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Deezia v. City of Lincoln

United States District Court, D. Nebraska

October 29, 2018

BARINE DEEZIA, Plaintiff,
v.
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.

         Plaintiff 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 Lincoln.

         In four 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.

         I. STATEMENTS OF MATERIAL FACTS

         Unhelpfully, 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)[1]allows me to consider Defendants' statement of facts admitted under these circumstances[2], 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.

         The Defendants' statement of material facts is as follows[3]:

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 (“LPD”).
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 housewarming party.
5. Domach and Plaintiff[] had been drinking alcohol that evening.
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 required.
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 coming from.
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 them.”
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 to him.
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 group.
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 back.
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 Officer Winkler.
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 assist.
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 ground.
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 ...

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