Deezia v. City of Lincoln

• Decision Date: 29 October 2018
• Docket Number: 4:17CV3033
• Citation: 350 F.Supp.3d 868
• Parties: Barine DEEZIA, Plaintiff, v. CITY OF LINCOLN, Gregory Graham, Lincoln Police Department Officer, Aaron Peth, Lincoln Police Department Officer, Trey Wayne, Lincoln Police Department Officer, Andrew Winkler, Lincoln Police Department Officer, Mark Moore, Lincoln Police Department Officer, Patrick Murphy, Lincoln Police Department Officer, and Jason Drager, Lincoln Police Department Officer, Defendants.
• Court: U.S. District Court — District of Nebraska

350 F.Supp.3d 868

Barine DEEZIA, Plaintiff,

v.CITY OF LINCOLN, Gregory Graham, Lincoln Police DepartmentOfficer, Aaron Peth, Lincoln Police DepartmentOfficer, Trey Wayne, Lincoln Police DepartmentOfficer, Andrew Winkler, Lincoln Police DepartmentOfficer, Mark Moore, Lincoln Police DepartmentOfficer, Patrick Murphy, Lincoln Police DepartmentOfficer, and Jason Drager, Lincoln Police DepartmentOfficer, Defendants.

4:17CV3033

United States District Court, D. Nebraska.

Signed October 29, 2018

Richard L. Boucher, Boucher Law Firm, Lincoln, NE, for Plaintiff.

Elizabeth D. Elliott, City Attorney's Office, Lincoln, NE, for Defendants.

MEMORANDUM AND ORDER

Richard G. Kopf, Senior United States District Judge

Plaintiff brings this 42 U.S.C. § 1983 and negligence action against the City of Lincoln, Nebraska, and several of its police officers for violations of his Fourth and Fourteenth Amendment rights when the officers allegedly falsely arrested and used excessive force in detaining and arresting him.After resolution of the Defendants' Motion to Dismiss(FilingNo. 31), the remaining claims in this suit are: (1) a false-arrest claim against the Defendant police officers in their individual capacities; (2) an excessive-force claim against the Defendant police officers in their individual capacities; and (3) a negligence claim against the City of Lincoln.

In four separate motions, Defendants move for summary judgment, arguing that (1)the Defendant police officers are entitled to qualified immunity and to judgment on the merits as to Plaintiff's false-arrest and excessive-force claims (FilingNos. 73, 74, 75); and (2) the City of Lincoln is entitled to sovereign immunity and to judgment on the merits as to Plaintiff's negligence claim (FilingNo. 72).I shall grant the motions in part and deny them in part.

I.STATEMENTS OF MATERIAL FACTS

Unhelpfully, both Plaintiff and Defendants have presented the court with their own statements of material facts, Plaintiff has not properly controverted the Defendants' statement of facts pursuant to NECivR 56.1, and Defendants have not responded in any fashion to Plaintiff's statement of facts.While Rule 56.1(b)(1)¹ allows me to consider Defendants' statement of facts admitted under these circumstances,² I am also bound to give due consideration to Plaintiff's properly referenced statement of facts presented in opposition to the Defendants' Motions for Summary Judgment.Jenkins v. Winter , 540 F.3d 742, 747(8th Cir.2008)(district court erred in not considering statement of facts presented in opposition to summary judgment motion).Therefore, I shall reproduce both statements of material facts verbatim and discuss any relevant disputes of fact in the course of analyzing the substance of the pending motions.

The Defendants' statement of material facts is as follows:³

1.PlaintiffBarine Deezia was a resident of Lincoln, Nebraska, on March 20, 2016, the date of the incident giving rise to this case.

2.City of Lincoln is a political subdivision of the State of Nebraska that provides law enforcement through police officers employed at the Lincoln Police Department("LPD").

3.DefendantsGregory Graham, Aaron Peth, Trey Wayne, Andrew Winkler, Mark Moore, Patrick Murphy, and Jason Drager(collectively "Defendants") were police officers with LPD who were acting in the scope of their employment during the incident giving rise to this case.

4.On Saturday, March 19, 2016, Nyakiam Domach ("Domach"), Barine Deezia("Plaintiff"), Elizabeth Grayer("Grayer") and another male were at a housewarming party.

5.Domach and Plaintiff[ ] had been drinking alcohol that evening.

6.On Sunday, March 20, 2016, at approximately 12:30 a.m. Domach, Plaintiff, Grayer, and the other male went to "Main Street Café," a bar in downtown Lincoln, Nebraska, near 14th and O Streets.

7.On Sunday, March 20, 2016, shortly after the close of the bars in downtown Lincoln, Nebraska, at approximately 2:00 a.m. several LPD officers, including Defendants, were monitoring the area of 14th and O Streets.

8.At the same time, Domach, Plaintiff, Grayer, and the other male left "Main Street Café."

9.Nearby the other Defendants were positioned in that area as follows: Officers Graham, Peth, Winkler, and Moore, were on the southwest corner of 14th and O Streets.Officer Wayne was standing on the southeast corner of 14th and O Streets.Officers Murphy and Drager were on the northeast corner of 14th and O Streets.

10.At that time, each Defendant was in his LPD uniform with his police badge displayed.

11.Officers Graham, Winkler, Murphy, and Drager were wearing body cameras on March 20, 2016.

12.Around 2:04 a.m. Officer Moore saw Domach, Plaintiff, Grayer, and the other male near the southwest corner of 14th and O Streets and commented to Officer Graham, Officer Peth, and Officer Winkler about how drunk Domach appeared.

13.Officer Moore attempted to talk to the group, but they refused to answer and walked away.

14.Moments later the Officers saw Ms. Domach being carried across the street northbound by Plaintiff, Ms. Grayer, and the other male.Ms. Domach appeared to be highly intoxicated and nearly unconscious.

15.Officer Graham and Officer Peth walked across the street northbound in the crosswalk to attempt to contact the group.At the same time, Officer Winkler trailed behind both groups with Juan Ramirez("Ramirez"), who was a civilian ride-along with Officer Winkler that evening.

16.As the two groups walked across the street, Officer Graham attempted to talk to Plaintiff's group to ensure the wellbeing of Domach and to see if medical attention was required.

17.Plaintiff began to act in an overagitated manner and was confrontational.Plaintiff stated that "she is fine, she is 21, she is not driving."Officer Graham explained that the group was not in trouble and that the Officers simply wanted to make sure the Domach was okay, whether she knew the individuals carrying her, if medical attention was required, and what establishment they were coming from.

18.Once they reached the northwest corner, Officer Graham asked the group to sit Ms. Domach in a patio chair in the Jimmy John's outdoor patio area.At that point, Officer Graham attempted to talk to Grayer who appeared to be the calmest and most cooperative.

19.As this was going on, Officer Winkler and Ramirez stood back approximately 15-20 feet away, but within eyesight.

20.As Officer Graham attempted to talk to Ms. Grayer, Plaintiff became verbally aggressive and got in Officer Graham's face and began screaming "do not talk to her" and then yelled at Grayer telling her "you will not talk to them" and "do not talk to them."

21.Officer Graham asked Plaintiff several times to be quiet and to step away.Graham also asked Plaintiff to calm down, that they would not be in any trouble if he could simply determine if Domach was safe, knew the group, and where they were coming from.

22.The Officers told Deezia that they did not want to talk to him.

23.While Plaintiff continued to be belligerent towards Officer Graham, Domach remained unresponsive.

24.Because Plaintiff was making it impossible for Officer Graham to get any information from Grayer, Officer Peth attempted to redirect Plaintiff by asking Plaintiff to step away from the group.

25.Officer Peth placed his hand on Plaintiff's torso to guide him towards the building to separate him from the group.

26.Plaintiff was immediately resistive to this and refused to walk with Officer Peth by planting his feet and then pushing Officer Peth in the chest.

27.After being pushed, Officer Peth grabbed Plaintiff's hand and told him to put his hands behind his back.Plaintiff ignored this order.

28.Officer Winkler then approached Plaintiff and Officer Peth.He told Plaintiff to put his hands behind his back as he grabbed one of Plaintiff's hands.Plaintiff did not put his hands behind his back and resisted Officer Peth's and Officer Winkler's attempts to force them behind his back.

29.While Officer Peth and Officer Winkler were doing this, Officer Graham stayed next to Grayer, Domach and the other male to ensure everyone's safety and make sure no other individuals interfered with Officer Peth or Officer Winkler.

30.Plaintiff continued to pull and push away from Officer Peth and Officer Winkler, so Officer Peth and Officer Winkler attempted to place Plaintiff on the ground in an effort to gain better control.

31.Once Plaintiff was on the ground, he continued to struggle and was able to stand back up.

32.During this time, Officer Moore, who was still over on the southwest corner, heard his name being called.When he turned around, he saw Plaintiff fighting with Officer Peth and Officer Winkler.Officer Moore then ran across the street and began assisting Officer Graham with crowd control.

33.Officer Peth and Officer Winkler then attempted to back Plaintiff up into the window of Jimmy John's to gain better control of Plaintiff.At the same time, Officer Peth and Officer Winkler told Plaintiff to stop resisting and put his hands behind his back.Plaintiff ignored these commands and continued to pull away from the Officers and actively resisted efforts to be handcuffed.

34.Officer Winkler then attempted to strike Plaintiff's right leg with a closed fist to distract Plaintiff and get him to comply; however, this attempt was unsuccessful and Plaintiff became even more aggressive with Officer Peth and Officer Winkler.

35.Officer Peth then performed a balance displacement technique to place Plaintiff on the ground a second time.

36.Once on the ground, Plaintiff continued to resist and struggle with Officer Peth and Officer Winkler and was able to return to his feet.

37.Plaintiff actively tried to get away from the Officers and pulled his arms away.

38.At this time, from his position across the street, Officer Wayne saw Officer Peth and Officer Winkler physically struggling with Plaintiff and ran across the street to assist.

39.As Officer Wayne approached the

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