Summary
holding that Heck barred plaintiff's false arrest and imprisonment claim where plaintiff previously plead no contest to a domestic assault charge arising from the same confrontation with police
Summary of this case from Schreiber v. MoeOpinion
Case No. 1:01-CV-160
June 6, 2002
OPINION
Plaintiff, Ramon Ramirez ("Ramirez"), has sued Defendants, Dwain Dennis ("Sheriff Dennis"), the Ionia County Sheriff, James Tompkins ("Deputy Tompkins"), a deputy in the Ionia County Sheriff's Department, and Michael D. Seinen ("Sgt. Seinen"), a sergeant in the Ionia County Sheriff's Department, alleging claims under 42 U.S.C. § 1983 for excessive force and false arrest. The claims arise out of an arrest of Ramirez on July 9, 1999. Ramirez has also asserted a claim for improper training. Now before the Court is Defendants' motion for dismissal and summary judgment. For the reasons stated below, the Court will grant the motion and dismiss the case.
I. Facts
On July 9, 1999, Sgt. Seinen and Deputy Tompkins of the Ionia County Sheriff's Department responded to a call regarding a domestic assault at 3244 Whitford Road in Orleans, Michigan. Ramirez and his wife, Mary, owned the land and the house trailer located at 3244 and owned and resided in the house situated on the adjacent property at 3248 Whitford Road, approximately thirty yards to the north of the house trailer. Upon arriving at the house trailer, Sgt. Seinen and Deputy Tompkins conducted interviews of witnesses, including Ramirez, and subsequently arrested Ramirez at his house.
The facts surrounding the incident at the house trailer are largely undisputed and quite unfortunate. As of July 9, 1999, Ramirez's adult son, Ricardo Ramirez ("Rick"), had been living in the house trailer with his then-girlfriend, Lori Palmer ("Lori"), for several months. It appears that Rick and Lori both habitually abused prescription drugs and that Lori had checked herself out of a drug treatment center earlier that day without completing the program. That evening, Ramirez went to the house trailer at Rick's request to give Rick a neck massage to help relieve a migraine headache. While Ramirez was giving Rick the massage, Lori's two daughters, Rebecca and Melinda Seidelman, who lived elsewhere, arrived at the trailer and attempted to persuade Lori to leave the house trailer and break off her relationship with Rick. Rick began to yell at the girls but then turned on Ramirez when Ramirez suggested that Rick allow Lori to leave for the night with her daughters. Ramirez also told Rick that he and Lori would have to "straighten up" or find a new place to live within a couple of weeks. Rick then approached Ramirez and called him a "fucking punk." In response, Ramirez slapped Rick across the face. Rick screamed at Ramirez, daring him to it again; Ramirez did it again. As Ramirez turned and walked to the door, Rick began to yell at him again, and Ramirez slapped Rick across the face a third time. After Ramirez left, Rick called 911 and stated, "my dad's over here beating the shit out of me."
When Sgt. Seinen and Deputy Tompkins arrived at the scene, they interviewed Rick, Lori, and Rebecca and Melinda Seidelman. Sgt. Seinen then left the house trailer to interview Ramirez, who was sitting on the front porch of his own house. Ramirez told Sgt. Seinen that he had slapped his son three times at the house trailer because his son had called him a "fucking punk." Sgt. Seinen returned to the house trailer and, after conferring with Deputy Tompkins, made the decision to arrest Ramirez based upon his admitted slapping of Rick.
Because some of the facts regarding the arrest are in dispute, the Court will first set forth Ramirez' version of events upon which the motion must be decided, and then set forth the officers' version of events.
Sgt. Seinen and Deputy Tompkins followed Mary Ramirez to 3248 Whitford Road in order to arrest Ramirez. Ramirez was sitting in a chair in his living room when his wife, followed by the officers, entered the house and told him that the police had decided to arrest Ramirez. Ramirez responded, "no, they're not going to arrest me," in a normal tone of voice. (Mary Ramirez Dep. at 32, attached to Pl.'s Br. Opp'n.) When the officers entered the room, Sgt. Seinen approached Ramirez and told Ramirez that they had to arrest him. (Ramirez Dep. at 41-42, Defs.' Br. Supp. Ex. 6.) Ramirez, believing that he had not done anything wrong, told the officers that they were not going to arrest him. (Id. at 43.) Ramirez then asked Sgt. Seinen what he would do if someone called him a "fucking punk." and Sgt. Seinen replied that he would not assault the person. (Id. at 44.) Ramirez asked Deputy Tompkins the same question, and Deputy Tompkins stated that he would not assault the person. Ramirez told the officers that he would contact his attorney on Monday and get everything worked out. (Id. at 46.) Ramirez again told the officers that they were not going to arrest him. (Id. at 47.) At some point while he was sitting down, Ramirez told the officers that they were trespassing and ordered them to get out of his house. (Id. at 48-49.)
After a couple of minutes, Ramirez stood up in order to go to the kitchen (Id. at 48.) Ramirez walked toward the kitchen, and Deputy Tompkins was standing to one side of the doorway. (Id. at 49.) Ramirez kept his hands to his side as he walked into the kitchen. (Id. at 50.) As Deputy Tompkins and Sgt. Seinen followed Ramirez into the kitchen, they called for assistance from Michigan State Police Trooper Paul Neal, who had since arrived at the scene. In the kitchen, Ramirez raised his hands and said, "don't cuff me, I'll go with you." (Id. at 51-52.) Ramirez claims that he raised his arms because at that point he realized the officers were serious about arresting him. (Id. at 53.) After Ramirez raised his arms, he felt the first physical contact from the officers, who were standing behind him, as they took his arms and brought them down to his side. (Id. at 55-56.) Ramirez claims that Sgt. Seinen and Deputy Tompkins started kneeing him with their knees on his sides. (Id. at 55.) Ramirez does not know whether the officers were then attempting to handcuff him. (Id. at 56.) Ramirez clams that he was struggling to stand up and to keep his balance. (Id. at 57.) At that point, Trooper Neal, who had entered the kitchen through the sliding glass door, sprayed pepper spray (Freeze Plus) in Ramirez' face. (Id. at 59-60.) Ramirez testified that he lost control after being sprayed in the face, and the officers continued to knee him in the leg. (Id. at 60-64.) The officers pushed and tripped Ramirez to get him down to the ground. (Id. at 65.) Ramirez fell to the ground on his head. (Id.) The officers placed handcuffs on Ramirez, but Ramirez does not known when that occurred. (Id.) The officers lifted Ramirez to his feet, placed him in the patrol car, and transported him to the Ionia County Jail. During the ride, the officers told Ramirez that he was a "tough geezer" and a "strong man." (Id. at 70-71.)
Sgt. Seinen and Deputy Tompkins have a different story. While Ramirez was sitting in the chair, Sgt. Seinen told Ramirez, for about the fourth time, that he had probable cause to arrest him for domestic assault and told Ramirez that he was under arrest. (Seinen Dep. at 60, Defs.' Br. Supp. Ex. 1.) Ramirez stood up and told the officers that he was not going to jail. (Id. at 60-62; Tompkins Dep. at 44, Defs.' Br. Supp. Ex. 2.) Ramirez was agitated and began speaking loudly. (Seinen Dep. at 61.) As he approached Sgt. Seinen, Ramirez turned to Deputy Tompkins and told him to leave the house. Ramirez continued to approach Deputy Tompkins, and Deputy Tompkins put his hand on Ramirez' chest and told him to sit down. (Id. at 63.) While Ramirez was talking to Deputy Tompkins, Sgt. Seinen attempted to place handcuffs on Ramirez and Ramirez pulled away. (Id. at 64-65.) At this point, Sgt. Seinen grabbed Ramirez' right arm and Deputy Tompkins grabbed his left arm. (Id. at 69.) Ramirez began to struggle and pulled his arms inward trying to break free. (Id.) During the struggle, Trooper Neal entered the kitchen and observed Ramirez struggling with the officers as they attempted to handcuff him. Sgt. Seinen told Trooper Neal that Ramirez did not want to be handcuffed. Trooper Neal pulled out his pepper spray and told Ramirez to put his hands behind his back. (Neal Dep. at 15, Defs.' Br. Supp. Ex. 4.) Trooper Neal repeated the command again, and when Ramirez failed to comply, Trooper Neal sprayed Ramirez with pepper spray. (Id. at 15-16.) The officers claim that they administered two or three knee strikes to Ramirez' left common peroneal nerve in order to take Ramirez, who was still struggling, to the ground for handcuffing. (Id. at 17-18; Tompkins Dep. at 55.) Deputy Tompkins used a straight arm bar takedown technique to get Ramirez to the ground. (Neal Dep. at 18.) The officers claim that Ramirez did not agree to go with them until after he was on the ground. (Seinen Dep. at 71-72; Tompkins Dep. at 48.)
Ramirez was subsequently charged with the misdemeanor offense of domestic assault in violation of M.C.L. § 750.81. Ramirez was represented by a lawyer. He pled no contest to the charge and received probation and a fine in the amount of $540.00.
II. Summary Judgment Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id.
The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986)).
III. Discussion
A. False Arrest/lmprisonment
In his first claim, Ramirez alleges that Sgt. Seinen and Deputy Tompkins violated the Fourth Amendment because they lacked probable cause to arrest and imprison him. Ramirez contends that there is sufficient evidence on this claim to create a genuine issue of material fact for the jury. The Court need not consider his evidence, however, because the claim is barred pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). In Heck, the Supreme Court held that a plaintiff who seeks damages based upon an unlawful conviction or other conduct which, if established, would render the conviction or sentence invalid, must "prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87, 114 S.Ct. at 2372.
Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to suit.Id. at 487, 114 S.Ct. at 2372-73 (footnotes omitted).
Ramirez pled no contest to the domestic assault charge, but now seeks a determination that there was no probable cause for the arrest and conviction. A verdict for Ramirez under these circumstances would necessarily imply the invalidity of the state court conviction and sentence because it would undermine the basis for the domestic assault charge. In fact, Defendants have cited three unreported decisions by the Sixth Circuit holding that Heck barred the plaintiffs from proceeding with their § 1983 claims to those cases on the basis of their nolo contendere pleas. See Nicholson v. City of Westlake, No. 01-3144, 2001 WL 1178332, at *1 (6th Cir. Sept. 24, 2001) ("Nicholson's Fourth Amendment claim is not cognizable because a ruling in Nicholson's favor would necessarily imply the invalidity of his conviction."); Peterson Novelties, Inc. v. Clinton Township, No. 98-2083, 2000 WL 1091487, at *2 (6th Cir. July 27, 2000) (per curiam) (holding that the plaintiff's false arrest and malicious prosecution claims were barred under Heck by the plaintiff's plea of no contest); Martin v. Girard, No. 98-1215, 2000 WL 658326, at *2 (6th Cir. May 12, 2000) ("Because the Martins pleaded guilty to charges of failure to obey a lawful order of a traffic control officer, the portion of their Fourth Amendment claim concerning the lawfulness of their arrests is not cognizable under the rule of Heck v. Humphrey"). Although these cases are not binding on the Court, their rationale is persuasive. In addition, to the best of this Court's knowledge, every court that has applied Heck to a no contest plea where Fourth Amendment violations are alleged has concluded that such claims are barred until the state court conviction is overturned or otherwise invalidated. See Small v. St. Tammany Parish Sheriff, No. CIV. A. 00-3441, 2002 WL 519804, at *2 (E.D.La. Apr. 2, 2002) (holding that the plaintiff's no contest plea precluded his malicious prosecution and excessive force claims under Heck); Fritz v. City of Corrigan, 163 F. Supp.2d 639, 641 (E.D.Tex. 2001) (holding that the plaintiff's claim contesting the factual basis of his nolo contendere plea was barred under Heck but that the plaintiff's claim based upon thirty-minute detention at gunpoint was not barred); Alatraqchi v. City and County of San Francisco, No. C-99-4569 PJH, 2001 WL 637429, at *2 (N.D.Cal. May 30, 2001) ("Under Heck, plaintiffs `no contest' plea is significant merely by the fact of its existence, and by the fact that it resulted in a criminal conviction."); Coverdale v. Ewasko, No. Civ A. 98-228-GMS, 2000 WL 1897289, at *2 (D.Del. Dec. 22, 2002) (same); Nuno v. County of San Bernadino, 58 F. Supp.2d 1127, 1135-38 (C.D.Cal. 1999) (same).
Ramirez concedes that his claim is contrary to Sixth Circuit decisions but notes the issue has not been decided by the Supreme Court. Ramirez points out that Heck involved a conviction after trial rather than a no contest plea. Ramirez argues that a no contest plea must produce a different result because evidence of a no contest plea is inadmissible against the defendant who made the plea under Rule 410(2) of the Federal Rules of Evidence. This same argument has been raised by other plaintiffs attempting to avoid the bar of Heck and has been consistently rejected because Rule 410 precludes use of a no contest plea to establish guilt in a subsequent criminal or civil proceeding but does not preclude use of a no contest plea solely to establish the fact of the conviction. Olsen v. Correiro, 189 F.3d 52, 58-62 (1st Cir. 1999) (noting that the exclusion to Rule 410 would apply if "convictions and sentences were offered for the purpose of demonstrating that the pleader is guilty of the crime pled to," but would not apply "when the conviction and sentence are used to show nothing more than the fact of a valid sentence and conviction");Alatraqchi, 2001 WL 637429, at *2 (rejecting the plaintiff's argument that Rule 410 precluded use of the plaintiff's no contest plea because the defendant sought to use the plea not as evidence of guilt but rather to show the mere fact of its existence). The Sixth Circuit has adopted the same interpretation of the rule. In Walker v. Schaeffer, 854 F.2d 138 (6th Cir. 1988), the court held that Rule 410 does not prohibit the use of no contest pleas in a subsequent civil action in which the person who entered the plea is the plaintiff. Id. at 143. Therefore, this claim must be dismissed.
Even if Ramirez' false arrest/imprisonment claim was not barred under Heck, it would be barred under the doctrine of issue preclusion.Walker, 854 F.2d at 142-43.
B. Excessive Force
Ramirez' second claim is that Sgt. Seinen and Deputy Tompkins violated his Fourth Amendment right to be free from unreasonable searches and seizures by using excessive force in arresting Ramirez. Sgt. Seinen and Deputy Tompkins argue that they are entitled to summary judgment on this claim because Ramirez's claim fails as a matter of law and because they are entitled to qualified immunity. Because the qualified immunity inquiry requires a determination of whether the plaintiff has presented evidence showing that a constitutional violation occurred, the Court will consider each of Defendants' arguments as part of its qualified immunity analysis.
Qualified immunity shields "[g]overnment officials performing discretionary functions" from liability for civil damages "as long as their conduct `does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'"Poe v. Haydon, 853 F.2d 418, 423 (6th Cir. 1988) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2735 (1982)). A law enforcement officer is entitled to qualified immunity if "a reasonable officer could have believed [his actions] to be lawful, in light of clearly established law and the information the officer possessed."Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040 (1987). A plaintiff who seeks to hold an official protected by qualified immunity liable must: (1) identify "a clearly established right alleged to have been violated"; and (2) establish that "a reasonable police officer in [the] defendant[']s position should have known that the conduct at issue was undertaken in violation of that right." Johnson v. Estate of Laccheo, 935 F.2d 109, 111 (6th Cir. 1991); see also Watkins v. City of Southfield, 221 F.3d 883, 887 (6th Cir. July 21, 2000). The Supreme Court has clarified that a court's initial task in evaluating a qualified immunity defense is to determine whether the plaintiff has alleged the deprivation of a constitutional right. Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 1697 (1999). The Sixth Circuit has described the procedure for determining qualified immunity as follows:
The procedure for evaluating claims of qualified immunity is tripartite: First, we determine whether a constitutional violation occurred; second, we determine whether the right that was violated was a clearly established right of which a reasonable person would have known; finally, we determine whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc) (citingDickerson v. McClellan, 101 F.3d 1151, 1157-58 (6th Cir. 1996)).
To be clearly established, "the law must be clear in regard to the official's particular actions in the particular situation." Long v. Norris, 929 F.2d 1111, 1114 (6th Cir. 1991). "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing" violates federal law. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039 (1987). While replication of the official's specific conduct is not required to overcome qualified immunity, "`pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.'" Saylor v. Bd. of Educ., 118 F.3d 507, 515 (6th Cir. 1997) (quoting Lassiter v. Ala. A M Univ., 28 F.3d 1146, 1150 (11th Cir. 1994) (en banc)). In the Sixth Circuit, courts look first to decisions of the Supreme Court, then to decisions of the Sixth Circuit and other courts within the Sixth Circuit, and finally to decisions of other circuits. See Gardenhire v. Schubert, 205 F.3d 303, 311 (6th Cir. 2000).
In Saucier v. Katz, 533 U.S. 194, 111 S.Ct. 2151 (2001), the Court addressed the qualified immunity inquiry in the context of a Fourth Amendment claim. The Court stated that the initial inquiry must be as follows: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. 201, 121 S.Ct. at 2156. If the answer to the first question is yes, the next question is whether that right was clearly established, an "inquiry [that] must be undertaken in light of the specific context of the case, not as a broad general proposition."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. . . . If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Id. at 202, 121 S.Ct. at 2156-57.
1. Whether Ramirez' Fourth Amendment Rights Were Violated
Ramirez' excessive force claim must be analyzed under the Fourth Amendment's standard of objective reasonableness. Graham v. Connor, 490 U.S. 386, 395-96, 109 S.Ct. 1865, 1871 (1989). This standard must be applied in light of the reality that "police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving." Id. at 397, 109 S.Ct. at 1872. Thus, "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. at 396, 109 S.Ct. at 1872. In determining whether an officer's actions were reasonable, a court must examine the specific facts of the case. Kostrzewa v. City of Troy, 247 F.3d 633, 639 (2001) (citing Graham). Factors that bear on the issue are: (1) the severity of the crime at issue; (2) whether the suspect posed an immediate threat to the safety of the officers or others; and (3) whether the suspect is cooperating or is actively resisting arrest or attempting to flee. Id.
These principles, applied to the evidence construed in favor of Ramirez, establish that Sgt. Seinen and Deputy Tompkins did not use excessive force in arresting Ramirez. The evidence shows that when the officers entered Ramirez' home, they had probable cause to arrest him for a domestic assault upon his son, Rick. The officers informed Ramirez at least twice that they were going to arrest him and gave him sufficient opportunity to voluntarily comply. In response to their statements, however, Ramirez conveyed to the officers in unmistakable terms that he would not cooperate.
Ramirez first told the officers that they were not going to arrest him. He then asked each officer what they would have done if somebody called them a "fucking punk", thus demonstrating his understanding of the basis for the arrest. Finally, just before he stood up to go into the kitchen, Ramirez told the officers that they were trespassing and instructed them to leave. Ramirez then stood up and walked past the officers into the kitchen without saying anything. At that point, the officers had no reason to believe that Ramirez would be cooperative and could reasonably anticipate that it would be necessary to use some force in order to detain and handcuff Ramirez. Moreover, for all the officers knew, Ramirez, having told them to get out, may have been going to retrieve a gun, knife, or some other weapon. While Ramirez claims that once in the kitchen he raised his hands and said "don't cuff me, I'll go with you," these words were ambiguous at best: Did Ramirez mean that he would submit to an arrest only if the officers did not handcuff him or did he mean that he would do whatever he was instructed? Given the ambiguity, and especially in light of Ramirez' immediately preceding words and conduct, a reasonable officer on the scene could have reasonably understood Ramirez to be saying that he would comply only if handcuffs were not required. It was thus reasonable for the officers to grab Ramirez' arms in order to handcuff him. Ramirez claims that he was struggling to stand up and keep his balance. At the same time, however, the officers were trying to get Ramirez to the floor to be handcuffed. Under the circumstances, the officers could have reasonably interpreted Ramirez' struggling conduct as resistance to being handcuffed. See Dixon v. Richer, 922 F.2d 1456, 1462 (10th Cir. 1991) (stating that the plaintiff's response of turning around and swearing at the officer could be reasonably interpreted by the officer as an act of resistance). The fact that Ramirez sustained injuries when he finally hit the floor does not render the officers' use of force excessive because the officers were still attempting handcuff Ramirez at that point. See Brandt v. Davis, 191 F.3d 887, 892 (8th Cir. 1999) (stating that "if the complaining party's injuries are likely explained by the arrestee's own actions, the allegations cannot create a material fact issue as to whether the arresting officer used excessive force"). Moreover, there is no evidence that Ramirez was handcuffed prior to hitting the ground, and Ramirez' testimony does not contradict the officers' testimony that they handcuffed Ramirez on the ground. Under these circumstances, the amount of force used was not excessive. See Heggestad v. D.C., No. 93-7196, 1995 WL 35311, at *2 (D.C. Cir. Jan. 12, 1995) (per curiam) (concluding that force was not excessive even though the officer threw the plaintiff against a parked car, handcuffed him, and, despite a lack of resistance from the plaintiff, threw the plaintiff back against the squad car, where the plaintiff refused to comply with a direct instruction from the officer).
Ramirez argues that summary judgment cannot be granted because the following issues are in dispute: (1) whether Ramirez was avoiding arrest when he walked toward the kitchen; (2) whether Ramirez submitted to the arrest in the kitchen; (3) whether the struggle between Ramirez and the officers constituted resistance or an attempt by Ramirez to avoid being hurt or thrown to the floor; and (4) whether it was necessary to use pepper spray during the arrest. (Pl.'s Br. Opp'n at 16.) The first three issues have been addressed above. First, at the time he stood up and went into the kitchen, Ramirez had already indicated his intention not to cooperate with the officers. Second, while Ramirez did agree to submit to arrest, the officers could have reasonably interpreted his words as a conditional submission. Thus, the officers were entitled to use some force. Third, while Ramirez claims that by struggling to stand up he was only trying to protect himself, it is undisputed that Ramirez was not handcuffed at the time and the officers were attempting to place him on the floor in order to handcuff him. Given Ramirez' prior statements to the officers, their use of force to subdue him was reasonable. As the Supreme Court has noted, "`[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' violates the Fourth Amendment." Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872 (quotingJohnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)) (citation omitted). The final issue presented by Ramirez whether the use of pepper spray was necessary — does not preclude summary judgment because it is undisputed that neither Defendant used pepper spray on Ramirez and that they did not instruct Trooper Neal to do so. (Ramirez Dep. at 59.) Ramirez has not sued Trooper Neal and he has not any persuasive reason why Defendants could be held liable for Trooper Neal's actions.
At oral argument, Ramirez' counsel cited Sgt. Seinen's testimony that if Ramirez had actually made the statement, "I will go with you, just don't cuff me," he would have explained the Sheriff's Department policy that all arrestees must be handcuffed, to demonstrate that the force used was excessive. Ramirez argues that because the officers failed to follow the policy of advising arrestees that handcuffing is required, any use of force was unreasonable. In other words, Ramirez suggests that the officers' own conduct in ignoring the Sheriff's Department policy created the need to use force. However, "[o]fficers need not avail themselves of the least intrusive means of responding to an exigent situation." Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). See also Menuel v. City of Atlanta, 25 F.3d 990, 996 (11th Cir. 1994) ("There is no precedent in this Circuit (or any other) which says that the Constitution requires law enforcement officers to use all feasible alternatives to avoid a situation where deadly force can justifiably be used."). As the Tenth Circuit recently observed, "if we were to consider the expert's assertions regarding the failure to use pepper spray and other tactical measures, we would be evaluating the officers' conduct from the 20/20 perspective of hindsight rather than from the perspective of an officer making split-second judgments on the scene."Medina v. Cram, 252 F.3d 1124, 1133 (10th Cir. 2001). Ramirez' argument must be rejected because it raises the same concerns noted by the Tenth Circuit in Medina, i.e., it requires the same 20/20 hindsight analysis eschewed by the Supreme Court rather than an examination of what actually occurred, as the law requires. Moreover, regardless of whether the officers followed correct procedure, there was no constitutional prohibition against applying handcuffs. See Soares v. Conn., 8 F.3d 917, 921 (2d Cir. 1993) (noting the absence of any case law holding that a person has a constitutional right not to be handcuffed in the course of an arrest). Thus, the officers were entitled to use a reasonable amount of force in order to apply handcuffs.
There is no evidence in the record that the need for force could have been avoided if the officers had explained to Ramirez that handcuffing was required. In other words, Ramirez has not asserted either by affidavit or through his deposition testimony that he would have agreed to being handcuffed if the officers had told him that handcuffing was required.
The policy for explaining the requirement of handcuffing to arrestees is not a part of the record before the Court. There is no indication whether the policy was mandatory or whether is was discretionary in the sense of simply recommending that officers explain the handcuffing policy.
2. Whether the Right Was Clearly Established
Even if the officers used excessive force in affecting the arrest, Defendants would still be entitled to summary judgment because the contours of the right were not clearly established. While it is clearly established that a police officer may not use excessive force to make an arrest, the law must make it clear to a reasonable officer that his actions in the particular instance violate the plaintiff's constitutional rights. Saucier, 533 U.S. at 201, 121 S.Ct. at 2156.
Ramirez cites Bass v. Robinson, 167 F.3d 1041 (6th Cir. 1999), as support for his claim that the officers' use of force in this case was unreasonable. In that case, the plaintiff alleged that as he was walking down the street, a police officer ordered him to stop and he complied with the officer's command. The plaintiff further alleged that in spite of his cooperation, the officer put him in a headlock and slammed his head against a tree several times. The Sixth Circuit held that the district court erred in granting summary judgment to the police officer on the plaintiff's excessive force claim. The court held that the plaintiff presented sufficient evidence to create a genuine issue of material fact and that the plaintiff's evidence, if credited by the trier of fact, could support a finding of excessive force. Id. at 1045-46.Bass is easily distinguishable from this case because the plaintiff there alleged that when the police officer told him to stop he did so. In contrast, Ramirez admits that when Sgt. Seinen and Deputy Tompkins told Ramirez that they were going to arrest him, Ramirez told them that they were not going to arrest him and ordered them out of his house. Unlike the plaintiff in Bass, the evidence here, construed in favor of Ramirez, shows that the officers could have reasonably believed that Ramirez was not cooperating with them. While the right to be free from excessive force is clearly established, Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir. 2001), Ramirez has not cited, nor has the Court found, a case that would alert a reasonable officer in the specific circumstances presented that using force to handcuff an arrestee who has not clearly indicated an intent to cooperate is an constitutionally unreasonable use of force. Therefore, Sgt. Seinen and Officer Tompkins did not violate any clearly established right.
C. Failure to Train
The Court will grant summary judgment to Sheriff Dennis on Ramirez' failure to train claim as Ramirez "agrees that the record contains insufficient evidence that Sheriff Dennis failed to properly train Seinen and Tompkins" and concedes that "this claim should be dismissed." (Pl.'s Br. Opp'n at 20.)
IV. Conclusion
For the foregoing reasons, the Court will grant Defendants' motion for summary judgment and dismiss the case.
An Order consistent with this Opinion will be entered.
ORDER
In accordance with the Opinion filed this date,
IT IS HEREBY ORDERED that Defendants' Motion for Dismissal and Summary Judgment (docket no. 23) is GRANTED.
This case is closed.