United States District Court, D. North Dakota
REPORT AND RECOMMENDATION
ALICE R. SENECHAL, Magistrate Judge.
Plaintiff John Allen Klebe (Klebe) filed a pro se complaint under 42 U.S.C. § 1983, alleging that the defendants, three West Fargo Police Department (WFPD) Officers, used excessive force in removing him from a vehicle that he crashed while WFPD police officers were pursuing it. (Doc. #6). The defendants have moved for summary judgment, asserting there are no questions of material fact as to the officers' use of excessive force, or as to their entitlement to qualified immunity. (Doc. #72). Klebe has responded to that motion. (Doc. #76).
Summary of Recommendation
Klebe has not set forth facts showing questions of material fact as to his claim that the defendants used excessive force in removing him from his vehicle; the defendants are therefore entitled to qualified immunity. Accordingly, it is recommended that the defendants' motion for summary judgment be granted, and that Klebe's complaint be dismissed with prejudice.
On September 9, 2012, WFPD responded to a reported hit and run collision at a grocery store parking lot. (Doc. #73-1). The following day, a WFPD officer saw a vehicle matching the description of the one involved in the hit and run collision, and the officer attempted to stop that vehicle. Id . Klebe, who was driving the vehicle, did not stop, and a pursuit ensued. Id . During the pursuit, Klebe's vehicle backed into the officer's patrol vehicle and later crashed into a cement truck at a road construction site. Id . Both parties submitted photographs that depict the extensive front-end damage to Klebe's vehicle, which resulted from the collision with the cement truck. (Doc. #71-5; Doc. #73-5; Doc. #73-9).
The defendants' reports detail their involvement in removing Klebe from his vehicle after the collision. The first officer at the crash scene, defendant Ryan M. Wuollet, stated in his report:
I then approached the vehicle and attempted to provide medical care for the driver and passenger who at the time were both very groggy and unresponsive. The driver was identified as a JOHN ALLEN KLEBE and passenger was identified as an ELLRIC ALFRED GIROUX II. I attempted to open the driver's door, but it was stuck, and I then leaned JOHN back into his seat as he was slouched over and appeared to be having respiratory problems. When I leaned him back he started to breathe normally and at that point became responsive, but very groggy. I then went over to the passenger, ELLRIC, and held his neck and head stable until paramedics arrived as he was complaining of intense neck and chest pain. Paramedics then arrived on scene and then transported ELLRIC and JOHN to the hospital.
(Doc. #6-4, pp. 1-2; Doc. #73-5, pp. 1-2) (emphasis added).
The second officer who arrived at the crash scene was defendant Joseph D. Birrenkott. He reported that after he arrived at the crash scene, he spoke with a witness who believed that Klebe's vehicle's tire hit his vehicle's lug nuts before Klebe collided with the cement truck. (Doc. #6-3, p. 2; Doc. #73-6, p. 2). Officer Birrenkott did not report that he was involved with removing Klebe from his vehicle or that he had any contact with Klebe at the crash scene. After Klebe was transported to a hospital, Officer Birrenkott stated that he was directed to go to that hospital and arrest Klebe for aggravated reckless driving and other possible charges. Id . Officer Birrenkott further reported that when he arrived at the hospital, Klebe was in handcuffs. Id.
Defendant Skyler Dutton, the third officer to arrive at the scene, stated in his report:
I believe I was the third officer on the scene behind OFFICER RYAN WUOLLET and OFFICER JOE BIRRENKOTT. I went up to the suspect vehicle which was crashed into a cement truck. The vehicle was totaled and the ambulance had already been called. I stayed by the driver and tried to keep him as still as possible while waiting for the ambulance. The passenger of the vehicle was in a lot of pain and was making a lot of noise that his neck hurt and things inside his chest hurt as well.... The driver appeared to be unconscious when I first arrived and then he regained consciousness and was able to speak. He asked me on three separate occasions, what had happened, claiming to have no recollection of what happened at all. A short while later, FM Ambulance responded to the scene and was able to remove the passenger out of the passenger[']s side door onto a backboard and he was transported away from the scene by ambulance. The driver's side door that I was standing at was jammed and was unable to be opened. The paramedics and officers on scene worked together to remove the driver from the driver's seat out of the car through the passenger's side. His neck was immobilized and [he] was transported out on a backboard. He was then transported away from the scene by the ambulance.
(Doc. #6-5, p. 1).
Both parties submitted a copy of an F-M Ambulance patient care record. (Doc. #6-2; Doc. ...