Shipp v. McMahon

Citation234 F.3d 907
Decision Date05 December 2000
Docket NumberNo. 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
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

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

ON PETITION FOR REHEARING

(Opinion January 7, 2000, 5th Cir., 2000, 199 F.3d 256)

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

CARL E. STEWART, Circuit Judge:

The petition for panel rehearing is GRANTED. The opinion, 199 F.3d 256 (5th Cir. 2000), is VACATED, and the following opinion is substituted:

This case involves the defendants-appellants' challenge to the district court's denial of their motion to dismiss the plaintiffs-appellees' claims brought under 42 U.S.C. § 1983 (1994) and state tort law. The defendants-appellants moved to dismiss the plaintiffs-appellees' claims under Fed.R.Civ.Proc. 12(b)(6) claiming qualified immunity. The district court denied the defendants-appellants' motion. For the reasons stated below, we REVERSE the district court's ruling.

Factual and Procedural History

Plaintiff-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 home near Minden, Louisiana. When Dalton learned of Shipp's whereabouts, he made several threatening phone calls to her, which she reported to deputies of the Webster Parish Sheriff's Office ("WPSO"). On several occasions, Dalton also drove by the home of Shipp's sister. Shipp reported these "drive-bys" to defendant-appellant Steve Cropper ("Cropper"), a Webster Parish deputy. Cropper informed Shipp 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 forewarned Shipp 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 them in his automobile, and drove off. Despite Dalton's admonition, 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 that he took from the residence of Shipp's cousin, but did not arrest him. Afterward, Dalton was 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. Dalton 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") that 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 eventually appeared in court to answer other unrelated criminal charges at the Webster Parish courthouse, deputies nonetheless failed to arrest him for violating the TRO and conditions of bail.

Approximately four months after Dalton failed to appear at the scheduled sentencing hearing for the offenses committed against Shipp, Dalton tracked down Shipp at her other sister's house and convinced Shipp to come out of the house and get 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 and drove Shipp to a house that he had leased in Webster Parish.

Shipp's sister telephoned her mother, Carolyn Gates, who reported the incident to the WPSO. Defendant-appellant Betty Shipp, Dalton's mother, was the dispatcher who received the phone call. Apparently, she hung up the telephone without conducting an inquiry into the particulars of the incident before advising Deputy Cropper of the 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 Betty Shipp terminated the phone call, 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 Dalton's 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 voluntarily in the house with Dalton. No one inside answered Cropper's knock.

At Dalton's house, Mr. Gates observed what he believed to be a silhouette on a curtain showing a person 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 rang 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 toward Shipp, but Cropper abruptly intercepted him. At Cropper's order, another deputy handcuffed Mr. Gates and removed him from the scene.

Shipp was transported to a hospital, where she underwent emergency surgery. She was hospitalized for several weeks, followed by rehabilitation, therapy, and more surgery. Dalton recovered from his wounds and was subsequently charged with aggravated rape, aggravated kidnapping, and attempted second degree murder. Following the incident, the WPSO took no disciplinary action against 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,1 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 dismiss under Fed R.Civ.P. 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 to the assertion of qualified immunity by deputies Cropper and Shipp. After reviewing Shipp's reply to the qualified immunity issue, the district court found that Shipp had met the pleading requirements 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. 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. 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." Conley 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...

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