Nocella v. Gardner

Decision Date29 November 2021
Docket Number2:21-cv-00476-TC-DAO
PartiesANTHONY J. NOCELLA, an individual, Plaintiff, v. MARCUS GARDNER, in his individual capacity, and WASATCH COUNTY, Defendants.
CourtU.S. District Court — District of Utah

Daphne A. Oberg, Magistrate Judge

ORDER AND MEMORANDUM DECISION

TENA CAMPBELL, UNITED STATES DISTRICT JUDGE

Before the court is Defendants Marcus Gardner and Wasatch County's motion for partial judgment on the pleadings filed under Federal Rule of Civil Procedure 12(c). (ECF No 9.) For the following reasons, the court GRANTS the Defendants' motion and DISMISSES the surviving negligence claim without prejudice.

FACTUAL BACKGROUND

Plaintiff Anthony Nocella is a recreational runner. With dreams of competing in the Boston Marathon, he entered the Utah Valley Marathon-a Boston qualifier-on June 1, 2019. The race starts in Wasatch County, Utah, and the course follows Main Canyon Road for about the first seven miles. Main Canyon Road has two lanes: a south lane and a north lane. At 6:00 AM, the race began, with the competitors running in both lanes. Dr Nocella was near the front of the pack. Between miles three and six, Dr. Nocella noticed Wasatch County Deputy Sheriff Marcus Gardner driving a sheriff's pickup truck toward the runners in the north lane. According to Dr. Nocella Deputy Gardner was traveling about thirty miles an hour and was not using the truck's siren. Deputy Gardner appeared to be using his truck as a means of crowd control, forcing runners to shift from the north lane to the south lane of Main Canyon Road. Several runners leapt into the south lane to avoid the truck's path.

At that moment, Dr. Nocella was running on the far-right side of the south lane-near the middle of Main Canyon Road. The truck was approaching to his right. Suddenly, the truck's passenger-side mirror struck Dr. Nocella's right side (specifically, his shoulder, arm, and hand), knocking him to the ground. Deputy Gardner, presumably unaware that he had collided with a runner, continued driving. Dr. Nocella, who was shocked and in pain, got up and continued running.

Between miles six and seven, Deputy Gardner turned his truck around and drove back in the same lane, this time following the direction of the racecourse. As the truck passed by again, Dr. Nocella flagged down Deputy Gardner and confronted him about the collision. Deputy Gardner gave Dr. Nocella his badge number, but he did not acknowledge what he had done, nor did he offer to help. The truck continued. Dr. Nocella reported this incident to two Utah Highway Patrol troopers at miles seven and fourteen, and he briefly spoke with volunteer medics at mile seventeen. He finished the race, coming nowhere close to qualifying for Boston. After the race, he sought medical treatment and counseling for the physical injuries and psychological trauma that he suffered.

Dr. Nocella sued Deputy Gardner and the County in the Fourth Judicial District Court for Wasatch County, Utah. (Compl., ECF No. 2-1.) While he did not precisely identify his causes of action, it appears that there are two claims against Deputy Gardner and two against the County. Against Deputy Gardner, Dr. Nocella first recites the elements of a 42 U.S.C. § 1983 claim for violating clearly established constitutional rights; second, he lists the familiar elements of common-law negligence. His claims against the County seem to be solely under § 1983 (more specifically, under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978)). The court discerns two distinct claims: (1) municipal liability for establishing improper policies and practices and (2) failing to properly supervise and train Deputy Gardner. The Defendants removed the case, invoking the court's federal-question jurisdiction (ECF No. 2), and then answered the complaint. (ECF No. 3.) Now they seek to obtain partial judgment on the pleadings. (ECF No. 9.)

LEGAL STANDARD

The court reviews a Rule 12(c) motion for judgment on the pleadings much as it would a Rule 12(b)(6) motion to dismiss. See Park Univ. Enters., Inc. v. Am. Cas. Co. of Reading, PA, 442 F.3d 1239, 1244 (10th Cir. 2006), abrogated on other grounds as recognized in Magnus, Inc. v. Diamond State Ins. Co., 545 Fed.Appx. 750, 753 (10th Cir. 2013). Accordingly, the court “accept[s] all facts pleaded by the non-moving party as true and grant[s] all reasonable inferences from the pleadings in favor of the same.” Id. “Judgment on the pleadings is appropriate only when ‘the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.' Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1141 (10th Cir. 2012) (quoting Park Univ., 442 F.3d at 1244).

ANALYSIS

The pertinent causes of action against both Defendants are based on 42 U.S.C. § 1983. That statute states:

Every person who, under color of any statute, ordinance regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law[.]

The complaint states three § 1983 claims: (1) Deputy Gardner's depriving Dr. Nocella of his constitutional rights, (2) Wasatch County's establishing policies and practices that led to Deputy Gardner's depriving Dr. Nocella of his constitutional rights, and (3) Wasatch County's failing to properly train and supervise Deputy Gardner. The claims against the County are wholly dependent on whether Deputy Gardner violated the Constitution, so the court will start there.

I. Section 1983 Claim Against Deputy Gardner

First, Dr. Nocella claims that Deputy Gardner should be held liable under 42 U.S.C. § 1983 because (1) Deputy Gardner acted under color of state law, (2) Deputy Gardner deprived Dr. Nocella of his Fourth Amendment constitutional rights, (3) Dr. Nocella suffered damages. Deputy Gardner raises qualified immunity as a defense.

Qualified immunity is an immunity from suit, not an affirmative defense to liability. Pearson v. Callahan, 555 U.S. 223, 231 (2009). Once a police officer raises qualified immunity, the burden shifts to the plaintiff to establish two prongs. Hollingsworth v. Hill, 110 F.3d 733, 737-38 (10th Cir. 1997). First, the plaintiff must show that the officer “violated a federal statutory or constitutional right.” District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018). Second, the plaintiff must show that “the unlawfulness of [the officer's] conduct was ‘clearly established at the time.' Id. (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). The court is free to examine the two prongs of the qualified immunity analysis in either order. Pearson, 555 U.S. at 236.

Here, because the constitutional issue is clearer, the court will start with the first prong. And because either prong can be dispositive, if Dr. Nocella fails to allege that Deputy Gardner violated the Fourth Amendment, [1] the court need not inquire into whether the relevant law was clearly established. Deputy Gardner's actions did not violate the Fourth Amendment. As a result, he is entitled to qualified immunity on the § 1983 claim.

A. Fourth Amendment Seizures

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Dr. Nocella argues that when Deputy Gardner hit him with his truck, Deputy Gardner effected an unreasonable seizure. The court must first determine whether Dr. Nocella was seized. If he was, the court must then ask whether that seizure was unreasonable.

A police officer seizes someone when he uses “physical force” or a “show of authority” to ‘restrain[] the liberty' of the person.” Torres v. Madrid, 141 S.Ct. 989, 995 (2021) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). The Torres Court distinguished between seizures by control and seizures by force. Id. at 1001. A seizure by control is what happened to the petitioner in Brower v. County of Inyo, 489 U.S. 593 (1989). In Brower, the police set up a roadblock to end a car chase. This obstruction caused the petitioner to crash his car. The Court held that the petitioner was seized because the roadblock was a “governmental termination of freedom of movement through means intentionally applied.” Id. at 597 (cited in Torres, 141 S.Ct. at 1001). A seizure by force, on the other hand, “requires the use of force with intent to restrain. Accidental force will not qualify. Nor will force intentionally applied for some other purpose satisfy this rule.” Torres, 141 S.Ct. at 998 (citing County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998)). This is an objective inquiry. Id. One example of such a seizure comes from Torres itself. When officers shot the petitioner to stop her from fleeing the scene- despite her failure to yield to the officers-they had seized her by force. Id. at 1003.

B. What Kind of Intent Matters?

Intent is at the core of both types of seizures. A seizure by control requires intent to terminate freedom of movement and obtain control. A seizure by force requires intent to restrain. Perhaps realizing that proceeding under a negligence theory alone would doom his § 1983 claim [2] Dr. Nocella ratchets up the rhetoric in his opposition memorandum. He calls Deputy Gardner's actions “an abuse of power, ” an “intentional[] use[] [of] deadly force, ” and a means “to physically control and stop innocent citizens' movement without provocation.” (Opp'n at 5, ECF No. 10.) He later lowers his tone, arguing that because Deputy Gardner intended to move the runners into the south lane by driving in their direction, the intent element...

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