Shirley v. Dietz, Civil No. A3-99-120 (D. N.D. 11/7/2000)

• Decision Date: 07 November 2000
• Docket Number: Civil No. A3-99-120.
• Parties: Norman Shirley, Plaintiff, v. Richard Dietz, Jay Gruebele and Scott Edinger, Defendants.
• Court: U.S. District Court — District of North Dakota

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Norman Shirley, Plaintiff, v. Richard Dietz, Jay Gruebele and Scott Edinger, Defendants.

Civil No. A3-99-120.

United States District Court, D. North Dakota, Southeastern Division.

November 7, 2000.

MEMORANDUM AND ORDER

KAREN K. KLEIN, Magistrate Judge.

Before the court is the motion for summary judgment of defendants Richard Dietz ("Dietz"), Jay Gruebele ("Gruebele"), Scott Edinger ("Edinger"), present and former officers of the City of Jamestown, North Dakota, in their individual and official capacities, David Donegan ("Donegan"), Chief of Police of the City of Jamestown, North Dakota in his individual and official capacity, and the City of Jamestown, North Dakota ("City") (Doc. #19). Plaintiff opposes the motion, providing a factual recitation of the events giving rise to the present action with significant differences from that of the defendants. For the reasons outlined in this memorandum, the defendants' motion is granted in part and denied in part. This action will be permitted to proceed to trial on count one of the complaint in so far as it alleges a violation of § 1983 against Officers Dietz, Gruebele, and Edinger in their individual capacities, as well as count two, which alleges a state law claim for assault and battery. Counts three through five of the complaint are dismissed.

Brief Factual Background

The plaintiff, Norman Shirley ("Shirley"), is an employee of the Ladish Malting Company. Another employee, Clyde Isaak ("Isaak"), scheduled a meeting on the night of February 9, 1998 at the Gladstone Inn in Jamestown for the stated purpose of discussing several problems arising in the workplace, including union matters. Shirley was an intended invitee to the meeting, scheduled to commence at 7:00 p.m. It is undisputed that Shirley arrived at the meeting shortly after it started. The topic of discussion at the time of his arrival was Isaak's concern over smoking at union meetings and the effect it has on his health. Shirley immediately, before taking a seat, voiced his opinion about the "silliness" of the topic and made a comment to the effect, "I don't give a shit about your health problems" and suggested to Isaak that if he has a problem with smoking at union meetings he could stand in the hallway. Apparently Isaak then asked Shirley to sit down and remain quiet, to which Shirley responded with additional profanity. Isaak then advised Shirley that if he was going to continue the disruptive course of conduct displayed upon his entrance, Isaak intended to call the Jamestown Police Department and have Shirley removed from the meeting. Shirley indicated he had no intention of "backing down" to Isaak or voluntarily leaving the meeting in response to Isaac's repeated requests to do so. After an admittedly heated discussion, Isaak did contact the Jamestown Police to assist in removing Shirley from the meeting.

Officers Dietz and Edinger responded to the call. Isaak met the officers upon their arrival at the Gladstone and escorted them into the meeting room. When the officers entered the room, Shirley was sitting down and visiting with other employees present and was not engaging in any disruptive behavior, necessitating Isaak pointing Shirley out to the officers. The officers then approached Shirley and asked him to voluntarily leave the meeting. Shirley refused, again using profanity to express his opinion that nobody had the right to remove him from the meeting. The officers again asked Shirley to leave, and Shirley again refused. In fact, Shirley "scooted" his chair up under the table and crossed his arms, making it very clear that he had no intention of leaving. In response, the officers, one on either side of Shirley, grasped his arms and escorted him out into the hallway. Shirley made it difficult for the officers to accomplish this by dragging his feet and simply "not helping." Once out in the hallway a scuffle ensued because Shirley aggressively resisted any effort to remove him from the meeting. It ultimately took three officers to subdue Shirley.¹ The exact events of the scuffle are somewhat in dispute, but there is no question that the officers employed some degree of force in order to place Shirley under arrest.

The officers filed a report outlining their version of the facts of that evening. The officers admit they attempted to take Shirley to the ground on a number of occasions in order to place handcuffs on him and that his head made contact with the floor at least once during the incident. They also state they attempted to use OC spray, but assert the canister malfunctioned, spraying one of the officer's hands instead of Shirley. With the help of the third officer they were able to place the handcuffs on Shirley. When he was returned to his feet he complained that his elbow was "out of place" and requested the handcuffs be removed. The officers obliged. Shirley was then transported to the Emergency Room of the Jamestown Hospital to have his elbow examined. Upon arrival Shirley refused treatment. He was then delivered to the Jamestown Correction Center for processing. Upon his release Shirley returned to the Jamestown Hospital for x-rays of his elbow. He was diagnosed with left elbow strain with no evidence of fracture or dislocation.

Shirley does not dispute that he resisted the officers, asserting that he had a right to do so because he was entitled to do and say anything at the "union" meeting and no one had the right to remove him. He further asserts that he was rendered unconscious during the struggle and was in fact "maced" by one of the officers.

Summary Judgment Standard

Summary judgment is appropriate if there is not a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Rule 56 of the Federal Rules of Civil Procedure "mandates the entry of summary judgment . . . against a party failing to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex, 477 U.S. at 322. If the moving party has supported its motion for summary judgment, the nonmoving party has an affirmative burden placed on it to go beyond the pleadings and show a genuine triable issue of fact. Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271 (8th Cir. 1992). However, the court considering a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party who enjoys "the benefit of all reasonable inferences to be drawn from the facts." Vacca v. Viacom Broadcasting of Missouri, Inc. Et al., 875 F.2d 1337, 1339 (8th Cir. 1989)(citation omitted).

Summary judgment is improper if the court finds a genuine issue of material fact; however, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . .." Commercial Union Insurance Co. v. Schmidt, 967 F.2d 270, 271-72 (8th Cir. 1992)(citation omitted). The issue is whether "the evidence is sufficient to allow a reasonable jury to return a verdict for the nonmoving party." Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir. 1995).

Law and Discussion

Count one of plaintiff's complaint alleges a violation of 42 U.S.C. § 1983 against officers Dietz, Edinger and Gruebele and claims damages for the injuries sustained in the "scuffle" at the time of his arrest. In response to the allegation, defendants assert they are entitled to qualified immunity from civil damages liability, and further that the officers' actions were "objectively reasonable" under the circumstances, particularly in light of the plaintiff's admitted resistance. Pursuant to 42 U.S.C. § 1983, "[e]very person who, under color of statute, ordinance, regulation, custom, or usage, ... 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, suit in equity, or other proper proceeding for redress." 42 U.S.C. § 1983 (1994).

"In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force." Wilson v. Spain, 209 F.3d 713, 715 (8^th Cir. 2000) (citing Graham v. Connor, 490 U.S. 386 (1989)). It is well established that the Fourth Amendment's prohibition against unreasonable seizures of the person applies to excessive force claims that "arise in the context of an arrest or investigatory stop of a free citizen." Id. "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. (citing Graham, 490 U.S. at 396). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Id. Thus, simply stated, the use of force is not constitutionally excessive if the officers' actions are "objectively reasonable" in light of the facts and circumstances faced by the officers at the time. Nelson v. County of Wright, 162 F.3d 986, 990 (8^th Cir. 1998) (quoting Graham, 490 U.S. at 397). The court in Nelson discussed the objective reasonableness standard, stating:

In applying this objective reasonableness standard, a court must pay close attention to the particular facts. It should consider such factors as the severity of the suspected crime, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting or evading arrest. It may be appropriate to consider the extent of any injury sustained by the suspect, and standard police procedures.

Id.

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