United States District Court, D. South Dakota, Southern Division
ORDER DIRECTING SERVICE
E. SCHREIER UNITED STATES DISTRICT JUDGE
Rocky Thomas Traversie, filed a pro se civil rights lawsuit
under 42 U.S.C. § 1983. Docket 1. For the following
reasons, the court directs service of Traversie's
alleges that he was unarmed and was not running away or
attacking anybody when he was attacked by defendants on
February 5, 2014. Docket 1 at 4. Matthew Starr, Matthew
Hanisch, and Dave Dunteman are police officers who allegedly
attacked Traversie. Id. Starr and Hanisch allegedly
hit Traversie on the top of the head with batons, splitting
his head open. Id. Both officers hit Traversie while
he was on the ground and another officer was hitting and
kicking him. Id. Dunteman drew his weapon and told
Traversie to “put it down” then kicked Traversie
and jumped on his midsection with his knee. Id.
Traversie alleges that as a result of the beating he received
nine staples for his head wound, his left hand was broken,
and both hands swelled. Id. He also suffered mental
and emotional injury. Id.
September 28, Traversie filed this complaint, claiming Starr,
Hanisch, and Dunteman all used excessive force against him.
Id. In relief, Traversie requests compensation for
mental anguish and his physical injuries. Id. at 7.
He also requests punitive damages. Id.
court must accept the well-pleaded allegations in the
complaint as true and draw all reasonable inferences in favor
of the non-moving party. Schriener v. Quicken Loans,
Inc., 774 F.3d 442, 444 (8th Cir. 2014). Civil rights
and pro se complaints must be liberally construed.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation
omitted); Bediako v. Stein Mart, Inc., 354 F.3d 835,
839 (8th Cir. 2004). Even with this construction, “a
pro se complaint must contain specific facts supporting its
conclusions.” Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985); Ellis v. City of
Minneapolis, 518 F.App'x 502, 504 (8th Cir. 2013).
Civil rights complaints cannot be merely conclusory.
Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993);
Parker v. Porter, 221 F.App'x 481, 482 (8th Cir.
complaint “does not need detailed factual allegations .
. . [but] requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). “If a plaintiff cannot make the
requisite showing, dismissal is appropriate.”
Abdullah v. Minnesota, 261 F. App'x 926, 927
(8th Cir. 2008); Beavers v. Lockhart, 755 F.2d 657,
663 (8th Cir. 1985). Under 28 U.S.C. § 1915A, the court
must screen prisoner complaints and dismiss them if they are
“(1) frivolous, malicious, or fail to state a claim
upon which relief may be granted; or (2) seek monetary
relief from a defendant who is immune from such
seeks to impose liability on the Sioux Falls Police
Department for the conduct of the three police officers. A
local governmental entity, however, may not be held liable
under § 1983 under a theory of respondeat superior.
Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir.
2006). A plaintiff seeking to establish a claim against a
local governmental entity must show that an official policy
or custom caused him to suffer a constitutional harm.
Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463, 467
(8th Cir. 1996). Traversie has not made this showing.
Therefore, his claim against the Sioux Falls Police
Department is dismissed.
Excessive Force Claims
claims defendants Starr, Hanisch, and Dunteman violated his
constitutional rights by using excessive force against him.
“In addressing an excessive force claim brought under
§ 1983, analysis begins by identifying the specific
constitutional right allegedly infringed by the challenged
application of force.” Graham v. Connor, 490
U.S. 386, 394 (1989). The Eighth Circuit Court of Appeals has
recognized different scenarios in which an excessive force
claim may arise, differentiating by looking at when in the
criminal process the force was used. Where the excessive
force claim arises during the arrest, it invokes the
protections of the ...