Submitted: March 13, 2019
from United States District Court for the District of South
Dakota - Aberdeen
GRUENDER, BENTON, and GRASZ, Circuit Judges.
BENTON, CIRCUIT JUDGE
Fischer sued Deputy Joshua J. Hoven, Sheriff Barry Hillestad,
and Day County under 42 U.S.C. § 1983. The district
court 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.
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.
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.
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.
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.
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.
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.
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 ...