United States District Court, D. North Dakota
ORDER ADOPTING REPORT AND RECOMMENDATION
Ralph R. Erickson, Chief District Judge
The court has received a Report and Recommendation from the Honorable Alice R. Senechal, United States Magistrate Judge, recommending that the defendants’ motions for summary judgment be granted and that Allen Christopher Epps’s (“Epps”) complaint be dismissed with prejudice. Epps has objected to the Report and Recommendation. His objection raises five discreet objections to the Report and Recommendation.
First, Epps claims that the Magistrate Judge erroneously concluded that there was insufficient evidence to create an issue of fact for the jury on the question of an unconstitutional policy, custom or practice of the Minot Police Department.
Second, Epps claims that the Magistrate Judge committed error in finding qualified immunity where (a) a white co-combatant Kyle Dalby was ignored at the scene while he, Epps, was arrested; (b) the officers failed to process the crime scene in a way that preserved the relevant evidence; (c) one of the officers, Mark Kline, failed to file a police report covering the incident; and (d) the charge of Dalby with disorderly conduct demonstrates a clear bias against Epps who was charged with terrorizing.
Third, Epps claims that the Magistrate Judge erroneously dismissed his claim for Malicious Prosecution.
Fourth, Epps claims that the Magistrate Judge erroneously dismissed his state law claims for Intentional Infliction of Emotional Distress.
Fifth, Epps asserts that the Magistrate Judges erroneously dismissed his claims of negligence and negligent infliction of emotional distress under state law.
Because each of Epps’s claims are based on a misunderstanding of the applicable law, each of his objections is DENIED and the Report and Recommendation is ADOPTED without modification.
1. Epps has Failed to Establish Sufficient Evidence to Create a Jury Question on the Establishment of an Unconstitutional Custom, Policy or Practice on the Part of The Minot Police Department.
Epps first contends that the Magistrate Judge incorrectly found Epps failed to establish an unconstitutional policy, custom, or practice of the Minot Police Department. Specifically, Epps argues that the Minot Police Department treated him differently than Kyle Dalby (“Dalby”) because of his race and that jury should be allowed to consider whether this evidence alone is sufficient to establish a de facto unconstitutional custom. Epps asserts that a jury question exists because “If the law was enforced unilaterally, the defendants would be forced to reconcile with the jury as to why I and my party were the only ones treated as criminals as result of the 911 call to the scene.” From this allegation Epps draws the conclusion-which he claims a jury would rationally draw as well-that he was subjected to disparate treatment as a result of race. This contention is based on a false premise. In fact both Dalby and Epps were arrested on the night in question. While the charges against each man were different, those charging decisions were based on the separate observations made by the police at the scene and are more than adequately explained in the record. Thus, Epps’s claims of disparate treatment are simply unsustainable on the record before the Magistrate Judge. There is no evidence sufficient to allow the finder of fact to conclude that disparate treatment took place on the evening in question sufficient to give rise to any constitutional claim-let alone a custom, policy or practice.
Even assuming, arguendo, that the Minot Police treated him differently than Dalby, Epps has not pointed to any policy, practice or the custom that compelled the disparate treatment. Instead he points to nothing other than this single incident, which under the circumstances present in this case is insufficient to establish an unconstitutional policy, practice or custom.
Epps also concedes that the policy manual of the police department is appropriate and does not create an unconstitutional custom, practice or policy. He has pointed to no other fact, other than the allegedly disparate treatment of Dalby supporting his claim that the Minot Police Department enforced an unconstitutional policy, practice or custom. Under these circumstances, Epps’s objection fails as a matter of law.
2. The Magistrate Judge Did Not Commit Error in Finding Qualified Immunity for All Municipal Defendants.
Epps asserts that the Magistrate Judge incorrectly found that the municipal defendants were entitled to qualified immunity on the false arrest claim because (1) a jury question exists because a white co-combatant, Dalby, was ignored at the scene and he, Epps, a black man, was arrested; (2) officers failed to procure, produce, preserve, and pass on to appropriate entities evidence to support a good faith felony arrest; (3) the record shows that officer Mark Kline, who allegedly stated that Epps did not issue the threat, was the only officer who did not file a police report; and (4) the fact that Dalby was charged ...