Opinion
Case No. 02-1346-WEB
October 23, 2003
Memorandum and Order
Plaintiff Jeffrey Dunn claims he was subjected to excessive force by officers of the City of Newton Police Department during an encounter in February of 2001. He claims that the defendants violated his Fourth Amendment rights and he seeks an award of damages against the City of Newton and the individual defendants pursuant to 42 U.S.C. § 1983. In the Pretrial Order, plaintiff asserted that defendants Casey Watkins and Nef Torres are liable because they used excessive force against him during the encounter. Doc. 46 at p. 6. He also asserted that the City of Newton is liable because it had a policy of letting the use of excessive force by its police officers go unchallenged, and because it failed to train its officers in the proper application of force, thereby leading to the use of excessive force against him. Id. at 6-7. The matter is now before the court on a motion for summary judgment by defendants City of Newton, Richard Daily, and Jesse Peck. The court finds that oral argument would not assist in deciding the issues presented.
As an initial matter, the court notes that Plaintiff has now conceded in his response that summary judgment should be granted to defendants Peck and Daily because the evidence will not support a claim against these individuals. Doc. 55 at 13. Plaintiff also concedes that the motion should be granted with respect to his claim that the City failed to adequately train its officers. Id. The defendants, meanwhile, concede that a jury question exists as to whether defendants Casey Watkins and Nef Torres used excessive force against plaintiff in the February 2001 incident. Doc. 53 at 2. In light of these concessions and the issues preserved in the Pretrial Order, the sole issue now before the court is whether the City is entitled to summary judgment on plaintiff's § 1983 claim that the City is responsible for the alleged violation of his rights because it allowed a custom of excessive force by its police officers to go unchallenged. Doc. 55 at 13.
In addition to the claim under § 1983, the complaint asserted claims against the City of Newton for negligent supervision and retention of Officers Watkins, Torres and Peck (Count Two) and negligent failure to train (Count Three). The latter two claims have now been abandoned, leaving only the claim under § 1983.
I. Facts .
For purposes of the motion for partial summary judgment, the court finds no genuine dispute as to the following facts.
Richard Daily is the Chief of Police of the City of Newton and has served in that capacity since January 2001. Daily was not present at the time of Dunn's arrest.
Nef Torres has been a police officer for the City of Newton for ten years. Torres had previous experience as a police officer for the City of Hesston. Torres completed the Kansas Law Enforcement Training Course. Each year during his employment Torres has received training in the use of force, including courses in "Unarmed Strikes, Prone and Control Tactics" in 1995 and 1997, and "Ground Fighting Techniques" in 1998. Torres has been the subject of only one previous complaint of excessive force. Those allegations were investigated by the Newton Police Department and were found to be unfounded.
Casey Watkins has been a police officer with the Newton Police Department for three years. Watkins had previous experience as a police officer for the City of Renton, Washington. Watkins had completed the Kansas Law Enforcement Training Program transfer course. He had previously completed the full law enforcement training course in Washington. Watkins has not been the subject of any allegations of excessive force while an officer at Newton. One complaint was lodged against him while he was an officer in Renton. That complaint was dropped after investigation because the allegation involved an officer with blond hair, blue eyes and a mustache, a description that did not fit Watkins.
Plaintiff Jeffrey Dunn was arrested by Watkins and Torres on February 28, 2001. Watkins and Torres arrived at Dunn's residence to provide backup to Officer Jesse Peck, who was interviewing John McCreary in Dunn's front yard. McCreary sometimes stayed with Dunn.
Watkins went to the porch to speak with a lady who was present.
Dunn is a recovering alcoholic who testified that he has consumed no alcohol since 1998 with the exception of February 28, 2001. On February 28th, plaintiff's friend John McCreary had offered him a drink and plaintiff consumed three to four ounces of bourbon. At approximately 4:00 or 5:00 p.m. on that day, plaintiff went to bed. He was awakened by a loud banging on his front door at about 8:00 or 8:30 in the evening. Dunn went to the door, turned on the porch light and opened the door.
When Dunn opened the door, flashlights were shining toward him so that he could not see past them. He placed one foot onto the stoop and told whomever was holding the flashlights to lower them because he couldn't see. The lights were not lowered, and Dunn became angry and hollered to get the lights out of his face. Dunn then reached out with his hand, touched the flashlight with the back of his right hand and said, "I told you to get that light out of my eyes so I can see who I am talking to." After Dunn moved the flashlight away, he was grabbed by his right hand and was thrown to the ground. Dunn landed on the ground in the garden off the stoop. Dunn claims he was kicked in the face, ears, and side of the head, that he had a boot on the back of his head holding his face down on the ground, and that he was kicked in the ribs and the legs. The whole incident happened very quickly.
Officer Peck had his back to the door interviewing John McCreary and did not see the altercation. Dunn was handcuffed and taken into his house. Paramedics were called to examine him. Dunn was charged with assault and battery on a law enforcement officer and obstruction of a law enforcement officer, and was found guilty on all three charges in Municipal Court. The battery on a law enforcement officer charge was dropped, however, when the case was appealed to the District Court.
The Newton Police Department has in place a Standard Operating Procedure ("SOP") 100-03 on the use of force. SOP 100-03 goes into detail about factors which must be considered by an officer in deciding whether to use force and how much force is needed. It provides:
The level of force or control used by a police officer should always be the appropriate amount of force reasonably necessary to accomplish the legal duty of the officer. Physical force should not be used except when lesser levels of force have proven ineffective or when lesser levels would clearly be ineffective under the particular facts or circumstances of the incident.Plaintiff's Additional Statement of Uncontroverted Facts .
Plaintiff contends the following incidents show that the City of Newton Police Department had a custom or policy of allowing its officers to use excessive force.
Jack Thaw incident .
Jack Thaw is a teacher and coach in Newton, Kansas. On February 24, 1992, Mr. Thaw was informed that several African-American students had been removed from their car and that the police had them handcuffed. When Mr. Thaw arrived at the scene, he witnessed Newton Police Officers Randy Jordan and Todd Hanchett with their guns drawn standing over three African-American youths. The students were lying face down in the street with their hands cuffed behind their backs. Mr. Thaw was told by the officers that the students were suspected of having weapons in their possession. After the students had laid on the ground, handcuffed and face down for about 45 minutes, the officers' supervisor, Ms. Tamie Chaffee, arrived and dismissed the officers and released the students. As a result of what he saw at the incident and what he considered to be the officers' overreaction, Mr. Thaw addressed the Newton City Council in April 1992.
Tim Beisel incident .
According to affidavits of Tim Beisel and his girlfriend, on August 1, 1999, Beisel was in his home at 407 W. 6th St., Newton, Kansas, when he heard a knock on the door. Beisel saw Newton Police Officer Brad McMichael standing at the door. Beisel had had unpleasant encounters with McMichael in the past. Beisel asked what he wanted and McMichael said he had a warrant for Beisel's arrest. When Beisel asked to see the warrant, McMichael said he did not have it. After Beisel refused to open the door, McMichael kicked the door in. The door hit Beisel in the head and knocked him to the floor. When Beisel regained his senses, McMichael was standing over him with his gun pointed at Beisel's head. Beisel pleaded with McMichael not to shoot him and crawled into the kitchen of the home with McMichael following. When Beisel's girlfriend stepped out of a nearby bedroom, McMichael holstered his gun and handcuffed Beisel. Beisel was arrested and taken to a patrol car.
According to a letter from Beisel to the Chief of Police, a warrant had been issued on Beisel for failure to appear because he missed a court date. Beisel stated that he was unaware of the court date because notice of the hearing was mailed to the wrong address.
On August 20, 1999, Beisel wrote a letter to then-Chief of Police Ronald Jackson complaining of Officer McMichael's actions. Chief Jackson referred the complaint to the Kansas Bureau of Investigation. On September 3, 1999, the Newton City Manager responded to Beisel's letter, informing him that an outside agency was investigating his complaint and that he would be informed of the results when it was completed. The letter also stated that the City had agreed for the time being that Officer McMichael would not respond to Beisel's residence except in the event of an emergency. In October of 1999, Beisel was informed by Chief Jackson that the Kansas Bureau of Investigation had completed their investigation of McMichael and had found no wrongdoing on his part. In November of 1999, Mr. Beisel's mother wrote additional letters of complaint to the Federal Bureau of Investigation and the Kansas Bureau of Investigation.
At some point in 1999 the City of Newton established a law enforcement advisory board to serve as a sounding board for citizen concerns over law enforcement issues. Robert Myers deposition at 5-6.
On June 14, 2000, Mr. Beisel filed a civil suit against McMichael in U.S. District Court for the District of Kansas. After counsel for Mr. Beisel failed to respond to a motion for summary judgment, the court granted the motion as uncontested and dismissed the suit with prejudice on November 8, 2001. Beisel v. McMichael, Case No. 00-1252-JTM, Doc. 29.
Mark Rodriguez incident .
On January 19, 2001, Mark Rodriguez was sitting at the Dairy Queen in Newton when he was approached by Newton Police Officers Brian Hall and Brad McMichael. According to Rodriguez, Hall grabbed him by the arm and asked him why he had run from work release. As Hall was restraining him and pushing his face to the table, Rodriguez responded by saying that he was only seventeen years old and had never been to work release. Rodriguez had a red bandana in his possession, and the officers apparently accused Rodriguez of being a gang member. After the incident was over, Rodriguez' shoulder and back were hurting, so he went to the emergency room. He told the physician that the police had hurt him. In a deposition, Rodriguez testified that two days after the incident he was on the street with two other individuals when two police cars made a "u-turn" and approached. He said that three officers, including McMichael, came up and searched them, saying they had received a report of a fight. Rodriguez testified that McMichael was always harassing him and had pulled him over "a hundred times." According to Rodriguez, another officer had already searched him when McMichael approached and wanted to search him again. Rodriguez said he had already been searched and moved away. McMichael then allegedly shoved Rodriguez up against his bike, prompting Rodriguez to say, "my back." Rodriguez testified that McMichael said, "if you think your back hurts now; I'll really put your ass in the hospital." Rodriguez complained to the other officers that McMichael had threatened him, whereupon McMichael (according to Rodriguez) "tried to rephrase his story," saying, "well, if you did something, I'll put you into the hospital." Rodriguez responded, "no, [it] ain't happening no more," and called a lawyer the next day. On October 31, 2001, Rodriguez filed suit in the U.S. District Court for Kansas against Officers Hall and McMichael and the City of Newton. In August of 2002, the City agreed to pay a settlement of $11,500.00 to Mr. Rodriguez and the case was dismissed.
Reena Eberle incident .
The events of March 16, 2001, pertaining to Ms. Eberle were recorded by a video camera installed at the Harvey County Detention Center. Ms. Eberle was at the detention center after having been arrested by Officer McMichael on suspicion of DUI. The videotape shows that while Ms. Eberle was seated in the booking room, she made numerous derogatory comments to Officer McMichael, and that he in turn responded sarcastically to many of her comments. Eberle was about to take an "Intoxilyzer" breath test when she changed her mind, got up out of her chair and demanded to be released. Ms. Eberle walked past McMichael and demanded that another officer open the door, at which point McMichael told her to sit down. When she refused, Officer McMichael attempted to grab her hand, but she moved her arm. McMichael then grabbed her by the hand and turned her around. He pushed her toward her chair and she stumbled and fell. After landing on the floor, Ms. Eberle kicked at Officer McMichael. McMichael kicked Ms. Eberle in return and then turned her over, placing his knee on her back while he and another officer placed Ms. Eberle in handcuffs.
On April 8, 2001, McMichael was given a verbal warning by Chief Daily for displaying unprofessional verbal conduct to an arrestee. Daily told him that he needed to deal with people in a less confrontational manner. The warning was documented in McMichael's personnel file.
As a result of the above incident, Ms. Eberle filed a federal lawsuit claiming she was subjected to the use of excessive force. That action is now pending before Judge Marten in this District. Eberle v. City of Newton, Kansas, et al., No. 02-1348-JTM (D. Kan.). According to stipulations in the Pretrial Order in that case, Ms. Eberle had been arrested by Officer McMichael on March 16, 2001, and was charged with driving on a suspended license, driving under the influence of alcohol, and battery on a law enforcement officer. See Case No. 02-1348-JTM, Doc. 66 at p. 2. She was released the following day after she paid $300 down on an O/R bond. On April 10, 2001, the charges against Ms. Eberle were dismissed by the Newton City Prosecutor. On April 12, 2001, Ms. Eberle executed a release of all claims against the City in exchange for a payment of $300. Ms. Eberle is now challenging the validity of the release in her civil lawsuit.
Jeff Snow incident .
In November of 2001, Officer McMichael was involved in an another incident. According to a departmental report compiled after the incident, McMichael was assisting another officer with a vehicle stop and investigation when McMichael became angry at comments made by one of the occupants of the vehicle. According to the report, "McMichael lost his composer [sic] and struck the occupant, who was handcuffed, behind his back, knocking him to the ground. Mr. McMichael let the occupant get back to his feet and flipped him to the ground again."
The Newton Deputy Police Chief conducted an internal investigation into McMichael's conduct. On November 17, 2001, McMichael received a written warning and was suspended pending the investigation. The Deputy Chief's report recommended that McMichael be dismissed from the department. On November 21, 2001, McMichael was involuntarily terminated for misconduct and violation of City of Newton Police Department policy.
As a result of his actions involving Ms. Eberle and two other individuals, Officer McMichael was charged by the Harvey Counter Prosecutor with three counts of battery and/or in the alternative mistreatment of a confined person. After reviewing the evidence, Harvey County Prosecutor David Yoder submitted a motion to amend two of the misdemeanor charges to felony aggravated battery. McMichael subsequently pleaded no contest to two misdemeanor battery charges, one of which arose from the incident with Ms. Eberle. The remaining charges were dropped as a result of a plea bargain. Mr. Yoder believed that he possessed sufficient evidence to present the cases against Officer McMichael to a jury.
Robert Meyers, City Attorney for Newton, estimated that between 1999 and March of 2003 the City had received four or five notices of "intent to sue" (as required by K.S.A. § 12-150b) relating to complaints of excessive force.
II. Summary Judgment Standards .
A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A "genuine" issue of fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. An issue of fact is "material" if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Under Rule 56, the moving party initially bears the burden of making a prima facie showing of the absence of a genuine issue of material fact and an entitlement to judgment as a matter of law. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). This burden may be satisfied by pointing to an absence of evidence on an essential element of the non-movant's claim. Id. at 671 ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the moving party carries this burden, the opposing party cannot simply rest upon the pleadings; it must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Because it is the role of a jury to resolve any conflicts in the evidence, the court must examine the evidence on a motion for summary judgment in the light most favorable to the non-moving party. Jones v. Unisys Corp., 54 F.3d 624, 628 (10th Cir. 1995).
III. Summary of Arguments .
Plaintiff contends the evidence described above shows that "the City had allowed a custom to develop whereupon officers of the Newton Police Department believed that no discipline or other punitive actions would be taken against them for their use of force." Pl. Resp. at 19. He argues that as early as 1992 the City "had been placed on notice of the potential use of excessive force by its police officers and yet the problem was not addressed until November of 2001, when Officer McMichael was terminated. . . ." Id. at 20. By "allowing the policy of unrestrained force to be developed over the years," plaintiff argues, "it was inevitable that someone such as Mr. Dunn or other persons would be injured by the police." Id. at 24.
The City contends the evidence in insufficient for a reasonable jury to find that plaintiff's incident was caused by the City's indifference to the use of excessive force. It argues that the "Jack Thaw incident" in 1992 is too remote and too sketchy to demonstrate any relation to the plaintiff's case. As for the "Beisel incident" in 1999, the City points out that the KBI cleared Officer McMichael of wrongdoing and that Beisel's civil suit for damages against McMichael was dismissed. The City further argues that its settlement of the January 2001 "Rodriguez incident" was for "a relatively modest sum" and was not an admission of liability or wrongdoing. The City thus contends the incident "does little or nothing to prove a pattern of excessive force." Finally, the City points out that the Eberle and Snow incidents occurred after plaintiff's arrest in February of 2001, and it argues these incidents cannot be used to show the existence of custom that led to the use excessive force against the plaintiff. If such incidents can be considered, defendant argues, then they actually show there was no toleration of excessive force by the City, because the incidents led to Officer McMichael's termination by the City and his eventual criminal prosecution.
IV. Discussion .
Section 1983 of Title 42 of the United States Code makes liable any person who, acting under color of state law, deprives an individual of rights secured by the Constitution or laws of the United States. A municipality is a "person" subject to potential liability under § 1983. Monell v. Department of Soc. Services of City of New York, 436 U.S. 658, 690 (1978). A municipality may not be held liable under § 1983, however, merely because it employed a person who violated an individual's rights. Id. A municipality can be liable under § 1983 only where the City itself caused the constitutional violation at issue. City of Canton v. Harris, 489 U.S. 378, 385 (1989) (noting that respondeat superior or vicarious liability will not attach under § 1983). "It is only when the `execution of the government's policy or custom . . . inflicts the injury' that the municipality may be held liable under § 1983." Id. (quotation omitted).
Absent an official policy (and there is no allegation here of an official policy of using excessive force), a municipality may be held liable if an unconstitutional practice is "so permanent and well settled as to constitute a `custom or usage' with the force of law." Lankford v. City of Hobart, 73 F.3d 283, 286 (10th Cir. 1996) ( quoting Adickes v. S.H. Kress Co., 398 U.S. 144, 168 (1970)). In order to establish a custom, the actions of the municipal employees must be "continuing, persistent and widespread." Gates v. Unified Sch. Dist. No. 449, 996 F.2d 1035, 1041 (10th Cir. 1993). In addition, the plaintiff must show deliberate indifference to or tacit approval of such misconduct by policymaking officials after notice of such misconduct. Id. In sum, then, to establish his claim against the City of Newton under § 1983 the plaintiff must show: (1) the existence of a continuing, persistent and widespread practice of unconstitutional misconduct by the City's employees; (2) deliberate indifference to or tacit approval of such misconduct by the City's policymaking officials after notice to the officials of that particular misconduct; and (3) that plaintiff was injured by virtue of unconstitutional acts pursuant to the City's custom and that the custom was the moving force behind the unconstitutional acts. See Gates v. Unified Sch. Dist. No. 449, 996 F.2d 1035, 1041 (10th Cir. 1993).
Even viewed in the light most favorable to plaintiff, the evidence cited above cannot reasonably support the elements of a claim against the City of Newton. First of all, plaintiff's evidence fails to show that at the time of his arrest there was a custom by City of Newton police officers of using excessive force. To support his claim of custom, plaintiff cites evidence of three incidents that occurred prior to his February 2001 arrest. The first incident occurred in 1992, and is based solely on testimony from a witness who arrived at the scene after officers had already taken the individuals in question into custody. The witness apparently had no personal knowledge of what events prompted the officers to detain the individuals. Although the witness thought the officers overreacted, and so informed the City Council, the facts set forth are inadequate to establish that the force used by the officers was in fact excessive and unreasonable in view of the circumstances confronting the officers. The second incident cited by plaintiff occurred about seven years later, in August of 1999, when Mr. Beisel refused to open his door as Officer McMichael attempted to arrest Beisel on an outstanding warrant. In the third incident, in January of 2001, Mr. Rodriguez claimed that Officers Hall and McMichael harassed him and used unnecessary force against him. Even assuming plaintiff could show that the force used in these latter two incidents was excessive, this cannot reasonably be considered a "continuing, persistent and widespread practice" of excessive force that is "so permanent and well settled as to constitute a `custom or usage' with the force of law." Cf. Adickes v. S. H. Kress Co., 398 U.S. 144, 167-168 (1970). See also Carter v. Morris, 164 F.3d 215, 220 (4th Cir. 1999) (plaintiff's "meager history of isolated incidents" did not approach the type of widespread and permanent practice necessary to establish municipal custom); Eugene v. Alief Independent School Dist., 65 F.3d 1299, 1304 (5th Cir. 1995) (two incidents of alleged excessive force insufficient to show policy or custom); Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996) (two instances of misconduct "do not indicate a `persistent and widespread' pattern of misconduct that amounts to a city custom or policy of overlooking police misconduct."); Carter v. District of Columbia, 795 F.2d 116, 124 (D.C. Cir. 1986) ("the assorted actual instances of misconduct demonstrated in this case do not line up to compose a common or widespread pattern of police misbehavior adequate to establish § 1983 municipal liability"). The instances cited do not reasonably imply a persistent and widespread use of excessive force. Cf. Bd. of County Commissioners of Bryan County, Okla., v. Brown, 520 U.S. 397, 404 (1997) (municipal custom may fairly subject a city to liability when the relevant practice is so widespread as to have the force of law).
Plaintiff also cites evidence of alleged excessive force incidents that took place subsequent to his arrest and argues these incidents tend to show the existence of a municipal custom of excessive force. The courts are divided on the probative value of subsequent incidents such as these. See e.g., Henry v. City of Shasta, 132 F.3d 512, 520 (9th Cir. 1997), as amended, 137 F.3d 1372 (9th Cir. 1998) (post-event evidence is "highly probative" and may be used to infer the existence of a municipal custom or policy); Bemis v. Edwards, 45 F.3d 1369 (9th Cir. 1995) (evidence of prior incidents of misconduct may show that a policy exists, but it is doubtful whether events occurring after this episode would be relevant); Foley v. City of Lowell, Mass., 948 F.2d 10, 14 (1st Cir. 1991) (actions subsequent to the event are admissible to the extent they provide reliable insight into the policy in existence at the time of the event); Calusinski v. Kruger 24 F.3d 931 (7th Cir. 1994) (evidence of incidents occurring after event in question were properly excluded); Harvey v. Hankins, 681 F. Supp. 622, 624 (W.D.Mo.1988) (evidence of excessive force incidents after the one in question were irrelevant because they did not show deliberate indifference to the plaintiff's rights); Dejesus v. Village of Pelham Manor, 2003 WL 22170736 (S.D.N.Y. 2003) (subsequent acts, standing alone or even in conjunction with other prior acts, are not probative of a prior municipal policy because they can not provide the necessary causal link between a custom or policy and the conduct at issue).
Even if the incidents occurring after plaintiff's arrest can be considered, plaintiff still has failed to show a genuine issue of fact on the elements of municipal liability. Specifically, the evidence cited by plaintiff cannot support a finding that City of Newton officials were deliberately indifferent to or tacitly approved of the use of excessive force. Where, as here, it is claimed that a City's failure to act has caused its employees to violate a plaintiff's rights, "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." Bryan County Commissioners v. Brown, 520 U.S. 397, 410 (1997). The applicable standard of culpability — deliberate indifference — "is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Id. Deliberate indifference may be shown when a City "has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm." Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1999). This standard makes clear that if liability is premised upon a City's disregard of a pattern of behavior, there must be evidence that the City was on notice of the likelihood of harm prior to the alleged violation of the plaintiff's rights, such that the City can be faulted for failing to prevent the harm. See e.g., Bryan County, 520 U.S. at 411 (plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular right will follow the decision.); Mettler v. Whitledge, 165 F.3d 1197, 1205 (8th Cir. 1999) (plaintiff must show a failure to investigate previous incidents to show that the officers believed a municipal custom allowed them to violate plaintiff's rights with impunity). Plaintiff's evidence fails to meet this requirement. Aside from the 1992 incident described above, plaintiff cites evidence of four other incidents, including two that took place before his arrest and two that took place after. The first of these — the 1999 arrest of Mr. Beisel — was referred by Newton police officials to the KBI for an independent investigation. The KBI found that Officer McMichael engaged in no wrongdoing, and Beisel's civil rights' lawsuit against McMichael was dismissed with prejudice. Nothing about these facts suggests deliberate indifference on the part of the City. Cf. Mootye v. Dotson, 73 Fed.Appx. 161, 2003 WL 21801414 (7th Cir. 2003) (unpublished) ("Because of the result of the independent investigation, the City had no cause to look further into the matter or to take any other corrective action"). As for the Rodriguez incident in January of 2001 — it is true that Mr. Rodriguez eventually prevailed on a lawsuit against the City. And contrary to the City's argument, the court believes that a reasonable jury could find that the settlement of the claim implies there was some wrongdoing on the part of the officers involved. But the Rodriguez lawsuit was not filed until October of 2001 and was not settled until August of 2002, well after plaintiff's arrest in February of 2001. There is no evidence to tie the incident in any way to the alleged violation of plaintiff's rights. Nor does plaintiff cite evidence to show how the City handled Rodriguez' complaint of excessive force or whether it took any remedial action as a result of the settlement. This is hardly sufficient evidence to conclude that a custom of excessive force existed or that the City was deliberately indifferent to the use of such force. As for the two incidents subsequent to plaintiff's arrest, the probative value of these incidents is dubious at best. At any rate, the court notes that both of those matters involved Officer McMichael (as did the earlier Beisel and Rodriguez episodes), and the first incident led to a reprimand from the Newton Chief of Police, while the second incident led to McMichael's termination from the police department. To the extent these incidents are relevant and can be considered, they actually refute rather than support plaintiff's claim that Newton city officials were deliberately indifferent to the use of excessive force by its officers. Taken together, the incidents point to a possible pattern of questionable behavior by Officer McMichael. But the City did not ignore the problem; it reprimanded the officer and subsequently terminated him. Cf. Vann v. City of New York, 72 F.3d 1040 (2nd Cir. 1995) (deliberate indifference may be inferred if repeated complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents). In sum, the City of Newton cannot be said to be responsible for the alleged violation of plaintiff's Fourth Amendment rights, as the evidence will not support the contention that the violation was part of a municipal custom of using excessive force, nor is there evidence of deliberate indifference to or tacit approval of excessive force by the City's policymaking officials after notice of such misconduct. Accordingly, plaintiff has failed to support the essential elements of his claim § 1983 claim against the City, and the City's motion for summary judgment must be granted.
V. Conclusion .
Plaintiff's Motion for Leave to File a Videotape Exhibit Outside of CM/ECF (Doc. 56) is GRANTED;
The Motion for Summary Judgment of defendants City of Newton, Richard Daily, and Jesse Peck (Doc. 52) is GRANTED; plaintiff's claims against these defendants are hereby DISMISSED with prejudice; and
Plaintiff's claims against defendants Watkins and Torres alleging the use of excessive force will be tried to a jury. The court hereby schedules a pre-trial status and motions hearing for January 12, 2004, at 10:30 a.m., and the trial is hereby set for January 27, 2004, at 9:00 a.m.