Dennis Simons, Individually and in His Official Capacity as an Arkansas State Trooper v. Barbara Marshall
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SUPREME COURT OF ARKANSAS
No.
06-1087
DENNIS SIMONS, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS
AN ARKANSAS STATE TROOPER,
APPELLANT;
VS.
BARBARA MARSHALL,
APPELLEE;
Opinion Delivered APRIL 26, 2007
APPEAL FRO M TH E PHILLIPS
COUNTY CIRCUIT COURT;
NO. CIV-2004-347;
HON. L.T. SIMES, II, JUDGE;
REVERSED AND REMANDED.
DONALD L. CORBIN, Associate Justice
Appellant Dennis Simons brings this interlocutory appeal from an order of the Phillips
County Circuit Court denying his motion to dismiss Appellee Barbara Marshall’s complaint.
On appeal, Simons argues that it was error to deny his motion to dismiss because: (1) he, in
his official capacity, is immune from suit pursuant to article 5, section 20, of the Arkansas
Constitution; (2) he, in his official capacity, is not a “person” as the term is used in the
Arkansas Civil Rights Act of 1993, codified at Ark. Code Ann. §§ 16-123-101–108 (Supp.
2003); and (3) Marshall’s state-law claims are barred by Ark. Code Ann. § 19-10-305(a)
(Repl. 1998). As this appeal involves issues of statutory interpretation, our jurisdiction is
pursuant to Ark. Sup. Ct. R. 1-2(b)(6). We reverse the order of the trial court.
The facts of this case are as follows. Marshall was in a vehicle, driven by James
Morgan, that was traveling along Highway 44 in Phillips County. As they turned onto
Highway 20, Arkansas State Trooper Dennis Simons stopped the pair. Morgan exited the
vehicle and had a brief conversation with Simons. Simons called in Morgan’s driver’s license
and discovered that there were outstanding warrants for Morgan’s arrest. Simons handcuffed
Morgan and placed him in the back of his patrol car.
Simons then approached Marshall and asked her if she had a driver’s license, to which
Marshall replied that she did not. According to Marshall, this made Simons angry, and he
ordered her to step out of the car. Then, according to Marshall, Simons “grabbed and groped
on [her] breast.” Marshall further alleged that Simons also groped her between her legs and
when she asked him to stop, he replied, “Don’t you know I’m a man with a gun.”
According to Marshall, Simons then told her to walk home because he was not going to take
her home, and he was having Morgan’s car towed.
Marshall filed a civil-rights action against “John Doe, State Trooper, Individually and
In His Official Capacity As An Arkansas State Trooper” on March 23, 2001. Therein, she
alleged that her rights under the Fourth and Fourteenth Amendments, as well as the Arkansas
Civil Rights Act, had been violated as a result of the trooper’s use of excessive force and
unlawful detention. This complaint was subsequently dismissed pursuant to Ark. R. Civ. P.
41(b) for lack of prosecution.
Marshall filed a new complaint against Simons, individually and in his official capacity,
on October 18, 2004. Therein, she alleged that Simons’s unreasonable search and seizure of
her person was malicious and done with the intent to harass and demean her and resulted in
a violation of her rights under the Arkansas Civil Rights Act. Marshall requested punitive
damages and a recovery of attorney’s fees.
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On March 23, 2005, Simons filed a motion to dismiss pursuant to Ark. R. Civ. P.
12(b)(6) and article 5, section 20, of the Arkansas Constitution. Therein, Simons argued that
Marshall failed to state facts to support a claim of malicious conduct and that he is immune
from suit pursuant to section 19-10-305(a). Marshall filed a response and argued that her
complaint demonstrated that Simons “acted with total malice in abusing the plaintiff sexually
without any just and reasonable cause or facts to support a search.” Following a hearing on
the motion to dismiss, the trial court entered an order denying, without explanation, Simons’s
motion to dismiss. This interlocutory appeal followed.
As his first point on appeal, Simons argues that it was error for the trial court to deny
his motion to dismiss Marshall’s complaint because he is immune from suit pursuant to article
5, section 20. Specifically, Simons argues that Marshall’s action against him in his official
capacity is a suit against the state and because the state possesses jurisdictional immunity from
suit, the trial court erred in failing to dismiss Marshall’s action against him in his official
capacity. Marshall counters that Simons is not immune under article 5, section 20, because
the malicious nature of his conduct is not protected by section 9-10-305(a) and, accordingly,
the coffers of the State of Arkansas are not at issue.
Before addressing the merits of Simon’s argument, we note that while normally an
appeal may not be taken from an order denying a motion to dismiss, such an appeal as the
present one may be taken under Ark. R. App. P.–Civil 2(a)(2) based on the movant’s
assertion that he is immune from suit. See State v. Goss, 344 Ark. 523, 42 S.W.3d 440 (2001);
Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998).
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The rationale justifying an
06-1087
interlocutory appeal is that the right to immunity from suit is effectively lost if the case is
permitted to go to trial. Id. As Simons invokes his right to immunity, both in his official and
personal capacity, this is a proper interlocutory appeal.1
In reviewing a trial court’s decision on a motion to dismiss, we treat the facts alleged
in the complaint as true and view them in the light most favorable to the plaintiff. Downen
v. Redd, 367 Ark. 551, ___ S.W.3d ___ (2006); Hanks v. Sneed, 366 Ark. 371, ___ S.W.3d
___ (2006). In viewing the facts in the light most favorable to the plaintiff, the facts should
be liberally construed in the plaintiff’s favor. Id. Our rules require fact pleading, and a
complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.
In Goss, 344 Ark. 523, 526, 42 S.W.3d 440, 442-43, this court discussed the doctrine
of sovereign immunity and explained:
Sovereign immunity is jurisdictional immunity from suit. Milberg, Weiss,
Bershad, Hynes, & Lerach, LLP v. State, 342 Ark. 303, 28 S.W.3d 842 (2000);
State Office of Child Support Enforcem’t v. Mitchell, 330 Ark. 338, 954 S.W.2d 907
(1997). This defense arises from Article 5, Section 20 of the Arkansas
Constitution, which provides: “The State of Arkansas shall never be made a
defendant in any of her courts.” This court has consistently interpreted this
constitutional provision as a general prohibition against awards of money
damages in lawsuits against the state and its institutions. See, e.g., Cross v.
Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997);
Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d
771, cert. denied, 498 U.S. 824 (1990). The doctrine of sovereign immunity is
rigid and may only be waived in limited circumstances. Mitchell, 330 Ark. 338,
954 S.W.2d 907. This court has recognized only two ways in which a claim
of sovereign immunity may be surmounted: (1) where the state is the moving
1
W e find no merit in Marshall’s assertion that this is not a proper interlocutory appeal, as Simons’s
argument involves interpretation or construction of the Arkansas Constitution. Clearly, Simons’s claim that
the trial court erred in denying his motion to dismiss is based on his invocation of immunity from suit, which
is a proper interlocutory appeal.
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party seeking specific relief; and (2) where an act of the legislature has created
a specific waiver of immunity. Id.
With regard to actions under the Arkansas Civil Rights Act, the General Assembly
specifically reserved the state’s right to immunity from suit. Section 16-123-104, provides
that “[n]othing in this subchapter shall be construed to waive the sovereign immunity of the
State of Arkansas.” As a result, this court has previously rejected arguments that there was an
intent to waive the state’s sovereign immunity within the confines of the civil rights act. See
Short v. Westark Cmty. College, 347 Ark. 497, 65 S.W.3d 440 (2002).
We agree with Simons that Marshall’s action against him in his official capacity as an
Arkansas State Trooper is tantamount to a suit against the state. This court has held that “[a]
suit against a state official in his or her official capacity is not a suit against that person, but
rather is a suit against that official’s office.” Hanks, 366 Ark. at 379, ___ S.W.3d at ___
(quoting Fegans v. Norris, 351 Ark. 200, 206, 89 S.W.3d 919, 924 (2002)). We have further
elaborated that official-capacity suits generally represent but another way of pleading an action
against the entity of which the officer is an agent. See Crawford County v. Jones, 365 Ark. 585,
___ S.W.3d ___ (2006); City of Marianna v. Arkansas Mun. League, 291 Ark. 74, 722 S.W.2d
578 (1987).
Finally we note that even where the state is not named as a defendant, if a judgment
for the plaintiff will operate to control the action of the state or subject it to liability, we treat
the suit as one against the state. Fegans, 351 Ark. 200, 89 S.W.3d 919. As Marshall’s request
for relief, if granted, would subject the Arkansas State Police, a state agency, to liability, her
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suit against Simons in his official capacity is barred by article 5, section 20, of the Arkansas
Constitution.
Because we hold that the trial court erred in failing to dismiss Marshall’s complaint
against Simons in his official capacity, it is unnecessary to address Simons’s argument that he
is not a “person” as defined under the civil rights act where Marshall sought monetary
damages.
Next, we turn to Simons’s argument that the trial court also erred in failing to dismiss
Marshall’s complaint against him in his personal capacity. In this regard, Simons argues that
Marshall failed to allege facts sufficient to establish malice and in the absence of malice, he is
entitled to qualified immunity under section 19-10-305(a). Simons avers that Marshall’s
complaint contains only subjective, conclusory allegations to demonstrate any malice, when
in reality, he simply conducted a pat-down search for his own safety. Marshall counters that
she has alleged a cause of action for assault and battery, an intentional tort and a conscious
violation of existing law; thus, Simons is not entitled to qualified immunity.
Section 19-10-305(a) provides:
Officers and employees of the State of Arkansas are immune from
liability and from suit, except to the extent that they may be covered by
liability insurance, for damages for acts or omissions, other than malicious acts
or omissions, occurring within the course and scope of their employment.
Despite this grant of statutory immunity, a state officer or employee may still be liable in a
personal capacity. See Grine v. Board of Trustees, 338 Ark. 791, 2 S.W.3d 54 (1999). In that
case, this court stated that suits against officers and employees alleged to be malicious are suits
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against the officers or employees personally, and they are liable to the extent anyone would
be liable under tort law. See also Matthews v. Martin, 280 Ark. 345, 658 S.W.2d 374 (1983).
This court has recognized that the immunity provided by section 19-10-305 is similar
to that provided by the Supreme Court for federal civil-rights claims. Fegans, 351 Ark. 200,
89 S.W.3d 919. There, this court recognized that an official is immune from suit if his actions
did not violate clearly established principles of law of which a reasonable person would have
knowledge. More specifically, section 19-10-305(a) provides state employees with statutory
immunity from civil liability for non-malicious acts occurring within the course of their
employment. See Grine, 338 Ark. 791, 2 S.W.3d 54. In defining malice, this court has stated:
It is true that in law malice is not necessarily personal hate. It is rather an intent
and disposition to do a wrongful act greatly injurious to another.” Satterfield v.
Rebsamen Ford, Inc., 253 Ark. 181, 185, 485 S.W.2d 192, 195 (1972); see also
Stine v. Sanders, 66 Ark. App. 49, 987 S.W.2d 289 (1999). Malice is also
defined as “the intentional doing of a wrongful act without just cause or
excuse, with an intent to inflict an injury or under circumstances that the law
will imply an evil intent. . . . A conscious violation of the law . . . which
operates to the prejudice of another person. A condition of the mind showing
a heart . . . fatally bent on mischief.” Black’s Law Dictionary, 956-57 (6th ed.
1990).
Fegans, 351 Ark. at 207, 89 S.W.3d at 924-25 (quoting Fuqua v. Flowers, 341 Ark. 901, 90506, 205 S.W.2d 388, 391 (2000)). This court has further held that “a bare allegation of willful
and wanton conduct will not suffice to prove malice.” Fegans, 351 Ark. at 207, 89 S.W.3d
at 925 (citing Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986)).
In addressing the issue of whether an appellant has sufficiently stated a claim for
personal liability of a state employee, this court in Grine, 338 Ark. 791, 799-800, 2 S.W.3d
54, 60, explained that:
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[I]n considering the complaint on a motion to dismiss, if the acts or omissions
complained of are alleged to be malicious and outside the course and scope of
employment, then the coffers of the State are not implicated, and the suit is not
one against the State. Under these conditions, Article 5, section 20, of the
Constitution is not implicated.
The court in Grine went on to hold that because the appellant’s complaint stated only
conclusions, with no factual support, against several of the defendants, the trial court’s
dismissal of those defendants based on statutory immunity should be affirmed.
In the present case, Marshall alleged that her rights were violated by Simons’s use of
excessive force, excessive groping, and assault and battery. In pleading facts to support her
claim, Marshall stated:
9.
That the defendant, Trooper Simons, first grabbed and groped
on the plaintiff’s breast, and the plaintiff asked the defendant
what was the purpose of him groping on her breast. The
defendant did not respond but began to grope the plaintiff
between her legs. The plaintiff then retaliated and requested that
the defendant stop groping her sexually on her breast and
between her legs when Trooper Simons replied, “Don’t you
know I’m a man with a gun.”
10.
That after the plaintiff refused the sexual groping of defendant
Simons, the defendant told to plaintiff, “Start walking home,
because I am not going to take you home and I’m going to have
this car towed.
....
13.
That the aforementioned unreasonable search and seizure was
malicious and done with the intent to harass and demean the
plaintiff, and the acts of the defendant, Trooper Simons, in
groping the plaintiff all occurred within the course and scope of
his employment as an Arkansas State Police officer.
Marshall claims that the aforementioned facts sufficiently plead a cause of action for
assault and battery and demonstrated that Simons consciously violated an existing law. We
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are remiss to see how the conclusory facts as set out in Marshall’s complaint demonstrate
either malice or a conscious violation of the law. Even viewing the allegations in the
complaint in a light most favorable to Marshall, it remains evident that her pleadings amount
to bare conclusions. Simons does not deny touching Marshall. In his answer, he averred that
he conducted a safety pat-down of Marshall after she failed to produce identification and was
asked to step out of the car. Simons had just arrested the driver of the car that Marshall was
in on outstanding warrants and could not allow Marshall to drive the car from the scene, as
she did not have a driver’s license with her.
Marshall claims the pat-down was an
unreasonable search and seizure and categorizes the touching as groping, without any further
explanation as to how Simons’s contact with her was sexual in nature. Moreover, Marshall
then simply concludes that Simons actions were malicious. As this court has recognized, a
bare allegation of willful and wanton conduct is not enough to demonstrate malice. See, e.g.,
Fegans, 351 Ark. 200, 89 S.W.3d 919.
We are also unpersuaded by Marshall’s argument that her complaint demonstrated a
conscious violation of existing law by Simons. Specifically, Marshall argues that her complaint
demonstrates that Simons is guilty of assault and battery. Again, we reiterate that Simons
performed a pat-down search of Marshall after requesting that she exit the vehicle when she
failed to produce any valid identification. Her conclusion that this search was sexual in nature
is nothing more than that, a conclusory allegation; as such, it is insufficient to establish that
Simons consciously violated any existing law. Accordingly, Simons is entitled to statutory
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immunity as set forth in section 19-10-305(a); thus, it was error for the trial court to deny his
motion to dismiss the suit against him in his personal capacity.
Because Simons is entitled to both jurisdictional immunity, as well as statutory
immunity, the trial court erred in denying his motion to dismiss. We thus reverse the order
of the trial court and remand for entry of an order consistent with this opinion.
Reversed and remanded.
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