Hall v. Shipley

• Decision Date: 08 May 1991
• Docket Number: No. 89-5125,89-5125
• Citation: 932 F.2d 1147
• Parties: Arvil HALL, Plaintiff-Appellee, v. Jon SHIPLEY, Don Boles, Phillip Nall, and Sgt. Jack Mansfield, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1147

932 F.2d 1147

Arvil HALL, Plaintiff-Appellee, v. Jon SHIPLEY, Don Boles, Phillip Nall, and Sgt. Jack Mansfield, Defendants-Appellants.

No. 89-5125.

United States Court of Appeals Sixth Circuit.

Argued Jan. 30, 1990.

Decided May 8, 1991.

Michael W. Ritter (argued), Joyce, Meredith & Fliteroft, Oak Ridge, Tenn., for plaintiff-appellee.

John C. Duffy (argued), Watson, Reeves & Beeler, Knoxville, Tenn., for defendants-appellants.

Before JONES and RYAN, Circuit Judges, and HILLMAN, Senior District Judge. ^*

NATHANIEL R. JONES, Circuit Judge.

In this civil rights action under 42 U.S.C. Sec. 1983, Jon Shipley, Jack Mansfield, Don Boles and Phillip Nall, police officers for the City of Oak Ridge, Tennessee, appeal the district court's denial of their motion for summary judgment on grounds of qualified immunity. Officers Nall, Boles and Mansfield also appeal the district court's denial of their motion for summary judgment on grounds that service of process on them was insufficient and outside the one-year statute of limitations. The officers bring this interlocutory appeal as of right. 28 U.S.C. Sec. 1291. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.

On January 26, 1987, Officer Jon Shipley secured a warrant to search the apartment of plaintiff-appellee Arvil Hall. Two reliable informants had supplied information to Officer Shipley that Hall was selling marijuana from his apartment. One of the informants specifically advised Shipley that the officers "would have to gain entry into the premises quickly or the dope would be gone." Thus, the officers were advised that "time might be of the essence."

During the evening of January 27, 1987, Shipley executed the warrant with the assistance of Don Boles, Phillip Nall and Jack Mansfield. When the officers arrived at Hall's residence, Hall and a female companion, Mary Lou Posey, were engaged in sexual intercourse. The officers gained entrance into Hall's apartment by forcing the front door open with a battering ram. The parties dispute whether the officers knocked and announced their identity and purpose. Officers Nall and Boles testified that they knocked loudly on Hall's door and shouted their identity. Also, Officer Mansfield testified that there were "several raps on the door." To the contrary, Hall and Posey claim that they did not hear a knock or an announcement and that upon hearing a loud noise caused by the battering ram, Posey left the bedroom and went into the livingroom, near the apartment entrance. Posey sat silently on the couch as the officers continued to break open the door.

Although all of the officers contend that they did knock and announce their purpose and authority prior to forcing entry, the officers have given varying estimates with respect to the amount of time that elapsed between the knock and announcement and the forced entry. The officers maintain that because sounds were heard after their knock and announcement which did not appear to be footsteps coming toward the door, they believed that Hall was attempting to destroy the marijuana. Thus, they contend that exigent circumstances existed which made it necessary to enter the apartment immediately after the knock and announcement. Testimony differs as to whether the officers heard noises from inside the apartment after the knock and announcement. While Sergeant Mansfield testified that he heard noises of uncertain origin, Officers Boles and Nall did not report hearing any sounds. Officer Shipley was apparently on the sidewalk at the time the decision to use the battering ram was made and did not approach the apartment's door until after it had been broken open.

Officers Boles and Nall entered the apartment with guns drawn and ordered Posey not to move. Hall's location at this time is disputed; but it is clear that he was not clothed when the officers entered. The period of time during which Hall was made to stand in the nude is disputed. Hall and Posey allege that at one point Officer Shipley ordered Hall to wear a woman's dress.

Officer Shipley conducted a search which lasted approximately twenty to thirty minutes. The search produced two containers of marijuana seeds, empty plastic bags containing marijuana residue, two sets of scales, a "roach clip" for holding marijuana cigarettes, and a "roach pipe." Neither Hall nor Posey was arrested because the Anderson County district attorney does not prosecute cases involving only minor quantities of marijuana or contraband.

Hall instituted this action on January 26, 1988, in the United States District Court for the Eastern District of Tennessee. The complaint alleged violations of 42 U.S.C. Secs. 1983 and 1985 ¹ stemming from two aspects of the search of Hall's apartment: 1) the officers' alleged failure to knock and announce their identity and purpose prior to forcing entry; and 2) the officers' alleged insistence that Hall remain naked during a portion of the search of his apartment. The complaint named Jon Shipley; the City of Oak Ridge, Tennessee; Timothy Braaten; and three "John Doe" officers who were employees of the Oak Ridge Police as defendants. The answer to the complaint, filed on February 24, 1988, revealed the identities of the three John Doe officers as Sergeant Jack Mansfield, Officer Don Boles and Officer Phillip Nall. On November 11, 1988, the defendants filed a motion for summary judgment contending that Shipley, Boles, Nall and Mansfield ("the officers") were entitled to qualified immunity. On December 29, 1988, defendants Boles, Nall and Mansfield filed a second motion for summary judgment arguing that because they were not named in Hall's initial complaint and did not become aware of Hall's suit until after the statute of limitations had run, service of process on them was insufficient and outside the statute of limitations.

The district court denied the defendants' summary judgment motion based on qualified immunity grounds. Because the search was "conducted at night, in a residence, by forceable entry," and because "plaintiff's version of the events is diametrically opposed to the defendants' version," the court held that the defendants' actions may have been violative of clearly established law. Shipley also argued that he should be granted summary judgment because he neither ordered nor participated in the use of the battering ram or in Hall's being made to stand naked. The district court found that by obtaining the warrant and conducting the search, Officer Shipley's conduct was causally connected to Hall's claims under Sec. 1983. Finally, regarding the sufficiency of process and statute of limitations issues, the court held that because officers Nall, Boles and Mansfield's identities were revealed in the defendants' answer to Hall's complaint, the defendants were bound by their admission and had waived their right to complain of insufficient service of process or the running of the statute of limitations.

II.

"[I]n reviewing a district court's ruling denying a summary judgment motion on grounds that a material issue of fact exists appellate review is governed by an 'abuse of discretion' standard." Pinney Dock and Transport Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). The issue of qualified immunity, however, is a question of law for the district court; thus, on appeal we consider the issue de novo. Eugene D. By and Through Olivi D. v. Karman, 889 F.2d 701, 706 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2631, 110 L.Ed.2d 651 (1990).

"[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Further, "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action." Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987) (citing Harlow, 457 U.S. at 819). See also Comment, Qualified Immunity for Law Enforcement Officials in Section 1983 Excessive Force Cases, 58 U.Cin.L.Rev. 243 (1989) (for an overview of the turn towards an objective standard). Hence, in determining whether an official is entitled to qualified immunity, the relevant inquiry is whether the actions of the offending officials "could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson, 483 U.S. at 638, 107 S.Ct. at 3038. When the official's claim of immunity turns on decisional law, this court must focus on whether, at the time of the officers' acts, the right asserted was "clearly established" by looking to the decisions of the Supreme Court or the Sixth Circuit Court of Appeals. Poe v. Haydon, 853 F.2d 418, 423-24 (6th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989) (citations omitted).

Hall contended below that the officers violated his fourth amendment rights in two respects: (1) the unannounced, nighttime, forced entry into his apartment; and (2) the officers insistence that Hall remain naked during a portion of the search. This court stated in United States v. Murrie, 534 F.2d 695, 698 (6th Cir.1976), that "[e]ven if police officers possess a wholly lawful warrant for arrest or search, we believe the sudden, unannounced breaking open of a dwelling, particularly in the nighttime, may ... violate ... the 'unreasonable' search standard of the Fourth Amendment." Relying on Murrie, the trial court in the instant case held that because "the search was conducted at night, in a residence, by forcible entry, and that the plaintiff's version...