United States District Court, N.D. Iowa, Central Division
MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY
Leonard T. Strand, Chief Judge.
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,  and (2) a motion (Doc. No. 74) for summary
judgment filed by defendants Kirk Dolleslager, Rick Penning,
and Grundy County, Iowa. 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.
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 -
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 -
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
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.
SUMMARY JUDGMENT STANDARDS
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,
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).
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.
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.
otherwise noted, the parties do not dispute the following
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
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
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.
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.
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.
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 ...