Carlisle v. City of Minneapolis, C1-88-1997

• Court: Minnesota Court of Appeals
• Writing for the Court: NORTON; NIERENGARTEN
• Citation: Carlisle v. City of Minneapolis, 437 N.W.2d 712 (Minn. App. 1989)
• Decision Date: 28 March 1989
• Docket Number: No. C1-88-1997,C1-88-1997
• Parties: Patricia CARLISLE, Trustee for the Heirs and Next-of-Kin of Sal Saran Scott, Decedent, Appellant, v. CITY OF MINNEAPOLIS, et al., Respondents.

Page 712

437 N.W.2d 712

Patricia CARLISLE, Trustee for the Heirs and Next-of-Kin of Sal Saran Scott, Decedent, Appellant, v. CITY OF MINNEAPOLIS, et al., Respondents.

No. C1-88-1997.

Court of Appeals of Minnesota.

March 28, 1989.

Syllabus by the Court

1. When a plaintiff in a 42 U.S.C. § 1983 action fails to present affidavits or other evidence to create a genuine issue of material fact, after moving parties have presented sufficient affidavits to entitle them to judgment as a matter of law, summary judgment for the defendants is proper.

2. This court will interfere with a trial court's determination on discovery, only if the determination is a clear abuse of discretion.

Gary L. Manka, Brian L. Sobol, Scott A. Teplinsky, Katz, Davis, Manka & Haugan, Ltd., Minneapolis, for appellant.

Joseph B. Marshall, Marshall and Associates, Circle Pines, for respondents.

Heard, considered and decided by SHORT, P.J., and NIERENGARTEN and NORTON, JJ.

OPINION

NORTON, Judge.

This is an appeal from the granting of partial summary judgment in favor of respondents City of Minneapolis, et al. Appellant Patricia Carlisle, as trustee for the heirs and next-of-kin of Sal Saran Scott, brought a claim pursuant to 42 U.S.C. § 1983. The trial court found no just reason to delay Carlisle's appeal on this issue. See Minn.R.Civ.P. 54.02. The three remaining counts of Carlisle's complaint alleging common law negligence are still pending in Hennepin County.

Carlisle also appeals two orders in which the trial court denied her request for copies of reports of the Minneapolis Police Department Internal Affairs Department regarding the shooting of Sal Scott. We affirm.

FACTS

Sal Saran Scott was killed on September 21, 1984 by officers of the Minneapolis Police Department Decoy Unit. The officers were in the process of arresting Scott for robbing an unarmed undercover police officer. Scott received a contact gunshot wound to the back of his head from a 12-gauge double barreled shotgun, and died instantly.

During the early morning hours of September 21, 1984, Sergeant David Niebur with officers William James, William Hinz, Bruce Johnson and Kenneth Olson, were working a decoy operation for the street crimes decoy unit. Hinz portrayed an unconscious intoxicated driver in a car parked at an odd angle over the curb. Niebur and James were in a surveillance van across the street from Hinz. Olson and Johnson were stationed one block away, out of visual contact with the decoy scene.

Shortly after the decoy was set up, Sal Scott approached Hinz' vehicle. Scott asked Hinz if he was okay and Hinz did not respond. Scott opened the door, leaned in, began pushing Hinz and talking to him. Scott removed Hinz' billfold and put the contents into his pocket. Scott then took a ring off Hinz' finger. After the money was taken from Hinz, Hinz gave a signal, by a steady pushing of the brake lights on his vehicle, to Niebur and James that a crime had been committed.

After Hinz became more responsive, Scott lifted or pulled Hinz from the car. As he was pulled from the car, Hinz fell to the ground toward the rear end of the vehicle. Falling to the ground was a signal to the other officers that Hinz believed he was in danger.

Scott pulled Hinz back to his feet and pushed him against the car. James ran from the van to the decoy vehicle when he saw the second signal. James was carrying a double barreled shotgun at this time. Hinz stated that he heard James yell that he was a police officer, and glanced toward the direction of the voice, and noted that James was running toward him. Hinz stated that Scott, while still pushing him partially over the roof of the car, suddenly spun to his right, away from Hinz and toward James. Hinz then heard a muffled sound of the shotgun discharging.

Niebur, on the other hand, stated in his statement to the police and in his affidavit that James was momentarily distracted by Hinz moving on the ground. At the moment James turned his attention to Hinz, Scott suddenly spun and lunged at James. When Scott lunged at James, the muzzle of the shotgun, being held in a port arms position, impacted with the left side of Scott's head causing the gun to discharge in an upward direction.

The photographs of the scene show Scott lying on his back perpendicular to the car with his feet at the base of the car. The autopsy and homicide reports indicate an entrance wound on the left side of Scott's head at his ear, and suggest there was a cut under the ear. The medical examiner's report also notes blood spattering and cuts from skull fragments on the back of Scott's hands.

In answering questions before a task force on the police decoy unit, Niebur stated that the police decoy unit had been charged with excessive force on prior occasions. Niebur additionally said that the police decoy unit was underfunded; suffered from a lack of training; and was not sufficiently supervised by his superior officers, leaving him in charge of the unit.

The trial court granted partial summary judgment for respondents on Carlisle's claim brought pursuant to 42 U.S.C. § 1983. The court found that the allegations and the totality of the circumstances surrounding the arrest and death of Scott did not comprise sufficient evidence to support a reasonable inference of anything more than mere negligence on the part of the city, its police department, or individual police officers. Appellant argues that all of the evidence submitted including the photographs, autopsy report, toxicologist and medical examiner reports, together with the prior inconsistent statements of the officers, created a genuine issue of fact as to the events of the evening.

ISSUES

I. Are respondents entitled to summary judgment on appellant's 42 U.S.C. § 1983 claim?

II. Did the trial court err in denying appellant's discovery request?

ANALYSIS

I.

Minn.R.Civ.P. 56.03 states that summary judgment shall be rendered 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 either party is entitled to a judgment as a matter of law."

Minn.R.Civ.P. 56.05 requires that supporting and opposing affidavits be made "on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall affirmatively show that the affiant is competent to testify to the matters stated therein." In these opposing affidavits, a party must present specific facts showing that there is a genuine issue for trial. Id.

The United States Supreme Court has stated that the plain language of Rule 56 mandates the entry of summary judgment,

after adequate time for discovery and upon motion, against the party who fails to make a sufficient showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

The supreme court does not mean to say "that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment." Id. at 324, 106 S.Ct. at 2553. Fed.R.Civ.P. 56(e) [Minn.R.Civ.P. 56.05] only requires summary judgment to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c) [56.03], except the mere pleadings themselves. Id.

The summary judgment standard under the federal rules mirrors "the standard for a directed verdict under Fed.R.Civ.P. 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The genuine issue summary judgment standard is very close to the reasonable jury directed verdict standard. Id. at 251, 106 S.Ct. at 2511.

A nonmoving party must offer significant probative evidence tending to support its complaint, discredited testimony is not normally considered a sufficient basis for drawing a contrary conclusion. Id. at 256-57, 106 S.Ct. at 2514-15. Instead, the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery. Id. at 257, 106 S.Ct. at 2514-15. When a moving party has carried its burden under Rule 56(c) [Minn.R.Civ.P. 56.03], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986).

42 U.S.C. § 1983 creates no substantive rights, but merely provides remedies for deprivation of rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432, 85 L.Ed.2d 791 (1985). The intentional exercise of excessive force by a police officer is a violation of the fourth amendment guarantee against unreasonable seizure. Tennessee v. Garner, 471 U.S. 1, 8-23, 105 S.Ct. 1694, 1699-1707, 85 L.Ed.2d 1 (1985). Excessive force is force which shocks the conscience or which infringes a specific constitutional guarantee and is an intentional abuse of official power. New v. City of Minneapolis, 792 F.2d 724, 726 (8th Cir.1986).

No deprivation of due process rights results from the negligent act...