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Kasselder v. City of Mitchell

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

May 24, 2018

HON KASSELDER, SPECIAL ADMINISTRATOR AND PERSONAL REPRESENTATIVE OF THE ESTATE OF CURTIS JAMES MEYER; Plaintiff,
v.
CITY OF MITCHELL, A MUNICIPAL CORPORATION; RUSSELL STEVENSON, INDIVIDUALLY; LYNDON OVERWEG, INDIVIDUALLY; AND DOES 1-3, INDIVIDUALLY AS POLICE OFFICERS AND ADMINISTRATORS FOR THE CITY OF MITCHELL; Defendants.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT IN PART AND DENYING IN PART

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Plaintiff, Hon Kasselder on behalf of the estate of Curtis James Meyer, filed a complaint under 42 U.S.C. § 1983 alleging violations of Meyer's civil rights and various state law claims. Docket 1. Defendants City of Mitchell, Russell Stevenson, Lyndon Overweg, and administrators for the City of Mitchell filed a motion for summary judgment claiming qualified immunity. Docket 10.

         FACTUAL BACKGROUND

         Viewing the facts in the light most favorable to the nonmoving party: In September 2015, Meyer was a resident of Mitchell, South Dakota. Docket 16 ¶ 1. Defendant Officer Stevenson was an officer with the Mitchell Police Department in September 2015. Docket 17 ¶ 1. Meyer had been in an on-again-off-again dating relationship with a woman named Kendra Johnson. Docket 16 ¶ 4. On the afternoon of September 3, 2015, Johnson sent Meyer a snapchat breaking up with him. Id. ¶ 6. Meyer was upset and repeatedly attempted to reach Johnson. Id.

         In the evening of September 3, 2015, Johnson and three of her friends encountered Meyer at a local Mitchell bar. Id. ¶ 7. They described Meyer as being very drunk. Id. When Johnson and her friends left the bar they offered to drive Meyer home, and he accepted. Id. Johnson and her friends then drove Meyer to his home and dropped him off. Id. The women then went to 515 North Mentzer Street in Mitchell where Johnson and one of her friends lived. Id. ¶ 8. Two other men, including Warren Clark, arrived at the home and a total of five people played music and beer pong in the garage of the house. Id. ¶ 8-9.

         After getting dropped off at his home, Meyer repeatedly called and texted Johnson but she did not answer. Id. ¶ 10. Several of Johnson's friends did answer Meyer's calls and one of Johnson's friends described Meyer as sounding calm, sad, drunk, and insistent on talking to Johnson. Id. Eventually, Johnson blocked Meyer's calls. Id. Meyer then called one of Johnson's friends. Id. The last call he made to Johnson's friend was at 1:48 A.M. on September 4, 2015. Id. ¶ 12. At that time, Clark talked to Meyer on the phone and Meyer informed Clark that he was outside the garage. Id. ¶ 13. Clark then went outside to talk to Meyer. Id. Clark found Meyer sitting alone in the dark by a nearby garage and laid down on the grass to talk to Meyer. Id. ¶ 14. While they talked, Clark noticed that Meyer had a gun. Id. During the conversation, Clark and Meyer talked about relationships and Meyer did not make any threats against himself or others. Id. ¶¶ 14-15.

         On September 4, 2015, Officer Stevenson received a noise complaint for the 500 block of Mentzer Street in Mitchell, South Dakota. Docket 17 ¶ 2. Officer Stevenson was accompanied by Officer Casey Tegethoff as his training officer. Id. Both Stevenson and Tegethoff were dressed in standard, dark navy service uniforms with badges and name plates. Id. When Officer Stevenson and Officer Tegethoff arrived at the 500 block of Mentzer Street, they identified 515 Mentzer Street as the source of the noise complaint because Officer Stevenson believed there was a house party at the location. Id. ¶ 3. As the officers started to approach the home, a flood light in the alley turned on. Docket 13-2 at 3. While the officers waited for the flood light to turn off, Officer Stevenson noticed an older man in a white t-shirt walking down the nearby alley holding a Coors Light in his hand. Docket 17 ¶ 4; Docket 13-2 at 3. The man would later be identified as Warren Clark. Docket 17 ¶ 4. Officer Stevenson and Officer Tegethoff then approached the home. Id. ¶ 5.

         Officer Stevenson states that he then double tapped his body camera and believed it was recording. A later DCI investigation found that during an independent review of the body camera “no files [were found] in the memory of the camera. . . . [and] finding no files in the camera would indicate the camera had been properly uploaded.” Docket 20-4 at 12-13. Officer Tegethoff and Officer Stevenson made contact with several people sitting in the garage of the home. Docket 17 ¶ 6. At this point, Officer Stevenson believed the party was an underage drinking party. Docket 13-2 at 3. Officer Stevenson asked an attendee where the man in the white shirt went, and the attendee indicated that Clark exited the garage and walked west down the alley. Docket 17 ¶ 8. Officer Stevenson exited the garage to talk with Clark while Tegethoff stayed in the garage. Id. ¶ 9. Officer Stevenson found Clark lying in the grass. Id. ¶ 9. He approached Clark with his flashlight in his left hand and asked him to come back into the garage, and Clark complied. Docket 16 ¶ 35. He did not identify himself as a police officer to Clark. Docket 13-2 at 3-4. The area in the alley was dimly lit. Docket 16 ¶ 42.

         Officer Stevenson asked Clark why he was lying in the grass and he stated that he was talking to his friend. Docket 17 ¶ 10. Clark then pointed out his friend to Officer Stevenson. Docket 20-3 at 21. The friend was Meyer. Id. Officer Stevenson would not have seen Meyer without Clark pointing him out because of where Meyer was sitting. Docket 16 ¶ 38. Meyer was reportedly sitting with his legs crossed near the garage. Id. Officer Stevenson states that he asked Meyer to come back to the garage and Meyer refused. Docket 20-3 at 21-22. Officer Stevenson states that he then saw the firearm between Meyer's legs. Id. at 22.

         At this point, Officer Stevenson has provided a few variations of what transpired when Officer Stevenson tried to obtain the gun from Meyer. Officer Stevenson has previously stated that he asked Meyer about the gun “as he was reaching to secure the gun.” Docket 20-3 at 22. But he has also claimed that he asked Meyer about the gun and Meyer replied, “That's my forty-five” at which point Meyer began to point the gun toward Officer Stevenson. Docket 13-1 ¶¶ 14-15. And Officer Stevenson has also testified that he told Meyer “give me the gun” or “stop” when Meyer would not let go of the gun. Docket 16 ¶ 47. No. one reports hearing Officer Stevenson say anything to Meyer. Docket 17 ¶ 12. And Officer Stevenson acknowledges that he did not identify himself as a police officer to Meyer. Docket 16 ¶ 41. Officer Stevenson also previously said that he did not recall saying anything to Meyer and did not recall Meyer saying anything to him. Docket 16 ¶ 54.

         Officer Stevenson and Meyer then struggled for control of the gun. Docket 17 ¶ 15. Officer Stevenson maintains that he could not use his radio because someone else was on the radio. Id. at 9; Docket 13-2 at 4. Stevenson has also stated that he did not feel comfortable reaching for his own gun because he thought he would lose control of Meyer's gun. Docket 17 ¶ 15. During the struggle, Meyer was on the ground and Officer Stevenson was either standing over the top of Meyer or kneeling next to Meyer. Docket 13-2 at 6. Officer Stevenson testifies that he eventually felt the grips on the weapon and pulled the trigger. Docket 17 ¶ 20. Officer Stevenson shot Meyer under his chin. Docket 16 ¶ 60. At that point, Meyer fell and released the gun. Id. ¶ 21. At 1:52 A.M. Officer Stevenson radioed dispatch, informed them of shots fired, and requested medical assistance. Docket 17 ¶ 21. After the request for assistance, a few officers arrived. Docket 16 ¶ 18. Tegethoff, Clark, and the other partygoers stated that they did not hear anything other than the gunshot. Docket 16 ¶¶ 64-65.

         STANDARD OF REVIEW

         Summary judgment is proper “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). “[A] party seeking summary judgment always bears the initial responsibility of . . . demonstrat[ing] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party must inform the court of the basis for its motion and also identify the portion of the record that shows there is no genuine issue in dispute. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citation omitted).

         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) (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). “[T]he mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment . . . . Instead, ‘the dispute must be outcome determinative under prevailing law.' ” Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (quoting Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989)). On a motion for summary judgment, the facts and inferences drawn from those facts are “viewed in ...


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