United States District Court, D. Nebraska
KENT W. RINNE, Plaintiff,
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.
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.
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).
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.
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.)
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)
UNDISPUTED MATERIAL FACTS
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); 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
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
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.
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
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
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
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
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
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
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
37. While Officer Hosick was placing handcuffs on Mr. Rinne,
Officer Hosick observed that Mr. Rinne was locking his arms