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Rokusek v. Jansen

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

September 26, 2017

TROY ROKUSEK, Plaintiff,
v.
CODY JANSEN, individually, Defendant.

          MEMORANDUM OPINION AND ORDER

          Lawrence L. Piersol United States District Judge.

         Plaintiff, Troy Rokusek ("Rokusek"), filed this action under 42 U.S.C. § 1983 against Defendant, Cody Jansen ("Jansen"), alleging a violation of Rokusek's Fourth Amendment right to be free from excessive force. Jansen filed a Motion for Summary Judgment, claiming that he is entitled to qualified immunity from this claim. (Doc. 43.) Rokusek opposes the motion. Having carefully considered the entire record, the Court will deny Jansen's motion for summary judgment.

         BACKGROUND

         This excessive force case arises out of Rokusek's arrest for suspicion of driving under the influence on April 14, 2015. Rokusek was traveling eastbound on South Dakota Highway 50, a few miles west of Vermillion, South Dakota, when State Trooper Jansen stopped him. There were no problems at the scene of the traffic stop and arrest, or during the drive to the Clay County Jail. Rokusek agreed to provide a blood sample without a search warrant and Jansen took him to a garage attached to the Clay County Courthouse, called the "sally port." Jansen removed Rokusek's handcuffs. Things went smoothly until Rokusek requested to have his blood drawn in amore sanitary environment by a different medical technician than the one in the sally port. When Rokusek refused to stand up so Jansen could handcuff him and get a search warrant for the blood draw, Jansen pulled Rokusek up and pinned his arms behind his back in a "double chicken wing" restraint hold, and then Jansen threw Rokusek face-first to the concrete floor with his arms still behind his back, causing -injuries.

         In the Amended Complaint, Rokusek states four causes of action. The first is the § 1983 civil rights claim that Jansen used excessive force. The other three are state law claims for assault, battery and intentional infliction of emotional distress. Jansen contends that Rokusek's section 1983 action against him is barred by the doctrine of qualified immunity. Pursuant to an agreement between the parties, this Court ordered a stay of discovery pending a decision on qualified immunity. (Doc. 49.)

         FACTS

         Viewed in the light most favorable to Rokusek, the record establishes the following facts.[1]On or about 11:45 p.m. on April 14, 2015, Trooper Jansen initiated a traffic stop with Rokusek on South Dakota Highway 50, a few miles west of Vermillion, South Dakota. Jansen performed a field sobriety test on Rokusek. Finding Rokusek to be impaired, Jansen placed Rokusek under arrest. Rokusek was cooperative throughout this process.

         Jansen drove Rokusek to the Clay County Courthouse, and requested Rokusek's consent for ablood sample, to which Rokusek agreed. At the courthouse, Rokusek was placed inside of a garage used by law enforcement Troopers called the "sally port." The sally port was under video surveillance, and the interactions between Rokusek and Jansen were caught on the video (hereinafter "Sally Port Video").[2] There is no audio.

         After Rokusek consented to the blood draw, Jansen removed his handcuffs. Rokusek was seated in a chair in the sally port. It was close to 1:00 sun. on April 15 at this point. The medical technician who would perform the blood draw, Staci Wuestewald, was present when Jansen and Rokusek arrived at the sally port. She was pregnant at that time.

         Upon notification that Ms. Wuestewald would be performing the blood draw, Rokusek changed his mind about consenting to the blood draw at the sally port because he thought it was unsanitary and that the blood draw should be done at the hospital. Jansen informed Rokusek that he would obtain a search warrant and the draw would be performed in the sally port.

         Jansen asked Rokusek to stand up to be placed in handcuffs again. Rokusek did not comply, despite Jansen's three repeated requests. After Rokusek disregarded Jansen's third request to stand, Jansen took hold of Rokusek by the arm and pulled him up into a standing position. Jansen placed his arms between Rokusek's arms and back so as to not lose control of Rokusek.[3] Jansen called this position the "double chicken wing." A double chicken wing is not taught by the South Dakota Highway Patrol. The Highway Patrol reprimanded Jansen for using this technique on Rokusek:

.. .You responded by "trapping both of his arms behind his back and forcing him to the ground while you' maintained control of his arms behind his back. Rokusek's face struck the floor causing an injury that required two stitches and the loss of teeth.
The method used to take Rokusek to the ground is not taught by the Highway Patrol or any law enforcement training provided to you by the Highway Patrol. The technique used to take Rokusek to the ground did not allow him any opportunity to protect himself from injury. Further, the Highway Patrol does teach tactics on how to take a resistant subject to the ground while maintaining control of the subject. These proper techniques of pain compliance and balance displacement are an effective means of controlling a resistant subject while minimizing potential for injury. Cody, you are much larger than Mr. Rokusek who was extremely intoxicated. Considering your training, size, and the level of resistance from Rokusek, your actions to control him were not reasonable and significantly increased the potential for injury.

See Doc. 57-4. Jansen testified that he knew at the time of the incident that the double chicken wing was not a permissible technique. According to Jansen, he warned Rokusek multiple times to stop resisting while holding him in the double chicken wing. Rokusek denies that a warning was made. Jansen also testified that he had complete control over Rokusek while Rokusek's head was against the wall. Jansen testified that he is 6'4 and'220 pounds. Rokusek ...


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