8:05-cv-00393-LSC-TDT Doc # 39 Filed: 02/07/07 Page 1 of 11 - Page ID # 267 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA REGINALD BEVERLY, an incapacitated) CASE NO. 8:05CV393 person, by RONALD BEVERLY,) Conservator,)) Plaintiff,)) MEMORANDUM vs.) AND ORDER) CHUCK CASEY, JOHN BAHLE, JASON) SLOSSON, DOUG HEROUT, and SGT.) RUSS HORINE, Individually and in their) official capacities as police officers for) the City of Omaha, and the CITY OF) OMAHA, Individually,)) Defendants.) This matter is before the Court on the Defendants' Motion for Summary Judgment Based on Qualified Immunity. (Filing No. 31). For the reasons stated below, the motion will be granted. PROCEDURAL BACKGROUND The Plaintiff Reginald Beverly ("Beverly"), an incapacitated person, through his conservator, filed this action in the District Court of Douglas County, Nebraska, on July 8, 2005, and the Defendants removed the case to this Court on August 10, 2005. The Complaint (Filing No. 1) alleges that on August 1, 2003, the Defendants Chuck Casey, John Bahle, Jason Slosson, Doug Herout, and Sgt. Russ Horine, all employed by the Omaha Police Department, attempted to arrest Beverly at 813 North 47th1 Street in Omaha, Nebraska, for use of an "illicit substance." (Id. ¶¶ 8–9). When Beverly refused 1 Although uninfluential to my decision, I do note that Beverly's Complaint states the relevant address as 813 North 47th Street (Filing No. 1, ¶ 8), while the Defendants' brief in support of their motion for summary judgment states the address as 813 North 48th Street (Filing No. 33, ¶ 1). 8:05-cv-00393-LSC-TDT Doc # 39 Filed: 02/07/07 Page 2 of 11 - Page ID # 268 repeated commands to exit the building, Horine directed other Defendants to deploy pepper spray and pepper balls. (Id. ¶¶ 11–13). As Defendant Slosson fired pepper balls at Beverly, Beverly exited the residence. (Id. ¶ 14). The Complaint implies that one or more of the Defendants then tackled Beverly, wrestled him to the ground, placed him in a choke-hold, and handcuffed him. (Id. ¶ 17). The Complaint states that Beverly was taken to a hospital by medics, examined by a physician, medicated, and later found to be unresponsive and incapacitated. (Id. ¶¶ 18–20). The Complaint alleges that Defendants Casey, Bahle, Slosson, and Herout knowingly used excessive force by deploying pepper spray or pepper balls at Beverly who was in a drug-intoxicated state, and by attempting to restrain him; and that the Defendant City of Omaha provided improper training for the other Defendants. (Id. ¶ 21). The Complaint asserts claims under 42 U.S.C. §§ 1983 and 1988, and state tort-based claims against Defendants Casey, Bahle, and Slosson for assault and battery, and against Herout, Casey, Bahle, and Slosson for "outrage." (Id. ¶¶ 2, 23, and Prayer for Relief).2 This Court has jurisdiction pursuant to 28 U.S.C. § 1331, which grants original jurisdiction to federal district courts over federal questions; 28 U.S.C. § 1367(a), which grants supplemental jurisdiction to federal district courts over claims that are so related to the original jurisdiction claims that they form part of the same case or controversy; and 28 U.S.C. § 1441, which permits removal of claims to federal court when arising under the Constitution or laws of the United States. 2 The Plaintiff's claims under Neb. Rev. Stat. § 20-148, his claim against Horine based on alleged negligent supervision, and his state tort-based claims against all Defendants in their official capacities were dismissed on February 6, 2006. (Filing No. 10). 2 8:05-cv-00393-LSC-TDT Doc # 39 Filed: 02/07/07 Page 3 of 11 - Page ID # 269 The Defendants moved for summary judgment, asserting that they are entitled to qualified immunity from suit. (Filing No. 31). The Defendants' motion is supported by an index of evidence and brief. (Filing Nos. 32, 33). The Defendants' brief complies with the Court's local rules by setting out a "statement of facts consisting of short numbered paragraphs, each containing pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials relied upon to support the material facts recited in the that paragraph." See NECivR 56.1(a)(2). The Plaintiff requested, and was granted, an extra thirty days to respond to the Defendants' motion, and he submitted a brief in opposition to the motion (Filing No. 37), but no evidence. The Plaintiff's brief does not comply with the Court's local rules, because it contains no response to the Defendants' statement of material facts, addressing each numbered paragraph and, in the case of disagreement, making pinpoint references to the evidentiary materials upon which the Plaintiff relies. See NECivR 56.1(b)(1). Accordingly, the properly referenced material facts in the Defendants' statement are deemed admitted. (Id.) FACTS The following facts are set forth in the Defendants' brief (Filing No. 33, pp. 1–8) with pinpoint citations to the evidentiary record (Filing No. 32) in accordance with NECivR 56.1(a)(2), and have not been controverted by the Plaintiff. On August 1, 2003, at approximately 8:20 p.m., Officers Chuck Casey, Jr., and John Bahle received a 911 dispatch to 813 North 48th Street in Omaha, Nebraska, regarding a party who refused to leave the premises. When Officers Casey and Bahle arrived at the 3 8:05-cv-00393-LSC-TDT Doc # 39 Filed: 02/07/07 Page 4 of 11 - Page ID # 270 premises, they met the calling party, Elizabeth Broekemeier. She directed the officers to Reginald Beverly who was sitting on a couch in her living room, smoking what appeared to be crack cocaine. Officers Casey and Bahle repeatedly identified themselves to Beverly as police officers, and repeatedly requested that Beverly put down the drugs and come out of the residence with his hands up. Beverly ignored all of the requests, and responded "I am God." Broekemeier advised Officers Casey and Bahle that if they touched Beverly, he would fight. The officers could see Beverly clearly and observed that he was wearing only boxer shorts and that he had a very muscular build. After several unsuccessful attempts to persuade Beverly to come outside, Officers Casey and Bahle mutually decided to radio for back up, requesting an officer with a pepper ball gun. They based this decision on (1) Beverly's refusal to put down the crack cocaine and exit the premises, (2) Broeckmeier's statement that Beverly would fight if they touched him, (3) their observation that Beverly was "high" on drugs and their training and experience to the effect that people who are intoxicated on drugs often have extraordinary strength and tolerance for pain, and (4) the fact that the room in which Beverly was sitting was very small. The officers concluded that a use of force other than hand-to-hand combat was prudent to reduce the risk of injury to themselves and to Beverly. Officers Herout and Slosson arrived in response to the call for assistance. They identified themselves to Beverly as officers and repeatedly asked him to put down the drugs and come out of the residence with this hands up. Sgt. Horine contacted Slosson and advised him not to deploy pepper balls until Sgt. Horine arrived on the scene to assess the situation. When Sgt. Horine arrived on the scene, he also identified himself to Beverly 4 8:05-cv-00393-LSC-TDT Doc # 39 Filed: 02/07/07 Page 5 of 11 - Page ID # 271 as a police officer and repeatedly requested that Beverly put down the drugs and come out of the residence. Sgt. Horine assessed the situation, and determined that any attempt to apprehend Beverly physically would result in a confrontation that would expose Beverly and the officers to potential injury. Sgt. Horine then ordered Herout to deploy pepper spray. Officer Herout advised Beverly that if he did not comply with the command to put down the drugs and come out of the house, Beverly would be "maced." Beverly did not comply with Herout's directive, and Herout deployed two short bursts of pepper spray in Beverly's face. The spray had no apparent effect, and Beverly continued to smoke the crack cocaine. Sgt. Horine then ordered Slosson to deploy pepper balls, a non-lethal force designed to cause pain on impact and temporary incapacitation, without any permanent injury.3 Slosson was certified in the use of pepper balls through the Omaha Police Department, having completed an eight-hour course of training in their proper use. Slosson fired several rounds of pepper balls at Beverly's legs. Beverly responded by pulling his legs closer to his body. Sgt. Horine then advised Slosson to deploy pepper balls at Beverly's upper body. Slosson fired another three to five rounds, one of which struck Beverly's hand, knocking out of his hand the can he was using to smoke crack cocaine. Beverly then ran out of the house, highly agitated, flinging his arms and refusing to obey the officers' orders to get down on the ground. Officer Slosson hit Beverly with another pepper ball round, and Beverly ran from the scene. After a brief pursuit on foot, Beverly 3 It is uncontroverted that the pepper balls are fired with compressed air, striking with eight to ten foot pounds of kinetic energy, and releasing oleoresin capsicum powder on impact. (Filing No. 33, ¶¶ 43–45). 5 8:05-cv-00393-LSC-TDT Doc # 39 Filed: 02/07/07 Page 6 of 11 - Page ID # 272 slipped and fell on gravel in the street, and Officer Bahle gained control of him. Officers Bahle, Casey, Herout, Slosson, and Sgt. Horine together placed Beverly in handcuffs and secured flex cuffs around his ankles, as Beverly continued to struggle. Once Beverly was on the ground, no officer used pepper spray, pepper balls, or any other force. A rescue squad transported Beverly to the University of Nebraska Medical Center/Clarkson Hospital. Officer Casey rode in the ambulance with Beverly, who remained combative. At the hospital, ten to twelve people, including officers, nurses, hospital security guards, and fire department personnel, worked together to keep Beverly on a stretcher, because he remained combative. Hospital staff administered three sedative injections to Beverly, and his breathing was interrupted. He remains incapacitated. STANDARD OF REVIEW Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Cordry v. Vanderbilt Mortg. & Fin., Inc., 445 F.3d 1106, 1109 (8th Cir. 2006) (quoting Bockelman v. MCI Worldcom, Inc., 403 F.3d 528, 531 (8th Cir. 2005)). The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324–25. 6 8:05-cv-00393-LSC-TDT Doc # 39 Filed: 02/07/07 Page 7 of 11 - Page ID # 273 In response to the proponent's showing, the opponent's burden is to "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id. at 586. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the evidence is merely colorable. . . or is not significantly probative. . . summary judgment may be granted." Id.