United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, Chief Judge.
Plaintiff Steven Purchase brings an action under 42 U.S.C § 1983 alleging the defendants (the Sturgis Police Department, Officer Wade Dueter ("Dueter"), Officer Nichole Hodge ("Hodge") and Corrections Officer Matt Brengle ("Brengle") violated several of his constitutional rights. (Docket 4 at p. 1). Although not explicitly referenced in his amended complaint, Mr. Purchase asserts the court, by virtue of his § 1983 claim, has supplemental jurisdiction over the remainder of his claims which would otherwise sound in state law. See 28 U.S.C. § 1367. Mr. Purchase seeks $200, 000 for "pain and injury and visual scars on his leg and for [his] mental anguish." (Docket 4 at p. 4). Mr. Purchase seeks punitive damages from the defendants. Id . The defendants deny the allegations contained in Mr. Purchase's amended complaint. (Docket 10).
Defendants Sturgis Police Department, Dueter and Hodge filed a motion for summary judgment and a statement of undisputed material facts. (Dockets 47 & 49). Defendant Brengle filed a motion for summary judgment and a statement of undisputed material facts. (Dockets 54 & 56). Mr. Purchase filed a combined response to all of the defendants' statements of undisputed material facts. (Docket 64). Mr. Purchase filed a combined response to all of the defendants' motions for summary judgment. (Docket 65). Defendants Sturgis Police Department, Deuter and Hodge filed a brief in reply to Mr. Purchase's response. (Docket 67). Defendant Brengle filed a brief in reply to Mr. Purchase's response. (Docket 66).
Mr. Purchase made many non-dispositive motions and assorted filings in this case: a motion for jury excursion (Docket 15); a motion to exclude uniforms and weapons from the courtroom (Docket 16); a motion in limine regarding uniform traffic tickets K454806 and K454807 and arrest record (Docket 17); a motion in limine regarding lay opinions about mental health (Docket 22); a motion to allow evidence of insurance for purposes of punitive damages, bias, prejudice, agency and motive (Docket 23); a first set of proposed jury instructions (Docket 30); a motion in limine to prevent introduction of evidence of officers' subjective thoughts and hearsay audios (Docket 31); a motion in limine to prevent introduction of witnesses' or parties' pre-occurrence or post-occurrence drug or alcohol consumption (Docket 32); a motion for special interrogatory questions to the jury (Docket 33); a motion for rulings regarding Fed.R.Evid. 404 and 608 and other matters (Docket 34); a submission of jury polling questions regarding bias to South Dakota alcohol laws (Docket 37); a motion to exclude Meade County residents from the jury pool (Docket 42); a motion for the court to view video and audio files that were submitted to the court (Dockets 59), which was unopposed by defendants Sturgis Police Department, Deuter and Hodge (Docket 61); and a motion to compel disclosure (Docket 60). Because the court's resolution of the pending motions for summary judgment will resolve Mr. Purchase's non-dispositive motions, the court first addresses defendants' motions for summary judgment.
The parties' briefing in this case necessitates a review of the court's local rules and the Federal Rules of Civil Procedure regarding motions for summary judgment. District of South Dakota LR 56.1 requires that a nonmoving party opposing a motion for summary judgment " will respond to each numbered paragraph in the moving party's statement of material facts with a separately numbered response and appropriate citations to the record ... [and] will identify any material facts as to which it is contended that there exists a genuine material issue to be tried." D.S.D. LR 56.1(B) (emphasis added). The court will deem as admitted "[a]ll material facts set forth in the movant's statement of material facts... unless controverted by the opposing party's statement of material facts." D.S.D. LR 56.1(D).
Rule 56 "permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Rule 56(c) provides that:
1. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c).
In this case, Mr. Purchase failed to respond to the defendants' statements of undisputed material facts in accordance with D.S.D. LR 56.1(B). Mr. Purchase's response admits it is "an incomplete list of  disputed facts taken from requests for admission, and the defendants' statements of undisputed facts, and other sources." (Docket 64). The court agrees. Plaintiff's response to defendants' statements of undisputed material facts is a list of 108 separate facts, allegations and theories the plaintiff believes that a jury could "reasonably find" in this case. Id. at 4.
This does not meet the standard for a nonmoving party as required by the Federal Rules of Civil Procedure and the court's local rules. First, Mr. Purchase's response is devoid of any citations to the record. See id. 64. Second, although Mr. Purchase's "response" to defendants' statements of undisputed material facts contains separately numbered paragraphs, the numbered paragraphs are not properly characterized as a corresponding response to each of the defendants' asserted statements of undisputed material facts. The "response" is a list of what Mr. Purchase believes the jury might find. The court cannot overlook these deficiencies. Because Mr. Purchase failed to properly respond, the court considers the facts contained in defendants' statements of undisputed material facts (Dockets 49 & 56) as admitted for purposes of adjudicating the defendants' motions for summary judgment. Fed.R.Civ.P. 56(e)(2); D.S.D. LR 56.1(D). A brief description of the material facts follows.
Mr. Purchase arrived in Sturgis, South Dakota, on the afternoon of July 10, 2013. See Docket 52 at p. 12 (Purchase Deposition). Mr. Purchase traveled to Sturgis to attend a July 11, 2013, court proceeding for a "[v]iolation of a protection order with [his] ex-wife." Id . During the afternoon of July 10, Mr. Purchase bought a 750 milliliter bottle of vodka and began drinking it. Id. at 13-14. By the evening of July 10, Mr. Purchase was intoxicated and his memory got worse as the day progressed. Id. at 16. Mr. Purchase went to the house of a person later identified as Darrin Marsh. Id. at 15; see also Track 1 of the Submitted Audio Files. In the early morning hours of July 11, 2013, Mr. Marsh called the City of Sturgis Police Department dispatcher complaining that an unidentified person, who was later identified as Mr. Purchase, was "drunk and wanted to fight and then he went banging on people's doors wanting to fight." (Track 1 of the Submitted Audio Files, 0:21-0:24); see also Dockets 50 at p. 1; 51 at p.1.
Mr. Marsh made several more calls to the Sturgis police dispatcher during the early morning hours of July 11 describing Mr. Purchase's physical appearance, where he believed Mr. Purchase could be located, that Mr. Purchase was drunk, and further describing Mr. Purchase's threatening and violent behavior toward himself and others. See Tracks 1-4 of the Submitted Audio Files; see also Dockets 50 pp. 1-2; 51 pp. 1-2. The dispatcher relayed much of this information to on-duty Sturgis police officers via the police radio. See Track 1 of the Submitted Audio Files. Officers Nicole Hodge and Wade Deuter responded to the dispatcher's radio communication. (Dockets 50 at p. 1; 51 at p.1). Prior to encountering Mr. Purchase, the officers were "aware through radio traffic and the police dispatcher that a citizen had complained about a male who had acted in a threatening and violent manner, who was knocking on doors of others in his neighborhood and threatening the caller and other people." (Dockets 50 at p. 1; 51 at p. 1).
Deuter first located Mr. Purchase at approximately 1:45 a.m. on July 11. (Docket 50 at p. 2). Prior to approaching Mr. Purchase, Deuter was unaware whether Mr. Purchase possessed any weapons. Id . Mr. Purchase was sitting on what appears to be either a log or a railroad tie in the Pizza Hit parking lot. (First Submitted Video, 0:09); see also Docket 50 at p. 2. Deuter approached Mr. Purchase and threw Mr. Purchase's vodka bottle away. (Docket 52 at p. 26) (Purchase Deposition). At 1:54 a.m., shortly after Hodge's arrival, Deuter and Mr. Purchase stood approximately arm's length apart when Mr. Purchase attempted to stand up. (First Submitted Video, 0:23). Immediately after Mr. Purchase stood up, Officer Deuter pushed Mr. Purchase's shoulders, causing Mr. Purchase to trip over the log and fall to the ground. Id. at 0:26; see also Docket 52 at p. 23 (Purchase Deposition); (Docket 50 p. 2). Once on the ground, the officers handcuffed Mr. Purchase and searched him for weapons. (First Submitted Video, 0:40); see also Docket 50 at p. 2.
The video provided to the court does not contain any audio through the first minute of the recording. See First Submitted Video, 1:00. Therefore, the court is unable to hear any conversation between Mr. Purchase and officers that occurred prior to Mr. Purchase's attempt to stand up and his ultimate arrest. After that point, Mr. Purchase was extremely verbally abusive and threatening to the officers. See First and Second Submitted Videos; see also Docket 51 at p. 2. Mr. Purchase told at least one of the officers that he could kill them and that he could kick their a**. (Docket 52 at p. 24-26); see also First Submitted Video, 4:13 (Mr. Purchase tells Deuter that "I'll f*** you up"). Mr. Purchase's verbally abusive language continued through his arrest and transportation to the Meade County jail. See First and Second Submitted Videos; see also Docket 52 at p. 37 (Mr. Purchase stated that he "was basically, verbally assaulting [the officers]."); Id. at 40 (Mr. Purchase stated that "on the way to jail [he] continued to verbally abuse the officer.")
After Mr. Purchase was handcuffed, he refused to get to his feet and forced the officers to carry him part of the way to their patrol car. (Docket 52 at pp. 29-30) (Purchase Deposition). Once at the patrol car, Mr. Purchase "sat in voluntarily, but did not put [his] right leg in the vehicle." Id. at 30. The officers asked Mr. Purchase to put his leg in the vehicle several times. (First Submitted Video, 3:00-4:48); see also Docket 52 at pp. 30-32, 35 (Purchase Deposition). Mr. Purchase refused to comply with the officers' directives because he was "angry." (Docket 52 at p. 31). Mr. Purchase admitted he did not expect the officers to drive the patrol car with his right leg hanging out of the car. Id.
Mr. Purchase was warned at least four times by the officers that if he refused to get in the patrol car, he would be tased. (First Submitted Video, 3:00-4:30); see also Dockets 50 at p. 2; 51 at p. 2; 52 pp. 30-32, 35 (Purchase Deposition). After Mr. Purchase refused to comply with the officers' directives, Deuter used Hodge's taser "to drive stun Mr. Purchase in his right leg [lower thigh] for less than 5 seconds." (Docket 50 at p. 2). Officer Deuter utilized a "drive stun" setting when tasering Mr. Purchase. Id. at p. 10. The "drive stun" setting is the lowest setting on the taser. (Docket 49 at p. 4). The Sturgis Police Department's policy regarding the use of tasers states, "[i]n cases where the subject is actively resisting an officer's attempt to take them into custody but not threatening the officer with an assault[, ] it is recommended that the [taser] be used in the push [drive] stun mode.'" (Docket 50 at p. 5). Mr. Purchase was handcuffed at the time Officer Deuter tased him. After being tased once, Mr. Purchase got into the patrol car and rode with Deuter to the Meade County jail. (Docket 52 at p. 40); see also First Submitted Video, at 4:30.
Mr. Purchase arrived at the jail at approximately 2:07 a.m. on July 11. (Docket 57-2). Brengle described Mr. Purchase as "very verbally abusive and threatening towards the officers." Id . In his deposition, Mr. Purchase admits his "verbal abuse continued in all directions" while at the jail, and he refused to be quiet when officers told him to do so. (Docket 52 at p. 41). Mr. Purchase further stated he would not characterize his interactions with officers as conversations, but rather as him insulting them. Id.
Due to Mr. Purchase's verbal abuse and threats, the staff at the Meade County jail decided for officer safety reasons to leave him in handcuffs and placed him in the restraint chair, with his hands behind his back. (Docket 57-2). Brengle secured all of the chair's restraint mechanisms except the arm straps. Id . After Mr. Purchase was secure in the chair, Brengle and officers Deuter and Hodge attempted to remove Mr. Purchase's handcuffs. Mr. Purchase refused to cooperate by interlocking his fingers. Id . Unable to remove the handcuffs, Mr. Purchase was placed in a cell still strapped into the chair and handcuffed. Id.
At approximately 2:35 a.m., Brengle and Corrections Officer Mowell checked Mr. Purchase's circulation and Mr. Purchase appeared to be fine. Id . The corrections officers attempted to remove Mr. Purchase's handcuffs and strap his arms into the chair correctly. Id . However, Mr. Purchase again locked his hands and refused to cooperate, so Mr. Purchase remained handcuffed. (Docket 57-2).
At approximately 3:10 a.m., Brengle and Mowell gave Mr. Purchase a drink of water because Mr. Purchase had been screaming for water. Id . Brengle again checked Mr. Purchase's circulation and determined it was fine. Id . Mr. Purchase was "still very agitated and threatening" at this time so Brengle advised him that he needed to calm down before he would be released from the restraint chair. Id.
At approximately 3:19 a.m., Deuter and Hodge assisted Brengle in removing Mr. Purchase's handcuffs. Id . After Mr. Purchase's handcuffs were removed his hands were positioned in the restraint chair properly. Id . Because Mr. Purchase was "still very verbally threatening" the officers decided Mr. Purchase should remain in the restraint chair until his attitude improved. (Docket 57-2). Brengle checked Mr. Purchase's circulation and found it acceptable. Id.
At 4:29 a.m., Brengle again checked Mr. Purchase's circulation. Id . Mr. Purchase was "still very verbally abusive, " so Brengle decided to keep Mr. Purchase in the chair. Id . At 5 a.m. Bernie Tveidt, a supervisor at the Meade County jail, reported to work and was in charge. (Docket 57 p. 3). Brengle ended his shift at 5:30 a.m. Id . At this point, Brengle's interaction with Mr. Purchase ended and Mr. Purchase was left in the care of other corrections officers. Id.
Mr. Purchase was in the restraint chair for approximately seven hours. (Docket 58-1 at p. 64) (Purchase Deposition). Mr. Purchase was either asleep or passed out for approximately three hours while in the restraint chair. Id. at 63. Mr. Purchase appears to have been released from the restraint chair at approximately 9 a.m. See Dockets 58-1 at p. 64; 56 at p. 1. Although Mr. Purchase's time in the restraint chair at the Meade County jail was recorded on videotape, jail staff deleted the videotape one or two months after the referenced acts as part of the normal recordkeeping protocol. (Docket 57 at pp. 3-4).
As a result of being tased, Mr. Purchase sustained two red scabs approximately one-quarter inch wide which were visible for approximately two weeks. (Dockets 49 at p. 4; 52 at pp. 58-59). Mr. Purchase did not receive medical treatment for the taser marks. (Docket 52 at p. 59). Mr. Purchase alleges he suffered psychological injury in the form of an increased distrust of authority arising from his arrest and detention. Id. at 60.
As a result of the incidents in the early morning hours of July 11, 2013, Mr. Purchase was charged with and pled guilty to resisting arrest and disorderly conduct in violation of SDCL §§ 22-11-4 and 22-18-35, respectively. (Docket 52 at p. 3). Judge Michelle Palmer-Percy sentenced Mr. Purchase to 90 days in jail with 80 days suspended on the resisting arrest charge and 30 days in jail with 20 days suspended on the disorderly conduct charge, with the sentences to run concurrently. Id. at 4; see also Docket 52 at p 49-50 (Purchase Deposition). Mr. ...