LAURIE SMITH CAMP, District Judge
This matter is before the Court on the Motion for Summary Judgment submitted by Defendants Troy Aksamit and Jerome Thraen, in their individual capacities, raising issues of qualified immunity from suit. (Filing No. 31). The parties have submitted briefs and indexes of evidence in support of their respective positions. For the reasons stated below, the motion will be granted with respect to both Aksamit and Thraen.
STANDARD OF REVIEW
Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Philip v. Ford Motor Co., 328 F.3d 1020, 1023 (8th Cir. 2003). The proponent of a motion for summary judgment "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 (1986) (quoting Fed.R.Civ.P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25.
In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id. at 586.
"[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. at 249-50 (citations omitted). Summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 477 U.S. at 327.
FACTS
It is the Court's understanding that the Plaintiff, David B. Keep, died on December 21, 2004. (Affidavit of A.J. Elder, Filing No. 62 ("Elder Aff."), ¶ 8). Based upon earlier motions filed on Keep's behalf, the Court understands his death to have been the result of liver and stomach ailments unrelated to the facts of this case. (See, e.g., Filings No. 45, 49). The Amended Complaint is not verified, nor is there any affidavit or deposition from Keep presenting his sworn testimony to the Court. Plaintiff's counsel has submitted "affidavits" of Sharon Elder-Keep (Filing No. 63, "Elder-Keep Aff.") and A.J. Elder (Elder Aff.), both of whom purport to have some first-hand knowledge of relevant facts, and both of whom relate the Plaintiff's alleged statements of "what really happened." (Elder Aff. ¶ 9; Elder-Keep Aff. ¶ 6). The Elder-Keep and Elder affidavits bear no signatures or evidence of having been executed before a notary public. The statements in the Elder-Keep and Elder affidavits are at times contradictory with the allegations in the Amended Complaint itself. (See, e.g. Amended Complaint ¶ 6, Elder-Keep Aff. ¶ 7). The following summary of material facts includes allegations from the Amended Complaint and from the two unsigned and unsworn "affidavits," although the Court will ultimately disregard incompetent evidence when ruling on the Defendants' Motion.
At all times relevant to this action, Keep was a resident of Lincoln, Nebraska (Amended Complaint, Filing No. 3, ¶ 6), and Aksamit and Thraen were employees of the City of Lincoln, working for the Lincoln Police Department ("LPD") ( id. ¶ 7).
On November 3, 2002, at approximately 10:15 p.m., Keep was driving a van in Lincoln, and Sharon Elder-Keep was a passenger in the van. Keep believed Elder-Keep was critically ill. ( Id. ¶¶ 8-10). Elder-Keep told Keep that she believed she was dying. ( Id. ¶ 10). Keep headed toward a local hospital. ( Id. ¶ 11). Thraen, a Sergeant with LPD, observed that Keep's van had no license plates. Thraen activated the overhead lights on his patrol car and attempted to stop Keep's van. (Affidavit of Jerome Thraen, Filing No. 33, Ex.1 ("Thraen Aff.") ¶ 3). Keep saw the activated lights, and used his cell phone to call Elder-Keep's son, A.J. Elder, to initiate a "911" call informing LPD dispatch that the van was proceeding to the hospital with a passenger involved in a medical emergency. (Amended Complaint ¶ 13; Elder-Keep Aff. ¶ 3b; Elder Aff. ¶ 2). Elder did call "911" to inform a dispatcher that Elder-Keep was very ill and was traveling in a van toward the hospital. (Elder Aff. ¶ 3). Keep stopped at a red light, and Thraen used his public address system to advise Keep to pull his van over to the curb after clearing the intersection. (Thraen Aff. ¶ 4). Instead, Keep accelerated his van and ran through a red light at another intersection. ( Id. ¶ 4-5). Keep drove his van into the parking lot of the hospital, and Thraen pulled his patrol car in front of the van. ( Id. ¶ 6).
Aksamit, an Officer with LPD, was driving a separate patrol car when he saw Thraen activate his overhead lights in an attempt to stop Keep's van. (Amended Affidavit of Troy Aksamit, Filing No. 55 ("Aksamit Aff.") ¶ 3). Aksamit also heard Thraen use his public address system to direct Keep to "pull over." ( Id. ¶ 3). Aksamit joined in the pursuit, activating his overhead lights and siren. ( Id. ¶ 4). Aksamit recognized Keep as the same individual he had contacted approximately two hours earlier in connection with a disturbance at a Lincoln restaurant. Aksamit believed Keep to be intoxicated at the time of the earlier contact. ( Id. ¶ 5). Aksamit pursued the van into the hospital parking lot and parked his patrol car behind the van. ( Id. ¶ 7). Approximately the same time that Keep exited the van, Thraen heard the LPD dispatcher advise that the van might contain someone suffering from a medical emergency. (Filing No. 67, Ex. 5, p. 2). Aksamit did not hear that dispatch broadcast. (Aksamit Aff. ¶ 11). Thraen is not Aksamit's direct supervisor nor does he make decisions as to the type or amount of training Aksamit should receive. (Thraen Aff. ¶ 8.)
After Keep exited the van, Aksamit told Keep to take his hand out of his coat pocket and get back in the van. (Aksamit Aff. ¶ 8). Keep kept his hand in his pocket, proceeded toward Aksamit, and then moved around the rear of the van away from Aksamit. ( Id.) Aksamit repeatedly told Keep to remove his hand from his pocket, put his hands on his head, and lie on the ground. Keep did not comply with Aksamit's demands. ( Id.) Aksamit took Keep to the ground from behind, and the front side of Keep's body hit the concrete. ( Id. ¶ 9). Keep still had his hand in his pocket as Aksamit made contact with him. Keep struggled with Aksamit, and Aksamit wrestled Keep's hand out of his pocket in order to place Keep in handcuffs. ( Id. ¶ 10)
According to Elder-Keep, when Keep exited the van, he put his arms above his head and asked for help. (Elder-Keep Aff. ¶ 3j). Elder-Keep contends that all of Keep's pockets were sealed shut, and he could not have had his hand in his pocket. ( Id. ¶ 3m). Elder-Keep also alleges that Aksamit threw Keep to the ground, and persisted in kicking and hitting Keep as he lay motionless and silent. (Id. ¶ 3l).
Keep was charged with no registration, fleeing to avoid arrest, driving while intoxicated, and no operator's license. (Affidavit of Joseph Rupp, Filing No. 33, Ex. 3, pp. 2-3). Keep subsequently pled no contest to the charge of driving while intoxicated, and the remaining charges were dismissed. ( Id. pp. 9, 11-12).
As a result of Aksamit's use of force, Keep suffered contusions to the face, contusions and abrasions to the hip and thigh, swelling of the head and shoulder and around the left eye, a closed head injury, a torn muscle around the left eye, and medical bills for treatment due to his injuries. (Amended Complaint ¶ 23).
ANALYSIS
Despite Keep's death, his cause of action may survive. The Court notes that pending actions for personal injury such as that alleged in this case do not abate by death of the plaintiff under Nebraska law. Neb. Rev. Stat. § 25-1402 (1995). The Court, therefore, proceeds with the qualified immunity analysis.
Qualified immunity is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). In determining whether Aksamit or Thraen is entitled to qualified immunity, the Court must first consider whether the facts as alleged, taken in the light most favorable to Keep, show that either Defendant violated Keep's constitutional or federal statutory rights. Saucier v. Katz, 533 U.S. 194, 200 (2001). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id. at 201. If Keep's allegations show a violation of such a right, then the Court must inquire as to whether the right was clearly established. See id.; Ware v. Morrison, 276 F.3d 385, 387 (8th Cir. 2002). For a right to be "clearly established," "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). In other words, if the law did not put Aksamit or Thraen on notice that his conduct was clearly unlawful, summary judgment based on qualified immunity is appropriate. See, e.g., Bradley v. Arkansas Dept. of Educ., 301 F.3d 952, 955-56 (8th Cir. 2002).
With respect to Thraen, the uncontroverted facts show no violation of Keep's constitutional or federal statutory rights. Thraen is entitled to qualified immunity from suit in his individual capacity, and his Motion for Summary Judgment on that basis will be granted.
With respect to Aksamit, brief analysis is warranted. "[ A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard." Graham v. Connor, 490 U.S. 386, 395 (1989) emphasis original. See also Saucier, 533 U.S. at 204-05; Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 2001).
In this case, there is no genuine issue of material fact with respect to Aksamit's authority to effect a seizure of Keep. It is undisputed that Aksamit had ample cause to suspect that Keep was driving while intoxicated and fleeing to avoid arrest. There is no doubt that some use of force to effect Keep's seizure was reasonable. Tennessee v. Garner, 471 U.S. 1, 3 (1985). See also Sinclair v. City of Des Moines, 268 F.3d 594, 596 (8th Cir. 2001). The question is whether the force used was objectively reasonable under the Fourth Amendment.
Graham sets forth a list of factors relevant to determining whether the force exerted was excessive and in violation of the Fourth Amendment. The analysis "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. The proper perspective in judging an excessive force claim is that of "a reasonable officer on the scene" and "at the moment" force was employed. Id. From Graham is this often-quoted statement:
The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation. . . .
Id. at 396-97. See also
Saucier, 533 U.S. at 205. Consequently, "the reasonableness of the officer's belief as to the appropriate level of force should be judged from that on-scene perspective,"
Id.
The affidavit of Elder-Keep submitted in opposition to Aksamit's Motion for Summary Judgment purports to raise issues of material fact regarding the reasonableness of the force used by Aksamit. The Court has several concerns about the Elder-Keep affidavit, however. Other evidence submitted by Keep (also without proper authentication) indicates that Elder-Keep was a party to the disturbance at the Lincoln restaurant on the date of the incident and that she was considered by the owner of the restaurant to be suffering from "mental problems." (Filing No. 67, Ex. 3). During that earlier disturbance, she was belligerent and combative with all three police officers present, including Aksamit. (Filing No. 67, Ex. 4 p. 4). At the time of the incident giving rise to this action, Elder-Keep was choking on her own vomit, suffering from an asthma attack, and thought she was dying. (Filing No. 67, Ex. 4; Ex. 5, p. 4). Most important, for purposes of the Court's analysis of the Defendants' pending motion, the Elder-Keep "affidavit" bears no signature and has been submitted without any evidence that it was executed before a notary public. If the statements in the "affidavit" were in fact made by Elder-Keep, they were made with virtual impunity because the document is unsigned and bears no evidence of having been made under oath. As such, it is simply not competent evidence and will be given no weight. The affidavits of Aksamit and Thraen, having been properly signed and notarized, are accepted and relied upon as competent evidence.
With respect to the amount of force used to effect the lawful seizure, the Court must consider the fact that Keep refused to comply with Aksamit's initial order to take his hand out of his pocket and get back in the van. Keep then refused to comply with Aksamit's repeated orders for Keep to take his hand out of his pocket, put his hands on his head, and get down on the ground. Under the circumstances described by Aksamit, a reasonable officer would have had concern for his own safety, concern for the safety of others including the other officer at the scene, and concern for the enforcement of lawful orders that Keep persisted in defying. The reasonableness of Aksamit's action, i.e., taking Keep to the ground, should be evaluated on the basis of the action taken and not the extent of the injury incurred. Based on the competent evidence before the Court on the Defendants' Motion, the Court concludes that Aksamit violated none of Keep's clearly-established constitutional or federal statutory rights, and that a reasonable officer in Aksamit's position would not have had cause to believe that his actions violated any such clearly-established rights. As the Supreme Court has said, "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment." Graham, 490 U.S. at 396; Saucier, 533 U.S. at 208. Accordingly, Aksamit is also entitled to qualified immunity from suit in his personal capacity.
IT IS ORDERED:
1. The Motion for Summary Judgment submitted on behalf of Defendants Troy Aksamit and Jerome Thraen in their individual capacities (Filng No. 31) is granted; and
2. The action will proceed against the Defendants in their official capacities only.