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Mochama v. Zwetow

United States District Court, D. Kansas

February 27, 2017

TIMOTHY ZWETOW, et al., Defendants.


          Kathryn H. Vratil United States District Judge

         Plaintiff Justine Osoro Mochama, an immigration detainee, brings suit against Timothy Zwetow, Rodney Nichols, Alan Van Skike, Jane Patty-Kill and Andrew Pleviak, who are employees of the United States Immigration and Customs Enforcement (“ICE”).[1] Plaintiff asserts five claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). On January 3, 2017, the Court sustained in part and overruled in part defendants' motion to dismiss or for summary judgment. Memorandum And Order (Doc. #95).[2]

         On January 13, 2017, in light of the recent Supreme Court opinion in White v. Pauly, No. 16-67, 580 U.S., 2017 WL 69170, at *4 (Jan. 9, 2017), the Court ordered plaintiff to show cause in writing why the Court should not vacate in part the Memorandum And Order (Doc. #95) and instead find that (1) Rodney Nichols and Timothy Zwetow are entitled to qualified immunity on plaintiff's claim that they violated his Fourth and Fifth Amendment rights when they used excessive force at the Butler County Detention Center (part of Count I) and (2) Rodney Nichols is entitled to qualified immunity on plaintiff's claim that he violated plaintiff's Fourth and Fifth Amendment rights when he failed to intervene during the incident at the Butler County Detention Center (part of Count II). The Court directed plaintiff to address whether, as of January 28, 2014, the law established “beyond debate” that defendants' actions were unconstitutional. Order To Show Cause (Doc. #98) (quoting White, 2017 WL 69170, at *4) (court must identify clearly established law which is “particularized” to facts of case).

         In ruling on the motion to dismiss or for summary judgment, the Court summarized the facts - viewed in the light most favorable to plaintiff - as follows:

         On the morning of January 28, 2014, plaintiff did not know that he was to be removed to Kenya that day. Moreover, he had recently filed a habeas corpus petition challenging his continued detention. When the officers initially asked him to fingerprint and sign a form, plaintiff asked to speak to an attorney. The officers ignored that request, then removed plaintiff from his cell. Zwetow told plaintiff that they needed to get his fingerprint. In response, plaintiff put his hands in his pockets. Within a few seconds, Nichols and Zwetow lifted plaintiff off his feet and Zwetow hit him very hard in the stomach/chest. The officers then took plaintiff to the floor and hit his head on the floor. As a result, plaintiff sustained injuries including a severe headache and sore fingers.

         Based on these facts, the Court ruled that a reasonable jury could find that Nichols and Zwetow violated plaintiff's rights by using excessive force in violation of the Fifth Amendment. The Court noted that “the appropriate standard for a pretrial detainee's excessive force claim is solely an objective one.” Memorandum And Order (Doc. #95) at 36 (quoting Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015)). In determining whether the conduct was objectively unreasonable, courts consider the non-exclusive factors set out in Graham v. Connor, 490 U.S. 386, 396 (1989): (1) the relationship between the need for the use of force and the amount of force used; (2) the extent of plaintiff's injury; (3) any efforts to temper or limit the amount of force; (4) the severity of the security problem at issue; (5) the threat reasonably perceived by the officer; and (6) whether plaintiff was actively resisting. Memorandum And Order (Doc. #95) at 36.

         Applying this standard, the Court noted that district courts in other circuits have ruled that officers may use some force if a detainee resists a lawful order to provide fingerprints.[3] Id. at 38 (citing Scott v. City of White Plains, No. 10-Civ.-1887(KBF), 2013 WL 1313774, at *7 (S.D.N.Y. Mar. 18, 2013) (ICE officers entitled to qualified immunity on claims of excessive force and failure to intervene where officer briefly used pressure point to obtain fingerprint from uncooperative deportee); Wysner v. Dallas Cty. Sheriff's Dep't, No. 96-CV-1011, 1997 WL 10030, at *3 (N.D. Tex., Jan 7, 1997) (officers may use some force to subdue pretrial detainee to obtain fingerprint); see also 8 U.S.C. § 1357(a)(5) (ICE agents may use force to accomplish mission); cf. New v. Perry, No. 07-cv-723, 2009 WL 483341, at *12 (S.D. Ohio Feb. 25, 2009) (jury question whether officers used unreasonable force when they slammed plaintiff to floor after he kept hands in pockets to avoid fingerprinting). The Court found that under plaintiff's version of the facts, the amount of force which Nichols and Zwetow used at the Butler County Detention Facility was objectively unreasonable.[4] Memorandum And Order (Doc. # 95) at 36-39.

         The Court then addressed whether, based on plaintiff's version of the facts, it should have been apparent to defendants that their actions were objectively unreasonable. Id. at 39. The Court summarily ruled that based on the state of the law on January 28, 2014, reasonable officers would have been aware that the level of force they used was not objectively reasonable. Id. (degree of force used not justified solely on basis of need to get plaintiff's fingerprint).

         In response to the order to show cause, plaintiff asserts that White v. Pauly does not change the law governing whether a right is “clearly established.” See Response To Order To Show Cause (Doc. #103) filed January 20, 2017, at 1. Plaintiff correctly points out that before White, the Supreme Court had stated that existing precedent must have placed the statutory or constitutional question “beyond debate.” See White, 2017 WL 69170, at *4 (quoting Stanton v. Sims, 134 S.Ct. 3, 5 (2013); Ashcroft v. al-Kidd, 563 U.S. 731, 741-42 (2011)). Morever, the Supreme Court has repeatedly instructed courts not to define clearly established law “at a high level of generality.” White, 2017 WL 69170, at *4; see also City & Cty. of San Fran., Cal. v. Sheehan, 135 S.Ct. 1765, 1775-76 (2015). Instead, courts must identify clearly established law which is “particularized” to the facts of the case. White, 2017 WL 69170, at *4 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (qualified immunity protects all but plainly incompetent or those who knowingly violate law). Though “a case directly on point” is not required, to demonstrate the infringement of a clearly established right, plaintiff must direct the court to “cases from the Supreme Court, the Tenth Circuit, or the weight of authority from other circuits.” Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir. 2008); see Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) (plaintiff bears burden to cite purported clearly established law applicable to claim).

         This Court cited three cases for the proposition that under plaintiff's version of the facts, the officers violated a clearly established right. See Memorandum And Order (Doc. #95) at 39 (citing Vondrak v. City of Las Cruces, 535 F.3d 1198, 1202 (10th Cir. 2008) (use of tight handcuffs on doctor arrested for suspicion of DUI constituted excessive force); Meredith v. Erath, 342 F.3d 1057, 1059 (9th Cir. 2003) (IRS Agent who illegally detained plaintiff used excessive force by overly tight handcuffs); Burden v. Carroll, 108 F. App'x 291, 292 (6th Cir. 2004) (police officer not entitled to qualified immunity for throwing plaintiff several feet into brick wall with protrusions after officer had time to assess that plaintiff was not threat). On further reflection, the Court finds that these cases are not sufficiently particularized to the facts of this case to constitute clearly established law. See White, 2017 WL 69170, at *4 (plaintiff bears heavy burden of showing constitutional right clearly established beyond debate).

         Plaintiff cites several cases which, he asserts, demonstrate that the law was clearly established. See Plaintiff's Response (Doc. #103) at 3-4. In Smith v. Delamaid, when officers arrested plaintiff for DUI he became verbally abusive and broke two breathalyzer machines. 842 F.Supp. 453, 459 (D. Kan. 1994). Officers restrained him with handcuffs and ankle shackles, hit him in the ear, punched and jabbed him in the kidneys with a night stick, kicked him in the groin, threw him against the wall and the floor and stepped on his throat. Id. at 459-60. The district court ruled that “[a] reasonable police officer would know that to kick, punch, and throw a restrained, cooperative arrestee constitutes excessive force under the Due Process standard.” Id. The facts of this case are much less severe, however, than Smith. Here, plaintiff was not in restraints, an officer punched him once in the stomach and officers took him to the floor and pushed his head into the floor. They did not repeatedly hit him or step on his throat.

         Plaintiff also relies on Long v. Morris, 485 F.Supp.2d 1247 (D. Kan. 2007). Long was a jail inmate who refused to return to his cell. While Long was in hand and leg restraints, a deputy threw him to the floor, causing him to suffer a separated clavicle and a contusion on his head which required stitches. Id. at 1252. This Court denied qualified immunity, finding that under clearly established law the officer had used excessive force. Long is also distinguishable: here, plaintiff was not restrained and did not suffer force as serious as plaintiff in Long.

         Plaintiff also cites Laury v. Greenfield, 87 F.Supp.2d 1210 (D. Kan. 2000). In Laury, a penitentiary inmate alleged that prison guards used excessive force when they kicked him in the back, threw him to the floor, punched him three times in the face and repeatedly punched him in the arm and back using handcuffs as brass knuckles. Id. at 1216-18. The court analyzed the case under the Eighth Amendment and denied qualified immunity, stating that “physical force for no legitimate purpose” is excessive. Laury is distinguishable because defendants there used much more force than in this case. Further, in Laury the plaintiff had not refused any kind of order.

         Finally, plaintiff relies on two Tenth Circuit Eighth Amendment cases, Ali v. Dinwiddie, 437 F. App'x 695 (10th Cir. 2011) and Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996). In Ali, guards repeatedly punched and kicked plaintiff after handcuffing him. See Ali, 437 F. App'x at 697. Similarly, in Mitchell, plaintiff alleged that he was tripped and fell to the ground, where several guards beat him with night sticks while shouting racial epithets. Furthermore, plaintiff was naked and shackled and thus particularly vulnerable. Mitchell, 80 F.3d at 1440. Ali and Mitchell are not sufficiently factually analogous to this case to constitute clearly established law.[5]See White, 2017 WL 69170 (clearly established law must be “particularized” to facts of case; court must be able to identify a case where officer acting under similar circumstances held to violate Fifth Amendment).[6]Plaintiff has not identified a case which held that an officer acting under similar circumstances violated the Fifth Amendment. See Jackson v. City of Wichita, No. 13-1376, 2017 WL 106838 (D. Kan. Jan. 11, 2017) (under White, officers entitled to qualified immunity). Plaintiff has thus failed to point to pre-existing law that makes apparent the unlawfulness of defendants' conduct in this case. The Court therefore finds that (1) Nichols and Zwetow are entitled to qualified immunity on plaintiff's claim that they violated his Fourth and ...

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