Green v. Strickland

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

WILLIE FRED GREEN SR., ET AL CIVIL ACTION NO. 20-601

VERSUS JUDGE ELIZABETH E. FOOTE

KEVIN STRICKLAND, ET AL MAGISTRATE JUDGE HORNSBY

ee

MEMORANDUM RULING

In the instant case, seventeen plaintiffs have brought a civil rights suit against

twenty-one officers from the Shreveport Police Department (“SPD”), along with the City

of Shreveport. Before the Court is a motion to dismiss, filed by the Defendants, in which

they seek dismissal of most, but not all, of Plaintiffs’ claims against them. Record

Document 28. For the reasons set forth below, the Defendants’ motion is granted in part

and denied in part.

BACKGROUND

To start, the Court observes that while the genesis of the dispute here can be

summarized fairly easily, the specific allegations lodged by each Plaintiff against a

particular Defendant prove to be more elusive. For purposes of this motion, the Court will

accept all well-pleaded facts as true and construe the allegations in the light most

favorable to the Plaintiffs.

On May 19, 2019, the Plaintiffs were gathered at the home of Plaintiffs Willie Green

and Viola Green in Shreveport, Louisiana for a Mother’s Day celebration. Record Document

23, p. 10. In the afternoon, a disturbance broke out at a home across the street (the

“Thomas” residence), and SPD officers responded. Id. SPD Officers Holmes and Mosby,

both of whom are Defendants in this matter, arrived on the scene first. Id. Plaintiff Javon

Tyler, an off-duty SPD officer who was at the Green residence, walked across the street

with Willie Green to try to settle the situation. Id. at 11. While the dispute at the Thomas

residence was resolved peacefully, the Plaintiffs characterize Holmes’s and Mosby’s

demeanors on scene as “blaise [sic] and lackadaisical” because they allegedly did not want

to work a domestic dispute on Mother’s Day. Id.

Later that day, another disturbance erupted at the Thomas residence. Id. During

that dispute, Plaintiff Tyler confronted an individual wielding a crowbar.’ Id. Defendant

Mosby returned to the scene, and Plaintiff Tyler informed her that the individual with the

crowbar should be arrested. Id. Plaintiffs allege that Mosby instead threatened to arrest

Plaintiff Tyler, whom she knew was a police officer within her organization. Id. at 12.

Some individuals from the Thomas residence defended Plaintiff Tyler, informing Defendant

Mosby that he was not involved in their dispute, but she ignored them. Id.

Unfortunately, the complaint is unclear on the events that followed. — Plaintiff

Johnnie Young, also an off-duty SPD officer who was at the Green residence, somehow

became involved in the situation with Defendant Mosby and Plaintiff Tyler. The complaint

merely states that “Mosby unreasonably misinterpreted Tyler and Young's efforts to

maintain peace in the neighborhood as being acts hostile toward her.” Id. The Plaintiffs

expressed their criticism of how Mosby handled the Thomas dispute the first time she

responded, essentially stating that if the situation had been handled properly, a second

1 According to the complaint, the person was armed with “a crow bar and/or a

screwdriver.” Id. at 12.

disturbance never would have happened. Id. Mosby became upset by the criticism, “was

not watching her step and stepped back . . . and accidentally fell into a ditch.” Id. Plaintiff

Young assisted her back to her feet. Id. Defendant Mosby, however, believed someone

had pushed her into the ditch. Id. at 13. Defendant Holmes then “panicked,” perceived

Plaintiffs Tyler and Young to be a threat, and called for emergency backup from other SPD

officers. Id. Meanwhile, Defendant Mosby threatened Plaintiff Young with a taser. Id.

Defendant Mosby called a “code black” over the radio to report she was under attack by

a crowd. Id.

According to the Plaintiffs, approximately thirty SPD officers responded to the scene

and what happened thereafter forms the basis of the instant lawsuit. The Defendants in

this suit are those SPD officers who arrived on the scene and were present for or engaged

in “crowd control.” Some of those officers actually engaged with some of the Plaintiffs,

while other Defendants who have been sued appear merely to have been present at the

scene. Similarly, not all Plaintiffs were actually involved in any physical dispute with the

Defendants—some were merely present at the scene and witnessed the events.

Seventeen Plaintiffs sued twenty-two Defendants in a wide-ranging complaint

organized into nine groupings of causes of action: (1) false arrest, failure to intervene,

and unreasonable detention; (2) excessive force and failure to intervene; (3) failure to

supervise; (4) failure to intervene, aiding and abetting, acquiescence, active participation,

and § 1983 conspiracy; (5) illegal entry, trespass, and destruction of property; (6)

municipal liability and officer liability; (7) failure to provide medical attention; (8) state law

claims of failure to intervene, false arrest, malicious prosecution, excessive force, negligent

retention, battery, assault, and negligent infliction of mental distress; and (9) retaliation,

malicious prosecution, and intentional infliction of mental distress. Plaintiffs’ federal claims

are brought under 42 U.S.C. § 1983 for violations of their Fourth and Fourteenth

Amendment rights. Record Document 23, p. 1. Plaintiffs invoke the Court’s supplemental

jurisdiction for their state law claims.

In response to the Plaintiffs’ second amended complaint, the Defendants filed the

instant motion to dismiss. In this motion, they seek to dismiss most of the Plaintiffs’

claims, with the exception of the following: Plaintiff Antoine Hardeman’s excessive force

claims; Plaintiff Torell Lewis’s excessive force claims; Plaintiff Tyler’s excessive force

claims; Plaintiff Hardeman’s failure to intervene claim against Defendant Sergeant

Strickland; and the Plaintiffs’ ninth cause of action, which is Plaintiff Tyler’s and Plaintiff

Young's retaliation, malicious prosecution, and intentional infliction of mental distress

claims. These claims will not be addressed in this opinion.

LEGAL STANDARD

To survive a motion to dismiss brought under Federal Rule of Civil Procedure

12(b)(6), a plaintiff must “state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Id. at 663. “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. The

court must accept as true all of the factual allegations in the complaint in determining

whether plaintiff has stated a plausible claim. See Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007); In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (Sth Cir.

2009). However, a court is “not bound to accept as true a legal conclusion couched as a

factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). If a complaint cannot

meet this standard, it may be dismissed for failure to state a claim upon which relief can

be granted. Igbal, 556 U.S. at 678-79. A court does not evaluate a plaintiff’s likelihood

for success, but instead determines whether plaintiff has pleaded a legally cognizable

claim. United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (Sth Cir.

2004). A dismissal under 12(b)(6) ends the case “at the point of minimum expenditure of

time and money by the parties and the court.” Twombly, 550 U.S. at 558.

LAW AND ANALYSIS

I. Qualified Immunity.

Defendants raise the defense of qualified immunity in response to Plaintiffs’ § 1983

claims. Section 1983 provides a federal cause of action for the “deprivation of any rights,

privileges or immunities secured by the Constitution and laws” against any person acting

under color of state law. 42 U.S.C. § 1983. Section 1983 does not itself create substantive

rights; rather, it merely provides remedies of rights guaranteed to citizens by the United

States Constitution or other federal laws. See Graham v. Connor, 490 U.S. 386, 393-94,

109 S. Ct. 1865, 1871 (1989); City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.

Ct. 2427, 2432 (1985). The doctrine of qualified immunity shields government officials

from liability for claims against them in their individual capacity “insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727

(1982). Qualified immunity serves to shield government officials from harassment,

distraction, and liability when they perform their duties reasonably, and it applies

regardless of whether the official's error is “a mistake of law, a mistake of fact, or a mistake

based on mixed questions of law and fact.” Pearson v. Callahan, 555 U.S. 223, 231, 129

S. Ct. 808, 815 (2009) (quoting Groh _v. Ramirez, 540 U.S. 551, 567, 124 S. Ct. 1284

(2004) (Kennedy, J., dissenting)). A § 1983 complaint must allege that the constitutional

or statutory deprivation was intentional or due to deliberate indifference and not the result

of mere negligence. Farmer □□ Brennan, 511 U.S. 825 (1994); Daniels v. Williams, 474

U.S. 327, 332 (1986).

Because qualified immunity is “an immunity from suit rather than a mere defense

to liability, . . . itis effectively lost if a case is erroneously permitted to go to trial.” Mitchell

v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806 (1985). Consequently, qualified immunity

questions should be resolved at the earliest possible stage in litigation. See Hunter v.

Bryant, 502 U.S. 224, 227, 112 S. Ct. 534 (1991) (per curiam). While qualified immunity

is technically an affirmative defense, once it has been raised, it is the plaintiff's burden to

negate the defense. Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).

In Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151 (2001), the Supreme Court

held that a court ruling upon the issue of qualified immunity must apply a two-step

analysis. First, the court must determine whether “the facts alleged show the officer’s

conduct violated a constitutional right.” Id. Second, if a violation has been established,

the court must determine whether the officer’s actions were objectively reasonable in light

of clearly established law at the time of the conduct in question. See id.; Freeman v.

Gore, 483 F.3d 404, 411 (5th Cir. 2007). The court may evaluate these steps in whichever

order it so chooses. “The touchstone of this inquiry is whether a reasonable person would

have believed that his conduct conformed to the constitutional standard in light of the

information available to him and the clearly established law.” Goodson v. Corpus Christi,

202 F.3d 730, 736 (5th Cir. 2000). If officers of reasonable competence could disagree

as to whether the plaintiff’s rights were violated, the officer’s qualified immunity remains

intact. See Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005) (citing Malley v.

Briggs, 475 U.S. 335, 343, 106 S. Ct. 1092 (1986) (holding the qualified immunity standard

“gives ample room for mistaken judgments” by protecting “all but the plainly incompetent

or those who knowingly violate the law.”)) The question of whether an official’s conduct

was objectively reasonable is a question of law to be decided by the court. See Evett v.

DETNTFF, 330 F.3d 681, 688 (5th Cir. 2003) (citing Mangieri v. Clifton, 29 F.3d 1012, 1016

(5th Cir. 1994)).

To be clearly established, a legal principle must be found in the holdings of either

“controlling authority” or a “robust ‘consensus of cases of persuasive authority,” Ashcroft

al-Kidd, 563 U.S. 731, 741-42, 131 S. Ct. 2074 (2011) (quoting Wilson v. Layne, 526

U.S. 603, 617, 119 S. Ct. 1692 (1999)), and defined with a “high ‘degree of specificity,”

District of Columbia v. Wesby, —U.S.—, 138 S. Ct. 577, 590 (2018) (quoting Mullenix v.

2 In Pearson, the Supreme Court held that while the sequence set forth in Saucier is

often appropriate, it is no longer mandatory. Pearson, 555 U.S. at 236. Instead, lower

courts “should be permitted to exercise their sound discretion in deciding which of the

two prongs of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Id.

Luna, 577 U.S. 7, 13, 136 S. Ct. 305, 309 (2015) (per curiam)). It is not that a case must

be directly on point, but rather existing precedent must have provided sufficient notice

that the acts violate the Constitution. See Darden v. City of Fort Worth, 880 F.3d 722,

727 (5th Cir. 2018). The “clearly established” test ensures that officials have “fair warning”

that particular conduct violates the Constitution. Anderson v. Valdez, 845 F.3d 580, 600

(5th Cir. 2016) (quoting Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc)).

I. Insufficient Pleading.

Without addressing each of the arguments raised in the Defendants’ motion to

dismiss, the Court notes that the Plaintiffs’ claims against the Defendants are deficient in

a number of respects. First, oftentimes, the Plaintiffs’ complaint does not clearly identify

the nature of the claims or the source of the right each specific Plaintiff asserts against a

specific Defendant. Further, it often lacks a factual basis for those claims. Compounding

this issue is that groups of Plaintiffs and groups of Defendants are frequently lumped

together, making it impossible to discern who allegedly did what to whom within the

context of a particular claim. See Cain v. City of New Orleans, No. CV 15-4479, 2016 WL

2849498, at *5 (E.D. La. May 13, 2016) (“This pleading structure—lumping all defendants

together and asserting identical allegations as to each, without distinction—largely

prevents the Court from discerning which defendants are allegedly responsible for which

allegedly unlawful actions.”). While this would be problematic in any § 1983 complaint,

the error is particularly significant here where the Court is required to analyze the nine

“categories” of claims (which themselves contain subsets of claims) brought by seventeen

Plaintiffs against twenty-two Defendants. The Court’s task is all but impossible given the

current state of pleading, and this predicament is heightened by the internal

inconsistencies contained within the second amended complaint. Further, many of the

allegations supporting the Plaintiffs’ claims are conclusory. In sum, the majority of the

Plaintiffs’ allegations do not provide fair notice of each individual claim asserted by each

Plaintiff against a particular Defendant, nor does it provide notice of the factual

underpinnings for those claims.

Second, the Plaintiffs routinely assert claims against an entire group of unidentified

Defendants, i.e., “all defendant police officers seized and/or detained all Plaintiffs as a

whole and/or a crowd,” “some officers . . . used force,” and “the failure to intervene and

acquiescence by each named defendant resulted in the named defendants failing to follow

protocol and training.” Record Document 23, pp. 25 & 29. However, legal liability is

“personal.” Bank of Am., N.A. v. Knight, 725 F.3d 815, 818 (7th Cir. 2013). An allegation

that someone did something unlawful “does not propound a plausible contention that a

particular person did anything wrong.” Id. The notice pleading required by the Federal

Rules of Civil Procedure entitles each defendant “to know what he or she did that is

asserted to be wrongful.” Id. Thus, “a plaintiff bringing a section 1983 action must specify

the personal involvement of each defendant.” Murphy v. Kellar, 950 F.2d 290, 292 (5th

Cir. 1992). Courts have often concluded that allegations that plead liability with respect to

a collective group of defendants without distinguishing the conduct of each individual

defendant are deficient. See Cain, 2016 WL at *5. While such collective allegations of

liability are not always a fatal pleading deficiency, the Fifth Circuit has cautioned that “each

defendant is [still] entitled to know what he or she did that is asserted to be wrongful.”

Martinez v. City of N. Richland Hills, 846 F. App’x 238, 243 (5th Cir. 2021) (internal marks

omitted). Here, the second amended complaint fails to inform the Defendants which

members of their group are named as wrongdoers for each claim.

Third, the Plaintiffs’ method of group pleading precludes the Court from

meaningfully assessing the Defendants’ qualified immunity defense. “Where officers work

together to effectuate an arrest, federal district courts frequently analyze false arrest

claims, including assertions of qualified immunity, concurrently as to all arresting officers.”

Sinegal v. City of El Paso, 414 F. Supp. 3d 995, 1004 (W.D. Tex. 2019) (collecting cases).

But, “[i]n cases where the defendants have not acted in unison, ‘qualified immunity claims

should be addressed separately for each individual defendant.’ ” Darden, 880 F.3d at 731

(quoting Kitchen v. Dallas Cnty., 759 F.3d 468, 480 (Sth Cir. 2014)). Moreover, when the

qualified immunity defense has been raised, “a plaintiff cannot be allowed to rest on

general characterizations, but must speak to the factual particulars of the alleged actions,

at least when those facts are known to the plaintiff and are not peculiarly within the

knowledge of defendants.” Schultea v. Wood, 47 F.3d 1427, 1432 (5th Cir. 1995). Thus,

as courts have concluded, when plaintiffs fail to individualize their allegations against the

defendants without justification for doing so, and instead rely on “collective allegations”

against a whole group of defendants, they fail to overcome assertions of qualified

immunity at the 12(b)(6) stage. See Sinegal, 414 F. Supp. 3d at 1004; Bivens v. Forrest

Cnty. No. 2:13-CV-8-KS-MTP, 2015 WL 1457529, at *7 (S.D. Miss. Mar. 30, 2015).

The exception to this is when a plaintiff affirmatively alleges that he is unable to

specify which officer violated his constitutional rights; there, district courts within the Fifth

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Circuit have allowed limited discovery “narrowly tailored to uncover only those facts

needed to rule on the immunity claim[s].” Khansari v. City of Houston, 14 F. Supp. 3d

842, 861 (S.D. Tex. 2014) (quoting Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012));

see Delacruz v. City of Port Arthur, No. 1:18-cv-11, 2019 WL 1211843, at *6 (E.D. Tex.

Mar. 14, 2019); Dyer v. City of Mesquite, No. 3:15-cv-2638-B, 2017 WL 118811, at *11

(N.D. Tex. Jan. 12, 2017); Crisp v. Dutton, No. A-15-cv-0431-LY-ML, 2015 WL 7076483,

at *9 (W.D. Tex. Nov. 12, 2015); Huff v. Refugio Cnty. Sherriff’s Dept., No. 6:13-cv-32,

2013 WL 5574901, at *2 (S.D. Tex. Oct. 9, 2013); cf. Callaway v. City of Austin, No. 15-

cv-103-SS, 2015 WL 4323174, *9 (W.D. Tex. July 14, 2015) (“The argument that a plaintiff

has failed to state a claim for excessive force simply because the witness could not see

which officer did what fails at the summary judgment stage.”).

Here, however, the Plaintiffs have not alleged that they are unable to identify which

role each Defendant played in the alleged violations. Despite the Defendants putting the

Plaintiffs on notice that the second amended complaint’s group pleading was problematic,

Plaintiffs’ opposition to the motion to dismiss did nothing to cure or justify that issue. It

is the Plaintiffs’ burden to allege particular facts that refute the qualified immunity defense.

And, even outside of the qualified immunity context, it is their burden to set forth direct

factual allegations that put each Defendant on notice of which specific claims have been

asserted against him or her. The Plaintiffs have, quite simply, failed to carry their burden.

However, despite having amended the complaint twice now, it is not clear to the

Court that the Plaintiffs have actually pled their “best case.” Morin v. Caire, 77 F.3d 116,

121 (5th Cir. 1996). Thus, the Court will allow the Plaintiffs one final chance to amend.

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The amended complaint must be organized in such a fashion as to clearly delineate each

specific claim each Plaintiff brings against each Defendant, the facts of that claim, and the

source of the right. Continued grouping of Plaintiffs and Defendants, as currently pled,

will not be reviewed favorably. All Defendants involved in each specific alleged violation

must be identified by name (unless Plaintiffs can justify their inability to presently identify

a specific Defendant) and each Defendant’s role must be particularized. Failure to comply

with these parameters will expose the majority of the Plaintiffs’ claims to dismissal, for the

reasons discussed above.

III. Areas in Which Amendment Is Not Permitted.

While the Court will allow the Plaintiffs to amend their complaint, that authorization

is circumscribed in several ways. First and foremost, the amended complaint may not

expand upon the pool of parties set forth in the second amended complaint, nor may it

add any new legal claims by or against any present party. Put simply, the parties and the

claims are what they are; the Plaintiffs are granted permission only to specify and

particularize their current claims against the current Defendants, not to allege any new

claims. The Plaintiffs’ right to amend is further limited in the following respects.

A. Dismissed Claims.

The Court dismisses the federal claims brought by the following Plaintiffs: Linda

LeFall, Frances Allen, George Allen, and William Allen. As to LeFall, the complaint alleges

only that “an officer grabbed [her] arms” and told her to be quiet. Record Document 23,

pp. 23 & 34. She allegedly suffered a bruise, swelling, headaches, mental distress,

flashbacks, and sleeplessness. Id. George Allen asserts that he was shoved against a

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shed, which hurt his back and caused him to suffer from post-traumatic stress disorder.

Id. at 23. LeFall’s and George Allen's claims are even more vague and non-particularized

than the bulk of Plaintiffs’ claims, and despite having drafted the complaint three times,

Plaintiffs never set forth any further detail—either factual or legal—about these alleged

constitutional violations. Nor, for that matter, did the Plaintiffs attempt to save these

claims from dismissal under § 1983 when opposing the pending motion to dismiss. In

fact, the only mention of LeFall and George Allen in the Plaintiffs’ opposition is in the

section regarding the Plaintiffs’ state law claims. Because the Plaintiffs have failed to state

a plausible § 1983 claim, they cannot survive Defendants’ motion to dismiss. Permission

is not granted to reconstitute these claims in the amended complaint.

The Court also dismisses the federal claims of Frances Allen and William Allen.

Frances Allen allegedly witnessed what happened to her husband, George, while William

Allen was merely in an overall “zone of danger” and was distressed by what he witnessed.

There is “no constitutional right to be free from witnessing . . . police action.” Grandstaff

v. Borger, 767 F.2d 161, 172 (5th Cir. 1985). “Bystander excessive force claims can only

succeed when the officer directs the force toward the bystander—that is to say, when the

bystander is not really a bystander.” Harmon v. City of Arlington, Tex., 16 F.4th 1159,

1168 (5th Cir. 2021). Here, these Plaintiffs’ claims are based solely upon witnessing events

and thus fail to state a claim under § 1983. The Plaintiffs’ amended complaint may not

reurge these claims.

Similarly, the Court dismisses all § 1983 claims brought on behalf of the minor

children, as those claims are premised solely upon witnessing the events of that day. No

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allegation has been made that a minor has a stand-alone § 1983 claim against any

Defendant based on something other than witnessing the officers’ actions against the adult

Plaintiffs. Because no constitutional violation occurs to one who witnesses police action,

the minors’ claims necessarily fail. Thus, the federal claims brought on behalf of W. Love,

III (brought by Javon and Denise Tyler), S. Tyler (brought by Javon and Denise Tyler), N.

Young (brought by Johnnie and Rosiland Young), B. Love (brought by Relisa Jackson), C.

Young (brought by Relisa Jackson), C. Anderson (brought by Danelle McKnight), and S.

Jackson (brought by Calvin Jackson) are dismissed. These claims may not be repleaded.

As to Plaintiff Brenda Walker, the Plaintiffs allege that “one or more” of the

Defendants, possibly Officers McConnell, Clark, Berry, and/or Sauseda stomped or fell on

her foot, causing a broken toe. Claims arising out of negligent acts do not give rise to

relief under § 1983. In Daniels v. Williams, the United States Supreme Court explained:

Far from an abuse of power, lack of due care suggests no more than a

failure to measure up to the conduct of a reasonable person. To hold that

injury caused by such conduct is a deprivation within the meaning of the

Fourteenth Amendment would trivialize the centuries-old principle of due

process of law.

474 U.S. 327, 332, 106 S. Ct. 662, 665 (1986). Thus, to the extent Walker's § 1983 claim

is premised on someone “falling” on her, i.e., negligence on the part of one or more

Defendants, there is no remedy for such a claim under § 1983, and the claim must be

dismissed.

B. Dismissed Defendants.

The Court also dismisses all claims against Defendant Tyler Asher. The Plaintiffs

have not alleged that Asher personally violated any named Plaintiff's rights, directed

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another to violate rights, or failed to intervene to stop any particular violation of rights,

much less to which Plaintiff those failures would have been related. Indeed, Plaintiffs

merely allege that Asher was present at the scene and failed to intervene and acquiesced

in the use of force and false arrests. Record Document 23, p. 29. Given the multitude of

alleged violations that occurred that day, it is imperative that Plaintiffs more particularly

describe in what alleged violation Tyler failed to intervene and in whose use of force he

acquiesced. Despite having filed three complaints, Plaintiffs have never attempted to

better delineate what they believe Asher’s role was that day, nor have they connected him

to any of the violations described in the complaint. There are no facts alleged to plausibly

suggest that the Plaintiffs can establish a claim against Asher, or that they could overcome

the qualified immunity defense. Instead, the Court is left with the impression that Asher

was sued simply because he was present on the scene that day. That is, there is no actual

allegation of personal involvement that is more than a conclusory “guilt by association”

type allegation. The claims against Defendant Asher are dismissed.

The same can be said for Officer Rawls-Davis.? Plaintiffs allege no specifics as to

Officer Rawls-Davis’s role on the day of the incident. Officer Rawls-Davis is listed as being

present on the scene, and Plaintiffs accuse this Defendant of failing to intervene and

acquiescing in the use of force. They assert that “[h]e used excessive force upon multiple

plaintiffs.” Id. at p. 5. However, the only specific, non-conclusory factual allegation raised

2 Defendants refer to Officer Davis as Officer Kay Rawls-Davis, whereas Plaintiffs refer to

this officer merely as “Davis,” with no first name ever set forth. The Court will refer to

this officer as Rawls-Davis.

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against Officer Rawls-Davis is under the fourth cause of action.? There, Plaintiffs contend

that “Davis” failed to restrain Defendant Tucker when Tucker employed his K-9 against

Plaintiff Hardeman. The Court notes that in other factual descriptions of this event, Rawls-

Davis is not named as being present for it. But, out of an abundance of caution, the Court

will allow the Plaintiffs to amend this one claim—Rawls-Davis’s alleged failure to intervene

in Defendant Tucker’s battery of Plaintiff Hardeman. However, all other claims against

Officer Rawls-Davis are dismissed.

C. Non-Parties

While Officers “Lifer” and “Richardson” were not named as Defendants in this

matter, their names are mentioned in some of the facts set forth in the complaint.

However, Plaintiffs’ amended complaint shall not treat these officers as though they are

Defendants. In other words, these two officers may be mentioned factually, but the Court

denies permission to amend the complaint to add them as Defendants in this case.

Similarly, minors D. Armington and A. Jackson are mentioned in the complaint, but

are not identified as named Plaintiffs. Nor, for that matter, has any Plaintiff brought suit

on behalf of these minors. They may not be added as Plaintiffs in the amended complaint.

IV. — Conclusion.

For the foregoing reasons, the Defendants’ motion to dismiss [Record Document

28] be and is hereby granted in part and denied in part. It is granted to the extent that

the following claims are dismissed with prejudice: the federal claims of Plaintiffs Linda

3 This assumes the complaint is in fact referencing Officer Rawls-Davis and not Captain

Rene Davis; the complaint fails to distinguish between the two in this allegation.

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LeFall, Frances Allen, George Allen, and William Allen; Walker’s § 1983 claim to the extent

it is premised upon negligence; all federal claims brought on behalf of the minors; all

Plaintiffs’ claims against Defendant Tyler Asher; and all Plaintiffs’ claims against Defendant

Officer Rawls-Davis except Plaintiff Hardeman’s claim for failure to intervene in Defendant

Tucker's battery. The Defendants’ motion is denied in all other respects with the right to

reurge upon the Plaintiffs’ filing of an amended complaint. Plaintiffs’ amended complaint

must be filed by April 29, 2022.

THUS DONE AND SIGNED this 21st dayof March, 2022.

UNITED STATES D □ JUDGE

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