Zika v. Calvert et al
Filing
50
MEMORANDUM AND ORDER - Defendant Christopher Calvert's motion for summary judgment (filing 24 ) is denied in its entirety. Defendant Matthew Holcomb's motion for summary judgment (filing 25 ) is granted in part and denied in part. This case is referred to the Magistrate Judge for discovery. Ordered by Senior Judge John M. Gerrard. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GARRY ZIKA,
Plaintiff,
4:23-CV-3249
vs.
MEMORANDUM AND ORDER
CHRISTOPHER CALVERT, and
MATTHEW HOLCOMB, in their
individual capacities,
Defendants.
The plaintiff, Garry Zika, alleges the defendants, Christopher Calvert
and Matthew Holcomb, violated his Fourth Amendment rights. See filing 1 at
2. The defendants were law enforcement officers with the Scotts Bluff County
Sheriff's Office at the time of the alleged violations. See filing 28 at 3-4. Zika
brought this lawsuit under 42 U.S.C. § 1983. This matter is before the Court
on the defendants' motions for summary judgment on the basis of qualified
immunity. Filing 25; filing 26.
I. STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does
so, the nonmovant must respond by submitting evidentiary materials that set
out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to show
that disputed facts are material, the party opposing summary judgment must
cite to the relevant substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir.
2011). The mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which the
jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving party,
there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
II. BACKGROUND
Based on the limited evidence available,1 the parties mostly agree about
what happened on January 26, 2020:
1 Fact discovery in this case has been deferred until the Court's determination of qualified
immunity. See filing 17; filing 34. The Court denied the plaintiff's request for additional
discovery under Rule 56(d). Filing 34. The primary evidence consists of affidavits describing
each parties' version of events. See filing 26-5 (Calvert's affidavit); filing 26-7 (Holcomb's
affidavit); filing 38-1 (Zika's affidavit). The defendants have also presented some evidence of
2
Zika's neighbor called the Scotts Bluff County Sheriff's Office to report
that Zika was riding on a tractor and drove over a mailbox. See filing 27 at 3.
Both defendants were familiar with Zika, and they knew that he had been
physically aggressive with law enforcement officers in the past. Calvert drove
to Zika’s residence to investigate the report. See filing 27 at 3. When Calvert
arrived, he saw Zika riding on a tractor, and a mailbox on the ground.
Zika and Calvert had some brief interaction while Zika was on his
tractor, compare filing 26-5 at 3, with filing 38-1 at 3-4, and then Zika parked
the tractor and went inside his home. Calvert did not follow Zika. Instead,
Calvert spoke to the neighbor who made the initial call and took some
photographs of the mailbox. Filing 26-5 at 3. Calvert then radioed Holcomb for
assistance.
The parties' version of events somewhat differs at the point Holcomb
joined the scene—the defendants claim that Zika came onto his porch and told
the defendants to leave before going back inside. Filing 27 at 4. Zika denies
this; he says he never exited his home after the second officer arrived. See filing
38-1 at 4-5. But it's undisputed that Zika was inside his house when the
defendants approached the front door to ask Zika about the mailbox. Zika
refused to speak to defendants. Zika called 911 to report the defendants for
trespassing. The defendants then attempted to forcibly enter the residence,
and Zika stood behind his door to stop them. The defendants were able to
overpower Zika and enter his home. See filing 27 at 4.
From here, the parties’ version of events diverges significantly.
According to the defendants, once they were inside the home, a struggle
Zika's prior interactions with law enforcement, and an affidavit from Zika's neighbor. See
generally filing 26.
3
ensued: Zika resisted the officers and ignored their commands, and he fought
the officers' attempt to handcuff him. See filing 27 at 5. Zika alleges that the
defendants immediately tackled him and tased him. Filing 38-1 at 5. Zika
denies that he resisted arrest or became physically aggressive with the officers.
It is undisputed that Calvert deployed his taser twice. After the second
time, Zika was handcuffed and arrested. Filing 27 at 5.
III. DISCUSSION
1. QUALIFIED IMMUNITY
Zika claims that his Fourth Amendment rights were violated when the
defendants made a warrantless entry into his home and used excessive force
to subdue and arrest him. See filing 1. The only issue before the Court is
whether the defendants are entitled to qualified immunity. Filing 24; filing 25;
see filing 28.
Qualified immunity shields law enforcement officers performing
discretionary functions from liability for conduct that does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known. Parker v. Chard, 777 F.3d 977, 979 (8th Cir. 2015); see
Messerschmidt v. Millender, 565 U.S. 535, 546 (2012); Pearson v. Callahan, 555
U.S. 223, 231 (2009). In determining whether a law enforcement officer is
entitled to qualified immunity, the Court asks: (1) whether the facts alleged
establish a violation of a constitutional or statutory right, and (2) whether that
right was clearly established at the time of the alleged violation, such that a
reasonable officer would have known that his actions were unlawful. Laney v.
City of St. Louis, 56 F.4th 1153, 1156 (8th Cir. 2023); Johnson v. Phillips, 664
F.3d 232, 236 (8th Cir. 2011); see Parker, 777 F.3d at 980.
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Law enforcement officers are entitled to qualified immunity unless the
answer to both of those questions is yes. E.g., McDaniel v. Neal, 44 F.4th 1085,
1089 (8th Cir. 2022). The Court may consider them in either order. Id. A right
is clearly established if its contours are sufficiently definite that a reasonable
officer would understand that what he is doing violates that right. Id. While
prior cases need not have expressly determined the action in question is
unlawful, the unlawfulness must be apparent in the light of pre-existing law.
Id. Qualified immunity protects "all but the plainly incompetent or those who
knowingly violate the law." Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th
Cir. 2005) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)).
2. ILLEGAL ENTRY AND ARREST
The Fourth Amendment shields individuals from unreasonable searches
and seizures by law enforcement. United States v. Anderson, 688 F.3d 339, 344
(8th Cir. 2012). A search or seizure carried out in a suspect's home without a
warrant is per se unreasonable, subject to a "carefully defined set of
exceptions." See id. (quoting Coolidge v. New Hampshire, 403 U.S. 443, 474
(1971)); see also Cotten v. Miller, 74 F.4th 932, 934 (8th Cir. 2023); Lange v.
California, 594 U.S. 295, 308 (2021). The Supreme Court has frequently
cautioned that even exigent circumstances rarely justify a warrantless home
intrusion. Luer v. Clinton, 987 F.3d 1160, 1170 (8th Cir. 2021); cf. Kyllo v.
United States, 533 U.S. 27, 31 (2001) ("At the very core of the Fourth
Amendment stands the right of a man to retreat into his home and there be
free from unreasonable government intrusions.").
Law enforcement officers are entitled to qualified immunity for a
warrantless entry into a home if two factors are present: (1) the officers had
probable cause to believe that a crime has been committed, and (2) the officers
5
had an objectively reasonable basis to believe that exigent circumstances
existed. Cotten, 74 F.4th at 934; Welsh v. Wisconsin, 466 U.S. 740, 749 (1984).
The analysis of a warrantless entry focuses on whether a law enforcement
officer acted with a reasonable belief that probable cause and exigent
circumstances existed, not on whether either actually did exist. Radloff v. City
of Oelwein, 380 F.3d 344, 348 (8th Cir. 2004).
(a) Probable Cause
A law enforcement officer is entitled to immunity even if he "is wrong, so
long as he is reasonable," and an officer need only have "arguable" probable
cause to be immune from civil suit. Walker, 414 F.3d at 992. A law enforcement
officer has arguable probable cause if the totality of the facts known at the time
of the arrest would justify a reasonable person believing that a person has
committed or is committing a crime. E.g., Hosea v. City of St. Paul, 867 F.3d
949, 955 (8th Cir. 2017); see also Gilmore v. City of Minneapolis, 837 F.3d 827,
832 (8th Cir. 2016) (arguable probable cause exists if a mistake is objectively
reasonable).
Despite Zika's arguments otherwise, the defendants clearly had probable
cause to support an arrest. A witness reported that Zika knocked over a
mailbox with a tractor. See filing 27 at 2-3. Zika argues that fact is based on
hearsay, and he alleges that he only accidentally knocked over his own
mailbox. But those arguments don't defeat the defendants' assessment of
probable cause. The statement made by the witness is offered for its effect on
the listener, not for its truth. A law enforcement officer may rely on statements
from witnesses in evaluating probable cause. Joseph v. Allen, 712 F.3d 1222,
1227 (8th Cir. 2013) (quoting Borgman, 646 F.3d at 523); see also Cotten, 74
6
F.4th at 935. And when Calvert got to Zika's house, he saw a knocked-over
mailbox and Zika riding a tractor, verifying the witness's earlier statement.
Zika argues that the defendants conducted an inadequate investigation
before arresting him. But an officer is not required to conduct a "mini-trial"
before effectuating an arrest. Gilmore, 837 F.3d at 833. While an officer may
not ignore plainly exculpatory evidence, see id., Zika has failed to identify any
such evidence, other than saying it was his mailbox on the ground and not his
neighbor's, and it was an accident, not an intentional act. See filing 49 at 8.
Even so, it's a federal crime to intentionally tear down or destroy "any letter
box," not just a mailbox belonging to someone else. 18 U.S.C. § 1705 (emphasis
added).2 And the defendants couldn't have assessed Zika's intentions,
particularly because Zika refused to speak with them, so it was reasonable to
conclude, at the time of the arrest, that Zika acted unlawfully when he knocked
over the mailbox with his tractor.
The totality of the circumstances indicates that the defendants had
probable cause to believe Zika committed a crime. Calvert and Holcomb
properly relied on the statements from the neighbor, Calvert's observation of
Zika riding on his tractor, and their observation of a mailbox on the ground.
Based on the undisputed facts, there was nothing the defendants could have
immediately discovered that would have exonerated Zika, and they reasonably
concluded that they had probable cause to arrest him. See Gilmore, 837 F.3d
at 833.
2 For the same reason, the parties' dispute about which mailbox was knocked over, see filing
49, is not material to the probable cause determination. Zika's objections to the photographs
are also immaterial because Zika does not dispute that he knocked over his mailbox.
7
(b) Exigent Circumstances
But probable cause alone does not justify a warrantless entry into a
person's home. A law enforcement officer may only forgo the warrant
requirement in very limited circumstances. See, e.g., Welsh, 466 U.S. at 750;
Luer, 987 F.3d at 1165; Radloff, 380 F.3d at 348. To evaluate immunity, the
Court asks whether a law enforcement officer could have reasonably, even if
mistakenly, concluded that exigent circumstances were present, based on the
information possessed by the officer at the time. E.g., Smith v. Kansas City,
Mo. Police Dep't, 586 F.3d 576, 581 (8th Cir. 2009); Radloff, 380 F.3d at 348.
At the time of Zika’s arrest, it was clearly established that "only a few such
emergency conditions" justified a warrantless entry into a person's home, such
as hot pursuit of a fleeing suspect, the risk of destruction of evidence, or a
legitimate concern for the safety of law enforcement or others. Welsh, 466 U.S.
at 750; Anderson, 688 F.3d at 345; Cotten, 74 F.4th at 935; United States v.
Janis, 387 F.3d 682, 687 (8th Cir. 2004); see also Lange, 594 U.S. at 308;
Radloff, 380 F.3d at 348.
Exigent circumstances may exist in a situation where there is a
"compelling need for official action" and no time to secure a warrant. Radloff,
380 F.3d at 348. This may occur if a crime or neighborhood disturbance is
ongoing. See id.; Luer, 987 F.3d at 1165-66 (discussing the "community
caretaker" exception to the warrant requirement). Ultimately, an officer is
entitled to immunity if he reasonably believed exigent circumstances existed,
not on whether they actually did exist. Radloff, 380 F.3d at 348.
(i) Hot Pursuit
The defendants argue that they were in "hot pursuit" of Zika when they
entered his home. The Court considers two factors in determining whether a
8
"hot pursuit" created an exigency: the gravity of the underlying offense, and
whether the officers were in an "immediate or continuous" pursuit of the
suspect from the scene of the crime. Anderson, 688 F.3d at 344.
Even assuming (without adopting) the dubious premise that Zika's
offense was sufficiently grave to justify the entry, the defendants' pursuit was
neither immediate nor continuous. By Calvert's own account, Calvert asked
Zika to shut off the tractor, but Zika ignored the order, parked his tractor, and
entered his residence. Calvert did not attempt to stop or arrest Zika, or even
approach him, when he got off the tractor. Instead, Calvert investigated the
crime scene: he took pictures of the mailbox, spoke with the neighbor who
initially called the sheriff's office, and called Holcomb. Filing 27 at 4. It was
then that the "hot" pursuit went cold. See Luer, 987 F.3d at 1167 (officers were
not in hot pursuit "given the passage of time," approximately 15 minutes, since
the suspect fled the scene).
Once Holcomb arrived, he and Calvert decided to "approach Zika's front
door and try to speak to him again." Filing 27 at 4. The facts alleged fail to
drum up any sense of urgency in arresting Zika. A hot pursuit doesn't exist
just because a law enforcement officer knows where a suspect is. Zika was
within his rights to remain in his home and insist on a warrant. See Kyllo, 533
U.S. at 31. Based on the undisputed facts, there was nothing "immediate" or
"continuous" about the defendants' "pursuit." See Anderson, 688 F.3d at 344;
Luer, 987 F.3d at 1167.
(ii) Other Exigencies
The Court is not persuaded that any other exigency existed to justify a
warrantless entry. The defendants argue that the totality of the circumstances
indicate that they reasonably believed an exigency justified their entry. They
9
claim Zika posed a safety risk because he could have gotten back on his tractor
or retaliated against his neighbor. They also argue that they knew Zika had
been violent with law enforcement officers and others in the past, and the
manpower limitations of the sheriff's office impaired their ability to timely
obtain a warrant. Apparently, Zika's prior arrest required a "team" of ten
officers from three separate agencies. Filing 28 at 17-18.
But the facts alleged do not indicate any immediate threat to anyone's
safety at the time the defendants forcibly entered the home. There may be a
threat to safety in almost any situation, but a lawful warrantless entry needs
more than speculation about future threats to safety. See Luer, 987 F.3d at
1169. The defendants haven't shown that they couldn't wait for a warrant
because of an exigency—just that doing so may have been inconvenient. The
defendants could have mitigated the safety risks allegedly posed by the wait to
obtain a warrant (i.e., arresting Zika if he exited his home, disabling the
tractor, waiting with the neighbor to protect him, etc.). There was no
disturbance to the community, no ongoing threat of a continuing crime, and no
safety threat to anyone in the home with Zika. There simply was no reasonable
basis to believe exigent circumstances justified the warrantless entry. Cf.
Radloff, 380 F.3d at 348.
The cases cited by the defendants do little to bolster their argument.
There were no weapons seen or suspected, unlike in United States v. Antwine,
873 F.2d 1144, 1147 (8th Cir. 1989). And in Janis, police followed a trail of
blood leading into the suspect's home; there was no such trail here, or even a
suspicion that someone else was in Zika's home with him. 387 F.3d at 688. And
the other cases cited, including Stanton v. Sims, 571 U.S. 3 (2013),
Commonwealth v. Montes, 733 N.E.2d 1068 (Mass. Ct. App. 2000), and State v.
Pink, 648 N.W.2d 107 (Iowa 2002), all involved an immediate and continuous
10
pursuit that is not present here, for the reasons thoroughly discussed above.
The facts here, compared to the defendants' cited caces, fail to present a
reasonable exigency.
At the time of the incident, it was clearly established that entering a
person's home without a warrant, absent consent or exigent circumstances,
violated that person's Fourth Amendment rights. See Smith, 586 F.3d at 581.
The Court is not persuaded that the defendants "reasonably but mistakenly"
concluded that exigent circumstances were present. See id. The defendants
acted unreasonably when they chose to forcibly enter Zika's home to arrest him
without a warrant. Neither Calvert nor Holcomb are entitled to immunity on
Zika's illegal entry and arrest claims.
3. EXCESSIVE FORCE
Zika also claims, after they forcibly entered his home, the defendants
used excessive force in arresting him. To evaluate whether law enforcement
officers used excessive force, the Court looks to whether the conduct was
objectively reasonable. Graham v. Connor, 490 U.S. 386, 396 (1989); see also,
e.g., Tatum v. Robinson, 858 F.3d 544, 548 (8th Cir. 2017); Cartia v. Beeman,
122 F.4th 1036, 1041 (8th Cir. 2024). The right to make an arrest necessarily
carries with it the right to use some degree of physical coercion. Tatum, 858
F.3d at 549-50. Whether that coercion is reasonable depends on several factors:
"the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight." Id. at 547 (quoting Graham,
490 U.S. at 396); Kisela v. Hughes, 584 U.S. 100, 103 (2018); see also Brown v.
City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009).
11
Considering all the Graham factors: To begin with, Zika's crime,
property damage, is relatively minor. No one was injured, no weapons were
present, and the crime had been completed by the time Zika entered his home.
For the reasons discussed above, there's no indication that Zika posed an
immediate safety threat to anyone other than, potentially, the defendants
themselves. The final factor is whether Zika resisted the arrest, and those facts
are heavily disputed. See filing 27; filing 38-1.
The defendants claim that Zika hasn't mustered sufficient evidence to
make out a triable issue of fact. Filing 44 at 14. They argue that this Court
should not credit Zika's version of events because he "has not presented any
account of what occurred after the officers entered his home." Filing 44 at 13
(emphasis in original). But Zika does explain what happened once the
defendants made their way through his door: "Deputy Holcomb tackled me to
the floor, hit me repeatedly, and Deputy Calvert 'tased' me with his 'taser' and
also joined Deputy Holcomb in tackling me and hitting me." Filing 38-1 at 5.
According to Zika, the defendants overpowered him and were physically
aggressive towards him without provocation.
The Court must draw inferences in the plaintiff's favor, even when
evaluating a defendant's assertion of qualified immunity, unless the plaintiff's
version of the facts is blatantly contradicted by the record. See Setchfield v. St.
Charles Cnty, 109 F.4th 1084, 1091 (8th Cir. 2024). The factual record in this
case has not been fully developed; both parties' versions of the facts are
contradicted by the other's. There is no video or other evidence about what
happened in Zika's home that night. The Court may not resolve genuine
disputes of material fact in the defendants' favor at the summary judgment
stage, and instead must view the evidence most favorably to Zika. Tatum, 858
F.3d at 552.
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(a) Holcomb
Zika doesn't dispute that he resisted the defendants' entry into his home.
See filing 38-1 at 5. And once the defendants were able to push past the door,
Holcomb tackled Zika and hit him. Filing 38-1 at 5. Holcomb is not alleged to
have used a taser. See filing 38-1 at 5.
Holcomb was entitled to use some force to make the arrest. And a
reasonable officer would have seen Zika's attempts to barricade the door as
noncompliant. See Cartia, 122 F.4th at 1041 (discussing Ehlers v. City of Rapid
City, 846 F.3d 1002, 1011 (8th Cir. 2017)). A person may not forcibly resist even
an unlawful arrest. See State v. Wells, 859 N.W.2d 316, 330 (Neb. 2015) (citing
Neb. Rev. Stat. § 28-1409(2)); see also Hill v. Scott, 349 F.3d 1068, 1074 (8th
Cir. 2003) (applying a similar Minnesota law in qualified immunity context).
Based on the totality of the circumstances, including Zika's size
advantage (see filing 27 at 8) and Zika's attempt to resist the officers' entry,
the Court is not persuaded that it was objectively unreasonable for Holcomb to
tackle or hit Zika in order to arrest him. See Cartia, 122 F.4th at 1042. The
undisputed facts do not establish a violation of a constitutional or statutory
right, let alone a clearly established one, and Holcomb is entitled to immunity
on Zika's excessive force claim.
(b) Calvert
Calvert, on the other hand, is alleged to have tased Zika twice after
Holcomb had him on the ground. See filing 38-1 at 5. Zika denies resisting
arrest after he was tackled. The defendants assert that Zika hasn't given any
reason why he was tased twice, so he must have been resisting in some
capacity. See filing 44 at 14. The defendants also claim that they knew Zika
13
had been aggressive with law enforcement officers in the past, justifying the
force used.
But the Court has to draw inferences in the plaintiff's favor, and cannot
discredit Zika's version of events. In Tatum v. Robinson, the Eighth Circuit
determined a police officer was not entitled to qualified immunity where the
officer choked a suspect and averred that the plaintiff resisted arrest, but the
plaintiff, in an affidavit, alleged the opposite. 858 F.3d 544, 551-52 (8th Cir.
2017). The circumstances are similar here: Zika asserts that he was nearly
immediately tased and he did not resist once Holcomb tackled him. See filing
38-1 at 5. Drawing inferences in favor of the non-moving party, once Holcomb
tackled Zika, Zika was adequately restrained, and Zika claims he did not resist
the arrest.
A juror who believes Zika's version of events might infer that the
defendants decided to tase Zika because they were prejudiced against him,
given his prior offenses. And the Court agrees with Zika that a law enforcement
officer is not entitled to qualified immunity on an excessive force claim because
they believe a suspect might resist an arrest. See filing 40 at 23. On the
contrary, it was clearly established at the time of Zika's arrest that a
nonviolent suspect's right to be free from excessive force is violated if officers
choke, kick, or punch him when he is restrained, not fighting, and not resisting.
Tatum, 858 F.3d at 552; see also Cartia, 122 F.4th at 1043 (discussing rights
clearly established in 2018). "Tasing" is more excessive than any of those acts.
See Brown, 574 F.3d at 499. While Zika may have been aggressive or violent
in the past, the arrest was made because Zika knocked over a mailbox, a
nonviolent and minor criminal offense. Based on the well-established law at
the time of the arrest, Calvert would have known that it was unlawful to tase
a nonresistant, subdued suspect.
14
Considering all the circumstances, see Graham, 490 U.S. at 396, Calvert
is not entitled to immunity on Zika's excessive force claim. The facts alleged by
Zika establish a constitutional violation, and his right to be free from excessive
force under these facts was clearly established at the time of the alleged
violation.
IV. CONCLUSION
The undisputed facts indicate that the defendants forcibly entered Zika's
home, tased him, and arrested him, all without a warrant. There was no
exigency to justify the entry: the defendants were not in an immediate and
continuous pursuit of Zika, nor did the defendants suspect weapons were
present, nor was there any immediate threat to the safety of anyone in the
vicinity. Neither defendant is entitled to immunity Zika's claims premised on
the warrantless entry and arrest.
Holcomb is entitled to immunity for the excessive force claim. When Zika
resisted the officers' entry into his home, Holcomb was entitled to use some
force to effect the arrest (even if the arrest was unlawful). But given the
material facts still in dispute, Calvert is not entitled to immunity for deploying
his taser twice when Zika disputes that he was resisting arrest. Drawing
inferences in favor of the non-moving party, once Holcomb tackled Zika, Zika
was subdued, and the use of the taser was excessive.
Accordingly,
IT IS ORDERED:
1.
Defendant Christopher Calvert's motion for summary
judgment (filing 24) is denied in its entirety.
15
2.
Defendant
Matthew
Holcomb's
motion
for
summary
judgment (filing 25) is granted in part and denied in part.
3.
This case is referred to the Magistrate Judge for discovery.
Dated this 29th day of January, 2025.
BY THE COURT:
John M. Gerrard
Senior United States District Judge
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