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Rinne v. City of Beatrice

United States District Court, D. Nebraska

November 18, 2019

KENT W. RINNE, Plaintiff,
v.
CITY OF BEATRICE, DERRICK HOSICK, Beatrice Police Department Officer #306, in his individual capacity, ANTHONY CHISANO, Beatrice Police Department Officer #304, in his individual capacity, and NATASHA NESBITT, Beatrice Police Officer #316, in her individual capacity, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff brings this 42 U.S.C. § 1983 action for money damages against three City of Beatrice police officers, in their individual capacities, alleging constitutional violations stemming from an arrest for speeding, driving under the influence, refusal to submit to a preliminary breath test, and failing to obey a police officer. Pending before the court is Defendants' Amended Motion for Summary Judgment based on qualified immunity and, alternatively, on the merits. (Filing 43.) For the reasons that follow, Defendants' Motion shall be granted.

         I. PROCEDURAL BACKGROUND

         Plaintiff originally asserted section 1983 claims for excessive force, false arrest, false imprisonment, and negligence. (Filing 1.) The parties jointly dismissed the negligence claim without prejudice (Filing 12), and the court dismissed without prejudice the excessive-force and false-arrest claims against the City of Beatrice and the Defendant officers in their official capacities, as well as the false-imprisonment claim against all parties in all capacities (Filing 14).

         The court granted Plaintiff leave to file an amended complaint to assert additional claims that surfaced during discovery. (Filings 27, 38.) Plaintiff filed a First Amended Complaint (Filing 39) alleging the following claims: (1) excessive force (§ 1983 claim under Fourth and Fourteenth Amendments) against all Defendant officers; (2) failure to intervene and false arrest (§ 1983 claim under Fourth and Fourteenth Amendments) against Defendant Officers Nesbitt and Chisano; (3) denial of right to fair trial (§ 1983 claim under Fifth and Fourteenth Amendments) against Defendant Officer Hosick; and (4) intentional infliction of emotional distress (state law) against all Defendant officers. Plaintiff does not assert any new claims against the City of Beatrice.

         Despite the explicit statement in Plaintiff's First Amended Complaint that he sues the Beatrice police officers “in their official capacity” (Filing 39 ¶ 15), Plaintiff has now informed the court that he is suing Defendants Derrick Hosick, Anthony Chisano, and Natasha Nesbitt in their individual capacities only as to all claims-including the new claims asserted for the first time in Plaintiff's First Amended Complaint. Plaintiff represents that counsel for the Defendants does not object to Plaintiff's clarification. (Filing 51.)

         II. STANDARD OF REVIEW

When a defendant asserts a defense of qualified immunity, a plaintiff must show that the facts taken in the light most favorable to him establish (1) that the defendant violated his constitutional right and (2) that the right was clearly established at the time of the incident. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). A right is “clearly established” only if the violation was “beyond debate” such that only a plainly incompetent officer or a knowing lawbreaker would engage in the alleged misconduct. District of Columbia v. Wesby, ___ U.S. ___, 138 S.Ct. 577, 589, 199 L.Ed.2d 453 (2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)).

Johnson v. McCarver, No. 18-1148, ___ F.3d ___, 2019 WL 5656242, at *2 (8th Cir. Nov. 1, 2019)

         III. UNDISPUTED MATERIAL FACTS

         The court finds that the following material facts, as stated in the Defendants' brief, are fully supported by the evidence cited and have not been properly controverted by Plaintiff. Consequently, they are deemed admitted for purposes of summary judgment. See NECivR 56.1(b)(1); Fed.R.Civ.P. 56(e)(2)[1]; see also Roe v. St. Louis Univ., 746 F.3d 874, 881 (8th Cir. 2014) (“[i]f no objections have been raised in the manner required by the local rules, a district court will not abuse its discretion by admitting the movant's facts”).

1. On August 25, 2016, Officer Hosick was on duty with the Beatrice Police Department.
2. On August 25, 2016, at approximately 1928 hours, Officer Hosick was traveling north in the 1000 block of South 6th Street in Beatrice, Nebraska when he observed a red Buick traveling south which appeared to be traveling above the posted 35 MPH speed limit.
3. Officer Hosick utilized his front radar antenna and obtained a radar clock of 50 MPH on the red Buick.[2]
4. Officer Hosick conducted a vehicle stop on the red Buick as it pulled into the residence driveway of 1200 South 6th Street in Beatrice, Nebraska.
5. Officer Hosick contacted the driver of the red Buick, who was identified as Mr. Rinne.
6. Officer Hosick asked Mr. Rinne why he was traveling so fast, and Mr. Rinne stated that he had to use the restroom.
7. While Officer Hosick was waiting for Mr. Rinne to find his registration and insurance documentation, Officer Hosick detected the odor of alcoholic beverage emitting from Mr. Rinne's vehicle.
8. Officer Hosick returned to his patrol vehicle to ensure Mr. Rinne did not have any warrants, he returned to Mr. Rinne's car, and Mr. Rinne had stepped out of his vehicle.
9. As Officer Hosick spoke to Mr. Rinne outside of his vehicle, he again detected the odor of alcoholic beverage emitting from Mr. Rinne's person.
10. Officer Hosick asked Mr. Rinne if he had anything to drink that evening, and Mr. Rinne admitted that he had three to four beers.
11. Officer Hosick also observed Mr. Rinne's eyes to be bloodshot and watery, and he appeared to have slightly lethargic, slurred speech.
12. At this time, Officer Hosick requested Mr. Rinne to submit to field sobriety testing to determine his level of impairment and if he was ok to be driving on the road.
13. Mr. Rinne informed Officer Hosick that he was no longer driving and was already home.
14. Officer Hosick advised Mr. Rinne that he was aware that he was home, but that Officer Hosick had observed Mr. Rinne commit a violation on the roadway.
15. Officer Hosick continued to ask Mr. Rinne if he was willing to submit to field sobriety testing, and Mr. Rinne continued to neglect answering the question by informing Officer Hosick that he was on his own property, he was not speeding, and he was going to wait for his wife to get home.
16. Mr. Rinne admitted that he did not comply with Officer Hosick's request to submit to field sobriety testing.
17. Officer Hosick informed Mr. Rinne that he was accepting his re-direction as a refusal to submit to the field sobriety testing, and that he was going to continue with his DUI investigation.
18. Officer Hosick informed Mr. Rinne that the next step was for Mr. Rinne to take a preliminary breath test.
19. Mr. Rinne refused to give Officer Hosick a direct answer if he was going to refuse the preliminary breath test.
20. Officer Hosick instructed Mr. Rinne to move to his patrol vehicle so he could gather the items needed for a preliminary breath test and Mr. Rinne repeatedly refused to move to the patrol vehicle.
21. Officer Hosick attempted to grab Mr. Rinne's arm and direct him to his patrol vehicle, but Mr. Rinne pulled away from Officer Hosick's grasp.
22. At this time, Mr. Rinne again informed Officer Hosick that he was going to wait for his wife.
23. Mr. Rinne also stated that he was not drunk and that Officer Hosick was on his property.
24. Officer Hosick informed Mr. Rinne that he was interfering with the DUI investigation, and if he continued to do so, he would be taken to jail.
25. Mr. Rinne continued to redirect Officer Hosick's questioning, informing Officer Hosick that he had not violated any law.
26. At such time, Officer Nesbitt arrived on location for assistance.
27. Officer Hosick asked Mr. Rinne what he did not understand and how he could explain the situation better, and Mr. Rinne replied “What you need to do is get the proper information to do it.” 28. Officer Hosick repeatedly told Mr. Rinne “let's go” [back to the patrol vehicle] and every time Mr. Rinne responded “no”.
29. Officer Hosick verbally told Mr. Rinne that he was placing him under arrest and stated multiple times that he needed him to turn around and place his hands behind his back, but Mr. Rinne refused.
30. At such time, Mr. Rinne was placed under arrest for obstruction.
31. Officer Hosick never issues a citation in lieu of arrest for failing to obey a lawful order.
32. Officer Chisano did not participate in Mr. Rinne's arrest.
33. As Officer Hosick informed Mr. Rinne that he was under arrest, Mr. Rinne informed Officer Hosick that he was not.
34. Officer Hosick informed Mr. Rinne that he was going to take him to sit in the back of Officer Hosick's patrol vehicle, and Mr. Rinne stated “no we are not.” 35. Officer Hosick grabbed Mr. Rinne and directed him to place his hands behind his back.
36. Officer Nesbitt observed that Mr. Rinne refused to place his hands behind his back after Officer Hosick's instructions to do so, and instead just stood there and said that he wanted to continue to wait for his wife to get on scene.
37. While Officer Hosick was placing handcuffs on Mr. Rinne, Officer Hosick observed that Mr. Rinne was locking his arms ...

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