Barber v. Meirose et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
SEP 10 2022
eiERK
BLAKE BARBER, 5:18-CV-05063-CBK
Plaintiff,
vs.
ANTHONY MEIROSE,DALTON
SANTANA,MATTHEW HOWER,and
TIMOTHY DOYLE,Police Officers at
Rapid City Police Department, in their
Individual and Official Capacities,
MEMORANDUM OPINION
AND ORDER
Defendants.
In this civil rights action filed pursuant to 42 U.S.C. § 1983, plaintiff Blake Barber
contends that defendants Detective Anthony Meirose, Officer Dalton Santana, Officer
Matthew Hower, and Lieutenant Timothy Doyle violated his constitutional rights when
they used exeessive force against him during a lawful arrest. This matter is before the
Court on defendants' Motion for Summary Judgment. The motion should be granted.
1. Background
Blake Barber and Nicole Noteboom have been in an on-and-off relationship for
almost twenty years. Throughout that time, Noteboom obtained various protection orders
against Barber, and Barber violated each one. On April 30, 2018, despite Noteboom's
then-active protection order against Barber, Barber was living with Noteboom and their
three children in her home, apparently with permission. After the couple got into an
argument about Barber's infidelity, Noteboom told Barber he was no longer welcome in
the home and Barber left. Believing that Noteboom had cooled off. Barber returned two
days later to collect some of his clothes and see his children.^ But Noteboom had not
^ There are numerous instances where Barber contradicted his own affidavit during his
deposition. When Noteboom's mother called law enforcement on behalf of Noteboom,
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cooled off. She sent an SOS message from her cell phone that notified her mother,
Sharyn Zebroski, that she was in distress, and Zebroski called law enforeement to the
home.
Detective Meirose, Lieutenant Doyle, Officer Santana, and Officer Hower
responded to the eall and arrived around fifteen or twenty minutes after Barber's return
with the understanding that Barber was present in violation of a domestic abuse
protection order. This might seem to be a case where more officers than normal were
sent. However, it is common knowledge that, other than perhaps an armed robbery in
progress, offieers responding to cases of domestie violenee are often at great risk. The
officers knoeked on the door and, with the hope that the officers would go away, neither
Noteboom nor Barber answered. After receiving no response at the door. Officer Hower
ealled Zebroski baek to gather more details on the SOS. S^ Doc. 35-1 at 4-5, Hower
Police Report. Zebroski stated that Noteboom previously said if she sent an SOS, it was
"the real deal." Id The SOS included Noteboom's loeation at the time it was sent and
showed that she was at home. Id After reeeiving the SOS,Zebroski called Noteboom
several times and sent several messages before Noteboom eventually answered. Id
Based on that call, Zebroski told Officer Hower that she believed Noteboom could not
speak freely on the phone because Barber was in the home and preventing her from doing
so. Id
In the meantime. Barber put the children upstairs because he knew that he was
about to be arrested and did not want his children to see it happen. Noteboom and Barber
then went into a downstairs bathroom to await the offieers' entry. Barber began
she told the officers that Barber recently was using methamphetamine. Doe. 35-1 at
4-5, Hower Poliee Report. In Barber's affidavit, he stated that contrary to inferences and
statements of others, he was not high and had not smoked methamphetamine before
returning to Noteboom's home. Doc. 31 13. But during his deposition, he stated that
he was high on methamphetamine at the time he returned to the home. Doc. 51-1 at 44.
In Barber's second Objections and Responses to Defendant's Additional Statements of
Undisputed Faet Based on Plaintiffs Testimony, he concedes that he was high on
methamphetamine when he returned to the home. Doc. 62 ^ 83.
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questioning Noteboom about who called law enforcement while Noteboom again
questioned Barber about his infidelity. Eventually, the officers broke down the door and
entered with their guns drawn. After finding Barber and Noteboom in the downstairs
bathroom, they ordered Barber to come upstairs. Barber walked out ofthe bathroom and
told the officers, "[S]hut the f— up and I'll come up when I'm ready." Barber did not
like being yelled at or having guns drawn on him, and fiirther told the officers,"[I]f
you're going to pull your trigger, pull your f—ing trigger, you p After refusing
the officers' commands to come upstairs. Barber went back into the downstairs bathroom,
out of sight ofthe officers, to continue conversing with Noteboom. The two spoke about
Barber's surrender, and shortly thereafter Noteboom walked up the stairs to the officers
closely followed by Barber.
When Noteboom passed Detective Meirose on the staircase and walked safely to
the other officers. Detective Meirose brought Barber to the ground on the staircase.
Detective Meirose claims that he grabbed Barber's shoulder and pressured his back until
Barber was on the ground. Barber claims that Detective Meirose picked him up by the
back of his pants and belt and "body slammed" Barber face down onto the staircase
before putting his knees into Barber's back. Detective Meirose stated that Barber tucked
his right arm beneath him to prevent being handcuffed. According to Barber, he gave up,
laid down, and was not actively resisting arrest by hiding his right arm. Barber testified,
"They had my arms jacked up. They had their knees all over me. They had -they were
hurting me," and,"They bombed their knees on me." Detective Meirose and Lieutenant
Doyle handcuffed Barber and Officer Santana took him to a patrol car.
^ There is an inconsistency regarding what Barber said to the officers. In his affidavit.
Barber stated that "out offrustration [he] shouted up the stairs he would be there in a
minute and if he didn't like that he could 'just shoot me.'" During Barber's deposition, in
response to the question,"You told them just shoot me, right?", he responded,"I said,
shut thef— up or pull your trigger. I'll come up when I'm ready. I didn't tell him to
shoot me. I told him to shut his f—ing mouth because he was yelling at me." Detective
Meirose reported Barber shouting "just shoot me," and Lieutenant Doyle reported the
statement "you're going to have to shoot me."
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Barber concedes that he was in violation of a valid domestic abuse protection
order that Noteboom obtained against him based on allegations of domestic violence and
does not dispute the validity ofthe arrest. In Noteboom's January 16, 2018, protection
order petition affidavit, she alleged Barber was using methamphetamine every day and
she could not stop him from breaking into her home. State of South Dakota, Petition
and Affidavit for a Protection Order, 51TP018-000057. She stated that Barber had lost
control of himself and physically hit her many times and that he was angry and
unpredictable while using methamphetamine. Ifr She stated further that Barber's hope
oftalking to her to resolve their issues always led to him hitting her, and that Barber was
also threatening suicide. Id
II. Standards of Review
Summary judgment is proper where there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P.
56; Bedford v. Doe. 880 F.3d 993, 996 (8th Cir. 2018). The United States Supreme Court
has held that:
[T]he plain language of Rule 56(e) mandates the entry ofsummary
judgment. . . against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial. In such a situation,
there can be no genuine issue as to any material fact, since a complete
failure of proof concerning an essential element ofthe nonmoving party's
case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett. 477 U.S. 317, 322-23(1986)(internal quotations omitted).
"As to materiality, the substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome ofthe suit under the governing law will
properly preclude the entry ofsummary judgment. Factual disputes that are irrelevant or
uimecessary will not be counted." Anderson v. Liberty Lobbv. Inc.. 477 U.S. 242, 248
(1986). That is, to make summary judgment inappropriate, there must be a factual
dispute concerning facts the existence or nonexistence of which '"must be outcome
determinative under prevailing law.'" Walls v. Petrohawk Props.. LP, 812 F.3d 621, 625
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(8th Cir. 2015)(quoting Grey v. City of Oak Grove, 396 F.3d 1031, 1034(8th Cir.
2005)).
Thus, in accordance with Rule 56(c), the party seeking summary judgment must
first identify grounds demonstrating the absence of a genuine issue of material
fact. Celotex Corp., 477 U.S. at 323. Upon such a showing, the burden shifts to the non-
movant to present affirmative evidence, beyond the pleadings, showing that a genuine
issue of material fact exists. Anderson, 477 U.S. at 256-57. To meet its burden, the non-
movant "must do more than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Rather, the nonmovant must be able to "show there is sufficient evidence to
support a jury verdiet in their [sic] favor." Naf1 Bank of Com, v. Dow Chem. Co., 165
F.3d 602,607(8th Cir. 1999). After this exercise,"we view the facts and the inferences
to be drawn from them in the light most favorable to the nonmoving party." Northport
Health Servs. of Arkansas, LLC v. Posev, 930 F.3d 1027, 1030(8th Cir. 2019). "To
show a genuine dispute of material fact, a party must provide more than conjecture and
speculation." Zaved v. Associated Bank, N.A., 913 F.3d 709, 720(8th Cir. 2019).
III. Analysis
Barber asserts a § 1983 claim against the officers in their individual and official
capacities for using excessive force during his arrest.^ The officers argue that their
actions were objectively reasonable and that they are entitled to qualified immunity. The
officers also argue that Barber has failed to allege any facts to support a claim against the
officers in their official capacity. The Court agrees.
a. The Officers in Their Individual Capacities
"Section 1983 'is not itself a source of substantive rights,' but merely provides 'a
method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S.
266, 271 (1994) Cquoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). The
^ In Barber's First Amendment Complaint, he discusses the Court's supplemental
jurisdiction over a state-law claim under SDCL § 20-9-1. He never elaborates on that
claim or makes a prayer for relief pursuant to South Dakota law.
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plaintiff must first "identify the specific constitutional right allegedly infringed." Id.
(quoting Graham v. Connor,490 U.S. 386, 394 (1989)). Barber alleges a use of
excessive force in apparent violation of both his Fourth Amendment rights and his
Fourteenth Amendment rights. See First Amended Complaint, Doc. 43., 22-23, 31.
But "the Fourteenth Amendment does not apply to excessive force claims involving
arrests, which are appropriately reviewed under the Fourth Amendment." Jackson v.
Stair. 944 F.3d 704, 709(8th Cir. 2019)(citing Graham. 490 U.S at 394-95 (1989)).
Because Barber's excessive force allegation arises from his arrest, it should be analyzed
under the Fourth Amendment.
To show a violation of the Fourth Amendment in a § 1983 action, a plaintiff"must
demonstrate a seizure occurred and the seizure was unreasonable.'"^ Cravener v. Shuster.
885 F.3d 1135, 1138 (8th Cir. 2018)(quoting McCov v. Citv of Montieello. 342 F.3d
842, 846(8th Cir. 2003). "The 'reasonableness' of a particular use of force must be
judged hom the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight." Id at 1138 (quoting Graham. 490 U.S. at 396). Factors
relevant to the inquiry include "the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety ofthe officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight." Pollreis v. Marzolf. 9
F.4th 737, 747(8th Cir. 2021)(quoting Graham. 490 U.S. at 396).
"Use of excessive force is an area ofthe law in which the result depends very
much on the facts of each case, and thus police officers are entitled to qualified immunity
unless existing precedent squarely governs the specific facts at issue." Kelsav v. Ernst.
933 F.3d 975, 980(8th Cir. 2019)(quoting Kisela v. Hughes. 138 S. Ct. 1148, 1153
(2018)(per curiam)(internal quotation marks omitted)). "Qualified immunity is a shield
from civil liability for officers whose conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known." Just
V. Citv of St. Louis. 7 F.4th 761, 766(8th Cir. 2021)(internal quotations omitted)
Here, there is no dispute over whether there was a seizure.
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(citations omitted). The test for qualified immunity has two parts:(1)"whether the faets,
viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a
constitutional or statutory right; and (2) whether the right was clearly established at the
time ofthe deprivation." Ehlers v. City of Rapid Citv. 846 F,3d 1002, 1008 (8th Cir.
2016)(quoting Jones v. McNeese. 675 F.3d 1158, 1161 (8th Cir. 2012). "The court may
consider these steps in any order, but'[u]nless the answer to both ofthese questions is
yes, the defendants are entitled to qualified immunity.'" Torres v. Citv of St. Louis, 39
F.4th 494, 502-03 (8th Cir. 2022)(quoting Ehlers. 846 F.3d at 1008). "In order to be
clearly established,'[t]he contours ofthe right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.'" Id at 505 (quoting
Ehlers, 846 F.3d at 1008)(alteration in original)(citation omitted).
Because "[a]n officer may be held liable only for his or her own use of excessive
force," courts must assess each officer's actions separately. MeRevnolds v. Schmidli,4
F.4th 648,655 (8th Cir. 2021)(quoting Smith v. Citv of Minneapolis, 754 F.3d 541,
547-48 (8th Cir. 2014). These cases do not address any obligations on officers to
intervene in aggravated circumstances.
i. Detective Meirose
Barber cannot show that Detective Meirose violated his Fourth Amendment rights
by using an unreasonable amount offoree during his arrest. Detective Meirose subdued
Barber to arrest him for a felony violation of a protection order and domestic assault,
which are serious crimes. At the time of the takedown. Barber was still in close
proximity to Noteboom and was a risk to her safety. During the events preceding the
arrest. Barber made remarks about the officers having to shoot him, which would cause
reasonable officers to fear for their own safety. And although Barber may have not
actively resisted arrest, he passively resisted by refusing to surrender and comply with the
officers' demands. All three Graham factors favor the reasonability of Detective
Meirose's use of force.
Barber posed a threat to Noteboom's safety until Detective Meirose brought him
to the ground on the staircase. In contending that he was not a threat. Barber describes
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the events surrounding his arrest as a "game," suggesting that police officers know that
he does not carry weapons and should know that he is not a threat to anyone. According
to Barber, he was similar to the nonviolent misdemeanant in Small v. McCrvstal who was
tackled from behind without warning. 708 F.3d 997, 1005 (8th Cir. 2013). Of course,
"[f]orce is leastjustified against nonviolent misdemeanants who do not flee or actively
resist arrest and post little or no threat to the security ofthe officers or the public." Id.
(quoting Brown v. Citv of Golden Vallev, 574 F.3d 491,499(8th Cir. 2009)). But here,
officers were at the home responding to a felony protection order violation and a possible
domestic assault—a crime endangering another. Because he closely followed her up the
stairs. Barber was a threat to Noteboom until they were separated when Detective
Mehose took Barber down. Hosea v. Citv of St. Paul. 867 F.3d 949, 959(8th Cir.
2017)(determining it was reasonable for an officer to tackle a defendant suspected of
domestic violence when he was still in close proximity to the potential victim). Applying
the first two Graham factors to these circumstances show that Detective Meirose's use of
force was reasonable.
Further, Barber's statements to officers about pulling their triggers and having to
shoot him would put reasonable officers in fear for the safety ofthemselves or others.
Barber argues these statements are immaterial and out of context. In his view,the scene
in the home showed "a calm non-threatening situation wherein an unarmed man is
surrendering himselfto the officers." Yet the officers were responding to a possible
domestic assault involving a habitual protection order violator they believed to be high on
methamphetamine. Even accepting Barber's statement that he was never violent and
never resisted arrest as true, Noteboom stated in the protection order petition that Barber
had discussed suicide. Detective Meirose reviewed the protection order when responding
to the home and was already familiar with Barber. That understanding ofBarber's
mental state combined with the statements about the officers shooting him would cause
any officer apprehension, even if Barber did not say "just shoot me." Indeed, Detective
Meirose testified that after Barber remarked about the officers shooting him,"I don't
know what his intentions are, if his intentions are suicide by cop or to have this turn into
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some kind of possibly hostage rescue scenario at this point." Detective Meirose stated
further,"[B]y his statement he's willing to say that, number one, he's not going to go
kindly; number two, he is going to place me in a position that I have to act in order to
save my life, the life of the officers, or the life ofthe innocents on scene." In response.
Detective Meirose used a reasonable amount offorce to take the aggressor into custody
as soon as it was possible. While it"may appear, in the calm aftermath, that an officer
could have taken a different course,... we do not hold the police to such a demanding
standard." Estate of Morgan v. Cook,686 F.3d 494, 497 (8th Cir. 2012)(quoting
Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir. 1996). Barber's statements would have
put a reasonable officer in fear for his safety, further highlighting the second Graham
factor as favoring Detective Meirose's use of force.
Barber argues that he has never run or attempted to escape and has always
peacefully submitted to officers arresting him for protection order violations, and for that
reason, any use offorce was excessive. But "[t]he issue of reasonableness 'must be
examined from the perspective ofthe facts known to the officer at the time ofthe
incident.'" Molina-Gomes v. Welinski, 676 F.3d 1149, 1152(8th Cir. 2012)(quoting
Nelson v. Cntv. of Wright 162 F.3d 986, 990(8th Cir. 1998)). Detective Meirose knew
that Barber had a propensity for running from the police. Indeed, Detective Meirose
testified that the officers deliberately avoided using their radios to avoid tipping Barber
off because Barber was known to listen to police scanners. Detective Meirose parked
away from the home and jumped a fence to enter the backyard in order to ensure Barber
could not escape and other officers surrounded the home. He then took Barber down to
prevent an attempted escape that could have endangered the other officers and
Noteboom.^ Barber argues further that Detective Meirose's only stated objective for the
^ Barber testified,"Iff know - ifI know they're coming and I can run and get away,then
I run and get away. And that's what they're pissed off about. Because when I do -there
has [sie] been instances in the past where they couldn't chase me down or I knew they
were coming and I got out before they got there and they couldn't find me nowhere
[sic]." Again, officers responded to the home to make a valid arrest, not play a game of
hide and seek.
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takedown was to prevent Barber from fleeing and that it was unreasonable given the
eircumstances for Detective Meirose to believe that Barber was going to attempt to
escape after walking up the stairs. Even ifthat were true, the reasonableness of a use of
force is evaluated objectively,"without regard to [an officer's] subjective intent or
motivation." Williams v. City ofBurlington, 27 F.4th 1346 (8th Cir. 2022)(quoting
Loch V. City ofLitchfield, 689 F.3d 961, 965 (8th Cir. 2012). As already stated, there are
several other reasons that an objective officer would have used force to arrest Barber.
Despite Barber's after-the-fact assertions of his intent to submit to arrest. Detective
Meirose was faced with a known offender suspected of domestic assault and acted
accordingly. Officers must act reasonably, not read minds.
Even if Barber did not actively resist. Barber passively resisted commands to
surrender and Detective Meirose used a reasonable amount of force to effectuate Barber's
arrest. Barber's noneompliance began when he refused to answer the door when the
officers knocked and continued when he told the officers he would surrender when he
was ready. Of course. Barber's disrespectful words directed at the officers alone do not
permit the use offorce during his arrest. See Shannon v. Koehler, 616 F.3d 855, 865
("[T]he use of any force by officers simply because a suspect is argumentative,
contentious, or vituperative is not to be condoned."). Despite the undisputed facts.
Barber contends that he "never refiised to surrender" and the "modest brief deviation
from immediate compliance" excuses his behavior. But "[t]he failure to follow police
instruction may constitute passive resistance," Kohorst v. Smith, 968 F.3d 871, 876 (8th
Cir. 2020), and "[wjhen a suspect is passively resistant, somewhat more force may
reasonably be required," Wertish v. Krueger, 433 F.3d 1062, 1066 (8th Cir. 2006).
Refusing to comply with an order to surrender would cause any reasonable officer to use
a heightened amount of force to effectuate an arrest. Barber reiterates that he was
unarmed, but that does not preclude the use of force. See Cravener, 885 F.3d at 1140
("Unarmed, passively resisting subjects can pose a threat necessitating the use oftaser
force."). Based on the circumstances here, the third Graham factor also supports
Detective Meirose's use of force.
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To the extent that Barber contends that Detective Meirose used excessive force
when handcuffing Barber, after the takedown, his argument fails. An officer is permitted
to grab and put an arrestee in handcuffs when effectuating an arrest. Kasiah v.
Crowd Svstems. Inc.. 915 F.3d 1179, 1184 (8th Cir. 2019)(citing Graham. 490 U.S at
396). Here, officers were present to arrest Barber for the violation of a valid protection
order and Barber does not contest the justification for the arrest. Barber states that his
arm was stuck because Detective Meirose and Lieutenant Doyle were on top of him, but a
reasonable officer could believe he was resisting and respond with force to handcuff him.
See Carpenter v. Gage,686 F.3d 644,649(8th Cir. 2012)("Even if Carpenter's motive
was innocent, the deputies on the scene reasonably could have interpreted Carpenter's
actions as resistance . . . ."); Bhlers. 846 F.3d at 1011 ("[OJfficers at the scene reasonably
could have interpreted Ehler's behavior of continuing to lay on his hands and refusing to
comply with instructions as resistance and [used a taser]."). Even if Barber's arm was
pinned beneath him and he was not purposefully resisting,"[hjandcuffmg inevitably
involves some use of force." Wertish, 433 F.3d at 1067.
If Detective Meirose did use excessive force, he did not violate any clearly
established Fourth Amendment right. Barber cites various cases to support his argument,
but none ofthem clearly establish that Detective Meirose's takedown constituted
excessive force. As previously stated, it is clearly established that force is least justified
against nonviolent misdemeanants who do not flee, resist arrest, or pose a danger to
officers or the public. Karels v. Storz, 906 F.3d 740,747(8th Cir. 2018); Rokusek v.
Jansen, 899 F.3d 544(8th Cir. 2018); Tatum v. Robinson, 858 F.3d 544, 548 (8th Cir.
2017); Small, 708 F.3d at 1005; Shekleton v. Eichenberger, 677 F.3d 361, 367(8th Cir.
2012); Montova v. Citv ofFlandreau, 669 F.3d 867, 873 (8th Cir. 2012); Johnson v.
Carroll, 658 F.3d 819, 827(8th Cir. 2011); Brown. 574 F.3d at 499. Here, Barber was
suspected of domestic assault, which is a violent felony. Also as previously recognized,
it is clearly established that force is not appropriate on the sole basis that a suspect is rude
to or argumentative with an arresting officer. Bauer v. Norris, 713 F.2d 408,412
(8th Cir. 1983); Shannon,616 F.3d at 865. Detective Meirose arrested Barber for a
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felony violation of a protective order and suspected domestic assault, not because of
Barber's rude remarks.
Hosea v. Citv of St. Paul suggests that Detective Meirose's takedown was not a
clearly established excessive use of force. In Hosea. officers responded to a 911 hang-up
and, believing that there was a domestic dispute taking place, walked into the home. 867
F.3d at 953. The officers did not announce their entry and ordered the suspect to get on
the ground. Id The suspect did not immediately comply because he did not recognize
the officers as the police. Id When the suspect began lowering himselfto the ground,
one ofthe officers "tackled" the suspect or "jumped on [his] back," injuring his right
hand. Id The court found that the officers force was not excessive because a reasonable
officer could have concluded the defendant committed or was committing domestic
assault, which is a crime threatening the safety of another. Id at 957. Although the
defendant was in the process of getting on the ground, the force was not unreasonable
because he was not fiilly on the ground and was still near the suspected victim. Id at
958. Even ifthe officers mistakenly believed the defendant was resisting arrest after he
began lowering himself to the ground, a reasonable officer could have concluded that he
was still a threat to the victim's safety. Id at 959. Here, the factual scenario is similar
enough to Hosea such that a reasonable officer would believe that taking Barber to the
ground in the manner that he alleges would be a reasonable use offorce.
Based on the Graham factors, there is no genuine issue of material fact regarding
the reasonableness of Detective Meirose's use offorce to arrest Barber. Even if he did
use excessive force. Detective Meirose is entitled to qualified immunity because the law
was not clearly established at the time ofthe violation. Summary Judgment on Barber's
claim against Detective Meirose should be granted.
ii. Lieutenant Doyle, Officer Santana, and Officer Hower
Lieutenant Doyle did not use excessive force during Barber's arrest and cannot be
held liable for Detective Meirose's actions, even if Detective Meirose did use excessive
force. Barber seemingly concedes that Lieutenant Doyle was not involved in the
takedown, and his involvement in the arrest was limited to handcuffing Barber once he
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was already on the ground. For the same reasons stated above in relation to Detective
Meirose, the force Lieutenant Doyle used to help handcuff Barber was reasonable.
Additionally, while it is true that the Eighth Circuit recognizes an officer can be
held liable for failing to intervene to stop another officer jfrom using excessive force, see
Nance v. Sammis, 586 F.3d 604, 612(8th Cir. 2009), and for conspiring to use excessive
force, see Askew v. Millerd, 191 F.3d 953, 957(8th Cir. 1999), both ofthose claims must
be pleaded in the plaintiffs complaint,s^ Johnson v. Carroll. 658 F.3d 819, 828 n.2(8th
Cir. 2011). Barber did not allege a failure-to-intervene or a conspiracy claim against
Lieutenant Doyle, and he cannot be held liable on that basis even if Detective Meirose
did use excessive force.
Officer Santana and Officer Hower did not use excessive force during Barber's
arrest and cannot be held liable for Detective Meirose's or Lieutenant Doyle's actions,
even if one or both such officers did use excessive force. Barber has alleged no facts to
suggest that Officer Santana or Officer Hower used excessive force at any time during the
arrest. According to Officer Santana, his only interaction with Barber was walking
Barber to the patrol car after he was handcuffed and then transporting him to the county
jail. Officer Rower's on scene activities appear to be limited to communicating with
Noteboom's mother over the phone before the officers entered the home and handling a
Police K9. Barber similarly did not allege a failure-to-intervene or a conspiracy claim
against Officer Santana and Officer Hower, and they cannot be held liable for Detective
Meirose or Lieutenant Doyle's actions.
Accordingly, Summary Judgment on Barber's claims against Lieutenant Doyle,
Officer Santana, and Officer Hower should be granted because Barber failed to show that
any ofthese three officers used excessive force during his arrest or thereafter,
b. The Officers in Their Official Capacities
An official capacity claim against an individual is actually a claim "against the
governmental entity itself." White v. Jackson. 865 F.3d 1064, 1075 (8th Cir. 2017). "A
plaintiff who sues public employees in their official, rather than individual, capacities
sues only the public employer and therefore must establish the municipality's liability for
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the alleged conduct." Kelly v. City of Omaha, 813 F.3d 1070, 1075 (8th Cir. 2016).
Municipal liability under § 1983 for a constitutional yiolation may only attach if the
yiolation "resulted from (1) an official municipal policy,(2)an unofficial custom, or(3) a
deliberately indifferent failure to train or superyise." Mick y. Raines, 833 F.3d 1075,
1079 (8th Cir. 2018)(quoting Corwin y. City ofIndependence. 829 F.3d 695,699 (8th
Cir. 2016)).
Barber has failed to show that his constitutional rights were yiolated as a result of
any official municipal policy. A policy is "an official policy, a deliberate choice of a
guiding principle or procedure made by the municipal official who has final authority
regarding such matters." Corwin, 829 F.3d at 700. Barber does not plead any facts that
suggest the Rapid City Police Department's use of force policy is unconstitutional on its
face or that the "inadequacies ofthe policy were a product of deliberate or conscious
choice by policymakers" such that the policy constitutes deliberate indifference to
constitutional rights. Szabla y. City of Brooklyn Park,486 F.3d 385, 390(8th Cir.
2007)(en bane).
Barber has also failed to show that his constitutional rights were yiolated as a
result of a custom. A plaintiff can establish municipal liability through an unofficial
custom by showing "(1)the existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the goyernmental entity's employees;(2) deliberate
indifference to or tacit authorization of such conduct by the goyernmental entity's
polieymaking officials after notice to the officials ofthat misconduct; and (3)that
plaintiff was injured by acts pursuant to the goyemmental entity's custom, i.e., that the
custom was a moying force behind the constitutional yiolation." Corwin, 829 F.3d at 700
(quoting Snider y. City of Cape Girardeau, 752 F.3d 1149, 1160(8th Cir. 2014)). Barber
has alleged no facts sufficient to meet this test.
Finally, Barber has failed to show that his constitutional rights were yiolated as a
result of a deliberately indifferent failure to train or supervise. A municipality can be
held liable for failure to train or superyise employees when:(1)the city's hiring and
training practices are inadequate;(2)the city was deliberately indifferent to the rights of
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others in adopting them, such that the failure to train reflects a deliberate or conscious
choice; and(3)an alleged deficiency in the city's hiring or training procedures actually
caused the plaintiffs injury. Parrish v. Ball, 594 F.3d 993,997 (8th Cir. 2010)(quoting
Andrews v. Fowler,98 F.3d 1069, 1075 (8th Cir. 1996)). Barber provides no evidence
sufficient to meet this test.
Accordingly, Summary Judgment on Barber's claims against the officers in their
official capacities should be granted because he has failed to show that his injury resulted
from an official policy, custom, or deliberately indifferent failure to train.
Now,therefore,
IT IS ORDERED, as follows:
1) Summary judgment is granted against plaintiff as to claims against Anthony
Meirose in his individual and official capacity, there being no genuine issues of
any material fact.
2) Summary judgment is granted against plaintiff as to claims against Dalton
Santana, Matthew Hower, and Timothy Doyle in their individual and official
capacities, there being no genuine issues of material fact.
3) Costs shall be taxed hy the clerk against plaintiff.
DATED this^'^^T^^'^v of September, 2022.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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