Lee v. Greene

• Decision Date: 03 May 1994
• Docket Number: No. 9311SC533,9311SC533
• Citation: 114 N.C.App. 580,442 S.E.2d 547
• Parties: Gail LEE, Plaintiff-Appellee/Cross-Appellant, v. S.D. GREENE, Individually and in his official capacity as an officer of the North Carolina Highway Patrol; and Brad Myers, Individually and in his official capacity as an officer of the North Carolina Highway Patrol, Defendants-Appellants/Cross-Appellees.
• Court: North Carolina Court of Appeals

Page 547

442 S.E.2d 547

114 N.C.App. 580

Gail LEE, Plaintiff-Appellee/Cross-Appellant, v. S.D. GREENE, Individually and in his official capacity as an

officer of the North Carolina Highway Patrol; and Brad

Myers, Individually and in his official capacity as an

officer of the North Carolina Highway Patrol,

Defendants-Appellants/Cross-Appellees.

No. 9311SC533.

Court of Appeals of North Carolina.

May 3, 1994.

Patterson, Harkavy & Lawrence, by Melinda Lawrence and Maxine Eichner, Raleigh, for plaintiff.

Michael F. Easley, Atty. Gen. by Linda M. Fox, Asst. Atty. Gen., and Robert T. Hargett, Associate Atty. Gen., Raleigh, for defendants.

LEWIS, Judge.

Plaintiff commenced this action against defendants individually, and in their official capacities as North Carolina Highway Patrol officers, to recover for injuries sustained as a result of an altercation between plaintiff and defendants. Plaintiff's complaint alleged, inter alia, causes of action for excessive force and unlawful entry in violation of 42 U.S.C. § 1983 and for trespass. Defendants asserted the defense of qualified immunity and moved for summary judgment on these three claims only. The trial court denied defendants' motion for summary judgment on the excessive force claim, but granted the motion as to the unlawful entry and trespass claims. From the denial of summary judgment on the excessive force claim, defendants appeal. From the granting of summary judgment on the unlawful entry and trespass claims, plaintiff cross-appeals.

The events giving rise to this appeal occurred on 20 April 1991. At approximately 11:00 p.m. that night, plaintiff, her husband, Robert Lee (hereinafter "Lee"), who was driving, and her fifteen year-old son were returning home after a visit to plaintiff's mother's house. As they neared plaintiff's house, defendant Greene, a North Carolina Highway Patrol officer, observed Lee driving in an erratic manner and signaled to stop the car. Lee pulled into his own driveway and stopped the car. Greene followed, approached them and repeatedly requested Lee to produce his driver's license, but Lee refused. Greene testified that during this time, plaintiff was yelling at him and using profane language, which plaintiff denies. Greene then arrested Lee and placed him in the patrol car. While Lee was seated in the patrol car, plaintiff stood in front of the open car door and, according to Greene, refused to move. Plaintiff denies being asked to move. Greene testified that he then placed plaintiff under arrest for obstructing and delaying the arrest of Lee, and he radioed for assistance. Plaintiff testified that the only mention she heard about her arrest came when defendant Myers, responding to Greene's call, arrived and Greene told Myers that he had placed Lee under arrest and was considering placing plaintiff under arrest.

By the time Trooper Myers arrived, plaintiff's mother and her mother's boyfriend had arrived on the scene. Plaintiff testified that after Trooper Myers arrived, she walked back to her house to avoid further trouble. Defendants testified that plaintiff ran toward the house, and they pursued her. As plaintiff reached the top outside step leading into her kitchen, defendants caught up to her. The parties disagree sharply as to what happened next.

Defendants testified that when they reached the kitchen and confronted plaintiff, plaintiff was swinging her arms wildly. Each defendant grabbed one arm of plaintiff and subdued her. Plaintiff then went down on her knees and fell on the floor. Defendants noticed a small amount of blood under her right eye. Greene testified that at no time did he intentionally strike plaintiff. Myers testified that he never struck plaintiff.

Plaintiff's testimony, corroborated by the testimony of her son, her mother, and her mother's boyfriend, who were all in the kitchen when the struggle occurred, was markedly different from that of defendants. Plaintiff testified that as she entered the kitchen and was closing the door, defendants flung the door open, grabbed plaintiff, and pushed her onto the sink as plaintiff was attempting to tell defendants that she had done nothing wrong. Plaintiff's mother then informed defendants that plaintiff had back problems. As plaintiff tried to get off of the sink, Greene hit plaintiff in the mouth. Plaintiff's son testified that Greene pulled his fist back even with his shoulder before striking plaintiff. Plaintiff and her witnesses testified that after the blow to the mouth, defendant Myers hit her in the head with his flashlight and then pressed the flashlight into her temple. As a result of the blows, plaintiff lost consciousness and was taken to the hospital.

I. Defendants' Appeal

Defendants contend that the trial court erred in not granting summary judgment for them on plaintiff's section 1983 excessive force claim, based on their defense of qualified immunity. We note that while the denial of a motion for summary judgment is not normally immediately appealable, when the motion for summary judgment is based on a qualified immunity defense to a section 1983 claim, the denial of the motion is immediately appealable. Corum v. University of North Carolina, 330 N.C. 761, 767, 413 S.E.2d 276, 280, cert. denied, 506 U.S. 985, 113 S.Ct. 493, 121 L.Ed.2d 431 (1992).

Turning to the merits of the case, we first address the excessive force claim against defendants in their official capacities. When the remedy sought is monetary damages, there can be no section 1983 claim against state officials and agents in their official capacities. Lenzer v. Flaherty, 106 N.C.App. 496, 513, 418 S.E.2d 276, 287, disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992). There can be no claim because in their official capacities, they are not "persons" covered by section 1983. Id. In the present case, because plaintiff seeks only monetary damages, the trial court erred in not granting summary judgment for defendants on the excessive force claim against them in their official capacities. Accordingly, we reverse the order of the trial court as to defendants in their official capacities and remand for entry of summary judgment.

However, as to the excessive force claim against defendants in their individual capacities, the trial court properly denied summary judgment, based on defendants' claim of qualified immunity. The test of qualified immunity for police officers sued under 42 U.S.C. § 1983 is whether in performing discretionary functions, they have engaged in conduct that violates "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, 410 (1982); Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir.1992). Therefore, ruling on a defense of qualified immunity requires (1) identification of the specific right allegedly violated; (2) determining whether at the time of the alleged violation the right was clearly established; and (3) if so, then determining whether a reasonable person in the officer's position would have known that his actions violated that right. Pritchett, 973 F.2d at 312. While the first two requirements involve purely matters of law, the third may require factual determinations respecting disputed aspects of the officer's conduct. Id. Thus, "[i]f there are genuine issues of historical fact respecting the officer's conduct or its reasonableness under the circumstances, summary judgment is not appropriate, and the issue must be reserved for trial." Id. at 313.

In the present case, the facts are clearly in dispute concerning defendants' conduct and the circumstances surrounding plaintiff's arrest. Accordingly, the trial court properly denied summary judgment. Defendants argue, however, that the right allegedly violated was not "clearly established," and therefore the trial court should have resolved the issue of qualified immunity as a matter of law, without having to address the third requirement. We disagree, and hold that the right allegedly violated was clearly established.

In determining whether a particular right was clearly established, the focus of the inquiry should be on the application of the right to the specific conduct being challenged. Id. at 312. Plaintiff's complaint alleges that the right violated was her Fourth Amendment right to be free from unreasonable seizure. As alleged here, the right was violated by defendants' pursuing her into her kitchen, seizing her bodily, and hitting and pushing her. As established by the Supreme Court, the test for determining whether this right has been violated requires a balancing of the nature and quality of the intrusion of the Fourth Amendment interest against the governmental interest alleged to justify the intrusion. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443, 455 (1989). In balancing the interests, careful attention must be paid to the facts and circumstances of the case, "including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight." Id.

On the facts of the present case, taken in the light most favorable to plaintiff, the governmental interest in apprehending plaintiff for obstructing and delaying the arrest of her husband was minor, and the Fourth Amendment intrusion was severe; defendants' actions, when viewed in this light, violated plaintiff's Fourth Amendment right. Accordingly, the right violated was "clearly established," and defendants' argument to the contrary is without merit. For the foregoing reasons, we affirm the denial of defendants' motion for summary judgment as to plaintiff's claim of excessive force against defendants in their individual...