Thompson L. Awnings, formerly known as Tristan Simon Plaintiff-Appellant
Joshua Fullerton; Ryan Duncan Defendants-Appellees Jeremy Carther; Todd Roberts Defendants Tarvis Banks; 1-10 Does Defendants-Appellees
Submitted: May 16, 2018
from United States District Court for the District of
SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.
Awnings sued, among others, Officers Joshua Fullerton, Ryan
Duncan, and Tarvis Banks of the Lincoln Police Department
(LPD) under 42 U.S.C. § 1983 in their individual
capacities. Awnings's suit alleged multiple
constitutional violations by the officers, including false
arrest, excessive force, and denial of medical care. He
claims the district court erred by: (1) refusing to disqualify
the entire City of Lincoln Attorney's Office; (2)
granting qualified immunity to Officers Fullerton and Duncan;
and (3) dismissing Officer Banks from Awnings's suit
pursuant to Federal Rule of Procedure 12(b)(6). We affirm.
early morning in July 2013, Officers Fullerton and Duncan of
the LPD encountered Damien Wilkins on a sidewalk in Lincoln.
The officers questioned Wilkins about his possible
involvement with criminal activity. Awnings, Wilkins's
companion, inserted himself into the conversation and began
asking the officers why they were questioning Wilkins.
Officer Fullerton informed Awnings that the officers were
conducting law enforcement business with Wilkins. Officer
Fullerton then told Awnings, who had been drinking, that he
could wait for his friend a short distance away, if he
Awnings-now obviously angry and agitated-refused the
direction to step away. Awnings then, in an expletive-laced
exclamation, declared that "[h]e would protect his
buddy" and that he was "not going anywhere."
Qualified Immunity Order at 9. Awnings was several feet from
Officer Fullerton, and the officer instructed Awnings to step
away from the officers. Awnings again refused, asking,
"Why should I leave?" Id. at 9. Officer
Fullerton answered that Awnings was interfering with an
investigation and that his behavior distracted them from
their work. Awnings uttered another expletive and told the
officer, "I am staying right here." Id.
Officer Fullerton-for the third time-asked Awnings to leave
the immediate area; Officer Fullerton reinforced his request
by warning Awnings that if he refused, he would go to jail.
In response, Awnings again blurted out the same expletive,
followed by "I'll kick your ass." Id.
point, Officer Fullerton informed Awnings that he was under
arrest and commanded Awnings to place his hands behind his
back. Awnings refused, telling Officer Fullerton,
"I'm gonna kick your [expletive] ass."
Id. Officer Fullerton then "reached out and
grabbed onto [Awning's] arm and wrist, but then [Awnings]
stiffened his arm and began to pull away. Officer Fullerton
again told [Awnings] he was under arrest and to stop
resisting and [Awnings] continued to resist and pull
away." Id. at 10. The officer then executed a
hip toss maneuver, which put Awnings "on his back on the
ground with Officer Fullerton on top of him."
Id. The two men began to fight. Officer Jon-Eric
Meyer, who had arrived at the scene, joined with Officer
Duncan and came to Officer Fullerton's assistance. As the
officers attempted to handcuff Awnings, he resisted,
"actively kicking and punching at the officers."
Id. Awnings then
hook[ed] his hand under Officer Duncan's LPD uniform
shirt and [brought] his hand up to the collar, grabbing onto
the body armor and undershirt as well as his collar.
[Awnings] used this hold . . . to try to pull Officer Duncan
to the ground with force, causing the collar to cinch around
Officer Duncan's neck.
Id. Meanwhile, "Officer Duncan gave numerous
commands for [Awnings] to let go" and to put his hands
behind his back. Id. Awnings ignored the directive
and continued to tighten his grip on Officer Duncan's
shirt collar, and the officer "tried to strike [Awnings]
a couple of times" to induce Awnings to release his
grasp. Id. at 11. Awnings pinned Officer Duncan to
Duncan yelled to his colleagues for help. Awnings eventually
released Officer Duncan's shirt, and the officers then
rolled Awnings onto his stomach and handcuffed him. Awnings
refused to walk to the police cruiser. Officer Jeremy Carther
from the University of Nebraska-Lincoln Police Department
arrived and assisted the LPD officers in placing Awnings on
his back in the backseat of the cruiser. Awnings continued to
resist and yell profanities. Awnings kicked Officer Carther
in the chest twice. At that point, Officers Fullerton, Meyer,
and Carther removed Awnings from the cruiser and called for a
vehicle with a "full backseat cage." Id.
at 11. Awnings continued to resist the officers, and when a
police vehicle equipped with the full cage arrived, Officer
Chris Howard placed Awnings in leg restraints. The officers
then placed Awnings into the police cruiser. Officer Duncan
sustained minor injuries from the scuffle.
Awnings's Transport to the Detention
sustained visible injuries during his arrest. Because he was
bleeding, the LPD officers called for an ambulance to
transport Awnings to the Bryan West Medical Center ("the
Hospital"). Officer Howard accompanied Awnings in the
ambulance. At the Hospital, Awnings told the examining
physician that he believed he had one or more fractured ribs.
The doctor ordered a chest X-ray, which revealed no rib
fracture. The doctor pronounced Awnings fit for
incarceration, but he ordered a follow-up examination at the
Hospital within one to two days. Officer Banks, who had
relieved Officer Howard during Awnings's examination at
the Hospital, then transported Awnings to the Lancaster
County Jail. Officer Banks neglected to inform jail personnel
of the doctor's request for a follow-up appointment with
Awnings; he "simply informed jail personnel that
[Awnings] had been to the emergency room and had been deemed
fit for confinement." Mem. & Order at 3, Awnings
v. Fullerton, No. 4:15-cv-03078-RGK-CRZ (D. Neb. Jan.
20, 2016), ECF No. 40.
District Court and Other Proceedings
scuffle with the LPD led to several, subsequent state
criminal charges. Awnings pleaded no contest to two of the
charges, and the District Court of Lancaster County,
Nebraska, sentenced him to two consecutive 90-day jail terms.
The Nebraska Court of Appeals upheld Awnings's
his state convictions, Awnings filed a lawsuit in federal
court pursuant to 42 U.S.C. § 1983, alleging, among
other things, that Officer Fullerton arrested Awnings without
probable cause and that Officers Fullerton and Duncan used
excessive force in effecting his arrest. Awnings also alleged
that Officer Banks-because of his failure to inform jail
personnel of the Hospital doctor's request for a
follow-up examination-deprived him of his right to be free
from unreasonable seizures under the Fourth Amendment.
Awnings also claimed that Officer Banks's conduct
amounted to a denial of medical care, violating his due
process rights under the Fourteenth Amendment.
Elliott, an attorney employed by the City of Lincoln
Attorney's Office (CLAO), initially represented the LPD
officers. In that capacity, she filed a notice of intent to
serve subpoena duces tecum with the district court. Elliott
previously had worked in the Lancaster County Public
Defender's Office (LPDO). In fact, Elliott worked as an
attorney in that office while the LPDO defended Awnings's
state criminal charges. Awnings objected to the notice, and
Elliott moved to withdraw from the case upon discovering the
potential conflict. Awnings then moved to disqualify the
entire CLAO, claiming Elliott's employment at the LPDO
while that office represented Awnings created a conflict of
interest that could prejudice his civil suit against the
magistrate judge considered Awnings's motion and found
that while employed with the LPDO, Elliott "did not
represent [Awnings], never appeared with [Awnings] in court,
and never spoke to him about his case. She [did] not recall
[Awnings] or the underlying facts of his state criminal case.
She was never 'actively involved' in [Awnings's]
underlying state criminal case." Mem. & Order at 3,
Awnings v. Fullerton, No. 4:15-cv-03078-RGK-CRZ (D.
Neb. Oct. 14, 2015), ECF No. 26 (citation omitted). And
Awnings pleaded no contest to the criminal charges after
Elliott left the LPDO. The CLAO assured the court that
"Elliott has no confidential information regarding
[Awnings] and as such, has not divulged any confidential
information to [the CLAO] about [Awnings] or his criminal
case." Id. at 4. Further, the CLAO had screened
Elliott from any further work in Awnings's case. Finding
no imputed conflict of interest stemming from Elliott's
prior employment at the LPDO, the magistrate judge denied
Awnings's motion to disqualify the entire CLAO. The
district court affirmed the magistrate judge's order.
Banks, Duncan, and Fullerton moved to dismiss Awnings's
§ 1983 suit under Federal Rule of Civil Procedure Rule
12(b)(6). The district court partially granted the motion and
dismissed Officer Banks from the suit. Officers Duncan and
Fullerton subsequently filed a motion for summary judgment,
which the district court granted. The court concluded that
the Heck doctrine barred Awnings from claiming
false arrest. But even if Heck did not foreclose
Awnings's false arrest claim, the district court
determined that Officers Duncan and Fullerton had probable
cause to arrest Awnings. Further, the court concluded that
the officers' use of force was "objectively
reasonable under the circumstances and did not violate
[Awnings's] constitutional rights." Qualified
Immunity Order ...