Abel v. Harp

278 F. App'x 642
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 23, 2008
Docket06-4371
StatusUnpublished
Cited by4 cases

This text of 278 F. App'x 642 (Abel v. Harp) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abel v. Harp, 278 F. App'x 642 (6th Cir. 2008).

Opinions

OPINION

R. GUY COLE, JR., Circuit Judge.

Defendants-Appellants, Phillip J. Torsney, Richard A. Wrenn, and James L. Larkin, three FBI Special Agents, appeal the district court’s denial of their motion for summary judgment on the grounds of qualified immunity in this civil rights action filed under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Plaintiff-Appellee Robert Keith Abel, a pro se federal prisoner, brought suit in district court claiming that his Fourth Amendment rights were violated by Defendants’ use of excessive force during his arrest for bank robbery. Defendants sought summary judgment on the grounds of qualified immunity. The district court denied then motion, finding that there were genuine issues of material fact. Defendants now present an interlocutory appeal, arguing that they should be shielded from suit on the basis of qualified immunity. For the following reasons, we AFFIRM the district court’s denial of summary judgment.

I.

A. Factual Background

The confrontation giving rise to this Bivens action began between 9:30 and 10:00 a.m. on the morning of September 7, 2000. Plaintiff arrived at First Federal Savings and Loan Bank in North Olmsted, Ohio and handed the teller a brown bag with a note stating, “I Have a Gun and Extra Ammo And Will Use It! Place All Your $100.00, $50.00, $20.00, and $10.00 Bills In The Bag No Die Packs & Or I’ll Shoot.” (JA 142 (emphasis in original).) Upon receiving this threat, the teller placed several bills into the bag and gave it to Plaintiff. Plaintiff then fled the scene. One of the managers at the bank identified Plaintiff driving away in a stolen Subaru vehicle and reported the license plate information to the North Olmsted Police Department. Defendants, .who were then members of the Violent Crimes/Major Offender Squad of the Cleveland FBI Office (also referred to as the “Bank Robbery Squad”), were dispatched in response to the call and joined with local law enforcement officers in searching the surrounding area for Plaintiff. On this day, Defendants were dressed in plain clothes: Wrenn wore a shirt, tie, dress pants, and dress shoes, [645]*645while Larkin and Torsney were dressed in jeans and t-shirts.

After departing the bank, Plaintiff abandoned the car when he drove into a ditch near the Westlake Recreation Center in an attempt to evade a marked police car. He then fled by foot into The Estates, a residential subdivision adjacent to the West-lake Recreation Center. Once in The Estates, Plaintiff crawled under the deck of a house located in the subdivision, where he remained for several hours and from where he observed police searching the area.

While the parties agree on the foregoing facts, their accounts of subsequent events differ markedly. According to Defendants, they decided to make an additional sweep of The Estates, although the local officers had discontinued their search after being unable to locate Plaintiff. At this time, an FBI Supervising Agent called upon Larkin to return to the Westlake Recreation Center and conduct a search of the premises from his vehicle. Torsney and Wrenn continued their search on foot and walked through several yards on Regency Circle, a street within The Estates, until Torsney spotted a pair of tennis shoes under the deck of the house at 29236 Regency Circle. Torsney then radioed to Larkin to meet him at that address.

Torsney observed Plaintiff furtively attempting to slide out from beneath the deck and escape. In response, Torsney claims that he drew his weapon and yelled several times, “FBI, stop right there” and “Don’t move.” Torsney also instructed Plaintiff to make his hands visible, to which Plaintiff responded, “I gotta go,” and continued to exit the deck. Torsney then placed his weapon back in his holster to free his hands in preparation for any physical altercation with Plaintiff that might arise. Thereafter, Torsney pinned Plaintiff on the ground and placed him in a headlock to prevent him from fleeing. In his affidavit, Torsney insists that Plaintiff resisted the immobilization efforts and tried to flee.

Because of Plaintiffs resistance, both Larkin and Wrenn approached Torsney and assisted him in subduing Plaintiff. Larkin believed their physical tactics were not succeeding, and so he struck Plaintiff in the nose with his knee in an attempt to neutralize Plaintiffs resistance. Within a minute or so, Defendants managed to handcuff and restrain Plaintiff. Later that day, Plaintiff was taken to a local hospital, where he was diagnosed with a fractured facial bone, facial and scalp contusions, and a fractured nose. About two weeks later, Plaintiff received surgery for these injuries.

According to Plaintiffs account of the events, the altercation took place under drastically different circumstances. In his affidavit, Plaintiff states that at approximately 1:15 p.m., from his hiding place under the deck, he observed what he thought were surveyors or fence company employees measuring the yards in the subdivision and placing wooden stakes into the ground to demarcate property lines. After the surveyors left, Plaintiff claims that he observed a man, whom he believed to be the property owner of the deck under which he was hiding.

Fearing that the homeowner would see him and call the police in response, Plaintiff attempted to exit the space beneath the deck. As he was sliding his body out from under the deck, Plaintiff maintains that he heard somebody scream, “hey.” When he turned his back to identify the source of the shout, he saw one of the surveyors approaching him. Plaintiff later identified the surveyor as Torsney but insisted that, at the time, Torsney was wearing plain clothes — a pullover shirt and boots — and never identified himself as an [646]*646FBI agent. Plaintiff further avers that Torsney never drew his gun but instead kicked Plaintiff in the back of his head and neck multiple times, while Plaintiff was still on the ground. During the second kick, Plaintiff caught Torsney’s boot, causing Torsney to fall backwards and generating enough momentum to pull Plaintiff out two-thirds of the way from under the deck. Torsney then began punching Plaintiff in the face, head, and upper shoulder area repeatedly, as well as kicking Plaintiff with his free foot.

Two other “surveyors” approached Torsney and Plaintiff, but neither of them identified themselves as FBI agents or displayed any badges, weapons, or other indications of their affiliation with the FBI. According to Plaintiffs affidavit, together, the three officers used their hands, feet, and an unidentified blunt steel object to deliver blows to his face, head, neck, back, and groin. Plaintiff maintains that his goal throughout this altercation was “to prevent what [he] thought were ‘vigilante’ surveyors, who had probably been told a ‘bank robber’ was somewhere in the area, from killing [him].” (JA 146.) Plaintiff further alleges that “each and every time [he] attempted to cover [his] face and head, the Defendants pulled [his] arms and hands back and kept delivering blow after blow to [his] head, while simultaneously kneeing and kicking [him] wherever they could get one in.” (Id.)

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278 F. App'x 642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abel-v-harp-ca6-2008.