Submitted: March 14, 2013.
Appeal from United States District Court for the District of Minnesota - Minneapolis.
Before WOLLMAN and COLLOTON, Circuit Judges, and HOLMES,  District Judge.
COLLOTON, Circuit Judge.
Appellant Mark Shane Bishop brought this action against Deputy Sheriff Dale Glazier of Freeborn County, Minnesota, pursuant to 42 U.S.C. § 1983. He alleged that Glazier violated his rights under the Fourth Amendment by using excessive force against him. The district court concluded that there was insufficient evidence of excessive force and granted summary judgment for Glazier based on qualified immunity. We affirm.
Around 1:00 a.m. on December 12, 2010, Bishop was driving through Freeborn County, Minnesota, on a trip from Michigan to Oklahoma. Bishop's fiancee, Jessica Leasure, and the couple's daughter were in the vehicle with him. Blizzard conditions made driving difficult, so Bishop decided to stop at a hotel for the night until the weather cleared. He exited the highway and was proceeding westbound on Freeborn County Road 46 toward the nearest hotel when his car hit a snow drift. The vehicle slid across the roadway and became stuck in a snow bank, facing westbound in the eastbound lane. Bishop unsuccessfully tried to free his vehicle from the snow bank. He then called 911 and requested assistance. The dispatcher advised Bishop that she would send a deputy to help.
Approximately thirty minutes later, Glazier arrived in a four-wheel drive car, which he parked behind Bishop's vehicle. Glazier assisted Bishop in attempting to free the vehicle by shoveling snow from around the front tires of Bishop's car. Glazier then pushed the car back and instructed Bishop to turn his wheel to the right and to drive toward the road surface. Instead of turning the car, Bishop drove straight back into the snow bank. Glazier testified that he shoveled out Bishop's tires and pushed the car back "numerous times, " but that Bishop continued to drive straight back into the snow bank.
After these unsuccessful attempts to free Bishop's vehicle, Glazier instructed Bishop to shovel out the front tires himself and returned to his own car. Glazier then radioed for assistance from police officers in the nearby city of Albert Lea. When two Albert Lea police officers arrived on the scene with a tow rope, Glazier positioned his car in front of Bishop's vehicle. Glazier hooked one end of the tow rope to the back of his car and offered Bishop the other end. After Bishop's attempts to attach the tow rope to his car were unsuccessful, he returned to his car and sat in the driver's seat. Bishop testified that Glazier was swearing at him during the encounter, and he described Glazier as rude, demeaning, and aggressive.
The parties dispute the details of what happened next. Bishop claims that Glazier approached his car and opened the driver's side door to speak with him. Glazier, who "was screaming at" Bishop, said he would drive Leasure and the child to the hotel while Bishop stayed with his car. Because he did not like the way Glazier was treating him, Bishop asked if he could "go talk to" the Albert Lea police officers who were parked nearby. When prompted to clarify exactly what he said to Glazier, Bishop testified: "I believe I asked him if he could go get the other officers in the vehicle or if we could deal with a different officer because he was being completely rude." Glazier denied Bishop's request.
Bishop said he did not believe he could leave his vehicle at this time, because Glazier was physically blocking the driver's side door with his body. But when Glazier stepped back from Bishop's car door, Bishop exited his vehicle with his hands raised, stating, "I'm going to get another officer, I'd like another officer, please." At the time Bishop stepped out of his car, Glazier was standing between Bishop and the open door, but there was sufficient space for Bishop to exit his vehicle without coming into contact with Glazier. According to Bishop, Glazier "grabbed [him] by [his] throat and by [his] jacket" after he stepped out of the car and shoved him against the side of the car. Bishop claims that Glazier applied pressure to his throat for "[r]oughly 45 seconds to a minute, " that his breathing was restricted, and that he had difficulty talking during that time. Bishop claims Glazier then "shoved" him back into his car and told him to "shut the f*** up and sit the f*** down."
In contrast, Glazier contends that the only contact he had with Bishop was when he grabbed Bishop's left shoulder with his right hand, "pushed him back into the car, " and told him "to remain in the car." Glazier acknowledged that he used "minimal" force to put Bishop back in his vehicle, but stated his actions were justified by reasonable safety concerns.
After Glazier pushed him back into his car, Bishop called 911 and reported that Glazier had assaulted him. Bishop told the 911 operator that Glazier "grabbed [him] by the throat and threw [him] up against [his] car . . . while [he] was calling out for another officer." The operator gave Bishop contact information for the Freeborn County Sheriff s Office and contacted a tow company. Glazier remained at the scene until the tow truck driver arrived and pulled Bishop's vehicle out of the snow bank.
Days after the incident, Bishop spoke with an investigator from the Freeborn County Sheriffs Office. During the call, Bishop complained that Glazier had "grabbed [Bishop] by the throat with one hand and with his other hand he ... slammed [Bishop] up against [his] car." On December 29, 2010, Bishop filed a complaint with the Freeborn County Sheriffs Office. Bishop submitted a typewritten statement he had prepared shortly after the incident, repeating his allegation that Glazier had grabbed him by the throat. Leasure also submitted a typewritten statement, in which she claimed that Glazier had "lunged at [Bishop], slamming him up against the car with his hand around [Bishop's] neck, " and that Glazier then had forced Bishop into his car. As a result of the incident with Glazier, Bishop suffered ...