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Traversie v. Starr

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

December 15, 2016

ROCKY THOMAS TRAVERSIE, Plaintiff,
v.
MATTHEW STARR, MATTHEW HANISCH, DAVE DUNTEMAN, and SIOUX FALLS POLICE DEPARTMENT, Defendants.

          ORDER DIRECTING SERVICE

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Plaintiff, 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 complaint.

         FACTUAL BACKGROUND

         Traversie 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.

         On 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.

         LEGAL STANDARD

         The 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. 2007).

         A 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 relief.” 1915A(b).

         DISCUSSION

         A. Police Department

         Traversie 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.

         B. Excessive Force Claims

         Traversie 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 ...


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