Marksmeier v. Davie

• Decision Date: 08 October 2010
• Docket Number: No. 09-3074.,09-3074.
• Citation: 622 F.3d 896
• Parties: Jeffery J. MARKSMEIER, Appellant, v. Randy Dale DAVIE, individually and in his official capacity as a police officer of the City of Wisner, Nebraska; Mark Delmont, individually and in his official capacity as Cuming County Nebraska deputy sheriff; Lonnie Schultz, individually and in his capacity as police chief of the Village of Beemer, Nebraska, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

622 F.3d 896

Jeffery J. MARKSMEIER, Appellant,

v.Randy Dale DAVIE, individually and in his official capacity as a police officer of the City of Wisner, Nebraska; Mark Delmont, individually and in his official capacity as Cuming County Nebraska deputy sheriff; Lonnie Schultz, individually and in his capacity as police chief of the Village of Beemer, Nebraska, Appellees.

No. 09-3074.

United States Court of Appeals,Eighth Circuit.

Submitted: March 9, 2010.

Filed: Oct. 8, 2010.

Daniel P. Bracht, argued, West Point, NE, for appellant.

Bradley Benedict Mallberg, argued, Lincoln, NE, Thomas J. Cullane, on the brief, Omaha, NE, for appellee Schultz.

Vincent Valentino, argued, Lincoln, NE, for appellee Delmont.

Before SMITH, BENTON, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Jeffery J. Marksmeier appeals the district court's ¹ adverse grant of summary judgment in his 42 U.S.C. § 1983 action. He also challenges the district court's denial of his motion for additional time to respond to the summary judgment motions and grant of a protective order limiting discovery. We affirm.

I.

Marksmeier resides in Beemer, Nebraska. He is mildly mentally retarded, and, in January 2007, when this incident occurred, he was 23 years old. The defendants in this matter were familiar with Marksmeier due to past contacts with him.

During the evening hours of January 23, 2007, ² Randy Davie, a police officer for the City of Wisner, contacted Lonnie Schultz, police chief of the Village of Beemer, and requested that if Chief Schultz had any contact with Marksmeier to advise Marksmeier that Officer Davie wished to speak with him. Around 1:45 a.m. on January 24, 2007, Chief Schultz saw Marksmeier in the parking lot of a convenience store in Beemer. Chief Schultz informed him of Officer Davie's request. Marksmeier agreed to meet with Officer Davie in Beemer, but he stated that he would need to travel home before the meeting. Chief Schultz offered Marksmeier a ride, which he accepted. Chief Schultz drove Marksmeier to his residence, remained in the patrol car while Marksmeier entered the apartment, and then drove Marksmeier to the Beemer Police Department to meet with Officer Davie.

After borrowing a micro-cassette recorder from Chief Schultz, Officer Davie began the interrogation of Marksmeier by reading Marksmeier's Miranda ³ rights to him. Marksmeier then signed a waiver of his Miranda rights, which Officer Davie witnessed and dated January 24, 2007. The initial focus of the interview was an alleged assault on “SP,” a juvenile female. At first, Marksmeier denied striking SP, but after persistent interrogation, Marksmeier admitted hitting SP. Officer Davie also questioned Marksmeier about claims SP had made that she had a consensual sexual relationship with Marksmeier. Marksmeier denied those allegations.

Approximately ten minutes after the interrogation began, Mark Delmont, a deputy sheriff for Cuming County, Nebraska, arrived at the Beemer Police Station. Deputy Delmont was visiting with Chief Schultz when Officer Davie exited the interrogation room and told them he had been unsuccessful in getting Marksmeier to elaborate about the assault on SP. Officer Davie asked if Deputy Delmont or Chief Schultz would try talking to Marksmeier. Deputy Delmont agreed to speak to Marksmeier, and he took over the interrogation. Marksmeier again admitted hitting SP once. Minutes later, Marksmeier admitted to Deputy Delmont that he hit SP four times “ever” and struck her two, or possibly three, times in the incident being investigated by the police.

As part of his interrogation procedures, Deputy Delmont took contemporaneous notes and would, throughout the interview, read them to Marksmeier and have Marksmeier initial the notes if he agreed with the statement. At some point during the interrogation, the cassette tape ran out of space. When Officer Davie reentered the room, he noticed this and inserted a new tape into the cassette recorder. Thus part of the interrogation was not recorded.

Prior to the end of the first tape, Deputy Delmont is heard reciting his first notation-that Marksmeier hit SP four times “ever” and “two maybe three” times in the first part of January. When the second tape begins, Deputy Delmont is heard writing his third note-that Marksmeier hit SP once at a bar in Omaha and two other times at SP's mother's house. Deputy Delmont's notes contain an entry between the two mentioned above that is the focus of this litigation. This second notation was made after the first tape quit recording and before the second recording was started. According to that second notation, which is initialed by Marksmeier, “[JP] and Jeff [Marksmeier] had sex one time but it was her idea. At Jeff's appartment [sic]-about 3 weeks after [KP] hit Jeff.” (Appellant's App. 7.) “JP” is SP's sister and was 16 years old at the time of the interrogation but was 15 years old when the alleged sexual contact occurred. “KP” is JP and SP's brother.

On the second tape and after Deputy Delmont finished the third notation, Deputy Delmont reviews the first notation with Marksmeier. Then the following conversation occurred:

Deputy Delmont: “So, you and [SP] never got it on, ever?”

Marksmeier: “Nope.”

Deputy Delmont: “You never did the naked noodle dance with her?”

Marksmeier: “Huh-uh.”

Deputy Delmont: “Just [JP]. Just [JP], right?”

Marksmeier: “Right.”

The interrogation continued with questions about possible prostitution activities of the mother of SP and JP. At the end of the interrogation and recorded on the tape, Officer Davie stated that it was January 24 at 5:08 a.m. and Deputy Delmont's notes also contain the date and time notation.

After the interrogation, Officer Davie arrested Marksmeier. According to the Affidavit of Probable Cause, sworn to on January 25, 2007, Officer Davie arrested Marksmeier for child abuse, sexual assault, and assault in the third degree. The probable cause affidavit recites facts about Marksmeier's hitting of SP and his admission to having sex with JP. A criminal complaint was initially filed charging Marksmeier with sexual assault and child abuse due to the allegations concerning JP; however, later the county attorney dismissed the charges for reasons not explained in the record. Marksmeier was held from the time of his arrest on January 24 until he posted bond on January 31.

After the charges were dropped, Marksmeier brought this section 1983 action against Officer Davie, Deputy Delmont, and Chief Schultz, in their individual and official capacities, alleging that his Fourth and Fourteenth Amendment rights were violated. He also asserted state-law claims for false arrest; false imprisonment; intentional infliction of emotional distress; and libel, slander, and defamation. The defendants moved for summary judgment on all claims. The district court determined that, viewing the evidence in the light most favorable to Marksmeier, there was no genuine issue as to any material fact and the defendants were entitled to summary judgment as a matter of law.

II.

We review the district court's grant of summary judgment de novo, viewing the facts in the light most favorable to the nonmoving party. See Irving v. Dormire, 586 F.3d 645, 647 (8th Cir.2009). We will affirm the grant of summary judgment if “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Disputes that are not “genuine,” or that are about facts that are not “material,” will not preclude summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Material facts are those which might affect the outcome of the lawsuit. A dispute over an issue of fact is ‘genuine’ if there is sufficient evidence to allow a reasonable jury to find for the non-moving party on that issue.” DuBose v. Kelly, 187 F.3d 999, 1000-01 (8th Cir.1999).

1. Probable Cause to Arrest

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and thus Officer Davie needed probable cause to believe that Marksmeier committed an offense at the time the arrest was made. “It is well established that a warrantless arrest without probable cause violates an individual's constitutional rights under the Fourth and Fourteenth Amendments.” Hannah v. City of Overland, Mo., 795 F.2d 1385, 1389 (8th Cir.1986). “In determining whether probable cause exists to make a warrantless arrest, a court will consider whether, based on the totality of the circumstances, the facts would justify a reasonably cautious police officer's belief that the individual arrested has committed or was committing an offense.” Anderson v. Cass County, Mo., 367 F.3d 741, 745 (8th Cir.2004).

Marksmeier maintains that Officer Davie did not have probable cause to arrest him for having sexual contact with JP because, when the record is construed in the light most favorable to him, it “support[s] Marksmeier's claims [that Deputy Delmont fabricated the notation and Marksmeier's confession] rather than refute[s] them.” (Appellant's Br. 14.) Our obligation is to construe the facts in the light most favorable to Marksmeier, but we are not bound to accept Marksmeier's version of the events when his version “is blatantly contradicted by the record, so that no reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

Marksmeier argues that Deputy Delmont's question of whether Marksmeier had ever “got it on” with SP or did the “naked noodle dance” with SP and Deputy Delmont's subsequent confirmation that it was “[j]ust [JP], right?” does not, in context, constitute an admission by Marksmeier that he engaged in sexual activity with JP. Having reviewed the tapes of the interrogation and Deputy Delmont's notes taken during the interrogation, we cannot find that...