Horne v. Crozier

1997 SD 65, 565 N.W.2d 50, 1997 S.D. LEXIS 64

• Court: South Dakota Supreme Court
• Decided: June 4, 1997
• Docket: None
• Status: Published

Opinions

KONENKAMP, Justice.

[¶ 1] This case raises the question whether a police officer violates a citizen’s civil rights for “gross negligence” in fastening handcuffs too tight. After a traffic stop, William B. Horne was arrested for driving with license revoked and DUI. Contending the handcuffs caused permanent disability, Horne sued Officer Brian Crozier and the City of Sioux Falls. The circuit court granted summary judgment for defendants, and we affirm, finding the purported wrongdoing insufficient to establish a Fourth Amendment violation under 42 U.S.C. § 1983.

Facts

[¶ 2] On May 5,1991, at approximately 3:30 a.m., Horne, a California resident, was driving down Sixth Street in Sioux Falls. When Crozier stopped him for speeding, he learned Horne’s license had been revoked. Crozier had him perform some field sobriety tests. Following a preliminary breath test, Horne was arrested for DUI and taken to McKen-nan Hospital to have a blood sample drawn. During the trip, Horne claims his handcuffs were so tight he suffered excruciating pain, but Crozier ignored his pleas to loosen them. Horne believes they remained in the patrol car for an unduly long time, protracting his torment.

[¶ 3] When they arrived at McKennan, a nurse drew a sample of Horne’s blood: the alcohol level later tested at .10 percent, according to Horne. In his affidavit and deposition, Horne said the nurse remarked to the officer that Horne’s wrists were injured, but Crozier disregarded her suggestion for treatment. Horne was then recuffed, even more tightly than before, he asserts, and taken to the Minnehaha County Jail, booked for DUI and released on bond. As there were no factual submissions from defendants, including no deposition or affidavit from either Crozier or the nurse, Horne’s version rests uncontradicted.¹

[¶ 4] On May 20,1991, Horne pled guilty to a reduced charge of reckless driving. He eventually underwent surgery for carpal tunnel syndrome, a condition caused by the handcuffs, according to Dr. Alan Greenwald, Horne’s treating physician in California. In June 1992, Horne brought this action, averring false arrest and excessive force. Defendants promptly answered, but the case languished, enduring four attorney changes by Horne and unexplained delays in discovery.² Defendants moved for summary judgment or, in the alternative, dismissal for failure to prosecute. In a hearing on December 28, 1995, the court granted summary judgment for defendants.

Standard of Review

[¶ 5] Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” SDCL 15-6-56(c); Ford v. Moore, 1996 SD 112, ¶7, 552 N.W.2d 850, 852. If no issues of material fact exist, and legal questions have been correctly decided, we will affirm. City of Lennox v. Mitek Industries, Inc., 519 N.W.2d 330, 332 (S.D.1994); Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987). All reasonable inferences drawn from the facts must be construed in favor of the nonmoving party, Rehm v. Lenz, 1996 SD 51, ¶ 9, 547 N.W.2d 560, 564, while the moving party must show the absence of any genuine issue of material fact. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). If the circuit court reaches the right conclusion for the wrong reason, we will nonetheless affirm. Kehn v. Hoeksema, 524 N.W.2d 879, 881 (S.D.1994); City of Sioux Falls v. Miller, 492 N.W.2d 116, 118 (S.D.1992) (citations omitted). In fact, affirmance is suitable if any legal basis exists to support the court’s decision. St. Paul Fire & Marine Ins. v. Schilling, 520 N.W.2d 884, 886 (S.D.1994); Waddell v. Dewey County Bank, 471 N.W.2d 591, 593 (S.D.1991) (citations omitted). Summary judgment is a preferred process to dispose of meritless claims. See Schlosser v. Norwest Bank South Dakota, 506 N.W.2d 416, 418 (S.D.1993)(citing Janklow v. Viking Press, 378 N.W.2d 875, 877 (S.D.1985)). Our Highest Court considers summary judgment a venerable device in the pursuit of justice:

Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed “to secure the just, speedy and inexpensive determination of every action.”

Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265, 276 (1986) (citations omitted).

[¶ 6] The circuit court found both the officer and the City were protected by qualified immunity. Qualified immunity is a legal question to be decided by the court; thus, it is particularly amenable to summary judgment. Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589, 595 (1991)(per curiam). The Supreme Court has emphasized that “because ‘[t]he entitlement is an immunity from, suit rather than a mere defense to liability,’ Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985), we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Id. To find whether qualified immunity applies, the test is to ask if the officer’s conduct violated clearly established statutory or constitutional rights a reasonable officer would have known at the time. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982); see also Anderson v. Creighton, 483 U.S. 635, , 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523, 530 (1987); Gainor v. Rogers, 973 F.2d 1379, 1382 (8thCir.1992). This “objective legal reasonableness” standard means “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson, 483 U.S. at 640, 107 S.Ct. at 3039, 97 L.Ed.2d at 531; Hafner v. Delano, 520 N.W.2d 587, 591 (S.D.1994). Qualified immunity is a personal defense. Hafner, 520 N.W.2d at 591. See Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).

[¶ 7] Law enforcement officers will be shielded by qualified immunity if (1) their conduct violates no clearly established constitutional or statutory rights; or (2) it is objectively reasonable for them to believe their acts did not violate those rights. Anderson, 483 U.S. at 638-39, 107 S.Ct. at 3038, 97 L.Ed.2d at 530; Hafner, 520 N.W.2d at 591 (quoting Anderson, 483 U.S. at 640, 107 S.Ct. at 3039, 97 L.Ed.2d at 531); Harlow, 457 U.S. at 818, 102 S.Ct. at 2738, 73 L.Ed.2d at 410; Gainor, 973 F.2d at 1384 (“This [analysis] allows ample room for a good faith mistake by the officer since his conduct must be measured in terms of the belief of a reasonable officer based upon the facts then available to the officer.”).

Analysis and Decision

[¶ 8] On appeal, Horne urges our attention to several issues: (1) Officer Crozier falsely arrested him as there was no probable cause; (2) the officer’s gross negligence produced a genuine § 1983 action for excessive force; and (3) the court should have granted his motion for partial summary judgment on liability.

[¶ 9] 1. Unlawful Arrest

[¶ 10] Horne asserts Crozier lacked probable cause to arrest him. To support his position, he recites a succession of legal defects surrounding his arrest, including: he was not speeding; his DUI arrest lacked probable cause; he performed well on the field sobriety tests; and it was improper for the officer to require a blood test after the breathalyzer revealed the presence of minimal alcohol. Regardless, all these points became footless once Horne pled guilty to reckless driving. A plea of guilty forestalls any later claim in a § 1983 action that an arrest lacked probable cause. Malady v. Crunk, 902 F.2d 10, 11-12 (8thCir.1990). See generally Broughton v. State, 37 N.Y.2d 451, 373. N.Y.S.2d 87, 335 N.E.2d 310, 315 (1975), cert. denied 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975)(a conviction is “conclusive evidence of probable cause”). Persons who believe they have been unlawfully arrested must persevere to acquittal or outright dismissal to maintain a valid § 1983 action for false arrest. Roesch v. Otarola, 980 F.2d 850, 853 (2dCir.1992). Under South Dakota law, a plea, once given, waives all complaints about nonjurisdictional defects. Two Eagle v. Leapley, 522 N.W.2d 765, 768 (S.D.1994); State v. Crow, 504 N.W.2d 336, 338-39 (S.D.1993); State v. Anderson, 417 N.W.2d 403, 405 (S.D.1988); State v. Grosh, 387 N.W.2d 503, 506 (S.D.1986). “A plea is intelligent and voluntary when the accused has a full understanding of his constitutional rights and, having the understanding, waives them.” Two Eagle, 522 N.W.2d at 768 (citing Petrilli v. Leapley, 491 N.W.2d 79, 82 (S.D.1992)). Horne never argues his reckless driving plea, which arose from the same facts as the DUI charge, was the product of misunderstanding, coercion or lack of knowledge. He admits he wanted to finish the ease so he could return to San Francisco to attend to another legal matter. Horne pled guilty to a charge stemming from the very 'arrest he claims was defective and, in so doing, waived lack of probable cause as a basis for suit under § 1983.

[¶ 11] 2. Gross Negligence and Excessive Force

[¶ 12] In his complaint, Horne alleges, “Defendant Crozier with gross negligence used such excessive force in handcuffing Plaintiffs wrists ... which gross negligence resulted in Defendant’s unreasonable seizure .... As a direct and proximate result of Defendant’s foregoing specified gross negligence and violations of Plaintiffs civil rights vested by 42 U.S.C. § 1983, Plaintiff has to date sustained [damages].” Horne’s appellate brief also broaches negligence per se in Crozier’s use of handcuffs. The Civil Rights Act of 1871 (42 U.S.C. § 1983) provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

To establish a claim under § 1983, a plaintiff must allege and show deliberate action. “Historically, [the] guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property.” Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662, 668 (1986)(lack of due care by official causing unintended injury does not implicate the due process clause). See also Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)(must show invidious discriminatory purpose for a § 1983 action); Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291, 50 L.Ed.2d 251, 260 (1976)(re-quired showing of “deliberate indifference” to a prisoner’s injury for § 1983 liability). A plaintiff must show an affirmative act creating an abuse of power to constitute deprivation. Daniels, 474 U.S. at 330, 106 S.Ct. at 664, 88 L.Ed.2d at 667. Mere negligence is not enough. Id.; Chapman v. Musich, 726 F.2d 405, 407 (8thCir.1984), cert. denied 469 U.S. 931, 105 S.Ct. 325, 83 L.Ed.2d 262 (1984).

[¶ 13] Of course, use of “excessive force is impermissible even during a lawful arrest.” Weyant v. Okst, 101 F.3d 845, 858 (2dCir.1996). To judge a § 1983 excessive force claim under the Fourth Amendment, the test is whether the officer’s actions were “objectively reasonable” considering the circumstances, “without regard to [the officer’s] underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443, 456 (1989) (citations omitted).

“Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” Johnson v. Glick, 481 F.2d at 1033, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.

Id. at 396-97, 109 S.Ct. at 1872, 104 L.Ed.2d at 455-56.³ A conscious choice to inflict force and a negligent exercise of force are wholly different species of conduct. Only the first implicates a constitutional infringement. Gross negligence in conducting an arrest is altogether insufficient to sustain an action under § 1983. Davis v. Fulton County, Ark, 90 F.3d 1346, 1352 (8thCir.1996)(“Negligent, or even grossly negligent, conduct by government officials cannot be the basis of a constitutional tort claim.”) (citations omitted); Lewellen v. Metro. Govern, of Nashville, 34 F.3d 345, 351 (6thCir.1994), cert. denied 513 U.S. 1112, 115 S.Ct. 903, 130 L.Ed.2d 787 (1995)(noting gross negligence is not enough in a § 1983 action because it is not “arbitrary in the constitutional sense”)(quoting Collins v. Harker Heights, 503 U.S. 115, 129, 112 S.Ct. 1061, 1071, 117 L.Ed.2d 261, 276 (1992)); Rasmussen v. Larson, 863 F.2d 603 (8thCir.1988); Gonzalez v. City of Chicago, 888 F.Supp. 887, 890 (N.D.Ill.1995); Morton v. City of Little Rock, 728 F.Supp. 543, 546 (E.D.Ark.1989), aff'd 934 F.2d 180 (8thCir.1991).

[¶ 14] In any given action, the plaintiff bears the burden to proceed. DUAL Mfg. Co. v. Sioux Falls Constr. Co., 444 N.W.2d 55, 56 (S.D.1989); Duncan v. Pennington County Hous. Auth., 382 N.W.2d 425, 427 (S.D.1986). Pleadings must include a simple statement of the prima facie elements of the claim to give proper notice to a defendant. Biddle v. Sartori Memorial Hosp., 518 N.W.2d 795, 797 (Iowa 1994); Bakody Homes & Dev. v. City of Omaha, 246 Neb. 1, 516 N.W.2d 244, 248 (1994); Stessman v. Am. Black Hawk Broadcasting, 416 N.W.2d 685, 686 (Iowa 1987). Horne’s pleading of gross negligence fails to state a prima facie case under § 1988. We bear no responsibility to restate his ease. “[A] deficiency [in the pleadings] will not be supplied by the court.” Appling v. Stuck, 164 N.W.2d 810, 812 (Iowa 1969); Schieffer v. Catholic Archdiocese of Omaha, 244 Neb. 715, 508 N.W.2d 907, 910 (1993)(noting a court cannot assume the existence of facts not alleged). On the other hand, while in most instances erroneous pleadings may be a mortal defect, it is well settled courts must liberally construe civil rights actions if they are not conclusory and “set forth facts that state a claim as a matter of law.” A.J. by L.B. v. Kierst, 56 F.3d 849, 854 (8thCir.1995).

[¶ 15] Beyond mere pleading deficiency, however, Horne’s sworn testimony asserts “gross negligence.” What are we to make of a § 1983 case in which the claimant persists in declaring negligence forms the basis of the claim not only in pleadings, but in his deposition, and in his summary judgment affidavit? When deposed, Horne was asked:

Q. Now, do you claim that Brian Crozier intended to hurt you or that he was just careless in the way he handcuffed you?

A. I believe he was a little negligent in the way that he handcuffed me.

Q. Do you think that was a result of the fact that he was just not very careful that night or that he’s not been properly trained by the city of Sioux Falls?

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A. Like I say, I believe — I don’t know the man.

Q. I understand.

A. I don’t know him, but at the time he was very negligent in the way that I was treated.

To survive a summary judgment motion, Horne must put forth facts to show Crozier acted in conscious disregard of his constitutional rights. His claim cannot transcend his own testimony. Connelly v. Sherwood, 268 N.W.2d 140, 141 (S.D.1978). Horne’s proof simply fails to rise to the level of a constitutional violation. Cf. Cottrell v. Caldwell, 85 F.3d 1480 (11thCir.1996)(denial of summary judgment on claims of excessive force and custody mistreatment reversed in case where individual handcuffed and in leg restraints died of “positional asphyxiation;” “gross negligence” not part of the standard for judging custody mistreatment). Consequently, we need not reach the issue of qualified immunity because Horne has failed to establish a sufficient § 1983 claim. Applying the standard for assessing Fourth Amendment excessive force claims, whether the officer’s actions were “objectively reasonable” in light of all the circumstances, without regard for underlying intent, there was no genuine issue of material fact, and Crozier was entitled to summary judgment as matter of law.

[¶ 16] 3. Police Handcuffing Policy

[¶ 17] A city “may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those. whose edicts or acts may be fairly said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611, 638 (1978); Hafner, 520 N.W.2d at 591. Contrary to the circuit court’s ruling, however, cities are not protected by qualified immunity under § 1983. Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673, 685-86 (1980). A municipality may be liable directly when “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated” by the city. Monell, 436 U.S. at 690, 98 S.Ct. at 2035-36, 56 L.Ed.2d at 635. Compare Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45, 58 (1989)(in contrast to a city or county, a state is not a person subject to suit under § 1983). Treatment of arrestees pursuant to policy, judged within the constitutional framework, will dictate whether local governments are liable under § 1983. See Billingsley v. St. Louis County, 70 F.3d 61, 62-63 (8thCir.1995)(liability of municipality revolves around violation of a “clearly established statutory or constitutional right[ ]”)(citing Harlow, supra).

[¶ 18] Nothing in evidence even alludes to the actual terms of any official policy in Sioux Falls on handcuffing DUI arrestees. Yet counsel for Crozier argued, “Sioux Falls Police Department has an SOP or standard operation procedure of handcuffing all DWI suspects for the protection of the officer.” Accepting this as fact, the circuit court then stated, “the officer' was just following policy and I think that’s clear and that’s undisputed.” Yet in reality, on the ground of privilege, the court disallowed plaintiffs discovery of the City’s Police Policy Procedures Manual. Horne has not appealed this ruling, which tethers our review.

[¶ 19] Under the pleadings and proof, however, the City’s policy is immaterial. Horne pled Crozier’s “gross negligence” in using handcuffs. That insinuates a misap-plication of policy, not a fulfillment of it. “[A]n isolated incident of police misconduct by subordinate officers is insufficient to establish municipal policy or custom.” Wedemeier v. City of Ballwin, Mo., 931 F.2d 24, 26 (8thCir.1991)(citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24,105 S.Ct. 2427, 2436, 85 L.Ed.2d 791, 804 (1985)(plurality)); Patzner v. Burkett, 779 F.2d 1363, 1367 (8thCir.1985)(county cannot be held liable where a plaintiff failed to establish the county had notice of prior misbehavior of police officers and failed to take remedial steps). To establish his claim, Horne must show Sioux Falls “had notice that its procedures were inadequate and likely to result in a violation of constitutional rights.” Thelma D. by Delores A v. Board of Educ., 934 F.2d 929, 934 (8thCir.1991). See also Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1573, 89 L.Ed.2d 806, 811(1986)(per cu-riam)(“If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.”). Horne cites no incidents of alleged police misconduct, except his own singular experience. Nor has he given us any authority to support his position that handcuffing a cooperative DUI arrestee, by policy or otherwise, is objectively unreasonable. On the contrary, handcuffing drunk driving arrestees is routine practice in South Dakota. DUI is a first class misdemeanor, carrying a penalty of up to one year in jail, in addition to a fine and loss of license. SDCL 32-23-2. Although the circuit court incorrectly applied qualified immunity, we conclude it properly granted summary judgment for Sioux Falls because whether Officer Crozier negligently fastened the handcuffs too tight, there was no direct causal link between his actions and any alleged policy or custom.

Conclusion

[¶ 20] Horne waived his § 1983 unlawful arrest claim when he pled guilty to a reduced charge. His excessive force action is deficient as a matter of law and so whatever policy might have been implicated is irrelevant.

[¶ 21] Affirmed.

[¶ 22] MILLER, C.J., and AMUNDSON and GILBERTSON, JJ., concur. [¶ 23] SABERS, J., concurs in part and dissents in part.

1 . Crozier’s opposing affidavit, offered and then apparently withdrawn, is not of record. Horne's counsel moved this affidavit not be considered, as it was offered less than five days in advance of the hearing. The motion was never ruled upon.

2 . Horne's switching of South Dakota attorneys may explain some of the delay. Not only did he change counsel in South Dakota four times, but the record also shows he attempted to retain out-of-state lawyers, including Gerry Spence and the late Melvin Belli. He also appeared pro se occasionally.

3 . Some factors which may guide a court in deter- ■ mining objective reasonableness include, "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443, 455 (1989).