Patzner v. Burkett

• Citation: 779 F.2d 1363
• Decision Date: 26 December 1985
• Docket Number: No. 85-5094,85-5094
• Parties: Leland PATZNER, Appellant, v. Joyce BURKETT a/k/a Joyce McLaughlin, Deborah Myerchin and Stutsman County, North Dakota, a political subdivision, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1363

779 F.2d 1363

Leland PATZNER, Appellant, v. Joyce BURKETT a/k/a Joyce McLaughlin, Deborah Myerchin and Stutsman County, North Dakota, a political subdivision, Appellees.

No. 85-5094

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 9, 1985.

Decided Dec. 26, 1985.

James A. Wright, Jamestown, N.D., for appellant.

Barry P. Hogan, Moorhead, Minn., for appellees.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

LAY, Chief Judge.

Leland Patzner appeals from a summary judgment entered in favor of defendants Stutsman County, North Dakota, and Stutsman County sheriff deputies Joyce Burkett and Deborah Myerchin. Patzner brought this action under 42 U.S.C. Sec. 1983, alleging that the two deputies had deprived him of his civil rights by arresting him in his home without a warrant and by using excessive force in making the arrest. ¹ He premised Stutsman County's liability on its alleged failure to properly select, train or supervise its police personnel. The district court ² granted summary judgment in favor of all defendants. Under a view of the facts in the light most favorable to Patzner, we affirm the summary judgment in favor of Stutsman County; we reverse and remand Patzner's claims against the two deputy sheriffs for a plenary trial.

Patzner, a 35 year old double amputee who lost both legs in the Vietnam War, was driving home in the early morning of April 17, 1983 when he struck another car driven by Pam Marsolek, his former sister-in-law. Patzner had been drinking beer that evening. He offered Marsolek money for the damage to her car, which she refused. He got back into his car, telling Marsolek that he would be at home if she decided to call the police. Patzner then returned to his home, about two or three blocks from the accident scene.

Marsolek did contact the police and deputies Burkett and Myerchin were dispatched to investigate. Burkett was working as a deputy sheriff at the time, while Myerchin was a volunteer special deputy accompanying Burkett on a "ride-along" basis. When they arrived at the accident scene, Marsolek told them that Patzner had been drinking and had appeared intoxicated. The deputies then drove the short distance to Patzner's house.

Lester Naatus, who was staying with Patzner, was in Patzner's front yard when the officers arrived. Burkett approached Naatus and asked him if Patzner was home. Naatus told her he was and went to get Patzner. Burkett returned to the squad car, but after a time went up to the open front door and spoke to Naatus through the screen, asking him if she could speak with Patzner. Naatus replied that Patzner was in the kitchen. Burkett then entered the house, walked into the kitchen and told Patzner he was under arrest. Patzner replied that he was not going with her.

Burkett then pulled Patzner from his chair, which was approximately 12 to 18 inches high. At the time Patzner was not wearing his prosthetic legs. Burkett took hold of his left wrist and dragged him into the living room. Patzner admits that he was initially uncooperative, but states that he agreed to go with the deputy voluntarily after being pulled through the house. According to Patzner, Burkett ignored his agreement to cooperate, and never asked him where his wheelchair or prosthetic devices were.

Burkett then began handcuffing Patzner, when Myerchin entered the house to assist her. Myerchin helped Burkett finish handcuffing him, and the two deputies proceeded to drag and carry Patzner outside, down the front walk and into the squad car. When they arrived at the station house, Patzner was again dragged and carried out of the car and up several stairs to the booking area, where he was placed on the floor. Myerchin apparently did not assist in bringing Patzner into the station house. Patzner refused to take a blood alcohol test, was booked for D.U.I. (driving under the influence of alcohol) ³ and held for detoxification. He was released approximately twelve hours later. Patzner asserts that he suffered extreme humiliation and pain by the deputies' treatment in hauling him from his home and up the jail house stairs.

Patzner was later charged with D.U.I. and prosecuted for the offense in Stutsman County Court. He moved to suppress all evidence gained by the entry into his home, and a dismissal of charges, on the ground that the arrest was illegal. The suppression court found that the arrest was unconstitutional and granted Patzner's motion to suppress. The court held that the state had failed to show the existence of exigent circumstances or consent. The state's attorney later dismissed the charges against Patzner.

Patzner then brought this Sec. 1983 action for damages. Thereafter the district court, 603 F.Supp. 1139, granted summary judgment in favor of each defendant. The court concluded that the county could not be held liable for Patzner's injuries, and that the deputies were immune from liability for the claim based on the warrantless arrest. In addition, the court found that the deputies' use of force was not unreasonable as a matter of law and dismissed his claim for excessive force. This appeal followed.

Liability of Stutsman County

Patzner claims that the county's failure to properly select, train and supervise its deputies constituted an unconstitutional "custom" within the meaning of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and was the proximate cause of his constitutional deprivation. Monell instructs that, for a municipality to be held liable under Sec. 1983, a plaintiff must show that the action alleged to be unconstitutional implements a county policy or was invoked pursuant to a governmental custom, Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36, and that the official policy was the "moving force" behind the violation. Id. at 694, 98 S.Ct. at 2037; cf. Rizzo v. Goode, 423 U.S. 362, 370-377, 96 S.Ct. 598, 603-607, 46 L.Ed.2d 561 (1976) (general allegation of administrative negligence fails to state a constitutional claim cognizable under Sec. 1983). Moreover, the plaintiff must show not only that a policy or custom existed, and that it was causally related to the plaintiff's injury, but that the policy itself was unconstitutional. See Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981); Dick v. Watonwan County, 738 F.2d 939, 943 (8th Cir.1984).

We addressed the scope of a municipality's Sec. 1983 liability for failure to train or supervise its police officers in Herrera v. Valentine, 653 F.2d 1220 (8th Cir.1981). We held that a municipality may be liable if it had notice of prior misbehavior by its officers and failed to take remedial steps amounting to deliberate indifference to the offensive acts. "Deliberate indifference" may be shown by a failure to train, or by conducting a training program in a grossly negligent manner so that police misconduct inevitably occurs. Herrera, 653 F.2d at 1224. The plaintiff must also prove that the municipality's failure to act caused the plaintiff's injuries. Id. See also Baker v. McCoy, 739 F.2d 381 (8th Cir.1984); Martin v. White, 742 F.2d 469 (8th Cir.1984).

Patzner argues that the requisite notice of prior misconduct may be inferred from the fact that Deputy Burkett has made six arrests involving "physical confrontation" with citizens. We cannot agree. Patzner failed to put forth any evidence suggesting that the arrest procedures Burkett employed on those occasions, or her use of physical means to effect them, were in any way improper. Misconduct cannot be presumed simply because a physical act occurred. The only incident described in any detail involved Burkett taking a loaded shotgun away from an intoxicated person.

Nor do we discern from the record as a whole any other facts suggesting prior notice of misconduct to the county. The night of Patzner's arrest was Special Deputy Myerchin's first night on the job. Clearly the county could not have had any prior awareness of a propensity to illegal conduct in her case. Further, absent a showing of prior misconduct, Burkett and Myerchin's behavior toward Patzner does not support an inference of notice to the county. The first isolated incident of misconduct by a subordinate employee generally is not enough to establish a policy or custom. In Oklahoma City v. Tuttle, --- U.S. ----, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), the plurality of the Court stated that:

Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. Otherwise the existence of the unconstitutional policy, and its origin, must be separately proved.

Id. 105 S.Ct. at 2436. We therefore affirm the district court's grant of summary judgment in favor of Stutsman County. ⁴

The Unconstitutional Arrest

We next address the issue of the deputies' liability for Patzner's warrantless home arrest. ⁵ Central to this question is whether the arrest did violate Patzner's fourth amendment rights. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) held that absent probable cause and exigent circumstances, warrantless felony arrests in the home are prohibited by the fourth amendment. On appeal neither party disputes the existence of probable cause to effect the arrest; at issue is whether sufficient exigent circumstances existed to overcome the strong presumption that warrantless home arrests are per se unreasonable. Payton, 445 U.S. at 586, 100 S.Ct. at 1380; see Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 2042-43, 29 L.Ed.2d 564 (1971) ("a search or seizure carried out on a suspect's premises without a warrant is per se unreasonable, unless the police can show * * * the presence of 'exigent circumstances' "); McDonald v. United...