Fuller v. Hofoka et al
ORDER granting in part and denying in part 122 Motion for Summary Judgment; denying 148 Motion to recuse; denying 149 Motion for spoliation and perjury; denying 150 Motion for Summary Judgment. See order for details. (Written Opinion) Signed by Judge Patrick J. Schiltz on 7/19/2021. (ecw)
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 1 of 59
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FONTELL DEMANN FULLER,
Case No. 19‐CV‐0886 (PJS/BRT)
STANLEY HAFOKA; DEVIN
SULLIVAN; ROB ERICKSON; AHMED
DUALEH; JANET SNYDER; TAYLOR
KUSESKE; and STEVEN ROUTHE,
Fontell Demann Fuller, pro se.
Kimberly R. Parker and Robert B. Roche, RAMSEY COUNTY
ATTORNEY’S OFFICE, for defendants.
In September 2016, plaintiff Fontell Demann Fuller was charged with being a
felon in possession of a firearm and detained pending trial at the Ramsey County Adult
Detention Center (“ADC”). Fuller was later injured at the ADC when a correctional
officer used a chokehold to take him to the ground and, together with two other
correctional officers, handcuffed him. Fuller brought this pro se action against the
correctional officers and other ADC employees, asserting numerous claims under 42
U.S.C. § 1983 and Minnesota state law, including claims for excessive force, failure to
intervene, conspiracy to violate his civil rights, deliberate indifference to a serious
medical need, and unconstitutional conditions of confinement.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 2 of 59
This matter is before the Court on the parties’ cross‐motions for summary
judgment and on Fuller’s motions for recusal1 and for “spoliation and perjury.” For the
reasons that follow, defendants’ motion for summary judgment is granted in part and
denied in part and Fuller’s motions are denied. The Court dismisses all of Fuller’s
claims, save for one of his excessive‐force claims. That claim will have to be tried.
A. Fuller’s Detention in the ADC
Fuller was booked into the ADC on September 5, 2016, as a pretrial detainee.
Davy Aff. ¶ 3 & Ex. A. Fuller was placed in the general population until January 12,
2017, when he was transferred to the St. Peter Regional Treatment Center for a
psychiatric evaluation. Id. ¶¶ 4–5 & Ex. B. Fuller returned to ADC’s general population
on February 14, 2017. Id. ¶ 5 & Ex. B. Three days later, Fuller was placed in disciplinary
segregation after he disobeyed orders and refused to comply with a security procedure.
Fuller has renewed his motion to recuse the undersigned and Magistrate Judge
Becky R. Thorson. ECF No. 148. Fuller’s motion is based on his disagreement with
previous decisions made by the undersigned and Judge Thorson. As the Court has
already explained to Fuller, the fact that a litigant disagrees with a judge is not grounds
for the judge’s recusal. See ECF Nos. 111, 117. Fuller’s motion to recuse is therefore
Fuller filed additional exhibits the day before the hearing, ECF Nos. 162, 163,
and filed yet more exhibits several days after the hearing, ECF No. 169. These exhibits
were filed in violation of the Local Rules, and defendants did not have a fair
opportunity to respond to them. Therefore, the Court has not considered these exhibits
in ruling on the pending motions.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 3 of 59
Id.; Schwab Aff. ¶¶ 13–14 & Ex. A; Walker Aff. ¶¶ 3–4 & Ex. A (noting a disciplinary
hearing for this incident was held on February 19, 2017). In disciplinary segregation,
detainees are given one hour per day out of their cells. Davy Aff. ¶ 7. On February 20,
2017, Fuller was moved to administrative segregation, which houses detainees with
special needs and detainees who are nearing the end of a term in disciplinary
segregation. Id. ¶¶ 8, 10. In administrative segregation, detainees can earn up to three
hours per day out of their cells. Id. ¶ 8.
B. The April 14, 2017 Incident
On the morning of April 14, 2017, Fuller was out of his cell in the glassed‐in
recreation area in the administrative‐segregation unit. Kuseske Aff. ¶ 3. At
approximately 8:10 am, Fuller pressed the panic button, which connected him to the
control room, where Officer Taylor Kuseske was working. Id. ¶¶ 3–5; Dualeh Aff.
¶¶ 4–5. Fuller demanded that a correctional officer retrieve several items for him.
Kuseske Aff. ¶ 5; Dualeh Aff. ¶ 5; Routhe Aff. Ex. E at 3:39–4:22. Officer Ahmed Dualeh
retrieved all of the items that Fuller requested, except for Fuller’s legal papers. Dualeh
Aff. ¶ 6. Officer Dualeh explained that Fuller would need to make a formal written
request in order to receive his legal papers from the property room. Id.; Routhe Aff.
Ex. E at 3:39–4:54.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 4 of 59
Fuller continued to press the panic button and continued to demand that Officer
Kuseske retrieve items for him. Dualeh Aff. ¶ 7; Kuseske Aff. ¶ 6. According to Officer
Kuseske, Fuller became argumentative. Kuseske Aff. ¶ 7 & Ex. A. At some point,
Officer Kuseske instructed Fuller to return to (or “lock into”) his cell, but Fuller refused.
Dualeh Aff. ¶ 8. Officer Kuseske then called for assistance in getting Fuller back to his
cell. Kuseske Aff. ¶ 7; Routhe Aff. Ex. E at 4:58–5:20.
After receiving Officer Kuseske’s call, Officer Stanley Hafoka walked over to
Fuller. Hafoka Aff. ¶ 4. Fuller again requested his legal papers, and apparently
accused the ADC of stealing them; Officer Hafoka told Fuller that he would have to
wait to get his legal papers, and Officer Hafoka again directed Fuller to return to his
cell. Dualeh Aff. ¶ 9; Routhe Aff. Ex. E at 5:33–6:14. Officers Dualeh and Janet Snyder
arrived during this conversation. Davy Aff. Ex. D at 8:14:09.086–8:14:16.736. Fuller was
“frustrated,” but nevertheless began to walk towards his cell, and Officers Hafoka,
Dualeh, and Snyder followed behind him, in that order. Id. at 8:15:05.323–8:15:08.973;
Routhe Aff. Ex. E at 6:15–6:22; Dualeh Aff. ¶ 10; Hafoka Aff. ¶ 5; Kuseske Aff. ¶ 8.
Fuller stopped at a table, picked up some papers or paper towels3 and a hygiene kit,4
It is unclear whether Fuller picked up papers, paper towels, or both. Compare
Hafoka Aff. ¶ 6 (“papers”), and ECF No. 151 at 3 (“paper”), with ECF No. 7 at 5 (“paper
towels”), and ECF No. 158 at 2 (“paper and paper towl [sic]”). At the hearing, Fuller
said that he picked up both papers and paper towels. In addition, the officers stated
that Fuller also picked up a pencil. Hafoka Aff. ¶ 6 & Ex. A; Dualeh Aff. ¶ 11 & Ex. A.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 5 of 59
and headed down a hallway toward his cell. Hafoka Aff. ¶ 6; Davy Aff. Ex. D
The parties dispute what occurred next. On a motion for summary judgment,
however, the Court must take the non‐movant’s version of events as true unless it is
“blatantly contradicted by the record.” Scott v. Harris, 550 U.S. 372, 380 (2007). With
that in mind, the Court first considers Fuller’s account.5
Fuller does not mention picking up a pencil.
A hygiene kit is a plastic bag that contains deodorant, toothpaste, and a
toothbrush. Hafoka Aff. ¶ 6.
In their reply brief, defendants argue that the factual allegations in Fuller’s briefs
were not backed by admissible evidence because Fuller did not file an affidavit attesting
that all of the factual assertions that he made in his briefs were true. At the hearing, the
Court concluded over defendants’ objection that it had the discretion to allow Fuller—a
pro se litigant—to remedy the oversight by filing an affidavit. Fuller thereafter filed an
affidavit (and then an amended affidavit). ECF Nos. 165, 166. The amended affidavit
states: “I Fontell Fuller being duly sworn under oath and affirmation state the
following is true and factual. . . . The Plaintiff swears under oath and affirmation that
the Motion for Summary Judgment . . . along with the two Memorandums . . . are
absolutely true and correct and factual based upon laws, evidence, and personal
knowledge ‘So Help Me GOD’.” ECF No. 166 at 1.
Although Fuller styles his filings as sworn affidavits, they are not sealed by a
notary public. As a result, they are technically unsworn declarations. See Schneider v.
Chertoff, 245 F.R.D. 422, 424 (D. Neb. 2007). Under 28 U.S.C. § 1746(2), an unsworn
declaration is admissible if the declarant (1) states “under penalty of perjury that the
foregoing is true and correct,” (2) dates the declaration, and (3) signs the declaration.
Fuller’s filings are signed and dated, but neither affidavit says that it was made under
“penalty of perjury.”
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 6 of 59
1. Fuller’s Version
According to Fuller, as he left the table and started walking towards his cell, he
threw his hygiene kit on the ground out of frustration. Routhe Aff. Ex. E at 6:24–6:32.
None of the officers warned Fuller to stop throwing items. ECF No. 151 at 6. Fuller
then walked down the hallway and, just before he reached the door to his cell (which
was at the end of the hallway on Fuller’s right), Fuller threw the papers or paper towels
The Court will not hold this oversight against Fuller. At the hearing, the
undersigned advised Fuller that he could file an affidavit stating that the statements
were either true “So help me God” or made “under penalty of perjury.” The Court
neglected to tell Fuller that, if he chose the former option, he would have to sign his
affidavit in front of a notary public. Fuller did choose the former option, and he
followed the Court’s (admittedly incomplete) direction.
Fuller thus did not fully comply with § 1746, but the Court will nevertheless
accept Fuller’s affidavits. First, defendants did not object to their content, though they
had ample opportunity to do so. Second, almost all of the material factual assertions in
Fuller’s briefs are based on his personal knowledge and would be admissible at trial
through his testimony. Cf. Oglesby v. Lesan, 929 F.3d 526, 534 (8th Cir. 2019) (finding
district court did not abuse its discretion in admitting defendant’s improperly
authenticated documents on summary judgment when plaintiff made “no showing that
these documents could not be presented at trial in an admissible form”); Walker v. Wayne
County, 850 F.2d 433, 435 (8th Cir. 1988) (finding district court’s reliance on inadmissible
double hearsay “not misplaced” when plaintiffs “have personal knowledge of the
events” and “their version of those events [would] be admissible at trial through
[plaintiffs’] personal testimony”).
Even if the Court did not consider the affidavits, the video of the incident and the
audio recording of the disciplinary hearing largely corroborate Fuller’s version of
events and are sufficient to support the Court’s denial of defendants’ motion for
summary judgment on Fuller’s excessive‐force claim against Officer Hafoka.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 7 of 59
that he was carrying at the wall directly in front of him. Routhe Aff. Ex. E at 6:32–6:42.
None of the officers gave any verbal commands to Fuller, such as by telling him to calm
down or pick up the items or get on the ground. See id. at 8:00–8:38; ECF No. 151 at 5.
Instead, Officer Hafoka came up suddenly from behind, and without warning,
put Fuller in a chokehold, pulled him backwards, slammed him onto the concrete floor,
and landed awkwardly on top of him. Routhe Aff. Ex. E at 6:45–7:29. Fuller heard a
“loud pop” and “automatically [he] knew” that his ankle was injured. Id. at 7:30–7:39.
While Fuller was on the ground, Officer Hafoka restrained him in a chokehold for
30 seconds; during those 30 seconds, Fuller was unable to breathe. Id. at 7:56–8:01; ECF
No. 151 at 14–15.
In sum, Fuller concedes that he was “angry” and that he threw things. Routhe
Aff. Ex. E at 8:39–8:50 (“Yes, I was angry. Yes, I threw the hygiene kit down on the
floor. And yes, I threw the paper towel at the wall in front of me and not in his
direction . . . .”). But Fuller insists that he never verbally or physically threatened
Officer Hafoka, never violently swung his arms, and complied with the last directive he
received—which was the directive to return to his cell. Id. at 8:37–8:38 (“I did not
assault him.”); id. at 9:35–9:38 (denying that he swung his arms violently); id.
at 9:57–10:03 (“I didn’t touch him, there was no threat to him, there was no assault to
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 8 of 59
him. He assaulted me.”); id. at 10:27–10:33 (“I didn’t say anything threatening to him,
and I didn’t do anything physically . . . .”).
2. Defendants’ Version
Defendants paint a different picture, identifying four key events that occurred
before the takedown (although defendants are neither clear nor consistent in describing
the order of these events). First, after grabbing the items from the table, Fuller angrily
walked away from the officers, swinging his arms violently. Dualeh Aff. ¶ 11; Snyder
Aff. ¶ 6; Kuseske ¶ 8. Fuller was highly agitated; he breathed heavily, raised his voice,
and continued to argue while walking to his cell.6 Dualeh Aff. ¶ 11; Hafoka Aff. ¶¶ 5, 7.
Second, Fuller threw his personal items. Hafoka Aff. ¶ 7 & Ex. A. Third, Officer
Hafoka warned Fuller to stop throwing things. Id. ¶ 7 & Ex. A. And fourth, Fuller
“squared off toward [Officer Hafoka] with his arms in the air and fists clenched.” Id. ¶
9. Thereafter, defendants say, Officer Hafoka took Fuller to the ground to gain control.
Id. ¶ 7 & Ex. A. While he was on the ground, Fuller “resist[ed] all directives,” and thus
Officer Hafoka continued to attempt to restrain him. Id. ¶ 7; see also id. Ex. A; Dualeh
Aff. ¶ 13 & Ex. A; Snyder Aff. ¶ 7. Officer Dualeh handcuffed Fuller, Dualeh Aff. ¶ 13,
and Officer Snyder assisted Officer Dualeh, Snyder Aff. ¶ 7.
Officer Snyder’s affidavit does not mention Fuller breathing heavily or arguing
while walking. See Snyder Aff. ¶¶ 4–6.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 9 of 59
As noted, there are some inconsistencies in defendants’ accounts. First, it is
unclear when exactly defendants claim that Fuller turned around and “squared off”
with Officer Hafoka. Officer Hafoka’s affidavit indicates that Fuller turned before he
threw his personal belongings. Hafoka Aff. ¶ 7 (“At one point, Plaintiff turned toward
me with his arms raised and his fists clenched and threw the items in his hands.”).
Officer Hafoka’s incident report states that Fuller turned after throwing his personal
items. Id. Ex. A (“As Fuller got to his cell door he stopped[,] threw whatever items he
had left in his hands[,] and turn[ed] towards me.”). And none of the affidavits and
incident reports from the other officers mention Fuller turning toward Officer Hafoka;
that is a claim that only Officer Hafoka makes. Defendants’ attorneys do not
acknowledge these inconsistencies; instead, they simply contend in their brief that
Fuller turned to face Officer Hafoka, turned back around, and then threw the items.
ECF No. 124 at 7.
It is also unclear when Officer Hafoka warned Fuller to stop throwing things.
Compare Hafoka Aff. ¶ 7 (stating warning occurred “[a]t one point” during the incident),
with id. Ex. A (stating the warning occurred after Fuller “started throwing the items”
and before the takedown). And, once again, none of the affidavits or incident reports
from the other officers mention such a warning; this is another claim that only Officer
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 10 of 59
3. The Video
Fuller’s encounter with Officer Hafoka and the other correctional officers was
captured on video by a security camera. The video is not great; it is shot at a distance,
at low resolution, and through security glass (which reflects a lot of light). Moreover,
the security camera’s view of the events is partially blocked by a staircase, pillars, a
counter, two stacks of chairs, and a door. But when the video is played at normal
speed, it provides a fairly clear depiction of the encounter, and it largely supports
Fuller’s version of events.
The video is time stamped. Fuller begins collecting his hygiene kit and papers or
paper towels from the table at 8:15:08.973. Davy Aff. Ex. D at 8:15:08.973–8:15:15.223.
Fuller then walks away from the table and is obstructed from view by a pillar. Id.
at 8:15:15.223–8:15:17.073. It appears that Fuller must have thrown his hygiene kit at
this point, as he is not holding it as he emerges from behind the pillar. Id. at
8:15:17.073– 8:15:18.473. Fuller then continues walking down the hallway, holding
papers in his left hand. Id. at 8:15:18.473–8:15:22.723. Officer Hafoka walks three or
four feet behind him, followed by Officers Dualeh and Snyder. Fuller is walking briskly
and he looks agitated; at one point (right after he emerges from behind the pillar), he
briefly raises his right hand above his head. Id. at 8:15:18.873.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 11 of 59
Fuller approaches the end of the hallway, where his cell is located. Id.
at 8:15:22.523. Just before reaching his cell door (which is to Fuller’s right), Fuller
appears to use his right hand to grab the papers from his left hand and fling them
against the wall directly in front of him, using a backhand motion. Id. at 8:15.22.923—
8:15:23.723. (Fuller confirmed at oral argument that this is exactly what he did.) At no
time does Fuller turn toward the trailing officers or physically threaten them. Officer
Hafoka then quickly closes in on Fuller and, while Fuller is facing directly away from
him, Officer Hafoka grabs him from behind and takes him to the ground.
Defendants claim, however, that the video does not depict what it appears to
depict when played at a normal speed. Instead, defendants say, if the video is paused
and the single frame that appears at 8:15:23.323 is closely examined, Fuller can be seen
directly facing Officer Hafoka with both hands raised above his head in a threatening
Defendants’ argument illustrates why the Eighth Circuit has cautioned against
viewing a video of a use‐of‐force incident solely in slow motion or frame‐by‐frame. See
Dooley v. Tharp, 856 F.3d 1177, 1182–83 (8th Cir. 2017). As is usually true with a single
frame of a low‐resolution video, the frame cited by defendants is fuzzy, and it is
difficult to make out exactly what it depicts. But the frame cannot possibly depict what
defendants claim it depicts.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 12 of 59
In the frame that immediately precedes the frame cited by defendants, Fuller
appears to be faced away from Officer Hafoka with his torso turned slightly to the right.
Davy Aff. Ex. D at 8:15:23.123. In the frame that immediately follows the frame cited by
defendants, Fuller is faced directly away from Officer Hafoka, having just thrown the
papers at the wall. Id. at 8:15:23.523. On defendants’ interpretation of the video, then,
Fuller (who, as noted, had been briskly walking down the hallway) (1) stopped on a
dime; (2) turned 180 degrees (or more) toward Officer Hafoka; (3) threateningly raised
both of his hands above his head; (4) turned another 180 degrees (or more) away from
Officer Hafoka; and (5) flung the papers at the wall—all in four‐tenths of a second (from
8:15:23.123 to 8:15:23.523). This is literally impossible; it is simply beyond the capacity
of any human being. In short, defendants’ contention that Fuller turned to face Officer
Hafoka with raised arms is (1) not seen on the video when the video is played at normal
speed; (2) not supported by the video even when the video is examined frame‐by‐
frame; and (3) not corroborated by any other evidence in the record, save for Officer
Hafoka’s affidavit and incident report, which are inconsistent with each other.
As noted, when the frame cited by defendants (that is, the frame that appears at
8:15:23.323) is examined in isolation, it is difficult to identify exactly what it depicts. But
when the frame is instead examined in the context of the frames that precede and follow
it, the frame appears to capture Fuller in the middle of his throwing motion. Fuller
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 13 of 59
appears to have pivoted his torso toward his left, somewhat like a left‐handed pitcher
beginning his throwing motion. But unlike a left‐handed pitcher, Fuller is not
preparing to throw with his left hand. Instead, he is transferring the papers from his
raised left hand to his raised right hand, just before he uses his right arm to backhand
the papers against the wall in front of him. Id. at 8:15:23.123–8:15:23.523. The Court’s
interpretation of the video may be mistaken, but, unlike defendants’ interpretation, the
Court’s interpretation is physically possible, withstands scrutiny when each frame is
viewed in isolation, and is consistent with what is seen when the video is watched in
real time. The Court’s interpretation is also entirely consistent with Fuller’s account of
The video relatively clearly depicts what happened after Fuller threw the papers.
Officer Hafoka quickly strides towards Fuller, who is facing toward the wall (and thus
directly away from Officer Hafoka). Id. at 8:15:23.923. Officer Hafoka reaches out and
wraps his right arm around Fuller’s neck or shoulders. Id. at 8:15:24.123–8:15:24.523.
Officer Hafoka pulls Fuller backwards, towards the ground. Id. at 8:15:24.523–
8:15:24.923. The two men twist as they fall, and Officer Hafoka lands on top of Fuller.
Id. at 8:15:25.123–8:15:25.973. When Officer Hafoka starts to take Fuller down, Officer
Dualeh is several feet behind Officer Hafoka, and Officer Snyder is several feet behind
Officer Dualeh. Id. Officer Dualeh approaches after the takedown has already begun,
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 14 of 59
id. at 8:15:25.573, and Officer Snyder approaches after the takedown is complete, id.
at 8:15:27.173. The entire takedown occurs in less than 2 seconds.
After Officer Hafoka takes Fuller to the ground, the two are largely obstructed
from view, but they are clearly engaging in a physical struggle. Id. at 8:15:25.973–
8:15:49.817. For at least part of the time—from 8:15:45.167 to 8:15:45.967—Officer
Hafoka’s arm appears to be wrapped around Fuller’s neck in a chokehold, although the
video is unclear. Officers Dualeh and Snyder assist Officer Hafoka in restraining Fuller.
Id. at 8:15:25.973–8:16:47.306. Officer Snyder holds Fuller’s legs at one point, and
Officers Dualeh and Hafoka handcuff Fuller. Id. Fuller is on the ground for about a
minute and a half before he is lifted to his feet by Officers Hafoka and Dualeh. Id.
4. Fuller’s Allegation that the Video Was Altered
As the Court has described, the video of the encounter between Fuller and
Officer Hafoka largely supports Fuller’s version of events. At no point does the video
contradict anything that Fuller says, and the video corroborates Fuller’s account in
many respects. The video is Fuller’s best evidence.
Oddly, though, Fuller adamantly insists that this video—a video that strongly
supports his case—is a fake. Specifically, Fuller alleges that defendants altered the video
in a number of respects, and cites the following alleged problems with the video in
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 15 of 59
support of his allegation: (1) the frame at 8:15:23.323 shows Fuller facing Officer Hafoka
(just as defendants allege), even though Fuller never did so; (2) from 8:15:23.523 to
8:15:24.523, the papers are not consistently in view after Fuller throws them at the wall;
(3) a “Sheriff” wearing a hat and jacket suddenly appears in the hallway between
8:15:45.367 and 8:16:34.358, replacing Officer Snyder for a few frames; and (4) Officer
Hafoka is wearing a jacket in the video, but he was not wearing a jacket on the day of
As the Court explained at great length to Fuller during oral argument, the Court
does not believe that the video has been altered, nor that a reasonable jury could find
that the video has been altered. To briefly recap:
First, there are plausible explanations for all of the alleged problems with the
video cited by Fuller. As the Court has explained, 8:15:23.323 does not show Fuller
turning around and facing Officer Hafoka. Instead, it shows Fuller pivoting toward the
camera and preparing to backhand the papers at the wall. In other words, this frame
shows Fuller doing exactly what he claims to have done. Next, the fact that the papers
were not in view for a few frames after Fuller threw them is explained by the security
door that blocks the papers from the camera’s view and by the fact that papers that are
violently thrown into the air will fly off in multiple directions—up, down, left, and
right—and then, like leaves falling off a tree, float in various directions as they settle
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 16 of 59
toward the ground. No “Sheriff” appears between 8:15:45.367 and 8:16:34.358; the
person depicted is Officer Snyder, the “hat” is her hair, and the “jacket” is her
shoulders. And finally, Officer Hafoka did in fact wear a jacket on the day of the
incident, which is unremarkable given that it was a cool day.7 In fact, Officer Hafoka is
wearing the same jacket in the body‐camera video taken immediately after the incident,
and Fuller does not contend that the body‐camera video was altered. See Routhe Aff.
Ex. B at 0:30–0:44.
Second, altering the video would have been difficult and expensive. This is not
home‐movie footage. Instead, the video is a time‐stamped security recording that was
synchronized with recordings from at least six (and perhaps many more) security
cameras. To alter the video—and, in particular, to create and insert images—would
have been far beyond the capacity of defendants or their attorneys. They would have
had to hire outside experts to alter the video for them.
Third, altering the video in the manner alleged by Fuller would have been
unlawful. Defendants would have risked losing their jobs, the attorneys would have
risked losing their licenses to practice law, and everyone would have risked a prison
At the time that Fuller was taken to the ground by Officer Hafoka, the
temperature in St. Paul was 49 degrees. See Past Weather in St. Paul, Minnesota,
USA—April 2017, Timeanddate.com,
visited July 19, 2021).
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 17 of 59
term. A defendant or an attorney would have taken an enormous risk by tampering
with evidence in this manner.
Fourth, although this case is understandably very important for Fuller, it is a
routine excessive‐force case for defendants. No one was killed; no one suffered life‐
threatening injuries; no one had to be hospitalized. No officer discharged a firearm or
even used a taser or a baton. An officer tackled a detainee, they fell awkwardly, and the
detainee fractured his ankle in the fall. There is no reason to believe that a jury will
return a particularly large verdict in this case. It makes no sense for defendants to
spend a lot of money and risk their livelihoods and freedom to fabricate evidence in
what is (for them) a routine case that has little prospect of resulting in a large damage
Fifth, defendants have no financial stake in this case. If a jury does hold a
defendant liable and award damages to Fuller, those damages will be paid either by
Ramsey County or an insurance company. None of the individual defendants will have
to pay a penny out of their own pockets. And, of course, none of the attorneys for the
defendants is at risk of paying anything to Fuller. Defendants and their counsel have
no reason to commit an expensive, difficult, and risky crime by tampering with
evidence in order to save money for the County or its insurer.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 18 of 59
And finally, if defendants were going to spend a lot of money and risk their
careers and freedom in order to alter video in a routine case in which they have no
personal stake, wouldn’t they do a better job than this? What possible reason would
defendants have for inserting a sheriff with a hat or putting a jacket on Officer Hafoka,
which would not help their defense in the slightest and which would only call attention
to the fact that they had tampered with evidence? Why would defendants bother to put
a jacket on Officer Hafoka, but not put a weapon in Fuller’s hand? Why would
defendants insert a single murky frame of Fuller raising his arms; why would they not
instead insert several clear frames of Fuller throwing a punch at Officer Hafoka or
throwing items directly at the officers? In short, why would defendants go through all
of this trouble, expense, and risk to manufacture a video that supports Fuller’s version of
For these reasons, the Court does not believe that the video was altered or that a
reasonable jury could find that the video was altered. As a result, the Court will rely on
the video in ruling on the pending motions. The Court also denies Fuller’s “Motion for
Spoliation & Perjury,” ECF No. 149, which is based on his allegation that the video was
altered and on his complaints about the type of routine inconsistencies in testimony that
arise in every case.
C. Escort to the Cell
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 19 of 59
After Fuller was handcuffed, Officers Hafoka and Dualeh lifted him to his feet
and escorted him into his cell. Davy Aff. Ex. D at 8:16:48.506–8:17:01.856. Sergeants
Rob Erickson and Steven Routhe, and Officer Devin Sullivan8 arrived, responding to a
call for assistance.9 Id. at 8:17:03.906–8:17:22.106; Erickson Aff. ¶ 3 & Ex. A; Routhe Aff.
¶¶ 3–4 & Ex. A; Sullivan Aff. ¶ 2. Fuller was then escorted from his cell to a
disciplinary‐segregation cell in a different part of the ADC. Routhe Aff. ¶ 5.
The walk to the disciplinary‐segregation cell was recorded on Sergeant Routhe’s
body camera. Id. Ex. B. (Unlike the security camera that recorded the incident, Sergeant
Routhe’s body camera recorded audio as well as video.) Fuller walked on his own but
with a limp, asked for the nurse, and said his ankle was broken. See id. at 0:32–0:39;
Dualeh Aff. ¶ 16; Erickson Aff. ¶ 4 & Ex. A; Davy Aff. Ex. D at 8:17:34.056–8:17:56.706.
Sergeant Erickson told Fuller that the nurse would come to his new cell. Erickson Aff.
¶ 4 & Ex. A; Routhe Aff. Ex. B at 0:32–0:35, 1:45–1:50. Fuller and the staff also discussed
the incident. Fuller denied touching Officer Hafoka; Officer Hafoka responded that
Defendants refer to Devin Sullivan as an officer, ECF No. 124 at 8, as does
Fuller’s amended complaint, ECF No. 7 at 8. Sullivan’s affidavit says he is currently a
sergeant, but it does not indicate if he held that title on the date of the incident. Sullivan
Aff. ¶ 1. Fuller’s memorandum refers to Sullivan as a sergeant. ECF No. 151 at 13. The
Court will defer to the amended complaint and refer to Sullivan as an officer. But, even
if Sullivan was a sergeant, the failure‐to‐intervene and failure‐to‐train claims against
him would still fail.
Four staff arrived after Fuller was restrained; the identity of the fourth officer is
unclear. Davy Aff. Ex. D at 8:17:03.906–8:17:22.106.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 20 of 59
Fuller was “throwing shit” and he did not want to be hit by it. Routhe Aff. Ex. B
at 0:37–0:44. Fuller admitted to throwing papers, but maintained that he threw them
“in the opposite direction” of the officers, and insisted that Officer Hafoka “snatched”
him. Id. at 2:02–2:30. After Fuller reached the new cell, he was strip searched and given
a new uniform. Routhe Aff. ¶ 6.
D. Medical Care and Disciplinary Hearing
According to ADC records, a nurse examined Fuller at 11:40 am on April 14,
2017—about three‐and‐one‐half hours after the incident. Mangine Aff. ¶ 4 & Ex. A at 1.
The nurse wrote that Fuller’s ankle was swollen, cool to the touch, and normal in color,
and that Fuller’s forehead had a lump the size of a 50‐cent piece. Id. Ex. A at 1. The
same day, a nurse gave Fuller an ice pack and Ibuprofen, and instructed him to elevate
his ankle. Id. at 1, 5. Fuller, however, denies that any nurse saw him on the day of the
incident and claims that the ADC records are fabricated. See ECF No. 151 at 14–15.
On April 15, 2017, a nurse examined Fuller at 10:30 am, and found his left ankle
swollen with very limited mobility. Mangine Aff. ¶ 5 & Ex. A at 5. Two hours later, an
xray was taken of Fuller’s ankle and knee. Id. The results, which were reported to the
ADC on April 17, 2017, showed that Fuller “had a nondisplaced fracture in the left
distal fibula with soft swelling of the lateral malleolar.” Id. ¶ 6; see also id. Ex. A at 7.
Fuller was provided with crutches on that day. Id. ¶ 6 & Ex. A at 9.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 21 of 59
Two disciplinary hearings were also held on April 17, 2017. The hearings
covered both the April 14 incident and an unrelated incident that had occurred on
April 12. Routhe Aff. ¶ 8. Sergeant Routhe conducted the hearings, found that Fuller
had committed infractions, and sanctioned Fuller by ordering him to spend 20 days in
the disciplinary‐segregation unit for the April 12 incident and 20 more days for the
April 14 incident. Id. ¶¶ 9–13. As a result, Fuller remained in disciplinary segregation
until he was released from the ADC on May 5,10 2017. Davy Aff. ¶ 10.
On April 18, 2017—while he was still detained at the ADC—Fuller was taken to
an orthopedist at HealthPartners Orthopedic Clinic. Mangine Aff. ¶ 7. The doctor
diagnosed Fuller with a “nondisplaced fracture in the left distal fibula and [a] left knee
contusion.” Id.; see also id. Ex. A at 10. Fuller disputes the doctor’s diagnosis of his
injuries. Fuller insists—without any medical evidence—that he had a broken ankle,
fractured knee, concussion, and permanent tissue damage.11 ECF No. 151 at 5, 14. The
doctor put Fuller in a plaster cast and instructed him not to put weight on his leg.
Mangine Aff. ¶ 7 & Ex. A at 10–16. A follow‐up appointment was scheduled for May 2,
The Davy Affidavit states that Fuller was released on May 7, 2017. Davy Aff.
¶ 10. That is incorrect. See id. Ex. B at 1; Routhe Aff. ¶ 14.
Fuller alleged in his amended complaint that he had a broken ankle, chipped or
bruised knee bone, an infection, two swollen lymph nodes in his left thigh, tissue
damage, and a concussion. It appears that Fuller abandoned the allegations about an
infection and swollen lymph nodes in his subsequent briefs. In any event, there is no
medical evidence in the record indicating that Fuller sustained such injuries.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 22 of 59
2017. Id. ¶ 8 & Ex. A at 5. At the follow‐up appointment, the doctor instructed Fuller to
continue to keep weight off his leg and to return in two weeks. Id. ¶ 8 & Ex. A at 22–27.
Another follow‐up appointment was scheduled for May 16, 2017, but Fuller was
released from the ADC on May 5, 2017. Id. ¶¶ 9–10 & Ex. A at 21. This lawsuit
A. Standard of Review
Summary judgment is warranted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A dispute over a fact is “material” only if its resolution
might affect the outcome of the suit under the governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is “genuine” only if
“the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. “The evidence of the non‐movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Id. at 255.
B. Official‐Capacity Claims
Fuller brings official‐capacity claims against all defendants. Official‐capacity
claims against the ADC officers are, in fact, claims against Ramsey County. See Parrish
v. Ball, 594 F.3d 993, 997 (8th Cir. 2010) (“[A] suit against a public official in his official
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 23 of 59
capacity is actually a suit against the entity for which the official is an agent.” (citation
and quotation marks omitted)). “Official‐capacity liability under 42 U.S.C. § 1983
occurs only when a constitutional injury is caused by a government’s policy or custom
. . . .” Gladden v. Richbourg, 759 F.3d 960, 968 (8th Cir. 2014) (citation and quotation
marks omitted). To succeed on his official‐capacity claims, then, Fuller must identify an
unconstitutional policy or custom, and then he must prove that his injury was caused
by that unconstitutional policy or custom. See Russell v. Hennepin County, 420 F.3d 841,
848 (8th Cir. 2005); Williams‐El v. Johnson, 872 F.2d 224, 230 (8th Cir. 1989).
Fuller has done just the opposite. Although Fuller has identified a policy
(Ramsey County’s use‐of‐force policy12), he does not claim that the policy is
unconstitutional, nor does he claim that the policy caused his injury. To the contrary,
Fuller argues that the defendant officers violated the policy, and that it was their violation
of the policy that caused his injury. As the Eighth Circuit has explained: “We cannot
see how officials’ deviation from established policy itself constitutes official municipal
policy. If it did, the concept of official municipal policy would be turned on its head.”
Bolderson v. City of Wentzville, 840 F.3d 982, 986 (8th Cir. 2016).
Fuller cites Policy 498, which was not in place on April 14, 2017. ECF No. 7 at 7;
ECF No. 124 at 13 n.7. The Court instead refers to the use‐of‐force policy that was in
place on that date. Davy Aff. ¶ 16 & Ex. E.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 24 of 59
Fuller might be able to satisfy his burden if he had evidence that the employees
of the ADC had a custom of violating the use‐of‐force policy. But Fuller has no such
evidence. The only purported violation of the policy that he has cited is the April 14
incident itself. “[A] single deviation from a written, official policy does not prove a
conflicting custom or usage.” Wedemeier v. City of Ballwin, 931 F.2d 24, 26 (8th Cir. 1991)
(rejecting official‐capacity claims when the only policy identified was a use‐of‐force
policy, plaintiffs argued that defendants deviated from the policy but did not contend
the policy was constitutionally deficient, and plaintiffs had no evidence of deviations
from the policy outside of their own incident); see also McReynolds v. Schmidli, No. 19‐
3772, 2021 WL 2932508, at *6 (8th Cir. July 13, 2021) (two incidents of excessive force by
same officer were inadequate to establish an “unofficial custom authorizing officers to
use excessive force in effectuating arrests” for purposes of Monell claim); Brewington v.
Keener, 902 F.3d 796, 802 (8th Cir. 2018) (“[I]n the face of an express municipal policy
prohibiting excessive force, two incidents of excessive force—even assumed to be
true—cannot be considered a pattern of widespread and pervasive unconstitutional
conduct.”); Russell, 420 F.3d at 849 (“[A] single instance of failing to follow official
policy is insufficient to establish a custom of violating the policy.”); Williams‐El, 872 F.2d
at 230 (“This single occurrence does not prove the existence of a custom or usage in
conflict with the official policy . . . .”).
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 25 of 59
Because Fuller has not identified a link between a policy or custom and the
alleged violation of his rights, the Court grants summary judgment to defendants on all
C. Individual‐Capacity Claims
1. Qualified Immunity
Fuller next raises several individual‐capacity claims. Defendants contend that all
of Fuller’s claims are barred by the doctrine of qualified immunity.
“In resolving questions of qualified immunity at summary judgment, courts
engage in a two‐pronged inquiry. The first asks whether the facts, taken in the light
most favorable to the party asserting the injury, show the officer’s conduct violated a
federal right.” Smith v. Conway County, 759 F.3d 853, 858 (8th Cir. 2014) (citation,
quotation marks, and alterations omitted). The second “asks whether the right in
question was clearly established at the time of the violation.” Id. (citation and quotation
“A right is clearly established if its contours are ‘sufficiently clear that a
reasonable official would understand that what he is doing violates that right.’”
Mitchell v. Shearrer, 729 F.3d 1070, 1076 (8th Cir. 2013) (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)). The inquiry into whether a right is clearly established is not
done “at a high level of generality,” Ashcroft v. al‐Kidd, 563 U.S. 731, 742 (2011), as “[t]he
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 26 of 59
dispositive question is whether the violative nature of particular conduct is clearly
established,” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam) (citation and quotation
marks omitted). Although there need not “be a case directly on point, existing
precedent must place the lawfulness of the particular action beyond debate.” City of
Escondido v. Emmons, 139 S. Ct. 500, 504 (2019) (per curiam) (citation, quotation marks,
and alteration omitted).
Fuller can show that a right was clearly established in one of three ways: He can
(1) identify “existing circuit precedent that involves sufficiently similar facts to squarely
govern the officer’s actions such that the officer had notice that his specific use of force
was unlawful”; (2) “present a robust consensus of cases of persuasive authority doing
the same”; or (3) “demonstrate that a general constitutional rule applied with obvious
clarity to the facts at issue.” Boudoin v. Harsson, 962 F.3d 1034, 1040 (8th Cir. 2020)
(citations, quotation marks, and alterations omitted); see also Quraishi v. St. Charles
County, 986 F.3d 831, 835 (8th Cir. 2021) (“There may also be the rare obvious case
where the unlawfulness of the officer’s conduct is sufficiently clear even though existing
precedent does not address similar circumstances.” (citation and quotation marks
Qualified immunity creates an “exacting standard” that protects “all but the
plainly incompetent or those who knowingly violate the law” by giving “government
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 27 of 59
officials breathing room to make reasonable but mistaken judgments.” City of San
Francisco v. Sheehan, 575 U.S. 600, 611 (2015) (citation and quotation marks omitted).
The Court now turns to Fuller’s excessive‐force claim.
2. Excessive Force
Fuller argues that Officer Hafoka used excessive force in taking him down and
holding him in a chokehold for 30 seconds while on the ground.13 Because Fuller was a
pretrial detainee, his excessive‐force claim is evaluated under the Due Process Clause of
the Fourteenth Amendment, which “protects a pretrial detainee from the use of
excessive force that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395 n.10
(1989). “[A] pretrial detainee must show only that the force purposely or knowingly
used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389,
Kingsley’s objective‐reasonableness standard must not be applied
“mechanically.” Id. at 397; see also Lombardo v. City of St. Louis, 141 S. Ct. 2239, 2242
(2021) (per curiam) (emphasizing the importance of considering all relevant facts
surrounding an excessive‐force incident and explaining that excessive‐force cases
require “careful, context‐specific analysis”). Instead, a court must adopt “the
In their brief, defendants argue that the force used by Officers Dualeh and
Snyder was reasonable. But Fuller has not pleaded an excessive‐force claim against
either of those defendants in his amended complaint.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 28 of 59
perspective of a reasonable officer on the scene” and base its analysis on “what the
officer knew at the time,” without “the 20/20 vision of hindsight.” Kingsley, 576 U.S.
at 397. In evaluating the reasonableness of a use of force, a court should consider:
the relationship between the need for the use of force and
the amount of force used; the extent of the plaintiff’s injury;
any effort made by the officer to temper or to limit the
amount of force; the severity of the security problem at
issue; the threat reasonably perceived by the officer; and
whether the plaintiff was actively resisting.
Id. This list of factors is not exclusive, however, and a court must consider any other
relevant circumstances. Id. Finally, a court must defer to the judgment of jail officials
about what is necessary to maintain institutional order and security. Id.
a. The Takedown
i. Violation of a Federal Right
The Court will begin with Officer Hafoka’s takedown of Fuller, putting aside for
the moment Officer Hafoka’s use of a chokehold to restrain Fuller while he was on the
ground.14 As it must, the Court will accept as true Fuller’s version of events—which, as
the Court has noted, is substantially corroborated by the video. According to Fuller, he
See Jackson v. Stair, 944 F.3d 704, 712 (8th Cir. 2019) (finding district court erred
when it did not analyze each tasing of the plaintiff by the same officer separately);
Kasiah v. Crowd Sys., Inc., 915 F.3d 1179, 1183–85 (8th Cir. 2019) (separately analyzing
three uses of force by the same officer against the same plaintiff); Ryan v. Armstrong, 850
F.3d 419, 427 (8th Cir. 2017) (evaluating uses of force against a pretrial detainee “both
individually and in combination”).
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 29 of 59
was complying with the last directive given to him—that is, the directive to return to his
cell—at the time that he was taken to the ground. The officers never warned Fuller to
stop throwing things or ordered him to do (or not to do) anything else before the
takedown. Fuller made no verbal or physical threats. And, although Fuller threw a
hygiene kit and papers, he aimed nothing at the officers, and he never turned to face the
officers. On Fuller’s account, then, he was an agitated but compliant pretrial detainee
who threw personal belongings, but who did not throw anything toward any other
person or physically or verbally threaten any other person. Applying the Kingsley
factors to Fuller’s version of the facts, the Court finds that Officer Hafoka used excessive
force in violation of the Due Process Clause.
First, the amount of force used was disproportionate to the need for force.
Although Fuller was agitated and had thrown objects, he had not verbally or physically
threatened the officers nor thrown the objects in their direction. He was complying
with Officer Hafoka’s last directive (to return to his cell) and was empty‐handed at the
moment of the takedown. There was little or no need for force. By contrast, the force
used—a violent takedown without warning—was substantial. Cf. Burrows v. Grossheim,
60 F.3d 830, at *2 (8th Cir. 1995) (per curiam) (unpublished table decision) (approaching
inmate from behind, grabbing him by the neck, and choking him was excessive and
unnecessary when inmate had a “bad attitude” and was not at his work assignment, but
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 30 of 59
officer did not order inmate to begin working before using force or perceive inmate as a
threat); Hickey v. Reeder, 12 F.3d 754, 758 (8th Cir. 1993) (“[t]he relationship between the
need for force (zero) and the force used (a painful and incapacitating shock) was
excessive” when inmate was tased for refusing to sweep cell but was not physically
threatening officers). This factor weighs in favor of Fuller.
Second, Fuller suffered significant injuries. It is undisputed that Fuller fractured
his ankle, suffered at least a contusion to his knee, and had a lump on his forehead the
size of a 50‐cent piece.15 See Fischer v. Hoven, 925 F.3d 986, 989 (8th Cir. 2019) (broken
hand, arm, nose, and tooth, and a facial cut were “serious injuries”). This factor, again,
weighs in favor of Fuller.
Third, Officer Hafoka made no effort to temper the amount of force used. The
use‐of‐force policy in place at the ADC on April 14, 2017, provided that an officer may
use force “[s]hould verbal commands be ineffective.” Davy Aff. Ex. E at 2. But on
Fuller’s version of events, Officer Hafoka did not even attempt to use verbal commands
before taking him to the ground. Fuller was complying with the last verbal directive
that he had received—to return to his cell—and Officer Hafoka gave no new commands
Defendants argue that the injuries were caused by the “awkward” position of
Fuller’s leg, and not by the force applied by Officer Hafoka. Even if true, this argument
does not undermine Fuller’s contention that Officer Hafoka slammed Fuller onto the
concrete floor and landed on top of him, which is still a high degree of force capable of
producing injury (such as the large lump on Fuller’s forehead) even if Fuller’s leg had
not been in an “awkward” position.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 31 of 59
or warnings before the takedown.16 See Treats v. Morgan, 308 F.3d 868, 874 (8th Cir.
2002) (“The use of force here would have been tempered if [the officer] had followed the
[correctional facility’s] regulation requiring him to warn [the inmate] before spraying
him with capstun, giving him another chance to comply.”).
Moreover, Officer Hafoka did not first attempt to restrain Fuller in a less forceful
manner, despite the use‐of‐force policy’s directive that officers should “us[e] the least
amount of force necessary to control the situation.” Davy Aff. Ex. E at 2. Instead,
Officer Hafoka approached Fuller from behind and violently slammed him to the
ground without warning. See Martinez v. Fields, 627 F. App’x 573, 575 (8th Cir. 2015)
(per curiam) (finding jury issue on excessive‐force claim when non‐English‐speaking
inmate was slammed into wall after pressing call button despite order not to, and
officer did not explain why he used physical force “as opposed to using a lower level of
intervention for an uncooperative detainee as outlined in [the facility’s] use‐of‐force
policy”). This factor also supports Fuller’s excessive‐force claim.
Fourth, the severity of the security problem was minimal. The incident was
precipitated by Fuller abusing the panic button, arguing over the intercom with Officer
Kuseske, and refusing to return to his cell. None of these actions harmed or threatened
Officer Hafoka says that he warned Fuller to stop throwing items. Fuller
disagrees. The video is inconclusive, and so a reasonable jury could credit either
version of events. For the purposes of evaluating defendants’ motion for summary
judgment, however, the Court must draw inferences in favor of Fuller.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 32 of 59
to harm any person or gave rise to an immediate threat to institutional security. As
events progressed, the severity of the security problem remained minimal. Fuller
complied with the order to return to his cell, did not turn around, did not throw things
at the officers or anyone else, and did not verbally or physically threaten anyone. In
addition, because the parties were located in an enclosed area that was not accessible to
the general population, there was little risk that other detainees would become
involved. (Only one other detainee appears on camera during the incident; he is
outside of the glassed‐in area and displays no interest in the takedown of Fuller.) Fuller
continued to pose no immediate threat to the officers or to the broader security of the
ADC before the takedown. This factor, again, favors Fuller.
Fifth, the threat reasonably perceived by Officer Hafoka was minimal. At the time
of the takedown, Fuller was complying with directives, was not verbally or physically
threatening, had not turned around, and had nothing left in his hands. The perceived
threat was further diminished by the fact that Officer Hafoka was several steps behind
Fuller (and thus out of arm’s reach) and closely followed by two other officers. Officer
Hafoka was not alone or outnumbered, and he knew that he could receive immediate
assistance from two other officers if needed. Cf. Fischer, 925 F.3d at 989 (noting officer
reasonably thought arrestee was a threat when he was “the only officer on the scene
with two hostile, intoxicated individuals”); Brown v. City of Golden Valley, 574 F.3d 491,
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 33 of 59
498 (8th Cir. 2009) (mentioning number of officers on the scene when evaluating threat
posed by arrestee).
True, Fuller threw papers or paper towels immediately before he was taken
down. But when Fuller had thrown the hygiene kit a few seconds earlier, none of the
officers reacted. The absence of any reaction indicates that the officers did not interpret
this sort of behavior to be a serious threat. Cf. Hickey, 12 F.3d at 757 (rejecting argument
that use of taser was necessary to respond to an agitated and cursing inmate, when
inmate’s agitation and cursing continued after he was tased and officers made no efforts
to calm or restrain the inmate). In between throwing the hygiene kit (prompting no
reaction) and throwing the papers (prompting a violent takedown without warning),
Fuller walked toward his cell, raised his right arm once, and pivoted his torso to throw
the papers.17 This hardly seems like an escalation of the threat.
In fact, Officer Hafoka stated in his affidavit that he decided to take Fuller down
not because Fuller threw things, but because Fuller “squared off toward [Officer
Hafoka] with his arms in the air and fists clenched.” Hafoka Aff. ¶ 9. But the video
Defendants dispute this characterization, argue that Fuller was verbally and
physically aggressive, and point to the affidavits stating that Fuller violently swung his
arms and argued while walking. Fuller denies violently swinging his arms or making
any verbal or physical threats. The video is inconclusive, as it does not have audio, and
as it just shows Fuller briefly raising his right arm. A jury could therefore credit either
characterization of events. Again, for the purposes of evaluating defendants’ motion,
the Court must draw inferences in favor of Fuller.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 34 of 59
(viewed in the light most favorable to Fuller) shows that Fuller did no such thing. On
Fuller’s version of events, Officer Hafoka’s statement was mistaken, dishonest, or based
on an unreasonable perception of events.18 Even if Officer Hafoka thought that Fuller’s
conduct was escalating and the threat was growing, he took no efforts to de‐escalate the
situation before resorting to force. See Tatum v. Robinson, 858 F.3d 544, 548–49 (8th Cir.
2017) (“Here, a reasonable officer might have thought that [arrestee’s] angry arguing
could eventually escalate to physical violence. But a reasonable officer would not think
[arrestee]—who was angrily arguing but made no verbal threats or physical movements
indicating a threat—posed an ‘immediate’ safety threat.”). Of course, officers are “not
required in all cases to wait until they are attacked before they resort to force,” McCrary‐
El v. Shaw, 992 F.2d 809, 812 (8th Cir. 1993), but the Court cannot conclude, based on
If Officer Hafoka’s mistaken belief that Fuller turned to face and threaten him
was reasonable, then Officer Hafoka would have been justified in immediately applying
physical force against Fuller. Cf. Kingsley, 576 U.S. at 397 (courts must not view uses of
force “with the 20/20 vision of hindsight”); Garcia v. City of New Hope, 984 F.3d 655, 665
(8th Cir. 2021) (noting officer is entitled to qualified immunity if he “‘act[s] upon a
mistake of fact that is objectively reasonable’” under Fourth Amendment standard
(citation omitted)). Drawing inferences in favor of Fuller, however, the Court cannot
conclude that Officer Hafoka’s mistaken perception that Fuller turned around was
reasonable. First, the video shows that Fuller pivoted but did not turn. See Quraishi, 986
F.3d at 836 (“A court may consider other evidence [aside from the officer’s testimony] to
determine what a reasonable officer would have perceived.”). Second, the incident
reports and affidavits of the other officers do not mention Fuller turning, meaning that
two other officers on the scene (Dualeh and Snyder) and a third officer watching the
events from the control room (Kuseske) did not perceive Fuller as turning to face
Officer Hafoka. And third, Officer Hafoka’s affidavit and incident report are
inconsistent with each other.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 35 of 59
Fuller’s version of events, that Officer Hafoka could have reasonably believed that
Fuller posed an immediate threat.
Sixth and finally, Fuller was not actively resisting. Defendants argue that the
incident was precipitated by Fuller’s abuse of the panic button and his refusal to follow
Officer Kuseske’s orders. That is true, but that is only part of the story. After Fuller and
Officer Hafoka talked, Fuller was told to return to his cell, and he was in the process of
complying with that order when he was taken down. Cf. McReynolds, 2021 WL 2932508,
at *3 (arrestee’s delay in complying with orders to get on the ground was “immaterial to
the excessive force analysis” because arrestee ultimately complied and the “alleged
noncompliance ended well before the tackle”).
To summarize: If Fuller’s version of events is true—as the Court must assume
for purposes of ruling on defendants’ summary‐judgment motion—all six of the
Kingsley factors indicate that the takedown was not objectively reasonable. It does not
appear that “security concerns [were] . . . immediately implicated” or that “force [was]
used as a reasonable last resort to preserve discipline.” Smith, 759 F.3d at 860 (citations
and quotation marks omitted). Instead, it appears that Officer Hafoka simply lost his
temper at a detainee who had gotten under his skin. See Treats, 308 F.3d at 872 (“The
law recognizes that order and discipline are important in running a correctional
institution, but that does not authorize the arbitrary use of force, nor does it justify
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 36 of 59
punitive use of force on difficult inmates not posing a real threat to other persons or
raising security concerns.” (internal citation omitted)); Hickey, 12 F.3d at 759 (“[F]orce in
response to [a] provocative act which due to its timing does not implicate order and
security of [an] institution is likely retaliatory rather than a good faith effort to maintain
order[.]” (citation omitted)).
For these reasons, the Court holds that, on Fuller’s version of events, Officer
Hafoka’s takedown of Fuller violated Fuller’s constitutional right to be free of excessive
force.19 See McReynolds, 2021 WL 2932508, at *3 (holding “the use of significant force
The cases cited by defendants are not to the contrary. In Parrish v. Dingman, 912
F.3d 464, 468 (8th Cir. 2019), an arrestee was escorted into his holding cell while holding
a mattress. The arrestee asked for a different cell, the officer declined, and the arrestee
stepped towards him, sticking the mattress through the cell door. The officer
responded by forcing the arrestee into a wall and then leveraging him to the ground.
The Eighth Circuit held that the officer’s actions were reasonable because a “reasonable
officer could believe [the arrestee] was trying to leave the holding cell, justifying force to
maintain order and security in the jail.” Id. The mattress prevented the officer from
simply closing the door and posed a safety risk as it could be used as a shield. Here,
Fuller was in a contained area, was complying with the latest order, did not step
towards an officer, and was empty‐handed when taken down.
Hicks v. Norwood, 640 F.3d 839, 842 (8th Cir. 2011), considered the use of an arm‐
bar maneuver against an arrestee who “refused to comply with directions, loudly
abused the correctional officers, and aggressively leapt toward” an officer during
booking. The use of force was found to be objectively reasonable because a reasonable
officer would believe that the arrestee was a threat. Here, Fuller did not leap towards
Officer Hafoka or anyone else and was complying with instructions.
In Hosea v. City of St. Paul, 867 F.3d 949 (8th Cir. 2017), an arrestee suspected of
domestic assault was tackled by officers after he initially refused to comply with
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 37 of 59
against” a suspect who was “compliant and neither a threat nor a flight risk” was “not
ii. Clearly Established
The Court now turns to the question of whether it was clearly established on
April 14, 2017, that a pretrial detainee in Fuller’s situation—that is, a pretrial detainee
who was agitated but who was complying with the last directive that he had been given
directives to get on the ground. The use of force was found to be reasonable because
“an alleged domestic violence victim was within reach of Hosea, Hosea had only
reluctantly begun to partially comply with the orders, and the situation remained fluid
and dangerous.” Neal v. Ficcadenti, 895 F.3d 576, 582 (8th Cir. 2018). In this case, no one
was at risk of being harmed by Fuller, he was complying with the last directive that he
had received, and the situation could not reasonably be characterized as “dangerous.”
Defendants cite Blazek v. City of Iowa City, 761 F.3d 920 (8th Cir. 2014), but the
relevant holding is actually found in Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir.
2006). Wertish held that the force used to handcuff an arrestee was reasonable when he
refused to get out of his vehicle, free his hands, or stand, and when he suffered only de
minimis injuries. In contrast, Fuller was compliant and suffered serious injuries.
Defendants also rely on two district‐court cases from Arkansas. In Clayton v.
Ridgell, pepper spraying an inmate was held not to violate the Eighth Amendment
because the inmate did not comply with orders and received several warnings.
No. 5:16‐cv‐00168‐JM‐JJV, 2016 WL 4257190, at *3 (E.D. Ark. Aug. 4, 2016), report &
recommendation adopted sub nom. May v. Ridgell, 2016 WL 4259993 (E.D. Ark. Aug. 11,
2016). By contrast, Fuller was compliant and was not warned. Unlike the plaintiff in
Clayton, Fuller had no opportunity to “follow . . . instructions and avoid the use of
force.” Id. And, in London v. Sanders, pepper spraying a non‐threatening inmate was
found justified because he refused to comply with orders. No. 5:14CV00106‐KGB‐JJV,
2015 WL 7733456, at *2 (E.D. Ark. Mar. 19, 2015), report & recommendation adopted, 2015
WL 7738005 (E.D. Ark. Nov. 30, 2015). Here, Fuller was complying with the last order
that he had received.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 38 of 59
and who did not pose an immediate threat to himself or others—had a constitutional
right not to be violently taken to the ground without any warning. The Court cannot
find (and the parties have not cited) a case on all fours with this case. But “officers
cannot escape suit merely because no prior case involved exactly the same facts as
alleged by the plaintiff.” Williams v. Jackson, 600 F.3d 1007, 1013 (8th Cir. 2010); see also
Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[O]fficials can still be on notice that their
conduct violates established law even in novel factual circumstances.”). “[T]here is no
requirement that [the plaintiff] must find a case where the very action in question has
previously been held unlawful, so long as existing precedent [has] placed the statutory
or constitutional question beyond debate.” Karels v. Storz, 906 F.3d 740, 747 (8th Cir.
2018) (internal citations and quotation marks omitted).
Eighth Circuit precedent had clearly established by April 14, 2017, that using
force without warning against a compliant pretrial detainee who was agitated but not
posing an immediate safety or security threat violated the Due Process Clause. In
Smith, a pretrial detainee yelled that he was in pain and then became violent and did
not comply with orders after officers came to assist him. 759 F.3d at 860–61. He was
tased once, fell to the ground, and was tased a second time before he could comply with
orders. The Eighth Circuit concluded that the second tasing was excessive because the
detainee was “no longer acting aggressively,” because the detainee was in pain and
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 39 of 59
therefore was no longer a threat, and because the detainee was “attempting to comply”
with orders. Id. Fuller and the detainee in Smith are similar in a number of respects:
Both were agitated, both were attempting to comply with orders, and neither posed an
immediate threat. Smith held that officers may not use force on detainees when “[n]o
‘security concern’ or disciplinary necessity is apparent,” putting Officer Hafoka on
notice of the illegality of his conduct toward Fuller. Id. at 861; see also Edwards v. Byrd,
750 F.3d 728, 732 (8th Cir. 2014) (“inflicting unjustified harm on” a pretrial detainee is
unconstitutional when it is not needed “to restore order or discipline”).
Fourth Amendment cases are also instructive. The Fourth Amendment protects
arrestees from excessive force in the same way that the Fourteenth Amendment protects
pretrial detainees from excessive force, and excessive‐force claims under the Fourth
Amendment are governed by the same objective‐reasonableness standard as excessive‐
force claims under the Fourteenth Amendment. See Patel v. Lanier County, 969 F.3d
1173, 1182 (11th Cir. 2020) (“After Kingsley, the Fourteenth Amendment’s standard is
analogous to the Fourth Amendment’s.”). Fourth Amendment excessive‐force cases
had clearly established by April 14, 2017, that a violent takedown or similar maneuver
could not be employed against a nonviolent, nonthreatening arrestee who was not
attempting to flee. See McReynolds, 2021 WL 2932508, at *4 (“[A] reasonable officer
would have had fair warning that, in June 2012, he could not violently takedown a
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 40 of 59
person who was not threatening anyone, not actively resisting arrest, and not
attempting to flee.”); MacKintrush v. Pulaski Cnty. Sheriff’s Dep’t, 987 F.3d 767, 770–71
(8th Cir. 2021) (determining it was clearly established in April 2015 that an officer
violated constitutional rights by body‐slamming arrestee to the floor, after an agitated
arrestee shrugged off the officer’s hand from his shoulder but was not violent or
threatening); Rokusek v. Jansen, 899 F.3d 544, 548 (8th Cir. 2018) (concluding that in April
2015, “every reasonable official would have understood that he could not throw . . . a
nonviolent, nonthreatening misdemeanant who was not actively resisting—face‐first to
the ground”); Rohrbough v. Hall, 586 F.3d 582, 586–87 (8th Cir. 2009) (finding officer was
not entitled to qualified immunity when he punched and took down arrestee who had
turned with arms raised to greet officer and returned a push from the officer).
Fuller’s claim is also supported by cases interpreting the Eighth Amendment,
which protects prisoners from cruel and unusual punishment. Excessive‐force claims
under the Eighth Amendment are analyzed somewhat differently from excessive‐force
claims under the Fourth and Fourteenth Amendments.20 But in deciding whether a
The Fourth and Fourteenth Amendments prohibit force that is objectively
unreasonable, Kingsley, 576 U.S. at 396–97; Graham, 490 U.S. at 397, while the Eighth
Amendment prohibits force used “maliciously and sadistically to cause harm,” Hudson
v. McMillian, 503 U.S. 1, 7 (1992). The core difference between these tests is the
consideration of the officer’s subjective intent. Under the Eighth Amendment’s
malicious‐and‐sadistic standard, “the subjective motivations of the individual officers
are of central importance in deciding whether force used” was excessive. Graham, 490
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 41 of 59
defendant in an excessive‐force case brought under the Fourth or Fourteenth
Amendments has qualified immunity—and, in particular, in deciding whether the
plaintiff’s right to be free from the challenged application of force was clearly
established—the Eighth Circuit has nevertheless consulted Eighth Amendment case
law. See, e.g., Brown, 574 F.3d at 499–500 (considering a Fourth Amendment excessive‐
force claim but drawing on Eighth Amendment precedent when evaluating the clearly‐
established prong of the qualified‐immunity inquiry).
The Eighth Circuit’s decisions under the Eighth Amendment support the
conclusion that Fuller’s right to be free from the force applied by Officer Hafoka was
clearly established on April 14, 2017. In Treats, for example, the Eighth Circuit
considered an excessive‐force claim brought by an inmate who had been pepper
sprayed without warning after refusing to comply with an order. The court explained
that “the law was clearly established that correctional officers do not have a blank check
to use force whenever a prisoner is being difficult.” Treats, 308 F.3d at 875. Although
correctional officers may use force “to make an inmate comply with a lawful prison
U.S. at 398. By contrast, “[t]he officer’s subjective intent . . . is irrelevant under the
Fourteenth Amendment,” Fisherman v. McGriff, 17‐CV‐2320 (PJS/ECW), 2020 WL
1330176, at *3 (D. Minn. Mar. 23, 2020), aff’d, 832 F. App’x 454 (8th Cir. 2020) (per
curiam), and under the Fourth Amendment, Graham, 490 U.S. at 397–99.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 42 of 59
regulation or order,” the Eighth Circuit concluded that correctional officers may do so
only when “the inmate’s noncompliance also poses a threat to other persons or to prison
security.” Id. Similarly, Hickey established that “summary force” was not a
constitutional “method of discipline where security concerns are not immediately
implicated.” 12 F.3d at 759. Like the inmates in Treats and Hickey, Fuller was being
difficult, but his behavior did not pose an immediate security concern.
“‘[I]n the light of pre‐existing law,’” then, “‘the unlawfulness [of Officer Hafoka’s
conduct was] apparent.’” Morris v. Zefferi, 601 F.3d 805, 812 (8th Cir. 2010) (quoting
Anderson, 483 U.S. at 640). Therefore, taking Fuller’s version of events as true, the Court
finds that Officer Hafoka is not entitled to qualified immunity with respect to the claim
that he used excessive force in taking Fuller to the ground, and thus the Court denies
defendants’ motion for summary judgment on this claim. See McReynolds, 2021 WL
2932508, at *3 (“Where the record does not conclusively establish the lawfulness of an
officer’s use of force, summary judgment on the basis of qualified immunity is
inappropriate.” (citation and quotation marks omitted)).
The Court likewise denies Fuller’s motion for summary judgment on this claim.
In considering Fuller’s motion, the Court must, of course, assume that defendants’
version of events is true—including their claims that Fuller was swinging his arms
violently, that Officer Hafoka instructed Fuller to stop throwing things, that Fuller
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 43 of 59
defied that instruction when he threw his papers against the wall, and that Fuller made
a threatening gesture by turning toward Officer Hafoka with his arms in the air and
fists clenched. Dualeh Aff. ¶ 11; Hafoka Aff. ¶¶ 5, 7, 9 & Ex. A; Kuseske ¶ 8; Snyder
Aff. ¶ 6. If the jury finds that defendants’ version of events is true, then Officer Hafoka
will be entitled to qualified immunity under the judicial decisions that the Court has
In sum, because there are multiple disputed material facts, the Court cannot
grant summary judgment to either party on Fuller’s claim that Officer Hafoka used
excessive force by taking him to the ground. See Henderson v. City of Woodbury, 909 F.3d
933, 939–40 (8th Cir. 2018) (reversing grant of qualified immunity when there was a
genuine dispute over whether arrestee complied with officer directives before the use of
b. The 30‐Second Chokehold
Fuller also contends that Officer Hafoka held him in a chokehold for 30 seconds
after he was on the ground.21 ECF No. 151 at 14–15. The context of the chokehold is
different from the context of the takedown, though. In an affidavit, Officer Hafoka
Defendants argue that there is no evidence that Fuller was placed in a
chokehold. That is not true. At his disciplinary hearing, Fuller repeatedly stated that
Officer Hafoka held him in a chokehold. Routhe Aff. Ex. E at 7:43–8:01. Moreover, a
reasonable jury could find that the video of the incident shows that Officer Hafoka
applied a chokehold on Fuller. See Davy Aff. Ex. D at 8:15:45.167–8:15:45.967.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 44 of 59
asserts that Fuller “continued to resist all directives” after the takedown, and no
evidence in the record contradicts Officer Hafoka’s statement. Hafoka Aff. ¶ 7; see also
Snyder Aff. ¶ 7; Dualeh Aff. ¶ 13 & Ex. A. To the contrary, the video shows that, after
the takedown, Fuller was physically resisting efforts to place him in handcuffs. See, e.g.,
Davy Aff. Ex. D at 8:15:44.367–8:15:48.017 (showing Fuller kicking his legs). In short,
whereas Fuller was compliant before the takedown, after the takedown Fuller was
defying directives and resisting the officers’ efforts to restrain him.
Having reviewed the relevant case law, the Court concludes that on April 14,
2017, it was not clearly established that a correctional officer could not use a chokehold
on a pretrial detainee who was unrestrained, who was physically resisting efforts to
restrain him, and who was refusing to comply with directives. See al‐Kidd, 563 U.S.
at 735 (“[L]ower courts have discretion to decide which of the two prongs of qualified‐
immunity analysis to tackle first.”). Indeed, Eighth Circuit precedent at the time was
clear that a correctional officer may use force to restrain a physically resistant detainee.
See Ryan v. Armstrong, 850 F.3d 419, 428 (8th Cir. 2017) (qualified immunity barred
excessive‐force claims based on officers twice tasing and placing their body weight on a
pretrial detainee for three minutes, when the detainee was on the ground in the prone
position but was still physically resisting and ignoring directives).
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 45 of 59
Fourth Amendment case law bolsters this conclusion. See, e.g., Brossart v. Janke,
859 F.3d 616, 625 (8th Cir. 2017) (tasing arrestee who refused to cooperate with officers,
made threats of violence, ignored commands, and physically resisted arrest did not
violate clearly established law in 2011); Ehlers v. City of Rapid City, 846 F.3d 1002, 1012
(8th Cir. 2017) (“[W]e have held that officers may use force to handcuff a suspect who is
resisting, even if that force causes pain.”); Carpenter v. Gage, 686 F.3d 644, 649 (8th Cir.
2012) (“Law enforcement officers may use physical force to subdue an arrestee when he
fails to comply with orders to lie still during handcuffing.”).
As a result, qualified immunity bars Fuller’s excessive‐force claim as to the
chokehold, and the Court grants defendants’ summary‐judgment motion on this claim.
3. Failure to Intervene
Fuller asserts failure‐to‐intervene claims against Officers Dualeh and Snyder.22
An officer may be held liable for failing to “intervene to prevent the use of excessive
force when ‘(1) the officer observed or had reason to know that excessive force would
be or was being used, and (2) the officer had both the opportunity and the means to
prevent the harm from occurring.’” Robinson v. Payton, 791 F.3d 824, 829 (8th Cir. 2015)
The amended complaint also asserts a failure‐to‐intervene claim against Officer
Kuseske. Officer Kuseske was in the control room during the takedown of Fuller,
Kuseske Aff. ¶ 3, making it impossible for him to intervene. The amended complaint
also mentions that Officer Sullivan failed to intervene. Officer Sullivan was in a
different part of the ADC when the takedown occurred, Sullivan Aff. ¶ 2, so he, too,
could not possibly have intervened.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 46 of 59
(quoting Nance v. Sammis, 586 F.3d 604, 612 (8th Cir. 2009)); see also Edwards, 750 F.3d
at 733 (“A jail official violates the Due Process Clause . . . when he is deliberately
indifferent to a substantial risk of serious harm to a pre‐trial detainee and fails to protect
the detainee.” (citation and quotation marks omitted)).23
Neither Officer Dualeh nor Officer Snyder can be held liable for failing to prevent
Officer Hafoka’s takedown of Fuller. Officer Dualeh was several steps behind Officer
Hafoka at the moment of the takedown, and Officer Snyder was several steps behind
Officer Dualeh. The takedown occurred in a split second and without warning.
Neither Officer Dualeh nor Officer Snyder had an opportunity to prevent the takedown.
As a result, neither can be held liable for failing to intervene. Cf. Smith, 759 F.3d at 861
(qualified immunity did not apply when officer failed to intervene after the officer
using force had warned detainee that he was going to deploy taser for a second time);
Krout v. Goemmer, 583 F.3d 557, 566 (8th Cir. 2009) (no qualified immunity on failure‐to‐
intervene claim when use of excessive force on arrestee lasted five minutes, giving
officers plenty of time to intervene).
The amended complaint alleges that Sergeants Routhe and Erickson failed to
intervene to provide adequate medical care. But “outside of the excessive force context,
there is no clearly established law regarding a duty to intervene to prevent
constitutional violations.” Hess v. Ables, 714 F.3d 1048, 1052 (8th Cir. 2013); see also Livers
v. Schenck, 700 F.3d 340, 360 (8th Cir. 2012) (“We have not recognized a duty to
intervene to prevent other constitutional violations.”). The Court will therefore treat the
claims against Sergeants Routhe and Erickson as deliberate‐indifference claims.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 47 of 59
The Court has already held that qualified immunity bars Fuller’s excessive‐force
claim against Officer Hafoka based on the chokehold, and thus Fuller’s failure‐to‐
intervene claims against the other officers necessarily fail. See Hollingsworth v. City of St.
Ann, 800 F.3d 985, 991 (8th Cir. 2015) (“Here, because it was not clearly established that
[the officer’s] actions constituted excessive force, a reasonable officer was not on fair
notice that his failure to intervene . . . violated [the plaintiff’s] Fourth Amendment
The Court therefore grants summary judgment to defendants on Fuller’s failure‐
Fuller alleges that defendants conspired to deprive him of his constitutional
rights. To succeed on his conspiracy claim, Fuller “must prove: (1) that the defendants
conspired with others to deprive him of constitutional rights; (2) that at least one of the
alleged co‐conspirators engaged in an overt act in furtherance of the conspiracy; and
(3) that the overt act injured him.” Holmes v. Slay, 895 F.3d 993, 1001 (8th Cir. 2018)
(citation and quotation marks omitted). “[T]hough the question of a conspiracy . . . is
usually a jury question, a court may resolve a conspiracy claim on summary judgment
where it is convinced that the evidence presented is insufficient to support any
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 48 of 59
reasonable inference of a conspiracy.” Robinson v. Hawkins, 937 F.3d 1128, 1134 (8th Cir.
2019) (citation and quotation marks omitted).
Fuller’s conspiracy claim is not viable because he has introduced no evidence
that defendants reached an agreement to deprive him of his constitutional rights. Fuller
“must allege with particularity and specifically demonstrate with material facts that the
defendants reached an agreement.” Bonenberger v. St. Louis Metro. Police Dep’t, 810 F.3d
1103, 1109 (8th Cir. 2016) (citation and quotation marks omitted). Fuller has not done
so. Fuller argues that there was a conspiracy because Officers Dualeh and Snyder
watched Officer Hafoka take down and choke him, Officer Dualeh handcuffed him,
Officer Snyder held his legs, and no nurse visited him on the day of the incident. ECF
No. 151 at 4–5, 14–15. But none of this proves or even suggests that any officer had an
agreement with any other officer. The Court therefore grants summary judgment to
defendants on Fuller’s conspiracy claims. See Robinson, 937 F.3d at 1134–35
(determining summary judgment was warranted on conspiracy claim when plaintiff
had “scant evidence” to show an agreement between the officers).
5. Failure to Train and Supervise
Fuller also asserts failure‐to‐train and failure‐to‐supervise claims against the
inferior officers (Officers Dualeh, Hafoka, Kuseske, Snyder, and Sullivan) and the
superior officers (Sergeants Erickson and Routhe). Fuller’s claim against the inferior
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 49 of 59
officers reflects a misunderstanding of the nature of failure‐to‐train and failure‐to‐
supervise claims. These claims allow a plaintiff to hold a supervisor liable for failing to
train or supervise inferior officers—not to hold an inferior officer liable for failing to be
trained or supervised. Fuller’s failure‐to‐train and failure‐to‐supervise claims against
Officers Dualeh, Hafoka, Kuseske, Snyder, and Sullivan are therefore dismissed.
Sergeants Erickson and Routhe were superior officers, and thus they could
potentially be held liable to Fuller for failing to train or supervise their inferior officers.
See McGuire v. Cooper, 952 F.3d 918, 922 (8th Cir. 2020) (“Even in the absence of an
allegation of direct participation in a constitutional violation, a supervising officer may
still face liability for an alleged failure to train and supervise subordinates.”); Parrish,
594 F.3d at 1002 (“[A] supervisor’s failure to train an inferior officer may subject the
superior to § 1983 liability in his individual capacity . . . .”). A failure‐to‐supervise claim
requires Fuller to show that Sergeants Erickson and Routhe (1) “[r]eceived notice of a
pattern of unconstitutional acts committed by subordinates,” (2) “[d]emonstrated
deliberate indifference to or tacit authorization of the offensive acts,” (3) “[f]ailed to take
sufficient remedial action,” and (4) “[t]hat such failure proximately caused injury to
[Fuller].” McGuire, 952 F.3d at 922 (citation and quotation marks omitted). Similarly, a
failure‐to‐train claim requires showing that (1) “the failure to train amounts to
deliberate indifference to the rights of persons with whom the [officers] come into
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 50 of 59
contact,” and (2) “the alleged failure to train actually caused the constitutional
deprivation.” Id. at 923 (citation and quotation marks omitted); see also Liebe v. Norton,
157 F.3d 574, 579 (8th Cir. 1998) (noting failure‐to‐train and failure‐to‐supervise claims
“ultimately require the same analysis”).
Fuller has introduced no evidence that “a pattern of unconstitutional acts
committed by subordinates” even occurred, much less that Sergeants Erickson and
Routhe were aware of those unconstitutional acts, much less that they acted with
deliberate indifference to those acts. Nor has Fuller introduced any evidence
connecting any violation of his rights to a failure to train or supervise. Cf. Brossart, 859
F.3d at 627 (rejecting supervisory‐liability claim based on tasings when they were the
first tasings committed by the inferior officer and there were no prior complaints).
Nothing in the record would allow a reasonable jury to hold either Sergeant Erickson or
Sergeant Routhe liable for failing to train or supervise their subordinates.
The Court therefore grants summary judgment to defendants on Fuller’s failure‐
to‐train and failure‐to‐supervise claims. See Flemons v. Devane, 779 F. App’x 423, 424
(8th Cir. 2019) (per curiam) (affirming grant of summary judgment to defendants when
“there was no evidence showing that [defendants] failed to supervise adequately the
other defendants, or that they were deliberately indifferent to any inadequacies in the
other defendants’ training”).
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 51 of 59
6. Failure to Conduct an After‐Action Review
Fuller alleges that Sergeants Erickson and Routhe failed to conduct an after‐
action review following the April 14 incident in violation of Ramsey County policy. But
Ramsey County policy does not give Fuller an independent legal right to an after‐action
review that he can enforce in a § 1983 action. Cf. Cole v. Bone, 993 F.2d 1328, 1334 (8th
Cir. 1993) (“[U]nder section 1983 the issue is whether the government official violated
the Constitution or federal law, not whether he violated the policies of a state agency.”);
Edwards v. Baer, 863 F.2d 606, 608 (8th Cir. 1988) (“[P]olice department guidelines do not
create a constitutional right.”). Moreover, Fuller has not explained how a failure to
investigate the incident after it occurred harmed him. Cf. Mettler v. Whitledge, 165 F.3d
1197, 1205 (8th Cir. 1999) (noting “an inadequate investigation into the January 22
shooting could not have caused” that shooting); Andrews v. Fowler, 98 F.3d 1069, 1079
(8th Cir. 1996) (“While [police chief’s] failure to investigate the [plaintiff’s complaint of
rape against a police officer] may have violated state law and common sense, it did not
rise to the level of a separate constitutional violation of [plaintiff’s] rights.”); Lollie v.
Johnson, No. 14‐CV‐4784 (SRN/HB), 2015 WL 3407931, at *6 (D. Minn. May 27, 2015)
(“[P]ost‐injury wrongful conduct cannot be the moving force behind the injury at
issue.” (citation and quotation marks omitted)); Williams v. Omodt, 640 F. Supp. 120, 124
(D. Minn. 1986) (rejecting claim based on supervisor’s failure to investigate a use of
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 52 of 59
force, noting that “[w]hile a more thorough investigation of the incident on February 17
would have been preferable, [the supervisor’s] failure to conduct one did not injure
plaintiff or rise to the level of a constitutional violation”).
For these reasons, the Court grants summary judgment to defendants on Fuller’s
7. Deliberate Indifference
Fuller next contends that Sergeants Erickson and Routhe were deliberately
indifferent to his injuries, since (according to Fuller) no nurse came to treat him on the
day of the incident, and he was not taken to see an orthopedist until four days after the
incident. Fuller’s deliberate‐indifference claim is evaluated under the Due Process
Clause of the Fourteenth Amendment. Ryan, 850 F.3d at 425. “In order to succeed on a
deliberate indifference claim, a pretrial detainee must show that he ‘suffered from an
objectively serious medical need’ and that one or more defendants ‘had actual
knowledge of that need but deliberately disregarded it.’” Id. (quoting Bailey v. Feltmann,
810 F.3d 589, 593–94 (8th Cir. 2016)).24
The objective prong of this inquiry is generally satisfied “if the medical need in
question is supported by medical evidence, such as a physician’s diagnosis, or is so
The Eighth Circuit has declined to apply the Kingsley objective‐reasonableness
standard to pretrial detainees’ deliberate‐indifference claims. Whitney v. City of St.
Louis, 887 F.3d 857, 860 n.4 (8th Cir. 2018).
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 53 of 59
obvious that even a layperson would easily recognize the necessity for a doctor’s
attention.” Id. (citation and quotation marks omitted). But when (as here) the
deliberate‐indifference claim is based on a delay in treatment, “the objective seriousness
of the deprivation should also be measured by reference to the effect of delay in
treatment.” Laughlin v. Schriro, 430 F.3d 927, 929 (8th Cir. 2005) (citation and quotation
marks omitted). Fuller “must place verifying medical evidence in the record to
establish the detrimental effect of delay in medical treatment.” Id. (citation and
quotation marks omitted); see also Reece v. Groose, 60 F.3d 487, 491 (8th Cir. 1995)
(requiring plaintiff to present “verifying medical evidence” showing that defendants
“ignored an acute or escalating situation or that delays adversely affected his
prognosis” (citation and quotation marks omitted)).
Fuller has introduced no “verifying medical evidence” showing that his medical
conditions “were detrimentally affected by the alleged inadequacies and delays.”25
Cassady v. Lee County, 795 F. App’x 481, 482 (8th Cir. 2020) (per curiam). For their part,
defendants have introduced expert evidence confirming that any delay in treating
A fractured bone is a serious medical injury that needs a doctor’s attention,
although it is debatable whether and when a layperson would have “easily
recognize[d]” that Fuller’s ankle had been fractured. In any event, the Eighth Circuit
has held that even when the need for medical attention is obvious, a plaintiff pursuing a
delayed‐treatment claim must still introduce medical evidence that the delay had a
detrimental effect. See Jackson v. Riebold, 815 F.3d 1114, 1120 (8th Cir. 2016). As noted,
Fuller has introduced no such evidence.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 54 of 59
Fuller did not detrimentally impact his condition and that waiting until April 18, 2017 to
take him to a doctor was “within a normal period of time after this type of undisplaced
left fibula fracture.” See Parker Aff. Ex. A at 9–11.
The Court therefore grants summary judgment to defendants on Fuller’s
deliberate‐indifference claims. See Corwin v. City of Indep., 829 F.3d 695, 698–99 (8th Cir.
2016) (five‐day delay in visit to doctor for treatment of fractured hand did not sustain
deliberate‐indifference claim when there was no evidence the delay had a detrimental
effect); Laughlin, 430 F.3d at 929 (affirming grant of summary judgment on delay‐based
deliberate‐indifference claim when inmate “offered no evidence establishing that any
delay in treatment had a detrimental effect”).
8. Conditions of Confinement
Fuller’s amended complaint asserts a conditions‐of‐confinement claim based on
his detention for 77 days in the administrative and disciplinary‐segregation units,
during which Fuller was allowed outside of his cell for only one hour each day. But
Fuller appears to have abandoned this claim in his briefs, instead arguing that the
ADC’s system of classifying detainees by making them wear differently colored
uniforms is unconstitutional. Both claims fail.
Because Fuller was a pretrial detainee, his conditions‐of‐confinement claims are
evaluated under the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 55 of 59
(1979). Bell established that “the government may detain defendants pretrial and may
subject them to the restrictions and conditions of a detention facility so long as those
conditions and restrictions do not amount to punishment, or otherwise violate the
Constitution.” Stearns v. Inmate Servs. Corp., 957 F.3d 902, 907 (8th Cir. 2020) (citation,
quotation marks, and alterations omitted). Conditions of confinement amount to
punishment when they were intentionally punitive or when they were “not reasonably
related to a legitimate governmental purpose or were excessive in relation to that
As to the segregation units: Fuller has failed to “create a genuine issue of
material fact that defendants confined him to administrative segregation . . . for
punitive reasons rather than for institutional security.” Whitfield v. Dicker, 41 F. App’x 6,
7 (8th Cir. 2002) (per curiam). Fuller was placed in segregation because he repeatedly
violated rules and instructions and disrupted the order and security of the ADC.
Routhe Aff. Exs. C, D; Walker Aff. Ex. A. Fuller was afforded disciplinary hearings for
each infraction and ADC staff regularly reviewed his placement; because he continued
to behave badly, he was kept in segregation for a total of 77 days. Routhe Aff. Exs. C, D;
Walker Aff. Ex. A; Davy Aff. Ex. C. The ADC’s goal in confining Fuller to
segregation—maintaining security—is a legitimate governmental purpose. Bell, 441
U.S. at 540, 546; Putnam v. Gerloff, 639 F.2d 415, 419 (8th Cir. 1981).
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 56 of 59
For these reasons, the Court holds that Fuller’s confinement for 77 days in
administrative and disciplinary segregation was constitutional. See Kanu v. Lindsey, 739
F. App’x 111, 118 (3d Cir. 2018) (placing pretrial detainee in disciplinary and
administrative segregation for about 70 days was constitutional when done for safety
reasons); Collazo‐Leon v. U.S. Bureau of Prisons, 51 F.3d 315, 318–19 (1st Cir. 1995)
(sanctioning pretrial detainee to 90 days in disciplinary segregation after he offered a
bribe and attempted to escape was constitutional because it was related to legitimate
interest in institutional order); Dale v. Brott, No. 12‐CV‐0383 (PJS/JSM), 2013 WL
12074952, at *12–13 (D. Minn. July 23, 2013) (confining pretrial detainee to unit outside
of general population for 42 days was constitutional when confinement was due to
medical issue and no‐contact status with another inmate), report & recommendation
adopted, 2013 WL 12074953 (D. Minn. Sept. 5, 2013), aff’d, 562 F. App’x 551 (8th Cir. 2014)
(per curiam); Snowden v. Rankin, No. CV 07‐1992, 2008 WL 508465, at *3–4 (D. Ariz.
Feb. 21, 2008) (confining pretrial detainee to disciplinary segregation for nearly 90 days
was constitutional when detainee failed to show the confinement was done without a
legitimate governmental purpose).26
Similarly, limiting Fuller’s recreation time did not have an impermissible
punitive purpose, followed Minnesota regulations, and presents no constitutional
concern. See Minn. R. 2911.3100, subp. 7(F); Campbell v. Cauthron, 623 F.2d 503, 507 & n.4
(8th Cir. 1980) (noting that detainees and inmates confined to their cells “for more than
sixteen hours per day shall ordinarily be given the opportunity to exercise for at least
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 57 of 59
As to the differently colored uniforms: Fuller asserted this claim for the first time
in his brief. Since the claim is not mentioned in the amended complaint, it is not
properly before the Court, and the Court declines to consider it.27 See Horde v. Elliot,
No. 17‐CV‐0800 (WMW/SER), 2018 WL 987683, at *17 (D. Minn. Jan. 9, 2018) (noting “it
is procedurally improper to raise new issues in the briefing” on a motion for summary
judgment (citing Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir.
1989))), report & recommendation adopted, 2018 WL 985294 (D. Minn. Feb. 20, 2018).
The Court grants summary judgment to defendants on Fuller’s conditions‐of‐
9. Minnesota Constitutional Claims
Fuller also invokes the Remedies Clause of the Minnesota Constitution, which
provides that “[e]very person is entitled to a certain remedy in the laws for all injuries
or wrongs which he may receive to his person, property or character, and to obtain
one hour per day outside the cell”); Bartunek v. Hall County, No. 8:18CV489, 2020 WL
1441853, at *11 (D. Neb. Mar. 24, 2020) (confining pretrial detainee to cell for 22 hours
after an inmate fight in his housing unit was constitutional), aff’d, 828 F. App’x 340 (8th
Cir. 2020) (per curiam), cert. denied, 141 S. Ct. 1709 (2021).
Even if the Court considered Fuller’s color‐classification claim, the Court would
reject it on the merits. The requirement that differently classified inmates wear
differently colored uniforms is plainly not punitive. See Banks v. Hennessey, No. C 11‐
02031 EJD (PR), 2012 WL 6725890, at *4 (N.D. Cal. Dec. 27, 2012); King v. County of Los
Angeles, No. CV 10‐6592‐TJH (AGR), 2012 WL 13124276, at *1 (C.D. Cal. Oct. 3, 2012).
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 58 of 59
justice freely and without purchase, completely and without denial, promptly and
without delay, conformable to the laws.” Minn. Const. art. I, § 8. However, “[t]here is
no private cause of action for violations of the Minnesota Constitution.” Eggenberger v.
W. Albany Twp., 820 F.3d 938, 941 (8th Cir. 2016) (citation and quotation marks omitted).
Moreover, the Remedies Clause “is not a separate and independent source of legal
rights.” Id. at 942 (citation and quotation marks omitted). Rather, the clause “enjoins
the legislature from eliminating those remedies that have vested at common law
without a legitimate legislative purpose.” Olson v. Ford Motor Co., 558 N.W.2d 491, 497
(Minn. 1997) (emphasis omitted); see also Hickman v. Grp. Health Plan, Inc., 396 N.W.2d
10, 14 (Minn. 1986). For these reasons, the Court grants summary judgment to
defendants on Fuller’s Minnesota constitutional claims.28
10. Additional Claims
Finally, Fuller raises in his briefs a number of claims that were not mentioned in
his amended complaint. Specifically, Fuller alleges that his First Amendment rights
were violated, that the Ramsey County District Court undertook illegal actions against
him (including by detaining him pending trial), that defendants impeded his ability to
file a habeas petition, that he is a victim of medical malpractice, that he was searched
The amended complaint mentions “medical negligence,” but does not name
any medical professionals as defendants. Fuller also cites Minn. Stat. § 466.04, which
sets tort‐liability caps but does not provide an independent cause of action.
CASE 0:19-cv-00886-PJS-BRT Doc. 176 Filed 07/19/21 Page 59 of 59
and arrested in violation of the Fourth Amendment, and that he was charged with
felonies without probable cause. These claims are not properly before the Court, and
the Court therefore declines to consider them. See Horde, 2018 WL 987683, at *17.
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
Plaintiff’s motion to recuse [ECF No. 148] is DENIED.
Plaintiff’s motion for spoliation and perjury [ECF No. 149] is DENIED.
Plaintiff’s motion for summary judgment [ECF No. 150] is DENIED.
Defendants’ motion for summary judgment [ECF No. 122] is GRANTED
IN PART and DENIED IN PART as follows:
The motion is DENIED as to plaintiff’s claim that defendant Stanley
Hafoka used excessive force in taking him to the ground.
The motion is GRANTED in all other respects, and all of plaintiff’s
other claims are DISMISSED WITH PREJUDICE.
Dated: July 19, 2021
Patrick J. Schiltz
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?