RICHARD H. KYLE, District Judge.
This case arises out of the alleged use of excessive force against Plaintiff Mark Shane Bishop by Defendant Dale Glazier, a deputy with the Freeborn County, Minnesota Sheriff's Office. Bishop alleges that Glazier's conduct violated his constitutional rights and Minnesota law. Presently before the Court is Glazier's Motion for Summary Judgment. For the reasons that follow, the Court will grant the Motion as to Bishop's constitutional claim and decline to exercise supplemental jurisdiction over his remaining claims.
Around 1:00 a.m. on December 12, 2010, Bishop was driving in Freeborn County, near the City of Albert Lea, on a trip from Michigan to Oklahoma; also in his car were his fiancée (Jessica Leasure) and their young daughter. Heavy snow had set in, making driving conditions difficult. Bishop decided to stop at a hotel for the evening until the weather cleared. According to a map on his cellular phone, the nearest hotel was a Comfort Inn approximately one mile away. He exited the highway and proceeded westbound on Freeborn County Road 46, in the hotel's direction. As he drove down that road, the car hit a snow drift, slid across the roadway, and became stuck in a snow bank on the opposite edge, facing west in the eastbound lane.
Bishop tried unsuccessfully to free the car. He eventually called the Comfort Inn to see whether anyone there could assist; the desk clerk suggested that he call 911, and he did so. The 911 dispatcher advised that she would send a Freeborn County deputy to help, and Glazier later arrived in a four-wheel-drive SUV. The two briefly discussed the situation, and Bishop then re-entered his car while Glazier shoveled snow from around its front wheels. After he finished, Glazier pushed the vehicle backward and instructed Bishop to give the car gas and turn to the right, toward the road surface. Bishop, however, steered the car straight — directly back into the snow bank. This process repeated itself several times, with Glazier shoveling out the front wheels and pushing the car backward, and Bishop then driving the car forward into the snow bank rather than to the right, as Glazier had instructed.
Exasperated, Glazier told Bishop to shovel out the front wheels himself, and he returned to his vehicle to warm up. Bishop complied, but his efforts proved fruitless. Around 2:20 a.m., Glazier radioed for assistance from the City of Albert Lea police department. Two officers in an SUV arrived a short time later, carrying a "tow strap" to pull Bishop's vehicle out of
It is undisputed that both Bishop and Glazier had become frustrated with the situation. Bishop testified in his deposition that the mood in his car was "pretty stressful" when he first exited the highway and that he and Leasure were "upset and stressed out" by the snow and, later, becoming stuck. (Bishop Dep. at 84-86, 93.) Glazier testified that he was frustrated with Bishop's "feeble attempt" to free his car and his failure to follow directions. (Glazier Dep. at 98-99; see also Doc. No. 32-1.)
Yet, Bishop contends that Glazier was rude, demeaning, and belligerent during the entire encounter, including yelling and swearing at him, which Glazier denies. He further asserts that the yelling continued when Glazier opened the car door after he had failed to attach the tow strap. Because he did not like the way Glazier was treating him, Bishop asked to "go talk to" the Albert Lea officers; Glazier said "no, no, you're not going to go talk to those officers." (Bishop Dep. at 99-100).
According to Glazier, he grabbed Bishop's left shoulder with his right hand and "pushed him back down in the car" and told him "to remain in the car." (Glazier Dep. at 82-84.) Bishop, however, claims far more — he testified in his deposition (and alleges in this lawsuit) that Glazier grabbed him by the throat, shoved him against the side of the car, and "choked" him for "[r]oughly 45 seconds to a minute." (Bishop Dep. at 112-19.) He further testified that he "couldn't breathe" and "couldn't talk" as he was being choked. (Id. at 119.) He claims that Glazier eventually "shoved" him back into the car and told him to "shut the fuck up and sit the fuck down." (Id. at 123.)
(Doc. No. 32-1.) Notably, the transcript makes no mention of Bishop being "choked" for nearly a minute or being unable to breathe or speak during the so-called "choking."
Regardless, a tow truck eventually arrived and pulled Bishop's car from the snow bank; he drove to the hotel and later completed the drive to Oklahoma. On December 29, 2010, he filed a complaint with the Freeborn County Sheriff's Office. In connection with that complaint, he submitted a typewritten statement prepared the day after the incident, in which he wrote that as he exited his car he
(Doc. No. 28-1 at 16; see also Bishop Dep. at 134.) This statement, like the 911 call, omits any reference to being "choked" for approximately one minute or being unable to breathe.
In addition, Bishop spoke with an investigator from the Freeborn County Sheriff's Office, who recorded their conversation. Although Bishop again complained that Glazier had "grabbed me by the throat," the recording contains no allegation that
After the Sheriff's Office declined to take action in response to this complaint, Bishop and Leasure commenced the instant action. Their original Complaint asserted claims against Glazier, the Albert Lea officers, and Freeborn County under the Fourth Amendment to the United States Constitution and Minnesota law. On November 3, 2011, they filed an Amended Complaint (Doc. No. 18) dropping their claims against the Albert Lea officers, and by stipulation (Doc. No. 24) they later agreed to (i) dismiss all claims brought by Leasure and (ii) dismiss certain other claims in the Amended Complaint. Bishop's remaining claims are against (i) Glazier, for excessive force under the Fourth Amendment to the United States Constitution (Count I);
Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Generally, the Court must view the evidence, and the inferences that may reasonably be drawn from it, in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Weitz Co., LLC v. Lloyd's of London, 574 F.3d 885, 892 (8th Cir.2009). This typically means "adopting ... the
Yet, because qualified immunity "is an immunity from suit rather than a mere defense to liability [and] is effectively lost if a case is erroneously permitted to go to trial," Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), a "qualified immunity case is unique," Katosang v. Wasson-Hunt, 392 Fed.Appx. 511, 513 (8th Cir.2010) (per curiam). When a defendant asserts such a defense, "the court should [not] deny summary judgment any time a material issue of fact remains on the [constitutional] claim [because to do so] could undermine the goal of qualified immunity." Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 671 (8th Cir.2007) (first alteration added). Rather, the Court must "take a careful look at the record" and determine "which facts are genuinely disputed, and then view those facts in a light most favorable to the non-moving party as long as those facts are not so blatantly contradicted by the record ... that no reasonable jury could believe [them]." O'Neil v. City of Iowa City, Iowa, 496 F.3d 915, 917 (8th Cir.2007) (emphasis added); accord, e.g., Scott, 550 U.S. at 380, 127 S.Ct. 1769 ("[F]acts must be viewed in the light most favorable to the nonmoving party only if there is a `genuine' dispute as to those facts."; "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment."); LaCross v. City of Duluth, Civ. No. 10-3922, 2012 WL 1694611, at *8-9 (D.Minn. May 14, 2012) (Ericksen, J.). In other words, a plaintiff may not merely point to "unsupported self-serving allegations, but must substantiate his allegations with sufficient probative evidence that would permit a finding in his favor without resort to speculation, conjecture, or fantasy." Reed v. City of St. Charles, Mo., 561 F.3d 788, 790-91 (8th Cir.2009); accord, e.g., Cooper v. Martin, 634 F.3d 477, 480-81 (8th Cir.2011).
Here, besides his own self-serving testimony, nothing in the record supports Bishop's allegation that Glazier choked him for 45 to 60 seconds. Glazier denies that such conduct occurred, and Bishop's allegation is at odds with the remainder of the record, including a 911 recording made immediately after the alleged assault, a document he drafted shortly after the incident, a similar document drafted by his fiancée, and the statement he made to a Sheriff's Office investigator, all of which omit any reference to Glazier choking him. While perhaps it might be understandable that Bishop would fail to use the word "choke" in the 911 call — in the "heat of the moment" — there is simply no obvious reason for him to omit it in the lengthy typewritten statement he later provided or in his conversation with the investigator. In the Court's view, a reasonable person in the same circumstances would have mentioned the alleged conduct, assuming it had occurred, when making these complaints. Moreover, there is no evidence Bishop received any medical treatment following the incident or suffered any significant injuries despite claiming he was "choked" and "unable to breathe" for nearly a minute.
Given the state of the record, the Court concludes that no reasonable jury could credit Bishop's assertion that Glazier choked him for 45 to 60 seconds. See Jenkins v. Anderson, 447 U.S. 231, 238-39, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (testimony about a previously undisclosed fact is undermined when "that fact naturally would have been asserted" earlier). Accordingly, and notwithstanding the allegations in the Amended Complaint, the Court accepts as true only Bishop's contention
Having determined what facts to consider in its analysis, the Court proceeds to address Count I, the excessive-force claim, for which Glazier argues that he is entitled to qualified immunity. Qualified immunity protects state actors unless they have "violate[d] clearly established ... constitutional rights of which a reasonable person would have known." Mitchell, 472 U.S. at 524, 105 S.Ct. 2806. In analyzing whether Glazier is entitled to immunity here, the Court must conduct a two-part inquiry: do facts show that the challenged conduct violated a constitutional right? If so, was the constitutional right at issue clearly established on the date in question? E.g., Avalos v. City of Glenwood, 382 F.3d 792, 798 (8th Cir.2004) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).
It is undisputed, on the date in question, that the Fourth Amendment precluded the use of excessive force by law-enforcement officers. E.g., Andrews v. Fuoss, 417 F.3d 813, 818 (8th Cir.2005). The question to be answered, therefore, is whether the force used by Glazier exceeded the quantum constitutionally permissible. As with all Fourth Amendment claims, the answer turns on the "objective reasonableness" of Glazier's conduct. Graham v. Connor, 490 U.S. 386, 392, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Samuelson v. City of New Ulm, 455 F.3d 871, 875 (8th Cir.2006). Under that standard, the Court must evaluate all of the facts and circumstances surrounding the use of force, "careful[ly] balancing ... the nature and quality of the intrusion on [Bishop's] Fourth Amendment interests against the countervailing governmental interests at stake." Copeland v. Locke, 613 F.3d 875, 881 (8th Cir.2010) (citations omitted). This is an objective inquiry, "without regard to [Glazier's] underlying intent or motivation." Samuelson, 455 F.3d at 875-76 (citation omitted).
The Court concludes that the amount of force employed here was not constitutionally excessive. The record establishes that when Bishop told Glazier he wanted to "go talk to" the Albert Lea officers, Glazier said "no, no, you're not going to go talk to those officers," essentially ordering him to remain in his vehicle. (Bishop Dep. at 99-100.) As acknowledged by Bishop's counsel at oral argument, Minnesota Statutes § 169.02 empowered Glazier to give such a command as part of his authority to "direct, control, or regulate traffic."
Bishop argues that Glazier never expressly ordered him to remain in his vehicle, asserting that "while sitting in the car, [he] did not ask whether he could exit his vehicle or whether he had permission to walk over to the Albert Lea police officers," but rather "asked ... whether Deputy Glazier could get one of the other officers for him." (Mem. in Opp'n at 15 (emphases in original).) That assertion is flatly contradicted by Bishop's deposition testimony:
(Bishop Dep. at 99 (emphases added).)
(Id. at 109 (emphases added).)
(Id. at 112 (emphases added); see also id. at 122 ("[H]e wouldn't let me go see the officer.") (emphasis added).) Bishop cannot create a genuine issue of material fact by contradicting his own deposition testimony at summary judgment. See, e.g., Frevert v. Ford Motor Co., 614 F.3d 466, 474 (8th Cir.2010). Moreover, despite his protestations to the contrary, it cannot seriously be disputed that Bishop understood he was to remain in his vehicle. (See Bishop Dep. at 100 ("Q: Was it your understanding that he wanted you to stay in your vehicle? A: No, it was my understanding
In the Court's view, Bishop is using semantics to avoid summary judgment, claiming that "being told he could not go speak to [an]other officer" is somehow different than "being told he could not get out of the car." (Reply Mem. at 4 (calling this "a distinction without a difference").) But even if Bishop were correct that Glazier did not expressly and clearly order him to remain in his vehicle, under the facts here, it was reasonable for him to believe he had given such an order. Qualified immunity, however, "protects all but the plainly incompetent or those who knowingly violate the law," not those who make "bad guesses in gray areas." Moore v. City of Desloge, Mo., 647 F.3d 841, 846 (8th Cir.2011) (internal quotation marks and citations omitted). Hence, even if Glazier had not been explicit in his command to Bishop, it would have been reasonable for him to believe he had given an unambiguous order and, therefore, use some measure of physical coercion to enforce it. Accordingly, he would be entitled to qualified immunity in any event. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (immunity turns on objective reasonableness of conduct, not official's intent or motivation).
In light of the foregoing, Count I of the Amended Complaint must be dismissed. Moreover, the Court's subject-matter jurisdiction in this action was premised on the existence of a federal claim. (See Am. Compl. ¶ 3.) Jurisdiction over the state-law claims — which are the only claims remaining with Count I dismissed — was invoked solely pursuant to the supplemental jurisdiction statute, 28 U.S.C. § 1367, which provides jurisdiction over state-law claims forming part of the same "case or controversy" as federal claims. But where all federal claims are dismissed prior to trial, the balance of factors to be considered in deciding whether to exercise supplemental jurisdiction over a pendent state-law claim typically militates against exercising such jurisdiction. E.g., Johnson v. City of Shorewood, Minn., 360 F.3d 810, 819 (8th Cir.2004) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)). That is the case here. Accordingly, the Court declines to exercise supplemental jurisdiction over Bishop's claims for assault (Count III), battery (Count IV), and false imprisonment (Count VIII), which will be dismissed without prejudice.
Based on the foregoing, and all the files, records, and proceedings herein,
