Opinion
No. 1:05-CV-109.
September 13, 2005
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case is referred to the undersigned United States magistrate judge for pretrial proceedings. The referral order directs the magistrate judge to hear and determine matters within his dispositive authority, and to submit a report containing proposed findings of fact, conclusions of law, and a recommended disposition of other matters. Bmt. Gen. Order 04-07 at ¶ 2.
All defendants move for dismissal or, alternatively, for a more definite statement or Rule 7 reply. Determination of these motions is a complex exercise because requirements for stating a claim upon which relief can be granted, or, alternatively, for pleading with sufficient clarity that the sued party can frame a responsive pleading, vary significantly depending on each defendant's status. Thus, if a single report were to address every defendant's motion, the result would be a massive, unwieldy and brain-deadening document. For analytical simplicity, this report deals only with the motion of three of the defendants who are similarly situated. Subsequent reports will target the motions of the remaining defendants.
I. NATURE OF SUIT; PARTIES
This action was filed originally in the 172nd Judicial District Court of Jefferson County, Texas. It was removed to federal court on the basis of federal question jurisdiction. Plaintiff alleges three causes of action: (1) negligence under the Texas Tort Claims Act; (2) violation of federal civil rights under Title 42, United States Code, Section 1983 ("Section 1983"), and (3) conspiracy to interfere with federal civil rights under Title 42, United States Code, Section 1985 (2) and (3) ("Section 1985").
Plaintiff is Brenda Batiste, a resident of Beaumont, Texas. Defendants are the City of Beaumont, Texas, the City of Beaumont Police Department, the Beaumont Chief of Police, Tom Scoefield ( sic), and three police officers, Paul Perrit, Ray E. Beck and Darlene Wisby. All defendants are located and reside in Jefferson County, Texas.
The court may take administrative notice that the correct spelling of the Beaumont Chief of Police's surname is "Scofield."
II. BACKGROUND
Plaintiff's state court petition contains scarce factual allegations regarding circumstances giving rise to this action. A fair reading suggests that Beaumont police officers encountered plaintiff on June 22, 2004, during a keeping-the-peace incident. At some point, plaintiff was handcuffed, restrained and transported to a mental health medical center, Spindletop MHMR. Plaintiff alleges that officers Perrit, Beck and Wisby struck, kicked and dragged her. On more than one occasion, the officers used a taser gun. At the medical center, plaintiff alleges that a female officer, presumably Wisby, restrained her on the floor by sitting on her, while an unidentified officer pressed a finger into her throat.III. CLAIMS
Plaintiff asserts that defendants Perritt, Beck and Wisby are liable under the Texas Tort Claims Act because they were negligent in misusing their taser guns and handcuffs. Plaintiff also pleads negligence per se, but does not cite a statute imposing a specific duty of care. Finally, plaintiff invokes the common-law tort doctrine of respondeat superior, presumably to impose vicarious liability on the city and its police department.
Under Section 1983, plaintiff asserts that defendants Perritt, Beck and Wisby acted under color of state law as employees of the Beaumont Police Department, and at the direction of Tom Scofield. Collectively, they allegedly violated a laundry list of unspecified constitutional rights. Plaintiff's list, reprinted verbatim in the note, is re-characterized for meaningful analysis as follows: Constitution Section Right Allegedly Violated FIRST FOURTH SIXTH FOURTEENTH FOURTEENTH
Section 1983 creates a private right of action for constitutional violations:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983.
Pl's Pet. at ¶ 35:
1. Freedom of speech and press;
2. Peaceable assembly and association;
3. Petition the government for redress of grievances;
4. Freedom from illegal seizure of her person, papers, and effects;
5. Freedom from unlawful arrest;
6. Freedom from illegal detention and imprisonment;
7. Freedom from physical abuse, coercion and intimidation;
8. The timely and effective assistance and advice of counsel;
9. Participate in or enjoy any benefit or service provided by the federal or state government.
IV. DEFENDANTS' MOTION
Defendants argue that plaintiff cannot maintain a cause of action under the Texas Tort Claims Act against the individual defendants because Texas law precludes Tort Claims Act suits against individual employees of governmental units when a plaintiff files suit against the governmental unit. Defendants rely on Texas Civ. Prac. Rem. Code Ann. § 101.106(a), (e) (Vernon Supp. 2004) as support for their contention that dismissal of the negligence-based cause of action against defendants Scofield, Perrit, Beck and Wisby is proper.
Defendants argue that plaintiff's civil rights claims under Sections 1983 and 1985 should be dismissed because plaintiff's factual averments do not overcome their defense of qualified immunity. Additionally, defendants contend these claims should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) because plaintiff asserts only conclusory allegations.
Unfortunately, plaintiff's response — filed after the court first granted two extensions of time within which to respond — does not address any of defendants' arguments directly. Rather, it consists of general platitudes about rules of pleading (e.g., pleadings construed liberally; complaints need only provide short and concise statement of facts; orders requiring more definite statements disfavored, etc.). Specifically, plaintiff does not address (1) defendants' contention that the Texas Tort Claims Act bar against suits against the government entity and its employees, (2) defendants' contention that civil rights plaintiffs must plead facts sufficient to overcome qualified immunity, or (3) defendants' argument that the civil rights complaints fail to state a claim when they contain only conclusory allegations.
IV. PRINCIPLES OF ANALYSIS
A. Texas Civil Practice Remedies Code § 101.106The Texas Tort Claims Act requires plaintiffs to choose between suing either a governmental entity or a governmental employee. Tex. Civ. Prac. Rem. Code Ann. § 101.106(a) (Vernon Supp. 2004). The provision, applicable to suits brought after September 1, 2003, provides:
The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.Id. The statute provides for enforcement by way of dismissing governmental employees from suit:
If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.Id. § 101.106(e).
B. Rule 12(b)(6), Federal Rules of Civil Procedure
Federal Rule of Civil Procedure 12(b)(6) allows dismissal when the complaining party fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). On a Rule 12(b)(6) motion, the court must decide whether the facts alleged, if true, would entitle plaintiff to some legal remedy. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Dismissal is proper only if there is either: (1) "the lack of a cognizable legal theory," or (2) "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). "Normally, in deciding a motion to dismiss for failure to state a claim, courts must limit their inquiry to facts stated in the complaint and the documents either attached to or incorporated in the complaint." Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir. 1996).
The court must accept as true all material allegations in the complaint as well as any reasonable inferences to be drawn from them. See Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). Moreover, well-pleaded facts must be reviewed in the light most favorable to plaintiff. See Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995). A plaintiff, however, must allege specific facts, not conclusory allegations. See Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir. 1989). Conclusory allegations and unwarranted deductions of fact are not admitted as true. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993); Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
Courts consider 12(b)(6) motions very seriously, and defendants must establish that the plaintiff cannot prove facts that would allow them relief. "[A] complaint should not be dismissed for failure to state a claim 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." Conley, 355 U.S. at 45-46. "The motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." Kaiser Aluminum, 677 F.2d at 1050. However, "[d]ismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief."Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (citing 2A Moore's Federal Practice (2d ed. 1992) § 12.07 [2.-5] at 12-91).
C. Qualified Immunity
Even when official conduct violates a federal right, public actors may be shielded from liability and from suit by the doctrine of qualified immunity. This judicially-crafted doctrine is based on a common-sense, public policy notion that government officials should be protected from civil liability when performing duties within their discretionary authority. Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). The Fifth Circuit recently reiterated the underlying public policy rationale as follows:
Society bears the cost of unfounded lawsuits in 'the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.' There is also the 'danger' that 'fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in unflinching discharge of their duties.' Kinney v. Weaver, 367 F.3d 337, 384 (5th Cir. 2004) (quoting Harlow, 457 U.S. at 814). As the doctrine exists today, qualified immunity shields state officials from personal suits for acts in their official capacity insofar as their conduct does not violate clearly established rights of which a reasonable person would have known. Harlow, 457 U.S. at 818.
Courts apply a two-part test to decide when qualified immunity protects an individual defendant. First, the court determines whether the plaintiff has alleged a violation of a clearly established constitutional or other federally protected right.Siegert v. Gilley, 500 U.S. 226, 232 (1991); Idoux v. Lamar Univ. Sys., 828 F. Supp. 1252 (E.D. Tex. 1993). If so, the court evaluates whether the defendant's conduct was objectively unreasonable in the light of the clearly established law at the time of the incident. If, after considering the evidence in the light most favorable to the plaintiff, the court answers either inquiry in the negative, the defendant is entitled to qualified immunity. See Stidham v. Texas Comm'n on Private Security, ___ F.3d ___ No. 04-50775 at 5 (5th Cir. July 22, 2005); Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001).
The concept of conduct objectively unreasonable in light of clearly established law is difficult to grasp. One simple and practical definition is that conduct is objectively unreasonable when clearly-established law puts an officer on notice that his conduct is unlawful. See Saucier v. Katz, 533 U.S. 194, 201-202 (2001) (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)).
D. Rule 7, Federal Rules of Civil Procedure
Federal Rule of Civil Procedure 7(a) provides that "the court may order a reply to an answer or a third-party answer." Courts may order such a "Rule 7 reply" when "an additional pleading by the plaintiff may be helpful to the defendant in laying the groundwork for a motion to test the sufficiency of the claim."Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (quoting 5 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1185 at 23). Although Fed.R.Civ.P. 8(e)(1) demands only that "[e]ach averment of a pleading shall be simple, concise, and direct" the Fifth Circuit does not read Fed.R.Civ.P. 8(e)(1) as a limitation on the content of a Rule 7 reply.Schultea, 47 F.3d at 1433.
Schultea specifically held that plaintiffs who file claims under 42 U.S.C. § 1983 against individual defendants entitled to qualified immunity must allege sufficient facts to raise a Section1983 claim, and also assert facts that can overcome the immunity defense:
First, the district court must insist that a plaintiff suing a public official under § 1983 file a short and plain statement of his complaint, a statement that rests on more than conclusions alone. Second, the court may, in its discretion, insist that a plaintiff file a reply tailored to an answer pleading the defense of qualified immunity.Schultea, 47 F.3d at 1433-34. Moreover, Schultea, states that in order to vindicate the defense of qualified immunity, a Rule 7 reply ordinarily will be required. The court's discretion not to order such a reply is "narrow indeed" when a reply would be of assistance in resolving the issue of qualified immunity.Schultea, 47 F.3d at 1434.
Overall, when a plaintiff sues a defendant in a § 1983 action, the plaintiff must allege particular facts forming the basis of his or her claim, including those preventing the defendant from maintaining a qualified immunity defense. To overcome the immunity defense, the complaint must first assert facts that, if proven, would demonstrate that the defendants violated clearly established statutory or constitutional rights. Wicks v. Mississippi State Employment Servs., 41 F.3d 991, 995 (5th Cir. 1995); Henrise v. Horvath, 94 F. Supp. 2d 765, 766 (N.D. Tex. 2000). Second, the complaint must assert facts that, if proven, would show that an objectively reasonable officer would have understood that his alleged conduct would violate the plaintiff's rights. In short, the court must determine whether plaintiff's complaint alleges — with specificity — the acts, conduct, or omissions by the individual defendants' that would make defendants liable to plaintiff. If not, then ordering a Rule 7 Reply from plaintiff is appropriate.
V. ANALYSIS — DEFENDANTS PERRIT, BECK AND WISBY
For analytical purposes, the three officers who had direct contact with the plaintiff on the occasion in question, defendants Perrit, Beck and Wisby, are identical in status. This analysis and report pertains only to their motion.A. Motion to Dismiss Texas Tort Claims Act Cause of Action
The plain meaning of Tex. Civ. Prac. Rem. Code Ann. § 101.106(a) is that advocated by defendants. Section 101.106(a) expressly precludes suits against both a governmental entity and a governmental employee, when both actions involve the same subject matter. The Fifth Circuit interprets the " same subject matter" language of Section 101.106 to mean " arising out of the same actions, transactions, or occurrences." Estate of Shane G. Sorrells v. City of Dallas, 45 Fed. Appx. 325 at *4 (5th Cir. 2002). Here, plaintiff's suit against the City of Beaumont and its individual police officers clearly involves the same subject matter.
State courts, construing Section 101.106(a), clearly apply the statute in the manner argued by defendants in this case. SeeDallas County Mental Health Mental Retardation v. Bossley, 968 S.W.2d 339, 344 (Tex. 1998)); see also Bell v. Love, 923 S.W.2d 229, 233 (Tex.App.-Houston [14th Dist.] 1996, no writ);White v. Annis, 864 S.W.2d 127, 131 (Tex.App.-Dallas 1993, writ denied). In addition, federal courts read the statute in the same manner. Castellano v. Fragozo, 352 F.3d 939, 961 n. 1 (5th Cir. 2003) ("A judgment or settlement of a Texas Tort Claims Act case involving a government employer bars the continuation of an action or judgment against an employee of that department 'whose act or omission gave rise to the claim.'") (Jones, J., concurring and dissenting); Estate of Sorrells, 45 Fed. Appx. 325 at *4;Flores v. Sanchez, No. EP-04-CA-056-PRM, 2005 WL 1404163 at *6 (W.D. Tex. June 14, 2005) (stating that " [t]he practical effect of [§ 101.106] is that a plaintiff is made to sue the governmental entity").
No state or federal case to date has invalidated, restricted or established exceptions to Section 101.106. In absence of such, and considering plaintiff's complete omission of any response to defendants' argument on this point, and because plaintiff's suit against the City and its officers arises out of the same events, plaintiff's tort claims against the officers Perritt, Beck and Wisby should be dismissed under Fed.R.Civ.P. 12(b)(6). Plaintiff cannot state a claim upon which relief may be granted against these employees, because the Texas Civil Practice and Remedies Code prevents such claims. Thus, plaintiff pleads no cognizable legal theory against the individual defendants. B. Conspiracy Claims under 42 U.S.C. § 1985
Defendants Perrit, Beck and Wisby may be sued under Section 1985. Plaintiff asserts that they violated subsections 2 (obstructing justice, intimidating party, witness or juror) and (3) (depriving persons of equal protection of the laws).
To state a claim under 42 U.S.C. § 1985(2), plaintiffs must prove either (1) a conspiracy "designed to deny or interfere with equal protection rights" or (2) "a nexus between the alleged conspiracy and a proceeding in federal court." Bradt v. Smith, 634 F.2d 796, 801 (5th Cir. 1981). To state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a conspiracy involving two or more persons; (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal proptection of the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States. Hillard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994). In so doing, the plaintiff must show that the conspiracy was motivated by a class-based animus. Id.
Plaintiff's petition contains only two paragraphs alleging conspiracy. These paragraphs contain no factual averments whatsoever from which a neutral fact finder could conclude that a conspiracy existed, that it was race-based, that plaintiff is in a protected class, or that it involved obstruction of justice or denial of equal protection of the laws. As earlier noted, a plaintiff must allege facts, not conclusory allegations, to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim. Holdiness v. Stroud, 808 F.2d 417, 424 (5th Cir. 1987). That rule especially applies to actions alleging conspiracies to violate civil rights. Rodriguez v. Neeley, 169 F.3d 220, 222 (5th Cir. 1999); Hale v. Harney, 786 F.2d 688, 690 (5th Cir. 1986) (quoting Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982); Ellis v. Crawford, No. Civ.A. 3:03CV2416D, 2005 WL 525406 at *28 (N.D.Tex. Mar. 3, 2005); Stuart v. Frazier, No. 3-01-CV2629-G, 2002 WL 1371215 at *3 (N.D.Tex. June 21, 2002); Parsons v. City of Rio Vista, No. Civ.A. 398-CV-0920-G, 2002 WL 83769 at *2 (N.D.Tex. Jan. 4, 2002). Therefore, the three officers' motion to dismiss the Section 1985 allegations has merit.
C. Section 1983 Claims
Section 1983 actions can be brought against individuals. Individuals are liable for their personal conduct. To prevail against an individual defendant, the plaintiff must plead and show that the individual defendant:
(1) deprived plaintiff of rights secured by the constitution or laws of the United States,
(2) while acting under color of state law, and
(3) caused injury by the deprivation. Parratt v. Taylor, 451 U.S. 527, 535 (1981), rev'd on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Augustine v. Doe, 740 F.2d 322, 324-25 (5th Cir. 1984); see also Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1409 (5th Cir. 1995) (stating that the requisite elements of a Section 1983 claim are "a constitutional deprivation, causation, and action under color of state law").
Plaintiff's petition clearly alleges that individual defendants Perrit, Beck and Wisby acted by virtue of their authority as law enforcement officers of the City of Beaumont. Pl.'s Pet. at ¶ 26. That satisfies the requirement to allege conduct under color of state law. Plaintiff's petition also alleges that the individual defendants caused plaintiff injury. (Pl.'s Pet. at ¶ 28), thereby satisfying the requirement to show that the defendants' conduct caused injury. Thus, the crucial issue for decision is whether plaintiff's petition alleges that the individual defendants acted in such a way as to deprive plaintiff of federally-protected rights.
1. Defendants' Grounds for Dismissal
Defendants argue that plaintiff's petition does not identify a protected life, liberty or property interest at stake, and also does not identify any state action causing deprivation of that interest. Moreover, defendants argue that even if a protected interest and unlawful state action were identified, plaintiff's petition does not allege particular facts sufficient to overcome their defense of qualified immunity. Consequently, defendants assert the petition should be dismissed, or, alternatively, the court should order a more definite statement as groundwork for a subsequent motion to test the sufficiency of plaintiff's claim against their immunity defense.
2. State Action and Protected Interests
As mentioned, plaintiff alleges that defendants Perrit, Beck and Wisby acted in the course and scope of their employment as municipal police officers. State action is inherent in such conduct. Plaintiff's petition sufficiently alleges state action.
Plaintiff's petition alleges no facts that implicate freedom of speech or press, or any other First Amendment right. Similarly, nothing in the complaint raises a specter of denial of a Sixth Amendment right to counsel. Likewise, the petition specifies no benefit or service provided by the federal or state government the enjoyment of which was abridged by these defendants. Thus, defendants are correct in part when arguing that plaintiff's factual allegations fail to identify a federally-protected right.
However, plaintiff's petition contains certain alleged facts as follows:
On June 22, 2004, Plaintiff was struck, kicked, dragged, tasered purposely and repeatedly. This occurred at the 3600 block of College Street, Beaumont, Jefferson County, Texas. Plaintiff was transported to Spindletop MHMR, 2750 S. 8th Street, upon arrival Plaintiff was pulled out of the patrol car and was inhumanly [sic] pulled back and forth . . . Plaintiff was brutalized by the two officers by being tasered several times . . . Plaintiff was told to stand and face the wall . . . Plaintiff was stung with a taser gun and immediately fell to the floor.
Pl.'s Pet. at ¶ 11. Plaintiff names defendants Perritt, Wisby and Beck as the officers who engaged in this alleged conduct. Pl.'s Pet. at ¶ 32. From this allegation, it is clear that plaintiff's petition identifies by necessary implication at least two federally-protected rights: a Fourth Amendment right to be free from unreasonable seizure, and a Fourteenth Amendment right to due process of law.
In Kaupp v. Texas, 538 U.S. 626, 631 (2003), the court held that police handcuffing and arresting of a person constitutes a seizure. Using physical force is a seizure. California v. Hodari D., 499 U.S. 621, 626 (1991). Therefore, allegations of physical brutality by officers during a seizure implicates Fourth Amendment rights.
The 4th Amendment states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable . . . seizures, shall not be violated. . . ." U.S. Const. amend. IV.
Detention subsequent to seizure triggers Fourteenth Amendment rights to due process. In DeShaney v. Winnebago County Dept. of Soc. Serv., 489 U.S. 189, 200 (1989), the court observed that " [I]t is the State's affirmative act of restraining the individual's freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty — which is the 'deprivation of liberty' triggering the protections of the Due Process Clause." That liberty interest is implicated when a person is confined in a hospital, even when conditions of confinement are liberal. Reno v. Flores, 507 U.S. 292, 315-316 (1993).
The court, therefore, cannot dismiss plaintiff's Section 1983 claims against the individual defendants for lack of any identified, federally-protected interest at stake in the suit.
3. Qualified Immunity and Rule 7
Plaintiff's success in identifying federally-protected rights allegedly violated by state actors does not end the matter. The defense of qualified immunity protects defendants Perrit, Beck and Wisby not only from liability, but also from suit, in appropriate circumstances. When those circumstances exist, defendants cannot be sued, even if their conduct violated protected rights. Davis v. Sherer, 468 U.S. 183, 190 (1984).
Since qualified immunity protects eligible public officials even from suit, courts have a threshold duty to determine the merits of the affirmative defense, once asserted, at the outset of the litigation. Wicks v. Mississippi State Employment Servs., 41 F.3d 991, 995 (5th Cir. 1995); see also Lion Boulos v. Wilson, 834 F.2d 504, 507 (5th Cir. 1987). To satisfy this duty, courts must have means to evaluate merits of the defense. Given the analytical framework described earlier — including the heightened pleading standard established inSchultea v. Wood — the court must look to whether the plaintiff's complaint contains factual allegations that, if proven, would show both a violation of a clearly-established right and also that the alleged conduct was objectively unreasonable, as that term is defined in Saucier v. Katz, Malley v. Briggs, and other jurisprudence on the subject.
4. Discussion
Police officers have a dangerous job of enforcing laws, keeping peace and apprehending lawbreakers. They have a right to use reasonable physical force against individuals when force is necessary to perform their duties. When apprehending or seizing an individual for law enforcement purposes, the Fourth Amendment permits them to use objectively reasonable force in light of the facts and circumstances confronting them. Johnson v. Morel, 876 F.2d 477, 479 (5th Cir. 1989) ( en banc) (quoting Graham v. Connor, 490 U.S. at 396-97). Whether force is objectively reasonable is assessed without regard to the officers' underlying intent or motivation. Id., at 479. When subsequently detaining an individual, the Fourteenth Amendment permits good faith use of force to maintain or restore discipline, while proscribing malicious and sadistic force employed for the very purpose of causing pain. Whitley v. Albers, 475 U.S. 320-21(1986).
Whitley v. Albers was an Eighth Amendment case involving a convicted person. The Eighth Amendment standard applies equally to Fourteenth Amendment excessive force claims by unconvicted detainees. Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 545 (1979); Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en banc); Valencia v. Wiggins, 981 F.2d 1440, 1449 (5th Cir. 1993).
Plaintiff's petition alleges that she was pulled out of a car "inhumanly" ( sic), and "brutalized." These purely conclusory statements do not suffice to overcome qualified immunity. Plaintiff's bare-boned fact allegations that defendants Perrit, Beck and Wisby (a) struck, kicked, dragged and tasered her purposely and repeatedly, (b) pulled out of patrol car "back and forth", (c) put her on the floor and had one officer sit on her, and (d) allowed one officer to put a finger in her throat suffice to show that substantial physical force was applied. But they do not, without more, show circumstances making the officers' conduct objectively unreasonable during the seizure, or malicious or sadistic during plaintiff's detention. Each challenged action might well be lawful, depending on plaintiff's conduct and other prevailing circumstances.
Absent more alleged facts, the court cannot determine whether the three officers' alleged conduct violated plaintiff's clearly-established federal rights. Absent more alleged facts, the court has no basis for determining whether the three officers were on notice that their alleged conduct would violate plaintiff's rights. Thus, this is an instance where summary dismissal is inappropriate, but a Rule 7 reply clearly is necessary.
The three defendants' motion to dismiss for failure to state a claim should be denied. Their alternative motion for an order requiring a Rule 7 reply should be granted to the extent of requiring plaintiff to replead sufficient alleged facts to overcome their qualified immunity defense.
VI. RECOMMENDATIONS
Regarding defendants Perrit, Beck and Wisby:
1. Defendants' motion to dismiss should be granted with regard to plaintiff's Texas Tort Claims Act claims.
2. Defendants' motion to dismiss should be granted with regard to plaintiff's Section 1985 claims.
3. Defendants' motion to dismiss should be denied with regard to plaintiff's Section 1983 claims. However, their alternative motion to require a Rule 7 reply should be granted
VII. OBJECTIONS
Objections must be: (1) specific, (2) in writing, and (3) served and filed within ten days after being served with a copy of this report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 1(a), 6(b), and 72(b).A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual findings and legal conclusions accepted by the district court, Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).