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Gary v. Christopherson

United States District Court, Eighth Circuit

May 28, 2013

Diantha Gary, Plaintiff,
v.
Officer Anna Christopherson, and Officer Jason Kiritschenko, in their individual and official capacities, and City of Minneapolis, Defendants.

Zorislav R. Leyderman, Esq. and The Law Office of Zorislav R. Leyderman, 222 South Ninth Street, Suite 1600, Minneapolis, MN 55402, counsel for plaintiff.

Timothy S. Skarda, Esq., Minneapolis City Attorney's Office, 350 South Fifth Street, Room 210, Minneapolis, MN 55415, counsel for defendants.

ORDER

DAVID S. DOTY, District Judge.

This matter is before the court upon the motion for summary judgment by defendants Anna Christopherson, [1] Jason Kiritschenko and the City of Minneapolis. Based on a review of the file, record and proceedings herein, and for the following reasons, the court grants the motion in part.

BACKGROUND

This excessive-force dispute arises out of an August 21, 2010, incident between plaintiff Diantha Gary and Minneapolis police officers Christopherson and Kiritschenko. Early that morning, Gary called 911 to report a stabbing in her apartment building. Gary Dep. 23:22-24:4. Several Minneapolis police officers, including Christopherson and Kiritschenko, responded to the apartment building. Id. at 5:14.

When the officers arrived, Gary, a retired nurse, was attending to the stabbing victim in an interior hallway. Id. at 25:23-26:6. Paramedics arrived shortly thereafter and transported the victim to the hospital. Id. at 26:10-13. Gary remained in the hallway, and Christopherson states that she began disrupting the investigation by (1) yelling that the officers could not enter the victim's apartment and (2) interfering with the crime scene. Christopherson Dep. 20:11-15, 28:6-8. In response, the officers asked Gary to return to her apartment. Gary Dep. 27:14-16.

Gary alleges that when she did not immediately comply, Kiritschenko "punched" her in the chest two times with his fingers. Id. at 11:9-10, 13:13-17.[2] Gary's son, Jerry Gary, was also in the hallway, and observed the physical contact. Id. at 27:10-12. Jerry Gary protested and was arrested for obstructing legal process after he refused to leave the hallway and struck Christopherson. Id .; Christopherson Dep. 44:2-11; Skarda Aff. Ex. E.

After Jerry Gary was arrested, Diantha Gary again approached the officers. Gary asserts that she was trying to offer her account of the stabbing. Gary Dep. 29:12-20. Christopherson responds that Gary was being loud, aggressive and reiterating that the officers could not enter the victim's apartment. Christopherson Dep. 28:16-29:16. The officers instructed Gary to return to her apartment several times. Id. at 29:21-23. In response, Gary again called 911 and requested that additional officers be sent to the apartment.[3] Id. at 30:21-22; Gary Dep. 31:8-18.

Gary alleges that, after she was disconnected from 911, Christopherson grabbed and squeezed her upper arm and pushed her against the hallway wall. Gary Dep. 11:11-12, 18:7-11. Christopherson allegedly maintained this restraint for five to six minutes. Id. at 19:20-21. Gary further alleges that she repeatedly asked to be released and offered to return to her apartment but that Christopherson refused and squeezed her arm to the point of numbness. Id. at 11:12-24, 19:4-6. Conversely, Christopherson contends that she placed Gary in a gentle "escort hold" - with one hand on her elbow and one on her wrist - for the fifteen seconds it took to lead Gary from the crime scene to her apartment. Christopherson Dep. 36:11-22, 40:1-6. After Christopherson released her grip, Gary entered her apartment without incident. Gary Dep. 12:1-5.

Later that morning, Gary went to the emergency room at Abbott Northwestern Hospital. Id. at 12:7. Gary reported pain and exhibited tenderness in her sternum and right arm. Id. at 13:18-20; Leyderman Aff. Ex. 4, at 3. Gary also exhibited "degenerative changes" in her right humerus and elbow. Skarda Aff. Ex. F, at 3. Doctors provided a sling for Gary's arm and a prescription for acetaminophen-codeine. Leyderman Aff. Ex. 4, at 10.

Months later, on February 24, 2011, Gary visited her primary care physician with complaints of right-arm pain. Id . Ex. 5, at 1. Her physician recommended physical therapy, which Gary began on March 10, 2011. Id . Ex. 6, at 1. Gary reported to her physical therapist that she struggles with personal care and getting dressed, is unable to lie on her right side and struggles to extend her arms. Id . Gary attended thirteen physical therapy sessions. Id. at 1-51. Gary reports that she still has anxiety, difficulty sleeping, soreness and loss of strength and mobility in her right arm. Gary Dep. 17:7, 20:17-24.

On August 25, 2011, Gary filed this action in Minnesota court, alleging unreasonable seizure and excessive force under 42 U.S.C. ยง 1983, assault, battery and both negligent and intentional infliction of emotional distress.[4] ...


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