Klebe v. City of West Fargo et al

Filing 84

ORDER ADOPTING 82 REPORT AND RECOMMENDATION; and granting 72 Motion for Summary Judgment by Chief Judge Ralph R. Erickson. The complaint is dismissed with prejudice.(SH)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
John Allen Klebe,
Plaintiff,

Case No. 3:14-cv-45

-vs-

ORDER ADOPTING REPORT AND
RECOMMENDATION

Skyler Dutton, Ryan M. Wuollet, and
Joseph D. Birrenkott, West Fargo Police
Department Officers, in their individual
capacities,
Defendants.
The court has received a Report and Recommendation from the Honorable Alice R.
Senechal, United States Magistrate Judge, pursuant to 28 U.S.C. § 636, recommending that
the complaint be dismissed with prejudice.1 Plaintiff John Allen Klebe objects to the Report
and Recommendation, asserting the magistrate judge failed to consider the evidence in a
light most favorable to him and he should be given additional time to obtain a declaration
from a doctor regarding how his foot was broken.2
The court, having reviewed the Report and Recommendation, the pleadings and
evidence in the record, and Klebe’s objections, finds the magistrate judge’s analysis is
appropriate. The court hereby ADOPTS the Report and Recommendation in its entirety
for the following reason. Any claim of excessive force by law enforcement officers is to be
analyzed under the objective reasonableness standard of the Fourth Amendment.3 The
evidence in the record demonstrates that given the emergency circumstances that existed

1

Doc. #82.

2

Doc. #83.

3

Graham v. Connor, 490 U.S. 386, 388 (1989).

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at the time of the incident, to the extent there was force used to remove Klebe from the
vehicle (assuming the evidence in a light most favorable to Klebe), it was objectively
reasonable. Accordingly, the law enforcement officers are entitled to qualified immunity.
The defendants’ motion for summary judgment is GRANTED. Klebe’s request for
a continuance is denied because the evidence he seeks to obtain would not alter the result.
Klebe’s complaint is hereby dismissed with prejudice. Any appeal would be frivolous, could
not be taken in good faith, and may not be taken in forma pauperis.
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 25th day of April, 2016.
/s/ Ralph R. Erickson
Ralph R. Erickson, Chief Judge
United States District Court

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