Keten et al v. Does 1-15 et al
Filing
44
MEMORANDUM OPINION AND ORDER granting in part and denying in part 28 Motion for Partial Summary Judgment (see Memorandum Opinion and Order for details) (Written Opinion). Signed by Judge Donovan W. Frank on 03/08/2013. (rlb)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
James Keten and Aisha Keten,
individually and o/b/o minor
child, K.K.K.,
Civil No. 11-1520 (DWF/JSM)
Plaintiffs,
v.
MEMORANDUM
OPINION AND ORDER
Sergeant Steven Mosey, and
Officers Aaron Morrison, Chad
Fuchs, Steven Lynch, Chris Garbisch,
and George Peltz, in their individual
and official capacities, and
the City of Minneapolis,
Defendants.
Andrew M. Irlbeck, Esq., and Paul Applebaum, Esq., counsel for Plaintiffs.
Andrea Kloehn Naef, Sara J. Lathrop, Timothy S. Skarda, Assistant City Attorneys,
Minneapolis City Attorney’s Office, counsel for Defendants.
INTRODUCTION
This matter is before the Court on a Motion for Partial Summary Judgment
brought by Defendants City of Minneapolis (the “City”), Sergeant Steven Mosey
(“Sergeant Mosey”), Officers Aaron Morrison (“Officer Morrison”), Chad Fuchs
(“Officer Fuchs”), Steven Lynch (“Officer Lynch”), Chris Garbisch (“Officer Garbisch”),
and George Peltz (“Officer Peltz) (together, “Defendants”). (Doc. No. 28.) For the
reasons set forth below, Defendants’ motion is granted in part and denied in part.
BACKGROUND
The Minneapolis Police Department requested and received a warrant to search
the residence of Plaintiff James Keten (“J. Keten”). (Doc. No. 33, Lynch Aff. ¶¶ 2, 4-8.)
The warrant was a “knock and announce” warrant, which requires police to knock and
announce their presence prior to making entry. (Doc. No. 31, Lathrop Aff. ¶ 2, Ex. 1
(Lynch Dep.) at 25.) J. Keten is the brother of Lamont Keten, an identified suspect in a
shooting that occurred in a North Minneapolis home on April 3, 2011. (Lynch Aff. ¶¶ 3,
4.) The police learned that, at the time of the shooting, Lamont Keten was staying at J.
Keten’s home. (Id. ¶ 4.) The search warrant sought to recover the assault rifle used in
the shooting. (Id.; Lynch Dep. at 17; Lathrop Aff. ¶ 3, Ex. 2 (Mosey Dep.) at 16.)
During the warrant’s execution, Lamont Keten remained in custody.
Sergeant Mosey led the Minneapolis Police Department Special Weapons and
Tactics (“SWAT”) team, which consisted in part of Defendants Sergeant Mosey and
Officers Morrison, Fuchs, Garbisch, and Lynch. (Lathrop Aff. ¶ 4, Ex. 3 (Warrant
Service Log).) 1 Prior to the execution of the warrant, Officer Lynch briefed the SWAT
team on the context in which the warrant arose. (Lynch Dep. at 27; Lynch Aff. ¶¶ 13-14;
Mosey Dep. at 16, 43.) He also informed the SWAT team that one item sought was an
assault rifle used in the April 3, 2011 shooting, that small children lived at the residence
1
The Warrant Service Log does not indicate that Officer Garbisch was part of the
team, but the parties do not dispute that he was there.
2
to be searched, and that there were potentially four aggressive Pit Bull dogs at the
location. (Lynch Aff. ¶¶ 13-14.)
On the morning of April 13, 2011, J. Keten, his wife Plaintiff Aisha Keten (“A.
Keten”), and their two young children, K.K. (age three) and Z.K. (infant), were present in
the Keten home. (Lathrop Aff. ¶ 5, Ex. 4 (J. Keten Dep.) at 23-25; Lathrop Aff. ¶ 6,
Ex. 5 (A. Keten Dep.) at 27-28.) J. Keten was in the living room, K.K. was at the kitchen
table eating cereal, Z.K. was sleeping in a bedroom, and A. Keten was in the bathroom
getting ready for work. (Id.) The SWAT team arrived around 9:00 a.m. to execute a
knock and announce, daytime warrant. (Lynch Dep. at 25; J. Keten Dep. at 18; A. Keten
Dep. at 26.) The SWAT team entered through a slightly ajar front door, which opens
directly into the living room. (Mosey Dep. at 19; Lathrop Aff. ¶ 9, Ex. 8 (Morrison Dep.)
at 23.) Officer Morrison announced “Police!! Search warrant!!” (Morrison Dep. at 23.)
Upon entering through the living room, Officer Morrison shot one of the Keten’s dogs, a
60-pound Pit Bull-mix named “Kano.” (Morrison Dep. at 23; J. Keten Dep. at 28-30.)
Kano had been walking near J. Keten in the living room when the police entered.
(J. Keten Dep. at 36-37.) Officer Morrison testified that the dog charged him. (Morrison
Dep. at 23.) J. Keten testified that the dog was shot immediately and did not “have a
chance to look” before he was shot. (J. Keten Dep. at 37.) Officers Morrison and
Garbisch took J. Keten to the ground. (J. Keten Dep. at 44.) J. Keten asserts that the
officers threw a pillow and sweatshirt over his head and beat him by kicking and
stomping on him, and that they yelled racial slurs. (J. Keten Dep. at 44-46, 50.)
3
Officer Fuchs entered the home and went into the bathroom/kitchen area. (Mosey
Dep. at 30.) Officer Fuchs passed A. Keten, who was getting ready for work in the
bathroom, and then Officer Fuchs moved to the kitchen where K.K. was eating breakfast
at the table. (A. Keten Dep. at 27-28, 148-50.) Plaintiffs allege that Officer Fuchs fired
several shots into the kitchen, hitting the floor several feet in front of the table, hitting the
wall behind a kitchen chair, and shooting and killing another dog, a 40-pound German
Shepard and Pit Bull-mix named “Remy.” (J. Keten Dep. at 77-78; Lathrop Aff. ¶ 8,
Ex. 7 (K.K. Dep.) at 7-11; A. Keten Dep. at 148-49.) At the time, Remy was sitting near
the feet of K.K. as she ate cereal at the kitchen table. (K.K. Dep. at 7-11; A. Keten Dep.
at 148.) Due to her close proximity to Remy, blood splattered on K.K.’s pajamas.
(A. Keten Dep. at 36.) K.K. did not move after the officer shot Remy, but remained
motionless in her seat. (A. Keten Dep. at 148, 151.) K.K. later testified that she was
afraid and thought that “[t]hey would shoot me.” (K.K. Dep. at 7.)
Officer Fuchs claims that he believed the dog to be threatening, while K.K. and
her mother stated that Remy did not bark or growl at the officer, but merely sat begging
for K.K.’s food. (Doc. No. 39, Fuchs Decl. ¶ 4; A. Keten Dep. at 143-152.) After
hearing the first round of gunfire from the living room, A. Keten attempted to rush to the
kitchen to grab K.K., but officers kept her back in the bathroom. (A. Keten Dep. at 35,
37, 42, 55.)
The raid lasted less than ten minutes. (Mosey Dep. at 36.) Minneapolis Police
Officers from the investigative team then entered the Keten home to conduct the search.
(Id. at 35.) Defendants did not find a gun or any ammunition. (Irlbeck Aff. ¶ 13, Ex. 12.)
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Plaintiffs assert that Defendants destroyed or damaged many family belongings,
including dressers, beds, window blinds, speakers, stereo equipment, carpet, and the
kitchen walls and floors. (A. Keten Dep. at 60-61.)
Plaintiffs allege that they have suffered damages as a result of the search. J. Keten
claims that he has suffered a bruised back, sore neck, and emotional distress. (J. Keten
Dep. at 115-16.) J. Keten went to the emergency room at North Memorial for treatment
roughly twelve hours after the search, where he reported back pain and a headache. (Id.;
Lathrop Aff. ¶ 10, Ex. 9 (J. Keten Medical Records) at 3.) At the emergency room, there
were no “obvious bruises to document photographically,” a spinal X-ray found “normal
alignment of the lumbar spine” and “no acute fracture,” and he was prescribed pain
medication and told to follow up with his primary physician in one week. (Id. at 6-7.)
A. Keten claims that her blood pressure has increased since the incident. (A. Keten Dep.
at 104.) She missed work due to the incident and suffered some lost wages and bonuses.
(Id. at 88-92.) K.K. has seen a family therapist for counseling roughly once every 3045 days. (J. Keten Dep. at 119-20; A. Keten Dep. at 94-96.) K.K. has been diagnosed
with Post-Traumatic Stress Disorder (“PTSD”). (Irlbeck Aff. ¶¶ 2, 3, Exs. 1, 2.)
In their Amended Complaint, Plaintiffs assert the following causes of action:
(1) unreasonable search and seizure, including claims for excessive force against Officer
Fuchs for shooting into the kitchen, and against Officers Morrison and Garbisch for use
of force against J. Keten; (2) substantive due process violation against Officers Lynch,
Fuchs, Garbisch, Morrison, and Sergeant Mosey, for unreasonable shooting in the
kitchen; (3) battery; (4) assault; (5) conversion; (6) negligent infliction of emotional
5
distress; and (7) intentional infliction of emotional distress. (Doc. No. 23, Second Am.
Compl.) 2 Defendants now move for partial summary judgment.
DISCUSSION
I.
Legal Standard
Summary judgment is proper if there are no disputed issues of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
Court must view the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank
of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated,
“[s]ummary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed
‘to secure the just, speedy, and inexpensive determination of every action.’” Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank,
92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in
the record that create a genuine issue for trial. Krenik v. County of Le Sueur,
47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for
2
Plaintiffs stipulated to voluntarily dismiss their conversion claim, as well as claims
asserted against several originally named defendants. (Doc. No. 26.) The remaining
claims are set forth in chart form in the parties’ stipulation. (Id.) The Court did not
include all of the facts of this case in the Background section, as some facts are only
relevant to claims not presently before the Court.
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summary judgment “may not rest upon mere allegations or denials of his pleading, but
must set forth specific facts showing that there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
II.
Excessive Force Under 42 U.S.C. § 1983
Defendants argue that both K.K.’s excessive force claim against Officer Fuchs and
J. Keten’s excessive force claim against Officers Morrison and Garbisch fail as a matter
of law.
A.
K.K.’s Claim Against Officer Fuchs
Plaintiffs assert that Officer Fuchs used excessive force when he fired his weapon
into the kitchen where K.K. was eating breakfast. Defendants argue that this claim fails
because in shooting the dog in the kitchen, Officer Fuchs did not seize K.K. under the
Fourth Amendment.
The Fourth Amendment prohibits unreasonable seizures. Graham v. Connor, 490
U.S. 386, 394-95 (1989). Here, Defendants argue that Plaintiffs’ excessive force claim
fails as a matter of law because there was no seizure of K.K. In particular, Defendants
argue that an officer must have a subjective intent to seize a person to be liable for an
unreasonable seizure under the Fourth Amendment. Plaintiffs assert that the excessive
force claim survives summary judgment because Officer Fuchs did not act with the intent
to seize the dog, but rather to seize K.K. In support, Plaintiffs submit evidence that the
dog was not acting aggressively and was sitting at K.K.’s feet when Officer Fuchs shot
the dog. Plaintiffs argue that because the dog was not aggressive, Officer Fuchs had no
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legitimate reason to intend to seize the dog and that the use of force constitutes a seizure
of K.K. Plaintiffs also argue that K.K. was seized for Fourth Amendment purposes
because a reasonable person would have interpreted Officer Fuchs’ actions as a seizure.
A Fourth Amendment seizure occurs when an officer, “by means of physical force
or show of authority, terminates or restrains [an individual’s] freedom of movement,
through means intentionally applied.” Brendlin v. Cal., 551 U.S. 249, 254 (2007)
(internal quotations and citations omitted) (emphasis in original); see also Gardner v. Bd.
of Police Comm’rs, 641 F.3d 947, 951 (8th Cir. 2011). Thus, an “unintended person . . .
[may be] the object of the detention,” so long as the detention is “willful” and not merely
the consequence of “an unknowing act.” Brendlin, 551 U.S. at 256. “The intent that
counts under the Fourth Amendment is the ‘intent [that] has been conveyed to the person
confronted,’ and the criterion of willful restriction on freedom of movement is no
invitation to look to subjective intent when determining who is seized.” Id. at 260-61
(internal citations omitted). A seizure occurs if “in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to
leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980); see also California v.
Hodari, 499 U.S. 621, 628 (1991) (noting that the test in Mendenhall has been adopted
by the Supreme Court in later cases).
Here, viewing the facts in the light most favorable to Plaintiffs, and therefore
accepting that the dog in the kitchen was not acting aggressively, a reasonable juror could
conclude that by firing multiple shots into the kitchen where K.K. sat, Officer Fuchs
seized K.K. More specifically, a reasonable juror could conclude that Officer Fuchs
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willfully fired his gun so as to make K.K. reasonably believe that she was not free to
leave.
Where there has been a seizure, the Court evaluates whether an officer’s actions
constitute excessive force under an objective-reasonableness test. Graham, 460 U.S.
at 397. In determining whether the use of force is “reasonable” under the Fourth
Amendment, a court must balance “the nature and quality of the intrusion on the
individual’s Fourth Amendment interests” against the government’s interests at stake. Id.
at 396 (citation omitted). The reasonableness of the 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.” See id. The proper application of the Fourth Amendment “requires careful
attention to the facts and circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade arrest
by flight.” Id. The question is whether the “totality of the circumstances” justify a
particular seizure. Id. (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)).
Here, Plaintiffs have put forth evidence that the Defendant Officers, including
Officer Fuchs, entered the Keten’s residence without knocking and announcing (despite
executing a “knock and announce” warrant), and then fired multiple shots into a small
kitchen in close proximity to where a three-year-old sat eating breakfast with her dog
nearby. Again, viewing the facts in the light most favorable to Plaintiffs, and therefore
9
accepting that the dog in the kitchen was not acting aggressively, a reasonable juror could
conclude that Officer Fuchs’ actions were objectively unreasonable. 3
B.
J. Keten’s Excessive Force Claim
Defendants argue that Officers Morrison and Garbisch are entitled to summary
judgment because, at the time of the incident, it was not clearly established that Officers
Morrison and Garbisch violated J. Keten’s constitutional right by applying force because
the force only caused de minimis injury. In support, Defendants argue that prior to
Chambers v. Pennycook, 641 F.3d 898, 901, 906 (8th Cir. 2011), it was not clearly
established “whether an excessive force claim requires some minimum level of injury.”
641 F.3d at 904, 908. Here, Plaintiffs assert that J. Keten sustained bruising to his neck
and back, lasting pain in his neck, back and head, and a decreased range of motion in the
lumbar region of his spine. Plaintiffs point out that J. Keten was treated at the hospital
for his injuries on the day of the incident. For purposes of its qualified immunity
3
Defendants also argue, in the alternative, that Officer Fuchs is entitled to qualified
immunity on the excessive force claim. The doctrine of qualified immunity protects state
actors from civil liability when 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 (1982). The defense provides “ample room for
mistaken judgments” as it protects “all but the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 343 (1986). To
overcome the defense of qualified immunity, a plaintiff must show that: (1) the facts,
viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a
constitutional or statutory right; and (2) the right was clearly established at the time of the
deprivation. Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010) (citation omitted).
As discussed above, a reasonable juror could conclude that Officer Fuchs’ actions
were objectively unreasonable, and therefore, that he violated K.K.’s Fourth Amendment
rights. In addition, the Court concludes that these rights were clearly established at the
time of the deprivation. Thus, Officer Fuchs is not entitled to qualified immunity.
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analysis, the Court concludes that this injury is not de minimis as a matter of law. See,
e.g., Copeland v. Locke, 613 F.3d 875, 881-82 (8th Cir. 2010) (finding lacerations from
handcuffs and an injury to the knee not de minimis). Plaintiffs have pointed to sufficient
evidence of actual injury to overcome Defendants’ assertions of qualified immunity.
III.
Substantive Due Process
Plaintiffs also assert a Fourteenth Amendment substantive due process claim
against Officers Lynch, Fuchs, Garbisch, Morrison, and Sergeant Mosey. Specifically,
Plaintiffs allege that by firing multiple rounds directly into the kitchen while K.K. ate her
breakfast, Defendants engaged in “conscience-shocking” behavior. (Sec. Am. Compl.
¶ 24.) Defendants move for summary judgment on this claim, arguing that: (1) Officer
Fuchs was not inspired by malice or sadism when he shot the dog in the kitchen; and
(2) Officers Lynch, Garbisch, Morrison, and Mosey did not fire their weapons into the
kitchen. 4
Plaintiffs do not dispute that it was Officer Fuchs who fired his weapon into the
kitchen. Because there is no evidence that Officers Lynch, Garbisch, Morrison, or
Sergeant Mosey fired their weapons near K.K., Plaintiffs’ substantive due process claim
against them fails as a matter of law.
4
To establish a substantive due process violation, K.K. must show that Defendants’
conduct: (1) was “conscience shocking”; and (2) violated “one or more fundamental
rights that are deeply rooted in this Nation’s history and tradition, and implicit in the
concept of ordered liberty, such that neither liberty nor justice would exist if they were
sacrificed.” Terrell v. Larson, 396 F.3d 975, 978 n.1 (8th Cir. 2005) (quotations omitted).
11
Plaintiffs’ substantive due process claim, as it is asserted against Officer Fuchs, is
based on the same facts that support Plaintiffs’ Fourth Amendment excessive force claim
against Officer Fuchs. Excessive force claims must be analyzed under the Fourth
Amendment’s “objective reasonableness standard.” Graham, 490 U.S. at 395 (holding
that “all claims that law enforcement officers have used excessive force—deadly or not—
in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be
analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than
under a ‘substantive due process’ approach”) (emphasis in original). Therefore, Plaintiffs
cannot base their substantive due process claim on their alleged excessive-force claims,
and Plaintiffs’ substantive due process claim, as asserted against Officer Fuchs, fails as a
matter of law. See, e.g, Smithson v. Aldrich, 235 F.3d 1058, 1064 (8th Cir. 2000).
Accordingly, Defendants are entitled to summary judgment on Plaintiffs’
substantive due process claim.
IV.
Negligent and Intentional Infliction of Emotional Distress
K.K. asserts a claim for intentional infliction of emotional distress (“IIED”); and
both K.K. and A. Keten assert claims for negligent infliction of emotional distress
(“NIED”).
Under Minnesota law, there are four elements for an IIED claim: (1) the conduct
must be extreme and outrageous; (2) the conduct must be intentional or reckless; (3) the
conduct must cause emotional distress; and (4) the distress must be severe. Hubbard v.
United Press Int’l, Inc., 330 N.W.2d 428, 438-39 (Minn. 1983) (citing Restatement
(Second) of Torts § 46(1) (1965)).
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To establish a claim for NIED under Minnesota law, a plaintiff must prove the
four elements of a negligence claim-duty, breach, injury, and causation. Engler v. Ill.
Farmers Ins. Co., 706 N.W.2d 764, 767 (Minn. 2005). In addition, a plaintiff claiming
NIED must establish that he or she: (1) was within a zone of danger of physical impact;
(2) reasonably feared for his or her own safety; and (3) suffered severe emotional distress
with attendant physical manifestations. Id. The physical manifestation requirement “is
designed to assure the genuineness of the emotional distress.” Silberstein v. Cordie, 474
N.W.2d 850, 857 (Minn. Ct. App.1991).
A.
K.K.’s Claims
K.K. asserts a NIED claim against Officers Fuchs, Morrison, Garbisch, Lynch,
Sergeant Mosey, and the City of Minneapolis. Defendants assert that they are entitled to
summary judgment on this claim because K.K. has not presented evidence of an
“attendant physical manifestation.” Plaintiffs dispute Defendants’ argument and assert
that there is evidence in the record that K.K. has somatization, which could be directly
related to symptoms of PTSD. (Irbeck Aff. ¶ 3, Ex. 2 at 6.) Viewing the evidence in the
light most favorable to Plaintiffs, the Court finds that there are genuine issues of material
fact with respect to whether Plaintiffs have established the necessary element of an
attendant physical manifestation of severe emotional distress. Given this, the Court
denies Defendants’ motion with respect to the K.K.’s NIED claim.
K.K. also asserts a claim for IIED against Officers Fuchs, Garbisch, Morrison,
Lynch, Sergeant Mosey, and the City of Minneapolis. Defendants move for summary
judgment insofar as the claims are asserted against Officers Garbisch, Morrison, Lynch
13
and Sergeant Mosey. Specifically, Defendants argue that there is no evidence that these
officers intended to cause K.K. severe emotional distress, or that they proceeded with the
knowledge that it was substantially certain, or highly probable, that severe emotional
distress would occur. In support, Defendants point out that Officers Garbisch, Morrison,
Lynch, and Sergeant Mosey did not fire their weapons into the kitchen. The Court agrees
and concludes that Officers Garbisch, Morrison, Lynch, and Sergeant Mosey are entitled
to summary judgment on K.K.’s IIED claim.
B.
A. Keten’s Claim
A. Keten also asserts a NIED claim against Officers Fuchs, Garbisch, Morrison,
Lynch, Sergeant Mosey, and the City of Minneapolis for the allegedly unreasonable
shooting in the kitchen and the alleged use of excessive force on J. Keten. A plaintiff
may recover damages for distress caused by fearing for another person’s safety or by
witnessing serious injury to another person if the plaintiff can show: (1) she was in the
zone of danger of physical impact; (2) she had an objectively reasonable fear for her own
safety; (3) she had severe emotional distress with attendant physical manifestations; and
(4) she stands in a close relationship to the third-party victim. Engler, 706 N.W.2d
at 700-71. In addition, the plaintiff must show that the negligent conduct caused serious
bodily injury to the third-party victim. Id.
Defendants argue that this claim fails because A. Keten was not in the zone of
danger, cannot establish that she had an objectively reasonable fear for her own safety,
and because neither J. Keten nor K.K. suffered “serious bodily injury.” With respect to
the issue of whether there was a “serious bodily injury” to either K.K. or J. Keten,
14
Plaintiffs respond that K.K. suffers from PTSD with somatization and J. Keten suffered
“actual injury.” Even accepting these assertions as true, Plaintiffs have not made any
compelling argument or showing that either of these injuries constitutes “serious bodily
injury.” Accordingly, Defendants are entitled to summary judgment on A. Keten’s claim
for NIED.
CONCLUSION
For the reasons discussed above, IT IS HEREBY ORDERED that Defendants’
Motion for Partial Summary Judgment (Doc. No. [28]) is GRANTED IN PART and
DENIED IN PART as follows:
1.
Count Two (Substantive Due Process) of Plaintiffs’ Second Amended
Complaint (Doc. No. [23]) is DISMISSED WITH PREJUDICE.
2.
Count Six (Intentional Infliction of Emotional Distress) of Plaintiffs’
Second Amended Complaint (Doc. No. [23]) is DISMISSED WITH PREJUDICE
insofar as it is asserted against Officers Garbisch, Morrison, Lynch, and Sergeant Mosey.
3.
Count Six (Negligent Infliction of Emotional Distress) of Plaintiffs’ Second
Amended Complaint (Doc. No. [23]) is DISMISSED WITH PREJUDICE insofar as it
is asserted by Aisha Keten.
4.
All other disputed claims remain for trial.
Dated: March 8, 2013
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
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