Dunigan v. Noble

• Decision Date: 29 November 2004
• Docket Number: No. 03-1304.,03-1304.
• Citation: 390 F.3d 486
• Parties: Elois DUNIGAN, Plaintiff-Appellant, v. Scott NOBLE, Public Safety Officer, and Percy Jenkins, Public Safety Officer, Jointly and Severally, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

390 F.3d 486

Elois DUNIGAN, Plaintiff-Appellant, v. Scott NOBLE, Public Safety Officer, and Percy Jenkins, Public Safety Officer, Jointly and Severally, Defendants-Appellees.

No. 03-1304.

United States Court of Appeals, Sixth Circuit.

Argued: June 10, 2004.

Decided and Filed: November 29, 2004.

Rehearing Denied January 4, 2005

COPYRIGHT MATERIAL OMITTED

ARGUED: Douglas A. Merrow, Law Office of Douglas A. Merrow, Portage, Michigan, for Appellant. Mary Massaron Ross, Plunkett & Cooney, Detroit, Michigan, for Appellees. ON BRIEF: Douglas A. Merrow, Law Office of Douglas A. Merrow, Portage, Michigan, for Appellant. Mary Massaron Ross, Plunkett & Cooney, Detroit, Michigan, for Appellees.

Before: SILER, MOORE, and BALDOCK, Circuit Judges.^*

BALDOCK, J., delivered the opinion of the court, in which SILER, J., joined. MOORE, J. (pp. 497-500), delivered a separate opinion concurring in part and dissenting in part.

OPINION

BALDOCK, Circuit Judge.

Around 9:30 a.m. on March 8, 2001, Police Officers Scott Noble and Percy Jenkins arrived at Plaintiff Elois Dunigan's home in Kalamazoo, Michigan. The officers sought to arrest Plaintiff's son, Quincy Dunigan, for failure to report to his parole officer. During the ensuing melee, Officer Jenkins' K-9, Kojak, bit Plaintiff. Plaintiff thereafter filed this § 1983 action alleging, among other things, excessive force against Officers Noble and Jenkins in violation of the Fourth Amendment. The district court granted the officers summary judgment based on qualified immunity. Plaintiff appeals. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.¹

I.

The following relevant facts are undisputed or taken in the light most favorable to Plaintiff: Quincy Dunigan is a convicted felon. He failed to report to his parole officer in violation of the terms of his release. For a year, Leslie Willson, Quincy's parole officer, visited Plaintiff's home on numerous occasions looking for Quincy. A week prior to his arrest, Willson had seen Quincy outside Plaintiff's Kalamazoo residence removing trash. Quincy disappeared before she could speak with him. On the morning of March 8, 2001, Willson received a phone tip suggesting Quincy was at his mother's home. Willson requested police assistance to apprehend Quincy. Officer Noble responded to the call. Willson informed Officer Noble that Quincy was a "runner" and might attempt to evade arrest. Officer Noble called for backup, but did not specifically request a K-9 unit. Officer Jenkins and Kojak arrived soon thereafter. Sergeants Joseph O'Connor and Mark Laster and Officers Scott Block and Mike Skurski also arrived on the scene to secure the home's perimeter. Dispatch informed all responding officers that Quincy might run.

Willson, with Officers Noble and Jenkins at her side, knocked on Plaintiff's back door. Kojak stood with Jenkins wearing a body harness and leash used for tracking. Plaintiff opened the back interior door and remained behind the locked screen door. Willson informed Plaintiff she had "come to get Quincy." Plaintiff responded "just a minute" and shut the interior door. Plaintiff proceeded to the basement's living area where Plaintiff's two sons, Quincy and Tory, and grandson, Shawn, were located. Plaintiff informed Quincy of the officers' presence. When Plaintiff returned and began opening the door, three officers rushed in. Officer Noble entered the home first. Sergeant O'Connor also entered. Officer Jenkins and Kojak proceeded onto the landing directly inside the back door of the home. The landing measures approximately three and one-half square feet. The basement stairs extend down from the landing directly behind the back door. Four stair steps to the right of the back door extend up the landing into the kitchen. See Joint App. at 348 (attached hereto).²

Officer Noble proceeded to the top step of the kitchen stairs. Sergeant O'Connor proceeded to the basement stairs. Officer Jenkins entered the landing and looked down into the basement. Plaintiff remained on the second step of the kitchen stairs. Officer Jenkins announced that someone was in the basement. He ordered the individual to show his hands, but to no avail. After announcing police presence, Officer Jenkins alerted Kojak to begin barking. At this point, Tory proceeded up the basement stairs through the landing and into the kitchen, passing Kojak and the officers without incident. Immediately thereafter, Officer Noble pushed Plaintiff in the back.³ The force caused Plaintiff to stumble and move from the second to the first step of the kitchen staircase. When asked what happened when Officer Noble pushed her, Plaintiff answered: "That is when the dog attacked me." Kojak bit Plaintiff three times on her leg. Officer Jenkins promptly restrained Kojak by the collar. According to Plaintiff, Officer Noble then "grabbed me by the neck, threw me outside and made me lay face down on the cement sidewalk."⁴

Plaintiff's friend, Kim Marshall, witnessed the entire event. Marshall explained the situation "was pretty chaotic, so there was a lot of yelling and screaming and hysterics going on." Marshall described Plaintiff's emotional state at various points as "very upset," "crying" and "concerned about the dog being in the home and very much concerned about her son." Once the officers entered the home, Plaintiff tried "to explain to them that [Quincy] wanted to turn his self [sic] in, not to — not to hurt him and she was kind of begging them, please, you know, don't hurt her son." Tory was yelling at the officers to leave his mother alone. When asked to describe the push, Marshall responded:

[Plaintiff] was standing on top of the steps that was right by the kitchen and one of the officers pushed her, so there is three or four steps that lead back to the back door landing area, she lost her footing and at that point she raised herself back up and that is when the dog bit her right in the thigh area.

The district court granted Officers Noble and Jenkins' motion for summary judgment based on qualified immunity. The court first noted Plaintiff characterized the question of excessive force with regard to both officers as arising solely under the Fourth Amendment's proscription against unlawful seizures. As to Officer Jenkins, the court held the evidence failed to establish the requisite seizure through means of force intentionally applied. The district court next held Officer Noble did not use excessive force when pushing Plaintiff aside in a rapidly-evolving, highly volatile situation. The court noted nothing in the record provided a basis for inferring Officer Noble had any intent to injure Plaintiff. On appeal, Plaintiff renews her argument that Officers Jenkins and Noble employed unlawful force in effecting a seizure of her person. Notably, Plaintiff has not challenged the officers' entry into her home or her actual arrest. Defendant Officers again respond with the defense of qualified immunity.

II.

"Qualified immunity is a government official's `entitlement not to stand trial or face the other burdens of litigation.'" Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Such immunity is "`an expression of policy designed to aid in the effective functioning of government.'" Scheuer v. Rhodes, 416 U.S. 232, 242, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (quoting Barr v. Matteo, 360 U.S. 564, 572-73, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959)). Implicit in the qualified immunity doctrine is a recognition that police officers, acting reasonably, may err. Id. The concept of immunity thus acknowledges that "it is better to risk some error and possible injury from such error than not to decide or act at all." Id.⁵

In Saucier, the Court carefully delineated a two-fold inquiry to determine an officer's entitlement to qualified immunity in the context of an excessive force claim:

A court required to rule upon the qualified immunity issue must consider ... this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts... show the officer's conduct violated a constitutional right? This must be the initial inquiry....

.....

[I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition....

Id. at 201, 121 S.Ct. 2151.⁶ In other words, where a constitutional violation exists, an officer's personal liability turns on the "objective legal reasonableness" of the action in view of the circumstances the officer confronted assessed in light of "clearly established" legal rules. Id. at 202, 121 S.Ct. 2151; Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

III.

As Saucier directs, we turn first to the question of whether Officer Jenkins and/or Noble violated Plaintiff's Fourth Amendment right to be free from excessive force. We review this question de novo, applying the same summary judgment standard as the district court. We view the evidence in a light most favorable to Plaintiff. At the same time, we are mindful that "the mere existence of some factual dispute" will not frustrate an otherwise proper summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Considering the evidence "through the prism of the substantive evidentiary burden," id. at 254, 106 S.Ct. 2505, we must determine "not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it upon whom the onus of proof is imposed." Improvement Co. v. Munson, 14 Wall. 442, 81 U.S. 442, 448, 20 L.Ed. 867 (1872); accord Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Celotex Corp. v....