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Truong v. Hassan

United States Court of Appeals, Eighth Circuit

July 14, 2016

Jonathan Alexander Truong Plaintiff- Appellant
Ahmad Aladin Hassan, in his individual capacity; Metropolitan Council, a public corporation Defendants-Appellees

          Submitted: February 9, 2016

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before SHEPHERD, BEAM, and KELLY, Circuit Judges.

          SHEPHERD, Circuit Judge.

         Bus driver Ahmad Aladin Hassan kicked passenger Jonathan Alexander Truong off of a Minneapolis/St. Paul area Metro Transit bus for failing to pay the bus fare. When Truong responded by jumping in front of the bus and onto the bus's front bumper, Hassan allowed several unruly passengers to exit the bus and physically remove Truong. Hassan also accelerated and braked multiple times in an attempt to knock Truong off of the bus or to scare him away from the front the bus. As a result of these incidents, Truong suffered a bruised thigh, a bruised cheek, and scrapes on both of his hands. He brought a 42 U.S.C. § 1983 suit against Hassan and the Metropolitan Council. The district court[1] granted summary judgment to Hassan and the Metropolitan Council and dismissed the complaint. Truong appeals the grant of summary judgment as to Hassan, and we affirm.


         On the night of October 7, 2007, Truong boarded a Metro Transit bus driven by Hassan.[2] Hassan recognized Truong as a frequent rider and believed, based on previous experiences, that Truong would try to ride the bus without paying. According to Hassan, Truong had ridden the bus earlier in the day without paying. As Truong attempted to board, Hassan ordered Truong to remain off of the bus, but Truong put his hand in the bus's door and stated that he would pay. Hassan told Truong to pay $3.00 instead of the normal $1.50 to cover the cost of his morning's bus ride. Truong repeatedly stated that he was going to pay as he shuffled through the bags he was carrying. Truong suffers from obsessive-compulsive disorder and claims that he was repeatedly wiping his hands while shuffling through his bags.

         After Truong had remained on the bus for about one minute without producing payment or a bus pass, Hassan repeatedly ordered Truong to exit the bus, but Truong refused, stating he would pay for the bus ride. An impatient Hassan then stood up, grabbed Truong's bags, and threw them from the bus. Hassan then grabbed Truong by the shoulders and pushed him out of the bus door, following with a kick toward Truong's back. Truong states that he then jumped onto the front of the bus. Hassan then accelerated and braked the bus at least three times. A group of passengers began laughing, and several stood from their seats and walked toward the front of the bus. Then someone in the group asked Hassan if he could "whoop [Truong's] ass?" Hassan responded, "Don't whoop his ass, but if you can drag him off of there, that would be great." Hassan opened the bus door and allowed the group to exit the bus. Truong states that the group grabbed him, threw him to the pavement, and punched him. After about 20 seconds, the group reentered the bus, but Truong again blocked it from moving by either jumping on the bus or in front of the bus. For a second time, Hassan allowed several passengers to exit the bus to confront Truong.

         Nearby police officers noticed the incident and came to investigate. The entire incident from Truong first boarding the bus until police officers interceded spanned less than nine minutes. Officers took Truong to a nearby hospital where he received pain medication, a bandage for his hands, and a tetanus shot. Truong claims that he suffered a bruised thigh from being struck by the bus's bumper, a bruised cheek from being struck by one of the passengers, and scrapes to his hands from being thrown to the ground by the passengers.

         Truong brought suit against Hassan and the Metropolitan Council. The district court granted summary judgment to the defendants, holding, as relevant to this appeal, Hassan was entitled to qualified immunity because his actions did not rise to a constitutional violation because the actions were not conscience-shocking.[3] In reaching this conclusion, the district court applied the intent-to-harm standard to determine whether Hassan's actions were conscience-shocking because, the court found, the situation was "rapidly evolving" and "fluid." Truong appeals the district court's grant of qualified immunity to Hassan.


         We review the district court's summary judgment decision regarding qualified immunity de novo, viewing the facts in the light most favorable to the nonmoving party. McKenney v. Harrison, 635 F.3d 354, 358 (8th Cir. 2011). Summary judgment is warranted where "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).

         Qualified immunity shields a government official from liability and the burdens of litigation unless the official's conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Evaluating whether a government official is entitled to qualified immunity requires a two-step inquiry: (1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right; and (2) whether that right was clearly established at the time of the defendant's alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts have discretion to decide which part of the inquiry to address first. Id. at 236.

         The only constitutional claim remaining in this action is whether Hassan's actions resulted in a substantive due process violation under the Fourteenth Amendment.[4] The Fourteenth Amendment's due process clause provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. "To establish a violation of substantive due process rights by an executive official, a plaintiff must show (1) that the official violated one or more fundamental constitutional rights, and (2) that the conduct of the executive official was shocking to the 'contemporary conscience.'" Flowers v. City of Minneapolis, Minn., 478 F.3d 869, 873 (8th Cir. 2007) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998)).

         To reach this second element, we have explained that the alleged substantive due process violations must involve conduct "so severe . . . so disproportionate to the need presented, and . . . so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience." Moran v. Clarke, 296 F.3d 638, 647 (8th Cir. 2002) (quoting In re Scott Cnty. Master Docket, 672 F.Supp. 1152, 1166 (D. Minn. 1987)). This requires the court to first determine the level of culpability the § 1983 plaintiff must prove to establish that the defendant's conduct may be conscience shocking. Proof of intent to harm is usually required, but in some cases, proof of deliberate indifference, an intermediate level of culpability, will satisfy this substantive due process threshold. Lewis, 523 U.S. at 848-49. The lower deliberate indifference standard "is sensibly employed only when actual deliberation is practical." Id. at 851-53 (differentiating between substantive due process cases in which the deliberate-indifference standard applies because prison officials have the benefit of time to make unhurried judgments regarding inmate welfare, and cases where a higher standard of intent to harm applies because certain unforseen circumstances demand instant judgment); see Wilson v. Lawrence Cnty., 260 F.3d 946, 957 (8th Cir. 2001) (concluding that reckless standard was appropriate where officers conducting post-arrest investigation had ability to make unhurried judgments). By contrast, the intent-to-harm standard most clearly applies "in rapidly evolving, fluid, and dangerous situations which preclude the luxury of calm ...

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