United States District Court, D. South Dakota, Southern Division
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.
ORDER ON MOTIONS DOCKET NUMBERS 49 & 59 AND
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT DOCKET NUMBER 50
VERONICA L. DUFFY, United States Magistrate Judge
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.
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).
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).
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).
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).
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).
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
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
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).
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).
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
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).
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.
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
Motion to Deny motion to extend and for appointment of
counsel (Docket 49).
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.
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.
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).
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.
Motion to dismiss affidavits (Docket
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.
issue is governed by Fed.R.Evid. 803(6), more commonly known
as the business records exception to the hearsay rule. That
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
(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
(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
See Fed.R.Evid. 803(6).
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)).
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.
Summary Judgment Standard.
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.@
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).
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)).
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 ...