Andrews v. State of Nebraska et al

Filing 42

MEMORANDUM OPINION - A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(TCL) Modified on 5/16/2013 to correct docket name (TCL ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL ANDREWS,

)
)
Plaintiff,
)
)
v.
)
)
FICKELL, Officer, et al., and )
HANZEK, Officer, City of
)
Omaha Police Department,
)
et al.,
)
)
Defendants.
)
)

8:11CV279

MEMORANDUM OPINION

This matter is before the Court on defendants’ Motion
for Summary Judgment (Filing No. 33).

For the reasons discussed

below, the Court finds that defendants are entitled to summary
judgment.
I.

BACKGROUND

Plaintiff filed his complaint in this matter on August
15, 2011, against the State of Nebraska, the City of Omaha Police
Department, Douglas County, the Douglas County Department of
Corrections, Robert Fickel (“Officer Fickel”), and David Hanzek
(“Officer Hanzek”).1

(Filing No. 1.)

Plaintiff filed an Amended

Complaint on November 18, 2011, in which he named additional

1

Officers Fickel and Hanzek are referred to in the
Complaint as “City of Omaha Police Department Officer Fickell”
and “City of Omaha Police Department Officer Hanzek.”
(See Filing No. 10 at CM/ECF p. 1.) Defendants’ filings reflect
that these Defendants are actually Robert Fickel and David
Hanzek. The Court will direct the clerk’s office to update its
records to reflect defendants’ actual names.

parties (Filing No. 10).

Plaintiff’s Amended Complaint is the

operative complaint in this matter; however, only plaintiff’s
claims against Officers Fickel and Hanzek in their individual
capacities are viable because all other claims against all other
parties were dismissed on initial review (See Filing No. 9 at
CM/ECF p. 4 (dismissing plaintiff’s claims against the State of
Nebraska) and Filing No. 13 (dismissing plaintiff’s claims
against the City of Omaha, the City of Omaha Police Department,
Douglas County, Douglas County Corrections, Douglas County
Sheriff, and Fickel and Hanzek in their official capacities)).
On October 10, 2012, defendants filed a Motion for
Summary Judgment and a Brief and Index of Evidence in support of
their Motion (Filing Nos. 33, 34, and 35).

In response,

plaintiff filed a “Motion to Deny Summary Judgment” and a Brief
(Filing Nos. 36 and 37).
II.

DEFENDANTS’ UNDISPUTED MATERIAL FACTS

The party seeking the entry of summary judgment in its
favor must set forth “a separate statement of material facts
about which the moving party contends there is no genuine issue
to be tried and that entitles 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 [opposing]
brief a concise response to the moving party’s statement of
material facts.”

NECivR 56.1(b)(1).

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Such response must “address

each numbered paragraph in the movant’s statement and, in the
case of any disagreement, contain pinpoint references to
affidavits, pleadings, discovery responses, deposition testimony
(by page and line), or other materials upon which the opposing
party relies.”

Id.

“Properly referenced material facts in the

movant’s statement are considered admitted unless controverted in
the opposing party’s response.”

Id.

Defendants submitted a statement of material facts in
accordance with the Court’s Local Rules.

Further, defendants

submitted evidence that was properly authenticated by affidavit.
Plaintiff filed a response to defendants’ Motion for Summary
Judgment, but the response did not include anything that could be
construed as a “concise response” to defendants’ statement of
materials facts.

(See Filing Nos. 36 and 37.)

The Court deems

this matter fully submitted, and adopts the following undisputed
material facts, as set forth by defendants in their Brief:
1. On May 5, 2011, at
approximately 8:55 a.m., Omaha
Police Officer Robert Fickel was on
routine patrol conducting speed
enforcement at or near 24th and F
Streets in Omaha, Nebraska, in a
marked Omaha Police Department
cruiser (Fickel affidavit ¶ 3).
2. At that time and location,
Officer Fickel observed, and confirmed
by radar, a vehicle heading [n]orthbound
on 24th Street, later determined to be
driven by Plaintiff, going approximately
60 mph in a 30 mph zone (Fickel
affidavit ¶¶ 4-6).
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3. Plaintiff was not the
owner of the vehicle (Plaintiff’s
Amended Complaint, ¶ 8, page 5).
4. Officer Fickel activated
his overhead lights to initiate a
traffic stop for the speeding
violation (Fickel affidavit ¶ 7).
5. Although Plaintiff slowed
down to approximately 30 mph, he
did not immediately pull over
(Fickel affidavit ¶ 8).
6. Plaintiff kept making hand
gestures out [of] the window as if
he didn’t know where to pull over
(Fickel affidavit ¶ 8).
7. Near 24th Street and
Interstate 80, Plaintiff stopped
briefly, but then drove off at a
slow rate (Fickel affidavit ¶ 9).
8. At 24th and Vinton
[Streets], plaintiff turned left,
which the driver did not signal[.]
[The intersection at 24th and
Vinton Streets] is also posted as a
no left turn from 7-9 a.m. (Fickel
affidavit ¶ 10).
9. The car then turned into
the No Frills Grocery Store
[p]arking lot and ultimately
stopped there (Fickel affidavit
¶ 11).
10. After plaintiff finally
stopped, Officer Fickel approached
the car and asked for his driver’s
license and registration (Fickel
affidavit ¶ 13).
11. Plaintiff immediately
became belligerent; yelling and
cursing at the officer (Fickel
affidavit ¶ 12).
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12. Plaintiff refused to give
the officer his identification
(Fickel affidavit ¶ 13).
13. At that point, Officer
Fickel advised plaintiff he was
under arrest and needed to get out
of the vehicle (Plaintiff’s Amended
Complaint ¶ 7; Fickel affidavit
¶ 14).
14. Because plaintiff was
being belligerent, Officer Fickel
requested a cruiser with a cage and
Officer Nicole Boltin was
dispatched to the scene.2 (Fickel
affidavit ¶ 15).
15. Plaintiff got out of the
car and was placed in handcuffs.
Officer Fickel conducted a pat-down
search of plaintiff before he was
placed in Officer Boltin’s police
cruiser (Fickel affidavit ¶¶ 16 and
17; Clark affidavit ¶ 6).
16. Officer David Hanzek
responded to a radio call to assist
an officer and when he arrived at
the scene, plaintiff was already in
the back seat of Officer Boltin’s
cruiser (Hanzek affidavit ¶¶ 4 and
5).
17. Officer Hanzek observed
plaintiff to be yelling and
belligerent, so the Captain advised
Hanzek and other officers to follow
Officer Boltin to the Correctional
Center to assist with the plaintiff
when they got there (Hanzek
affidavit ¶¶ 6-10; Clark affidavit
¶ 7).

2

Officer Boltin explained in her affidavit that a “cruiser
with a cage” refers to a police cruiser with a partition between
the front and back seats (Filing No. 35-3 at CM/ECF p. 1).
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18. Officer Boltin
transported plaintiff to Douglas
County Corrections (Boltin
affidavit ¶ 7).
19. Once at Corrections,
plaintiff was again uncooperative
and belligerent (Fickel affidavit
¶ 18; Hanzek affidavit ¶ 11; Boltin
affidavit ¶8; Clark affidavit ¶ 8).
20. He stood on the door
frame of Officer Boltin’s cruiser
and screamed at Officer Fickel and
appeared to be making an attempt to
spit on him (Fickel affidavit ¶ 19;
Hanzek affidavit ¶ 11; Boltin
affidavit ¶8; Clark affidavit ¶ 8).
21. Officers Hanzek and Clark
used some force to move plaintiff
from the cruiser to the booking
area inside the Correctional
Center; however, no officer struck
or kicked Plaintiff[.] (Fickel
affidavit ¶¶ 20-21; Hanzek
affidavit ¶¶ 12 and 13; Boltin
affidavit ¶¶ 10 and 11; Clark
affidavit ¶¶ 9 and 10).
22. No officer ever placed
plaintiff in a head lock or
“strangled” him (Fickel affidavit
¶ 22; Hanzek affidavit ¶ 14; Boltin
affidavit ¶ 12; Clark affidavit
¶ 11).
23. Officer Hanzek did
perform a brief pat down search and
removed property from [plaintiff’s]
pants pockets before turning him
over to Corrections (Fickel
affidavit ¶ 23; Hanzek affidavit
¶ 15; Boltin affidavit ¶ 13; Clark
affidavit ¶ 12).
24. The pat down search did
require that Officer Hanzek r[u]n
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his hand up both sides of
plaintiff’s pant leg (Hanzek
affidavit ¶ 16).
25. Hanzek may have
inadvertently brushed plaintiff’s
genitals but he did not “grab” them
or pull on them (Hanzek affidavit
¶ 17).
26. Plaintiff did ask Officer
Hanzek if he was gay and Hanzek
advised he was just doing his job
(Hanzek affidavit ¶ 18).
(Filing No. 34 at CM/ECF pp. 2-5.)
III.

ANALYSIS

Plaintiff alleges that his constitutional rights were
violated when (1) Fickel searched him at the scene of the traffic
stop without his consent, (2) Hanzek and Fickel strangled and hit
him in the face with their fists and other foreign objects until
he lost consciousness, and (3) Hanzek “sexually assaulted” him
during a pat-down search.

(See generally Filing No. 10.)

The

Court will address each of plaintiff’s allegations in turn, and
set forth why defendants are entitled to summary judgment.
A.

Summary Judgment Standard
Summary judgment should be granted only “if the movant

shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. Pro. 56(a).

Fed.

It is not the Court’s function to weigh

evidence in the summary judgment record to determine the truth of
any factual issue.

Anderson v. Liberty Lobby, Inc., 477 U.S.
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242, 249-51 (1986).

In passing on a motion for summary judgment,

the district court must view the facts in the light most
favorable to the party opposing the motion.

Dancy v. Hyster Co.,

127 F.3d 649, 652-53 (8th Cir. 1997).
In order to withstand a motion for summary judgment,
nonmoving parties must substantiate allegations with “‘sufficient
probative evidence [that] would permit a finding in [their] 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.

Essentially, the test 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.”

Anderson, 477 U.S. at 251-52.

In addition, in

order to survive a motion for summary judgment under § 1983, a
plaintiff must raise a genuine issue of material fact as to
whether the alleged unlawful conduct by the state actor deprived
him of a constitutionally protected right.

Nauke v. City of

Parke Hills, 284 F.3d 923, 927 (8th Cir. 2002).
B.

Alleged Unlawful Search by Officer Fickel
Plaintiff alleges that Officer Fickel conducted an

unlawful pat-down search of him after pulling him over for
traffic violations (Filing No. 10 at CM/ECF p. 5).
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Here, the

undisputed facts are that Officer Fickel observed plaintiff
commit traffic violations and, during the traffic stop, plaintiff
was belligerent and refused to produce his driver’s license and
registration (Filing No. 35-1 at CM/ECF pp. 1-2).
In Nebraska, “a peace officer may arrest a person
without a warrant if the peace officer has reasonable grounds to
believe that such a person has committed . . . a misdemeanor in
the presence of the officer.”

Neb. Rev. Stat. § 29-404.02.

Driving a vehicle without a proper driver’s license is a
misdemeanor in Nebraska.

Neb. Rev. Stat. §§ 60-489 and 60-4,111.

In light of plaintiff’s refusal or inability to produce
a driver’s license and registration, Officer Fickel had probable
cause to arrest him.

A search for contraband incident to arrest

is lawful under the Fourth Amendment.

See Arizona v. Gant, 556

U.S. 332, 338 (2009) (“Among the exceptions to the warrant
requirement is a search incident to a lawful arrest.”).
Therefore, Officer Fickel’s pat-down search of plaintiff, which
was conducted incident to plaintiff’s arrest, presents no
constitutional violation.
2.

Excessive Force by Officers Fickel and Hanzek
Plaintiff alleges in his Amended Complaint that, while

at the Douglas County Correctional Center, Officers Fickel and
Hanzek strangled him and hit him in the face with their fists and
other foreign objects until he lost consciousness (Filing No. 10

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at CM/ECF p. 5).

Officers Fickel and Hanzek have sworn under

penalty of perjury that they did not strike or strangle plaintiff
(Filing No. 35-1 at CM/ECF p. 3; Filing No. 35-2 at CM/ECF p. 2).
In addition, Officers Boltin and Clark, who were with plaintiff
at the Correctional Center, declared under penalty of perjury
that no officer struck or strangled plaintiff (Filing No. 35-3 at
CM/ECF p. 2; Filing No. 35-4 at CM/ECF p. 2).
Plaintiff did not rebut these officers’ declarations
with his own sworn statement or any other evidence, even after
the Court gave him an additional opportunity to do so (See Filing
No. 39 (providing plaintiff with additional opportunity to
supplement the record with properly authenticated evidence)).3
It is apparent from the record that some force was used against
plaintiff in order to get him into the Douglas County

3

In response to the Court’s Memorandum and Order (Filing
No. 39), plaintiff submitted two items: a document purportedly
from the Omaha Police Department’s Internal Affairs Unit, and
video footage from the parking garage of the Douglas County
Correctional Center (Filing No. 41). However, these items were
not accompanied by an authenticating affidavit. “To be
considered on summary judgment, documents must be authenticated
by and attached to an affidavit made on personal knowledge
setting forth such facts as would be admissible in
evidence . . . Documents which do not meet those requirements
cannot be considered.” Stuart v. General Motors Corp., 217 F.3d
621, 635 n.20 (8th Cir. 2000). See Country Club Estates, L.L.C.
v. Town of Loma Linda, 213 F.3d 1001, 1006 (8th Cir. 2000)
(unverified and unauthenticated letter was a “legal nullity.”).
The Court, therefore, does not consider the contents of the
unauthenticated document or unauthenticated recording.
Regardless, even if the Court were to consider these items, they
do not controvert defendants’ statement of material facts.
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Correctional Center.

That is, when plaintiff and the officers

arrived at the Douglas County Correctional Center, plaintiff
stood on the door frame of a police cruiser, yelled, and
attempted to lunge at Officer Fickel (Filing No. 35-1 at CM/ECF
p. 2; Filing No. 35-2 at CM/ECF p. 2; Filing No. 35-3 at CM/ECF
p. 3; and Filing No. 35-4 at CM/ECF p. 2).

Officer Clark pulled

plaintiff down off of the car, and then he and Officer Hanzek
grabbed him under the arms and carried him into the Douglas
County Correctional Center (Filing No. 35-4 at CM/ECF p. 2).

It

is important to note, though, that plaintiff does not complain
about this minimal use of force.

Rather, he alleges that

Officers Fickel and Hanzek beat and strangled him until he lost
consciousness.

However, plaintiff wholly failed to substantiate

these very serious allegations with probative evidence, as is
required at this stage of the proceedings.

See Moody, 23 F.3d at

1412 (“In order to withstand [a] motion for summary judgment, [a
plaintiff] must substantiate his allegations with sufficient
probative evidence that would permit a finding in his favor on
more than mere speculation, conjecture, or fantasy.”).

Moreover,

Officers Fickel and Hanzek declared that they did not strangle or
strike plaintiff.

Accordingly, the Court finds that Officers

Hanzek and Fickel are entitled to summary judgment on this issue
3.

Pat-Down Search By Officer Hanzek
Plaintiff alleges in his Amended Complaint that Officer

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Hanzek’s pat-down search of him at the Douglas County
Correctional Center was unreasonable and akin to a sexual
assault.

According to plaintiff, Hanzek “grabbed and pulled” on

his genitals multiple times during the search (Filing No. 10 at
CM/ECF p. 6).

Officer Hanzek swore under penalty of perjury that

he did not grab or pull on plaintiff’s genitals (Filing No. 35-2
at CM/ECF p. 2).

Rather, he may have “inadvertently brushed”

plaintiff’s genitals during the search.

(Id.)

As with plaintiff’s excessive-force claim, plaintiff
did not rebut defendants’ evidence with any admissible evidence,
even after the Court gave him an additional opportunity to do so.
Thus, the undisputed facts are that Officer Hanzek conducted a
pat-down search of plaintiff prior to turning him over to
corrections’ staff, and he may have “brush[ed]” against
plaintiff’s genitals during the search.

(See Filing No. 35-2 at

CM/ECF p. 2.)
Whether a search is reasonable under the Fourth
Amendment requires a balancing of the scope of the intrusion, the
manner in which it is conducted, the justification for initiating
the search, and the place in which it is conducted.
Wolfish, 441 U.S. 520, 559 (1979).

Bell v.

Also relevant to the Court’s

analysis on this issue is the Eighth Amendment’s prohibition
against the unnecessary and wanton infliction of pain against
prisoners.

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The Court finds that Hanzek’s conduct does not rise to
the level of unreasonableness required for a constitutional
violation.

The undisputed facts are that the search was

conducted inside a secure area of the correctional facility, it
was brief, and Hanzek did not grab plaintiff’s genitals or touch
plaintiff’s genitals underneath his clothing.

Moreover, multiple

courts have held that even a single alleged instance of fondling
during the course of a pat-down search does not rise to the level
of an Eighth Amendment violation.

See, e.g., Tuttle v. Carroll

Cnty. Detention Ctr., No. 10–5693, 2012 WL 4215747, at *1 (6th
Cir. Sept. 21, 2012) (affirming the district court’s conclusion
that a pretrial detainee failed to state a claim of
constitutional dimension based on allegations that a police
officer “grabbed [the plaintiff’s] privates and squeezed them
really hard” while conducting a pat-down search during booking);
Davis v. Castleberry, 364 F.Supp.2d 319, 321–22 (W.D.N.Y.2005)
(finding allegation that an officer grabbed the plaintiff
inmate’s penis during routine pat-down was insufficient to state
constitutional claim, and noting that a legitimate pat-down may
require touching an inmate’s genital area for the search to be
effective); Williams v. Keane, No. 95 Civ. 0379, 1997 WL 527677,
at *9–11 (S.D.N.Y. Aug. 25, 1997) (finding no Eighth Amendment
claim where an inmate alleged that his testicles were fondled by
officer as part of a routine pat-down when exiting the mess

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hall).

For these reasons, the Court finds that Officer Hanzek is

entitled to summary judgment on this issue.

A separate order

will be entered in accordance with this memorandum opinion.
DATED this 16th day of May, 2013.
BY THE COURT:
/s/ Lyle E. Strom
_____________________________
LYLE E. STROM, Senior Judge
United States District Court

* 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
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of the Court.
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