McCaslin v. Wilkins, Civil No. 97-2136.

• Decision Date: 10 June 1998
• Docket Number: Civil No. 97-2136.
• Citation: 17 F.Supp.2d 840
• Parties: Ray McCASLIN and Pauletta Childress, as Co-Administrators of the Estate of Kendall Ray McCaslin, Deceased, Plaintiffs, v. Chad WILKINS, Individually and in his Capacity as an Alma, Arkansas, Police Officer, Russell White, Individually and in his Official Capacity as the Chief of Police of the Alma, Arkansas, Police Department; and the City of Alma, Arkansas, Defendants.
• Court: U.S. District Court — Western District of Arkansas

17 F.Supp.2d 840

Ray McCASLIN and Pauletta Childress, as Co-Administrators of the Estate of Kendall Ray McCaslin, Deceased, Plaintiffs, v. Chad WILKINS, Individually and in his Capacity as an Alma, Arkansas, Police Officer, Russell White, Individually and in his Official Capacity as the Chief of Police of the Alma, Arkansas, Police Department; and the City of Alma, Arkansas, Defendants.

Civil No. 97-2136.

United States District Court, W.D. Arkansas, Fort Smith Division.

June 10, 1998.

COPYRIGHT MATERIAL OMITTED

John VanWinkle, Rose & VanWinkle, Fayetteville, AR, for Plaintiffs.

Shane Perry, North Little Rock, AR, Charles B. Dyer, Jr., Alma City Attorney, Van Buren, AR, for Defendants.

MEMORANDUM OPINION and JUDGEMENT ON ISSUE OF QUALIFIED IMMUNITY

DAWSON, District Judge.

This matter is before the Court on Defendants' Motion for Summary Judgment under Rule 56, Fed.R.Civ.Pro filed on April 17, 1998.¹

The Second Amended Complaint is filed under the provisions of 42 U.S.C. §§ 1983 and 1988, contending that defendants' actions on November 23, 1996, violated the decedent's Fourth Amendment right to be free from unreasonable searches and seizures. Plaintiffs also assert claims based on state law, including a wrongful death cause of action against Separate Defendant Chad Wilkins, hereinafter "Wilkins," individually and in his official capacity, and Separate Defendant City of Alma. A negligence cause of action is asserted against Separate Defendant Chief Russell White, hereinafter "White," individually and in his official capacity, for failing to properly train Wilkins, thereby causing the death of the decedent, Kendall Ray McCaslin. Finally, the plaintiffs allege the tort of Outrage against Wilkins for Wilkins' shooting of the decedent. Plaintiffs seek compensatory and punitive damages.

Jurisdiction is proper under the general federal question statute, 28 U.S.C. § 1331. The Court has pendent jurisdiction over the state law claims under 28 U.S.C. § 1367.

Background.

On November 23, 1996, the decedent, hereinafter "McCaslin," while driving south bound on U.S. Highway 71 near Alma, Arkansas, in a small pickup truck, was observed swerving and crossing the double yellow line by then on-duty Alma Police Department Officer Wilkins.² Wilkins began pursuing McCaslin with his emergency lights on in attempt to stop him. He was soon joined by other officers in the pursuit, which at times reached speeds in excess of 100 miles per hour.³ The officers attempted to stop the chase several times by boxing McCaslin behind a tractor trailer rig and, ultimately by police units, to which McCaslin responded by evading capture and eventually swerving off Interstate 540.

Defendants contend that McCaslin's vehicle was not disabled after it went off the road, while plaintiffs contend that McCaslin's truck went straight down an embankment on the north side of Interstate 540 and was not driven any further.⁴

About the time McCaslin's vehicle went over the embankment, officers approached McCaslin's vehicle. The officers contend that McCaslin then began driving out of the embankment moving quickly toward them, forcing them to seek protection and/or protect themselves by the use of deadly force, resulting in the shooting death of McCaslin by officer Wilkins.

Plaintiffs state that there is a genuine issue as to material fact as to the amount of time available for McCaslin to have driven toward the officers shortly before the fatal shot was fired by Wilkins. Plaintiffs also state that at no time was there sufficient cause for Wilkins to have begun firing his weapon.⁵

Defendants have now moved for summary judgment. It is argued that the shooting of McCaslin was not in violation of McCaslin's constitutional rights and further, that the defendant officers are shielded from individual liability by the doctrine of "qualified immunity." Defendants also submit that McCaslin's death, caused by force used in an effort to detain him, was reasonable for the purpose of protecting police officers and members of the public from death or serious physical injury. Finally, it is argued that judgment should be granted with respect to the state tort claims.

As a preliminary matter, the Court points out that the Supreme Court has held that an "official capacity" suit is not a suit against the official personally, for the real party in interest is the government entity of which the officer is an agent. See Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). The majority of courts considering the issue of whether naming both the government entity and the official in his official capacity is redundant have concluded that in such a case there is in reality only one defendant. Suing the official in his or her official capacity is equivalent to suing the city. Carnell v. Grimm, 872 F.Supp. 746 (D.Haw.1994); Doe v. Rains Independent School District, 865 F.Supp. 375 (E.D.Tex. 1994); Amati v. City of Woodstock, 829 F.Supp. 998 (N.D.Ill.1993). In this case, both Wilkins and White have been named as parties in their individual and official capacities and the Court, in following the majority of courts on this issue, will therefore dismiss those claims as against Wilkins and White in their official capacities.

It is also appropriate to first consider whether Plaintiff has alleged a violation of a constitutional right before addressing the qualified immunity issue. The Supreme Court has held that "... the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all." County of Sacramento v. Lewis, ___ U.S. ___, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); (See also Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)).

The Court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material only when its resolution affects the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If reasonable minds could differ as to the import of the evidence, judgment should not be granted. Id. 477 U.S. at 250-51, 106 S.Ct. at 2511-12. However, the nonmoving party must set forth specific facts, by affidavit or otherwise, sufficient to raise a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

Discussion.

A. The § 1983 and Fourth Amendment Claim.

42 U.S.C. § 1983 provides a cause of action for any claimant whose federally protected rights have been violated by a state or local official or any other person acting under color of state law.

Municipal liability also may be imposed under § 1983 when the enforcement of a municipal policy, practice or decision of a final policy maker caused the deprivation of a federally protected right. See Collins v. City of Harker Heights, Texas, 503 U.S. 115, 120, 112 S.Ct. 1061, 1065-66, 117 L.Ed.2d 261 (1992). In order to state a claim against a city, the plaintiff must allege facts showing: (1) that his harm was caused by a constitutional violation; and (2) that the city was responsible for that violation. Id. 503 U.S. at 120, 112 S.Ct. at 1066.

Defendants contend that the § 1983 claim as against the officers in their official capacities and as against the City of Alma must be dismissed because plaintiffs have failed to allege a constitutional violation. Plaintiffs respond that they have stated facts sufficient to show that the actions taken by the City of Alma and the defendant officers violated McCaslin's Fourth Amendment right to be free from unreasonable searches and seizures by the use of deadly force.

Plaintiffs allege their claim is based on the Fourth Amendment and the Supreme Court explained that while "a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied." Brower v. County of Inyo, 489 U.S. 593, 596-597, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989)(quoted in County of Sacramento v. Lewis, supra at ___ U.S. ___, 118 S.Ct. at 1715).

In this case, there is no factual dispute that Wilkins' intended to pull the trigger on his weapon to stop McCaslin's progress in the pursuit. Therefore, the Plaintiff's assertion that the Fourth Amendment applies to this case is correct.

Defendants next contend that Wilkins and Chief White and the City of Alma were justified in the use of deadly force against McCaslin citing this Court to the objective reasonableness standard as set forth in Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 1697, 85 L.Ed.2d 1 (1985), and as applied in the Eighth Circuit case of Cole v. Bone, 993 F.2d 1328 (8th Cir.1993). In Cole, the Court found that the use of deadly force was objectively reasonable where a state police officer shot and killed a truck driver who was fleeing the police and the truck driver had eluded the police for several miles, traveling at high speeds through congested areas, forcing police and other cars off the road and showing no signs that he would give in to a road block or other tactic. Defendants say Cole is just like the case at bar while plaintiffs distinguish Cole by asserting that the decedent in Cole was still driving down the highway running people of the road at the time police shot him, while McCaslin, in this case, was off the highway and the chase was effectively over.

The Court...