Abdo v. Larson, 4:17-CV-04079-LLP
| Decision Date | 09 March 2020 |
| Docket Number | 4:17-CV-04079-LLP |
| Parties | JOHN DAVID ABDO JR., Plaintiff, v. SHANE LARSON, OFFICER AT CITY OF WAGNER; IN HIS INDIVIDUAL CAPACITY; AND BRIAN MCGUIRE, OFFICER AT CITY OF WAGNER; IN HIS INDIVIDUAL CAPACITY; Defendants. |
| Court | U.S. District Court — District of South Dakota |
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
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 defendants' unopposed motion for summary judgment, Doc. 45.
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 fact, 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:1
On the evening of January 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. ¶¶ 2, 3. The group collectively consumed a half-gallon of vodka, and later Philomene Boneshirt (a guest) and John Abdo went to a bedroom together. Id. ¶ 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. ¶ 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. ¶ 9. 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 Abdo passed out in the bedroom and noticed that he had blood on his hands and around his mouth. Id. ¶¶ 14, 15. Abdo was arrested and taken to the Charles Mix County jail in Lake Andes, South Dakota. Id. ¶ 17.
At the jail, 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 observed Abdo's pupils to be " 'pinpoint[,]' " and that Abdo's attitude was erratic. Id. ¶¶ 22-24. Officer McGuire requested a warrant to search Abdo's" 'urine or other bodily fluid to determine 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 through a catheter. Id. ¶¶ 28, 29. Abdo agreed to provide the urine sample voluntarily. Id. ¶ 30. Later, Abdo was charged with aggravated assault and second-degree escape. Id. ¶ 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 of the 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 of law." 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 Matsushita 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 RacingCorp., 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., 477 U.S. 242, 248 (1986); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 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. CIV. 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, 477 U.S. at 256; FED. R. CIV. P. 56(e) (). The underlying substantive law identifies which facts are "material" for purposes of a motion for summary judgment. Anderson, 477 U.S. at 248. Id. (citing 10A CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, Fed. Practice & Procedure § 2725, at 93-95 (3d ed. 1983)). "[T]he mere existence of some 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 of summary 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 movant's 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 determine that the moving party is entitled to judgment as a matter of law on that claim." Interstate Power Co. v. Kansas City Power & Light Co., 992 F.2d 804, 807 (8th Cir. 1993).
Abdo claims that he was arrested 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.' " Chevallier v. 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 regarding the Fourth Amendment's prohibition of unreasonable searches and seizures." Linnen v. Armainis, 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 "CRI 16-07, CRI 16-08, and CRI 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, from challenging the trial court's decision.
In Haring 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 courts 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 [F]ourth [A]mendment 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).
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