Leventhal v. Schaffer
| Citation | 612 F.Supp.2d 1026 |
| Decision Date | 24 March 2009 |
| Docket Number | No. C 07-4059-MWB.,C 07-4059-MWB. |
| Parties | William Eugene LEVENTHAL, Plaintiff, v. Sgt. Daniel SCHAFFER, Lt. Jeff Ritzman, and Unknown Employees in the Iowa State Patrol, Possibly Additionally Involved, Defendants. |
| Court | United States District Courts. 8th Circuit. Northern District of Iowa |
William Eugene Leventhal, El Segundo, CA, pro se.
Jeffrey C. Peterzalek, Des Moines, IA, Mark Hunacek, Iowa Department of Transportation, Ames, IA, for Defendants.
I. INTRODUCTION ............................................................... 1030
A. Procedural Background ................................................... 1030
B. Factual Background ...................................................... 1031
II. LEGAL STANDARDS ............................................................ 1034
A. Standards for a Magistrate Judge's Report and Recommendation ............ 1034
B. Standards for Summary Judgment .......................................... 1037
III. LEGAL ANALYSIS ............................................................. 1039
A. Leventhal's Objections to "General Character" of Briefs Section ......... 1040
B. Leventhal's Objections to the Arrest Section and Qualified Immunity ..... 1041
1. Timing of Leventhal's Arrest.......................................... 1042
2. Probable Cause for Leventhal's Arrest ................................ 1043
3. Qualified Immunity ................................................... 1044
C. Leventhal's Objections to the Excessive Force Section ................... 1046
D. Leventhal's State Law Claims ............................................ 1048
IV. LEVENTHAL'S APPEAL OF ORDER DENYING MOTION TO AMEND ........................ 1048
V. LEVENTHAL'S UNTIMELY REQUEST FOR A JURY TRIAL .............................. 1049
VI. OTHER MISCELLANEOUS ISSUES ................................................. 1050
VII. CONCLUSION ................................................................. 1051
Plaintiff William Eugene Leventhal, acting pro se, commenced this civil action for damages pursuant to 42 U.S.C. § 1983 and the Iowa Tort Claims Act (ITCA), Iowa Code chapter 6691 by filing a complaint against defendant Sergeant Daniel Schaffer, defendant Lieutenant Jeff Ritzman, and defendant Unknown Employees of the Iowa State Patrol (collectively, the defendants) on July 27, 2007. Doc. No. 1. Leventhal claims Schaffer violated his federal and state constitutional rights by unlawfully arresting him for disorderly conduct, and using excessive force in doing so, on July 29, 2005, during the Register's Annual Great Bicycle Ride Across Iowa (RABRAI). Leventhal claims Ritzman, as well as possibly other unknown employees of the Iowa State Patrol, condoned and endorsed defendant Schaffer's alleged illegal actions. Leventhal sues the defendants in their official and individual capacities, alleges damages in the amount of $63,000, and requests attorney fees under 42 U.S.C. § 1988. Leventhal supplemented his complaint on August 24, 2007, to correct two typographical errors.
On September 27, 2007, the defendants filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, which Leventhal resisted. The undersigned granted the motion in part and denied it in part, leaving Leventhal with a § 1983 claim2 against Schaffer in his individual capacity and the ITCA claims against the defendants in their individual capacities—all other claims were dismissed. Doc. No. 14.
The defendants filed their Motion for Summary Judgment on August 29, 2008. Doc. No. 23. The undersigned referred the case to Chief United States Magistrate Judge Paul A. Zoss for a report and recommendation. On December 31, 2008, 2008 WL 5424006, Judge Zoss issued a report and recommendation, which recommends that this court grant the defendants' motion and dismiss the entire case. Judge Zoss gave the parties ten days, from the date of service of the report and recommendation, to file objections. As noted by Judge Zoss, the ten day time limit is found in 28 U.S.C. § 636 () and the Federal Rule of Civil Procedure 72(b)(2) ( ). Leventhal sent his pro se objections on January 16, 2009, and they were filed on January 20, 2009. Because of Leventhal's pro se status, the court will consider his objections as timely filed. The defendants did not file any objections to the report and recommendation.
On January 20, 2009, Leventhal also filed a motion to amend his complaint. See Doc. Nos. 46 and 48. The following day, Judge Zoss denied the motion. On January 23, 2009, Leventhal filed an appeal of Judge Zoss's decision to deny the motion, with this court, which is dealt with below.
On March 9, 2009, Leventhal filed an untimely demand for a jury trial. Doc. No. 54. The defendants moved to strike the demand on March 11, 2009. Doc. No. 55. The case is scheduled for a bench trial on May 11, 2009.
Judge Zoss made the following factual findings in his report and recommendation:
On July 28, 2005, Leventhal was participating in RAGBRAI. During a stop on the RAGBRAI route, at a bar, Leventhal had a brief but heated confrontation with a "Bill," who was participating in RAGBRAI as a member of Team Bad Boys. The confrontation arose from an obscene statement Bill had made to Leventhal some years earlier, and from an incident earlier on June 28, 2005, when Bill and two other men from Team Bad Boys threw ice water on Leventhal while he was taking a nap. Leventhal confronted Bill at the bar for the purpose of telling Bill to stop harassing him. The conversation lasted less than a minute before Leventhal and Bill were on the verge of coming to blows, and an employee at the bar stepped between the two men and asked Leventhal to leave. Leventhal complied and left the bar. He then stood outside the bar and yelled for Bill to come outside and apologize, or finish their confrontation. Leventhal admitted he probably used profanity when he was yelling for Bill to come outside. The entire incident only lasted a couple of minutes. See Leventhal Depo., Doc. No. 23-4, pp. 4-13, 20.3
Following the confrontation, Leventhal approached Iowa State Patrol officer Jonah Grier, and told him about the incident and the background that led to the confrontation. Another Trooper, Mikel Yauk, was present for a portion of Leventhal's conversation with Grier. Grier agreed to wait with Leventhal for Bill and the other members of Team Bad Boys so they could all talk and try to resolve the matter. However, when Team Bad Boys had not arrived after some time, Leventhal got tired of waiting and left the area. Id., pp. 14-16.
The next day, July 29, 2005, Leventhal learned that the members of Team Bad Boys were in another bar on the RAGBRAI route in or near Provotin, Iowa. He went by the bar and saw the bikes owned by members of Team Bad Boys. He then approached the defendant Schaffer, who was on duty with the Iowa State Patrol to provide security for RAGBRAI. Schaffer was parked by the side of the road a few miles outside of Provotin. Leventhal told Schaffer about the previous day's confrontation with Team Bad Boys, and asked Schaffer to talk with Team Bad Boys and see if he could get the harassment of Leventhal to stop. According to Leventhal, Schaffer told him that even if Bill or someone else put their hands on him or took a swing at him, under Iowa law he could not defend himself; he would have to walk away or he could be arrested. Id., p. 18. Leventhal responded that if someone put their hands on him, he was going to defend himself. As Leventhal was talking with Schaffer, he used some profanity, but he did not direct any profanity at Schaffer. Id., p. 20. According to Leventhal, Schaffer cut him off before he could finish telling Schaffer everything that happened. Schaffer stated he was "the law out here," and he would do what was necessary to end the harassment. Schaffer then left the area. Id., pp. 18-19.
Leventhal had a second conversation with Schaffer later on the 29th, in Spillville, Iowa. Leventhal was talking with a couple and their children when Officer Grier approached him and stated Schaffer wanted to talk with him. Grier pointed out Schaffer's location, which was "30 to 50 yards," or approximately a block, from where Leventhal was sitting. Id., pp. 20-21. Schaffer was sitting in the driver's seat of his vehicle. As Leventhal approached the vehicle, Schaffer said something that Leventhal could not hear well. Schaffer rolled his window down halfway, and Leventhal had to get very close to the vehicle in order to hear Schaffer. Id. at 22. Schaffer indicated he had talked to the members of Team Bad Boys, who maintained Leventhal was "the bad guy." Id., p. 23. According to Leventhal, Schaffer stated, Id., pp. 22-23. Leventhal responded that Schaffer had stopped him before he had a chance to finish his account of the incident, and he told Schaffer not to call him a liar. It upset Leventhal that Schaffer appeared to be calling him a liar, and appeared to be taking the side of the members of Team Bad Boys. Id., p. 23.
Leventhal...
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