Duke Grider v. B. Bowling , 785 F.3d 1248 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-2869
___________________________
Duke Grider; Kami Lee Grider
lllllllllllllllllllll Plaintiffs - Appellees
v.
B. Bowling
lllllllllllllllllllll Defendant - Appellant
J. Dougherty; Off. E. Reece; Paul William; City of Springfield, Missouri
lllllllllllllllllllll Defendants
____________
Appeal from United States District Court
for the Western District of Missouri - Springfield
____________
Submitted: April 14, 2015
Filed: May 11, 2015
____________
Before BYE, BEAM, and SMITH, Circuit Judges.
____________
BYE, Circuit Judge.
Duke Grider ("Grider") and Kami Lee Grider filed this action pursuant to 42
U.S.C. § 1983 and Missouri state law claiming officers of the Springfield Police
Department violated Grider's statutory and constitutional rights, in part by using
excessive force. The parties filed motions for summary judgment. As relevant to this
appeal, the district court found Officer Brandon Bowling was not entitled to qualified
immunity on the excessive force claim. Officer Bowling appeals. We reverse.
I
Pursuant to the proper standard of review, described below, the following are
the facts as most favorable to the Griders. Grider, his wife Kami Grider, and his son
were at a Taco Bell when an argument occurred between Grider and another patron.
The police were called, and the Griders crossed the street to eat their food in their
vehicle. Officer Bowling was the first officer to arrive. Officer Bowling approached
Grider, who was wearing a knife on his hip, and asked Grider to exit his vehicle;
Grider declined. Officer Bowling forcibly removed Grider, placed Grider on the
ground with his knee on Grider's back, and handcuffed Grider.
While Grider was held on the ground by Officer Bowling, Officer Eric Reece
arrived in his vehicle. Officer Reece ran toward Officer Bowling and Grider and
kicked Grider in the head. Officers Bowling and Reece did not communicate before
the kick and Officer Bowling did not act to prevent the kick. Grider suffered
contusions and abrasions on his face, and the kick caused neck pain and restriction of
movement which persisted at least two years. Kami Grider suffered emotional distress
and problems with her pregnancy. Officer James Dougherty arrived at the scene
sometime after Grider was handcuffed and the kick had occurred. Grider had an open
fifth of whiskey in his vehicle which the officers poured out at the scene.
The Griders filed the present civil rights suit alleging various violations of their
constitutional rights and of state law, including excessive force, unlawful arrest, and
unlawful seizure. The suit named as defendants the City of Springfield, Police Chief
Paul Williams, and the three officers present at the scene: Bowling, Reece, and
-2-
Dougherty. The defendants moved for summary judgment, arguing they were entitled
to qualified immunity. The Griders filed a cross-motion for partial summary
judgment. The district court denied the Griders' motion for partial summary
judgment, and granted in part and denied in part the defendants' motion for summary
judgment. The district court's order left remaining (1) the Griders' Fourth Amendment
claim for excessive force against Officers Bowling and Reece; and (2) the Griders'
state-law assault claim against Officers Bowling and Reece. Officer Bowling now
appeals, arguing he is entitled to qualified immunity on the excessive force claim.1
II
This matter comes before the Eighth Circuit on an interlocutory appeal, and
falls under the collateral order doctrine. Mettler v. Whitledge, 165 F.3d 1197, 1202
(8th Cir. 1999); Mitchell v. Forsyth, 472 U.S. 511, 525, 530 (1985). A denial of
summary judgment on the issue of qualified immunity is immediately appealable to
the "extent that it turns on an issue of law." Brown v. Fortner, 518 F.3d 552, 557 (8th
Cir. 2008). When the question presented on appeal is whether, as a matter of law, no
1
The sole question presented in this interlocutory appeal is whether the district
court erred in denying qualified immunity to Officer Bowling on the Griders'
excessive force claim. "The interlocutory appeal for denial of qualified immunity is
a vehicle with limited capacity and cannot accommodate other interlocutory appellate
arguments unless they are 'inextricably intertwined' with the defense of qualified
immunity." White v. McKinley, 519 F.3d 806, 815 (8th Cir. 2008) (quoting Eagle v.
Morgan, 88 F.3d 620, 628 (8th Cir. 1996)). Although the Griders did not file a cross-
appeal or ask this Court to exercise pendant jurisdiction over their claims, the Griders
expend substantial effort arguing a violation of Terry v. Ohio, 392 U.S. 1 (1968), and
an unlawful seizure of the whiskey. Even if those questions had been properly
presented, we could not exercise jurisdiction because they are not "inextricably
intertwined with the question of qualified immunity" as each "requires entirely
different analysis" than the analysis required to determine whether Officer Bowling
is entitled to qualified immunity on the excessive force claim. White, 519 F.3d at 815.
The Griders may appeal those issues if and when there is a final and appealable order.
-3-
constitutional violation occurred, a legal question exists which this Court can
consider. Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir. 2005); id. at 604 (Smith,
J., dissenting) ("If the facts required to determine whether the [defendants] are entitled
to qualified immunity are not genuinely in dispute, we have jurisdiction and may
resolve the question as a matter of law."). We believe the facts required to determine
whether Officer Bowling is entitled to qualified immunity are not genuinely in
dispute. We therefore have jurisdiction.
The Court reviews a district court's qualified immunity determination on
summary judgment de novo. Davis v. Hall, 375 F.3d 703, 711 (8th Cir. 2004).
Summary judgment is appropriate "if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). In determining whether there is any genuine factual
dispute, the court must look at the record and any inferences drawn therefrom in the
light most favorable to the Griders, the non-moving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
Officer Bowling is entitled to qualified immunity unless he violated Grider's
"clearly established statutory or constitutional rights." Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). Grider puts forward several theories of liability: (1) Officer
Bowling used excessive force removing Grider from the vehicle and placing him on
the ground; (2) Officer Bowling is liable for the kick of Officer Reece; and (3) Officer
Bowling is liable for nonfeasance because of his failure to prevent the kick. None of
these theories is successful.
Grider alleges Officer Bowling used excessive force in violation of the Fourth
Amendment incident to arrest. "Police officers undoubtedly have a right to use some
degree of physical force, or threat thereof, to effect a lawful seizure, and reasonable
applications of force may well cause pain or minor injuries with some frequency."
Chambers v. Pennycook, 641 F.3d 898, 907 (8th Cir. 2011) (internal citation omitted).
-4-
The dispositive question is whether the officer's conduct was objectively reasonable
under the circumstances, as judged from the perspective of a reasonable officer on the
scene at the time the force was applied. Id. The degree of injury suffered in an
excessive-force case "is certainly relevant insofar as it tends to show the amount and
type of force used." Id. at 906; see also Johnson v. Carroll, 658 F.3d 819, 830 (8th
Cir. 2011) (finding force not excessive in part because the plaintiff "sustained no
injury"). In this case, Grider alleges no injuries occurred from Officer Bowling's
actions and Grider's account of the incident does not demonstrate Officer Bowling's
use of force was excessive, particularly in light of Grider's refusal to exit his vehicle
voluntarily and his possession of a knife. We determine as a matter of law Officer
Bowling did not use excessive force removing Grider from his vehicle and placing
him on the ground, without injury, in these circumstances.
Grider does allege injuries from Officer Reece kicking him in the face.
However, "[l]iability for damages for a federal constitutional tort is personal, so each
defendant's conduct must be independently assessed. Section 1983 does not sanction
tort by association." Smith v. City of Minneapolis, 754 F.3d 541, 547 (8th Cir. 2014)
(internal quotation marks omitted). "'An officer may be held liable only for his or her
own use of excessive force.'" Id. at 547-48 (quoting Smith v. Kan. City, Mo. Police
Dep't, 586 F.3d 576, 581 (8th Cir. 2009)). Because Officer Bowling was "not
involved in the allegedly unconstitutional acts" of Officer Reece, Officer Bowling
could not have violated Grider's constitutional rights based on Officer Reece's use of
excessive force. Heartland Acad. Cmty. Church v. Waddle, 595 F.3d 798, 805 (8th
Cir. 2010).
Grider argues Officer Bowling is liable based on his duty to protect Grider from
Officer Reece because Officer Bowling had a reasonable opportunity to intervene. It
is "clearly established that an officer who fails to intervene to prevent the
unconstitutional use of excessive force by another officer may be held liable for
violating the Fourth Amendment." Nance v. Sammis, 586 F.3d 604, 612 (8th Cir.
-5-
2009). An officer can be liable for nonfeasance, "where the officer is aware of the
abuse and the duration of the episode is sufficient to permit an inference of tacit
collaboration." Krout v. Goemmer, 583 F.3d 557, 565 (8th Cir. 2009); see also
Jennings v. Davis, 476 F.2d 1271, 1275 (8th Cir. 1973) (requiring an officer to "have
had the duty, opportunity, or the ability to intervene"). Grider does not put forward
any evidence showing Officer Bowling was aware of the kick before it occurred or
had the opportunity "to take action to deescalate the situation." Nance, 586 F.3d at
612. We find relevant Grider's testimony that Officer Reece said nothing before he
kicked Grider. We also find relevant Grider's testimony that there was only one kick.
We determine as a matter of law Officer Bowling cannot be liable for nonfeasance
under the circumstances of this case.
III
The judgment of the district court is reversed and Officer Bowling is entitled
to qualified immunity as a matter of law.
______________________________
-6-