Opinion
Civ. No. 03-5604 (JNE/JGL).
February 7, 2005
Peter J. Nickitas, Esq., appeared for Plaintiff Joshua Doring.
Jason M. Hiveley, Esq. and Jon K. Iverson, Esq., Iverson Reuvers, LLC, appeared for Defendants Michael Kennedy, James Johans and the City of Champlin.
ORDER
Joshua Doring brought this action against Officers Michael Kennedy and James Johans (collectively, Officers) and the City of Champlin (City), alleging claims under 42 U.S.C. § 1983 (2000) for violations of the Fourth and Fourteenth Amendments. Doring has also asserted claims under the Minnesota Constitution, the Minnesota Government Data Practices Act, Minn. Stat. § 13.08 (2002) (MGDPA), and state law for battery, trespass to chattels, and invasion of privacy. The case is before the Court on Defendants' motion for summary judgment. For the reasons set forth below, the Court grants Defendants' motion in part.
Doring has asserted his § 1983 claims against the Officers both as individuals and in their official capacities. A § 1983 suit against an employee in his official capacity is deemed to be a suit against the employer only, which in this case is the City. Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999).
Doring also moves for partial summary judgment on his MGDPA claim against the City. Because the Court grants Defendants' summary judgment motion and declines to exercise supplemental jurisdiction over Doring's remaining state-law claims, Doring's motion is rendered moot.
I. BACKGROUND
Doring and Defendants give two very different accounts of the facts underlying this action. The disputed facts are recited here, unless otherwise indicated, in the light most favorable to Doring. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). They are not, at this early stage in the litigation, binding factual determinations.
In the early morning of June 30, 2003, Doring and several of his friends congregated at the Oasis Market, a convenience store and gas station, in Champlin. While at the Oasis Market, Doring and his friends passed the time by eating, talking and "horsing around." For example, Doring and his friends engaged in play fighting and stood on salt bags stacked near the gas pumps. In addition, at least one individual climbed onto the awning of the Oasis Market and another drove around the gas pumps in "figure eights." Doring and his friends also parked their cars, a total of four, in front of the gas pumps for over two hours.
Beginning at about 1:00 a.m., the Officers observed this activity from across the road. At approximately 3:00 a.m, the Officers drove to the Oasis Market. Once there, the Officers called the manager, who indicated over the phone that she wanted Doring and his friends to be issued trespass notices. The Officers approached Doring and his friends, asked for identification, and directed them to sit down. At least one individual refused, resisted the commands of the Officers, and eventually was handcuffed and placed in the back of a squad car. Doring sat down while holding a cell phone in his hand. Officer Kennedy asked Doring to give him the phone. Doring refused. The Officers asked Doring a second time and he refused again. Officer Kennedy reached for the phone and Doring pulled away, at which point Officer Kennedy grabbed him by the shoulder and gained possession of the phone. Doring claims that Officer Kennedy also grabbed him by the neck and that Officer Johans pushed his head down. Doring testified that while Officer Kennedy had his hands on Doring's neck, he was able to breath "just fine" and that the Officers did not punch, kick or use mace or batons during the incident.
Eventually, Doring and the others were issued trespass notices and released. Doring denies he was trespassing and claims that he suffered injuries as a result of the incident, including a bruised neck, scratched shoulder, sore jaw and a headache. Doring visited a medical clinic, where he was looked at and released without being prescribed medication. Doring did not seek any follow-up treatment and testified that there was not any "real bad harm" done.
The parties also discuss a second incident that occurred on or around August 28, 2003, and involved the search of a vehicle and Doring's home. This incident relates to Doring's invasion of privacy claim, which is a common-law claim under Minnesota law and is not part of Doring's § 1983 claim. Because the Court grants Defendants' summary judgment motion on Doring's federal claims and declines to exercise supplemental jurisdiction over his remaining state-law claims, this incident will not be addressed.
II. DISCUSSION
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmoving party. See Anderson, 477 U.S. at 255. The moving party "bears the initial responsibility of informing the district court of the basis for its motion," and must identify "those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, Rule 56(e) requires the nonmoving party to respond by submitting evidentiary materials that designate "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).A. Section 1983 Claims
Doring asserts § 1983 claims against the Officers and the City. The Court will consider each in turn.
Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . .42 U.S.C. § 1983.
1. Individual Defendants
In Count One of his First Amended Complaint, Doring asserts that the Officers used excessive force in violation of the Fourth Amendment of the United States Constitution. The Officers assert that they are entitled to qualified immunity.
The doctrine of qualified immunity protects state actors from civil liability when "`their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When faced with an assertion of qualified immunity in a suit against an officer for an alleged constitutional violation, a court must first consider whether the facts, taken in the light most favorable to the party asserting the injury, could show the officer's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 200-01 (2001). Only if a constitutional violation could be established should the court then consider whether the right was clearly established. Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202; see also Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004) (citation omitted) ("Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.").
The right to be free from excessive force is a clearly established right under the Fourth Amendment's prohibition against unreasonable seizures of the person. Graham v. Connor, 490 U.S. 386, 394-95 (1989); Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998). However, "the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham, 490 U.S. at 396. Excessive force claims are analyzed under an "objective reasonableness standard." Id. at 388. The question is "whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397. Whether an officer's use of force is reasonable "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396. "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Id. at 396-97. In addition, courts may consider the result of the force in analyzing an excessive force claim. See Crumley v. City of St. Paul, 324 F.3d 1003, 1007 (8th Cir. 2003).
It is undisputed that Doring and his friends, while in the parking lot of the Oasis Market in the middle of the night, were play fighting, driving around the gas pumps and climbing on the market's awning. The Officers reasonably believed that Doring and his friends were trespassing. After receiving instructions from the manager of the Oasis Market to issue trespass notices, the Officers approached Doring and his friends and encountered resistance. Doring admits that when asked to sit down and turn over his cell phone, he refused to give up his phone and even "pulled away" when one of the Officers reached for it. While the Officers acknowledge that they obtained the cell phone through the use of some force, they maintain that the force was not excessive considering the circumstances. In particular, the Officers claim that they were concerned for their safety because just days before, Doring had used his cell phone to call his parents to the scene of a traffic stop, after which they arrived at the scene and his mother yelled and swore at Officer Johans. The Officers also claim that they suspected Doring was attempting to call other individuals to the Oasis Market.
The cases on which Doring primarily relies in support of his excessive force claim are readily distinguishable from the present case. For example, in Linbrugger v. Abercia, 363 F.3d 537 (5th Cir. 2004), the Fifth Circuit Court of Appeals held that material factual disputes existed with respect to whether excessive force had been used by a sheriff's deputy while executing a warrant for involuntary mental health commitment. Id. at 544. In Linbrugger, however, the claimant asserted that the deputy had placed his knees on his neck, choked him and repeatedly punched him in the face. Id. at 540. In Lambert v. City of Duma, 187 F.3d 931 (8th Cir. 1999), a detainee who was not resisting arrest was "violently shoved" and "kicked" into the patrol car and repeatedly sprayed with chemical restraint, even after he was placed in a jail cell. Id. at 934. The amount and degree of force allegedly used by law enforcement officials in both the Linbrugger and Lambert cases far exceeds the force used by the Officers here.
Viewing the facts in the light most favorable to Doring, the Court concludes that the Officers' use of force does not give rise to a constitutional claim. First, under the circumstances, it was not unreasonable for the Officers to believe that they had to require Doring to sit down and to seize his cell phone to maintain control over the situation. The Officers were questioning at least nine individuals at the scene, and at least two of those individuals refused to heed the Officers' instructions. Second, the Officers were aware that Doring had used his phone in the past to summon people when confronted by law enforcement. Third, Doring admits that he refused to give the Officers his cell phone after they requested that he do so and pulled away from them when they attempted to obtain the cell phone. Doring's actions constituted resistance. Resistance may justify greater force. See Crumley, 324 F.3d at 1008 (holding that pushing and shoving by police officer was not excessive when party defensively moved away from the officer during an arrest); Foster v. Metro. Airports Comm'n, 914 F.2d 1076, 1082 (8th Cir. 1990). Finally, Doring has failed to allege any long-term or permanent physical injury as a result of the Officers' actions. While the Court acknowledges that Doring suffered scratches and bruises, these injuries alone do not support an excessive force claim. See Foster, 914 F.2d at 1082 (holding that allegations of pain as result of handcuffing without evidence of more permanent injury insufficient to support excessive force claim); see also Crumley, 324 F.3d at 1008 (finding injury to hands resulting from handcuffs, with no allegation of long-term or permanent injury, too minor to support an excessive force claim). Even if Doring could demonstrate that the Officers used excessive force, at the time of the incident, reasonable officers could have disagreed about the appropriate level of force necessary to handle the situation. For the above reasons, the Officers are entitled to qualified immunity with respect to the June 30, 2003 incident and the Court grants Defendants' motion as to the Officers on Doring's § 1983 claim.
The Court notes that prior to the June 30, 2003 incident, Doring had spoken with the Deputy Chief of Police of Champlin, David Schwarze, who advised Doring that he could use his cell phone to record police encounters. In addition, Deputy Chief Schwarze informed Champlin police officers that Doring might record them using his phone. Deputy Chief Schwarze also informed the officers, however, that should their safety ever become an issue, they could take appropriate action. Considering Doring's previous use of his phone to summon others to the scene of a traffic stop and the tense circumstances at the Oasis Market, the fact that Deputy Chief Schwarze indicated that Doring could tape record encounters does not alter the conclusion that the Officers acted reasonably on June 30, 2003.
2. The City of Champlin
In Count Four of his First Amended Complaint, Doring alleges a § 1983 claim against the City based on a purported policy or custom of: (1) exhibiting deliberate indifference to the constitutional rights of persons in Champlin; (2) inadequately training and supervising its police officers; and (3) encouraging officers to harass, or acquiesce in the harassment of, Doring.
A city "cannot be liable in connection with . . . [an] excessive force claim . . . whether on a failure to train theory or a municipal custom or policy theory, unless [an officer] is found liable on the underlying substantive claim." Abbott v. City of Crocker, 30 F.3d 994, 998 (8th Cir. 1994); see Sinclair v. City of Des Moines, 268 F.3d 594, 596 (8th Cir. 2001) (per curiam). In this case, the Officers are entitled to summary judgment on Doring's § 1983 claim against them. Consequently, the City is entitled to summary judgment on Doring's § 1983 claim as well.
Moreover, municipalities and other local governmental entities can be sued under § 1983 only for the entity's unconstitutional or illegal policies or customs. Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978). Commonly referred to as a Monell claim, a plaintiff must prove that a municipal policy or custom was the "moving force of the constitutional violation" for a municipality to be liable. Id. An official policy involves a deliberate choice to follow a course of action made from among various alternatives by an official who has the final authority to establish policy. Ware v. Jackson County, Mo., 150 F.3d 873, 880 (8th Cir. 1998). Alternatively, a "custom or usage" is demonstrated by: (1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees; (2) deliberate indifference to or tacit authorization of such conduct by the governmental entity's policymaking officials after notice to the officials of that misconduct; and (3) the plaintiff's injury by acts pursuant to the governmental entity's custom, i.e., proof that the custom was the moving force behind the constitutional violation. Id.
Viewing the evidence in the light most favorable to Doring, the Court finds that Doring has failed to identify a genuine issue of material fact to support his Monell claims. On the record before the Court, there is no evidence that the City maintains a widespread policy or custom of unconstitutional searches or seizures, failed to properly train and supervise its officers, or encouraged officers to harass, or acquiesce in the harassment of, Doring. Indeed, the only argument offered by Doring in his memorandum opposing summary judgment on his Monell claims is found in a footnote, wherein Doring cites City of Canton v. Harris, 489 U.S. 378 (1989), for the proposition that a one-time ratification and/or acquiescence by the City of an act of police misconduct can defeat summary judgment. In City of Canton, however, the Supreme Court held that inadequacy of police training may serve as the basis for liability under § 1983 only where the failure amounts to "deliberate indifference." Id. at 389. Doring has failed to submit any evidentiary materials that designate specific facts demonstrating "deliberate indifference" on the part of the City. There is, therefore, no genuine issue for trial on Doring's Monell claims. See Matsushita, 475 U.S. at 587. Accordingly, the Court grants Defendants' motion with respect to Doring's § 1983 claim against the City.
C. State-Law Claims
In addition to his § 1983 claims, Doring also asserts claims under the Minnesota Constitution and the MGDPA, a common-law claim of invasion of privacy, and various other state-law claims. Defendants also assert a counterclaim under the MGDPA. The basis for the Court's jurisdiction over these claims is 28 U.S.C. § 1367(a) (2000), which permits a district court to exercise supplemental jurisdiction over claims that are part of the same case or controversy as the claims that fall within the district court's original jurisdiction. 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); see Franklin v. Zain, 152 F.3d 783, 786 (8th Cir. 1998) (holding district court did not abuse its discretion in declining to exercise supplemental jurisdiction over state-law claim pursuant to section 1367(c)(3)); Save Our Health Org. v. Recomp. of Minn., Inc., 829 F. Supp. 288, 293 (D. Minn. 1993) aff'd, 37 F.3d 1334 (8th Cir. 1994) (declining to exercise supplemental jurisdiction over state law claims pursuant to section 1367(c)(3)). Indeed, according to the Supreme Court, "if the federal claims are dismissed before trial . . . the state claims should be dismissed as well." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1996). The state courts of Minnesota, rather than federal courts, should rule on issues of Minnesota law. See id. In this case, Defendants are entitled to summary judgment on all claims that fall within the Court's original jurisdiction. The Court declines to exercise its supplemental jurisdiction over, and therefore dismisses, Doring's remaining state-law claims and Defendants' counterclaim without prejudice.
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1. Defendants' motion for summary judgment [Docket No. 35] is GRANTED IN PART consistent with this Order.
2. Count I of Doring's First Amended Complaint [Docket No. 18] is DISMISSED.
3. Counts II, III, V and VI of Doring's First Amended Complaint [Docket No. 18] are DISMISSED WITHOUT PREJUDICE.
4. Count IV of Doring's First Amended Complaint [Docket No. 18], insofar as it alleges a § 1983 Claim Against City of Champlin, is DISMISSED; Count IV of Doring's First Amended Complaint [Docket No. 18], insofar as it alleges a claim under the Minnesota Constitution, is DISMISSED WITHOUT PREJUDICE.
5. Defendants' Counterclaim [Docket No. 25] is hereby DISMISSED WITHOUT PREJUDICE.
6. Doring's motion for partial summary judgment [Docket No. 29] is MOOT for lack of jurisdiction.
LET JUDGMENT BE ENTERED ACCORDINGLY.