The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Before the Court is the defendants' motion for summary judgment. The Court heard oral argument on October 5, 2010, and took the motion under advisement. For the reasons explained below, the Court will grant the motion on the malicious prosecution and false imprisonment/wrongful incarceration claims, and deny the motion on the false arrest and excessive force claims
On June 15, 2008, Officers Bangs and Lowry responded to a report of an aggravated assault. See Bangs Affidavit, Dkt. 19-4 at ¶ 1. The dispatch officer told the officers that the suspect, plaintiff Thompson, "was known to carry a gun." See Harris Affidavit, Dkt. 19-5, at ¶ 8.
The alleged victim, Zachary Boerner, told the officers that Thompson, his roommate, threatened him with a knife in the kitchen of their shared residence. Bangs Affidavit, supra, at ¶ 9. Boerner explained that he and Thompson had been arguing about Boerner moving out of the shared residence. Id. at ¶ 11. Boerner told Officer Banks that during the argument, Thompson grabbed a silver knife off the counter, pointed the knife at Boerner, and told him that "he would use it on him" if Boerner gave Thompson "any problems about moving out." Id. at ¶ 11. Boerner stated that "he was in fear for his life and that he [Boerner] thought that [Thompson] was going to stab or cut him with the knife." Id. at ¶ 12.
Officer Lowry called Thompson, recounted Boerner's allegations, and told Thompson that the officers needed to talk to him in person to hear his side of the story. Lowry Affidavit, Dkt. 19-3 at ¶¶ 9-10. Officer Lowry recalls that Thompson explained over the telephone that "his roommate was being aggressive towards him and that he wanted him out of the house." Id. at 11.
Thompson recalls that Officer Lowry said he needed to talk to Thompson but that "they weren't going to arrest me." See Thompson Deposition, Dkt. 19-7 at 32. Id. According to Thompson, Officer Bangs "kept trying to find out where I was at that -- he's like, Where are you right now? Where are you right now?" Id. at 33. Thompson says he told Officer Lowry that "I was in transit to my house, and I'd be there in less than a half hour." Id.
Officer Lowry's recollection is different. According to Officer Lowry, Thompson stated that (1) he was waiting for his dad to get out of church; (2) he would call the police in 30 minutes to make arrangements to meet them, and (3) he might be able to meet them in the Denny's parking lot. Lowry Affidavit, supra, at ¶ 13-15. Thompson recalls that as Officer Lowry got persistent in asking about Thompson's location, Thompson hung up on him. Thompson Deposition, supra, at 33.
At any rate, Officer Lowry decided to stake out Thompson's house. Id. at ¶ 22. About 38 minutes after talking with Thompson, Officer Lowry saw Thompson arrive at his residence. Id. at ¶ 23.
Thompson and his girlfriend sat on the grass outside the house and waited for the police to arrive. Thompson Deposition, supra, at 34. Thompson was shirtless and wearing a pair of shorts and flip flops. Thompson Affidavit, Dkt. 24-1 at ¶ 13. Within a few minutes, the police arrived, and Thompson recalls what happened next:
Twelve officers in full riot gear rushed us and ordered me to get up. After I complied, they dragged me to the center of my yard and threw me face down onto my concrete sidewalk. I repeatedly stated that I was not resisting and would cooperate because they all had their weapons trained on my chest and I was in fear of my life. These weapons included mace, tasers, and hand guns. . . . One officer stated that he would love to mace me, while his knee was on my neck and after he had handcuffed me. I suffered bruises and lacerations to my face from being violently thrown down. Furthermore, the officer who handcuffed me placed the handcuffs on way too tightly and jerked my hands behind my back, causing me excruciating pain and soreness in my arms and shoulders, which lasted for weeks. I asked the officer several times to loosen the handcuffs, but he refused and in fact tightened them more after I complained that they were hurting me.
See Thompson Affidavit, supra, at ¶ 14.
Thompson's account is not rebutted by the officers in their affidavits. Officer Bangs does add that after he handcuffed plaintiff, he "noticed a silver folding pocket knife clipped onto the right side of [Thompson's] shorts. I took the knife from ...