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McManemy v. Tierney

United States District Court, N.D. Iowa, Central Division

October 23, 2018

BRUCE TIERNEY, et al., Defendants.


          Leonard T. Strand, Chief Judge.


         This case is before me on two motions: (1) a motion (Doc. No. 57) for summary judgment filed by defendants Bruce Tierney, Kiley Winterberg, Curt Lubben, Jason Johnson and Butler County, Iowa, [1] and (2) a motion (Doc. No. 74) for summary judgment filed by defendants Kirk Dolleslager, Rick Penning, and Grundy County, Iowa.[2] Plaintiff Charles McManemy has resisted both motions (Doc. No. 67, 79) and both sets of defendants have replied (Doc. No. 71, 87). I find that oral argument is not necessary on either motion. See N.D. Ia. L.R. 7(c).


         McManemy filed a complaint (Doc. No. 2) on March 16, 2017, and defendants answered, denying liability and raising various affirmative defenses. Doc. Nos. 14, 15, 17. The complaint asserts several constitutional claims brought under 42 U.S.C. § 1983, as well as claims brought under Iowa law against various state employees and two Iowa counties. All of the claims arise from the events that transpired during McManemy's March 18, 2015, arrest by officers from Butler and Grundy County, Iowa, and during his subsequent period of incarceration in the Butler County jail from March 18, 2015, to October 7, 2015. On June 5, 2018, I granted defendants' motion for summary judgment as to Counts V, VI, parts of Count VII, and Count IX. Doc. No. 54. The following claims are subject to the present motion:

Count I: Violation of Right to be Free from Excessive Force and Unreasonable Seizures (§ 1983) against Dolleslager - Taser Bursts.
Count II: Violation of Right to be Free from Excessive Force and Unreasonable Seizures (§ 1983) against Lubben - Bystander Liability for Count I.
Count III: Violation of Right to be Free from Excessive Force and Unreasonable Seizures (§ 1983) against Tierney - Assault.
Count IV: Violation of Right to be Free from Excessive Force and Unreasonable Seizures (§ 1983) against Lubben and Dolleslager - Bystander Liability for Count III.
Count VII: Negligent Hiring, Training and Supervision (Iowa law) against Johnson, Penning, Butler County and Grundy County.
Count VIII: Assault and Battery (Iowa law) against Dolleslager, Lubben, Tierney and Winterberg.
Count IX: Negligence (Iowa law) against Dolleslager, Lubben, Tierney, Winterberg and Johnson.


         Any party may move for summary judgment regarding all or any part of the claims asserted in a case. Fed.R.Civ.P. 56(a). Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         A material fact is one “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, “the substantive law will identify which facts are material.” Id. Facts that are “critical” under the substantive law are material, while facts that are “irrelevant or unnecessary” are not. Id. “An issue of material fact is genuine if it has a real basis in the record, ” Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or “when ‘a reasonable jury could return a verdict for the nonmoving party' on the question, ” Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Evidence that only provides “some metaphysical doubt as to the material facts, ” Matsushita, 475 U.S. at 586, or evidence that is “merely colorable” or “not significantly probative, ” Anderson, 477 U.S. at 249-50, does not make an issue of material fact genuine. Put another way, “[e]vidence, not contentions, avoids summary judgment.” Reasonover v. St. Louis Cnty., 447 F.3d 569, 578 (8th Cir. 2006) (citation omitted). The parties “may not merely point to unsupported self-serving allegations.” Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir. 2008).

         As such, a genuine issue of material fact requires “sufficient evidence supporting the claimed factual dispute” so as to “require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249 (quotations omitted). The party moving for entry of summary judgment bears “the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323). Once the moving party has met this burden, the nonmoving party must go beyond the pleadings and by depositions, affidavits, or otherwise, designate specific facts showing that there is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005). The nonmovant must show an alleged issue of fact is genuine and material as it relates to the substantive law. Id. If a party fails to make a sufficient showing of an essential element of a claim or defense with respect to which that party has the burden of proof, then the opposing party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322.

         To determine whether a genuine issue of material fact exists, I must view the evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88. Further, I must give the nonmoving party the benefit of all reasonable inferences that can be drawn from the facts. Id. However, “because we view the facts in the light most favorable to the nonmoving party, we do not weigh the evidence or attempt to determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004) (citing Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir. 1996)). Instead, “the court's function is to determine whether a dispute about a material fact is genuine.” Quick, 90 F.3d at 1377.


         Unless otherwise noted, the parties do not dispute the following facts:

         On March 18, 2015, McManemy borrowed a truck from his friend Janet. Doc. No. 67-3 at 5. McManemy took this truck to go visit his girlfriend and get his motorcycle fixed in Iowa Falls, Iowa. Doc. No. 61 at 8; Doc. No. 67-3 at 4-5. McManemy attached an open air trailer to the truck while in Iowa Falls, and began driving back towards Janet's house in Ackley, Iowa, at approximately 3:30 p.m. Id. at 5. At some point on this drive, McManemy's mother informed him over the phone that his father had been admitted to the hospital in Iowa City for congestive heart failure, and that his father was on his death bed. Id. McManemy testified that his plan was to return the truck to Janet, drive to Waterloo and then get a ride from a friend to Iowa City. Id.

         Meanwhile, officers from Grundy and Butler Counties were engaged in a narcotics investigation involving McManemy. Doc. No. 61 at 120-21. The officers believed McManemy was making a delivery of narcotics and they intended to conduct a traffic stop before he made the delivery. Id. Lubben's police report states that “because of prior interaction with [McManemy] it was anticipated that he could try to elude us if he was the driver of the vehicle.” Id. at 120.

         McManemy was first observed by officers about two miles outside of Ackley, Iowa, around 7:20 p.m. Dolleslager's dash camera captures McManemy travelling the opposite direction. Dolleslager Video at 19:26. Dolleslager turned around, activated his lights, and began to pursue McManemy. Id. at 19:26-19:28. McManemy testified that he believed Dolleslager saw him run a stop sign. Doc. No. 67-3 at 5. Dolleslager testified that he intended to pull McManemy over for speeding. Id. at 26. McManemy agreed that Dolleslager had the right to pull him over and that there was probable cause for an arrest. Id. at 7. However, McManemy testified that he did not stop his car because he was scared and because he wanted to return to Iowa City to see his father. Id. at 7-8.

         The ensuing chase, which reached speeds of 80 to 90 miles per hour, resulted in McManemy's vehicle being rammed twice and involved a detour through a plowed cornfield, followed by McManemy dragging a hundred feet of barbed-wire fencing that sparked and whipped against the road behind him. See generally, Dolleslager Video, Lubben Video. At one point, Winterberg attempted to throw a spike strip in McManemy's path. Doc. No. 67-3 at 30. This event does not appear on video. However, Winterberg and McManemy agree that the spike strip went through McManemy's front windshield. Id. at 7, 30.

         McManemy came to a stop after about 12 minutes. See Dolleslager Video from 19:26 to 19:38. Several police vehicles surrounded McManemy's truck and an officer yelled at McManemy to get out of the car. Lubben Video at 8:50. Other police cars parked between McManemy's truck and Lubben's dash cam, such that Lubben's dash cam captured only audio of the arrest. McManemy's testimony is that he stopped, attempted to make a phone call but realized that his phone was dead, set aside a knife, and lit a cigarette before getting out of the car. Doc. No. 67-3 at 9. Dolleslager's dash cam recorded the visual (but limited audio) of McManemy as he got out of the truck and laid spread-eagle on the ground. Dolleslager Video at 19:38. Lubben testified that as he approached, he saw McManemy place something behind him, potentially in his pocket. Doc. No. 67-3 at 33. This event is not visible on the dash cam.

         There is some disagreement over what happened next. McManemy states that he spread his arms and legs and waited to be handcuffed. Doc. No. 67-3 at 9. However, due to a prior shoulder injury, McManemy alleges that he was unable to comply with the officers pulling his right arm behind his back and that he asked the officers to cuff him with two pairs of handcuffs. Id. McManemy claims that Lubben knew of his shoulder injury and should have known from prior arrests that two sets of handcuffs were required and, indeed, that McManemy was screaming at the deputies to use two sets of handcuffs. Id. McManemy states that his left arm was lying on the ground, touching the side of his body. Doc. No. 61 at 22-23. At least one officer was holding McManemy's head down from the right side. Doc. No. 67-3 at 9 (“And the one's got his knee right on the side of my head (indicating).”). As the group continued to struggle, McManemy argues that Tierney aggressively stepped on and kicked McManemy's right leg. Tierney then placed himself on the left side of McManemy's body, near his head, where he began to knee McManemy's head as it was being held down, doing damages to his left eyeball:

Q. What are you claiming happened that caused your left eye to swell up and close?
A. Him (pointing to Deputy Tierney) putting his knee into my eyeball about 20, 30 times.
Q. 20 or 30 times?
A. That I - I think. I'm being jerked from the back and being jerked from the side. He's ...

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