Burbank v. Davis, CIV.02-59-P-K.

• Decision Date: 23 October 2002
• Docket Number: No. CIV.02-59-P-K.,CIV.02-59-P-K.
• Citation: 227 F.Supp.2d 176
• Parties: William BURBANK, Plaintiff v. SGT. Jeffery DAVIS Defendant
• Court: U.S. District Court — District of Maine

227 F.Supp.2d 176

William BURBANK, Plaintiff v. SGT. Jeffery DAVIS Defendant

No. CIV.02-59-P-K.

United States District Court, D. Maine.

October 23, 2002.

COPYRIGHT MATERIAL OMITTED

Michael J. Waxman, Portland, ME, for Plaintiff.

Jeffrey T. Edwards, Preti, Flaherty, Beliveau, Pachios & Haley, LLC, Portland, ME, Michael A. Cunniff, McCloskey & Cunniff, LLC, Scarborough, ME, for Defendant.

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT¹

KRAVCHUK, United States Magistrate Judge.

William Burbank is the plaintiff in this 42 U.S.C. § 1983 action seeking damages for alleged violations of his constitutional rights during an early morning police encounter with a group of individuals in a pub parking lot in Portland, Maine. Sergeant Jeffery Davis, a Portland police officer is the only remaining defendant. Two counts tethered to the Fourth Amendment are still in contest: one alleging that Davis arrested Burbank without probable cause and one alleging that Davis used excessive force during the arrest. Davis has moved for summary judgment. (Docket No. 20.) For the reasons explained below the motion is GRANTED-IN-PART and DENIED-IN-PART.

Discussion

A. Summary Judgment Standard

I can grant summary judgment to Davis only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [Davis] is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). A fact is material if its resolution would "affect the outcome of the suit under the governing law," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and the dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party," id. I review the record in the light most favorable to Burbank, the opponent of summary judgment, and I indulge all reasonable inferences in his favor. See Feliciano De La Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir.2000).

1. Davis's Motion to Strike Opposing Statements of Material Facts

On three fronts Davis has moved to strike several of Burbank's opposing statements of material facts. (Docket Nos. 26 & 32.) First he asserts that Burbank's opposing factual statements that rely on three depositions² from a different litigation must be stricken as they are not part of the record in this case. In support of this theory Davis cites, only, Federal Rule of Civil Procedure 56, underscoring the language that refers to "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any." I agree with Burbank: the depositions are admissible in this case. They are sworn statements, see, e.g., Gulf USA Corp. v. Fed. Ins. Co., 259 F.3d 1049, 1056 (9th Cir.2001) ("Sworn deposition testimony may be used by or against a party on summary judgment regardless of whether the testimony was taken in a separate proceeding. Such testimony is considered to be an affidavit pursuant to Federal Rule of Civil Procedure 56(c), and may be used against a party on summary judgment as long as the proffered depositions were made on personal knowledge and set forth facts that were admissible in evidence," citation omitted), Burbank could use the Davis and Vogel depositions to impeach Vogel, Twomey, and Davis (a party opponent) at trial, Beiswenger Enters. Corp. v. Carletta, 46 F.Supp 2d. 1297 (M.D.Fla.1999) (addressing depositions from state court proceeding involving same parties and subject matter, observing general rule "that any evidence which is admissible at trial can be used on summary judgment"),³ and the filing of these materials with Burbank's submission makes it part of the record in this case for purposes of Federal Rule of Civil Procedure 56. This conclusion does not mean that the depositions in question are certainly admissible evidence and will be used at trial for any and all purposes, any more than an affidavit filed in support of or in opposition to summary judgment would necessarily be evidence at trial.

Second, Davis asserts that as a consequence of Burbank's failure to set out additional facts in a separate section Davis is entitled to have the additional facts stricken or deemed controverted. As Burbank points out, nothing in Rule 56 places an obligation on the nonmoving party to assert additional material facts. Burbank had elected to only respond to those facts set forth in Davis's statement of material facts and not to propound additional facts. To the extent that his responses to Davis's statement of material facts are additional facts cloaked as facts that rebut or qualify Davis's facts I have not considered them.

Third, Davis complains that some of the statements made in the affidavits filed by Burbank do not stem from the affiant's personal knowledge. Both parties are correct on this score: Davis in his assertion that information not based on personal knowledge is inadmissible, see Fed R. Civ. P. 56(e), and Burbank in his observation that this court will determine on a statement-by-statement basis whether the affiant's assertion is sufficiently grounded in personal knowledge, see Perez v. Volvo Car Corp., 247 F.3d 303, 315-16 (1st Cir.2001) (courts undertaking the Federal Rule of Civil Procedure 56(e) admissibility analysis must use a scalpel rather than a butcher knife).

Based on this analysis the motion to strike is DENIED-IN-PART, in that the depositions are allowed.

B. Facts Material to Burbank's Fourth Amendment Claims

The key factual disputes between the parties concern whether or not Davis participated in the arrest of Burbank; whether or not there was probable cause to arrest Burbank; whether or not Burbank resisted arrest; and whether or not the force used against Burbank at the time of his arrest was excessive.

1. Officers Arrive at the Scene

There is no dispute that in the early morning hours of July 30, 2000, Officer Davis and fellow police officer Richard Vogel were patrolling Portland in separate police cruisers. After an alert that trouble was brewing in the parking lot of Brian Boru's Public House, Vogel, Davis, and several other officers responded to the scene.⁴ When Vogel arrived at the lot at 2:15 a.m. he observed at least fifteen people in the parking lot.

The parties dispute the tenor of the group when the officers arrived. Davis contends that Vogel and Officer Dolan were confronted with "a barrage of swearing and screams about `police brutality,'" and the group refused to disperse. (Vogel 2002 Dep. at 17.) Burbank states that there was no swearing or screaming and no one was being confrontational. (Burbank Aff. at ¶¶ 4, 6.)

Burbank has not disputed that when Vogel arrived on the scene he saw Officer Libby on the ground struggling with a person Vogel saw to be resisting arrest and that when Davis arrived at the scene he also saw Libby on the ground wrestling with a person that he was attempting to arrest. Officer Libby pointed to a group of three to five males standing near a green car and instructed Vogel to arrest them. There were more than ten people in the parking lot where Burbank was arrested and as Vogel approached the crowd he was concerned about dealing with an angry and upset crowd that out-numbered the officers and that was becoming increasingly confrontational. His experience taught him that when an officer must arrest a member of an angry crowd making this arrest quickly will deescalate the emotions of the crowd. Vogel perceived a chaotic atmosphere after taking his arrestee into custody. He was hearing screaming and yelling from the bystanders. They were calling-out about "police brutality," complaining that the police could not do what they were doing, and declaring that it was not right. The parties dispute the tenor of these calls. (DSMF ¶ 78; POSMF ¶ 78.)

2. Orders to Disperse

With respect to orders from the responding officers to the crowd to disperse, the parties agree that one or more of the officers gave a general instruction to disperse to members of the crowd at the scene. Davis states that Vogel gave an order for the group to disperse upon his arrival and eventually gave ten to twelve orders to the bystanders to disperse. (Vogel 2002 Dep. at 17, 53.) Burbank was part of a group of eight people that were present in the lot, among them his girlfriend Kristin Heath. As Officer Vogel approached Burbank's group, accompanied by Officer Dolan, he ordered the group to leave the scene and admonished them that they would be arrested if they did not disperse. (Vogel 2002 Dep. at 17.) In Vogel's view if his orders had been heeded nobody would have been arrested for failure to disperse. Davis states that before Burbank was arrested an officer gave specific orders to Burbank and Heath to disperse from the scene but that Burbank did not leave the scene. (Heath Dep. at 25, 38, 51 & Ex. 1.)

Burbank asserts that he did not hear these warnings by Vogel and that there was no specific or personal order to disperse directed to him. (Burbank Aff. ¶ 7; Heath Aff. ¶ 4.) While Burbank was watching the Lechner arrest Burbank heard someone say, "get the kid with the tattoo." After he heard this, Burbank understood that he was going to be arrested as he has tattoos on his upper left arm at the time of the arrest. He states that when the arresting officer approached him the officer said nothing. (Heath Dep. at 37; Burbank Dep. at 31.) There is no dispute that Burbank said to one or more of the officers, "What are you doing?" and "Why are you doing this?" and "You can't beat someone who's not resisting arrest."

3. The Identity of Burbank's Arresting Officer

As the arresting officer approached Burbank, Burbank turned around so that his back was facing the officer.⁵ Heath saw all the events surrounding the arrest of Burbank; she was standing about five feet from the arrest. Heath watched as the officer who ultimately...