Habiger v. City of Fargo, Civ. No. A3-93-81.
| Citation | 905 F. Supp. 709 |
| Decision Date | 23 January 1995 |
| Docket Number | Civ. No. A3-93-81. |
| Parties | David HABIGER, Plaintiff, v. CITY OF FARGO; Ann Alzheimer, Mike Kjera, Scott Stenerson, Mark Lykken, and Don Lawyer, in their official and individual capacities, Defendants. |
| Court | U.S. District Court — District of South Dakota |
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Richard D. Varriano, Moorhead, MN, for plaintiff.
Mike Miller, Solberg, Stewart, Miller, Johnson & Noack, Fargo, ND, for defendants.
On May 11, 1993, plaintiff David Habiger filed this civil action against defendants Ann Alzheimer, Todd Doale, Mike Kjera, Scott Stenerson, Todd Osmundson, Leo Rognlin, Donn Weaver, Paul Lies, Gordon Olson, Don Lawyer and the City of Fargo seeking redress for alleged violations arising out of plaintiff's arrest and imprisonment on October 31, 1991. Pursuant to a stipulation signed by both parties, this court dismissed the complaint and causes of action against defendants Todd Doale, Todd Osmundson, Donn Weaver, Paul Lies, Gordon Olson and Leo Rognlin. On August 8, 1994, this court granted plaintiff's motion to amend his complaint to name Mark Lykken as a defendant in this action. Plaintiff's amended complaint filed on September 15, 1994, sets forth six causes of action based on federal constitutional and state law theories. Pending before the court are plaintiff's motion to amend his complaint, plaintiff's motion for partial summary judgment, and defendants' motion for summary judgment.
On October 28, 1991, the Honorable Lawrence A. Leclerc, Cass County District Court Judge, issued a temporary restraining order in the case of Fargo Women's Health Organization, Inc., et al. v. Lambs of Christ, et al., Case No. 91-1953 (Cass County Dist. Ct. filed Oct. 28, 1991). The temporary restraining order prohibited pro-life demonstrators from conducting certain protest activities, including "going within 100 feet of the property line of the Fargo Women's Health Organization clinic during such times as they are open for business, except that one person may quietly and peacefully picket such facility, so long as that person does not interfere with the operations of said facility as provided herein." Fargo Women's Health Organization, Inc., et al. v. Lambs of Christ, et al., Case No. 91-1953 at 3 (Cass County Dist. Ct. filed Oct. 28, 1991).1 A red line was painted on the sidewalk 100 feet south of the Fargo Women's Health Organization clinic to mark the restricted area beyond which protesters were not permitted to pass.
On the morning of October 31, 1991, plaintiff David Habiger and approximately seventy-five other people participated at or near the Fargo Women's Health Organization2 in a demonstration organized to protest this temporary restraining order. (Pl.'s Statement of Undisputed Material Facts at 1; Defs.' Statement of Undisputed Material Facts at 1). Habiger carried a sign that read (Pl.'s Statement of Undisputed Material Facts at 1; Defs.' Statement of Undisputed Material Facts at 2). During the protest, Officers Anne Alzheimer, Mike Kjera, Scott Stenerson, Mark Lykken and Sergeant Don Lawyer were in front of the clinic, in various positions, acting in their capacity as police officers for the City of Fargo. (Id.; Id. at 2-3).
Shortly after he arrived at the scene of the demonstration, Habiger walked over to defendant Lawyer who was standing to the east of the clinic. (Id.). As Habiger approached him, Lawyer told Habiger that he could not cross the red line. (Id.). Habiger responded, (Id.). Lawyer allegedly informed Habiger that he was violating the law by crossing the line and asked Habiger to step back behind the line, but Habiger refused. (Defs.' Statement of Undisputed Material Facts at 3). Defendants contend that 3 (Id.; Aff. Don Lawyer dated Nov. 8, 1994).
As the morning progressed, protestors crossed the red line marking the 100-foot protected zone. (Id.). The police officers at the scene formed lines and moved them back across the red line, informing the protestors that they were violating the temporary restraining order. (Id.). However, many of the demonstrators ignored the officers' warning and walked across the line. (Id. at 3-4). Several of the protesters sat down on the sidewalk approximately eighty feet from the clinic. (Id. at 4). Eventually, the police officers arrested the protesters who refused to say behind the red line and charged them with violating the temporary restraining order issued by Judge Leclerc. (Id.).
About the time the police officers began arresting the protestors, Habiger began to loudly voice his disagreement with the officers' conduct.4 Lawyer repeatedly asked Habiger to quiet down. In response to Lawyer's requests, Habiger yelled:
This is a dictatorship in this town. An evil city. You work for evil people that are killing human beings in there. You don't care. If you had any guts, you'd get out of that uniform and take a stand for life. What's that job mean to you? It ain't gonna mean nothing when your life is over. Take a stand for Jesus Christ. They're killin' human beings in there and nobody cares. And you stand there with that smirk on your face. When you stand before God, you're going to answer for it.
(Pl.'s Statement of Undisputed Material Facts at 2 ()). As he yelled, spit came out of his mouth. Lawyer again asked him to quiet down. Lawyer's request promoted an even more emphatic response from Habiger:
I can talk all I want. It's a free country. I'm behind the line. If you guys had any guts, you'd take them uniforms off and we'd all storm that place and close it down. They're killing children in there. Yet nobody does nothin'. Everybody stands back. They're killing children. This town's a dictatorship. It's a communistic — it's communistic. You're evil. You're all evil. They're standing up for murders. They're killing children that have a right to live. We had, we got a right to our lives. I don't care.
(Id.). At that point, defendant Lawyer told Habiger that he was under arrest and defendant Kjera grabbed the sign out of Habiger's hand. (Id.) Habiger asked, "For what?" Lawyer responded, "Court order." Habiger then stated, Lawyer replied, "You're yelling too loud." Next, Habiger stated, Lawyer stated, "Yes, I am." Defendants Lawyer and Kjera then grabbed Habiger. Habiger repeated "No you're not — for what — no you're not." Habiger struggled and the three men fell to the ground. At that point, Officers Anne Alzheimer, Scott Stenerson and Mark Lykken began to assist in restraining Habiger.5
While he was on the ground Habiger complained of pain in his arm and some unnamed person called for an ambulance. When the ambulance arrived on the scene, Habiger climbed in the vehicle and medical personnel drove him to St. John's Hospital emergency room. After Habiger was treated, police officers took him to Cass County Jail where he was booked and confined to a cell overnight. The following day he was charged with disorderly conduct and preventing arrest. Habiger posted bond and the police officers released him a short time later. As a condition of his release from jail, Habiger was ordered to stay away from the Fargo Women's Health Organization.
On or about March 25, 1992, the charges against Habiger were dismissed. The Cass County State's Attorney's office had previously filed a motion of dismissal "for the reason Habiger's statements are protected by the First Amendment and there is otherwise insufficient evidence to prove the elements of the offenses beyond a reasonable doubt."
Fourteen months later, Habiger filed this lawsuit alleging that the defendant police officers' illegal arrest of Habiger deprived him of his constitutional rights and that defendants are liable for the injuries that he suffered as a result of his arrest and imprisonment. Plaintiff's complaint also sets forth the following causes of action against defendants: defendants are liable for abuse of process, malicious prosecution, wrongful loss of freedom, false imprisonment and felonious assault. Additionally, plaintiff contends that defendant City of Fargo authorized, permitted and tolerated the Fargo Police Department's failure to adequately train, instruct, supervise and discipline members of the department and its failure to promulgate and enforce procedures and policies for the use of force consistent with the United States Constitution.
On October 11, 1994, plaintiff David Habiger filed a motion to amend his complaint to restate his claims. Specifically Habiger seeks to amend his complaint "to separate pendent from federal claims and to specify the federal claims individually against the relevant defendants." (Pl.'s Memo. in Support of Mot. to Amend at 1-2). Plaintiff asserts that there is no change in the facts alleged in his first amended complaint except to clarify the plaintiff's injuries in paragraphs 22-24 and to state a claim against the City of Fargo in paragraphs 26-30. Defendants have not filed a response to this motion.
Pursuant to Rule 15 of the Federal Rules of Civil Procedure, this court may grant leave to amend the pleadings at its discretion; however, "leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). In addition, Rule 5(C) of the local rules provides that "failure to file a brief...
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