Archives for category: law enfocement

This decision is on defendant’s motion to dismiss for summary judgment under Rule 12(b)(6). The motion is denied. The facts refer to a ninja-like mask worn by an FBI drug task force executing a search warrant.

GARY A. ADAMS, DENISE ADAMS, SHAQUEL ADAMS RILEY, TAILON ADAMS, GARY A. ADAMS, on behalf of BRYA ADAMS, a minor, and SHAQUEL ADAMS RILEY on behalf of her minor children, SAVON RILEY, SHANE ADAMS, SURRON ADAMS, STEFON ADAMS, TERREL JACKSON and SERENITY WEST, Plaintiffs,
v.
KAREN SPRINGMEYER, JOHN DOE 1-11, Defendants.

Civil Action No. 11-790

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Decided May 22, 2012 by U.S. District Judge Nora Barry Fischer.

The Statement of Facts (citations to the record removed):

A drug task force supervised by Defendant Springmeyer forcibly entered Plaintiffs’ home to execute an arrest warrant for Sondra Hunter, a suspect who was entirely unrelated to Plaintiffs. Plaintiffs claim that Defendants knew or had reason to know that Hunter did not reside at the home, as she had moved out of the house several months before the Plaintiffs leased the same residence on June 5, 2010. Living in the home at the time of the incident were Gary A. Adams, his wife Denise Adams, and their minor daughter, Bryna Adams. Tailon Adams, Shaquel Adams Riley, and Ms. Riley’s minor children, Savon Riley, Shane Adams, Surron Adams, Stefon Adams, Terrel Jackson, and Serenity West, also resided in the home at that time. When the incident occurred, Plaintiffs ranged in ages from three to fifty-eight. [Footnote#6: According to the caption of the Amended Complaint, seven of the thirteen plaintiffs are minors.] The Amended Complaint also states that Plaintiffs are “law abiding citizens of the United States, who have no record of criminal activity.”

At approximately 5:30 a.m. on March 3, 2011, Plaintiff Gary Adams was awakened by screams from the first floor of his home. When he descended the stairs from the second floor to the first floor, he observed a battering ram “violently” knock down the front door, and Defendants “stormed into the house pointing assault rifles at [him] and plaintiff Denise Adams and Shane Adams[,] who were on the first floor” at the time. Defendants then aimed red laser targeting beams at Plaintiff Gary Adams’s head, which “plac[ed] [him] in immediate fear that he was about to be shot in the head.” Plaintiffs did not know that Defendants were law enforcement officers and instead believed that Defendants were “criminals breaking into their home in a ‘home invasion.'”

Plaintiffs claim that approximately eleven individuals, presumably John Does 1-11, entered the home through both the front and back doors. Defendants were “dressed in tactical ninja[-]like uniforms” [Footnote#8: At argument, Counsel for Plaintiffs further described these uniforms as having hoods that obscured the identities of the individuals participating in the raid.] and shouted profanities at Plaintiffs, including “get the fuck down on the ground” and “shut the fuck up.” While Defendants pointed assault rifles at Plaintiffs, Defendants gathered Plaintiffs on the first floor of the house but refused to answer any questions regarding why they had broken into their home. Defendants then escorted Plaintiffs outside to the sidewalk even though Plaintiffs were dressed only in their bedtime clothing or underwear. [Foonote#9: Only Plaintiff Shaquel Adams Riley, who was in her “her twenties . . . [or] [m]aybe early thirties” at the time of the home invasion, was forced to stand outside in her underwear.] It was “freezing cold” outside at the time of this incident. In the course of the home invasion, Defendants also searched all of the rooms in Plaintiffs’ home.

“At some point [during the raid],” Defendant Springmeyer identified herself as the supervising agent and explained that Defendants had entered Plaintiffs’ home to execute an arrest warrant on Hunter. Plaintiffs state that “[a]t all times relevant hereto, [D]efendant Springmeyer participated in[,] directed, approved, and/or with knowledge of its unconstitutionality acquiesced in the conduct and actions, of other law enforcement officials, including ones acting as federal agents and/or ones acting under color of state law.”

Plaintiff Gary Adams told Springmeyer that they were not associated with Hunter and that she lived in their home before they rented it. Furthermore, Plaintiffs claim that “[D]efendants knew or had reason to believe that [Plaintiffs] were the actual residents at the address appearing on any arrest warrant and likewise knew or had reason to believe that [P]laintiffs had no association whatsoever with the alleged suspect [Hunter].” Plaintiffs state that they “openly occupied and resided” in their home, which “was easily verifiable by anyone interested in determining who resided in such property.”

As a consequence of this incident, Plaintiffs plan to vacate their home, as “their continued presence therein serves as a constant reminder of the events” that occurred. [Footnote#10: As of the time of the hearing on Defendant Springmeyer’s Motion to Dismiss, which occurred on March 26, 2012, Plaintiffs had not yet vacated their home. Counsel for Plaintiffs stated that one Plaintiff “may have left and relocated for a period of time” and may or may not have returned to the residence.

In deciding that adequate facts had been alleged to state a claim the opinion again refers to:

“tactical ninja-like uniforms” that obscured their identities. Plaintiffs only learned of Springmeyer’s identity because she introduced herself and stated that she supervised the raid. Given the nature and circumstances of this incident, it would be difficult for Plaintiffs to plead the facts in their Amended Complaint with any more specificity. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (stating, “The Third Circuit has held that a civil rights complaint is adequate where it states the conduct, time, place, and persons responsible”) (citing Boykins v. Ambridge Area Sch. Dist., 621 F.2d 75, 80 (3d Cir. 1980)).

and

it is evident from Plaintiffs’ Amended Complaint that Defendant Springmeyer, along with the eleven John Doe Defendants, was responsible for the excessive force that was allegedly used against Plaintiffs. Again, based on the nature and circumstances of the home invasion and the “tactical ninja[-]like uniforms” worn by Defendants during the raid that obscured their identities, it would be unreasonable to require Plaintiffs to plead these facts with further specificity at this time.

Police warrants on protest groups before the Republican National Convention – implicates the rights to associate and protest and rights of search and seizure. The warrants were for bomb-making materials, but at one plaintiff’s address they found ninja foot spikes. This is the decision on motions for summary judgments.

SCOTT DEMUTH, ALEXANDER LUNDBERG, CELIA KUTZ, NATHAN CLOUGH, VINCENT COLLURA, and ANDREW FAHLSTROM, individuals, Plaintiffs,
v.
ROBERT FLETCHER, individually and in his official capacity as Ramsey County Sheriff, INSPECTOR SAMEC, individually and in his official capacity as Deputy of the Ramsey County Sheriff’s Department, COMMANDER RICH CLARK, individually and in his official capacity as Deputy of the Ramsey County Sheriff’s Department, COMMANDER SOMMERHAUSE, individually and in his official capacity as Deputy of the Ramsey County Sheriff’s Department, COUNTY OF RAMSEY, a Minnesota municipal entity CERTAIN UNKNOWN AND UNNAMED SAINT PAUL POLICE OFFICERS, CITY OF SAINT PAUL, CERTAIN UNKNOWN AND UNNAMED CITY OF MINNEAPOLIS POLICE OFFICERS, and CITY OF MINNEAPOLIS, a Minnesota municipal entity, Defendants.

Civil No. 08-5093 (JRT/LIB)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA

2011 U.S. Dist. LEXIS 34638

Decided March 31, 2011

Opinion by US District Judge John R. Tunheim:

Defendants Robert Fletcher, Tony Samec, Dale Sommerhause, and Rich Clark (“defendants”) executed search warrants at various locations in August 2008 in relation to alleged illegal activity undertaken by members of a group known as the Republican National Convention Welcoming Committee (“RNCWC”). Defendants seized a large quantity of documents and other items, some of which allegedly belongs to plaintiffs Scott Demuth, Alexander Lundberg, Celia Kutz, Nathan Clough, Vincent Collura, and Andrew Fahlstrom (“plaintiffs”).

Plaintiffs are alleged co-owners of various materials seized by police officers during a raid of several buildings in 2008, prior to the Republican National Convention (“RNC”). Kutz, Fahlstrom, and Clough were members of a collective known as the RNCWC which raised funds to rent space to congregate, share ideas, and organize various protest activities related to the RNC. The RNCWC provided space and tables to allow the distribution of their own literature, as well as the literature of other groups and activists. The RNCWC intended to shut down the RNC to prevent it from occurring, and to prevent delegates from arriving at the RNC’s location.

The documents include statements such as “EVERYTHING YOU NEED TO KNOW TO BE SMART AND DANGEROUS DURING THE RNC BEFORE YOU ASK,” and explicit instructions for making a Molotov cocktail.

On August 29, 2008, Inspector Tony Samec, Commander Dale Sommerhause, and Commander Rich Clark of the RCSO applied for and received a warrant to search for assembled and unassembled bombs and materials to construct bombs, documents, and other materials at the Convergence Center. The application and resulting warrant described a variety of weapons and materials the affiants believed would be found there, including “[a]ssembled improvised incendiary devices . . . [i]gnitable liquids . . . [s]moke bombs . . . [and] [m]anuals, books and/or instructions for the construction of Molotov cocktails, bombs and other direct action techniques[.]”

One of the addresses searched:

D. 3500 South Harriet Avenue

On August 30, 2008, at 8:00 am, officers executed a search warrant at 3500 South Harriet Avenue. (Incident Report 3500 S. Harriet Ave., Samec Aff. Ex. A, Docket No. 56.) Officers located several weapons, including “ninja foot spikes,” a slingshot, and documents relating to the RNC. (Id. at 4-5.) Plaintiff Vincent Collura alleges that after entering the house, police ordered him to lie on the floor, where he was handcuffed and searched, then was unbound and taken outside approximately a half-hour later.

Collura testified that he resided at the residence at the time of the search, and shared a bedroom with Max Specktor. Collura also asserts ownership of a two-page address and phone list, from which he was transferring phone numbers into a new cell phone, that was seized by officers effectuating the warrant. Collura testified that the raid had a chilling effect on his desire to participate in the planned protests of the RNC for fear of further interactions with the police. (Collura Dep. 54:5-7, Apr. 30, 2010, Angolkar Aff. Ex. P.)

A whole bunch of legal analysis – concluding:

Based upon all the files, records and proceedings herein, IT IS HEREBY ORDERED that:

1. Defendants’ Motion for Summary Judgment [Docket No. 53] is GRANTED in part and DENIED in part;

a. The motion is GRANTED as to plaintiffs’ claims for conspiracy, failure to prevent, and claims under Monell;

b. The motion is GRANTED as to claims against any unknown officers. The “certain unknown and unnamed Saint Paul Police Officers, including officers John Doe and Jane Roes 1 thru 100” and “certain unnamed and unknown City of Minneapolis Police Officers, including officers John Doe and Jane Does 1 thru 100,” are DISMISSED with prejudice.

c. The motion is DENIED in all other respects.

2. Plaintiffs’ Motion for Partial Summary Judgment [Docket No. 51] is DENIED.

DATED: March 31, 2011

at Minneapolis, Minnesota.

/s/ John R. Tunheim

This case is a bizarre set of allegations of a conspiracy against petitioner by DHS and other government agencies (*FBI Ninja Sharpshooters*).

WILFREDO TORRES, Plaintiff,
-against-
DEPARTMENT OF HOMELAND SECURITY, Defendant.

09 Civ. 8640 (RJS)(KNF)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

2010 U.S. Dist. LEXIS 120353

Decided by
KEVIN NATHANIEL FOX, UNITED STATES MAGISTRATE JUDGE.
THE HONORABLE RICHARD J. SULLIVAN, UNITED STATES DISTRICT JUDGE.
November 2, 2010

Because this case is a bizarre pro se fact pattern, here is quoted the entirety of the background facts from Judge Fox’s opinion:

The gravamen of Torres’ complaint is that, since 1980, DHS has been involved in a large-scale conspiracy, with various government and private entities, to “persecute []” him and his family. Among the entities with which DHS has allegedly conspired are: (1) the New York City Police Department; (2) American Airlines; (3) the plaintiff’s landlord, Bellevue South Associates; (4) a Mafia gang operating in midtown Manhattan; (5) the Drug Enforcement Administration; (6) the Puerto Rico Police Department; (7) the New York State Department of Motor Vehicles; (8) Zurich American Insurance Company; (9) Independence Bank; (10) White Rose Food; (11) the New York City Administration for Children Services; (12) “Krasdale Foods, Benfica Trucking [] and the Teamsters Union”; (13) Beth Israel Medical Center; and (14) the United States Postal Service. None of these entities is named as a defendant in this action.

The plaintiff alleges that DHS, as part of its conspiracy, has, inter alia: (1) falsely arrested him on at least three occasions; (2) placed his name on an airline passenger list, describing him as a “terrorist”; (3) caused flooding in his apartment; (4) “derailed” at least two lawsuits he initiated; (5) instructed gang members to harass him; (6) drained “thousands of dollars” from his bank account; (7) “arbitrarily end[ed]” the parental rights of an unnamed third party; and (8) denied medical services to a critically-ill relative. Torres makes no allegations about when each act, noted above, and committed in furtherance of the conspiracy, occurred.

In addition to his conspiracy claim, Torres alleges that, on an unspecified date, “DHS agents recklessly crashed their vehicle against the one that [he] was driving, causing [Torres] serious bodily injury.”

As a result of DHS’ alleged conduct, Torres claims he has suffered “psychological” injuries, “[a] broken bone, detention, incarceration, loss of income . . . [and] mental anguish.” In his prayer for relief, Torres requests that the Court order the defendant to “make public” the “existing list” and “all records concerning the death of Filiberto Ojeda.” [FN1] Moreover, Torres seeks “new elections in Puerto Rico” and a “refund” of the legal fees paid by “former Puerto Rico governor Anibal Acevedo, and his assistant Luisa Inclan” in defending against “their false prosecution” by the United States. [FN2]

**Footnotes**
FN 1 According to the plaintiff, “the United States has a list which includes most Arab-Americans as well as most American political dissidents.” Torres alleges that, since September 11, 2001, the United States has subjected those on the list to “intense and brutal” persecution, like “Puertorrican [sic] opposition leader Filiberto Ojeda,” who was shot by “Ninja-unit sharpshooters of the Federal Bureau of Investigation.”

FN 2 Torres requests further that the Court “designate David Rankin, Esq. . . . as counsel to prosecute this case.” On February 23, 2010, the Court denied the plaintiff’s request for appointment of counsel. See Docket Entry No. 7.

Then analysis leading to the conclusion:

For the reasons set forth above, I recommend that the defendant’s motion to dismiss the complaint, Docket Entry No. 11, be granted. I recommend further that the plaintiff be denied leave to replead.

In this case a person, Sullivan, was shot and killed by the police in an apartment search. The police lost summary judgment at district court and appealed. On appeal the Ninth Circuit affirmed. But in dissent Judge Wu refers to a “ninja” knife

KATHLEEN ESPINOSA, individually and as personal representative of the Estate of decedent Asa Sullivan; ASA SULLIVAN; A. S., by and through his Guardian ad Litem; NICOLE GUERRA, Plaintiffs-Appellees,
v.
CITY AND COUNTY OF SAN FRANCISCO; HEATHER FONG, in her capacity as Chief of Police, Defendants, and JOHN KEESOR, Police Officer; MICHELLE ALVIS, Police Officer; PAUL MORGADO, Police Officer, Defendants-Appellants.

No. 08-16853

UNITED STATES
COURT OF APPEALS
FOR THE NINTH CIRCUIT

598 F.3d 528

Filed – March 9, 2010

Before Judges: Procter Hug, Jr. and Richard A. Paez, Circuit Judges, and George H. Wu, * District Judge.
* The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation.

Opinion by Judge Hug; Partial Concurrence and Partial Dissent by Judge Wu.

In the opinion of District Judge Wu, sitting on the Court of appeal by designation, concurring in part and dissenting in part:

I agree with the majority that the district court properly denied summary judgment as to the defendant officers’ claim of qualified immunity in regards to their entering and searching the apartment. However, I disagree with the Opinion’s resolution of the qualified immunity question in the contexts of the unreasonable force and provoking a confrontation issues.

noting:

Martin was searched for weapons and a four inch “ninja” knife was located in his back pocket. It did not appear to have any blood on it.

concluding:

I dissent from the majority’s affirmation of the district court’s denial of the defendant officers’ motion for summary judgment on the basis of qualified immunity as to the issues of excessive force and provoking a confrontation.

It is interesting to note that it is the judicial opinion in favor of the police that refers to the “ninja” knife. What makes a knife a ninja knife… because it is quoted maybe it is testimony but it is uncited in Judge Wu’s dissent.

This is a case of a police raid. Summary judgment is granted on some counts but other counts survive. The police SWAT team is described as ninja-clad and using flash bombs.

FELICIA MARTINEZ, et al., Plaintiffs,
v.
TRACEY McCORD, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
Case No. 1:06-cv-636-WKW [wo]
2008 U.S. Dist. LEXIS 37881

Opinion by: US District Court Judge W. Keith Watkins, decided May 8, 2008:

This case arises out of searches of two mobile homes for methamphetamine, currency, and drug paraphernalia under a Houston County, Alabama search warrant dated January 17, 2006. (Doc. # 84-3.) One of the mobile homes was occupied by Plaintiffs Felicia Martinez (“Martinez”) and her two minor children.

Juvenal is the estranged husband of Martinez.

Methamphetamine, currency, drug paraphernalia, and a handgun were seized at 81 Pitts Drive, and Juvenal Martinez was arrested.

But at the other address:

Martinez and her minor children, ages five and seven, were watching television at 7:00 p.m. when the Daleville Police Tactical Team, also known as the Special Weapons and Tactics (“SWAT”) Team, made an explosive entry into her home, located at 43 Pitts Drive, and secured the premises for the drug task force to conduct the search. (Martinez Decl. P 1; McCord Decl. at 3.) During the initial entry to the home, a “flash-bomb” or other explosive device was thrown through the window, exploding in front of one of the children watching television. (Martinez Decl. P 2.) Officers with masks, assault garb, and drawn weapons entered the mobile home by breaking down a door. (Id. P 4.) Weapons were pointed at Martinez and her minor children, and they were required to lie on the floor face-down and were not permitted to move. (Id. P 5.) Other officers, also unidentified, made a coordinated and simultaneous entry into the other mobile home located nearby [footnotes omitted]

The case here is particularly about the liability for Officers’ McCord [the commander of the Houston County narcotics unit] and Williamson;

At the time of entry into Martinez’s home, McCord was on duty watching the perimeter of the entry at 81 Pitts Drive. (Id.) At that same time, Williamson was waiting in a vehicle down the road. (Williamson Aff. P 9.) After the premises of the mobile homes were secured, Williamson entered the plaintiffs’ residence and searched the kitchen, bedroom, and the laundry room for items pursuant to the warrant, (Williamson Aff. PP 10-12), and McCord entered the residence at 81 Pitts Drive where he spent over two hours searching for evidence and interviewing the individuals found inside. (McCord Decl. at 4-5.) Methamphetamine, currency, drug paraphernalia, and a handgun were seized at 81 Pitts Drive, and Juvenal Martinez was arrested.

McCord then walked the short distance to 43 Pitts Drive. (McCord Decl. at 5.) Although McCord describes his entry of the plaintiffs’ home as merely a “quick walk through” that lasted five to ten minutes, (McCord Decl. at 5), Martinez alleges that McCord and other officers involved in the search “look[ed] in every drawer in every room of her house,” “tore the front off [her] VCR,” and “caused damage to [her] car during the search.” (Martinez Decl. P 7.) Martinez also claims McCord told her that she was going to jail. (Id. P 18.) The actions of McCord and other officers “extremely distressed” Martinez and caused her to worry “that there was something in the explosive device that caused [her children] to sleep.” (Id.)

On July 18, 2006, the plaintiffs filed this action against multiple defendants, some of whom have already been dismissed as parties. In their most recent complaint, the plaintiffs allege eleven counts against McCord and Williamson for unlawful entry, unlawful search and seizure, excessive force under 42 U.S.C. § 1983, conspiracy to violate her civil rights under 42 U.S.C. § 1985, failure to prevent the violation of her civil rights under 42 U.S.C. § 1986, and six state tort claims. [footnotes omitted]

The Court decides,

due to the lack of discovery, Rule 56(f) prevents the court from reaching a judgment on the motion for summary judgment at this time with respect to Williamson for three of the tort claims.

But,

Despite Rule 56(f), there are two tort claims against Williamson that fail as a matter of law, and further discovery on these claims would be pointless. Count Seven alleges the tort of assault and battery. (Third Am. Compl. PP 95-98.) The complaint states that “the defendants touched Ms. Martinez in rudeness, in anger, or in a hostile manner, by touching her person and pointing a firearm at her head.” (Id. P 95.) Despite lumping all defendants into this claim, earlier in the complaint the plaintiffs admit that Williamson was not part of the initial, violent entry of their home during which time the alleged assault occurred and firearms were drawn. (Id. PP 20-21.) The complaint states that “[f]ollowing the assault on Plaintiffs’ (sic) and their home, the Ninja-clad officers left, to be replaced by . . . Williamson and other, presently unknown, officers.” (Id.) It is clear the assault and battery claim is directed at the officers who initially entered the plaintiffs’ home and not the officers who subsequently searched the home. Because the plaintiffs acknowledge Williamson was not one of the initial officers, and they do not allege that he ever touched the plaintiffs, the assault and battery claim against him fails.

Count Nine asserts a claim for intentional infliction of emotional distress (i.e., outrage) against Williamson. However, in Alabama, the tort of outrage is only recognized in three areas: “(1) wrongful conduct within the context of family burials; (2) an insurance agent’s coercing an insured into settling an insurance claim; and (3) egregious sexual harassment.” Stabler v. City of Mobile, 844 So. 2d 555, 560 (Ala. 2002). None of these situations is remotely applicable to the situation at hand, and thus the plaintiffs have not alleged a viable claim of outrage. Therefore, Williamson’s summary judgment motion is due to be granted as to both Count Seven (assault and battery) and Count Nine (outrage).

Those dismisses, other claims survived, including alleged “violations of various constitutional rights under 42 U.S.C. § 1983: unlawful entry in violation of the Fourth and Fourteenth Amendments, unlawful search and seizure in violation of the Fourth and Fourteenth Amendments, and excessive force in violation of the Fourth Amendment.” To be decided another day (presumably by settlement negotiations).

Another case of police officers in ninja garb. Here in Bell v. City of Topeka, the police execute a search warrant and are accused of unreasonable force. The Court sides with the city, granting summary judgment.

DAVID L. BELL, Plaintiff,
v.
CITY OF TOPEKA, KANSAS, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
Case No. 06-4026-JAR
496 F. Supp. 2d 1182

Decided July 9, 2007 by District Court Judge Julie A. Robinson

Plaintiff claims that after he was pulled from the car, officers slapped hand cuffs on him and slammed him face-first into the car, causing plaintiff to suffer a dental injury. Afterwards, plaintiff was beaten on his legs and lower back, and then he fell to the ground on his knees. Officers then picked plaintiff up, carried him a couple of steps, and then dropped him back down, forcing him to lie face down in a puddle of water. Lieutenant Pase saw the officers remove plaintiff from the car, but he did not see plaintiff being taken to the ground because he could only glance over occasionally while tending to his duties. Lieutenant Pase also saw the officers bring plaintiff toward the street where he lay face down on the ground.

Sergeant Erwin stayed with plaintiff while the officers proceeded with the execution of the search warrant. Plaintiff contends that he asked Sergeant Erwin if he could move so that he would not have to be face down in the water, and Sergeant Erwin’s response was, “Shut the fuck up right now before I put my foot on the back of your mother fucking neck and hold you face down in that water until you drown.” After that, plaintiff claims that Sergeant Erwin made comments such as “I ought to shoot you.” After the scene was secured and officer safety was under control, Lieutenant Pase told Sergeant Erwin to pick plaintiff up off of the ground. At that point, officers wanted to search plaintiff, who told them, “the only thing lower than a mother fucking crackhead was the mother fucking Topeka Police Department.” He also told an officer, “Kiss my ass and good luck.” The officers then told plaintiff that they needed to search his car, and they warned him if they cut themselves on the broken glass from his crack pipe that he would be in trouble. Plaintiff laughed and told the officers, “You stupid mother fuckers, you broke the glass–broke the windows of my car. There’s–the car is full of glass.” Throughout the events that evening and in the early morning, plaintiff describes the officers as being dressed in black, “ninja-like clothing” and wearing masks. Plaintiff was then put into a car for transport to the jail. Plaintiff asked the officer who was transporting him to loosen the handcuffs, which the officer did. Plaintiff was at the jail for approximately twenty-six minutes before he was released at about 1:26 a.m.

The Court found the Plaintiff failed to demonstrate that the police department had negligent training or negligent supervision or that there was unreasonable use of (or excessive) force. Therefore the city’s motion for summary judgment was granted.

This case involved multiple search warrants executed simultaneously, particularly a no-knock entry with alleged excessive force. This is another case of law enforcement being described as ninja because of their SWAT clothing.

DUANE TOLLIVER, et al., PLAINTIFFS
vs.
BAXTER COUNTY, ARKANSAS, et al., DEFENDANTS

CASE NO. 05-3036
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS, HARRISON DIVISION
2006 U.S. Dist. LEXIS 52976

Filed July 18, 2006, Opinion by US District Judge Jimm Larry Hendren,

Plaintiffs allege that defendants violated their Fourth and Fourteenth Amendment rights in various ways in connection with the execution of a search warrant on the business and residence of plaintiffs Duane and Donna Tolliver.

Continuing,

Plaintiff Archer was sitting at a desk in the garage of Alternators Plus when the warrant was executed. According to Archer, a law enforcement officer dressed in a “ninja suit” entered the business, pointed a gun at him and screamed for him to get on the floor. Archer later identified this officer as Deputy Grayham. According to Archer, four or five officers pulled him to the floor and one of the officers handcuffed him. After about 15 or 20 minutes, officers set Archer up in a chair but his handcuffs were not removed until approximately 15 to 30 minutes later.

And,

Officers found no contraband at the Tollivers’ business or residence and no charges were filed against any of the named plaintiffs, with the exception of Mungle.

Also,

Four other search warrants were executed simultaneously with the one at issue. Mike Tolliver, Plaintiff Duane Tolliver’s brother, was arrested, charged, and ultimately convicted of methamphetamine manufacturing as a result of items seized during the execution of these warrants.

The Court found that the no-knock entry and uses of forces were not excessive under the circumstances. Therefore,

plaintiffs’ claims should be DISMISSED, with prejudice, in their entirety and the Court will so order

JOSE E. PAULINO, Plaintiff, -v.- AMICUCCI, WARDEN WESTCHESTER COUNTY JAIL, OFFICER BARBIERI, SERGEANT JOHN DOE, CAPTAIN JOHN DOE AND TEN OTHER KNOWN AND UNKNOWN OFFICERS OF THE SO CALLED NINJA TUTTLE SQUAD, Defendants.

02 Civ. 208 (LAP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

2003 U.S. Dist. LEXIS 995
2003 WL 174303

Decided – January 23, 2003
Opinion by Loretta A. Preska, United States District Judge:

Plaintiff Jose E. Paulino brings this pro se action, pursuant to 42 U.S.C. § 1983, against defendants Warden Amicucci, Officer Barbieri, Sergeant John Doe, Captain John Doe and ten other known and unknown officers of the so called “Ninja Tuttle Squad” (collectively, the “defendants”) for damages he sustained on or about January 14, 2000, while he was incarcerated at the Westchester County Correctional Facility in Valhalla, New York. The defendants now move to dismiss the amended complaint pursuant to the Supreme Court’s ruling in Porter v. Nussle, 534 U.S. 516, 152 L. Ed. 2d 12, 122 S. Ct. 983 (2002), which held that an inmate cannot bring an action with respect to prison conditions under Federal law until he first exhausts the administrative remedies available to him. Because plaintiff has not exhausted his administrative remedies, plaintiff’s amended complaint is dismissed without prejudice to renewal upon proper exhaustion of plaintiff’s administrative remedies.

BACKGROUND

The following is a brief summary of the facts recited by plaintiff in his complaint. On or about January 14, 2000 1 plaintiff was an inmate at Westchester County Jail in Valhalla, New York. (Plaintiff’s Amended Complaint, hereafter “Compl.,” at P IV). According to plaintiff, at approximately 1:00 p.m. on or about that day, in Unit 4NE of the Jail, plaintiff was assaulted and “beaten and tortured physically and mentally” by the correctional officers known as the “Ninja Tuttles.” (Id.). The incident began when plaintiff was watching television in the common area at the jail. (Id.). The air conditioner was on, so plaintiff placed a sheet around his shoulders to keep warm. (Id.). Plaintiff was approached by Officer Barbieri, who instructed him to remove the sheet from his shoulders. (Id.). Plaintiff responded by telling Officer Barbieri that it was cold in the unit and that he did not have any clothing to protect him from the cold air. (Id.). Plaintiff then requested that Officer Barbieri call a sergeant. (Compl. P IV). When the sergeant showed up, instead of speaking to plaintiff to find out what had occurred, the sergeant ordered the entire unit in “lock-in.” (Id.).

Plaintiff alleges that five minutes later, approximately ten correctional officers came to his jail cell and assaulted and beat him in the face, head, arms, lower back and genitals. (Id.). As a result of their conduct, plaintiff sustained injuries which include swelling and pain in his left cheek and the back of his head, pain in his lower jaw when he eats, cuts to his wrists from the tight handcuffs, “strong” headaches, lower back pain and genital pain. (Compl. P IV-A). Furthermore, plaintiff suffers from a “genital medical condition” and continually experiences nightmares as a result of the abuse to which he was subjected. (Id.). Plaintiff asserts that he was seen by a physician’s assistant in the Metropolitan Detention Center in Brooklyn, New York with respect to the incident, but he was administered only a pain reliever for his headaches. (Id.).

Prior to filing the instant action, plaintiff did not present the facts relating to this complaint in accordance with the state prisoner grievance procedure. (Compl. P II.B). According to plaintiff, he was not in the Westchester County Jail, where the incident occurred, for long enough to file a complaint because the United States Marshals removed him before he could initiate any administrative grievance procedure. (Compl. P II.D).

Explaining:

Here, plaintiff does not dispute that he did not exhaust his administrative remedies. (Compl. P II.B; Plaintiff’s Opposition to Defendants’ Motion to Dismiss, hereafter “Pl. Opp.” at 3). Instead, plaintiff makes several arguments for why he should be excused from exhausting his administrative remedies. Plaintiff first insists that because he was removed from the Westchester County Jail on January 19-only five days after the incident-his stay was too short for him to have initiated any grievance procedure. (Pl. Opp. at 3). Second, plaintiff asserts that he was never advised by any staff member of any grievance program or procedure. (Id.). Finally, plaintiff claims that the grievance procedure “would have been futile, my effort would have been worthless and a waist [sic] of time, because there is a big gap between the New York State and/ or Westchester County Jail and the Federal Administrative Remedy procedure.” (Id.).

Nevertheless, the Court dismissed for lack of jurisdiction:

because plaintiff has not exhausted his administrative remedies, his claim should be dismissed for lack of subject matter jurisdiction without prejudice to renewal upon proper exhaustion of those remedies. See Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002) (dismissal for failure to exhaust administrative remedies should be without prejudice).

Recall similar incident of prison emergency response terms called Ninja Turtles and consider also the character Harry Tuttle from the movie Brazil and Mr. Tuttle from Saved by the Bell.

ninja tuttle

Below the complete in a case with 10 mentions of the word “ninja” as slang nickname for emergency response teams in a detention facility accused of using excessive force. Recall also ERT’s called Ninja Turtles.

JAMES P. NEILIS, JR., Plaintiff, v. BRENDAN D. WARD, individually and in his official capacity as Sheriff of Will County, et al., Defendants.
No. 98 C 5125
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
2000 U.S. Dist. LEXIS 14091
September 21, 2000, Decided
September 22, 2000, Docketed

Memorandum Opinion and Order by Judge William T. Hart

Plaintiff James Neilis, Jr. alleges that, while being processed at the Will County Adult Detention Facility (“WCADF”), he was severely beaten by three Will County deputy sheriffs and a correctional officer. Named as defendants in their individual capacities are deputy sheriffs Jeff Turngren, Andrew Carlson, and Stanley Lantka and correctional officer Brent Graham. James Fetzner, former Facility Administrator (Warden) of the WCADF, is also sued in his individual capacity. 1 Named in his individual and official capacities is Will County Sheriff Brendan Ward. Presently pending is defendants’ motion for summary judgment.

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1 Fetzner was also named in his official capacity, but, since he is no longer the Warden, it is no longer appropriate to sue him in that capacity. It is unnecessary to substitute in the current Warden since the Sheriff is also named in his official capacity.

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On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Schneiker v. Fortis Insurance Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999); Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). The nonmovant, however, must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Shank v. William R. Hague, Inc., 192 F.3d 675, 681 (7th Cir. 1999); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir. 1997). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104, 132 L. Ed. 2d 257, 115 S. Ct. 2249 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 137 (1988). As the Seventh Circuit has summarized:

The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); id. at 325 (“the burden on the moving party may be discharged by ‘showing’–that is, pointing out to the district court–that there is an absence of evidence to support the nonmoving party’s case”). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). “The mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

Furthermore, pursuant to Local Rule 56.1(a)(3), the party moving for summary judgment is required to provide a statement of material facts as to which the moving party contends there is no genuine issue. The statement is to be in the form of numbered paragraphs. The nonmovant is to reply to each paragraph, either admitting it is uncontested or stating the nonmovant’s disagreement and specifically citing to supporting materials showing there is a genuine factual dispute. Loc. R. 56.1(b)(3)(A). The nonmovant is also to provide a statement of additional facts, if any, that would defeat summary judgment, again in the form of numbered paragraphs with supporting citations. Loc. R. 56.1(b)(3)(B). “All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party.” Id. Expressing disagreement with a fact contained in the movant’s Rule 56.1(a)(3) statement without providing a citation to materials supporting that dispute is a basis for deeming the movant’s factual assertions to be true. Garrison v. Burke, 165 F.3d 565, 567 (7th Cir. 1999); Valenti v. Qualex, Inc., 970 F.2d 363, 369 (7th Cir. 1992); Skagen v. Sears, Roebuck & Co., 910 F.2d 1498, 1500 (7th Cir. 1990). Failing to provide a paragraph-by-paragraph response to the movant’s statement can also be a basis for deeming the movant’s statement to be admitted. See Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316-17 (7th Cir. 1995). However, it is within the district court’s discretion as to how strictly to apply its own rules. Dade v. Sherwin-Williams Co., 128 F.3d 1135, 1140 (7th Cir. 1997); Weeks v. Samsung Heavy Industries Co., 126 F.3d 926, 938 n.5 (7th Cir. 1997); Midwest Imports, 71 F.3d at 1316-17; Schulz v. Serfilco, Ltd., 965 F.2d 516, 519 (7th Cir. 1992); Gabriel v. City of Chicago, 9 F. Supp. 2d 974, 975 n.2 (N.D. Ill. 1998); United States v. 47 West 644 Route 38, Maple Park, Ill., 962 F. Supp. 1081, 1084 n.2 (N.D. Ill. 1997).

In support of their motion for summary judgment, defendants filed a fully supported Rule 56.1(a)(3) statement. Plaintiff responded to defendants’ statement, but instead of specifically responding to each paragraph, plaintiff responded to sections and did not expressly identify the statements of plaintiff with which he disagreed. Plaintiff’s response is an unclear presentation that makes the court’s and the parties’ tasks more difficult and defeats, in significant part, the purposes of Local Rule 56.1. Nevertheless, to the extent plaintiff’s factual contentions are supported by citations and can be discerned, they will be considered. Counsel for plaintiff, though, is admonished to fully comply with the Local Rules in any future filings with this court.

Defendants present two arguments. The first argument is that there is no evidence linking plaintiff’s injuries to a beating. Defendants apparently contend that plaintiff’s ear was lacerated after he was placed in a holding cell. Plaintiff, however, testified that he was beaten by the four officers and that this beating caused the ear injury. On summary judgment, plaintiff’s testimony must be assumed to be true. Defendants instead focus on the question of whether a subdural hematoma that was discovered two weeks after the beating, and which required surgery and possibly resulted in permanent injury, was caused by the beating. Regardless of whether the subdural hematoma was caused by a beating inflicted by defendants, there are other injuries caused by the beating. Therefore, a lack of injury is not a basis for dismissing plaintiff’s claim. It still could be appropriate to grant partial summary judgment precluding any claim for damages based on the subdural hematoma. However, plaintiff’s treating physician’s testimony is sufficient to support that the subdural hematoma was caused by a beating administered two weeks prior to its discovery. Since there is also evidence supporting that such a beating occurred, a genuine factual dispute exists as to whether the subdural hematoma and related symptoms and injuries were caused by the beating. The claims against the four officers who allegedly inflicted the beating will not be dismissed.

The other issue raised by defendants is that the claims against Ward and Fetzner should be dismissed because there is no showing that the beating, which must be assumed to have occurred, was caused by a municipal policy or custom. In order to find Ward liable in his official capacity, it must be shown that the excessive force used on plaintiff was pursuant to a policy or custom of the Sheriff. See Board of County Commissioners of Bryan County, Okla. v. Brown, 520 U.S. 397, 403, 137 L. Ed. 2d 626, 117 S. Ct. 1382 (1997). “It is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Id. at 404. “Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Id. at 405. Where it is claimed that an employee was encouraged to act unlawfully by his or her recognition that the municipality would not act to stop such conduct, it must be shown that the municipality continued to adhere to an approach that it knew or should have known had failed to prevent tortious conduct in the past and was likely to result in such conduct in the future. See id. at 407; Robles v. City of Fort Wayne, 113 F.3d 732, 736 (7th Cir. 1997). The municipality must have acted with deliberate indifference to the known or obvious consequences. Brown, 520 U.S. at 407; Robles, 113 F.3d at 736-37; Young v. County of Cook, 1999 U.S. Dist. LEXIS 19041, 1999 WL 1129108 *4 (N.D. Ill. Dec. 7, 1999).

As to Ward’s and Fetzner’s individual liability, there is no contention that either of them was directly involved in the excessive force or even any contention that either had knowledge of the particular incident. Instead, it is claimed that they are liable for having been personally involved in formulating and directing the claimed municipal policy or custom, Del Raine v. Williford, 32 F.3d 1024, 1052 (7th Cir. 1994); Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986), or because they knew about the policy or custom and facilitated it, approved it, condoned it, or turned a blind eye to it, Del Raine, 32 F.3d at 1052; Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). It still must be shown that they acted knowingly or with deliberate indifference. Id.

Plaintiff contends that Ward and Fetzner turned a blind eye to a prevalent use of excessive force at the WCADF. In particular, plaintiff contends that Emergency Response Team members 2 use excessive force in their treatment of detainees.

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2 Such officers are referred to as “E.R.T.’s” and the nickname “Ninjas,” because they dress in black garb.

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The first question to consider is whether plaintiff has presented adequate evidence of frequent episodes of the use of excessive force. The incident in question occurred on November 4, 1996. Plaintiff points to a report of “facility assaults and use of force” for 1998. Even assuming an inference can be drawn that a similar level of incidents existed in 1996, 3 the report does not show a prevalence of excessive force. This report states that, in 1998, there were 94 incidents of “inmate vs. staff” and 8 incidents of “inmate vs. inmate” assaults. Thirty-eight of those incidents resulted in injuries that were treated at the WCADF; none required treatment at a hospital. Without additional documentation such as incident reports of the individual incidents or testimony of those involved, the precise nature of the injuries is not shown. Almost all of the incidents involved the use of physical restraint. Twenty-nine of the incidents involved the use of capstun, a pepper-spray form of mace. Again, without additional detail, it cannot be known whether any of the force used was an excessive response. Plaintiff has not shown a prevalent use of excessive force in 1998.

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3 No similar report exists for 1996.

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Although not provided with a statistical report for 1996, plaintiff was provided with incident reports for the six months preceding and three months following plaintiff’s incident. Therefore, plaintiff had access to discovery from which he could have proven the existence of a prevalent use of excessive force if such existed. Plaintiff, though, does not point to any of these reports either as evidence of the excessive use of force or as evidence that defendants were aware of past incidents of excessive force. Instead, plaintiff relies on the testimony of four former inmates.

James Blair testified that, while at WCADF, a guard punched him in the shoulder and jerked him back because he was across a yellow line. 4 He does not testify that he suffered any significant injury. This incident is not shown to be excessive force and Blair states that he did not report this incident. Blair also states that, in 1997, he was thumped on the head by a desk sergeant when being discharged from the WCADF. He described it as a “good indication thump,” but not hard enough to leave any “knots.” 5 Additionally, Blair describes witnessing incidents involving other inmates. Only one description provides any semblance of detail 6 and it apparently describes an incident occurring sometime shortly after 1973. In that incident, Blair states that two inmates had already stopped fighting when Ninjas arrived and they stomped and kicked the inmate, and “everything else.”

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4 Deposition excerpts are provided and the excerpts do not always state the dates of the incidents described by Blair. Testimony is provided that he was at WCADF a number of times beginning in 1973. Since defendants do not object, the punching incident, for which a date is not provided, will be assumed to have occurred within a year prior to November 1996.5 Blair also describes force used to arrest him at his house. Although deputy sheriffs conducted the arrest, that incident is not pertinent to the prevalence of excessive force at the WCADF. Also, it occurred in approximately 1989.6 Plaintiff cites to page 41 of Blair’s transcript as referring to five or six beatings by Ninjas when Blair was first incarcerated. However, page 41 was not provided. But even assuming the incidents are described with sufficient detail and that they involved the use of excessive force, such incidents would have occurred in the mid-1970’s. Plaintiff also refers to Blair’s testimony regarding an inmate being thrown down stairs. But Blair’s entire testimony as to this incident is: “Yeah, I seen one guy get thrown down a set of stairs–not thrown–.” Blair Dep. 47. That is insufficient to establish when the incident occurred nor its nature.

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David Pierce was at the WCADF from October 31 through November 4, 1996. He describes one incident in which four or five officers, including Ninjas, dragged a detainee down a stairway with his head hitting the stairs and the detainee screaming. They also kicked the detainee both while on the stairs and when on the floor at the bottom of the stairs. Pierce did not see what preceded the dragging. Pierce also testified about an incident that occurred in 1994 when he was being processed for a DUI arrest. He saw Ninjas “knocking the hell out of” a handcuffed detainee in the booking area who had been unruly.

Chad Carter was in the WCADF in July 1996. He witnessed a detainee being dragged down stairs by officers, including Ninjas. His feet and sometimes his waist were hitting the stairs, but his head was held up so it did not hit the stairs. The Ninjas had batons. The detainee was taken into a room where Carter could not see what was happening, but the door was ajar so he could hear what was happening. He heard the inmate screaming and sounds that he understood to be kicking and hitting.

Elbert Barnes was in the WCADF from January to March 1997, for eight days in December 1997, and for six days in April 1998. He was never hit by any guards, but testified that he witnessed detainees being “throwed around” six or seven times. During the early 1997 stay, he saw a detainee “beat up” by Ninjas and other officers. The detainee was cuffed, but tried to fight with his legs. Barnes did not see what started the incident. He saw the officers push the detainee against the door and kick him.

Taking the 1996 incidents described by Pierce and Carter and the early 1997 incident described by Barnes as being excessive force, plaintiff’s evidence only includes three incidents of excessive force during the time preceding and immediately following his own November 1996 beating. WCADF generally houses approximately 350 detainees.

Some cases have held a custom or policy can be inferred from three incidents. See, e.g., Shaw v. Stroud, 13 F.3d 791, 800 (4th Cir.), cert. denied, 513 U.S. 813, 814, 513 U.S. 814, 130 L. Ed. 2d 24, 115 S. Ct. 67 (1994) (summary judgment); Sekerak v. City & County of Denver, 1 F. Supp. 2d 1191, 1199 (D. Colo. 1998) (motion to dismiss); Perkins v. Village of Lincolnshire, 1996 U.S. Dist. LEXIS 15630, 1996 WL 613159 *3 (N.D. Ill. Oct. 22, 1996) (motion to dismiss). In such cases, however, the incidents are often more closely linked because they were all committed by one person or against one person. See, e.g., Shaw, 13 F.3d at 799-800 (same supervisor inadequately responded to three assaults by the same police officer); 7 Sekerak, 1 F. Supp. 2d at 1198-99 (same supervisor also retaliated against three other employees who had supported the same political candidate); Perkins, 1996 U.S. Dist. LEXIS 15630, 1996 WL 613159 at *3 (each of three times that plaintiff encountered village’s police officers, he was subjected to an unlawful arrest).

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7 The court also considered evidence that, although one of twenty troopers, 26 of 55 charges of assaults on an officer or resisting arrest were made by this trooper. Shaw, 13 F.3d at 800.

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A pervasive practice of using excessive force cannot be inferred from the three incidents that plaintiff has proven. Although all involve Ninjas, the evidence does not establish that the same Ninjas were repeatedly using excessive force. Three differing incidents over an approximately one-year period in a facility housing 350 detainees is not enough to infer that the use of excessive force is pervasive and widespread. Plaintiff has not presented evidence sufficient to show that, as of November 1996, a custom or policy of using excessive force existed at the WCADF. Cf. Snyder v. City of Topeka, 884 F. Supp. 1504, 1511 (D. Kan. 1995) (undetailed testimony as to two or three instances of retaliation inadequate to show widespread and persistent pattern of retaliation). Moreover, there is no evidence that Ward or Fetzner were aware of any of these incidents or that they took particular actions to avoid finding out about such incidents. The incidents certainly are not so prevalent that a deliberate attempt to avoid knowledge can be inferred. Plaintiff has failed to show a deliberately indifferent custom or policy of allowing the use of excessive force. The claims against Ward and Fetzner will be dismissed.

IT IS THEREFORE ORDERED that defendants’ motion for summary judgment [30-1] is granted in part and denied in part. The individual and official capacity claims against defendants Ward and Fetzner are dismissed. In open court on November 8, 2000 at 11:00 a.m., the parties shall present an original and one copy of a topbound, final pretrial order in full compliance with Local Rule 16.1 and Local Rule Forms 16.1.1 and 16.1.2.

In 1999, the 6th circuit heard a case about a police officer who sued after he was put on 20 day suspension for writing an anonymous newsletter about police department practices. The appeals court majority decided to reverse the decision of the district court and grant qualified immunity to the police department. They decided that the newsletter topics were not a matter of public concern, but merely personal grievances.

PATRICK BUCKLEY, Plaintiff-Appellee, v. CITY OF PORTAGE, RICHARD J. WHITE, Chief of Police, Individually and in his official capacity as Chief of Police of the Portage Police Department, jointly and severally; MICHAEL L. STAMPFLER, City Manager, Individually and in his capacity as Portage City Manager, jointly and severally, Defendants-Appellants.

No. 98-1783
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
1999 U.S. App. LEXIS 23254

September 16, 1999, Filed

Judge David Nelson for the Majority:

A qualified immunity defense asserted by the police chief and city manager was rejected by the district court. The present interlocutory appeal followed.

The appeal turns on the issue of whether the plaintiff’s speech addressed matters of “public concern,” one of the prerequisites to recovery under § 1983 in a case of this sort. We conclude that the newsletters in question do not address matters of public concern. The denial of qualified immunity will therefore be reversed.

Explaining:

Patrick Buckley, the plaintiff, has been a City of Portage police officer for 25 years. In 1992 Mr. Buckley began anonymous publication of a newsletter, The Lookout, devoted largely to internal police department matters. Copies of the newsletter were distributed to Portage police officers and to individual members of the public, as well as to Western Michigan University, the Kalamazoo Gazette, and others. Central to this cause of action are issues 80 and 81 of The Lookout, published in March of 1997.

Issue 80 contained, among other things, two articles that discussed police chief Richard White’s policy of allowing officers to earn overtime pay for attending committee meetings, notwithstanding that overtime pay was not authorized for the performance of street patrol duties. One article questioned whether “the citizens of Portage are getting short changed.” Issue 81 resumed the challenge to Chief White’s policy regarding overtime pay, adverting this time to the availability of overtime pay for a physical fitness testing program. The article complained that because of the unavailability of overtime pay for street patrol work, patrol officers often worked with only four officers on the street.

Issue 81 also contained a report of a deputy police chief’s alleged mishandling of a purse retrieved from a fire scene. The deputy chief took possession of the purse at the direction of the fire chief. Upon returning to the police station, the deputy chief gave the purse to a junior officer with instructions to store the purse for safe-keeping. The junior officer placed the purse in a file cabinet and forgot about it. The officer was off work for the next three days; upon return to work, he remembered the purse and turned it over to another officer. The article on this incident implied that the deputy chief’s handling of the purse was highly improper. The article questioned why the deputy chief never told anyone that he took the purse, whether anything was missing from the purse, and whether the fire department (which is the agency in charge of a fire scene) was aware of the removal of the purse.

Another article in Issue 81 suggested that a newly hired female officer received her position only because of her friendship with the deputy chief. The article questioned whether proper procedures were followed in hiring the female officer, and it suggested that the deputy chief lacked integrity.

Issues 80 and 81 led to two internal investigations at the Portage police department. The firefighters’ union expressed outrage about the alleged mishandling of property at a fire scene, and this prompted Chief White to retain an independent investigator to look into the matter. The independent investigator exonerated the deputy chief, concluding that the deputy chief had fulfilled his duty by turning the purse over to a junior officer.

Chief White initiated another investigation to determine whether the junior officer had acted improperly in handling the purse. As a result of this investigation, two officers were disciplined for failing to follow proper procedures for safeguarding property.

Although Chief White had previously surmised that Officer Buckley was the author of The Lookout, the chief’s suspicions were confirmed after the internal investigations. Chief White initially concluded that Buckley should be fired for insubordination and defamation. After meeting with City Manager Michael Stampfler, however, Chief White ultimately decided to suspend Buckley for 20 days. A written notice of suspension informed the officer that he was being disciplined for his insubordination and criticism of department members and policies and for spreading rumors and gossip. The officer responded by filing the present lawsuit.

Still the Court does not see this as public concern:

When Mr. Buckley’s articles are read in context, it is clear that his complaints center on Chief White’s allocation of department funds for overtime pay. This is a matter of workplace concern, but in and of itself it is not a matter of public concern. See Barnes v. McDowell, 848 F.2d 725, 734 (6th Cir. 1988) (“The mere fact that public monies and government efficiency are related to the subject of a public employee’s speech do not, by themselves, qualify that speech as being addressed to a matter of public concern.”) Buckley does comment that the citizens of Portage are getting short-changed, but he does so only after noting that fewer patrol officers on the street means that only half the officers can take a lunch break. The passing reference to the citizens of Portage, as Rahn teaches, is not enough to transform a beef about internal department funding allocations into comment on a matter of public concern.

Mr. Buckley also maintains that his articles on the deputy chief’s alleged mishandling of the purse and his alleged role in the hiring of the female officer address matters of public concern. Again we disagree.

In pieces entitled “Integrity: Part Deux” and “Integrity: My Ass,” Mr. Buckley essentially complains that the deputy chief failed to follow proper internal procedure. This failure, the articles conclude, evinces the deputy chief’s lack of integrity, morals, and scruples. Referring to the deputy chief, Mr. Buckley writes,

“This is the fair haired boy. This guy can do no wrong. Unlike the rest of us, he has no faults and he has managed to convince certain folks of this. He has proven time and again that he has no morals or scruples but you’ve got to admit, he has chutzpah. And he believes he has integrity.”

Although we are mindful that complaints of corruption and illegal behavior are matters of public concern, we do not believe that every slighting reference by a government employee to an alleged lack of character and indifference to internal operating rules on the part of the top brass amounts to a matter of public concern.

But writing in diseent, Judge Nathaniel Jones:

The majority reverses the district court’s denial of qualified immunity to the defendants in this case because it concludes that topics such as lack of overtime pay for police patrolling, improper hiring practices by a public agency, and mishandling of evidence taken from a fire scene are not “matters of public concern,” but rather “matters only of personal interest” to Buckley. Because I cannot agree with the majority, I dissent.

Continuing:

it should be emphasized that “if any part of an employee’s speech, which contributes to the discharge, relates to matters of public concern, the court must conduct a balancing of interests test as set forth in Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 [1968].” Rahn v. Drake Ctr., Inc., 31 F.3d 407, 411 (6th Cir. 1994) (emphasis added). Indeed, “the entire speech of the employee does not have to address matters of public concern, as long as some portion of the speech touches upon matters of public concern.” Id. at 412. As the majority conducts on such balancing test, it necessarily concludes that nothing in Issues 80 and 81 of the Lookout touched upon public concern.

Contrary to the majority’s view, I believe that Buckley’s speech clearly consisted of at least three matters of public concern. First, as recognized by the majority, Buckley criticizes the allocation of funds for overtime pay for police officers. Specifically, Buckley faulted the policy of allowing overtime pay for police officers when they serve on internal committees, but not when they go to “Ninja training” (which officers were requested to do on their off-days), or when they perform patrol duties longer than normal hours. The relevant portion of the speech reads as follows:

RULES CHANGE AGAIN

What’s my point? The administration (Blinkin) asks an officer to change his days off so he can go to Ninja training without being paid overtime. Being a person of tremendous integrity[,] this dutiful officer agrees. Uh oh! They forgot that we have 50 or 60 people out with varying injuries and sickness so they realize that by giving this integrity filled officer Saturday as a day off that only four officers would be scheduled. How many months ago was it said that we wouldn’t work with just four officers? O.K., so they didn’t really mean it. The command officers were told that in no way, shape or form would overtime be paid. Not only that but they realized there would only be four officers the following Saturday also. Too bad guys. Suck it up. So what if only 2 of the 4 got lunch breaks. Who really cared that two of the 4 were early cars so for a time period we really only had two officers out there. We can’t afford the overtime.

Concluding:

There are several flaws in the majority’s conclusions. First, it is a hallmark principle that speech does not lose First Amendment protection merely because others find it offensive. See, e.g., Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989) (flag burning); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 99 L. Ed. 2d 41, 108 S. Ct. 876 (1988) (parody advertisement); Cohen v. California, 403 U.S. 15, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971) (jacket bearing words “Fuck the Draft”).

Second, the majority disregards Rahn’s rule that “the entire speech does not have to address matters of public concern, as long as some portion of the speech touches upon matters of public concern.” Rahn, 31 F.3d at 412 (citing Connick, 461 U.S. 138 at 149). While Buckley does attack the character and integrity of his superiors in the articles, it is indisputable that he is doing so within the context of raising matters of public concern–lack of patrol officers, evidence mishandling, and improper hiring practices. As I explained, I believe that any of these charges qualifies as a matter of public concern and should come within the First Amendment’s ambit.

Finally, it is error for the majority to characterize Buckley’s speech as “unflattering,” or to infer that Buckley’s criticisms of his superiors were disproportionate to the alleged improprieties when determining whether the matters constituted public concerns. Such considerations are only relevant in the Pickering balancing test.

For the above reasons, I dissent. I would affirm the district court’s denial of qualified immunity to the defendants and let the case proceed to trial.

The Supreme Court agreed with the Majority by denying cert, Buckley v City of Portage, 530 U.S. 1262 (2000).