Johnson v. Erickson et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHARLES RAY JOHNSON,
Plaintiff,
vs.
DAVE ERICKSON, Chief of Police for
Brookings Police Department, JOE
FISHBAUGHER, Assistant Chief of
Police for Brookings Police, DAMIAN
WEETS, Sargent for Brookings Police
Department, JOHN MCQUISTION,
Parole Officer, and JOHN DOE, Police
Officer for the Brookings Police
Department,
Defendants.
4:20-CV-04168-KES
1915A SCREENING FOR SERVICE IN
PART AND DISMISSAL IN PART
Plaintiff, Charles Ray Johnson, filed a pro se civil rights lawsuit under 42
U.S.C. § 1983. Docket 1. This court granted Johnson leave to proceed in forma
pauperis. Docket 9. Now, Johnson moves for the court to amend his service of
process date. Docket 21.
I. 	28 U.S.C. § 1915 Screening
A. 	Factual Background
The facts alleged in Johnson’s complaint are: that while at the Green
Briar Apartments in Brookings, South Dakota, he called the police to report an
unsupervised toddler. See Docket 1 at 7, 14. At the same time, Officer Damian
Weets and his unknown partner arrived after receiving a call about a
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suspicious black vehicle and black man. Id. at 15. Johnson is a black male and
Officer Weets and his partner asked Johnson what his name was. Id. at 7, 15.
Johnson gave Officer Weets his name and birthdate and told him that he was
on parole. Id. at 7.
Officer Weets and his partner told Johnson he was free to go. Id. Johnson
claims that even after the officers told him he was free to go, they kept asking
him his name. Id. at 7. Johnson said that he did not need to answer that and
that Officer Weets continued to harass him and unholstered his gun. Id. at 8.
Officer Weets allegedly pointed the weapon into Johnson’s car and yelled “it’s
the law you have to tell me your name[,] it’s the law in all fifty states.” Id.
Johnson put his hands up and Officer Weets’s partner was yelling at Officer
Weets to lower his weapon. Id. Officer Weets lowered his weapon and told
Johnson that he had created a hostile environment by not cooperating with
him. Id. Officer Weets asked for Johnson’s name again and when Johnson
refused, he again unholstered his gun and pointed it inside the car. Id. Weets
told Johnson to put his hands down and said he “hates it when we do that
#BlackLivesMatter bull crap when we have [you] cornered.” Id.
Johnson was told that he was going to be held as John Doe for failure to
identify himself and Weets’s partner demanded that Johnson flip his phone
open. Id. Johnson was allegedly arrested for false impersonation. Id. Johnson
mentions that he pleaded guilty in court. Id. at 10. Johnson alleges that the
evidence introduced in his criminal case was tampered with or deleted. Id. at
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19. Johnson’s complaint does not give details on what he pleaded guilty to. See
Docket 1.
Johnson asserts that John McQuistion, his parole officer, violated his
constitutional rights after Johnson refused to give him (McQuistion) the
password to his phone. Id. at 10-11. Johnson alleges he told McQuistion that
he was filing a lawsuit against him and McQuistion then filed a false report
that he had absconded from parole. Id. at 12. Johnson claims that the false
report was the catalyst to him being arrested later that day by Officer Weets
and his partner. Id.
He asserts that Dave Erickson, Chief of Police, and Joe Fishbaugher,
Assistant Chief of Police, failed to properly train their officers, and this led to
the violation of his constitutional rights. See id. at 6, 13. He sues all the
defendants in their individual and official capacities. Id. at 12. He seeks seven
million dollars and injunctive relief that the Brookings Police Department
policies be revised Id. at 4.
B. 	Legal Background
When a district court determines a plaintiff is financially eligible to
proceed in forma pauperis under 28 U.S.C. § 1915(a), the court must then
determine whether the complaint should be dismissed under 28 U.S.C.
§ 1915(e)(2)(B). Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir. 1982);
see also Key v. Does, 217 F. Supp. 3d 1006, 1007 (E.D. Ark. 2016). Under
§ 1915, the court must review the claims in the complaint to determine if they
are (1) frivolous or malicious, (2) fail to state a claim on which relief may be
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granted, or (3) seek monetary relief against a defendant who has immunity. See
28 U.S.C. § 1915(e)(2)(B).
The court must assume as true all facts well pleaded in the complaint.
Estate of Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). Civil rights and
pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89,
94 (2007); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Even
with this construction, “a pro se complaint must contain specific facts
supporting its conclusions.” Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.
1985); see also Ellis v. City of Minneapolis, 518 F. App’x 502, 504 (8th Cir.
2013).
A complaint “does not need detailed factual allegations . . . [but] requires
more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). If it does not contain these bare essentials, dismissal is appropriate.
Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Twombly requires that
a complaint’s factual allegations must be “enough to raise a right to relief above
the speculative level on the assumption that all of the complaint’s allegations
are true.” Twombly, 550 U.S. at 555; see also Abdullah v. Minnesota, 261 F.
App’x 926, 927 (8th Cir. 2008) (noting that a complaint must contain either
direct or inferential allegations regarding all material elements necessary to
sustain recovery under some viable legal theory).
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C. 	Legal Analysis
1. 	Claims against John McQuistion
Johnson alleges that McQuistion filed a false report after Johnson told
McQuistion that he was filing a lawsuit. Docket 1 at 12. He asserts that the
false report stated that he had absconded and was the catalyst for him being
arrested by Officer Weets and his partner. Id.
Liberally construing Johnson’s alleged facts, he has raised a retaliation
claim against McQuistion. To state a retaliation claim under § 1983, Johnson
must show: (1) that he was engaged in constitutionally protected activity, (2)
that McQuistion’s adverse action caused Johnson to suffer an injury that
would “ ‘chill a person of ordinary firmness’ from continuing in the
[constitutionally] protected activity,” and (3) that the adverse action was at
least partially motivated by Johnson’s exercise of his constitutional rights. See
Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010) (quoting
Williams v. City of Carl Junction, 480 F.3d 871, 878 (8th Cir. 2007)). Johnson
alleges that McQuistion filed a false report because he told him about his
lawsuit and Johnson was later arrested. This is sufficient to plead a § 1983
retaliation against McQuistion that survives 28 U.S.C. § 1915A screening.
2. 	Official Capacity Claims against Brookings PD Defendants
Johnson sues Damian Weets, John Doe, Joe Fishbaugher, and Dave
Erickson (Brookings PD defendants) in their official capacities. Docket 1 at 12.
These individuals are employed by the Brookings Police Department. “A suit
against a government officer in his official capacity is functionally equivalent to
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a suit against the employing governmental entity.” Veatch v. Bartels Lutheran
Home, 627 F.3d 1254, 1257 (8th Cir. 2010). Johnson’s official capacity claims
against Weets, Doe, Fishbaugher and Erickson are the equivalent to claims
against the City of Brookings. A municipal government may only be sued “when
execution of a government’s policy or custom, whether made by its lawmakers
or by those whose edicts or acts may fairly be said to represent official policy,”
deprives a plaintiff of a federal right. Monell v. Dept. of Soc. Servs., 436 U.S.
658, 694 (1978). Johnson claims that Brookings Police Departments’ policies
need to be revised because the Brookings PD defendants’ alleged actions were
derived from these alleged unconstitutional policies through acting on the
policies or training on the policies. See Docket 1 at 6, 12-13. Thus, Johnson’s
claims against Brookings PD defendants in their official capacities survive
screening.1
1 Erickson and Fishbaugher are the supervisors to Weets and the unknown
officer. "In the section 1983 context, supervisor liability is limited. A supervisor
cannot be held liable, on a theory of respondeat superior, for an employee's
unconstitutional actions." Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1994).
"Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must
plead that each Government-official defendant, through the official's own
individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009). Because Johnson claims that Erickson and Fishbaugher have
failed to train Weets and the unknown partner on the law and the policies are
unconstitutional, his claims against Fishbaugher and Erickson in their
individual capacities survive screening.
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3. 	Individual Capacity Claims
a. 	Fourth Amendment
Johnson’s complaint includes facts about his police encounter. See
Docket 1. Liberally construing the alleged facts, Johnson claims that Brookings
PD defendants used excessive force against him and that he was unreasonably
seized. Id. The Fourth Amendment protects against "unreasonable searches
and seizures[.]” U.S. Const. amend. IV. The Fourth Amendment also
guarantees the right to be free from excessive force during an arrest or
investigation. Jackson v. Stair, 944 F.3d 704, 710-11 (8th Cir. 2019) (citing
Graham v. Connor, 490 U.S. 386, 394 (1989)).
i. 	Unreasonable Seizure
Seizures that are brief are still within the scope of the Fourth
Amendment. See Terry v. Ohio, 392 U.S. 1, 16-19 (1968). "[W]henever a police
officer accosts an individual and restrains his freedom to walk away, he has
'seized' that person." Id. at 16. A seizure must be reasonable and a less
intrusive seizure’s reasonableness will depend on “a balance between the
public interest and the individual right to personal security free from arbitrary
interference by law officers.” Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)
(internal quotation omitted). An officer can detain someone briefly for
questioning, but cannot make an arrest without probable cause. Terry, 392
U.S. at 25-26.
Johnson alleges that he gave Officer Weets and his partner his name and
birthdate. Docket 1 at 7. After Johnson complied, Officer Weets and his partner
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told him that he was free to go. Id. Johnson claims that the officers kept asking
him for his name and that he was arrested for false impersonation. Id. at 8. For
purposes of screening, Johnson has alleged sufficient facts to support a Fourth
Amendment unreasonable seizure claim against Brookings PD defendants.
ii. 	Excessive Force
The United States Supreme Court "has long recognized that the right to
make an arrest or investigatory stop necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it." Graham, 490
U.S. at 396. “[T]he Fourth Amendment requires us to ask, from the perspective
of a reasonable officer on the scene, ‘whether the officers’ actions are
"objectively reasonable" in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.’ ” Franklin v.
Peterson, 878 F.3d 631, 635 (8th Cir. 2017) (quoting Graham, 490 U.S. at 397).
Johnson alleges that Officer Weets and his partner continued to ask for his
identification after he gave them his name and birthdate. Docket 1 at 7. He
asserts that Officer Weets unholstered his gun and pointed it into the vehicle
where Johnson was sitting. Id. Johnson has stated sufficient facts to support
that the threat of force allegedly used by Officer Weets and his partner was
unreasonable to obtain information. Thus, Johnson’s excessive force claim
against the Brookings PD defendants survives screening.
b. 	State-Law Claims
Johnson mentions reckless infliction of emotional distress and
intentional infliction of emotional distress. Docket 1 at 4. Johnson must allege
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facts that “defendant[s] (1) by extreme and outrageous conduct, (2) acted
intentionally or recklessly to cause the plaintiff severe emotional distress, (3)
which conduct in fact caused the plaintiff severe distress, and (4) the plaintiff
suffered an extreme, disabling emotional response to the defendant's conduct.”
Harris v. Jefferson Partners, L.P., 653 N.W.2d 496, 500 (S.D. 2002). Because
Johnson has not alleged facts to support these claims but only lists the legal
claims, his reckless and intentional infliction of emotional distress claims are
dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and 1915A(b)(1).
c. 	Equal Protection
Johnson asserts that Officer Weets’s alleged comment and actions
amounted to race based discrimination and an equal protection violation.
Docket 1 at 6. “[T]he Constitution prohibits selective enforcement of the law
based on considerations such as race.” Whren v. United States, 517 U.S. 806,
813 (1996) . A plaintiff must show that the officer exercised discretion to
enforce the law on account of race “which requires proof of both discriminatory
effect and discriminatory purpose.” Johnson v. Crooks, 326 F.3d 995, 1000 (8th
Cir. 2003) (stating that when a plaintiff alleged the officer’s traffic stop was due
to his race, he had stated a “cognizable equal protection claim.”) (citing United
States v. Armstrong, 517 U.S. 456, 465 (1996)). “When the claim is . . . a
racially-motivated arrest, the plaintiff must normally prove that similarly
situated individuals were not stopped or arrested in order to show the requisite
discriminatory effect and purpose.” Johnson, 326 F.3d at 1000.
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Here, Johnson alleges that Officer Weets said “I hate it when y’all do that
#BLACKLIVESMATTER bull crap when we have y’all cornered[.]” Docket 1 at 7.
Officer Weets then arrested Johnson. Id. Johnson has alleged sufficient facts to
support that Officer Weets’s discretion to enforce the law was due to Johnson’s
race through discriminatory effect and discriminatory purpose as required by
Johnson. 326 F.3d at 1000. Thus, Johnson’s equal protection claim survives
screening.
d. 	Conspiracy
Johnson alleges that all defendants have conspired to deprive him of his
due process rights. Docket 1 at 4, 19. To plead a civil conspiracy under § 1983,
Johnson must show "(1) two or more persons; (2) an object to be accomplished;
(3) a meeting of the minds on the object or course of action to be taken; (4) the
commission of one or more unlawful overt acts; and (5) damages as the
proximate result of the conspiracy." Livers c. Schenck, 700 F.3d 340, 360-61
(8th Cir. 2012) (internal quotation omitted). Johnson does not allege particular
facts that all or any of the defendants had reached an agreement or specific
facts that tend to show they had a meeting of the minds. Reasonover v. St.
Louis Cnty., 447 F.3d 569, 582 (8th Cir. 2012); Murray v. Lene, 595 F.3d 868,
870 (8th Cir. 2010). The court finds Johnson's assertions to be legally
conclusive and his conspiracy claims against all defendants are dismissed
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
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II. 	Motion to Amend Proof of Service
Johnson “moves the court[] to ask for permission to amend proof of service
date to send Defendant an admission of service form.” Docket 21. It appears that
after this court granted Johnson in forma pauperis status, he has been trying to
serve his complaint. Johnson’s complaint will be served by the United States
Marshals after he fills out the proper paperwork. Johnson’s motion (Docket 21)
is denied as moot.
Thus, it is ORDERED:
1. 	That Johnson’s § 1983 Retaliation claim against John McQuistion
survives 28 U.S.C. § 1915A review.
2. 	That Johnson’s Fourth Amendment (unreasonable seizure and
excessive force) claims against Damian Weets, John Doe, Joe
Fishbaugher, and Dave Erickson and Johnson’s Equal Protection
claim against Officer Weets survive 28 U.S.C. § 1915A review.
3. 	That all of Johnson’s other claims are dismissed under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
4. 	That Johnson’s motion to amend (Docket 21) is denied as moot.
5. 	That the Clerk shall send blank summons forms and Marshal
Service Form (Form USM-285) to Johnson so that he may cause the
complaint to be served upon defendants.
6. 	That Johnson shall complete and send the Clerk of Courts a separate
summons and USM-285 form for each defendant. Upon receipt of the
completed summons and USM-285 forms, the Clerk of Court will
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issue the summons. If the completed summons and USM-285 form
are not submitted as directed, the complaint may be dismissed.
7. 	The United States Marshal Service shall serve the completed
summonses, together with a copy of the complaint (Docket 1) and
this order, upon the defendants.
8. 	Defendants will serve and file an answer or responsive pleading to
the amended complaints and supplement on or before 21 days
following the date of service or 60 days if the defendants fall under
Fed. R. Civ. P. 12(a)(2) or (3).
9. 	Johnson will keep the court informed of his current address at all
times. All parties are bound by the Federal Rules of Civil Procedure
and by the court’s Local Rules while this case is pending.
Dated January 20, 2021.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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