Charles McManemy v. Bruce Tierney

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 18-3519

___________________________

Charles McManemy

Plaintiff - Appellant

v.

Bruce Tierney; Kiley Winterberg; Curt Lubben; Jennifer Degroote; Karson Roose;

Dewayne Viet; John/Jane Doe(s), in each individual’s capacity as a law

enforcement officer/jailer/dispatcher for the Butler County Sheriff’s Office;

Jennifer Becker, in her individual capacity as a nurse for Butler County, Iowa; Kirk

Dolleslager, in his individual capacity as a law enforcement officer for the Grundy

County Sheriff’s Office; Sheriff Jason Johnson, in his individual capacity; Sheriff

Rick Penning; Butler County; Grundy County

Defendants - Appellees

___________________________

No. 18-3520

___________________________

Charles McManemy

Plaintiff - Appellee

v.

Bruce Tierney; Kiley Winterberg; Curt Lubben

Defendants - Appellants

Jennifer Degroote; Karson Roose; Dewayne Viet

Defendants

John/Jane Doe(s), in each individual’s capacity as a law enforcement

officer/jailer/dispatcher for the Butler County Sheriff’s Office

Defendant - Appellant

Jennifer Becker, in her individual capacity as a nurse for Butler County, Iowa; Kirk

Dolleslager, in his individual capacity as a law enforcement officer for the Grundy

County Sheriff’s Office

Defendants

Sheriff Jason Johnson, in his individual capacity

Defendant - Appellant

Sheriff Rick Penning

Defendant

Butler County

Defendant - Appellant

Grundy County

Defendant

___________________________

No. 18-3554

___________________________

Charles McManemy

Plaintiff - Appellee

v.

Bruce Tierney; Kiley Winterberg; Curt Lubben; Jennifer Degroote; Karson Roose;

Dewayne Viet; John/Jane Doe(s), in each individual’s capacity as a law

-2-

enforcement officer/jailer/dispatcher for the Butler County Sheriff’s Office;

Jennifer Becker, in her individual capacity as a nurse for Butler County, Iowa

Defendants

Kirk Dolleslager, in his individual capacity as a law enforcement officer for the

Grundy County Sheriff’s Office

Defendant - Appellant

Sheriff Jason Johnson, in his individual capacity

Defendant

Sheriff Rick Penning

Defendant - Appellant

Butler County

Defendant

Grundy County

Defendant - Appellant

____________

Appeals from United States District Court

for the Northern District of Iowa - Ft. Dodge

____________

Submitted: January 15, 2020

Filed: August 17, 2020

____________

Before BENTON, GRASZ, and STRAS, Circuit Judges.

____________

-3-

STRAS, Circuit Judge.

Charles McManemy believes that deputies used excessive force against him

after he led them on a high-speed chase. Although he suffered physical injuries

during the ensuing arrest, the district court1 granted summary judgment to the

deputies based on qualified immunity. We affirm.

I.

The deputies believed that McManemy was on his way to making a drug

delivery. Hoping that they would have the chance to stop him, they seized the

opportunity when he ran a stop sign. Even flashing lights and a siren, however, did

not stop McManemy. For the next 10 minutes, he led them on a high-speed chase

through rural highways, gravel roads, and a private farm.

With their other options exhausted, the deputies finally rammed

McManemy’s vehicle. McManemy eventually emerged from the disabled vehicle

after trying to make a call and lighting a cigarette. When he did, he laid face down

on the road with his arms and legs spread.

Still, the deputies had difficulty arresting him. Although the parties dispute

how much he resisted and why, the dash-cam video shows his legs flailing, and he

admits to having failed to comply with orders to “[q]uit resisting” and to “knock it

off.” See Oral Arg. at 1:44–1:50 (conceding that the dash-cam video “clearly”

shows that he was resisting “up until a point”). In the end, subduing McManemy

took two interlocked sets of handcuffs and six deputies.

This case is all about what happened during the scuffle. McManemy claims

that one deputy tased him up to five times and that another used a knee to

1

The Honorable Leonard T. Strand, Chief Judge, United States District Court

for the Northern District of Iowa.

-4-

repeatedly bash him in the head. The blows to the head allegedly caused damage

to his eye, first bruising and later problems with light sensitivity and “floaters.”

McManemy brought excessive-force claims under 42 U.S.C. § 1983 against

the deputies and other government defendants. Also included are claims against

the other deputies on the scene, who allegedly failed to intervene and protect him.

These basic theories are mirrored in several Iowa state-law claims, too.

Neither side is satisfied with how the district court decided the case. On one

hand, McManemy believes that the court should not have granted summary

judgment to the defendants on his federal claims. At the same time, the defendants

are disappointed that the court did not exercise supplemental jurisdiction over

McManemy’s state-law claims. Both appeal the parts of the ruling that they lost.

II.

We review the district court’s decision to grant summary judgment de novo.

Morgan v. Robinson, 920 F.3d 521, 523 (8th Cir. 2019) (en banc). “Summary

judgment [was] appropriate [if] the evidence, viewed in [the] light most favorable

to [McManemy], shows no genuine issue of material fact exists and the

[defendants were] entitled to judgment as a matter of law.” Phillips v. Mathews,

547 F.3d 905, 909 (8th Cir. 2008) (citation omitted).

For McManemy’s federal claims, it all comes down to whether the deputies

are entitled to qualified immunity, which depends on the answer to two questions.

First, did they violate a constitutional right? Second, was the right clearly

established? See Morgan, 920 F.3d at 523. If the answer to either question is

“no,” we will affirm. See id. (making clear that we may answer the questions in

either order).

-5-

A.

The first allegedly unconstitutional act was the use of a taser against

McManemy. See Jackson v. Stair, 944 F.3d 704, 710 (8th Cir. 2019). In addition

to suing Deputy Kirk Dolleslager, who used the taser, McManemy alleges that a

nearby officer, Deputy Curt Lubben, violated clearly established law by failing to

intervene on his behalf. Hicks v. Norwood, 640 F.3d 839, 843 (8th Cir. 2011)

(discussing the duty to intervene). Both claims depend on whether using the taser

was objectively reasonable under the circumstances. See Graham v. Connor, 490

U.S. 386, 396–97 (1989); Hicks, 640 F.3d at 843.

1.

As in many qualified-immunity cases, the parties have “two different

stories” about what happened. Scott v. Harris, 550 U.S. 372, 378, 380 (2007).

McManemy claims that Deputy Dolleslager “sadistically” tased him in drive-stun

mode,2 once before handcuffing him and two-to-four times afterward. Deputy

Dolleslager says that he only tased him twice, once before placing the handcuffs on

his right wrist and once more to get them on his other wrist.

In an appeal from a summary-judgment ruling on qualified immunity, we

typically credit the plaintiff’s version of the facts. See id. at 378. In some cases,

however, the record so “blatantly contradict[s]” the plaintiff’s account that “no

reasonable jury could believe it.” Id. at 380. In those instances, we do not “adopt

th[e plaintiff’s] version of the facts” in evaluating whether the officers were

entitled to summary judgment. Id.

2

Drive-stun mode is the “lowest” setting. In this mode, the taser makes direct

contact with the suspect’s skin, but the charge is not incapacitating. See Cravener v.

Shuster, 885 F.3d 1135, 1137 n.1 (8th Cir. 2018).

-6-

This is one of those cases. Many tasers have logs that record when and how

they are used. The log on Deputy Dolleslager’s device revealed that it had only

been discharged twice—each for three seconds, fifteen seconds apart. McManemy

has never challenged the log’s accuracy, so the record “blatantly contradicts” his

account that he was tased between three and five times. See Oral Arg. at 2:10–2:25

(conceding that the log accurately reflects the number and timing of the taser

bursts).

With the taser having been discharged only twice, McManemy’s admissions

take on central importance. See Tokar v. Armontrout, 97 F.3d 1078, 1081–83 (8th

Cir. 1996) (relying heavily on a plaintiff’s admissions when affirming a qualified-

immunity ruling). The first key admission is that he was not yet handcuffed when

Deputy Dolleslager tased him the first time. Under our precedent, it is reasonable

for an officer to tase an uncuffed suspect who appears to be resisting arrest. See

Ehlers v. City of Rapid City, 846 F.3d 1002, 1011 (8th Cir. 2017); Carpenter v.

Gage, 686 F.3d 644, 650 (8th Cir. 2012).

The second tasing was reasonable too because of McManemy’s other

admission: in the intervening 15 seconds between taser discharges, the deputies

had to get the handcuffs on his other wrist. Construing the remaining disputed

facts in McManemy’s favor, it is possible that Deputy Dolleslager tased him for the

second time just after he was fully handcuffed. Even so, we have already held that

discharging a taser in drive-stun mode under similar circumstances is objectively

reasonable. See Brossart v. Janke, 859 F.3d 616, 626 (8th Cir. 2017); see also

Franklin v. Franklin Cty., 956 F.3d 1060, 1062–63 (8th Cir. 2020) (discussing

cases allowing the use of drive-stun taser bursts on suspects who are already

handcuffed). After all, here it came at the tail end of a “tumultuous” struggle

between McManemy and the deputies. Rudley v. Little Rock Police Dep’t, 935

F.3d 651, 654 (8th Cir. 2019).

-7-

It makes no difference if, as McManemy argues, one of the deputies knew

that he had a preexisting shoulder condition that made it difficult for him to

comply with their commands. See Schoettle v. Jefferson Cty., 788 F.3d 855, 858,

860–61 (8th Cir. 2015). Regardless of whether one or more of them knew about

his injury, the deputies still had to subdue him, even if he had an “innocent” reason

for flailing his legs and refusing to give up one of his arms. Carpenter, 686 F.3d at

650 (explaining that the use of a taser does not become excessive just because an

arrestee has an “innocent” motive for refusing to give up his hands); see also

Schoettle, 788 F.3d at 858, 860–61 (holding that the force used to restrain a

noncompliant arrestee was reasonable even if the officers knew that his

belligerence was caused by a hypoglycemic episode).

2.

This conclusion also resolves the failure-to-intervene claim against Deputy

Lubben. To be sure, “an officer who fails to intervene to prevent the

unconstitutional use of excessive force by another officer may be held liable for

violating the Fourth Amendment.” Hollingsworth v. City of St. Ann, 800 F.3d 985,

991 (8th Cir. 2015) (emphases added and citation omitted). But there is no duty to

prevent the constitutional use of reasonable force. See id. If Deputy Dolleslager

did not violate McManemy’s constitutional rights, then neither did Deputy Lubben.

See Hicks, 640 F.3d at 843.

B.

According to McManemy, the deputies did more than just tase him. One of

them, Deputy Bruce Tierney, used his knee as a weapon and repeatedly hit him in

the head with it. Once again, the claim is excessive force, but this time it fails for a

different reason: the absence of a clearly established right.

-8-

1.

As with McManemy’s other claim, we must first identify the relevant facts.

Again, the stories differ. McManemy says that he suffered severe bruising and

lasting eye damage from being hit in the face with Deputy Tierney’s knee. The

deputies argue, by contrast, that no one’s knee touched McManemy’s head and that

his injuries must have happened some other way. They claim to have proof: a

dash-cam video.

The dash-cam video, however, is equivocal at best. It shows Deputy Tierney

kneeling next to McManemy’s head for about 40 seconds. But for much of that

time, it is impossible to see what he is doing because another officer and a dog

block the view. And even when they do not, the footage is just too grainy to make

out what is happening. In short, the video does not “blatantly contradict[]”

McManemy’s account. Coker v. Ark. State Police, 734 F.3d 838, 841, 843 (8th

Cir. 2013) (citation omitted) (reaching a similar conclusion when faced with an

inconclusive dash-cam video).

Construing the facts in McManemy’s favor, Deputy Tierney still did not

violate a clearly established right. McManemy does not suggest that this is the

“rare[,] obvious case,” in which the violation is so clear that it is unnecessary to

identify an “existing precedent.” District of Columbia v. Wesby, 138 S. Ct. 577,

590 (2018) (internal quotation marks and citation omitted). So to prevail on this

claim, McManemy must point to a case that “squarely governs the specific facts at

issue.” Kelsay v. Ernst, 933 F.3d 975, 980 (8th Cir. 2019) (en banc) (quoting

Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam)). He believes there

are two: Gill v. Maciejewski, 546 F.3d 557 (8th Cir. 2008), and Krout v. Goemmer,

583 F.3d 557 (8th Cir. 2009). Neither, however, “squarely governs” this case.

The first, Gill, is the closer of the pair. There too, an officer slammed his

knee into an arrestee’s head. 546 F.3d at 561. The arrestee, who was lying on the

-9-

ground at the time, suffered five facial-bone fractures, a concussion, and a brain

bleed after the officer performed a standing knee-drop maneuver on him. Id. We

upheld the jury’s finding that this level of force was unreasonable under the

circumstances. Id. at 562.

For two reasons, however, Gill is still not close enough. First, Gill offered

“no resistance,” whereas McManemy led deputies on a 10-minute, high-speed

chase and, by his own admission, put up some resistance once he was captured. Id.

at 561–62; see Kelsay, 933 F.3d at 980 (distinguishing between fully compliant

and non-compliant arrestees); see also Kisela, 138 S. Ct. at 1152 (discussing

flight). Second, the level of force was different. By jumping on Gill from a

standing position, the officer used near-deadly force and caused life-threatening

injuries. Gill, 546 F.3d at 561. Although what happened here was violent, it is not

in the same league as the knee-drop maneuver from Gill. See Mann v. Yarnell, 497

F.3d 822, 826 (8th Cir. 2007) (explaining that we consider the injuries suffered

when evaluating the level of force).

The second, Krout, is not even close. It involved extreme levels of

“gratuitous” force against a “fully[-]subdued,” non-resisting arrestee who

eventually died. 583 F.3d at 563, 566. An officer “hip toss[ed]” him to the

ground, and then, together with other officers, beat him. Id. at 561. The use of

force in this case, by contrast, falls well short of Krout. And perhaps most

importantly, McManemy admits that he suffered his injuries during a struggle to

handcuff him, not when he was “fully subdued.” Id. at 566; see Kelsay, 933 F.3d

at 980 (drawing a similar distinction).

2.

This analysis extends to the other deputies, too. To hold them liable for their

failure to intervene, McManemy had to establish that they knew “or had reason to

know that excessive force would be or was being used.” Hollingsworth, 800 F.3d

-10-

at 991 (citation omitted). If Deputy Tierney did not violate a clearly established

right, then the other deputies would not have had “fair notice” that he was using

unconstitutionally excessive force against McManemy either. Id.

III.

One loose end remains. The district court declined to exercise supplemental

jurisdiction over McManemy’s Iowa state-law claims after it had “dismissed all

[the] claims over which it ha[d] original jurisdiction.” 28 U.S.C. § 1367(c)(3).

The defendants wanted the court to decide those on the merits too, rather than just

dismissing them without prejudice.

We rarely overturn this “purely discretionary” call. Crest Constr. II, Inc. v.

Doe, 660 F.3d 346, 359 (8th Cir. 2011) (citation omitted) (reviewing for an abuse

of discretion). In fact, when a district court has dismissed every federal claim, as

here, “judicial economy, convenience, fairness, and comity” will usually “point

toward declining to exercise jurisdiction over the remaining state-law claims.”

Wilson v. Miller, 821 F.3d 963, 970–71 (8th Cir. 2016) (citation omitted). This

case is no exception. See, e.g., Zubrod v. Hoch, 907 F.3d 568, 572–73, 580–81

(8th Cir. 2018) (affirming in a similar case).

IV.

We accordingly affirm the judgment of the district court.

GRASZ, Circuit Judge, concurring in part and dissenting in part.

“It [is] clearly established . . . that when a person is subdued and restrained

with handcuffs, a ‘gratuitous and completely unnecessary act of violence’ is

unreasonable and violates the Fourth Amendment.” Blazek v. City of Iowa City,

761 F.3d 920, 925 (8th Cir. 2014) (quoting Henderson v. Munn, 439 F.3d 497, 503

-11-

(8th Cir. 2006)). Viewed in a light most favorable to McManemy, the facts

establish Deputy Tierney repeatedly — twenty to thirty times — kneed

McManemy in the eye area after he was subdued and restrained. Therefore, I do

not believe Tierney is entitled to qualified immunity for this gratuitous use of force

and I dissent from Section II.B. of the court’s opinion.

When defining the context surrounding the challenged use of force for

purposes of either prong of the qualified immunity analysis, we are required to

grant inferences in favor of the non-moving party. See Tolan v. Cotton, 572 U.S.

650, 656–57 (2014). Failure to do so results in the impermissible invasion into the

province of the fact-finder by weighing the evidence. Id. at 657.

Here, I believe the context surrounding Tierney’s use of force is particularly

important. McManemy led police officers on a long, high-speed chase. This put

both the participants and the public at risk. But ultimately he laid facedown in the

middle of the road with his arms and legs spread, giving himself up for arrest.

According to McManemy, the resulting melee occurred because the officers

incorrectly thought he was resisting arrest when they tried to handcuff him, when

in fact a preexisting shoulder injury and an involuntary response to tasing caused

the appearance of resistence. Regardless of the reason for the struggle, I agree with

the court it was reasonable for the officers to believe otherwise and this justifies

some of the physical force used.

But I do not believe Tierney’s repeated kneeing of McManemy in the eye

was within that justified use of force. The video evidence presented showed

Tierney arrived at the scene after McManemy had laid down and after at least four

officers were already on top of him. Tierney arrived, first kicked or stomped on

McManemy’s leg, and then moved to the left side of McManemy’s head. As the

court explains, the video does not show what Tierney then does for the next minute

or so. But if we are to believe McManemy, Tierney repeatedly — up to twenty or

thirty times — kneed him, resulting in demonstrable injury to the eye.

-12-

The court distinguished what happened to McManemy from cases like Gill

v. Maciejewski, 546 F.3d 557 (8th Cir. 2008), and Krout v. Goemmer, 583 F.3d 557

(8th Cir. 2009), by noting that the plaintiffs in those cases were subdued and

offered no resistence. But in light of the above-mentioned evidence and our duty

to draw inferences in McManemy’s favor, a jury could conclude that some of the

strikes from Tierney’s knee occurred after McManemy was handcuffed and after

any reasonable belief in resistance would cease. That is, a jury could find that

Tierney struck McManemy’s face when he was subdued and offered no resistence.

If true, such actions were completely unnecessary to effect the arrest. This circuit

has clearly established that gratuitous force after a subdued suspect no longer poses

a threat violates the Fourth Amendment. See Blazek, 761 F.3d at 925 (holding that

jerking a non-resisting suspect from the floor to his bed after he was handcuffed

and posed no threat violated clearly established law); Krout, 583 F.3d at 566 (“It

was clearly established that the use of this type of gratuitous force against a suspect

who is handcuffed, not resisting, and fully subdued is objectively unreasonable

under the Fourth Amendment.”); Gill, 546 F.3d at 562 (explaining an officer used

excessive force where he smashed his knee into a suspect’s head when the suspect

was not resisting and was already pinned down by multiple officers). Thus, I

believe there is sufficient evidence of a clearly established Fourth Amendment

violation and would reverse the district court’s grant of summary judgment in

favor of Tierney.

______________________________

-13-