Lopez v. Richardson
| Decision Date | 12 August 2009 |
| Docket Number | Civil Action No. 1:08-CV-3377-JOF. |
| Citation | 647 F.Supp.2d 1356 |
| Parties | Miguel LOPEZ, Plaintiff, v. Officer RICHARDSON of the City of Atlanta Police Department, in his Individual and Official Capacity, and the City of Atlanta, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
Erik John Meder, Ave Maria Legal Services, LLC, Smyrna, GA, Jerome D. Lee, Hernan Taylor & Lee, Norcross, GA, for Plaintiff.
Michael John O'Hagan, Lowendick Cuzdey Ehrmann Wagner & Stine, Dennis McRay Young, Office of Atlanta City Attorney, Atlanta, GA, for Defendants.
This matter is before the court on Defendant City of Atlanta's motion to dismiss [4].
Plaintiff filed suit against Defendants, Officer Richardson of the Atlanta Police Department in his individual and official capacities, and the City of Atlanta, pursuant to 42 U.S.C. § 1983, alleging Fourth and Fourteenth Amendment constitutional violations arising out of an incident outside of the "Peek-A-Boo" club in Atlanta, Georgia. In addition to the constitutional violations, Plaintiff also alleges violations of the law of nations, specifically, torture; cruel, inhumane, and degrading treatment of a minor; and arbitrary detention. Finally, Plaintiff raises state law claims of assault, battery, and intentional infliction of emotional distress. Plaintiff seeks punitive damages under his federal and state law claims. In an order dated December 16, 2008, the court held that Plaintiff could proceed without a guardian ad litem despite the fact he is a minor. The court also ruled that Plaintiff could not proceed anonymously and directed Plaintiff to amend his complaint accordingly.
In his complaint, Plaintiff alleges that Officer Richardson was called to the scene to respond to a dispute Plaintiff was having with the cashier of the club. Plaintiff avers that during his interaction with Officer Richardson, the officer struck Plaintiff on the wrist with his patrol baton and then kicked and punched Plaintiff repeatedly while he was on the ground. Plaintiff contends Officer Richardson grabbed Plaintiff's head by the hair and repeatedly shoved Plaintiff's face into the pavement. Plaintiff eventually lost consciousness but was handcuffed and dragged to Officer Richardson's police car. Officer Richardson then drove Plaintiff into DeKalb County to an unlit parking lot and stopped the car. Officer Richardson pulled Plaintiff out of the police cruiser, removed the handcuffs, and dumped Plaintiff in the parking lot. Plaintiff stumbled to a nearby apartment building where a resident saw Plaintiff and called an ambulance and the police. Plaintiff was taken to Grady Hospital and admitted for treatment. See Cmplt., ¶¶ 14-74.
Plaintiff's complaint labels his causes of action without specifying the defendants to which these claims are applicable. See generally Complaint. He alleges that Defendant Richardson "acting under color of law" violated norms of international law. Id., ¶ 78. He then separates his international law claims into Count I: Torture, Count II: Cruel, Inhuman, Degrading Treatment or Punishment of Minor; and Count III: Arbitrary Detention. He goes on to aver that Defendant Richardson was "a public official and/or acting in an official capacity" when he "intentionally caused the Plaintiff severe physical and mental pain." Id., ¶¶ 92-93, 113-14, 131. Plaintiff also refers only to acts of Defendant Richardson in his state law counts.
The only specific reference he makes to the City of Atlanta is with respect to his federal § 1983 claims under the Fourth and Fourteenth Amendments. There, Plaintiff alleges:
that the violation of his constitutional rights were [sic] caused by implementation of a custom, policy, or official act of Defendant City of Atlanta including but not limited to: a police department custom or policy of tolerance of physical mistreatment of Spanish-speaking immigrants; failure to properly screen applicants for the position of police officer with the City of Atlanta; failure to supervise police officers; failure to train police officers in dealing with minors and Spanish-speaking immigrants; failure to investigate allegations of misconduct similar to that alleged in this Complaint; failure to discipline police officers who engage in conduct similar to that alleged in this complaint.
Id., ¶¶ 150, 161 (similar allegations with respect to Fourteenth Amendment). In all other respects, Plaintiff's complaint refers only to the actions of Defendant Richardson.
In this litigation, Defendant the City of Atlanta and Defendant Officer Richardson are represented by different counsel. Although the City of Atlanta has filed a motion to dismiss, Officer Richardson has not done so and has filed an answer to Plaintiff's complaint. In its motion to dismiss, the City of Atlanta argues that (1) the official capacity claims raised against Defendant Richardson should be dismissed as redundant because they are in reality claims against the City of Atlanta; (2) although Plaintiff alleges both Fourth and Fourteenth Amendment claims concerning the use of excessive force against him, those claims arise only under the Fourth Amendment and not the Fourteenth; (3) Plaintiff makes no allegations of how any custom or policy of the City of Atlanta led to his constitutional injuries and therefore the § 1983 claims against Atlanta should be dismissed; and (4)(a) Plaintiff's complaint does not raise state law or international law claims against the city; and (b) even if the complaint is read as raising such claims, Plaintiff's allegations do not rise to the level of a violation of international law and Plaintiff's state law claims against the City fail because the City is entitled to sovereign immunity.
Plaintiff responds that he can raise both Fourth and Fourteenth Amendment claims because he was not "seized" at the time Defendant Richardson utilized excessive force against him. Further, because there is no heightened pleading requirement with respect to municipalities, his mere allegation in the complaint that his injuries were sustained as a result of the City's customs and policies, Plaintiff argues, is sufficient to survive a motion to dismiss. Finally, Plaintiff argues that corporations, such as the City of Atlanta, can be held liable for violations of international law.
Because Plaintiff did not respond to Defendant Atlanta's motion to dismiss state law claims on the basis of sovereign immunity, the court grants that portion of Defendant's motion and dismisses state law claims against the City of Atlanta. See Reese v. City of Atlanta, 261 Ga.App. 761, 762, 583 S.E.2d 584 (2003). Further, Plaintiff did not oppose Defendant Atlanta's assertion that the claims against Defendant Richardson in his official capacity should be dismissed as redundant of his claims against the City of Atlanta. Therefore, the court finds that Plaintiff's claims against Defendant Richardson will proceed in his individual capacity only.
The parties dispute whether Plaintiff's claims should proceed on the basis of the Fourth Amendment only or also under the Fourteenth Amendment. Plaintiff's complaint clearly alleges that Defendant Richardson used improper physical force against Plaintiff during the altercation in front of the nightclub.
In Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir.2005), the Eleventh Circuit addressed whether the Fourteenth Amendment covered a plaintiff's allegation of excessive force. There, the plaintiff and his wife became involved in an argument when she told him she wanted to end their marriage and return to Puerto Rico. The plaintiff threatened suicide and even wrapped a telephone cord around his neck and attached the other end to a ceiling vent. He used a kitchen knife to make cuts on his arm.
The wife called the City of Orlando Police Department and reported the attempted suicide. Officers arrived at and entered the apartment. The plaintiff would not respond to the officers' requests to drop the knife and eventually the officers fired a Sage SL6 Launcher at the plaintiff in an attempt to subdue him. The Sage Launcher device has the force of a professionally-thrown baseball and is a device designed to protect persons from self-inflicted injury. Although the officer aimed at the plaintiff's shoulder, the launcher hit the plaintiff in the head, fracturing his skill and resulting in brain injuries. The plaintiff sued the officers inter alia under the Fourth and Fourteenth Amendments. The Eleventh Circuit analyzed the plaintiff's claims under the Fourth Amendment. Under these circumstances which the court agreed did not involve a "criminal arrest," the court stated that Plaintiff's "alternative" Fourteenth Amendment argument
is without merit because there is no question that [plaintiff] was in custody at the time of the seizure. A suspect is in custody whenever an officer "restrains the freedom of a person to walk away, he has seized that person." Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)).
Because the police surrounded [plaintiff] and there was no way for him to escape, he was "seized" for the purposes of the Fourth Amendment. Even if [plaintiff] was not seized at the point when he was surrounded by police, he was seized at the time he was struck by the projectile from the Sage Launcher. See Carr v. Tatangelo, 338 F.3d 1259, 1268 (11th Cir.2003).
In Carr, 338 F.3d 1259 (11th Cir.2003), the plaintiffs also had an altercation with the police. One plaintiff was shot by an officer and the other was on the scene but not injured. The Eleventh Circuit held that the claims of the plaintiff who was shot...
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