Shipp v. McMahon

• Citation: 199 F.3d 256
• Decision Date: 07 January 2000
• Docket Number: No. 98-31317,98-31317
• Parties: (5th Cir. 2000) CHERIE SHIPP, JERRY GATES, Plaintiffs-Appellees, v. ROYCE L. MCMAHON, Sheriff of Webster Parish, Louisiana STEVE CROPPER, Webster Parish Sheriff's Office Deputy BETTY SHIPP, Webster Parish Sheriff's Office Deputy THEODORE L. RISER, Sheriff of Webster Parish Louisiana, Defendants-Appellants
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 256

199 F.3d 256 (5th Cir. 2000)

CHERIE SHIPP, JERRY GATES, Plaintiffs-Appellees, v. ROYCE L. MCMAHON, Sheriff of Webster Parish, Louisiana STEVE CROPPER, Webster Parish Sheriff's Office Deputy BETTY SHIPP, Webster Parish Sheriff's Office Deputy THEODORE L. RISER, Sheriff of Webster Parish Louisiana, Defendants-Appellants.

No. 98-31317

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

January 7, 2000

Revised, January 27, 2000

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Western District of Louisiana, Shreveport Division

Before POLITZ and STEWART, Circuit Judges, and LITTLE^*, District Judge

CARL E. STEWART, Circuit Judge:

This case involves the appellants' challenge to the district court's denial of their motion to dismiss the plaintiff's claims brought under 42 U.S.C. 1983 and state tort law. For the reasons stated below, we affirm the district court's ruling.

FACTUAL AND PROCEDURAL HISTORY

The appellee, Cherie Shipp (Shipp) was involved in an abusive marriage with her husband, Dalton Shipp ("Dalton") in Shreveport, Louisiana. To escape her husband's abuse, Shipp moved into her sister's house near Minden, Louisiana. When Dalton learned of her whereabouts, he made several threatening phone calls to her, which she reported to deputies of the Webster Parish Sheriff's Office (WPSO). Dalton also on several occasions drove by Shipp's sisters house, which Shipp reported to defendant Steve Cropper ("Cropper"), a Webster Parish deputy. Cropper advised that he would do nothing about Dalton.

Shipp then moved to her cousin's residence in Dubberly, which is also in Webster Parish. Dalton went to the house in Dubberly, attacked Shipp by beating her with a telephone that he ripped from the wall, and hit her with his fist. He threatened that if she reported the incident to law enforcement, she would "find herself in the hospital." After physically abusing her, Dalton took some items belonging to Shipp and her cousin, placed the items in his automobile, and drove off. Despite Dalton's warning, Shipp called the WPSO. Deputy Cropper came to the scene and took a report, but made no immediate effort to arrest Dalton.

Several days later, Deputy Cropper approached Dalton about returning the items he took from Shipp's cousin's residence, but did not arrest him. Dalton was later allowed to turn himself in, and he was charged with simple criminal damage to property and simple battery, both misdemeanor offenses. As a condition of bail, the court ordered that Dalton stay away from Shipp. Later that day, he pleaded guilty to both offenses, and the court ordered him to seek immediate counseling. The court set sentencing for a later date.

Shipp obtained a temporary restraining order ("TRO") which prohibited Dalton from having any contact with her. After Deputy Cropper served Dalton with the TRO, Dalton made several abusive and threatening phone calls to Shipp, which Shipp reported to the WPSO. She was told that nothing could be done about the phone calls, and despite his violations of the TRO and the bail order, the WPSO did not arrest Dalton.

Dalton failed to appear in court for sentencing on the criminal charges, and a bench warrant for his arrest was issued. Although Dalton subsequently appeared in court to answer other criminal charges at the Webster Parish courthouse, deputies nonetheless failed to arrest Dalton for violating the TRO and conditions of bail.

Approximately four months after Dalton failed to appear at the scheduled sentencing hearing, he tracked down Shipp at her other sister's house and talked Shipp out of the house and into his car. Once in the car, Dalton sped away with Shipp's feet dragging the ground. She attempted to jump out of the car, but Dalton grabbed her by the head. Dalton drove Shipp to a house he had leased in Webster Parish.

Shipp's sister telephoned her mother, Carolyn Gates, who reported the incident to the WPSO. Defendant Betty Shipp¹ was the dispatcher who received the phone call. Apparently, Betty Shipp hung up the telephone without conducting an inquiry into the particulars of the incident. Betty Shipp advised Deputy Cropper of the phone call. He chose to take no action, despite his knowledge of Dalton's propensity for violent behavior. Neither Cropper nor Betty Shipp dispatched information to alert the other deputies.

After having her phone call terminated by the WPSO, Shipp's mother called the Minden Police Department, which dispatched an emergency alert and radioed the WPSO. Shipp's mother then picked up Jerry Gates, Shipp's father, and drove to the Webster Parish courthouse. They observed Deputy Cropper standing idly outside the courthouse. Cropper advised Mr. Gates that he intended to do nothing to apprehend Dalton. After they discussed where Dalton may be located with Shipp, Mr. Gates denounced Cropper's unwillingness to act, and told him that he was heading to the leased house. Deputy Cropper and another deputy pursued Mr. Gates.

Subsequently, Mr. Gates and four deputies arrived at the house. When the deputies made no effort to enter the house, Mr. Gates attempted to approach the house, but was restrained by the deputies. Cropper then knocked on the door, explaining that he had to ascertain whether Shipp was in the house voluntarily with Dalton. No one inside answered Cropper's knock.

Mr. Gates observed what he believed to be a silhouette on the curtain of Dalton with a gun. Mr. Gates again attempted to approach the house, but the deputies ordered him back. A shot rang out from the house and the deputies immediately retreated to their vehicles to put on armored vests. Another shot ranged out as the deputies remained crouched behind their cars.

Inside the house, Dalton had raped Shipp. After shooting her in the chest with a 12-gauge shotgun, he shot himself. Shipp staggered to the door and unsuccessfully attempted to open it. She screamed for help, but none of the deputies responded. Shipp eventually staggered out a side door holding her entrails in her hands.

As she exited the house, Shipp's mother and a deputy raced to her aid. Mr. Gates also dashed towards Shipp, but he was abruptly intercepted by Cropper. At Cropper's order, another deputy handcuffed Mr. Gates and removed him from the scene.

Shipp was transported to the hospital, where emergency surgery was performed on her. She was hospitalized for several weeks, followed by rehabilitation, therapy, and follow-up surgery. Dalton recovered from his wounds and was subsequently charged with aggravated rape, aggravated kidnapping, and attempted second degree murder. As of the date of this opinion, he is currently being detained in Webster Parish jail pending trial, but has been permitted on several occasions to leave the jail and roam relatively unfettered throughout Webster Parish. Since the incident, the WPSO has not imposed any discipline on any deputy.

In February 1997, Shipp and Mr. Gates filed an action under 42 U.S.C. 1983 in federal district court against Sheriffs Royce McMahon and Theodore Riser,² and WPSO deputies Shipp and Cropper ("defendants"). Shipp and Mr. Gates claimed that the defendants violated their federal constitutional due process and equal protection rights. Shipp and Gates also alleged claims based on Louisiana state tort law. The defendants moved to be dismissed under Rule 12(b)(6). In January 1998, the magistrate judge filed a report recommending that: (1) all of Shipp's federal constitutional claims, with the exception of the Equal Protection claim and the related failure to train claim, be dismissed with prejudice; (2) all federal claims by plaintiff Jerry Gates be dismissed with prejudice, and (3) all claims against Sheriff Theodore L. Riser be dismissed with prejudice, and (4) the motion be denied in all other aspects. The district court adopted the magistrate judge's findings and recommendation. The district court also exercised supplemental jurisdiction over the state tort law claims and ordered Shipp to file a reply responding to deputies Cropper and Shipp's defense of qualified immunity ("Schultea reply"). After reviewing Shipp's reply to the qualified immunity issue, the district court found that Shipp had met the heightened pleading standard articulated in Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en banc), and denied the defendants' motion to dismiss. The defendants now appeal the district court's ruling denying their motion to dismiss based on qualified immunity.

STANDARD OF REVIEW

Denials of motions to dismiss on qualified immunity grounds are appealable collateral orders when based on issues of law. See Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Champagne v. Jefferson Parish Sheriff's Office, 188 F.3d 312 (5th Cir. 1999)(per curiam). We review the district court's ruling under Rule12(b)(6) de novo. See Lowrey v. Texas A & M University System, 117 F.3d 242, 246 (5th Cir. 1997). A motion to dismiss under rule 12(b)(6) "is viewed with disfavor and is rarely granted." Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir.1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.1986). The district court may not dismiss a complaint under rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Coneley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) This strict standard of review under rule 12(b)(6) has been summarized as follows: "The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief." 5 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURES 1357, at 601 (1996).

DISCUSSION

The...