Bishop et al v. Doe 1 et al
Filing
38
ORDER granting in part 26 Motion for Summary Judgment. (Written Opinion). Signed by Judge Richard H. Kyle on 06/15/12. (kll)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Mark Shane Bishop and Jessica
Lynn Leasure,
Plaintiffs,
Civ. No. 11-1393 (RHK/JJK)
MEMORANDUM OPINION
AND ORDER
v.
Deputy Dale Glazier, et al.,
Defendants.
Zorislav R. Leyderman, Law Office of Zorislav R. Leyderman, Minneapolis, Minnesota,
for Plaintiff Mark Shane Bishop.
Leonard J. Schweich, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, Minnesota, for
Defendants.
INTRODUCTION
This case arises out of the alleged use of excessive force against Plaintiff Mark
Shane Bishop by Defendant Dale Glazier, a deputy with the Freeborn County, Minnesota
Sheriff’s Office. Bishop alleges that Glazier’s conduct violated his constitutional rights
and Minnesota law. Presently before the Court is Glazier’s Motion for Summary
Judgment. For the reasons that follow, the Court will grant the Motion as to Bishop’s
constitutional claim and decline to exercise supplemental jurisdiction over his remaining
claims.
BACKGROUND
Around 1:00 a.m. on December 12, 2010, Bishop was driving in Freeborn County,
near the City of Albert Lea, on a trip from Michigan to Oklahoma; also in his car were
his fiancée (Jessica Leasure) and their young daughter. Heavy snow had set in, making
driving conditions difficult. Bishop decided to stop at a hotel for the evening until the
weather cleared. According to a map on his cellular phone, the nearest hotel was a
Comfort Inn approximately one mile away. He exited the highway and proceeded
westbound on Freeborn County Road 46, in the hotel’s direction. As he drove down that
road, the car hit a snow drift, slid across the roadway, and became stuck in a snow bank
on the opposite edge, facing west in the eastbound lane.
Bishop tried unsuccessfully to free the car. He eventually called the Comfort Inn
to see whether anyone there could assist; the desk clerk suggested that he call 911, and he
did so. The 911 dispatcher advised that she would send a Freeborn County deputy to
help, and Glazier later arrived in a four-wheel-drive SUV. The two briefly discussed the
situation, and Bishop then re-entered his car while Glazier shoveled snow from around its
front wheels. After he finished, Glazier pushed the vehicle backward and instructed
Bishop to give the car gas and turn to the right, toward the road surface. Bishop,
however, steered the car straight – directly back into the snow bank. This process
repeated itself several times, with Glazier shoveling out the front wheels and pushing the
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car backward, and Bishop then driving the car forward into the snow bank rather than to
the right, as Glazier had instructed. 1
Exasperated, Glazier told Bishop to shovel out the front wheels himself, and he
returned to his vehicle to warm up. Bishop complied, but his efforts proved fruitless.
Around 2:20 a.m., Glazier radioed for assistance from the City of Albert Lea police
department. Two officers in an SUV arrived a short time later, carrying a “tow strap” to
pull Bishop’s vehicle out of the snow bank. Glazier retrieved the strap, hooked one end
to his vehicle, and handed the other end to Bishop to attach to his car. 2 Bishop crawled
under the car but could not figure out where to attach the strap. He looked in the owner’s
manual but found no answer, so he called a tow-truck company and was advised that the
car’s tow hooks likely were located somewhere near its front wheels. Bishop then
crawled under his vehicle a second time, to no avail. Ultimately he gave up, laid down
the tow strap in the snow, and returned to his car. Glazier then approached and opened
the driver’s side door to speak with him. It is at this point that the alleged assault
occurred – and it is also the point at which the parties’ stories diverge.
It is undisputed that both Bishop and Glazier had become frustrated with the
situation. Bishop testified in his deposition that the mood in his car was “pretty stressful”
when he first exited the highway and that he and Leasure were “upset and stressed out”
by the snow and, later, becoming stuck. (Bishop Dep. at 84-86, 93.) Glazier testified that
1
Bishop does not appear to dispute that he repeatedly drove his car into the snow bank. It is
unclear why he did so.
2
Glazier testified in his deposition that he does not connect tow straps to other vehicles for
“liability reasons.”
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he was frustrated with Bishop’s “feeble attempt” to free his car and his failure to follow
directions. (Glazier Dep. at 98-99; see also Doc. No. 32-1.)
Yet, Bishop contends that Glazier was rude, demeaning, and belligerent during the
entire encounter, including yelling and swearing at him, which Glazier denies. He further
asserts that the yelling continued when Glazier opened the car door after he had failed to
attach the tow strap. Because he did not like the way Glazier was treating him, Bishop
asked to “go talk to” the Albert Lea officers; Glazier said “no, no, you’re not going to go
talk to those officers.” (Bishop Dep. at 99-100.) 3 Nevertheless, after Glazier stepped
back from the door, Bishop raised his hands in the air and stepped out of the car, stating,
“I’m going to get another officer, I’d like another officer, please.” (Bishop Dep. at 10912; accord Glazier Dep. at 81-82.)
According to Glazier, he grabbed Bishop’s left shoulder with his right hand and
“pushed him back down in the car” and told him “to remain in the car.” (Glazier Dep. at
82-84.) Bishop, however, claims far more – he testified in his deposition (and alleges in
this lawsuit) that Glazier grabbed him by the throat, shoved him against the side of the
car, and “choked” him for “[r]oughly 45 seconds to a minute.” (Bishop Dep. at 112-19.)
He further testified that he “couldn’t breathe” and “couldn’t talk” as he was being
3
Glazier testified that he refused Bishop’s request because visibility was very poor and cars were
passing by on County Road 46, and he did not want Bishop to “get lost or get hit by something
else.” (Glazier Dep. at 84-85.) He also testified that Bishop had become “very hostile,” and for
his own safety, he did not want Bishop out of the car, lest he “com[e] up behind me and strik[e]
me or whatever.” (Id. at 85.) Because Bishop denies acting in a hostile manner, the Court
disregards this portion of Glazier’s testimony, which does not alter its analysis in any event.
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choked. (Id. at 119.) He claims that Glazier eventually “shoved” him back into the car
and told him to “shut the fuck up and sit the fuck down.” (Id. at 123.) 4
At this point, Bishop again called 911. The transcript of that call provides:
Dispatch: Nine one one emergency
Bishop: Hi yes I was just assaulted by one of your police officers and he
refuses to get me another police officer for help
Dispatch: Where are you at
Bishop: I’m the guy that was in the ditch I’m on ah hold on . . . ah . . . I
was the guy in the ditch on county highway forty 46 . . . I went to get out
Dispatch: Who assaulted you
Bishop: I I’m not sure the officer’s name . . . he ah he was the first officer
on the scene . . . he assaulted me when I got out of my vehicle to get
another officer [because] this one is being belligerent with me I haven’t
been . . . belligerent at all
Dispatch: How did he assault you
Bishop: He grabbed me by the throat and threw me up against my car and
told me to get back in my vehicle while I was calling out for another officer
. . . I made no verbal assaults towards him no aggressive tone nothing
nothing
Dispatch: Okay where are you at now
Bishop: I’m still in the ditch . . . this officer is being very rude and won’t
let me out of my vehicle to get another officer which is right down the road
I can see his car . . . when I attempted to get out of my vehicle to and ask
him if I could have another officer first he refused and told me to shut my
fucking mouth . . . so then I went I went to get out of my vehicle and I
started screaming for another officer and said sir can I get another officer
please very loudly he grabbed me by the throat and threw me up against my
vehicle in front of my fiancée and my daughter . . . and then he pushed me
4
Although Glazier was not expressly asked in his deposition whether he denies choking Bishop,
it is clear from his deposition testimony and the parties’ briefs that he does.
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back in my car and told me to shut the fuck up . . . can you please get
someone one of the other officers right in front I can’t get out of my vehicle
as this one is trying to assault me anytime I try . . .
(Doc. No. 32-1.) Notably, the transcript makes no mention of Bishop being “choked” for
nearly a minute or being unable to breathe or speak during the so-called “choking.”
Regardless, a tow truck eventually arrived and pulled Bishop’s car from the snow
bank; he drove to the hotel and later completed the drive to Oklahoma. On December 29,
2010, he filed a complaint with the Freeborn County Sheriff’s Office. In connection with
that complaint, he submitted a typewritten statement prepared the day after the incident,
in which he wrote that as he exited his car he
was going to get the other officer, [and Glazier] immediately lunged at me
and grabbed me by the throat with one hand and my jacket with the other,
[and] slammed me into the car door rimway. . . . [H]e started to push
pressure against my body and screaming out ‘No you[’re] going to sit the
fuck down and shut the fuck up.’ I kept telling him I want another officer,
still a calm tone being over run by his screams, [and] [h]e went to push me
down into my seat with great force, shoving me into my driver’s seat.
(Doc. No. 28-1 at 16; see also Bishop Dep. at 134.) This statement, like the 911 call,
omits any reference to being “choked” for approximately one minute or being unable to
breathe. 5 Leasure, too, prepared a typewritten statement providing that Glazier had
“lunged at [Bishop,] slamming him up against the car with his hand around his neck and
forced him back in[to] the car,” nowhere mentioning a lengthy “choking.” (Doc. No. 281 at 19.)
5
Moreover, while Bishop now contends that he could not speak due to Glazier’s conduct, in his
typewritten statement he claimed that he “kept telling [Glazier] I want another officer” – i.e.,
continued speaking – despite the purported “choking.”
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In addition, Bishop spoke with an investigator from the Freeborn County Sheriff’s
Office, who recorded their conversation. Although Bishop again complained that Glazier
had “grabbed me by the throat,” the recording contains no allegation that he had been
“choked” for nearly a minute. (See Doc. No. 34-1.)
After the Sheriff’s Office declined to take action in response to this complaint,
Bishop and Leasure commenced the instant action. Their original Complaint asserted
claims against Glazier, the Albert Lea officers, and Freeborn County under the Fourth
Amendment to the United States Constitution and Minnesota law. On November 3,
2011, they filed an Amended Complaint (Doc. No. 18) dropping their claims against the
Albert Lea officers, and by stipulation (Doc. No. 24) they later agreed to (i) dismiss all
claims brought by Leasure and (ii) dismiss certain other claims in the Amended
Complaint. Bishop’s remaining claims are against (i) Glazier, for excessive force under
the Fourth Amendment to the United States Constitution (Count I); 6 and (ii) Glazier and
Freeborn County, for assault (Count III), battery (Count IV), and false imprisonment
6
Count I could be read to allege two separate Fourth Amendment violations: (1) excessive force
and (2) unlawful arrest, i.e., arrest without probable cause. (See Am. Compl. ¶ 44 (asserting that
Glazier violated Bishop’s right to “remain free from unreasonable seizures and use of excessive
force”).) In response to Glazier’s Motion, however, Bishop has nowhere argued that Count I
alleges more than excessive force. The Court follows his lead and assumes that excessive force
is the only way in which Glazier purportedly violated the Fourth Amendment. (See also Mem. in
Opp’n at 17 (acknowledging that “Bishop was not under arrest” during the incident).) Moreover,
although the Amended Complaint alleges that the Glazier’s conduct violated the Fourth and
Fourteenth Amendments, this is but two different ways of stating the same claim, since the
Fourth Amendment is made applicable to state actors through the Fourteenth Amendment’s Due
Process clause. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655 (1961). Hence, claims of excessive
force “should be analyzed under the Fourth Amendment,” Graham v. Connor, 490 U.S. 386, 395
(1989), and Bishop does not contend otherwise in his brief.
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(Count VIII) under Minnesota law. 7 With discovery complete, Glazier now moves for
summary judgment based on, inter alia, qualified immunity. 8 The Motion has been fully
briefed, the Court held a hearing on June 7, 2012, and the Motion is now ripe for
disposition.
ANALYSIS
I.
The standard of review and the relevant facts
Summary judgment is proper if there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Generally, the Court must view
the evidence, and the inferences that may reasonably be drawn from it, in the light most
favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986); Weitz Co., LLC v. Lloyd’s of London, 574 F.3d 885, 892 (8th Cir. 2009). This
typically means “adopting . . . the plaintiff’s version of the facts.” Scott v. Harris, 550
U.S. 372, 378 (2007).
Yet, because qualified immunity “is an immunity from suit rather than a mere
defense to liability [and] is effectively lost if a case is erroneously permitted to go to
7
At oral argument, defense counsel asserted that all claims against Freeborn County had been
dismissed pursuant to the parties’ Stipulation. The text of the Stipulation belies that assertion,
however. (See Doc. No. 24.)
8
Although the Motion (Doc. No. 26) indicates it is brought on behalf of Glazier and Freeborn
County, the Memoranda in support suggest it is brought by Glazier alone. (See Def. Mem. at 28
(“Based on the foregoing, Defendant Deputy Glazier respectfully requests that Plaintiff’s case
. . . be dismissed with prejudice.”) (emphasis added); Reply Mem. at 7 (same).) This is
apparently because, as noted above, defense counsel (erroneously) believed Freeborn County
was dismissed from this case by the parties’ Stipulation. Regardless, for the reasons that follow,
the Court declines to exercise supplemental jurisdiction over Bishop’s state-law claims, which
are the only claims implicating Freeborn County.
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trial,” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), a “qualified immunity case is
unique,” Katosang v. Wasson-Hunt, 392 F. App’x 511, 513 (8th Cir. 2011) (per curiam).
When a defendant asserts such a defense, “the court should [not] deny summary
judgment any time a material issue of fact remains on the [constitutional] claim [because
to do so] could undermine the goal of qualified immunity.” Brockinton v. City of
Sherwood, Ark., 503 F.3d 667, 671 (8th Cir. 2007) (first alteration added). Rather, the
Court must “take a careful look at the record” and determine “which facts are genuinely
disputed, and then view those facts in a light most favorable to the non-moving party as
long as those facts are not so blatantly contradicted by the record . . . that no reasonable
jury could believe [them].” O’Neil v. City of Iowa City, Iowa, 496 F.3d 915, 917 (8th
Cir. 2007) (emphasis added); accord, e.g., Scott, 550 U.S. at 380 (“[F]acts must be
viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’
dispute as to those facts.”; “When opposing parties tell two different stories, one of which
is blatantly contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.”); LaCross v. City of Duluth, Civ. No. 10-3922, 2012 WL 1694611, at *8-9
(D. Minn. May 14, 2012) (Ericksen, J.). In other words, a plaintiff may not merely point
to “unsupported self-serving allegations, but must substantiate his allegations with
sufficient probative evidence that would permit a finding in his favor without resort to
speculation, conjecture, or fantasy.” Reed v. City of St. Charles, Mo., 561 F.3d 788, 79091 (8th Cir. 2009); accord, e.g., Cooper v. Martin, 634 F.3d 477, 480-81 (8th Cir. 2011).
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Here, besides his own self-serving testimony, nothing in the record supports
Bishop’s allegation that Glazier choked him for 45 to 60 seconds. Glazier denies that
such conduct occurred, and Bishop’s allegation is at odds with the remainder of the
record, including a 911 recording made immediately after the alleged assault, a document
he drafted shortly after the incident, a similar document drafted by his fiancée, and the
statement he made to a Sheriff’s Office investigator, all of which omit any reference to
Glazier choking him. While perhaps it might be understandable that Bishop would fail to
use the word “choke” in the 911 call – in the “heat of the moment” – there is simply no
obvious reason for him to omit it in the lengthy typewritten statement he later provided or
in his conversation with the investigator. In the Court’s view, a reasonable person in the
same circumstances would have mentioned the alleged conduct, assuming it had
occurred, when making these complaints. Moreover, there is no evidence Bishop
received any medical treatment following the incident or suffered any significant injuries
despite claiming he was “choked” and “unable to breathe” for nearly a minute.
Given the state of the record, the Court concludes that no reasonable jury could
credit Bishop’s assertion that Glazier choked him for 45 to 60 seconds. See Jenkins v.
Anderson, 447 U.S. 231, 238-39 (1980) (testimony about a previously undisclosed fact is
undermined when “that fact naturally would have been asserted” earlier). Accordingly,
and notwithstanding the allegations in the Amended Complaint, the Court accepts as true
only Bishop’s contention that Glazier grabbed him, pushed him backward, and then
shoved him into his car; it will ignore his assertion of being choked. See Mitchell, 472
U.S. at 526 (“Even if the plaintiff’s complaint adequately alleges the commission of acts
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that violated clearly established law, the defendant is entitled to summary judgment if
discovery fails to uncover evidence sufficient to create a genuine issue as to whether the
defendant in fact committed those acts.”); LaCross, 2012 WL 1694611, at *8-9
(disregarding plaintiff’s version of events at summary judgment in excessive-force case
when it conflicted with officers’ testimony and documents in the record). 9
II.
Qualified immunity
Having determined what facts to consider in its analysis, the Court proceeds to
address Count I, the excessive-force claim, for which Glazier argues that he is entitled to
qualified immunity. Qualified immunity protects state actors unless they have “violate[d]
clearly established . . . constitutional rights of which a reasonable person would have
known.” Mitchell, 472 U.S. at 524. In analyzing whether Glazier is entitled to immunity
here, the Court must conduct a two-part inquiry: do facts show that the challenged
conduct violated a constitutional right? If so, was the constitutional right at issue clearly
established on the date in question? E.g., Avalos v. City of Glenwood, 382 F.3d 792, 798
(8th Cir. 2004) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). 10
It is undisputed, on the date in question, that the Fourth Amendment precluded the
use of excessive force by law-enforcement officers. E.g., Andrews v. Fuoss, 417 F.3d
813, 818 (8th Cir. 2005). The question to be answered, therefore, is whether the force
9
Because the Court disregards Bishop’s contention that Glazier “choked” him, it is unnecessary
to reach his assertion, raised for the first time at oral argument, that cases involving choking
should be analyzed differently than those involving other types of force.
10
The Court may decide which of these two questions to answer first. Pearson v. Callahan, 555
U.S. 223, 235-36 (2009).
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used by Glazier exceeded the quantum constitutionally permissible. As with all Fourth
Amendment claims, the answer turns on the “objective reasonableness” of Glazier’s
conduct. Graham v. Connor, 490 U.S. 386, 392 (1989); Samuelson v. City of New Ulm,
455 F.3d 871, 875 (8th Cir. 2006). Under that standard, the Court must evaluate all of the
facts and circumstances surrounding the use of force, “careful[ly] balancing . . . the
nature and quality of the intrusion on [Bishop’s] Fourth Amendment interests against the
countervailing governmental interests at stake.” Copeland v. Locke, 613 F.3d 875, 881
(8th Cir. 2010) (citations omitted). This is an objective inquiry, “without regard to
[Glazier’s] underlying intent or motivation.” Samuelson, 455 F.3d at 875-76 (citation
omitted).
The Court concludes that the amount of force employed here was not
constitutionally excessive. The record establishes that when Bishop told Glazier he
wanted to “go talk to” the Albert Lea officers, Glazier said “no, no, you’re not going to
go talk to those officers,” essentially ordering him to remain in his vehicle. (Bishop Dep.
at 99-100.) As acknowledged by Bishop’s counsel at oral argument, Minnesota Statutes
§ 169.02 empowered Glazier to give such a command as part of his authority to “direct,
control, or regulate traffic.” 11 Bishop nevertheless violated that directive by exiting his
car. Glazier, therefore, was permitted to use some quantum of force to enforce his order.
See, e.g., Wertish v. Krueger, 433 F.3d 1062, 1066-67 (8th Cir. 2006) (officer could
forcibly remove plaintiff from car when he refused command to exit); Foster v. Metro.
11
Moreover, such an order was appropriate to ensure Bishop’s safety, given the blinding snow
and passing vehicles nearby.
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Airports Comm’n, 914 F.2d 1076, 1082 (8th Cir.1990) (same); Farkarlun v. Hanning, __
F. Supp. 2d __, 2012 WL 684027, at *20 (D. Minn. Mar. 2, 2012) (Montgomery, J.)
(“There is nothing repugnant to the Constitution about using force to ensure compliance
with lawful orders.”); Kain v. City of Eden Prairie, Civ. No. 10-1740, 2011 WL 797455,
at *8 (D. Minn. Feb. 28, 2011) (Kyle, J.) (“[R]efusal to comply with an officer’s orders,
when given an opportunity to do so, makes the officer’s use of force more reasonable.”)
(citation omitted). Further, under the facts here, the amount of force Glazier used –
grabbing Bishop (even by the throat), pushing him backward into the car, and then
forcing him into the driver’s seat – was not constitutionally excessive. See, e.g., Wertish,
433 F.3d at 1066 (yanking plaintiff from car and taking him to the ground was not
excessive force when plaintiff failed to comply with officer commands to exit vehicle);
Andrews, 417 F.3d at 818 (no excessive force from “forceful blow” to plaintiff’s
shoulder that pushed her backward several feet and made her “see stars,” when she was
approaching person in courtroom despite admonition not to do so); see also Curd v. City
Court of Judsonia, Ark., 141 F.3d 839, 841 (8th Cir. 1998) (noting that grabbing plaintiff
forcefully by arm and turning her body was only a “limited amount of force”). Notably,
Bishop’s counsel acknowledged at oral argument that Glazier was constitutionally
permitted to use force to shove Bishop back into his car.
Bishop argues that Glazier never expressly ordered him to remain in his vehicle,
asserting that “while sitting in the car, [he] did not ask whether he could exit his vehicle
or whether he had permission to walk over to the Albert Lea police officers,” but rather
“asked . . . whether Deputy Glazier could get one of the other officers for him.” (Mem.
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in Opp’n at 15 (emphases in original).) That assertion is flatly contradicted by Bishop’s
deposition testimony:
Q: And at some point you had asked about going and talking to the other
officers, but he told you, no, stay in your vehicle, correct?
A: I did ask him if I could go talk to another officer, those officers, due to
the way he was handling the situation.
Q: And he said no?
A: Right, he said no.
(Bishop Dep. at 99 (emphases added).)
Q: And then [Glazier] refused to let you go get another officer, correct?
A: Right, he refused to let me get [one].
(Id. at 109 (emphases added).)
Q: So he had given you one – he had responded to one request by saying
no, you can’t go get another officer?
A: It was probably multiple requests, but the same thing, yeah.
Q: And he had refused at least once to let you go get another officer?
A: Right.
(Id. at 112 (emphases added); see also id. at 122 (“[H]e wouldn’t let me go see the
officer.”) (emphasis added).) Bishop cannot create a genuine issue of material fact by
contradicting his own deposition testimony at summary judgment. See, e.g., Frevert v.
Ford Motor Co., 614 F.3d 466, 474 (8th Cir. 2010). Moreover, despite his protestations
to the contrary, it cannot seriously be disputed that Bishop understood he was to remain
in his vehicle. (See Bishop Dep. at 100 (“Q: Was it your understanding that he wanted
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you to stay in your vehicle? A: No, it was my understanding that he didn’t want me to
go talk to those officers. But in a way, yes, he wants me to stay in my vehicle for –”)
(emphasis added); see also id. at 122 (“Q: And in order to go see the officer you would
have to get out of your vehicle, right? A: Right.”).) Indeed, this is very likely why he
raised his hands as he exited his vehicle. 12
In the Court’s view, Bishop is using semantics to avoid summary judgment,
claiming that “being told he could not go speak to [an]other officer” is somehow different
than “being told he could not get out of the car.” (Reply Mem. at 4 (calling this “a
distinction without a difference”).) But even if Bishop were correct that Glazier did not
expressly and clearly order him to remain in his vehicle, under the facts here, it was
reasonable for him to believe he had given such an order. Qualified immunity, however,
“protects all but the plainly incompetent or those who knowingly violate the law,” not
those who make “bad guesses in gray areas.” Moore v. City of Desloge, Mo., 647 F.3d
841, 846 (8th Cir. 2011) (internal quotation marks and citations omitted). Hence, even if
Glazier had not been explicit in his command to Bishop, it would have been reasonable
for him to believe he had given an unambiguous order and, therefore, use some measure
of physical coercion to enforce it. Accordingly, he would be entitled to qualified
12
To be sure, Bishop’s deposition testimony was not a model of clarity. Yet, his sometimes
inconsistent answers cannot create a genuine issue of material fact, when he repeatedly testified
that Glazier told him he could not “go get” another officer. See, e.g., Scott, 550 U.S. at 380
(“[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.”) (alteration and emphases in original) (citation omitted); Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (noting that “[w]hether judgment
as a matter of law is appropriate in any particular case will depend on a number of factors,” and a
plaintiff cannot avoid dismissal by creating a “weak issue of fact”).
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immunity in any event. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
(immunity turns on objective reasonableness of conduct, not official’s intent or
motivation).
III.
The remaining claims
In light of the foregoing, Count I of the Amended Complaint must be dismissed.
Moreover, the Court’s subject-matter jurisdiction in this action was premised on the
existence of a federal claim. (See Am. Compl. ¶ 3.) Jurisdiction over the state-law
claims – which are the only claims remaining with Count I dismissed – was invoked
solely pursuant to the supplemental-jurisdiction statute, 28 U.S.C. § 1367, which provides
jurisdiction over state-law claims forming part of the same “case or controversy” as
federal claims. But where all federal claims are dismissed prior to trial, the balance of
factors to be considered in deciding whether to exercise supplemental jurisdiction over a
pendent state-law claim typically militates against exercising such jurisdiction. E.g.,
Johnson v. City of Shorewood, Minn., 360 F.3d 810, 819 (8th Cir. 2004) (citing
Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). That is the case here.
Accordingly, the Court declines to exercise supplemental jurisdiction over Bishop’s
claims for assault (Count III), battery (Count IV), and false imprisonment (Count VIII),
which will be dismissed without prejudice. 13
13
It is possible that complete diversity exists in this case. The Amended Complaint alleges that
Bishop and Leasure are Oklahoma residents; Glazier, presumably, is a citizen of Minnesota; and
Freeborn County is a citizen of this state. See, e.g., Moor v. Alameda Cnty., 411 U.S. 693, 718
(1973) (“[F]or purposes of diversity of citizenship, political subdivisions are citizens of their
respective States.”) (citation omitted). But the Amended Complaint does not allege sufficient
facts to determine whether diversity actually exists in this action, as it says nothing about
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CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Glazier’s Motion for Summary Judgment (Doc. No. 26) is GRANTED
IN PART. The Motion is GRANTED as to Count I of the Amended Complaint, and that
claim is DIMISSED WITH PREJUDICE. Counts III, IV, and VIII of the Amended
Complaint are DISMISSED WITHOUT PREJUDICE. 14
LET JUDGMENT BE ENTERED ACCORDINGLY.
Date: June 15, 2012
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
Glazier’s citizenship and alleges only that Bishop and Leasure are Oklahoma residents. See,
e.g., Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987) (district court lacked diversity
jurisdiction where complaint alleged only residency of plaintiffs, since citizenship is determined
by domicile, not residence). Moreover, neither the Complaint not the Amended Complaint
invoked diversity jurisdiction. See Fed. R. Civ. P. 8(a)(1) (pleading must contain “a short and
plain statement of the grounds for the court’s jurisdiction”). Under these circumstances, the
Court need not analyze whether there exists independent diversity jurisdiction over Bishop’s
state-law claims. See, e.g., Franklin v. Zain, 152 F.3d 783, 786 n.2 (8th Cir. 1998) (district court
did not err in declining to exercise supplemental jurisdiction over state-law claims even though
parties may have been diverse).
14
See 28 U.S.C. § 1367(d).
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