Submitted: February 9, 2016
from United States District Court for the District of
Minnesota - Minneapolis
SHEPHERD, BEAM, and KELLY, Circuit Judges.
SHEPHERD, Circuit Judge.
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 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
night of October 7, 2007, Truong boarded a Metro Transit bus
driven by Hassan. 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.
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
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.
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. 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.
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).
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.
only constitutional claim remaining in this action is whether
Hassan's actions resulted in a substantive due process
violation under the Fourteenth Amendment. 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)).
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