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Fischer v. Hoven

United States Court of Appeals, Eighth Circuit

June 3, 2019

Kathy Fischer Plaintiff- Appellant
v.
Josh Hoven, in his individual capacity; Barry Hillestad, in his individual capacity; Day County, a South Dakota political subdivision, its agents, subsidiaries and employees Defendants - Appellees

          Submitted: March 13, 2019

          Appeal from United States District Court for the District of South Dakota - Aberdeen

          Before GRUENDER, BENTON, and GRASZ, Circuit Judges.

          BENTON, CIRCUIT JUDGE

         Kathy Fischer sued Deputy Joshua J. Hoven, Sheriff Barry Hillestad, and Day County under 42 U.S.C. § 1983. The district court[1] granted qualified immunity to Hoven, and summary judgment to Hillestad and the County. Fischer v. Hoven, 2018 WL 2012908 (D.S.D. Apr. 30, 2018). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         I.

         After sharing almost three bottles of wine, Fischer and her friend, Susan Clynick, went to the Andover Bar. Both were intoxicated. The bar owner had previously told Clynick she was not allowed in the bar. When they arrived, the owner requested she leave. She refused. He called the police to have her removed.

         Arriving, Deputy Hoven asked Clynick to leave. She agreed to accompany him outside. At her request, he went back inside to tell Fischer that Clynick had to leave. Fischer followed Hoven outside where Clynick was waiting. Fischer yelled at Hoven that they had a right to be in the bar, then went back inside to complain to the owner. Due to her intoxication, she does not remember going outside with Hoven, or going back inside. Outside, Clynick and Hoven continued to talk until the owner came out and asked Hoven to remove Fischer from the bar.

         Returning inside, Hoven told Fischer the owner wanted her to leave. She yelled that she would not leave and walked outside to the bar patio. Hoven followed, requesting a second time that she leave. She did not obey. Grabbing her arm, he put her in an "escort" position and walked her outside toward his vehicle. She continued to yell, but did not resist. Fischer recalls talking to Hoven on the patio and asking him why he was "talking so mean to me." She does not remember anything that happened after that.

         Once outside, Fischer and Clynick began walking away from the bar at Hoven's instruction. Fischer then turned around and walked toward Hoven, "flailing" her arms and yelling at him about being removed from the bar. She got close to him and put her left hand on his right shoulder. Grabbing her left arm, Hoven placed her in an escort position against his vehicle and announced she was under arrest for disorderly conduct. She continued to yell at him. Clynick then came toward Hoven. He stepped toward her with his right hand extended into her shoulder. She fell to the ground.

         Hoven had his left hand on Fischer's wrist, with her arm behind her back. He reached for his handcuffs. She turned to her left toward him. He executed an arm-bar takedown, putting his right hand on her tricep above the elbow and below the shoulder. Fischer landed face-first on the ground. She suffered a facial cut, broken nose, broken tooth, and broken bones in her right arm and hand.

         Fischer sued Hoven for excessive force. She also sued Sheriff Hillestad and Day County for failure to train and supervise. The district court granted summary judgment to Hoven, Hillestad, and Day County. Fischer appeals her claim against Hoven for excessive force.[2]

         II.

         This court reviews de novo the grant of summary judgment on the basis of qualified immunity, viewing the record most favorably to the nonmoving party. Moore-Jones v. Quick, 909 F.3d 983, 985 (8th Cir. 2018). Hoven is entitled to qualified immunity unless Fischer can show: (1) that he "violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged ...


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