United States District Court, M.D. Georgia, Columbus Division
GREG DYKSMA, TAMMY DYKSMA, and THE ESTATE OF NICHOLAS DYKSMA, Plaintiffs,
TOMMY PIERSON, JOE HARMON, HEATH DAWSON, WILLIAM STURDEVANT, and MIKE JOLLEY, Defendants.
D. LAND CHIEF U.S. DISTRICT COURT JUDGE
Nicholas Dyksma died after a Harris County sheriff's
deputy, Tommy Pierson, pinned him to the pavement and used
his knee to apply compression to Nicholas's neck, once
for a period of twenty seconds while Nicholas was being
handcuffed and searched, and later for a period of seventeen
seconds after Nicholas was handcuffed, physically
incapacitated, and no longer resisting. Nicholas's
parents brought this action on behalf of themselves and
Nicholas's estate against Pierson for his use of
excessive force and against his fellow deputies, Joe Harmon,
Heath Dawson, and William Sturdevant, for their failure to
intervene to stop the excessive force. They assert claims
against these Defendants in their individual capacities under
42 U.S.C. § 1983 for violation of the Fourth Amendment,
as well as claims under Georgia law. Plaintiffs also assert
§ 1983 supervisory liability claims against Harris
County Sheriff Mike Jolley in his individual capacity.
Defendants seek summary judgment on all of Plaintiffs'
claims. Defendants assert qualified immunity as to the
federal law claims and official immunity under Georgia law as
to the state law claims.
fundamental issue for Plaintiffs' § 1983 Fourth
Amendment excessive force claim against Pierson is whether he
violated clearly established law when he used potentially
deadly force (knee to the neck) after Nicholas was
handcuffed, fully restrained, and physically incapacitated.
As explained in the remainder of this order, the Court finds
that he did. Thus, his summary judgment motion (ECF No. 25)
is denied. The Court further finds, however, that the other
deputies did not violate clearly established law when they
failed to intervene during Pierson's application of this
clearly excessive force. Accordingly, Dawson, Harmon, and
Sturdevant are entitled to qualified immunity as to
Plaintiffs' § 1983 claims, and their summary
judgment motion is granted as to these claims. Finally, as to
Plaintiffs' supervisory liability claim against Sheriff
Jolley, Plaintiffs did not point to sufficient evidence to
create a genuine factual dispute on whether he participated
in or had a policy that caused Pierson's excessive force.
Therefore, he is also entitled to summary judgment.
Court also denies summary judgment as to Plaintiffs'
battery and Georgia constitutional claims against Pierson but
grants summary judgment as to the rest of Plaintiffs'
state law claims. Plaintiffs' motion to amend their
complaint to comport with the facts adduced during discovery
(ECF No. 30) is granted. Pierson, the only Defendant
remaining after today's rulings, shall be permitted to
have his expert on cause of death amend his expert report in
light of the amended complaint, provided that he does so
within twenty-one days of service of the amended complaint.
judgment may be granted only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In determining whether a genuine
dispute of material fact exists to defeat a motion
for summary judgment, the evidence is viewed in the light
most favorable to the party opposing summary judgment,
drawing all justifiable inferences in the opposing
party's favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). A fact is material if it
is relevant or necessary to the outcome of the suit.
Id. at 248. A factual dispute is genuine if
the evidence would allow a reasonable jury to return a
verdict for the nonmoving party. Id.
in the light most favorable to Plaintiffs, the record reveals
the following facts. The present record includes a video
recording of the incident, and in determining whether there
is a genuine fact dispute, the Court must view “the
facts in the light depicted by the video” and may not
adopt a version of the facts that is “utterly
discredited” by the video. Scott v. Harris,
550 U.S. 372, 380-81 (2007).
approximately 1:30 a.m. on August 31, 2015, police officers
and emergency medical personnel responded to the Circle K on
Airport Thruway in Columbus, Georgia to investigate a report
of a person slumped over the wheel of a pickup truck. When
they arrived, they found Nicholas Dyksma in the driver's
seat of the truck. The officers and emergency medical
personnel tried to check on Nicholas, but Nicholas started
the truck and took off. Columbus police officers pursued
Nicholas and saw him run several red lights, drive in an
erratic manner and above the speed limit, veer into the wrong
lane, and ignore the officers' lights and
siren. Because Nicholas was driving on Highway 27
toward Harris County, the Columbus police had the 911
dispatcher notify the Harris County Sheriff's Office that
an unsafe driver failed to stop for police and was heading
into Harris County.
Tommy Pierson, Joe Harmon, Heath Dawson, and William
Sturdevant were on duty as patrol deputies with the Harris
County Sheriff's office. They received a radio
transmission from Harris County 911 that a small gray Toyota
pickup truck was being pursued by Columbus police officers
northbound on Highway 27, coming toward Harris County. The
four deputies went to assist. Pierson saw the truck and
activated his blue lights and siren. Nicholas did not stop,
and he increased his speed. Nicholas swerved into the wrong
lane several times during the pursuit.
continued to pursue Nicholas, followed by Harmon. Sturdevant
informed the other deputies that he would deploy “stop
sticks” to try to stop the gray truck. Nicholas ran
over the stop sticks, and his speed decreased. Pierson got
his patrol car ahead of Nicholas's truck, and he and
Harmon tried to box in Nicholas. Nicholas accelerated to pass
Pierson and struck the side of Pierson's patrol car; then
Pierson forced Nicholas's pickup truck off the road.
Pierson Decl. ¶ 11, ECF No. 25-1; Harmon Decl.
¶¶ 6-7, ECF No. 25-2; see also Pl.'s
Resp. to Defs.' Mot. for Summ. J. Ex. A, Dawson Dash Cam
Video, ECF No. 34-3 (“Dawson Dash
truck came to rest facing north on the southbound shoulder.
Harmon and Pierson stopped their patrol cars and got out.
Harmon approached the driver's door and another deputy
approached the passenger door. Both doors were locked, and
the truck's engine was still running. Harmon commanded
Nicholas to show his hands and get out of the truck. Nicholas
did not get out of the truck. Dawson broke the driver's
window with a baton, then Harmon deployed his Taser on
Nicholas. The truck lurched forward into a ditch. Nicholas
fell over onto the passenger's side of the front seat.
Dawson broke the passenger window and removed Nicholas from
the truck. Around that time, Sturdevant arrived at the scene.
Sturdevant, and Dawson placed Nicholas face down on the
shoulder of the road while Harmon remained on the
driver's side of the truck and disconnected the wires
from his Taser. Nicholas was groaning, and it appeared to the
deputies that he was high on something. Dawson handcuffed
Nicholas and began to search his pockets, and Sturdevant
physically restrained Nicholas's lower body. Nicholas was
breathing heavily. Pierson physically restrained
Nicholas's upper body by placing his right knee on
Nicholas's neck for approximately twenty
seconds. Dawson Dash Cam 2:12:46-2:13:07. Nicholas
initially screamed, then groaned for a few seconds. As
Pierson got up, Nicholas was no longer groaning audibly. By
that point, Nicholas's hands were cuffed behind his back,
and he was no longer struggling or otherwise resisting.
Dawson returned to the driver's side of the truck, and
Harmon went over to where Sturdevant and Pierson were
restraining Nicholas. Pierson moved to Nicholas's other
side, and he and Sturdevant turned Nicholas over to search
his waistband. Nicholas did not struggle or resist. His body
appeared to be limp, and he was clearly incapacitated.
Pierson and Sturdevant placed Nicholas back in a prone
position, and Pierson again placed his knee on Nicholas's
neck, pressing it to the ground for another seventeen
seconds. Id. at 2:13:16-33. Nicholas did not
struggle or resist. He did lift his head when Pierson briefly
relieved the pressure on his neck, but he did not appear to
move otherwise. Harmon observed for the first few seconds and
then returned to Nicholas's truck. Sturdevant resumed
restraining Nicholas's lower body by placing his knee on
Nicholas's buttocks and his hand on Nicholas's back;
then Pierson stood. Sturdevant and Pierson both stated that
Nicholas was making sounds during this time and was not
having trouble breathing. Pierson Decl. ¶ 25; Sturdevant
Decl. ¶¶ 9-10, ECF No. 25-4. Sturdevant kept
his hand on Nicholas's back for several more seconds. A
deputy called for emergency medical personnel.
deputies soon realized that Nicholas had become unresponsive.
Dawson went back to assist Sturdevant and noticed that
Nicholas was unconscious and that his breathing was shallow.
Dawson suggested that Nicholas be turned onto his side. The
deputies turned Nicholas onto his side and said, “Hey
Nicholas! Open your eyes, Nick!” Dawson Dash Cam
2:15:47-53. A deputy asked if Nicholas was still alive, and
the response was, “Carotid's going. Going
quick.” Id. at 2:15:57-2:16:04. The deputies
continued telling Nicholas to wake up. A deputy said,
“Come on, breathe! You got it! Breathe!” Then a
deputy said, “He just took a breath.” A deputy
placed his hand on Nicholas's neck, apparently feeling
for a pulse. Someone said, “Looks like he's got
some kind of arrhythmia going.” Id. at
2:16:58-2:17:15. The deputies asked the emergency medical
personnel to speed up their response. Id. at
a.m., a deputy asked if Nicholas was still breathing.
Id. at 2:20:09-11. Two deputies examined him and
could not find a pulse, and a deputy radioed for an estimated
time of arrival for emergency medical personnel, explaining
that they could not find Nicholas's pulse. Id.
at 2:20:23-42. One deputy asked if they should start doing
compressions and asked another deputy if he could feel a
pulse; both of them stated that they could feel a faint
pulse. Id. at 2:21:03-09. A deputy asked twice if
Nicholas was still breathing. The deputies concluded that
Nicholas was not breathing, and they uncuffed him and moved
him to a flat area and began chest compressions. Id.
at 2:22:09-2:23:53. Harris County emergency medical personnel
arrived several minutes later and transferred Nicholas to
Midtown Medical Center, but he could not be revived.
after Nicholas's death, Defendant Mike Jolley, the Harris
County Sheriff, reviewed the dash cam video of the incident.
He concluded that the deputies' actions, including
Pierson's use of his knee to restrain Nicholas, were
consistent with the Harris County Sheriff's Office use of
force policy. That policy permits non-deadly force
“[w]hen making lawful arrests and searches, overcoming
resistance to arrests or searches, and preventing escapes
from custody.” Defs.' Mot. for Summ. J. Ex. F,
Harris Cty. Use of Force Policy § VII, ECF No. 25-6. The
policy further states that “[w]hen use of force is
justified it is necessary to use only that amount of force
necessary to overcome the resistance that is being used
against the [deputy].” Id. The policy also
permits deadly force under circumstances that undisputedly do
not apply here.
Natasha Grandhi, a Georgia Bureau of Investigation
pathologist, performed an autopsy of Nicholas's body and
prepared a report. That report lists four pathological
diagnoses: (1) prone position and compression of the neck and
torso; (2) deployment of the barbs of an electroconductive
device; (3) acute methamphetamine intoxication; and (4) a
heart defect called myocardial bridging. Dr. Grandhi opined
that each of these diagnoses may have contributed to
Nicholas's death, but she could not state to a reasonable
degree of medical certainty that any one of them alone was
the cause of death. Dr. Grandhi concluded that Nicholas's
death was a homicide. Under “cause of death, ”
Dr. Grandhi stated, “Sudden death during an altercation
with law enforcement, after deployment of an
electroconductive device, with prone positioning, compression
of the neck and torso, and acute methamphetamine
intoxication.” Defs.' Mot. for Summ. J. Ex. I,
Autopsy Report 5 (Dec. 11, 2015), ECF No. 25-7.
medical expert, Dr. Kris Sperry, opined that the pressure to
Nicholas's neck interfered with the functioning of his
vagus nerve and “[p]recipitated a cardiac
arrhythmia.” Sperry Dep. 31:18-22, ECF No. 28.
Defendants' experts dispute Dr. Sperry's opinions,
creating a genuine factual dispute as to the proximate cause
of Nicolas's death. They attribute Nicholas's death
to methamphetamine toxicity and his heart