Opinion
Civil Action No: 99-2010 Section: "C"(4)
July 18, 2000
D. Douglas Howard, Jr., Howard, Laudumiey, Mann, Reed Hardy, New Orleans, LA, for Plaintiffs.
Franz L. Zibilich, Martiny Caracci, Metairie, LA, Michael Courtney Keller, Louisiana Dept. of Justice, New Orleans, LA, Gilbert R. Buras, Jr., New Orleans, LA, Gerald J. Nielsen, Thomas Christopher Pennebaker, Nielsen Law Firm, Metairie, LA, for Defendants.
ORDER AND REASONS
Benjamin L. DeMoux, a second year law student at Tulane Law School, assisted in the research and preparation of this decision.
This matter is before the Court on defendant Major Kevin Armstrong's "Motion for Judgement on The Pleadings" brought under Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiffs, Marilyn Youngblood, wife of/and Bobby Youngblood, individually and on behalf of their minor son, Bobby Youngblood, IT, have brought federal-and state-law claims against various defendants in connection with an altercation during a traffic stop. Major Armstrong, an officer with the Louisiana State Police, was not actually at the scene, but was, at the time of the alleged incident, the supervisor and Captain of the troopers involved in the stop. Plaintiffs base jurisdiction on 28 U.S.C. § 1983, 1985(3), 1986, and 1988 and on the Second, Fourth, Fifth, Six, Eighth, and Fourteenth Amendments. Jurisdiction for state law claims is based on 28 U.S.C. § 1367. Defendant Kevin Armstrong seeks dismissal of the federal claims on grounds that plaintiffs have not presented sufficient evidence to overcome his right to qualified immunity.
Having considered the record, the applicable law and the briefs of the parties, the Court grants the motion in part and denies it in part for the following reasons.
Analysis
1. Standard of Review
In reviewing a motion under Rule 12(c), the Court must base its decision solely on the pleadings. The court in Park Center, Inc. v. Champion International Corp., 804 F. Supp. 294, 301 summarized the standard of review succinctly:
"On a motion for judgment on the pleadings, Federal Rule of Civil Procedure 12(c) requires the Court to view the pleading in the light most favorable to, and to draw all reasonable inferences in favor of, the nonmovant. The Court may grant judgment on the pleadings if it appears beyond doubt that the nonmovant can plead or prove no set of facts . . . which would entitle him to relief."
This Court adopts the Park Center standard and applies it to the questions of qualified-immunity present in this case.
2. Qualified Immunity
While performing discretionary functions, government officials are shielded from liability for civil damages unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738 (1982) Because qualified immunity is a defense against suit, and not simply liability, the immunity issue should be resolved at the earliest possible stage of the litigation. See Hunter v. Bryant, 112 S.Ct. 534, 536 (1991)
A. Standard for Qualified Immunity.
The test for determining whether qualified immunity applies in a given matter is twofold: (1) whether the plaintiff has alleged a violation of a clearly established constitutional right and (2) if so, whether the defendant's conduct was objectively unreasonable in the light of clearly established law at the time of the incident. See Hare v. City of Corinth, Miss., 135 F.3d 320, 325 (5th Cir. 1998); Harper v. Harris County, 21 F.3d 597, 600 (5th Cir. 1994). Therefore, to defeat judgment on the pleading based on a qualified immunity defense, the plaintiff must specifically allege actions that would show, if proven, that the defendant official violated a clearly established constitutional right, and they must be allegations that also show, if proven, that his conduct was objectively unreasonable. in this case, plaintiffs allege, inter alia, that Kevin Armstrong ordered other defendants to perform various unlawful acts, that he acted with actual malice, and that he encouraged and tolerated policies of racial discrimination, profile stops (police stops based on the race of the individual stopped) and excessive use of force. The Court finds that these acts, if proven, would constitute violations of clearly established constitutional rights.
In U.S. v. Causey, the Fifth Circuit held that "the right to liberty includes the principle that no person shall by physically assaulted, intimidated or otherwise abused intentionally and without justification by a person acting under color of law." 185 F.3d 497 (5th Cir. 1999). Hence, there is little question that an excessive use of force violates the constitutional rights against the individual against whom such force is used. The plaintiffs' pleadings present sufficient allegations to create at least a question of fact as to whether excessive force was used.
However, Armstrong argues that he can not be held liable for any excessive use of force because he was not at the scene and he is not liable for the acts of his subordinates. Indeed, it is true that the protections of qualified immunity do not allow for any form of vicarious liability. See Alton v. Texas AM University, 168 F.3d 196, 200 (5th Cir. 1999); Monell v. Demartment of Social Services, 98 S.Ct. 2018, 2036-38 (1978) However, a supervisor may be held liable if he directs, orders, or approves of the acts. See Ford v. Byrd, 544 F.2d 194 5th Cir. 1976). This is precisely what the plaintiff's complaint alleges. Further, because the right of individuals to be secure from police abuse is well-established, the court finds that no reasonable official could order others to assault, intimidate and abuse racial minorities without realizing that such acts violate the rights of those abused. Thus, the Court finds that the plaintiffs' have alleged facts sufficient to show, if proven, that Armstrong violated the rights of Bobby Youngblood, II, under the Fourth and Fourteenth Amendments.
The Court further notes that supervisory officials may be liable where enforcement of a policy or practice deprives an individual of a constitutionally protected right. See Doe v. Dallas Independent School District, 153 F.2d 211, 215-216 (5th Cir. 1998). The Fifth Circuit has established a three-part test for deciding when liability for such a policy may attach to a supervisory official. The plaintiff must show that: (1) the official knew that the subordinate was likely violating the plaintiff's civil rights; (2) the official demonstrated deliberate indifference in failing to intervene; and (3) this failure caused a constitutional injury. See Alton, 168 F.3d at 200. In the instant case, the plaintiffs allege that Armstrong ordered the beatings of the Bobby Youngblood, II, satisfying the first and third requirements. Further, the fact of the order is sufficient to infer deliberate indifference.
The Court emphasizes that the above analysis is based on its duty to assume the truth of the plaintiffs' factual allegations in its analysis of the motion at bar. The Court notes that the plaintiffs must actually prove these factual allegations at trial to overcome Armstrong's defense of qualified immunity.
B. Other claims.
With regard to the plaintiffs' other claims, specifically, claims under the Second, Fifth, Six, and Eighth Amendments for all three plaintiffs and the Second, Fourth, Fifth, Six, Eighth, and Fourteenth Amendments claims of Marilyn Youngblood, wife of/and Bobby Youngblood as individuals, the Court finds that they are without merit. Further, they are not mentioned in the plaintiffs' brief in opposition to the motion at bar and are therefore deemed abandoned.
3. Conclusion
In conclusion, the court finds that the defendant Kevin Armstrong's motion for judgment on the pleadings has merit with regard to some of the federal claims, but not others.
Accordingly,
IT IS ORDERED, that Major Armstrong's motion for judgment on pleadings with regard to the claims of Marilyn Youngblood, wife of/and Bobby Youngblood, on behalf of their minor son Bobby Youngblood, II, based on the Fourth and Fourteenth Amendments is DENIED. Judgment on the pleadings with regard to all plaintiffs claims under the Second, Fifth, Six and Eighth Amendments and with regard to all other federa1 claims or Marilyn Youngblood and Bobby Youngblood as individuals is GRANTED and such claims are DISMISSED.