Dobney v. Klunder et al

Filing 29

ORDER overruling 27 Objection to Report and Recommendation.; granting 15 Motion for Summary Judgment; adopting in full 26 Report and Recommendation. Signed by U.S. District Judge Karen E. Schreier on 5/4/18. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
NATHAN DOBNEY,

4:17-CV-04050-KES

Plaintiff,
vs.

ORDER ADOPTING REPORT AND
RECOMMENDATION AND GRANTING
OFFICER ANTHONEY KLUNDER, CLAY MOTION FOR SUMMARY JUDGMENT
COUNTY, CITY OF VERMILLION,
MICHAEL SMITH,
Defendants.

Plaintiff, Nathan Dobney, filed a complaint under 42 U.S.C. § 1983, the
Americans with Disabilities Act (ADA), and the Rehabilitation Act on April 13,
2017. Docket 1. Defendants have moved for summary judgment. Docket 15.
The court referred the case to Magistrate Judge Veronica Duffy in its January
19, 2018 order and under 28 U.S.C. § 636(b)(1)(A) and (B). On March 28, 2018,
Magistrate Judge Duffy submitted her report and recommended that
defendants’ motion for summary judgment (Docket 15) be granted. Dobney
timely objected to the report and recommendation (Docket 27) and defendants
responded to Dobney’s objection (Docket 28). For the reasons below, Magistrate
Judge Duffy’s report and recommendation is adopted, summary judgment is
granted, and the complaint is dismissed.

Review of a magistrate judge’s report and recommendation is governed by
28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. Under
28 U.S.C. § 636(b)(1), the court reviews de novo any objections that are timely
made and specific. See Fed. R. Civ. P. 72(b) (“The district judge must determine
de novo any part of the magistrate judge’s disposition that has been properly
objected to. ”).
Dobney objects to the Report and Recommendation and argues that
qualified immunity does not protect defendants sued in their official capacity.
Docket 27. Although true, Dobney’s objection fails to address the reason his
official capacity claim fails. Official capacity suits “generally represent only
another way of pleading an action against an entity of which an officer is an
agent.” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). A city or county may not
be held liable solely on the basis that a constitutional violation was committed
by one of its employees. Monell, 436 U.S. at 693–94. “[I]n an official-capacity
suit the [city or county] ‘policy or custom’ must have played a part in the
violation of federal law.” Kentucky, 473 U.S. at 166 (quoting Monell, 436 U.S. at
694). To survive a motion for summary judgment for a claim made against a
city or county, a plaintiff must show some evidence that the claimed
constitutional violation is more than a one-time occurrence, i.e. that the action
was taken in accordance with a policy or custom or that the city or county
failed to create a policy or custom despite a pattern of similar constitutional
violations making additional policies necessary. Szabla v. City of Brooklyn Park,
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486 F.3d 385, 392–93 (8th Cir. 2007). In this case, Dobney did not assert in
his complaint that Officer Anthoney Klunder or Michael Smith acted pursuant
to a policy or custom of the city or county. Dobney has not identified in any
subsequent pleadings in response to defendants’ summary judgment motion a
city or county policy or custom that he claims was the “moving force” behind
the constitutional deprivations he alleged were inflicted upon him by two of the
named defendants. As such, his official capacity claims fail. Hafer v. Melo, 502
U.S. 21, 25 (1991); Graham, 473 U.S. at 166.
Thus, it is ORDERED
1. Dobney’s objections to the report and recommendation (Docket
27) are overruled.
2. The report and recommendation (Docket 26) is adopted in full.
3. Defendants’ motion for summary judgment (Docket 15) is
granted.
DATED this 4th day of May, 2018.
BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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