in his individual and official capacity as
Rapid City police officer;
City of Rapid City; and County of Pennington,
[2000 DSD 42]
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Bruce H. Ellison, Rapid City, SD 57709
Attorney for Plaintiff.
James S. Nelson, Gunderson, Palmer, Goodsell & Nelson LLP,
Rapid City, SD
Attorney for Defendant.
Karen E. Schreier, U. S. District Judge
[¶1] Randy Williams seeks relief claiming violations of §1983, §1985 and a variety of state tort claims arising out of his arrest on August 13, 1994. Williams alleges that Officer Ragnone used excessive force in the arrest of Williams, that City of Rapid City failed to properly train and supervise its officers, and that Officer Ragnone, City and County of Pennington failed to provide necessary medical treatment to Williams, thus resulting in the deprivation of Williams' constitutional rights. Williams also alleges that City and County conspired to deprive him of his constitutional rights and committed various state torts. City and County claim that they are not liable because there are policies regarding these areas in effect which have been reviewed and approved by a national accrediting organization. In addition, City and Officer Ragnone claim that they are immune from the state claims because City no longer participates in a risk sharing pool or carries a liability policy that would cover the claim. City and County have moved for summary judgment on these issues. Ragnone moves for summary judgment only on the state law causes of action.
[¶2] Williams, a Native American, was stopped while driving his car by Sergeant Egan on August 13, 1994. Williams had been out with his wife and two friends that evening. Sergeant Egan suspected that Williams was driving while under the influence of alcohol. Sergeant Egan called for back up to assist in the stop. Officer Ragnone and Officer Doyle arrived in response to Sergeant Egan's request. Sergeant Kistler also arrived to provide assistance. Sergeant Egan then requested that Officer Ragnone administer several sobriety field tests to Williams while Officer Doyle took care of the passengers in Williams' vehicle. Sergeant Kistler apparently observed the proceedings and later assisted with the arrest.
[¶3] Upon administering the sobriety tests, Sergeant Egan and Officer Ragnone determined that Williams was intoxicated and placed him under arrest. Officer Ragnone placed the cuffs on one of Williams' wrists. Williams then noticed his wife was out of their vehicle and trying to get to him. He asked if he could talk to her to calm her down. Officer Ragnone believed that Williams was trying to pull away when Williams gestured towards his wife. Officer Ragnone and Sergeant Egan, believing Williams was resisting, took Williams down to the ground. Williams' free arm was caught between his body and the pavement. When Officer Ragnone requested that Williams bring his free arm behind his back to be cuffed, Williams was unable to move his arm due to it being caught underneath him. Officer Ragnone then administered at least three to four knee strikes. Officer Ragnone claims that the strikes were administered to the thigh area. Williams, however, claims that the strikes were administered to his side, resulting in a broken rib, several cracked vertebrae, a soft-tissue injury to his lower back and several abrasions. The officers eventually were able to roll Williams onto his side, free his arm and secure the handcuffs.
[¶3] Williams was then assisted to Officer Ragnone's patrol vehicle. Officer Ragnone ordered Williams to get into the car. Williams claims that because of his injuries, he was unable to move fast enough for the officers. Officer Ragnone claims that Williams was refusing to get into the patrol vehicle. Officer Ragnone then administered another series of knee strikes, at least one and probably more. Williams was then placed into the vehicle and transported to Pennington County Jail.
[¶4] While at the jail, Williams repeatedly requested medical care from the police officers and prison officials. When asked for a blood sample, Williams requested a doctor for his back. Williams, despite his pain, repeatedly pounded and kicked the cell door yelling for assistance. Williams was eventually released on bail. Approximately a day and a half after his release, Williams went to a doctor where his injuries were diagnosed.
[¶5] The issue before the court is whether there is a question of genuine fact on Williams' §1983 claims and §1985 claims and whether the defendants are immune to the state law claims.
[¶6] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if it can show that "there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." Lambert v. City of Dumas, 187 F3d 931, 934 (8th Cir. 1999). In determining whether summary judgment should issue, the court must view the evidence and inferences reasonably drawn therefrom "in the light most favorable to the nonmoving party." Lambert v. City of Dumas, 187 F3d 931, 934 (8th Cir. 1999) (citing Enterprise Bank v. Magna Bank, 92 F3d 743, 747 (8th Cir. 1996); Adkison v. G.D. Searle & Co., 971 F2d 132, 134 (8th Cir. 1992)). The burden is on the moving party to establish the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Enterprise Bank v. Magna Bank, 92 F3d 743, 747 (8th Cir. 1996); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 US 574, 106 SCt 1348, 1356-57, 89 LEd2d 538 (1986). "As to materiality ... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 US 242, 248, 106 SCt 2505, 2510, 91 LEd2d 202 (1986). Once this burden has been met, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts that create a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 US 242, 256, 106 SCt 2505, 2514, 91 LEd2d 202 (1986).
[¶7] In determining whether a genuine issue of material fact exists, the court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. Anderson v. Liberty Lobby, Inc., 477 US 242, 255, 106 SCt 2505, 2513, 91 LEd2d 202 (1986). "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 US 317, 327, 106 SCt 2548, 2555, 91 LEd2d 265 (1986).
[¶8] "Summary judgment is to be granted only where the evidence is such that no reasonable jury could return a verdict for the nonmoving party." Lambert v. City of Dumas, 187 F3d 931, 934 (8th Cir. 1999) (citing Anderson v. Liberty Lobby, Inc., 477 US 242, 250, 106 SCt 2505, 2511, 91 LEd2d 202 (1986)).
[¶9] Williams claims that City failed to provide adequate training and supervision and that the failure to do so resulted in Officer Ragnone's use of excessive force which caused Williams' injuries. To state a claim under §1983, Williams "must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of law." Roe v. Humke, 128 F3d 1213, 1215 (8th Cir. 1997) (quoting West v. Atkins, 487 US 42, 48, 108 SCt 2250, 2254-55, 101 LEd2d 40 (1998)). Williams has alleged the first essential element, a violation of a right secured by the Constitution of the United States, namely that the Fourth Amendment protects citizens from being seized through excessive force by law enforcement officers. See Graham v. Connor, 490 US 386, 395, 109 SCt 1865, 104 LEd2d 443 (1989). There is no dispute that the alleged deprivation was committed by a person acting under color of law.
[¶10] A local government, however, cannot be held liable under § 1983 on the theory of respondeat superior. Board of County Comm'rs of Bryan County v. Brown, 520 US 397, 403, 117 SCt 1382, 137 LEd2d 626 (1997). Even if a plaintiff has suffered a deprivation of federal rights at the hand of a municipal employee, that alone will not permit an inference of municipal culpability and causation; "the plaintiff will simply have shown that the employee acted culpably." Id. at 406-07. To hold a local governmental body liable pursuant to §1983, a plaintiff must identify a municipal "policy" or "custom" that caused plaintiff's injury and "rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee." Id. at 405. "'Official policy' often refers to formal rules or understandings ... that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time." Pembaur v. Cincinnati, 475 US 469, 480, 106 SCt 1292, 1299 (1986). In addition, "[o]fficial policy involves 'a deliberate choice to follow a course of action ... made from among various alternatives' by an official who [is determined by state law to have] the final authority to establish governmental policy." Ware v. Jackson County, 150 F3d 873 (8th Cir. 1998) (quoting Jane Doe "A" v. Special Sch. Dist., 901 F2d 642, 645 (8th Cir. 1990)). "Although [municipal] liability for violating constitutional rights may arise from a single act of a policy maker, that act must come from one in an authoritative policy making position and represent the official policy of the [municipality]." Springdale Educ. Assoc. v. Springdale Sch. Dist., 133 F3d 649, 652 (8th Cir. 1998).
[¶11] Alternatively, Williams may establish municipal liability by proving his rights were violated by "misconduct so pervasive among non-policymaking employees of the [municipality] 'as to constitute a "custom or usage" with the force of law.'" Ware, 150 F3d at 880 (quoting Monell v. Dep't of Soc. Serv., 436 US 658, 691, 98 SCt 2018, 56 LEd2d 611 (1978)). "Custom or usage" arises when there is a "continuing, widespread, persistent pattern of unconstitutional misconduct" by municipal employees to which the city was deliberately indifferent or of which the municipality was notified and tacitly authorized. Ware, 150 F3d at 880. In addition the custom must have been "the moving force behind the constitutional violation" which resulted in Williams' injuries. Id.
[¶12] Williams claims City did not adequately train Officer Ragnone, thus resulting in the deprivation of Williams' constitutional rights. It has been held that "'an inadequate training' claim could be the basis for § 1983 liability in 'limited circumstances.'" Board of County Comm'rs of Bryan County v. Brown, 520 US 397, 403, 117 S. C.t. 1382, 1387, 137 LEd2d 626 (1997) (quoting Canton v. Harris, 489 US 378, 387, 109 SCt 1197, 1205, 103 LEd2d 412 (1989)). "If a training program does not prevent constitutional violations, municipal decision makers may eventually be put on notice that a new program is called for." Id. at 407. When alleging a claim of inadequate training, "[i]t is necessary to show 'that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policy makers of the city can reasonably be said to be indifferent to the need.'" Andrews v. Fowler, 98 F3d 1069, 1076 (8th Cir. 1996). This means that Williams must prove that City had notice not only that the training offered was inadequate, but that the lack of appropriate training would likely result in a deprivation of constitutional rights.
[¶13] In Andrews, the Eighth Circuit found police officers who had two weeks of on-the-job training and were required to attend the police academy were adequately trained. Id. at 1077. Similarly, in this case, City requires officers to attend training in Pressure Point Control Tactics, which is offered three times a year, as well as attend a police academy.
[¶14] Additionally, Williams does not point to any evidence showing that City's training procedures are inadequate. It will not "suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. Such a claim could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual recurring situations with which they must deal." Canton v. Harris, 489 US at 391. Williams has not presented evidence to show that more or different training would have prevented the assault under these circumstances. Williams does not have sufficient evidence to show that his injury was caused by City's action, rather than simply the act of an employee. As a result, there is no issue of material fact. Therefore, summary judgment on the issue of training must be granted in favor of City.
[¶15] Williams alleges City failed to adequately supervise Officer Ragnone. To hold City liable, the burden is on Williams to identify a municipal "policy" or "custom" that caused his injury. Bryan County, 520 US at 406-07. "The standard of liability for a failure to supervise is 'demonstrated deliberate indifference or tacit authorization of the offensive acts.'" Tilson v. Forrest City Police Dep't., 28 F3d 802, 807 (8th Cir. 1994) (citing Bolin v. Black, 875 F2d at 1347 (8th Cir. 1989)). "Where it becomes clear that a police force needs close and continuing supervision because of a known pattern of misconduct, and the municipality fails to provide such supervision, 'the inevitable result' is a continuation of the misconduct." Harris, 821 F2d at 508. Williams has not identified a city "policy" that caused his injury, therefore, he must show that there was a pattern of misconduct so pervasive among non-policymaking employees of City as to constitute a custom or usage with the force of law and that City exhibited deliberate indifference to that pattern or tacitly approved of such conduct. Ware, 150 F3d at 880.
[¶16] This incident occurred on August 13, 1994. On August 4, 1994, a federal lawsuit was filed naming Officer Ragnone and City as defendants in a §1983 action. The complaint alleged that Ken Krieger was repeatedly punched and had his head slammed against an automobile by Officer Ragnone while being arrested on February 4, 1993. An investigation by the police department concluded that there was no merit to the claim. The lawsuit was settled and the terms of the settlement remain confidential. Officer Ragnone was also accused of using excessive force in the arrest of Hazel Feole on November 7, 1993, during which she suffered facial injuries. The record is not clear as to whether this allegation was investigated and the results of that investigation. The department did not to take any disciplinary action and Feole did not file a lawsuit. Michael Baum alleged that Officer Ragnone used excessive force when he was arrested on May 18, 1994. Again, the department took no disciplinary action and a suit was not filed. The record is not clear as to whether the department investigated this allegation and the results of any such investigation. Several complaints were also filed by other citizens and officers regarding Officer Ragnone's demeanor and professionalism. All these allegations were made within one year before this incident.
[¶17] Other officers on the Rapid City Police Department have also been accused of using excessive force prior to this incident. In fact, there was at least one documented, formal complaint of excessive force for each of the several years prior to the incident, which supports Williams' contention that those with authority had notice that the officers of the Rapid City Police Department were using excessive force on a regular basis.
[¶18] Additionally, Chief of Police Hennies, who was responsible for the investigation of all claims against Rapid City police officers, relied on the captains and lieutenants, and the officers themselves, to inform him of any use of force and any potential problems. The police department had a written policy requiring officers to report incidents where force was used. Even though the mandatory reporting of use of force policy existed, Officer Ragnone did not report his use of force in the arrest of Williams. In addition, neither of the two sergeants or the other officer present during the arrest reported Officer Ragnone's use of force. No disciplinary action was taken against any of the four officers or sergeants for failure to comply with the department policy. The policy relies on those subject to its regulation to report the use of force with no guarantee of compliance and no safeguards to ensure that the use of force was being reported and properly supervised. Thus, a jury could conclude that Chief Hennies deliberately chose to play a passive role in monitoring and supervising the officers in his department.
[¶19] Previously, the Eighth Circuit has found tacit authorization or deliberate indifference when the supervising officers failed to prevent and stop the beatings of inmates. Bolin v. Black, 875 F2d 1343, 1347 (8th Cir. 1989). In Bolin, prison officers were beating inmates in retaliation for the killing of a fellow officer. Id. Their supervising officers were aware of the predisposition of these officers and did nothing to prevent the beatings or protect the inmates. Id. Here, prior to the alleged incident, the police department received three allegations within one year that Officer Ragnone used excessive force during arrests. Officer Ragnone's supervisors were aware of this history. Officer Ragnone's immediate supervisor was present during the arrest of Williams and did not report Officer Ragnone's use of force in his own report. In fact, the reports of each officer or sergeant present during the arrest of Williams differ from each other's report and the report of Officer Ragnone's.
[¶20] The practices of Chief Hennies with regards to supervision, Officer Ragnone's prior history, and the events of August 13, 1994, when viewed in a light most favorable to the non-moving party, present a genuine issue of material fact. A reasonable jury could find that City, through the Rapid City Police Department, had prior notice of Officer Ragnone's pattern of using force during arrests. In addition, a reasonable jury could find that the police department's methods of supervision, the failure of its officers and sergeants to report the use of force, and the lack of any procedure to compare the arrestee's injuries to the officer's reported use of force, demonstrated that City was deliberately indifferent or tacitly authorized such actions arising to the level of a "custom or usage." Further, it would be reasonable for a jury to conclude that City, aware of this pattern of misconduct, took no action to prevent the misconduct and therefore failed to provide adequate supervision of Officer Ragnone, resulting in the deprivation of Williams' constitutional rights. The court finds that a genuine issue of material fact exists as to whether City failed to provide proper supervision of Officer Ragnone which resulted in a violation of §1983.
[¶21] Williams has also alleged violations of §1983 in that City and County failed to provide medical treatment when he was injured. To hold City or County liable, the burden is on Williams to identify a governmental "policy or "custom" that caused his injury. Bryan County, 520 US at 406-07. The Eighth Circuit has held that in these cases "the deprivation alleged must be, objectively, sufficiently serious." Crowley v. Hedgepeth, 109 F3d 500, 502 (8th Cir. 1997) (citing Beyerbach v. Sears, 49 F3d 1324, 1326 (8th Cir. 1995)). "To constitute an objectively serious medical need or a deprivation of that need, we have repeatedly emphasized that the need or the deprivation alleged must be either obvious to the layperson or supported by medical evidence, like a physician's diagnosis." Aswegan v. Henry, 49 F3d 461, 464 (8th Cir. 1995).
[¶22] Williams has submitted no evidence to show that City or County had a policy or custom that caused the injury to Williams. A governmental entity cannot be held liable pursuant to §1983 under a theory of respondeat superior solely because it employs a tortfeasor. Bryan County, 520 US at 403.
[¶23] Even if Williams had alleged a policy or custom that caused his injury, there is no evidence to support Williams' claim that the injuries were objectively, sufficiently serious. Williams alleges that due to this incident he suffered a broken rib and a soft-tissue injury to his lower back, along with several abrasions. However, Williams has failed to provide any evidence that his injury rose to the level of being "objectively serious." Although Williams repeatedly called for help and was heard moaning in pain, he admits that he pounded and kicked at the door to his cell while yelling for a doctor. Then, after being released, Williams waited approximately a day and a half before seeking medical attention. The fact that Williams was actively pounding and kicking his cell door and then waited a day and a half to seek medical treatment, does not support his claim that his injury was "objectively serious."
[¶24] The second element that must be evidenced in a medical claim is that the officials must have been "as a subjective state of mind, deliberately indifferent to the prisoner's health and safety." Crowley, 109 F3d at 502 (citing Beyerbach v. Sears, 49 F3d 1324, 1326 (8th Cir. 1995). Williams argues that the officers' and prison officials' failure to respond to his requests for medical attention, including an unsubstantiated claim that the prison officials turned off the monitor so they did not have to listen to his pleas, equates to deliberate indifference. However, something more must be shown to present a genuine issue of material fact as to the subjective state of mind of the officials. The officers and prison officials were faced with a subject that was reportedly intoxicated who was complaining of back pain, yet kicking and yelling for help. It is unclear how, faced with these facts, the officials could have formed a subjective state of mind that Williams had a serious medical injury and needed medical intention. Williams fails to point to anything that shows a deliberate indifference to his injuries. Therefore, as a matter of law, there is no genuine issue of fact regarding the alleged violation of §1983 in the deprivation of medical attention. Summary judgment on this claim is granted in favor of City and County.
[¶25] Williams also alleges City and County violated § 1985 by conspiring to deprive him of his constitutional rights. Under §1985(3), Williams must show that "two or more individuals conspired for the purpose of depriving, either directly or indirectly, a person or persons of their right to equal protection of the laws or of equal privileges and immunities under the laws and that an act was done in furtherance of the conspiracy that caused an injury or deprivation to another." Marti v. City of Maplewood, 57 F3d 680, 685 (8th Cir. 1995) (citing Employees Betterment Ass'n v. Omaha, 883 F2d 650, 652 (8th Cir. 1989)). The Eighth Circuit has held that "the 'purpose' element of the conspiracy requires that the plaintiff prove a class-based 'invidiously discriminatory animus.'" City of Omaha Employees Betterment Ass'n v. City of Omaha, 883 F2d 650, 652 (8th Cir. 1989) (citing Griffin v. Breckenridge, 403 US 88, 102 (1971)). Additionally, the Eighth Circuit has required that when alleging a claim under § 1985, "the plaintiff must allege with particularity and specifically demonstrate with material facts that the defendants reached an agreement." City of Omaha Employees Betterment Ass'n v. City of Omaha, 883 F2d 650, 652 (8th Cir. 1989) (citing Gometz v. Culwell, 850 F2d 461, 464 (8th Cir. 1988)).
[¶26] Williams first alleges that a conspiracy existed amongst the police officers to deprive him of his constitutional right to be free from an unreasonable search and seizure and then to cover up that deprivation. City has admitted that all four of its officers failed to report the use of force by Officer Ragnone during the arrest of Williams. A reasonable jury could conclude that the police department had a custom of not reporting the use of force. However, regardless of what the officers did or did not do, Williams has failed to allege, in either the original or amended complaint, that the officers acted with some class-based, invidiously discriminatory purpose as required by case law.
[¶27] Williams also alleges that County is guilty of violating § 1985(3) in that it conspired to deprived him of medical treatment by ignoring his pleas for help. Williams has failed to allege with any particularity, by pointing to at least some facts, that the defendants reached an agreement. Williams merely concludes that because he was denied medical treatment there must have been a conspiracy. Vague and conclusory accusations are not enough to meet the requirements of §1985. City of Omaha Employees Betterment Ass'n v. City of Omaha, 883 F2d 650, 652 (8th Cir. 1989) (citing Gometz v. Culwell, 850 F2d 461, 464 (8th Cir. 1988)). In addition, Williams has failed to allege that the prison officials acted with a class-based, invidiously discriminatory intent. Therefore, summary judgment on the §1985 cause of action is granted in favor of City and County.
State Law Claims
[¶28] Williams also alleges several state law causes of action. City argues that sovereign immunity precludes liability based on SDCL 21-32A-1, which provides in pertinent part:
To the extent that any public entity, other than the state, participates in a risk sharing pool or purchases liability insurance and to the extent that coverage is afforded thereunder, the public entity shall be deemed to have waived the common law doctrine of sovereign immunity and shall be deemed to have consented to suit in the same manner that any other party may be sued.
City admits that it participated in a risk sharing pool at the time of this incident, 1994, and at the time the complaint was filed, 1996. City stopped participating in the risk sharing pool as of December 31, 1998.
[¶29] SDCL 21-32A-1 does not bar this action. City does not dispute that there was coverage at the time the incident occurred and during the vast majority of the time that this action has been pending. It would be unconscionable to allow a plaintiff to bring a cause of action and have the defendant deny liability for several years while the action was pending, only to allow City to terminate its liability at will. The South Dakota Legislature envisioned opening the courts to plaintiffs that have been wronged by government entities when those entities participated in risk sharing pools or purchased liability insurance. To allow City to simply discontinue its insurance so as to avoid liability goes against the intent of this law. By participating in a risk sharing pool at the time the lawsuit was filed, City waived the common law doctrine of sovereign immunity and consented to the suit. Therefore, City's motion for summary judgment based on sovereign immunity on the state causes of action is denied.
[¶30] Officer Ragnone contends that he is immune from suit on the state law causes of action because of sovereign immunity. SDCL 21-32A-2 provides in part,
Except insofar as a public entity, including the state, participates in a risk sharing pool or insurance is purchased pursuant to § 21-32A-1, any employee, officer or agent of the public entity, including the state, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability for damages brought against him in either his individual or official capacity.
Since City did participate in a risk sharing pool at the time the lawsuit was filed, immunity is not available to Officer Ragnone. Officer Ragnone's motion for summary judgment on the state law causes of action on the basis of immunity is denied.
[¶31] It is hereby ORDERED that City's and County's motion for summary judgment regarding the §1983 claims of inadequate training, deprivation of medical care and the § 1985 claims of conspiracy are granted in favor of City and County.
[¶32] IT IS FURTHER ORDERED that City's motion for summary judgment on the §1983 claim of inadequate supervision is denied.
[¶33] IT IS FURTHER ORDERED that City's and Officer Ragnone's motion for summary judgment on the basis of sovereign immunity to the state law claims is denied.
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