Abdo v. Larson et al

Filing 49

ORDER granting 45 Defendants' Motion for Summary Judgment; denying as moot 41 Motion to Appoint Counsel ; and denying as moot 42 Motion to Appoint Counsel. Signed by U.S. District Judge Lawrence L. Piersol on 3/9/2020. (CLR) Modified on 3/9/2020 delivered to Plaintiff via USPS (CLR).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

JOHN DAVID ABDO JR.,

4:17-CV-04079-LLP

Plaintiff,
ORDER GRANTING DEFENDANTS'

vs.

MOTION FOR SUMMARY JUDGMENT

SHANE LARSON, OFFICER AT CITY OF
WAGNER;IN HIS INDIVIDUAL CAPACITY;
AND BRIAN MCGUIRE, OFFICER AT CITY
OF WAGNER; IN
HIS INDIVIDUAL
CAPACITY;
Defendants.

Plaintiff, John David Abdo Jr., filed a pro se civil rights lawsuit under 42 U.S.C. § 1983.
Docs. 1, 38. Pending before the Court are Abdo's motions to appoint counsel. Docs. 41, 42, and
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defendants' unopposed motion for summary judgment. Doc. 45.
I.

Motion for Summary Judgment Based on the Merits and Qualified Immunity

On, August 12, 2019, defendants moved for summary judgment based on the merits and

qualified immunity. Doc. 45. They filed a brief in support, a statement of undisputed faet, and an
affidavit. Docs.46, 47, 48. At this time, Abdo has not filed a response in opposition.
FACTUAL BACKGROUND

Viewing the evidence in the light most favorable to Abdo as the nonmoving party,

including the defendants' statement of undisputed material facts, which Abdo did not object to,
the facts are:'

'Under Local Rule 56.1.D,"[a]II material facts set forth in the movant's statement of material
facts will be deemed to be admitted unless controverted by the opposing party's response to the
moving party's statement of material facts."

On the evening of Januaiy 7, 2016, Abdo was at the home of Shelly Selwyn in Wagner,

South Dakota. Doc. 47 ^ 1. Selwyn did not live in the house but allowed her daughter, Roseanne
Weddell and Roseanne's husband, Winston Houseman, to stay there. Id. fTf 2, 3. The group
collectively consumed a half-gallon of vodka, and later Philomene Boneshirt (a guest) and John
Ahdo went to a bedroom together. Id. ]f 4.

Houseman heard crying and screaming and heard Boneshirt say"'Stop biting me!'"Id.

^ 5. Houseman went into the room to investigate and found Boneshirt in the bathroom screaming.
Id. ]f 6. Houseman saw Abdo sleeping or passed out in the room adjacent to the bathroom. Id. 7.
Weddell found Boneshirt bloody and she had an injury to her nose with bite marks on her body. Id.

]| 8. Boneshirt's nose has been "cut, torn, or bitten off, and plastic surgery was required to reattach

it."Id. 19. Boneshirt was taken to the Indian Health Service Hospital in Wagner, South Dakota and
called law enforcement. Id.

10. Shane Larson, a police officer for the City of Wagner responded,

spoke with Houseman, and determined Abdo to be a suspect. Id. ^ 11-12. Houseman gave

permission both verbally and in writing for Officer Larson to enter Selwyn's home.Id. 13. The
officer found Ahdo passed out in the bedroom and noticed that he had blood on his hands and around
his mouth.Id.

14,15. Abdo was an-ested and taken to the Charles Mix Countyjail in Lake Andes,

South Dakota. Id. ^11.

At thejail, Abdo was so intoxicated, that Officers Larson and McGuire were unable to obtain

a preliminary breathalyzer test(PBT).Id. ^ 18. At this point. Officer Larson had to end his shift and
Officer McGuire completed the affidavit for the search warrant to obtain a sample of Abdo's urine.
Id.

19, 20. Office McGuire stated in his affidavit that Abdo was lying on the floor when he was

taken into custody for aggravated assault, that he obseiwed Ahdo's pupils to be"'pinpomt[,]'"and
that Ahdo's attitude was erratic. Id.

22-24. Officer McGuire requested a warrant to search Abdo's

"'urine or other bodily fluid to detennine the amount of methamphetamine, or any controlled drug

and substance'"and a Charles Mix County Magistrate Judge issued a search warrant. Id.^25,26.
The warranted granted Officer McGuire the authority to"'search/seize the person of John David
Abdo JR... and transport him to Wagner Community Hospital to have a sample of his urine taken'
by a 'reliable and accepted method, in a medically approved, reasonable manner.'"Id. ]|27.
When Officer McGuire presented Abdo with the warrant, Abdo tried to punch a an officer
and when he went to the hospital, he was told that he could voluntarily offer a urine sample or he
could have one collected tlu'ough a catheter. Id.

28, 29. Abdo agreed to provide the urine sample

voluntarily. Id. If 30. Later, Abdo was charged with aggravated assault and second-degree escape.
7(7. ^ 31. Abdo filed two motions to suppress, one regarding the law enforcement's entry into this
bedroom in the residence without a warrant, and one asserting that the warrant for his urine was not

supported by probable cause. Id.

32, 34. The motion to suppress regarding the entry ofthe home

was denied, but the motion to suppress regarding his urine sample was granted as the First Circuit
Court of South Dakota found that the magistrate judge lacked a substantial basis for issuing the

warrant and that probable cause was lacking. Id.

33, 35. Defendants have only been sued in their

individual capacities. See Doc. 1.
LEGAL STANDARD

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is

appropriate where the moving party "shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). The court
must view the facts, and inferences from those facts, in the light most favorable to the

nonmoving party. See yisitsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88(1986)

(citing United States v. Diebold, Inc., 369 U.S. 654, 655,(1962)); Helton v. Southland Racing

Corp., 600 F.3d 954,957(8th Cir. 2010)(per curiam). Summary judgment will not lie if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party. See
Anderson v. Liberty Lobby, Inc., All U.S. 242, 248 (1986); Allison v. Flexway Trucking, Inc., 28
F.3d64,66(8th Cir. 1994).

The burden is placed on the moving party to establish both the absence of any genuine
issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.

Crv. P. 56(a). Once the movant has met its burden, the nonmoving party may not simply rest on
the allegations in the pleadings, but must set forth specific facts, by affidavit or other evidence,

showing that a genuine issue of material fact exists. Anderson, All U.S. at 256; Fed. R. CiV. P.

56(e)(each party must properly support its own assertions of fact and properly address the

opposing party's assertions of fact, as required by Rule 56(c)). The underlying substantive law
identifies which facts are "material" for puiposes of a motion for summary judgment. Anderson,

All U.S. at 248. "Only disputes over facts that might affect the outcome ofthe suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted." Id. (citing 1 OA CHARLES A. WRIGHT,Arthur R.
Miller & Mary Kay Kane, Fed. Practice & Procedure § 2725, at 93-95 (3d ed. 1983)). "[T]he

mere existence ofsome alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact." Id. at 247-48. Essentially, the availability ofsummary judgment turns on

whether a proper jury question is presented: "The inquiry performed is the threshold inquiry of
determining whether there is the need for a trial—whether, in other words, there are any genuine

factual issues that properly can be resolved only by a finder of fact because they may reasonably
be resolved in favor of either party." Id. at 250.

South Dakota Local Rule 56.1.D. states;"All material facts set forth in the movanfs

statement of material facts will be deemed to be admitted unless controverted by the opposing

party's statement of material facts." That the Court adopts the defendants' facts because Abdo did
not dispute them does not necessarily allow the Court to summarily grant the defendants' motion.
"Even if a motion for summary judgment on a particular claim stands unopposed, the district
court must still detennine that the moving party is entitled to judgment as a matter oflaw on that
claim." Interstate Power Co. v. Kansas City Power & Light Co., 992 F.2d 804, 807(8th Cir.
1993).
A. Count I/Fourth Amendment

i. Arrest without a Warrant

'

'

Abdo claims that he was aixested by Officer McGuire and Officer Larson without a
warrant. Doc. 7 at 4." The Fourth Amendment, as applied to the States through the Fourteenth

Amendment, requires that an officer have probable cause before making a warrantless arrest.'"
Chevallierv. Hand,722 F.3d 1101, 1103-04 (8th Cir. 2013)(quoting Veatch v. Bartels Lutheran

Home,627 F.3d 1254, 1257 (8th Cir. 2010)). However, defendants argue that this issue invokes

the collateral estoppel doctrine. Doc. 46 at 3-4, 5-7. "State courts unquestionably have power to

render preclusive judgments regai-ding the Fourth Amendment's prohibition of unreasonable
searches and seizures." Linnen v. Arinainis, 991 F.2d 1102, 1108 (3d Cir. 1993)(referencing

Allen V. McCurry,449 U.S. 90, 95, 101 S. Ct. 411,66 L. Ed. 2d 308 (1980); Stone v. Powell,428
U.S. 465,494-95 (1976)). In "CRl 16-07, CRl 16-08, and CRJ 16-51" the trial court completed a
thorough analysis of Abdo's Fourth Amendment rights and the South Dakota Supreme Court
also addressed the issue. Doc. 48-1. The question is whether collateral estoppel prevents Abdo,
fi-om challenging the trial court's decision.

InHaring v. Prosise, the court held that the federal full faith and credit statute, 28 U.S.C.
§ 1738, "generally requires federal courts to give [the same] preclusive effect to state-court

judgments whenever the eourts of the State from which the judgment emerged would do so." 462
U.S. 306, 314 (1983)(internal citation and quotation marks omitted). "Accordingly, if state rules
of collateral estoppel would bar relitigation of[Fjourth [Ajmendment claims in a postconviction
civil action, the federal court must give the state conviction the same effect." Sanders v. Frisby,
736 F.2d 1230, 1231 (8th Cir. 1984).

"The collateral estoppel doctrine 'bar[s] relitigation of an essential fact or issue involved in
the earlier suit' if a four-part test is satisfied: '(1) Was the issue decided in the prior adjudication
identical with the one presented in the action in question? (2) Was there a final judgment on the

merits?(3) Was the party against whom the plea is asserted a party or in privity with a party to the
prior adjudication? (4) Did the party against whom the plea is asserted have a full and fair
opportunity to litigate the issue in the prior adjudication?'" Zebrowski v. Am. Standard Ins. Co. of
Wisconsin, 2017 WL 4220452, at *3 (D.S.D. Sept. 21, 2017)(citing Hamilton v. Sommers, 2014

SD 76, 855 N.W.2d 855, 866 (S.D. 2014)(quoting Estes v. Millea, 464 N.W.2d 616, 618 (S.D.
1990)).

Applying this test, the Court finds: (1) the issue decided in "CRI 16-07, CRI 16-08, and
CRI 16-51" by the First Judicial Circuit of South Dakota and was affirmed by the South Dakota

Supreme Court in State v. Abdo, 2018 SD 34,14-19, 911 N.W. 2d 738 (S.D. 2018). The issue is
precisely the issue presented in this litigation;(2) there was a final judgment on the merits by the
South Dakota Supreme Court;(3) Abdo was in privity, as he was the named defendant in "CRI
16-07, CRI 16-08, and CRI 16-51," and (4) there was a full and fair opportunity to litigate the
constitutionality of his ari'est in "CRI 16-07, CRI 16-08, and CRI 16-51" and in Abdo, 2018 SD at

14-19. In both instances, Abdo was represented by counsel. The Court finds the decision of the
South Dakota Supreme Court was a well-reasoned analysis of the Fourth Amendment. The
decision of the South Dakota Supreme Court that Abdo's arrest was not a violation of his Fourth
Amendment rights is binding on Abdo in this case. Tlius, Offieer Larson and Officer McGuire are
entitled to summary judgment on this issue.
ii. Compelling a Urine Sample without a Warrant Based on Probable Cause

Abdo elaims that Officers McGuire and Larson violated his Fourth Amendment rights by

eompelling a urine sample from him. Doc. 7 at 4. Under the Fourth Amendment, "all searches
and seizures must be reasonable" and, "a wamant may not be issued imless probable cause is

properly established and the scope of the authorized search is set out with particularity."
Kentucky v. King, 563 U.S. 452, 459(2011)."A compelled urinalysis is a search under the
Fourth Amendment[.]" United States v. Twiss, 127 F.3d 111, 773 (8th Cir. 1997); see also
Skinner v. Railway Labor Executives'Ass'n, 489 U.S. 602, 617 (1989).

"Personal-capacity suits seek to impose personal liability upon a government official for
actions he takes under eolor of state law." Kentucky v. Graham,473 U.S. 159, 165 (1985)."[T]o

establish personal liability in a § 1983 action, it is enough to show that the official, acting under
color of state law, caused the deprivation of a federal right." Id. at 166. In this case, Officer
Larson did not assist in obtaining the search warrant and did not compel the urine sample firom
Abdo as he was already off duty. Accordingly, Officer Larson is entitled to summary judgment
as a matter of law.

Here, Offieer McGuire secured a wamant for the urine sample from a magistrate judge.

Id.

25-27. Typieally, a warrant shields the officer from suit, but the United States Supreme

Court has reeognized an exception when"'it is obvious that no reasonably competent officer

would have concluded that a wairant should issue.'"Messerschmidt v. Millender, 565 U.S. 535,

536(2012)(quoting

v. Briggs, 475 U.S. 335, 341 (1986)). An officer is not immune from

suit when the warrant was"'based on an affidavit and lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.'"Id. (quoting United States v. Leon,

468 U.S. 897, 923 (1984)). Normally, an officer"'cannot be expected to question the
magistrate's probable-cause determination' because '[i]t is the magistrate's responsibility to
determine whether the officer's allegations establish probable cause[.]'"Id. (quoting Leon, 468

U.S. at 921). This showing is "a high one, and it should be." Messerschmidt, 565 U.S. at 547.
The court does not look to whether the wainant was determined unconstitutional but rather

whether the officer "believe[d] that the warrant application established probable cause." Kiesling
V. Holladay, 859 F.3d 529, 534(8th Cir. 2017){ciWng Messerschmidt, 565 U.S. at 553, 556).
In Messerschmidt and Kiesling, although the warrants were found to lack probable cause,
the courts found that the it was not "entirely unreasonable" for the officers to rely on the search
warrants. Messerschmidt, 565 U.S. at 535 (holding that an affidavit that set forth the facts of the
assault recounted by the victim, gave details about the weapon used, and listed the background
check on the defendant were not entirely unreasonable for the officer to rely on); Kiesling, 859

F.3d at 531 (holding that an officer's reliance on his affidavit which described ajailhouse call
that the defendants were keeping a pet deer in their house and they were "watching" from their
window" was not entirely unreasonable for the officer to rely on.).
In this case, Officer McGuire's affidavit was based on receiving statements that the suspect

was at the house in question, receiving permission to enter the home, observing Abdo to have

pinpoint pupils, Abdo's en-atic attitude (upset, fighting, and crying), the fact that Ahdo was
unable to answer the questions, and Abdo's inability to perform a PBT. Doc. 48-2 at 2. The
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Court finds that Officer McGuire's belief that probable cause existed from his affidavit was not

"entirely unreasonable." Abdo has not submitted facts to show the contrary. Thus, Officer
McGuire is entitled to qualified immunity on this issue.
B. Count II/Fourth Amendment

After AbdO'submitted an amended complaint and clarified his factual allegations, this Court

dismissed Abdo's Fourteenth Amendment claim (which survived the initial screening in Doc. 7),
because he did not allege any force used by the defendants. Doc. 37. However,in their brief in
support of motion for summary judgment, defendants stated confusion as to whether this Court

was allowing Abdo to proceed with a Fourth Amendment claim regarding his factual allegation
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that he was "threatened [] with a forced catheterization if[he] did not submit to a warrant that
had no probable cause." Doc. 38 at 2; Doc. 46 at 16. Although the Court did not direct that this

claim survived, the Court will address why even if it had, defendants are still entitled to summary
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judgment as a matter of law.

i

Regardless of whether Abdo is considered an arrestee (invoking the Fourth Amendment)or a

pretrial detainee (invoking the Fourteenth Amendment) allegations of excessive force for either

are determined by an objectively reasonable basis. Andrews v. Neer, 253 F.3d 1052, 1060(8th
Cir. 2001) "If the victim is an airestee, the Fourth Amendment's 'objective reasonableness
(
standard controls. . .. The evaluation of excessive-force claims brought by pre-trial detainees,

although grounded in the Fifth and Fourteenth Amendments rather than the Fourth amendment,
also relies on an objective reasonableness standard.") In Graham v. Connor, the United States
Supreme Court set forth the objectively reasonable inquiiy in an excessive force case,"the
question is whether the officers' actions are 'objectively reasonable' in light of the facts and

circumstances confronting them, without regard to their underlying intent or motivation." 490
U.S. 386,397 (1989).

Here, Abdo claims he was "thi'eatened with foreed eatheterization[.]" Doe. 38 at 2. The
undisputed faets state that when he was presented with the warrant for his urine sample, Abdo tried
to punch a police officer and he was told that he could that when he got to the hospital, he could
voluntarily offer a urine sample or he could have one collected through a eatheter. Id.

28, 29.

Abdo agreed to provide the urine sample voluntarily. Id. ^ 30. Abdo emphasizes that the warrant
was not based on probable cause, which the First Circuit Court and the South Dakota Supreme Court
agreed with, however, when an Officer is holding what they believe to be a valid seareh warrant

that granted authority to "'search/seize the person of John David Abdo JR . . . and transport him

Wagner Community Hospital to have a sample of his urine taken' by a 'reliable and accepted
method, in a medically approved, reasonable manner.'"Id. T| 27. Abdo has not shown a genuine
issue of material fact that Officer McGuire used excessive force when he told Abdo that if he did

not comply voluntarily, a urine sample would be collected tlrrough a eatheter. Even if Abdo believed
that he was being threatened, he has not raised a genuine issue of material fact that this "threat" is

objeetively unreasonable when the waixant stated he could have his urine taken by an aecepted
method. Thus, Offieer McGuire is entitled to summary judgment as a matter oflaw.
C. Count Ill/Equal Protection

Abdo claims Officer McGuire violated his rights under the Equal Proteetion Clause ofthe
Fourteenth Amendment because Officer McGuire aiTested him because he is a Native American.

Doc. 7 at 6. Defendants argue that Abdo's Equal Protection Clause argument fails as a matter of
law. Doc. 46 at 23. This Court agrees with the defendants.

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"[T]he Constitution prohibits selective enforcement ofthe law based on considerations such
as race." Whren v. United States, 517 U.S. 806, 813 (1996)). In Johnson v. Crooks, the Eighth

Cireuit held that the plaintiff must prove that the defendant "exercised his diseretion to enforce
... laws on account of her race, which requires proof of both discriminatory effect and

discriminatory purpose." 326 F.3d 995, 1000 (8th Cir. 2003). Here, Abdo stated that Officer
McGuire arrested him because he is a Native American. Doc. 7 at 6. However,the undisputed

facts show that Abdo was arrested after the victim went to the hospital and Officer Larson talked

with Houseman about what had happened. Doc. 47

10-12. Houseman had previously heard

the victim yell"'Stop biting me! "and when Houseman entered the room he saw the victim
'
screaming and Abdo sleeping or passed out in the room.Id.

5-7. Abdo has not offered

evidence to show that Officer McGuire aiTCsted him with discriminatory effect and

discriminatory purpose as required by Johnson. Johnson, 326 F.3d at 1000. Thus, Officer
McGuire is entitled to summary judgment on Abdo's Equal Protection claim.
11.

Motions to'Appoint Counsel

Abdo filed two motions to appoint counsel. Docs. 41, 42. He claims that he does not have

the ability to properly investigate and he is hindered by his limited mobility in that he is a prisoner.,
Doc. 41 at 1. Abdo believes he has a due process right to an attorney. Id. at 1-2. Further, he claims

that he does not have access to support materials and no way to gain these materials. Doc. 42 at 1.
Because defendants are entitled to summary judgnrent on all claims and this case is dismissed

without prejudice, Abdo's remaining motions to appoint counsel. Docs. 41 and 42, are denied as
moot. Accordingly, it is

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ORDERED:

1. That defendants Shane Larson and Brian McGuire are entitled to summary judgment as a
matter oflaw on Claim 1(Abdo's Fourth Amendment claim regarding his arrest).
2. That defendant Shane Larson is entitled to summary judgment as amatter oflaw on
Claim I(Abdo's Fourth Amendment claim regarding the warrant for his urine sample).
3. That defendant Brian McGuire is entitled to summary judgment based on qualified
immunity on Claim 1(Abdo's Fourth Amendment claim regarding the warrant for his
urine sample).
4. That defendants Shane Larson aitd Brian McGuire are entitled to summary judgment as a
matter oflaw regarding Abdo's possible Fourth Amendment claim, Count II.

5. That defendant Brian McGuire is entitled to summary judgment as a matter oflaw
regarding Abdo's Claim 111 (Equal Protection),

6. That Abdo's complaint be dismissed with prejudice and judgment entered in favor of the
defendants.

7. That Abdo's motions to appoint counsel, Docs. 41 and 42, are denied as moot.
Dated this 9th day of March, 2020.
BY THE COURT:

Lki^rence L. Piersol

ATTEST:

United States District Judge

MATTHEW W.THELEN,CLERK

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