MEMORANDUM OPINION AND ORDER
INTRODUCTION
This case arises out of Plaintiff Joseph McClennon’s December 20, 2006, arrest by Minneapolis police officers — on that, the parties agree. Otherwise, their stories differ greatly. McClennon asserts that the officers — Defendants Matthew Kipke, Paul Schweiger, James Carroll, and Chad Hofius — lacked probable cause to arrest him and subjected him to excessive force in effecting his arrest. The officers contend that McClennon was a belligerent suspect who attempted to assault them, ultimately requiring the use of a Taser before he could be subdued. In this action, McClennon аsserts claims under the United States Constitution and Minnesota law arising out of his arrest; Defendants now move for summary judgment. For the reasons set forth below, their Motion will be granted in part and denied in part.
As required at this juncture, the pertinent facts are recited below in the light most favorable to McClennon. E.g., Rau v. Roberts,
On December 21, 2006, McClennon was residing with his aunt, Victoria Johnson, at her home near the intersection of Penn Avenue North and 30th Street in Minneapolis. (McClennon Dep. at 8, 26, 30-31.)
As McClennon was standing on the boulevard, a police car driven by Schweiger (and in which Carroll was a passenger) slowly drove down the opposite side of 30th Street. (Id. at 29; Schweiger Dep. at 7-8, 15.) Schweiger stuck his head out of the car’s window and “stared down” McClennon. (McClennon Dep. at 29, 33.) McClennon asked Schweiger if there was a problem, and Schweiger backed up the squad car and parked in front of Johnson’s home. (Id. at 33.) McClennon then walked from the boulevard to Johnson’s lawn, at which point Schweiger grаbbed him and “forcibly” pushed him against the hood of the squad car. (Id. at 33-35.) He then began searching McClennon. (Id. at 35.)
Schweiger emptied McClennon’s pockets as another police car, driven by Hofius (and in which Kipke was a passenger), arrived on the scene. (Id. at 36; Hofius Dep. at 9-10.) Schweiger removed some papers, a key chain, a “do rag,” and an identification card from McClennon’s pockets and placed them onto the hood of his car, and he then placed McClennon into the back seat. (McClennon Dep. at 37.) According to Schweiger, McClennon had a small marijuana pipe on his keychain, although McClennon disputes that assertion. (Schweiger Dep. at 20-21; McClennon Dep. at 38.) Regardless, Schweiger began to write McClennon a citation for possession of drug paraphernalia. (Schweiger Dep. at 22; McClennon Dep. at 40.) Meanwhile, Harris informed Johnson that McClennon was being arrested. Johnson, Harris, and two other family members came out of Johnson’s home and began asking the officers what McClennon had done wrong. (McClennon Dep. at 38-39.) Hofius “wouldn’t tell [Johnson] anything, and then he called her ignorant.” (Id. at 39.)
Eventually, Schweiger released McClennon from the squad car and handed the citation to him, which McClennon “grabbed.” (Id. at 40.) As he began walking toward Johnson’s house, Johnson reminded him that his belongings remained on the hood of Schweiger’s car. (Id.) McClennon turned around, walked back to the car, and began gathering the items that had been removed from his pockets; Schweiger then started to flick them off the hood with a flashlight. (Id.) As McClennon reached for his possessions, the flashlight hit him “on [his] knuckles ... pretty hard,” and he reacted by “pushing] the flashlight back” with his fingers. (Id.)
In response, Schweiger grabbed McClennon in a “bear hug” while another officer grabbed him from behind, lifting his arms over his head in a “full-nelsоn.” (Id. at 41-43.) A third officer then grabbed McClennon from the side. (Id. at 43.)
McClennon was charged with a gross misdemeanor of obstructing legal process and held overnight in the Hennepin County Jail; he was released the following day, December 21, 2006. (Lathrop Aff. Exs. 5, 12.) The charge was later dropped when the officers failed to appear at a court hearing. (Cole Dep. at 11.) After learning that the officers had not been advised of the hearing date, however, the prosecutor re-charged the case and McClennon was arrested on the charge a second time. (See Cole Dep. at 14; Lathrop Aff. Ex. 13.) The case was subsequently dismissed, for reasons not entirely clear from the record.
On June 24, 2010, McClennon commenced this action against Schweiger, Carroll, Hofius, and Kipke (the “Individual Defendants”), as well as the City of Minneapolis (the “City”), asserting six claims: unreasonable seizure (Count I) and excessive force (Count II) in violation of the Fourth Amendment, against the Individual Defendants;
With discovery complete, Defendants have moved for summary judgment. The Court held a hearing on the Motion on October 26, 2011, and it is now ripe for disposition.
STANDARD OF DECISION
Summary judgment is proper if, drawing all reasonable inferences in favor of the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
ANALYSIS
I. Qualified immunity
The Individual Defendants first argue that they are entitled to qualified immunity on McClennon’s federal claims. In analyzing that assеrtion, the Court must conduct a two-part inquiry. First, it must assess whether the facts alleged, when viewed in the light most favorable to McClennon, show that the challenged conduct violated a constitutional right. If a violation could be established based on those facts, the Court must then determine whether the constitutional right at issue was clearly established on the date in question. E.g., Avalos v. City of Glenwood,
A. Excessive force (Count II)
The Court fоllows the parties’ lead and begins its analysis with McClennon’s excessive-force claim. The viability of that claim turns on Saucier’s second step, namely, clearly established law. It is undisputed that it was clearly established on December 20, 2006, the date of McClen
A de minimis use of force is insufficient to support a claim, and it may well be that most plaintiffs showing only de minimis injury can show only a corresponding de minimis use of force. The degree of injury is certainly relevant insofar as it tends to show the amount and type of force used. But it is logically possiblе to prove an excessive use of force that caused only a minor injury, and a rule that forecloses a constitutional claim in that circumstance focuses on the wrong question.
The degree of injury should not be dispositive, because the nature of the force applied cannot be correlated perfectly with the type of injury inflicted. Some plaintiffs will be thicker-skinned than others, and the same application of force will have different effects on different people. A greater than de minimis injury requirement under the Fourth Amendment would mean that the same quantum of force, in the same circumstаnces, could be unconstitutional when applied to a citizen with a latent weakness and constitutional when applied to a hardier person. The governing rule should not turn on such unpredictable and fortuitous consequences of an officer’s use of force. The rule should focus instead on whether the force applied is reasonable from the perspective of a reasonable officer on the scene at the time the force is used.
But as Chambers noted, the Eighth Circuit’s inconsistent decisions had left it unclear for more than a decade whether “an officer violated the rights of an arrestee by applying force that caused only de minim-is injury.” Id. at 908. “Given the state of the law,” a reasonable police officer making an arrest before Chambers “could have believed that as long as he did not cause more than de minimis injury to an arrestee, his actions would not run afoul of the Fourth Amendment.” Id. In other words, it was not clearly established pre-Chambers that an officer violated an arrestee’s rights, no matter how much force he applied, if he caused only de minimis injuries. Id. at 908-09. As a result, the Eighth Circuit determined that the police officers in Chambers, who were accused of excessive force but who caused only de minimis injuries, were entitled to qualified immunity because at the time of the plaintiffs arrest (August 2005) it was “reasonable for the officers to believe that they
Seizing on Chambers, the Individual Defendants argue they are entitled to qualified immunity here because (1) McClennon suffered only de minimis injuries and (2) it was not clearly established on December 20, 2006, that inflicting a de minimis injury was unconstitutional. (Def. Mem. at 12-17.) The latter assertion cannot seriously be disputed in light of Chambers. And the Court agrees with the former assertion, because case law indicates that McClennon’s injuries were de minimis.
Notably, McClennon nowhere argued in his brief that he incurred something more than de minimis injuries. He claims that he suffered two red spots on his chest from the Taser probes, but he has acknowledged that the spots have since faded. (McClennon Dep. at 54-55.) “[Rjelatively minor scrapes and bruises ... [a] re de minimis injuries.” Wertish v. Krueger,
McClennon also claims, since the incident, that he suffers pain in his shoulder after playing basketball and “tightening” in his chest that he feels the need to “pop.” (McClennon Dep. at 67-70.) Yet, he conceded in his deposition that he has never seen a doctor for these conditions, and he has proffered no medical records or оther evidence to support them. His bare assertions of shoulder pain and chest tightness, without more, are insufficient to constitute something beyond de minimis injuries. See, e.g., Foster v. Metro. Airports Comm’n,
Although not expressly argued by him, McClennon also appears to suggest that the officers’ application of a Taser necessarily inflicted something more than de minimis injury. (See Mem. in Opp’n at 41, 44-45.) But while a Taser delivers a “painful and frightening blow” that can render “even the most pain tolerant individuals utterly limp,” McKenney v. Harrison,
At oral argument, McClennon pointed to four Eighth-Circuit cases purportedly supporting his excessive-force claim. None of those cases is apposite, however. Two-Brown v. City of Golden Valley,
For all of the foregoing reasons, the Court concludes that the injuries suffered by McClennon were die minimis as a matter of law. As a result, because it “was not clearly established [in 2006] that an officer violated the rights of an arrestee by applying force that caused only de minim-is injury,” Chambers,
B. Unlawful seizure (Count I)
Before analyzing qualified immunity visa-vis the unlawful-seizure claim, it is important to undеrstand precisely what that claim alleged. In the Complaint, McClennon asserted that the Individual Defendants, “jointly and severally, unreasonably seized [him] by his wrongful confinement in the Hennepin County Jail for two days after his unreasonable seizure on December 20, 2006.” (Compl. 1124.) In other words, his claim arose out of his arrest, for only the arrest led to McClennon being “confme[d] in the Hennepin County Jail.”
This understanding is important, because McClennon obfuscates the nature of his claim in his opposition brief. Instead of focusing on his arrest, McClennon keys in on several events preceding the arrest, including Schweiger’s initial stop and sеarch of McClennon’s person and his temporary detention in the squad car while Schweiger wrote the marijuana citation. (See, e.g., Mem. in Opp’n at 33 (“The officers, without any warrant, lack[ed] probable cause to seize McClennon in the first place.”); id. at 36 (“Taking the evidence in
The Court will not permit McClennon to re-cast the contours of this claim through his summary-judgment brief. See, e.g., Morgan Distrib. Co. v. Unidynamic Corp.,
The Individual Defendants assert that they are entitled to qualified immunity on this claim because they had “probable cause to believe that [McClennon] committed obstruction of legal process in their presence.” (Def. Mem. at 19.)
The flaw in the Individual Defendants’ argument is that it presupposes McClennon’s “spinning” was a voluntary act. They overlook that McClennon denies resisting and testified that he “started spinning” only because the officers grabbed him and wrestled him to the ground. (McClennon Dep. at 44 (claiming that he was spinning because an “officer had grabbed [him] from the back [and McClennon] was following his motion”); id. at 44-45 (“[W]hen the other officer grabbed me I got spun.”).) Notably, defense counsel appeared to recognize during McClennon’s deposition that he was spinning only because of the officers’ actions. (See id. at 45 (“Q: So he spins you around, and does the officer who gave you the citation come with you as you spin around?”) (emphasis added).)
For these reasons, the Court concludes that the Individual Defendants are not entitled to qualified immunity on McClennon’s unlawful-seizure claim.
II. The state-law claims
As noted above, McClennon asserted four state-law claims in his Complaint: malicious prosecution (Count III), abuse of process (Count IV), false imprisonment (Count V), and negligence (Count VI). In his opposition brief, he agreed to voluntarily dismiss the malicious-prosecution claim (Count III). (See Mem. in Opp’n at 45 n.2.) At oral argument, he also abandoned the abuse-of-process (Count IV) and false-imprisonment (Count V) claims. Defendants argue that the remaining claim, for negligence, also must be dismissed; the Court agrees.
In his negligence claim, McClennon asserted that the Individual Defendants “breached their duties ... to refrain from
“In the context of official immunity, ‘willful’ and ‘malicious’ are synonymous, and the Minnesota Supreme Court has defined malice as ‘nothing more than the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.’ ” Brown,
III. Hofius must be dismissed
Finally, Hofius asserts that he must be dismissed from this action because he has never been served with process. (See Def. Mem. at 35-36.)' McClennon did not respond to this argument in his brief, and at oral argument he acknowledged that Hofius should be dismissed because more than 120 days have elapsed since the Complaint was filed, without valid service. See Fed.R.Civ.P. 4(m); Mack v. Dillon,
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
1. The Motion is GRANTED as to all claims against Hofius, and those claims are DISMISSED WITHOUT PREJUDICE due to McClennon’s failure to timely effect service;
2. The Motion is GRANTED with respect to McClennon’s claims for excessive force (Count II), malicious prosecution (Count III), abuse of process (Count IV), false imprisonment (Count V), and negligence (Count VI), and those claims are DISMISSED WITH PREJUDICE; and
3. The Motion is DENIED with respect to McClennon’s unlawful-seizure claim (Count I).
Notes
. McClennon was deposed in this action and in a related action brought by Johnson. References to "McClennon Dep.” are to the transcript of McClennon’s deposition in this case, dated May 25, 2011, which is attached to the Affidavit of defense counsel, Sara J. Lathrop, as Exhibit 2.
. A "Taser” is an "electronic control device that discharges two probes on a target when its trigger is pulled.” United States v. Drapeau,
. Suffice it to say, Defendants paint a very different picture of McClennon’s conduct. They assert that McClennon was standing near a parked car when Schweiger drove by and appeared surprised by the police car's presence, rapidly turning around and walking away. Schweiger suspected McClennon might be breaking into the car and made eye contact with hi m, to which McClennon responded, "What the fuck are you looking at?” Schweiger then stopped his squad car and observed McClennon put his hands in his pockets as if he were hiding something. After refusing twice to remove his hands from his pockets, Schweiger performed a "protective search” and emptied the contents of McClennon’s pockets onto the car's hood, revealing a marijuana pipe. He placed McClennon into his squad car, wrote him a citation, and released him. McClennon walked towards Johnson's home but then turned around, yelled obscenities at the officers, and grabbed for his possessions on the hood of Schweiger’s car. He thеn pushed Schweiger and began throwing punches at him, and Hofius and Carroll came to Schweiger’s aid. McClennon fell to the ground in the scuffle and, as the officers attempted to handcuff him, Johnson jumped on top of him. The officers removed her, and seeing McClennon still combative on the ground, Kipke deployed his Taser. Hofius was then able to handcuff and arrest McClennon. For purposes of this Motion only, the Court assumes the truth of McClennon’s version of events, rather than Defendants’.
. Although the Complaint alleges that the Individual Defendants' conduct violated the Fourth and Fourteenth Amendments, this is but twо different ways of stating the same claim, since the Fourth Amendment is made applicable to state actors through the Fourteenth Amendment’s Due Process clause. See, e.g., Mapp v. Ohio,
. At oral argument, McClennon also asserted that the incident caused him pain and soreness in his chest, which resolved approximately one week later. These, too, are de minimis injuries. See Andrews,
. McClennon also noted at oral argument that a decision by a panel of the Eighth Circuit must control later decisions by different panels. The Court does not quibble with that notion, see, e.g., Mader v. United States,
. There is no dispute, as of December 20, 2006, that it was clearly established that police officers violated an arrestee’s constitutional rights by making a warrantless arrest without probable cause. See, e.g., Walker v. City of Pine Bluff,
. Notably, the Individual Defendants do not rely on McClennon's (purported) possession of a marijuana pipe as the basis for his arrest. (See Reply Mem. аt 16 ("Defendants have not argued ... that possessing drug paraphernalia formed the legal basis for Plaintiff's seizure.").) The only asserted basis for probable cause is McClennon's so-called "resistance."
. Each Individual Defendant’s conduct must be independently assessed when determining whether qualified immunity exists. E.g., Heartland Acad. Cmty. Church v. Waddle,
. McClennon failed to respond to Defendants' arguments regarding the negligence claim (and all other state-law claims). As a result, Defendants assert that McClennon has "waived” that claim, but the Court does not agree. See Interstate Power Co. v. Kan. City Power & Light Co.,
. Defendants also argue that the negligence claim is really one for battery because "there is no claim under Minnesota law for negligent infliction of excessive force.” (Def. Mem. at 28 (citing Schumann v. McGinn,
. Generally speaking, when a government official is entitled to official immunity, his employer receives the same benefit through the doctrinе of “vicarious official immunity.” See, e.g., Johnson v. Carroll,
. As indicated at oral argument, the Court is contemplating moving this action from the February 2012 trial calendar to the January 2012 trial calendar, as all discovery is complete and the case is trial-ready. In the event the parties are unable to resolve this case at the settlement conference before Magistrate Judge Keyes (which is also scheduled for January but which the Court will request that Judge Keyes move to December), they should be prepared to try this action sometime in January 2012.