McClennon v. Kipke

• Decision Date: 31 October 2011
• Docket Number: Civ. No. 10–2598 (RHK/JJK).
• Citation: 821 F.Supp.2d 1101
• Parties: Joseph McCLENNON, Plaintiff, v. Matthew KIPKE, et al., Defendants.
• Court: U.S. District Court — District of Minnesota

821 F.Supp.2d 1101

Joseph McCLENNON, Plaintiff,

v.Matthew KIPKE, et al., Defendants.

Civ. No. 10–2598 (RHK/JJK).

United States District Court, D. Minnesota.

Oct. 31, 2011.

Peter J. Nickitas, Peter J. Nickitas Law Office, LLC, Minneapolis, MN, Mark D. Luther, Mark Luther Law Office, Minnetonka, MN, for Plaintiff.

Sara J. Lathrop, Amanda M. Trelstad, Susan L. Segal, Minneapolis City Attorney's Office, Minneapolis, MN, for Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD H. KYLE, District Judge.

INTRODUCTION

This case arises out of Plaintiff Joseph McClennon's December 20, 2006, arrest by Minneapolis police officers—on that, the parties agree. Otherwise, their stories differ greatly. McClennon asserts that the officers—Defendants Matthew Kipke, Paul Schweiger, James Carroll, and Chad Hofius—lacked probable cause to arrest him and subjected him to excessive force in effecting his arrest. The officers contend that McClennon was a belligerent suspect who attempted to assault them, ultimately requiring the use of a Taser before he could be subdued. In this action, McClennon asserts claims under the United States Constitution and Minnesota law arising out of his arrest; Defendants now move for summary judgment. For the reasons set forth below, their Motion will be granted in part and denied in part.

BACKGROUND

As required at this juncture, the pertinent facts are recited below in the light most favorable to McClennon. E.g., Rau v. Roberts, 640 F.3d 324, 327 (8th Cir.2011).

On December 21, 2006, McClennon was residing with his aunt, Victoria Johnson, at her home near the intersection of Penn Avenue North and 30th Street in Minneapolis. (McClennon Dep. at 8, 26, 30–31.) ¹ Early that evening, he was standing on the “boulevard,” a grassy strip between 30th Street and the sidewalk in front of Johnson's home, waiting for his girlfriend to pick him up; while waiting, he chatted with his cousin, Blake Harris, through an upstairs window. ( Id. at 26–28.)

As McClennon was standing on the boulevard, a police car driven by Schweiger (and in which Carroll was a passenger) slowly drove down the opposite side of 30th Street. ( Id. at 29; Schweiger Dep. at 7–8, 15.) Schweiger stuck his head out of the car's window and “stared down” McClennon. (McClennon Dep. at 29, 33.) McClennon asked Schweiger if there was a problem, and Schweiger backed up the squad car and parked in front of Johnson's home. ( Id. at 33.) McClennon then walked from the boulevard to Johnson's lawn, at which point Schweiger grabbed him and “forcibly” pushed him against the hood of the squad car. ( Id. at 33–35.) He then began searching McClennon. ( Id. at 35.)

Schweiger emptied McClennon's pockets as another police car, driven by Hofius (and in which Kipke was a passenger), arrived on the scene. ( Id. at 36; Hofius Dep. at 9–10.) Schweiger removed some papers, a key chain, a “do rag,” and an identification card from McClennon's pockets and placed them onto the hood of his car, and he then placed McClennon into the back seat. (McClennon Dep. at 37.) According to Schweiger, McClennon had a small marijuana pipe on his keychain, although McClennon disputes that assertion. (Schweiger Dep. at 20–21; McClennon Dep. at 38.) Regardless, Schweiger began to write McClennon a citation for possession of drug paraphernalia. (Schweiger Dep. at 22; McClennon Dep. at 40.) Meanwhile, Harris informed Johnson that McClennon was being arrested. Johnson, Harris, and two other family members came out of Johnson's home and began asking the officers what McClennon had done wrong. (McClennon Dep. at 38–39.) Hofius “wouldn't tell [Johnson] anything, and then he called her ignorant.” ( Id. at 39.)

Eventually, Schweiger released McClennon from the squad car and handed the citation to him, which McClennon “grabbed.” ( Id. at 40.) As he began walking toward Johnson's house, Johnson reminded him that his belongings remained on the hood of Schweiger's car. ( Id.) McClennon turned around, walked back to the car, and began gathering the items that had been removed from his pockets; Schweiger then started to flick them off the hood with a flashlight. ( Id.) As McClennon reached for his possessions, the flashlight hit him “on [his] knuckles ... pretty hard,” and he reacted by “push[ing] the flashlight back” with his fingers. ( Id.)

In response, Schweiger grabbed McClennon in a “bear hug” while another officer grabbed him from behind, lifting his arms over his head in a “full-nelson.” ( Id. at 41–43.) A third officer then grabbed McClennon from the side. ( Id. at 43.) The officers' actions caused McClennon to “spin” towards the ground ( id. at 43–45, 50), and one of the officers called out, “Ta[s]e him.” ( Id. at 45.) ² Johnson, who had been watching the events unfold, ran to McClennon and jumped on him, telling him to get on the ground. ( Id. at 45, 47–48.) The officers “threw” Johnson off McClennon, and Carroll then Tasered McClennon. ( Id. at 55.) When Johnson jumped on top of McClennon a second time, officers threw her off again and maced her. ( Id. at 59.) The officers then lifted McClennon from the ground; Hofius handcuffed him, informed him that he was under arrest, and placed him in the back of Schweiger's squad car. ( Id. at 61–62; Hofius Dep. at 15–16.) ³

McClennon was charged with a gross misdemeanor of obstructing legal process and held overnight in the Hennepin County Jail; he was released the following day, December 21, 2006. (Lathrop Aff. Exs. 5, 12.) The charge was later dropped when the officers failed to appear at a court hearing. (Cole Dep. at 11.) After learning that the officers had not been advised of the hearing date, however, the prosecutor re-charged the case and McClennon was arrested on the charge a second time. ( See Cole Dep. at 14; Lathrop Aff. Ex. 13.) The case was subsequently dismissed, for reasons not entirely clear from the record.

On June 24, 2010, McClennon commenced this action against Schweiger, Carroll, Hofius, and Kipke (the “Individual Defendants”), as well as the City of Minneapolis (the “City”), asserting six claims: unreasonable seizure (Count I) and excessive force (Count II) in violation of the Fourth Amendment, against the Individual Defendants; ⁴ malicious prosecution (Count III), abuse of process (Count IV), and negligence (Count VI), against all Defendants; and false imprisonment (Count V), against the City alone. Each Defendant—save Hofius—was served with the Summons and Complaint shortly after the action was filed. ( See Doc. No. 6.) Hofius was not served at that time because he was then “on military leave and will not return for approximately a year.” (Doc. No. 6.) Despite more than 16 months having passed since McClennon commenced his action, it is undisputed that Hofius never has been served with process.

With discovery complete, Defendants have moved for summary judgment. The Court held a hearing on the Motion on October 26, 2011, and it is now ripe for disposition.

STANDARD OF DECISION

Summary judgment is proper if, drawing all reasonable inferences in favor of the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. Id. at 322, 106 S.Ct. 2548; Whisenhunt v. Sw. Bell Tel., 573 F.3d 565, 568 (8th Cir.2009). The Court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. Weitz Co., LLC v. Lloyd's of London, 574 F.3d 885, 892 (8th Cir.2009); Carraher v. Target Corp., 503 F.3d 714, 716 (8th Cir.2007). The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wingate v. Gage Cnty. Sch. Dist., No. 34, 528 F.3d 1074, 1078–79 (8th Cir.2008).

ANALYSIS

I. Qualified immunity

The Individual Defendants first argue that they are entitled to qualified immunity on McClennon's federal claims. In analyzing that assertion, the Court must conduct a two-part inquiry. First, it must assess whether the facts alleged, when viewed in the light most favorable to McClennon, show that the challenged conduct violated a constitutional right. If a violation could be established based on those facts, the Court must then determine whether the constitutional right at issue was clearly established on the date in question. E.g., Avalos v. City of Glenwood, 382 F.3d 792, 798 (8th Cir.2004) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). As the Supreme Court recently recognized, when undertaking this inquiry the Court may skip Saucier's first step and proceed directly to whether the constitutional right at issue was clearly established when the alleged violation occurred. Pearson v. Callahan, 555 U.S. 223, 235–36, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

A. Excessive force (Count II)

The Court follows the parties' lead and begins its analysis with McClennon's excessive-force claim. The viability of that claim turns on Saucier's second step, namely, clearly established law. It is undisputed that it was clearly established on December 20, 2006, the date of McClennon's arrest, that an arrestee enjoyed the right to be free from excessive force during an arrest. E.g., Andrews v. Fuoss, 417 F.3d 813, 818 (8th Cir.2005). Yet, the Eighth Circuit recently noted that “over the course of more than fifteen years, ... it ... remain[ed] an open question in this circuit whether an excessive force claim requires some minimum level of injury.” Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir.2011) (emphasis added). Indeed, different Eighth–Circuit panels had reached...