Opinion
No. 3:02-CV-2184-D
November 21, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case: This is a civil rights complaint pursuant to 42 U.S.C. § 1983.
B. Parties: Plaintiff is an inmate confined in the state prison system. In his complaint, he named the Dallas Police Department and two officers of that department as defendants in this action. (Compl. at 1, 3.) Plaintiff subsequently amended his complaint to dismiss the Dallas Police Department from this action. ( See Answer to Question 8 of Magistrate Judge's Questionnaire (MJQ)).
Plaintiff's answers to the questions posed by the Court constitute an amendment to the filed complaint. See Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
C. Statement of the Case: Plaintiff complains of "wrongful and unlawful arrest procedure" by the two officer defendants. ( See Compl. at 4.) Specifically, he claims that after he was arrested during a drug investigation and placed in the squad car, the defendants drove recklessly and at "a very high speed" as they tried to apprehend two other alleged drug suspects. ( See id. at 5; Answer to Question 2 of MJQ.) He contends that the officers were "deliberately indifferent" or behaved "in reckless disregard for [his] life and safety." ( See Answer to Question 5 of MJQ.) Although plaintiff sustained "no actual physical injury," he alleges that the manner of driving "could have very easily caused serious physical injuries for all involved." ( See Answer to Question 6 of MJQ.) He claims instead that he "feared" for his safety and life, that his "nerves" have become unbearable, that he has lost confidence, and become insecure and emotionally unstable. ( See Answer to Question 7 of MJQ.) Plaintiff seeks a reprimand for the defendant officers and monetary damages for his mental anguish. (Compl. at 4.)
II. PRELIMINARY SCREENING
The Court has permitted plaintiff to proceed in forma pauperis. His complaint is thus subject to sua sponte dismissal under 28 U.S.C. § 1915 (e)(2). As a prisoner seeking redress from an officer or employee of a governmental entity, plaintiffs complaint is also subject to preliminary screening pursuant to 28 U.S.C. § 1915A regardless of whether he proceeds in forma pauperis. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal, if the Court finds the complaint "frivolous" or if it "fails to state a claim upon which relief may be granted." A claim is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Horvath, 94 F. Supp.2d 768, 769 (N.D. Tex. 2000).
III. SECTION 1983 RELIEF
Plaintiff seeks relief under 42 U.S.C. § 1983 against two officers of the Dallas Police Department for subjecting him to a high-speed pursuit of "other alleged drug suspects." Section 1983 provides a federal cause of action and affords redress 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). To state a claim under § 1983, plaintiff must 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); Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir. 1999).Plaintiff does not identify the particular constitutional amendment which he contends the defendants violated. By his allegation that defendants drove recklessly to pursue "other alleged drug suspects" after his arrest and while he was in their custody, (Compl. at 4), plaintiff appears to assert a claim of excessive force. The Supreme Court has explicitly held that
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, rather than under a `substantive due process approach'. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of `substantive due process' must be the guide for analyzing these claims."Graham v. Conner, 490 U.S. 386, 395 (1989). The Fourth Amendment analysis applies even though the conduct of which plaintiff complains occurred after he was arrested where he was still in the custody of the arresting officers. See Whiting v. Tunica County, 222 F. Supp. 809, 822-24 (N.D. Miss. 2002) (concluding that Fourth Amendment applied to plaintiff's claim arising out of post-arrest events in police car given proximity in time to arrest and fact that plaintiff was still in custody of arresting officer at time of alleged excessive force); Nowell v. Acadian Ambulance Serv., 147 F. Supp.2d 495, 507 (W.D. La. 2001) (holding that plaintiff who complained of events in connection with arrest, while he was still in custody of arresting officers prior to processing and before he was incarcerated to await trial enjoyed the protections of the Fourth Amendment as opposed to the Fourteenth.); compare Valencia v. Wiggins, 981 F.2d 1440, 1449 (5th Cir. 1993) (where incidents of arrest have long since been completed and the pretrial detainee remains in detention, it is the Due Process Clause that provides the appropriate constitutional basis for determining whether a detention official's use of deliberate force on such a detainee is excessive).
"A `seizure' triggering the Fourth Amendment's protections occurs only when government actors have, `by means of physical force or show of authority . . . in some way restrained the liberty of a citizen.'" Graham v. Connor, 490 U.S. 386 395 n. 10 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968)).
The Fourteenth Amendment protects a pretrial detainee from the use of excessive force that amounts to punishment while the Eighth Amendment serves as the primary source of protection for post-conviction claims of excessive force. Graham, 490 U.S. at 395 n. 10.
Assuming for purposes of this motion that plaintiff could assert a claim under the Fourteenth Amendment as some sort of bystander rather than a seized person under the Fourth Amendment, that claim would fail. Under the substantive due process protections of the Fourteenth Amendment, the officers can be held culpable under 42 U.S.C. § 1983 only if they acted with "a purpose to cause harm." See County of Sacramento v. Lewis, 523 U.S. 833, 854 (1998). In view of plaintiff's concession that defendants did not drive recklessly for the very purpose of causing him harm, (see Answer to Question 5 of MJQ), plaintiff can establish no violation of the Fourteenth Amendment.
The Fifth Circuit has established a three-part test for consideration of § 1983 claims of excessive force in violation of the Fourth Amendment. To prevail on a claim of excessive force under § 1983, a plaintiff must demonstrate "(1) an injury which, (2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessiveness of which was (3) objectively unreasonable." Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996) (footnotes and citation omitted).
With regard to the injury requirement, a plaintiff must have "suffered at least some injury." Ikerd, 101 F.3d at 434. However, the Fifth Circuit has not conclusively determined the degree of injury that is required to state a viable excessive force claim under the Fourth Amendment. Flores v. City of Palacios, 270 F. Supp. 865, 872 (S.D. Tex. 2003) (citing Davenport v. Rodriguez, 147 F. Supp.2d 630, 637 n. 2 (S.D. Tex. 2001)). The Fifth Circuit declined to hold that a physical injury is a necessary element of an excessive force claim under the Fourth Amendment in Ikerd. See 101 F.3d at 434 n. 10. On the other hand, the Fifth Circuit subsequently noted in Petta v. Rivera, 143 F.3d 895, 909 n. 22 (5th Cir. 1998) that "as of this date, this Court has never squarely held that non-physical injury is sufficient to establish a violation of the Fourth Amendment." The Petta court did find that a purely psychological injury can support an excessive force claim under the Fourteenth Amendment. 143 F.3d at 900-03. Some courts have read Petta as also allowing Fourth Amendment claims based on purely psychological injuries. See Davenport, 147 F. Supp.2d at 63 7 n. 2 (citing Peters v. City of Biloxi, 57 F. Supp.2d 366, 374-75 (S.D. Miss. 1999); Hodge v. Layrisson, No. CIV. A. 97-555, 1998 WL564263, at *6 (E.D. La. Sept. 1, 1998); Richard v. Harahan, 6 F. Supp.2d 565, 573 (E.D. La. 1998)).
In this case, plaintiff concedes that he sustained no physical injury as a result of defendants' actions in driving at a high-rate of speed for a few minutes in an attempt to apprehend other drug suspects. He alleges that as a result of defendant's actions, he "feared" for his safety and life, that his "nerves" have become unbearable, that he has lost confidence, and become insecure and emotionally unstable. Assuming, without deciding, that plaintiff's alleged non-physical injuries are sufficient to establish a violation of the Fourth Amendment, the totality of the circumstances shows no objectively unreasonable excessive force by the defendants. See Harahan, 6 F. Supp.2d at 573 ("The absence of physical injury, however, is a factor that may signify that the force was not excessive, and it should be considered with the totality of the other circumstances.") (citing Petta, 143 F.3d at 901).
A. Reasonableness
The reasonableness standard of the Fourth Amendment is one of "objective reasonableness." Graham, 490 U.S. at 397. The determination of whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake. Id. at 396-97.
The "reasonableness" of a particular use offeree is judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers . . . violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.Id. (citations omitted).
In examining the totality of the circumstances in this case, the Court must consider the situation in which the defendant officers made their decision to pursue "other alleged drug suspects" after arresting plaintiff and placing him in the squad car. To gauge the reasonableness of defendants' actions from the perspective of a reasonable officer at the scene, the split-second decisions that the officers faced must be taken into consideration. The Court must balance the nature and quality of the intrusion on plaintiffs Fourth Amendment interests against countervailing governmental interests.
As a matter of law, the allegations asserted against defendants in this case do not rise to the level of violating the Fourth Amendment prohibition on unreasonable seizures. From the perspective of a reasonable officer on the scene, the conduct of the defendant officers appears objectively reasonable. After arresting plaintiff, they placed him in the squad car and pursued "other" criminal suspects for "several minutes." The circumstances that the officers faced necessitated a split-second decision as to whether to proceed to the police station with plaintiff or to pursue "other drug suspects" in the vicinity. The decision to pursue other suspects at a high speed for several minutes appears entirely reasonable from the perspective of a reasonable officer at the scene. See also Dismukes v. Hackathorn, 802 F. Supp. 1442, 1450 (N.D. Miss. 1992) (even accepting plaintiffs' argument that the collision injuring them would not have occurred but for the police's high speed pursuit of a speeding suspect, the court found that the high-speed chase was not objectively unreasonable).
Furthermore, the alleged several-minute intrusion on plaintiff's Fourth Amendment interests pales in comparison to the countervailing governmental interests at stake. The government has a strong interest in maintaining order and apprehending "drug suspects." In general, the police cannot simply immediately halt their search for other culprits when they have made one arrest. In this case, the government's interest in maintaining order and apprehending suspected wrong-doers clearly outweighs the nature (brief, high-speed pursuit of other drug suspects) and quality (resulting in no physical injury to plaintiff but instilling fear in him) of defendants' intrusion on plaintiff's Fourth Amendment rights. Under the facts alleged by plaintiff, the actions of defendants are objectively reasonable as a matter of law.
Having carefully balanced the nature and quality of the intrusion on plaintiff's Fourth Amendment interests against the countervailing governmental interests at stake, and having reviewed the situation through the eyes of a reasonable officer at the scene, the Court finds that the allegations asserted against defendants in this case do not rise to the level of violating the Fourth Amendment prohibition on unreasonable seizures as a matter of law.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court summarily DISMISS plaintiffs complaint with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b). Such dismissal will count as a "strike" or "prior occasion" within the meaning 28 U.S.C. § 1915(g).
Section 1915(g), which is commonly known as the "three-strikes" provision, provides: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBTECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Sews. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).