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Torbett v. The City of Ogden

United States District Court, D. Utah, Northern Division

October 11, 2018

HAROLD MARK TORBETT A.KA. MARK TORTBETT and REGINA TORTBETT, Plaintiffs,
v.
THE CITY OF OGDEN, OGDEN CITY POLICE DEPARTMENT, CODY MARSH, Z. MARTIN, T. WILLIAMS, Defendants.

          MEMORANDUM DECISION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          Bruce S. Jenkins, United States District Court Judge

         BACKGROUND

         Plaintiff and his wife filed this action against Defendants under 42 U.S.C. § 1983 on April 11, 2016. On March 19, 2018, Defendants filed a motion for summary judgment, raising qualified immunity, and a motion in limine. In turn, Plaintiff filed oppositions on April 19, 2018, and Defendants replied on May 8, 2018. This matter came before the court for hearing on May 18, 2018. At the hearing, the court granted Defendants' summary judgment motion as to the City of Ogden, the Ogden City Police Department, and Officer Zachary Martin. The court took under advisement the motion as to Officers Travis Williams and Cody Marsh. Having considered the parties' briefs, the evidence presented, the arguments of counsel, and the relevant law, the court now determines Defendants' summary judgment motion should be granted as to Officers Williams and Marsh. Thus, the motion in limine is moot.

         SUMMARY JUDGMENT

         Summary judgment is appropriate if "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Since the court views the facts in the light most favorable to the nonmoving party, "[i]n qualified immunity cases, this usually means adopting ... the plaintiffs version of the facts." Scott v. Harris, 550 U.S. 372, 378 (2007). However, the Supreme Court requires the nonmoving party to show a genuine dispute to successfully survive a motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 247-248 (1986) ("[S]ome alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.") (emphasis in original). Likewise, the Tenth Circuit recently admonished: Although "courts ordinarily accept the plaintiffs version of the facts" in a qualified immunity analysis at summary judgment, the plaintiffs version "must find support in the record." AM v. Holmes, 830 F.3d 1123, 1136 (10th Cir. 2016). Ultimately, if the nonmoving party fails to properly address the moving party's assertion of fact as required by Rule 56(c), the court may "consider the fact undisputed for the purposes of the motion." Fed.R.Civ.P. 56(e)(2).

         UNDISPUTED FACTS

         The court considers the following facts undisputed. All facts and reasonable inferences have been construed in the light most favorable to Plaintiff, the nonmoving party, to the extent that the facts are supported in the record.

         A. Plaintiff Enters the Ogden City Police Station

         In the afternoon on February 8, 2016, Plaintiff was driving through Utah on a crosscountry road trip when he began feeling ill-weak, dizzy, and unfit to drive on.[1] He did not know the cause but thought it could be food poisoning.[2] After parking his car, he entered the Ogden City Police Department to seek medical help.[3] He carried with him in his laptop bag a Walther PP .22 caliber handgun, which he claims was unloaded as he entered the station.[4]Despite carrying a concealed weapon on his road trip, Plaintiff did not have a concealed carry permit in Utah nor in any other state.[5] He felt afraid, his heart racing as he entered the station, but he brought the gun "on purpose" to surrender it to law enforcement while he sought medical help.[6] When told by office staff to wait in the lobby, he did so, sitting on a couch with the gun and its ejected loaded magazine at his side.[7]

         B. Officers Are Called to the Station

         Soon after, police dispatch issued a radio call: "Man with a gun. 2186 Lincoln [the police station's address].... [M]ale dressed in all blue waiting downstairs. Had a small gun with him. Took the magazine out and took the bullets out.... "[8] Officers Travis Williams, Cody Marsh, and Zachary Martin responded.[9] When asked about the call in their depositions, each officer only remembered hearing there was "man with a gun" at the police station and nothing about the ejected magazine or bullets.[10] Officers Williams and Martin, who were in a back office at the police station, arrived first while Officer Marsh, who was patrolling nearby, arrived soon after.[11]

         C. Officers Attempt to Investigate

         Officer Williams approached Plaintiff seated on the couch and quickly recovered the gun lying next to him.[12] The officers then asked Plaintiff questions about who he was, where he had come from, and why he was there.[13] Plaintiff indicated he had been shot at and was "rambling" about "somebody following him while looking out the window like he's being followed."[14] He indicated he might have food poisoning, but the officers' understanding was that he was simply "poisoned."[15] Plaintiff testified that, during his time in the station, he continued to feel ill, like he was "fading in and out of consciousness."[16] He further testified the officers must have thought he was on drugs.[17]

         Plaintiff requested medical care, and approximately three-and-a-half minutes into the seven-minute interaction, medical services located in the same building were called.[18]

         The officers also asked several questions about Plaintiffs gun.[19] Sometime during the interaction, when Officer Martin told Plaintiff that he needed a permit to carry a concealed firearm, Plaintiff responded, "You are a fucking dumbass."[20] Although Plaintiff contends he was "courteous" and "spoke in low tones," he does not deny using the choice epithet.[21]

         D. Plaintiff Attempts to Leave the Station

         During the interaction, Plaintiff attempted to leave the station several times.[22] First, he attempted to leave by standing up from the couch.[23] Because the officers were still investigating and aid was on its way, he was told "not [to stand] just yet."[24] Plaintiff then threatened to knock out Officer Williams.[25] Plaintiff again attempted to leave.[26] As he stood up and started walking toward the exit, the officers were concerned for Plaintiffs and the public's safety: that Plaintiff would leave before medical assistance arrived; that Plaintiff, who entered the police station with a gun, might have another gun in his car nearby; and, since Plaintiff had indicated he was shot at and being followed, that the shooter was at large and looking for him.[27] In short, he was a danger to himself and others.[28]

         E. Plaintiff Resists Attempts to Detain Him

         The accounts of what exactly happened next differ, [29] but even with the facts viewed in the light most favorable to Plaintiff, it is clear Officer Williams attempted to restrain Plaintiff from leaving and that Plaintiff did not comply In the process, a bottle in Plaintiffs hand splashed water on Officer Martin's face.[30] Officer Marsh then grabbed Plaintiffs arms or hands, attempting to place him in handcuffs.[31] At that time, although the officers did not tell Plaintiff that he was under arrest, the officers believed they had probable cause to arrest him for disorderly conduct, resisting arrest, and carrying a concealed firearm.[32] Officer Williams, who by then had Plaintiff in a bear hug hold, decided to take Plaintiff to the ground.[33] Plaintiff landed on his left hip.[34] As soon as he was taken down, medical assistance arrived.[35]

         F. Events After the Incident

         After he was rushed to the hospital, Plaintiff was treated for several conditions. He was diagnosed with diabetic ketoacidosis, a serious condition resulting from a lack of insulin.[36] He also received treatment for a "left subtrocanteric femur fracture."[37] Lastly, because Plaintiff presented paranoia and delirium, his treating physicians consulted the hospital's psychiatry service, which concluded that the "paranoia was secondary to delirium from his acute illness, i.e. diabetic ketoacidosis."[38] Before discharge, Plaintiffs mental status returned to baseline.[39] Plaintiff alleges his injured femur was a result of Officer Williams's takedown maneuver.[40] Since bringing this case, Plaintiff has not designated any retained medical experts, only a use-of-force expert.[41] This expert concedes in his report that (1) "the officers had reasonable suspicion to conduct an investigation" and, in the course of their investigation, (2) "the officers were attempting to de-escalate the situation."[42]

         QUALIFIED IMMUNITY

         As grounds for summary judgment, Defendants raise the defense of qualified immunity. The doctrine of qualified immunity is "designed to protect public officials who act in good faith, on the basis of objectively reasonable understandings of the law at the time of their actions." Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir. 2004). The defense protects "all but the plainly incompetent or those who knowingly violate the law." Gross v. Pirtle, 245 F.3d 1151, 1155 (10th Cir. 2001). The court carefully considers qualified immunity claims because, if successful, it is an "immunity from suit, rather than a mere defense to liability," but the claim is "effectively lost if a case is erroneously permitted to go to trial." See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original). Likewise, "the Supreme Court has repeatedly 'stressed the importance of resolving immunity questions at the earliest possible stage in litigation."' Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)); see Mecham v. Frazier, 500 F.3d 1200, 1204 (10th Cir. 2007).

         When qualified immunity is raised, the burden shifts to the plaintiff to show that the defendant (1) violated the plaintiffs constitutional right and (2) that right was clearly established when the violation occurred. Pearson v. Callahan, 555 U.S. 223, 231 (2009). The court may address the two prongs in either order, Id. at 236, but "if the plaintiff fails to establish either prong," then "the defendant prevails on the defense." A.M. v. Holmes, 830 F.3d at 1134-35.

         A. Violation of a Constitutional Right

         Plaintiff alleges that Officers Williams and Marsh used excessive force, in violation of his Fourth Amendment rights. An excessive force claim is analyzed under Graham v. Connor's objective reasonableness standard. 490 U.S. 386, 395 (1989); see also Cty. of Los Angeles, Calif. v. Mendez, 137 S.Ct. 1539, 1547 (2017) ("If there is no excessive force claim under Graham, there is no excessive force claim at all."). Graham requires courts to give "careful attention to the facts and circumstances of each particular case," including the (1) the severity of the plaintiffs crime(s), (2) the level of threat the plaintiff posed to the officers and others, and (3) the plaintiffs efforts to resist or evade arrest. Id. at 396. The reasonableness offeree is viewed "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. That perspective includes the information possessed by the officers on the scene. Anderson v. Creighton, 483 U.S. 635, 641 (1987).

         For courts reviewing excessive force claims at the summary judgment stage, if there remain no genuine issues of material fact, the reasonableness of the officer's actions presents "a pure question of law." Scott, 550 U.S. at 381 n.8; accord Mecham, 500 F.3d at 1203 ("[T]he question of objective reasonableness is not for the jury to decide where the facts are uncontroverted.") (emphasis omitted). As two Defendants remain in this case, Officers Williams and Marsh, a question remains as to whether they used excessive force.

         1. Threat Posed to the ...


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