Archives for posts with tag: excessive force

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).

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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.

KENNETH CLARK, Plaintiff, -v- WESTCHESTER COUNTY, WESTCHESTER COUNTY DEPARTMENT OF CORRECTION, WESTCHESTER COUNTY DEPARTMENT OF CORRECTION MEDICAL DEPARTMENT, OFFICER WILLIS, SERGEANT SIMMONS, # 107, T.A.C. TEAM, aka “Ninja Turtles”, and JOHN DOES # 1 THROUGH # 4, Defendants.

96 CIV. 8381 (DLC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
1998 U.S. Dist. LEXIS 6086

Decided – April 30, 1998

Opinion written by District Judge Denise Cote:

On November 7, 1996, Kenneth Clark (“Clark”) commenced this action as a consequence of the brutal mistreatment that he alleges he received while a pretrial detainee at the Westchester County Jail in Valhalla, New York, during two incidents on November 12, 1995 and February 3, 1996. Clark’s original complaint named two individual defendants, Officer Peter Willis (“Willis”) and Sergeant Ronnie Simmons (“Simmons”), as well as Westchester County, the Westchester County Department of Corrections, and the Westchester County Department of Corrections Medical Department. The initial pleading also listed four John Doe defendants who were part of a prison response team Clark identified as the “Ninja Turtles.” Two matters are before the Court at this time: first, in a motion to amend dated January 6, 1998, Clark seeks to add as individual defendants those John Does he has now identified by name; second, the defendants have moved for summary judgment and have opposed the motion to dismiss. For the following reasons, the motion for summary judgment is granted in part and in part denied, and the motion to amend is denied.

And:

At a March 7, 1997 conference, the parties agreed to, and the Court set, a discovery cut-off of October 17, 1997. Through his First Request for Production of Documents, Clark asked for documents that would identify the so-called “Ninja Turtles” by March 28, 1997. Pursuant to this Court’s direction, the defendants supplied — in a May 31 Response that plaintiff’s counsel says he received at latest in mid June — the names of those officers working on the “S.S.T.” team during the relevant shifts.

Of course, this is not the first Federal Court case to mention the Ninja Turtles but I think it is the first time we see “ninja turtles” as a reference to excessive force by a prison response teams. This is similar to previous cases about DEA agents in ninja outfits and masked police accused of excessive force. But here the “ninja turtle” reference applies not only to black attire but also to the riot gear padding and hard helmets of Correctional Emergency Response Teams.

ninja turtles

Previous NinjaLaw cases about Ninja Turtles:

First mention of TMNT in Federal Courts
Sun Dun v Coca Cola – August 15, 1991

Teenage Mutant Ninja Turtles again – Retromutagen Ooze
Monarch v. Ritam – June 12, 1992

Ninja Turtles and Hollywood’s Horizontal Conspiracy
El Cajon v. AMC – October 23, 1992

First mention of Ninja Turtles in F.Ct. where it’s actually about them
Mirage Studios v. Weng et.al. – April 29, 1994

Burger King Kids Club with Mutant Ninja Turtles – multi-ethnic path to Glee and Celebrity Apprentice
CK Company v. Burger King – September 29, 1994

Ninja Turtles again, this time with FASA’s BattleTech, ExoSquad, RoboTech and Playmates
Fasa v. Playmates – June 19, 1995
(WITH POWER RANGERS)

Spam vs Spa’am with Splinter from TMNT and Pumbaa from Lion King
Hormel Foods v. Jim Henson Productions – September 22, 1995

Ring Pops not utilitarian so trademark protects after patent expired
Topps Company v Verburg – December 12, 1996