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Engesser v. Fox

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

September 23, 2019





         This civil case originated in a tragic vehicle accident. Plaintiff Oakley Engesser and Dorothy Finley were in a Corvette that crashed into another vehicle on Interstate 90 near Sturgis, South Dakota, on July 30, 2000. Ms. Finley was killed in the accident. Plaintiff was convicted of vehicular homicide and vehicular battery in South Dakota state court and served at least 11 years in state prison before receiving state habeas relief. Plaintiff now brings this action under 42 U.S.C. § 1983 seeking damages for constitutional violations he alleges defendants committed in relation to the investigation and prosecution of his criminal case. Defendants seek summary judgment and plaintiff resists the motions. (Dockets 57, 73, 77 & 89). Defendants' summary judgment motions were referred to Magistrate Judge Veronica L. Duffy pursuant to the court's standing order of October 16, 2014, and 28 U.S.C. § 636(b)(1) for a report and recommendation (“R&R”). The magistrate judge issued an R&R concluding summary judgment should be granted on all claims pertaining to defendant Michael Kayras and the Meade County defendants, [1] but plaintiff's reckless investigation claim against defendant Edward Fox should proceed. (Docket 112). Plaintiff and defendant Fox timely objected to the R&R and each filed a response to the other's objections. (Dockets 115, 117, 120 & 121).

         Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections to the magistrate judge's proposed findings and recommendations, the district court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. The court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. The court concludes defendant Fox is entitled to qualified immunity on plaintiff's reckless investigation claim and agrees with the magistrate judge's disposition of the remaining claims. Accordingly, the court sustains defendant Fox's objections to the R&R, overrules plaintiff's objections, and grants summary judgment to defendants. The court adopts the R&R in part and rejects it in part, consistent with this order.

         I. Surviving Claims

Plaintiff named seven defendants in his amended complaint and alleged seven substantive counts. (Docket 15). The court previously dismissed many of plaintiff's claims, including all of his claims grounded in South Dakota law and his claims against the state of South Dakota. (Docket 38). The court summarized the surviving claims, which are all brought under § 1983, as follows:

1. A substantive due process claim against defendants Fox and Kayras for reckless investigation and manufactured evidence;
2. A procedural due process claim against defendants Fox and Kayras under Brady[2] for destroying evidence;
3. A Monell[3] claim against Meade County;
4. A failure to supervise claim against defendant Kayras; and
5. A conspiracy claim against defendants Fox, Kayras and the Meade County defendants.

(Docket 38 at pp. 37-38).

         II. Facts

         The magistrate judge made extensive factual findings. (Docket 112 at pp. 2-23). Defendant Fox objected to portions of these findings. (Docket 115 at pp. 4-10). Because the court determines defendant Fox is entitled to qualified immunity, many of these factual disputes are immaterial and the court declines to settle them. See infra Section IV. Accordingly, the court cannot adopt the R&R's factual recitation in full. Instead, the court sets forth basic facts below and discusses additional facts in the order where pertinent. These facts are “viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation omitted).

         On July 30, 2000, plaintiff and Ms. Finley were driving in Ms. Finley's Corvette on Interstate 90 when they crashed into another vehicle. State v. Engesser, 661 N.W.2d 739, 743 (S.D. 2003) (“Engesser I”).[4] The Corvette was traveling approximately 112 miles per hour before the collision. Id. at p. 744. A later blood test showed that plaintiff's blood alcohol concentration would have been approximately .125 at the time of the collision. Id. at p. 745. Plaintiff was thrown from the vehicle and found near the driver's side door.[5] (Docket 99 at ¶ 3). Ms. Finley was found dead inside the vehicle. Id. at ¶ 4.

         It is disputed who arrived first on the scene of the accident. (Docket 115 at p. 9). However, it is not disputed that a No. of civilian witnesses and emergency medical personnel arrived on scene before law enforcement. (Dockets 99 at ¶¶ 6, 8, 10, 25 & 87 at ¶ 36). Paramedic Aaron Zimmiond found Ms. Finley in the passenger side of the Corvette. (Dockets 99 at ¶ 4 & 76-9). He instructed other first responders to remove Ms. Finley's body from the Corvette. (Docket 76-9). At some point before law enforcement arrived on scene, the driver's side door of the Corvette was opened. (Docket 99 at ¶ 8). Defendant Fox, a South Dakota State Highway Patrol Trooper, and defendant Kayras, a sergeant with the State Highway Patrol and defendant Fox's supervisor, arrived on scene with other law enforcement officers after Ms. Finley's body had been removed from the Corvette. Id. at ¶¶ 5, 6, & 10. Plaintiff was being transported to the hospital at that time. Id. at ¶ 11. Defendant Kayras chose defendant Fox to lead the investigation. Id. at ¶ 12. Defendant Fox took witness statements on scene from several individuals, including Eric Eckholm and Charlotte Delaney Fowler.[6] Id. at ¶¶ 13, 25. Mr. Eckholm made a written statement in which he did not state if he observed who was driving the Corvette. (Docket 61-2). Ms. Delaney Fowler did not write a statement. Defendant Fox testified in a deposition for this litigation that Ms. Delaney Fowler “did not see anything” related to the collision and he did not ask her to write a statement. (Docket 109 at p. 49).

         Following the accident, defendant Fox arranged for the Corvette to be impounded with a local facility. (Docket 99 at ¶ 34). The facility stored the Corvette outside and uncovered. Id. at ¶ 36. The facility allowed Ms. Finley's family members to access the Corvette “in order to find [her] identification card.” Id. at ¶ 62. Ms. Finley's daughter, Becky Feist, accessed the Corvette and apparently brought a wrongful death suit against plaintiff.[7] (Dockets 89 at pp. 11-12 & 99 at ¶ 63). Plaintiff asserts Ms. Feist “had a financial interest in placing [him] behind the wheel.” (Docket 89 at p. 12). Ms. Feist stated her brother found Ms. Finley's purse on the passenger's side of the Corvette. (Docket 99 at ¶ 63). Neither defendant Fox nor defendant Kayras permitted Ms. Finley's family to access the Corvette.[8] Id. at ¶ 64.

         A law enforcement expert, Rex Riis, examined the Corvette on August 23, 2000. Id. at ¶ 49. Mr. Riis removed the passenger side sun visor from the Corvette because he observed a gray hair on it. Id. at ¶ 56. He also observed blood on the sun visor.[9] Id. at ¶ 51. Mr. Riis did not test the hair because it lacked a follicle and did not test the blood on the sun visor “because he felt the forensic value to be low because the blood was located where [Ms.] Finley's head would have been.” Id. at ¶¶ 51, 57. The state lost the sun visor after plaintiff's trial and it is unavailable today. Id. at ¶ 60.

         Defendant Fox interviewed plaintiff on September 13, 2000. Id. at ¶ 74. He recorded the interview on a videocassette. Id. at ¶ 72. The recording was sent to plaintiff's trial counsel. Id. at ¶ 73. That recording was the only video law enforcement possessed concerning the accident or plaintiff's criminal case.[10] Id. at ¶ 75.

         The state indicted plaintiff on charges of vehicular homicide and vehicular battery and he proceeded to trial in 2001. Id. at ¶¶ 71, 77. The “sole issue at the trial was whether” plaintiff or Ms. Finley was driving the Corvette. Engesser v. Young, 856 N.W.2d 471, 473 (S.D. 2014) (“Engesser II”). No. trial witness “testified to seeing the driver of the Corvette.” Id. Defendant Fox testified he concluded plaintiff was the driver. Id. The jury convicted plaintiff and the trial court sentenced him to 25 years in prison. Engesser I, 662 N.W.2d at 745.

         After his conviction, plaintiff undertook a series of habeas actions. See Engesser II, 856 N.W.2d at 474-78. During these actions, plaintiff uncovered a substantial amount of evidence tending to show Ms. Finley may have been driving the Corvette during the accident. For example, Mr. Eckholm testified he observed a woman driving the Corvette. (Docket 99 at ¶ 89). Mr. Eckholm also testified he used female pronouns to refer to the driver when he spoke with law enforcement at the scene of the accident. (Dockets 58 at ¶ 91 & 99 at ¶ 91). Ms. Delaney Fowler testified she did not see who was driving the Corvette at the time of the accident but that she had seen Ms. Finley driving the Corvette earlier in the day. (Docket 99 at ¶¶ 94-95). She also testified that she believed she mentioned to law enforcement on scene that a woman was driving. Id. at ¶ 97. Two additional witnesses, Phillip Syverson and Ramona Dasalla, testified in habeas proceedings that a woman was driving the Corvette shortly before the accident. Id. at ¶¶ 111-12, 115-16. Law enforcement was unaware of both witnesses before plaintiff's criminal trial. Id. at ¶¶ 114, 117.

         In 2014, the South Dakota Supreme Court, relying on the evidence accumulated in his habeas actions, concluded plaintiff established “no reasonable juror would have found him guilty” of the criminal offenses for which he was convicted. Engesser II, 856 N.W.2d at 484. This § 1983 case followed, alleging defendants violated plaintiff's constitutional rights in the investigation and prosecution of his criminal case and seeking damages. (Docket 1).

         III. Legal Standards

         A. Summary JUDGMENT

         Under Federal Rule of Civil Procedure 56(a), a movant is entitled to summary judgment if the movant can “show 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). Once the moving party meets its burden, the nonmoving party may not rest on the allegations or denials in the pleadings, but rather must produce affirmative evidence setting forth specific facts showing that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Only disputes over facts which might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Id. at 248. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48 (emphasis in original).

         If a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id. However, the moving party is entitled to judgment as a matter of law if the nonmoving party failed to “make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In such a case, “there can be ‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323.

         In determining whether summary judgment should issue, the facts and inferences from those facts must be viewed in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88. The key inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.

         B. Qualified immunity

         “Public officials are immune from suit under 42 U.S.C. § 1983 unless they have violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” City & Cty. of San Francisco, Calif. v. Sheehan, 135 S.Ct. 1765, 1774 (2015) (internal quotation omitted). Resolving questions of qualified immunity requires undertaking two inquiries. The first asks: “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, the court must “ask whether the right was clearly established.” Id. A negative outcome to either inquiry results in qualified immunity for the official. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

         “A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (internal quotation omitted). There need not be “a case directly on point for a right to be clearly established” but “existing precedent must have placed the statutory or constitutional question beyond debate.” Kisela v. Hughes 138 S.Ct. 1148, 1152 (2018) (internal quotation omitted). The Supreme Court “repeatedly told courts . . . not to define clearly established law at a high level of generality.” Id. (internal quotation omitted). “[T]he clearly established law must be particularized to the facts of the case.” White v. Pauly, 137 S.Ct. 548, 552 (2017) (internal quotation omitted). “The plaintiffs have the burden of showing that the law was clearly established.” Estate of Walker v. Wallace, 881 F.3d 1056, 1060 (8th Cir. 2018).

         “[Q]ualified immunity is important to society as a whole[.]” Pauly, 137 S.Ct. at 551 (internal quotation omitted). Accordingly, “[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments and protects all but the plainly incompetent or those who knowingly violate the law.” Stanton v. Sims, 571 U.S. 3, 6 (2013) (internal quotations omitted). “Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Ambrose v. Young, 474 F.3d 1070, 1077 (8th Cir. 2007).

         IV. Defendant Fox's Objections

         The magistrate judge recommended denying defendant Fox's summary judgment motion as it pertains to plaintiff's reckless investigation claim. (Docket 112 at pp. 41-49). Defendant Fox objects to the factual and legal underpinnings of this recommendation. (Docket 115). In particular, he argues the magistrate judge erred in finding he violated plaintiff's substantive due process rights by recklessly investigating the circumstances of the accident and in finding plaintiff showed the right was clearly established at the time of the alleged violation. Id. at pp. 12-18. The court agrees with ...

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