Davis v. Dollar General Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

CHARLES DAVIS, et al. PLAINTIFFS

v. CASE NO. 4:21-CV-00470-BSM

DOLLAR GENERAL CORPORATION, et al. DEFENDANTS

ORDER

Marty Boyd’s unopposed motion to dismiss [Doc. No. 4] is granted; William J. Bryant

and Tanner Middlecoff’s motion to dismiss [Doc. No. 7] is granted; and Rick Elliott’s

motion to dismiss [Doc. No. 30] is granted. Dollar General Corporation’s motion to dismiss

[Doc. No. 12] is denied on the negligence, intentional infliction of emotional distress, and

wrongful death claims, and granted on all other claims. Bryant and Middlecoff’s motion to

strike [Doc. No. 21] is denied, and plaintiffs’ motion to accept their out of time response

[Doc. No. 22] is granted. Bryant, Middlecoff, and Elliott’s motions to stay discovery [Doc.

Nos. 17, 29, 32] are denied as moot.

I. BACKGROUND

Plaintiffs are suing defendants for allegedly negligent, reckless, and malicious actions

that caused the death of Lakita Davis and injured Octavia Jackson. Plaintiffs allege that

employees of Dollar General Corporation lied to law enforcement when they reported that

Davis robbed the store. Compl. ¶¶ 16–17, Doc. No. 1. This lie was perpetrated in order to

induce an “accelerated response” to what, at most, could be characterized as shoplifting. Id.

Upon receiving the call, Arkansas State Trooper Tanner Middlecoff engaged in a vehicle

chase with the car driven by Davis and in which Jackson was a passenger. Id. ¶¶18–19.

During the chase, Middlecoff performed a maneuver that violated State Police policy,

causing Davis’s car to flip over. Id. ¶¶ 22–23.

Plaintiffs are suing Dollar General Corporation; Rick Elliott, individually and in his

officially capacity as Chief of the Jonesboro Police Department; Marty Boyd, individually

and in his official capacity as Craighead County Sheriff; William J. Bryant, individually and

in his official capacity as Director of the Arkansas State Police; and Tanner Middlecoff,

individually and in his official capacity as an Arkansas State Police Officer. Plaintiffs allege

wrongful death, violations of 42 U.S.C. section 1983, negligence, intentional infliction of

emotional distress, loss of consortium, and negligent infliction of emotional distress.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a plaintiff fails to

state a claim upon which relief may be granted. To overcome a 12(b)(6) motion, the

complaint must allege sufficient facts to entitle the plaintiff to the relief sought. See Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Although detailed factual allegations are not required, threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, are insufficient. Ashcroft, 556

U.S. at 678. All well pleaded allegations in the complaint are accepted as true and construed

in the light most favorable to the plaintiff. Id.

III. DISCUSSION

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A. Claims against the Law Enforcement Officers

The motions to dismiss the claims against Elliott, Boyd, Bryant, and Middlecoff are

granted.

1. Section 1983 Individual Capacity Claims

The 42 U.S.C. section 1983 individual capacity claims against the law enforcement

officers are dismissed because the officers are immune from suit. See Pearson v. Callahan,

555 U.S. 223, 244 (2009) (law enforcement officers have qualified immunity when they

reasonably believe their conduct complies with the law). This is true because government

officials are immune from suit unless they violate clearly established rights. Id. at 231.

Immunity attaches even when an official makes a mistake of law or fact. Id. Therefore,

when determining whether an official is immune, courts consider (1) whether the allegations

establish a violation of a constitutional right, and (2) whether that right was clearly

established at the time of the alleged violation, such that a reasonable officer would have

known that his actions were unlawful. Id. at 232. If either question is answered in the

negative, then the official is entitled to qualified immunity. Id. at 236.

Whether Elliott, Boyd, and Bryant are immune is an easier call than whether

Middlecoff is immune. This is true because the complaint states no facts against Bryant and

the only allegations against Elliott and Boyd are that they “gave chase” to plaintiffs, and that

they failed to train their officers on how to coordinate a police chase with other agencies.

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Compl. ¶ 21. These allegations are not sufficient to allege they violated clearly established

statutory or constitutional rights.

Plaintiffs allege that Middlecoff violated the constitutional rights of Lakita Davis and

Jackson when he executed a pit maneuver in violation of Arkansas State Police policy while

Davis was attempting to find a safe place to pull over. Compl. ¶ 22. Policy violations,

however, do not automatically rise to the level of a constitutional violation, Kennedy v.

Blankenship, 100 F.3d 640, 643 (8th Cir. 1996), and the Eighth Circuit has held that denying

an Arkansas State Police Officer qualified immunity because he performed a pit maneuver

is reversible error. Moore-Jones v. Quick, 909 F.3d 983, 985–87 (8th Cir. 2018).

Importantly, the Eighth Circuit held that a trooper was justified in using force to secure

compliance, because “from a reasonable officer’s perspective, [the driver] refused to comply

with commands to pull over.” Id. As in Moore-Jones, Davis failed to pull over even though

she was aware that Middlecoff was attempting to stop her. Although the complaint alleges

that Davis did not pull over because she feared for her life “based on previous history of

police conduct,” Compl. ¶ 20, qualified immunity cannot be denied based upon Davis’s

subjective thoughts. This is true because “[l]aw enforcement officers are not required to read

a suspect’s motivations in failing to obey commands–it is enough that the officer reasonably

perceives that the suspect is not following orders as given.” Moore-Jones, 909 F.3d at 986

(citing Neal v. Ficcadenti, 895 F.3d 576, 581 (8th Cir. 2018)).

2. Section 1983 Official Capacity Claims

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Plaintiffs’ official capacity claims against Elliott and Boyd are dismissed because they

are essentially claims against the City of Jonesboro and Craighead County. Monell v. Dep’t

Soc. Servs., 436 U.S. 658, 690 (1978). To bring a claim against the city or county, plaintiffs

must show that Elliott and Boyd violated Davis’s and Jackson’s rights pursuant to an official

policy or unofficial custom of the city or county or that they failed to train or supervise the

officers who violated the rights of Davis and Jackson. Corwin v. City of Independence, Mo.,

829 F.3d 695, 699 (8th Cir. 2016). Plaintiffs have failed to meet this burden because they

have alleged only that Elliott and Boyd “gave chase” to plaintiffs, and that Elliott and Boyd

failed to train their officers on how to coordinate a police chase with other agencies when

criminal conduct has not been verified. Compl. ¶ 21. These allegations are merely

threadbare recitals that are not sufficient to state official capacity claims against Elliott and

Boyd.

The claims against Bryant and Middlecoff in their official capacities with the

Arkansas State Police are the same as claims against the State itself. Kentucky v. Graham,

473 U.S. 159, 165–166 (1985). These claims are dismissed because “neither a State nor its

officials acting in their official capacity are ‘persons’ under § 1983.” Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 71 (1989).

3. Negligence and Wrongful Death Claims

Plaintiffs’ negligence and wrongful death claims brought under 42 U.S.C. section

1983 against Elliott, Boyd, Bryant, and Middlecoff are dismissed because section 1983

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imposes liability “for violations of rights protected by the Constitution, not for violations of

duties of care arising out of tort law.” Baker v. McCollan, 443 U.S. 137, 146 (1979).

Plaintiffs’ common law negligence and wrongful death claims against Elliott and

Boyd are dismissed because Arkansas cities and counties, and their officials, have tort

immunity. Ark. Code Ann. § 21-9-301(a); City of Little Rock v. Dayong Yang, 2017 Ark. 18,

5 (2017). Plaintiffs’ negligence and wrongful death claims against Bryant and Middlecoff

are dismissed because they also have tort immunity. Ark. Code Ann. § 19-10-305(a).

Although state employees are not immune from their malicious acts, and plaintiffs claim

Bryant and Middlecoff acted maliciously, nothing in the complaint supports a claim of

malice. See Simons v. Marshall, 369 Ark. 447, 452-453 (2007).

4. Intentional Infliction of Emotional Distress Claims

Plaintiffs’ intentional infliction of emotional distress claims against Elliott, Boyd,

Bryant, and Middlecoff are dismissed because the complaint fails to state a claim for which

relief can be granted. To prove intentional infliction of emotional distress, a plaintiff must

show (1) the defendant intended to inflict emotional distress or knew or should have known

that emotional distress was the likely result of his or her conduct; (2) the conduct was

extreme and outrageous, was beyond all possible bounds of decency, and was utterly

intolerable in a civilized community; (3) the actions of the defendant were the cause of the

plaintiff's distress; and (4) the emotional distress sustained by the plaintiff was so severe that

no reasonable person could be expected to endure it. FMC Corp., Inc. v. Helton, 360 Ark.

465, 484-85 (2005). Plaintiffs have not alleged facts supporting an intentional infliction of

emotional distress claim against Boyd, Bryant, or Elliott.

The intentional infliction of emotional distress claim against Middlecoff is also

dismissed because plaintiff has alleged nothing indicating that Middlecoff knew or should

have known that the pit maneuver would cause emotional distress. Further, the complaint

does not support the conclusion that Middlecoff’s conduct was extreme or outrageous.

“Merely describing the conduct as outrageous does not make it so.” Crockett v. Essex, 341

Ark. 558, 564 (2000).

5. Negligent Infliction of Emotional Distress

and Loss of Consortium Claims

Plaintiffs’ negligent infliction of emotional distress claims are dismissed because

Arkansas law does not recognize this cause of action. Dowty v. Riggs, 2010 Ark. 465, 6

(2010). Plaintiffs’ loss of consortium claims against Elliott, Boyd, Bryant, and Middlecoff

are also dismissed because loss of consortium cannot be alleged as a separate cause of action,

but is merely an element of damages in a wrongful death case. Sanderson v. McCollum, 82

Ark. App. 111, 118 (2003).

B. Claims against Dollar General

To the extent that plaintiffs are attempting to sue Dollar General under 42 U.S.C.

section 1983, those claims are dismissed because Dollar General is not a state actor.

Plaintiffs’ negligent infliction of emotional distress claim is dismissed because Arkansas law

does not recognize it. Dowty, 2010 Ark. 465 at 6. The motion to dismiss plaintiffs’

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negligence, intentional infliction of emotional distress, and wrongful death claims against

Dollar General are denied because those claims have been sufficiently alleged.

IV. CONCLUSION

For these reasons, all of plaintiffs’ claims are dismissed except their negligence,

intentional infliction of emotional distress, and wrongful death claims against Dollar General

Corporation.

IT IS SO ORDERED this 29th day of September, 2022.

Barer 2 A Ie.

UNITED STATES DISTRICT JUDGE