Small v. United States
| Decision Date | 21 September 2018 |
| Docket Number | CIVIL ACTION 1:17-CV-01497 |
| Parties | DARRELL SMALL v. UNITED STATES OF AMERICA |
| Court | U.S. District Court — Western District of Louisiana |
Defendant United States of America filed a Motion to Dismiss (Doc. 11) Plaintiff's complaint pursuant to Fed. R. Civ. P. rule 12(b)(6), for failure to state a claim on which relief may be granted. Because Plaintiff's claims are barred by the Eleventh Amendment and Heck v. Humphrey, Defendant's Motion to Dismiss should be granted.
Plaintiff Darrell Small ("Small") filed a complaint pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680. The sole Defendant is the United States of America ("the government").1 Small is presently incarcerated in the Natchitoches Parish Detention Center ("NPDC") in Natchitoches, Louisiana.
Small contends that, when he was arrested by the United States Marshal's Service ("USMS"), deadly force was used (he was tased and shot) even though he was no longer resisting arrest. Small contends the USMS agents: (1) intentionally usedexcessive and deadly force that resulted in physical and mental pain and suffering; and (2) were negligent in pointing loaded firearms and a taser at Small after he had been secured, resulting in severe physical pain and suffering. Small seeks monetary damages, costs, and attorney's fees.
Small contends he exhausted his administrative remedy (Doc. 23)2 and timely filed this action.
The government filed a Motion to Dismiss (Doc. 11), contending Small's claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994). Small filed a response (Doc. 14), to which the government replied (Doc. 15). The government's Motion to Dismiss is now before the Court for disposition.
In 2014, an arrest warrant was issued for Small by a Texas state court for aggravated assault causing bodily injury by use of a deadly weapon (a firearm) (Doc. 11-4, p. 3/7; Doc. 11-6). On August 12, 2014, Small was arrested in Natchitoches,Louisiana pursuant to that warrant. In 2017, in the Louisiana Tenth Judicial District Court in Natchitoches Parish, Small was tried and convicted by a jury of one count of aggravated obstruction of a highway of commerce (Doc. 11-7). Small was then sentenced as a habitual offender to 22 years of imprisonment (Doc. 11-8).
Small's arrest in 2014 is the subject of this lawsuit. Defendant attached an excerpt from Small's Louisiana criminal trial transcript to its Motion to Dismiss (Doc. 11). The trial testimony is summarized here. Small's objection to consideration of the trial testimony is discussed below in the analysis.
At Small's 2017 trial, U.S. Deputy Marshal Donnie Turner testified the USMS received a telephone call on August 12, 2014, informing them that Small, a violent offender wanted in Texas on a felony warrant, was in Natchitoches (Doc.11-2, pp. 3-5/223). Small had recently purchased a new vehicle with a GPS locator in it (Doc. 11-2, p. 5/223). The dealership provided the USMS with the coordinates of Small's vehicle (Doc. 11-2, p. 6/223).
Turner testified that the USMS violent offender task force, composed on that day of contingents from Shreveport, Alexandria, and Natchitoches for a total of about 20 officers, met in Natchitoches at about 4 p.m. in unmarked vehicles (Doc. 11-2, pp. 6-7/223). The officers parked in the parking lot of a nearby electric company (Doc. 11-2. P. 27/223). They wore tactical gear and bullet-proof vests that were visibly marked (Doc. 11-2, p. 8/223). Some officers waited outside the apartment complex where Small's vehicle was located (Doc. 11-2, p. 9/223).
Deputy Marshal Turner testified that, as a supervisor, he was never told that people had difficulty identifying task force participants as law enforcement officers when they were deployed (Doc. 11-2, pp. 24/-25/223). Turner testified they are always visibly marked as a U.S. Marshal task force (Doc. 11-2. P. 25/223).
Deputy Marshal Turner testified that, when Small exited an apartment in the complex, he moved quickly to his car and left in it (Doc. 11-2, p. 11/223). The task force did not have an opportunity to intercept Small before he got into his vehicle (Doc. 11-2, p. 12/223). It was still daylight when Small got into his vehicle, a gold Impala, and the task force completed the take-down (Doc. 11-2, p. 27/223).
The task force waited until they saw what direction Small was driving, then intercepted Small's vehicle in the street by blocking access to the intersection with lights and sirens on, forcing him to stop his car (Doc. 11-2, pp. 27, 48/223). Everyone in Turner's vehicle and the task force vehicle next to him exited their cars with their weapons drawn (Doc. 11-2, p. 27/223). There were units behind Small at each exit and units in front of him, for the purpose of making his vehicle immobile (Doc. 11-2, p. 39/223).
Deputy Marshal Turner testified that all of the law enforcement personnel began giving Small verbal commands, saying "Police, police, show hands." (Doc. 11-2, p. 29/223). After the officers exited their vehicles, Small began driving down the street in reverse at a high rate of speed (about 50 miles per hour) (Doc. 11-2, pp. 28-29, 49/223). Another task force vehicle-a white pickup that had been trailing Small's car-was stopped in the road about 50 yards behind Small (Doc. 11-2, pp. 28-29,42/223). While the pickup remained parked in the road, Small continued to drive in reverse until he crashed into it (Doc. 11-2, pp. 29, 46/223). Turner testified it took only seconds for Small to drive in reverse and hit the pickup (Doc. 11-2, p. 49/223).
Turner further testified that neither the white pickup nor any other task force vehicle rammed into Small's car (Doc. 11-2, pp. 46-47/223).
The rear of Small's Impala was lifted off the ground and stuck "on the bumper grill" of the white pickup, so it could not move (Doc. 11-2, p. 32/2332). The four officers who had been in the white pickup exited, as well as officers in two other vehicles, and stood by Small's car with weapons drawn (Doc. 11-2, pp. 32, 42-44/223). Deputy Marshal Turner arrived and warned the others about crossfire, so they wouldn't accidentally shoot one another (Doc. 11-2, p. 48/223).
Turner testified that Small made no effort to surrender (Doc. 11-2, p. 32/223). The officers were standing in front of and on one side of Small's car, in an "L" shaped assault designed to avoid being hit by their own cross-fire (Doc. 11-2, p. 33/223). The officers again gave Small verbal commands to put his hands up, stop the car, and get out of the car, and an officer tried to break the passenger side window glass so they could see inside the vehicle (Doc. 11-2, p. 45/223). The windows were tinted too dark to allow the officers to see well inside (Doc. 11-2, p. 45/223). Small continued to press the gas pedal, spinning his tires continuously until his car broke free of the truck and began to fishtail (Doc. 11-2, pp. 31-33/223). Deputy Marshal Turner testified that Small's wheels never stopped spinning (Doc. 11-2, p. 45/223). It took less than a minute for Small's vehicle to break free from the white pickup (Doc. 11-2, p. 49/223).Once Small broke free, the officers near Small's vehicle began to fire shots (Doc. 11-2, pp. 32-33/223). Turner testified that, at that point, Small's vehicle was a deadly weapon (Doc. 11-2, pp. 32-33/223). Small drove away from the officers, cutting across the grass (and perhaps a small ditch) to get around their vehicles (Doc. 11-2, pp. 33, 47/223).Deputy Marshal Turner testified that shots were fired as Small drove away (Doc. 11-2, p. 33/223). He assumed Small had been hit when his car drifted some, but it suddenly picked back up, went up to the stop sign at the intersection (where the task force had initially attempted to stop Small), and drove toward town (Doc. 11-2, p. 34/223). The white pickup pursued Small (Doc. 11-2, pp. 34, 36/223). Turner testified that, by the time he and other officers returned to their vehicles and caught up with the white pickup and Small, the occupants of the pickup had again exited their vehicles and were "making contact with" Small (Doc. 11-2, p. 36/223). Small was in custody (Doc. 11-2, p. 37/223).
Deputy Marshal Turner testified that the "final takedown" occurred in a sharp curve in Mill Street (Doc. 11-2, p. 37/223). Turner testified that Small appeared to have been hit in his leg by gunfire, and he was transported to the hospital (Doc. 11-2, p. 37/223). The Natchitoches Police Department investigated the incident (Doc. 11-2, p. 38/223). Marshal Turner did not participate in that investigation (Doc. 11-2, p. 38/223).
Officer Nickeo Collins of the Natchitoches Police Department (and commander of the Natchitoches drug task force) also testified (Doc. 11-2, p. 53/223). Collinstestified that the USMS asked him for assistance in locating Small in the Natchitoches area (Doc. 11-2, p. 54/223). The marshals met with Collins to formulate a plan to apprehend Small as quickly and safely as possible (Doc. 11-2, pp. 55, 57/223).
Officer Collins testified that he participated in the apprehension (Doc. 11-2, p. 57/223). Collins was in an unmarked white pickup (Ford F150) that was parked beside nearby trailers (Doc. 11-2, pp. 57-58/223). Collins watched Small exit the apartment building and quickly get into his car and pull out (Doc. 11-2, p. 59/223). Collins saw Small's vehicle approach the intersection where the task force vehicles converged, lights on, to stop Small (Doc. 11-2, p. 59/223). The white pickup was approaching the scene from behind Small and stopped in the road (Doc. 11-2, p. 60/223). Collins saw Small's car stop, and the officers exited their vehicles and began pointing and yelling at Small (Doc. 11-2, p. 60/223). Small then began to drive in reverse, at about 40 mph and accelerating, until it hit the pickup Collins was...
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