ERIC F. MELGREN, District Judge.
Plaintiff Mark Hildebrant ("Plaintiff") seeks monetary damages, including actual and punitive damages and attorney's fees, from Defendants Sedgwick County Sheriff Department ("the Department") and Deputies Justin Maxfield ("Maxfield"), Scott Burdett ("Burdett"), Andrew Dodge ("Dodge"), and Eric Slay ("Slay") (collectively referred to as "Defendant Deputies"), for mental anguish, suffering, permanent disability, and loss of enjoyment of life under 42 U.S.C. § 1983. Defendants now move for partial summary judgment (Doc. 41). For the reasons stated below, Defendants' motion is granted in its entirety.
This case arises out of a pursuit and use of force by Sedgwick County Sheriff's Deputies in the 5500 block of North Maize Road in Sedgwick County, Kansas, on December 30, 2010. Because of the nature of the case, Plaintiff and Defendants disagree as to some of the facts.
On December 30, 2010, at 2:35 a.m., Dodge attempted to stop a reported stolen vehicle on West Kellogg Avenue in Sedgwick County, Kansas. Instead of pulling to a stop upon the activation of Dodge's emergency lights, the suspect vehicle, driven by Colt McCammon ("McCammon"), fled, engaging Dodge, as well as deputies Maxfield and Burdett and officers from other law enforcement agencies, in a twenty-three minute pursuit. The suspect vehicle reached speeds as high as eighty miles per hour, failed to stop at multiple stoplights and stop signs, and crossed into oncoming traffic. Plaintiff, a passenger in the car, claims that he repeatedly begged McCammon to pull over or allow him to exit the vehicle, to no avail. Defendants allege that Plaintiff and McCammon threw objects, including illegal drugs, out of the vehicle's windows during the pursuit.
After being "spike stripped" multiple times, the suspect vehicle came to a stop at 5500 North Maize Road at approximately 2:58 a.m. The details of what happened next are vigorously contested by both parties. According to Plaintiff, Defendant Deputies and other officers ordered Plaintiff, who was unarmed, out of the car. Plaintiff complied, offering no resistance. Instead of merely detaining him, officers screamed obscenities at Plaintiff, calling him a "mother***ker." Defendant Deputies allegedly "bull rushed" and gang tackled Plaintiff, knocking him to the ground and instantly breaking his neck. Plaintiff alleges that the deputies then dragged him to the side of the road and ordered him to get up, at which time Plaintiff informed the deputies that they had broken his neck. According to Plaintiff, rather than immediately seeking medical attention, the deputies just left him handcuffed on the ground and made inappropriate comments about his alleged injury.
In contrast, Defendants allege that Plaintiff immediately exited the stopped vehicle before being told to do so and subsequently failed to follow the deputies' verbal commands to face away, walk backward toward them, and keep his hands above his head. Instead, Plaintiff dropped his hands, "flipped off" the deputies, and walked directly toward them while bringing his hands to his waist. According to Defendants, when Plaintiff failed to follow the deputies' commands, two of the deputies grabbed Plaintiff and used their body weight to take him to the ground. These deputies, plus one other, then restrained Plaintiff, who was resisting, and administered strikes to his shoulder, upper thigh, and ribs. At no time did Plaintiff inform the deputies that he was a reluctant participant in the stolen vehicle.
Less than three minutes after the deputies took Plaintiff to the ground, Emergency Medical Services ("EMS") was summoned to the scene. The EMS crew was en route at 3:03 a.m. and arrived on scene at 3:14 a.m. Plaintiff was treated and taken to a local hospital. Plaintiff now alleges that, as a result of Defendant Deputies' conduct, he sustained a spinal cord injury that caused him to lose the use of his legs and has confined him to a wheelchair. While Defendants acknowledge that Plaintiff incurred significant cervical injuries from the confrontation, they allege that Plaintiff had pre-existing physical conditions in his neck, including a prior cervical fusion and spinal stenosis, which made him significantly more susceptible to injury. Defendants allege that Plaintiff did not inform the deputies of this pre-existing condition.
Plaintiff filed this suit on August 30, 2012, alleging the following: (1) excessive use of force, (2) failure to train, (3) failure to seek medical attention, and (4) a state law claim of battery. On November 20, 2013, Defendants filed a motion for partial summary judgment on Plaintiff's failure to train, failure to seek medical attention, and battery claims. On January 7, 2014, Plaintiff requested a hearing on this matter. The Court held oral on May 28, 2014.
Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.
In his Complaint, Plaintiff pled a state tort claim of battery against the individual Defendant Deputies.
Here, a denial of Plaintiff's claim was sent to counsel on March 21, 2012. Plaintiff's ninety-day period within which to commence an action for battery therefore expired on June 21, 2012. Plaintiff did not file his claim in this Court until August 30, 2012, more than two months after the statutory deadline under K.S.A. § 12-105b(d) and long after the one-year statute of limitations for battery had expired. In his Complaint, Plaintiff failed to present any argument or justification for tolling the statute of limitations. In his response to Defendants' motion for summary judgment, Plaintiff acknowledged that the statute of limitations has run on this claim.
In his Complaint, Plaintiff alleged that Defendant Deputies "increased [his] susceptibility to injury . . . by failing to provide medical attention or human decency after they had broken his neck."
The bulk of Defendants' motion concerns Plaintiff's allegation against the Department for failure to train. According to Plaintiff, the Department is liable under 42 U.S.C. § 1983 for failing to train its deputies in the proper use of force. Unlike a typical failure to train claim, however, Plaintiff acknowledges that the Department provided, and Defendant Deputies received, the proper initial and continuing training as required by Kansas law. Instead, Plaintiff argues that the Department failed to reinforce this training. It is this lack of reinforcement, Plaintiff claims that led to his injury. In response, the Department argues that Plaintiff cannot establish that the training and policies of its deputies concerning use of force violate applicable constitutional standards. Upon review, the Court agrees.
Section 1983 states, in relevant part, that "[e]very person who, under color of [law], subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured."
Defendants argue that Plaintiff's claim must fail because, even assuming that Plaintiff can establish the first and second elements, he cannot provide evidence to support the third and fourth requirements under this standard.
As to the third requirement, there is no evidence that inadequate training demonstrates deliberate indifference on the part of the Department. To find deliberate indifference, a plaintiff must show that "`the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the [municipality] can reasonably be said to have been deliberately indifferent to the need.'"
Plaintiff argues that the Department "should have been on notice that [its] training program was not working."
Plaintiff also spends a considerable amount of time and effort comparing the facts at hand to those of Tenth Circuit cases, namely Allen v. Muskogee,
In Brown, the plaintiff was involved in a traffic dispute with the defendant, an off-duty police officer who was out of uniform and driving an unmarked car. The two men exchanged hand gestures and, at a stoplight, the defendant got out of his car, drew his service revolver, pointed the gun at the plaintiff's face, and shouted that he was a police officer. The plaintiff made a U-turn and the defendant followed. The plaintiff pulled over in an attempt to get the defendant's license plate number at which point the defendant stopped, got out of his car, and drew his weapon, allegedly in accordance with the department's "always armed/always on duty" policy. When the plaintiff attempted to drive away, the defendant fired several shots into the car, hitting the plaintiff. A jury returned a verdict for the plaintiff on his failure to train claim. On appeal, the Tenth Circuit noted that the police department's "always armed/always on duty" policy was part of the department's written regulations. Expert testimony established that such policies presented serious safety risks. Therefore, the appellate court concluded that the jury had been presented with sufficient information to conclude that the City's policymakers were aware of and deliberately indifferent to the risks presented by the training program's deficiencies.
In Paul, which Plaintiff argues is the most factually similar to the case at hand, the plaintiff, a partial quadriplegic, was the passenger in a stolen car. Police officers stopped the car and ordered the plaintiff passenger out of the vehicle. The plaintiff told the officers that he could not get out because he was paralyzed. The officers again ordered the plaintiff to get out of the car. The plaintiff again informed the officers that he was paralyzed. The officers then grabbed the plaintiff by his neck and throat, jerked him out of the car, and threw him to the ground, kicking him. One of the officers placed his knees on the plaintiff's neck and back while handcuffing him. During this altercation, the plaintiff became unconscious. The plaintiff was subsequently treated for a fractured neck and strained hip. The district court granted summary judgment in favor of the defendant city with regard to the plaintiff's failure to train claim. On appeal, the Tenth Circuit, relying on testimony from an on-scene officer that officers were trained to place their knees on a suspect's neck despite the specific written training materials that instructed officers not to undertake such an action, reversed summary judgment.
None of these cases support Plaintiff's argument. There is no evidence that the Department's training and/or policy was flawed, as was the case in Brown. In fact, Plaintiff concedes that the Department's policy and training were acceptable. Nor is there any evidence that Defendant Deputies were trained to act in contravention to the Department's written and stated policies and training, as in Paul. Perhaps the most factually similar case is Allen, where the appellate court relied on testimony of supervisory officers who stated that the officers in question acted in accordance with their training which, the plaintiff's expert opined, must have been flawed, given the inherent danger in "rushing" a mentally disturbed individual.
During oral argument, Plaintiff vigorously argued that the case now before this Court is identical to the situation in Allen: Defendant Deputies "gang-tackled" Plaintiff in order to gain control of the situation. During deposition testimony, Defendant Deputies, as well as the former Sedgwick County Sheriff testified that Defendant Deputies handled the situation exactly how they had been trained. Therefore, according to Plaintiff's expert, retired Johnson County Sheriff Currie Myers ("Sheriff Myers"), the training must have been flawed. While, on its face, Plaintiff's argument seems identical to that in Allen, there is one critical difference: Plaintiff's expert conceded that the Department provided, and therefore Defendant Deputies had, the proper initial training. No such concession was made in Allen.
The Court acknowledges Sheriff Myers' conclusion in his affidavit that the Department "failed to either train or manage their officers in a way to reflect the training doctrine and polices provided by the department. The department failed to provide the specific type of training needed to deploy less than lethal weapons and/or to be involved in use of force situations."
Additionally, Sheriff Myers states, in paragraph seventeen of his affidavit that
However, this conclusion must be seen as directly modifying the previous paragraph, which discusses the Department's training of its deputies on the use of a Taser.
In Sheriff Myers' report itself, he makes the following conclusions:
However, the balance of the report focuses on Defendant Deputies' failure to learn and/or follow the training provided by the Department:
In fact, the very last substantive paragraph of Sheriff Myers' report concludes:
These statements and conclusion, taken as a whole, suggest, at most, a failure to learn or failure to manage claim. The first of these possibilities concerns the remaining issue not before this Court on summary judgment, namely the claim of excessive force against the individual Defendant Deputies. The second claim, failure to manage, is not one alleged by Plaintiff.
In any event, the evidence shows that Defendant Deputies were adequately trained in use of force techniques. Each of the officers received more than the amount of basic law enforcement training required by Kansas law. Kansas law requires, at a minimum, 560 hours of accredited instruction and training at the Kansas Law Enforcement Training Center prior to being certified as a law enforcement officer. The parties agree that Maxfield graduated from the training academy in 2008 with 889.5 hours of instruction, Burdett in 2007 with 888 hours of instruction, Dodge in 2006 with 896 hours of instruction, and Slay in 2008 with 896 hours of instruction. This instruction included training on the Department's policies and regulations as well as the use of force. Following their certification, each of Defendant Deputies completed an additional eight weeks of field training with one or more field training officers. Additionally, each of Defendant Deputies completed the required annual forty hours of continuing law enforcement education every year since their certification.
Absent Plaintiff's assertion, he offers no evidence to show that such reinforcement was not happening in the Department. Unlike in Allen, where the expert's deposition was over 300 pages in length and set forth the particular errors in the training, neither Plaintiff nor his expert state why or how such reinforcement was lacking. As Defendants question, "[w]ere there not enough hours spent in continuing training (despite the fact that annual certification standards were met)? Was an incorrect technique taught in how to restrain the suspect? Did the deputies fail to instruct the suspect in how to exit the vehicle without appearing as a threat to [him]?"
Plaintiff also drew the Court's attention to the unpublished Tenth Circuit case Herrera v. Bernalillo County Board of County Commissioners
The situation in Herrera is vastly different from the case now before the Court. First, Defendant Deputies have made no attempt to seek qualified immunity. Second, the facts of Herrera showed a compliant plaintiff. In his Complaint, Plaintiff alleges that after the vehicle came to a stop Defendant Deputies and other officers "ordered [him] out of the truck, and he complied. He was unarmed and offered no resistance."
Aside from Herrera, Plaintiff offers no evidence that the Tenth Circuit has found "gang-tackling" to be excessive force. During oral argument, Plaintiff mentioned a Ninth Circuit case in which the court held that "gang-tackling" is a per se constitutional violation and, as such, is always an inappropriate response.
Furthermore, while Plaintiff would have the Court believe that these cases stand for the proposition that "gang-tackling" is per se unconstitutional, a plain reading of these decisions shows that Plaintiff is incorrect. Rather, the cases hold that in the particular situations presented, namely an arrest of a compliant individual, the acts of the involved law enforcement officials constituted excessive force. Neither Circuit gave any indication that, because of its finding in the particular case at hand, "gang-tackling" was always inappropriate.
Additionally, Plaintiff relies somewhat on the theory that Defendant Deputies could have used a Taser to control Plaintiff, rather than physical force. As noted by Defendants both in the Pretrial Order and during the hearing, law enforcement officers are not legally required to use only the least intrusive degree of force necessary to be constitutionally permissible. Rather, officers are simply required to use only the amount of force that is reasonable.
In sum, at least with regard to the deliberate indifference prong, Plaintiff may prove his case by showing either a "pattern of tortious conduct" or that "a violation of federal rights is a highly predictable or plainly obvious consequence of a municipality's action or inaction."
As to the fourth requirement, Plaintiff points to no evidence in the record of a direct causal link between the constitutional deprivation and inadequate training. "[I]n order for liability to attach in a failure to train case, `the identified deficiency in a [municipality's] training program must be so closely related to the ultimate injury,' so that it `actually caused' the constitutional violation."
Here, Plaintiff fails to allege any deficiency in the Department's training program with respect to the use of excessive force. Plaintiff further fails to explain how any alleged deficiency is "closely related" to his injury so that it caused the alleged constitutional deprivation. Plaintiff has therefore failed to "go beyond mere allegations that officer training is deficient" to properly establish a claim for failure to train.
