Policky v. City of Seward, Neb., 4:05CV3212.
| Decision Date | 25 May 2006 |
| Docket Number | No. 4:05CV3212.,4:05CV3212. |
| Citation | 433 F.Supp.2d 1013 |
| Parties | Larry POLICKY, Plaintiff, v. CITY OF SEWARD, Nebraska, and Craig Shook in his individual and official capacity, Defendants. |
| Court | U.S. District Court — District of Nebraska |
Joy A. Shiffermiller, Shiffermiller Law Firm, Lincoln, NE, for Plaintiff.
Jarrod S. Boitnott, Randall L. Goyette, Baylor, Evnen Law Firm, Lincoln, NE, for Defendant.
Early in the afternoon on October 23, 2004, the volunteer rescue squad for the City of Seward, Nebraska, received a call for assistance at the home of the plaintiff, Larry Policky, and his mother. The first to respond were the captain of the rescue squad, Lisa Kimsey, and her husband, James Kimsey. Upon arriving at the Policky residence, the Kimseys were invited inside by the plaintiffs mother; who stated that her son (who was then 58 years old) was "acting funny" and had not left his room for two days. Lisa Kimsey knew that the rescue squad had been to the Policky residence on prior occasions because of diabetes-related emergencies involving the plaintiff.
After speaking with Mrs. Policky, the Kimseys went to the plaintiffs bedroom, announced themselves, and opened the door. Mr. Policky, who was in bed, told them to leave him alone. He refused to be examined. According to Mr. Policky, he told the Kimseys that he had seen his doctor the previous day and had been taken off a prescription medicine (Zocor) that had been causing sleep disturbances, and that he did not require any assistance from the rescue squad. He also states that he knew he was not having an insulin reaction because he had tested his blood sugar level that morning. According to Lisa Kimsey, however, Mr. Policky was cursing and yelling at her and her husband to get out of his house. The plaintiff admits that he was "a little upset" because he had told his mother 3 or 4 times not to call the rescue squad, and that he "raised [his] voice" while talking to the Kimseys, but he denies yelling at them or using any profanity. (Policky Affidavit Exhibit B (filing 29-4), at 4.)1
In any event, the Kimseys closed the bedroom door and returned to the living room, where they determined to call the police to request assistance. Lisa Kimsey thought that Mr. Policky appeared confused and combative, and was concerned that he might be having a diabetic reaction. She was concerned that Mrs. Policky might be in physical danger because the plaintiff was so angry, and she was also concerned for her own safety. About this time 3 more members of the rescue squad arrived with an ambulance, but they stayed outside the house while awaiting the police.
The defendant, Craig Shook, a member of the Seward Police Department, arrived 5 to 7 minutes later and conferred outside with Lisa Kimsey. After obtaining Mrs. Policky's permission to enter the house, Officer Shook, accompanied by James Kimsey and another member of the rescue squad, Chad King, went to the plaintiffs bedroom. Officer Shook knocked on the door, identified himself, and asked Mr. Policky to come out and talk with him and the paramedics. Mr. Policky refused and demanded that everyone leave the house. According to Officer Shook, the plaintiff "began screaming through the door that he did not need medical treatment and that we should `Get the fuck out of here[,]' ... that this was all his mother's fault and that she didn't know what she was talking about[.]" (Shook Affidavit (filing 21-2), ¶ 4). None of this is disputed by Mr. Policky.2 In fact, he admits to being "really upset" that the rescue squad members had called the police department for assistance after he had told them that there was nothing they could do for him. (Policky Affidavit Exhibit B, at 2.)
According to Mr. Policky, he had retested his blood sugar level since talking to the paramedics and, finding that it was too high, was preparing to take insulin in the bathroom that adjoined his bedroom. He states that he informed Officer Shook several times that he wanted to take insulin to lower his blood sugar level, but received no response or acknowledgment.3 Officer Shook has not refuted this, but simply states that Mr. Policky told him in response to questioning that he had not eaten for two days.
After conversing with Mr. Policky for a few minutes, Officer Shook returned to the living room and talked with Mrs. Policky. She confirmed that her son had not eaten for two days, and stated that he had been having some health problems lately.
Officer Shook next phoned his lieutenant to inform him of the situation, and afterward told Mrs. Policky that he was going to try to get her son out of the bedroom so that he could be examined. He also stated that it might be necessary to restrain Mr. Policky to accomplish this. When Mrs. Policky gave her approval to this plan, Officer Shook, James Kimsey, and Chad King returned to the plaintiffs bedroom.
Officer Shook states that he knocked on the bedroom door and announced himself again, and that the plaintiff "again began using profanities yelling that he was fine and demanding that [everyone] leave the house." (Shook Affidavit, ¶ 8.) Officer Shook then "said that [he] believed Mr. Policky was not behaving rationally and that he should be checked out by a paramedic or doctor to make sure he wasn't in danger[,]" to which "Mr. Policky again yelled that he was fine, to `get the hell out of here,' and generally repeated what he had been yelling before." (Id.) Mr. Policky does not mention this renewed exchange of words, but merely states that he "was sitting on the stool in [his] bathroom" and that when he looked up he saw Officer Shook standing "about 3 feet from [his] bathroom door ... [with] a taser gun pointed at [him]." (Policky Affidavit Exhibit B.) Officer Shook states that he drew his taser gun before opening the unlocked bedroom door and kept it pointed at the ground; that he and the two rescue squad members entered the bedroom and saw that Mr. Policky was in the bathroom, fully clothed, sitting on the toilet; that he put away his taser gun when he saw that Mr. Policky had nothing in his hands; and that he directed one of the paramedics to remove a knife or pair of scissors that was lying on a dresser in the bedroom. Officer Shook denies that he ever pointed the taser gun at Mr. Policky.
At some point, Mr. Policky stood up and closed the bathroom door, locking it. He states that he was worried that Officer Shook was going to use the taser gun on him, and was especially concerned about this because he had undergone heart surgery only two months earlier and did not think that he could survive the electrical shock.
Officer Shook picked the lock and began to open the bathroom door, but Mr. Policky pushed it shut and locked it again. Officer Shook picked the lock again and forced his way into the bathroom against Mr. Policky's physical resistance. Officer Shook states that the plaintiff also attempted to push him away after the door was opened, but Mr. Policky denies this.
Officer Shook then grabbed Mr. Policky, turned him around, and pushed him down to a kneeling position. Mr. Policky states that his back was painfully wrenched when he was forced to the floor, and that Officer Shook also put a knee into his back to handcuff him.4 Officer Shook states that he decided to handcuff Mr. Policky with his hands behind his back because there were needles on the sink that could be used as weapons. Mr. Policky also complains that the handcuffs were too tight.
The handcuffs were removed after Mr. Policky was walked to the living room and either before or after he was placed on a gurney and strapped down with the usual safety restraints. He was then transported to the hospital in the ambulance but was released after being examined in the emergency room.
The plaintiffs two-count complaint alleges (1) that the City of Seward was negligent, and is liable under the Nebraska Political Subdivision Tort Claims Act, because its police department "failed to supply proper policies to train Officer Shook with the proper procedures when using a taser gun, restraining Plaintiff with unreasonable force, and failing to train Officer Shook how to determine what facts and circumstances merit the use of force," and (2) that Officer Shook is liable under 42 U.S.C. § 1983 because "the Plaintiffs right to be free from unlawful searches or seizure of himself or to have his property damaged or taken from him without due process of law was violated contrary to the IV and XIV Amendments to the United States Constitution." (Filing 1, ¶¶ 26, 32.) Both defendants have now moved for summary judgment in a jointly filed motion.
On the constitutional tort claim, I will grant the motion in part and will deny it in part. That is, I will (1) dismiss all § 1983 claims alleged against the City, (2) dismiss all Fourteenth Amendment substantive due process claims alleged against Officer Shook, (3) dismiss the Fourth Amendment claim for unlawful arrest against Officer Shook, and (4) dismiss in part the Fourth Amendment excessive force clam alleged against Officer Shook, insofar as complaint is made about (a) his use of handcuffs and (b) his display of a taser gun. However, I will not dismiss the Fourth " Amendment excessive force claim alleged against Officer Shook, in his individual capacity, insofar as complaint is made that he injured the plaintiffs back. On the negligence claim alleged against the City, the motion will be granted.
I. DISCUSSION
Summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Egan v. Wells Fargo Alarm Servs., 23 F.3d 1444, 1446 (8th Cir.1994). It is not the court's function to weigh evidence in the summary...
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