Opinion
Civil Action No. 3:02-CV-830-L
December 20, 2002
CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Under the authority of 28 U.S.C. § 636(b), the District Court referred Defendant Marcus Brown's "Motion and Brief for Dismissal Pursuant to Rule 12(b)(6), or Alternatively, Motion for Rule 7 Reply Pursuant to Schultea," filed December 3, 2002, for a recommendation for disposition of the motion. The conclusions and recommendation of the United States Magistrate Judge follow:
Background
Plaintiff, Jose Antonio Chicua Navarro, filed this civil rights action on April 22, 2002. He alleged Brown violated his civil rights by injuring him while using excessive force during a detention and arrest. Brown also alleged Ellis County was liable under the theory of respondeat superior, but the District Court dismissed Ellis County with prejudice as a matter of law.
Dismissal Pursuant to Rule 12(b)(6) Qualified Immunity
Brown contends the claims against him should be dismissed because he is entitled to qualified immunity. Government officials are immune from suit for discretionary acts performed in good faith while acting within the scope of their authority unless their conduct violates a clearly established constitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A plaintiff is not required to anticipate the defense of qualified immunity and provide great specificity in his complaint. Todd v. Hawk, 72 F.3d 443, 446 (5th Cir. 1995) (per curiam) (citing Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir. 1995) (en banc)). Instead, a two-step procedure applies. The plaintiff must initially "file a short and plain statement of his claim pursuant to Rule 8(a)(2)." Id. This pleading is then "followed by a more particularized reply pursuant to Rule 7." id. Where, as here, the public official "pleads the affirmative defense of qualified immunity in his answer, the district court may, on the official's motion or on its own, require the plaintiff to reply to that defense in detail." Schultea, 47 F.3d at 1433. "The reply must be tailored to the assertion of qualified immunity and fairly engage its allegations." Id. Heightened pleading requires allegations of fact focusing specifically on the conduct of the individual who caused the plaintiff['s] injury." Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999). Whether a Rule 7(a) reply is appropriate in any particular case requires the court to review the plaintiffs complaint and to determine if it alleges with the requisite specificity any acts, conduct, or omissions that would overcome the defendant's claim of qualified immunity. See, e.g., Henrise v. Horvath, 94 F. Supp.2d 765, 766 (N.D. Tex. 2000); Wallace v. Dallas Indep. Sch. Dist., 2000 WL 575219, *6 (N.D. Tex. May 11, 2000) (Lindsay, J.).
See also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993) (discussing the Schultea's heightened pleading standard and holding that it does not apply in civil rights cases alleging municipal liability).
The Court has reviewed Plaintiff's complaint as well as his responses to this United States Magistrate Judge's questionnaire. Brown correctly asserts that Plaintiff's allegation that Brown used excessive force against him by jumping on him and beating him is conclusory. Plaintiff does not provide a detailed statement of facts regarding the incident that is the subject of his lawsuit. His filings lack the requisite specificity to overcome Brown's qualified immunity defense.
To survive dismissal, a plaintiffs pleadings must portray an objectively unreasonable violation of clearly established . . . law." Warnock v. Pecos County, 116 F.3d 776, 778 (5th Cir. 1997) (quoting Elliott v. Perez, 751 F.2d 1472, 1482 (5th Cir. 1985). If Brown used no more force than was reasonably necessary to subdue Plaintiff while he was resisting a lawful arrest, Brown would be entitled to judgment based upon qualified immunity. The District Court should decline to dismiss Plaintiff's personal capacity claims against Brown at this juncture and allow Plaintiff to file a reply pursuant to FED. R. Civ. P. 7(a).
RECOMMENDATION
Defendant Brown's Motion to Dismiss pursuant to FED. R. Civ. P. 12(b)(6) should be denied without prejudice, and his alternative motion for Rule 7(a) Reply should be granted. The District Court should grant Plaintiff thirty days to file a Rule 7(a) reply stating the facts he will prove that will overcome Brown's qualified immunity defense.