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Clark v. Gross

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

October 3, 2016

JONATHAN D. CLARK, SR ., Plaintiff,
JOHN GROSS, police officer at Minnehaha Police Station, in his individual and official capacity; ERIC DOPPENBERG, correction officer at Minnehaha County jail, in his individual and official capacity. Defendants.



          VERONICA L. DUFFY, United States Magistrate Judge

         Pending before the court is plaintiff Jonathan D. Clark's pro se complaint pursuant to 42 U.S.C. § 1983. Mr. Clark alleges defendant John Gross used excessive force during his arrest and that defendant Eric Doppenberg used excessive force while transporting him back to the jail after a court appearance related to the arrest. See Docket No. 1. Mr. Clark was an inmate at the South Dakota State Penitentiary (SDSP) in Sioux Falls, South Dakota at the time his complaint was filed, but has since been released. See Docket 1 & undated Docket entry dated August 5, 2016. The defendants have moved for summary judgment. See Docket No. 50. This matter was referred to this magistrate judge pursuant to the October 16, 2014, standing order of the Honorable Karen E. Schreier and 28 U.S.C. § 636(b)(1). The following is this court's recommended disposition of the motion.


         At approximately 2:26 a.m. on April 15, 2014, Officer John Gross was on patrol with Officer Cullen McClure on West Russell Street in Sioux Falls, South Dakota, when the officers observed a 1999 maroon Yukon Denali pull onto the road. (Gross Aff. ¶ 4.) The officers recognized the driver of the vehicle as Jonathan D. Clark, an individual with whom the Sioux Falls Police Department had previous contact. (Id. at ¶ 5.) After determining Mr. Clark had no driver's license and an active warrant out for his arrest, Officers Gross and McClure initiated a traffic stop of Mr. Clark's vehicle near Madison Street and Kiwanis Avenue in Sioux Falls. (Id. at ¶ 6).

         Clark's vehicle had no license plates; instead, it had paper dealership plates in the windows, which, through previous encounters, the officers knew were expired (Id. at ¶ 7). After Mr. Clark pulled his vehicle over, Officer Gross approached Mr. Clark's vehicle and pulled him out of the car (Clark Dep. 21:25-22:1). Officer Gross noticed Mr. Clark was holding a plastic bag in his hand, which Mr. Clark said “was nothing.” (Id. at 22:1-4).

         Officer Gross immediately put Clark in handcuffs. (Id. at 22:4-6). After Mr. Clark was handcuffed, Officer Gross began asking him questions. (Id. at 22:6-7). Mr. Clark's speech was muffled, and Officer Gross asked him to identify what was in his mouth. (Id. at 22:8-9). Mr. Clark responded that he had a baggie of marijuana in his mouth, and he spit the bag of marijuana out on the car. (Id. at 22:9-13).

         Officer Gross grabbed a flashlight and started looking in Mr. Clark's mouth. (Id. at 22:14-15). Officer Gross believed there was something else in Mr. Clark's mouth. (Id. at 22:14-24). There is no dispute Officer Gross observed the plastic baggie to be consistent with the types of bags used to hold drugs. (Gross Aff. ¶ 10). Mr. Clark denied having anything else in his mouth. (Id.) Officer Gross repeatedly told Mr. Clark to spit out the baggie of white narcotics he believed Mr. Clark had in his mouth. (Id. at 22-24).

         Officer Gross grabbed Mr. Clark by the neck. (Id. at 22:23-25). Mr. Clark could not breathe. (Id. at 23:1-2). While holding Mr. Clark's neck, Officer Gross tried to pry Mr. Clark's mouth open using the flashlight and Mr. Clark felt the flashlight hit his back tooth. (Id. at 23:3-13). Mr. Clark fell to the ground, landing on his knee because his hands were handcuffed. (Id. at 23:13-17).

         When Mr. Clark regained awareness, Officer Gross grabbed a pen and tried to use the pen to retrieve whatever was in Mr. Clark's mouth. (Id. at 23:18-24:1). At the same time, Officer Gross was holding Mr. Clark's neck and telling Mr. Clark to get the item out of his mouth. (Id. at 24:1-4). Suddenly, Mr. Clark started spitting out blood. (Id. at 24:5-6). Officer Gross told his partner Mr. Clark swallowed whatever had been in his mouth, and Mr. Clark was told he would be taken to the hospital to have his stomach pumped (Id. at 24:6-12).

         The officers took Mr. Clark to the hospital due to concerns for his safety, because they believed he had swallowed drugs (Id. at 24:13-14). Mr. Clark's injuries from this incident consisted of a scrape on his knee, a chipped back tooth, and a bump on his left forehead (Id. at 25:14-26:2; 28:8-15).

         Although Mr. Clark disputes there was anything else in his mouth, there is no dispute Officer Gross believed Mr. Clark had an additional baggie containing a white narcotic in his mouth. (Compare Clark Dep. with Gross Aff. ¶ 13, 16).

         After Mr. Clark was discharged from the hospital, he was transported to the Minnehaha County Jail and was processed for the arrest (Id. at 36:16-37:1). Later in the day on April 15, 2014, Mr. Clark appeared in magistrate court (Clark Dep. 37:19-22). Corrections officer Erick Doppenberg transported Mr. Clark from the Minnehaha County Jail to magistrate court (Id. 39:12-16).

         At approximately 2:53 p.m., Mr. Clark made his appearance before the Judge (Doppenberg Aff. ¶ 5). The Judge advised Mr. Clark of his charges and addressed his bond (Id. at ¶ 6). While being advised of the charges against him arising from his arrest on April 15, 2014, Mr. Clark stood up in the courtroom and began talking to the judge, disputing the validity of the charges (Clark Dep. 40:12-18). Corrections officer Doppenberg approached Mr. Clark and removed him from the courtroom, instructing Mr. Clark it was not the time to be disputing the charges (Id. at 40:19-41:8).

         Mr. Clark was in handcuffs and shackles and was having difficulty keeping up with corrections officer Doppenberg while corrections officer Doppenberg escorted him back to the jail (Id. at 41:8-25). Corrections officer Doppenberg and Mr. Clark took the elevator upstairs, and when they exited the elevator, Mr. Clark told corrections officer Doppenberg he could not move that fast, at which point corrections officer Doppenberg picked Mr. Clark up by the back of his pants and slammed him on the ground (Id. at 42:1-13). Mr. Clark subsequently was placed in a restraint chair (Id. at 54:13-55:5).

         As a result of this incident, Mr. Clark suffered the following injuries: scratches/scrapes from the handcuffs and shackles, re-scraping of his kneecap, and some of his hair had been pulled out (Id. at 55:6-17). Mr. Clark did not obtain medical treatment as a result of this incident (Id. at 55:18- 56:10; see also Doppenberg Aff. Ex. A.)


         A. Preliminary Matters.

         In addition to the defendants' motion for summary judgment (Docket 50), also pending are Mr. Clark's motion to deny the defendants' motion to extend and for appointment of counsel (Docket 49) and motion to dismiss affidavits (Docket 59).

         1. Motion to Deny motion to extend and for appointment of counsel (Docket 49).

         The defendants asked the court for an extension of time to file their motion for summary judgment. Docket 45. The court granted the motion, and extended the motion deadline until March 31, 2016. Docket 47. Mr. Clark moved the court to deny the defendants' request to extend the deadline, but this request was not received by the court until after the court had already granted the defendants' motion. See Docket 49. This portion of Docket 49, therefore, will be denied as moot.

         In the same pleading, Mr. Clark requested (for the third time) that counsel be appointed to represent him (see Docket Nos. 29 and 35). In support of his third request for appointed counsel, Mr. Clark explains he is unable to afford counsel, that the defendants' lawyer has not been very cooperative, and that he believes a lawyer would be helpful to him in presenting evidence and cross-examining witnesses at trial. Docket 49, p. 1. These are the same reasons Mr. Clark requested counsel in his first two motions, which were denied by this court. See Docket Nos. 30 and 37.

         "Indigent civil litigants do not have a constitutional or statutory right to appointed counsel." Edgington v. Missouri Dep't of Corrections, 52 F.3d 777, 780 (8th Cir. 1995) (abrogated on other grounds by Doe v. Cassel, 403 F.3d 986, 988-89 (8th Cir. 2005)). The factors relevant to evaluating a request for appointment of counsel include "whether both the plaintiff and the court will benefit from the appointment of counsel, taking into account the factual and legal complexity of the case, the presence or absence of conflicting testimony, and the plaintiff's ability to investigate the facts and present his claim." Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996).

         Mr. Clark's request for appointment of counsel is denied for the reasons already explained in the court's first two orders denying Mr. Clark's previous motions for counsel. Additionally, in April and then again in July and August, 2016, Mr. Clark notified the clerk of a change of address which signifies to the court he is no longer in custody. See Docket entries dated April 20, 2016, July 15, 2016, and August 5, 2016. Mr. Clark now has the ability, therefore, to freely confer with an attorney of his own choice about this case. For this reason as well, that portion of Docket 49 which requests the court to appoint counsel for Mr. Clark is denied.

         2. Motion to dismiss affidavits (Docket 59).[2]

         Mr. Clark asks the court to dismiss the affidavits of Jeremiah Larson (Docket 55), Brad Farniok (Docket 56), and Sidney Dunn (Docket 57). Docket 59. The defendants submitted these affidavits in support of their motion for summary judgment. Mr. Clark opines that because each of the affidavits refer to an affixed exhibit which consists of the affiant's unsigned jail “incident report, ” the information would be inadmissible at trial and should likewise be inadmissible in this summary judgment proceeding. See Docket 59, p. 1.

         This issue is governed by Fed.R.Evid. 803(6), more commonly known as the business records exception to the hearsay rule. That rule states:

Rule 803. Exceptions to the Rule Against Hearsay- Regardless of Whether the Declarant is Available as a Witness. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by-or from information transmitted by -someone with knowledge;
(B) the record was kept in the course of regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation show lack of trustworthiness.

See Fed.R.Evid. 803(6).

         Fed. R. Evid. 803(6) applies to incident reports generated as a result of jail or prison disturbances. See e.g., Herrerra v. Mowry, 2014 WL 4101611 at *2, n. 2 (Aug. 18, 2014, D. Neb.) (overruling prisoner's objection to the court's reliance on prison incident reports in deciding summary judgment motion, relying upon Fed.R.Evid. 803(6)); Lourido-Vidal v. Fisher, 2013 WL 3771223 at *8-9 (July 17, 2013, D. Minn.) (overruling petitioner's hearsay objection to use of incident reports in a § 2241 proceeding, relying upon Fed.R.Evid. 803(6)).

         Mr. Clark asserts the affidavits and their attached incident reports should not be admissible because they are not signed. See Docket 59, p. 1. But Fed.R.Evid. 803(6) does not require that business records be signed in order to be admissible. Each of the affidavits Mr. Clark contests are properly authenticated as required by Fed.R.Evid. 803(6). See Docket 55 (Larson affidavit), ¶ 13; Docket 56 (Farniok affidavit), ¶ 10; Docket 57 (Dunn affidavit), ¶ 10. Mr. Clark's motion to dismiss affidavits, Docket 59, is therefore denied.

         B. Summary Judgment Standard.

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate where the moving party Ashows 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).

         The court must view the facts, and inferences from those facts, in the light most favorable to the nonmoving party. See Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Helton v. Southland Racing Corp., 600 F.3d 954, 957 (8th Cir. 2010) (per curiam). Summary judgment will not lie if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994).

         The burden is placed on the moving party to establish both the absence of any genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Once the movant has met its burden, the nonmoving party may not simply rest on the allegations in the pleadings, but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Anderson, 477 U.S. at 256; Fed.R.Civ.P. 56(e) (each party must properly support its own assertions of fact and properly address the opposing party's assertions of fact, as required by Rule 56(c)).

         The underlying substantive law identifies which facts are “material” for purposes of a motion for summary judgment. Anderson, 477 U.S. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.(citing 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Fed. Practice & Procedure ' 2725, at 93-95 (3d ed. 1983)). “[T]he mere existence of some alleged factual dispute between the parties will not ...

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