Daugherty v. Armstrong et al

Filing 87

MEMORANDUM AND ORDER - Plaintiff's Motion to Compel (filing no. 67 ) is denied. Defendants' Objection (filing no. 81 ) is denied in accordance with this Memorandum and Order. Plaintiff's Motion to Strike (filing no. 82 ) is deni ed. Plaintiff's Motion for Leave to Supplement (filing no. 84 ) is granted. Defendants' Motion for Summary Judgment (filing no. 72 ) is granted and Plaintiffs' federal claims are dismissed with prejudice. Plaintiff's state l aw claims are dismissed without prejudice. Plaintiff's Motion for Summary Judgment (filing no. 50 ) and Objection to Defendants' Motion for Summary Judgment (filing no. 79 ) are denied. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ARRMON H. DAUGHERTY,

)
)
Plaintiff,
)
)
v.
)
)
DENZIN, OFC., 1622, HOSE, OFC., )
1606, and CITY OF LINCOLN,
)
)
Defendants.
)

4:12CV3133

MEMORANDUM
AND ORDER

This matter is before the court on several Motions and Objections filed by the
Parties. (Filing Nos. 50, 67, 72, 79, 81, 82, and 84.) As set forth below, the court will
grant Defendants’ Motion for Summary Judgment and dismiss Plaintiff’s claims with
prejudice.
I.

BACKGROUND

On June 12, 2012, Plaintiff filed the Complaint in this matter against the City
of Lincoln, Nebraska (“City”), and several individual officers of the Lincoln Police
Department (“LPD”). (Filing No. 1 at CM/ECF p. 1.) Plaintiff sued each of the
individual LPD officers in both their individual and official capacities. (Id.) On
September 7, 2012, the court conducted an initial review of Plaintiff’s Complaint and
concluded that it failed to state a claim against several of the individual officers.
(Filing No. 8 at CM/ECF p. 9.) However, the court also provided Plaintiff with the
opportunity to amend his complaint by October 8, 2012. (Id.)
Plaintiff failed to amend by the court’s deadline and the court dismissed
Plaintiff’s claims against Defendants Armstrong, Smith, and Vigil. (Filing No. 9.)
However, the court permitted Plaintiff’s Fourteenth Amendment claims relating to the

denial of medical treatment and his state law negligence claims to proceed against
Defendants Denzin, Hose, and the City. (Filing No. 9; see also Filing No. 8.)
On April 22, 2013, Plaintiff filed a Motion for Summary Judgment. (Filing No.
50.) Because discovery was still ongoing, Defendants asked the court to extend their
response time. (See Filing Nos. 47, 54 and 59.) The court extended the time for
Defendants to file a response until August 19, 2013. (Filing No. 60.)
On July 22, 2013, Plaintiff filed a Motion to Compel along with a Brief and an
Index of Evidence in Support. (Filing Nos. 67, 68, and 69.) On August 19, 2013,
Defendants filed a Motion for Summary Judgment along with a Brief and Index of
Evidence in Support. (Filing Nos. 72, 73, and 74.) Defendants’ Brief included a
Response to Plaintiff’s previously filed Motion for Summary Judgment. (Filing No.
74 at CM/ECF p. 29.) Thereafter, Plaintiff moved to extend the time to respond to
Defendants’ Motion for Summary Judgment. (Filing No. 75.) The court granted
Plaintiff’s request and gave him until October 21, 2013, to file a response. (Filing
No. 76.)
On October 25, 2013, Plaintiff filed an Objection and Brief in Opposition to
Defendants’ Motion for Summary Judgment along with an Index of Evidence. (Filing
Nos. 79 and 80.) On November 4, 2013, Defendants filed an Objection to Plaintiff’s
Brief and Index arguing he filed them late and that they contained unauthenticated
declarations and statements. (Filing No. 81.) On November 18, 2013, Plaintiff filed
a Motion to Strike Defendants’ Objection to his Brief arguing it was not filed within
seven days of his Objection and Brief in Opposition. (Filing No. 82.) Thereafter,
Plaintiff also filed a Motion for Leave to Supplement Evidence. (Filing No. 84.)
Defendants have objected to Plaintiff’s Motion arguing that his new evidence is also
improperly authenticated. (Filing No. 86.)

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II. ANALYSIS
Before the court addresses the pending Motions for Summary Judgment, it
must resolve Plaintiff’s Motion to Compel, the Parties’ Objections to briefs and
evidence submitted in support of their Motions for Summary Judgment, and
Plaintiff’s request to supplement evidence.
A.

Motion to Compel

On July 22, 2013, Plaintiff filed a Motion to Compel along with a Brief in
Support. (Filing Nos. 67 and 68.) In his Brief, Plaintiff expresses his dissatisfaction
with Defendants’ answers to his requests for admission and asks the court to compel
different answers. (Id.) The court has reviewed Defendants’ answers and finds that
they comply with Fed. R. Civ. P. 36(a)(4). Accordingly, Plaintiff’s Motion to Compel
is denied.
B.

Objections to Evidence

As discussed above, Plaintiff filed an Objection and Brief in Opposition to
Defendants’ Motion for Summary Judgment along with an Index of Evidence. (Filing
Nos. 79 and 80.) Defendants have filed an Objection to Plaintiff’s Brief and Index
arguing he filed them late and they contain unauthenticated declarations and
statements. (Filing No. 81.) Plaintiff argues that the court should strike Defendants’
Objection because it was not filed within seven days of his Objection and Brief in
Opposition. (Filing No. 82.)
Plaintiff was required to file his brief in opposition by October 21, 2013.
(Filing No. 76.) Plaintiff failed to file his Objection and Brief in Opposition until
October 25, 2013. (Filing No. 79.) However, Plaintiff deposited the Objection and
Brief in Opposition into the prison mail on October 21, 2013. (See Filing No. 79 at
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CM/ECF p. 25.) Because Plaintiff is proceeding pro se, the court will permit his late
filing. However, the court warns Plaintiff that he must comply with the court’s orders
and the Federal Rules of Civil Procedure. Plaintiff needs to mindful to send mail so
that it is received by an established deadline. To the extent that Defendants ask the
court to strike Plaintiff’s Objection and Brief in Opposition, their Objection (filing
no. 81) is denied. To the extent that Defendants ask the court to strike
unauthenticated evidence, their Objection is also denied. Indeed, requests to strike
are viewed with disfavor and infrequently granted. Lunsford v. United States, 570
F.2d 221, 229 (8th Cir. 1977). The court will consider Plaintiff’s filings in
accordance with the Federal Rules of Civil Procedure and Evidence, as well as the
summary judgment standards set forth in Part II.D.ii below.
Plaintiff asks the court to strike Defendants’ Objection. (Filing No. 82.)
Again, requests to strike are viewed with disfavor and infrequently granted.
Lunsford, 570 F.2d at 229. Moreover, the court has already denied Defendants’
Objection to the extent Defendants asked to strike Plaintiff’s Objection and Brief in
Opposition, or portions thereof. Plaintiff’s Motion to Strike is therefore denied.
C.

Motion for Leave to Supplement Evidence

Plaintiff also filed a Motion for Leave to Supplement Evidence. (Filing No.
84.) In the Motion, Plaintiff argues that he is “pro se” and did not know that he
needed to provide authenticated evidence with his October 25, 2013, Brief. (Id.)
Plaintiff has filed an Index of Evidence that corresponds to his request. (Filing No.
85.) Defendants have filed a Brief in Opposition to Plaintiff’s Motion arguing that
his new evidence is also improperly authenticated. (Filing No. 86.)
The court will grant Plaintiff’s Motion for Leave to Supplement Evidence
(filing no. 84) and consider his Index of Evidence (filing no. 85) in accordance with

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the Federal Rules of Civil Procedure and the summary judgment standards set forth
in Part II.D.ii below.
D.

Motions for Summary Judgment

This court’s local rules require a party moving for summary judgment to set
forth “a separate statement of material facts about which the moving party contends
there is no genuine issue to be tried and that entitle[] the moving party to judgment
as a matter of law.” NECivR 56.1(a)(1). If the non-moving party opposes the
motion, that party must “include in its brief a concise response to the moving party’s
statement of material facts.” NECivR 56.1(b)(1). The non-moving party’s response
must “state the number of the paragraph in the movant’s statement of material facts
that is disputed” and must contain pinpoint citations to the evidence upon which the
non-moving party relies. Id. “Properly referenced material facts in the movant’s
statement are considered admitted unless controverted in the opposing party’s
response.” Id. (emphasis omitted).
Plaintiff and Defendants have each filed Motions for Summary Judgment.
(Filing Nos. 50 and 72.) Plaintiff and Defendants have also submitted statements of
material facts, and responses to those facts. (See Filing Nos. 51, 74, and 79.)
Accordingly, this matter is deemed fully submitted and the court adopts the following
relevant undisputed material facts.
i.

Relevant Undisputed Material Facts

1.
Plaintiff Arrmon H. Daugherty is currently confined in the U.S.
Penitentiary in Leavenworth, Kansas. (Filing No. 1 at CM/ECF p. 1.)
2.
At all times pertinent hereto Officer Jay Denzin (“Denzin”), Officer
Derek Hose (“Hose”) and Officer Robert Smith (“Smith”) were law enforcement
officers for the City. (Filing Nos. 73-2, 73-3, 73-4.)
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3.
On August 23, 2009, Plaintiff was unlawfully operating a motor vehicle
in the City while under the influence of alcohol and drugs. (Filing No. 73-1 at
CM/ECF p. 1.) Plaintiff was operating a motor vehicle in excess of the posted speed
limits in the City. (Id. at CM/ECF p. 6.).
4.
On August 23, 2009, plain clothes officers informed Denzin that a
maroon Cadillac had accelerated through a red light and was later seen crossing the
yellow center line of the street. Denzin observed the Cadillac in front of a vehicle
operated by the plain clothes officers. Denzin then initiated a traffic stop. The
maroon Cadillac pulled over to the side of the road. As Denzin exited his police
cruiser and began approaching the maroon Cadillac, it accelerated and fled. (Filing
No. 73-2 at CM/ECF pp. 2-3.)
5.
After the Cadillac fled, Denzin and Hose initiated a motor vehicle
pursuit. Denzin observed the Cadillac strike a parked vehicle at 32nd and Q streets,
then continue northbound on 32nd Street, and then westbound onto R Street. During
the pursuit, Denzin and Hose communicated their location and the Cadillac’s erratic
driving over the police communication radio system. Denzin and Hose also
responded to questions posed by Sergeant Justin Armstrong (“Armstrong”). (Filing
No. 73-2 at CM/ECF p. 3; Filing No. 73-3 at CM/ECF p. 3.)
6.
On August 23, 2009, at approximately 0346 hours, Smith heard over the
police communication radio system that LPD officers were initiating a traffic stop at
33rd and P streets. Smith then heard the officers initiate a pursuit of a maroon
Cadillac and that the vehicle was traveling north, and then west on R Street. Smith
remained at his location near 27th and R streets. Smith then observed a maroon
Cadillac approach his location at a high rate of speed. (Filing No. 73-4 at CM/ECF
p. 3.)
7.
Smith heard the Cadillac brake sharply when it came upon a T-shaped
intersection at 27th Street. Denzin and Hose observed the Cadillac’s brake lights.
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Denzin, Hose, and Smith observed the vehicle travel across 27th Street and strike a
light pole. (Filing No. 73-4 at CM/ECF p. 3; Filing No. 73-2 at CM/ECF p. 3; Filing
No. 73-3 at CM/ECF p. 3; Filing No. 73-1 at CM/ECF p. 2.)
8.
Denzin and Hose heard Armstrong terminate the motor vehicle pursuit
approximately a half of a second before the Cadillac struck the light pole. Denzin and
Hose did not have an opportunity to acknowledge Armstrong’s order before the
Cadillac’s accident occurred. (Filing No. 73-2 at CM/ECF p. 3; Filing No. 73-3 at
CM/ECF p. 3.)
9.
After Plaintiff’s motor vehicle accident, Denzin and Hose observed
Plaintiff exit the driver’s side of the Cadillac and begin to flee on foot. (Filing No.
73-2 at CM/ECF p. 4; Filing No. 73-3 at CM/ECF pp. 3-4; Filing No. 73-1 at
CM/ECF p. 2.)
10. Denzin and Hose pursued Plaintiff on foot. During the pursuit, Denzin
gave Plaintiff loud verbal commands to stop and get down on the ground. Denzin
was approximately ten feet behind Plaintiff when he observed him fall to the ground.
Hose was behind Denzin and observed Plaintiff fall to the ground. (Filing No. 73-2
at CM/ECF p. 4; Filing No. 73-3 at CM/ECF pp. 3-4.)
11. It took both Denzin and Hose to secure handcuffs on Plaintiff. During
this period of time, Plaintiff was verbally communicating with officers. (Id.)
12. Denzin observed Plaintiff to have watery, bloodshot eyes, and a strong
odor of alcohol. Plaintiff had slurred speech and appeared confused. Hose conducted
a search of Plaintiff and discovered a baggie of crack cocaine in his inner jacket
pocket. Numerous alcohol containers were located inside the vehicle. (Filing No. 732 at CM/ECF p. 5; Filing No. 73-3 at CM/ECF pp. 4-5.)

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13. Neither Denzin nor Hose observed Plaintiff to have any injuries. Neither
Denzin nor Hose remember specifically asking if Plaintiff needed medical attention.
(Filing No. 73-2 at CM/ECF p. 5; Filing No. 73-3 at CM/ECF p. 5.)
14. During the pursuit of Plaintiff, Smith was securing the perimeter. Once
Plaintiff was apprehended, Smith arrived in the gravel alley where Plaintiff was being
detained. Smith then transported Plaintiff to Lancaster County Corrections (“LCC”).
15. Smith transported Plaintiff to LCC in a police cruiser. During the
transport, Plaintiff told Smith that he needed to “take a piss” and urinated in the back
of the police cruiser. (Filing No. 73-4 at CM/ECF p. 4.) Smith did not observe
Plaintiff to have any injuries. Smith does not remember specifically asking if Plaintiff
needed medical attention. (Id. at CM/ECF pp. 3-4.)
16. At LCC, Denzin processed Plaintiff for driving under the influence.
During this process, Denzin and Hose found Plaintiff to be uncooperative. Plaintiff
was also combative with LCC staff and had to be handcuffed. (Filing No. 73-2 at
CM/ECF pp. 5-6.)
17. During processing, Denzin read Plaintiff a Post Arrest Chemical Test
Advisement, gave him three separate chances to sign, and Plaintiff refused. Denzin
presented an Intoxilyzer 5000 EN mouthpiece to Plaintiff and instructed Plaintiff to
make a long steady blow into the tube. Plaintiff refused to blow into the tube.
Denzin read a verbal notice of revocation to Plaintiff, asked Plaintiff to sign, and
Plaintiff refused. Denzin read a Physician’s advisement form and a Miranda form to
Plaintiff. Plaintiff refused to answer the Miranda form questions. Denzin also tried
to take a picture of Plaintiff. However, Plaintiff hid his face and would not allow
Denzin to take his picture. (Id.)
18. While incarcerated at LCC, Plaintiff had access to medical care. (Filing
No. 73-1 at CM/ECF p. 5.)
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19. In October 2009, Plaintiff sought medical attention from LCC staff for
a bacterial infection. (Filing No. 73-1 at CM/ECF p. 5, Filing No. 73-5.) Plaintiff
was also treated for a sinus infection, and a prescription was obtained for blood
pressure medication at Walgreens. (Filing No. 73-5 at CM/ECF p. 5.)
20. On October 16, 2009, prior to being transferred to the Butler County
Sheriff’s Office for housing in the jail, an LCC nurse noted in Plaintiff’s file that he
could not be prescribed non-steroidal anti-inflammatory drugs (NSAID) due to his
hypertension. In the file, there are no notations that Plaintiff complained of back or
neck pain. (Id.)
21. On October 16, 2009, Plaintiff completed and signed an intake medical
screening at Butler County Sheriff’s Office (“jail”). Plaintiff did not indicate that he
had any medical problems other than being allergic to penicillin. (Filing No. 73-6 at
CM/ECF p. 1-4.)
22. On October 17, 2009, Plaintiff sought medical attention from Butler
County Sheriff’s Office staff. Plaintiff complained of sinus problems and headaches,
and questioned why he was not receiving his blood pressure medication. (Id. at
CM/ECF p. 7.)
23. On October 21, 2009, Plaintiff alleged he was being denied medical
attention by Butler County Sheriff’s Office staff because he had not been given
medication that he had been taking on the “streets.” (Id. at CM/ECF pp. 8-9.)
24. On November 4, 11, and 22, of 2009, Plaintiff sought medical attention
from Butler County Sheriff’s Office staff for sinus-related issues. (Id. at CM/ECF pp.
10-12.)

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25. On December 30, 2009, Plaintiff completed and signed an intake medical
screening at Butler County Sheriff’s Office. Plaintiff indicated several medical
issues, but did not identify any neck or back pain. (Id. at CM/ECF pp. 1-2, 5-6.)
26. In January 2010, Plaintiff sought medical attention from LCC staff for
dental issues. (Filing No. 73-1 at CM/ECF p. 6; Filing No. 73-1 at CM/ECF p. 5.)
27. On January 19, 2010, Plaintiff requested eye glasses from an LCC nurse.
On January 21, 2010, Plaintiff received an eye exam and a medical doctor examined
him the next day. (Filing No. 73-1 at CM/ECF p. 5.)
28. On February 11, 2010, Plaintiff received a dental x-ray. Five days later,
a dentist visited with Plaintiff. (Id. at CM/ECF p. 6.)
29. In March 2010, Plaintiff sought medical attention from LCC staff for
pain to his back and neck. (Filing No. 73-1 at CM/ECF p. 5.) On March 15, 2010,
Plaintiff complained of sharp pain in his neck and back, and requested to go to the
hospital. Plaintiff claimed that the pain was so intense he could not get out of bed.
Plaintiff informed the medical provider that he was in a car accident when he was
arrested and was never taken to the hospital. Plaintiff was provided with over-thecounter medication for his pain. (Filing No. 73-5 at CM/ECF p. 6.)
30. On March 22, 2010, Plaintiff sought medical attention from LCC staff.
Plaintiff requested a new supply of over-the-counter medication for his neck and back
pain. Progress notes indicate that Plaintiff denied numbness or tingling. LCC staff
gave Plaintiff more oral medication as well as an arthritis cream. He also received
exercise education sheets. (Id. at CM/ECF p. 6.)
31. On March 29, 2010, Plaintiff sought medical attention from LCC staff.
Plaintiff claimed he suffered injuries caused by a motor vehicle accident and
complained of numbness in his left foot and pain radiating down his back. The
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medical examination indicated Plaintiff had a full range of motion, no impairment to
his gait, no numbness in left foot, normal hand grasp and foot strength. Plaintiff’s
over-the-counter medications were continued and he was advised to continue
stretching. (Id. at CM/ECF pp. 6-7.)
32. On March 31, 2010, Plaintiff sought medical attention from LCC staff
for neck and back pain. A medical doctor increased Plaintiff’s oral over-the-counter
medication, and advised Plaintiff to increase his stretching and strengthening
exercises. (Id. at CM/ECF p. 7.)
33. On April 7, 2010, Plaintiff sought medical attention from LCC staff.
Plaintiff continued to complain about discomfort. The medical provider noted
Plaintiff was only doing the directed exercises once per week and it could take a
while to see results. (Id. at CM/ECF pp. 7-8.)
34. On April 15, 2010, Plaintiff sought medical attention from LCC staff,
requesting more over-the-counter medication and said he was completing his
exercises. (Id. at CM/ECF p. 8.)
35. On April 21, 2010, Plaintiff sought medical attention from LCC staff.
Plaintiff requested over-the-counter medication for his neck and back pain. (Id.)
36. On April 30, 2010, Plaintiff sought medical attention from Saline County
Law Enforcement Center staff. Plaintiff stated that he felt neck and back pain and
that his left hand and foot were going numb. A Saline County Law Enforcement
Center nurse visited with Plaintiff on May 5, 2010. During the visit, Plaintiff stated
that his neck and back pain has existed since his motor vehicle accident in August
2009. A medical doctor examined Plaintiff on May 6, 2010, and gave him a
prescription for a muscle relaxer and a nonsteroidal anti-inflammatory drug. (Filing
No. 73-7 at CM/ECF pp. 1, 4-5, 16.)

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37. On July 26, 2010, a doctor at the Bureau of Federal Prisons Health
Services cleared Plaintiff to perform Food Service duties. The medical duty status
indicates that Plaintiff had no restrictions. (Filing No. 73-8 at CM/ECF p. 3.)
38. On August 5, 2010, Plaintiff underwent a radiologic consultation of his
cervical spine. The results of the consultation were negative. (Filing No. 73-8 at
CM/ECF p. 6.)
39. On September 17, 2010, Plaintiff completed and signed a medical intake
form provided by the Saline County Law Enforcement Center. Plaintiff reported that
he had been previously shot in the left shoulder area, and in both legs. (Filing No. 737 at CM/ECF pp. 2, 22-24.)
40. On September 21, 2010, Plaintiff sought medical attention from Saline
County Law Enforcement Center staff for his back. Plaintiff claimed he was awaiting
approval for an MRI. (Id. at CM/ECF pp. 2, 6, 20.)
41. On September 22, 2010, Plaintiff sought medical attention from Saline
County Law Enforcement Center staff for allergies. (Id. at CM/ECF pp. 2, 8.)
42. On September 30, 2010, Plaintiff sought medical attention from Saline
County Law Enforcement Center staff for back pain. (Id. at CM/ECF pp. 2, 17.)
43. On November 3, 2010, Plaintiff sought medical attention from Saline
County Law Enforcement Center staff for neck and back pain. Plaintiff also
requested to be assigned to a bottom bunk and indicated jumping up and down was
causing back pain. (Id. at CM/ECF pp. 2, 10.)
44. On November 4, 2010, the Plaintiff asked Saline County Law
Enforcement Center staff for a bottom bunk because of neck and back pain from a
motor vehicle accident. Saline County staff records indicate Plaintiff was given an
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opportunity to move to a bottom bunk, but he declined the move. (Id. at CM/ECF pp.
2, 11.)
45. On December 16, 2010, Plaintiff sought medical attention from Saline
County Law Enforcement Center staff for pain in his knee, neck, and back. (Id. at
CM/ECF pp. 2, 12.)
46. On December 17, 2010, Plaintiff was involved in a fight at the Saline
County Law Enforcement Center, and suffered multiple contusions to his face.
Plaintiff received a CT scan of his facial bones at the Crete Area Medical Center. (Id.
at CM/ECF pp. 2, 25.)
47. On December 19, 2010, Plaintiff requested to remain in segregation for
medical/personal reasons. He also requested a bottom bunk because he hurt his knee
and hip in the fight that occurred on December 17, 2010. Plaintiff further stated that
his neck and back pain had increased since the fight. (Id. at CM/ECF pp. 2, 13.)
48. On January 31, 2011, Plaintiff sought medical attention from Saline
County Law Enforcement Center staff for nasal issues. (Id. at CM/ECF pp. 2, 14.)
49. In February and March 2011, Plaintiff sought medical attention from
Saline County Law Enforcement Center staff for nasal issues and pain in his back
when blowing his nose. (Id. at CM/ECF pp. 2, 15, 26.)
50. On November 15, 2011, a radiologist x-rayed Plaintiff’s chest for
possible sarcoidosis and the results were negative. (Filing No. 73-8 at CM/ECF p.
11.)
51. On November 17, 2011, Plaintiff sought medical attention from Bureau
of Prisons Health Services staff for neck pain. Plaintiff was advised to buy Motrin
from the commissary. (Id. at CM/ECF pp. 12-13.)
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52. On December 1, 2011, Federal Bureau of Prisons Health Services staff
cleared Plaintiff to work in food service. (Id. at CM/ECF pp. 14-15.)
ii.

Standard of Review

“Summary judgment is proper if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Jackson
v. United Parcel Serv., Inc., 643 F.3d 1081, 1085 (8th Cir. 2011) (quoting Torgerson
v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)). After the
movant has demonstrated the absence of a genuine issue of material fact, the
nonmovant must respond by submitting evidence that sets out specific facts showing
that there is a genuine issue for trial. Id. In doing so, the nonmovant must
substantiate her allegations with “sufficient probative evidence [that] would permit
a finding in [her] favor on more than mere speculation, conjecture, or fantasy.”
Moody v. St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Gregory v.
City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). “A mere scintilla of evidence
is insufficient to avoid summary judgment.” Id. “The basic inquiry is whether the
evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” Diesel Mach., Inc.
v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005) (internal quotation marks
and citations omitted). “Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no genuine issue for trial.”
Jackson, 643 F.3d at 1085 (quoting Torgerson, 643 F.3d at 1042).
iii.

Defendants’ Motion for Summary Judgment

Defendants argue that, among other things, they are entitled to summary
judgment because (a) the individual Defendants are entitled to qualified immunity,
and (b) because Plaintiff has failed to show that a policy or custom was the moving
force behind his injuries. The court agrees.
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a.

Qualified Immunity

Qualified immunity is a question of law to be determined by the court and
should ordinarily be decided long before trial. Hunter v. Bryant, 502 U.S. 224, 228
(1991). “Public officials, of course, are entitled to qualified immunity from liability
for damages under 42 U.S.C. § 1983 if ‘their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.’” Domina v. Van Pelt, 235 F.3d 1091, 1096 (8th Cir. 2000) (citing Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). In short, “qualified immunity shields a
defendant from suit if he or she could have reasonably believed his or her conduct to
be lawful in light of clearly established law and the information [that the defendant]
possessed.” Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th Cir. 2000) (citations and
quotations omitted). “The qualified immunity standard gives ample room for
mistaken judgments by protecting all but the plainly incompetent or those who
knowingly violate the law.” Id. (citations and quotations omitted). Moreover,
qualified immunity is “the usual rule” and state actors will enjoy qualified immunity
in all but “exceptional cases.” Foy v. Holston, 94 F.3d 1528, 1532 (11th Cir. 1996).
The court focuses on two questions to determine whether an official is entitled
to qualified immunity: “(1) whether, after viewing the facts in the light most favorable
to the party asserting the injury, there was a deprivation of a constitutional or
statutory right; and, if so, (2) whether the right was clearly established at the time of
the deprivation such that a reasonable official would understand that their conduct
was unlawful . . . .” Henderson v. Munn, 439 F.3d 497, 501 (8th Cir. 2006) (citations
and quotations omitted). A court “may consider these factors in either order.”
Stepnes v. Ritschel, 663 F.3d 952, 960 (8th Cir. 2011). With these factors in mind,
the court now turns to Plaintiff’s claims.
Here, Plaintiff alleges that on August 23, 2009, he was driving a vehicle at
speeds up to 60 miles per hour while being pursued by the LPD. (Filing No. 1 at
CM/ECF p. 5.) During the pursuit, Plaintiff hit a light pole, exited the vehicle, and
15

alleges that he ran approximately ten yards before he fell to the ground unconscious.
(Id.) After Plaintiff fell, Denzin took him into custody. (Id. at CM/ECF pp. 8-9.)
Plaintiff alleges he informed Denzin and Hose that he needed medical attention, but
they refused to seek or provide it for him. (Id. at CM/ECF pp. 5-6.) Plaintiff asserts
that he sustained a minor concussion, lost feeling in his limbs, and now experiences
chronic neck and back pain. (Id. at CM/ECF pp. 8-9 (emphasis added).) Plaintiff
argues Denzin and Hose violated his constitutional rights by failing to provide him
with adequate medical care. (Filing No. 79 at CM/ECF pp. 11-17.)
In contrast, Denzin and Hose assert that they did not observe Plaintiff to have
any injuries. (Filing No. 73-2 at CM/ECF p. 5; Filing No. 73-3 at CM/ECF p. 5.)
Rather, Denzin observed Plaintiff to have watery, bloodshot eyes, and a strong odor
of alcohol. (Filing No. 73-2 at CM/ECF p. 5; Filing No. 73-3 at CM/ECF pp. 4-5.)
Plaintiff was able to communicate with Denzin and Hose, but his speech was slurred.
(Id.) Hose also discovered a baggie of crack cocaine in Plaintiff’s inner jacket pocket
along with numerous alcohol containers inside his vehicle. (Id.)
At the time of the alleged constitutional violation, Plaintiff was a pretrial
detainee. Pretrial detainees’ rights arise under the due process clause of the
Fourteenth Amendment. Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 905
(8th Cir. 1999), cert. denied, 528 U.S. 1157 (2000). Although a pretrial detainee’s
claim for denial of medical care is brought under the due process clause, such claims
are analyzed in much the same way as a prisoner’s Eighth Amendment claim of
deliberate indifference to a serious medical need. Id. Under the Eighth Amendment,
a prisoner-plaintiff seeking relief for claims relating to his medical care must allege
that a defendant-prison official was deliberately indifferent to the plaintiff’s serious
medical needs. Estelle v. Gamble, 429 U.S. 97, 105 (1976); Coleman v. Rahija, 114
F.3d 778, 784 (8th Cir. 1997)). Further, a plaintiff must allege that he had objectively
serious medical needs, and that officials actually knew of but deliberately disregarded
those needs. Hartsfield v. Colburn, 491 F.3d 394, 396–97 (8th Cir. 2007); Johnson
v. Hamilton, 452 F.3d 967, 972–73 (8th Cir. 2006). “[S]ociety does not expect that
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prisoners will have unqualified access to health care.” Hudson v. McMillian, 503
U.S. 1, 9 (1992). Therefore, “deliberate indifference to medical needs amounts to an
Eighth Amendment violation only if those needs are ‘serious.’” Id. (citing Estelle,
429 U.S. at 103–04).
The evidence in this matter shows that after Plaintiff was processed for driving
under the influence, he was housed at LCC from the day of his arrest, August 23,
2009, until October 16, 2009. (Filing No. 73-1 at CM/ECF p. 5.) At LCC, Plaintiff
had access to medical care. (Filing No. 73-1 at CM/ECF p. 5; Filing No. 73-5.)
However, medical records indicate that Plaintiff failed to seek medical attention until
October 7, 2009, or more than a month after the accident occurred. (Id.) When he
finally did seek medical attention, Plaintiff did so for a bacterial infection and sinus
infection, not for a concussion, loss of feeling in his limbs, or neck and back pain.
(Id.)
Plaintiff argues that he asked for medical attention with regard to his head
injury several times at LCC and that his requests were not documented. (See Filing
No. 79 at CM/ECF p. 11.) However, this argument is contradicted by other
undisputed medical evidence in the record. Indeed, Plaintiff completed and signed
intake medical screening forms for the Butler County Sheriff’s Office in October
2009 and December 2009. (Filing No. 73-6 at CM/ECF pp. 1-4.) On these forms,
Plaintiff did not indicate that he had a concussion, head injury, loss of feeling in his
limbs, or back and neck pain. (Id.)
In short, the evidence in this matter does not show that Plaintiff was ever
diagnosed with a concussion. Moreover, even if Plaintiff did experience a minor
concussion, or otherwise experienced a head injury in the accident, he has not shown
that a layperson would have recognized that he needed medical attention. See
Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995) (stating a serious medical
need is one that has been diagnosed by a physician as requiring treatment, or one that
is so obvious that even a layperson would easily recognize the necessity for a doctor’s
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attention) (quotations omitted)). In light of this, the court finds that no reasonable
juror could conclude that Denzin and Hose violated Plaintiff’s constitutional rights.
Denzin and Hose are entitled to qualified immunity for Plaintiff’s Fourteenth
Amendment claims against them in their individual capacities.
b.

Municipal Policy

Because the court has dismissed Plaintiff’s Fourteenth Amendment claims
against Denzin and Hose in their individual capacities, the court now turns to
Plaintiff’s claims against Denzin and Hose in their official capacities and Plaintiff’s
claims against the City. Plaintiff’s claims against Denzin and Hose in their official
capacities are actually claims against their employer, the City. See Johnson v.
Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999).
The City, as a municipality, may only be liable under section 1983 if its official
“policy” or “custom” caused a violation of the plaintiff’s constitutional rights. Doe
By & Through Doe v. Washington Cnty., 150 F.3d 920, 922 (8th Cir. 1998) (citing
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). An “official policy”
involves a deliberate choice to follow a course of action made from among various
alternatives by an official who has the final authority to establish governmental
policy. Jane Doe A By & Through Jane Doe B v. Special Sch. Dist. of St. Louis Cnty.,
901 F.2d 642, 645 (8th Cir.1990) (citing Pembaur v. City of Cincinnati, 475 U.S. 469,
483 (1986)). To establish the existence of a governmental custom, a plaintiff must
prove:
1)
The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees;
2)

Deliberate indifference to or tacit authorization of such conduct by the
governmental entity’s policymaking officials after notice to the officials
of that misconduct; and

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3)

That plaintiff was injured by acts pursuant to the governmental entity’s
custom, i.e., that the custom was the moving force behind the
constitutional violation.

Jane Doe, 901 F.2d at 646.
As discussed above, Plaintiff has not shown that Denzin and Hose violated his
constitutional rights. In addition, Plaintiff has not shown that the City had an
unconstitutional policy or that any policymaking officials were deliberately
indifferent to or tacitly authorized any unconstitutional conduct. Accordingly, the
City is also entitled to summary judgment.
iv.

State Law Claims

Plaintiff has also alleged state law claims for negligence. The court declines
to exercise supplemental jurisdiction over such claims because it has dismissed all
claims over which it had original jurisdiction. 28 U.S.C. § 1367(c)(3). However, the
court will dismiss Plaintiff’s state law claims without prejudice to reassertion in the
proper forum.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Motion to Compel (filing no. 67) is denied.

2.
Defendants’ Objection (filing no. 81) is denied in accordance with this
Memorandum and Order.
3.

Plaintiff’s Motion to Strike (filing no. 82) is denied.

4.

Plaintiff’s Motion for Leave to Supplement (filing no. 84) is granted.

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5.
Defendants’ Motion for Summary Judgment (filing no. 72) is granted
and Plaintiffs’ federal claims are dismissed with prejudice. Plaintiff’s state law
claims are dismissed without prejudice.
6.
Plaintiff’s Motion for Summary Judgment (filing no. 50) and Objection
to Defendants’ Motion for Summary Judgment (filing no. 79) are denied.
7.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 25th day of March, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for
the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services
or products they provide on their Web sites. Likewise, the court has no agreements with any of these third
parties or their Web sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect
the opinion of the court.

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