Opinion
No. 1:99CV00350
May 17, 2002
MEMORANDUM ORDER
Plaintiff Edward Dash's claims were adjudicated before a jury between April 18, 2002 and April 22, 2002. The jury found for the Defendants on all counts. This Memorandum Order will address for the record the reasoning for several rulings made by the Court before and during the course of the trial.
Defendants in this case were originally granted summary judgment as to all claims on July 17, 2000. Plaintiff filed a motion to reconsider which was granted in part by this court on November 20, 2001. In the November 20, 2001 Memorandum Order and Memorandum Opinion, the Court, among other things, reinstated Plaintiff's claim against the City of Greensboro with respect to municipal liability and all of Plaintiff's state claims. These claims had been dismissed in the Court's July 17, 2000 Order solely because they were dependent upon other claims dismissed by the Court in that earlier opinion. The merits of these claims were not considered or ruled upon in the original Order. When the claims were reinstated upon the Court's granting of Plaintiff's Motion to Reconsider, the Defendants' summary judgment motions as to the merits of those claims were still outstanding. These motions, regarding the Plaintiff's municipal liability claim against the City and Plaintiff's state claims were argued before the Court on April 17, 2002. This Memorandum Order addresses the Court's rulings on those claims.
At the April 17, 2002 hearing, Defendants argued, as set forth in their initial motion for summary judgment dated April 14, 2000, that Plaintiff's evidence regarding municipal liability on the part of the City of Greensboro for failure to train, monitor or discipline its police officers was insufficient to create a genuine issue of material fact as to the City's liability. In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court found that local governments could not be held liable for actions under § 1983 unless execution of a policy or custom of the City is responsible for the plaintiff's injury. The substantive requirements for proof of municipal liability are stringent. Jordan ex rel. Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994). The plaintiff must prove both the existence of an official policy or custom of the city and that the policy or custom proximately caused the deprivation of the plaintiff's rights. Spell v. McDaniel, 824 F.2d 1380, 1385-87 (4th Cir. 1987), cert. denied, 484 U.S. 1027 (1988). Outside of formal policies, such as written ordinances or regulations or decisions of individual policymaking officials, a plaintiff may establish a municipal custom if a practice is so "persistent and widespread" and "so permanent and well settled as to constitute a `custom or usage' with the force of law." Monell, 436 U.S. at 691 (internal quotation marks omitted).
Recognizing that official policies condoning police misconduct are rare, the Fourth Circuit in Spell v. McDaniel identified the two theories of liability commonly used by plaintiffs in police force cases, and they are the two theories used by the Plaintiff in this case. One theory focuses on deficient police training programs which are alleged to have resulted in constitutional violations by the poorly trained police officers. The other theory allows municipal liability for failing to correct a "widespread pattern of unconstitutional conduct by police officers of which the specific violation is simply an example." Spell, 824 F.2d at 1389.
To establish liability on a failure to train theory, a plaintiff must establish that "the failure to train amounts to deliberate indifference to the rights of the persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412, 426 (1989). Deliberate indifference "is a stringent standard of fault, requiring proof that a municipal actor consciously disregarded a known or obvious consequence of his or her action." The municipality must specifically disregard a risk which would result in a particular constitutional violation. Board of County Comm'rs v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 1391, 137 L.Ed.2d 626, 643 (1997). Mere negligence is not sufficient to establish a claim based on failure to train. Spell, 824 F.2d at 1390.
Defendants contended in their motion and at the pretrial hearing that the plaintiff in this case had not produced enough evidence to proceed on his claim based upon inadequate training. Indeed, a review of Mr. Dash's proffered evidence at the pretrial hearing only one day before trial showed that his case lacked the evidence required to submit such a claim to the jury.
In support of its motion, the City of Greensboro produced an affidavit from William J. Ingold, the head of police training for the City, stating that the training hours for officers exceed the requirements in place for police officers in the state of North Carolina. Among other things, Greensboro police officers undergo a fourteen-week evaluation program which includes specific training on the use of force. Plaintiff conceded that the amount of training exceeds the requirements. However, Plaintiff argued that the focus should not be on the number of training hours but on the subjects taught during those training hours. Plaintiff argued that a disproportionate number of hours are spent on the technicalities of police tactics and not on the civil rights of citizens. Plaintiff produced no evidence or authority other than his own belief that the number of hours spent on civil rights are insufficient, or that the training hours are improperly focused. Such vague assertions do not amount to any type of evidence showing that the City of Greensboro is deliberately indifferent to the training of its police officers. Plaintiff also failed to provide any evidence that the City's training procedures proximately caused his injuries.
Plaintiff's claim that the City of Greensboro failed to monitor or discipline its police officers also proved to be deficient. In support of his argument that the City did not monitor or discipline its officers, Plaintiff attempted to tie together several loosely related pieces of evidence, claiming that the evidence in its totality creates a claim that the City failed to monitor or discipline its officers. First, Plaintiff pointed to evidence that the officers have the initial discretion over whether a use of force report is filed. Then, if a report is filed, the supervisor determines whether an investigation should occur. Plaintiff suggested that this type of discretionary reporting gave officers too much leeway in determining what is reported and what is not reported, but he gave no evidence at the hearing that this type of reporting is inappropriate in any way. Plaintiff also provided a note which was attached to a use of force report filed by Officer Linstad where mace was used on a subject but no excessive force was found. The note stated that Officer Linstad should be reminded to tell arrestees in the future "what they are being arrested for." Plaintiff contended that the note showed that the department did not intend to take official action; however, this is mere conjecture and no evidence shows that the note means anything other than what it says. Plaintiff also argued that the City's method of indexing citizen complaints is evidence of a failure to monitor and discipline the officers. Citizen complaints are filed with the City in alphabetical order according to the citizen's last name, making it difficult, Plaintiff argued, to determine which officer was in charge of the arrest. Plaintiff contended that a filing system indexed according to officer would have more clearly indicated the number of reports filed against a particular officer. Plaintiff also pointed to the officers' alleged behavior after his arrest as indicative of a disregard for the feelings of citizens even when a mistake is made in an arrest. Plaintiff alleges that the officers were rude to him and laughing about his arrest when they left. Lastly, Plaintiff's wife allegedly attempted to report the incident on the same evening the incident occurred and was told by the person answering the telephone that she should call back the next day. Plaintiff argued at the hearing that the failure to take the complaint on the evening in which the event occurred indicated a cavalier attitude toward citizen complaints within the department.
Plaintiff conceded at the hearing that none of these incidents alone are sufficient to establish a claim of municipal liability on the theory of failure to monitor or discipline the officers, but argued instead that the incidents together establish a picture of liability sufficient to state a claim. However, Plaintiff did not point to any specific fact showing a suggestion of deliberate indifference on the part of the City or anything indicating that a custom of the City was a direct cause of the alleged deprivation of Plaintiff's rights.
In support of his arguments, Plaintiff did provide the expert report prepared by his expert witness, Mr. Robinette. However, Robinette's report is based entirely upon his review of the documents filed in this case and his discussions with Mr. and Mrs. Dash. Mr. Robinette has not conducted any type of investigation of the Greensboro Police Department or other cases or incidents and has not even spoken to a member of the Greensboro Police Department. It is apparent from the report that Mr. Robinette's findings are based solely on the facts of this one case as alleged by the Plaintiff. As discussed, these facts give no evidence of municipal liability for the officers' alleged deprivation of Mr. Dash's rights.
II.
Also outstanding before trial was the Defendants' motion for summary judgment on Plaintiff's claim that the Greensboro Police Officers violated Mr. Dash's rights under Article I, Section 19 of the North Carolina Constitution. At the pretrial hearing, Plaintiff conceded that the applicable law in North Carolina precluded Plaintiff from proceeding on a claim under the North Carolina Constitution. In Corum v. University of North Carolina, 330 N.C. 761, 783-87, 413 S.E.2d 276, 290-92, cert. denied, 506 U.S. 985, 113 S.Ct. 493, 121 L.Ed.2d 431 (1992), the North Carolina Supreme Court held that state officials may be sued for money damages in their official capacity only if there is no adequate remedy provided by law. In this case, Plaintiff acknowledged that adequate remedies were provided by state law for his injury. See Rousello v. Starling, 128 N.C. App. 439, 495 S.E.2d 725 (1998) (affirming summary judgment against plaintiff claiming violation of Article I, Section 19 because plaintiff had adequate remedy at law). Therefore, summary judgment for Defendants as to Plaintiff's claim under the North Carolina Constitution is GRANTED.
III.
Defendants are entitled to governmental immunity from the Plaintiff's state assault claims against them in their official capacities. Governmental immunity protects a municipality's officers and employees acting in their official capacities unless the municipality has waived immunity through the purchase of insurance. N.C. Gen. Stat. § 160A-485; Jones v. Kearns, 120 N.C. App. 301, 304, 462 S.E.2d 245, 247, disc. rev, denied, 342 N.C. 414, 465 S.E.2d 541 (1995). Plaintiff has not alleged that the City of Greensboro has purchased insurance and thereby waived immunity from these claims. Therefore, Plaintiff's claims are barred by governmental immunity.
IV.
Plaintiff originally filed assault claims under North Carolina law against all five officers in their individual capacity. However, Officers Hylton, Walton, and Slone were not directly involved in the handcuffing of Mr. Dash, and their location at the time of the handcuffing was not established until after Mr. Dash's testimony at trial. Before trial, the Plaintiff acknowledged that he had no evidence that Hylton, Walton, and Slone could be found liable for assaulting him. Therefore, the assault claims as to Hylton, Walton and Slone in their individual capacities were also dismissed. The assault claims against Officers Griffiths and Linstad in their individual capacities were not dismissed.
V.
In the November 20, 2001 Memorandum Opinion, this Court dismissed Plaintiff's conspiracy claim under the Fourth Amendment and kept Plaintiff's conspiracy claim under the Fourteenth Amendment. At the pretrial hearing, an argument was made by the Defendants that all of the Plaintiff's claims should fall under the more stringent Fourteenth Amendment standard because Mr. Dash alleged he was injured after he was handcuffed. This was also the initial reason for keeping Plaintiff's Fourteenth Amendment conspiracy claim and for dismissing Plaintiff's Fourth Amendment conspiracy claim. Upon further discussion with the parties and a review of the facts as presented by Mr. Dash, it became apparent that a claim under the Fourth Amendment was appropriate time span while the officers were attempting to handcuff and control Mr. Dash. The alleged force in this case is so intertwined with the arrest itself that a claim under the Fourth Amendment was deemed more appropriate. Therefore, the Court allowed Plaintiff to go forward with evidence on a conspiracy claim under the Fourth Amendment, rather than the Fourteenth Amendment.
VI.
For the foregoing reasons, Defendant City of Greensboro's motion for summary judgment as to the Plaintiff's claim of municipal liability was GRANTED at the pretrial hearing. Plaintiff's state claims against the five officers under Article 1, Section 19 of the North Carolina Constitution were DISMISSED. Plaintiff's state claims against the five officers in their official capacities for assault were DISMISSED, and Plaintiff's state claims against Officer Walton, Officer Hylton, and Officer Slone in their individual capacities for assault were DISMISSED. Plaintiff was allowed to proceed on his claim of conspiracy under the Fourth Amendment.
JUDGMENT
Plaintiff Edward Dash's claims were adjudicated before a jury between April 18, 2002 and April 22, 2002. The jury found for the Defendants on all counts. Therefore, it is ORDERED and ADJUDGED that Plaintiff recover nothing from the Defendants and that this action be and the same hereby is DISMISSED WITH PREJUDICE.