EMILY SPERBER, individuals and next of friend to V.S., her daughter, a minor, v. UNITED STATES OF AMERICA and JEREMY LATCHMAN
Civ. No. 19-11
UNITED STATES DISTRICT COURT DISTRICT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX
August 31, 2021
THOMPSON, U.S.D.J.
NOT FOR PUBLICATION
OPINION
INTRODUCTION
This matter comes before the Court upon the Motion to Dismiss filed by Defendant Jeremy Latchman (“Defendant“). (ECF No. 15.) The Court has decided the Motion based on the written submissions of the parties and without oral argument. For the reasons stated herein, Defendant‘s Motion is granted in part and denied in part.
BACKGROUND
I. Factual Background
Plaintiff Emily Sperber (“Plaintiff“) is a resident of St. Croix, U.S.V.I. (Compl. ¶ 2.) Plaintiff brings suit on behalf of herself and her minor daughter, V.S. (collectively, “Plaintiffs“). (Id.) Defendant is an employee of the High Intensity Drug Trafficking Areas (“HIDTA“)
On September 22, 2017, Defendant went to a condominium in St. Croix owned by Sarah Bourne (the “Condo“). (Id. ¶ 6.) Bourne was not in the Condo and Plaintiff was “overseeing” it in her absence. (Id.) Defendant approached Plaintiff and stated that Bourne had “authorized him to go into her Condo to retrieve water and bleach to be taken to his job at HIDTA-DEA.” (Id.) Plaintiff gave Defendant the key to access the Condo “to solely get bleach and water.” (Id. ¶ 7.) Fifteen minutes later, Plaintiff went to the Condo to check on Defendant and retrieve the key. (Id. ¶ 8.) Plaintiff observed that Defendant had bleach in his hand and water stacked on the ground by the front door. (Id. ¶ 9.) Defendant told Plaintiff that he was not ready to leave yet and that he intended to “grab some other things.” (Id. ¶¶ 10, 12.) Defendant then told Plaintiff that “everything in the [C]ondo now belonged to him.” (Id. ¶ 15.) Plaintiff explained to Defendant that Plaintiff‘s brother-in-law owned the Condo and Bourne rented it, and that Plaintiff “had been authorized by both persons to oversee and take care of the [C]ondo.” (Id. ¶ 16.) Plaintiff also explained that “some of [her own] personal possessions were also stored [in] the [C]ondo” and Defendant could not take them. (Id. ¶ 14.)
When Plaintiff tried to pick up the key on the floor, Defendant grabbed it, placed it in his pants pocket, and accused Plaintiff of trespassing. (Id. ¶ 16.) After further discussion, Defendant told Plaintiff that if she did not leave, “he would physically remove her from the [C]ondo.” (Id. ¶ 19.) Plaintiff refused and stated that “she would not leave the [C]ondo unless [Bourne] authorized [Defendant‘s] presence.” (Id. ¶ 23.) At that point, Defendant “grabbed” and “twist[ed] [Plaintiff‘s] right wrist and slammed her up against the bedroom wall with her right shoulder hitting the wall with great force[.]” (Id. ¶¶ 28-29.) He then partially handcuffed Plaintiff. (Id. ¶ 29.) Plaintiff “struggled to keep her left wrist free,” at which point Defendant “picked [Plaintiff]
As a result of the altercation, Plaintiff alleges that she experienced physical injuries including “injured wrists, marks on her arms, . . . and [an] injured shoulder, neck and back.” (Id. ¶ 39.) In additional to physical injuries, she claims “medical expenses and economic losses, mental anguish, pain and suffering, lack of freedom, fear, terror and loss of enjoyment of life.” (Id. ¶ 42.) Additionally, V.S. has suffered “fright, anger, fear, nightmares, mental anguish, suffering and loss of enjoyment of life.” (Id. ¶ 43.)
II. Procedural History
Plaintiffs filed the Complaint against Defendant and the United States of America on April 3, 2019. (ECF No. 1.) Plaintiffs allege that Defendant violated the Federal Tort Claims Act, (“FTCA“),
LEGAL STANDARD
I. Rule 12(b)(1)
Under
II. Rule 12(b)(6)
To survive dismissal under
DISCUSSION
I. Tort Claims
Defendant moves, pursuant to
The Westfall Act,
[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such a claim . . . shall be deemed to be an action against the United States under the
provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
The scope-of-employment certification “is prima facie evidence that the employee‘s challenged conduct occurred within the scope of employment, but it is not conclusive.” Schrob v. Catterson, 967 F.2d 929, 936 (3d Cir. 1992). “Thus, a plaintiff challenging the certification has the burden of coming forward with specific facts rebutting it.” Id. “If the facts can be determined without an evidentiary hearing, the court can rule on a pretrial motion to substitute . . . based on the certification, pleadings, documentary evidence, and affidavits.” Id. Here, because the United States Attorney for the district where the civil action is pending has certified that Defendant was acting within the scope of his employment, (see Shappert Cert. at 1), the Court must determine whether Plaintiffs have proffered facts that demonstrate Defendant was in fact not acting within the scope of his employment.
A court‘s determination of scope of employment rests on the relevant state law of respondeat superior. Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000). In the Virgin Islands, an employee‘s conduct is within the scope of employment if:
- it is of the kind he is employed to perform;
- it occurs substantially within the authorized time and space limits;
- it is actuated, at least in part, by a purpose to serve the master; and
- if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
Here, the record demonstrates that Defendant was acting within the scope of his employment when he went to Bourne‘s apartment to retrieve supplies and interacted with Plaintiff. First, his conduct was the kind he is employed to perform. According to the Latchman Declaration, one of Defendant‘s duties was to carry out the “Continuity of Operations Plan” (“COOP“) for the DEA after Hurricane Maria hit St. Croix on September 19-20, 2017. (Latchman Decl. ¶¶ 3-4, ECF No. 20-2.) This included “restoration of the official duties of the DEA Resident office,” and “checking on the well-being of DEA employees and condition of their property, gathering and issuing supplies to DEA employees affected by the storm, and assisting local law enforcement as needed.” (Id. ¶ 4.) In line with this duty, Bourne requested that Defendant visit her apartment to gather supplies and check for any damage. (Id. ¶ 5.)
Second, Defendant‘s conduct occurred substantially within authorized time and space limits. Bourne gave Defendant permission to go to her apartment and retrieve supplies. (Bourne Decl. ¶ 10, ECF No. 20-1.) Moreover, Defendant went to Bourne‘s apartment on September 24, 2017, days after the hurricane hit St. Croix, and at 4:15 p.m., within what is typically considered reasonable work hours. (Latchman Decl. ¶ 6.) Third, Defendant‘s actions were actuated, at least in part, by a purpose to serve the DEA. As stated, Defendant was carrying out his COOP duties, which included restoring DEA operations and assisting DEA agents on the island. (Id. ¶¶ 3-4.) Fourth, Defendant‘s force against Plaintiff was not unexpectable by the DEA. Law enforcement agents are often expected to use reasonable force when the situation demands it. See Graham v. Connor, 490 U.S. 386, 396-97 (1989).
Because the record establishes that Defendant was acting within the scope of his employment and Plaintiffs have not come forward with any specific facts rebutting this conclusion, the United States is properly substituted as the sole Defendant for Plaintiffs’ FTCA claims. Accordingly, insofar as the Complaint brings common-law tort claims against Defendant, those claims are dismissed.
II. Fourth Amendment Claim
Plaintiffs also bring a claim against Defendant in his individual capacity for violating the Fourth Amendment. (Compl. ¶ 40.) Plaintiffs bring this claim pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1979). Defendant moves, pursuant to
The doctrine of qualified immunity shields government officials who perform discretionary functions “from liability for civil damages 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 (1982). “To resolve a claim of qualified immunity, courts engage in a two-pronged inquiry: (1) whether the plaintiff sufficiently alleged the violation of a constitutional right, and (2) whether the right was ‘clearly established’ at the time of the official‘s conduct.” L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 241 (3d Cir. 2016) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
A. Constitutional Violation
The use of excessive force when effectuating a search or seizure violates the Fourth Amendment. Est. of Smith v. Marasco, 430 F.3d 140, 148 (3d Cir. 2005). “To state a claim for
While this inquiry is highly individualized and fact-specific, the Supreme Court in Graham provided three factors to guide the Court‘s inquiry: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the police or others, and (3) whether the suspect is actively attempting to resist arrest or flee the scene. 490 U.S. at 396. The Third Circuit has also provided additional factors for consideration, including:
the possibility that the persons subject to the police action are themselves violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time.
Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997).
The Complaint sufficiently alleges that a seizure occurred. Plaintiff alleges that Defendant physically restrained her and restricted her liberty. (Compl. ¶¶ 24-34.) The Complaint also sufficiently alleges that the seizure was unreasonable. Plaintiff was not suspected of a crime nor were there any indications that she was engaged in criminal activity or presented a threat to Defendant. (See id. ¶¶ 9-35.) Although she resisted being handcuffed, there is no suggestion in
Rather, it appears that Defendant‘s only basis for detaining Plaintiff was because she refused to leave the Condo when Defendant told her to. Although an individual‘s aggressive or non-compliant behavior may lead to a volatile or dangerous situation, there is no indication, based on the facts as alleged in the Complaint, that such a situation occurred here. (See Compl. ¶¶ 15-30); cf. Santini v. Fuentes, 739 F. App‘x 718, 721 (3d Cir. 2018) (concluding, at the summary judgment stage, that officers’ use of nightsticks, pepper spray, and handcuffs was reasonable when the plaintiff was “repeated[ly] non-complian[t] with the instruction to keep
Accordingly, under the facts presented in the Complaint, the Court concludes that the Plaintiffs have plausibly pled a constitutional violation.
B. Clearly Established Right
At step two, “[the Court] inquires whether—even [if] an officer violated an individual‘s constitutional right—immunity should still protect that officer from liability.” Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015) (citing Curley v. Klem, 499 F.3d 199, 207 (3d Cir. 2007)). To answer that question, the Court must determine whether the right violated by the officer was “clearly established” at the time of the violation. Id. (citing Curley, 499 F.3d at 207; Saucier v. Katz, 533 U.S. 194, 202 (2001)). To make that determination, the Court engages in another reasonableness inquiry: “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. (quoting Saucier, 533 U.S. at 202). Like the reasonableness inquiry conducted in step one, this inquiry is objective and fact-specific. Id. Despite these similarities, the step two inquiry is distinct from the inquiry conducted in step one; the purpose of the step two inquiry is to acknowledge the reality that “reasonable mistakes can be made as to the legal constraints on particular police conduct.” Curley, 499 F.3d at 207 (quoting Saucier, 533 U.S. at 205) (internal quotation marks omitted). The clearly established right should not be defined “at a high level of generality,” but rather must be “particularized” to the facts of the case. White v. Pauly, 137 S. Ct. 548, 552 (2017) (citations omitted).
Applying this standard to the facts as alleged in the Complaint, the question presented is whether it was clearly established that it would violate the Fourth Amendment for an officer to restrain, partially handcuff, slam against the wall, pick up and move outside, and handcuff to a gate a person claiming to be the caretaker of a residence when the person was not suspected of a crime and did not pose a threat to the officer. The Court finds that this right was clearly established. It was clearly established that a person has a right to be free from police applications of force that are more than what is necessary under the circumstances. See Graham, 490 U.S. at 395-97. Here, as discussed, there is no suggestion in the pleadings that Plaintiff was engaged in criminal activity, or “was armed, attempting to flee, or posing an immediate threat to the safety of [Defendant] or others.” See Olick, 739 F. App‘x at 725. Although the Complaint states that Plaintiff refused to follow Defendant‘s directions and resisted being handcuffed, the Court cannot conclude that the extent of Defendant‘s actions, as alleged, were not more extreme than necessary under the totality of the circumstances.
CONCLUSION
For the foregoing reasons, Defendant‘s Motion to Dismiss (ECF No. 15) is granted in part and denied in part. Insofar as the Complaint brings common-law torts claims under the FTCA against Defendant, those claims are dismissed, and the United States is substituted as the party defendant pursuant to
Date: August 31, 2021
/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.