United States District Court, D. Kansas
JUSTINE O. MOCHAMA, Plaintiff,
TIMOTHY ZWETOW, et al., Defendants.
MEMORANDUM AND ORDER
Kathryn H. Vratil United States District Judge
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”). 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).
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).
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:
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
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)
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. 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. Memorandum And Order (Doc. # 95)
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
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).
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).
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.
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.
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.
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.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).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 ...