Davis v. Town of Southern Pines

• Decision Date: 01 November 1994
• Docket Number: No. 9320SC889,9320SC889
• Citation: 116 N.C.App. 663,449 S.E.2d 240
• Parties: Amanda DAVIS, Plaintiff-Appellee, v. TOWN OF SOUTHERN PINES; Chris Vandereit, Individually and in his official capacity; Stanley Klingenschmidt, Individually and in his official capacity, Defendants-Appellants.
• Court: North Carolina Court of Appeals

Page 240

449 S.E.2d 240

116 N.C.App. 663

Amanda DAVIS, Plaintiff-Appellee, v. TOWN OF SOUTHERN PINES; Chris Vandereit, Individually and in his official capacity; Stanley Klingenschmidt Individually and in his official capacity, Defendants-Appellants.

No. 9320SC889.

Court of Appeals of North Carolina.

Nov. 1, 1994.

Rosenthal & Putterman by Charles M. Putterman, Raleigh, for plaintiff-appellee.

Cranfill, Sumner & Hartzog by H. Lee Evans, Jr. and Kari Lynn Russwurm, Raleigh, for defendant-appellants.

EAGLES, Judge.

Defendants appeal the trial court's denial of their motion for summary judgment. After careful review of the record and briefs, we affirm in part and reverse in part.

We note initially that the denial of a motion for summary judgment is ordinarily not immediately appealable. Hill v. Smith, 38 N.C.App. 625, 626, 248 S.E.2d 455, 456 (1978) (citations omitted). Here, defendants asserted the defenses of absolute and qualified immunity to plaintiff's 42 U.S.C. § 1983 claim and plaintiff's remaining claims. The denial of a summary judgment motion on the grounds of absolute and qualified immunity is immediately appealable. Herndon v. Barrett, 101 N.C.App. 636, 639, 400 S.E.2d 767, 769 (1991); Corum v. University of North Carolina, 97 N.C.App. 527, 531, 389 S.E.2d 596, 598, temporary stay allowed, 326 N.C. 595, 394 S.E.2d 453, review and writ allowed, dismissal denied, 327 N.C. 137, 394 S.E.2d 170 (1990), rev'd on other grounds, 330 N.C. 761, 413 S.E.2d 276, reh'g denied, 331 N.C. 558, 418 S.E.2d 664, cert. denied, Durham v. Corum, 506 U.S. 985, 113 S.Ct. 493, 121 L.Ed.2d 431 (1992).

I. STANDARD OF REVIEW

A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue of material fact for trial and that the moving party is entitled to judgment as a matter of law. Pressman v. University of N.C. at Charlotte, 78 N.C.App. 296, 300, 337 S.E.2d 644, 647 (1985), review allowed, 315 N.C. 589, 341 S.E.2d 28 (1986). In passing upon a motion for summary judgment, the court must view the evidence presented by both parties in the light most favorable to the nonmoving party. Bradshaw v. McElroy, 62 N.C.App. 515, 518, 302 S.E.2d 908, 911 (1983).

The affidavits of plaintiff Davis and defendant Klingenschmidt are set out in pertinent part here:

AFFIDAVIT OF AMANDA DAVIS

....

3. On or about September 22, 1991, sometime around 1:30 a.m., I was in the Town of Southern Pines. I had been in Brook's [a local bar] that evening.

4. I was walking to a phone booth so that I could call a cab to take me home.

5. I tripped and fell near the Southern Pines Police Department.

6. A Southern Pines police officer, who I have been informed was Chris Vandereit, approached me and asked what had happened.

7. Another Southern Pines police [sic], Stanley Klingenschmidt, approached me, soon after Officer Vandereit, and told me that he was taking me to jail because I was drunk and a danger to myself. Officer Klingenschmidt did not talk with me before telling me that I was going to jail.

8. I explained that I was not bothering anyone and that I was on the way to a phone booth to call a cab to take me home.

9. Officer Klingenschmidt's response was to say that I was going to jail. He did not allow me to call a cab.

10. Michelle Brown, who was present, explained that she was my sister, that we were planning to call a cab to take us home, and that she would take care of me. The officers did not allow Ms. Brown to call a cab for us.

11. Officer Klingenschmidt told Ms. Brown that if she did not shut up, she would be taken to jail also.

12. Neither Officer Klingenschmidt or Vandereit asked if there was somewhere else I could go.

13. Neither Officer asked if there was someone I could call to come and get me 14. The officers did not offer to take me home, which is about 8 miles from where we were, instead of the jail, which is about 15 miles from there.

15. Although I had been drinking, I was not a danger to myself or others. I was capable of looking out for myself. At the time Officers Klingenschmidt and Vandereit took me to the jail I was not in immediate need of medical care.

16. I was fully capable of calling a cab to take me home.

17. I was fully capable of walking to the home of Susan Phillips, another sister who lived nearby. Although I did not get along with Ms. Phillips' husband, I would have preferred to go to her house and wait outside for my mother or father to come get me than to go to jail. I was never given that option. The officers did not ask any questions that would have let them know that option existed.

18. My sister, Ms. Brown, was willing to help me get home and to look out for me. I never refused her help. Before the officers arrived, Ms. Brown and I were planning to take a cab together. At the time, Ms. Brown was staying with our parents who live near my home.

19. My mother took me and my sister to Southern Pines that evening. If necessary, I could have called her and asked her to pick me up.

20. My father tried to get me out of jail soon after I was placed there, but was not allowed to get me out until around 11:00 a.m. I could have called him and asked him to come get me had the officers allowed me to call him or even asked if that was a possibility.

21. Despite my requests, the officers would not allow me to use a phone to call anyone.

22. Officers Klingenschmidt and Vandereit took custody of me. They placed me in the front seat. Officer Vandereit drove. Officer Klingenschmidt sat in the back seat. I was not handcuffed.

23. The officers took me to the Moore County Jail, in Carthage, approximately 15 miles from the Town of Southern Pines.

24. Before putting me in jail, Officer Klingenschmidt said words to this effect: "You think you've had a good time tonight, you're going to have a real good time now." He also told me, "Bitch, you're going to jail. You're drunk and you're going to jail."

25. Soon after I was placed in a jail cell, I was assaulted by a detainee. I did not provoke the assault.

26. I received a fractured nose, a scratched eye, and bruises during the assault.

27. I was kept in the jail until about 11:00 a.m. that morning.

AFFIDAVIT OF STANLEY L. KLINGENSCHMIDT

....

1. My name is Stanley L. Klingenschmidt, and I am a lieutenant with the Southern Pines Police Department. I was a master police officer with the police department in September of 1991.

2. In the early morning hours of September 22, 1991, I was on routine patrol with officer-trainee, Chris Vandereit, traveling south on Southwest Broad Street in Southern Pines, North Carolina. We observed three white females out in front of the Southern Pines Post Office on Broad Street. As we got closer, I observed one female fall to the ground and one of the others tried to help her up.

3. We stopped the police car and got out of the car to approach the three females.

4. Two of the females were talking loudly to one another, and it appeared to us that they were arguing about something. We spoke to the two females who were talking loudly, and both appeared to have been drinking. One of the females, Amanda Davis, appeared to be extremely intoxicated. The other female, her sister, did not seem as intoxicated, nor did it appear that she needed any assistance.

5. Ms. Davis' sister informed us that they had just left the bar and were trying to get Ms. Davis home. We were informed that Ms. Davis lived in Hoke County.

6. We tried to get Ms. Davis to go home with her sister, but she refused. She used profane language towards us and said she was going to sit on the bench in front of the post office.

7. I informed Ms. Davis that in her condition, she could not be left there because she could be a danger to herself and that if she did not go home with her sister, that we would have to take her to jail until she sobered up. Ms. Davis continued to refuse to go with her sister.

8. At that point, we decided to take her to the Moore County jail. It was my opinion that she would be a danger to herself and possibly others if she was allowed to remain on the streets for any period of time. There was no other facility available to receive Ms. Davis in her condition that night.

9. We placed Ms. Davis in the patrol car and took her to the Moore County jail, where she was left in the custody of the Moore county jailers.

II. PLAINTIFF'S 42 U.S.C. § 1983 CLAIM

Plaintiff alleged a claim for money damages under 42 U.S.C. § 1983 (hereinafter section 1983) against defendants Klingenschmidt and Vandereit (hereinafter defendant officers) in their individual capacities. We note that plaintiff does not allege that defendant town violated section 1983. Plaintiff's complaint alleges that defendant officers "unreasonably seized Plaintiff Davis in violation of the Fourth Amendment to the United States Constitution" and "deprived Plaintiff Davis's [sic] of her liberty without due process of law, in violation of the Fourteenth Amendment to the United States Constitution, thus establishing a cause of action under 42 U.S.C. § 1983."

Section 1983 provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding to redress.

Corum v. University Of North Carolina, 330 N.C. 761, 770, 413 S.E.2d 276, 282 (1992).

"[S]tate governmental officials [may] be sued in their individual capacities for [monetary] damages under section 1983." Id. at 772, 413 S.E.2d at 283. Government officials sued under section 1983 may raise the defense of...