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Dyksma v. Pierson

United States District Court, M.D. Georgia, Columbus Division

July 16, 2018




         Eighteen-year-old 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.

         The 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.

         The 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.


         Summary 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.


         Viewed 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).

         At 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.[1] 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.

         Defendants 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.

         Pierson 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 Cam”).[2]

         The 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.

         Pierson, 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.[3] 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.[4] Sturdevant kept his hand on Nicholas's back for several more seconds. A deputy called for emergency medical personnel.

         The 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 2:17:34-44.

         At 2:20 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.

         Shortly 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.

         Dr. 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.

         Plaintiffs' 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 defect.[5]


         I. Plaintiffs' ...

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