Zubrod et al v. Hoch et al

Filing 92

ORDER granting 41 Motion for Summary Judgment. See text of Order. Signed by United State Magistrate Judge C.J. Williams on 01/08/2017. (Gollhofer, Jami)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
LARRY ZUBROD, et al.,
Plaintiffs,
vs.

No. 15-CV-02065-CJW
MEMORANDUM OPINION AND
ORDER

SHAYNE HOCH, et al.,
Defendants.
____________________
Table of Contents
I.  INTRODUCTION ....................................................................................... 2 
II. 

PROCEDURAL HISTORY ......................................................................... 2 

III. 

UNDISPUTED FACTS ............................................................................. 4 

IV. 

SUMMARY JUDGMENT STANDARDS....................................................... 15 

V. 

EXCESSIVE USE OF FORCE STANDARDS ................................................ 16 

VI.

EXCESSIVE USE OF FORCE AND TASERS ................................................ 19 

VII. QUALIFIED IMMUNITY ......................................................................... 22 
VIII.

DISCUSSION ....................................................................................... 23 

A. 

Whether Deputy Hoch Used Excessive Force ............................................... 24 

B. 

Whether Deputy Hoch is Entitled to Qualified Immunity ................................ 34 

C. 

Whether Deputies Short and Smith are Liable for Failing to Intervene ............... 36 

D. 

Whether Sheriff Langenbau and Worth County Are Vicariously Liable .............. 38 

E.

Jurisdiction Over Plaintiffs’ State Law Claims ............................................... 40 

F.

Plaintiffs’ Loss of Consortium Claim ........................................................... 41 

IX.

CONCLUSION ....................................................................................... 41 

I.

INTRODUCTION

This matter is before the Court pursuant to defendants’ motion for summary
judgment. Doc. 41. Plaintiffs resist the motion for summary judgment. Doc. 68.
Defendants filed a reply brief. Doc. 86. On November 29, 2016, the Court heard oral
argument on the motion.

For the reasons that follow, the Court grants defendants’

motion for summary judgment.
II.

PROCEDURAL HISTORY

On July 29, 2015, plaintiffs Larry and Cheryl Zubrod, individually, and as
Administrators for the Estate of Michael Zubrod (Zubrod), commenced this lawsuit by
filing a complaint in this Court. Doc. 2. Plaintiffs generally allege that on September
22, 2013, Worth County Sheriff’s deputies responded to a report of a domestic
disturbance at a house in Northwood, Iowa. Inside, they encountered Zubrod attacking
a woman with a hammer. Plaintiffs allege the deputies overpowered Zubrod after a
struggle, during which the deputies repeatedly used a Taser on Zubrod, both before and
after deputies had placed him in handcuffs.

Plaintiffs allege that after handcuffing

Zubrod, they discovered Zubrod was no longer breathing.

Hospital personnel later

pronounced Zubrod dead.
Plaintiffs’ complaint consists of seven counts. In Count I, plaintiffs bring a Title
42, United States Code, Section 1983 claim against Deputy Shayne Hoch (Deputy Hoch)
alleging a violation of Zubrod’s Fourth Amendment Rights. Doc. 2, at 5-7. In this
count, which plaintiffs subtitle “First Grouping of Taser Bursts,” they allege Deputy
Hoch violated Zubrod’s constitutional rights “by utilizing excessive force while
punitively and sadistically using a Taser on him at length while he lay in a prone position
2

on the ground and posed no reasonable risk of harm or safety to any officer or other
individuals present.” Id., at 5-6.
In Count II, plaintiffs bring another Section 1983 claim against Deputy Hoch,
again alleging a violation of Zubrod’s Fourth Amendment rights. Doc. 2, at 8-10. In
this count, which plaintiffs subtitle “Second Grouping of Taser Bursts,” they allege
Deputy Hoch again violated Zubrod’s constitutional rights “by utilizing excessive force
while punitively and sadistically using a Taser on him multiple times at length while he
lay restrained with handcuffs and otherwise posed no reasonable risk of harm or safety
to any officer or other individuals.” Id., at 8.
In Count III, plaintiffs bring a Section 1983 claim against Deputies Isaac Short
(Deputy Short) and John Smith (Deputy Smith), alleging they also violated Zubrod’s
Fourth Amendment rights. Doc. 2, at 10-12. Subtitled “Bystander Liability – Failure
to Intervene” in Count III, plaintiffs allege Deputies Short and Smith violated Zubrod’s
constitutional rights when they observed Deputy Hoch use excessive force and failed to
intervene.
In Count IV, plaintiffs bring a state law assault and battery cause of action against
Deputy Hoch. Doc. 2, at 13.
In Count V, plaintiffs allege Deputies Hoch, Short, and Smith were negligent,
causing Zubrod’s injuries and death. Doc. 2, at 14.
In Count VI, plaintiffs bring a claim against Sheriff Jay Langenbau (the Sheriff)
and Worth County (the County), under the respondeat superior doctrine, alleging they
are vicariously liable for the negligent actions of Deputies Hoch, Short, and Smith.
Doc. 2, at 14-15.

3

Finally, in Count VII, plaintiffs bring a loss of consortium claim against all
defendants, alleging defendants caused plaintiffs to lose Zubrod’s services,
companionship, and society. Doc. 2, at 15-16.
III.

UNDISPUTED FACTS

Based on the parties’ respective filings,1 the Court finds that the facts set forth
below, unless otherwise noted, are undisputed for purposes of the motion for summary
judgment.
Relevant Parties.
Plaintiff Larry Zubrod was a resident of Chickasaw County, Iowa, and is the father
of Michael Zubrod. Cheryl Zubrod was a resident of Chickasaw County, Iowa, and is
the mother of Michael Zubrod.

Together, Larry and Cheryl Zubrod serve as

administrators of Michael Zubrod’s estate.

Defendant Deputies Hoch, Short, and Smith

were all Iowa residents and employees of the Worth County Sheriff’s Office. Defendant
Jay Langenbau was an Iowa resident and Sheriff of Worth County. Worth County was
a county corporation existing under the laws of the State of Iowa and operated the Worth
County Sheriff’s Office.

1

Plaintiffs objected to a number of defendants’ statements of undisputed fact, arguing they failed
to comply with Local Rule 56(a), which provides: “Each individual statement of material fact
must be concise [and] numbered separately . . ..” LR 56(a). Plaintiffs argue that many of
defendants’ numbered paragraphs contain numerous statements and asks the Court to strike these
statements. The Court denies plaintiffs’ requests. Defendants’ statements of undisputed facts
are relatively concise (though many contain gratuitous descriptions and conclusions) and
substantively comply with the letter and spirit of Local Rule 56(a).
4

At the time of these events, Michael Zubrod was 5’8” and weighed 196 pounds.
Deputy Short stood 5’9” and weighed approximately 155 pounds. Deputy Hoch was
5’8” or 5’9” tall and weighed between 210 and 220 pounds. Deputy Smith was 5’7”
tall and weighed approximately 220 pounds. None of the deputies knew Zubrod from
before this night and had no personal knowledge about his drug use or mental history.
Relevant Events.
On the night of September 22, 2013, Deputy Short was on duty patrolling in
Northwood, Iowa. 2 At approximately 11:23 p.m., Deputy Short advised the Worth
County dispatch operator that concerned citizens had stopped him to report they heard
screaming from a neighbor’s house located at the intersection of 3rd and 4th Streets.
When Deputy Short arrived at the house, he heard a woman screaming from inside the
house. He told dispatch the address of the house and described it as Sheila Olson’s
house; in fact, he was at Rhonda Schukei’s house, Olson’s sister. 3 Deputy Short was
aware of some law enforcement intelligence suggesting that Rhonda Schukei may have
been a drug user and her residence was suspected as being a drug house, meaning law
enforcement officers believed drug use activity may be occurring in the house. Law
enforcement officers believed methamphetamine to be the number one drug of abuse in
Northwood, Iowa, in 2013.

2

Deputy Short was a relatively new law enforcement officer, having been on the force only a
few months and was not yet certified because he had not yet attended the law enforcement
academy. He had received only 45 days of field training and had been conducting solo patrols
since the middle of July.

3 Rhonda Schukei’s house (location of the events at issue) was very close to Sheila Olson’s

house.
5

Deputy Short told dispatch he was going inside and requested backup.

At

approximately 11:29 p.m., Deputy Hoch radioed dispatch that he was en route to assist
Deputy Short. Dispatch attempted to contact Deputy Hoch twice at approximately 11:30
p.m., but was unable to reach him by radio. Dispatch radioed Deputy Hoch to “step it
up,” which he understood to mean to rush more quickly to the scene. Deputy Hoch
sped to the scene.
At some point while entering the house, Deputy Short drew his handgun out of its
holster. The house had two stories. Deputy Short did not encounter anyone on the
ground floor. He heard a woman screaming from upstairs, so he climbed the stairs.
Once upstairs, Deputy Short heard the screams coming from the bedroom facing the front
of the house. The door to the bedroom was shut. Deputy Short tried to open the door,
but it was locked. He kicked in the door.
The lights were off in the bedroom, but by moonlight coming in through the
window, Deputy Short saw Zubrod standing above someone on the ground and saw that
Zubrod had something in his hand. Deputy Short found a light switch and turned on the
light.

Deputy Short saw Rhonda Schukei laying face up on the ground.

She was

bleeding. Zubrod was above her striking her in the face with a hammer. Zubrod was
himself bloody. Zubrod was screaming “die bitch, you’re gonna die!”
Deputy Short managed to radio in a “10-33” call into dispatch, which is an
emergency code essentially requesting all law enforcement personnel to rush to his aid.
Deputy Hoch, still en route to the house, attempted to ask Deputy Short if he was okay,
but could not make out Deputy Short’s reply.

6

Deputy Short, still holding his handgun, yelled at Zubrod to step away from the
victim.

That was the last thing the victim remembered from the scene. 4

stepped away from the victim, dropping the hammer.
handgun at that point and withdrew his Taser.

Zubrod

Deputy Short holstered his

Zubrod then said something about finding

a gun and began to reach down under the bed. When Zubrod stood back up, however,
he did not have anything in his hands.

Zubrod then reached over to the headboard,

grabbed a pair of scissors, and tried to kill the victim by stabbing her in the neck as she
lay on the floor, leaving the scissors sticking out of her neck. Deputy Short fired his
Taser, but only one of the two barbs struck Zubrod in the left arm; the other barb missed.5
The Taser can cause neuromuscular incapacitation only if both barbs make contact with
the body. Deputy Short pulled the cartridge from the Taser in an attempt to use the
Taser in drive-stun mode.
At this point, Zubrod grabbed a pair of needle-nose plyers from a dresser and
came at Deputy Short. Zubrod began to physically fight Deputy Short. During the
struggle, Deputy Short either dropped the Taser or it was knocked out of his hands.
There is no evidence Deputy Short was ever able to make contact with the Taser on
Zubrod’s body.6
The victim, Rhonda Schukei, underwent twenty hours of reconstructive surgery to repair her
shattered face; she continues to suffer brain damage from the attack.

4

5

Plaintiffs insist that Deputy Short hit Zubrod with both Taser barbs. Doc. 68-2, ¶29. The
Court finds no support in plaintiffs’ citations to the record to support this assertion. In any
event, it is not material as it is undisputed that whether Deputy Short hit Zubrod with one or two
Taser barbs, Deputy Short did not successfully tase Zubrod.

6

Plaintiffs claim Deputy Short “was able to drive stun Michael Zubrod on the upper left torso.”
Doc. 68-2, ¶ 33. Again, the Court could find no support for this contention in plaintiffs’
citations to the record, and finds the uncontested evidence clearly shows Deputy Short was never
able to drive-stun Zubrod.
7

The struggle spilled out into the hallway. During the struggle, Deputy Short was
able to steer Zubrod’s body further away from the victim and part way into another
bedroom. The two of them went to the ground in the doorway of another bedroom.
Deputy Short was able to get Zubrod on his back and get on top of Zubrod. Deputy
Short was able to hold Zubrod’s wrists.

Zubrod fought back, attempting to buck Deputy

Short off of him and attempted to stab Deputy Short in the leg with the plyers. Deputy
Short was able to force or “rip” the plyers out of Zubrod’s hand. Zubrod continued to
resist and attempted to get away from Deputy Short. Deputy Short testified that Zubrod
had a look of pure evil in his eyes and was grunting and making noise throughout the
struggle.
Zubrod was covered in sweat and the victim’s blood, making it difficult for Deputy
Short to hold onto Zubrod. Zubrod continued to scream and yell, including “Die, bitch,
you’re gonna die.” Deputy Short placed a knee on Zubrod’s chest, allowing him enough
leverage to secure a handcuff on Zubrod’s left wrist.

Zubrod continued to resist,

however, and Deputy Short was unable to secure the handcuffs to Zubrod’s other wrist.
A loose handcuff on one wrist is considered a weapon because a suspect can use it to
harm another person in a struggle.
As Deputy Short continued to struggle to stay on top of Zubrod and control his
hands, Zubrod taunted Deputy Short, stating that Deputy Short was getting tired but that
he, Zubrod, was not. Deputy Short considered using pepper spray, but decided against
it because in the enclosed space, it would affect him as much as Zubrod. Deputy Short
also considered using his ASP baton, but again decided against it because if he lost control
of the weapon Zubrod could use it against Deputy Short or the victim. Deputy Short
struggled to stay on top of Zubrod and hold on to his wrists for about eight minutes before
8

Deputy Hoch arrived. Deputy Short later testified that he was getting both mentally and
physically tired trying to secure Zubrod.7
At some point during this struggle, Deputy Short was able to radio dispatch to
state there was a lot of blood and there was one person on the ground. Dispatch radioed
Northwood Rescue to respond to the scene.

Deputy Short radioed that medical

personnel should not enter the house because he did not have Zubrod under control.
When Deputy Hoch arrived at the scene, he saw rescue personnel outside Sheila Olson’s
house and realized Deputy Short had incorrectly described whose house he was in when
initially radioing dispatch. Deputy Hoch, however, entered the correct house and went
up to the second floor.

There, Deputy Hoch saw the victim covered in blood and

moaning in one bedroom, and saw Deputy Short struggling to stay on top of and keep
control of Zubrod partway in another bedroom.

Deputy Hoch radioed for medical

personnel to come to the victim’s aid immediately, despite the fact Zubrod was not yet
secured.
Deputy Hoch ordered Zubrod to turn over and place his hands behind his back.
Zubrod attempted to spit, but the spit mostly fell on Zubrod’s own face. As Deputy
Short let go of Zubrod in order to handcuff him and allow Zubrod to turn over in
compliance with Deputy Hoch’s order, Zubrod got lose and stood up. At this point,
7

Plaintiffs claim Deputy Short “maintained a position of control over Michael Zubrod until
Hoch arrived to the second floor of Schukei’s residence.” Doc. 68-2, ¶42. See also Doc. 682, ¶ 43 (“When Hoch arrived, Short had Michael Zubrod under control . . ..”); Doc. 68-2, ¶
47 (“Despite Short having good control over Michael Zubrod, Hoch sought to drive stun Michael
Zubrod after seeing Schukei’s condition.”). The Court does not find that plaintiffs’ citations to
the record support a finding that Deputy Short ever had Zubrod under control. Deputy Short,
through extreme effort, was able to keep Zubrod on the ground, prevent Zubrod from stabbing
him with plyers, and protect the victim, but at best, Deputy Short had ahold of Zubrod’s wrists.
The lack of “control” is reflected by the uncontested fact that Deputy Short was only ever able
to secure handcuffs to only one of Zubrod’s wrists.
9

Zubrod and the deputies were in the other bedroom (a bedroom down the hall from the
bedroom where the victim lay). Deputy Hoch pulled out his Taser and warned Zubrod
that he was going to tase him if Zubrod did not comply with his commands. Zubrod
came at Deputy Hoch, saying “die” and “I’m gonna kill you.” Deputy Hoch backed
up. At this point, Deputy Hoch and Zubrod were only three to four feet away from
each other; the ideal distance to deploy a Taser is twelve to eighteen feet. When Zubrod
did not comply with commands, Deputy Hoch shot at Zubrod with the Taser. One barb
hit Zubrod, but other barb hit his leather belt. A later autopsy would reveal that this
second barb did not come into contact with Zubrod’s skin. Without contact by both
barbs, the Taser had no effect on Zubrod.
At this point, the fight continued, and both deputies went “hands on” Zubrod,
meaning both of them attempted to use their hands to physically control Zubrod. Deputy
Hoch was pushed back into a window. Either as a result of breaking the window or
from a prior break, there was some glass on the floor.8 Deputy Hoch was concerned
Zubrod could use the glass fragments as a weapon.
At approximately 11:40 p.m., Deputy Smith arrived. Deputy Smith could hear
scuffling over Deputy Short’s and Hoch’s radios. Deputy Smith entered the house and
went upstairs where he saw Deputies Short and Hoch hands-on with Zubrod.

The

Deputies had Zubrod on his back on a pile of clothes at this time. Zubrod was actively
resisting the deputies, kicking out and flailing one arm with a handcuff attached to it.
Deputy Hoch instructed Deputy Smith to use his Taser on Zubrod.9 When Deputy Smith
There is a factual dispute about whether Deputy Hoch broke the window during this struggle
and whether there was actually glass on the floor. Plaintiffs also dispute that there was glass on
the floor. For purposes of summary judgment, the Court finds these facts immaterial.
8

9

Plaintiffs assert that “Smith attempted to use his Taser, at Hoch’s request, on Michael Zubrod
10

pulled out his Taser and was ready to shoot, Deputies Short and Hoch released their grip
on Zubrod to allow Deputy Smith to deploy his Taser. Zubrod got to his feet and moved
to a window. Deputy Smith shot his Taser at Zubrod, but it malfunctioned and would
not deploy. When he pulled the trigger, nothing happened, so he dropped the Taser.
Zubrod pulled down a curtain rod with the curtain attached and began swinging it at the
deputies.10 Zubrod said something about “the devil” and “getting” Deputy Smith and
some other “gibberish” which Deputy Smith did not understand. Both Deputies Hoch
and Smith believed that Zubrod might be under the influence of drugs or had some type
of mental health problem.
All three deputies then went hands-on with Zubrod again, attempting to control
him through brute force. During this struggle, Deputy Hoch was able to load another
cartridge into his Taser. Deputy Hock shot Zubrod with the Taser in Zubrod’s thigh at
close range. Because the barbs entered Zubrod’s skin very close to each other, the Taser
could not cause neuromuscular incapacitation. All three deputies continued to struggle
with Zubrod to get him under control.11

while Michael Zubrod was restrained on the ground wrapped in a curtain.” Doc. 68-2, ¶61.
The Court finds no support for this factual assertion in plaintiffs’ record citations.
10

Deputy Hoch recalls Zubrod seated on the ground when he was swinging the curtain rod. For
purposes of summary judgment, the Court finds it immaterial whether Zubrod was standing or
sitting when swinging the curtain rod.

11

In statements to law enforcement officers and in depositions, there are some factual
inconsistencies regarding which deputies were trying to control Zubrod’s feet and which were
trying to control his upper body. The Court finds these factual disputes immaterial; this struggle
was fluid and who was attempting to control Zubrod’s feet at any given time is irrelevant.
11

By this time, at least some rescue personnel had entered the house and climbed the
stairs to the second floor to attend to the victim.12 One such rescue worker, Dennis
Paulson, stationed himself in the hallway between the two bedrooms to act as a last line
of defense in case Zubrod got loose and came after the victim again. At one point, he
looked into the bedroom, saw Zubrod with a handcuff on only one wrist, and saw the
deputies struggling to get control of Zubrod.
Deputy Hoch then tried to use his Taser in drive-stun mode.

This involves

placing the barrel of the Taser directly against the suspect’s body. Drive-stun mode
causes a burning sensation, as opposed to neuromuscular incapacitation, and is used as a
method of pain compliance. Because the barbs were still attached to Zubrod, however,
when Deputy Hoch tried to use the Taser in drive-stun mode, it was effectively used in a
hybrid mode that could, in theory, cause neuromuscular incapacitation. Deputy Hoch
attempted to place the Taser against Zubrod’s body and pulled the trigger multiple times,
all the while ordering Zubrod to comply with commands to turn over so deputies could
handcuff him. Zubrod continued to resist, attempting to push the Taser away from him,
and refusing to comply with commands. Ultimately, the deputies were able to handcuff
Zubrod behind his back. Deputy Hoch then left the house to get foot shackles to secure
Zubrod’s feet.

12

Deputy Short testified that, ideally, law enforcement personnel would not allow rescue
personnel into a scene until they had control of a dangerous suspect. Plaintiffs argue that the
circumstantial evidence shows that rescue personnel did not enter the house until the deputies
had Zubrod handcuffed and at that point, the rescue personnel heard a Taser being deployed.
As will be explained later, the Court does not find there is admissible evidence or factual support
for this conclusion. Plaintiffs’ position is also inconsistent with their admission that rescue
personnel were in the house attending to the victim in one room while the deputies were still
fighting to control Zubrod in another room. Doc. 68-1, ¶53.
12

Records from Deputy Hoch’s Taser indicates he pulled the trigger ten times for a
total of 53 seconds during a period of three minutes and fifteen seconds during the
struggle. Because Zubrod was attempting to push the Taser away from him at the same
time, it is not known how many times the Taser had contact with Zubrod when Deputy
Hoch pulled the trigger.

At no point, however, did the Taser cause neuromuscular

incapacitation.
The Court has reviewed the video from Deputy Hoch’s and Deputy Smith’s
Tasers.

It is difficult to obtain a clear view from the videos.

Both Tasers are

understandably moving constantly, and the images are sometimes very close to objects
and other times farther away. At one point in Deputy Smith’s video, it shows Zubrod
on his back, appearing to hold his arms and legs out so as to prevent the deputies from
holding him. In Deputy Hoch’s Taser video, the Court observed Zubrod constantly
moving about while on his back, while it appeared deputies are attempting to control his
legs. Deputies repeatedly commanded him to turn over, and Zubrod is grunting. The
Court heard a Taser being discharged more than once on the video, but it is too difficult
to tell from the sound how many separate times the Taser is discharged. The Court
heard what appears to be Zubrod making loud noises; whether these are the result of pain
or anger is unknown and unknowable. Although plaintiffs claim Zubrod called for a
doctor on the video, the Court has not heard the word doctor despite viewing and listening
to the video more than a dozen times. The Court did hear a deputy say “get him again.”
Deputy Short testified that he did not hear the audible sounds of the Taser being used
during the struggle because he was physically and mentally exhausted and was focused
on trying to obtain control over Zubrod. There is no video from the first two times
Deputy Hoch pulled the trigger on his Taser, although the Taser camera is supposed to
start recording once the safety is turned off.
13

A short time later, deputies noticed Zubrod was not breathing. At approximately
12:09 a.m., a call was made for another ambulance and CPR was started on Zubrod.
Rescue personnel took Zubrod to Mercy Medical Center where at 1:17 a.m., he was
pronounced dead.

Following an autopsy, Medical Examiner Jonathon Thompson

opined that the cause of death was “cardiac arrhythmia following altercation with police
in the setting of acute methamphetamine intoxication.” The Medical Examiner opined
that “[t]he role the conduced energy device (Taser) played in the death is unknown.”
During the autopsy, the Medical Examiner found two sets of Taser burn injuries
on Zubrod’s body, and punctures by three Tazer barbs (two in the thigh close together,
and on in his arm). He opined that it was unlikely, but possible, that marks on Zubrod’s
left chest area were Taser burns.

The Medical Examiner also found a Taser barb

connected to Zubrod’s leather belt. Although that barb penetrated the belt, there was
no indication it punctured Zubrod’s underlying jeans, underwear, or skin.
The Medical Examiner opined that the Taser might have played a role in Zubrod’s
death. Plaintiffs’ expert, Dr. Daniel Spitz, opined that the repeated use of the Taser on
Zubrod was a contributing factor in his death. Dr. Spitz identified three Taser burns on
Zubrod’s body.
A toxicology analysis showed methamphetamine and methamphetamine
metabolite, as well as naloxone, in Zubrod’s blood. Later investigation revealed that
Zubrod was high on methamphetamine on the night of September 22, 2013, and had been
using more methamphetamine during September 2013 than he usually did.
The standard time used in lab testing of a Taser is 15 seconds, and no test exceeded
45 seconds. The Taser company provides warnings on the use of a Taser, which were
reflected in the Worth County’s Taser policy in September 2013. It warns that using
the Taser in drive-stun mode for pain compliance may have no effect on a mentally
14

disturbed person. It also warns that the cumulative exposure to a Taser may cause an
increased risk of death or serious injury. Finally, it warns these risks may be enhanced
in individuals under the influence of drugs.
IV.

SUMMARY JUDGMENT STANDARDS

Summary judgment is appropriate when 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) (2016). A movant must cite to “particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory
answers, or other materials.” FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). A fact is “material” if it “might affect the outcome of the suit
under governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(internal citation omitted). “An issue of material fact is genuine if it has a real basis in
the record[,]” Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (internal citation
omitted), or “when a reasonable jury could return a verdict for the nonmoving party on
the question[,]” Wood v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005)
(internal quotation marks and citation omitted).

Evidence that presents only “some

metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986), or evidence that is “merely colorable” or “not
significantly probative,” Anderson, 477 U.S. at 249-50, does not make an issue of fact
genuine.

In sum, a genuine issue of material fact requires “sufficient evidence

supporting the claimed factual dispute” that it “require[s] a jury or judge to resolve the
parties’ differing version of the truth at trial.”
quotation marks and quotation omitted).
15

Anderson, 477 U.S. at 248-49 (internal

The party moving for summary judgment bears “the initial responsibility of
informing the district court of the basis for its motion and identifying those portions of
the record which show a lack of a genuine issue.”

Hartnagel, 953 F.2d at 395. Once

the moving party has met this burden, the nonmoving party must go beyond the pleadings
and by depositions, affidavits, or other evidence designate specific facts showing that
there is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th
Cir. 2005).
In determining whether a genuine issue of material fact exists, courts must view
the evidence in the light most favorable to the nonmoving party, giving that party the
benefit of all reasonable inferences that can be drawn from the facts.

Matsushita, 475

U.S. at 587-88 (internal citation omitted). See also Reed v. City of St. Charles, Mo.,
561 F.3d 788, 790 (8th Cir. 2009) (stating that in ruling on a motion for summary
judgment, a court must view the facts “in a light most favorable to the non-moving
party—as long as those facts are not so ‘blatantly contradicted by the record ... that no
reasonable jury could believe’ them.”) (quoting Scott v. Harris, 550 U.S. 372, 380
(2007)). A court does “not weigh the evidence or attempt to determine the credibility
of witnesses.”

Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir.

2004). Rather, a “court’s function is to determine whether a dispute about a material
fact is genuine.” Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996).
V.

EXCESSIVE USE OF FORCE STANDARDS

The Fourth Amendment’s prohibition against unreasonable searches and seizures
includes the right to be free from law enforcement officers using excessive force in
effectuating an arrest. Graham v. Connor, 490 U.S. 386, 396 (1989); Kukla v. Hulm,
310 F.3d 1046, 1050 (8th Cir. 2002). “Police officers undoubtedly have a right to use
16

some degree of physical force, or threat thereof, to effect a lawful seizure, and reasonable
applications of force may well cause pain or minor injuries with some frequency.”
Chambers v. Pennycook, 641 F.3d 898, 907 (8th Cir. 2011) (internal citation omitted).
See also Johnson v. Carroll, 658 F.3d 819, 825 (8th Cir. 2011) (“Fourth Amendment
jurisprudence has long recognized that the right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of physical coercion or threat
thereof to effect it.”) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th
Cir. 2009)). “[F]orce is least justified against nonviolent misdemeanants who do not
flee or actively resist arrest and pose little or no threat to the security of the officers or
the public.” Brown, 574 F.3d at 499.
“To establish a constitutional violation under the Fourth Amendment’s right to be
free from excessive force, the test is whether the amount of force used was objectively
reasonable under the particular circumstances.”

Henderson v. Munn, 439 F.3d 497,

502 (8th Cir. 2006) (quoting Littrell v. Franklin, 388 F.3d 578, 583 (8th Cir. 2004) and
Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994)) (internal quotation
marks omitted). Courts evaluate the reasonableness of an officer’s use of force “from
the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.”

Graham, 490 U.S. at 396.

This is because “police officers are often

forced to make split-second judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary in a particular situation.”
Id. at 397. See also Grider v. Bowling, 785 F.3d 1248, 1252 (8th Cir. 2015) (“The
dispositive question is whether the officer’s conduct was objectively reasonable under the
circumstances, as judged from the perspective of a reasonable officer on the scene at the
time the force was applied.”) (internal citation omitted).
17

The reasonableness inquiry is an objective one: “the question is whether the
officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them.”

Graham, 490 U.S. at 397. See also Peterson v. Kopp, 754 F.3d

594, 600 (8th Cir. 2014) (“An officer’s use of force will violate the Fourth Amendment
if it is not ‘objectively reasonable.’”) (quoting Graham, 490 U.S. at 397). In conducting
this analysis, a court must consider the totality of the circumstances.
Bella Villa, 582 F.3d 840, 849 (8th Cir. 2009).

Cook v. City of

Circumstances relevant to the

reasonableness of an officer’s conduct include “the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade arrest by flight.”

Graham, 490

U.S. at 396; see also Schoettle v. Jefferson Cty., 788 F.3d 855, 859 (8th Cir. 2015)
(“When determining whether unreasonable force was used, courts must give ‘careful
attention to the facts and circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade arrest
by flight.’”) (quoting Graham, 490 U.S. at 396).
The degree of injury suffered by the plaintiff “is certainly relevant insofar as it
tends to show the amount and type of force used.” Chambers, 641 F.3d at 906. A
causal connection between an event and an injury may be inferred in cases in which a
visible injury or a sudden onset of an injury occurs. Robinson v. Hager, 292 F.3d 560,
564 (8th Cir. 2002) (internal quotation marks and citation omitted). “The degree of
injury should not be dispositive, [however,] because the nature of the force applied cannot
be correlated perfectly with the type of injury inflicted.” Chambers, 641 F.3d at 906.
Rather, the analysis focuses “on whether the force applied is reasonable from the
18

perspective of a reasonable officer on the scene at the time the force is used.”

Id.

(emphasis in original).
VI. EXCESSIVE USE OF FORCE AND TASERS
The case law analyzing whether the use of a Taser during an arrest constitutes
excessive force has evolved over time as use of the technology has become more
commonplace. Generally speaking, the case law draws a distinction between the use of
a Taser against a person passively resisting arrest and one who is physically resisting
arrest. Courts have generally found use of a Taser against an arrestee who is only
passively refusing to comply with officers’ commands constitutes an excessive use of
force.
For example, in Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir. 2009),
the Eighth Circuit found that police officers were not entitled to qualified immunity on
an excessive force claim after using a Taser on a female passenger in a car.
The officers suspected her of a misdemeanor open bottle violation.

Id. at 494.

Id. at 496. The

passenger was sitting in the car and talking on her cell phone (to a 911 operator), was
not fleeing or actively resisting, and, the Court concluded, “posed at most a minimal
safety threat” to the officers. Brown, 574 F.3d at 497–98. The Court noted that there
was “nothing to indicate that [the officer] was faced with the need to make any splitsecond decisions, nor can the circumstances fairly be described as constituting a ‘tense,
uncertain, and rapidly evolving’ situation.”

Id. at 497.

On the other hand, courts have found the use of a Taser against an arrestee who
is actively and physically resisting arrest does not constitute an excessive use of force.
As the Sixth Circuit Court of Appeals concisely concluded: “[c]ases from this circuit and
others, before and after May 2007, adhere to this line: If a suspect actively resists arrest
19

and refuses to be handcuffed, officers do not violate the Fourth Amendment by using a
taser to subdue him.” Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 509 (6th
Cir. 2012). See also, e.g., Carpenter v. Gage, 686 F.3d 644, 649-50 (8th Cir. 2012)
(affirming dismissal of excessive-force claim where plaintiff was Tasered after failing to
produce hands for cuffing, despite plaintiff’s assertion he moved his hands “merely as an
effort to breathe”).
For example, in De Boise v. Taser Int’l, Inc., 760 F.3d 892 (8th Cir. 2014), the
Eighth Circuit held that the repeated use of a Taser on an arrestee did not violate the
arrestee’s clearly established rights. De Boise suffered from schizophrenia and, on the
night of his arrest, became delusional and physically aggressive.

Id. at 894.

Six

officers arrived on the scene, at which time De Boise’s mother informed the officers that
she had a firearm in the house and that her son was schizophrenic.

Id. at 894–95. The

officers heard loud noises from inside the house, including screaming, glass breaking,
and heavy furniture being thrown, after which De Boise exited the house naked and
referred to himself as God. Id. at 895. De Boise initially complied with instructions
to lie face down on the ground, but when an officer approached, De Boise jumped to his
feet, clenched his fists, and glared at an officer.

Id. The officers instructed De Boise

several times to lie down, but De Boise refused.

Id. The officers tasered De Boise,

but he continued to struggle and ignore commands.

Id. The officers tasered De Boise

eight times and used a Taser on him in drive-stun mode twice, and ultimately injected
him with a sedative to subdue him.

Id. at 895–96. De Boise suffered cardiac arrest

and died. Id. at 896. The Eighth Circuit explained:
Although we have determined that non-violent, non-fleeing subjects have a
clearly established right to be free from the use of tasers, [ ] we have yet to
determine whether a violent subject, acting aggressively toward officers,
has a clearly established right to be free from multiple tasings . . ..
20

Indeed, in 2008, case law related to the use of tasers was still developing .
. .. And, Appellants point to no previous case that could be said to have
clearly established the unconstitutionality of the officers’ actions here.
Accordingly, the state of the law would not have placed “an officer on
notice that he must limit the use of his taser in certain circumstances, even
though the subject continues to struggle and resist.”
De Boise, 760 F.3d at 897 (internal citations omitted).

See also Carpenter, 686 F.3d at

649-50 (holding that officers did not use excessive force when they twice used a Taser
against an arrestee who “continued to resist” arrest by physically fighting and “bucking”
in an effort to throw off a deputy attempting to subdue him); Cook, 582 F.3d at 849-52
(finding officer’s use of a Taser on a passenger who got out of his wife’s vehicle to
confront an officer and did not obey commands was not an excessive use of force); Clark
v. Ware, 873 F. Supp.2d 1117, 1122-1123 (E.D. Mo. 2012) (holding that, in cases where
plaintiffs are tasered “while actively resisting arrest by physically struggling with,
threatening, or disobeying officers,” courts either find that no constitutional violation
occurred or that the right not to be tasered while resisting arrest was not clearly
established when the incident happened).
Cases have also addressed the use of Tasers in the so-called drive-stun mode.
Generally, the courts have found law enforcement officers can use a Taser in drive-stun
mode, even against a passively resisting suspect in order to obtain compliance. For
example, in Abbott v. Sangamon Cty., Ill., 705 F.3d 706, 728 (7th Cir. 2013) (holding
that police officer did not violate clearly established law in 2007 by using the Taser in
drive-stun mode several times until the handcuffed plaintiff, who was actively resisting
arrest, was subdued); Buckley v. Haddock, 292 Fed. App’x 791, 792-93, 796 (11th Cir.
2008) (unpublished) (finding no excessive force when officer used Taser in drive-stun
mode against a handcuffed subject who was lying on the ground, refusing to stand and
21

crying). But see Mattos v. Agarano, 661 F.3d 433, 444-46 (9th Cir. 2011) (en banc)
(determining that use of Taser in drive-stun mode against motorist who refused to sign a
speeding ticket was excessive force). But the Eighth Circuit Court of Appeals has held
otherwise in at least one case.
VII. QUALIFIED IMMUNITY
Even if a court finds officers use excessive force in effectuating an arrest, it does
not end the inquiry. Law enforcement officers are entitled to qualified immunity unless
they violate “clearly established statutory or constitutional rights.”

Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). That is, they are “shielded from liability for civil
damages so long as they did not violate a clearly established right that a reasonable person
would have known.” Ziesmer v. Hagen, 785 F.3d 1233, 1237 (8th Cir. 2015) (internal
citation omitted). “Broadly speaking, ‘[t]he right to be free from excessive force in the
context of an arrest is clearly established under the Fourth Amendment.’” Peterson,
754 F.3d at 600 (quoting Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013)).
More narrowly speaking, however, “the right the official is alleged to have violated must
have been ‘clearly established’ in a more particularized, and hence more relevant sense:
The contours of the right must be sufficiently clear that a reasonable officer would
understand that what he is doing violates that right.”
635, 640 (1987) (internal citations omitted).

Anderson v. Creighton, 483 U.S.

See also Bishop v. Glazier, 723 F.3d 957,

961 (8th Cir. 2013) (“While there is no requirement that the very action in question has
previously been held unlawful, [a plaintiff] can succeed only if earlier cases give [the
officer] fair warning that his alleged treatment of [the plaintiff] was unconstitutional.”)
(internal quotation marks and citation omitted).

See also Meloy v. Bachmeier, 302 F.3d

845, 848 (8th Cir. 2002) (“Although earlier cases need not involve fundamentally or
22

materially similar facts, the earlier cases must give officials fair warning that their alleged
treatment of the plaintiff was unconstitutional.”) (internal quotation marks and citation
omitted).
Thus, in determining whether a law enforcement officer is entitled to qualified
immunity, “[t]he relevant inquiry is whether existing precedent placed the conclusion that
[the officer] acted unreasonably [under the circumstances] ‘beyond debate.’”

Mullenix

v. Luna, 136 S. Ct. 305, 309 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011)). In conducting this inquiry, it is important that the Court not conduct its analysis
“at a high level of generality” but, rather, analyzes whether the officer’s conduct was
clearly beyond debate within “‘the specific context of the case.’” Mullenix, 136 S. Ct.
at 311 (quoting Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004)).
VIII. DISCUSSION
There are several questions the Court must answer to determine if summary
judgment is appropriate. First, did Deputy Hoch use excessive force by use of his Taser
at any point during his encounter with Zubrod.

Second, if Deputy Hoch did use

excessive force, is he, nevertheless, entitled to qualified immunity? Third, if Deputy
Hoch did use excessive force, are Deputies Short and Smith liable for failing to intervene?
Fourth, should the Court find the Sheriff or Worth County vicariously liable for the
deputies’ conduct. Fifth, if the Court finds summary judgment appropriate on plaintiffs’
Section 1983 claims, should it exercise jurisdiction over the remaining state law claims?
Finally, what happens to plaintiffs’ loss of consortium claim if the Court grants summary
judgment on the underlying federal counts? The Court will address each issue in turn.

23

A.

Whether Deputy Hoch Used Excessive Force

The first question is whether there is a genuine issue of material fact about whether
Deputy Hoch used excessive force in the use of a Taser while attempting to place Zubrod
under arrested. Considering the totality of the circumstances in the light most favorable
to plaintiff, the Court finds there is no genuine issue of material fact, and that Deputy
Hoch did not use excessive force.
This case involved efforts by officers to arrest a man for attempted murder after
he smashed in the face of a woman with a hammer and stabbed her in the neck with
scissors. When Deputy Hoch came upon the scene, he saw the bloody and moaning
woman on the floor of a bedroom, and Deputy Short struggling to exert control over
Zubrod. Plaintiffs mischaracterize the state of affairs when Deputy Hoch arrived when
they claim Deputy Short had Zubrod under control.13 There is nothing in the record to
support this contention. To the contrary, no reasonable jury could conclude that at that
time Deputy Short had Zubrod under control before Deputy Hoch arrived.

The

uncontested facts establish that Deputy Short was barely hanging on to Zubrod, who was
bucking in an effort to get Deputy Short off of him, and who had tried to stab Deputy
Short with needle-nosed plyers. Deputy Short had hold of Zubrod’s wrists, but had
been able to attach a handcuff to only one wrist, unfortunately increasing the danger as
Zubrod could use the handcuff as a weapon. Deputy Short was mentally and physically
exhausted at this point and did not have control of Zubrod.

13

Indeed, the Court agrees with defendants that many of plaintiffs’ statements of additional
material facts (Doc. 68-2) are patently unsupported and, in some cases, directly contradicted by
the record. See Defendants’ Response to Plaintiffs’ Statement of Additional Material Facts
(Doc. 86-1).
24

After Deputy Hoch arrived, a tense, uncertain, and rapidly evolving and
uninterrupted physical struggled ensued as deputies fought with Zubrod to place him in
custody. Throughout this time, Zubrod posed a danger to the deputies, the medical
responders, and the victim. And the nature of the criminal conduct was as serious as it
gets; attempted murder.
At argument, plaintiffs suggested there was a time after Deputy Hoch’s arrival
when it should have been clear to him and the other deputies that using a Taser in any
mode against Zubrod was so clearly wrong that they should have known it violated
Zubrod’s constitutional rights. In particular, plaintiffs allege that pivotal point occurred
when, toward the end of the struggle, Zubrod was on his back in the bedroom and Deputy
Hoch used his Taser in a hybrid drive-stun mode in an effort to get Zubrod to comply
with the deputies’ efforts to place him in handcuffs.

Further, plaintiffs allege that

Deputy Hoch continued to use a Taser against Zubrod after he was in handcuffs.
First, the Court finds that the circumstances of this case involved a fluid and
continuous resistance by Zubrod to any efforts to place him under arrest. The amount
of physical resistance ebbed and flowed throughout the struggle, but he was never
compliant and never passive and never obeyed the deputies’ commands. There is no
question here, and plaintiffs do not seriously contend otherwise, that the deputies were
justified in using a Taser when they first encountered Zubrod. And Zubrod continued
to resist arrest, sometimes more aggressively than other times, but always resisting.
Once officers are justified in using force, as they were here, they can continue to use
force until the threat has been neutralized. Plumhoff v. Richard, 134 S. Ct. 2012, 2022
(2014) (“It stands to reason that, if police officers are justified in firing at a suspect in
order to end a severe threat to public safety, the officers need not stop shooting until the
threat has ended.”).
25

The Court can find no bright line during this intense struggle, while a woman lay
severely wounded in another room, where any reasonable officer should have concluded
that the nature of Zubrod’s resistance had changed in such a material respect that the use
of a Taser to obtain compliance was suddenly constitutionally prohibited. In any event,
it is inappropriate to expect officers in the heat of the moment to parse out, with the
wisdom of hindsight, moments during a struggle like this when use of a Taser may or
may not be appropriate. See Nelson v. Cnty. of Wright, 162 F.3d 986, 991 (8th Cir.
1998) (“Nelson now tries to analyze the brief struggle as if the incident were composed
of distinct and separate segments. At the time, however, it was uncertain what would
happen next. The situation was tense and ‘rapidly evolving.’”) (quoting Graham, 490
U.S. at 397).
This Court will not accept plaintiffs’ invitation to review this case with 20/20
hindsight and second guess the deputies’ split-second decisions during this struggle with
Zubrod. Whether the deputies could have, for example, overpowered Zubrod through
brute force without the use of a Taser is not the question.

See Estate of Morgan v. Cook,

686 F.3d 494, 497 (8th Cir. 2012) (holding that the Eighth Circuit Court of Appeals “has
declined to second-guess whether alternative actions by police officers ‘might conceivably
have been available.’” (quoting Cole v. Bone, 993 F.2d 1328, 1334 (8th Cir. 1993)).
The question, which the Court answers in the negative, is whether it was an unreasonable,
excessive use of force for Deputy Hoch to use a Taser in an effort to place Zubrod under
arrest under the exigent circumstances Deputy Hoch faced. Courts “must judge the
reasonableness of the force ‘from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight,’ and we must make ‘allowance for the fact
that police officers are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the amount of force that is
26

necessary in a particular situation.’”

McKenney v. Harrison, 635 F.3d 354, 360 (8th

Cir. 2011) (quoting Graham, 490 U.S. at 396-97).
Furthermore, the Court does not believe any reasonable jury could find on these
facts that Deputy Hoch continued to use a Taser on Zubrod after he was handcuffed.
There is no direct evidence that deputies used a Taser against Zubrod after he was
handcuffed. The deputies are consistent in their testimony that Zubrod was not Tasered
after he was handcuffed. No witness claims to have seen deputies using a Taser against
Zubrod after he was handcuffed.
Rather, plaintiffs rely on circumstantial evidence to argue there is a genuine issue
of material fact whether deputies used a Taser against Zubrod after he was handcuffed.
Plaintiffs argue that, at some point during the video from Deputy Hoch’s Taser, Zubrod’s
hands cannot be seen, which in the light most favorable to plaintiffs gives rise to the
conclusion that Zubrod’s hands were not visible because he was handcuffed. This is
pure speculation. Viewing the facts in the light most favorable to the nonmoving party,
however, does not obligate the Court to accept speculation.

See Brown v. Fortner, 518

F.3d 552, 558 (8th Cir. 2008) (“As with any summary judgment motion, while we are
required to make all reasonable inferences in favor of the non-moving party, we do not
resort to speculation.”) The video from the Taser, as described above, does not provide
a clear picture of the action because it is constantly moving and its field of vision is often
too close to the action to make out much of anything with clarity. The Court cannot
draw any nonspeculative inferences from the videos that a Taser was used against Zubrod
after he was handcuffed.
Plaintiffs also rely on two, unsworn statements by paramedics who claim Deputy
Short escorted them upstairs, and while climbing the stairs, they heard a Taser deployed.
Plaintiffs combine these statements with Deputy Short’s testimony that law enforcement
27

officers generally do not want medical personnel present until a suspect is under control,
and his testimony that he did not leave the upstairs until Zubrod was in handcuffs, to
argue that Deputy Hoch must have Tasered Zubrod after Zubrod was handcuffed. There
are several problems with this line of reasoning. First, the Court cannot rely on unsworn
statements by the paramedics to establish uncontested facts for purposes of summary
judgment. A motion for summary judgment and a resistance to such a motion must be
based on admissible evidence.

FED. R. CIV. P. 56(c)(4) (affidavits in resistance to

summary judgment must be based on admissible evidence).

See also Tuttle v. Lorillard

Tobacco Co., 377 F.3d 917, 923-24 (8th Cir. 2004) (“In ruling on a motion for summary
judgment, ‘[t]he district court must base its determination regarding the presence or
absence of a material issue of factual dispute on evidence that will be admissible at
trial.’”) (quoting Firemen’s Fund Ins. Co. v. Thien, 8 F.3d 1307, 1310 (8th Cir. 1993)).
There is good reason for this. For example, it is not clear from these statements how
the paramedics knew Deputy Short from any other deputy, or how they knew the sound
of a Taser deployment, or what they actually saw when they came to the second floor of
the house and whether it was consistent with Zubrod being Tasered after he was
handcuffed. Second, the uncontested evidence is that medical personnel were upstairs,
at Deputy Hoch’s insistence, while deputies were still fighting with Zubrod. Third,
Deputy Short made it clear in his testimony that while it is preferable to have medical
personnel away from the scene until a suspect is under control, he did not recall in this
particular case whether that happened and has no recall of going downstairs to escort
medical personnel upstairs. Thus, although plaintiffs argue this is a material fact in
dispute that should preclude entry of summary judgment, the Court finds that it is not a
genuine issue because it relies on inadmissible evidence and a speculative line of
28

reasoning based on assumptions which are not borne out by the rest of the uncontested
facts.
In assessing excessive use of force, the Court must consider the outcome of the
use of force. Here, in the light most favorable to plaintiffs, the evidence would establish
that a Taser can have some impact in increasing heart rate and causing other physiological
changes that, combined with Zubrod’s heart condition and methamphetamine intoxication
and physical altercation with the deputies, contributed to his death. Even accepting this
causal chain as true, the Court does not find this factor leads to the conclusion that Deputy
Hoch’s use of the Taser constituted excessive use of force. The Taser was, at most, a
contributory factor in Zubrod’s death, which appears primarily to be the result of his
long-term abuse of methamphetamine that caused him to have an enlarged heart and his
acute methamphetamine intoxication. This is not the type of causal linkage that could
lead a reasonable jury to conclude that using a Taser on Zubrod constituted an excessive
use of force.
Plaintiffs emphasize that Zubrod had a history of mental illness and was high on
methamphetamine when deputies used a Taser on him, and that made its use excessive.
Plaintiffs argue that the deputies knew, or should have known, that Zubrod’s behavior
could only be explained by the fact he was mentally ill and/or high on a drug. Plaintiffs
further argue that Taser warnings indicate, and the deputies knew from training, that
Tasers may not be effective on subject suffering from mental illness or high on drugs,
and that Tasers may cause greater injury to a person under the influence of drugs. The
Court does not find that this alters whether Deputy Hoch’s use of a Taser was
unreasonable. First, there is no evidence that any of the deputies knew Zubrod, knew
he had a mental illness, knew he had a history of drug use, or knew he was under the
influence of drugs. See McKenney, 635 F.3d at 360 (rejecting an excessive use of force
29

argument that officers should have made sure the mentally ill suspect was mentally
capable of understanding commands before deploying a Taser because there was nothing
in the record to suggest the officers knew the suspect was mentally retarded or facts that
should have led them to that conclusion). Second, the case law is clear that officers can
continue to use force even against someone they know to be mentally ill or on drugs when
the person nevertheless continues to actively resist arrest.

Hayek v. City of St. Paul,

488 F.3d 1049, 1055 (8th Cir. 2007) (“Knowledge of a person’s disability simply cannot
foreclose officers from protecting themselves, the disabled person, and the general public
when faced with threatening conduct by the disabled person.”); Hassan v. City of
Minneapolis, Minn., 489 F.3d 914, 919 (8th Cir. 2007) (holding that even if officers
knew the suspect was mentally ill, the suspect’s “mental state does not change the fact he
posed a deadly threat to the officers and the public” justifying the use of force).
Finally, plaintiffs emphasize the number of Taser deployments within a short
window of time and argue that it was excessive, in part because it exceeded the number
and duration used in any lab testing of Tasers. First, although the uncontested facts
show that the deputies attempted to use a Taser against Zubrod more than a dozen times,
it does not establish how many times they were successful.

When Deputy Short

deployed his Taser against Zubrod, he missed. Deputy Short also did not succeed in
using his Taser against Zubrod in drive-stun mode before Zubrod knocked the Taser out
of Deputy Short’s hand or Deputy Short dropped it. Similarly, the first time Deputy
Hoch deployed his Taser, no connection was made because one of the two barbs hit
Zubrod’s leather belt. The medical examiner’s report shows there was no indication
these barbs made contact with Zubrod’s skin. Plaintiffs again engage in impermissible
speculation by asserting that a barb can conduct electricity when it is close to a body,
even if it is not in contact with the skin. Although this may be true in theory, there is
30

no evidence in this record that it occurred here.

The uncontested evidence also

established that Deputy Smith’s Taser malfunctioned. Finally, although Deputy Hoch
was able to deploy his Taser and hit Zubrod in the leg, the barbs were too close to cause
neuromuscular incapacitation. Deputy Hoch then attempted to use his Taser in drivestun mode while the barbs were still attached, which in this hybrid deployment could, in
theory, cause neuromuscular incapacitation.

The uncontested facts establish, however,

that Zubrod never experienced neuromuscular incapacitation. It is also uncontested that
as Deputy Hoch attempted to deploy his Taser in drive-stun mode, Zubrod attempted to
push it away from his body. So, in the end, it is unclear how many of the trigger pulls
actually occurred when the Taser had contact with Zubrod’s body. Taking the evidence
in the light most favorable to plaintiffs, however, the Court will assume that Deputy
Hoch’s Taser had contact with Zubrod on each of the ten trigger pulls registered on his
Taser. The Court still does not find this to constitute an excessive use of force because
Zubrod continued to resist arrest after having attempted to murder a woman in the next
room. See, De Boise, 760 F.3d at 897-98 (finding a reasonable officer would not have
been on notice that eight Taser deployments and two drive-stun uses of a Taser constitute
excessive use of force where the suspect continued to resist arrest).
On December 16, 2016, plaintiffs filed a Notice of Additional Authority (Doc.
90). Plaintiffs cite Moore v. City of Ferguson, Missouri, No. 4:14-CV-1443 SNLJ, 2016
WL 579161 (E.D. Mo. Oct. 4, 2016) for “additional authority relating to the issues
presented in the motion and resistance to summary judgment.” Doc. 90 at 1. Plaintiffs
did not seek leave of the Court to submit additional authority, nor is there any provision
for submitted additional authority under Local Rule 56 once the Court has taken the case
under advisement. Moreover, this authority was available to plaintiffs at the time they
31

filed their resistance. In any event, the Court finds Moore unpersuasive and factually
distinguishable from the facts here.
In Moore, the court stated that the officers’ version of the events “makes the use
of force sound reasonable . . . but the data from the Taser itself tells a somewhat different
story.” Id. at *3. The data showed four cycles of Tasing for a total duration of 21.
Id. at *2. The court concluded that is was “a question for a jury whether or not one to
two seconds constitutes a reasonable amount of time to allow someone to recover from
the electrical shock of a 50,000 volt, five-second-long Tasing cycle, give a command to
stay on the ground, and observe whether or not the individual complies or resists
commands.” This case is easily distinguishable from Moore. First, unlike in Moore,
Zubrod was never subjected to a Tazing cycle; at most, he was subject to a hybrid tasing
using the Taser in drive-stun mode while probes were attached to his leg.

The

undisputed evidence is that, unlike the subject in Moore, Zubrod never experienced
neuromuscular incapacitation. Further, in Moore the evidence showed that, at most,
Moore was attempting to rise after beings Tased three times when officers tased him
again. In contrast, Zubrod continued to violently fight with officers over a long period
of time. Finally, the Taser videos here are not inconsistent with the officers and other
witness accounts of the scene. Unlike in Moore, here no evidence from the Tasers
contradicts the deputies’ accounts of their encounter with Zubrod.
In arriving at the conclusion that Deputy Hoch did not use excessive force, the
Court has taken into account the circumstances existing throughout Deputy Hoch’s
contact with Zubrod. A woman lay bloody and moaning in an adjoining bedroom and
Zubrod continued to make statements about killing her. The admissible evidence shows
that Zubrod had a single handcuff on one wrist; it is uncontested that a suspect with only
one handcuff attached poses a danger to law enforcement officers because it can be used
32

as a weapon.

Zubrod continued to resist officers physically, kicking at them and

swinging at them, including with a curtain rod. Zubrod refused to comply with deputies’
commands to allow them to place him in handcuffs.
incapacitated by the use of the Taser at any point.

And Zubrod was never

Until Zubrod was secured in

handcuffs, he continued to pose a safety threat both to the victim and to the deputies.
The Court has also considered plaintiffs’ various assertions that factual disputes
exist about various details, such as whether Zubrod was sitting or standing when swinging
the curtain rod. The Court finds the facts set forth above are the material facts relevant
to whether Deputy Hoch used excessive force. Whether there are minor factual disputes
about material facts, or major disputes about immaterial facts, it does not prevent entry
of summary judgment. See, e.g., Scott, 550 U.S. at 380 (“[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.”) (emphases in original) (citation omitted); Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148 (2000) (noting that “[w]hether judgment as a matter of
law is appropriate in any particular case will depend on a number of factors,” and a
plaintiff cannot avoid dismissal by creating a “weak issue of fact”). The Court finds no
genuine issues of fact material to its analysis.
In summary, the Court finds that the Graham factors demonstrate that Deputy
Hoch did not use excessive force.

The severity of the crime Zubrod committed,

attempted murder, was extremely severe.

Zubrod posed an immediate threat to the

deputies, medical personnel, and the victim. Finally, Zubrod was neither passive, nor
fleeing; he was actively resisting arrest. This is precisely the type of case where courts
cannot use 20/20 hindsight to second-guess law enforcement officers’ split-second
decision making during a fluid and evolving effort to arrest a violent and resisting suspect
33

who attempted to murder a woman. This is a case where Deputy Hoch’s use of a Taser
in these circumstances was objectively reasonable.

Therefore, the Court grants

summary judgment in favor of defendant Deputy Hoch with respect to Counts I and II of
plaintiffs’ complaint.
B.

Whether Deputy Hoch is Entitled to Qualified Immunity

Should a higher court find this Court erred in its conclusion that Deputy Hoch did
not use excessive force, then the analysis turns to whether Deputy Hoch is nevertheless
entitled to qualified immunity. In other words, even if a court now finds Deputy Hoch
used excessive force, he is still immune from suit if it was not clearly established at the
time of his conduct that it constituted a violation of Zubrod’s constitutional rights. As
the Eighth Circuit Court of Appeals has explained;
To determine the question of qualified immunity, we engage in the
following two-part inquiry: (1) whether the facts shown by the plaintiff
make out a violation of a constitutional or statutory right, and (2) whether
that right was clearly established at the time of the defendant’s alleged
misconduct. . . . Courts have discretion to decide which part of the
inquiry to address first.
De Boise, 760 F.3d at 896 (internal quotation marks and citations omitted). Having
concluded under the first part that plaintiffs have not made out a violation of Zubrod’s
constitutional rights, the Court turns to the second part of the inquiry.
The pertinent question in the second part of the inquiry is whether in September
2013, “it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Shekleton v. Eichenberger, 677 F.3d 361, 367 (8th Cir. 2012)
(quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). The Court finds no reasonable

34

officer would have clearly known that using a Taser against Zubrod in the situation
Deputy Hoch faced was unlawful.
Plaintiffs have cited no case holding that a law enforcement officer’s use of a Taser
in the situation facing Deputy Hoch was a clear violation of law, let alone that such law
clearly existed in September 2013. Rather, plaintiffs argue that use of a Taser on a nonresisting individual violates a clearly established right. Doc. 68, at 14. Zubrod was
not a non-resisting individual.

Plaintiffs then argue that “[a]t a more basic level,

however, is the basic right simply to be free from excessive force.”

Id.

This is

precisely the type of analysis at a high-level generality that fails to account for the factual
circumstances facing the law enforcement officer. Plaintiffs’ reliance on cases from
other circuit courts of appeal (Doc. 68, at 16-17) is equally unavailing. Even assuming
circuit precedent is sufficient for purposes of qualified immunity analysis to constitute
clearly established law, that cannot be stretched to include other circuits absent a clear
consensus.

Wilson v. Layne, 526 U.S. 603, 616-17 (1999). More recent Supreme

Court decisions cast some doubt on whether even circuit precedent can constitute clearly
established law for purposes of qualified immunity.

See, e.g., Taylor v. Barkes, 135 S.

Ct. 2042, 2044 (2015) (assuming for the sake of argument that a right can be “clearly
established” by circuit law, finding that the right was not established by circuit precedent
in this case); City and Cnty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1776
(2015) (same). In any event, the cases from other circuit courts of appeal upon which
plaintiffs rely are not sufficiently factually similar to clearly establish that Deputy Hoch’s
conduct was unconstitutional, even if they did control.
A law enforcement officer “cannot be said to have violated a clearly established
right unless the right’s contours were sufficiently definite that any reasonable official in
the [officer’s] shoes would have understood that he was violating it . . . . In other
35

words, ‘existing precedent must have placed the statutory or constitutional question’
confronted by the official ‘beyond debate.’” Plumhoff, 134 S. Ct. at 2023 (internal
citations omitted). Therefore, “[w]hen properly applied, [qualified immunity] protects
all but the plainly incompetent or those who knowingly violate the law.”

Taylor, 135

S. Ct. at 2044 (alteration in original) (internal quotation omitted). Neither Supreme
Court precedent, nor Eighth Circuit precedent, has sufficiently defined when or how
many times a law enforcement officer may use a Taser on a person resisting arrest.
Indeed, the Eighth Circuit has recognized this area remains undefined.

De Boise, 760

F.3d at 897 (“[W]e have yet to determine whether a violent subject, acting aggressively
toward officers, has a clearly established right to be free from multiple tasings.”).
Accordingly, the Court finds that Deputy Hoch is entitled to qualified immunity,
even if a higher court concludes, in hindsight, that his use of a Taser multiple times
against Zubrod in these circumstances constituted excessive force. If it did, the law was
not so clearly established in September 2013 that a reasonable officer in Deputy Hoch’s
shoes would have clearly understood that his conduct was unlawful. Therefore, the
Court alternatively grants summary judgment in favor of defendant Deputy Hoch with
regard to Counts I and II of plaintiffs’ complaint because he is entitled to qualified
immunity.
C.

Whether Deputies Short and Smith are Liable for Failing to Intervene

The third issue before the Court is whether Deputies Short and Smith are liable if
Deputy Hoch used excessive force because they failed to intervene. The Court finds
they are not.
Deputies Short and Smith can be liable for injuries to Zubrod only if they breached
a duty to intervene where they observed Deputy Hoch violating Zubrod’s constitutional
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rights.

“[A]n officer who fails to intervene to prevent the unconstitutional use of

excessive force by another officer may be held liable for violating the Fourth
Amendment.” Nance v. Sammis, 586 F.3d 604, 612 (8th Cir. 2009) (citing Krout v.
Goemmer, 583 F.3d 557, 565 (8th Cir. 2009)). To be liable under this theory, the
evidence must show “the officer is aware of the abuse and the duration of the episode is
sufficient to permit an inference of tacit collaboration.”

Krout, 583 F.3d at 565.

There is nothing in this record that would support a finding of liability for
nonfeasance by Deputies Short and Smith. The Court found, above, that Deputy Hoch
did not use excessive force against Zubrod. Therefore, logic dictates that Deputies Short
and Smith cannot be held liable for failing to intervene where no constitutional violation
occurred. See Hollingsworth v. City of St. Ann, 800 F.3d 985, 991 (8th Cir. 2015)
(“Here, because it was not clearly established that McCallum’s actions constituted
excessive force, a reasonable officer was not on fair notice that his failure to intervene
when McCallum deployed the Taser violated Hollingsworth’s Fourth Amendment
rights.”).
Even assuming the Court is wrong and a higher court concludes Deputy Hoch used
excessive force against Zubrod, the evidence does not support a finding that Deputies
Short and Smith are liable for failing to intervene. With regard to Deputy Short, the
evidence established that he was so mentally and physically exhausted, and so engaged
in the continued struggle to control Zubrod, that he did not hear Deputy Hoch using the
Taser against Zubrod during the time Zubrod was on his back resisting the deputies.
Even assuming Deputy Short was or should have been aware of Deputy Hoch using a
Taser against Zubrod, the situation facing Deputies Short and Smith was a fluid and
continuing struggle to control Zubrod as he actively resisted arrest. The Court simply
cannot find that any reasonable jury would conclude that a reasonable officer in Deputies
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Short’s or Smith’s shoes would recognize that Deputy Hoch was violating Zubrod’s
constitutional rights. Nor is there a basis for a reasonable jury to conclude that Deputies
Short or Smith had an opportunity to intervene in the midst of their own struggle to obtain
control over Zubrod, even if they recognized a constitutional violation.

See Robinson

v. Payton, 791 F.3d 824, 830 (8th Cir. 2015) (finding it significant, in rejecting a finding
that a trooper had a duty to intervene, that the trooper was himself engaged with the
suspect and not simply standing back and observing the actions of another officer).
Alternatively, the Court finds that Deputies Short and Smith are entitled to
qualified immunity for the same reasons it finds, alternatively, that Deputy Hoch is
entitled to qualified immunity. The law regarding the use of a Taser against a subject
who was physically resisting arrest was not so clearly established in September 2013 that
these deputies could have so clearly known that Deputy Hoch was violating Zubrod’s
constitutional rights that it triggered an obligation to intervene.
Accordingly, the Court grants summary judgment in favor of defendants Deputies
Short and Smith with respect to Count III of plaintiffs’ complaint.
D.

Whether Sheriff Langenbau and Worth County Are Vicariously Liable

In Count VI of their complaint, plaintiffs claim Sheriff Langenbau and Worth
County are vicariously liable for the actions of Deputies Hoch, Short, and Smith. Doc.
2, at 14. Read broadly, this count asserts vicarious liability not only with respect to the
state law negligence claim (Counts IV & V), but with respect to the Section 1983 claims
against the deputies in Counts I through III.

Accordingly, the Court will address

whether, under Section 1983, the Sheriff and County can be held vicariously liable for
the conduct of their deputies.
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The doctrine of respondeat superior provides that an employer is liable for the
conduct an employee committed while the employee is acting within the scope of
employment. Godar v. Edwards, 588 N.W.2d 701, 705 (Iowa 1999). “A claim of
vicarious liability under the doctrine of respondeat superior rests on two elements: proof
of an employer/employee relationship, and proof that the injury occurred within the scope
of that employment.” Id. (internal quotation marks and citation omitted).
Respondeat superior cannot be a basis of liability, however, under Section 1983.
See, e.g., Parrish v. Ball, 594 F.3d 993, 997 (8th Cir. 2010) (“In general, a local
government may not be sued under § 1983 for an injury inflicted solely by its employees
or agents on a respondeat superior theory of liability.”) (internal quotation marks and
citation omitted); Givens v. Jones, 900 F.2d 1229, 1233 (8th Cir. 1990) (holding that
respondeat superior liability is not a basis for liability of supervisors under § 1983).
Plaintiffs have not brought a claim alleging they suffered damages because the Sheriff or
County failed to adequately or properly train the deputies in the use of a Taser.14 Rather,
plaintiffs rely entirely on a theory of respondeat superior to establish the Sheriff’s and
County’s liability. That is not a viable legal theory under Section 1983.
In any event, the Court has found that none of the deputies violated Zubrod’s
constitutional rights. The Eighth Circuit Court of Appeals has “long held that neither
municipal nor supervisory liability may attach in section 1983 actions unless individual
liability is first found on an underlying substantive claim.”

Schoettle, 788 F.3d at 861-

62 (citing Moore v. City of Desloge, Mo., 647 F.3d 841, 849 (8th Cir. 2011)).

14

In their statement of additional material facts (Doc. 68-2), plaintiffs devoted a large number
of paragraphs to the training the deputies received or did not receive regarding tasers. Because
plaintiffs have made no claim of fault based on training, the Court did not include those facts in
its findings.
39

Accordingly, the Court grants summary judgment to the extent plaintiffs’ Count
VI alleges the Sheriff and County are vicariously liable for the deputies’ violations of
Zubrod’s constitutional rights pursuant to their § 1983 claims in Counts I through III.
The Court declines to address the Sheriff’s and County’s vicarious liability for the
deputies’ alleged assault and battery (Count IV) or negligence (Count V) because, as
explained below, the Court declines to exercise jurisdiction over plaintiffs’ state law
claims.
E.

Jurisdiction Over Plaintiffs’ State Law Claims

In Count IV, plaintiffs make a state law claim alleging Deputy Hoch committed
assault and battery, and in Count V, plaintiffs make a state law claim alleging Deputies
Hoch, Short, and Smith were negligent. Jurisdiction over plaintiffs’ state-law claims—
which would be the only claims remaining because the Court has granted summary
judgment with respect to the remaining Counts—was invoked solely pursuant to the
supplemental jurisdiction statute, 28 U.S.C. § 1367. Section 1367 provides a federal
court with jurisdiction over state-law claims forming part of the same “case or
controversy” as the federal claims. Having disposed of all of plaintiffs’ federal claims,
the Court declines to exercise supplemental jurisdiction over his state-law claims.

See

28 U.S.C. § 1367(c)(3) (court may, sua sponte, decline to exercise supplemental
jurisdiction over pendent state-law claims if it has dismissed all claims over which it had
original jurisdiction). Where, as here, all federal claims are dismissed prior to trial, the
balance of factors to be considered in deciding whether to exercise supplemental
jurisdiction over pendent state-law claims typically militates against exercising such
jurisdiction. See, e.g., Johnson v. City of Shorewood, Minn., 360 F.3d 810, 819 (8th
40

Cir. 2004) (citing Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
That is the case here.

Accordingly, the Court declines to exercise supplemental

jurisdiction over plaintiffs’ claims for assault and battery (Count IV) and negligence
(Count V), which the Court will dismiss without prejudice.
F. Plaintiffs’ Loss of Consortium Claim
In Count VII, plaintiffs made a claim for loss of consortium. The tort of loss of
consortium cannot lie against a defendant when the defendant is not liable to the plaintiffs.
See James ex rel. James v. Burlington Northern, Inc., 587 N.W.2d 462, 464-65 (Iowa
1998) (dismissing plaintiff’s loss of consortium claim against defendant after defendant
held not liable). Plaintiffs’ right to recover for loss of consortium is derivative only of
the first five counts of their complaint.

Because the Court grants summary judgment

against plaintiffs on the underlying federal claims in Counts I through III, plaintiffs cannot
recover damages for loss of consortium for those Counts. Accordingly, the Court grants
summary judgment in favor of all defendants with regard to Count VII to the extent it
rests on alleged violations in Counts I through III.
IX. CONCLUSION
For the reasons set forth herein, the Court grants defendants’ motion for summary
judgment (Doc. 41):
1. Plaintiffs’ claims pursuant to Title 42, United States Code, Section 1983 against
all defendants (Counts I, II, and III) are hereby dismissed with prejudice;
2. Plaintiffs’ claims in Counts VI and VII, to the extent they assert causes of
action dependent on plaintiffs’ Section 1983 claims, are also hereby dismissed
with prejudice;
41

3. The Court exercises its discretion under 28 U.S.C. § 1367(c)(3), declines
jurisdiction over the plaintiff’s remaining state law claims (Counts IV, V, VI,
& VII). Accordingly, plaintiffs’ state law claims in Counts IV, V, VI and VII
are dismissed without prejudice.
IT IS SO ORDERED this 8th day of January, 2017.

__________________________________
C.J. Williams
United States Magistrate Judge
Northern District of Iowa

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