Opinion
Cause No. 3:01cv732
June 17, 2003
Douglas M. Grimes, Gary, IN, for Plaintiff/Petitioner
E. Nelson Chipman, Jr., Elkhart, IN, for Defendant/Respondent
Lynn Kalamaros, South Bend, IN, for Defendant/Respondent
MEMORANDUM AND ORDER
This matter is before the Court based on Plaintiff's, Johnny Tilson, ("Tilson") motion for reconsideration of the decision to grant Defendants', City of Elkhart, Indiana ("Elkhart"), and Mark DeJong ("DeJong") motion for summary judgment. This Court allotted Plaintiff until May 27, 2003, to file a response to Defendants' motion for summary judgment. This Court has paid very careful attention to that response as well as to this Court's decision to grant the Defendants' motion for summary judgment which was entered on May 1, 2003.
I. Background
The background to this case will only be discussed briefly as this Court does not deem it necessary to repeat that which is already contained in its order of May 1, 2003. On October 15, 1999, before this incident occurred, Tilson testified that he got off work at 2:00 pm, went home and showered and then got out in the street and started partying. (Deposition of Tilson, p. 14-15). Also on October 15, 1999, DeJong was on routine patrol northbound on Redding in a police car. He first observed Tilson trying to park in a very small parking spot. DeJong testified that Tilson looked back at DeJong and then took off, drove up and over the curb on the opposite side of the street, and then back onto the street. DeJong observed this behavior which he considered to be a traffic infraction. (Deposition of DeJong, p. 21, 29), and at that time thought Tilson was a possible drunk driver and was trying to elude him by quickly deciding to pull away. (Deposition of DeJong, p. 29-30, 91).
After DeJong turned his lights on, Tilson continued driving, going left on Main Street and then stopped in the middle of the intersection. (Deposition of DeJong, p. 32-33). Tilson then jumped out of his car and DeJong ordered him back into his car. Tilson got back into his car and then DeJong ordered him to turn off his engine and throw his keys into the street. Tilson then drove off northbound on Willard. (Deposition of DeJong, p. 33-36). Tilson then got out of the car and proceeded on foot toward a backyard. DeJong had followed him, got out of his police car, yelled for Tilson to stop and warned him that if he did not he would send his K-9. (Exhibit 13). Upon Tilson's refusal to stop, DeJong yelled, "Stop K-9, Stop K-9" and released his dog, ordering the dog to make the apprehension. (Deposition of DeJong, p. 36). DeJong then pushed Tilson to the ground and the bite was released on his command. Due to the large amount of blood coming from the suspect, an ambulance was called to the scene. (Exhibit 13).
II. Standard Of Review
Summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Bragg v. Navistar Int'l Trans. Corp., 164 F.3d 373 (7th Cir. 1998). Celotex addressed the initial burdens of the parties under Rule 56, and Anderson addressed the standards under which the record is to be analyzed within the structure of Rule 56.
The initial burden is on the moving party to demonstrate, "with or without supporting affidavits," the absence of a genuine issue of material fact and that judgment as a matter of law should be granted in the moving party's favor. Celotex, 477 U.S. at 324 (quoting FED.R.CIV.P. 56); Larimer v. Dayton Hudson Corp., 137 F.3d 497 (7th Cir. 1998). A question of material fact is a question which will be outcome determinative of an issue in the case. The Supreme Court has instructed that the facts material in a specific case shall be determined by the substantive law controlling the given case or issue. Anderson, 477 U.S. at 248. Once the moving party has met the initial burden, the opposing party must "go beyond the pleadings" and "designate `specific facts shows that there is a genuine [material] issue for trial.'" Id. The nonmoving party cannot rest on its pleadings, Weicherding v. Riegel, 160 F.3d 1139 (7th Cir. 1998); Waldridge v. American Hoechst Corp., 24 F.3d 918 (7th Cir. 1994); nor may that party rely upon conclusory allegations in affidavits. Smith v. Shawnee Library Sys., 60 F.3d 317, 320 (7th Cir. 1995).
During its summary judgment analysis, the court must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560 (7th Cir. 1996). Furthermore, it is required to analyze summary judgment motions under the standard of proof relevant to the case or issue. Anderson, 477 U.S. at 252-55. Applying the above standard, this Court will now address Defendants' motion.
III. Discussion
This case was filed pursuant to Title 42 U.S.C. § 1983, 1988, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 20000d, the Fourth and Fourteenth Amendments to the United States Constitution, the Indiana Constitution, and state law. Tilson's claims fall into two categories. Tilson first claims that Elkhart, through employee and agent DeJong, acting under color of state law and through an instrumentality owned by Elkhart, a police K-9, employed unreasonable and excessive force in his seizure. The second claim made by Tilson is that the force used to seize him was so vicious and out of proportion to the conduct engaged in by Plaintiff that it amounted to cruel and unusual punishment.
Tilson begins his argument by asserting that his allegations regarding Elkhart's unconstitutional policies establish a viable claim under Section 1983. However, the Defendants argue that this fails to create any issue of material fact because no part of the Bite Policy in question in this case is unconstitutional. It has by now been well settled that a municipality cannot be held liable under Section 1983 on a respondeat superior theory. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Since Monell, Courts have held that in order for a plaintiff to recover against a municipality under Section 1983, the plaintiff must demonstrate that the municipality was the moving force behind the injury alleged by showing that the municipality had a policy or custom that caused the plaintiff's injury. See, Board of Commissioners v. Brown, 520 U.S. 397, 403 (1997). In order to maintain a Section 1983 claim against Elkhart and DeJong in his official capacity, Tilson must demonstrate that an official policy or custom was the cause of his constitutional injury. See, Monell, 436 U.S. at 693.
Tilson contends that through the frequency and pattern of certain practices of the Elkhart K-9 handlers a custom in regards to the Bite Policy can reasonably be inferred. However, to establish municipal liability Tilson must show a direct causal link between the Bite Policy and the alleged constitutional deprivation. Tapia v. City of Greenwood, 965 F.2d 336, 338 (7th Cir. 1992). The affirmative link requirement means the City would have to possess actual or constructive notice that such a custom or policy would likely result in constitutional deprivations. See Robles v. City of Fort Wayne, 113 F.3d 732, 735 (7th Cir. 1997). Such notice could be established through learning of a pattern of constitutional violations, or where a clear constitutional duty is implicated in recurrent situations that a particular officer is likely to face. Id.
Tilson claims that Elkhart had knowledge, through citizen complaints, notice of claims, lawsuits, and other means, including K-9 After Action Reports, and newspaper reports that its K-9s had caused injury to numerous persons since the introduction of police K-9s into the Department. The Defendants argue however, that certain portions of this evidence are inadmissible and filed a motion to strike based on hearsay and lack of proper designation. However, even when such evidence is considered, such does not support a finding of a policy or practice of excessive force. Knowledge of injuries does not appear to rise to the level of proving knowledge that a constitutional violation under the Fourth Amendment was occurring. While Elkhart may have known of injuries caused by K-9s in certain situations, it has not been shown that such injuries were the product of any constitutional deprivation. Elkhart's asserted knowledge of injuries in the past involving K-9s alone is insufficient to establish an affirmative link that they had actual or constructive notice that such a custom or policy would likely result in constitutional deprivations. In fact, the reports found no excessive force in other similar situations, which does not meet Tilson's burden of showing that excessive force is common. There is insufficient evidence to show a history of improper use of K-9s or that the use of excessive force is common as required to establish a claim against a municipality.
Tilson next argues that his allegations regarding Elkhart's unconstitutional policies establish a viable claim under Section 1983 as to excessive force. In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force. Graham v. Connor, 490 U.S. 386 (1989). In general, the use of excessive force to effect an arrest is evaluated under the Fourth Amendment reasonableness standard, assessing the objective facts which confronted an officer at the time and taking into account, 1) the severity of the crime at issue, 2) the immediate threat to the safety of the officers or others posed by the suspect, and 3) the resistence by the suspect, including active resistence or attempting to resist arrest by flight. Graham v. Connor, 490 U.S. 386 (1989). The force used in this case involved the use of a police K-9.
"The right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham v. Conner, 490 U.S. at 396. "The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," Bell v. Wolfish, 441 U.S. 520, 559 (1979), the question is "whether the totality of the circumstances" justifies the officers' actions. Graham v. Conner, 490 U.S. at 396. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the perfect vision of hindsight. Id. The question in Fourth Amendment excessive use of force cases is "whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Conner, 441 U.S. at 497.
Tilson claims that because at the time the K-9 was deployed he had not committed a violent crime, had not threatened or endangered DeJong, or any other officer or citizen that the force use was excessive. DeJong testified that at the time he deployed the K-9 to apprehend Tilson he was acting under the Bite Policy, which as argued by the Defendants, does not prohibit the use of a K-9 in the situation in question. Tilson argues however that at the time the K-9 seized him he was not under arrest or an escapee from arrest. However, DeJong testified that after he observed what he believed to be an infraction, he attempted to stop Tilson's car by activating his lights. Tilson continued driving, then he got out of his car. DeJong ordered Tilson back into the car which he did but then drove off. Tilson finally exited his car and began running on foot toward a backyard. DeJong testified that he warned him to stop or he would release his K-9. Tilson did not stop and DeJong released the K-9. DeJong's K-9 apprehended Tilson by biting and holding him.
Tilson alleges that a genuine issue of material fact exists as to whether DeJong ordered Tilson to stop as recorded in his report. However, the facts seem clear that DeJong made several attempts to stop Tilson. DeJong testified that he turned his lights on, ordered Tilson back into the car and then once he was on foot yelled for him to stop again. Tilson further argues that regardless, the force was excessive in relation to the crime that Tilson had committed prior to the K-9 apprehending him. While Tilson's traffic infraction may not have been grounds for deploying the K-9, once Tilson evaded DeJong's orders to stop, and began fleeing, such use was warranted under the Bite Policy. Elkhart contends and this Court agrees that DeJong's actions were `objectively reasonable' in light of the facts and circumstances surrounding them. See, Graham v. Conner, 441 U.S. at 497.
Moreover, it should also be noted that even if a constitutional violation had occurred, there is no evidence that DeJong's conduct violated clearly established standards under existing case law and therefore he would be entitled to qualified immunity. See Jarrett v. Town of Yarmouth, 309 F.3d 54, 56-7 (1st Cir. 2002); See also, Saucier v. Katz, 533 U.S. 194 (2001). Qualified immunity is an affirmative defense for government officials in Section 1983 suits which allege constitutional violations. The doctrine shields officials from civil damages liability so long as their actions do not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In determining whether a government official is protected by qualified immunity, courts make two inquiries: (1) whether the plaintiff suffered a constitutional injury, Wilson v. Layne, 526 U.S. 603, 609 (1999), and (2) whether "an objectively reasonable official would have believed that his conduct was lawful `in light of clearly established law and the information that the official possessed at the time of his allegedly unlawful conduct,' " Kelley v. LaForce, 288 F.3d 1, 7 (1st Cir. 2002). DeJong testified that he was acting pursuant to the Bite Policy. He testified that once Tilson refused to stop and then fled, he acted pursuant to the policy in apprehending him, which allowed the use of a K-9. DeJong believed, based on the surrounding circumstances and pursuant to the policies of Elkhart, that his conduct was reasonable and lawful. DeJong believed, and there has been no evidence presented to the contrary, that he was authorized, pursuant to the Bite Policy, to deploy his K-9 in order to apprehend Tilson once he attempted to evade DeJong. Based on the surrounding circumstances as well as the established Bite Policy, DeJong's actions were reasonable and did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
In sum, insufficient evidence exists to support any federal constitutional or state law claim against Elkhart. Likewise, the evidence presented does not support the federal and state law claims against DeJong.
IV. Conclusion
Based on the foregoing, and upon careful consideration of the facts in this case, this Court's order of May 1, 2003, granting the Defendant's motion for summary judgment is hereby AFFIRMED. The Defendants' motion for summary judgment is GRANTED. In addition, the Defendants' motion to strike filed on June 12, 2003, is DENIED.IT IS SO ORDERED.