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Traversie v. Starr

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

January 30, 2018





         Plaintiff, Rocky Thomas Traversie, filed a pro se civil rights lawsuit under 42 U.S.C. § 1983 arguing that defendants used excessive force to detain him. Docket 1. Defendants moved for summary judgment and asked the court to stay discovery. Docket 31. The court granted the motion to stay discovery pending resolution of qualified immunity. Docket 38. For the following reasons, the court grants defendants' motion for summary judgment based on qualified immunity.


         On February 5, 2014, shortly after 7:00 am, Matthew Starr and Matthew Hanisch were dispatched to 3205 North Lewis Avenue in Sioux Falls, South Dakota. Starr was advised that a female had called 911 claiming to be held hostage. Docket 35 ¶ 1.[2] Starr was advised that the suspect, Traversie, had been accused of holding his family, two adult women and some children, hostage for approximately a day and a half and had been awake for approximately four days on a methamphetamine high. Id. ¶¶ 2-3. Starr and Hanisch were advised that one of the adult females had reportedly been assaulted by Traversie with a brick. Id. ¶ 4. En route, Starr was informed that Dave Dunteman would also respond to the call. Id. ¶ 5.

         Starr and Hanisch approached the apartment together, and a woman told them that Traversie had left the scene. Id. Starr searched the apartment to confirm that Traversie left. Id. ¶¶ 6-7. Then Dunteman told Hanisch and Starr that a vehicle matching the description of the vehicle Traversie used to leave the apartment had just pulled up outside. Id. ¶ 8. Starr and Hanisch went outside and saw Traversie get out of the vehicle and walk toward Starr. Id. ¶ 9.

         Starr calmly told Traversie he was not under arrest but would be detained while police investigated. Id. ¶ 10; Docket 34-1(A)[3] at 07:21:00. Then Traversie suddenly and unexpectedly struck Starr in the head with his fist. Docket 35 ¶ 11. Traversie claims Starr struck Traversie first with his baton. See Docket 40 at 8; see also, Docket 48 ¶ 2. But the side view video footage from Officer Dunteman's dash camera shows Traversie striking Officer Starr in the head first. Id. ¶ 12; Docket 34-1(B) at 07:21:28. Even in Traversie's version of events, he concedes that he struck Starr. Docket 40 at 8.

         Traversie danced up and down saying something like “let's go, come on, ” to Dunteman and Hanisch. Docket 35 ¶ 13; Docket 34-1(B) at 07:21:28. Then Traversie knocked Starr to the ground and got on top of Starr and repeatedly assaulted him. Docket 34-1(B) at 07:21:37. Dunteman tried to grab Traversie, but Traversie hit Dunteman in the head and knocked him to the ground. Docket 35 ¶ 15. When Dunteman hit the ground, he yelled out, indicating his arm was in severe pain. Id. ¶ 15. Starr regained consciousness and saw Dunteman lying on the ground yelling out in pain. Id. ¶ 16. According to Traversie, he only used his hands to defend himself. Docket 40 at 9.

         Hanisch engaged Traversie while Starr and Dunteman were lying on the ground. Id. ¶ 17; Docket 34-1(B) at 07:21:41. Hanisch used pepper spray toward Traversie's face and Traversie charged toward Hanisch. Docket 35 ¶17; Docket 34-1(B) at 07:21:47. Traversie repeatedly punched Hanisch. Docket 35 ¶ 18. Traversie hit Hanisch in the eye and knocked his glasses off, limiting his vision. Id. When Traversie hit Hanisch's left eye, Hanisch was immediately blinded in that eye. Id. Hanisch fell to the ground and Traversie got on top of Hanisch and proceeded to punch Hanisch repeatedly while Hanisch struck Traversie with his baton. Id.; Docket 34-1(B) at 07:21:48. Traversie had opportunities to flee the area, but Traversie stayed and continued to fight defendants. Docket 35 ¶ 22; see also Docket 48 at 1.

         Starr and Dunteman got up and assisted Hanisch. Docket 34-1(B) at 07:21:52. Dunteman used his baton making “a 12 to 6 motion” to strike or attempt to strike Traversie's head while Traversie walked backwards. Docket 48 at 3; see also Docket 34-1(B) at 07:21:31. Dunteman drew his service weapon and gave Traversie verbal instructions. Docket 34-1(B) at 07:22:20. Traversie continued to resist arrest, fight defendants, and ignore instructions. Docket 35 ¶ 19; Docket 34-1(B) at 07:22:09. Defendants drove Traversie to the ground. Docket 48 at 3. Once Traversie was on the ground, Traversie continued to ignore defendants' instructions to put his hands behind his back and defendants still had not restrained Traversie. Docket 34-1(B) at 7:22:20. According to Traversie, Dunteman kicked Traversie while Hanisch hit Traversie with his baton. Docket 48 at 4. Hanisch struck Traversie's head thirteen times with his baton. Id. at 2. Starr hit Traversie twice. Id.

         Traversie then stopped attacking defendants and defendants stopped using force against Traversie. Docket 34-1(B) at 07:22:50-07:27:23. Instead, defendants gave repeated commands to Traversie but Traversie ignored the commands. Docket 34-1(A) at 07:23:29-07:24:35. Defendants instructed Traversie to get on the ground, but Traversie did not while shouting profanities at defendants. Docket 35 ¶ 23.

         Several additional police officers arrived and instructed Traversie to get on the ground. Docket 34-1(B) at 07:27:24. Traversie refused to comply and swung at an officer. Id. Other officers moved in and took Traversie to the ground. Id. Traversie continued to resist arrest while officers apprehended him. Docket 35 ¶24. Later Starr stated, “I was the first to hit [Traversie].” Docket 48 at 2; Docket 34-1(B) at 07:31:50.

         Starr sustained injuries and received treatment at the Sanford Hospital emergency room. Docket 35 ¶ 25. Starr's injuries included swelling to his face and jaw, severe headache, ringing in his ears, lacerations to his right elbow, scratches on his arms, swelling to his left hand, injured lower back and injured buttocks. Id. Emergency room staff cut off Starr's wedding ring due to swelling. Id. Starr was required to miss several days of work due to his injuries. Id. Hanisch sustained two separate orbital fractures that required surgery to correct. Id. ¶ 18.

         Traversie sustained a head wound that required nine staples, a broken left hand, and swelling in both hands. Docket 48 at 4. He also alleges that he sustained mental and emotional injury. Id. at 5.


         Summary judgment is appropriate if the movant “shows 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 moving party can meet this burden by presenting evidence that there is no dispute of material fact or by showing that the nonmoving party has not presented evidence to support an element of its case on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). To avoid summary judgment, “[t]he nonmoving party may not rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.” Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005) (citation omitted and quotation marks).

         Prisoners who proceed pro se are entitled to the benefit of liberal construction at the pleading stage. Quam v. Minnehaha Cty. Jail, 821 F.2d 522, 522 (8th Cir. 1987). Nonetheless, the summary judgment standard set forth in Rule 56 of the Federal Rules of Civil Procedure remains applicable to prisoners proceeding pro se. Id. The district court is not required to “plumb the record in order to find a genuine issue of material fact.” Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 260 (8th Cir. 1996). Courts must remain sensitive, however, “to the special problems faced by prisoners attempting to proceed pro se in vindicating their constitutional rights, and [the Eighth Circuit does] not approve summary dismissal of such pro se claims without regard for these special problems.” Nickens v. White, 622 F.2d 967, ...

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