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Deezia v. City of Lincoln
United States District Court, D. Nebraska
October 29, 2018
BARINE DEEZIA, Plaintiff,
CITY OF LINCOLN, GREGORY GRAHAM, Lincoln Police Department Officer, AARON PETH, Lincoln Police Department Officer, TREY WAYNE, Lincoln Police Department Officer, ANDREW WINKLER, Lincoln Police Department Officer, MARK MOORE, Lincoln Police Department Officer, PATRICK MURPHY, Lincoln Police Department Officer, and JASON DRAGER, Lincoln Police Department Officer, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
brings this 42 U.S.C. § 1983 and negligence action
against the City of Lincoln, Nebraska, and several of its
police officers for violations of his Fourth and Fourteenth
Amendment rights when the officers allegedly falsely arrested
and used excessive force in detaining and arresting him.
After resolution of the Defendants' Motion to Dismiss
(Filing No. 31), the remaining claims in this suit are: (1) a
false-arrest claim against the Defendant police officers in
their individual capacities; (2) an excessive-force claim
against the Defendant police officers in their individual
capacities; and (3) a negligence claim against the City of
separate motions, Defendants move for summary judgment,
arguing that (1) the Defendant police officers are entitled
to qualified immunity and to judgment on the merits as to
Plaintiff's false-arrest and excessive-force claims
(Filing Nos. 73, 74, 75); and (2) the City of Lincoln is
entitled to sovereign immunity and to judgment on the merits
as to Plaintiff's negligence claim (Filing No. 72). I
shall grant the motions in part and deny them in part.
STATEMENTS OF MATERIAL FACTS
both Plaintiff and Defendants have presented the court with
their own statements of material facts, Plaintiff has not
properly controverted the Defendants' statement of facts
pursuant to NECivR 56.1, and Defendants have not responded in
any fashion to Plaintiff's statement of facts. While Rule
56.1(b)(1)allows me to consider Defendants'
statement of facts admitted under these
circumstances, I am also bound to give due consideration
to Plaintiff's properly referenced statement of facts
presented in opposition to the Defendants' Motions for
Summary Judgment. Jenkins v. Winter, 540 F.3d 742,
747 (8th Cir. 2008) (district court erred in not considering
statement of facts presented in opposition to summary
judgment motion). Therefore, I shall reproduce both
statements of material facts verbatim and discuss any
relevant disputes of fact in the course of analyzing the
substance of the pending motions.
Defendants' statement of material facts is as
1. Plaintiff Barine Deezia was a resident of Lincoln,
Nebraska, on March 20, 2016, the date of the incident giving
rise to this case.
2. City of Lincoln is a political subdivision of the State of
Nebraska that provides law enforcement through police
officers employed at the Lincoln Police Department
3. Defendants Gregory Graham, Aaron Peth, Trey Wayne, Andrew
Winkler, Mark Moore, Patrick Murphy, and Jason Drager
(collectively “Defendants”) were police officers
with LPD who were acting in the scope of their employment
during the incident giving rise to this case.
4. On Saturday, March 19, 2016, Nyakiam Domach
(“Domach”), Barine Deezia
(“Plaintiff”), Elizabeth Grayer
(“Grayer”) and another male were at a
5. Domach and Plaintiff had been drinking alcohol that
6. On Sunday, March 20, 2016, at approximately 12:30 a.m.
Domach, Plaintiff, Grayer, and the other male went to
“Main Street Café, ” a bar in downtown
Lincoln, Nebraska, near 14th and O Streets.
7. On Sunday, March 20, 2016, shortly after the close of the
bars in downtown Lincoln, Nebraska, at approximately 2:00
a.m. several LPD officers, including Defendants, were
monitoring the area of 14th and O Streets.
8. At the same time, Domach, Plaintiff, Grayer, and the other
male left “Main Street Café.”
9. Nearby the other Defendants were positioned in that area
as follows: Officers Graham, Peth, Winkler, and Moore, were
on the southwest corner of 14th and O Streets. Officer Wayne
was standing on the southeast corner of 14th and O Streets.
Officers Murphy and Drager were on the northeast corner of
14th and O Streets.
10. At that time, each Defendant was in his LPD uniform with
his police badge displayed.
11. Officers Graham, Winkler, Murphy, and Drager were wearing
body cameras on March 20, 2016.
12. Around 2:04 a.m. Officer Moore saw Domach, Plaintiff,
Grayer, and the other male near the southwest corner of 14th
and O Streets and commented to Officer Graham, Officer Peth,
and Officer Winkler about how drunk Domach appeared.
13. Officer Moore attempted to talk to the group, but they
refused to answer and walked away.
14. Moments later the Officers saw Ms. Domach being carried
across the street northbound by Plaintiff, Ms. Grayer, and
the other male. Ms. Domach appeared to be highly intoxicated
and nearly unconscious.
15. Officer Graham and Officer Peth walked across the street
northbound in the crosswalk to attempt to contact the group.
At the same time, Officer Winkler trailed behind both groups
with Juan Ramirez (“Ramirez”), who was a civilian
ride-along with Officer Winkler that evening.
16. As the two groups walked across the street, Officer
Graham attempted to talk to Plaintiff's group to ensure
the wellbeing of Domach and to see if medical attention was
17. Plaintiff began to act in an overagitated manner and was
confrontational. Plaintiff stated that “she is fine,
she is 21, she is not driving.” Officer Graham
explained that the group was not in trouble and that the
Officers simply wanted to make sure the Domach was okay,
whether she knew the individuals carrying her, if medical
attention was required, and what establishment they were
18. Once they reached the northwest corner, Officer Graham
asked the group to sit Ms. Domach in a patio chair in the
Jimmy John's outdoor patio area. At that point, Officer
Graham attempted to talk to Grayer who appeared to be the
calmest and most cooperative.
19. As this was going on, Officer Winkler and Ramirez stood
back approximately 15-20 feet away, but within eyesight.
20. As Officer Graham attempted to talk to Ms. Grayer,
Plaintiff became verbally aggressive and got in Officer
Graham's face and began screaming “do not talk to
her” and then yelled at Grayer telling her “you
will not talk to them” and “do not talk to
21. Officer Graham asked Plaintiff several times to be quiet
and to step away. Graham also asked Plaintiff to calm down,
that they would not be in any trouble if he could simply
determine if Domach was safe, knew the group, and where they
were coming from.
22. The Officers told Deezia that they did not want to talk
23. While Plaintiff continued to be belligerent towards
Officer Graham, Domach remained unresponsive.
24. Because Plaintiff was making it impossible for Officer
Graham to get any information from Grayer, Officer Peth
attempted to redirect Plaintiff by asking Plaintiff to step
away from the group.
25. Officer Peth placed his hand on Plaintiff's torso to
guide him towards the building to separate him from the
26. Plaintiff was immediately resistive to this and refused
to walk with Officer Peth by planting his feet and then
pushing Officer Peth in the chest.
27. After being pushed, Officer Peth grabbed Plaintiff's
hand and told him to put his hands behind his back. Plaintiff
ignored this order.
28. Officer Winkler then approached Plaintiff and Officer
Peth. He told Plaintiff to put his hands behind his back as
he grabbed one of Plaintiff's hands. Plaintiff did not
put his hands behind his back and resisted Officer Peth's
and Officer Winkler's attempts to force them behind his
29. While Officer Peth and Officer Winkler were doing this,
Officer Graham stayed next to Grayer, Domach and the other
male to ensure everyone's safety and make sure no other
individuals interfered with Officer Peth or Officer Winkler.
30. Plaintiff continued to pull and push away from Officer
Peth and Officer Winkler, so Officer Peth and Officer Winkler
attempted to place Plaintiff on the ground in an effort to
gain better control.
31. Once Plaintiff was on the ground, he continued to
struggle and was able to stand back up.
32. During this time, Officer Moore, who was still over on
the southwest corner, heard his name being called. When he
turned around, he saw Plaintiff fighting with Officer Peth
and Officer Winkler. Officer Moore then ran across the street
and began assisting Officer Graham with crowd control.
33. Officer Peth and Officer Winkler then attempted to back
Plaintiff up into the window of Jimmy John's to gain
better control of Plaintiff. At the same time, Officer Peth
and Officer Winkler told Plaintiff to stop resisting and put
his hands behind his back. Plaintiff ignored these commands
and continued to pull away from the Officers and actively
resisted efforts to be handcuffed.
34. Officer Winkler then attempted to strike Plaintiff's
right leg with a closed fist to distract Plaintiff and get
him to comply; however, this attempt was unsuccessful and
Plaintiff became even more aggressive with Officer Peth and
35. Officer Peth then performed a balance displacement
technique to place Plaintiff on the ground a second time.
36. Once on the ground, Plaintiff continued to resist and
struggle with Officer Peth and Officer Winkler and was able
to return to his feet.
37. Plaintiff actively tried to get away from the Officers
and pulled his arms away.
38. At this time, from his position across the street,
Officer Wayne saw Officer Peth and Officer Winkler physically
struggling with Plaintiff and ran across the street to
39. As Officer Wayne approached the scene, Officer Peth
performed a knee strike to Plaintiff's left common
peroneal with no effect.
40. Seeing that the knee strike had no effect, Officer Wayne
then announced his presence and ordered Plaintiff to
“stop fighting.” Wayne repeated a second time
“Police stop fighting.” When those orders were
ignored and Plaintiff continued to pull away and fight with
the Officers, Officer Wayne grabbed Plaintiff's left
wrist and arm above the elbow.
41. At that time, Officer Wayne, who was at the eastern most
outside edge of the patio, pulled out his Taser and ordered
that Plaintiff stop or be tased.
42. Realizing that the Taser would not work in such close
quarters, Officer Wayne put away the Taser. As this happened,
Officer Murphy and Officer Drager saw what was going on and
ran across the street to help.
43. As Officer Drager and Officer Murphy reach[ed] the patio
area, Plaintiff moved towards the outside of the patio
towards Officer Wayne and the approaching officers. Upon
reaching the patio, Plaintiff moved to the east edge of the
patio near Officer Murphy, so Officer Murphy reached for
Plaintiff's arm, but was unable to grab ahold of it.
44. Plaintiff continued to move towards the patio's exit,
towards Officer Drager, so Officer Drager grabbed
Plaintiff's head to pull him forward towards the ground,
but Plaintiff pushed and pulled away from Officer Drager.
45. Breaking through to outside the gated patio, Plaintiff
went towards Officer Wayne and wrapped him up around his
waist. Faced with the option of either falling backwards on
his back and being in an extremely dangerous position, or
counter Plaintiff's forward momentum, Officer Wayne took
advantage of Plaintiff's forward moment[um] and performed
an inside takedown to displace Plaintiff and get him to the
46. Plaintiff landed on the sidewalk hitting his head as he
landed. As Officer Winkler and Officer Murphy applied
handcuffs, they realized Plaintiff was unconscious due to
hitting his head when he landed. Officer Wayne and Officer
Graham immediately called for medical personnel while Officer