Brizendine v. Omaha, City of et al

Filing 91

MEMORANDUM AND ORDER granting in part and denying in part 78 Motion for Summary Judgment. The motion is granted as to plaintiff's state law claims and denied in all other respects. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA CHARLES BRIZENDINE, Plaintiff, vs. CITY OF OMAHA and OMAHA POLICE OFFICER FRANK PLATT, individually and in his official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) )

8:07CV277

MEMORANDUM AND ORDER

T h is matter is before the magistrate judge by consent of the parties on the Motion for S u m m a ry Judgment (Doc. 78) filed by defendants City of Omaha and Officer Frank Platt, a n d the plaintiff's response in opposition (Doc. 83). The Amended Complaint (Doc. 64) alleges that plaintiff was arrested by defendant P l a t t on May 19, 2006 and charged with the crime of carrying a concealed weapon. Platt f a ile d to appear for the trial of the case on two occasions, and the charge was dismissed on A u g u st 25, 2006. Plaintiff seeks relief under 42 U.S.C. § 1983 for violations of his Fourth A m e n d m e n t rights, based on allegations of unlawful arrest, false imprisonment, abuse of p r o c e s s , negligence, gross negligence, and unreasonable search and seizure, and use of e x c e ss iv e force. Plaintiff also asserts state tort law claims against Officer Platt. D e f en d a n ts contend they are entitled to summary judgment because: 1. P la in tif f is collaterally estopped from relitigating the issue of probable cause, as

th e issue of probable cause for arrest was decided against him in the state court criminal p r o c e e d in g after a full and fair hearing on the merits;

2. 3.

T h e police officers had probable cause to search plaintiff's vehicle; P la in tif f 's state law tort claims are barred by the Nebraska Political Subdivision

T o rt Claims Act, Neb. Rev. Stat. § 13-901, et seq.; and 4. T h e defendant officer is entitled to qualified immunity. S T A N D A R D OF REVIEW S u m m a ry judgment is "properly regarded not as a disfavored procedural shortcut, but ra th e r as an integral part of the Federal Rules as a whole, which are designed 'to secure the ju s t, speedy and inexpensive determination of every action.' " Celotex Corp. v. Catrett, 477 U .S . 317, 327 (1986). S u m m a ry judgment is proper if the evidence, viewed in the light most favorable to the n o n m o v in g party, demonstrates no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Cordry v. Vanderbilt Mortg. & Fin., Inc., 445 F.3d 1106, 1109 (8th Cir. 2006). The proponent of a motion for summary ju d g m e n t "bears the initial responsibility of informing the district court of the basis for its m o tio n , and identifying those portions of 'the pleadings, depositions, answers to in te rro g a to rie s, and admissions on file, together with the affidavits, if any,' which it believes d e m o n s tr a te the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 ( q u o tin g Fed. R. Civ. P. 56(c)). The proponent is not required to negate the opponent's c la im s or defenses. Id. at 324-25.

-2-

In response to the proponent's showing, the opponent must "come forward with 's p e c if ic facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v . Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). A " g en u in e " issue of material fact is more than "some metaphysical doubt as to the material f a c ts ." Id. at 586. "[T]here is no issue for trial unless there is sufficient evidence favoring th e nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, In c ., 477 U.S. 242, 249 (1986). "If the evidence is merely colorable ... or is not significantly p r o b a t iv e ... summary judgment may be granted." Id. at 249- 50, 106 S.Ct. 2505 (citations o m i tt e d ) . L E G A L ANALYSIS A . P ro b a b le Cause and Qualified Immunity T h e evidentiary materials now offered on the issues of probable cause and qualified im m u n ity are virtually the same as those filed in conjunction with the defendants' earlier m o t io n for summary judgment based on qualified immunity. Again, the defendants'

s ta te m e n t of uncontroverted facts relies heavily on the January 25, 2008 affidavit of d e f e n d a n t Platt. The plaintiff was deposed after the court denied the defendants' prior motion for s u m m a ry judgment based on qualified immunity. Plaintiff's deposition testimony was that P la tt "would have had to have gone in my car" (59:21) in response to the question, "You d o n 't have any doubt that he had went in the car and found a gun?" -3-

P lain tiff and defendant Platt remain in substantial disagreement over what actually h a p p e n ed on May 19, 2006. There have been no material changes in the factual record or the c a se law on the issues of probable cause and qualified immunity. The court finds that issues o f material fact remain over the circumstances of the plaintiff's arrest, the search of his p e rs o n and vehicle, whether the use of force was warranted under the circumstances, and the a m o u n t of force that was used. B. C o lla te r a l Estoppel B riz e n d in e was arrested and prosecuted in the Douglas County Court, Case No. C R 0 6 -1 7 5 8 0 , for Carrying a Concealed Weapon (the "Criminal Case"). In the Criminal C a se , plaintiff, through counsel, filed motions to suppress evidence and statements. (Doc. 7 9 , Exhibit 4). The County Court denied the motions to suppress (Doc. 79, Exhibit 5), but d is m is s e d the Criminal Case on August 25, 2006 after defendant Platt failed to appear for tria l. (See Doc. 79, Exhibit 6). The County Court subsequently ordered that plaintiff's gun b e returned to him. Id. D e f e n d a n ts argue that plaintiff is now precluded from raising the issue of probable c a u se for arrest because the issue was determined by the County Court, after a full and fair h e a rin g on the merits. In federal court, a state court judgment is given "the same preclusive e f f e c t it would be given under the law of the state in which it was rendered." Crumley v. City o f St. Paul, 324 F.3d 1003, 1006 (8th Cir. 2003). Under Nebraska law,

-4-

c o lla te ra l estoppel will preclude further litigation of a specific issue if (1) the id e n tic a l issue was decided in a prior action; (2) there was a final judgment on th e merits; (3) the party against whom the rule is to be applied was a party to, o r is in privity with a party to, the prior action; and (4) there was an o p p o rtu n ity to fully and fairly litigate the issue in the prior action. A s h to n Optical Imports, Inc. v. Incite Int'l, Inc., 266 F. Supp. 2d 1027, 1031 (D. Neb. 2003) (c itin g Woodward v. Andersen, 261 Neb. 980, 627 N.W.2d 742, 749 (2001)); see also W .F .M ., Inc. v. Cherry County, Nebraska, 279 F.3d 640, 643 (8th Cir. 2002). In this case, there was no final judgment on the merits in the Criminal Case. While th e County Court denied plaintiff's pretrial motions to suppress, the court record now offered b y the defendants indicates only that the motions were denied. The County Court record d o es not articulate the reason for the court's ruling, and contains no specific finding that there w a s probable cause to arrest the plaintiff. The issues raised in the suppression motions re m a in e d triable on the merits. The bare fact that the County Court denied plaintiff's motions to suppress, and the dismissal of the Criminal Case prior to trial for reasons unrelated to the m e rits , do not allow the defendants to invoke the doctrine of collateral estoppel in this case. C . P o litic a l Subdivision Tort Claims Act T h e Amended Complaint alleges: T h e acts and conducts of defendants hereinbefore alleged constitute a s s a u lt, batter[y], false arrest, false imprisonment, abuse of process, n e g lig e n c e, gross negligence, prima facie tort under the laws of the State of N e b ra sk a . (D o c . 64 at ¶ 15). In response, the defendants affirmatively alleged:

-5-

1 1 . The allegations asserting tort claims based on Nebraska state law are b a rre d by the provisions of the Nebraska Political Subdivision Tort Claims A c t, Neb. Rev. Stat. § 13-901, et seq., because Plaintiff failed to comply with th e notice and claim requirements of Neb. Rev. Stat. sections 13-905, 13-906, 1 3 -9 1 9 , and 13-920. **** 1 3 . The allegations asserting tort claims based on Nebraska state law are b arred by the provisions of Neb. Rev. Stat. § 13-910(7). P la in tif f concedes that his state law tort claims against the City of Omaha are barred u n d e r the Political Subdivisions Tort Claims Act ("PSCTA"). (Doc. 84 at p. 9 § II.A.). The requirements of the PSCTA also apply when an official is sued in his or her in d iv id u a l capacity, but is performing within the scope of employment. Cole v. Hopkins, 2 0 0 1 WL 1262356 at *5 (Neb. Ct. App., Oct 23, 2001) (citing Cole v. Wilson, 10 Neb. App. 1 5 6 , 627 N.W.2d 140 (2001)). The PSCTA provides a list of claims for which sovereign immunity is not waived. " T h e se exceptions to the PSTCA's waiver of sovereign immunity include: 'Any claim arising o u t of assault, battery, false arrest, false imprisonment, malicious prosecution, abuse of p ro c e s s , libel, slander, misrepresentation, deceit, or interference with contract rights.'" M c K e n n a v. Julian, 277 Neb. 522, 528, 763 N.W.2d 384, 389-90 (2009) (quoting Neb. Rev. S ta t. 13-910(7)). The court must "strictly construe the PSTCA in favor of the political s u b d iv i sio n and against the waiver of sovereign immunity." Id. at 528, 763 N.W.2d at 390. B ec au se it is apparent from the record that the actions of defendant Platt which form th e basis of plaintiff's request for money damages arose within the scope of Platt's

-6-

e m p lo ym e n t as an Omaha police officer, the requirements of the PSTCA apply, and the d e f e n d a n t s are entitled to summary judgment on plaintiff's state law claims. ORDER In summary, the court finds that defendant Platt is not entitled to qualified immunity; th e plaintiff is not collaterally estopped from litigating the issue of probable cause in this f o r u m ; and the defendants are entitled to summary judgment on plaintiff's state law claims. I T IS ORDERED that defendants' Motion for Summary Judgment (Doc. 78) is g r a n te d as to plaintiff's state law claims and denied in all other respects. D A T E D October 9, 2009. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge

-7-