United States District Court, D. Utah, Central Division
THOMAS J. NAUMAN, Plaintiff,
UTAH HIGHWAY PATROL, NEIL EKBERG, Defendants.
Magistrate Judge Dustin B. Pead
ORDER ADOPTING REPORT AND RECOMMENDATION
Waddoups United States District Judge
case was assigned to United States District Court Judge Clark
Waddoups, who then referred it to United States Magistrate
Dustin B. Pead under 28 U.S.C. § 636(b)(1)(B). (Dkt. No.
19.) On July 31, 2010, Defendant Trooper Neil Ekberg of the
Utah Highway Patrol arrested Plaintiff Thomas J. Nauman on
suspicion of driving under the influence (DUI). (Dkt. No. 53,
pp. 1-2.) On July 31, 2014, Mr. Nauman filed a complaint in
this court alleging Trooper Ekberg injured Mr. Nauman's
shoulder while Trooper Ekberg transported him into the jail
for processing after the arrest. (See Dkt. No. 1;
see also Dkt. No. 23, p. 2; Dkt. No. 34, p. 2.) Mr.
Nauman moved for summary judgment on his claims, (Dkt. No.
23), and Trooper Ekberg moved for summary judgment based on
qualified immunity, (Dkt. No. 26). Mr. Nauman also filed a
motion to add additional punitive damages, (Dkt. No. 40).
August 31, 2016, Judge Pead issued a Report and
Recommendation recommending the court deny Mr. Nauman's
motion for summary judgment and motion to add additional
punitive damages and grant Trooper Ekberg's motion for
summary judgment. (See Dkt. No. 53.) Mr. Nauman
objected to Judge Pead's Report and Recommendation, (Dkt.
Nos. 54, 55 & 57), and Trooper Ekberg also responded,
(Dkt. No. 55). Along with his objections, Mr. Nauman filed a
request for Judge Pead's recusal from this case. (Dkt. No
57.) The court has carefully reviewed all of the filings and
the record in the case de novo. On January 4, 2017,
the court heard oral argument, during which Mr. Nauman was
allowed to fully explain his claims and objections to the
Report and Recommendation. For the reasons explained below,
the court APPROVES AND ADOPTS Judge Pead's Report and
Recommendation in its entirety.
with Judge Pead's treatment of the case, the court
liberally construes Mr. Nauman's filings and holds them
to a “less stringent standard than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quotations and citation omitted). But the
court does not “take on the responsibility of serving
as the litigant's attorney in constructing arguments and
searching the record.” Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
de novo review of the record and the parties'
filings, the court agrees with Judge Pead's reasoned
conclusion that qualified immunity protects Trooper Ekberg
from this suit. (See Dkt. No. 53.) “Qualified
immunity is ‘an immunity from suit rather than a mere
defense to liability.'” Pearson v.
Callahan, 555 U.S. 223, 237 (2009) (quoting Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985)). Qualified
immunity provides broad protection, shielding “all but
the plainly incompetent or those who knowingly violate the
law.” Malley v. Briggs, 475 U.S. 335, 341
(1986). On a motion for summary judgment, the court generally
views the evidence in the light most favorable to the
nonmoving party. Amundsen v. Jones, 533 F.3d 1192,
1198 (10th Cir. 2008). “When the defendant seeks
summary judgment on the basis of qualified immunity, however,
the plaintiff bears the initial burden of proving that: (1)
the officer's actions violated a constitutional right,
and (2) this right was clearly established at the time of the
conduct at issue.” Id. (citing Nelson v.
McMullen, 207 F.3d 1202, 1206 (10th Cir. 2000)). Where
the defendant's alleged actions, even if proven, did not
violate a constitutional right, the court need go no further
in its qualified immunity analysis and may grant summary
judgment. See Cortez v. McCauley, 478 F.3d 1108,
1114 (10th Cir. 2007).
Nauman has not provided evidence on which a reasonable juror
could conclude that Trooper Ekberg's actions constituted
excessive force in violation of Mr. Nauman's Fourth
Amendment rights. As Judge Pead notes, even accepting the
facts in the light most favorable to Mr. Nauman, Trooper
Ekberg reasonably accommodated Mr. Nauman's medical
ailments by handcuffing him in front of his body. (Dkt. No.
53, p. 6.) Later, at the crucial moment of the shoulder
injury, Trooper Ekberg immediately released Mr. Nauman's
arm upon Mr. Nauman's complaint that his arm
“doesn't go that way.” (Id.) Thus,
considering Trooper Ekberg's actions as Mr. Nauman
himself describes them, Mr. Nauman has not shown that Trooper
Ekberg's action in pulling Mr. Nauman's arm violated
his Fourth Amendment rights.
objection, Mr. Nauman also challenges his initial arrest on
suspicion of DUI. (Dkt. No. 56, p. 8.) Judge Pead did not
analyze the constitutionality of Mr. Nauman's initial
arrest and handcuffing because Mr. Nauman's opposition to
summary judgment did not appear to challenge the initial
arrest and Mr. Nauman testified during his deposition that he
did not believe the initial arrest violated his rights.
(See Dkt. No. 53, p. 4 n.2.) The court concludes,
however, that the initial stop and subsequent arrest were
justified as a matter of law because Trooper Ekberg had
reasonable suspicion that Mr. Nauman was impaired. As Judge
Pead recites, Trooper Ekberg observed Mr. Nauman committing
traffic violations, including failing to stop at a stop sign,
failing to signal before turning, and failing to pull over
when Trooper Ekberg activated the flashing lights on his
police car. (Dkt. No. 53, p. 1.) The Tenth Circuit has
stated, “our precedent counsels that driving conduct
alone can establish reasonable suspicion of impairment, and
thus, no additional indicium of intoxication is necessary to
justify a roadside sobriety test.” Amundsen,
533 F.3d at 1200 n.4. During the stop, Trooper Ekberg
observed conduct that provided additional evidence of
impairment. Mr. Nauman stated he took morphine earlier that
day. (Dkt. No. 53, p. 1.) Trooper Ekberg administered field
sobriety tests, which Mr. Nauman failed. (Id.) The
law does not require Trooper Ekberg to adopt an innocent
interpretation of Mr. Nauman's driving and subsequent
behavior where the facts as a whole reasonably suggested Mr.
Nauman was impaired. See United States v. Arvizu,
534 U.S. 266, 277 (2002) (“A determination that
reasonable suspicion exists, however, need not rule out the
possibility of innocent conduct.”). The court has
reviewed the dash camera video of the stop, (Dkt. No. 29),
and agrees with Mr. Nauman that his speech did not appear
slurred. Nevertheless, as discussed above, Trooper Ekberg
observed other indicia of impairment and, at the very least,
“received no clear refutation of the earlier suspicion
of intoxication.” Amundsen, 533 F.3d at 1200.
Accordingly, Mr. Nauman has failed to demonstrate that his
initial arrest violated the Fourth Amendment.
court understands that, from his perspective, Mr. Nauman
believes he was treated harshly. Indeed, Mr. Nauman's
encounter with Trooper Ekberg appears to have been
life-changing for Mr. Nauman and his family. Nevertheless,
the evidence presented shows Mr. Nauman is without grounds to
challenge that Trooper Ekberg acted appropriately within the
mandates of the Constitution and the discretion granted to
officers to carry out their duties.
Nauman cites an assistant prosecutor's statements
apologizing for the arrest, another driver's allegedly
worse driving, the absence of slurred words during the stop,
and allegations of misconduct by officers who are not a part
of this case as evidence that Trooper Ekberg violated his
civil rights. (See Dkt. Nos. 54 & 56.) Mr.
Nauman also asserts that the Utah Attorney General's
Office has hindered his collection of testimony from other
officers at the jail, a circumstance which Defendant's
counsel vigorously disputes. Unfortunately, these points are
immaterial to the court's finding that qualified immunity
protects Trooper Ekberg from suit here.
for the reasons stated in Judge Pead's Report and
Recommendation, (Dkt. No. 53), and the court's additional
analysis of the facts and law above, the court hereby ORDERS
• Mr. Nauman's Motion for Summary Judgment (Dkt. No.
23) is DENIED.
• Trooper Ekberg's Motion for Summary Judgment (Dkt.
No. 26) is GRANTED and Mr. Nauman's claims against the
Defendants are therefore dismissed.
the court DENIES Mr. Nauman's Motion to Add Additional
Punitive Damages (Dkt. No. 40). The court does not condone
counsel's failure to obtain Mr. Nauman's stipulation
to an extension in advance of filing the motion as stipulated
and failure to correct the misunderstanding thereafter. The
court recognizes, however, that counsel made good faith
attempts to obtain a stipulation and was relying on a record
of other stipulated extensions. (See Dkt. No. 55,
pp. 3-4.) Additionally, the court finds no prejudice accrued
to Mr. Nauman by the mistaken stipulation or the extension
itself. Trooper Ekberg's counsel did not ...