Eric Wayne Poemoceah v. Morton County, North Dakota

United States Court of Appeals
For the Eighth Circuit
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No. 21-1207
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Eric Wayne Poemoceah
Plaintiff - Appellant
v.
Morton County, North Dakota; Kyle Kirchmeier, in his individual capacity; Paul
Laney, in his individual capacity
Defendants - Appellees
Thomas Iverson, in his individual capacity
Defendant
Benjamin V. Swenson, in his individual capacity; John Does, 1 - 4
Defendants - Appellees
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Appeal from United States District Court
for the District of North Dakota - Western
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Submitted: January 10, 2024
Filed: September 25, 2024
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Before LOKEN, ARNOLD, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Eric Poemoceah joined members of the Oceti Šakowiŋ1 at the Standing Rock
Reservation in North Dakota to protest the construction of the Dakota Access
Pipeline. Morton County Police officers arrested Poemoceah for obstruction of a
government function, but the charge was later dismissed. Poemoceah sued Morton
County and various North Dakota law enforcement officers raising a variety of
claims. The district court granted defendants’ motions to dismiss and dismissed the
complaint with prejudice. Poemoceah appeals.
I.
The following facts are taken from the complaint.2 Poemoceah is an
Oklahoma resident and a member of the Comanche Nation. On February 22, 2017,
he was “present as a Water Protector” supporting the “peaceful opposition to the
construction of the Dakota Access Pipeline.” At about 4:20 p.m., Poemoceah was
“unarmed, facing a group of about thirty law enforcement officers clad in riot gear,
with about fifteen feet between him and the group of officers.” Poemoceah spoke to
the officers, “calmly, firmly, but not in a loud voice . . . in hopes of negotiating a
peaceful process for . . . elders to leave the Water Protector encampment, which had
been in place for several months.” Poemoceah “advanced slightly (a couple of feet)
while speaking,” but “he remained at a respectful distance and did not make any
sudden movements.” He said:
I know you have a job to do and a family to provide for, but why do it
with protecting oil? That’s all we’re trying to do sir, is protect—protect
the water. I know—I know you’re looking at me and I know you just
shook your head yes because you have a heart. You have a soul. And I
1 The Oceti Šakowiŋ are also known as the Seven Council Fires or the Great
Sioux Nation.
2 The district court “considered only the facts on the face of Poemoceah’s
Complaint,” and so do we.

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know—you look like a very prayerful man. Why don’t—why don’t you
be honorable and set down your badge in front of 6,100 people.
When he stopped speaking, “dozens of riot-gear-clad officers” “charge[d] towards
him and the two other Water Protectors who were standing near him.” Poemoceah
“instinctively began running.” He was not told he was under arrest nor was he told
to stop.
One of the officers was Benjamin Swenson, a Bismarck police officer
deputized by the Morton County Sheriff’s office. Swenson “quickly reached
[Poemoceah] and violently tackled [him] from behind.” Swenson “thr[ew] his full
weight on top of [Poemoceah, who was knocked] off the roadway onto the adjacent
hill.” Once tackled, Poemoceah “did not resist nor, through any words or actions,
indicate any unwillingness to comply with” Swenson. Other officers, including Paul
Laney, then-Sheriff of Cass County, North Dakota, and four who are identified as
Defendant Does, “assist[ed]” Swenson. Poemoceah alleges that “two of them pil[ed]
on top of [him],” “one or more of the[m] further assaulted [him] with a fist and/or
knee after [he] was already subdued,” and one “injured [Poemoceah’s] left foot and
ankle.”
Poemoceah “cried out in pain,” said he “can’t walk,” and told the officers that
he thought his hip was broken. He asked for an ambulance. The officers mocked
him, accused him of “playing games,” and forced him to walk “at least two hundred
feet” to the police van. Officers transported him to the main camp, where an
ambulance took him to a local hospital. Roughly two and a half hours later,
Poemoceah arrived at the hospital where medical providers determined he had
“minor contusions” but failed to diagnose Poemoceah’s “nondisplaced pelvic
fracture.” Poemoceah was then taken to the local detention center, where he was
released on bond later that night. Poemoceah was charged with physical obstruction

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of a government function, a class A misdemeanor in North Dakota. See N.D. Cent.
Code § 12.1-08-01.3 The charge was later dismissed.
Poemoceah alleges he “suffered a pelvic fracture . . . injuries to his neck,
ankle, and left wrist,” as well as “severe post-traumatic stress disorder, anxiety, and
major depressive disorder related to the incident.” He requires ongoing physical
therapy and will continue to suffer the “debilitating effects of his pelvis injury for
the rest of his life.”
II.
Poemoceah brought suit pursuant to 18 U.S.C. § 1983. He alleged that his
First, Fourth, and Fourteenth Amendment rights were violated by five named
Defendants—Morton County; Swenson; Laney; Kyle Kirchmeier, Sheriff of Morton
County; and Thomas Iverson, a North Dakota Highway Patrol trooper—and four
Does. Poemoceah also raised claims under North Dakota law.4 The defendants
moved to dismiss the complaint. The district court granted their motions, concluding
the defendants were entitled to qualified immunity on the First and Fourth
Amendment claims, and dismissing the remaining claims as inadequately pled. The
court denied Poemoceah’s request for leave to amend and dismissed Poemoceah’s
complaint with prejudice.
3 The state court judge dismissed the charges sua sponte based on the state’s
failure to comply with the requirements of N. Dakota R. Crim. P. 3(a). The same
charges against eight others who were arrested at the same time were also dismissed.
4 Poemoceah originally brought assault and battery claims against Swenson
and a claim for intentional infliction of emotional distress against all individual
Defendants. He voluntarily dismissed the former, so only the latter claim remains.

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III.
“We review the grant of the motion to dismiss de novo.” Allen v. Monico, 27
F.4th 1372, 1376 (8th Cir. 2022). “[W]e read the complaint in the light most
favorable to the plaintiff, making all reasonable inferences of fact in the plaintiff’s
favor.” Id. at 1374. “Liability for damages for a federal constitutional tort is personal,
so each defendant’s [own] conduct must be independently assessed.” Wilson v.
Northcutt, 441 F.3d 586, 591 (8th Cir. 2006). “To decide whether an official is
entitled to qualified immunity, we conduct a two-step inquiry,” determining “(1)
whether the facts, viewed in the light most favorable to the plaintiff, demonstrate a
constitutional or statutory deprivation; and (2) whether the right was clearly
established at the time.” Nieters v. Holtan, 83 F.4th 1099, 1105 (8th Cir. 2023)
(quoting Webster v. Westlake, 41 F.4th 1004, 1009–10 (8th Cir. 2022)).
A.
Poemoceah first argues that his Fourth Amendment excessive force claim was
improperly dismissed, addressing the conduct of Swenson only.5 An officer’s use of
force violates the Fourth Amendment if it is “objectively unreasonable.” Tatum v.
Robinson, 858 F.3d 544, 547 (8th Cir. 2017) (quoting Graham v. Connor, 490 U.S.
386, 396 (1989)). Reasonableness depends on the circumstances surrounding the use
of force, including “the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Id. (quoting same). The
Fourth Amendment analysis is one of “objective reasonableness,” not subjective
conjecture. Jackson v. Stair, 944 F.3d 704, 710 (8th Cir. 2019).
5 To the extent Poemoceah intended to appeal the dismissal of excessive force
claims against other defendants, any such argument is waived. See Mitchell v.
Kirchmeier, 28 F.4th 888, 894 (8th Cir. 2022).

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The district court found that when Poemoceah “advanced toward the
officers,” a reasonable officer could feel threatened. See Tatum, 858 F.3d at 547.
But Poemoceah alleged that he was unarmed and peacefully attempting to negotiate
the safe passage of elders from the site of the protest when he “advanced slightly (a
couple of feet).” He also “remained at a respectful distance and did not make any
sudden movements.” Based on these allegations, we have difficulty concluding that
it was objectively reasonable for an officer to believe that Poemoceah posed a threat.
According to the complaint, Poemoceah also was not resisting arrest or
attempting to evade arrest when he “instinctively” ran from the officers. He was not
under arrest, and he had been given no command to stay in place or to stop. Cf.
Kelsay v. Ernst, 933 F.3d 975, 980 (8th Cir. 2019) (en banc) (reversing the denial of
qualified immunity where the plaintiff was “a suspect who ignored an officer’s
command and walked away”); see also Jackson, 944 F.3d 704, 712 (“Unlike the
plaintiff in Kelsay . . . Jackson did not ignore law enforcement commands; in fact,
no commands were given.”). The complaint describes no circumstances that
prevented the officers from issuing such an order.
Viewing the factual allegations as a whole and drawing all inferences in his
favor, Poemoceah plausibly alleges a Fourth Amendment excessive force claim
against Swenson. And Poemoceah’s right to be free from excessive force was clearly
established in 2017. See Mitchell, 28 F.4th at 898 (collecting cases; explaining we
have applied the Graham factors and “held time and again that, if a person is not
suspected of a serious crime, is not threatening anyone, and is neither fleeing nor
resisting arrest, then it is unreasonable for an officer to use more than de minimis
force against him”; and concluding this particularized right was clearly established
in, and before, 2016).
B.
Next, Poemoceah argues that the district court erred when it dismissed his
claim for deliberate indifference to a serious medical need. We analyze Poemoceah’s

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claim under the Fourteenth Amendment, since “the alleged violation occurred after
[he] was arrested” and before any jail or prison sentence. Carpenter v. Gage, 686
F.3d 644, 650 (8th Cir. 2012) (applying Fourteenth Amendment to arrestee’s
deliberate indifference claim that invoked due process only). To establish this claim,
“[Poemoceah] must demonstrate that he suffered an objectively serious medical
need, and that the [officers] had actual knowledge of those needs but deliberately
disregarded them.” Id.
Drawing all reasonable inferences in his favor, Poemoceah has failed to allege
facts to show that the arresting officers had actual knowledge of his injuries. Bailey
v. Feltmann, 810 F.3d 589, 594 (8th Cir. 2016) (explaining that objective component
may be established by demonstrating the need was “so obvious that even a layperson
would easily recognize the necessity for a doctor’s attention”). Poemoceah was in
pain, but he was able to walk 200 feet to the police van. The officers then drove him
to the base camp, where he was taken by ambulance to the local hospital. Poemoceah
told officers he thought his hip was broken, but according to the complaint, the
medical providers released him without “discover[ing] the nondisplaced pelvic
fracture.” Poemoceah alleges no other facts that would make the extent of his injury
obvious to the officers. See Carpenter, 686 F.3d at 650 (“A showing of negligence
is not sufficient to meet th[e] burden [of proving deliberate indifference].”) We
affirm the dismissal of his deliberate indifference claim.
C.
Next, Poemoceah argues that the district court erred by dismissing his First
Amendment retaliation claim. To establish a violation of the First Amendment based
on the retaliatory use of force, a plaintiff must show that (1) they “engaged in
protected activity,” (2) the officer “took adverse action against him that would chill
a person of ordinary firmness from continuing the protected activity,” and (3) that
action “was motivated at least in part by the exercise of the protected activity.”
Peterson v. Kopp, 754 F.3d 594, 602 (2014) (quoting Revels v. Vincenz, 382 F.3d

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870, 876 (8th Cir. 2004)). Poemoceah describes the retaliatory acts, or “adverse
action,” as excessive use of force and deliberate indifference to his injuries.
Poemoceah alleges he was engaged in protected activity, but he does not
plausibly allege a causal connection between that activity and the officers’ actions.
See Baribeau v. City of Minneapolis¸ 596 F.3d 465, 481 (8th Cir. 2010) (“To prevail
in an action for First Amendment retaliation, plaintiff must show a causal connection
between a defendant’s retaliatory animus and plaintiff’s subsequent injury.”
(quotation omitted)). According to the complaint, after he spoke, Poemoceah was
“startled to see” the officers “charge towards him and two other Water Protectors.”
There is nothing in the complaint to indicate that the “two other[s]” were also
speaking. See De Mian v. City of St. Louis, Missouri, 86 F.4th 1179, 1182 (8th Cir.
2023) (explaining that to state a retaliation claim, “a plaintiff must demonstrate that
she was ‘singled out’ due to her protected expression”). Additionally, Poemoceah
alleges that the officers “charge[d] towards him” at some point after his speech, but
without more, this does not plausibly connect the speech to the officers’ alleged
excessive force and deliberate indifference. See Graham v. Barnette, 5 F.4th 872,
889 (8th Cir. 2021) (noting that the temporal proximity of a plaintiff’s protected
activity and the defendant’s act is relevant, but “not enough on its own” to establish
retaliatory motive).
At this stage of the proceedings, Poemoceah is entitled to have all reasonable
inferences drawn in his favor. But we cannot infer a motive for the officers’ actions
that lacks factual support in the complaint. DeCastro v. Hot Springs Neurology
Clinic, P.A., 107 F.4th 813, 816 (8th Cir. 2024) (“‘[F]actual’ matter” in a complaint
“does not include ‘labels . . . or a formulaic recitation of the elements of a cause of
action,’ ‘naked assertions[s] of claims,’ or legal conclusions ‘couched as’ facts.”
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). As alleged, Poemoceah’s First
Amendment retaliation claim was properly dismissed.

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D.
We next address the dismissal of the supervisory liability claims. “While the
doctrine of respondeat superior does not apply to § 1983 cases, a supervisor may
still be liable under § 1983 if either his direct action or his failure to properly
supervise and train the offending employee caused the constitutional violation at
issue.” Elder v. Gillespie, 54 F.4th 1055, 1065 (8th Cir. 2022) (quoting Jackson v.
Nixon, 747 F.3d 537, 543 (8th Cir. 2014)). We agree with the district court that the
complaint “does not implicate Iverson or Kirchmeier as any of the officers who were
directly involved in Poemoceah’s arrest or the force used against him” and that it
fails to allege a failure to supervise or train beyond the fact that the two men were
present at the scene. The supervisory liability claims brought against Iverson and
Kirchmeier were properly dismissed.
Because the complaint alleges that Laney assisted Swenson, we consider this
claim separately. It too fails. The complaint includes factual allegations concerning
Laney’s personal involvement in the use of force, but it alleges a theory of
supervisory liability predicated only on Laney’s (and Iverson’s and Kirchmeier’s)
broader training and supervision. As against Iverson and Kirchmeier, this theory of
liability is unsupported by the complaint’s factual allegations. Poemoceah’s
supervisory liability claim against Laney was properly dismissed. See Richardson v.
Omaha Sch. Dist., 957 F.3d 869, 877 (8th Cir. 2020) (at summary judgment, refusing
to credit alternative theories of liability that were encompassed in complaint where
“[t]he only hint of these theories is passing statements that were not pleaded as the
factual basis for the legal claim”); Adams v. Am. Family Mut. Ins., 813 F.3d 1151,
1154 (8th Cir. 2016) (“A theory of liability that is not alleged or even suggested in
the complaint would not put a defendant on fair notice and should be dismissed.”).
E.
Next, Poemoceah challenges the dismissal of his Monell claim. Local
governmental entities are “persons” that may be held liable under 28 U.S.C. § 1983.

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Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–92, 694 (1978). A municipality
may only be liable for a constitutional violation resulting from (1) an “official
municipal policy,” (2) an “unofficial custom,” or (3) “failure to train or supervise.”
Atkinson v. City of Mountain View, 709 F.3d 1201, 1214 (8th Cir. 2013) (citations
omitted).
Poemoceah alleges that Laney and Kirchmeier, officials with “final
policymaking authority,” ratified a custom condoning officers’ use of excessive
force against the protestors. To establish an unofficial custom Poemoceah must show
(1) “[t]he existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees”;
(2) “[d]eliberate indifference to or tacit authorization of such conduct
by the governmental entity’s policymaking officials after notice to the
officials of that misconduct”; and (3) an “injury by acts pursuant to the
governmental entity’s custom.”
Mitchell 28 F.4th at 899–900 (quoting Ware v. Jackson County, 150 F.3d 873, 880
(8th Cir. 1998)).
But Poemoceah does not allege facts establishing a pattern of conduct.
Outside of his own experience, he does not point to specific instances where
protestors were subject to excessive force by officers under Laney’s and
Kirchmeier’s supervision. Poemoceah also alleged that multiple defendants failed to
properly train their officers on policing norms in the context of the pipeline
demonstrations,6 but this too is inadequately pled. A failure to train is actionable
under § 1983 if, “in light of the duties assigned to specific officers or employees[,]
the need for more or different training is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that the policymakers . . . can
reasonably be said to have been deliberately indifferent to the need.” City of Canton
6 Poemoceah also argues that law enforcement leaders failed to train officers
on the use of explosives and less-lethal munitions, but nowhere in the complaint does
he allege that “explosives and less-lethal munitions” were used.

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v. Harris, 489 U.S. 378, 390 (1989). Poemoceah makes only conclusory allegations
without asserting sufficient facts to support a claim that the need for training was so
obvious that any of the individual defendants were deliberately indifferent to it.
Because Poemoceah has failed to allege an unconstitutional policy, practice, or
custom, the Monell claim against Morton County fails as well.
F.
Poemoceah challenges the dismissal of his only claim under North Dakota
law, brought against all individual defendants, for intentional infliction of emotional
distress (IIED). North Dakota adopts the definition of IIED stated in Section 46 of
the Restatement (Second) of Torts: “(1) extreme and outrageous conduct that is (2)
intentional or reckless and that causes (3) severe emotional distress.” Swenson v. N.
Crop Ins., Inc., 498 N.W.2d 174, 181 (N.D. 1993) (quoting Muchow v. Lindblad,
435 N.W.2d 918, 924 (N.D. 1989)). “Whether the threshold of extreme and
outrageous conduct has been met is a question of law for the court to decide.”
Botteicher v. Becker, 910 N.W.2d 861, 866 (N.D. 2018). But “[w]here reasonable
[people] may [disagree], it is for the jury, subject to the control of the court, to
determine whether, in the particular case, the conduct has been sufficiently extreme
and outrageous.” Swenson, 498 N.W.2d at 182 (first alteration original) (citation
omitted).
The Supreme Court of North Dakota has explained that it “has not been
enough that the defendant has acted with an intent which is tortious or even criminal,
or that he has intended to inflict emotional distress.” Zuger v. State, 673 N.W.2d
615, 622 (N.D. 2004) (quoting Muchow, 435 N.W.2d at 924). Rather, “[t]he
‘extreme and outrageous’ threshold is narrowly limited to conduct that exceeds ‘all
possible bounds of decency.’” Id. The standard is “strenuously high.” Hysjulien v.
Hill Top Home of Comfort, Inc., 827 N.W.2d 533, 549 (N.D. 2013).
Poemoceah alleges the Defendants engaged in extreme and outrageous
conduct by “assaulting [him], then berating him, and then forcing him to walk more

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than 200 feet with a broken pelvis.” As a “direct and foreseeable consequence” of
these actions, Poemoceah alleges he “suffered severe emotional distress and mental
anguish,” including “severe post-traumatic stress disorder, anxiety, and major
depressive disorder.”
We agree with the district court that the allegations are insufficiently extreme
and outrageous. As to the alleged assault, we note that this tort is intended to address
the intentional infliction of emotional—not simply physical—distress. See
Restatement (Second) of Torts § 46 cmt. i (1965) (noting the tort “applies where the
actor desires to inflict severe emotional distress” (emphasis added)); Restatement
(Second) of Torts § 47 cmt. a (noting that § 46 “creates liability only where the actor
intends to invade the interest in freedom from severe emotional distress,” and that
“[t]he fact that the actor intends to invade some other legally protected interest is
insufficient to create liability . . .”).7 And as to the officers’ alleged taunts, though
“perhaps insensitive or inconsiderate or even oppressive,” Botteicher, 910 N.W.2d
at 866, they are not “so outrageous in character, and so extreme in degree, as . . . to
be regarded as atrocious, and utterly intolerable in a civilized community.”
Restatement (Second) of Torts § 46 cmt. d (“The liability clearly does not extend to
mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities.”) Finally, like his deliberate indifference claim, the allegations fail to
show the officers knew the extent of Poemoceah’s physical injuries and thus do not
plausibly suggest harmful intent.
7 Because North Dakota “recognize[s] a tort cause of action for intentional
infliction of emotional distress under Restatement (Second) of Torts § 46 (1965),”
Hougum v. Valley Mem’l Homes, 574 N.W.2d 812, 819 (N.D. 1998), we draw on
the Second Restatement in addition to North Dakota Supreme Court caselaw in
charting the tort’s contours. See Washburn v. Soper, 319 F.3d 338, 342 (8th Cir.
2003) (pointing to state court’s “commitment to the [Second] Restatement” as a
“clear and persuasive indication” that its approach to novel issue would echo the
Restatement).

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Even considering the alleged actions in combination, the claim fails.
Poemoceah brought this claim against “the individual Defendants” as a group.
Unlike other claims in the complaint, Poemoceah makes no effort to tie any (or all)
of the alleged conduct to any particular defendant. As a result, we are prevented from
“draw[ing] the reasonable inference that [any one] defendant is liable for the
misconduct alleged.” Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 960 (8th
Cir. 2015) (quoting Iqbal, 556 U.S. at 678). Poemoceah’s claim for intentional
infliction of emotional distress under North Dakota law was properly dismissed.
IV.
Finally, Poemoceah argues that the district court abused its discretion by
denying his motion to amend his complaint. Midwest Med. Solutions, LLC v.
Exactech U.S., Inc., 95 F.4th 604, 606 (8th Cir. 2024) (standard of review).
Poemoceah did not file a motion for leave to amend his complaint, instead
addressing the issue cursorily in his opposition to the Motions to Dismiss. Nor did
he provide the district court with a copy of a proposed amended complaint or indicate
what meaningful amendments it would have contained. Pet Quarters Inc. v.
Depository Tr. & Clearing Corp., 559 F.3d 772, 792 (8th Cir. 2009). Therefore,
beyond “the claims that the district court should not have dismissed at all . . . [it] did
not abuse its discretion in dismissing the complaint with prejudice.” Mitchell, 28
F.4th at 903; see also Soueidan v. St. Louis Univ., 926 F.3d 1029, 1036–37 (8th Cir.
2019).
V.
We affirm in part, reverse in part, and remand for further proceedings on
Poemoceah’s Fourth Amendment claim against defendant Swenson.
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