Recca v. Pignotti

• Decision Date: 27 April 2020
• Docket Number: 8:18CV556
• Citation: 456 F.Supp.3d 1154
• Parties: James Michael RECCA, Plaintiff, v. PIGNOTTI, Joesph Richter (2019), Nass (1886), and Hansen (2043), in their respective individual capacities, Defendants.
• Court: U.S. District Court — District of Nebraska

456 F.Supp.3d 1154

James Michael RECCA, Plaintiff,

v.PIGNOTTI, Joesph Richter (2019), Nass (1886), and Hansen (2043), in their respective individual capacities, Defendants.

8:18CV556

United States District Court, D. Nebraska.

Signed April 27, 2020

James Michael Recca, Lincoln, NE, pro se.

Jeffrey A. Bloom, City of Omaha, Omaha, NE, for Defendants.

MEMORANDUM AND ORDER

Richard G. Kopf, Senior United States District Judge

This matter is before the court on Defendants’ motion for summary judgment (Filing No. 46). Defendants are four Omaha police officers who are sued in their individual capacities under 42 U.S.C. § 1983. The court finds each Defendant is entitled to qualified immunity.¹ Defendants’ motion therefore will be granted, and Plaintiff's action will be dismissed with prejudice.

I. BACKGROUND

Plaintiff alleges that on November 3, 2015, at about 1:30 a.m., he was walking in a wooded area at the rear of the Carol Hotel in Omaha, Nebraska, when he saw police officers arrive; that Plaintiff laid face-down on the ground to get out of the way of any police action, but the K-9 officer, Defendant Pignotti, gave his dog verbal commands and hand signals to attack Plaintiff; that the dog ripped off Plaintiff's left ear and bit his right shoulder and right leg, leaving deep wounds

; and that Defendants Nass, Richter, and Hansen not only failed to intervene, but also kicked and punched Plaintiff while he was on the ground being attacked by the dog. (Filing No. 14.)

In a Memorandum and Order filed on May 29, 2019, the court found on initial review of Plaintiff's Amended Complaint that plausible claims for relief were stated against Defendants for alleged violations of Plaintiff's Fourth Amendment rights.

II. SUMMARY JUDGMENT STANDARD

"A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion." Fed. R. Civ. P. 56(a).

In ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. See Dancy v. Hyster Co. , 127 F.3d 649, 652-53 (8th Cir. 1997). It is not the court's function to weigh evidence in the summary judgment record to determine the truth of any factual issue; the court merely determines whether there is evidence creating a genuine issue for trial. See Bell v. Conopco, Inc. , 186 F.3d 1099, 1101 (8th Cir. 1999).

"There is a genuine dispute when the evidence is such that a reasonable jury could return a verdict for the non-moving party." Dick v. Dickinson State Univ. , 826 F.3d 1054, 1061 (8th Cir. 2016) (internal quotations and citations omitted). "A fact is material if it ‘might affect the outcome of the suit.’ " Id. (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).

The moving party bears the initial responsibility of informing the court of the basis for the motion, and must identify those portions of the record which the moving party believes show the lack of a genuine issue of material fact. Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the moving party does so, the burden then shifts to the nonmoving party, who "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 256, 106 S.Ct. 2505. If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, summary judgment should be granted. Smith-Bunge v. Wisconsin Cent., Ltd., 946 F.3d 420, 424 (8th Cir. 2019).

III. SUMMARY JUDGMENT PROCEDURE

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

This court's local rules further specify that "[t]he moving party must include in the brief in support of the summary judgment motion a separate statement of material facts," which "should consist of short numbered paragraphs, each containing pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials that support the material facts stated in the paragraph." NECivR 56.1(a) (underlining in original). "The statement must not contain legal conclusions." Id.

The opposing party's brief must include "a concise response to the moving party's statement of material facts." NECivR 56.1(b)(1). "Each material fact in the response must be set forth in a separate numbered paragraph, must include pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials upon which the opposing party relies, and, if applicable, must state the number of the paragraph in the movant's statement of material facts that is disputed." Id.

A party's failure to comply with these requirements can have serious consequences: The moving party's "[f]ailure to submit a statement of facts" or "[f]ailure to provide citations to the exact locations in the record supporting the factual allegations may be grounds to deny the motion for summary judgment." NECivR 56.1(1)(a) (underlining omitted). On the other hand, "[p]roperly referenced material facts in the movant's statement are considered admitted unless controverted in the opposing party's response." NECivR 56.1(1)(b)(1) (underlining omitted).

IV. EVIDENCE PRESENTED

In this case, Defendants’ brief in support of their motion for summary judgment contains a separate, 19-paragraph statement of material facts with proper references to the record. Plaintiff has not responded to Defendants’ motion for summary judgment. While Plaintiff's failure to file an opposing brief is not considered a confession of the motion, see NECivR 7.1(b)(1)(C), his failure to controvert Defendants’ statement of material facts is considered an admission for purposes of deciding the motion. See NECivR 56.1(1)(b)(1); Fed. R. Civ. P. 56(e)(2) ("If a party ... fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion ....").

V. STATEMENT OF FACTS

The court finds there is no genuine dispute regarding the following facts, which are set out in Defendants’ brief:²

1. On November 2, 2015 at 10:40 p.m., Omaha Police Officer Mike Nass was dispatched to 2234 S. 141st Plaza in Omaha, Nebraska, where the owner of a 2001 Chevrolet Monte Carlo reported that two males attempted to steal his vehicle.

2. The owner of the Monte Carlo got into another vehicle and activated the other vehicle's alarm. One of the suspects attempting to steal the Monte Carlo owner's vehicle matched the description of the Plaintiff – white male, late 20s to early 30s, approximately 5 feet 10 inches tall, 220 pounds, shaved head with dark hair.

3. The two male suspects attempted to confront the Monte Carlo's owner and ram his vehicle. The suspect matching the description of the Plaintiff drove off in a black four door sedan with a cracked windshield. A witness reported the plates to be Nebraska TVA296.

4. Omaha Police Officer Conrad Hansen located a black 2010 Chrysler Sebring (VIN 1C3CC5FB5AN158868), Nebraska license plate TVA976 that had been reported stolen in the rear parking lot of the Carol Hotel, located at 4888 S. 118th Street in Omaha, Nebraska. The vehicle had a cracked front windshield. In addition, a box of ammunition was seen by Omaha Police Officers in the center console of the vehicle and a spent casing was seen by the officers between the back window and the trunk.

5. Officers Mike Nass and Joseph Richter were dispatched to assist Officer Hansen at the Carol Hotel. Officer Hansen noticed people suspiciously watching the police investigate the vehicle and then disappearing when the police officers looked at them. Officers Nass and Richter went to look for these individuals.

6. Officer Richter located three individuals near 118th and M Streets. Officer Richter yelled "Stop, Police!" The three individuals ran – one to the east and two to the southwest. The two suspects that ran to the southwest – one was a female and one was a male who matched the description of the attempted car thief (and the Plaintiff). Officer Richter and Officer Nass called for backup and the Canine Unit, and Officer Randy Pignotti responded with Police Service Dog Bruno.

7. Officer Pignotti determined whether it was appropriate to deploy Police Service Dog Bruno. He considered that the suspects were unknown, the suspects had fled from a stolen vehicle, the suspects were wanted for attempted automobile theft and attempted felony assault, there was ammunition and a spent shell casing in the vehicle, it was unknown if the suspects were armed, one of the suspects (later identified as the Plaintiff) was a large male, the suspects fled to a creek with running water, trees, trash, rocks, and other debris, the area was dark, the terrain was dangerous, the suspects could plan an ambush in the wooded area, improvised weapons were possible, the suspects could see the officers coming, and the suspects were given an opportunity to surrender. He then made three loud announcements, two in English and

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