MEMORANDUM OPINION AND ORDER
C.J. Williams, United States Magistrate Judge, Northern District of Iowa
Table of Contents
I. INTRODUCTION.. .1079
II. PROCEDURAL HISTORY... 1079
III. UNDISPUTED FACTS... 1080
IV. SUMMARY JUDGMENT STANDARDS... 1086
V. EXCESSIVE USE OF FORCE STANDARDS.. .1086
VI. EXCESSIVE USE OF FORCE ANDTASERS... 1088
VII. QUALIFIED IMMUNITY... 1089
VIII. DISCUSSION... 1090
A. Whether Deputy Hoch Used Excessive Force... 1090
B. Whether Deputy Hoch is Entitled to Qualifted Immunity... 1096
C. Whether Deputies Short and Smith are Liable for Fáiliny to Intervene . . .1097
D. Whether Sheriff Lanyenbau and Worth County Are Vicariously Liable. . .1098
F. Plaintiffs’ Loss of Consortium Claim... 1100
IX. CONCLUSION... 1100
I. INTRODUCTION
This matter is before the Court pursuant to defendants’ motion for summary judgment. Doe. 41. Plaintiffs resist the motion for summary judgment. Doc. 68. Defendants filed a reply brief. Doc. 86. On November 29, 2016, the Court heard oral argument on the motion. For the reasons that follow, the Court grants defendants’ motion for summary judgment.
II. PROCEDURAL HISTORY
On July 29, 2015, plaintiffs Larry and Cheryl Zubrod, individually, and as Administrators for the Estate of Michael Zu-brod (Zubrod), commenced this lawsuit by filing a complaint in this Court. Doc. 2. Plaintiffs generally allege that on September 22, 2013, Worth County Sheriffs deputies responded to a report of a domestic disturbance at a house in Northwood, Iowa. Inside, they encountered Zubrod attacking a woman with a hammer. Plaintiffs allege the deputies overpowered Zubrod after a struggle, during which the deputies repeatedly used a Taser on Zubrod, both before and after deputies had placed him in handcuffs. Plaintiffs allege that after handcuffing Zubrod, they discovered Zu-brod was no longer breathing. Hospital personnel later pronounced Zubrod dead.
Plaintiffs’ complaint consists of seven counts. In Count I, plaintiffs bring a Title 42, United States Code, Section 1983 claim against Deputy Shayne Hoch (Deputy Hoch) alleging a violation of Zubrod’s Fourth Amendment Rights. Doc. 2, at 5-7. In this count, which plaintiffs subtitle “First Grouping of Taser Bursts,” they allege Deputy Hoch violated Zubrod’s constitutional rights “by utilizing excessive force while punitively and sadistically using a Taser on him at length while he lay in a prone position on the ground and posed no reasonable risk of harm or safety to any officer or other individuals present.” Id., at 5-6.
In Count II, plaintiffs bring another Section 1983 claim against Deputy Hoch, again alleging a violation of Zubrod’s Fourth Amendment rights. Doc. 2, at 8-10. In this count, which plaintiffs subtitle “Second Grouping of Taser Bursts,” they allege Deputy Hoch again violated Zu-brod’s constitutional rights “by utilizing excessive force while punitively and sadistically using a Taser on him multiple times at length while he lay restrained with handcuffs and otherwise posed no reasonable risk of harm or safety to any officer or other individuals.” Id., at 8.
In Count III, plaintiffs bring a Section 1983 claim against Deputies Isaac Short (Deputy Short) and John Smith (Deputy Smith), alleging they also violated Zu-brod’s Fourth Amendment rights. Doc. 2, at 10-12. Subtitled “Bystander Liability— Failure to Intervene” in Count III, plaintiffs allege Deputies Short and Smith violated Zubrod’s constitutional rights when they observed Deputy Hoch use excessive force and failed to intervene.
In Count IV, plaintiffs bring a state law assault and battery cause of action against Deputy Hoch. Doc. 2, at 13.
In Count V, plaintiffs allege Deputies Hoch, Short, and Smith were negligent, causing Zubrod’s injuries and death. Doc. 2, at 14.
In Count VI, plaintiffs bring a claim against Sheriff Jay Langenbau (the Sheriff) and Worth County (the County), under the respondeat superior doctrine, alleging they are vicariously liable for the negligent
Finally, in Count VII, plaintiffs bring a loss of consortium claim against all defendants, alleging defendants caused plaintiffs to lose Zubrod’s services, companionship, and society. Doc. 2, at 15-16.
III. UNDISPUTED FACTS
Based on the parties’ respective filings,
Relevant Parties.
Plaintiff Larry Zubrod was a resident of Chickasaw County, Iowa, and is the father of Michael Zubrod. Cheryl Zubrod was a resident of Chickasaw County, Iowa, and is the mother of Michael Zubrod. Together, Larry and Cheryl Zubrod serve as administrators of Michael Zubrod’s estate. Defendant Deputies Hoch, Short, and Smith were all Iowa residents and employees of the Worth County Sheriffs Office. Defendant Jay Langenbau was an Iowa resident and Sheriff of Worth County. Worth County was a county corporation existing under the laws of the State of Iowa and operated the Worth County Sheriffs Office.
At the time of these events, Michael Zubrod was 5'8" and weighed 196 pounds. Deputy Short stood 5'9" and weighed approximately 155 pounds. Deputy Hoch was 5'8" or 5'9" tall and weighed between 210 and 220 pounds. Deputy Smith was 5'7" tall and weighed approximately 220 pounds. None of the deputies knew Zubrod from before this night and had no personal knowledge about his drug use or mental history.
Relevant Events.
On the night of September 22, 2013, Deputy Short was on duty patrolling in Northwood, Iowa.
At some point while entering the house, Deputy Short drew his handgun out of its holster. The house had two stories. Deputy Short did not encounter anyone on the ground floor. He heard a woman screaming from upstairs, so he climbed the stairs. Once upstairs, Deputy Short heard the screams coming from the bedroom facing the front of the house. The door to the bedroom was shut. Deputy Short tried to open the door, but it was locked. He kicked in the door.
The lights were off in the bedroom, but by moonlight coming in through the window, Deputy Short saw Zubrod standing above someone on the ground and saw that Zubrod had something in his hand. Deputy Short found a light switch and turned on the light. Deputy Short saw Rhonda Schu-kei laying face up on the ground. She was bleeding. Zubrod was above her striking her in the face with a hammer. Zubrod was himself bloody. Zubrod was screaming “die bitch, you’re gonna die!”
Deputy Short managed to radio in a “10-33” call into dispatch, which is an emergency code essentially requesting all law enforcement personnel to rush to his aid. Deputy Hoch, still en route to the house, attempted to ask Deputy Short if he was okay, but could not make out Deputy Short’s reply.
Deputy Short, still holding his handgun, yelled at Zubrod to step away from the victim. That was the last thing the victim remembered from the scene.
At this point, Zubrod grabbed a pair of needle-nose plyers from a dresser and came at Deputy Short. Zubrod began to physically fight Deputy Short. During the struggle, Deputy Short either dropped the Taser or it was knocked out of his hands. There is no evidence Deputy Short was ever able to make contact with the Taser on Zubrod’s body.
Zubrod was covered in sweat and the victim’s blood, making it difficult for Deputy Short to hold onto Zubrod. Zubrod continued to scream and yell, including “Die, bitch, you’re gonna die.” Deputy Short placed a knee on Zubrod’s chest, allowing him enough leverage to secure a handcuff on Zubrod’s left wrist. Zubrod continued to resist, however, and Deputy Short was unable to secure the handcuffs to Zubrod’s other wrist. A loose handcuff on one wrist is considered a weapon because a suspect can use it to harm another person in a straggle.
As Deputy Short continued to straggle to stay on top of Zubrod and control his hands, Zubrod taunted Deputy Short, stating that Deputy Short was getting tired but that he, Zubrod, was not. Deputy Short considered using pepper spray, but decided against it because in the enclosed space, it would affect him as much as Zubrod. Deputy Short also considered using his ASP baton, but again decided against it because if he lost control of the weapon Zubrod could use it against Deputy Short or the victim. Deputy Short straggled to stay on top of Zubrod and hold on to his wrists for about eight minutes before Deputy Hoch arrived. Deputy Short later testified that he was getting both mentally and physically tired trying to secure Zubrod.
At some point during this straggle, Deputy Short was able to radio dispatch to state there was a lot of blood and there was one person on the ground. Dispatch radioed Northwood Rescue to respond to the scene. Deputy Short radioed that medical personnel should not enter the house because he did not have Zubrod under control. When Deputy Hoch arrived at the scene, he saw rescue personnel outside Sheila Olson’s house and realized Deputy Short had incorrectly described whose house he was in when initially radioing dispatch. Deputy Hoch, however, entered the correct house and went up to the second floor. There, Deputy Hoch saw the victim covered in blood and moaning in one
Deputy Hoch ordered Zubrod to turn over and place his hands behind his back. Zubrod attempted to spit, but the spit mostly fell on Zubrod’s own face. As Deputy Short let go of Zubrod in order to handcuff him and allow Zubrod to turn over in compliance with Deputy Hoch’s order, Zubrod got lose and stood up. At this point, Zubrod and the deputies were in the other bedroom (a bedroom down the hall from the bedroom where the victim lay). Deputy Hoch pulled out his Taser and warned Zubrod that he was going to tase him if Zubrod did not comply with his commands. Zubrod came at Deputy Hoch, saying “die” and “I’m gonna kill you.” Deputy Hoch backed up. At this point, Deputy Hoch and Zubrod were only three to four feet away from each other; the ideal distance to deploy a Taser is twelve to eighteen feet. When Zubrod did not comply with commands, Deputy Hoch shot at Zubrod with the Taser. One barb hit Zubrod, but other barb hit his leather belt. A later autopsy would reveal that this second barb did not come into contact with Zubrod’s skin. Without contact by both barbs, the Taser had no effect on Zubrod.
At this point, the fight continued, and both deputies went “hands on” Zubrod, meaning both of them attempted to use their hands to physically control Zubrod. Deputy Hoch was pushed back into a window. Either as a result of breaking the window or from a prior break, there was some glass on the floor.
At approximately 11:40 p.m., Deputy Smith arrived. Deputy Smith could hear scuffling over Deputy Short’s and Hoch’s radios. Deputy Smith entered the. house and went upstairs where he saw Deputies Short and Hoch hands-on with Zubrod. The Deputies had Zubrod on his back on a pile of clothes at this time. Zubrod was actively resisting the deputies, kicking out and flailing one arm with a handcuff attached to it. Deputy Hoch instructed Deputy Smith to use his Taser on Zubrod.
All three deputies then went hands-on with Zubrod again, attempting to control him through brute force. During this struggle, Deputy Hoch was able to load another cartridge into his Taser. Deputy Hock shot Zubrod with the Taser in Zu-brod’s thigh at close range. Because the barbs entered Zubrod’s skin very close to each other, the Taser could not cause neu-romuscular incapacitation. All three deputies continued to struggle with Zubrod to get him under control.
By this time, at least some rescue personnel had entered the house and climbed the stairs to the second floor to attend to the victim.
Deputy Hoch then tried to use his Taser in drive-stun mode. This involves placing the barrel of the Taser directly against the suspect’s body. Drive-stun mode causes a burning sensation, as opposed to neuro-muscular incapacitation, and is used as a method of pain compliance. Because the barbs were still attached to Zubrod, however, when Deputy Hoch tried to use the Taser in drive-stun mode, it was effectively used in a hybrid mode that could, in theory, cause neuromuscular incapacitation. Deputy Hoch attempted to place the Taser against Zubrod’s body and pulled the trigger multiple times, all the while ordering Zubrod to comply with commands to turn over so deputies could handcuff him. Zu-brod continued to resist, attempting to push the Taser away from him, and refusing to comply with commands. Ultimately, the deputies were able to handcuff Zubrod behind his back. Deputy Hoch then left the house to get foot shackles to secure Zu-brod’s feet.
Records from Deputy Hoch’s Taser indicates he pulled the trigger ten times for a total of 53 seconds during a period of three minutes and fifteen seconds during the struggle. Because Zubrod was attempting to push the Taser away from him at the same time, it is not known how many times the Taser had contact with Zubrod when Deputy Hoch pulled the trigger. At no point, however, did the Taser cause neuro-muscular incapacitation.
The Court has reviewed the video from Deputy Hoch’s and Deputy Smith’s Ta-sers. It is difficult to obtain a clear view from the videos. Both Tasers are understandably moving constantly, and the images are sometimes very close to objects and other times farther away. At one point
A short time later, deputies noticed Zu-brod was not breathing. At approximately 12:09 a.m., a call was made for another ambulance and CPR was started on Zu-brod. Rescue personnel took Zubrod to Mercy Medical Center where at 1:17 a.m., he was pronounced dead. Following an autopsy, Medical Examiner Jonathon Thompson opined that the cause of death was “cardiac arrhythmia following altercation with police in the setting of acute methamphetamine intoxication.” The Medical Examiner opined that “[t]he role the conduced energy device (Taser) played in the death is unknown.”
During the autopsy, the Medical Examiner found two sets of Taser burn injuries on Zubrod’s body, and punctures by three Tazer barbs (two in the thigh close together, and on in his arm). He opined that it was unlikely, but possible, that marks on Zubrod’s left chest area were Taser burns. The Medical Examiner also found a Taser barb connected to Zubrod’s leather belt. Although that barb penetrated the belt, there was no indication it punctured Zu-brod’s underlying jeans, underwear, or skin.
The Medical Examiner opined that the Taser might have played a role in Zubrod’s death. Plaintiffs’ expert, Dr. Daniel Spitz, opined that the repeated use of the Taser on Zubrod was a contributing factor in his death. Dr. Spitz identified three Taser burns on Zubrod’s body.
A toxicology analysis showed methamphetamine and methamphetamine metabolite, as well as naloxone, in Zubrod’s blood. Later investigation revealed that Zubrod was high on methamphetamine on the night of September 22, 2013, and had been using more methamphetamine during September 2013 than he usually did.
The standard time used in lab testing of a Taser is 15 seconds, and no test exceeded 45 seconds. The Taser company provides warnings on the use of a Taser, which were reflected in the Worth County’s Taser policy in September 2013. It warns that using the Taser in drive-stun mode for pain compliance may have no effect on a mentally disturbed person. It also warns that the cumulative exposure to a Taser may cause an increased risk of death or serious injury. Finally, it warns these risks may be enhanced in individuals under the influence of drugs.
Summary judgment is appropriate when the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (2016). A movant must cite to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ... admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett,
The party moving for summary judgment bears “the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue.” Hartnagel,
In determining whether a genuine issue of material fact exists, courts must view the evidence in the light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences that can be drawn from the facts. Matsushita,
V. EXCESSIVE USE OF FORCE STANDARDS
The Fourth Amendment’s prohibition against unreasonable searches and seizures includes the right to be free from law enforcement officers using excessive
“To establish a constitutional violation under the Fourth Amendment’s right to be free from excessive force, the test is whether the amount of force used was objectively reasonable under the particular circumstances.” Henderson v. Munn,
The reasonableness inquiry is an objective one: “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Graham,
The degree of injury suffered by the plaintiff “is certainly relevant insofar as it tends to show the amount and type of
VI. EXCESSIVE USE OF FORCE AND TASERS
The case law analyzing whether the use of a Taser during an arrest constitutes excessive force has evolved over time as use of the technology has become more commonplace. Generally speaking, the case law draws a distinction between the use of a Taser against a person passively resisting arrest and one who is physically resisting arrest. Courts have generally found use of a Taser against an arrestee who is only passively refusing to comply with officers’ commands constitutes an excessive use of force.
For example, in Brown v. City of Golden Valley,
On the other hand, courts have found the use of a Taser against an arres-tee who is actively and physically resisting arrest does not constitute an excessive use of force. As the Sixth Circuit Court of Appeals concisely concluded: “[c]ases from this circuit and others, before and after May 2007, adhere to this line: If a suspect actively resists arrest and refuses to be handcuffed, officers do not violate the Fourth Amendment by using a taser to subdue him.” Hagans v. Franklin Cty. Sheriffs Office,
For example, in De Boise v. Taser Int’l, Inc.,
Although we have determined that nonviolent, non-fleeing subjects have a clearly established right to be free from the use of tasers, [] we have yet to determine whether a violent subject, acting aggressively toward officers, has a clearly established right to be free from multiple tasings.... Indeed, in-2008, case law related to the use of tasers was still developing.... And, Appellants point to no previous ease that could be said to have clearly established the unconstitutionality of the officers’ actions here. Accordingly, the state of the law would not have placed “an officer on notice that he must limit the use of his taser in certain circumstances, even though the subject continues to struggle and resist.”
De Boise,
Cases have also addressed the use of Tasers in the so-called drive-stun mode. Generally, the courts have found law enforcement officers can use a Taser in drive-stun mode, even against a passively resisting suspect in order to obtain compliance. For example, in Abbott v. Sangamon Cty., Ill.,
VII. QUALIFIED IMMUNITY
Even if a court finds officers use excessive force in effectuating an arrest, it does not end the inquiry. Law enforcement officers are entitled to qualified immunity unless they violate “clearly established statutory or constitutional rights.” Harlow v. Fitzgerald,
Thus, in determining whether a law enforcement officer is entitled to qualified immunity, “[t]he relevant inquiry is whether existing precedent placed the conclusion that [the officer] acted unreasonably [under the circumstances] ‘beyond debate.’ ” Mullenix v. Luna, — U.S. -,
VIII. DISCUSSION
There are several questions the Court must answer to determine if summary judgment is appropriate. First, did Deputy Hoch use excessive force by use of his Taser at any point during his encounter with Zubrod. Second, if Deputy Hoch did use excessive force, is he, nevertheless, entitled to qualified immunity? Third, if Deputy Hoch did use excessive force, are Deputies Short and Smith liable for failing to intervene? Fourth, should the Court find the Sheriff or Worth County vicariously liable for the deputies’ conduct. Fifth, if the Court finds summary judgment appropriate on plaintiffs’ Section 1983 claims, should it exercise jurisdiction over the remaining state law claims? Finally, what happens to plaintiffs’ loss of consortium claim if the Court grants summary judgment on the underlying federal counts? The Court will address each issue in turn.
A. Whether Deputy Hoch Used Excessive Force
The first question is whether there is a genuine issue of material fact about whether Deputy Hoch used excessive force in the use of a Taser while attempting to place Zubrod under arrested. Considering the totality of the circumstances in the light most favorable to plaintiff, the Court finds there is no genuine issue of material fact, and that Deputy Hoch did not use excessive force.
This case involved efforts by officers to arrest a man for attempted murder after
After Deputy Hoch arrived, a tense, uncertain, and rapidly evolving and uninterrupted physical struggled ensued as deputies fought with Zubrod to place him in custody. Throughout this time, Zubrod posed a danger to the deputies, the medical responders, and the victim. And the nature of the criminal conduct was as serious as it gets; attempted murder.
At argument, plaintiffs suggested there was a time after Deputy Hoch’s arrival when it should have been clear to him and the other deputies that using a Taser in any mode against Zubrod was so clearly wrong that they should have known it violated Zubrod’s constitutional rights. In particular, plaintiffs allege that pivotal point occurred when, toward the end of the struggle, Zubrod was on his back in the bedroom and Deputy Hoch used his Taser in a hybrid drive-stun mode in an effort to get Zubrod to comply with the deputies’ efforts to place him in handcuffs. Further, plaintiffs allege that Deputy Hoch continued to use a Taser against Zubrod after he was in handcuffs.
First, the Court finds that the circumstances of this case involved a fluid and continuous resistance by Zubrod to any efforts to place him under arrest. The amount of physical resistance ebbed and flowed throughout the struggle, but he was never compliant and never passive and never obeyed the deputies’ commands. There is no question here, and plaintiffs do not seriously contend otherwise, that the deputies were justified in using a Taser when they first encountered Zubrod. And Zubrod continued to resist arrest, sometimes more aggressively than other times, but always resisting. Once officers are justified in using force, as they were here, they can continue to use force until the threat has been neutralized. Plumhoff v. Rickard, — U.S. -,
The Court can find no bright line during this intense struggle, while a woman lay severely wounded in another room, where any reasonable officer should have concluded that the nature of Zubrod’s resistance had changed in such a material re
This Court will not accept plaintiffs’ invitation to review this case with 20/20 hindsight and second guess the deputies’ split-second decisions during this struggle with Zubrod. Whether the deputies could have, for example, overpowered Zubrod through brute force without the use of a Taser is not the question. See Estate of Morgan v. Cook,
Furthermore, the Court does not believe any reasonable jury could find on these facts that Deputy Hoch continued to use a Taser on Zubrod after he was handcuffed. There is no direct evidence that deputies used a Taser against Zubrod after he was handcuffed. The deputies are consistent in their testimony that Zubrod was not Ta-sered after he was handcuffed. No witness claims to have seen deputies using a Taser against Zubrod after he was handcuffed.
Rather, plaintiffs rely on circumstantial evidence to argue there is a genuine issue of material fact whether deputies used a Taser against Zubrod after he was handcuffed. Plaintiffs argue that, at some point during the video from Deputy Hoch’s Ta-ser, Zubrod’s hands cannot be seen, which in the light most favorable to plaintiffs gives rise to the conclusion that Zubrod’s hands were not visible because he was handcuffed. This is pure speculation. Viewing the facts in the light most favorable to the nonmoving party, however, does not obligate the Court to accept speculation. See Brown v. Fortner,
Plaintiffs also rely on two, unsworn statements by paramedics who claim Deputy Short escorted them upstairs, and while climbing the stairs, they heard a
In assessing excessive use of force, the Court must consider the outcome of the use of force. Here, in the light most favorable to plaintiffs, the evidence would establish that a Taser can have some impact in increasing heart rate and causing other physiological changes that, combined with Zubrod’s heart condition and methamphetamine intoxication and physical altercation with the deputies, contributed to his death. Even accepting this causal chain as true, the Court does not find this factor leads to the conclusion that Deputy Hoch’s use of the Taser constituted excessive use of force. The Taser was, at most, a contributory factor in Zubrod’s death, which appears primarily to be the result of his long-term abuse of methamphetamine that caused him to have an enlarged heart and his acute methamphetamine intoxication. This is not the type of causal linkage that could lead a reasonable jury to conclude that using a Taser on Zubrod constituted an excessive use of force.
Plaintiffs emphasize that Zubrod had a history of mental illness and was high on methamphetamine when deputies used a Taser on him, and that made its use excessive. Plaintiffs argue that the deputies knew, or should have known, that Zubrod’s behavior could only be explained by the fact he was mentally ill and/or high on a drug. Plaintiffs further argue that Taser warnings indicate, and the deputies knew from training, that Tasers may not be effective on subject suffering from mental illness or high on drugs, and that Tasers may cause greater injury to a person un
Finally, plaintiffs emphasize the number of Taser deployments within a short window of time and argue that it was excessive, in part because it exceeded the number and duration used in any lab testing of Tasers. First, although the uncontested facts show that the deputies attempted to use a Taser against Zubrod more than a dozen times, it does not establish how many times they were successful. When Deputy Short deployed his Taser against Zubrod, he missed. Deputy Short also did not succeed in using his Taser against Zubrod in drive-stun mode before Zubrod knocked the Taser out of Deputy Short’s hand or Deputy Short dropped it. Similarly, the first time Deputy Hoch deployed his Taser, no connection was made because one of the two barbs hit Zubrod’s leather belt. The medical examiner’s report shows there was no indication these barbs made contact with Zubrod’s skin. Plaintiffs again engage in impermissible speculation by asserting that a barb can conduct electricity when it is close to a body, even if it is not in contact with the skin. Although this may be true in theory, there is no evidence in this record that it occurred here. The uncontested evidence also established that Deputy Smith’s Taser malfunctioned. Finally, although Deputy Hoch was able to deploy his Taser and hit Zubrod in the leg, the barbs were too close to cause neuro-muscular incapacitation. Deputy Hoch then attempted to use his Taser in drive-stun mode while the barbs were still attached, which in this hybrid deployment could, in theory, cause neuromuscular incapacitation. The uncontested facts establish, however, that Zubrod never experienced neuromuscular incapacitation. It is also uncontested that as Deputy Hoch attempted to deploy his Taser in drive-stun mode, Zubrod attempted to push it away from his body. So, in the end, it is unclear how many of the trigger pulls actually occurred when the Taser had contact with Zubrod’s body. Taking the evidence in the light most favorable to plaintiffs, however, the Court will assume that Deputy Hoch’s Ta-ser had contact with Zubrod on each of the ten trigger pulls registered on his Taser. The Court still does not find this to constitute an excessive use of force because Zu-brod continued to resist arrest after having attempted to murder a woman in the next room. See, De Boise,
On December 16, 2016, plaintiffs filed a Notice of Additional Authority (Doc. 90). Plaintiffs cite Moore v. City of Ferguson, Missouri, No. 4:14-CV-1443 SNLJ,
In Moore, the court stated that the officers’ version of the events “makes the use of force sound reasonable ... but the data from the Taser itself tells a somewhat different story.” Id. at 1144,
In arriving at the conclusion that Deputy Hoch did not use excessive force, the Court has taken into account the circumstances existing throughout Deputy Hoch’s contact with Zubrod. A woman lay bloody and moaning in an adjoining bedroom and Zubrod continued to make statements about killing her. The admissible evidence shows that Zubrod had a single handcuff on one wrist; it is uncontested that a suspect with only one handcuff attached poses a danger to law enforcement officers because it can be used as a weapon. Zu-brod continued to resist officers physically, kicking at them and swinging at them, including with a curtain rod. Zubrod refused to comply with deputies’ commands to allow them to place him in handcuffs. And Zubrod was never incapacitated by the use of the Taser at any point. Until Zubrod was secured in handcuffs, he continued to pose a safety threat both to the victim and to the deputies.
The Court has also considered plaintiffs’ various assertions that factual disputes exist about various details, such as whether Zubrod was sitting or standing when swinging the curtain rod. The Court finds the facts set forth above are the material facts relevant to whether Deputy Hoch used excessive force. Whether there are
In summary, the Court finds that the Graham factors demonstrate that Deputy Hoch did not use excessive force. The severity of the crime Zubrod committed, attempted murder, was extremely severe. Zubrod posed an immediate threat to the deputies, medical personnel, and the victim. Finally, Zubrod was neither passive, nor fleeing; he was actively resisting arrest. This is precisely the type of case where courts cannot use 20/20 hindsight to second-guess law enforcement officers’ split-second decision making during a fluid and evolving effort to arrest a violent and resisting suspect who attempted to murder a woman. This is a case where Deputy Hoch’s use of a Taser in these circumstances was objectively reasonable. Therefore, the Court grants summary judgment in favor of defendant Deputy Hoch with respect to Counts I and II of plaintiffs’ complaint.
B. Whether Deputy Hoch is Entitled to Qualified Immunity
Should a higher court find this Court erred in its conclusion that Deputy Hoch did not use excessive force, then the analysis turns to whether Deputy Hoch is nevertheless entitled to qualified immunity. In other words, even if a court now finds Deputy Hoch used excessive force, he is still immune from suit if it was not clearly established at the time of his conduct that it constituted a violation of Zubrod’s constitutional rights. As the Eighth Circuit Court of Appeals has explained;
To determine the question of qualified immunity, we engage in the following two-part inquiry: (1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant’s alleged misconduct.... Courts have discretion to decide which part of the inquiry to address first.
De Boise,
The pertinent question in the second part of the inquiry is whether in September 2013, “it would be clear to a, reasonable officer that his conduct was unlawful in the situation he confronted.” Shekleton v. Eichenberger,
Plaintiffs have cited no case holding that a law enforcement officer’s use of a Taser in the situation facing Deputy Hoch was a clear violation of law, let alone that such law clearly existed in September 2013. Rather, plaintiffs argue that use of a Taser on a non-resisting individual violates a clearly established right. Doc. 68, at 14.
A law enforcement officer “cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the [officer’s] shoes would have understood that he was violating it.... In other words, ‘existing precedent must have placed the statutory or constitutional question’ confronted by the official ‘beyond debate.’ ” Plumhoff,
Accordingly, the Court finds that Deputy Hoch is entitled to qualified immunity, even if a higher court concludes, in hindsight, that his use of a Taser multiple times against Zubrod in these circumstances constituted excessive force. If it did, the law was not so clearly established in September 2013 that a reasonable officer in Deputy Hoch’s shoes would have clearly understood that his conduct was unlawful. Therefore, the Court alternatively grants summary judgment in favor of defendant Deputy Hoch with regard to Counts I and II of plaintiffs’ complaint because he is entitled to qualified immunity-
C. Whether Deputies Short and Smith are Liable for Failing to Intervene
The third issue before the Court is whether Deputies Short and Smith are liable if Deputy Hoch used excessive force because they failed tó intervene. The Court finds they are not.
Deputies Short and Smith can be liable for injuries to Zubrod only if they breached a duty to intervene where they observed Deputy Hoch violating Zubrod’s constitutional rights. “[A]n officer who fails to intervene to prevent the unconstitutional use of excessive force by another officer
There is nothing in this record that would support a finding of liability for nonfeasance by Deputies Short and Smith. The Court found, above, that Deputy Hoch did not use excessive force against Zubrod. Therefore, logic dictates that Deputies Short and Smith cannot be held liable for failing to intervene where no constitutional violation occurred. See Hollingsworth v. City of St. Ann,
Even assuming the Court is wrong and a higher court concludes Deputy Hoch used excessive force against Zubrod, the evidence does not support a finding that Deputies Short and Smith are liable for failing to intervene. With regard to Deputy Short, the evidence established that he was so mentally and physically exhausted, and so engaged in the continued struggle to control Zubrod, that he did not hear Deputy Hoch using the Taser against Zubrod during the time Zubrod was on his back resisting the deputies. Even assuming Deputy Short was or should have been aware of Deputy Hoch using a Taser against Zu-brod, the situation facing Deputies Short and Smith was a fluid and continuing struggle to control Zubrod as he actively resisted arrest. The Court simply cannot find that any reasonable jury would conclude that a reasonable officer in Deputies Short’s or Smith’s shoes would recognize that Deputy Hoch was violating Zubrod’s constitutional rights. Nor is there a basis for a reasonable jury to conclude that Deputies Short or Smith had an opportunity to intervene in the midst of their own struggle to obtain control over Zubrod, even if they recognized a constitutional violation. See Robinson v. Payton,
Alternatively, the Court finds that Deputies Short and Smith are entitled to qualified immunity for the same reasons it finds, alternatively, that Deputy Hoch is entitled to qualified immunity. The law regarding the use of a Taser against a subject who was physically resisting arrest was not so clearly established in September 2013 that these deputies could have so clearly known that Deputy Hoch was violating Zubrod’s constitutional rights that it triggered an obligation to intervene.
Accordingly, the Court grants summary judgment in favor of defendants Deputies Short and Smith with respect to Count III of plaintiffs’ complaint.
D. Whether Sheriff Langenbau and Worth County Are Vicariously Liable
In Count VI of their complaint, plaintiffs claim Sheriff Langenbau and Worth County are vicariously liable for the actions of Deputies Hoch, Short, and Smith. Doc. 2, at 14. Read broadly, this count- asserts vicarious liability not only with respect to the state law negligence claim (Counts IV & V), but with respect to the Section 1983 claims against the deputies in Counts I through III. Accordingly, the Court will address whether, under Section 1983, the
The doctrine of respondeat superior provides that an employer is liable for the conduct an employee committed while the employee is acting within the scope of employment. Godar v. Edwards,
Respondeat superior cannot be a basis of liability, however, under Section 1983. See, e.g., Parrish v. Ball,
In any event, the Court has found that none of the deputies violated Zubrod’s constitutional rights. The Eighth Circuit Court of Appeals has “long held that neither municipal nor supervisory liability may attach in section 1983 actions unless individual liability is first found on an underlying substantive claim.” Schoettle,
Accordingly, the Court grants summary judgment to the extent plaintiffs’ Count VI alleges the Sheriff and County are vicariously liable for the deputies’ violations of Zubrod’s constitutional rights pursuant to their § 1983 claims in Counts I through III. The Court declines to address the Sheriffs and County’s vicarious liability for the deputies’ alleged assault and battery (Count IV) or negligence (Count V) because, as explained below, the Court declines to exercise jurisdiction over plaintiffs’ state law claims.
E. Jurisdiction Over Plaintiffs’ State Law Claims
In Count IV, plaintiffs make a state law claim alleging Deputy Hoch committed assault and battery, and in Count V, plaintiffs make a state law claim alleging Deputies Hoch, Short, and Smith were negligent. Jurisdiction over plaintiffs’ state-law claims—which would be the only claims remaining because the Court has granted summary judgment with respect to the remaining Counts—was invoked solely pursuant to the supplemental jurisdiction statute, 28 U.S.C. § 1367. Section 1367 provides a federal court with jurisdiction over state-law claims forming part of the same “ease or controversy” as the federal claims. Having disposed of all of plaintiffs’ federal claims, the Court declines to exercise supplemental jurisdiction over his state-law claims. See 28 U.S.C. § 1367(c)(3) (court may, sua sponte, decline to exercise supplemental jurisdiction
F. Plaintiffs’ Loss of Consortium Claim
In Count VII, plaintiffs made a claim for loss of consortium. The tort of loss of consortium cannot lie against a defendant when the defendant is not liable to the plaintiffs. See James ex rel. James v. Burlington Northern, Inc.,
IX. CONCLUSION
For the reasons set forth herein, the Court grants defendants’ motion for summary judgment (Doc. 41):
1. Plaintiffs’ claims pursuant to Title 42, United States Code, Section 1983 against all defendants (Counts I, II, and III) are hereby dismissed with prejudice;
2. Plaintiffs’ claims in Counts VI and VII, to the extent they assert causes of action dependent on plaintiffs’ Section 1983 claims, are also hereby dismissed with prejudice;
3. The Court exercises its discretion under 28 U.S.C. § 1367(c)(3), declines jurisdiction over the plaintiffs remaining state law claims (Counts IV, V, VI, & VII). Accordingly, plaintiffs’ state law claims in Counts IV, V, VI and VII are dismissed without prejudice.
IT IS SO ORDERED this 8th day of January, 2017.
Notes
.Plaintiffs objected to a number of defendants’ statements of undisputed fact, arguing they failed to comply with Local Rule 56(a), which provides: "Each individual statement of material fact must be concise [and] numbered separately...." LR 56(a). Plaintiffs argue that many of defendants' numbered paragraphs contain numerous statements and asks the Court to strike these statements. The Court denies plaintiffs’ requests. Defendants' statements of undisputed facts are relatively concise (though many contain gratuitous descriptions and conclusions) and substantively comply with the letter and spirit of Local Rule 56(a).
. Deputy Short was a relatively new law enforcement officer, having been on the force only a few months and was not yet certified because he had not yet attended the law enforcement academy. He had received only 45 days of field training and had been conducting solo patrols since the middle of July.
. Rhonda Schukei’s house (location of the events at issue) was very close to Sheila Olson’s house.
. The victim, Rhonda Schukei, underwent twenty hours of reconstructive surgery to repair her shattered face; she continues to suffer brain damage from the attack.
. Plaintiffs insist that Deputy Short hit Zu-brod with both Taser barbs. Doc. 68-2, ¶ 29. The Court finds no support in plaintiffs’ citations to the record to support this assertion. In any event, it is not material as it is undisputed that whether Deputy Short hit Zubrod with one or two Taser barbs, Deputy Short did not successfully tase Zubrod.
.Plaintiffs claim Deputy Short "was able to drive stun Michael Zubrod on the upper left torso.” Doc. 68-2, ¶ 33. Again, the Court
. Plaintiffs claim Deputy Short "maintained a position of control over Michael Zubrod until Hoch arrived to the second floor of Schukei's residence.” Doc. 68-2, ¶ 42. See also Doc. 68-2, ¶ 43 (“When Hoch arrived, Short had Michael Zubrod under control....”); Doc. 68-2, ¶47 (“Despite Short having good control over Michael Zubrod, Hoch sought to drive stun Michael Zubrod after seeing Schukei’s condition.”). The Court does not find that plaintiffs’ citations to the record support a finding that Deputy Short ever had Zubrod under control. Deputy Short, through extreme effort, was able to keep Zubrod on the ground, prevent Zubrod from stabbing him with plyers, and protect the victim, but at best, Deputy Short had ahold of Zubrod’s wrists. The lack of "control” is reflected by the uncontested fact that Deputy Short was only ever able to secure handcuffs to only one of Zubrod’s wrists.
. There is a factual dispute about whether Deputy Hoch broke the window during this struggle and whether there was actually glass on the floor. Plaintiffs also dispute that there was glass on the floor. For purposes of summary judgment, the Court finds these facts immaterial.
. Plaintiffs assert that "Smith attempted to use his Taser, at Hoch's request, on Michael Zubrod while Michael Zubrod was restrained on the ground wrapped in a curtain.” Doc. 68-2, ¶ 61. The Court finds no support for this factual assertion in plaintiffs’ record citations.
.Deputy Hoch recalls Zubrod seated on the ground when he was swinging the curtain rod. For purposes of summary judgment, the Court finds it immaterial whether Zubrod was standing or sitting when swinging the curtain rod.
. In statements to law enforcement officers and in depositions, there are some factual inconsistencies regarding which deputies were trying to control Zubrod's feet and which were trying to control his upper body. The Court finds these factual disputes immaterial; this struggle was fluid and who was attempting to control Zubrod’s feet at any given time is irrelevant.
. Deputy Short testified that, ideally, law enforcement personnel would not allow rescue personnel into a scene until they had control of a dangerous suspect. Plaintiffs argue that the circumstantial evidence shows that rescue personnel did not enter the house until the deputies had Zubrod handcuffed and at that point, the rescue personnel heard a Taser being deployed. As will be explained later, the Court does not find there is admissible evidence or factual support for this conclusion. Plaintiffs’ position is also inconsistent with their admission that rescue personnel were in the house attending to the victim in one room while the deputies were still fighting to control Zubrod in another room. Doc. 68-1, ¶ 53.
. Indeed, the Court agrees with defendants that many of plaintiffs’ statements of additional material facts (Doc. 68-2) are patently unsupported and, in some cases, directly contradicted by the record. See Defendants' Response to Plaintiffs’ Statement of Additional Material Facts (Doc. 86-1).
. In their statement of additional material facts (Doc. 68-2), plaintiffs devoted a large number of paragraphs to the training the deputies received or did not receive regarding tasers. Because plaintiffs have made no claim of fault based on training, the Court did not include those facts in its findings.