United States District Court, D. South Dakota, Southern Division
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
E. SCHREIER UNITED STATES DISTRICT JUDGE.
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.
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 ¶
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.
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.
calmly told Traversie he was not under arrest but would be
detained while police investigated. Id. ¶ 10;
Docket 34-1(A) 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.
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.
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.
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.
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.
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.
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.
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.
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
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, ...