Johnson v. City of Roswell
| Decision Date | 18 August 2016 |
| Docket Number | Civ. No. 15-1071 GBW/CG |
| Parties | RICHARD WAYNE JOHNSON and TANYA JOHNSON, Plaintiffs, v. CITY OF ROSWELL, et al., Defendants. |
| Court | U.S. District Court — District of New Mexico |
This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's First Amended Complaint for failure to state a claim. Doc. 41. Having reviewed the subsequent briefing and being fully advised, the Court will grant in part and deny in part the Motion to Dismiss.
Plaintiffs Richard Wayne Johnson and Tanya Johnson are suing the City of Roswell and its Police Department, as well as Police Chief Phil Smith in his individual and official capacity and several subordinate officers in their individual capacities. See doc. 40. Plaintiffs bring this action under 42 U.S.C. § 1983, alleging deprivation of their Fourth, Eighth, and Fourteenth Amendment constitutional rights through Defendants' use of excessive force. Id. at 1-2, 11-22. Plaintiffs have also asserted state law claims under the New Mexico Tort Claims Act and the New Mexico Constitution based upon the same underlying factual assertions. Id. at 2, 17-19, 22-32.
Plaintiffs initiated suit in the Fifth Judicial District Court of New Mexico on October 7, 2015. Docs. 2, 2-2. On November 23, 2015, Defendants removed the action to this Court pursuant to its federal question jurisdiction under 28 U.S.C. § 1331. Doc. 1. On December 14, 2015, Defendants City of Roswell and Phil Smith filed separate motions to dismiss Plaintiffs' action for failure to state a claim. Docs. 9, 10. On January 7, 2016, Plaintiffs filed a joint response to both motions, which included an informal request to amend their Complaint. Doc. 20. Following briefing on the matter, the Court denied Defendants' motions and granted Plaintiffs leave to amend their Complaint. Doc. 39. Plaintiffs filed their First Amended Complaint on April 10, 2016. Doc. 40. Thereafter, Defendants jointly sought dismissal for failure to state a claim upon which relief could be granted. Doc. 41. Following a granted extension, Plaintiffs filed their response on May 24, 2016, to which Defendants untimely replied on July 1, 2016. Docs. 51, 54.
On October 28, 2013, Plaintiff Richard Johnson ("Johnson") allegedly sustained a concussive head injury while in an altercation with a relative. Doc. 40 at 4. Later that same day, he was ordered out of his house with the phrase "come out, mother fucker," which Plaintiffs claim came from an unknown speaker. Id. Johnson opened his door whilecarrying a lawfully-possessed firearm and was confronted by Roswell Police Officers Joseph Lannoye, Cruz Zavala, and Robert Swantek. Id. at 4-5. These officers were purportedly on the premises for a welfare check and believed Plaintiff to be suicidal. Id. at 5-7. The Amended Complaint asserts that, upon exiting his home, Johnson was immediately shot by the police officers. Id. Plaintiffs state that Johnson never fired his weapon, nor raised or pointed it in a threatening fashion towards the officers. Id. at 5, 9. Plaintiffs further allege that these officers did not identify themselves as police in a manner which Johnson could understand, and also failed to issue a warning for Johnson to drop his weapon before using force. Id. at 5, 9. Plaintiffs state that this conduct resulted in critical and grievous injury to Johnson, requiring an emergency airlift and hospitalization which resulted in substantial medical bills. Id. at 4-5, 9.
Plaintiffs claim that the force used against Johnson was unreasonable, unlawful, and performed under color of law in reckless disregard of his constitutional rights. Id. at 9-10. In addition to their allegations regarding the officers present during the incident, Plaintiffs also claim that the City of Roswell and Police Chief Phil Smith knew or should have known of a pattern of conduct regarding excessive force and failed to adequately train, supervise, and discipline officers with regard to such conduct. Id. at 10-11. Specifically, Plaintiffs allege the existence of a policy which trains and instructs officers to immediately utilize lethal force against any person in possession of a firearm, regardless of whether such possession is lawful or threatening and regardless of whether the officerswere called for a suicide or mental health case. Id. at 9-10. Plaintiffs allege that these acts and omissions by the individuals and entities named were conducted in intentional, reckless, or deliberate disregard for Plaintiffs' rights and were the proximate cause of their injuries.1 Id. at 11.
In addition to their own factual assertions regarding the incident giving rise to their claims, Plaintiffs have also taken the unusual step of including within their Amended Complaint testimonial statements attributed to the Defendant Officers present at the scene. See id. at 5-9. Portions of these statements are consistent with Plaintiffs' assertions of fact, while other portions are inconsistent. Id. Additionally, these statements are only partially consistent with one another. Id. While Plaintiffs have chosen to include these statements in their Amended Complaint, it is evident from their own assertions of the facts that they do not intend to adopt the officers' versions of the events where they are inconsistent with their own version. As the Court is not permitted to evaluate the strength of competing evidence in evaluating a 12(b)(6) motion to dismiss, it will presume that the statements attributed to the officers were in fact made by them, but will not assess the veracity of these statements in comparison with the Plaintiffs' description of events. See, e.g, Chavez v. City of Santa Fe Hous. Auth., 606 F.2d 282, 283 (10th Cir. 1979) () (emphasis added); Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991) (); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) ().
The statements attributed to Officer Longberg and Defendant Swantek confirm that they had arrived on the scene for a welfare check and suspected that Johnson was suicidal. Doc. 40 at 5-7. With regard to Johnson's conduct during the incident, Defendants Lannoye and Swantek stated that they were unaware of Johnson firing any rounds and did not see a muzzle flash from Johnson's weapon. Id. at 6, 8. Further, Defendant Zavala allegedly stated that he did not see Johnson fire his weapon or point it at anyone, but instead stated that Johnson held the gun in a "low ready position." Id. at 5. However, Defendant Swantek purportedly stated that the officers had knocked and identified themselves as Roswell Police, after which Johnson yelled at his wife, rapidly exited his house, and pointed his weapon directly at Defendant Zavala. Id. at 6. Defendant Lannoye admitted that he shot Johnson, but claimed that Johnson had a clearly-identified pistol in his right hand that that he began raising it and pointing it towards the general vicinity of the officers. Id. at 7-8. Defendant Lannoye also stated that he had identified himself asRoswell Police when he knocked on the door, and Officer Longberg confirmed hearing knocking and the words "Roswell Police Department." Id. at 8, 5.
Defendants assert that Plaintiff's Amended Complaint should be dismissed as deficient on the basis that, like the original Complaint, all claims lack factual specificity and constitute mere conclusory recitations of elements which are insufficient to state a claim. See doc. 41. Defendants further argue that the factual assertions from specific officer testimony included in the Amended Complaint actually reveal facts sufficient to defeat Plaintiffs claims. Id. Plaintiffs respond by reiterating their factual assertions put forth as to each claim and contending that their Complaint, as amended, sufficiently states a claim for relief against each of the Defendants. See doc. 51.
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint for failure to state a claim upon which the court can grant relief. Fed. R. Civ. P. 12(b)(6). When ruling on a motion to dismiss, the court must accept as true all of Plaintiffs' well-pleaded factual allegations in the complaint and must view them in the light most favorable to the nonmoving party. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999); Hall, 935 F.2d at 1109. "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether theplaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Id.
To survive a motion to dismiss, the complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). "Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th...
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