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Dixon v. City of Somersworth

United States District Court, D. New Hampshire

October 5, 2015

Bryan Dixon
City of Somersworth, and Police Officer Michael McCarthy Opinion No. 2015 DNH 190



Bryan Dixon brought three claims against the city of Somersworth and two Somersworth police officers, Michael McCarthy and Edward Correia, seeking to recover for injuries he sustained when McCarthy and Correia took him into custody. Before the court is defendants’ motion for summary judgment. Dixon objects. After Dixon filed his objection, the parties “stipulate[d] that all claims in [this] action except Count I with regard to the use of [a] taser shall be dismissed with prejudice.” Stip. (doc. no. 12) 1. Accordingly, this case now consists of a single claim against a single defendant: a Fourth Amendment excessive-force claim against Officer McCarthy, brought pursuant to 42 U.S.C. § 1983, based upon Officer McCarthy’s use of a taser on Dixon. For the reasons that follow, defendants’ motion for summary judgment is granted.

I. Summary Judgment Standard

A movant is entitled to summary judgment where he “shows that there is no genuine dispute as to any material fact and [that he] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In reviewing the record, the court construes all facts and reasonable inferences in the light most favorable to the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013).

II. Background

The following facts, drawn from Officer McCarthy’s affidavit, are undisputed. Plaintiff acknowledges the lack of any factual dispute, noting in his memorandum of law that he does not recall the incident on which his claim is based.

At the time of the incident, McCarthy was a patrolman with the Somersworth Police Department (“SPD”). On October 20, 2011, an SPD dispatcher notified Officer McCarthy of a report that a male subject had broken into a parked car. After responding to the location of the break-in, Officer McCarthy briefly saw the suspect, whom he has since identified as Dixon, fleeing from the scene. Officer McCarthy was then informed that Dixon had been seen on a bicycle heading toward the General Electric plant located along the Salmon Falls River in Somersworth. Officer McCarthy pursued the suspect to that location in his car.

When he arrived at the General Electric plant, Officer McCarthy was told that Dixon had climbed under a fence and was running along the Salmon Falls River. Officer McCarthy began driving to the river along the plant’s access road. While driving, Officer McCarthy spotted Dixon running near the river and saw him climb under a second fence. Dixon changed direction and continued to run parallel to the river. Officer McCarthy shouted at Dixon to stop. Dixon ignored Officer McCarthy’s orders and continued running.

Officer McCarthy then pulled his cruiser closer to Dixon, who again changed direction and headed toward the river. Officer McCarthy exited his cruiser, and as Dixon ran by, Officer McCarthy again ordered him to stop. Dixon did not stop.

Instead, Dixon climbed over a chain-link fence and jumped off of a ledge and across an open gap onto a metal staircase attached to the side of a pump building. At the bottom of the staircase was a landing that overlooked a 50-foot drop to the fast-flowing river and its rocky bed. The only barrier between the landing and the river below was a chain-link fence of about the same height as the fence that Dixon had already climbed over.

Dixon began running down the staircase toward the landing. Officer McCarthy then shouted: “Stop or I will tase you.” Dixon ignored Officer McCarthy’s command. At that point, an eight-foot fence secured with a padlock separated Officer McCarthy from Dixon and the staircase. He decided that climbing the fence would be dangerous, and that he needed to use his taser to prevent Dixon from climbing over the fence in front of him and jumping into the river. Officer McCarthy’s concern that Dixon would jump into the river was based upon Dixon’s repeated failures to obey commands and Officer McCarthy’s perception that Dixon was acting as if he was under the influence of unknown substances.

Officer McCarthy turned on his taser, aimed at the middle of Dixon’s back, and shouted at least two more times: “Stop or I will tase you.” Dixon did not stop. After waiting until Dixon had nearly reached the bottom of the staircase, Officer McCarthy fired his taser. When he fired, Dixon was within five feet of the taser’s maximum effective range. Although Officer McCarthy aimed for Dixon’s back, the taser’s probes struck him in the head and arm.

Dixon brought this action, alleging claims that Officer McCarthy used excessive force against him in violation of the Fourth and Fourteenth ...

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