Zubrod v. Hoch

• Decision Date: 08 January 2017
• Docket Number: No. 15–CV–02065–CJW,15–CV–02065–CJW
• Citation: 232 F.Supp.3d 1076
• Parties: Larry ZUBROD, et al., Plaintiffs, v. Shayne HOCH, et al., Defendants.
• Court: U.S. District Court — Northern District of Iowa

232 F.Supp.3d 1076

Larry ZUBROD, et al., Plaintiffs,

v.Shayne HOCH, et al., Defendants.

No. 15–CV–02065–CJW

United States District Court, N.D. Iowa, Eastern Division.

Signed January 8, 2017

Brandon John Brown, Robert Benjamin Stone, Parrish Kruidenier Dunn Boles Gribble Cook Parrish Gent, LLP, Des Moines, IA, David H. Skilton, Cronin Skilton & Skilton, Nashua, IA, for Plaintiffs.

Catherine Marie Lucas, Jason C. Palmer, Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, IA, for Defendants.

MEMORANDUM OPINION AND ORDER

C.J. Williams, United States Magistrate Judge, Northern District of Iowa

Table of Contents

I. INTRODUCTION...1079

II. PROCEDURAL HISTORY...1079

III. UNDISPUTED FACTS...1080

IV. SUMMARY JUDGMENT STANDARDS...1086

V. EXCESSIVE USE OF FORCE STANDARDS...1086

VI. EXCESSIVE USE OF FORCE AND TASERS...1088

VII. QUALIFIED IMMUNITY...1089

VIII. DISCUSSION...1090

A. Whether Deputy Hoch Used Excessive Force...1090

B. Whether Deputy Hoch is Entitled to Qualified Immunity...1096

C. Whether Deputies Short and Smith are Liable for Failing to Intervene...1097

D. Whether Sheriff Langenbau and Worth County Are Vicariously Liable...1098

E. Jurisdiction Over Plaintiffs' State Law Claims...1099

F. Plaintiffs' Loss of Consortium Claim...1100

IX. CONCLUSION...1100

I. INTRODUCTION

This matter is before the Court pursuant to defendants' motion for summary judgment. Doc. 41. Plaintiffs resist the motion for summary judgment. Doc. 68. Defendants filed a reply brief. Doc. 86. On November 29, 2016, the Court heard oral argument on the motion. For the reasons that follow, the Court grants defendants' motion for summary judgment.

II. PROCEDURAL HISTORY

On July 29, 2015, plaintiffs Larry and Cheryl Zubrod, individually, and as Administrators for the Estate of Michael Zubrod (Zubrod), commenced this lawsuit by filing a complaint in this Court. Doc. 2. Plaintiffs generally allege that on September 22, 2013, Worth County Sheriff's deputies responded to a report of a domestic disturbance at a house in Northwood, Iowa. Inside, they encountered Zubrod attacking a woman with a hammer. Plaintiffs allege the deputies overpowered Zubrod after a struggle, during which the deputies repeatedly used a Taser on Zubrod, both before and after deputies had placed him in handcuffs. Plaintiffs allege that after handcuffing Zubrod, they discovered Zubrod was no longer breathing. Hospital personnel later pronounced Zubrod dead.

Plaintiffs' complaint consists of seven counts. In Count I, plaintiffs bring a Title 42, United States Code, Section 1983 claim against Deputy Shayne Hoch (Deputy Hoch) alleging a violation of Zubrod's Fourth Amendment Rights. Doc. 2, at 5–7. In this count, which plaintiffs subtitle "First Grouping of Taser Bursts," they allege Deputy Hoch violated Zubrod's constitutional rights "by utilizing excessive force while punitively and sadistically using a Taser on him at length while he lay in a prone position on the ground and posed no reasonable risk of harm or safety to any officer or other individuals present." Id. , at 5–6.

In Count II, plaintiffs bring another Section 1983 claim against Deputy Hoch, again alleging a violation of Zubrod's Fourth Amendment rights. Doc. 2, at 8–10. In this count, which plaintiffs subtitle "Second Grouping of Taser Bursts," they allege Deputy Hoch again violated Zubrod's constitutional rights "by utilizing excessive force while punitively and sadistically using a Taser on him multiple times at length while he lay restrained with handcuffs and otherwise posed no reasonable risk of harm or safety to any officer or other individuals."Id. , at 8.

In Count III, plaintiffs bring a Section 1983 claim against Deputies Isaac Short (Deputy Short) and John Smith (Deputy Smith), alleging they also violated Zubrod's Fourth Amendment rights. Doc. 2, at 10–12. Subtitled "Bystander Liability—Failure to Intervene" in Count III, plaintiffs allege Deputies Short and Smith violated Zubrod's constitutional rights when they observed Deputy Hoch use excessive force and failed to intervene.

In Count IV, plaintiffs bring a state law assault and battery cause of action against Deputy Hoch. Doc. 2, at 13.

In Count V, plaintiffs allege Deputies Hoch, Short, and Smith were negligent, causing Zubrod's injuries and death. Doc. 2, at 14.

In Count VI, plaintiffs bring a claim against Sheriff Jay Langenbau (the Sheriff) and Worth County (the County), under the respondeat superior doctrine, alleging they are vicariously liable for the negligent actions of Deputies Hoch, Short, and Smith. Doc. 2, at 14–15.

Finally, in Count VII, plaintiffs bring a loss of consortium claim against all defendants, alleging defendants caused plaintiffs to lose Zubrod's services, companionship, and society. Doc. 2, at 15–16.

III. UNDISPUTED FACTS

Based on the parties' respective filings,¹ the Court finds that the facts set forth below, unless otherwise noted, are undisputed for purposes of the motion for summary judgment.

Relevant Parties.

Plaintiff Larry Zubrod was a resident of Chickasaw County, Iowa, and is the father of Michael Zubrod. Cheryl Zubrod was a resident of Chickasaw County, Iowa, and is the mother of Michael Zubrod. Together, Larry and Cheryl Zubrod serve as administrators of Michael Zubrod's estate. Defendant Deputies Hoch, Short, and Smith were all Iowa residents and employees of the Worth County Sheriff's Office. Defendant Jay Langenbau was an Iowa resident and Sheriff of Worth County. Worth County was a county corporation existing under the laws of the State of Iowa and operated the Worth County Sheriff's Office.

At the time of these events, Michael Zubrod was 5′8″ and weighed 196 pounds. Deputy Short stood 5′9″ and weighed approximately 155 pounds. Deputy Hoch was 5′8″ or 5′9″ tall and weighed between 210 and 220 pounds. Deputy Smith was 5′7″ tall and weighed approximately 220 pounds. None of the deputies knew Zubrod from before this night and had no personal knowledge about his drug use or mental history.

Relevant Events.

On the night of September 22, 2013, Deputy Short was on duty patrolling in Northwood, Iowa.² At approximately 11:23 p.m., Deputy Short advised the Worth County dispatch operator that concerned citizens had stopped him to report they heard screaming from a neighbor's house located at the intersection of 3^rd and 4^th Streets. When Deputy Short arrived at the house, he heard a woman screaming from inside the house. He told dispatch the address of the house and described it as Sheila Olson's house; in fact, he was at Rhonda Schukei's house, Olson's sister.³ Deputy Short was aware of some law enforcement intelligence suggesting that Rhonda Schukei may have been a drug user and her residence was suspected as being a drug house, meaning law enforcement officers believed drug use activity may be occurring in the house. Law enforcement officers believed methamphetamine to be the number one drug of abuse in Northwood, Iowa, in 2013.

Deputy Short told dispatch he was going inside and requested backup. At approximately 11:29 p.m., Deputy Hoch radioed dispatch that he was en route to assist Deputy Short. Dispatch attempted to contact Deputy Hoch twice at approximately 11:30 p.m., but was unable to reach him by radio. Dispatch radioed Deputy Hoch to "step it up," which he understood to mean to rush more quickly to the scene. Deputy Hoch sped to the scene.

At some point while entering the house, Deputy Short drew his handgun out of its holster. The house had two stories. Deputy Short did not encounter anyone on the ground floor. He heard a woman screaming from upstairs, so he climbed the stairs. Once upstairs, Deputy Short heard the screams coming from the bedroom facing the front of the house. The door to the bedroom was shut. Deputy Short tried to open the door, but it was locked. He kicked in the door.

The lights were off in the bedroom, but by moonlight coming in through the window, Deputy Short saw Zubrod standing above someone on the ground and saw that Zubrod had something in his hand. Deputy Short found a light switch and turned on the light. Deputy Short saw Rhonda Schukei laying face up on the ground. She was bleeding. Zubrod was above her striking her in the face with a hammer. Zubrod was himself bloody. Zubrod was screaming "die bitch, you're gonna die!"

Deputy Short managed to radio in a "10–33" call into dispatch, which is an emergency code essentially requesting all law enforcement personnel to rush to his aid. Deputy Hoch, still en route to the house, attempted to ask Deputy Short if he was okay, but could not make out Deputy Short's reply.

Deputy Short, still holding his handgun, yelled at Zubrod to step away from the victim. That was the last thing the victim remembered from the scene.⁴ Zubrod stepped away from the victim, dropping the hammer. Deputy Short holstered his handgun at that point and withdrew his Taser. Zubrod then said something about finding a gun and began to reach down under the bed. When Zubrod stood back up, however, he did not have anything in his hands. Zubrod then reached over to the headboard, grabbed a pair of scissors, and tried to kill the victim by stabbing her in the neck as she lay on the floor, leaving the scissors sticking out of her neck. Deputy Short fired his Taser, but only one of the two barbs struck Zubrod in the left arm; the other barb missed.⁵ The Taser can cause neuromuscular incapacitation only if both barbs make contact with the body. Deputy Short pulled the cartridge from the Taser in an attempt to use the Taser in drive-stun mode.

At this point, Zubrod grabbed a pair of needle-nose plyers from a dresser and came at Deputy Short. Zubrod began to physically fight Deputy Short. During the struggle, Deputy Short either dropped the Taser or it was knocked out of his hands. There is no evidence Deputy Short was ever able to make contact with the Taser on Zubrod's body.⁶

The struggle spilled out into the hallway. During the struggle, Deputy Short was able to steer Zubrod's body further away from the victim and...