wrongs alone does not create an actionable substantive due process claim, plaintiff's fifth amendment claim will be dismissed.
In addition to his due process and civil conspiracy claims, plaintiff presents an eighth amendment claim.
Given the facts of this case, however, the court finds the eighth amendment to be inapposite. The cruel and unusual punishments clause "was designed to protect those convicted of crimes," Ingraham v. Wright, 430 U.S. 651, 664, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977) (emphasis added) and is relevant "only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions." Id. at 671, n. 40. In light of the fact that plaintiff Beran was never prosecuted or convicted, his eighth amendment claim is inappropriate and will be dismissed.
Remaining at issue are plaintiff's allegations of violations of the fourth amendment. Plaintiff's fourth amendment claims are two-fold.
First, plaintiff asserts that his arrest was illegal because defendants had no probable cause. Second, plaintiff alleges that in effecting the arrest, defendant Insabella used excessive force.
Plaintiff asserts that there was no probable cause to arrest and charge him for assault and battery of a federal officer. 18 U.S.C. § 111 (1988).
Indeed, construing the facts in the light most favorable to plaintiff, as the court must at this stage, it appears that defendant Insabella lacked probable cause to stop plaintiff and arrest him. Although plaintiff admits to putting his car in reverse and causing Officer Insabella injury, the court must at this stage accept as true Beran's assertion that defendants did not identify themselves as law enforcement officers and that plaintiff's actions were taken in self-defense. Viewing the facts in this light, plaintiff raises a valid fourth amendment claim.
Defendants argue that even if plaintiff does raise a legitimate fourth amendment claim, they are entitled to qualified immunity. Citing Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987), defendants argue that since they acted in an objectively reasonable fashion, they are entitled to immunity from suit. Although defendants state the law accurately, they have failed to demonstrate that reasonable law enforcement officers confronted with the situation would have acted as they did. Accepting the truth of Beran's version of the facts -- a version which insists adamantly that no probable cause existed -- it is difficult to accept that a reasonable officer would have pursued and stopped plaintiff and effected an arrest. Since the undisputed facts do not support the objective reasonableness of their actions, defendants' claim of qualified immunity must be denied and resolution of factual disputes must await trial.
Plaintiff, in addition, alleges that his fourth amendment rights were violated when Officer Insabella used unreasonable force when he punched plaintiff and forcibly attempted to remove plaintiff from his car. Defendants argue that the use of force in the apprehension of plaintiff was not unreasonable and that summary judgment on this count should be granted. In the governing case in this area, Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985), the Supreme Court held that the constitutionality of the use of force in seizure cases must be measured by an objective reasonableness standard.
The question before the court is whether looking at the totality of the circumstances, Insabella acted in an objectively reasonable manner. Because factual disputes exist, the court is precluded from making a determination at this time whether Officer Insabella acted reasonably and will leave to the jury to determine whether, balancing individual rights against law enforcement interests, unreasonable force was used.
Due to the existence of material factual disputes, this case cannot be fully resolved on summary judgment. Deficiencies in plaintiff's pleadings, however, allow the court to narrow the issues remaining in dispute. Having concluded that jurisdiction in this court is proper, that the United States is the appropriate and sole defendant for plaintiff's common law tort allegations, and that plaintiff's fourth amendment Bivens claims against Officer Insabella are the only constitutional claims with possible merit, this case shall be set for discovery and trial.
A separate order shall be issued this date.
Upon consideration of defendants' motions for substitution of parties and dismissal or summary judgment, the opposition and reply memoranda thereto, and for the reasons set forth in the Court's Memorandum Opinion of this date, it is hereby
ORDERED, that defendants' motion for substitution of parties is granted. The United States is hereby substituted as the sole defendant in Count I (Assault and Battery), Count II (False Arrest/False Imprisonment), Count III (Malicious Prosecution), Count IV (Libel, Slander, and Defamation of Character), and Count VI (Negligent Hiring, Training and Supervision), and it is further ORDERED that defendants Insabella and Blanco are dismissed from these counts. The United States Secret Service and the Department of the Treasury are dismissed from this action.
ORDERED, that defendants' motion to dismiss or for summary judgment is granted in part and denied in part. Plaintiff's Count III (Malicious Prosecution), Count IV (Libel, Slander, and Defamation of Character), and Count VI (Negligent Hiring, Training and Supervision) are hereby dismissed. Additionally, plaintiff's claims under 42 U.S.C. § 1985, and the fifth and eighth amendments are hereby dismissed. Plaintiff's fourth amendment claims against Officer Blanco are also dismissed, and this action now stands dismissed as to Officer Blanco.
The only remaining claims are plaintiff's tort claims against the government -- Count One (Assault and Battery) and Count II (False Arrest/False Imprisonment) -- and plaintiff's fourth amendment claims against Officer Insabella. It is further
ORDERED, that the parties shall each set forth in 30 days a discovery plan including a statement of the length of time needed to complete discovery.
Royce C. Lamberth
United States District Judge
MAR 18 1991