312 F.3d 1304 (10th Cir. 2002), 01-4130, Olsen v. Layton Hills Mall

Docket Nº:01-4130.
Citation:312 F.3d 1304
Party Name:Carl Kipp OLSEN; Clair D. Olsen; Donna R. Olsen, Plaintiffs-Appellants, v. LAYTON HILLS MALL; The Copper Rivet; Cassi Gregg; I.P.C. International Security, a Utah Corporation; Layton City, a Utah municipal corporation; Davis County, a body politic; Bradley J. King, an individual; Steven Brown, an individual, Defendants-Appellees.
Case Date:December 11, 2002
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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312 F.3d 1304 (10th Cir. 2002)

Carl Kipp OLSEN; Clair D. Olsen; Donna R. Olsen, Plaintiffs-Appellants,

v.

LAYTON HILLS MALL; The Copper Rivet; Cassi Gregg; I.P.C. International Security, a Utah Corporation; Layton City, a Utah municipal corporation; Davis County, a body politic; Bradley J. King, an individual; Steven Brown, an individual, Defendants-Appellees.

No. 01-4130.

United States Court of Appeals, Tenth Circuit

December 11, 2002

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David W. Brown, West Valley City, UT, for Plaintiffs-Appellants.

Robert R. Wallace, Plant, Wallace, Christensen & Kannell, Salt Lake City, UT, for Defendant-Appellee Davis County; Andrew W. Morse, Snow, Christensen & Martineau (Richard A. Vazquez with him on the brief), Salt Lake City, UT, for Defendants-Appellees Layton City and Bradley J. King.

Before HARTZ, ALDISERT[*] and PORFILIO, Circuit Judges.

ALDISERT, Circuit Judge.

This appeal by Carl Kipp Olsen from summary judgments in favor of Appellees Officer Bradley J. King, Layton City and Davis County requires us to examine whether the district court properly shielded a police officer and two municipalities

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from an obsessive-compulsive disorder sufferer's 42 U.S.C. § 1983 claims. More specifically, we must determine whether the district court erred in: 1) granting summary judgment on the basis of qualified immunity to Appellee Officer King on Appellant's Fourth Amendment unlawful arrest and excessive force claims; and 2) granting summary judgment on the basis of qualified immunity to Officer King on Appellant's Eighth Amendment claim for deliberate indifference to a serious medical need--namely, a panic attack sparked by his obsessive-compulsive disorder ("OCD"). Additionally, we must decide whether the district court correctly granted summary judgment to Appellee Layton City based on the absence of an underlying constitutional violation, and to Appellee Davis County based on the absence of an unconstitutional policy regarding a failure to train on, or the deliberate indifference, to Appellant's OCD.

The district court had jurisdiction of the underlying action pursuant to 28 U.S.C. §§ 1331 and 1343. The appeal was timely under Rule 4, Federal Rules of Appellate Procedure. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

I.

A.

Carl Kipp Olsen took his two teenage sons shopping at Layton Hills Mall on December 7, 1997. At the Copper Rivet apparel store, Appellant tried to charge $114.46 worth of items with his Guitar City corporate Visa credit card. Because Copper Rivet's electronic card reader could not process the card, store clerk Cassie Gregg manually entered the card's data. After punching in the account number correctly, Gregg had inadvertently entered the wrong expiration date. Although the Visa card was valid and had not expired, the computer reader nonetheless declined it because of the clerk's typing error--the reason for rejection unbeknownst to either the Appellant or the clerk at the time of the attempted transaction.

Appellant then tried to charge the items with a Discover Card credit card bearing the name of his father Clair Olsen, who had previously authorized him to use the card. Appellant was unaware that his mother Donna Olsen had asked for a new card to be issued because of prior billing concerns. The clerk called Discover Card directly to authorize the account, but Discover Card informed her that Appellant was using the card fraudulently and that she should confiscate it. After Donna Olsen had complained about several unauthorized charges in 1996, Discover Card had in fact improperly listed the account as "fraudulent" without notifying or obtaining her or Clair Olsen's consent. Instead of retaining the Discover card, the clerk returned it to Appellant, who advised her that he would return with a personal check to pay for the purchases.

While Appellant was en route from the Layton Hills Mall to his home and back again, the Copper Rivet clerk contacted mall security about Appellant's attempted fraudulent credit card use. Mall security asked the clerk to notify them if Appellant returned to the store. About 30 minutes later, Appellant and his two sons indeed came back to the Copper Rivet, and Appellant paid for the items with a personal check. The store clerk nonetheless contacted mall security during the transaction. When Appellant tried to leave the mall with his merchandise and a receipt, mall security guards stopped him for allegedly using a fraudulent Discover card and held him without incident until the police arrived.

Layton City Police Officer Bradley King responded to the call. Upon arriving on

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the scene, Officer King spoke to mall security guard Cindy Tanner, who told him that Appellant tried to use fraudulently the Discover card at the Copper Rivet. Officer King asked that Appellant turn over the credit card. Protesting that he had done nothing wrong, Appellant initially refused but ultimately complied. He also demanded to see Officer King's supervisor. Without conducting an investigation of his own, Officer King placed Appellant under arrest based on the information that he had gathered. Appellant was charged with fraudulent use of a financial transaction card, possession of a stolen card, and interference with an arresting officer. Notably, Officer King tacked on this last charge immediately before he effectuated the arrest.

Officer King then attempted to handcuff Appellant, whose "muscles automatically tensed up" at the physical confrontation. Supplemental Appendix at 2. Although Officer King claims that he merely "maneuvered [Appellant] against a storefront window [to] gain[] the necessary leverage to handcuff him," App. at 216, Appellant contrarily contends that Officer King used excessive force when he shoved Appellant "a good 10, 12 feet," "slamm[ing him] up against the glass" of a store window. Id. at 173. Appellant also alleges that Officer King then pulled his arm behind his back in an awkward position in order to handcuff him, threatening to "take [him] to the ground" if he resisted. Id. at 172. Appellant claims that he never physically resisted during the exchange. Id. at 172-173.

Having successfully handcuffed Appellant, Officer King publicly led him through the mall to the Copper Rivet, where Officer King questioned Cassie Gregg about Appellant's use of the Discover card. At the store, Officer King also telephoned the Discover Card office and spoke to Heidi Crocker, who told him that their records listed the card as stolen. Appellant repeatedly asked Officer King to telephone his parents in Bullhead City, Arizona, to verify that the card was not fraudulent. Officer King refused to try to contact them, reasoning that he would be unable to determine whether the voices on the other end of the line were indeed Appellant's parents. Officer King did not inquire whether Appellant had paid for or received the Copper Rivet items.

Officer King brought Appellant to his squad car to take him to the Farmington City (Davis County) Jail. Appellant, who suffers from a medically diagnosed condition of obsessive-compulsive disorder ("OCD"), alleges that he had a panic attack en route to the jail and informed Officer King, but that King neglected to address Appellant's two pleas for assistance. App. at 176. Officer King could not recall whether Appellant mentioned anything about a panic attack. App. at 218.

Once at the Davis County facility, Appellant indicated on a medical screening sheet and told prebooking officers that he had OCD and required medication to stave off panic attacks. App. at 268. Prebooking officers erroneously noted on the sheet that he suffered from "CDC." Id. Davis County jail officers took Appellant's medication from him and insisted--per search procedure--that he remove his shoes and socks. Appellant recoiled at the request, refusing because of a fear of contamination from the dirty floor. Ultimately, Appellant acceded to the demand, but incurred another panic attack in the process. Id. at 178, 280. The prebooking officers also forced Appellant to be fingerprinted without heeding his concerns about cleanliness. Neither Layton City nor Davis County provides any training for handling individuals diagnosed with OCD. Id. at 275, 361-364. Davis County booking procedures incorporate an intake screening procedure

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for undefined mental illness or "psychiatric disorders," Id. at 361-364, but allow "health trained correctional deputies" to use their discretion in dealing with sundry "mental disorders." Id. at 283.

While Appellant was in custody, his parents called the jail to advise the officers about his OCD condition and the possibility of attacks. Learning that the officers had ignored Appellant's requests for aid and withheld medication from him, the Olsens called Discover Card to resolve the matter. Discover Card informed the Olsens that the company did not know of any fraudulent activity and that no holds had been placed on the card. Officer King's supervisor, Officer Steven Brown, learned the same information when he finally called Discover Card himself. Appellant posted a $2,950 bond and bailed out of jail immediately before the charges had been dropped.

B.

Alleging violations of their Fourth and Eighth Amendment rights, Appellant and his parents filed suit under 42 U.S.C. § 1983 in the district court against Defendants Layton Hills Mall; The Copper Rivet, Inc.; Novus Corp./Discover Card; Cassie Gregg; I.P.C. International Security Corporation; Davis County; Layton City; and Layton City police officers Bradley King and Steven Brown. All Defendants filed Motions for Summary Judgment. Appellant...

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