The opinion of the court was delivered by: RICHARD KYLE, District Judge
MEMORANDUM OPINION AND ORDER
This case arises out of the arrest of Plaintiffs Tamikah Lynn
Weiner and Jean Carol Hennessey (collectively, "Plaintiffs") by
Minneapolis police. While Plaintiffs were attending a family
gathering, Minneapolis police officers, responding to a noise
complaint, arrived at the scene. After a confrontation between
Plaintiffs and the police, Plaintiffs were arrested for assault
and obstructing legal process. Plaintiffs have sued
Defendants*fn1 for, among other things, unlawful arrest and
excessive force. Before the Court is Defendants' Motion for
Summary Judgment. For the reasons set forth below, the Court will
grant the Motion in part and deny it in part. As a result, all
claims will be dismissed with prejudice with the exception of Ms.
Weiner's unlawful arrest claim.
Viewed in a light most favorable to Plaintiffs, the facts are
as follows. On September 2, 2002, Ms. Weiner and Ms. Hennessey
attended a Labor Day barbeque at Melanie Hervey's Minneapolis
residence. (Moore Aff. C at 4, D at 4.) Ms. Hervey, who is not a
party to this action, is Ms. Weiner's mother and Ms. Hennessey's
daughter. (Id.) During the gathering, the guests were listening
to music playing from a car stereo. (Id.) At about 6:00 P.M.,
Officers Lappegard and Severson responded to a loud music complaint. (Id. Exs. C at 4, D at 4, E at 11.) The officers
drove by the Hervey residence and motioned to the guests to turn
the music down. (Id. Exs. C at 4, F at 17-18.)
A short time later, after receiving a second complaint, the
officers returned to the residence and walked into the backyard.
(Id. Exs. C at 4, D at 4, E at 13-15.) The officers told Ms.
Hervey that the music would have to be turned down and advised
her that arrests would be made if they had to return. (Id.) The
music was turned off and Ms. Hervey assured the officers that it
would not be turned on again. (Id.)
As the officers were walking back to their squad cars, a male
guest at the gathering (Ms. Weiner's boyfriend) said to another
guest, "maybe we should grab the camcorder." (Id. Ex. D at 4;
see id. Exs. E at 15, F at 22.) Upon hearing this, Officer
Severson turned around and said, "That's it. You're under
arrest."*fn2 (Id. Ex. E at 16; see id. Exs. G at 14, H
at 75.) The male guest walked into the residence and shut the
door. (Id. Ex. F at 23.)
Both officers ran to the door and began kicking it in. (Id.
Exs. C at 4, D at 4, E at 16-17, F at 23-25.) The door opened and
struck Ms. Weiner's young daughter in the face.*fn3 (Id.
Exs. C at 4, D at 4, E at 17-18, 20-21.) Once inside, the
officers searched unsuccessfully for the male guest.*fn4
(Id. Exs. E at 17-18, 20-21, G at 33.) As the officers left, they sprayed mace into the house. (Id. Exs. E at 21-22, F
at 30.) The officers testified that a growing crowd of guests
were yelling and swearing at them. (Id. Exs. G at 15, H at
76-78.) Ms. Weiner conceded that people were angry and yelling.
(Id. Ex. E at 21, 26-27.)
Upset at what was occurring, Ms. Weiner asked the officers what
they were doing and why they were using mace.*fn5 (Id.
Exs. C at 4, D at 4, E at 23, F at 28.) Officer Severson
responded by telling Ms. Weiner that she was under arrest and he
grabbed her arm. (Id. Exs. E at 23, H at 79.) At nearly the
same time, Ms. Weiner's father, who is not a party to this
action, grabbed Ms. Weiner's other arm and said, "You're not
arresting my daughter. For what?" (Id. Ex. E at 23; see id.
Ex. H at 79.) Officer Lappegard, who had come to assist Officer
Severson, maced Ms. Weiner and her father. (Id. Exs. E at 23, H
at 80.) The officers pulled Ms. Weiner's father away and
handcuffed him. (Id. Exs. E at 24, H at 80.)
Officer Severson and Officer Mark Durand, who had arrived at
the scene, proceeded to arrest Ms. Weiner. (Id. Exs. E at 25, H
at 80-81.) They twisted her arms behind her back, kicked her legs
out from under her, pushed her onto the ground, and put her face
in the gravel. (Id. Exs. E at 25-26, F at 35; see id. Ex. H
at 81; Zitnick Aff. Ex. B at 31-32.) During this time, Ms. Weiner
testified that "[e]veryone was . . . still outside in the backyard" about fifteen feet away from the officers, and that
"everyone was yelling" at the officers, saying things like, "What
the F [are you] doing." (Moore Aff. Ex. E at 27-28.) Eventually,
Ms. Weiner was handcuffed by Sergeant Wesley Ostlund, who had
also arrived at the scene. (Id. Ex. E at 25.) She denies
resisting arrest.*fn6 (Id. Ex. E at 26).
In the process of being arrested, Ms. Weiner reopened a cut on
her chin (the original wound was caused by a pimple). (Id. at
28, 33-35.) She was allowed to wash her face and she needed no
medical attention. (Id.) Ultimately, she was arrested and
charged with assault and obstructing legal process, but was later
acquitted on both charges in state court.*fn7
While the officers were on the ground arresting Ms. Weiner, Ms.
Hennessey approached and tried to tell them not to put Ms.
Weiner's face in the ground. (Id. Ex. F at 37-38; Zitnick Aff.
Ex. E at 297, 309.) But "before [she] could get the words out of
[her] mouth," Officer Lappegard maced Ms. Hennessey in the face.
(Moore Aff. Ex. C at 5; see id. Ex. F at 38-39.) Then,
Officer Durand grabbed her legs, brought her to the ground,
pulled her arms behind her back, and held her down with a knee in
her back. (Id. Exs. F at 38-40, I at 126.) Officers Durand,
Severson, and Lappegard testified that Officer Durand took Ms. Hennessey down because she was kicking
him while he was on the ground arresting Ms. Hervey. (Id. Exs.
G at 21, H at 81-83, 113-14, I at 125-26.) When asked at her
deposition whether she kicked any officer who was on the ground,
Ms. Hennessey testified, "Not that I know of." (Id. Ex. F at
While she was on the ground, Ms. Hennessey was told to give the
officers one of her arms, but when she failed to do so, the
officers maced her a second time. (Zitnick Aff. Ex. E at 298.)
After she was maced, she told the officers that her "back hurt,
[so] I couldn't get my arm out." (Id.) Eventually, the officers
rolled her over, got her arm out, and put her into handcuffs.
(Id.; see Moore Aff. Ex. F at 40.) As a result of the arrest,
she exacerbated a pre-existing back problem, suffered cuts and
abrasions to her face and knees, and experienced headaches.
(Moore Aff. Ex. F at 39-51.) She sought medical attention for her
injuries. (Id. Ex. F at 45-55.) Ultimately, Ms. Hennessey was
arrested and charged with assault and obstructing legal process;
she was convicted of "obstructing legal process without force" in
state court.*fn8 (Moore Aff. Ex. C at 9.)
Stemming from these events, Ms. Hervey and Ms. Hennessey filed
a seven-count Complaint in state court, which the Defendants
removed to this Court. They allege unlawful arrest in violation
of the Fourth and Fourteenth Amendments; excessive force in violation of the Fourteenth Amendment; abuse of process in
violation of the Fifth and Fourteenth Amendments; common law
assault and battery; and negligent retention and supervision. The
Defendants have moved for summary judgment on each count.
Summary judgment is proper if, drawing all reasonable
inferences favorable to the non-moving party, there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The moving
party bears the burden of showing that the material facts in the
case are undisputed. See Celotex, 477 U.S. at 322; Mems v.
City of St. Paul, Dep't of Fire & Safety Servs., 224 F.3d 735,
738 (8th Cir. 2000). The court must view the evidence, and the
inferences that may be reasonably drawn from it, in the light
most favorable to the nonmoving party. See Graves v. Arkansas
Dep't of Fin. & Admin., 229 F.3d 721, 723 (8th Cir. 2000);
Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir.
1997). The nonmoving party may not rest on mere allegations or
denials, but must show through the presentation of admissible
evidence that specific facts exist creating a genuine issue for
trial. See Anderson, 477 U.S. at 256; Krenik v. County of Le
Sueur, 47 F.3d 953, 957 (8th Cir. 1995). Analysis
I. Unlawful Arrest and Excessive Force Claims
Plaintiffs allege that they were unlawfully arrested and that
the officers used excessive force during the arrests. The
officers respond that they are entitled to qualified immunity for
their actions. Qualified immunity is an entitlement not to stand
trial or face other burdens of litigation. Saucier v. Katz,
533 U.S. 194, 200 (2001). "The privilege is an immunity from suit
rather than a mere defense to liability; and like an absolute
immunity, it is effectively lost if a case is erroneously
permitted to go to trial." Id. at 200-01 (citation and internal
quotations omitted) (emphasis in original). As a result, the
Supreme Court has "repeatedly . . . stressed the importance of
resolving immunity questions at the earliest possible stage in
litigation." Id. at 201 (citation and internal quotations
Under the qualified immunity doctrine, state actors are
protected from civil liability when their actions do not violate
clearly established constitutional rights of which a reasonable
person would have known. Kuha v. City of Minnetonka,
365 F.3d 590, 601 (8th Cir. 2003) (amended opinion). On summary judgment,
courts ask two questions to determine whether qualified immunity
is appropriate. The first is whether, when viewed in the light
most favorable to the party asserting the injury, the facts
alleged show that the officers' conduct violated a constitutional
right. Id.; see Saucier, 533 U.S. at 201. If no
constitutional right has been violated, there is no necessity for
further inquiries concerning qualified immunity. Saucier,
533 U.S. at 201. However, if the court finds that a constitutional right has
been violated, it then asks whether the right was clearly
established in light of the specific context of the case. Kuha,
365 F.3d at 601; see Saucier, 533 U.S. at 201. For a right to
be clearly established, the contours of the right must be
sufficiently clear that a reasonable officer would understand
that what he is doing violates that right. Kuha,
365 F.3d at 601. This second step of the qualified immunity inquiry shields
officers from suit "if their conduct was objectively legally
reasonable in light of the information they possessed at the time
of the alleged violation." Id. In other words, "if the
officers' mistake as to what conduct the law required is
reasonable, they are entitled to the immunity defense." Id. at
602 (citing Saucier, 583 U.S. at 205).
Whether a given set of facts entitles the official to summary
judgment on qualified immunity grounds is a question of law.
Greiner v. City of Champlin, 27 F.3d 1346, 1352 (8th Cir.
1994). But if there is a genuine dispute concerning predicate
facts material to the qualified immunity issue, there can be no
summary judgment. Id.; see Lambert v. City of Dumas,
187 F.3d 931, 935 (8th Cir. 1999). A. Unlawful Arrest
The Fourth Amendment prohibits arrests without probable cause.
See, e.g. Hill v. Scott, 349 F.3d 1068, 1072 (8th Cir. 2003).
In reviewing an allegation that probable cause was lacking to
make an arrest, courts consider
whether the totality of facts based on reasonably
trustworthy information would justify a prudent
person in believing the individual arrested had
committed . . . an offense. Probable cause is to be
assessed in terms of the circumstances confronting a
reasonably cautious police officer at the time of the
arrest, and the arresting officer is entitled to
consider the circumstances, including arguably
innocent conduct, in light of his training and
experience. The probability, and not a prima facie
showing, of criminal activity is the standard of
Gorra v. Hanson, 880 F.2d 95
, 97 (8th Cir. 1989) (citation,
internal quotations, and alterations omitted); see Smithson v.
Aldrich, 235 F.3d 1058
, 1062 (8th Cir. 2000). Qualified immunity
protects law enforcement officers in circumstances in which ...