Jessica Driscoll, Personal Representative of the Estate of Daniel Driscoll, Deceased v. Zakary Douglass; City of Bayard

United States Court of Appeals
For the Eighth Circuit
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No. 13-3248
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Jessica Driscoll, Personal Representative of the Estate of Daniel Driscoll, Deceased
lllllllllllllllllllll Plaintiff - Appellant
v.
Zakary Douglass; City of Bayard
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: May 13, 2014
Filed: July 14, 2014
[Unpublished]
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Before RILEY, Chief Judge, BEAM and SMITH, Circuit Judges.
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PER CURIAM.
This is a tragic case. On August 18, 2009, Daniel Driscoll, a 31-year-old
resident of Bayard, Nebraska, was involved in a public disturbance with Jimmy
Gillette, a neighbor who attacked Driscoll with a shovel in a dispute over a car battery
Driscoll retrieved from Gillette’s truck. Bayard Police Chief Zakary Douglass
responded to multiple emergency calls regarding the disturbance and, when the verbal

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altercation he observed began to escalate, arrested Driscoll and Gillette. Chief
Douglass handcuffed Driscoll behind his back and placed him in the back seat of a
squad car while the chief interviewed witnesses. Minutes later, Chief Douglass
returned to the car and found Driscoll in distress and struggling to breathe. Chief
Douglass, with assistance from Driscoll’s family and friends, pulled Driscoll from the
car, removed the handcuffs, and rendered aid until an ambulance arrived. Despite
these efforts, Driscoll was pronounced dead of a heart attack while en route to the
hospital.
On May 31, 2011, Jessica Driscoll, as personal representative of Driscoll’s
estate, sued Chief Douglass and the City of Bayard under 42 U.S.C. § 1983; the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq.; and the
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., alleging (1) false arrest,
(2) excessive force, (3) failure to train, (4) disability discrimination, and
(5) deprivation of due process. The district court entered summary judgment against1
Jessica on all claims, concluding “[w]ith the benefit of 20/20 hindsight, many things
from both parties’ perspective[s] could have occurred differently” but “that, however
regrettable the events of August 18, 2009, may be, evidence has not been presented
from which a trier of fact could reasonably find any violation of [Driscoll’s] rights
under the Constitution or the relevant statutes.” Jessica appeals dismissal of the first
four claims.
Driscoll’s sad death and the loss his family and friends have suffered evoke
sympathy and a sense of needless sorrow. Still, we must evaluate the legal claims
Jessica has made against Chief Douglass and the city. See Fed. R. Civ. P. 56(a)
(requiring summary judgment if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law”). After careful de novo
The Honorable John M. Gerrard, United States District Judge for the District1
of Nebraska.
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review of the record, the parties’ arguments, and the applicable law, and viewing the
evidence and all reasonable inferences drawn from it in Jessica’s favor, see Clayborn
v. Struebing, 734 F.3d 807, 808 (8th Cir. 2013) (standard of review), we find no basis
to reverse the district court’s thorough and well-reasoned decision.
For the reasons explained by the district court, we affirm. See 8th Cir. R. 47B.
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