Purchase v. Sturgis Police Dep't

• Decision Date: 31 March 2015
• Docket Number: CIV. 13-5060-JLV
• Court: U.S. District Court — District of South Dakota
• Parties: STEVEN BRIAN PURCHASE, Plaintiff, v. STURGIS POLICE DEPARTMENT, OFFICER WADE A. DUETER, OFFICER NICHOLE HODGE, CO BRENGLE, Defendants.

STEVEN BRIAN PURCHASE, Plaintiff, v. STURGIS POLICE DEPARTMENT, OFFICER WADE A. DUETER,OFFICER NICHOLE HODGE, CO BRENGLE, Defendants.

CIV. 13-5060-JLV

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

March 31, 2015

ORDER

INTRODUCTION

Plaintiff Steven Purchase brings an action under 42 U.S.C § 1983 alleging the defendants (the Sturgis Police Department, Officer Wade Dueter ("Dueter"), Officer Nichole Hodge ("Hodge") and Corrections Officer Matt Brengle ("Brengle") violated several of his constitutional rights. (Docket 4 at p. 1). Although not explicitly referenced in his amended complaint, Mr. Purchase asserts the court, by virtue of his § 1983 claim, has supplemental jurisdiction over the remainder of his claims which would otherwise sound in state law. See 28 U.S.C. § 1367. Mr. Purchase seeks $200,000 for "pain and injury and visual scars on his leg and for [his] mental anguish." (Docket 4 at p. 4). Mr. Purchase seeks punitive damages from the defendants. Id.The defendants deny the allegations contained in Mr. Purchase's amended complaint. (Docket 10).

Defendants Sturgis Police Department, Dueter and Hodge filed a motion for summary judgment and a statement of undisputed material facts. (Dockets 47 & 49). Defendant Brengle filed a motion for summary judgment and a statement of undisputed material facts. (Dockets 54 & 56). Mr. Purchase filed a combined response to all of the defendants' statements of undisputed material facts. (Docket 64). Mr. Purchase filed a combined response to all of the defendants' motions for summary judgment. (Docket 65). Defendants Sturgis Police Department, Deuter and Hodge filed a brief in reply to Mr. Purchase's response. (Docket 67). Defendant Brengle filed a brief in reply to Mr. Purchase's response. (Docket 66).

Mr. Purchase made many non-dispositive motions and assorted filings in this case: a motion for jury excursion (Docket 15); a motion to exclude uniforms and weapons from the courtroom (Docket 16); a motion in limine regarding uniform traffic tickets K454806 and K454807 and arrest record (Docket 17); a motion in limine regarding lay opinions about mental health (Docket 22); a motion to allow evidence of insurance for purposes of punitive damages, bias, prejudice, agency and motive (Docket 23); a first set of proposed jury instructions (Docket 30); a motion in limine to prevent introduction of evidence of officers' subjective thoughts and hearsay audios (Docket 31); a motion in limine to prevent introduction of witnesses' or parties'pre-occurrence or post-occurrence drug or alcohol consumption (Docket 32); a motion for special interrogatory questions to the jury (Docket 33); a motion for rulings regarding Fed. R. Evid. 404 and 608 and other matters (Docket 34); a submission of jury polling questions regarding bias to South Dakota alcohol laws (Docket 37); a motion to exclude Meade County residents from the jury pool (Docket 42); a motion for the court to view video and audio files that were submitted to the court (Dockets 59), which was unopposed by defendants Sturgis Police Department, Deuter and Hodge (Docket 61); and a motion to compel disclosure (Docket 60). Because the court's resolution of the pending motions for summary judgment will resolve Mr. Purchase's non-dispositive motions, the court first addresses defendants' motions for summary judgment.

FACTS

The parties' briefing in this case necessitates a review of the court's local rules and the Federal Rules of Civil Procedure regarding motions for summary judgment. District of South Dakota LR 56.1 requires that a nonmoving party opposing a motion for summary judgment "will respond to each numbered paragraph in the moving party's statement of material facts with a separately numbered response and appropriate citations to the record . . . [and] will identify any material facts as to which it is contended that there exists a genuine material issue to be tried." D.S.D. LR 56.1(B) (emphasis added). The court will deem as admitted "[a]ll material facts set forth in the movant's statement of material facts. . . unless controverted by the opposing party's statement of material facts." D.S.D. LR 56.1(D).

Rule 56 "permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Rule 56(c) provides that:

1. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c).

In this case, Mr. Purchase failed to respond to the defendants' statements of undisputed material facts in accordance with D.S.D. LR 56.1(B). Mr. Purchase's response admits it is "an incomplete list of [108] disputed facts taken from requests for admission, and the defendants' statements of undisputed facts, and other sources." (Docket 64). The court agrees. Plaintiff's response to defendants' statements of undisputed material facts is a list of 108 separate facts, allegations and theories the plaintiff believes that a jury could "reasonably find" in this case. Id. at 4.

This does not meet the standard for a nonmoving party as required by the Federal Rules of Civil Procedure and the court's local rules. First, Mr. Purchase's response is devoid of any citations to the record. See id. 64. Second, although Mr. Purchase's "response" to defendants' statements of undisputed material facts contains separately numbered paragraphs, the numbered paragraphs are not properly characterized as a corresponding response to each of the defendants' asserted statements of undisputed material facts. The "response" is a list of what Mr. Purchase believes the jury might find. The court cannot overlook these deficiencies. Because Mr. Purchase failed to properly respond, the court considers the facts contained in defendants' statements of undisputed material facts (Dockets 49 & 56) as admitted for purposes of adjudicating the defendants' motions for summary judgment. Fed. R. Civ. P. 56(e)(2); D.S.D. LR 56.1(D). A brief description of the material facts follows.

Mr. Purchase arrived in Sturgis, South Dakota, on the afternoon of July 10, 2013. See Docket 52 at p. 12 (Purchase Deposition).¹ Mr. Purchase traveled to Sturgis to attend a July 11, 2013, court proceeding for a "[v]iolation of a protection order with [his] ex-wife." Id. During the afternoon of July 10, Mr. Purchase bought a 750 milliliter bottle of vodka and began drinking it. Id. at 13-14. By the evening of July 10, Mr. Purchase was intoxicated and hismemory got worse as the day progressed. Id. at 16. Mr. Purchase went to the house of a person later identified as Darrin Marsh. Id. at 15; see also Track 1 of the Submitted Audio Files.² In the early morning hours of July 11, 2013, Mr. Marsh called the City of Sturgis Police Department dispatcher complaining that an unidentified person, who was later identified as Mr. Purchase, was "drunk and wanted to fight and then he went banging on people's doors wanting to fight." (Track 1 of the Submitted Audio Files, 0:21-0:24); see also Dockets 50 at p. 1; 51 at p.1.

Mr. Marsh made several more calls to the Sturgis police dispatcher during the early morning hours of July 11 describing Mr. Purchase's physical appearance, where he believed Mr. Purchase could be located, that Mr. Purchase was drunk, and further describing Mr. Purchase's threatening and violent behavior toward himself and others. See Tracks 1-4 of the Submitted Audio Files; see also Dockets 50 pp. 1-2; 51 pp. 1-2. The dispatcher relayed much of this information to on-duty Sturgis police officers via the police radio. See Track 1 of the Submitted Audio Files. Officers Nicole Hodge and Wade Deuter responded to the dispatcher's radio communication. (Dockets 50 at p. 1; 51 at p.1). Prior to encountering Mr. Purchase, the officers were "aware through radio traffic and the police dispatcher that a citizen had complained about a male who had acted in a threatening and violent manner, who was knocking on doors ofothers in his neighborhood and threatening the caller and other people."³ (Dockets 50 at p. 1; 51 at p. 1).

Deuter first located Mr. Purchase at approximately 1:45 a.m. on July 11. (Docket 50 at p. 2). Prior to approaching Mr. Purchase, Deuter was unaware whether Mr. Purchase possessed any weapons.⁴ Id. Mr. Purchase was sitting on what appears to be either a log or a railroad tie in the Pizza Hit parking lot. (First Submitted Video, 0:09); see also Docket 50 at p. 2. Deuter approached Mr. Purchase and threw Mr. Purchase's vodka bottle away. (Docket 52 at p. 26) (Purchase Deposition). At 1:54 a.m., shortly after Hodge's arrival, Deuter and Mr. Purchase stood approximately arm's length apart when Mr. Purchase attempted to stand up. (First Submitted Video, 0:23). Immediately after Mr. Purchase stood up, Officer Deuter pushed Mr. Purchase's shoulders, causing Mr. Purchase to trip over the log and fall to the ground. Id. at 0:26; see also Docket 52 at p. 23 (Purchase Deposition); (Docket 50 p. 2). Once on the ground,the officers handcuffed Mr. Purchase and searched him for weapons. (First Submitted Video, 0:40); see also Docket 50 at p. 2.

The video provided to the court does not contain any audio through the first minute of the recording. See First Submitted Video, 1:00. Therefore, the court is unable to hear any conversation between...