Case: 21-30044 Document: 00516451306 Page: 1 Date Filed: 08/29/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 29, 2022
No. 21-30044 Lyle W. Cayce
Clerk
Tayla Greene, Individually and as Administrator of
the Ronald Greene Estate,
Plaintiff—Appellee,
versus
Dakota DeMoss; John Peters; John Clary; Floyd
McElroy; Kory York,
Defendants—Appellants.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:20-CV-578
Before Richman, Chief Judge, and Clement and Duncan, Circuit
Judges.
Per Curiam:*
This case arises out of the tragic death of Ronald Greene during a
traffic stop. Tayla Greene, on her own behalf and as administrator of her
father’s estate, filed an action under 42 U.S.C. § 1983 against the seven
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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officers involved. She sued for excessive force, bystander liability, and
Louisiana state law battery. The officers moved to dismiss under Rule
12(b)(6) on qualified immunity and inadequate pleading grounds. They also
moved under Rule 12(e) for a more definite statement. The district court
denied both motions, concluding that Fourth Amendment law clearly
established the unconstitutionality of the officers’ alleged misconduct, and
that Ms. Greene pleaded her claims with enough specificity. Five officers
appeal. We affirm.
I
Mr. Greene was driving on U.S. Highway 80 in Monroe, Louisiana
around 12 a.m. on May 10, 2019. As alleged in the First Amended Complaint,
Trooper Dakota DeMoss attempted to stop Mr. Greene for an unspecified
violation. Mr. Greene sped away, and a pursuit ensued. He eventually
crashed into a wooded area. Mr. Greene’s vehicle was only moderately
damaged, and he was uninjured.
DeMoss and Master Trooper Chris Hollingsworth immediately
arrived at the scene. Shortly after, Captain John Peters, Lieutenant John
Clary, Sergeant Floyd McElroy, Master Trooper Kory York, and Deputy
Sheriff Christopher Harpin joined as well. Mr. Greene exited his vehicle
without assistance and began to apologize to the officers, but they pinned him
to the ground. Mr. Greene begged the officers to stop, continuing to
apologize repeatedly. Although Mr. Greene had surrendered, showed no
resistance, and posed no threat, each of the seven officers then “beat,
smothered, and choked” Mr. Greene. The officers also tased him at least
three times, although it is unclear who used the weapon because the
Louisiana State Police has not produced the body–camera or dashboard–
camera footage or other relevant records.
2
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The alleged attack left Mr. Greene “beaten, bloodied, and in cardiac
arrest.” At 12:29 a.m., an officer called for an ambulance. When it arrived
at 12:51 a.m., Mr. Greene was covered in blood with multiple taser barbs
attached to his body. The paramedics transported Mr. Greene to the
hospital, where he was pronounced dead. The hospital listed his cause of
death as cardiac arrest, and he was also diagnosed with an unspecified head
injury. An autopsy later revealed multiple signs of recent trauma, including
blunt-force injuries to the head and face, together with facial lacerations,
abrasions, and contusions.
Plaintiff–Appellee Tayla Greene filed an action under 42 U.S.C.
§ 1983 against the seven officers involved in the stop, asserting claims of
excessive force and bystander liability. She also asserted Louisiana state law
claims against the officers for battery. Five officers—DeMoss, York,
McElroy, Clary, and Peters (the “officers”)—moved to dismiss on qualified
immunity and inadequate pleading grounds. They also moved for a more
definite statement in the alternative.
The district court adopted the magistrate judge’s Report and
Recommendation denying the officers’ motions. First, on the § 1983
excessive force claims, the court concluded that qualified immunity is
inappropriate because every reasonable officer would have known that he
could not beat, smother, and choke an unresisting suspect who was subdued
and posing no threat. Second, on the § 1983 bystander liability claims, the
court similarly denied qualified immunity because every reasonable officer
would have understood that he could not stand by while other officers
engaged in excessive force. Third, on the state law claims, the court reasoned
that the Louisiana excessive force inquiry mirrors its Fourth Amendment
counterpart, so Ms. Greene’s state law claims were plausible “for the same
reasons.” Lastly, it rejected the motions for a more definite statement,
3
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concluding that the claims are “straight-forward and well-defined.” The
officers timely appealed.
II
The officers make three arguments on appeal. First, they argue that
they are entitled to qualified immunity on Ms. Greene’s § 1983 claims of
excessive force and bystander liability. Second, they argue that Ms. Greene
did not adequately plead her Louisiana state law battery claims. Third, one
officer maintains that the district court incorrectly denied his motion for a
more definite statement. We address each argument in turn.
A
We have jurisdiction under 28 U.S.C. § 1291 to review a district
court’s denial of qualified immunity as a “collateral order capable of
immediate review.” 1 “[R]eview of the denial of a motion to dismiss
predicated on a defense of qualified immunity is de novo.” 2 Our jurisdiction
is limited to questions of law, not fact. 3
Qualified immunity “ensure[s] that before they are subjected to suit,
officers are on notice their conduct is unlawful.” 4 The defense “attaches
when an official’s conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” 5 We
engage in a two-step inquiry: first, we ask whether there was a statutory or
1
Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 193-4 (5th Cir. 2009).
2
Lincoln v. Barnes, 855 F.3d 297, 300-01 (5th Cir. 2017).
3
Id. at 300 (quoting Club Retro, 568 F.3d at 194).
4
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Saucier v. Katz, 533 U.S. 194,
206 (2001)).
5
Rivas-Villegas v. Cortesluna, 595 U.S. __, 142 S. Ct. 4, 7 (2021) (per curiam)
(quoting White v. Pauly, 580 U.S. 73, __, 137 S. Ct. 548, 551 (2017) (per curiam)).
4
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constitutional violation based on the alleged facts; second, we ask if the
defendant’s actions violated clearly established law that every reasonable
person would have known. 6 The two steps may be performed in any order. 7
Although the officers raise a qualified immunity defense in form, in
substance they primarily argue that Ms. Greene failed to plead enough factual
content under Federal Rule of Civil Procedure 8 to state a plausible claim for
relief. Qualified immunity “adds a wrinkle” to the burden plaintiffs carry
when stating a § 1983 claim. 8 If a defendant asserts qualified immunity, the
plaintiff “must plead specific facts that both allow the court to draw the
reasonable inference that the defendant is liable for the harm he has alleged
and that defeat a qualified immunity defense with equal specificity.” 9 This
additional burden on the plaintiff at the pleading stage recognizes that “there
is an interest in qualified immunity entering a lawsuit ‘at the earliest possible
stage of litigation.’” 10
Qualified immunity does not heighten the Rule 8 pleading standard,
however. 11 “Section 1983 claims implicating qualified immunity are subject
to the same Rule 8 pleading standard set forth in Twombly and Iqbal as all
other claims . . . .” 12 Rule 8(a)(2) requires a complaint to include a “short
and plain statement of the claim showing that the pleader is entitled to relief
6
Tucker v. City of Shreveport, 998 F.3d 165, 172 (5th Cir. 2021).
7
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
8
Arnold v. Williams, 979 F.3d 262, 266 (5th Cir. 2020).
9
Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (emphasis added).
10
Arnold, 979 F.3d at 267 (quoting Westfall v. Luna, 903 F.3d 534, 542 (5th Cir.
2018)).
11
Id.
12
Id.
5
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. . . .” 13 Plaintiffs must allege “sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” 14 A claim is facially
plausible if the facts allow the court “to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” 15 Although we must
accept the complaint’s factual allegations, we do “not accept as true
conclusory allegations, unwarranted factual inferences, or legal
conclusions.” 16 “Threadbare recitals of the elements of a cause of action”
are similarly insufficient. 17
As a preliminary matter, we first address DeMoss’s argument that
Ms. Greene’s allegations are subject to a heightened pleading standard. He
contends that because he asserted qualified immunity in response to Ms.
Greene’s original complaint, her subsequent amended complaint must exceed
Rule 8’s short-and-plain-statement standard. That is incorrect. Granted,
when an answer or motion to dismiss raises qualified immunity, the district
court “may then, in its discretion, insist that a plaintiff file a reply tailored
to” that answer or motion to dismiss. 18 In such circumstances, Rule 8(d)(1)’s
“simple, concise, and direct” pleading standard, not Rule 8(a)(2), applies to
the reply. 19 Here, however, the district court did not order a reply to the
13
Fed. R. Civ. P. 8(a)(2).
14
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
15
Arnold, 979 F.3d at 266 (quoting Iqbal, 556 U.S. at 678).
16
Id. (quoting Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010)).
17
Iqbal, 556 U.S. at 678.
18
Anderson v. Valdez, 845 F.3d 580, 590 (5th Cir. 2016) (emphasis and alterations
omitted) (quoting Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir. 1995)).
19
Id. (quoting Schuleta, 47 F.3d at 1433, regarding what is FED. R. CIV. P. 8(d)(1)
in the latest edition of the Rules).
6
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defendants’ motions to dismiss. Ms. Greene amended her complaint,
keeping Rule 8(a)(2) as the proper standard. 20
With the standard set, we turn to evaluate Ms. Greene’s excessive
force and bystander liability claims.
1
“[E]xcessive force claims arising from an arrest or investigatory stop
invoke the protection provided by the Fourth Amendment . . . against
unreasonable seizure.” 21 Plaintiffs must show “(1) an injury, (2) which
resulted directly and only from a use of force that was clearly excessive, and
(3) the excessiveness of which was clearly unreasonable.” 22 Reasonableness
“requires a careful balancing of ‘the nature and quality of the intrusion on
the individual’s Fourth Amendment interests’ against the countervailing
governmental interests at stake.” 23 It is “long . . . established” in this circuit
that “[o]fficers engage in excessive force when they physically strike a
suspect who is not resisting arrest.” 24
As to qualified immunity, the officers do not contest that the law
prohibiting their alleged excessive force was clearly established. The officers
instead urge that Ms. Greene did not plead her excessive force claims with
sufficient specificity under Rule 8. All their arguments fall short.
20
See Valdez, 845 F.3d at 588, 590.
21
Tucker v. City of Shreveport, 998 F.3d 165, 171 (5th Cir. 2021) (internal quotations
omitted).
22
Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016) (citing Poole v. City of
Shreveport, 691 F.3d 624, 628 (5th Cir. 2012)).
23
Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 471
U.S. 1, 8 (1985)).
24
Joseph ex rel. Estate of Joseph v. Bartlett, 981 F.3d 319, 342 (5th Cir. 2020).
7
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First, they contend that Ms. Greene made only “copy and paste”
allegations in her amended complaint. But the officers do not cite authority
suggesting that identical, individual allegations are inherently improper. To
the contrary, identical allegations do not necessarily defeat an otherwise
sufficient pleading. As the Ninth Circuit recently held, a “good claim against
one defendant d[oes] not become inadequate simply because a co-defendant
was alleged to have committed the same wrongful acts.” 25
Second, the officers argue that it is “implausible” or “inconceivable”
that they acted identically. This mistakes the proper inquiry under Iqbal; to
survive a motion to dismiss, a plaintiff need only plead “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” 26 In other words, we evaluate the plausibility of claims. 27 The
officers ask us to do the opposite. They contend that Ms. Greene’s
allegations are not credible because identical actions are factually unlikely,
but we lack jurisdiction to entertain their argument. 28
Third, the officers argue that Ms. Greene’s allegations amount to an
improper formulaic recitation of the elements of excessive force. But Ms.
Greene substantiates her claims. The Amended Complaint alleges that each
officer “beat, smothered, and choked” Mr. Greene after he was “pinned . . .
down on the ground . . . begging the officers to stop, and repeatedly saying
‘I’m sorry.’” The beating left Mr. Greene “unresponsive,” “covered in
blood,” and “in cardiac and respiratory arrest.” An autopsy also “found
25
United States ex rel. Silingo v. WellPoint, Inc., 904 F.3d 667, 677 (9th Cir. 2018)
(discussing “collective allegations” in the context of Rule 9(b)).
26
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
27
Id.
28
Ramirez v. Escajeda, 921 F.3d 497, 501 (5th Cir. 2019).
8
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multiple signs of recent trauma, blunt force injuries to the head and face,
facial lacerations, facial abrasions, facial contusions, scalp lacerations, blunt
force injuries to the extremities, and abrasions and contusions over the left
and right knees.” Ms. Greene’s allegations do not formulaically recite the
injury, causation, and unreasonableness requirements of an excessive force
claim. 29 She provides sufficient factual detail to put the officers on notice of
their alleged wrongdoing.
Finally, the officers argue that the district court failed to evaluate
qualified immunity separately for each officer. When officers’ actions are
materially indistinguishable, however, we require only separate
consideration, not separate analysis.30 The district court properly considered
each officer’s actions.
2
“[A]n officer who is present at the scene and does not take reasonable
measures to protect a suspect from another officer’s use of excessive force
may be liable under [§] 1983.” 31 The elements of a successful bystander
liability claim require that an officer “(1) knew a fellow officer was violating
an individual’s constitutional rights, (2) was present at the scene of the
constitutional violation, (3) had a reasonable opportunity to prevent the harm
but nevertheless, (4) chose not to act.” 32 “Bystander liability requires more
29
Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016) (citing Poole v. City of
Shreveport, 691 F.3d 624, 628 (5th Cir. 2012)) (“[A] plaintiff must show (1) an injury,
(2) which resulted directly and only from a use of force that was clearly excessive, and
(3) the excessiveness of which was clearly unreasonable.”).
30
Meadours v. Ermel, 483 F.3d 417, 422 n.3 (5th Cir. 2007).
31
Carroll v. Ellington, 800 F.3d 154, 177 (5th Cir. 2015) (quoting Hale v. Townley,
45 F.3d 914, 919 (5th Cir. 1995)).
32
Joseph ex rel. Estate of Joseph v. Bartlett, 981 F.3d 319, 343 (5th Cir. 2020).
9
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than mere presence in the vicinity of the violation; ‘[courts] also consider
whether an officer “acquiesced in” the alleged constitutional violation.’” 33
The officers argue that qualified immunity applies because they did
not have notice that failing to intervene while a fellow officer engages in
excessive force is unconstitutional. That is not so. In May 2019 the law was
“clearly established . . . that an officer [can] be liable as a bystander in a case
involving excessive force if he knew a constitutional violation was taking
place and had a reasonable opportunity to prevent the harm.” 34 Based on the
alleged facts that we must take as true, we conclude that any reasonable
officer would have known that his failure to intervene over a period of almost
thirty minutes or more while his fellow officers beat an unresisting suspect
offends the Constitution. 35
Drawing all inferences in Ms. Greene’s favor, we also conclude that
she pleaded enough factual content to state a plausible bystander liability
claim against each officer. 36 Under the first element, all likely knew that a
fellow officer was violating Mr. Greene’s constitutional rights. Indeed, with
each officer’s personal participation in the excessive force, it is reasonable to
infer that they each knew about the others’ unconstitutional conduct.
Second, Ms. Greene pleaded that each officer was present at the scene of the
beating. Third, because the beating occurred over an alleged span of twenty-
nine to fifty-one minutes, it is also reasonable to infer that each officer had an
33
Id. (quoting Whitley v. Hanna, 726 F.3d 631, 647 (5th Cir. 2013)).
34
Hamilton v. Kindred, 845 F.3d 659, 663 (5th Cir. 2017).
35
See Joseph, 981 F.3d at 342 (“Darden repeated what had long been established in
our circuit: Officers engage in excessive force when they physically strike a suspect who is
not resisting arrest.”).
36
See Arnold v. Williams, 979 F.3d 262, 266 (5th Cir. 2020) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)).
10
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opportunity to intervene during that window. Fourth, Ms. Greene alleges
that each officer “watched” as the other officers used excessive force, again
reasonably permitting an inference that they chose not to act.
B
Under Louisiana law, “the physical attack of a private citizen by a
police officer absent a valid arrest constitutes a battery.” 37 “Louisiana’s
excessive force tort mirrors its federal constitutional counterpart.” 38 The
pertinent factors for assessing excessive force under Louisiana law align with
those under the Fourth Amendment. 39
The district court concluded that because the two inquiries are
similar, for the same reasons Ms. Greene adequately pleaded her § 1983
claims, she alleged sufficient facts for plausible Louisiana battery claims as
well. We agree. Because the factors are similar and the officers raise identical
37
Ross v. Sheriff of Lafourche Parish, 479 So. 2d 506, 510 (La. Ct. App. 1st Cir. 1985).
38
Deville v. Marcantel, 567 F.3d 156, 172 (5th Cir. 2009) (per curiam).
39
Compare Kyle v. City of New Orleans, 353 So. 2d 969, 973 (La. 1977) (listing “the
known character of the arrestee, the risks and dangers faced by the officers, the nature of
the offense involved, the chance of the arrestee’s escape if the particular means are not
employed, the existence of alternative methods of arrest, the physical size, strength, and
weaponry of the officers as compared to the arrestee, and the exigencies of the moment”
as the pertinent factors under a Louisiana excessive force claim), with Graham v. Connor,
490 U.S. 386, 396 (1989) (listing “the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight” as the pertinent factors under a
§ 1983 excessive force claim).
11
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arguments to those in their § 1983 discussion, Ms. Greene pleaded enough
factual content to survive a motion to dismiss her Louisiana battery claims.
C
Lastly, York maintains that he is entitled to a more definite statement
under Rule 12(e). But we lack jurisdiction to entertain an appeal of a Rule
12(e) denial. It is not a final judgment under 28 U.S.C. § 1291. It is not an
interlocutory order subject to immediate appeal under 28 U.S.C. § 1292.
Nor is it a collateral order: it is not a conclusive decision resolving important
questions divorced from the merits that is effectively unreviewable on appeal
from the final judgment. 40 Without jurisdiction, we do not address the Rule
12(e) issue.
* * *
The district court’s order is AFFIRMED.
40
See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (quoting Swint v.
Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995)).
12