Shaw v. Shell

Filing 34

ORDER ADOPTING 31 REPORT AND RECOMMENDATIONS; granting 24 Motion for Summary Judgment; and dismissing complaint in its entirety by Judge Ralph R. Erickson.(SH)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Delvin Lamont Shaw,
Plaintiff,

Case No. 2:15-cv-102

-vs-

ORDER ADOPTING REPORT AND
RECOMMENDATION

Shannon Shell, Correctional Officer at
Grand Forks County Correctional
Center (in his individual capacity),
Defendant.
Pursuant to 28 U.S.C. § 636, the court has received a Report and Recommendation
from the Honorable Alice R. Senechal, United States Magistrate Judge.1 The Report and
Recommendation recommends that Plaintiff Delvin Lamont Shaw’s remaining excessive
force claim against Defendant Shannon Shell be dismissed with prejudice on the ground
that Shell is entitled to qualified immunity. Shaw filed objections to the Report and
Recommendation, contending the video of the incident has been altered, two of the officers
that completed incident reports gave different statements, and Shell violated North Dakota
law on aggravated assault.2
Shaw’s objections reiterate his assertions in opposition to Defendant Shell’s
summary judgment motion. There is simply no evidence that the video of the incident has
been altered. Moreover, Shaw does not explain how the alleged different reports from the
two officers impacts the qualified immunity analysis set forth by the magistrate judge. The
undisputed facts demonstrate that Shaw repeatedly refused to comply with an officer’s

1

Doc. #31.

2

Doc. #33.

1

orders when he continued striking the sprinkler head with a broom. Shell deployed his
taser one time to incapacitate Shaw long enough for other officers to assist and safely
approach and restrain Shaw. Under existing precedent3 that is binding upon this court,
Shell used force against Shaw in a good faith effort to restore discipline and thus Shell did
not violate Shaw’s constitutional rights. Shell is entitled to qualified immunity.
Additionally, Shaw has no right to compel a criminal investigation or prosecution for
an alleged violation of North Dakota law. To the extent that Shaw seeks to pursue a claim
against Shell for aggravated assault, he lacks standing to pursue such a claim.
Upon consideration, the court hereby adopts the Report and Recommendation in its
entirety. IT IS HEREBY ORDERED that Shell’s motion for summary judgment is
GRANTED; the personal capacity excessive force claim against Shell is dismissed with
prejudice; and Shaw’s complaint is dismissed in its entirety.
Any appeal would be frivolous, cannot be taken in good faith, and may not be taken
in forma pauperis.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 10th day of May, 2017.
/s/ Ralph R. Erickson
Ralph R. Erickson, District Judge
United States District Court

3

Burns v. Eaton, 752 F.3d 1136 (8th Cir. 2014).

2