Memorandum in Opposition to Defendant’s Motion for Dismissal

This was a writing prompt assigned to me in my Legal Reasoning and Writing course. The prompt and materials for this assignment can be found here.

INTRODUCTION

On February 8, 2022, Hubert Dames (Dames) filed suit for damages and injunctive relief against defendants Robert Jones (Jones) and Marcia Furman (Furman) pursuant to 42 U.S.C.  §.1983. Jones and Furman (collectively “Defendants”) subsequently filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Dames is requesting denial of the motion to dismiss.

FACTS

On June 19, 2021, the defendants, Ole Missouri University President Robert Jones and Chief of Police Marcia Furman, conducted an official meeting and discussed the University’s new policy to stop suspicious individuals on campus During the meeting, Furman discussed with Jones, “We will have to be creative to implement the University’s policy to stop suspicious individuals on campus.” He then elaborated on the potential fallout and implications of the University’s new policy by explaining, “We will also have to be prepared for bad press when we have officers like Arnold Dunn, who already has numerous complaints for disproportionately targeting African American students on campus.” After conveying this information, Furman then inquired to Jones, “I hope you are willing to stand behind us.” Understanding the gravity of what Furman told him, Jones replied, “Got it. We’re all on the same page.”

            Two weeks later on July 4, 2021, Hubert Dames, was driving on South College Avenue en route to his student residence at Excellence Residence Hall when he was pulled over by Officer Arnold Dunn (Officer Dunn), a campus police officer. Dames is a nineteen-year-old African American male from Wilmington, North Carolina, who attended Ole Missouri University. During the encounter, Dames informed Officer Dunn that he was a student at Ole Miss to which Officer Dunn disparagingly responded, “You don’t look like a college student at Ole Missouri.” Dames inquired into what the officer’s remark meant only for Officer Dunn to reply, “I don’t think you understand the way I speak. Show me your I.D.” While reaching for his I.D. located in the glove compartment, Dames was interrupted by Officer Dunn pulling a gun on him and yelling for him the exit his car. Dames complied and was handcuffed and escorted to Officer Dunn’s patrol car.

            Three more officers arrived on scene and, along with Officer Dunn, began searching Dames’ vehicle. Cell phone video captured by Ole Missouri University student, Rebecca Schwartz, showed Officer Dunn tossing a clear bag of marijuana onto the back seat of Plaintiff’s car before photographing it and picking it up. After ten minutes of searching the car, Officer Dunn returned to Dames and informed him he was under arrest for possession of a controlled substance.

Officer Dunn discriminatingly remarked, “We’ve had enough of your type coming on our campus. From the Carolinas? Geechee country, eh? Just like East St. Louis.” “Geechee,” is frequently used as slang in a derogatory manner, denotes an exclusively African American community that spans the coastal islands of North Carolina, including Dames’ home city of Wilmington, NC.  East St. Louis is over two hours away from Ole Missouri University and is 98% African American. Since the incident, Officer Dunn has not been reprimanded as the University’s policy is still in place.

ARGUMENT

The court should deny the defendant’s motion to dismiss because Dames has sufficiently stated a claim upon which relief can be granted under 42 U.S.C. § 1983.

A claim only must be a short and plain statement showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). A claim for relief must accompanied with facts that make it plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To determine if a claim is plausible, the court must employ a two-pronged approach: separate the conclusory statements from the factual allegations made. The legal conclusions should merely be treated as a framework of the complaint and not be treated as true. The factual allegations, however, should be treated as true and used to determine if a claim is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 662 (2009). The “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 548.

The defendants move for dismissal on two arguments: (1) Dames merely makes conclusory allegations that Defendants knew or should have known that their actions enabled Officer Dunn to violate Plaintiff’s constitutional rights; and (2) Dames’ factual allegations have failed to raise the right to relief above the speculative level and do not make a plausible claim that Defendants are subject to liability under 42 U.S.C. § 1983. As to the first argument, Dames’ claim is more than a conclusory statements, but they are supported by non-conclusory factual allegations. As to the second argument, Dames provides sufficient factual allegations to make it plausible that Defendants Jones and Furman are liable under 42 U.S.C. § 1983 for purposefully allowing Officer Dunn to violate Dames’ constitutional rights. As such, Dames requests the Court deny the defendants motion for dismissal.

I.          Dames’ claim is more than conclusory statements.

In the compliant, Dames alleges more than mere legal conclusions. He provides sufficient factual allegations that support the conclusory allegations. As such, the Court should deny Defendants’ motion for dismissal.

“[A] complaint attacked by a Fed. R. Civ. P. 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 548. “[A] court must accept as true all the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 662.

            In Bell Atl. Corp. v. Twombly, the United States Supreme Court granted certiorari to determine whether the respondents sufficiently stated a claim under the substantive law. The case was a class action lawsuit of telephone and internet subscribers against local exchange carriers who the plaintiffs alleged conspired through parallel business conduct not to compete against each other in violation of the Sherman Act. The District Court dismissed the claim under Rule 12(b)(6). The Second Circuit Court of Appeals reversed the District Court and said that the claim was sufficiently stated. Ultimately, the United States Supreme Court held that the plaintiffs did not sufficiently state their claim. The Court came to the opinion by looking at the plaintiffs’ claim and determining whether it was it was plausible on its face in the context of the substantive law, the Sherman Act. The rationale behind this holding was “that an allegation of parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at unidentified point does not supply facts adequate to show illegality.” Twombly, 550 U.S. at 557.

            Twombly and Dames’ case analogous in that both cases claim that the co-defendants collaborated to negatively impact the plaintiff. In Twombly, there was an allegation that the telephone and internet companies conspired not to compete and to fix prices. Id., at 550. In Dames’ case, there is an allegation that Furman and Jones agreed to minimize the impact of Officer Dunn’s discriminatory behavior. Dames does make conclusory statements like in Twombly, but he can point to specific facts to support his conclusions whereas the plaintiffs in Twombly did not.

The biggest distinction between Dames’ case and Twombly is that in Twombly, the plaintiffs could not point out any specific moment or act that constituted illegality. The plaintiff in Twombly did not point to any documents, statements, or records that the court could use to determine if their claim was plausible on its face. However, Dames can point to the June 21, 2021, meeting between Furman and Jones and the statements made by the defendants to support his claim. Unlike in Twombly, Dames has an identifiable point, recorded statements, and specific facts to support his claim.

Since Dames can point to facts to support his conclusory allegations, the court should dismiss the defendant’s motion to dismiss.

            Ashcroft v. Iqbal provides another case to support Dames’ claim. The United States Supreme Court granted certiorari to determine whether a complaint needs to be non-conclusory to sufficiently state a claim. The case was brought by Javaid Iqbal, a Pakistani Muslim. Following the September 11, 2001, terrorist attacks, Iqbal was arrested and detained as a person “of high interest.” Iqbal filed a complaint against John Ashcroft, the former Attorney General of the United States, and Robert Mueller, the Director of the Federal Bureau of Investigation (FBI). Iqbal alleges that Ashcroft and Mueller adopted an unconstitutional policy that subjected Iqbal to harsh conditions in prison on account of his race, religion, or national origin and for no legitimate penological interest. Iqbal, 556 U.S. 662, 680. The District Court denied the motion to dismiss the claim, and the Second Circuit Court of Appeals affirmed. Ultimately, the United States Supreme Court reversed the Second Circuit and held that Iqbal’s claim was too conclusory. The Court reasoned that the complaint did not contain facts plausibly showing that the policy was based on discriminatory factors. Iqbal’s claim was a mere recitation of elements of the actions. The Court continued in explaining that Iqbal did not make any factual allegations, only conclusory allegations.

            Dames and Iqbal are analogousin that both men are of a minority class and bringing litigation against the authors of public policy, and both men are alleging that the policies intentionally deprived them of their rights. Iqbal alleged he was a suspect because of his race. Dames alleges Officer Dune pulled him over and planted the evidence because of his race.

However, the distinctions between the two cases are more noteworthy. Iqbal’s claims were deemed too conclusory because he merely recited the elements of his action and failed to point to any specific event or evidence to support his allegation. Dames pointed to the statements made during the July 21, 2021, meeting between Furman and Jones as facts that support his claim. Because Furman and Jones were aware that Officer Dunn had a history of discriminatory behavior, they knew their new policy would enable or encourage Officer Dunn’s discrimination of African American students.

            Because Dames can point to specific and identifiable facts, his claim rises above the speculative level and is more than a threadbare recital elements. As such, the Court should find that Dames’ claim is more than conclusory statements and should therefore deny the defendant’s motion for dismissal.

II.        Dames’ claim is plausible on its face.

Dames’ claim is plausible on its face because when the factual allegations are treated as true, Dames can sufficiently allege that the defendants are liable under 42 U.S.C. § 1983. As such, the defendant’s motion to dismiss should be denied.

For a complaint to survive a motion to dismiss, the Supreme Court has said “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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.” Iqbal, 556 U.S. at 662.  In a 42 U.S.C. § 1983 claim,

. . . Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . .  the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. . .

42 U.S.C. § 1983. “In a § 1983 suit ‘supervisory liability’ . . . purpose rather than knowledge is required to impose . . . liability on . . . [an] official charged with violations arising from his or her superintendent responsibilities.” Iqbal, 556 U.S. at 676. “[A] ‘§ 1983 ‘person’ . . . may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the [governmental] body’s official decision-making channels.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978).

            Iqbal and Dames’ case share several similarities. Both men are minorities and are alleging discrimination; both men are bringing litigation against the government agents who created the policy that they allege discriminated them; and, both men’s claims are facing a Rule 12(b)(6) motion for dismissal.

However, the distinctions between the two cases are more noteworthy. The point of contention in Iqbal was whether the policy purposefully or incidentally targeted Muslims. The Supreme Court found the disparate was incidental; this was because the policy and the event involving Iqbal came against the backdrop of the September 11, 2001, terrorist attacks. Because the attacks were carried out Islamic terrorists with ties to an Islamic fundamentalist group, law enforcement targeted individuals with connections to the terrorists. Iqbal, 556 U.S. at 682. Given the nature of the policy, it was incidental, rather than intentional, that Muslims were disparately impacted by the policy. Id. Because Iqbal could not offer any factual allegations that indicated the policy intentionally targeted him based on his race or religion, the Supreme Court ruled that Iqbal’s claims were not plausible on their face. Contrast this with Ole Missouri University’s policy. Furman and Jones were aware of Officer Dunn’s history of discriminating against African American students and that the new policy would enable his actions; yet Jones and Furman did nothing to prevent it.  By failing to prevent Officer Dunn’s discriminatory behavior, defendants Furman and Jones allowed the impact on Ole Missouri University’s African American student population to change from potentially incidental to targeted.

Because Dames can show that Furman and Jones were aware of the potential disparate impact their policy would have on African American students and because Dames can point to facts to sufficiently allege it, the court should distinguish Dames’ claim from the one in Iqbal and deny the defendant’s motion to dismiss.

            Monell v. Dep’t of Soc. Servs. is a different story from Iqbal. The plaintiffs, who were female employees of the City of New York, brought a class action lawsuit against several New York City officials in their official capacities. The lawsuit was brought under § 1983 because of a policy the plaintiffs alleged discrimination against pregnant employees. The official policy compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons. The District Court for the Southern District of New York found that the government’s policy was unconstitutional, but dismissed the lawsuit because of municipal immunity; the Second Circuit Court of Appeals affirmed. The Supreme Court of the United States granted certiorari to answer the question of whether government officials are considered “persons” within the meaning of 42 U.S.C. § 1983 when relief is sought against them in their official capacities. Ultimately, the Supreme Court held that they are “persons” under § 1983 and reversed the lower courts. The rationale behind the ruling was that, after a review of the legislative history, it was the intent of Congress to allow government officials to be sued under 42 U.S.C. § 1983.

            Dames’ case is analogous to Monell. Unlike in Iqbal, the government was not prompted by a national event to institute the policy. The defendants in Monell were aware of the policy’s impact on pregnant women. Monell v. Dep’t of Soc. Servs., 394 F. Supp. 853, 854 (S.D.N.Y. 1975). Granted, the defendants intended for their policy to temporarily relieve pregnant women of their duties out of concern of their health. Id. While it intended to do good, the application of the policy ultimately discriminated against the women and forced them to take an early unpaid maternity leave when neither their health nor doctor required it. Likewise, defendants Jones and Furman intended for their policy to stop suspicious individuals from visiting Ole Missouri University and protect the campus, but the defendants were aware that there were problematic officers, like Officer Dunn, who had a history of disproportionately discriminating against African American students. Jones and Furman intended for the policy to improve the safety of Ole Missouri University’s campus, but its application ultimately led to the violation of Dames’ constitutional rights.

            However, there is one minor distinction between Dames’ case and Monell. In Monell, the plaintiffs were merely seeking backpay; initially they were challenging the constitutionality of the policy, but these claims were moot when the city dropped the policy. In contrast, Ole Missouri’s policy is still in effect, and Officer Dunn has not been reprimanded for his actions.

            Dames’ claim is plausible on its face because, unlike in Iqbal, Dames can point to the statements made during the July 21, 2021, meeting between Furman and Jones as facts that support that his claim. Because Furman and Jones were aware that Officer Dunn had a history of discriminatory behavior, they knew their new policy would enable or encourage Officer Dunn’s discrimination of African American students. Because of the specific factual content pleaded by Dames, which when treated as true, the Court should reasonably be able to infer that the defendants are liable for the misconduct alleged; therefore, Dames’ claim is plausible on its face. As a result, the Court should deny the defendant’s motion for dismissal.

CONCLUSION

            The Court should deny the defendant’s motion for dismissal because Dames’ claim offers sufficient factual allegations and more than mere conclusionary statements to elevate his claim above the speculative level to be plausible on its face. Dames’ claim that defendants Furman and Jones were aware of the potential discriminatory impact of the policy is not a conclusion, but rather a factual allegation as evidenced by the defendants’ July 21, 2021, meeting. When all the factual allegations are taken as true, Dames’ claim meets all the elements of § 1983 and is therefore plausible on its face. Dames prays that this court deny the defendant’s motion for dismissal and allow this case to proceed to discovery.

Respectfully submitted this 5th day of April 2022.                                           

 Jackson A. Lanier

Counsel for Plaintiff

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