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explaining “[t]here simply is no way that an arrest based upon probable cause can, standing alone, exceed all bounds of decency or could be regarded as atrocious and utterly intolerable in a civilized community”
Summary of this case from Ratliff v. City of Shannon HillsOpinion
1:01cv41-C
August 16, 2002
MEMORANDUM OF DECISION
THIS MATTER is before the court upon defendants' Motion for Summary Judgment. Having considered defendants' motion and reviewed the pleadings, including plaintiff's response and defendants' reply, the court enters the following findings, conclusions, and decision.
Findings and Conclusions I. Factual Background
The court has considered the factual setting in a light most favorable to plaintiff and summarizes the pertinent facts for the limited purpose of this decision. Plaintiff is a resident of Kings Mountain, North Carolina, and defendant C. M. Kahn is a police officer employed by the defendant City of Kings Mountain.
On January 11, 1998, Defendant Kahn arrested plaintiff at his home on a charge of driving while impaired. While in route responding to a domestic-disturbance call, Kahn observed plaintiff erratically driving a blue vehicle with dealer tags. Immediately thereafter, Kahn was flagged down by a woman on the side of the road, who told him that the driver of the blue vehicle had hit her, had been fighting, and was drunk. After attempting to secure from dispatch identifying information about the vehicle, Kahn proceeded to the American Legion Post, where he was told the man was likely headed. Not finding him at that location, he returned to where he had talked with the woman, who then told him that the driver and man who had struck her was plaintiff herein and that he lived around the corner. Defendant Kahn proceeded to the house, observed the blue car with dealer tags in the driveway, and proceeded to the door. Defendant Kahn has testified that he knocked on the door and was given permission to enter by a woman occupant, he entered and confronted plaintiff, who claims to have been sleeping, and he then arrested plaintiff after smelling the odor of alcohol about his person.
Plaintiff asserts that Kahn removed him from his bed and dragged him through the house. Although the court has accepted that allegation as true, such fact is not "material" to this particular dispute, inasmuch as plaintiff's fourth-amendment claim is limited to unlawful arrest, and no allegation has been made as to excessive force or personal injury.
After arresting plaintiff, Kahn transported him to the state magistrate, who conducted a hearing, found probable cause, and issued a warrant for plaintiff's arrest for driving while impaired. Apparently, the magistrate reconsidered his probable-cause determination a few days later, and the state later dropped the charge of driving while impaired.
Plaintiff contends, and defendants do not contest, that it was 25 minutes between the time when Kahn first observed plaintiff driving the blue car and when he was arrested in his home. Plaintiff does not allege excessive force and has not presented evidence that the search or entry into his home was unlawful, only that the arrest was not supported by probable cause due to the 25-minute delay. Plaintiff asserts the following causes of action: (1) malicious prosecution; (2) intentional infliction of emotional distress; (3) violation of his fourth-amendment right to be free from seizure without probable cause; and (4) punitive damages on the state-law claims. Defendants have moved for summary judgment and have asserted, among other arguments, that Kahn is entitled to qualified immunity.
II. Summary Judgment Standard Generally
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving [sic] party, there is no "genuine issue for trial."
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
By reviewing substantive law, the court may determine what matters constitute material facts. Id. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id. at 248. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).
Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). Affidavits filed in support of defendants' Motion for Summary Judgment are to be used to determine whether issues of fact exist, not to decide the issues themselves. United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). When resolution of issues of fact depends upon a determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979).
III. Discussion A. Constitutional Claim 1. Individual Capacity: Qualified Immunity
Defendant Kahn, sued in his individual capacity, asserts that he is entitled to qualified immunity. Public officials are free from liability for monetary damages if they can plead and prove that their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 815-16 (1982). In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Supreme Court held that qualified immunity is "immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if the case is erroneously permitted to go to trial." Id. at 526. Qualified immunity is a question of law.
When a defendant moves for summary judgment on the ground of qualified immunity, the court "considers in the light most favorable to the plaintiff all facts fairly inferable from the record — regardless of the existence of factual dispute — and decides whether, under those facts, [defendant's] conduct violated law clearly established at the time." Bennett v. Parker, 898 F.2d 1530 n. 2 (11th Cir. 1990). A plaintiff must produce evidence sufficient to create a genuine issue as to whether the defendant committed the acts alleged. As a matter of law, those acts must be sufficient to generate liability under the fourth amendment. All inferences, including credibility of an affiant, are drawn in favor of a plaintiff for qualified-immunity purposes. Gordon v. Kidd, 971 F.2d 1087, 1093-94 (4th Cir. 1992).
If it is undisputed that the right allegedly violated was clearly established at the time, the defendant asserting a qualified-immunity defense may still be immune from damages for violation of that right if, under the circumstances, a reasonable officer could have believed that his particular conduct was lawful. A court must make an objective, although fact-specific, inquiry into the legal reasonableness of the conduct. Anderson v. Creighton, 438 U.S. 635, 641 (1987). The lawfulness of the action must be apparent when assessed from the perspective of an objectively reasonable officer charged with knowledge of established law; a defendant's motives are irrelevant to the qualified-immunity inquiry. Id. The inquiry depends upon the reasonableness of the officer's perceptions, not those of the plaintiff or bystanders. Gooden v. Howard Co., 954 F.2d 960, 965 (4th Cir. 1992) (en banc).
The perceptions of Kahn have been adequately presented to the court. In sum, Kahn received a dispatch call of a domestic disturbance; he observed plaintiff drive an automobile erratically in the vicinity of the call; he was told by the alleged victim of the assault that plaintiff had committed the assault and was the driver of the vehicle; he observed such vehicle nearby in plaintiff's driveway; he questioned plaintiff in plaintiff's home, after being allowed entry into the home by an adult occupant; and he arrested plaintiff after smelling the odor of alcohol about his person. The fact that a state magistrate found probable cause, but later in the week "unfound" probable cause, or that the state later dismissed the charge, is simply not relevant to whether the officer at the time of arrest actually had probable cause.
Where a plaintiff asserts a fourth-amendment violation and a defendant moves for summary judgment on the basis of qualified immunity, the court's inquiry is the same as the inquiry made on the merits. Hopkins v. Andaya, 958 F.2d 881, 885 n. 3 (9th Cir. 1992); Quezada v. County of Bernalillo, 944 F.2d 710, 718 (10th Cir. 1991); Dixon v. Richer, 922 F.2d 1456 (10th Cir. 1991). In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court held that all fourth-amendment violations are to be analyzed under the fourth-amendment standard of objective reasonableness. The Court in Graham stated, as follows:
The "reasonableness" of [a police action implicating the fourth amendment] . . . must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. See Terry v. Ohio, supra, at 20-22. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, Hill v. California, 401 U.S. 797 (1971), nor by the mistaken execution of a valid search warrant on the wrong premises, Maryland v. Garrison, 480 U.S. 79 (1987).
* * *
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. . . .
Id. at 396-97. An officer's actions must be viewed from the objective perspective of a reasonable officer on the scene "rather than with the 20/20 vision of hindsight." Id. at 396.
Viewed from the objective perspective of a reasonable officer on the scene, such an officer would believe that probable cause existed to effectuate the arrest of plaintiff. There simply is no requirement that a police officer maintain visual contact with a driving-while-impaired suspect from the time he first sees him until the point of arrest. While such suspect may later claim that he took his first drink during the gap, that is an affirmative defense and has nothing to do with whether an officer had probable cause to arrest. Clearly, even police officers who are not in hot pursuit can enter a suspect's home when given permission by an adult occupant. The law in this circuit is well-settled that third-party consent to warrantless entry into a home that is made in response to an officer's representation that he wishes to talk to another person therein is valid consent, not gained by deception, and that once inside, the officer has the right to arrest because he had probable cause to believe that such person had been involved in a crime. Vizbaras v. Prieber, 761 F.2d 1013 (4th Cir. 1985), cert. denied, 474 U.S. 1101 (1986). Without doubt, a reasonable person in the same position as this officer would have believed that his conduct in arresting plaintiff was not in violation of the fourth amendment. Even when reviewed on the merits, it is clear that no fourth-amendment violation occurred in this case. Finding that Kahn is entitled to the full protection of qualified immunity, the court must grant defendants' Motion for Summary Judgment on the claim of unlawful seizure.
2. Official Capacity: Vicarious Liability
When a public official is sued in his official capacity, the suit is eo nominee a suit against the governmental entity for which he works — in this case, the City of Kings Mountain. For all the reasons discussed above, the municipal defendant is entitled to summary judgment because probable cause supported the arrest.
In addition, a municipal corporation, such as a city, may only be held liable under Section 1983 for the conduct of its employees in certain circumstances. The United States Supreme Court held, as follows:
[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.
Monell v. Department of Social Servs., 436 U.S. 658, 694 (1978), overruling in part Monroe v. Pape, 365 U.S. 167 (1961). In order to survive a motion for summary judgment, plaintiff must allege that his injury stemmed from a policy or custom established by the municipality. Plaintiff has made no such allegation and no such showing.
Two elements are required to establish municipal liability: (1) that a plaintiff's harm was caused by a constitutional violation; and (2) that the municipality is responsible for that violation. A municipality is responsible only when execution of a municipal policy or custom, whether made by its lawmakers or by those whose acts may fairly be said to represent official policy, inflicts injury. Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987), cert. denied, 484 U.S. 1027 (1988). To avoid imposing vicarious municipal liability rejected by the Court in Monell, any theory of municipal liability must be controlled carefully at three critical points:
(1) identifying the specific policy or custom;
(2) fairly attributing the policy and fault for its creation to the municipality; and
(3) finding the necessary affirmative link between the identified policy or custom and the specific violation.
Id. at 1389. Plaintiff has not produced any evidence of lack of training or the existence of any policy or custom, either implicit or explicit, much less shown any constitutional violations by the defendant officer. Summary judgment will be granted to the municipal defendant on plaintiff's Section 1983 claim.
B. Malicious Prosecution
Plaintiff also claims that the charge lodged against him by Kahn was a malicious act. To survive defendants' Motion for Summary Judgment on this claim, plaintiff's burden is to present evidence upon which a jury could find in his favor on each and every element of the common-law tort. The elements of malicious prosecution in North Carolina include the following:
(1) that defendants initiated the earlier proceeding;
(2) malice on the part of defendants in doing so;
(3) lack of probable cause for the initiation of the earlier proceeding; and
(4) termination of the earlier proceeding in favor of the plaintiff.
Lane v. Cheeks, 1:94cv389, 1995 U.S. Dist. LEXIS 18840, at * 3 (M.D.N.C. 1995). In this case, plaintiff cannot satisfy the third element — probable cause. In the context of a suit for malicious prosecution, the North Carolina courts define probable cause as "the existence of such facts and circumstances, known to [the defendant] at the time, as would induce a reasonable man to commence a prosecution." Id. (citations omitted). Probable cause is a question of law for the court, id., and Defendant Kahn had probable cause to effectuate the arrest of plaintiff. He had personally observed plaintiff drive erratically on a public road, received an eyewitness account of the battery allegedly committed by plaintiff and a report that he was drunk, and personally observed that plaintiff had the odor of alcohol about his person, all within close temporal proximity. Plaintiff has come forward with no competent evidence to show any maliciousness or personal vendetta on the part of Kahn. The court is compelled to grant defendants' Motion for Summary Judgment on the common-law claim of malicious prosecution because the prosecution was founded upon probable cause.
C. Intentional Infliction of Emotional Distress
Plaintiff has also asserted a claim of intentional infliction of emotional distress, which, like the claim of malicious prosecution, is governed by the laws of the State of North Carolina. United Mine Workers v. Gibbs, 383 U.S. 715, 727 (1966). The elements of the tort are "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress." Hogan v. Forsyth Country Club, 79 N.C. App. 483, 488, disc. rev. denied, 317 N.C. 334 (1986). "It is a question of law for the court to determine, from the materials before it, whether the conduct complained of may reasonably be found to be sufficiently outrageous as to permit recovery." Id. at 490.
For purposes of ruling on defendants' motion, the court has resolved any disputed facts in plaintiff's favor. There simply is no way that an arrest based upon probable cause can, standing alone, "exceed all bounds of decency," West v. King's Dep't Store, Inc., 365 S.E.2d 621, 625 (N.C. 1988), or could be "`regarded as atrocious, and utterly intolerable in a civilized community,'" Wagoner v. Elkin City School Bd. of Educ., 440 S.E.2d 119, 123 (N.C.Ct.App. 1994) (citation omitted). In addition to the lack of a showing on the first element, no competent evidence has been presented on the third element of "severe emotional distress." Summary judgment will be granted in favor of defendants on this claim.
D. Punitive Damages
A claim for punitive damages is not an independent cause of action, only a remedy that is available upon a showing that other torts were committed with malice.
As a general rule, "[p]unitive damages do not and cannot exist as an independent cause of action, but are mere incidents of the cause of action and can never constitute a basis for it. If the injured party has no cause of action independent of a supposed right to recover punitive damages, then he has no cause of action at all." J. Stein, Damages and Recovery § 195 at 389 (1972). North Carolina follows this general rule of law.
Hawkins v. Hawkins, 101 N.C. App. 529, 532 (1991). Because no cause of action survives, plaintiff's claim or assertion of punitive damages will also be dismissed.
IV. Conclusion
For the reasons discussed above, the court will grant defendants' Motion for Summary Judgment (#23), enter judgment in defendants' favor, and dismiss the entire action with prejudice. As defendants correctly point out in their reply, a number of issues raised on summary judgment were not addressed by plaintiff in his response, and they are deemed abandoned. A judgment reflecting this decision is being entered simultaneously herewith.