Dennen v. City of Duluth

• Citation: 350 F.3d 786
• Decision Date: 25 November 2003
• Docket Number: No. 02-2466.,02-2466.
• Parties: Nicholas DENNEN, Appellant, v. CITY OF DULUTH; S.R. Peterson; John Does, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

350 F.3d 786

Nicholas DENNEN, Appellant, v. CITY OF DULUTH; S.R. Peterson; John Does, Appellees.

No. 02-2466.

United States Court of Appeals, Eighth Circuit.

Submitted: March 14, 2003.

Filed: November 25, 2003.

COPYRIGHT MATERIAL OMITTED

Wilbur W. Fluegel, argued, Minneapolis, MN (Paul D. Peterson, Woodbury, MN, on the brief), for appellant.

M. Alison Lutterman, Deputy City Attorney, Duluth, MN, argued, for appellee.

Before WOLLMAN, RICHARD S. ARNOLD, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

While being followed by a City of Duluth Canine Unit, Nicholas Dennen fell into a ravine, sustaining serious injuries. He filed suit, alleging violations of 42 U.S.C. § 1983 and Minnesota state law. Upon the appellees' motion, the district court¹ granted summary judgment in their favor. We affirm.

I.

At the time of the accident, Dennen was a twenty-year-old University of Minnesota-Duluth honor student and football-team member. On the evening of September 26, 1998, Dennen attended a college party at 209 South 16th Avenue East in Duluth and consumed a large amount of alcohol. At approximately 1:35 a.m., City of Duluth police officers received a complaint alleging underage alcohol consumption at the party. Officer Tanski² first encountered Dennen, who he described as "extremely intoxicated with red, bloodshot eyes, slurred speech, and poor balance." Tanski instructed Dennen to take a preliminary breath test, which another officer was administering to other party participants outside. Dennen did not comply. Instead of taking the test, Dennen went upstairs. When Tanski searched upstairs, he found Dennen attempting to hide underneath a futon bed. Tanski repeated his instruction to Dennen to return downstairs and take the breath test. Dennen again did not comply and left the house.

At approximately 2:30 a.m., Officer Steven Peterson, who was on a routine patrol, saw Dennen walking north on 13th Avenue East about three blocks from the party location. Peterson was heading the opposite direction on the same street at the time. Citus, a police dog, accompanied Peterson in the patrol car.

According to Peterson, he observed Dennen behave curiously as Peterson drove by. Dennen carried a suspicious, but unknown object — possibly a white plastic bag. Peterson noticed that Dennen repeatedly glanced at him in a nervous fashion, and then moved his hand in order to conceal the object he carried. Suspicious, Peterson turned his vehicle around to get a closer look. Immediately, Dennen sprinted to the intersection of 13th Avenue East and East Fourth Street and then headed east. Peterson completed his Uturn and followed. However, when Peterson arrived at the intersection, Dennen had disappeared.

Peterson surveyed the area and surmised that Dennen must have returned south through the backyards of the homes on 13th Avenue East. At exactly 2:36:48 a.m. Peterson radioed the situation to the station, stopped his car, and decided to investigate. Peterson went on foot and brought Citus with him — as Peterson put it — for his own protection: "it was dark, the backyard areas were unfamiliar," and he was in an area known for some criminal activity. Moreover, he "was unsure of who the individual was, and what, if anything he was carrying." Because he was not tracking or apprehending Dennen, Peterson did not put Citus on a leash nor give him any commands.³

Peterson and Citus began to look for Dennen. After a few moments, Citus stopped and indicated that he had picked up a human scent from an unexpected direction — away from the houses and toward a wooded area. Citus and Peterson changed course to follow this scent. As they were running, Citus ran some distance ahead of Peterson — approximately fifteen-to-thirty feet. However, as soon as Citus entered the wooded area, Peterson commanded him to return. Citus slowed his pace, and then returned to Peterson. Upon Citus's return, Peterson leashed him.

At this point, Peterson and Citus were standing about fifteen-to-twenty feet from the edge of the wooded area. Peterson then heard movement from that area. He identified himself, announced Citus's presence, and ordered whomever was hiding in the woods to come out. Shortly after Peterson's announcement, Peterson heard the sounds of breaking brush and a loud crash. Peterson and Citus entered the woods. After doing so, Peterson and Citus came to the edge of a deep, muddy, and steep ravine. They descended about fifteen feet and then saw Dennen lying face-down in a creek bed, which was an additional thirty-five feet below them.

At 02:38:06 a.m. Peterson radioed the dispatcher and requested medical assistance. Tanksi and Officer M. Peterson,⁴ the two officers who were at the party, left the house and headed toward the river. After descending into the ravine, they found Dennen seriously injured. The officers attempted to resuscitate Dennen. Dennen was rushed to the hospital for treatment. Unfortunately, Dennen had suffered a severe head injury and remained in a coma for several weeks.

Toxicology reports later revealed the presence of barbiturates, amphetamines, and an alcohol level of .227 in Dennen's blood. Medical records reflected that Dennen had multiple small lacerations on his upper right arm, small abrasions and scratches on his elbows and forearms, and abrasions and punctures on both elbows and his left wrist. Dennen has no recollection of the events of September 26, 1998.

Dennen spent over a year in rehabilitation, and, although he has regained many of his physical and mental abilities, he still suffers from some of the effects of the brain injury. As a result, Dennen sued — among others — Peterson and the City of Duluth, alleging violations of 42 U.S.C. § 1983 and Minnesota state law. The City and Peterson moved for summary judgment, which the district court granted.

Dennen appeals the district court's summary-judgment order. Dennen first claims that Peterson's deployment of Citus without a leash was an excessive use of force in violation of the Fourth Amendment, thus creating § 1983 liability. He also argues that the deployment was a violation of Minnesota state law.⁵ Peterson denies these allegations and argues that he is protected under the doctrines of qualified immunity for his federal acts and official immunity for his state acts. We affirm.

II.

"We review de novo a grant of summary judgment, applying the same standard as the district court." Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir.2002) (citation omitted). "Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Thomas v. Union Pac. R.R. Co., 308 F.3d 891, 893 (8th Cir.2002) (citation omitted). In this diversity case, we also review the district court's interpretation of state law de novo. Walk v. Starkey Mach., Inc., 180 F.3d 937, 939 (8th Cir.1999) (citations omitted).

A.

Dennen first argues that the district court committed error when it granted summary judgment in favor of Peterson on his 42 U.S.C. § 1983 claim. In order to survive a motion for summary judgment under § 1983, Dennen must "raise a genuine issue of material fact as to whether (1) [Peterson] acted under color of state law, and (2) the alleged wrongful conduct deprived [Dennen] of a constitutionally protected federal right." Kuha v. City of Minnetonka, 328 F.3d 427, 432 (8th Cir.2003) (citation omitted). Peterson was acting under color of state law. Thus, this case turns on whether he deprived Dennen of his constitutional rights — specifically his Fourth Amendment right not to be subjected to an excessive use of force.

On appeal, Dennen specifically argues that Peterson used an excessive amount of force when he brought Citus with him off his leash after exiting the car. This excessive force claim "is analyzed under the Fourth Amendment's `objective reasonableness' standard." Kuha, 328 F.3d at 434 (citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). This test "is not capable of precise definition or mechanical application." Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). "[I]ts proper application requires careful 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." Graham, 490 U.S. at 396, 109 S.Ct. 1865 (citation omitted). In sum, "the nature and quality of the intrusion on the individual's Fourth Amendment interests [must be balanced] against the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

"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." Graham, 490 U.S. at 396, 109 S.Ct. 1865 (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). "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. at 396-97, 109 S.Ct. 1865. Thus, "the question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397, 109 S.Ct. 1865. (citations omitted). Finally, "[a]n officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable...