging it wildly at officers
and passersby, the sign post’s presence may have made the use of
force more reasonable.
Just as it would be patently absurd to
say that the involvement of a sign post always cuts against the
reasonability of the use of force, regardless of context, so it
would be a distortion of the Fourth Circuit’s reasoning in
Armstrong to say that the decedent’s mental illness always cuts
against the use of force, regardless of context.
The Court read
and seriously considered Armstrong prior to granting Defendant’s
Motion to Dismiss.
It determined then, and reaffirms now, that
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when one considers the totality of the circumstances in both
cases, they are profoundly different and readily
distinguishable.
2. Gandy v. Robey
Plaintiff next contends that this Court’s reliance on
Gandy v. Robey, 520 F. App’x 134 (4th Cir. 2013) is misplaced.
Plaintiff argues that because Gandy did not involve the use of
force against an individual with a mental illness, it is totally
irrelevant to this case.
Admittedly, Gandy has nothing to say
on the role that mental illness plays in assessing the
reasonableness of the use of force.
However, the Court must
consider the totality of the circumstances, “‘with an eye
towards the proportionality of the force in light of all of the
circumstances.’”
Smith v. Ray, 781 F.3d 95, 101 (4th Cir.
2015)(quoting Waterman v. Batton, 393 F.3d 471, 481 (4th Cir.
2005)).
As discussed above, the mental health of an aggrieved
party is only one of many factors that must be weighed.
While
Gandy offered no insight as to the particular impact of
Decedent’s mental illness on the reasonableness of the force
used against the Decedent, it was relevant in assessing the
impact of other factors on the use of force as a whole.
3. Washington v. Jurgens
Plaintiff next argues that the Court failed to
consider Washington v. Jurgens, 2016 U.S. Dist. LEXIS 86321
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(E.D. Va. July 1, 2016), which was issued after oral argument on
Defendants’ Motion to Dismiss, but before the Court ruled on
that motion.
Initially, it should be noted that Washington is a
district court opinion issued by another judge in this Court.
It is thus of informative, but not binding, precedential value.
Plaintiff argues that this Court should follow Washington, as it
“is analogous to the facts here.” (Pl.’s Mem. in Supp. at 8.)
The Court disagrees with this assessment.
Washington involved
the use of a Taser against an individual who was seated in his
vehicle and failed to comply with commands from officers due to
physical impairments caused by a stroke. Washington, 2016 U.S.
Dist. LEXIS 86321, at *2.
The plaintiff in Washington “was not
behaving erratically, did not have a weapon, brandish anything
that looked like a weapon, and gave the [officer] Defendants no
cause to believe that Plaintiff was a potentially dangerous
individual.”
Id.
In contrast, Decedent here had engaged in a
course of behavior, including firing repeated shots at police,
which had given Defendants adequate cause to believe that he was
a potentially dangerous individual.
The facts of this case can
therefore be distinguished easily from Washington.
4. Burruss v. Riley
Finally, Plaintiff points to Burruss v. Riley, 2016
U.S. Dist. LEXIS 77432 (W.D. Va. June 14, 2016), another
district court opinion issued between oral argument on
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Defendant’s Motion to Dismiss and the issuance of this Court’s
ruling on that motion.
In Burruss, the plaintiff’s Section 1983
claim challenged the validity and reasonableness of the
emergency custody order (“ECO”) itself.
Id. at *5.
The
plaintiff also challenged the use of force by asserting a
battery claim under Virginia law. 2
Id.
Although Burruss
determined that the removal of the plaintiff from his car “was
excessive for the circumstances,” it did so only as part of its
analysis of the state law claim.
Id. at *6.
Thus, Burruss is
irrelevant here, as the Plaintiff does not contest the
reasonableness of the initial ECO, nor the reasonableness of the
subsequent warrants, but rather only the reasonableness of the
force used.
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Ultimately, Plaintiff’s Motion to Reconsider fails to
identify any cases of which the Court was unaware or which the
Court failed to consider prior to ruling on Defendant’s Motion
to Dismiss.
The remainder of Plaintiff’s Motion to Reconsider
asserts a patchwork of factual and legal arguments, including
both totally novel arguments and several arguments which the
Court has already heard and considered when ruling on
Defendant’s Motion to Dismiss.
A Motion to Reconsider is not
2
The plaintiff’s complaint in Burruss also included an excessive force claim
under the Fourth Amendment. The Court did not address this claim in its
opinion.
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the proper channel for Plaintiff to rehash prior arguments or
introduce new ones that could have been raised during briefing
or argument on Defendant’s Motion to Dismiss.
See Pac. Ins. Co.
v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998)(holding that a Rule 59(e) motion “may not be used to
relitigate old matters, or to raise arguments or present
evidence that could have been raised prior to entry of
judgment”).
While Plaintiff appears eager to engage in an extended
debate on the merits of this Court’s ruling on Defendant’s
Motion to Dismiss, this is not the purpose of a Rule 59(e)
motion.
Plaintiff has not identified an intervening change in
controlling law that would justify granting relief pursuant to
Rule 59(e). Accordingly, Plaintiff must identify a “clear error
of law” or “manifest injustice” in this Court’s prior Memorandum
Opinion to justify relief pursuant to Rule 59(e).
B. Clear Error of Law or Manifest Injustice
The only “clear error of law” or “manifest injustice”
alleged in Plaintiff’s Motion to Reconsider is the allegation
that the Court applied an impermissibly stringent standard to
Plaintiff’s Complaint when ruling on Defendant’s Motion to
Dismiss.
Despite Plaintiff’s assertion to the contrary, the
Court made every factual inference in the Plaintiff’s favor in
ruling on Defendant’s Motion to Dismiss.
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Plaintiff identifies
three concrete instances where she believes that the Court made
factual inferences from her Complaint in Defendants’ favor.
Two
of the alleged inferences against Plaintiff in this Court’s
previous Memorandum Opinion warrant further discussion.
First, Plaintiff argues that the Court misunderstood
the nature of Decedent’s delusions regarding his model of The
Bridge restaurant and its potential levitation.
Specifically,
Plaintiff contends that the Court mischaracterized Decedent as
waiting for God to tell him to turn himself in when, in fact,
Decedent was only going to continue his holdout if God told him
to do so.
Whether Decedent thought he was going to receive
divine instruction to turn himself in or divine instruction to
continue the siege is irrelevant to the Court’s prior analysis.
The fact remains that Decedent was delusional, armed, and
dangerous.
The existence of his delusions is more relevant than
their precise content.
The Court made no inference against
Plaintiff in finding that Decedent was delusional, as this fact
is readily apparent from the face of Plaintiff’s Complaint.
Second, Plaintiff argues that by attributing the
actions of the canine unit to the Fauquier County Police
Department, rather than one of the named Defendants, the Court
drew an inference against the Plaintiff as to who controlled the
dogs.
(Pl.’s Mem. in Supp. at 4.)
Plaintiff is correct that in
the facts as alleged in her Complaint, the canine unit received
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conflicting commands prior to deploying the dog against
Decedent.
However, Plaintiff’s Complaint is also unequivocally
clear in identifying the canine unit as under the control and
direction of the Fauquier County Police Department, rather than
the Virginia State Police.
The Court drew no inference at all,
let alone one in Defendants’ favor, when it determined that the
canine unit belonged to the Fauquier County Police Department
under the facts alleged.
Plaintiff asserts a hodgepodge of other arguments
regarding imposition of the wrong standard and what it believes
to be this Court’s error in ruling on a statute of limitations
defense at the Rule 12(b)(6) stage.
None of these additional
arguments merits further discussion here.
They have been
considered, and are lacking in merit.
*
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*
Plaintiff has failed to identify any valid grounds for
granting relief from this Court’s Order dismissing her Complaint
under Rule 59(e).
Accordingly, the Court will deny Plaintiff’s
Motion for Reconsideration.
IV. Conclusion
For the foregoing reasons, the Court denies
Plaintiff’s Motion for Reconsideration.
shall issue.
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An appropriate Order
September 27, 2016
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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