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Awnings v. Fullerton

United States Court of Appeals, Eighth Circuit

January 4, 2019

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

          Appeal from United States District Court for the District of Nebraska-Lincoln

          Before SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.

          SMITH, Chief Judge

         Thompson 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[1] 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.

         I. Background

         A. Awnings's Arrest[2]

         On an 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 wished.

         Unsatisfied, 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.

         At that 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 the ground.

         Officer 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.

         B. Awnings's Transport to the Detention Center[3]

         Awnings 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.

         C. District Court and Other Proceedings

         Awnings's scuffle with the LPD led to several, subsequent state criminal charges.[4] 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 convictions.

         After 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.

         Elizabeth 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 officers.

         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.

         Officers 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[5] 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 ...

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