Prymer v. Ogden

• Decision Date: 21 July 1994
• Docket Number: No. 93-1529,93-1529
• Citation: 29 F.3d 1208
• Parties: 40 Fed. R. Evid. Serv. 1447 Johnny Lee PRYMER, Plaintiff-Appellant, v. Kevin OGDEN, Simon Solis, and Mark Hollis, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1208

29 F.3d 1208

40 Fed. R. Evid. Serv. 1447

Johnny Lee PRYMER, Plaintiff-Appellant, v. Kevin OGDEN, Simon Solis, and Mark Hollis, Defendants-Appellees.

No. 93-1529.

United States Court of Appeals Seventh Circuit.

Argued April 8, 1994.

Decided July 21, 1994.

Andrey Filipowicz, Chicago, IL (argued), for plaintiff-appellant.

Ronald N. Schultz, Kathleen Elliott, Daniel J. McGrail, Douglas P. Scott (argued), City of Rockford Law Dept., Rockford, IL, for defendants-appellees.

Before CUMMINGS and RIPPLE, Circuit Judges, and TINDER, District Judge. ^*

RIPPLE, Circuit Judge.

Johnny Lee Prymer brought this action under 42 U.S.C. Sec. 1983 in which he alleged that the defendants, Officers Kevin Ogden, Simon Solis, and Mark Hollis, violated his Fourth Amendment rights when they used excessive force to arrest him. A bench trial was held and judgment entered in favor of the defendants. Mr. Prymer now appeals. For the reasons that follow, we affirm.

I BACKGROUND

A. Facts

On January 9, 1991, Johnny Lee Prymer heard over his police scanner that members of the Rockford Police Department were watching for a suspect named Richard Prymer, Mr. Prymer's brother, outside a known drug house. Mr. Prymer hurried to the scene to warn his brother that the police were watching him and that he should not come out of the house with drugs. Mr. Prymer arrived at the scene within six or seven minutes of the first radio transmission. Mr. Prymer pulled up behind a police car and got out. He then walked up to Officer Solis and asked whether the officer had seen Richard Prymer. Officer Solis asked Mr. Prymer to identify himself and to explain why he was inquiring about Richard Prymer. Whether Mr. Prymer complied with the officer's request is disputed. Mr. Prymer continued to walk down the street and to call for his brother. When Officer Solis called him back to the car, Mr. Prymer responded, "If you want me, come and get me." Officer Solis then asked Mr. Prymer to leave the area so that he would not interfere with surveillance. Mr. Prymer got into his car and pulled away.

As he was leaving, Mr. Prymer observed two other officers running after a suspect. Mr. Prymer turned a corner, got out of his car, and briefly spoke with Jeffrey Sims, who was sitting in a parked car nearby. Mr. Prymer then approached Officer Hollis who was walking in Mr. Prymer's direction. The parties dispute the events that followed.

The officers testified, and the district court found, that Officer Hollis asked Mr. Prymer to identify himself. Mr. Prymer did not answer; instead, Mr. Prymer kept walking toward Officer Hollis yelling, "Do you want to f___ with me?". Officer Hollis then radioed to headquarters to see if there were any outstanding warrants for Johnny Prymer. ¹ The radio dispatcher confirmed that there was. Mr. Prymer turned to walk toward his car. Officer Hollis instructed Mr. Prymer to stop. Mr. Prymer did not comply, but continued to walk toward his car. Officer Hollis then radioed for assistance and grabbed the door of Mr. Prymer's car to prevent him from shutting it. Officer Hollis ordered Mr. Prymer out of the car. Mr. Prymer refused and said, "F___ you, I don't have to get out of the car." Officer Hollis repeated his request and Mr. Prymer repeated his answer. Officer Hollis then reached into the car, grabbed Mr. Prymer by his left shoulder, and pulled him out of the car. The officer informed Mr. Prymer that there was an outstanding warrant for his arrest; Mr. Prymer denied this accusation. Officer Hollis then attempted unsuccessfully to handcuff Mr. Prymer.

Officer Ogden, who had heard yelling, came to assist Officer Hollis. Officer Ogden grabbed Mr. Prymer's left arm, but Mr. Prymer broke loose and struck Officer Ogden. Because Officer Ogden was wearing a bullet-proof vest, he could not tell whether the blow was a push or a closed-fist punch. Officer Ogden once again tried to take Mr. Prymer's left arm to get the handcuffs on him. Mr. Prymer struggled and eventually all three men were on the ground. Mr. Prymer was on his stomach and kept his hands beneath him to prevent them from being handcuffed. Mr. Prymer also was yelling and kicking.

Officer Solis then arrived to assist the other two officers in getting the cuffs on Mr. Prymer's right hand. After several attempts to get Mr. Prymer's arms from beneath him, Officer Ogden bent over Mr. Prymer, pulled on Mr. Prymer's arm, and gave him a quick jab kick in the ribs. When Mr. Prymer did After the officers handcuffed Mr. Prymer, he walked under his own power to the police transport vehicle. Before he was placed in the vehicle, Mr. Prymer made a gurgling noise in his throat as if he were going to spit on Officer Ogden. Officer Ogden struck Mr. Prymer in the forehead with a straight-arm stun technique to redirect Mr. Prymer's head. Mr. Prymer was then placed in the transport vehicle. After Mr. Prymer was in the vehicle, the police dispatcher radioed that he had made a mistake; there was no outstanding warrant for Mr. Prymer.

not release his arm, the officer repeated the kick. During this time, Officer Solis was kneeling down and putting weight on the back of Mr. Prymer's legs.

Mr. Prymer tells a very different story. Mr. Prymer claims that when Officer Hollis initially ordered him out of the car, Mr. Prymer advised Officer Hollis that there was not a warrant for his arrest. Mr. Prymer then got into his car to leave. After Officer Hollis removed him from the car, Mr. Prymer protested that he had done nothing wrong. In response to these protestations, Mr. Prymer states, the officers began to hit him. Mr. Prymer claims that he attempted to put his arms out for the officers to handcuff him; however, instead of handcuffing him, one officer put Mr. Prymer in a chokehold while the other officers continued to beat him. The officers, continues Mr. Prymer, then ordered him to the ground and one officer proceeded to kick him several times while another officer held his legs.

According to Mr. Prymer, after this beating, he walked to the police van under his own power. While at the van, the radio dispatcher informed the officers that there had been a mistake; there was no warrant for Johnny Prymer. Mr. Prymer then claims that he stated, "Wait until my lawyer hears about this." In response to this remark, Officer Ogden hit Mr. Prymer in the forehead with a clenched fist. Mr. Prymer alleges that the officers then discussed the need to charge Mr. Prymer with "something."

Before the officers took Mr. Prymer to headquarters, they conveyed him to the hospital. Mr. Prymer, however, refused treatment. He later claimed that this refusal was because one of the officers was laughing with a hospital security guard and Mr. Prymer was suspicious of their intentions. Mr. Prymer was taken to the Winnebago County Jail; he was released on bond the following day.

Mr. Prymer was charged and convicted of battery upon a police officer. After the conclusion of his criminal trial, Mr. Prymer brought this suit under Sec. 1983 in which he alleged that the defendant officers violated his Fourth Amendment rights. Although Mr. Prymer also had alleged violations of due process in his original and first amended complaints, he did not include these claims in his second amended complaint.

B. District Court Proceedings

At the time of trial on this action, Mr. Prymer's criminal appeal had not yet been decided. Nevertheless, during the trial of this civil action, the court gave collateral estoppel effect to the conclusion of the state criminal trial court that Mr. Prymer had struck Officer Ogden in the chest. Counsel for Mr. Prymer objected on the grounds that the state criminal court's determination was irrelevant and prejudicial. The court overruled the objection. However, it noted that this recognition had, in its view, a minimum relevance to the overall litigation: "I would point out [that the information upon which the criminal conviction was based] doesn't say how, what type or under what circumstances, nor does it necessarily dispose of Mr. Prymer's case as far as excessive force and arrest is concerned." Tr. 600.

Among the witnesses testifying on behalf of Mr. Prymer was Dr. Kamlesh Ramchandi. Dr. Ramchandi testified that "[Mr. Prymer] possibly had severe contusion [to his ribs] which subsequently healed." Tr. 415. Furthermore, the doctor testified that, with regard to any injury to Mr. Prymer's neck, his own exam and review of a previous doctor's records "did not reveal any loss of range of motion or any objective findings to suggest that he had a fracture of his neck. So my impression was that he had a cervical sprain After the conclusion of the trial, the court issued an order containing findings of fact and conclusions of law that largely accepted the officers' version of the facts. In the court's view, Mr. Prymer's claims were brought under the Fourth Amendment and therefore a Fourth Amendment standard should be used to determine whether the officers had violated Mr. Prymer's constitutional rights.

                which could have been due to any trauma."   Tr. 416
                

In Graham v. Connor, U.S. , 109 S.Ct. 1865 (1989), the Court held that the proper standard used in deciding what Constitutional standard governs a free citizen's claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop or other "seizure" of the person is the Fourth Amendment's "objective reasonableness" standard.

Mem.Order at 12. After stating the standard, the district court found that the

amount of force used to effectuate Plaintiff's arrest was reasonable under the circumstances present in this cause of action. The court notes that the arrest took place at night in the area of a known drug house. Approximately five to ten people were standing outside of the drug house watching the events unfold. Plaintiff was loud and belligerent and crying out for help. Defendant Solis testified that many of the onlookers...