Newsome v. Watson et al

Filing 22

MEMORANDUM OPINION AND ORDER: denying 17 Motion to Dismiss for Failure to State a Claim. Defendant's Motion to Dismiss the Second Amended Complaint is DENIED. Plaintiff has set forth sufficient facts to render his § 1983 claim against Of ficer Watson and Officer Williams plausible on its face, which enables the Court to draw the reasonable inference of liability for the misconduct alleged. Copies distributed to all counsel of record.Signed by District Judge Raymond A. Jackson and filed on 8/22/2014. (bgra, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

FILED
AUG 2 2 2014

BENJAMIN NEWSOME, Administrator of
CLERK, US DISTRICT COURT

Estate of Joshua Johnson,

NORFOLK. VA

Plaintiff,
CIVIL ACTION NO. 2:14cv94

v.

MATTHEW WATSON ct al.,
Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants Matthew Watson and Mathew Williams" ("Defendants")

Motion to Dismiss Count I of the Second Amended Complaint. ECF No. 17. Plaintiff Benjamin

Newsome ("Plaintiff), the administrator of the estate of Joshua Johnson ("Johnson"), filed the

Second Amended Complaint as an attempt to cure the deficiencies in his factual allegations
regarding Defendants* alleged violation of Johnson's Fourth Amendment right to be free from
excessive force and unreasonable seizure. Defendants request dismissal of Count 1. a 42 U.S.C.

§ 1983 claim, arguing that Plaintiff has not stated a cause of action upon which relief may be

granted. This matter has been fully briefed and is ripe for determination. For the reasons set
forth herein, the Motion to Dismiss is DENIED.
I. FACTUAL & PROCEDURAL HISTORY

The facts, stated in the light most favorable to Plaintiff, are as follows: On May 20. 2013

at approximately 2:40 p.m.. Johnson was operating a motor vehicle in the drive-through lane of a
bank around the 2000 block of Colonial Avenue in Norfolk, Virginia. Second Am. Compl. "j 4.

Watson and Williams, police officers for the City of Norfolk, arrived at the bank to arrest
Johnson for a non-violent property crime. Id. at"'*" 1. 4. Officer Watson pulled the police

cruiser in front of Johnson's vehicle. Id. at 114. Officer Williams approached and walked closely

near the rear of Johnson's vehicle after emerging from the area of bank building, and Johnson

was notaware of his presence. Id. at ffi[ 4-5. Defendants "barricaded" Johnson's vehicle in the
bank drive-through lane, and Johnson's only means of egress was to "back up." Id. at *il 4.

Consequently, Johnson slowly reversed his vehicle away from Officer Watson's police cruiser

through the tight space between the bank building and thecurbed island of the drive-through
lane. Id. at *lffl 7-8. Officer Watson followed Johnson's vehicle on foot with his service weapon
drawn. Id. at \ 8. Despite the fact that Johnson was unarmed, Officer Watson fired and shot
Johnson. Id. at Iffi 4-5. Officer Watson also shot Officer Williams. Id. at 14. Johnson died
from his injuries. Id.

Plaintiff initially brought this action pursuant to 42 U.S.C. §1983 against Officers Watson
and Williams, alleging that Johnson's Fourth Amendment right to be free from excessive force
and unreasonable seizure had been violated by Defendants. ECF No. 1-4. The Complaint was

originally filed in the Circuit Court of the City of Norfolk on February 4,2014. On March 6,
2014, Defendants removed the case to federal court. ECF No. 1. Defendants moved to dismiss

the Complaint on March 13,2014. ECF No. 2. On April 1, 2014, Plaintiff filed his Amended

Complaint to add an additional count for Battery, which Defendants moved to dismiss on April
11,2014. ECF Nos. 7,9. The Court denied dismissal as to Count II because Plaintiff included

enough factual content to state a battery claim against Officer Watson, but granted dismissal of
Count I without prejudice with leave to amend to plead sufficient facts to establish a
constitutional violation upon which relief may be granted. ECF No. 13. Plaintiff filed his

Second Amended Complaint, ECF No. 15, on June 18, 2014, and Defendants filed the instant

Motion to Dismiss Count I on July 7, 2014. Plaintiff's submitted an opposition to dismissal on

July 17,2014 and Defendants submitted a rebuttal briefon July23,2014.
II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2) requires that, in addition to a statement of the

court's jurisdiction and a demand for relief, a complaint must contain a "short and plain
statement of the claim showing that the pleaderis entitled to relief." Federal Rule of Civil

Procedure 12(b)(6) provides for the dismissal of actions that fail to statea claim upon which
reliefcan be granted. A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the

sufficiency of a complaint, Francis v. Giacomello, 588 F.3d 186,192 (4th Cir. 2009), and should

be granted if the complaint does not allege "enough facts to state a claim to relief that is plausible
on its face." Bell All. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard

requires a plaintiff to demonstrate more than a "sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. Courts will favorably construe the

allegations of the complaint and assume thatthe facts alleged in the complaint are true. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, a court "need not accept the legal

conclusions drawn from the facts," nor "accept as true unwarranted inferences, unreasonable
conclusions, or arguments." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180
(4th Cir. 2000).
III. DISCUSSION

Count I of the Second Amended Complaint asserts that Defendants, within the scope of

theiremployment as police officers, subjected Johnson to deadly force, thereby depriving him of

his protected right to be free from excessive force and unreasonable seizure conferred by the
Fourth Amendment. Second Am. Compl. %14. Defendants, in seeking dismissal of Count I of

the Second Amended Complaint, argue that Plaintiffs allegations of constitutional violations do
not amount to a cognizable § 1983 claim. See Defs.' Mot. Dismiss 1-2. In particular,

Defendants challenge such allegations regarding their conductbefore and during the use of

deadly force as irrelevant or vague. Id. Plaintiff maintains that the Second Amended Complaint
addresses the deficiencies cited by the Court in its Order granting-in-part the previous motion to

dismiss, and that he pleads facts related to the officers' placement at the scene and the movement
of Johnson's vehicle immediately prior to and during the shootingto demonstrate that neither
officer's conduct was reasonable under the circumstances. PL's Opp'n Mot. Dismiss 7-11.

Section 1983 of Title 42 of the United States Code permits any individual who is

deprived of one of his federal 1y protected rights by a state official to bring a civil claim for

damages. Section 1983 "provides a federal cause of action for the deprivation, under color of
law, of a citizen's 'rights, privileges, or immunities secured by the Constitution and laws' of the
United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). "Section 1983 is not itself a

source of substantive rights, but merely provides a method for vindicating federal rights
elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271 (1994) (citations omitted). To state

a claim under § 1983, a plaintiffmust allege facts that show (1) he has been deprived of a right
secured by the Constitution and the laws of the United States; and (2) the deprivation occurred
under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978). Defendants
contend that Plaintiff has failed to satisfy the first requirement and has not demonstrated any

actionable deprivation of a right. Plaintiffasserts that Defendants violated Johnson's Fourth
Amendment right to be free from excessive force and unreasonable seizure.

Apolice officer may conduct an arrest, investigatory stop, or other "seizure" if he has

probable cause to believe that a person committed a crime, see United States v. Watson, 423 U.S.
411 (1976), but such seizure must be conducted with a reasonable use of force in order to be
constitutional. See Graham, v. Connor, 490 U.S. 386, 388 (1989). To state a claim for excessive

force during a seizure, a plaintiff must first allege that he was seized and then allege that he

suffered an injury directly and only from the use of force that was excessive to the need and

objectively unreasonable. Flores v. City ofPalacios, 381 F.3d 391, 396 (5th Cir. 2004). To
establish that the use of deadly force was excessive, a plaintiff must show that theofficer did not

have "probable cause to believe that the suspect pose[d] a significant threat ofdeath or serious

physical injury to the officer or others." Tennessee v. Garner, 471 U.S. 1, 3 (1985).
A claim that law enforcement officials used excessive force in the course of a seizure is

properly analyzed under the Fourth Amendment's "objective reasonableness" standard. The
United States Supreme Court has clarified that the core inquiry is whether the force used was

"objectively reasonable" based on the perspective ofa reasonable officer at the scene in light of
the circumstances asthey existed at the moment force was used. Scott v. Harris, 550 U.S. 372

(2007); Graham, 490 U.S. at396; see also Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir. 1996);
Anderson v. Russell, 247 F.3d 125, 132 (4th Cir. 2001). Whether an officer's action was

objectively reasonable is heavily fact dependent, and requires balancing of"the nature and
quality ofthe intrusion on the individual's Fourth Amendment interests" with "the countervailing
governmental interests at stake." Graham, 490 U.S. at396; accord Milstead v. Kibler, 243 F.3d
157, 162 (4th Cir. 2001). Pursuant to the Supreme Court's ruling in Graham v. Connor,

balancing these interests requires an examination ofthe totality ofthe circumstances, including
such factors as (1) how severe the crime being investigated is, (2) whether the individual in

question poses an immediate threat to the safety of the officers or other people, (3) whether the
individual is fleeing or actively resisting arrest, and (4) the severity of the plaintiffs injuries.
Saucier v. Katz, 533 U.S. 194, 202 (2001); see also Ciminillo v. Streicher, 434 F.3d 466,467

(6th Cir. 2006) ("Graham factors do not constitute an exhaustive list; the ultimate question is

'whether the totality of the circumstances justifies a particular sort of seizure.'"). These factors
must be considered from the perspective of a reasonable officer on the scene based on the
information available to the officer at the moment force is employed. Elliott, 99 F.3d at 643.

For purposes of Fourth Amendment analysis, the parties do not dispute that Johnson was
"seized" when he was shot. See Garner, 471 U.S. at 25 (noting that the police officer who shot

at a fleeing suspect had "seized" the suspect by shooting him). Therefore, the focus of this
Court's discussion is whetherthe particular use of force that led to the decedent's injury was

reasonable in light of the prevailing circumstances and from the perspective of a reasonable
officer on the scene. Scott v. United States, 436 U.S. 128, 137-39 (1978). The Court will apply

the objective reasonableness standard to each defendant individually, beginning with Officer
Watson.

First, Defendants argue that Plaintiffhas not pled facts to show that Officer Watson acted

unreasonably under the Graham standard. Defs.' Mem. Mot. Dismiss 11, ECF No. 18. Plaintiff
suggests thateven though the unarmed Johnson did not take any threatening or aggressive action,
Officer Watson shot him when an objectively reasonable policeman would not have fired. PL's

Opp'n 3. Plaintiff has alleged sufficient facts to support a theory of culpability against Officer
Watson based upon his: (1) positioning his police cruiser directly in front of Johnson's vehicle
while it was parked in a confined drive-through lane to make an arrest for a non-violent property
crime; (2) acting in concert with his partner for Officer Williams to approach from behind and

remain concealed; (3) exiting his police cruiser and brandishing his firearm; (4) taking actions

that left Johnson with reverse as his only means of egress; (5) firing his gun even though Officer

Williams was yards away from Johnson's vehicle and Johnson was moving as slowly as Officer
Watson's paceon foot; and (6) violating a police safety rule prohibiting fire upon a fleeing,
unarmed and non-threatening arrestee. Id. at 3-4, 8-9. These actions, when viewed under the

totality of the circumstances standard and construed as true, may be inferred as objectively
unreasonable given the lack of threat of serious bodily harm that Plaintiffposed during the

pursuit immediately before the seizure occurred, as evidenced by the slow movement of
Johnson's vehicle and the location of the officers. In sum, the facts alleged and the reasonable

inferences arising therefrom are sufficient to support a claim that Officer Watson committed a
violation of Johnson's Fourth Amendment right; thus the Second Amended Complaint states a

claim pursuant to § 1983 against Officer Watson and dismissal is denied.
Second, the Court will apply the objectively reasonable standard to Officer Williams'
conduct. Even though Johnson's injuries were not attributable to any use of force by Officer
Williams, Plaintiffalleges that Officer Williams caused Johnson to be subjected to excessive

deadly force byacting in concert with Officer Watson and by acting individually to manufacture
the circumstances leading to the seizure. Specifically, Plaintiffclaims that Officer Williams

emerged from safety and placed himselfin the path of Johnson's vehicle, leaving Johnson with
reverse as his only means of egress and without opportunity to react. PL's Opp'n 9-10. Plaintiff

attempts to establish a causal connection between Officer Williams' conduct and the seizure by

arguing thathe set in motion a series of acts which he knew could cause Officer Watson to inflict
the constitutional injury. Id. at 10.

According to case law of the United States Court of Appeals for the Fourth Circuit
("Fourth Circuit"), in order to hold an officer liable for excessive force, the officer's actions must

have directly or proximately caused the plaintiffs injuries. See Shaw v. Stroud, 13 F.3d 791, 800
(4th Cir. 1994) ("[T]he causal link in § 1983 cases is analogous to proximate cause"); Slakan v.
Porter, 737 F.2d 368, 376 (4th Cir. 1984) ("Though [prison officials'] conduct may be fairly

characterized as a breach of their legal and constitutional duties, they are not liable unless an
affirmative causal link exists between their [ajction and the harm suffered by [the plaintiff].")-

Moreover, "each Government official, his or her title notwithstanding, is only liable for his or her

own misconduct," Iqbal, supra, 556 U.S. at 677. It follows that Officer Williams may be liable
for a constitutional violation when proximate causation for Plaintiffs injuries is supported by a

showing that he acted in concert with Officer Watson to effectuate the seizure or knew or should
have known that his actions would manufacture the circumstances leading to the seizure.

The Second Amended Complaint alleges that Officer Williams caused Johnson's death
because he set in motion the events that led to the shooting. In terms of Officer Williams acting
in concert with Officer Watson, Plaintiffalleges sufficient facts to show that it is plausible that at
the moment before the seizure, the officers created the situation which gave rise to the fatal

shooting because Officer Williams knowingly stood in thevehicle's path and Officer Watson

knew his partner was not in danger of death or serious physical injury. In terms ofOfficer
Williams' individual actions, Plaintiff has provided the necessary factual content to show that he
manufactured circumstances in which he knew or should have known that Johnson would not see

him near the vehicle and Officer Watson would respond with excessive force to protect him.

Plaintiffs challenge to Officer Williams' approach suggests that "the force would have been

avoided if [the policeman] had approached [the suspect] as required by proper police

procedures," and this argument relates to whether "the officer [had] reason to believe, at that
moment [the shooting occurred], that there was a threat of physical harm." Drewitt v. Pratt, 999
F.2d 774, 779 (4th Cir. 1993). Plaintiffspecified that immediately before and during the

shooting, Officer Williams stood directly near Johnson's moving vehicle for Officer Watson to

perceive him to be in danger. While Plaintiff stated that "Williams was a sufficient distance
from Johnson's vehicle as it slowly moved backward," Plaintiff also alleges that Officer

Williams positioned himself in a place where he knew or should have known that Officer
Watson would have to assess the threat of death or serious physical harm and consider the use of

deadly force. PL's Opp'n 8. Plaintiff has provided sufficient facts to allege that, at the relevant
moments, Officer Watson was aware of Officer Williams' location and misjudged the threat of
significant harm as a result of Officer Williams' misconduct.

Additionally, in light of the allegations that Officer Williams stood in the path of
Johnson's vehicle to knowingly cause the seizure, Plaintiff has established that this type of

"effective causation" may state a cognizable claim for an excessive force § 1983 cause of action.
Plaintiff cites three cases from courts outside of the Fourth Circuit which furnish some guidance.

The First Circuit Court of Appeals held in Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561

(1st Cir. 1989), that the "requisite causal connection can beestablished not only by some kind of

direct personal participation in the deprivation, but also by setting in motion a series of acts by
others which the actor knows or reasonably should know would cause others to inflictthe

constitutional injury," and Plaintiff has demonstrated that Officer Williams knew or should have
known that standing near the vehicle would cause Johnson to move in reverse and would cause
Officer Watson to shoot. The Seventh Circuit held in Starks v. Enyart, 5 F.3d 230, 234 (7th Cir.

1993), that if an officer stepped in front of a rapidly moving vehicle and left the decedent no time

to brake, then the officer "would have unreasonably created the encounter that ostensibly

permitted the use of deadly force to protect him, because the decedent would have been unable to
react in order to avoid presenting a deadly threat." Here, Plaintiffs allegations infer that Officer

Williams placed himself near Johnson's vehicle and that, regardless of the speed of Johnson's
vehicle, he unreasonably created the encounter where Officer Watson shot in direction of both
Johnson and Officer Williams. The Sixth Circuit held in Kirby v. Duva, 530 F.3d 475,482 (6th

Cir. 2008), that it was unreasonable for the officers who shot and killed a suspected drug dealer

during a traffic stop to have believed that the suspect posed a threat of serious physical harm to
the officers or to others because the suspect's vehicle was moving in a non-aggressive manner,

could not have hit any of the officers, and was stationary at the time of shooting, and, in addition,
the officers had sufficient time to assess the situation. Plaintiff stated that at the time of the

shooting, Officer Williams was a sufficient distance away from Johnson's vehicle, which was
moving at a slow speed to allow both officers to assess the threat of danger appropriately.
Based on the totality of the circumstances, the Court concludes that Plaintiff has provided

sufficient factual allegations to establish that Officer Williams acted in concert with Officer
Watson. Moreover, the Court finds that Plaintiff has established that immediately before and

during the shooting, it may have been objectively unreasonable for an officer at the scene to

emerge from the bank building to stand near an arrestee's vehicle as did Officer Williams.
Likewise, Plaintiff has established that Officer Williams knew or should have known that
Johnson would reverse his vehicle toward where he stood and Officer Watson would react with

excessive force. The Second Amended Complaint satisfies it burden of alleging that Officer

Williams, either individually or in concert, engaged in conduct immediately before and during

the shooting that iscausally connected to Officer Watson's allegedly excessive force and
10

unreasonable seizure. Plaintiff pleads facts for his § 1983 claim against Officer Williams to
survive dismissal.
IV. CONCLUSION

For the foregoing reasons. Defendant's Motion to Dismiss the Second Amended

Complaint is DENIED. Plaintiff has set forth sufficient facts to render his § 1983 claim against
Officer Watson and Officer Williams plausible on its face, which enables the Court to draw the
reasonable inference of liability for the misconduct alleged.
The Clerk is DIRECTED to send a copy of this Order to the parties.
IT IS SO ORDERED.

Norfolk, Virginia

Rayumnti it lackson

August j,

United States District Judge

. 2014