Traversie v. Starr et al

Filing 11

ORDER DIRECTING SERVICE Signed by U.S. District Judge Karen E. Schreier on 12/15/16. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ROCKY THOMAS TRAVERSIE,

4:16-CV-04142-KES

Plaintiff,
vs.
ORDER DIRECTING SERVICE
MATTHEW STARR, MATTHEW
HANISCH, DAVE DUNTEMAN, and
SIOUX FALLS POLICE DEPARTMENT,
Defendants.
INTRODUCTION
Plaintiff, Rocky Thomas Traversie, filed a pro se civil rights lawsuit
under 42 U.S.C. § 1983. Docket 1. For the following reasons, the court directs
service of Traversie’s complaint.
FACTUAL BACKGROUND
Traversie alleges that he was unarmed and was not running away or
attacking anybody when he was attacked by defendants on February 5, 2014.
Docket 1 at 4. Matthew Starr, Matthew Hanisch, and Dave Dunteman are
police officers who allegedly attacked Traversie. Id. Starr and Hanisch allegedly
hit Traversie on the top of the head with batons, splitting his head open. Id.
Both officers hit Traversie while he was on the ground and another officer was
hitting and kicking him. Id. Dunteman drew his weapon and told Traversie to

“put it down” then kicked Traversie and jumped on his midsection with his
knee. Id. Traversie alleges that as a result of the beating he received nine
staples for his head wound, his left hand was broken, and both hands swelled.
Id. He also suffered mental and emotional injury. Id.
On September 28, Traversie filed this complaint, claiming Starr,
Hanisch, and Dunteman all used excessive force against him. Id. In relief,
Traversie requests compensation for mental anguish and his physical injuries.
Id. at 7. He also requests punitive damages. Id.
LEGAL STANDARD
The court must accept the well-pleaded allegations in the complaint as
true and draw all reasonable inferences in favor of the non-moving party.
Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). Civil rights
and pro se complaints must be liberally construed. Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citation omitted); Bediako v. Stein Mart, Inc., 354 F.3d 835,
839 (8th Cir. 2004). Even with this construction, “a pro se complaint must
contain specific facts supporting its conclusions.” Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985); Ellis v. City of Minneapolis, 518 F. App'x 502, 504
(8th Cir. 2013). Civil rights complaints cannot be merely conclusory. Davis v.
Hall, 992 F.2d 151, 152 (8th Cir. 1993); Parker v. Porter, 221 F. App'x 481, 482
(8th Cir. 2007).
A complaint “does not need detailed factual allegations . . . [but] requires
more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
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(2007). “If a plaintiff cannot make the requisite showing, dismissal is
appropriate.” Abdullah v. Minnesota, 261 F. App’x 926, 927 (8th Cir. 2008);
Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Under 28 U.S.C.
§ 1915A, the court must screen prisoner complaints and dismiss them if they
are “(1) frivolous, malicious, or fail[] to state a claim upon which relief may be
granted; or (2) seek[] monetary relief from a defendant who is immune from
such relief.” 1915A(b).
DISCUSSION
A.

Police Department

Traversie seeks to impose liability on the Sioux Falls Police Department
for the conduct of the three police officers. A local governmental entity,
however, may not be held liable under § 1983 under a theory of respondeat
superior. Elder–Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006). A plaintiff
seeking to establish a claim against a local governmental entity must show
that an official policy or custom caused him to suffer a constitutional harm.
Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463, 467 (8th Cir. 1996). Traversie
has not made this showing. Therefore, his claim against the Sioux Falls Police
Department is dismissed.
B.

Excessive Force Claims

Traversie claims defendants Starr, Hanisch, and Dunteman violated his
constitutional rights by using excessive force against him. “In addressing an
excessive force claim brought under § 1983, analysis begins by identifying the
specific constitutional right allegedly infringed by the challenged application of
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force.” Graham v. Connor, 490 U.S. 386, 394 (1989). The Eighth Circuit Court
of Appeals has recognized different scenarios in which an excessive force claim
may arise, differentiating by looking at when in the criminal process the force
was used. Where the excessive force claim arises during the arrest, it invokes
the protections of the Fourth Amendment. McKenney v. Harrison, 635 F.3d
354, 359 (8th Cir. 2011). Therefore, the court analyzes Traversie’s excessive
force claim using the Fourth Amendment framework.
“To establish a constitutional violation under the Fourth Amendment's
right to be free from excessive force, the test is whether the amount of force
used was objectively reasonable under the particular circumstances.” Brown v.
City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009). Whether a use of
force was objectively reasonable is determined “by balancing the nature and
quality of the intrusion on the individual's Fourth Amendment interests
against the countervailing governmental interests at stake.” McKenney, 635
F.3d at 359 (internal quotations omitted). “The reasonableness of a use of
force depends on the particular facts and circumstances, including the
severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” Carpenter v. Gage, 686 F.3d
644, 649 (8th Cir. 2012). “A court may also evaluate the extent of the
suspect's injuries as well as standard police procedures.” Mann v. Yarnell, 497
F.3d 822, 826 (8th Cir. 2007) (internal citation omitted).

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Traversie’s complaint does not state any facts about a crime he was
committing or suspected of committing. He does, however, state that he did
not pose a threat to the police officers because he was unarmed and not
attempting to attack anyone. Docket 1 at 4. He further alleges that he was not
fleeing. Id. Finally, Traversie alleges extensive injuries: a head wound that
required nine staples to heal and a broken hand. Id. Therefore, the court finds
Traversie states a claim of excessive force under the Fourth Amendment.
Thus, it is ORDERED
1.

Traversie’s Fourth Amendment claims against Starr, Hanisch, and
Dunteman survive screening under 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(1).

2.

The Clerk shall send blank summons forms to Traversie so he may
cause the summons and complaint to be served upon defendants
Starr, Hanisch, and Dunteman.

3.

The United States Marshal shall serve a copy of the complaint
(Docket 1), Summons, and this Order upon defendants as directed
by Traversie. All costs of service shall be advanced by the United
States.

4.

Defendants will serve and file an answer or responsive pleading to
the remaining claims in the complaint on or before 21 days
following the date of service.

5.

Traversie will serve upon defendants, or, if appearance has been
entered by counsel, upon their counsel, a copy of every further
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pleading or other document submitted for consideration by the
court. He will include with the original paper to be filed with the
clerk of court a certificate stating the date and that a true and
correct copy of any document was mailed to defendants or their
counsel.
6.

Traversie will keep the court informed of his current address at all
times. All parties are bound by the Federal Rules of Civil Procedure
and by the court’s Local Rules while this case is pending.

Dated December 15, 2016.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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