Opinion
Case No. 4:05CV1469SNLJ.
May 11, 2009
ORDER
In accordance with the memorandum filed herein this date,
IT IS HEREBY ORDERED that defendants Kelling's and Van Mierlo's motion for summary judgment (#86) be and is GRANTED in so far that plaintiff's Fourth Amendment excessive force claim against both defendants is DISMISSED WITH PREJUDICE. The Court declines to exercise supplemental jurisdiction over plaintiff's remaining state-law tort claims of assault and battery and DISMISSES WITHOUT PREJUDICE these state-law tort claims.
IT IS FINALLY ORDERED that this cause of action, in its entirety, be and is removed from the Court's trial docket of May 20, 2009.
MEMORANDUM
Pro se plaintiff has filed this § 1983 action alleging the use of excessive force by defendants Andria Van Mierlo and Bradley Kelling during his arrest and transportation to St. Mary's Health Center following his arrest in a drug raid. This matter is before the Court on defendants' joint motion for summary judgment (#86), filed December 15, 2008. Plaintiff has filed a responsive pleading (#95), filed February 12, 2009.
This instant summary judgment motion was filed in concert with a summary judgment motion filed by co-defendant Michael Pennycock (#83), filed December 11, 2008. Plaintiff filed a single pleading entitled "Plaintiff's Opposition to Motion for Summary Judgment" (#95). This pleading does not denote which summary judgment motion it is in response; and the content of the pleading fails to give any indication either. The Court will presume the pleading is in response to the instant summary judgment motion, as well as the one that had been filed by co-defendant Pennycock.
Courts have repeatedly recognized that summary judgment is a harsh remedy that should be granted only when the moving party has established his right to judgment with such clarity as not to give rise to controversy. New England Mut. Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir. 1977). Summary judgment motions, however, "can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." Mt. Pleasant v. Associated Elec. Coop. Inc., 838 F.2d 268, 273 (8th Cir. 1988).
Pursuant to Fed.R.Civ.P. 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S. Ct. 486, 7 L.Ed.2d 458 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Citrate, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986).
In passing on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976).
Summary judgment is not appropriate unless all the evidence points one way and is susceptible to no reasonable inferences sustaining the position of the nonmoving party." Hindman v. Transkrit Corp., 145 F.3d. 986, 990 (8th Cir. 1998) (citations omitted); see, Mayer v. Nextel West Corp., 318 F.3d. 803, 806 (8th Cir. 2003) citing Keathley v. Ameritech Corp., 187 F.3d. 915, 919 (8th Cir. 1999). However, it is clear that to survive summary judgment, a plaintiff must support his/her allegations with sufficient probative evidence to permit a finding in the plaintiff's favor based upon more than mere speculation, conjecture, or fantasy. Putnam v. Unity Health Systems, Inc., 348 F.3d. 732, 733-34 (8th Cir. 2003) quoting Wilson v. Int'l Bus. Mach. Corp., 62 F.3d. 237, 241 (8th Cir. 1995); Girten v. McRentals, Inc., 337 F.3d. 979, 982 (8th Cir. 2003) (plaintiff's theory of age discrimination failed "[b]ecause this theory is supported more by contentions and speculation than evidence, it is insufficient to withstand summary judgment."). Local Rule 4.01(E) states:
A memorandum in support of a motion for summary judgment shall have attached a statement of uncontroverted material facts, set forth in a separately numbered paragraph for each fact, indicating whether each fact is established by the record, and, if so, the appropriate citations. Every memorandum in opposition shall include a statement of material facts as to which the party contends a genuine issue exists. Those matters in dispute shall be set forth with specific references to portions of the record, where available, upon which the opposing party relies. The opposing party also shall note for all disputed facts the paragraph number from movant's listing of facts. All matters set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party.
Defendants filed a proper Statement of Uncontroverted Material Facts with their summary judgment motion. Plaintiff has failed to file any pleading with his response which specifically disputes any of the material facts listed by the defendants. Plaintiff has failed to file any pleading which in any manner comports with the requirements of Local Rule 4.01(E). Thus, the Court finds that all matters set forth in the defendants' Statement of Uncontroverted Material Facts are deemed admitted for purposes of the instant summary judgment motion. See, Ruby v. Springfield R-12 Public School District, 76 F.3d. 909, 911 n. 6 (8th Cir. 1996).
The following are the uncontroverted material facts relevant to the issues addressed in the instant summary judgment motion.
The material facts, as found by the Court, are extracted from the exhibits filed by defendant Pennycock in support of his summary judgment motion and adopted by defendants Van Mierlo and Kelling: Exhibit C — plaintiff's deposition and Exhibit D-medical records of St. Mary's Health Center; as well as defendants' respective affidavits. In his "response", plaintiff asks the Court to consider affidavits he previously filed in support of his several requests for appointment of counsel. These affidavits are his affidavit and an affidavit of his mother; see, Documents #78 and #91. These affidavits fail to meet the requirements of Rule 56 Fed.R.Civ.P. in that they are replete with self-serving statements of opinion and speculation; as well as generalized allegations and attacks on the credibility of defendants and their counsel. However, given the pro se status of plaintiff, the Court will consider the affidavits and give them whatever weight it deems appropriate. Furthermore, as part of these affidavits, plaintiff submits an unauthenticated "prescription" and note regarding "50 mgs Tramadol for pain", dated August 4, 2005 and presumably tendered to plaintiff by the medical staff of St. Mary's Health Center. Although plaintiff has failed to properly submit this piece of "evidence", the Court will consider same and give it whatever weight it deems appropriate.
On or about August 4, 2005 plaintiff Kevin Chambers was present at an apartment which was the subject of a drug raid by officers of the St. Louis County Multi-jurisdictional Drug Task Force (hereinafter referred to as DTF). Defendant Van Mierlo was a member of the DTF and on this date, she participated in the subject drug raid. She contacted the St. Louis County Tactical Operations Unit to execute a search warrant against the said apartment. She left a copy of the search warrant with Chris Boden, the apartment manager, who secured the apartment following the drug raid. Defendant Van Mierlo did not enter the apartment until after the St. Louis County Tactical Response Team executed the warrant at the apartment. She did not personally witness or participate in the arrest and handcuffing of the plaintiff during the raid. Instead, she was responsible for gathering of evidence; i.e. seizing, marking and packaging certain evidence belonging to the owner of the premises, Gary Hicks. She did not see the plaintiff until after he was arrested, handcuffed and removed from the apartment.
The first time defendant Van Mierlo had direct contact with the plaintiff was when she drove with co-defendant Pennycock and plaintiff to the St. Louis County Justice Service Center in Clayton, Missouri. After arriving at the Justice Center, she was ordered to transport plaintiff to St. Mary's Health Center (in Richmond Heights, Missouri) with defendant Pennycock for a "fit for confinement" evaluation. Defendant Van Mierlo was the driver of the car transporting plaintiff to St. Mary's Health Center. Plaintiff was handcuffed, by other officers, while being transported to the St. Louis County Justice Service Center, then again, while being transported to St. Mary's Health Center.
On August 4, 2005 defendant Kelling was a member of the St. Louis County Tactical Operations Unit (hereinafter referred to as the TACT Unit) and participated in the drug raid at the subject apartment. On this date, and as a member of the TACT Unit, defendant Kelling was in full uniform of the TACT Unit, brown in color wearing a vest with "POLICE" on both the front and back of the vest. Defendant Kelling was not wearing a mask nor was he in "plain clothes". Defendant Kelling was the fourth member of the TACT Unit to enter the apartment. Defendant Kelling did not participate in the arrest and handcuffing of the plaintiff; his responsibility was to maintain observation of the plaintiff during the raid. After plaintiff was removed from the premises by other police officers, defendant Kelling returned to the St. Louis County Police Department facility wherein he had no further contact with plaintiff.
While driving plaintiff to St. Mary's Health Center, defendant Van Mierlo did not accelerate the vehicle to an excessive speed nor slam the brakes repeatedly.
Once they arrived at St. Mary's Health Center, defendant Van Mierlo was relieved and left. She had no further contact with the plaintiff. Co-defendant Pennycock and another police officer transported plaintiff back to St. Louis County Jail after his examination.
St. Mary's Health Center's medical records indicate that plaintiff was seen in the Emergency Department on August 4, 2005 at approximately 11:21 p.m. for a "fit for confinement" evaluation. The medical records indicate that plaintiff's chief complaint is "Back pain after altercation with police/fit for confinement". Defendant's Exhibit D, pg. 7. At 12:05 a.m, a nurse noted in the medical record that "Patient ambulates without difficulty. Patient in police custody with officers at bedside. Patient is handcuffed with arms behind back." Defendant's Exhibit D, pg. 6. Later, at 12:35 a.m., a nurse notes in the medical records that "Patient back from x-ray police officers at bedside. Patient in no obvious distress awaiting disposition." Defendant's Exhibit D, pg. 6.
The results of a physical examination by Dr. Randall C. Speck states the following:
"EXTREMITIES: Lower extremities exhibit full range of motion, with normal strength and no discomfort. The upper extremities, there is full range of motion of the shoulders, elbows, wrists, hands, and digits without any discomfort.
SPINE: There is no palpable cervical spine tenderness. The patient complains of pain to palpation to the right side of the thoracic, paravertebral muscles and slight tenderness over the right posterior ribs. There is no crepitation present. There is no bruising or swelling present. There is no lumbar spine discomfort."
Defendant's Exhibit D, pg. 14.
Dr. Speck wrote up plaintiff's medical history as follows:
"CHIEF COMPLAINT: Back pain.
HISTORY OF PRESENT ILLNESS
The patient is a 33-year-old white male who is complaining of pain to the right upper back. He states he was jumped on by a number of apparently FBI agents in a drug bust. They apparently had to kick in his door, and the patient was apparently arrested running a meth lab and had a number of assault weapons in the house. The patient is uncertain if he was struck to the back or persons fell on him. As he states, a number of persons tackled him. He denies any head or neck injury. He complains of pain to the right thoracic paravertebral. He denied any shortness of breath. There is no abdominal or pelvic injury. The patient denies any arm or leg pain, weakness, or paresthesias."
Defendant's Exhibit D, pg. 12 (emphasis added). There is no indication anywhere in his medical history, in his statements to the medical staff, or in the medical records as a whole that defendant had been injured in any manner by being kicked in the side by defendant Kelling or that he had been injured by the alleged erratic driving of defendant Van Mierlo.
The medical records further indicate that the x-rays of plaintiff's thoracic spine and the right ribs "did not show any evidence of acute fractures". Defendant's Exhibit D, pg. 14. They did show "old rib fractures at ribs 5, 6, and 7." Defendant's Exhibit D, pgs. 10-11.
In his final write-up of plaintiff's physical examination, Dr. Speck noted that plaintiff was "alert and oriented times three, in no acute distress." As for plaintiff's neck, Dr. Speck noted that it was "supple" and "there is no jugular adenopathy or thyromegaly". As for plaintiff's extremities, Dr. Speck noted that the "lower extremities exhibit full range of motion, with normal strength and no discomfort. The upper extremities, there is full range of motion of the shoulders, elbows, wrists, hands, and digits without any discomfort." As for plaintiff's abdomen, Dr. Speck noted that it was "Soft. Bowel sounds are present. Nontender. There is no bruising. There is no CVA tenderness." As for plaintiff's spine, Dr. Speck notes "There is no palpable cervical spine tenderness. The patient complains of pain to palpation to the right side of the thoracic, paravertebral muscles and slight tenderness over the right posterior ribs. There is no crepitation present. There is no bruising or swelling present. There is no lumbar spine discomfort." Dr. Speck's final diagnosis is "Back contusion". Plaintiff was found fit for confinement and released to the police officers with only a prescription for "Ultram 50 mg.q.4h as needed for pain" if plaintiff chose not to take Tylenol instead. Defendant's Exhibit D, pgs. 14-15 (emphasis added). This prescription was for only three (3) days worth of medication, and with no refills. Plaintiff's Exhibit as attached to Document #91.
Plaintiff was returned to the St. Louis County Jail without any further incident. He was not seen by any medical doctors or received any medical treatment for any alleged injuries sustained on August 4, 2005 following his arrest and incarceration.
Plaintiff was prosecuted in the St. Louis County Circuit Court for a Class C Felony offense of Possession of a Controlled Substance. Plaintiff pleaded guilty in the St. Louis County Circuit Court in an Alford plea to the drug offense arising from his August 4, 2005 arrest. Defendant's Exhibit C.
Plaintiff contends that he was kicked in his back (between his shoulders and waist) by a plain clothes detective (blue jeans and a shirt) he now claims to be defendant Kelling. He further contends that defendant Van Mierlo, while driving him to St. Mary's Health Center, repeatedly sped up and braked hard. Although vaguely referred to in his complaint, and then further elaborated upon in subsequent pleadings, plaintiff appears to also contend that his hands were cuffed behind his back so tightly as to injure him. Defendant Kelling contends that, at the time of plaintiff's arrest, he was fully clothed as a TACT officer (brown uniform with a vest displaying "POLICE" on the front and back) and at no time kicked the plaintiff. He contends that he was only an "observer" of the arrest and had no physical contact with the plaintiff. He further contends that given the lack of medical evidence to substantiate any significant injury attributable to any conduct by the defendant, defendant Kelling is entitled to summary judgment for lack of an actual injury to plaintiff and/or qualified immunity on the 4th Amendment excessive force claim. As to plaintiff's state law tort claims of assault and battery, defendant Kelling contends that he is entitled to summary judgment since plaintiff has failed to provide any evidence, medical or otherwise, that the alleged conduct occurred resulting in serious injury.
Defendant Van Mierlo contends that there is no dispute that she had no involvement with the arrest of plaintiff. She further contends that she did not transport plaintiff in the erratic manner he describes, and further more, he has failed to complain of any injury resulting from defendant Van Mierlo's alleged erratic operation of the car while transporting him. She contends that she is entitled to summary judgment for lack of an actual injury to plaintiff attributable to defendant Van Mierlo's alleged conduct, and/or qualified immunity on the 4th Amendment excessive force claim. As to plaintiff's state law tort claims of assault and battery, defendant Van Mierlo contends that she is entitled to summary judgment since plaintiff has failed to provide any evidence, medical or otherwise, that the alleged conduct occurred resulting in serious injury.
The right to be free from excessive force in the course of an arrest, investigatory stop, or other "seizure" by law enforcement officials is a clearly established right under the Fourth Amendment's prohibition against unreasonable seizure of the person. Graham v. Connor, 490 U.S. 386, 395 (1989); Mann v. Yarnell, 497 F.3d. 822, 825 (8th Cir. 2007) citing Guite v. Wright, 147 F.3d. 747, 750 (8th Cir. 1998) (citations omitted). Violation of this right may be redressed in a § 1983 action.Mann, at 825; Crumley v. City of St. Paul, Minn., 324 F.3d. 1003, 1007 (8th Cir. 2003). Not every push or shove rises to the level of a constitutional violation. Samuelson v. City of Ulm, 455 F.3d. 871, 875 (8th Cir. 2006): Guite, at 750. Instead, the force employed by a law enforcement official is not considered excessive and a violation of the Fourth Amendment if such force was "objectively reasonable under the particular circumstances." Ngo v. Storlie, 495 F.3d. 597, 602 (8th Cir. 2007); Guite, at 750. "An 'actual injury' must be shown to support an excessive force claim under the Fourth Amendment."Hanig v. Lee, 415 F.3d. 822, 824 (8th Cir. 2005) citing Dawkins v. Green, 50 F.3d. 532, 535 (8th Cir. 1995); see also, Mann, at 826 citing Crumley, at 1007 (a court may evaluate the extent of the plaintiff's injuries in determining the reasonableness of the force used). A plaintiff sustains actual injuries, for example, when s/he is bruised or has lacerations. Dawkins, at 535. However, such injuries still do not reach the level of a constitutional violation if considered to be the result of "de minimus use of force". See, Hunter v.Namanny, 219 F.3d. 825, 831 (8th Cir. 2000); see also, Wertish v. Krueger, 433 F.3d. 1062, 1067 (8th Cir. 2006) (holding that less than permanent aggravation of an existing shoulder condition as well as minor scrapes and bruises are de minimus injuries insufficient to support a Fourth Amendment excessive force claim). Thus, even being handcuffed tightly, without evidence of a long-term or permanent injury, does not amount to unconstitutional excessive force. Crumley, at 1008; see, Foster v. Metro Airports Commission, 914 F.2d. 1076, 1082 (8th Cir. 1990).
In the instant case, there is absolutely no medical evidence to support plaintiff's allegations. There is no actual, non-minor injury to his back or his wrists to support his claim of excessive force. Allegations of pain or injury without proof in the form of medical records, or by other objective, competent evidence, cannot prove an injury. Crumley, at 1008; Foster, at 1082. Plaintiff's only "evidence" (besides his affidavit and deposition) is the prescription written by Dr. Speck. This prescription was written as an alternative to the widely-used OTC pain medication Tylenol. Furthermore, the prescription only notes that the prescribed medication was to be taken "for pain"; there is an indication that this was in connection to plaintiff's complaint of "back pain". However, the medical records are quite clear that the back pain plaintiff complained about to medical staff was "back pain" which he himself attributed to being "tackled" when other police officers subdued him in effectuating the arrest. There is nothing in the medical records about plaintiff complaining to any of the medical staff that he had been "kicked" by anyone, especially defendant Kelling. There is nothing in the medical records that indicate any back pain or neck problem associated with defendant Van Mierlo's driving conduct. Furthermore, plaintiff has failed to submit any evidence that his "injuries" required any further medical attention beyond the August 4, 2005 examination by Dr. Speck.
Assuming plaintiff has suffered such injuries as he claims, his injuries are deemed temporary, de minimus because they are not supported by the medical records. Since plaintiff has failed to produce evidence of any serious or permanent injuries, his claim for excessive force in violation of the Fourth Amendment fails. Defendants Kelling and Van Mierlo will be granted summary judgment as to plaintiff's § 1983 Fourth Amendment excessive force claim.
Having found that plaintiff has failed to make a submissible Fourth Amendment excessive force claim, the Court finds no need to address the issue of qualified immunity in connection with this claim.
Plaintiff's remaining claims are state tort claims for assault and battery to which the defendants argue that they are entitled to summary judgment for lack of medical or other evidence to substantiate any actual injury resulting from their alleged actions. The sole basis for the Court's jurisdiction over these remaining state-law tort claims is 28 U.S.C. § 1367(a) which permits a district court to exercise supplemental jurisdiction over claims that are part of the same case or controversy as the federal claims falling within the district court's original jurisdiction. However, a district court may, in its discretion, decline to exercise supplemental jurisdiction when "all claims over which it has original jurisdiction" have been dismissed. 28 U.S.C. § 1367(c)(3); Lindsey v. Dillard's, Inc., 306 F.3d. 596, 598-99 (8th Cir. 2002); Thomas v. Dickel, 213 F.3d. 1023, 1026 (8th Cir. 2000).
Since the Court has determined that no constitutional violation occurred through the alleged conduct of defendants Kelling and Van Mierlo, and these defendants are entitled to summary judgment on plaintiff's Fourth Amendment excessive force claim, the Court finds that in the interest of justice and judicial economy, the Court will decline to exercise supplemental jurisdiction over any and all state-law tort claims as contained in the plaintiff's complaint. See, Thomas v. Dickel, at 1026. Plaintiff's state-law tort claims for assault and battery will be dismissed without prejudice.
Having found that no material issues of fact exist as to the failure of the plaintiff to affirmatively set forth any evidence of a constitutional violation by defendants Kelling and Van Mierlo during and in the aftermath of plaintiff's arrest, defendants Kelling and Van Mierlo are entitled to summary judgment on plaintiff's Fourth Amendment excessive force claim. Further, having found no federal constitutional violation, the Court will decline to exercise supplemental jurisdiction over plaintiff's remaining state-law tort claims of assault and battery, and dismisses same without prejudice.