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Marksmeier v. Davie

October 8, 2010

JEFFREY J. MARKSMEIER, APPELLANT,
v.
RANDY DALE DAVIE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER OF THE CITY OF WISNER, NEBRASKA; MARK DELMONT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CUMING COUNTY NEBRASKA DEPUTY SHERIFF; LONNIE SCHULTZ, INDIVIDUALLY AND IN HIS CAPACITY AS POLICE CHIEF OF THE VILLAGE OF BEEMER, NEBRASKA, APPELLEES.



Appeal from the United States District Court for the District of Nebraska.

The opinion of the court was delivered by: Shepherd, Circuit Judge

Submitted: March 9, 2010

Before SMITH, BENTON, and SHEPHERD, Circuit Judges.

Jeffery J. Marksmeier appeals the district court's*fn1 adverse grant of summary judgment in his 42 U.S.C. § 1983 action. He also challenges the district court's denial of his motion for additional time to respond to the summary judgment motions and grant of a protective order limiting discovery. We affirm.

I.

Marksmeier resides in Beemer, Nebraska. He is mildly mentally retarded, and, in January 2007, when this incident occurred, he was 23 years old. The defendants in this matter were familiar with Marksmeier due to past contacts with him.

During the evening hours of January 23, 2007,*fn2 Randy Davie, a police officer for the City of Wisner, contacted Lonnie Schultz, police chief of the Village of Beemer, and requested that if Chief Schultz had any contact with Marksmeier to advise Marksmeier that Officer Davie wished to speak with him. Around 1:45 a.m. on January 24, 2007, Chief Schultz saw Marksmeier in the parking lot of a convenience store in Beemer. Chief Schultz informed him of Officer Davie's request. Marksmeier agreed to meet with Officer Davie in Beemer, but he stated that he would need to travel home before the meeting. Chief Schultz offered Marksmeier a ride, which he accepted. Chief Schultz drove Marksmeier to his residence, remained in the patrol car while Marksmeier entered the apartment, and then drove Marksmeier to the Beemer Police Department to meet with Officer Davie.

After borrowing a micro-cassette recorder from Chief Schultz, Officer Davie began the interrogation of Marksmeier by reading Marksmeier's Miranda*fn3 rights to him. Marksmeier then signed a waiver of his Miranda rights, which Officer Davie witnessed and dated January 24, 2007. The initial focus of the interview was an alleged assault on "SP," a juvenile female. At first, Marksmeier denied striking SP, but after persistent interrogation, Marksmeier admitted hitting SP. Officer Davie also questioned Marksmeier about claims SP had made that she had a consensual sexual relationship with Marksmeier. Marksmeier denied those allegations.

Approximately ten minutes after the interrogation began, Mark Delmont, a deputy sheriff for Cuming County, Nebraska, arrived at the Beemer Police Station. Deputy Delmont was visiting with Chief Schultz when Officer Davie exited the interrogation room and told them he had been unsuccessful in getting Marksmeier to elaborate about the assault on SP. Officer Davie asked if Deputy Delmont or Chief Schultz would try talking to Marksmeier. Deputy Delmont agreed to speak to Marksmeier, and he took over the interrogation. Marksmeier again admitted hitting SP once. Minutes later, Marksmeier admitted to Deputy Delmont that he hit SP four times "ever" and struck her two, or possibly three, times in the incident being investigated by the police.

As part of his interrogation procedures, Deputy Delmont took contemporaneous notes and would, throughout the interview, read them to Marksmeier and have Marksmeier initial the notes if he agreed with the statement. At some point during the interrogation, the cassette tape ran out of space. When Officer Davie reentered the room, he noticed this and inserted a new tape into the cassette recorder. Thus part of the interrogation was not recorded.

Prior to the end of the first tape, Deputy Delmont is heard reciting his first notation-that Marksmeier hit SP four times "ever" and "two maybe three" times in the first part of January. When the second tape begins, Deputy Delmont is heard writing his third note-that Marksmeier hit SP once at a bar in Omaha and two other times at SP's mother's house. Deputy Delmont's notes contain an entry between the two mentioned above that is the focus of this litigation. This second notation was made after the first tape quit recording and before the second recording was started. According to that second notation, which is initialed by Marksmeier, "[JP] and Jeff [Marksmeier] had sex one time but it was her idea. At Jeff's appartment [sic] -- about 3 weeks after [KP] hit Jeff." (Appellant's App. 7.) "JP" is SP's sister and was 16 years old at the time of the interrogation but was 15 years old when the alleged sexual contact occurred. "KP" is JP and SP's brother.

On the second tape and after Deputy Delmont finished the third notation, Deputy Delmont reviews the first notation with Marksmeier. Then the following conversation occurred:

Deputy Delmont: "So, you and [SP] never got it on, ever?" Marksmeier: "Nope."

Deputy Delmont: "You never did the naked noodle dance with her?" ...


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