Brizendine v. Omaha, City of et al

Filing 62

MEMORANDUM AND ORDER - Plaintiff's claims against the Omaha Police Department, Thomas Warren, Chief of Police, City Attorney Paul D. Kratz, City Prosecutor Marty Conboy, Omaha Police Officer Michael Curd, and Omaha Police Officer Brian Gerrity a re hereby dismissed pursuant to Fed. R. Civ. P. 41(a)(2). Defendants' Motion for Summary Judgment 19 is denied as moot as to these defendants. Defendants' Motion for Summary Judgment 19 is denied as to the City of Omaha and Omaha Polic e Officer Frank Platt, individually and in his official capacity. The plaintiff may file an amended complaint restating his claims against the remaining defendants, i.e., the City of Omaha and Omaha Police Officer Frank Platt, individually and in his official capacity. Any amended complaint shall be filed and served no later than October 15, 2008. Ordered by Magistrate Judge F. A. Gossett. (KBJ)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA CHARLES BRIZENDINE, Plaintiff, vs. CITY OF OMAHA; OMAHA POLICE DEPARTMENT; THOMAS WARREN, CHIEF OF POLICE, individually and in his official capacity; CITY ATTORNEY PAUL D. KRATZ, individually and in his official capacity; CITY PROSECUTOR MARTY CONBOY, individually and in his official capacity; OMAHA POLICE OFFICER FRANK PLATT, individually and in his official capacity, OMAHA POLICE OFFICER MICHAEL CURD, individually and in his official capacity; OMAHA POLICE OFFICER BRIAN GERRITY; JOHN DOES 1-10, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

8:07CV277

MEMORANDUM AND ORDER

T h i s matter is before the magistrate judge by consent of the parties on the defendants' M o tio n for Summary Judgment on the merits and based on qualified immunity [19]. In response, the plaintiff requested that his claims against the Omaha Police D e p a rtm e n t, Thomas Warren, Chief of Police, City Attorney Paul D. Kratz, City Prosecutor M a rty Conboy, Omaha Police Officer Michael Curd, and Omaha Police Officer Brian Gerrity b e dismissed. No objection to this request was made, and these claims will be deemed w ith d raw n and dismissed pursuant to Fed. R. Civ. P. 41(a)(2).

A s to plaintiff's remaining claims against Omaha Police Officer Frank Platt, the court h a s carefully considered the parties' written arguments and evidentiary materials and finds, p u rs u a n t to Fed. R. Civ. P. 56, that the motion for summary judgment should be denied. I . NATURE OF THE CASE P la in tif f , who is African-American, was arrested on May 19, 2006 by members of the O m a h a Police Department. He filed this action in the District Court of Douglas County, N e b ra sk a seeking damages for assault and battery, false arrest, malicious prosecution, and v i o la tio n of his civil rights pursuant to 42 U.S.C. § 1983. The defendants removed the case to federal court pursuant to 28 U.S.C. §§ 1331 and 1441(b). Defendant Platt contends he is e n title d to qualified immunity and judgment as a matter of law on the merits of plaintiff's c la im s . I I . JURISDICTION D e f e n d an ts timely removed this action to federal court pursuant to 28 U.S.C. § 1 4 4 6 (b ), and all named defendants joined in the removal. This court has subject matter ju ris d ic tio n pursuant to 28 U.S.C. § 1331. Venue in this court is proper under 28 U.S.C. § 1391. I I I . STANDARD OF REVIEW A . Summary Judgment "A t the summary judgment stage, facts must be viewed in the light most favorable to th e nonmoving party only if there is a 'genuine' dispute as to those facts. Fed. Rule Civ. Proc. -2-

5 6 ( c )." Scott v. Harris, 127 S. Ct. 1769, 1776 (2007). "Where the record taken as a whole c o u ld not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine is s u e for trial.'" Id. (quoting Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 5 7 4 , 586-587 (1986) (footnote omitted)). When opposing parties tell two different stories, o n e of which is blatantly contradicted by the record 1 , 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 s u m m a ry judgment. Id. B . Qualified Immunity I n determining whether an officer is entitled to qualified immunity, the court must c o n s id e r whether the facts alleged, taken in the light most favorable to the injured party, s h o w that the officer's conduct violated a constitutional right. Ngo v. Storlie, 495 F.3d 597, 6 0 2 (8th Cir. 2007) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). If the court finds a violation of a constitutional right, the court determines whether the c o n s titu tio n a l right was clearly established. Ngo v. Storlie, 495 F.3d at 602. "'This second s te p is a fact-intensive inquiry and must be undertaken in light of the specific context of the c a s e , not as a broad general proposition.'" Id. (quoting Samuelson v. City of New Ulm, 455 F .3 d 871, 875 (8th Cir. 2006)). The "dispositive inquiry in determining whether a right is

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In this case, none of the parties' stories are "blatantly contradicted by the record."

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c le a rly established is whether it would be clear to a reasonable officer that his conduct was u n la w f u l in the situation he confronted." Saucier, 533 U.S. at 202. III. FACTS ALLEGED BY THE PLAINTIFF O m a h a Police Officers encountered Charles Brizendine on May 19, 2006 when they w e n t to investigate an automobile collision involving Brizendine's vehicle. Brizendine had b ee n rear-ended by an intoxicated driver named Brundy. Brizendine was with his 11-yearo ld son. When he was approached by Officer Platt, Brizendine was on his cell phone talking to his wife to have her come pick up their son so paramedics could transport Brizendine to th e emergency hospital. O f f ice r Platt searched Brizendine's person and vehicle. Brizendine did have a gun in h is vehicle; however, the gun was in plain sight, was registered, and he was authorized to c a rry it. He had always carried a gun on the dashboard in his vehicle whenever he collected c a sh payments from his landscaping customers. On May 19, 2006, he had the gun on the d a s h b o a rd of his vehicle. Brizendine was arrested by Officer Platt on charges of carrying a concealed weapon; h o w e v e r , the gun was in plain view and was not concealed. Criminal charges for that offense w e re subsequently filed against him by prosecutors for the City of Omaha. Brizendine's m o tio n to suppress evidence was denied in state court. The state charges were dismissed a f ter Officer Platt twice failed to appear to testify at trial.

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A fte r arresting Brizendine, Officer Platt placed Brizendine in handcuffs that were p a in f u lly tight. Platt seized Brizendine's wallet and a pouch from his waist, and examined th e contents of his wallet and pouch. Brizendine had advised Officer Platt that he was a u th o riz e d to carry the gun and that the registration was in his wallet. O ther officers had spoken to Brizendine at the scene of the accident and did not report s m e llin g an odor of marijuana in the vehicle. Officer Platt did not ask Brizendine about any o d o r of marijuana he now says he smelled in Brizendine's vehicle. No tests were conducted to determine whether Brizendine was under the influence of an illegal substance. Officer Platt is not trained to administer any form of test on suspects under the in f lu e n c e of illegal substance. No officer at the scene of the accident requested that a test be c o n d u c te d to determine whether Brizendine had smoked marijuana or was under the in f lu e n c e of an illegal substance, although he was driving and involved in an accident. O f f ic e r Platt did request that Brundy, the driver who caused the accident, be tested because h e was suspected to be in possession of crack cocaine. B riz e n d in e was transported to the police station and released on bond within couple o f hours after his arrest and was free to go out and about driving. O f f ic e r Platt did not do anything to help the 11-year-old boy leave the scene of the a c cid e n t, although his father was being arrested. Platt did not secure medical attention for th e m ; rather, Officer Platt said he would take care of it and asked the paramedics to leave.

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B riz e n d in e advised Officer Platt at the scene of the accident that he needed medical attention a s a result of his accident injuries but Officer Platt ignored him. T h e City of Omaha does not have in place any method of evaluating the reasons or r e a so n a b l e cause of arrests stated by its officers. Officer Kung, who approved the arrest re p o rt filed by Officer Platt regarding Brizendine did not question the reasonableness of the p ro b a b le causes alleged by Officer Platt warranting the arrest, i.e. the smell of the odor of m a riju a n a and the presence of a concealed weapon. The City of Omaha has not trained its o f f ic e r s on how to avoid profiling of suspects. I V . DISCUSSION T h e plaintiff is proceeding with official capacity and individual capacity claims a g a in st Officer Platt pursuant to 42 U.S.C. § 1983, based on allegations of unlawful arrest, u n re a so n a b le search and seizure, and use of excessive force. Brizendine also asserts a state la w claim against Officer Platt for malicious prosecution, over which this court may exercise s u p p le m e n ta l jurisdiction. See 28 U.S.C. § 1367. Qualified immunity protects individual government officials from liability in a section 1 9 8 3 action unless the official's conduct violated a clearly established constitutional or s ta tu to ry right of which a reasonable official in the defendant's position would have known. S e e Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether an official is e n title d to qualified immunity, two questions must be answered: (1) whether, after viewing th e facts in the light most favorable to the party asserting the injury, there was a deprivation -6-

o f a constitutional or statutory right; and, if so, (2) whether the right was clearly established a t the time of the deprivation such that a reasonable official would understand his conduct w a s unlawful in the situation he confronted. Saucier v. Katz, 533 U.S. at 201. Summary ju d g m e n t may be denied on the issue of qualified immunity if there is a genuine issue of m a ter ial fact as to whether a reasonable officer could have believed his actions to be lawful. N g o v. Storlie, 495 F.3d at 602. In this case, plaintiff Brizendine and Officer Platt are in substantial disagreement over the events of May 19, 2006. The plaintiff did not cause the collision; his vehicle was reare n d e d by a drunk or impaired driver. Plaintiff states that he was with his 11-year-old son, w as injured in the accident, was not using marijuana, had a registered gun on the dashboard in plain sight, was authorized to carry the gun, was denied medical treatment, and was placed in painfully tight handcuffs. Officer Platt states that he saw plaintiff move as if attempting to hide something under the front seat, the plaintiff's car smelled of marijuana, the plaintiff d id not immediately get out of the car when asked to do so, and Platt found the gun hidden u n d e r the front seat of plaintiff's car. The Omaha City Prosecutor filed charges against B rize n d ine based on the information contained in Platt's reports; however, the charges were d is m is s e d due to Platt's failure to appear to testify. P la in tif f 's section 1983 claims, including his claim for excessive force, implicate the f o u rth amendment to the United States Constitution, and the court must determine whether

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O f f ic e r Platt's conduct was objectively reasonable under the particular circumstances. See N g o v. Storlie, 495 F.3d at 602. In assessing the reasonableness of the officer's conduct, we look at the totality o f the circumstances, Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S. Ct. 1694, 8 5 L.Ed.2d 1 (1985), focusing on factors such as "the severity of the crime at is s u e , whether the suspect poses an immediate threat to the safety of the o f f ic e rs or others, and whether [the suspect] is actively resisting arrest or a tte m p t in g to evade arrest by flight." Graham, 490 U.S. at 396, 109 S. Ct. 1 8 6 5 . We examine the reasonableness of the use of force "from the perspective o f a reasonable officer on the scene, rather than with the 20/20 vision of h i n d s ig h t." Id. Id. T h e court finds that issues of material fact remain over the circumstances of the p la in tif f 's arrest, the search of his person and vehicle, whether the use of force was warranted u n d e r the circumstances, and the amount of force that was used. The court understands that plaintiff is asserting a pendant state law claim for m a lic io u s prosecution against Officer Platt, in his individual capacity2 ; however, the c o m p lain t was filed by prior counsel in state court and is not absolutely clear on this point. T h e plaintiff will be given leave to file an amended complaint restating his claims against O f f ic e r Platt and the City of Omaha if he wishes to do so.

Within the Eighth Circuit, an action for malicious prosecution is not punishable under 42 U.S.C. § 1983 because it does not allege a constitutional injury. See, e.g., Stagemeyer v. County of Dawson, 205 F. Supp. 2d 1107, 1117 (D. Neb. 2002).

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I T IS ORDERED: 1. P la in tif f 's claims against the Omaha Police Department, Thomas Warren, Chief

o f Police, City Attorney Paul D. Kratz, City Prosecutor Marty Conboy, Omaha Police Officer M ic h a el Curd, and Omaha Police Officer Brian Gerrity are hereby dismissed pursuant to Fed. R . Civ. P. 41(a)(2). Defendants' Motion for Summary Judgment [19] is denied as moot as to these defendants. 2. D e f en d a n ts ' Motion for Summary Judgment [19] is denied as to the City of

O m a h a and Omaha Police Officer Frank Platt, individually and in his official capacity. 3. T h e plaintiff may file an amended complaint restating his claims against the

re m a in in g defendants, i.e., the City of Omaha and Omaha Police Officer Frank Platt, in d iv id u a lly and in his official capacity. Any amended complaint shall be filed and served n o later than October 15, 2008.

DATED September 25, 2008. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge

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