Summary
In Woods v. Jefferson County, 2003 U.S. Dist. LEXIS 605 (W.D. Ky. Jan. 8, 2003), the plaintiff sued the police department under 42 U.S.C § 1983 after he was injured during his arrest.
Summary of this case from State v. DavisOpinion
Civil Action No. 3:01CV-210-H.
January 8, 2003
MEMORANDUM OPINION
Plaintiff, Aaron Woods filed this complaint pursuant to 42 U.S.C. § 1983 arising out of his arrest on March 23, 2000, by Officer Robert P. Herman and others employed by the Jefferson County Police Department. He alleges excessive force by Officer Herman. Woods also alleges state tort causes of action for defamation, outrage, intentional infliction of emotional distress, malicious prosecution and assault and battery. Both Defendants have moved for summary judgment.
I.
Woods engaged in limited discovery consisting of interrogatories, request for admissions and request for production of documents. The only deposition of record is that of Woods himself taken by Defendants. The Woods' version of events differs in some important aspects from those of the officers. The Fiscal Court through the Internal Affairs Unit of the Jefferson County Police Department conducted its own investigation. During the investigation, Herman and three fellow platoon officers who assisted in the arrest of Woods gave compelled statements. The statements were acknowledged by the officers to be truthful responses. Each of the officers has given a similar version of events.
On March 23, 2000, Sgt. Steve Schmidt supervised his platoon's surveillance of a drug trafficking location in Jefferson County, Kentucky, with Herman. Officers Teddy Parks and Mike Waters assisted in the surveillance. Sgt. Schmidt and the other officers followed a vehicle which left that location. Schmidt followed the vehicle into the gas station lot. Parks went past the gas station and had to turn around and come back.
Schmidt's version is that he approached the vehicle and saw three subjects inside. The backseat passenger was Woods. Schmidt observed a bag of marijuana sitting in plain view on Woods' lap. Schmidt opened the backdoor of the vehicle, grabbed the marijuana and threw it on top of the car. Schmidt says that Woods suddenly lunged between the two front seats as if to grab something. Schmidt pulled him out of the vehicle through the backdoor while he was struggling and kicking and trying to stay in the vehicle.
Schmidt pulled Woods from the vehicle and took him to the pavement on his belly. Schmidt says that after being handcuffed behind his back, Woods got up from the ground and charged Schmidt head first. His head struck Schmidt's chest. Schmidt pinned him against the vehicle, took his feet out from under him and took him back down to the ground. At this time, Schmidt observed Herman and Waters coming toward him from a different location.
Schmidt saw Parks and Herman take Woods to the back of the car to search him. He observed Woods running and falling into the gas pumps. Herman and Parks picked up Woods and then they all fell to the ground again. They brought him to a car parked at the gas pumps and put him on the ground. Woods continued to kick and flail. Schmidt observed Herman standing over Woods with his foot on Plaintiff's rear end trying to hold him down. Schmidt did not observe Herman strike or kick Woods.
Officer Teddy Parks was the second officer on the arrest scene. He also provided a transcribed statement. As Parks pulled into the parking lot gas pumps, he observed Schmidt wrestling with Woods outside the vehicle. After the other occupants of the vehicle were removed and secured, Parks observed Woods running across the parking lot towards the gas pumps. He immediately gave foot chase and caught him about 10 feet away. Parks wrapped his arms around Woods and attempted to hold on to him. Almost instantaneously, Parks felt Herman "tackle" him from the back. All three fell to the ground.
Parks described Woods' constant struggle and resistance. During the entire time, Herman yelled at Woods to stop fighting. Parks observed no injuries suffered by Woods until he ran and was tackled. Parks punched Woods in the legs to prevent him from kicking while he was on the ground. Parks described Woods' movement as a constant struggle to get up off the ground. Parks used a second set of handcuffs to apply to Woods's ankles. Parks never observed Herman strike, punch or kick Woods during the entire episode.
Officer Mike Waters also assisted Herman. He was driving the vehicle with Herman as a passenger. He observed Schmidt tussling with a male subject. When he got to Schmidt, Waters picked up Woods and moved him to the rear of Parks' vehicle. Waters swept one of Woods' legs out from underneath him and eased him down to the ground by his arm.
While he was speaking to another subject, Waters heard something happen behind him. He observed Woods running from the rear of Parks' vehicle. As he was running away, Parks caught up with Woods and grabbed him around the back. Herman ran into the back of Officer Parks causing he and Woods to fall to the ground. He also saw Herman strike Woods and kneeing him while on the ground to prevent him from struggling and kicking. Waters also stated that Woods never lost consciousness at any time after the initial vehicle stop.
Defendant Herman also acknowledged a statement to the Internal Affairs Unit. Herman explained that as he and his partner Waters approached the vehicle stopped at the scene, he observed a male subject tackle Schmidt. He also observe Parks with his weapon pointed at the vehicle. After arriving at the scene, Herman took custody of Woods. As he was searching him and kneeling on the ground to finish taking unidentified pills out of Woods' socks, Woods pushed off the car and ran towards the carwash. As he was standing back up from a kneeling position, Herman observed Woods dragging Parks towards the gas pumps. Herman ran towards his partner and Woods and tackled them by grabbing both of them around the back. All three individuals hit the gas pump or its curb. Herman observed a cut over Woods' eye after they struck the ground.
Herman continued to yell commands to Woods to lay down and stay still. Woods continued to try to get back up. Herman and his partner attempted to take Woods over to a car. Woods struggled again and all three subjects fell into the car and then to the ground. While on the ground, Woods continued to attempt to kick and get off the ground. After handcuffing his ankles together Woods sat up on the ground.
After Woods had attempted to escape custody, Herman held Woods to the ground by kneeling on his back with his knees. Herman observed Woods' laceration injuries after the tackling incident. On the night of the arrest, Herman was dressed in plain clothes with a black jacket. After Woods was transported to the hospital with Herman accompanying him, Woods told Herman that he attempted to escape because he knew he was going to go to prison and did not want to go.
Woods was deposed on August 12, 2002. His testimony is quite limited and differs from the officers' version of events in several important aspects. However, it is his testimony which is most important in determining whether Defendant is entitled to qualified immunity. Woods acknowledged being in possession of illegal drugs, namely marijuana and Valium. He recalled that the first individual that he saw approaching the vehicle on that night was a white male with a fatigue jacket. That individual pulled him out of the car and slammed him on his face on the concrete. Woods stated that he did not struggle with the officer while he was taking him out of the car. He testified that he received the injuries to his right forehead and chin from the actions of the first officer pulling him out of the car. In his answers to interrogatories, Woods elaborated that Herman, after dragging him from the car "beat and kicked Plaintiff on the head, chest and upper torso areas."
Woods testified that the same officer first handcuffed him and then picked him up by his arms. Woods described himself as stumbling forward about "an inch" because he was bleeding and felt weak. He denied attempting to escape or run away from the officer. He says that he lost consciousness. He does not remember anything after stumbling forward until he regained consciousness at County Corrections. During the interim Woods was treated and released from a hospital emergency room.
Woods was indicted and subsequently pled guilty in Jefferson Circuit Court to trafficking in a controlled substance, assault 3, possession of marijuana, resisting arrest and escape third degree. In the narrative set forth on the guilty plea, Woods admitted that on March 23, 2000, he fought with police and escaped from police custody. The sentence imposed, pursuant to agreement, is being served concurrently with Woods' federal sentence on non-related trafficking charges.
II.
Woods alleges that Herman both pre and post-arrest deployed excessive force. Woods' excessive force claims against Herman are governed exclusively by the recognized Fourth Amendment objective reasonableness standard.
In Graham v. Conner, 490 U.S. 386 (1989), the Supreme Court held that all claims that law enforcement officers have used excessive force, deadly or not, should be analyzed under the Fourth Amendment and its reasonableness standards, rather than under a substantive due process approach previously used under the Fourteenth Amendment. The Fourth Amendment's objective reasonableness standard must be evaluated in light of the particular circumstances "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," and "must embody the allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are often tense, uncertain and rapidly evolving, about the amount of force that is necessary in a particular situation. Graham at 396-397.
In evaluating whether an officer's use of force is constitutional under Graham, the issue is whether it was objectively reasonable under all of the circumstances confronting the officer, not whether the officer violated a city or departmental policy. Smith v. Freland, 954 F.2d 343 (6th Cir. 1992). Whether an officer followed or violated police department policy and guidelines is not relevant under Graham.
Woods alleges that Herman received a written reprimand for violation of a departmental policy of the Jefferson County Police Department governing use of force in law enforcement actions. However, the receipt of a written reprimand from the Jefferson County Police Department for a violation of its use of force policy is not conclusive to whether or not Woods' Fourth Amendment rights were violated. More important, it does not necessarily create an issue of fact.
Closely related to the issue of summary judgment is the question of qualified immunity. The determination of whether qualified immunity applies to an official's action is a legal one. Dickerson v. McClellan, 101 F.3d 1151 (6th Cir. 1996). In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Supreme Court held that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Qualified immunity protects police officers "from undue interference with their duties and from potentially disabling threats of liability." Id. at 806.
The officers are entitled to the benefit of the doubt under the qualified immunity standard. See Hunter v. Bryant, 502 U.S. 224, 229 (1991). The qualified immunity standard "gives ample room for mistaken judgments by protecting all but the plainly incompetent and those who knowingly violated the law." The relevant inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999).
The Court must look to the actual record to find evidence which, if believed, would constitute clearly unlawful conduct. The evidence concerns two separate incidents: one concerned the force used to extract Woods from the car and the other concerns that used after his alleged attempted escape. The Court will view the latter events first.
A.
Woods does not remember any of the events which occurred after his alleged escape attempt. He does not ascribe any injuries to those events. He attributes his injuries to prior actions of the officers, Herman in particular. Moreover, during his guilty plea proceeding he admitted to attempted escape. Consequently, the only evidence of record concerning the events after the arrest are the statements of Herman and his fellow officers.
Herman admits to tackling Woods during the aftermath of his arrest. The material facts clearly established in the record disclose substantial grounds for Herman to have concluded that he had legitimate justification under the law for his action. A reasonable officer in Herman's position could have believed that "tackling" Woods preventing his escape was within the bounds of appropriate police responses. The force utilized by Herman in "tackling" the apparently fleeing Woods with an officer on his back seems reasonable under these circumstances. Perhaps Herman misjudged the situation, but the tackling was not excessive even if miscalculated. Herman's response was appropriate for a reasonable perception. The response was not calculated to cause injury, rather to stop a person thought to be fleeing. True, its incidental effect was to cut or bruise Woods' face on the pavement or curb. However, one cannot say that such force was excessive, because the nature of it relates so closely to a legitimate purpose — stopping the escape. Indeed Herman applied the force equally to Woods and Officer Parks. This is convincing evidence that Herman had no intent to harm Woods.
The Court concludes that insufficient evidence exists for a jury to find Herman's view of events unreasonable. Woods has no memory of events, therefore his testimony cannot be a factor. He points to the unsigned statements of several eyewitnesses. However, the Court cannot consider an unverified statement as evidence in support of Plaintiff's claims.
B.
Woods does remember the events of his arrest and immediately afterwards. However, his description is quite sparse.
In his deposition, Woods said that someone "pulled me out of the car and slammed me on my face on the concrete . . . Slammed me on my face out of the car." After Woods was on the ground, "he handcuffed my hands." The Court finds no other testimony regarding excessive force. However, in his answers to interrogatories, Woods adds a few critical elements. First, he identifies Herman as the officer who forcibly removed him from the car. Second, he adds that Herman "beat and kicked Plaintiff in the head, chest and upper torso" after Woods was "slammed" to the concrete. In his deposition, Woods says that he did not resist arrest or attempt escape.
The question for the Court is whether any of this exceeds the grounds for qualified immunity. The officers each say that Woods did not comply with their immediate orders. Therefore, to pull Woods forcibly from the car was not excessive force. The officers saw drugs and suspicious movements. To make an arrest in this fashion is surely reasonable. What is unreasonable is to hit and kick Woods in the head without provocation. The officers deny that these events occurred at all. Moreover, they say that Woods was resisting so that whatever force used was justified. Thus, there appears an inescapable difference of testimony, one version which clearly constitutes reasonable conduct and the other which may not be reasonable. Woods' injuries are consistent with either version. A jury could decide that such actions were unreasonable force.
The reasons for a jury to discredit Woods' version are numerous: his story differs from the officers present and charges Herman with acts at times Herman claims not yet to have arrived on the scene; he has a prior criminal record; he pled guilty to all the crimes, including escape; he changed his testimony to add allegations of beating and his identification of Herman; he claims unconsciousness; and he was under the influence of alcohol and drugs. However, no evidence disproves Woods' version of events. The case is essentially his word against that of Herman and his fellow officers and it is not the Court's prerogative at this stage to judge the credibility of witnesses. Even though the odds against Woods' case seem overwhelming, can one say that a reasonable jury could not believe Woods? At this point at least, the Court cannot simply disregard Woods' testimony as unbelievable.
III.
Under Kentucky law, a "battery" is any unlawful touching of another. An individual is liable for "assault" under Kentucky law if his acts intend to cause a harmful or offensive contact. Humphress v. United Parcel Service, Inc., 31 F. Supp.2d 1004, affrm'd. 172 F.3d 48, cert. den'd. 119 S.Ct. 1576 (1997).
The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person. KRS 503.050(1). The use of physical force by a defendant upon another person is justifiable when the defendant is authorized to act as a police officer and he believes the force is necessary to prevent the escape of a person from a correctional facility. KRS 503.090(3). Although the state statutes referred to are justifications in defense of criminal charges for use of physical force, the same principles apply to Woods' state law claim of civil battery.
Herman believed the force used to prevent Woods' escape from custody was necessary. However, the analysis of this claim is the same as that for qualified immunity. For those same reasons, the "assault and battery" claim survives.
IV.
Under Kentucky law, an action for false imprisonment lies only when the imprisonment lacks lawful authority, and where the arrest is made lawfully, the remedy is an action for malicious prosecution, in which malice and lack of probable cause are essential. Dean v. Earle, 866 F. Supp. 336 (W.D.Ky. 1994). Herman and his fellow officers had probable cause to arrest Woods for the offenses charged. Additionally, Woods pled guilty to the charges voluntarily with advice of counsel. Woods' arrest by Herman was lawful and no false imprisonment claim under applicable state law exists.
Woods has also failed to submit any evidence in support of his claim for malicious prosecution. Under state law, the elements necessary to establish the tort of malicious prosecution include: (1) the institution or continuation of original judicial proceedings, either civil or criminal, or of administrative or disciplinary proceedings; (2) by, or at the instance, of the plaintiff; (3) the termination of such proceedings in defendant's favor; (4) malice in the institution of such proceedings; (5) want or lack of probable cause for the proceeding; and (6) the suffering of damages as a result of the proceedings. Pennington v. Dollar Tree Stores, Inc., 28 Fed.Appx. 482 (6th Cir. 2002); Raine v. Drasin, 621 S.W.2d 895 (1981). Plaintiff must establish all six elements to prevail on a claim of malicious prosecution. He has failed to do so.
Here, the criminal proceedings which resulted from Woods' arrest, ended with a guilty plea. Woods pled guilty and was sentenced for a period of ten years to be served concurrently with unrelated federal charges. Additionally, the record evidence is clear that Herman had probable cause to arrest Woods for drug possession, trafficking in controlled substances, escape and resisting arrest. There is no record of evidence that Herman acted with malice, hatred or illegal motive in arresting Woods for the crimes charged.
V.
Under the law of the Commonwealth of Kentucky, the elements of defamation are: (1) defamatory language; (2) about the plaintiff; (3) which is published; and (4) which causes injury to reputation. Pennington v. Dollar Tree Stores, Inc., supra. Under Kentucky law, an arrestee's stipulation that probable cause existed for an arrest given in exchange for the dismissal of charges prevents an individual from asserting a defamation claim. Pennington, supra. Here, Woods' guilty plea to the charges placed by Herman precludes him from alleging that he was defamed. Additionally, Herman is qualifiedly immune from an action alleging defamation since he acted within the broad range of reasonable judgment accorded him. Greene v. Reeves, 80 F.3d 1101 (6th Cir. 1996). The publication of the criminal charges against Woods were true, as admitted by him, and do not constitute defamation.
VI.
To establish a claim for intentional infliction of emotional distress, one must show that (1) defendant's conduct was intentional or reckless; (2) the conduct is outrageous and intolerable in that it offends against generally accepted standards of decency and morality; (3) a causal connection exists between defendant's conduct and plaintiff's emotional distress; and (4) the emotional distress must be severe. Pennington, supra; Wells v. Huish Detergents, Inc., 19 Fed. Appx. 168 (6th Cir. 2001). Here, Herman's conduct in the post-arrest escape prevention of Woods was not outrageous nor did it offend generally accepted standards of decency and morality. There is no evidence that Woods has suffered from severe emotional distress, let alone received psychological treatment for any alleged emotional distress.
Under Kentucky law, in instances where a plaintiff has asserted claims of assault or battery, the tort of outrage is improper, as said tort was intended to function as a supplemental form of recovery where traditional common law actions failed to provide a remedy. Tapp v. Banks, 72 F. Supp.2d 739 (E.D.Ky. 1999), affm'd in part, reversed in part, 1 Fed. Appx. 344.
Under Kentucky law, the "outrage" element of the tort of intentional infliction of emotional distress is a deviation from all reasonable bounds of decency utterly intolerable in a civilized community. Restatement 2d of Torts, Section 46 comment. The tort of outrageous conduct or intentional infliction of emotional distress is not available for petty insults, unkind words and minor indignities, nor is it to compensate for behavior that is cold, callus, and lacking in sensitivity, but rather it is intended to redress behavior that is truly outrageous, intolerable, and which results in bringing one to his knees. Osborne v. Payne, Ky., 31 S.W.3d 911 (2000); Kroger Company v. Willgruber, Ky., 920 S.W.2d 61 (1996); Humana of Kentucky, Inc. v. Seitz, Ky., 796 S.W.2d 1 (1990).
No facts support Woods' claims for outrageous conduct or intentional infliction of emotional distress. Woods failed to produce any facts which establish the requisite elements of these claims.
VII.
Woods has presented no facts to support a claim against the Jefferson County Fiscal Court. There is no evidence that the Fiscal Court allow inadequate training or condoned any other constitutional violations. Woods does not seriously challenge this view.
The Court will enter an order consistent with this Memorandum Opinion.
ORDER
Defendants, Robert P. Herman and the Jefferson County Fiscal Court, have moved for summary judgment. The Court being otherwise sufficiently advised,
IT IS HEREBY ORDERED that the summary judgment motion is SUSTAINED as to Jefferson County Fiscal Court and Plaintiff's complaint against it is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the summary judgment as to Robert Herman is SUSTAINED IN PART and Plaintiff's claims of false imprisonment, defamation and intentional infliction of emotional distress are DISMISSED WITH PREJUDICE. The motion is DENIED IN PART and Plaintiff's claims for use of excessive force and battery remain.