MICHAEL P. MILLS, Chief Judge.
This cause comes before the court on the motion of defendants Town of Vardaman, Mississippi and Terral Cooper for dismissal or alternatively for summary judgment. Plaintiff Henry Thomas Jenkins has responded in opposition to the motion, and the court, having considered the memoranda and submissions of the parties, concludes that the motion is well taken and due to be granted.
This is a § 1983 action in which plaintiff seeks to recover for alleged First Amendment and Fourth Amendment violations arising out of his September 5, 2009 arrest by Vardaman Police Officer Terral Cooper. On that day, plaintiff, who is white, drove his four-wheeler to a convenience store in Vardaman, Mississippi. The parties agree that under Mississippi law, it is illegal to drive a four-wheeler on public roads. The parties also agree that Officer Bryant, who is black, thereupon approached plaintiff and began writing him a ticket. At this point, the parties' factual versions of the case begin to differ, although defendants concede that, for the purposes of their motion to dismiss, this court is required to accept the factual allegations contained in the complaint as true.
In his brief, plaintiff describes his version of events as follows:
Plaintiff admits, however, that he subsequently plead guilty in Vardaman Municipal Court to resisting arrest, and this guilty plea has led defendants to seek dismissal of this action under Heck v. Humphrey, 512 U.S. 477, 486, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Officer Bryant has also filed a motion to dismiss the claims asserted against him individually under qualified immunity.
Prior to addressing the various motions to dismiss, it must be acknowledged that the procedural and legal framework of this case is somewhat complex. In his complaint, plaintiff asserts Fourth Amendment excessive force and First Amendment retaliation claims against Officer Cooper individually, but he limits his claims against the Town of Vardaman to his First Amendment claims. In the latter claim, plaintiff contends that the Town of Vardaman should be liable for failing to train Officer Cooper not to arrest people based on "mere words."
This court's inclination is not to decide dispositive motions prior to discovery, but, as discussed below, it concludes that this case is an exception. Indeed, it is apparent that the Heck issues in this case may be resolved based on the complaint and the public court records relied upon by defendant, and, as discussed below, plaintiff has failed to demonstrate how additional discovery would assist him in responding to the qualified immunity defense raised by Officer Cooper. While plaintiff does argue that he should be entitled to more discovery, the affidavit from his attorney merely states that such discovery is needed "because plaintiff needs proof that defendant Cooper did not receive any training against arresting because of mere words used by a criminal defendant." It thus seems clear that plaintiff is requesting discovery regarding his First Amendment retaliation claim against the Town of Vardaman, and, as discussed below, the court will not be deciding the merits of that claim in this order.
Officer Cooper has filed a motion to dismiss the Fourth Amendment excessive force claim against him on the basis of qualified immunity. The doctrine of qualified immunity shields a governmental official from civil liability for damages based upon the performance of discretionary functions if the official's acts did not violate clearly established constitutional or statutory law of which a reasonable person would have known. Easter v. Powell, 467 F.3d 459, 462 (5th Cir.2006). To determine whether a defendant is entitled to qualified immunity, this court engages in a two-pronged analysis, inquiring (1) whether the plaintiff has alleged a violation of a constitutional right and, if so, (2) whether the defendant's behavior was objectively reasonable under clearly established law at the time the conduct occurred. Easter, 467 F.3d at 462. If the plaintiff fails to state a constitutional claim or if the defendant's conduct was objectively reasonable under clearly established law, then the governmental official is entitled to qualified immunity. Id.
In arguing that he did not violate clearly established constitutional law by tasing plaintiff, defendant relies upon video footage of much of the arrest, and he cites case law supporting the use of tasers in contexts similar to the one in this case:
In response, plaintiff provides essentially no substantive rebuttal to defendant's Fourth Amendment arguments, instead choosing to highlight his First Amendment claim. The entirety of plaintiff's argument on the qualified immunity issue is as follows:
Clearly, this is a very sparse response to a qualified immunity defense, and it is one which is insufficient as a matter of law.
It is well established that a § 1983 defendant who "pleads qualified immunity and shows he is a governmental official whose position involves the exercise of discretion" thereby places the burden on the plaintiff to "rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law." Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir.1997). It is thus apparent that it is the plaintiff, rather than the defendant, who must do most of the "heavy lifting" in the qualified immunity context, and the court finds that, in this case, plaintiff has made essentially no effort to rebut defendant's argument that he did not violate clearly established Fourth Amendment law in this case. Qualified immunity law does not presume that governmental workers were violating the Constitution in performing their duties, and it recognizes that merely being forced to defend against a lawsuit, in and of itself, is a significant burden on such a worker. Faced with defendant's authority suggesting that his use of force was objectively reasonable under Fourth Amendment jurisprudence, it was incumbent upon plaintiff to produce Fourth Amendment jurisprudence which establishes otherwise.
The U.S. Supreme Court has clarified that, except in certain "obvious" cases, authority which might serve to put a worker on notice that his conduct is unconstitutional is generally required to defeat a qualified immunity defense. See Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 599, 160 L.Ed.2d 583 (2004). In this case, plaintiff not only fails to submit his own authority dealing with the specific Fourth Amendment issue at hand, but he also improperly attempts to shift the objective Fourth Amendment analysis into an inquiry
It is well established that excessive force claims are to be decided under the Fourth Amendment and that the standard is an objective one. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). As recently emphasized by the Fifth Circuit, an officer's subjective motivations in utilizing force are irrelevant in analyzing a Fourth Amendment claim. The relevant inquiry in the Fourth Amendment context is, instead, whether the amount of force used was objectively reasonable. The Fifth Circuit recently wrote in Poole v. City of Shreveport, 691 F.3d 624 (5th Cir.2012) that:
Poole, 691 F.3d at 628. Thus, plaintiff provides very little substantive response to defendant's qualified immunity motion, and the response which he does provide improperly frames the Fourth Amendment analysis as being a subjective inquiry into Officer Cooper's motivations for tasing him. Such a response is insufficient as a matter of law. The court therefore concludes that plaintiff's Fourth Amendment claim against Officer Cooper is barred by qualified immunity, and it will be dismissed with prejudice.
As discussed above, in his response to Officer Cooper's qualified immunity motion, plaintiff emphasizes that he also asserts First Amendment retaliation claims against both Officer Bryant and the Town of Vardaman. In light of the dismissal of the Fourth Amendment claims against Officer Bryant, these are the sole remaining claims in this case. Defendant does not appear to assert a qualified immunity defense as to the First Amendment claim against him, choosing instead to seek dismissal of these claims without prejudice under Heck v. Humphrey, 512 U.S. 477, 486, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The Heck analysis is fundamentally different from the qualified immunity analysis, since it does not make an inquiry into the validity of the plaintiff's claims, but, rather, considers whether they are inconsistent with a prior criminal conviction. In Heck, the Supreme Court held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus...." Heck at 486-87, 114 S.Ct. 2364.
The Heck rule was formulated in deference to the principle that "civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments." Id. at 486, 114 S.Ct. 2364. In Heck, the Supreme Court held
Prior to analyzing the Heck issues in this case, the court initially notes that the basic scope and validity of plaintiff's First Amendment retaliation claim is in some doubt. In his complaint and briefing, plaintiff is vague about whether he regards his arrest and/or his tasing as being caused by his exercise of his free speech rights. At one point in his brief, for example, plaintiff writes that "[a]rresting plaintiff because he exercised his First Amendment rights by accusing the officer of racism would violate the First Amendment." As discussed below, the court finds this false arrest allegation to come closest to asserting a valid constitutional claim. Elsewhere in his briefing, however, plaintiff argues that the "tasing of plaintiff was a proximate result of plaintiff's exercise of his free speech rights," and it is apparent that, by so arguing, plaintiff is attempting to have his Fourth Amendment excessive force claim considered under inapplicable First Amendment jurisprudence.
As discussed above, defendant has raised a qualified immunity defense as to plaintiff's Fourth Amendment claim, and plaintiff has effectively conceded that defense by not seriously attempting to establish that the amount of force used was objectively unreasonable under clearly established law. Having done so, plaintiff's Fourth Amendment excessive force claim is off the table, and the question is whether there is some separate cognizable First Amendment violation alleged in the complaint.
The court will, perhaps generously, read the allegations in plaintiff's complaint as being at least arguably consistent with potential recovery under the First Amendment. This court will so interpret the complaint in spite of the fact that plaintiff relies upon clearly distinguishable authority in support of his First Amendment claim. In his brief, plaintiff relies upon the Fifth Circuit's decision in Enlow v. Tishomingo County, Miss., 45 F.3d 885 (5th Cir.1995) (Enlow II),
This court was initially inclined to conclude that a private insult between an arrestee and officer would be insufficient to give rise to a First Amendment claim, but further research revealed some authority which at least arguably suggests otherwise. In City of Houston, Texas v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), for example, the U.S. Supreme Court stated that a significant amount of verbal criticism directed at a police officer is protected under the First Amendment. In so stating, the court noted that: "The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." Id. at 463, 107 S.Ct. 2502. Fifth Circuit authority also arguably suggests that an arrest made on the basis of such criticism may be the basis of a First Amendment retaliation claim. Starling v. Fuller, 74 F.3d 1236 (5th Cir. 1995).
At this juncture, the court will assume, for the sake of argument, that plaintiff might potentially assert a First Amendment claim in this case based upon his arrest, assuming that he is able to get past Heck's bar. Once again, however, the amount of force used against plaintiff in effecting that arrest is a completely separate Fourth Amendment issue which has already been dealt with in the court's qualified immunity ruling. It may be true that there are other contexts in which the use of force by a police officer could validly be considered in the context of a First Amendment retaliation claim. In this case, however, it is clear from both the complaint and from plaintiff's guilty plea to resisting arrest that Officer Bryant used his taser to subdue plaintiff in the course of making an arrest. Indeed, plaintiff's complaint specifically alleges that Officer Bryant "told plaintiff he was under arrest, pulled the taser and shot plaintiff with it." An allegation that excessive force was used in the course of making an arrest is clearly a Fourth Amendment, not a First Amendment, matter. Plaintiff appears to be using First Amendment arguments to obscure the fact that he has no Fourth Amendment authority to defeat Officer Cooper's qualified immunity defense, but this is improper. The court will therefore disregard plaintiff's arguments which seek to conflate these two issues, and it will interpret his claim as being that Officer Bryant arrested him because of his statement that he "must not like white people," separate and distinct from the issue of the amount of force which was used.
Even assuming that the complaint, so interpreted, might be regarded as stating a valid First Amendment claim, it seems clear that this claim is due to be dismissed without prejudice under Heck. Indeed, by pleading guilty to resisting arrest under § 97-9-73, plaintiff admitted to having resisted a "lawful arrest." Importantly, Mississippi law requires the State to prove the existence of a lawful arrest as part of its burden of proof under § 97-9-73. Indeed, in Chambers v. State, 973 So.2d 266, 271 (Miss.App.2007), the Mississippi Court of Appeals wrote that:
The court sees no argument that an arrest made because plaintiff told defendant that he "must not like white people" would be a lawful one. Thus, if plaintiff felt that this, or some other unlawful reason, was what actually motivated his arrest, then he had every right under Mississippi law to assert this defense to the criminal charge against him. Plaintiff instead chose to plead guilty to the charge.
Guilty pleas have consequences, and this court reads Fifth Circuit authority as holding that one such consequence is that the convict may not thereupon turn around and seek to profit in a civil lawsuit which is based upon allegations which are in fundamental conflict with his guilty plea. The court finds that plaintiff's First Amendment retaliation claim is in fundamental conflict with his guilty plea and that, if he were to prevail on that claim in this court, it would necessarily imply the invalidity of his criminal conviction under Heck. In particular, the court concludes that plaintiff could prevail on his First Amendment retaliation claim only by "negat[ing] an element of the offense of which he [was] convicted," id. at 486 n. 6, 114 S.Ct. 2364, namely that he was lawfully arrested in this case. The court therefore concludes that plaintiff's First Amendment retaliation claims, against both Officer Cooper and the Town of Vardaman, are due to be dismissed without prejudice under Heck.
Officer Cooper has also sought dismissal without prejudice of plaintiff's Fourth Amendment excessive force claim against him under Heck. As discussed previously, this court has already concluded that this claim is due to be dismissed with prejudice under qualified immunity law. It is therefore seemingly unnecessary to discuss the Heck issues in this context, but the court will nevertheless do so, based on the possibility that the Fifth Circuit will disagree with its analysis on the qualified immunity issue.
The applicability of Heck to excessive force claims has often been a controversial issue, with a number of circuits concluding that the decision is inapplicable to such claims. For example, in Thore v. Howe, 466 F.3d 173, 175 (1st Cir.2006), the Third Circuit held that:
This court's reading of Fifth Circuit authority suggests that, in this circuit, the
Factually speaking, the closest Fifth Circuit case to this one appears to be the Fifth Circuit's 2004 decision in Arnold v. Town of Slaughter, 100 Fed.Appx. 321 (5th Cir.2004). In Arnold, the Fifth Circuit considered a case where, as here, a plaintiff who had been convicted of resisting an officer subsequently brought a Fourth Amendment excessive force claim against him. In considering the applicability of Heck in this context, the Fifth Circuit in Arnold noted that courts had often disagreed on this issue:
Arnold, 100 Fed.Appx. at 323.
Ultimately, the Fifth Circuit in Arnold concluded that whether Heck bars excessive force claims on the basis of a prior conviction for resisting arrest depends on whether the allegations in the subsequent civil case are consistent with the prior criminal conviction. In Arnold, the Court noted that the plaintiff's allegations were not consistent with his prior conviction for resisting arrest, writing that:
Id. at 324. The Fifth Circuit thus concluded that, since the plaintiff in Arnold was proceeding under Fourth Amendment claims whose allegations were inconsistent with his prior criminal conviction, Heck served to bar those claims.
The Fifth Circuit's approach in Arnold is consistent with that followed by Judge Posner of the Seventh Circuit in Okoro v. Callaghan, 324 F.3d 488 (7th Cir.2003). In Okoro, Judge Posner wrote that a district court had erred in concluding that Heck did not apply based upon the "theoretical possibility" that the facts could somehow be read as reconciling the criminal conviction and civil lawsuit. In so concluding, Judge Posner emphasized that the plaintiff was the "master of his ground" and that, as such, the burden should be on him to assert claims which are consistent with his prior conviction. Okoro, 324 F.3d
Id.
Arnold and Okoro represent a more robust application of Heck preclusion which looks to whether the allegations in the complaint (and not merely a civil judgment in the plaintiff's favor) are "inconsistent with the conviction's having been valid." These decisions are based upon the principle that a § 1983 plaintiff who has not seen fit to have a prior conviction reversed or otherwise expunged should not be able to turn around and make allegations in a civil lawsuit which are inconsistent with his prior conviction. The difference between the Arnold/Okoro approach and the more plaintiff-friendly approach followed by some circuits appears to be the extent to which courts are willing to give plaintiffs the "benefit of the doubt" regarding whether the prior guilty plea and subsequent lawsuit may be harmonized with each other.
In this case, plaintiff argues that his guilty plea under § 97-9-73 and his allegations in this case can be read in harmony with each other, but he places upon the jury, rather than himself, the burden of finding some consistency between his prior conviction and his current lawsuit. In so doing, plaintiff clearly invites speculation from the jury in this regard, writing that:
The court finds this argument unpersuasive.
In his complaint and even in his briefing, plaintiff does not admit or concede to having engaged in conduct which would validly constitute "resisting arrest" under Mississippi law. Plaintiff does admit to having snatched the ticket from the arresting officer in anger and to having told him that he "must not like white people," but it is clear that neither of these actions would constitute resisting arrest under the facts of this case. Indeed, it seems clear that an officer who is merely writing a traffic ticket is not even attempting an arrest, quite apart from the issue of whether the plaintiff's actions would constitute resistance to an actual arrest. As such, the facts of this case are analogous to those in Arnold, where the plaintiff simply suggested that he did nothing wrong, even though his criminal conviction indicated otherwise. Fifth Circuit law suggests that, in choosing to seek civil recovery in spite of his prior conviction, plaintiff should have seen fit to make allegations in this lawsuit which were consistent with his prior conviction. Plaintiff has failed to do so. This court accordingly concludes that the plaintiff's Fourth Amendment claims in this case would still be due to be dismissed without prejudice under Heck, even if the court erred in concluding that they should be dismissed with prejudice based on qualified immunity.
In light of the foregoing, the court concludes that plaintiff's Fourth Amendment
A separate judgment will be issued this date, pursuant to Fed.R.Civ.P. 58.
For the reasons given in the court's order issued this date, it is hereby ordered and adjudged that plaintiff's Fourth Amendment claim against defendant Cooper is dismissed with prejudice under qualified immunity and that his First Amendment claims against Cooper and the Town of Vardaman are dismissed without prejudice under Heck v. Humphrey.
There being no remaining claims, this case is dismissed.
SO ORDERED.
