Thomsen v. Ross

Decision Date11 May 2005
Docket NumberNo. 03-CV-1192JMRRLE.,03-CV-1192JMRRLE.
Citation368 F.Supp.2d 961
PartiesDavid Kevin THOMSEN v. Dick ROSS, individually and as former Crow Wing County Sheriff; Crow Wing County Sheriff; County of Crow Wing; Kurt King, individually and as Crow Wing County Jailer/Deputy Sheriff; and John Doe and Jane Doe
CourtU.S. District Court — District of Minnesota

Michael Keith O'Tool, Brainerd, MN, for David Kevin Thomsen.

Kenneth Hunt Bayliss, III, St. Cloud, MN, for Dick Ross, individually and as former Crow Wing County Sheriff; Crow Wing County Sheriff; County of Crow Wing; Kurt King, individually and as Crow Wing County Jailer/Deputy Sheriff; and John Doe and Jane Doe.

ORDER

ROSENBAUM, District Judge.

This matter is before the Court on cross-motions for summary judgment.1 For the reasons set forth herein, plaintiff's motion is denied; defendants' motion is granted in part and denied in part.

I. Background2

This case arises from events occurring at the beginning of plaintiff's nearly two-month stay at the Crow Wing County Jail, in the spring of 2002.

Plaintiff is an alcoholic. He has alcoholic blackouts, and a history of arrests for driving while intoxicated. One such event occurred the night of Friday, April 5, 2002, when a Brainerd police officer found plaintiff asleep at the wheel of his van.

Plaintiff was booked into the Crow Wing County Jail. A test revealed his blood alcohol content was 0.22 percent. Three officers escorted plaintiff from the booking area to a location where he could change into jail clothes. On the way, the officers talked and laughed about a strip search. Plaintiff asked if one was necessary, as he had never before been strip searched after an arrest.

Plaintiff then lost consciousness. He awoke in a holding cell, wearing jail-issued boxers and a T-shirt. His mouth was bloody, he was missing a tooth, and his left hand was painful and swollen. A later examination showed he had re-fractured a bone in his left hand.

Plaintiff's recollection of the events of April 5 has been inconsistent and varied. His Complaint, filed in February, 2003, claims he lost consciousness just after speaking with the officers about the strip search, and indicates he had no recollection of how he was injured. (Complaint ¶ IX.) This version is consistent with an unsworn statement plaintiff made while in jail. (Affidavit of Kenneth Bayliss, Ex. H., at 001384; Affidavit of Michael O'Tool, Ex. E.)

The Complaint's assertions vary from plaintiff's sworn interrogatory responses executed in December, 2003, where he states that, just before he lost consciousness, he was "grabbed forcefully" by defendant Kurt King. (Plaintiff's Interrogatory Responses at 6, 21.) A third version developed at his deposition taken in May, 2004, some two years after the incident. At the deposition, plaintiff swore defendant King pulled his arm behind his back, and threw or pushed him to the floor. (Thomsen Dep. at 66-67.) None of these versions clearly states how his injuries were ultimately sustained. He has no recollection of removing his clothes or being strip searched.

Defendants admit plaintiff was strip searched, but deny any assault. Affidavits from three officers state plaintiff injured his hand by punching his cell wall. The doctors who treated plaintiff in April and May, 2002, describe his injury as a "boxer's fracture," which is consistent with punching something. (Bayliss Aff. Ex. M.)

Plaintiff is right-handed and denies ever punching the cell wall or door with his left hand. All parties agree that, upon recovering consciousness, plaintiff banged on his cell door to get the officers' attention and request medical treatment. Two officers responded to his call and observed plaintiff's red and swollen hand. When he was not immediately taken for medical treatment, plaintiff obscured the lens of his cell surveillance camera with wet toilet tissue to get the officers' attention. The officers responded, placing him in a restraint chair for nearly an hour and forty-five minutes.

Plaintiff asked the jailers for medical attention several times that night and the next day. On the morning of Sunday, April 7, he filled out a written inmate medical request form. That evening, approximately 48 hours after being injured, he was driven to a hospital emergency room in a canine squad car. Plaintiff sat in the rear seat next to a caged police dog. At his deposition, he acknowledged that the dog presented no physical threat, but he complains of feeling intimidated by the animal.

While at the hospital, plaintiff was asked how his injury had occurred. The custodial officer stated plaintiff had punched a wall or window, to which plaintiff agreed. Plaintiff now claims he concurred, because he was too intimidated to dispute the officer's story, or to tell the doctor about the pain in his mouth from his missing tooth.

The emergency room doctor placed a cast on plaintiff's hand and recommended a follow-up visit to a specialist. Five days later, plaintiff was taken to an orthopedic specialist who recommended surgery. Plaintiff had a pre-operative physical on April 19, and surgery on April 22. His post-operative course included four follow-up visits over the next two months. Plaintiff was prescribed and given pain medication several times a day during his entire stay in jail.

Plaintiff also claims that, beyond inattention to his medical needs for his hand injuries, his medical needs were ignored on two other occasions during his incarceration. First, he says he waited half an hour to receive pain medication prescribed for his hand. He states that when he asked for the medication, an officer placed him in solitary confinement. (Thomsen Dep. at 95-97.) The officer, who is not named as a defendant here, was reprimanded and later apologized to plaintiff for this incident. (Thomsen Dep. at 95.)

The second occasion occurred when plaintiff requested assistance in drying his cast after it became wet in the shower. None was provided. As plaintiff removed the softening cast, one of the pins in his hand fell out. (Thomsen Dep. at 92-93, 102.) Two days after requesting assistance, he was taken to the doctor to have his hand wrapped. Plaintiff required additional surgery to reset the broken bone and to install an external fixation device.

Plaintiff also claims defendant Kurt King opened his legal mail outside of his presence on three occasions. Crow Wing County policy calls for legal mail to be opened in an inmate's presence. Defendant King does not dispute he opened plaintiff's mail outside his presence. According to plaintiff, King claimed it was an accident and apologized. (Thomsen Dep. at 134.) Plaintiff claims his mail was opened in retaliation for his complaints.

Plaintiff timely filed this action in February, 2003. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

II. Analysis

Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party opposing summary judgment may not rest upon the allegations set forth in its pleadings, but must produce significant probative evidence demonstrating a genuine issue for trial. See Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505; see also Hartnagel v. Norman, 953 F.2d 394, 395-96 (8th Cir.1992). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis omitted). If the opposing party fails to carry that burden, or fails to establish the existence of an essential element of its case on which that party will bear the burden of proof at trial, summary judgment should be granted. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

A. Qualified Immunity

Summary judgment is appropriate when a defendant is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Qualified immunity shields government officials from suit for official acts if their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Immunity should be decided by the court long before trial." Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991).

When evaluating a qualified immunity claim, a court first determines whether the facts alleged show the officer's conduct violated a constitutional right. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. If so, the court must decide whether the violated right was clearly established at the time the violation occurred. Id. A right is clearly established only if "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151; see also Davis v. Hall, 375 F.3d 703, 712 (8th Cir.2004) ("Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.")

Here, the Court finds plaintiff cannot meet this test as to any named employee of Crow Wing County. Accordingly, each individual defendant3 is entitled to summary judgment on the grounds of qualified immunity.

B. Monell Claims

Notwithstanding any determination regarding individual defendants, a municipality may be liable under Section 1983 "where an official custom causes an individual to suffer a constitutional harm." Thelma D. v. Board of Education, 934 F.2d 929, 932 (8th Cir.1991), citing Monell v. Dep't of Social Servs., 436...

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