Bourn v. Gauthier et al

Filing 62

ORDER granting 60 Motion for Summary Judgment. This case is DISMISSED. Any appeal would not be taken in good faith and, therefore, in forma pauperis status is denied for the purpose of any appeal. Signed by District Judge J. Garvan Murtha on 3/27/2013. (kak)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Paul Bourn,

:
:
Plaintiff,
:
:
v.
:
:
Officer Bull and Trooper Zink, :
:
Defendants.
:

File No. 1:09-cv-212-jgm

OPINION AND ORDER
(Doc. 60)
Pro se plaintiff Paul Bourn brings this action claiming he
suffered serious injuries when he crashed his motorcycle into a
police roadblock at a speed of approximately 100 miles per hour.
Pending before the Court is Defendants’ motion for summary
judgment.

The motion is unopposed.

For the reasons set forth

below, the motion for summary judgment is GRANTED and this case
is DISMISSED.
Factual Background
The following facts are undisputed.

On the night of

September 17, 2007, Bourn rode his motorcycle to a gas station in
Bennington, Vermont.

After putting gas in the motorcycle, he

drove away without paying.
friend.

Bourn then stopped to speak with a

Bennington Police Officer Faden, having heard about the

theft of gas, spotted Bourn and stopped to speak with him.

Bourn

testified in his deposition that when he saw Officer Faden, he
“panicked” and drove off toward his home.

(Doc. 32-3 at 18-19.)

Officer Faden followed, and made a radio transmission at 21:18:16
advising that Bourn had driven off.
When Bourn arrived at his home, he parked his motorcycle
behind the building.

At approximately 21:19:09, Officer Faden

made a second radio transmission advising he had lost sight of
the motorcycle.

Bennington Police Officers Bull and Zink, on

patrol in separate cruisers, heard Officer Faden’s transmissions.
As Bourn walked toward his building, ostensibly to retrieve
his wallet, Officer Faden pointed a spotlight at him.

Bourn

again fled, returning to his motorcycle and proceeded north on
Park Street at a speed that approached 100 miles per hour.
Officer Faden pursued with his blue lights and siren on.
Officers Bull and Zink had begun driving south on Park
Street to help Officer Faden locate the motorcycle.

Officer Zink

was in the lead cruiser, and Officer Bull followed immediately
behind.

Initially, neither officer activated his lights or

siren.
At 21:19:54, Officer Faden made a third radio transmission
alerting Officers Bull and Zink that Bourn was “right in front of
you.”

(Doc. 60-4 at 3.)

At that time, Officers Bull and Zink

observed a set of blue lights traveling north on Park Street in
the vicinity of the County Street intersection, and the single
headlight of a motorcycle also traveling north on Park Street.
Both southbound officers activated the blue lights on their

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cruisers.

The area between the County Street intersection and

the southbound officers was a flat, level roadway with no visual
obstruction.

The area was lit with streetlights.

The speed

limit on Park Street was thirty miles per hour.
After activating his blue lights, Officer Zink decided to
turn left across the center lane in order to pull into what he
describes in his affidavit as a “dirt pull-off/parking area on
the north bound side of Park Street . . . in order to turn around
so that I could follow Officer Faden as he pursued the
motorcycle.”

(Doc. 60-6 at 3.)

As Officer Zink began to turn he

“observed that, unbeknownst to me, the area had been recently
renovated and a curb had been erected preventing access to what
had been the parking area.”

Id.

Officer Bull was also unaware

at the time that a curb had been erected.

Officer Zink further

observed that Bourn’s motorcycle had accelerated, and was
traveling much faster than he had originally estimated.
Before Officer Zink could move his cruiser any further,
Bourn applied his brakes and the motorcycle went into a skid.
Bourn testified at his deposition that as he was fleeing from
Officer Faden, he noted two southbound police cruisers coming
toward him.

“They were both coming at me in both lanes . . . .

I had no way to go . . . .
would have killed me.”

I had no choice but to stop.

(Doc. 32-3 at 31.)

They

Officer Faden attests

that, from his “vantage point, there was room for [Bourn] to have

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avoided both Officer Zink and Officer Bull’s cruisers if he had
chosen to do so.”

(Doc. 60-4 at 4.)

Officers Bull and Zink

concur that “there was room for [Bourn] to have driven his
motorcycle around [their] cruiser[s] if he had chosen to do so.”
(Doc. 60-5 at 3); (Doc. 60-6 at 3.)
Bourn became separated from the motorcycle, and hit his
head on what he believes to have been one of the officers’
cruisers.

Officer Zink contends that although Bourn’s motorcycle

“grazed the corner of my front bumper and continued sliding along
the roadway,” Bourn himself did not come into contact with his
cruiser.

(Doc. 60-6 at 3.)

did not contact his cruiser.

Officer Zink also attests that Bourn
(Doc. 60-5 at 3.)

Officers Bull

and Zink left their cruisers to check on Bourn’s condition.

At

21:20:11, less than two minutes after the beginning of the chase,
Officer Faden requested an ambulance.
In their affidavits, Officers Bull and Zink state that
“[a]t no point was there any discussion of erecting a roadblock
nor was it my intent to use my cruiser in that manner.”

Id. at

4; (Doc. 60-6 at 4.)
Vermont State Trooper Todd Wilkins arrived at the scene
shortly after the crash occurred.

Trooper Wilkins, who was

trained in accident investigation, inspected the area and
concluded that there was more than enough room for Bourn to have
driven around the southbound cruisers, and that the cause of the

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crash was Bourn’s high rate of speed and negligent operation of
the motorcycle.

Trooper Wilkins also concluded that had Bourn

been traveling at the posted speed limit, he would have had ample
time in which to stop his motorcycle prior to reaching the police
cruisers.
Defendants have also submitted the affidavit of Thomas
Martin, an expert in crime forensics.

Mr. Martin reconstructed

the crash scene and concluded that, had Bourn been traveling at a
reasonable speed, he would have had ample time to react to
Officer Zink’s turn and stop his motorcycle.

Mr. Martin further

concluded that there was enough space on the northbound or
southbound lanes for Bourn to have safely evaded the cruisers had
he chosen to do so.
Bourn subsequently pled guilty to petit larceny for
stealing the gasoline, attempting to elude a police officer, and
negligent operation of a motor vehicle.

He now alleges he

suffered head trauma and abrasions as a result of the crash.

He

also claims to be suffering from after-effects of those injuries,
including “flashbacks, nightmares, headaches, and irrational
actions.”

(Doc. 39 at 3.)
Discussion

I.

Summary Judgment Standard
The Defendants have moved for summary judgment on Bourn’s

claims against Officers Bull and Zink.

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The third Defendant in

the case, the Town of Bennington, was dismissed in a prior
Opinion and Order.

(Doc. 50.)

Summary judgment may not be granted unless all of the
submissions taken together “show that there is no genuine issue
as to any material fact and that the moving party is entitled to
a judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see El

Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010).
The moving party bears the burden of demonstrating the absence of
a material factual question, and in making this determination,
the Court must view all facts in the light most favorable to the
non-moving party.

Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); El Sayed, 627 F.3d at 933.

Only disputes over material

facts – facts that might affect the outcome of the suit under the
governing law - will preclude the entry of summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); SCR
Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir.
2009).
Bourn’s failure to oppose or respond to the summary
judgment motion, standing alone, does not warrant granting the
motion: “the district court must still assess whether the moving
party has fulfilled its burden of demonstrating that there is no
genuine issue of material fact and its entitlement to judgment as
a matter of law.”

Vermont Teddy Bear Co. v. 1-800 Beargram Co.,

373 F.3d 241, 244 (2d Cir. 2004).

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Indeed, if the moving party

fails to submit evidence sufficient to meet its burden, “summary
judgment must be denied even if no opposing evidentiary matter is
presented.”

Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001).

Furthermore, it is well established that the submissions of
a pro se litigant must be construed liberally and interpreted to
raise the strongest arguments that they suggest.

Chavis v.

Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citation omitted).
The rule favoring liberal construction of pro se submissions is
especially applicable to civil rights claims.

See Weixel v. Bd.

of Ed. of City of New York, 287 F.3d 138, 146 (2d Cir. 2002).
II.

Fourth Amendment Analysis
The Court has construed Bourn’s pleadings as bringing a

constitutional claim of excessive force.1

Such a claim may be

brought under either the Fourth Amendment, or the substantive due
process requirements of the Fourteenth Amendment.

The Court will

first address the potential Fourth Amendment claim.
In any claim predicated on the Fourth Amendment, the first
step is to determine whether there has been a constitutionally
cognizable search or seizure.

See Medeiros v. O’Connell, 150

1

The Court noted in a prior Opinion and Order that “Bourn’s
Complaint does not assert a federal cause of action.” (Doc. 34
at 5.) However, “construing Bourn’s pro se submissions to raise
the strongest argument that they suggest,” the Court construed
the Complaint “as alleging excessive force in violation of
[Bourn’s] constitutional rights.” Id. Bourn has not objected to
that characterization of his claim in any of his subsequent
filings with the Court.
7

F.3d 164, 167 (2d Cir. 1998).

“Physical restraint or an

assertion of authority to restrain a person’s freedom of movement
by law enforcement officers would, in most instances, constitute
a seizure.” Pinto–Montoya v. Mukasey, 540 F.3d 126, 132 (2d Cir.
2008).

However, the Supreme Court has made clear that

a Fourth Amendment seizure does not occur whenever
there is a governmentally caused termination of an
individual’s freedom of movement . . . nor even
whenever there is a governmentally caused and
governmentally desired termination of an individual’s
freedom of movement . . ., but only when there is a
governmental termination of freedom of movement
through means intentionally applied.
Brower v. Cnty. of Inyo, 489 U.S. 593, 596-97 (1989) (emphasis in
original).

The Brower decision illustrated this point by noting

that there would be no Fourth Amendment seizure where a “pursuing
police car sought to stop the suspect only by the show of
authority represented by flashing lights and continuing pursuit,”
but then accidentally stopped the suspect by crashing into him.
Id. at 597.

“If, instead of that, the police cruiser had pulled

alongside the fleeing car and sideswiped it, producing the crash,
then the termination of the suspect’s freedom of movement would
have been a seizure.”

Id.

In County of Sacramento v. Lewis, 523 U.S. 833 (1998),
police officers undertook a high speed chase of a motorcycle that
resulted in the accidental death of the motorcycle passenger.
Id. at 837.

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The chase ended after the motorcycle tipped over as
[the operator] tried a sharp left turn. By the time
[the police officer] slammed on his brakes, [the
operator] was out of the way, but [the motorcycle’s]
passenger was not. The patrol car skidded into him
at 40 miles an hour propelling him some 70 feet down
the road and inflicting massive injuries.
Id.

The Lewis Court determined the officer’s actions did not

constitute a seizure for purposes of the Fourth Amendment because
the pursuit was not terminated “‘through means intentionally
applied.’”

Id. at 843-44 (quoting Brower, 489 U.S. at 597

(emphasis in original)).
In this case, it is undisputed that Officer Zink did not
intend to block Bourn’s movement, or to terminate the chase by
means of forming a blockade.

Officer Bull’s sworn affidavit

confirms there was no intent by either officer to form a blockade
with their vehicles.

Radio transmissions submitted by Defendants

confirm there were no communications between the officers
concerning a roadblock.

(Doc. 60-8.)

Officer Zink erroneously believed he could turn his vehicle
into a parking area and then assist Officer Faden in pursuit.

He

also failed to perceive that Bourn was traveling at approximately
100 miles per hour.

Officer Zink did not expect to be stopped by

a curb, and did not have time to move his vehicle before Bourn
applied his brakes and went into a skid.

Because Defendants did

not intentionally terminate the chase, they did not impede
Bourn’s “freedom of movement through means intentionally

9

applied,” and there was thus no seizure under the Fourth
Amendment.
III.

Brower, 489 U.S. at 597 (emphasis in original).

Fourteenth Amendment Analysis
Given that there was no seizure under the Fourth Amendment,

the Court must analyze Bourn’s claim under the substantive due
process requirements of the Fourteenth Amendment.

See Lewis, 523

U.S. at 843, 846 (analyzing appeal under substantive due process
when respondents’ claim was not “covered by” the Fourth
Amendment); Tierney v. Davidson, 133 F.3d 189, 199 (2d Cir.
1998).

The Supreme Court has held that substantive due process

protects individuals from arbitrary government action, and that
only the most egregious official conduct can be said to violate
the Constitution.

See Lewis, 523 U.S. at 846. “To this end, for

half a century now we have spoken of the cognizable level of
executive abuse of power as that which shocks the conscience.”
Id.
The Lewis decision directly addressed substantive due
process in the context of police pursuits.

The Court held that

“in a high-speed automobile chase aimed at apprehending a
suspected offender . . . only a purpose to cause harm unrelated
to the legitimate object of arrest will satisfy the element of
arbitrary conduct shocking to the conscience, necessary for a due
process violation.”

523 U.S. at 836.

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In doing so, the Court

rejected the argument that substantive due process may be
violated by deliberate or reckless indifference to life.

Id.2

The Lewis Court further explained that although “prudence”
might have called for less risky behavior by law enforcement, the
officer in question
was faced with a course of lawless behavior for which
the police were not to blame. They had done nothing
to cause [the driver’s] high-speed driving in the
first place, nothing to excuse his flouting of the
commonly understood law enforcement authority to
control traffic, and nothing (beyond a refusal to
call off the chase) to encourage him to race through
traffic at breakneck speed forcing other drivers out
of their travel lanes. [The driver’s] outrageous
behavior was practically instantaneous, and so was
[the officer’s] instinctive response.
. . .
Regardless whether [the officer’s] behavior offended
the reasonableness held up by tort law or the balance
struck in law enforcement’s own codes of sound
practice, it does not shock the conscience, and
petitioners are not called upon to answer for it
under § 1983.
Id. at 855.
Here, it is undisputed that Defendants did not have a
“purpose to cause harm unrelated to the legitimate object of
arrest.”

Id. at 836.

sort of harm.

In fact, there was no intent to cause any

Officer Zink attempted a u-turn in a parking area

but was obstructed by an unanticipated curb.

2

Even when viewing

As in Lewis, the Amended Complaint in this case alleges “a
variety of culpable states of mind,” id. at 854, including
willful, negligent, malicious, intentional, and reckless conduct.
(Doc. 4 at 3-5.)
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the facts in a light most favorable to Bourn, the undisputed
record demonstrates that the maneuver resulted in injury largely
because of Bourn’s approach at over three times the posted limit.
Id. at 855.

While “prudence” might have counseled against

Officer Zink’s left turn, it was Bourn who “flout[ed] . . . the
commonly understood law enforcement authority to control traffic”
and chose to “race through traffic at breakneck speed.”

Id.

Accordingly, the Court finds as a matter of law that Officer
Zink’s conduct did not “shock the conscience,” and that
Defendants are therefore entitled to summary judgment on any
Fourteenth Amendment substantive due process claim.
IV.

Qualified Immunity
Defendants’ final argument is that they are entitled to

qualified immunity.

“Qualified immunity protects officials from

liability for civil damages as long as ‘their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’”

Gilles v. Repicky,

511 F.3d 239, 243 (2d Cir. 2007) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)).

In deciding qualified immunity,

courts ask whether the facts shown (1) “make out a violation of a
constitutional right,” and (2) “whether the right at issue was
clearly established at the time of defendant’s alleged
misconduct.”

Pearson v. Callahan, 555 U.S. 223, 232 (2009)

(internal quotation marks omitted).

12

To be clearly established, “[t]he contours of the right
must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”
v. Creighton, 483 U.S. 635, 640 (1987).

Anderson

In this way, qualified

immunity shields official conduct that is “‘objectively legally
reasonable in light of the legal rules that were clearly
established at the time it was taken.’”

X–Men Sec., Inc. v.

Pataki, 196 F.3d 56, 66 (2d Cir. 1999) (alterations omitted)
(quoting Anderson, 483 U.S. at 639); see also Taravella v. Town
of Wolcott, 599 F.3d 129, 134–35 (2d Cir. 2010).
Here, the Court has determined that Defendants did not
violate Bourn’s constitutional rights.

Even assuming, however,

that genuine issues of material fact existed on the
constitutional questions, Defendants would be entitled to
qualified immunity.

In determining whether a right is clearly

established, this Court looks to Supreme Court and Second Circuit
precedent.

See Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004).

A right is “ ‘clearly established’” when “[t]he contours of the
right . . . [are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
With respect to the Fourth Amendment analysis, the case law
set forth above does not clearly establish that Defendants’
conduct violated Bourn’s constitutional rights.

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Indeed, the law

holds that termination of a chase by unintended means does not
constitute a seizure.

Accordingly, Officer Zink would have had

no basis to reasonably understand that his mistake about the
placement of a curb on Park Street could result in a deprivation
of Bourn’s Fourth Amendment rights.
Similarly, the Lewis decision makes clear that an officer’s
conduct violates substantive due process protections only when he
or she demonstrates “a purpose to cause harm unrelated to the
legitimate object of arrest.”

523 U.S. at 836.

In this case,

the undisputed affidavits submitted by Defendants attest that
there was no intent to cause any sort of harm, whether related or
unrelated to the object of arrest.

Accordingly, and assuming the

Court could find genuine issues of material facts with respect to
a constitutional violation, Defendants would be entitled to
qualified immunity on Bourn’s claims.
Conclusion
For the reasons set forth above, Defendants’ motion for
summary judgment (Doc. 60) is GRANTED, and this case is
DISMISSED.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal would not be taken in good faith and, therefore, in
forma pauperis status is denied for the purpose of any appeal.
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
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Dated at Brattleboro, in the District of Vermont, this 27th
day of March, 2013.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

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