Summary
In Grauerholz v. Adcock, No. 00-1520-JTM, 2002 WL 226405, at *6 (D. Kan. Feb. 8, 2002), the same judge as in the Arceo case held that the plaintiff's negligent excessive force claim was subject to dismissal on qualified immunity grounds because "Kansas state law incorporates a version of qualified immunity under a catch-all provision in KSA 75-6104(i)."
Summary of this case from Gilliam v. USD # 244 School DistrictOpinion
No. 00-1520-JTM.
February 8, 2002
MEMORANDUM ORDER
This present case involves a claim for excessive force by Coffeyville, Kansas police officers. The plaintiff, Selda Grauerholz, alleges that she was subjected to excessive force when the defendants responded to a call relating to a dispute between Grauerholz and a tenant of rental property she owns. Grauerholz was arrested and subsequently convicted of assault on a law enforcement officer and disorderly conduct. She was found not guilty of resisting arrest. For the reasons stated below, the court finds that it must dismiss plaintiff's federal claim on the merits. Further, the court finds that plaintiff's remaining "negligent excessive force claim" under Kansas state law fails to state a claim under Kansas law.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Findings of Fact
In February of 1999, plaintiff Selda Grauerholz, who was born on June 26, 1919, lived at 614 Willow, Coffeyville, Kansas. She owned and rented an apartment house located next door at 706 Willow, Coffeyville, Kansas. She rented the apartment to Debbie Ulibarri.
At this time, defendant Michael Adcock was a Commander in the Coffeyville police department. Defendant Rodney Robson was a patrol officer for the Coffeyville police department. Defendant Darin Daily was a patrol officer in the Coffeyville police department. Defendant Jerry Gilbert was employed by the Montgomery County Community Corrections Department.
Ulibarri had paid a month's rent in advance. Rent was due again in late March. Accounting records show Ulibarri's rent paid to March 23, 1999. Ulibarri told Grauerholz she would be leaving because she could not afford to live there. Ulibarri intended to move out of state with her two children, joining her husband who was employed at a job in Maryland.
The only route of ingress and egress to the Ulibarri apartment is a narrow staircase leading twelve steps up from the front door to a landing with a ninety-degree turn, then another five steps up to a hall. The apartment is a few feet down the hall. The hallway and landing are 2' 10" wide. The apartment was furnished with some items by the landlord. However, Ulibarri also had her own beds, mattresses, table, computer, television, and two bicycles, which she intended to move. Her parents, Wilbur and Velma Wright, arrived at the apartment on April 9, 1999 with a U-Haul trailer to help Ulibarri move.
When Grauerholz noticed items being moved from the apartment, she walked up the stairs to the landing, and sat down in the middle of the stairs. This prevented Ulibarri and the Wrights from moving. Although it was possible for individuals to step around Grauerholz, Wilbur Wright testified that Grauerholz's action made it impossible to safely move the larger items from the apartment. Grauerholz sat on the stairs with the intention of preventing Ulibarri from leaving. The police were called within three or four minutes. When the officers arrived, Grauerholz had been sitting on the stairs for five to ten minutes.
Officer Adcock arrived in uniform. He told Grauerholz, "You've got to get out of there." Grauerholz refused. "It's my house, I pay taxes," she said. She also told him she had been promised the rent due.
Adcock told her, "You can't block [the stairs]; you can't keep them from leaving." Adcock suggested that Grauerholz could sue Ulibarri in small claims court. Grauerholz said that would do no good because Ulibarri was leaving the state and was suit-proof. Adcock spoke with Ulibarri for a while, and then returned to Grauerholz. He told her that Ulibarri had no money, but that Velma Wright offered to pay $250 by check. Grauerholz said that they had promised to pay her, and that she did not want "no goddamn check."
Adcock went back and forth between Ulibarri and Grauerholz several times in trying to mediate. Eventually he told Grauerholz, "You've got to leave." He believed the conflict would not be resolved unless Grauerholz moved off the staircase. Even if she simply moved to one side, there would be insufficient room for people to move larger items down the stairs. He believed Grauerholz could move to the porch, and still see if Ulibarri and the Wrights tried to remove any of her property. Grauerholz told Adcock: "All I want is the goddamn rent." She refused to leave the stairs without payment in full.
Adcock, who had been on the scene for five to eight minutes, called for back-up. He told Grauerholz that she could not block the coming and going of her tenants, and that she had to get out of the way. Grauerholz said she would not, that it was her property. She said that she didn't think Adcock could move her.
As she sat on the stairs, Grauerholz had a cane. She had had knee surgery in 1987, and knee replacement had been recommended in 1998. Grauerholz testified that she could have moved out of the way if she wanted, although she would not have been "graceful" and it might have been a "struggle." She testified she could have walked down the stairs without the cane if she had been inclined to do so. She never told any of the officers that her physical condition prevented her from leaving, or asked for help to leave.
Officer Robson arrived at the scene. Grauerholz became hostile and spoke in a loud and argumentative voice. There is a dispute as to whether Grauerholz raised her cane to strike Robson. Adcock and Robson have testified that she did; Grauerholz denies doing so. Robson has testified that Grauerholz began to use obscene language, even though two young children, which he believes were about three and six years old, were at the scene.
Adcock told her she was under arrest while he was standing behind her. Although Grauerholz denies raising the cane against Robson, it appears that she refused to relinquish it. Adcock had to struggle with her for some time before he succeeded in wresting the cane from her. Grauerholz struck Adcock's hand on the cane with her left fist as she unsuccessfully tried to keep the cane.
Adcock thought the struggle lasted from thirty to forty-five seconds. Robson believes it lasted from ten to fifteen seconds.
Officer Daily arrived at the scene. Because she refused to get up and walk, Adcock and Officers Daily and Robson lifted Grauerholz by her arms and legs and carried her down the stairs. Picking her up was the only way the officers could move her out of the way. Grauerholz does not claim that the defendants caused physical injury other than by picking her up.
When they reached the bottom of the stairs, the officers put Grauerholz down on the porch to catch their breath. Grauerholz claims that when they reached the porch, the officers dropped her. Asked to define the height of this drop at her deposition, Grauerholz said it was ten to twelve inches, "not a great distance." She admitted she had no bruising and suffered no physical injury from the "drop."
After Grauerholz was on the porch, the officers asked if she was going to walk from the porch. She refused. Two or three officers picked her up again to carry her to the patrol car. She was lifted in a kind of cradled position and carried directly to the patrol car, a distance of about 25 feet. Grauerholz states that when the officers picked her up for this trip, her shoulder was jerked. During this trip to the patrol car, Grauerholz's arms were raised and hurting. When they were close to the car, she screamed, "You are hurting me; I have bursitis."
Grauerholz complains that after she was placed in the patrol car, she was sitting on her underwear with her skirt up past her waist. She wore full pantyhose with a girdle over them. She was fully covered at all times.
Grauerholz also claims that handcuffs were applied, but admits she never complained they were too tight or that they hurt her. She does claim that bruises were visible on her wrists after the cuffs were removed. She also claims that her arms were bruised from the hands of the officers. Grauerholz admits that the officers did not try to hurt her.
Grauerholz was not verbally abused. No officer kicked, hit, or struck her at any time. After arriving at the police department, Grauerholz walked from the car with assistance. An officer helped her from her seated position in the back of the police car. She was at the station for 20 to 30 minutes.
Jerry Gilbert, the Corrections Officer who arrived at the scene while Grauerholz was being carried down the stairs, never spoke to Grauerholz nor did he touch her unless she accidentally brushed up against him as she was being carried from the porch to the car. At one point in her deposition, Grauerholz stated her belief that four officers carried her down the stairs. At another point, she testified that it might have three or four, that her memory was "muddled," and that she couldn't recall exactly.
When her case was tried in the Municipal Court of Coffeyville, she was convicted of battery of a law enforcement officer and disorderly conduct. She was found not guilty of resisting arrest. Grauerholz concedes she was found guilty "of something" and fined $260.
Grauerholz appealed her conviction to Montgomery County District Court. The charges were later dismissed on appeal.
Plaintiff saw her physician, Dr. Adnan Khan, on April 12, 1999. Although she subsequently mentioned the incident with the police when visiting Dr. Khan for other medical problems, this was the only time she saw Dr. Khan specifically for the incident with the police. Dr. Khan has testified that on April 12 Grauerholz came in and "wanted me to make sure that I documented the chart." Dr. Khan had previously examined Grauerholz — on March 3, 1999 and April 7, 1999 — for complaints with her knees and right shoulder, including pain she experienced when she lifted her right hand. During those visits Dr. Khan had recommended she see an orthopedic surgeon for possible arthroscopic surgery on her shoulder. During the April 7 visit, two days before the incident with the police, Grauerholz told Dr. Khan she was having increasing problems with her right shoulder. Dr. Khan scheduled her for physical therapy.
During Dr. Khan's April 12, 1999 examination of Grauerholz, he saw light bruises on her right forearm and her left thumb. He saw no other injuries that she did not previously have. There was no indication that her shoulder was injured by the police. Dr. Khan told Grauerholz she should go to the physical therapy that had been scheduled prior to the incident with the police. Dr. Khan felt no treatment was necessary for the light bruising. The worst that plaintiff received from the arrest was bruises, soreness and temporary aggravation of her arthritic symptoms which lasted at most two to three months.
Grauerholz did have a complaint of depression after the incident but not until April 23, 2001. Dr. Khan attributes this to"litigation stress."
Conclusions of Law
The defendants seeks summary judgment on grounds of qualified immunity. Officials alleged to have engaged in illegal conduct enjoy qualified immunity if their actions did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The court finds it must dismiss Grauerholz's 42 U.S.C. § 1983 claim of excessive force against the defendants. As a general matter, law enforcement officers may not use force which is excessive under objective standards of reasonableness. Graham v. Connor, 490 U.S. 386 (1989). Officers alleged to have used excessive force, however, enjoy qualified immunity if their actions did not violate the plaintiff's clearly established rights. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
Cautioning against "the 20/20 vision of hindsight" in place of the perspective of a reasonable officer on the scene," the Court in Graham noted that claims of excessive force require "attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." 490 U.S. at 396.
Defendants' motion raises a two-step inquiry. In the first step, the court must determine if the facts, taken in the light most favorable to plaintiff, show the defendants violated a constitutional right. Saucier, 150 L.Ed.2d at 281. The court proceeds to the second stage of inquiry only if it answers the first question in the affirmative.
This arises from the nature of the process of identifying and explicating constitutional rights. During the first step of the inquiry a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case. Saucier, 150 L.Ed.2d at 283.
The second step in the inquiry is to determine if the right allegedly violated was clearly established. The Supreme Court has stressed that this second element of qualified immunity analysis "must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. That is, the inquiry is not whether the officers violated a more general right to be free from excessive force, but the specific contours of the right allegedly infringed; whether, given the particular situation confronted by the officers in question, it would have been sufficiently clear to a reasonable official that the acts in question violated that right. Id. at 282 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Summary judgment will be granted on plaintiff's Section 1983 claim. Given the explicit "instruction to the district courts and courts of appeal" in Saucier, 150 L.Ed. at 285 to follow the two-step inquiry identified in the case, the court need not and does not determine the second stage of the qualified immunity inquiry. Here, the evidence before the court fails to demonstrate facts which, taken in the most favorable light, might indicate the officers' acts violated plaintiff's constitutional rights.
Plaintiff correctly notes that the officers were not presented with an emergency or life-threatening situation. At the same time, however, they were presented with a person who they had probable cause to arrest for both disorderly conduct and battery on a law enforcement officer. It is uncontrovered that the plaintiff could have left the stairs if she had chosen. She refused to do so. She never told the officers of any physical condition which carrying her might aggravate. She made no complaints as the officers carried her down the stairs. She complains that, when the officers stopped for breath on the porch, they dropped her, but she concedes the drop was "not a great distance" and there is no evidence of any injury arising from it. It is uncontroverted that she complained of the pain of being carried and having bursitis only when the officers carrying her had gotten close to the patrol car. No weapons were drawn; no blows were struck. There is no competent medical evidence of any significant or lasting injury to plaintiff. Other than light, temporary bruising to plaintiff's arms, plaintiff suffered no injury from the incident.
The Supreme Court has observed that "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. Here, the degree of "force" was extremely minimal. Indeed, other than giving up and not arresting her at all, it is hard to see what lesser degree of force the officers could have employed.
This leaves plaintiff's claims of negligent infliction of excessive force. The plaintiff incorrectly argues that the court has previously upheld this cause of action in a previous order, and thus the claim cannot be dismissed pursuant to the law of the case. This is incorrect. In the court's order of September 28, 2001 (Dkt. No. 52), it simply construed plaintiff's complaint to advance such a claim; the court explicitly observed that the viability of such a claim under Kansas law was not clear, but that the matter was not ripe because the defendants had not raised it.
Plaintiff's claim of negligent excessive force under Kansas law is subject to dismissal on the merits on either of two grounds: qualified immunity grounds (Kansas state law incorporates a version of qualified immunity under a catch-all provision in KSA 75-6104(i)) and because Kansas law simply does not permit such a claim. See Fuentes v. Thomas, 107 F. Supp.2d 1288 (D.Kan. 2000) (suggesting that a negligent use of force would be immunized under the Kansas Tort Claims Act, KSA 75-6103(a)). Accordingly, the court will also grant summary judgment as to plaintiff's state law claim.
IT IS ACCORDINGLY ORDERED this ____ day of February, 2002, that the defendants' Motion for Summary Judgment (Dkt. No. 54) is hereby granted.