Lopez-Buric v. Notch

• Citation: 168 F.Supp.2d 1046
• Decision Date: 17 April 2001
• Docket Number: No. 00-CV-928 ADM/RLE.,00-CV-928 ADM/RLE.
• Parties: Kathleen LOPEZ-BURIC, Plaintiff, v. Officer David NOTCH; Officer Bradley Thelen; City of Waite Park; and Stearns County, Defendants.
• Court: U.S. District Court — District of Minnesota

168 F.Supp.2d 1046

Kathleen LOPEZ-BURIC, Plaintiff, v. Officer David NOTCH; Officer Bradley Thelen; City of Waite Park; and Stearns County, Defendants.

No. 00-CV-928 ADM/RLE.

United States District Court, D. Minnesota.

April 17, 2001.

As Amended April 25, 2001.

John G. Shulman, and David M. Sullivan, Shulman Law Firm, Minneapolis, MN, appeared for and on behalf of the Plaintiff.

Jon K. Iverson, and Jason J. Kuboushek, Erstad & Riemer, Minneapolis, MN, appeared for and on behalf of Defendants Officer Bradley Thelen and City of Waite Park.

Ann R. Goering, Ratwik, Roszak & Maloney, Minneapolis, MN, appeared for and on behalf of Defendants Officer David Notsch and Stearns County.

MEMORANDUM OPINION AND ORDER

MONTGOMERY, District Judge.

I. INTRODUCTION

On February 20, 2001, this matter came on for hearing before the undersigned United States District Court Judge pursuant to Defendants' Summary Judgment Motions [Doc. Nos. 20 & 28]. For the reasons set forth below, the motions are granted in part and the case is remanded to state court.

II. BACKGROUND

A. Parties

Plaintiff is Kathleen Lopez-Buric ("Lopez-Buric"). Defendant Bradley Thelen ("Thelen") is a Waite Park police officer. Defendant City of Waite Park ("the City") is a municipality duly incorporated under the laws of the State of Minnesota and is Thelen's employer. Defendant David Notsch ("Notsch") is an officer in the Stearns County Sheriff's Department. Defendant Stearns County ("the County") is a political subdivision duly incorporated under the laws of the State of Minnesota and is Notsch's employer.

B. Facts¹

Thelen arrested Lopez-Buric for driving under the influence of alcohol in the early morning of April 11, 1998. En route to the Stearns County Jail, Thelen allegedly put tight handcuffs on Lopez-Buric and pushed and pulled her into and out of his squad car using the handcuff chain. Lopez-Buric Dep. at 24-25. At the jail, Thelen initiated the informed consent process for alcohol blood testing. Id. at 50-51. During this process, Lopez-Buric kicked Thelen's desk, which prompted Thelen to restrain her with an "arm bar" maneuver. Id. at 50-51. After she stated that she was in pain and would go willingly to the cell, Thelen released the arm bar and Lopez-Buric was taken to a jail cell. Id. at 51-53.

Lopez-Buric alleges that she was beaten during the night by Notsch and other Stearns County Jail staff. Id. at 91-93, 96-97, 121-22. First, Stearns County jailor Earl LaBon pulled her from her cell. Id. at 91-93. When she attempted to physically prevent him from doing so by bracing herself in the cell's doorframe, LaBon or another officer raked his foot down her shin and shoved her back in the cell. Id. at 93.

Later, Notsch took Lopez-Buric out of the cell to complete the booking process. When she refused to answer questions about the marital status of her parents, Notsch and another officer attempted to put her back in her cell. Id. at 122. When Lopez-Buric again resisted by bracing herself in the doorway, the two officers kicked her shins and put her back into the cell. Id.

Notsch later removed Lopez-Buric from her cell to take her fingerprints. Id. at 95-98. After Lopez-Buric made several complaints about the process, Notsch attempted to return her to the cell. Id. at 96. Lopez-Buric again resisted by bracing herself on the doorframe. Id. Notsch responded by grabbing her foot and forcing her into the cell. Id. Notsch and another officer then shoved her into a corner, where Notsch grabbed her throat, slammed her head against the wall, and then threw her across the cell. Id. at 97. Lopez-Buric was released from jail later that morning.

III. DISCUSSION

Lopez-Buric's Amended Complaint brings claims for assault, battery, and violations of 42 U.S.C. § 1983 against Thelen, the City, Notsch, and the County. Defendants Thelen and the City move for summary judgment on three grounds: (1) Lopez-Buric did not sue Thelen in his individual capacity in her Amended Complaint; (2) Thelen is entitled to qualified/official immunity; and (3) Lopez-Buric has not made out a case for municipal liability under § 1983. Defendants Notsch and the County seek summary judgment because: (1) Notsch was not sued in his individual capacity; (2) Lopez-Buric failed to state a claim for race discrimination under § 1983; and (3) Notsch was not properly served.

A. Individual/Official Capacity

Both Thelen and Notsch argue that any § 1983 claims against them personally should be dismissed because neither the Complaint nor the Amended Complaint sues them in their individual capacity. Lopez-Buric asserts that Thelen and Notsch are sued in their individual capacities because the pleadings place the officers on notice that they are sued personally. Lopez-Buric asks that if the Amended Complaint is insufficient in this regard that she be given leave to amend.

Under § 1983, public employees may be sued officially, individually or both. Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir.1999). However, a § 1983 suit against an employee in their official capacity is deemed to be a suit against the employer only. Id. A § 1983 suit against the governmental entity employer is considered to be a Monell claim. In Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court determined that municipalities and other local governmental entities could be sued under section § 1983, but only for the entity's unconstitutional or illegal policies.

Lopez-Buric avers that a complaint need not specifically state that the individual is being sued in his individual capacity, relying on Jackson v. Crews, 873 F.2d 1105 (8th Cir.1989), as authority. Jackson held that as long as the complaint is sufficient to put the defendant on notice that he is being sued in his individual capacity, the fact that the phrase "individual capacity" appears nowhere in the case caption is not fatal. Id. at 1107. The Jackson court, in a cursory discussion, admonished future litigants to "indicate both the parties being sued and their capacity in the caption." Id. The Jackson analysis focused on the caption and does not specify what allegations in the complaint put the defendants on notice that they were being sued in their individual capacity. Id.

In Johnson v. Outboard Marine Corp., the Eighth Circuit explicitly stated that "in order to sue a public official in his or her individual capacity, a plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it will be assumed that the defendant is sued only in his or her official capacity. Because section 1983 liability exposes public servants to civil liability and damages, ... only an express statement that they are being sued in their individual capacity will suffice to give proper notice to the defendants." 172 F.3d at 535 (emphasis added); accord Hawks v. Jones, 105 F.Supp.2d 718, 722 (E.D.Mich.2000) ("The face of a complaint must indicate whether a plaintiff seeks to recover damages from the defendants directly.") The Eighth Circuit has repeatedly applied this requirement. See Andrus v. Arkansas, 197 F.3d 953, 955 (8th Cir. 1999); Artis v. Francis Howell N. Band Booster Assoc., Inc., 161 F.3d 1178, 1182 (8th Cir.1998) ("If the complaint does not specifically name the defendant in his individual capacity, it is presumed he is sued only in his official capacity."); Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir.1995); Nix v. Norman, 879 F.2d 429, 431 (8th Cir.1989).

Although Johnson involved a suit against municipal defendants, Lopez-Buric asserts that the remaining Eighth Circuit cases are distinguishable because they arose in the context of a suit against a state government entity, which is forbidden by the Eleventh Amendment. While these cases do discuss the application of the Eleventh Amendment, it is explicitly expressed as an additional rationale for the express statement requirement. See Andrus, 197 F.3d at 955; Nix, 879 F.2d at 431. Thus, the requirement stands on the notice rationale alone, regardless of the presence of Eleventh Amendment issues. Lopez-Buric's assertion to the contrary is further undercut by two recent unpublished opinions where the Eighth Circuit again relied upon Johnson's explicit statement requirement in dismissing § 1983 complaints against city employees. D.E.S. v. Kohrs, No. 98-3756, 1999 WL 506121, at *1 (8th Cir. July 16, 1999); Palmer v. Bains, No. 98-2219, 1999 WL 535759, at *1 (8th Cir. July 6, 1999).

Lopez-Buric's Amended Complaint does not contain an explicit statement of individual liability as the Eighth Circuit requires of a plaintiff's complaint in a § 1983 case. Johnson, 172 F.3d at 535. This is not a burdensome requirement; a § 1983 plaintiff need only state somewhere in the complaint that the plaintiff "sues each and all defendants in both their individual and official capacities." Nix, 879 F.2d at 431.

Furthermore, even given Lopez-Buric's preferred broad reading of Jackson, the Amended Complaint remains insufficient to put Thelen and Notsch on notice that they are being sued in their individual capacities. The caption does not state that Notsch and Thelen are being sued as individuals. Use of the phrases "Officer David Notsch" and "Officer Bradley Thelen" rather than just "David Notsch" and "Bradley Thelen" in the caption can be construed as notice that they are being sued in their official capacity and not as individuals. The Amended Complaint states that Thelen was "at all times material herein, a duly appointed Waite Park police officer and was acting in that capacity" and that Notsch was "at all times material herein, a duly appointed officer of the Stearns County Sheriff's Department and was acting in that capacity." Amended Compl. ¶¶ 3-4. This language focuses on the official capacity of the officers, without any intimation of individual liability.

Moreover, Lopez-Buric's Amended Complaint alleges that she was beaten up...