Opinion
Civil No. A3-99-120.
November 7, 2000
MEMORANDUM AND ORDER
Before the court is the motion for summary judgment of defendants Richard Dietz ("Dietz"), Jay Gruebele ("Gruebele"), Scott Edinger ("Edinger"), present and former officers of the City of Jamestown, North Dakota, in their individual and official capacities, David Donegan ("Donegan"), Chief of Police of the City of Jamestown, North Dakota in his individual and official capacity, and the City of Jamestown, North Dakota ("City") (Doc. #19). Plaintiff opposes the motion, providing a factual recitation of the events giving rise to the present action with significant differences from that of the defendants. For the reasons outlined in this memorandum, the defendants' motion is granted in part and denied in part. This action will be permitted to proceed to trial on count one of the complaint in so far as it alleges a violation of § 1983 against Officers Dietz, Gruebele, and Edinger in their individual capacities, as well as count two, which alleges a state law claim for assault and battery. Counts three through five of the complaint are dismissed.
Brief Factual Background
The plaintiff, Norman Shirley ("Shirley"), is an employee of the Ladish Malting Company. Another employee, Clyde Isaak ("Isaak"), scheduled a meeting on the night of February 9, 1998 at the Gladstone Inn in Jamestown for the stated purpose of discussing several problems arising in the workplace, including union matters. Shirley was an intended invitee to the meeting, scheduled to commence at 7:00 p.m. It is undisputed that Shirley arrived at the meeting shortly after it started. The topic of discussion at the time of his arrival was Isaak's concern over smoking at union meetings and the effect it has on his health. Shirley immediately, before taking a seat, voiced his opinion about the "silliness" of the topic and made a comment to the effect, "I don't give a shit about your health problems" and suggested to Isaak that if he has a problem with smoking at union meetings he could stand in the hallway. Apparently Isaak then asked Shirley to sit down and remain quiet, to which Shirley responded with additional profanity. Isaak then advised Shirley that if he was going to continue the disruptive course of conduct displayed upon his entrance, Isaak intended to call the Jamestown Police Department and have Shirley removed from the meeting. Shirley indicated he had no intention of "backing down" to Isaak or voluntarily leaving the meeting in response to Isaac's repeated requests to do so. After an admittedly heated discussion, Isaak did contact the Jamestown Police to assist in removing Shirley from the meeting.
Officers Dietz and Edinger responded to the call. Isaak met the officers upon their arrival at the Gladstone and escorted them into the meeting room. When the officers entered the room, Shirley was sitting down and visiting with other employees present and was not engaging in any disruptive behavior, necessitating Isaak pointing Shirley out to the officers. The officers then approached Shirley and asked him to voluntarily leave the meeting. Shirley refused, again using profanity to express his opinion that nobody had the right to remove him from the meeting. The officers again asked Shirley to leave, and Shirley again refused. In fact, Shirley "scooted" his chair up under the table and crossed his arms, making it very clear that he had no intention of leaving. In response, the officers, one on either side of Shirley, grasped his arms and escorted him out into the hallway. Shirley made it difficult for the officers to accomplish this by dragging his feet and simply "not helping." Once out in the hallway a scuffle ensued because Shirley aggressively resisted any effort to remove him from the meeting. It ultimately took three officers to subdue Shirley. The exact events of the scuffle are somewhat in dispute, but there is no question that the officers employed some degree of force in order to place Shirley under arrest.
Corporal Gruebele arrived on the scene after the officers had escorted Shirley out into the hallway and were attempting to place him under arrest for disorderly conduct for resisting. Gruebele stated that he heard the scuffle and immediately went to assist. His actual involvement in the scuffle is somewhat unclear, but in any event his assistance was instrumental in containing Shirley.
The officers filed a report outlining their version of the facts of that evening. The officers admit they attempted to take Shirley to the ground on a number of occasions in order to place handcuffs on him and that his head made contact with the floor at least once during the incident. They also state they attempted to use OC spray, but assert the canister malfunctioned, spraying one of the officer's hands instead of Shirley. With the help of the third officer they were able to place the handcuffs on Shirley. When he was returned to his feet he complained that his elbow was "out of place" and requested the handcuffs be removed. The officers obliged. Shirley was then transported to the Emergency Room of the Jamestown Hospital to have his elbow examined. Upon arrival Shirley refused treatment. He was then delivered to the Jamestown Correction Center for processing. Upon his release Shirley returned to the Jamestown Hospital for x-rays of his elbow. He was diagnosed with left elbow strain with no evidence of fracture or dislocation.
Shirley does not dispute that he resisted the officers, asserting that he had a right to do so because he was entitled to do and say anything at the "union" meeting and no one had the right to remove him. He further asserts that he was rendered unconscious during the struggle and was in fact "maced" by one of the officers.
Summary Judgment Standard
Summary judgment is appropriate if there is not a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Rule 56 of the Federal Rules of Civil Procedure "mandates the entry of summary judgment . . . against a party failing to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex, 477 U.S. at 322. If the moving party has supported its motion for summary judgment, the nonmoving party has an affirmative burden placed on it to go beyond the pleadings and show a genuine triable issue of fact. Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271 (8th Cir. 1992). However, the court considering a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party who enjoys "the benefit of all reasonable inferences to be drawn from the facts." Vacca v. Viacom Broadcasting of Missouri, Inc. Et al., 875 F.2d 1337, 1339 (8th Cir. 1989) (citation omitted).
Summary judgment is improper if the court finds a genuine issue of material fact; however, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. . . ." Commercial Union Insurance Co. v. Schmidt, 967 F.2d 270, 271-72 (8th Cir. 1992) (citation omitted). The issue is whether "the evidence is sufficient to allow a reasonable jury to return a verdict for the nonmoving party." Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir. 1995).
Law and Discussion
Count one of plaintiff's complaint alleges a violation of 42 U.S.C. § 1983 against officers Dietz, Edinger and Gruebele and claims damages for the injuries sustained in the "scuffle" at the time of his arrest. In response to the allegation, defendants assert they are entitled to qualified immunity from civil damages liability, and further that the officers' actions were "objectively reasonable" under the circumstances, particularly in light of the plaintiff's admitted resistance. Pursuant to 42 U.S.C. § 1983, "[e]very person who, under color of statute, ordinance, regulation, custom, or usage, . . . subjects, or causes to be subjected, any citizen of the United States . . . to 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, suit in equity, or other proper proceeding for redress." 42 U.S.C. § 1983 (1994).
"In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force." Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000) (citing Graham v. Connor, 490 U.S. 386 (1989)). It is well established that the Fourth Amendment's prohibition against unreasonable seizures of the person applies to excessive force claims that "arise in the context of an arrest or investigatory stop of a free citizen." Id. "The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. (citing Graham, 490 U.S. 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. Thus, simply stated, the use of force is not constitutionally excessive if the officers' actions are "objectively reasonable" in light of the facts and circumstances faced by the officers at the time. Nelson v. County of Wright, 162 F.3d 986, 990 (8th Cir. 1998) (quoting Graham, 490 U.S. at 397). The court in Nelson discussed the objective reasonableness standard, stating:
In applying this objective reasonableness standard, a court must pay close attention to the particular facts. It should consider such factors as the severity of the suspected crime, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting or evading arrest. It may be appropriate to consider the extent of any injury sustained by the suspect, and standard police procedures.
Id.
This court is inclined to follow the lead of the court in Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000), finding at most only a conceptual difference between the determination of objective reasonableness for qualified immunity purposes and for a holding on the merits and addressing both "in one fell swoop." Wilson, 209 F.3d at 716 ("The linchpin of qualified immunity is the objective reasonableness of the officer's actions; objective reasonableness is also applied in analyzing the merits of Fourth Amendment excessive-force claims."). See also Nelson, 162 F.3d 989-90 n. 5 (declining to decide whether "conceptual difference" exists between standards but reaching same result under qualified immunity and on merits of excessive force claim).
The next issue then is whether the undisputed facts in this case lead, as a matter of law, to the conclusion that the defendants' use of force was either reasonable or unreasonable when the situation is analyzed in light of the objective reasonableness standard articulated in Graham. Plaintiff argues that he had every right to be in attendance and voice his opinion at the "union" meeting, rendering his arrest unlawful, and that no degree of force is reasonable in making an unlawful arrest. However, "[i]n a case in which the defense of qualified immunity is raised in response to an allegation of illegal arrest under the Fourth Amendment, the `focal issue is the objective reasonableness of the officer making the arrest, even though probable cause to arrest is lacking.'" Gainor v. Rogers, 973 F.2d 1379, 1382 (8th Cir. 1992). Thus, the efficacy of the underlying charges is irrelevant so long as the officers could have reasonably believed the arrest was lawful, despite plaintiff's contentions regarding the status of the union meeting.
Defendants argue that Shirley's admitted resistance to the arrest constitutes a defense to the use of force. Clearly the resistance prompted the need for the use of force, but the existence of resistance does not excuse an officer's use of "excessive" force to effectuate an arrest. This court finds that whether or not the amount of force employed was objectively reasonable under the circumstances constitutes a question of fact in this case and is best left to the discretion of the jury. Thus, defendants' motion for summary judgment as to count one of the complaint is DENIED.
Because the same standard of objective reasonableness applies in the analysis of the officers' entitlement to qualified immunity, see Wilson, 209 F.3d at 716, whether the officers are entitled to qualified immunity must be examined from the perspective of the situation as they understood it at the time. From the record this court is not able to determine whether, under the circumstances encountered by the officers, they could have reasonably believed that the amount of force was not excessive or in violation of the clearly established law requiring an objectively reasonable response. Therefore, the court finds that there remains a genuine factual dispute precluding a determination on the defendants' entitlement to the defense of qualified immunity.
In count two of his complaint plaintiff alleges that defendants are liable for assault and battery under the laws of the State of North Dakota. In support of their motion for summary judgment, defendants assert that Shirley "has admitted that he is unaware of what officers even made physical contact with him that evening," "when officer Gruebele arrived or if Gruebele had any physical contact with him that evening." Defendants' Brief in Support of Summary Judgment, at 23. The evidence in this case is clear that there was some physical contact between the plaintiff and at least one, if not more, of the defendants. Thus, like its analysis of the Fourth Amendment claim, the undersigned finds that there is a genuine issue of material fact presented by the evidence requiring a jury to assess the credibility of the witnesses and resolve the inconsistencies in the evidence on the assault and battery claim. Accordingly, defendants' motion for summary judgment on plaintiff's state law claim of assault and battery is DENIED.
Defendants have also moved for judgment of dismissal of count three of the complaint alleging false arrest and illegal imprisonment. In response to the motion for summary judgment the plaintiff argues that the meeting was a union meeting, that he was entitled to voice his opinion, and the police officers' actions violated the provisions of 29 U.S.C. § 411. However, whether or not the plaintiff was entitled to remain at the meeting, regardless of his disruptive conduct and abusive language, is not the issue in this case. Nor does it form the underlying basis for the criminal charge of disorderly conduct. Rather, as the plaintiff correctly points out, he was not arrested for voicing his view, but for not voluntarily leaving the "union" meeting and resisting the police officers' efforts to remove him from the meeting.
Pursuant to North Dakota Century Code § 32-12.1-04(3) defendants are immune from plaintiff's state law claims of false arrest and imprisonment unless the plaintiff proves that defendants' acts or omissions constitute reckless or grossly negligent conduct, or willful or wanton conduct, provided that the decision to arrest is a discretionary function. N. D. Cent. Code § 32-12.1-04(3) (1996). Upon review of the circumstances of this case, the court finds that the officers' conclusion that there was probable cause to arrest was discretionary, given the degree of independent judgment required. Habiger v. City of Fargo, 905 F. Supp. 709, 723 (D.N.D. 1995) (citing Loran v. Iszler, 373 N.W.2d 870, 873 (N.D. 1985); Richmond v. Haney, 480 N.W.2d 751, 759 (N.D. 1992)). Plaintiff has not proffered any evidence of malicious intent, reckless or grossly negligent conduct relating to the officers' decision to arrest Shirley for resisting his removal from the meeting following his refusal to simply cooperate and leave the meeting room after several requests to do so. Accordingly, defendants are entitled to immunity from plaintiff's state law claims of false arrest and imprisonment. Defendants' motion to dismiss count three of plaintiff's complaint is GRANTED.
In count four of his complaint plaintiff alleges that Chief David Donegan is liable individually and in his official capacity for his failure to adequately train, supervise and discipline the officers. It is well recognized in law that "[s]ection 1983 liability cannot attach to a supervisor merely because a subordinate violated someone's constitutional rights." Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997) (citing City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1202 ( 103 L.Ed.2d 412 (1989)). Thus, in order for Chief Donegan to have violated the plaintiff's constitutional rights by failing to train and supervise the named officers, it must be shown that Chief Donegan:
(1) Received notice of a pattern of unconstitutional acts committed by subordinates;
(2) Demonstrated deliberate indifference to or tacit authorization of the offensive acts;
(3) Failed to take sufficient remedial action; and
(4) That such failure proximately caused injury to [the plaintiff].
Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997) (citing Jane Doe A. v. Special Sch. Dist. of St. Louis County, 901 F.2d 642, 645 (8th Cir. 1990)). In other words, Chief Donegan must have participated in the constitutional deprivation. Id. Chief Donegan was not present at the Gladstone and did not have any contact with the plaintiff at the time of the altercation. Defendants assert there is nothing in the record to suggest Chief Donegan so participated. Nor does the plaintiff direct the court to any evidence of such participation. Further, there has been no evidence presented which suggests that Chief Donegan had any notice of any unconstitutional acts being committed indicating any need for additional training, supervision or discipline. Accordingly, the court finds that Chief Donegan did not "violate clearly established statutory or constitutional rights of which a reasonable person would have known" and is therefore entitled to qualified immunity. Id. at 1155. Because Chief Donegan did not participate in the arrest, he cannot be personally liable to the plaintiff. Chief Donegan is therefore dismissed as a named party defendant in this action. Summary judgment is GRANTED and count four of the complaint asserting a claim against Chief Donegan in his individual and official capacity is hereby dismissed.
Count five of plaintiff's complaint asserts an action under 42 U.S.C. § 1983 against the City of Jamestown, North Dakota. Shirley asserts the city developed and maintained policies or customs exhibiting deliberate indifference to the constitutional rights of the persons in Jamestown, ultimately causing the violation of his rights. The City of Jamestown can only be found liable under § 1983 "when the entity itself is a `moving force' behind the violation." Clay v. Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987). The city's `policy or custom' must have `caused' the constitutional violation; there must be an `affirmative link' or a `causal connection' between the policy and the particular constitutional violation alleged. Id. (citing City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985)). In this case there is again nothing in the record to even suggest that the city had notice of any deficiencies in its policies and procedures such that there was any degree of likelihood that a constitutional deprivation may result therefrom. Accordingly, the City of Jamestown is dismissed.
Likewise, the defendant officers in their official capacity must also be dismissed. It is well recognized that a § 1983 action against a government official in his official capacity is tantamount to an action against the entity of which the official is an agent. See Monell v. Department of Social Services, 436 U.S. 658, 690 n. 55 (1978). Again, because there is no evidence of "policy or custom" as mandated by Monell, liability cannot be imposed against the officers in their official capacity. See Clay v. Conlee, 815 F.2d 1164, 1170-71 (8th Cir. 1987) (citing Marchant v. City of Little Rock, 741 F.2d 201, 204 (8th Cir. 1984) ("A § 1983 plaintiff must establish the existence of a city policy or custom . . . in order to recover against city employees in their official capacities.").
For the foregoing reasons, defendants' motion for summary judgment as to count five is GRANTED. The City of Jamestown and the defendants in their official capacity are hereby dismissed.
Therefore, IT IS ORDERED that:
1. Defendants' Motion for Summary Judgment as to counts one and two is DENIED.
2. Defendant's Motion for Summary Judgment as to counts three, four and five is GRANTED.
3. Defendants City of Jamestown and Chief David Donegan, in both his individual and official capacity, are dismissed from this action. Defendants Richard Dietz, Jay Gruebele and Scott Edinger are dismissed from this action in their official capacity only. Accordingly, the caption of this action shall be amended to appear as follows: