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Mortensbak v. Butler

United States District Court, D. South Dakota, Central Division

February 24, 2015

DAVID ROGER MORTENSBAK, Plaintiff,
v.
NICHOLAS BUTLER, POLICE OFFICER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; PAUL WAYNE SMERSRUD, POLICE OFFICER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; SARGENT MCMANUS, POLICE OFFICER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; OFFICER SIEBENBORN, POLICE OFFICER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; OFFICER THIELEN, POLICE OFFICER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; RYAN BAKER, POLICE OFFICER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; MIKE GILLIPIES, POLICE OFFICER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; SAM CLEMMINGS, POLICE OFFICER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; OFFICER LOHR, POLICE OFFICER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; AND RANDY SAMPLE, DEPUTY STATES ATTORNEY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; Defendants

David Roger Mortensbak, Plaintiff, Pro se, Sioux Falls, SD.

For Nicholas Butler, Police Officer, in his individual and official capacity, Paul Wayne Smersrud, Police Officer, in his individual and official capacity, Sargent McManus, Police Officer, in his individual and official capacity, Officer Siebenborn, Police Officer, in his individual and official capacity, Officer Thielen, Police Officer, in his individual and official capacity, Ryan Baker, Police Officer, in his individual and official capacity, Mike Gillipies, Police Officer, in his individual and official capacity, Sam Clemmings, Police Officer, in his individual and official capacity, Officer Lohr, Police Officer, in his individual and official capacity, Randy Sample, Deputy States Attorney, in his individual and official capacity, Defendants: Gary P. Thimsen, LEAD ATTORNEY, Woods, Fuller, Shultz & Smith, PC, Sioux Falls, SD.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.

David Roger Mortensbak, an inmate in the South Dakota State Penitentiary, has filed a pro se civil rights lawsuit[1] under 42 U.S.C. § 1983 against Nicholas Butler, Paul Smedsrud,[2] Loren McManus, Andrew Siebenborn, Dan Thelen,[3] Ryan Baker, Jeff Gillespie,[4] Sam Clemens,[5] Jon Lohr, and Randy Sample (collectively, the Defendants). This Court screened the suit, allowed Mortensbak to proceed in forma pauperis, and directed service upon the Defendants. Doc. 7. This Court has denied Mortensbak's requests for appointment of counsel. Doc. 10; Doc, 26; Doc. 33. The Defendants have filed a motion for summary judgment, Doc. 34, which for the reasons stated below, this Court grants.

I. SUMMARY JUDGMENT STANDARD AND DOCUMENTS CONSIDERED

A court shall grant a motion for summary judgment upon a motion by a party only " if the movant shows that 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). A summary judgment motion must be supported by evidence on the record, which may include affidavits or declarations based upon personal knowledge. Fed.R.Civ.P. 56(c). The non-moving party is entitled to the benefit of having all reasonable inferences resolved in his or her favor, but the non-moving party must present specific facts showing a genuine issue for trial. Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1207 (8th Cir. 2013). That is, a non-moving party must present " sufficient probative evidence" capable of supporting a finding in his or her favor, not " mere speculation, conjecture, or fantasy." Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007) (quoting Gregory v. City of Rogers, Ark., 974 F.2d 1006, 1010 (8th Cir. 1992) (en banc)).

The Defendants filed their motion for summary judgment on November 17, 2014, Doc. 34, and contemporaneously filed a statement of material facts, Doc. 36, which was supported by affidavits of police officers who responded to the incident out of which Mortensbak's cause of action arose, Docs. 37, 38, 39, 40, 41, as well as individual officer reports of the incident, Docs. 37-1, 38-1, 39-1, 40-1, 41-5, a data disc with video from the responding police officers' vehicles, Doc. 41-6, the training records of the canine involved, Docs. 41-1-41-4, and statements made by Mortensbak during a deposition, Doc. 42-1. Mortensbak responded to the motion on December 30, 2014. On January 5, 2015, the Defendants replied. Doc. 46 at 2. Mortensbak responded to the Defendants' reply with four separate filings: a " Response," Doc. 47, two affidavits, Docs. 48, 50, and a brief, Doc. 49. Mortensbak also filed another motion to appoint counsel. Docs. 53, 54.

The Defendants argue that Mortensbak's response to their motion should not be considered because it was not filed within the time period prescribed by local rules. Doc. 46 at 2. Alternatively, the Defendants argue that Mortensbak should be deemed to have admitted the Defendants' statement of material facts, Doc. 36, because he did not respond to the statement of material facts in a manner consistent with local rules, Doc. 46 at 2; see also D.S.D. Civ. LR 56.1 (requiring responses to each numbered paragraph in the moving party's statement of material facts with a numbered response citing evidence on the record, and deeming uncontroverted facts admitted).

The Defendants filed their motion for summary judgment on November 17, 2014, and served Mortensbak by first-class mail that same day. Doc. 43. Local rules require the non-moving party to respond to a motion for summary judgment within twenty-one days, D.S.D. Civ. LR 7.1, but because service was made by first-class mail, Mortensbak had three extra days to file a response, Fed.R.Civ.P. 6(d) (extending the time in which a party must act by three days when the party was served through the mail). Thus, Mortensbak had until December 11, 2014, to file his response to the motion for summary judgment. See also Fed.R.Civ.P. 6(a)(1) (excluding the day of the event triggering a time period from the time period). The envelope in which Mortensbak sent his responsive pleading was postmarked on December 27, 2014, Doc. 44, and Mortensbak's response to the motion for summary judgment was stamped as filed on December 30, 2014, Doc. 44-1. The certificate of service at the end of Mortensbak's response represents that Mortensbak gave his response to prison staff for mailing on December 16, 2014. Even assuming the prison mailbox rule applies to Mortensbak's response,[6] the document was filed five days after the expiration of the time period for responding to the motion for summary judgment.

A court has the discretion, for good cause, to extend the time period within which an action must be taken. Fed.R.Civ.P. 6(b). The rule sets forth a different standard depending on whether the time period has already expired. Id. Prior to the expiration of a time period, a court may extend the time period " with or without" a motion or a request by a party. Fed.R.Civ.P. 6(b)(1)(A). After the expiration of a time period within which one must act, a court may only extend the time for taking such action upon a motion by the party and only if the failure to act was caused by " excusable neglect." Fed.R.Civ.P. 6(b)(1)(B). Mortensbak made no separate motion for an extension of the time to file a response to the Defendants' motion for summary judgment. Therefore, in order to consider Mortensbak's response to the motion for summary judgment, this Court would have to interpret " the very filing" of the late response as a " motion" for extension of the time limit, as well as find that the other considerations--good cause and excusable neglect--have been shown. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 896-97, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). To interpret Mortensbak's filing in such a way would require ignoring the plain distinction Rule 6(b) makes between an action taken before the time to act has expired and an action taken after the time to act has expired. In addition, Mortensbak made no effort to show good cause or excusable neglect in his late-filed response to the Defendants' motion for summary judgment.[7]

However, that does not mean that the motion for summary judgment is automatically granted.[8] The Defendants still bear the burden of showing that there exists " no genuine dispute of material fact" and that, on the undisputed facts, they are " entitled to judgment as a matter of law." Fed.R.Civ.P. 56.

II. ESTABLISHED FACTS NOT SUBJECT TO GENUINE DISPUTE

The Defendants in this case, except Defendant Randy Sample, were all members of the Sioux Falls Police Department at the time of the incident giving rise to this action. Defendant Sample is a Deputy Minnehaha County State's Attorney. The facts relevant to this motion are drawn from the Defendants' statement of material facts, Doc. 36, and the evidence proffered in support of that document. This Court has thoroughly examined the evidence and found that the Defendants' affidavits are consistent with each other, the police reports written near the time of the incident, and the video from responding police units. The video of the incident as recorded by the responding police units captured statements made contemporaneously with and immediately after the incident which gave rise to this suit. Those statements, which were made by the Defendants before they would have had an opportunity to fabricate an alternative version of the incident,[9] are consistent with the later-written reports.

Mortensbak was driving a silver Ford pickup the wrong way down West 11th Street in Sioux Falls, South Dakota, shortly after 7:00 p.m., on January 26, 2013. Doc. 41 at 1; Doc. 41-6; Doc. 42-1 at 2. Mortensbak had a passenger and a dog in the vehicle with him. Doc. 41 at 2; Doc. 41-6. Officer Butler witnessed Mortensbak driving the wrong way while Officer Butler was on duty and patrolling the area. Doc. 41 at 1. Officer Butler, who was in his marked patrol vehicle with police canine Doerak, was wearing a uniform identifying himself as a canine officer. Doc. 41 at 5. Officer Butler initiated a traffic stop of Mortensbak's vehicle, and Mortensbak initially stopped in the parking area of a business. Upon approaching the driver's side door, Officer Butler noticed that an odor of alcohol emanated from inside Mortensbak's pickup, that Mortensbak's eyes were bloodshot and watery, that Mortensbak spoke with slurred speech, and that there was an open can of beer in the cup holder of the pickup. Doc. 41 at 2; Doc. 41-6. From these observations, Officer Butler formed the belief that Mortensbak was under the influence of alcohol. Doc. 41 at 2; Doc. 41-6. Officer Butler's belief was later confirmed (after Mortensbak was ultimately subdued) by a preliminary breath test and a blood draw, both of which indicated that Mortensbak had a blood-alcohol content of at least .267. Doc. 37 at 3; Doc. 30 at 3; Doc. 42-1 at 1. Officer Butler asked Mortensbak to turn over the keys to his vehicle, to which Mortensbak responded, " I can't do that." Doc. 41 at 2; Doc. 41-6. Officer Butler repeated the request and Mortensbak repeatedly refused. Doc. 41 at 2; Doc. 41-6. Officer Butler opened the driver's door to the pickup and tried to grab the keys, but Mortensbak pushed him back. Doc. 41 at 2; Doc. 41-6. The two men struggled, and Mortensbak punched Officer Butler in the face. Doc. 41 at 3. Mortensbak then put his pickup into gear, at which time Officer Butler withdrew from Mortensbak, and Mortensbak sped off as Officer Butler ran back to his patrol vehicle. Doc. 41 at 3; Doc. 41-6.

Officer Butler pursued Mortensbak through residential neighborhoods at high rates of speed, with Mortensbak at one point driving into a lawn and nearly hitting a pedestrian and a fire hydrant. Doc. 41 at 5; Doc. 41-6. To keep up with Mortensbak, Officer Butler had to drive faster than fifty miles per hour in a residential area. Doc. 41-6. During the pursuit, Officer Butler called for assistance from other ...


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