United States District Court, D. North Dakota, Southwestern Division
Parke W. Little, Plaintiff,
Charles A. Rummel, Stewart Stenberg, Matthew Kolling, and Clarence A. Tuhy, in their official and individual capacities; City of Dickinson, North Dakota; and County of Stark, North Dakota, Defendants.
ORDER RE MOTIONS FOR SUMMARY JUDGMENT AND DISMISSING ACTION
CHARLES S. MILLER, Jr., Magistrate Judge.
In this action, plaintiff Parke W. Little is suing over several matters related to his employment and termination as a police officer for the City of Dickinson, North Dakota. Named as defendants are the City of Dickinson, former Police Chief Rummel, former Police Captain Stenberg, and City Attorney Kolling (collectively "City defendants") as well as Stark County and Sheriff Tuhy (collectively "County defendants"). Before the court are motions for summary judgment brought by the City defendants, the County defendants, and plaintiff Little.
Unless otherwise indicated, the following facts are either undisputed or have not been properly or sufficiently controverted.
A. Little's employment with the Dickinson PD
Little was employed by the Dickinson Police Department for approximately five and one-half years before he was terminated by Chief Rummel on June 30, 2008. At the time of his termination, Little was a sergeant in the Department.
B. The complaint of use of unauthorized and improper force
An intra-departmental complaint for personnel action was lodged against Little on June 19, 2008. The complaint alleged that Little had used unauthorized and improper physical force against two persons who had been arrested by other officers on June 16, 2008, after they had been involved in a motor vehicle accident and had fled on foot. The driver, Tye Maus, was detained after a pursuit to a nearby church. The passenger, Kristi Kuntz, was located a short time later by another officer in a slough a further distance away.
The specific allegations set forth in the complaint brought against Little were that:
Sgt. Little used unauthorized physical force on Tye Maus in an attempt to gain information from after Maus had invoked his right to remain silent & speak to any [sic] attorney. Inappropriate & excessive force used on Kristi Kuntz when Sgt. Little used her handcuffed arms/hands to lift her from the ground.
(Doc. No. 1-5). The complaint, which was signed by Captain Stenberg, identified the complainant as: "Captain Stewart Stenberg based on verbal complaints from Tye Maus & Officer Staten." (Id.).
The Dickinson Police Department has a detailed written policy for investigating and deciding complaints made against officers. The policy provides for the use of a standard-form complaint, which, on the back, has spaces to be completed by the various departmental officers and officials as they complete their part of the investigation and decision process. The policy also provides detailed procedures for the investigation of the complaint, including interviewing witnesses and obtaining a statement from the officer that is the subject of the complaint. (Doc. No. 1-7).
C. Lt. Shirey's investigation
The investigation of the complaint against Little was assigned to Lt. Rick Shirey. Following the Department's policy, Shirey interviewed most of the witnesses as well as Little. In addition, Lt. Shirey reviewed a DVD of a recording from the patrol vehicle in which Maus was placed as well as written reports prepared by several of the officers.
Following the completion of the investigation, Lt. Shirey prepared a detailed report that was a little over four single-spaced, typewritten pages. According to the report, the persons he interviewed advised him of the following:
Tye Maus (one of the subjects of the police pursuit) stated that, after he advised officers he did not want to make any statements and was placed in a patrol vehicle, Little reached into the vehicle, put a hand on the back of his neck, and attempted to apply pressure while asking him the identity of the female passenger and where she had gone. Maus advised that he then said something to the effect of "what's this pressure point sh*t?" At that point, according to Maus, Little stopped applying the pressure to his neck.
Officer Tom Grosz (who was one of the officers who had arrested Maus and placed him in the back of the patrol vehicle) stated that, after Maus refused to answer Little's questions, he observed Little take his left hand, reach across Maus's body, and place his fingers on either side of Maus's throat from the front at about the Adam's apple. Officer Grosz stated that, while Little was doing this, he continued to question Maus about the female passenger. Officer Grosz stated Little did this for a short period of time and that, when he removed his hand, Maus said something to the effect of "what's this pressure point sh*t." Officer Grosz stated that Maus was subsequently taken away in an ambulance because he had been slightly injured in the accident.
Officer Mike Hanel advised he did not observe what occurred with respect to Maus because he had gone in search of the female passenger, who was later determined to be Kristi Kuntz. Officer Hanel stated that Officer Wallace was the first one to locate Kuntz and that Hanel responded to the location where she was found. Hanel stated he placed Kuntz in handcuffs while she was on the ground with her hands behind her back. By that point, according to Hanel, Little had also arrived. Hanel stated, that when he completed cuffing Kuntz, Little grasped the connecting chain between the cuffs and lifted Kuntz to her feet. Hanel stated that Kuntz cried out that Little was hurting her when he did so. Hanel stated that, when Little lifted Kuntz to her feet using the handcuff chain, he did not support her in any other manner and that this caused the handcuffs to dig into Kuntz's wrists and her arms and shoulders to be hyper-extended upward. Hanel stated that Kuntz had not been resisting and was compliant. Finally, Hanel reported that later, when he was at the emergency room, Maus told him that Little had placed his hands on his throat in an attempt to apply a pressure-point hold.
Officer Nic Gates advised that he assisted Hanel in handcuffing Kuntz. Gates stated that, after Kuntz was cuffed, Little grabbed only the handcuff chain and pulled Kuntz to her feet. Officer Gates indicated that, when Little did so, Kuntz yelled "owie" and that she was being hurt. Officer Gates indicated he believed Kuntz's pain was real as her hands were behind her back so that, when Little grabbed the cuffs to pull her up, her arms and shoulders were bearing her full weight. Officer Gates stated he heard Little say words to the effect of "you shouldn't run from the police" when he was pulling Kuntz to her feet.
Kuntz, in a brief interview, advised she was handcuffed behind her back and raised to her feet by an officer standing behind her using only the handcuffs and not her arms.
Little, in his interview with Lt. Shirey, claimed he raised Kuntz to her feet from a prone position using only her arms and not the handcuffs - contrary to what the other officers who were present and Kuntz had reported. Little also denied placing his hands on Maus's neck or applying any pressure-point hold. Little claimed he only asked Maus about the location of the female passenger because he was concerned that she too might be hurt. Little stated that, when he leaned into the vehicle to ask about the female passenger and Maus turned to him, he thought Maus was going to spit on him so he used his right hand to push Maus's head away. He said his hand came in contact only with Maus's head or jaw and that he did not touch his throat or neck. Again Little's account was materially different from those of Officer Grosz and Tye Maus.
(Doc. No. 39-3).
In addition to what Lt. Shirey learned during his interviews, Shirey also reviewed the written reports that had been prepared by the officers involved contemporaneous with the incidents. One was a report prepared by Officer Hanel. Hanel's report tracked what he verbally told Lt. Shirey as set forth above. In addition, the report stated that, when Little pulled Kuntz up by the handcuff chain, "Kuntz exclaimed ow ow ow' and you are hurting me' several times as she was lifted from the ground." (Doc. No. 39-2). The other report was from Officer Grosz. His report was also consistent with what he orally reported to Lt. Shirey during his interview. In part, the report states:
While I was standing near the driver's side rear of the car, Sgt. Little spoke with Tye. Sgt. little [sic] asked him several times about the identity of the female that was with him. I was still standing near the trunk when Sgt. Little began to perform a "choke hold"/pressure point to Tye's neck. Sgt. Little grasped Tye above the adam's apple and near the base of his jaw. While he was doing this he continued to ask Tye what the female's name was and repeatedly said something to the effect of "I can't hear you." Tye said something to the effect of, "What's this pressure point bullsh*t?"
(Doc. No. 39-1).
Based on his investigation, Lt. Shirey made the following findings of fact in his investigation report:
1) With regard to the allegation that Sgt. Little attempted to use some type of pressure tactic to coerce information from a prisoner who had invoked Miranda rights. In listening to the audio recording of the incident, Sgt. Little can be heard asking the alleged victim, Tye Maus, who the girl was and her name. At no time is there heard any explanation to Maus regarding concern for the welfare of the girl or her potential injuries as Little claims. Officer Tom Grosz stated that he was able to see Sgt. Little's hand on the front of Maus's throat. Maus said that Little's hand was on the back of his neck. As all three statements are in conflict, there is insufficient evidence to make a definitive conclusion as to whether Sgt. Little was utilizing his hand to apply a pressure point tactic to Maus. It is clear that Sgt. Little did not make the claimed statements to Maus explaining his concerns and reasons for eliciting the information. He also employed a method that resulted in unnecessary contact with the prisoner whether he was asking for incriminating statements or not.
2) With regard to the allegation that Sgt. Little used excessive and inappropriate force in effecting the arrest and taking of Kristi Kuntz into custody.
During the questioning of Sgt. Little regarding his actions during this incident, he was uncertain as to where on the arm he might have taken Kristi Kuntz while bringing her to her feet. He was also uncertain as to who else was assisting with this process. The statements provided by Senior Officers Nic Gates and Mike Hanel are clear and direct. Each recalled specifically where they were, who was with them and what each was doing as a part of the arrest and handcuffing process. Each individually stated the same view of the incident and both statements are in agreement. The conclusion is that Sgt. Little did use unnecessary force and acted inappropriately when he gripped the chain connecting the handcuffs that were in place on Kristi Kuntz to lift her to her feet with no other support being provided.
3) That, in addition to the above allegations, there exists reason to believe that Sgt. Little did not answer to these allegations in an honest and forthright manner as would be expected of someone in his position of authority and responsibility.
While there could be some room for doubt regarding the exact nature of Sgt. Little's actions toward Tye Maus, there is no room for doubt with regard to his actions toward Kristi Kuntz. Sgt. Little's statements are at wide variance with those provided by other officers that were present and involved as well as the victim herself.
(Doc. 39-3). Lt. Shirey then concluded the report by making a recommendation as required by the Department's policy. His recommendation was:
From the information gathered in this administrative review, it is evident that there exists reason to forward these findings to the Chief of Police and Assistant Chief for administrative disposition.
(Id.). Finally, Lt. Shirey completed the portion of the complaint form entitled "TO BE COMPLETED BY INVESTIGATING OFFICER." In that portion of the form, he indicated that he received the request to undertake the investigation on June 17, 2008, and completed the investigation along with his report on June 27, 2008. He then handwrote in on the space provided the following:
Allegation 1) not sustained
Allegation 2) sustained
(Doc. No. 1-5).
D. Capt. Stenberg's recommendation
Lt. Shirey provided his report to defendant Capt. Stenberg. Stenberg, in turn, reviewed the report and provided Chief Rummel with the following memorandum outlining his conclusions and recommendation:
I have reviewed the report provided to me by Lt. Shirey regarding the investigation into certain acts by Sgt. Little that were alleged to have occurred during the arrest of two subject [sic] involved in a motor vehicle accident and subsequent fleeing from investigating officers who responded to the scene.
I find that the facts, evidence and statements in this matter reflect that Sgt. Little did attempt to inflict pain to Tye Maus in an effort to gain information from him regarding the identity of his female passenger. Mr. Maus was handcuffed at the time and in custody within the patrol car, and as well, had previously invoked his right to remain silent. Sgt. Little denies any that [sic] such physical force was intentionally applied to gain compliance from Mr. Maus. Sgt. Little's statements are contrary to information recorded on the vehicle's DVD audio system as referenced in Lt. Shirey's investigative material. Sgt. Little's statements are also contrary to Officer Grosz's observation at the scene.
Secondly, I find that Officer Little acted in total disregard of pain and possible injury that was inflicted upon the person of Kristi Kuntz when he lifted her from the ground using only the handcuff chain links. This is totally contrary to proper techniques that must be used regarding handcuffing and assisting an arrestee from the prone position. Sgt. Little has openly denied that this was done, which is totally contrary to statements from the victim and other officers at the scene. It must be noted that Sgt. Little never did submit an investigative report regarding his participation in this event. Perhaps proper documentation of his participation would have properly served to refresh his memory.
I find that Sgt. Little has severely damaged the reputation and character of this agency as well as his own. Sgt. Little's integrity is very questionable, at best, and I find that he has not adhered to high moral principles or professional standards that are demanded by a person in his supervisory position. Sgt. Little's leadership capabilities and the ability to properly mentor and supervise his staff has been irreparably damaged.
It is, therefore, my recommendation that Sgt. Little's employment with this agency be terminated immediately based on all of the information contained within this report. As police officers, we are charged with the responsibility of preserving and protecting the constitutional rights of our citizens and, regardless of stature or status, treating them with respect and in a professional manner. The integrity of a police officer in this profession is paramount and I find that Sgt. Little has been untruthful and very deceptive in this matter.
(Doc. No. 39-4). In addition, Stenberg completed the portion of the complaint form entitled "TO BE COMPLETED BY OPERATIONS DIVISION COMMANDER - FINAL REVIEW." There Stenberg indicated he had completed his review on June 30, 2008, and that his ...