Opinion
Civil No. A3-97-161.
April 1, 1999.
ORDER
I INTRODUCTION
Before the court are the following motions: Motion for summary judgment by defendants Potter, Ternes, and City of Fargo (doc. #21); motion for partial summary judgment by defendant Northwest Enterprises, Inc. (doc. #18); and motion to strike punitive damages claim by defendant Northwest Enterprises, Inc. (doc. #16).
II BACKGROUND
This action arises out of two separate investigations conducted by the City of Fargo, North Dakota, Police Department. At all times pertinent to this action, plaintiff was the sole resident and leaseholder of an apartment in the Condamera apartment complex in south Fargo. The complex was owned by defendant Northwest Enterprises, Inc. (Northwest) and managed by two of its employees.
The record reflects that plaintiff signed a one year lease on November 1, 1994. After the lease term expired, plaintiff held over on a month-to-month basis.
The first investigation began at approximately 1:00 a.m. on December 18, 1996, when one of the managers of the complex telephoned the Fargo Police Department and reported that plaintiff's son, Joseph Bensen, was inside plaintiff's apartment. Joseph was wanted on four misdemeanor warrants at the time. Defendants Potter and Ternes, both members of the Fargo Police Department, responded to the call. Upon their arrival, Officers Potter and Ternes were informed by the manager that Joseph often stayed at plaintiff's apartment, and that a tenant had seen him entering the apartment a short time earlier. The manager then provided the officers with a key to plaintiff's apartment.
Officers Potter and Ternes subsequently used the key to enter plaintiff's apartment without a search warrant or plaintiff's permission to do so. The parties dispute the events which led to this entry. According to plaintiff, the officers neither knocked nor requested entry prior to entering her apartment. Rather, plaintiff claims that she was asleep on her couch when the officers arrived, and awoke to find them already inside her apartment. Officers Potter and Ternes, on the other hand, maintain that they overheard conversations emanating from plaintiff's apartment as they approached, and received confirmation from another officer that someone was inside. The officers claim that they subsequently knocked on plaintiff's door four separate times, each time announcing themselves and requesting that someone come to the door.
Once inside the apartment, the officers asked plaintiff whether Joseph was present. After plaintiff indicated he was not, the officers searched the apartment and found Joseph hiding in a bedroom. The officers arrested Joseph on the outstanding warrants. The officers also arrested plaintiff for hindering law enforcement, based upon their belief that she knew Joseph was present and gave false information concerning his whereabouts. Plaintiff was handcuffed, taken to jail, fingerprinted, photographed, and placed in a cell. Plaintiff remained in custody until the following afternoon.
The parties dispute whether plaintiff consented to the search once the officers were inside the apartment. While inside, the officers also found items which belonged to Joseph.
On March 6, 1997, the hindering charge was dismissed following a bench trial in North Dakota state district court. See Pl.'s Consolidated Resp. to Dispositive Mot. (doc. #29). The court based the dismissal upon its conclusion that Officers Potter and Ternes entered plaintiff's apartment in violation of her rights under the Fourth Amendment to the United States Constitution. See id. The court found that the officers had no probable cause to believe that Joseph resided in plaintiff's apartment, and that plaintiff at no time consented to the entry. See id. The court further found that the officers had secured the premises, and no exigent circumstances prevented them from obtaining a search warrant. See id.
The second investigation from which this action arose began at approximately 4:30 a.m. on February 23, 1997, when the Fargo Police Department received a report of ongoing domestic violence in a south Fargo apartment. Officer Potter responded to the scene and upon arrival observed the suspect fleeing in a vehicle. Officer Potter pursued, eventually finding the suspect's vehicle abandoned near plaintiff's apartment complex. Officer Potter then spotted the suspect fleeing into the complex. While searching the complex, Officer Potter received a report that the suspect had at some point placed a telephone call from plaintiff's apartment. Officer Potter went to the manager and obtained the key, which he once again used to gain entry. Officer Potter did not have a warrant to enter plaintiff's apartment. Once inside, Officer Potter failed to locate the suspect. Instead, Officer Potter once again found Joseph and arrested him on two new warrants. Plaintiff was not in the apartment during this incident.
Officer Ternes was not involved in this incident.
On December 18, 1997, plaintiff filed this action. Pursuant to Title 42, United States Code Section 1983, plaintiff alleged that Officers Potter and Ternes, individually and in their official capacities, violated several of her constitutional rights by twice entering her apartment without a search warrant or permission to do so. Plaintiff further alleged that the City of Fargo violated Section 1983 by tolerating this conduct through custom, policy and practice. Plaintiff also brought state law claims against the officers and the City of Fargo for unlawful arrest and imprisonment, and negligent retention/supervision. Finally, plaintiff brought state law claims against Northwest for wrongful eviction, negligent infliction of emotional distress, and negligent retention/supervision.
Defendants responded with the aforementioned motions. In their motion for summary judgment (doc. #21), Officers Potter and Ternes and the City of Fargo maintain that the officers are entitled to qualified immunity for their actions during the December 18, 1996 and February 23, 1997 investigations; the City of Fargo properly supervised, trained and instructed Officers Potter and Ternes; and plaintiff's state law claims against the officers and the City of Fargo should be dismissed. These defendants also maintain that neither the officers nor the City of Fargo can be held liable to plaintiff for punitive damages.
Defendant Northwest requests summary judgment (doc. #18) on plaintiff's unlawful eviction (to which plaintiff has stipulated) and negligent infliction of emotional distress claims. Northwest does not request summary judgment on plaintiff's negligent retention/supervision claim. Finally, Northwest also requests through a separate motion (doc. #16) that this court strike plaintiff's punitive damages claim.
See Pl.'s Br. in Resp. to Dispositive Mot. (doc. #29). Since plaintiff was a holdover tenant, she concedes that Northwest lawfully terminated her tenancy. See id.
III ANALYSIS
A. SUMMARY JUDGMENT STANDARDS
Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is "material" if it might affect the outcome of a case, and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Churchill Bus. Credit, Inc. v. Pacific Mut. Door Co., 49 F.3d 1334, 1336 (8th Cir. 1995).
The "basic inquiry" for purposes of summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one sided that one party must prevail as a matter of law." Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376 (8th Cir. 1996) (citing Anderson, 477 U.S. at 251-52). In making this inquiry, however, this court will not "weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter." Id. (citing Anderson, 477 U.S. at 249). Rather, this court's function is to determine only whether a dispute is genuine, and "[i]f reasonable minds could differ as to the import of the evidence," summary judgment is inappropriate. Id. at 1377 (citing Anderson, 477 U.S. at 250). This determination is made by reading the record in the light most favorable to the nonmoving party and drawing all "justifiable inferences" in the nonmovant's favor. Id. (citing Anderson, 477 U.S. at 255); Churchill, 49 F.3d at 1336 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
The moving party has the initial burden of demonstrating to the court that there is no genuine issue of fact. Webb v. Lawrence County, 144 F.3d 1131, 1134 (8th Cir. 1998) (citing Celotex Corp., 477 U.S. at 323). Once the moving party has met this burden, however, the non-moving party cannot simply rest upon the denials or allegations in the pleadings; rather, the non-movant must set forth specific facts showing that there is a general issue for trial. Id. (citing Fed.R.Civ.P. 56(e)).
B. MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS POTTER, TERNES, AND CITY OF FARGO.
1. Qualified Immunity
Government officials performing discretionary functions are generally shielded from civil liability insofar as their conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For a constitutional right to be clearly established, the contours of that right must be sufficiently clear and specific that a reasonable official would understand that what he is doing violates that right. Guite v. Wright, 147 F.3d 747, 749 (8th Cir. 1998) (citations omitted). When determining whether an official is entitled to qualified immunity, this court must consider the information upon which the official acted, while measuring the objective reasonableness of the official's conduct by reference to clearly established law.Coffman v. Trickey, 884 F.2d 1057, 1063 (8th Cir. 1989) (citingAnderson v. Creighton, 483 U.S. 635 (1987)); Davis v. Scherer, 468 U.S. 183, 191 (1984).
A defendant is entitled to summary judgment based upon qualified immunity only if the record, viewed in the light most favorable to the nonmoving party, reveals no genuine issue of fact regarding immunity, entitling defendant to judgment as a matter of law.Walden v. Carmack, 156 F.3d 861, 868 (8th Cir. 1998). To withstand a motion for summary judgment based upon qualified immunity, a civil rights plaintiff must (1) assert a violation of a constitutional right; (2) demonstrate that the alleged right was clearly established under the particular circumstances at the time of the violation; and (3) raise a genuine issue of fact as to whether a reasonable official would have known that his conduct violated plaintiff's clearly established right. Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir. 1996) (citing Foulks v. Cole County, Mo., 991 F.2d 454, 456 (8th Cir. 1993)).
a. The December 18, 1996 Investigation
As previously mentioned, plaintiff alleges that Officers Potter and Ternes violated several of her constitutional rights by entering her home on December 18, 1996 without a search warrant or permission to do so. Under well-established law, an arrest warrant does not justify entry into a third person's home to search for the subject of the arrest warrant. See United States v. Risse, 83 F.3d 212, 215 (8th Cir. 1996) (citing Steagald v. United States, 451 U.S. 204, 215 (1981)). In other words, if the suspect is merely a guest in a third party's home, the police must obtain a search warrant in order to enter the home and effectuate the arrest. Id. at 216 (citations omitted).
At the same time, however, a valid arrest warrant carries with it the implicit but limited authority to enter the premises of the person named in the warrant in order to execute the warrant. Id. at 215 (citing Payton v. New York, 445 U.S. 573, 603 (1980)). This rule applies where the suspect is a co-resident with a third party. Id. at 216 (citing Washington v. Simpson, 806 F.2d 192, 196 (8th Cir. 1986)). However, the officers executing the warrant must have a reasonable belief that the suspect resides at the place to be entered and that the suspect is present. Id. at 216 (citations omitted).
In this case, there is no dispute that Officers Potter and Ternes reasonably believed that Joseph was present inside plaintiff's apartment on December 18, 1996. Rather, the issue for purposes of summary judgment is the reasonableness of the officers' belief that Joseph actually resided in plaintiff's apartment on that date.
Officers Potter and Ternes maintain that their belief was reasonable in light of the fact that they were told by the manager and a tenant that Joseph frequently "stayed" in plaintiff's apartment. Both officers claim that they interpreted these statements to mean that Joseph in fact lived there. Along these lines, the officers cite United States v. Risse, 83 F.3d 212, 217 (8th Cir. 1996), wherein the Eighth Circuit Court of Appeals found that an officer reasonably relied upon a similar statement to conclude that a suspect resided at a certain location.
Defendants also maintain that Joseph had used plaintiff's address as his own during a prior arrest, and that plaintiff's address was on Joseph's driving record. Defendants fail to direct this court to the portion of the record from which this information came, however.
Unlike this case, however, in Risse the officers relied upon the suspect's own statement, as well as those of a third party. Id. at 216.
As plaintiff correctly points out, however, during her trial in North Dakota state district court, Officer Potter testified that he believed plaintiff, rather than Joseph, lived in the apartment at the time the officers entered. See Ex. C accompanying Pl.'s Consolidated Resp. to Dispositive Mot. Indeed, the record reflects that the prosecutor attempted to justify officers' decision to enter on the basis of probable cause and exigent circumstances, as opposed to the officers' belief that Joseph actually resided there. See id. Furthermore, the North Dakota court concluded that the apartment was in fact plaintiff's home, not Joseph's. See id. Given these discrepancies, this court finds that fact questions remain regarding whether the officers reasonably believed that Joseph resided in plaintiff's apartment on December 18, 1996.
Though the officers claimed that Joseph posed a flight risk, the trial court found that the premises had been secured and no exigent circumstances were present which would have prevented the officers from obtaining a search warrant. See id.
b. The February 23, 1997 Investigation
Plaintiff also claims that Officer Potter violated her rights by entering her apartment without a warrant on February 23, 1997. It is well-established that the Fourth Amendment prohibits a warrantless entry into a home to make an arrest absent consent or exigent circumstances. Guite, 147 F.3d at 750 (citing Steagald v. United States, 451 U.S. 204 (1981) and Payton v. New York, 445 U.S. 573 (1980)). Thus, the issue for purposes of summary judgment becomes whether Officer Potter reasonably concluded that exigent circumstances were present on February 23, 1997. See Rogers v. Carter, 133 F.3d 1114, 1119 (8th Cir. 1998) (citing Anderson v. Creighton, 483 U.S. 635, 638-39 (1987)).
Officer Potter maintains that the exigency of "hot pursuit" justified his entry into plaintiff's apartment. Officer Potter believed that the suspect he pursued had committed a violent offense; had entered plaintiff's apartment; and would flee if not apprehended. Plaintiff, on the other hand, argues that Officer Potter offered no reason why a search warrant could not have been obtained. Plaintiff maintains that Officer Potter merely speculated that the suspect was in plaintiff's apartment, and this speculation proved to be incorrect.
The reasonableness of Officer Potter's decision to enter plaintiff's apartment is unfortunately impossible to determine on the basis of the truncated record of events before this court. Accordingly, this court must find that fact questions remain as to the reasonableness of Officer Potter's conclusion that exigent circumstances justified his actions on February 23, 1997.
In short, plaintiff has raised issues of fact sufficient to preclude summary judgment for Officers Potter and Ternes on the basis of qualified immunity. Accordingly, IT IS HEREBY ORDERED that defendants' motion for summary judgment is DENIED with respect to plaintiff's first and second causes of action.
2. Plaintiff's Section 1983 Claim Against the City of Fargo .
As previously mentioned, plaintiff also alleges that the City of Fargo authorized, permitted or tolerated the officers' conduct through custom, policy or practice in violation of Section 1983. In order to state such a claim, plaintiff must point to a policy or custom on the city's behalf which caused plaintiff's injuries.Smith v. Watkins, 159 F.3d 1137, 1138 (8th Cir. 1998) (citingBoard of County Comm'rs v. Brown, 117 S. Ct. 1382, 1388 (1997)). In the absence of a written policy, plaintiff must identify a pattern of widespread unconstitutional conduct "so pervasive and well-settled that it had the effect of law." Id. (citations omitted). In other words, plaintiff must show that the City of Fargo, through its deliberate conduct, was the "moving force" behind the injury. Id. (citing Brown, 117 S. Ct. at 1388).
Plaintiff has presented no facts upon which to base such a claim, nor do any appear in the record. As previously mentioned, Plaintiff cannot survive a motion for summary judgment by resting upon the allegations contained in her pleadings; rather, plaintiff must respond with specific facts showing the existence of a genuine issue for trial. Fed.R.Civ.P. 56. See Webb, 144 F.3d at 1134 (citing Celotex Corp., 477 U.S. at 323). Absent any facts to support this claim, this court must grant defendants' motion for summary judgment. Accordingly, IT IS HEREBY ORDERED that defendants' motion is GRANTED with respect to plaintiff's Section 1983 claim against the City of Fargo, and this claim is hereby DISMISSED.
3. Plaintiff's State Law Claims Against Officers Potter and Ternes and the City of Fargo .
As previously mentioned, plaintiff has brought state law claims of unlawful arrest, unlawful imprisonment, and negligent retention/supervision against the officers and the City of Fargo, respectively. These defendants maintain that these claims must be dismissed pursuant to Sections 32-12.1-03 and -04 of the North Dakota Century Code.
Defendants correctly point out that Section 32-12.1-04(1) clearly requires any action for injuries proximately caused by the alleged negligence, wrongful act, or omission of an employee of a political subdivision occurring within the scope of employ to be brought against the subdivision. See N.D. Cent. Code § 32-12.1-04(1). Plaintiff concedes that the acts in question occurred during the scope of the officers' employ. Thus, this section appears to bar plaintiff's state law claims against Officers Potter and Ternes.
Furthermore, Section 32-12.1-03(3)(c) of the North Dakota Century Code affords political subdivisions and their employees immunity from liability for negligence in the exercise of a discretionary function. See § 32-12.1-03(3)(c); Habiger v. City of Fargo, 905 F. Supp. 709, 722 (D.N.D. 1995). Political subdivision employees are not entitled to immunity from liability for reckless, grossly negligent, or willful or wanton conduct, however. See N.D. Cent. Code § 32-12.1-04(3); Habiger, 905 F. Supp. at 723.
This court has previously held that a police officer's probable cause and arrest determinations are entitled to discretionary immunity. Habiger, 905 F. Supp. at 723. Furthermore, this court concludes that the training and supervision the City of Fargo provides its police officers entails policy decisions which should also be protected by discretionary immunity. See, e.g., Maras v. City of Brainerd, 502 N.W.2d 69, 78 (Minn.Ct.App. 1993). Plaintiff has proffered no evidence indicating reckless, grossly negligent, or willful or wanton conduct on the part of the officers or the City of Fargo sufficient to abrogate this immunity. Accordingly, this court hereby GRANTS defendants' motion for summary judgment on plaintiff's state law claims of unlawful arrest and unlawful imprisonment, and also GRANTS summary judgment on plaintiff's negligent retention/supervision claim against the City of Fargo. Plaintiff's state law claims against Officers Potter and Ternes and the City of Fargo are therefore DISMISSED.
Though defendants failed to address plaintiff's negligent retention/supervision claim against the City of Fargo, Eighth Circuit courts have held that a district court may properly grant summary judgment sua sponte and without prior notice against a party who has failed to state a claim upon which relief may be granted. See Enowmbitang v. Seagate Tech., Inc., 148 F.3d 970, 973 (8th Cir. 1998).
4. Plaintiff's Punitive Damages Claims Against Officers Potter and Ternes .
As previously mentioned, defendants also object to plaintiff's request for punitive damages. Punitive damages are appropriate in a Section 1983 case when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. Coleman v. Rahija, 114 F.3d 778, 787 (8th Cir. 1997). Since the conduct of Officers Potter and Ternes remains in dispute, this court will not foreclose plaintiff's opportunity to pursue these damages at the summary judgment stage. However, this ruling does not mean that her punitive damages claim will necessarily reach a jury. Beginning in August of 1992, this court implemented a bifurcated trial procedure for punitive damages claims in all jury cases. If the jury returns a verdict awarding compensatory damages to plaintiff, this court will determine whether there is sufficient basis to submit plaintiff's punitive damages claim to the jury. In the meantime, defendants' motion to strike plaintiff's punitive damages claim against Officers Potter and Ternes is DENIED.
B. MOTION FOR PARTIAL SUMMARY JUDGMENT BY NORTHWEST.
Plaintiff has stipulated to Northwest's motion for summary judgment on her wrongful eviction claim. See Pl.'s Br. in Resp. to Dispositive Mot. (doc. #29). Summary judgment is therefore GRANTED with respect to that claim, and that claim is hereby DISMISSED.
Plaintiff does not stipulate to Northwest's motion for summary judgment on her negligent infliction of emotional distress claim. To support a claim of negligent infliction of emotional distress, however, North Dakota courts clearly require a showing of bodily harm. See Hougum v. Valley Mem'l Homes, 574 N.W.2d 812, 819 (N.D. 1998) (citing Muchow v. Lindblad, 435 N.W.2d 918, 921 (N.D. 1989)). In this case, the record reflects that plaintiff sustained no physical or mental injury from Northwest's conduct, other than perhaps an increased level of anxiety regarding her safety at home. Once again, plaintiff must respond to a motion for summary judgment with specific facts showing the existence of a genuine issue for trial. Fed.R.Civ.P. 56. See Webb, 144 F.3d at 1134 (citing Celotex Corp., 477 U.S. at 323). Absent any facts to support plaintiff's emotional distress claim, this court must order that defendants' motion for summary judgment is GRANTED with respect to that claim, and that claim is DISMISSED.
C. MOTION TO STRIKE PUNITIVE DAMAGES CLAIM.
Finally, in its motion to strike (doc. #16) defendant Northwest correctly argues that plaintiff has failed to observe the procedures set forth in Section 32-03.2-11(1) of the North Dakota Century Code with regard to pleading punitive damages. While generally adherent to these procedures, this court will forego them in this case for purposes of simplification. This court finds that Northwest will not be prejudiced, as it had ample notice of plaintiff's intent to seek a punitive award. Accordingly, defendant Northwest's motion to strike plaintiff's punitive damage claim (doc. #16) is hereby DENIED.
IV SUMMARY
The motion for summary judgment by defendants Potter, Ternes and City of Fargo (doc. #21) is DENIED with respect to plaintiff's Section 1983 claims against Officers Potter and Ternes; is GRANTED with respect to plaintiff's Section 1983 claim against the City of Fargo, and that claim is DISMISSED; is GRANTED with respect to plaintiff's state law unlawful arrest, unlawful imprisonment and negligent retention/supervision claims against Officers Potter and Ternes and the City of Fargo, respectively, and these claims are also DISMISSED. This leaves plaintiff with Section 1983 claims against Officers Potter and Ternes, in their individual and official capacities.
The motion for summary judgment by defendant Northwest Enterprises, Inc. (doc. #18) is GRANTED with respect to plaintiff's wrongful eviction and negligent infliction of emotional distress claims, and those claims are hereby DISMISSED. Plaintiff's negligent retention/supervision claim against Northwest remains. The motion to strike plaintiff's punitive damages claim (doc. #16) is DENIED.
IT IS SO ORDERED.
RODNEY S. WEBB, CHIEF JUDGE UNITED STATES DISTRICT COURT