Craig Pfohl Settlement Agreement Copyright 2014
City of Dubuque Consent Items # 20.
ITEM TITLE: Craig Pfohl Settlement Agreement
SUMMARY: City Attorney recommending approval of a Settlement
Agreement in the case of Craig Pfohl v. Officer Wilkens
Dieujuste and City of Dubuque.
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Approve
ATTACHMENTS:
Description Type
Staff Memo Staff Memo
Reddick Letter Supporting Documentation
Release Supporting Documentation
THE CITY OF
DUB-�6 E MEMORANDUM
Masterpiece on the Mississippi
BARRY LINDAHL
SENIOR COUNSEL
To: Mayor Roy D. Buol and
Members of the City Council
DATE: October 12, 2016
RE: Craig Pfohl v. Officer Wilkens Dieujuste and City of Dubuque
Attached is a letter from Attorney Les Reddick recommending settlement of this lawsuit
for $25,000 to be paid by the Iowa Communities Assurance Pool (ICAP), and at no cost
to the City.
Pfohl filed a Complaint in Federal Court alleging excessive force, wrongful arrest and
failure to provide appropriate medical care. This case is scheduled forjury trial in federal
court commencing May 22, 2017.
I agree with Les' conclusion that a settlement of$25,000 is fair and reasonable.
I recommend approval of the settlement agreement.
BAL:tIs
Attachment
cc: Michael C. Van Milligen, City Manager
Mark Dalsing, Chief of Police
Crenna M. Brumwell, City Attorney
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563)583-4113/FAX (563)583-1040/EMAIL balesq@cityofdubuque.org
KANE, NOBBY & REDDICK, P.C.
ATTORNEYS
Brian J. Kane 2100 ASBURY ROAD,SUITE 2
Les V.Reddick* DUBUQUE,IOWA 52001-3091
Brad J.Heying
Todd L. Stevenson* Retired:
Kevin T.Deeny** Gary K.Norby
Bradley B. Kane
Joseph P. Kane
Nicholas J. Kane
David J. Kane
All admitted in Iowa Phone: (563)582-7980
*Also admitted in Illinois Facsimile: (563)582-5312
**Also admitted in Wisconsin E-mail:lreddick@kanenorbylaw.com
October 12, 2016
Mr. Barry A. Lindahl
City Attorney
Harbor View Place, Suite 330
300 Main Street
Dubuque, Iowa 52001-6944
RE: CRAIG PFOHL V. OFFICER WILKENS DIEUJUSTE AND
CITY OF DUBUQUE
SETTLEMENT MEMORANDUM
Dear Barry:
ICAP has reached a settlement of the above-referenced lawsuit for $25,000. Pfohl filed a
Complaint in Federal Court alleging excessive force, wrongful arrest and failure to provide
appropriate medical care. This case has been through discovery and is currently scheduled for
jury trial in federal court commencing May 22, 2017. The background facts are as follows:
On December 28, 2014, Officer Dieujuste was called to the scene of a disturbance at a
local bar. When he arrived there were people milling around in the street and one of the bar
employees pointed out two individuals who were involved in the disturbance. While Officer
Dieujuste was attempting to arrest them, Pfohl approached him from the rear on the side in
which his gun is holstered. Dieujuste yelled at Pfohl, telling him to "back off'. When Pfohl
approached him again Dieujuste pepper sprayed him. Pfohl was arrested for public intoxication
and interference with official acts. Those charges were plea bargained,the interference claim
dismissed in return for an Alford plea on the public intoxication charge. This lawsuit followed.
The use of pepper spray is a relatively low level use of force on the force continuum. It
can be deployed in an offensive or defensive posture and can be used in even passive resistance
situations. There isn't anything that has come to light during the discovery phase of this case that
supports the claim that Officer Dieujuste's use of force was excessive and we are not conceding
that in any way, nor is ICAP, in attempting to settle the matter. Nor is there any evidence of
wrongful arrest, as Pfohl tested above the legal alcohol limit and entered an Alford Plea to the
intoxication charge. Rather,the case is being settled because of the medical care issue.
Pfohl was pepper sprayed at the scene and taken to the Law Enforcement Center for
processing. There is an audio/video of Pfohl seated on a bench in the processing area before he is
taken up to the jail floor. This video is 23 minutes long and shows Pfohl seated on a bench,his
hands cuffed behind him and a wastebasket placed in front of him as he apparently was
nauseous. During the course of the video Pfohl can be heard requesting to have the handcuffs
removed so he can wash out his eyes. The video provides support for his claim that the pepper
spray should have been washed from his eyes after his arrest in a more timely fashion. Officer
Dieujuste said in his deposition that he did not feel that he followed protocol in caring for Pfohl
after he was pepper sprayed. When Pfohl was taken up to the jail floor he collapsed in his cell
and was taken to the hospital, he claims that was a result of the pepper spray being left in his
eyes. The doctors at the hospital did not have any conclusive diagnosis as to the cause for Kohl's
collapse. His medical bills for that care are $2,805.30. In addition Pfohl could recover emotional
distress,loss of body function and attorney fees.
Given all of this,particularly the civil rights statutes allowing Plaintiffs to recover
attorney's fees, a settlement of$25,000 is fair and reasonable. Pfohl will release Officer
Dieujuste and the City of Dubuque and dismiss with prejudice his lawsuit. If the only claims
were excessive force and wrongful arrest I would recommend trying the case,but the medical
care issue does cavy some risk that is well worth$25,000 under the circumstances.
Very truly yours,
KANE, NORBY & REDDICK, P.C.
By EL
Les V. Reddick
LVR/bmo
GENERAL RELEASE
The undersigned, CRAIG RICHARD PFOHL ("Claimant"), states:
1. The Claimant, individually and on behalf of his successors and assigns, in
consideration of the payment to him in the sum of Twenty-Five Thousand Dollars
($25,000.00), does fully release and forever discharge WILKENS DIEUJUSTE,
individually and as a police officer for the City of Dubuque, Iowa and THE CITY OF
DUBUQUE and all of its employees, officers, directors, elected officials, and agents,
including all subsidiary, parent, and affiliate entities, the Iowa Communities Assurance
Pool (ICRP), American Risk Pooling Consultants, Inc. (ARPCO), York Risk Services
Group,Inc.,York Risk Pooling Services,Inc.,Public Entity Risk Services of Iowa(PERSI)
(the "Released Parties") from any and all liability for all claims arising from the incident
that occurred on or about December 28, 2014, involving an arrest incident. This Release
of liability includes all common law, statutory, and other causes of action, including
damage claims of any sort, attorney's fees, and costs which Claimant may have or claim to
have for the allegations made in the suit filed in Federal Court as Case No. 2:15-cv-01034-
LRR.
2. Claimant is solely responsible for any and all tax liability related to this
payment and will defend,indemnify,and hold harmless the Released Parties from any such
tax liability.
3. Claimant recognizes that the Released Parties will comply with the Iowa
Open Records Act.
4. Claimant agrees that the above-referenced suit will be immediately
dismissed with prejudice.
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l5. This Release is executed as a compromise settlement of a disputed claim.
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The Released Parties deny that they have done anything improper or illegal concerning the
incident described in this Release, and this Release does not constitute an admission of
liability on the part of any person or entity. No other promises have been made by the
Released Parties, or by any person or entity acting on their behalf. This Release covers all
injuries and damages whether presently known or not.
6. Claimant represents that he does not know of any person or entity that has
paid any amount on his behalf that would entitle anyone to recover as a lienholder or
subrogee of Claimant against the Released Parties. If such lienholder, subrogee, or any
person/entity with a third party interest exists, Claimant agrees to satisfy those third-party
interests out of the settlement proceeds and further agrees to defend, indemnify, and hold
harmless the Released Parties for any claims or interests that are asserted. Such
indemnification shall include,without limitation,any and all attorney fees, court costs, and
any and all other costs and expenses. Claimant further represents that he has not assigned
his claim to any other person.
7. Claimant is executing this Release solely upon his own knowledge, belief,
and judgment and not upon any representation made by the Released Parties. Claimant
acknowledges that he has had the opportunity to consult with an attorney of his choice.
8. Claimant represents that he is not currently receiving Medicare benefits and
that Medicare has not made any conditional payments on their behalf related to their claims
in this matter. Claimant has not and will not apply for Social Security Disability benefits
related to this incident. Claimant does not anticipate any future Medicare-eligible expenses
related to any injuries for which he is making a claim. Because no future Medicare-eligible
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expenses are anticipated,no part of the settlement is being set aside for Medicare. Claimant
agrees to defend, indemnify, and hold harmless the Released Parties from any interest
asserted by Medicare. Such indemnification shall include, without limitation, any and all
attorney fees, court costs, and any and all other costs and expenses.
9. This Release constitutes the entire agreement between Claimant and the
Released Parties. It supersedes all prior Releases and understandings, whether oral or
written, relating to Claimant's alleged injuries and damages related to the incident
described in this Release.
10. It is the intent of Claimant and the Released Parties to end any dispute
between them pertaining to the matters described in this Release. This Release should be
broadly construed to achieve this intent. The terms, provisions, representations, and
remedies contained in this Release shall be enforceable to the fullest extent permitted by
law. If any term of this Release is found to be invalid or unenforceable, then such term
shall be construed in a manner permitting its enforcement to the fullest extent allowed by
the law. In any case,the remaining provisions of this Release other than those which have
been held invalid, illegal, or unenforceable, shall not be affected or impaired and shall
remain in full force and effect. This Release will not be construed either in favor of one
party or against one party, but rather pursuant to the fair and reasonable interpretation of
the language used.
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CAUTION: THIS IS A RELEASE. READ BEFORE SIGNING.
CRAIG RICHARD PFOHL, Claimant
Date Claimant signed:
Witness
Date Witness Signed:
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