BARRY A. BRYANT, Magistrate Judge.
The Plaintiff, Gary Max Chambers, originally filed this pro se action on September 27, 2018, in the Eastern District of Arkansas pursuant to 42 U.S.C. § 1983. (ECF No. 1, 2). The matter was then transferred to this Court. Plaintiff's application to proceed in forma pauperis has been granted. Plaintiff filed an Amended Complaint on October 9, 2018, which was ordered to be served upon the Defendants. (ECF No. 7, 8).
Before the Court are two motions: the Clark County Defendants, which include Sheriff Jason Watson, Derrick Barnes, Chief Deputy Nick Funderburk, Robert Jones, Chase Kersey, Officer Love, Nate Morrison, Deputy Andrew Samuels, and Deputy Perry, filed a Motion for Summary Judgment on August 19, 2019. (ECF No. 43). Separate Defendant Tommy Waldron filed a Motion for Summary Judgment on August 26, 2019. (ECF No. 47). The Plaintiff has responded (ECF Nos. 71, 72, 73, 74, 75, 76) and the motions are now ripe for decision. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, Chief United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation.
Plaintiff's Amended Complaint sets forth three claims. Plaintiff's first claim, which is stated against Sheriff Watson, Deputy Jones, Officer Kersey, Derrick Barnes, Officer Love, Deputy Nate Morrison, Deputy Andrew Samuels, Deputy Perry, and Chief Deputy Nick Funderburk,
Plaintiff's second claim is stated against only Separate Defendant Tommy Waldron. Plaintiff claims that on July 2, 2017, Waldron came to his house and "shot me with a tazer twice. He had no intention of calling this incident in. He came to my house to use his gun and badge so I would lay down, and 2 other people could beat me up." (ECF No. 7). The claim is stated against Waldron in both his official and personal capacities. Id.
Plaintiff's third claim is stated against only Robert Jones and is for "excessive force" with respect to an incident on April 20, 2018, in the CCDC at the time of Plaintiff's book-in. Plaintiff claims that Jones "struck me repeatedly in the face with a closed fist and then filed battery charges on me when he broke his hand on my face." (ECF No. 7). Plaintiff also claims that Jones "had false charges filed on me." Id. The claim is stated against Jones in both his official and personal capacities. Id.
After reviewing the pleadings of all of the parties, I find the following facts established for purposes of considering these Motions for Summary Judgment:
On July 2, 2017, Plaintiff was booked into custody at the CCDC on charges of assault, battery, and criminal mischief. (ECF No. 49-1).
According to Plaintiff's deposition testimony, Defendant Tommy Waldron came to his house around noon on July 2, 2017, with two civilian men. (ECF No. 49-2). Plaintiff testified that the two other men were Andrew Barrett and a man Plaintiff believed to be Andrew Barrett's father. Id.
Plaintiff testified that Waldron told him to lay down on the ground, and that he did so. (ECF No. 49-2). Plaintiff testified that while he was laying on the ground Andrew Barrett and Barrett's father came running up within a few feet of him. Id. Plaintiff jumped up and grabbed a stick. Id. Waldron shot him with a taser. Id. Plaintiff testified that he ripped the wires out of the taser and was then shot with the taser again. Id. Waldron instructed Plaintiff to get back on the ground but Plaintiff refused and asked for another officer to be called. Id. Plaintiff had injuries at the time from an altercation earlier that day with Andrew Barrett. Id. During the earlier altercation, Plaintiff beat up Andrew Barrett and knocked the windows out of Barrett's car. Id.
Plaintiff testified that after he refused to get back on the ground, Waldron pointed his gun at Plaintiff for approximately thirty (30) minutes. (ECF No. 49-2). After approximately thirty (30) minutes, police from Arkadelphia, Amity, Pike County, and Clark County arrived. Id. A game warden also arrived. Id. Plaintiff was arrested and charged with battery and criminal mischief. Id.
With respect to his official capacity claim against Waldron, Plaintiff testified that Waldron "wouldn't have made that decision if Clark County or the City of Amity hadn't given him that gun and that badge and that Taser." (ECF No. 49-2).
On April 20, 2018, Plaintiff was booked into the CCDC on charges of possession of a controlled substance and possession of drug paraphernalia. (ECF No. 45-2). Also on April 20, 2018, after being taken into custody, Plaintiff was charged with impairing operation of a vital public facility, two counts of 2nd degree battery, and aggravated assault upon a certified law enforcement officer or an employee of a correctional facility. Id.
On April 20, 2018, Defendant Robert Jones submitted the following statement:
(ECF No. 45-4).
On April 20, 2018, Jailer Stephan Parrott filed the following incident report:
(ECF No. 45-4).
On April 20, 2018, Jailer Sam Burdett filed the following incident report:
(ECF No. 45-4).
Video from the booking room camera of the incident on April 20, 2018 reflects the following:
(ECF No. 45-7).
Video from the hallway camera of the incident on April 20, 2018 reflects the following:
(ECF No. 45-7).
On April 23, 2018, Plaintiff was transferred to the Ouachita County Detention Center (hereinafter "OCDC"). (ECF No. 45-2). The OCDC booking officer recorded the following on the Inmate Medical Form, "Not allergic to any food or medication, taking codeine and cyclobenzaprine, has broken bones (foot) damaged collar bone (left side), damaged vertebrae in neck. Has staff on left forearm and left leg." (ECF No. 45-3). On July 22, 2018, Plaintiff was released to the Arkansas Department of Correction. (ECF No. 45-2).
Plaintiff's deposition testimony reflects that on April 11, 2019, he was sentenced to forty (40) years for charges of battery, assault and impairing operations of a vital public facility. (ECF No. 45-9). Those charges related to the incident that occurred on April 20, 2018, in the hallway/booking room of the CCDC. Id. Plaintiff testified that he also had pending charges for negligent homicide, possession and possession of paraphernalia, each related to the wreck he had just before he came to the CCDC on April 20, 2018. Id.
Plaintiff testified that he had neck and back problems that were related to his wreck or the beating he received from the police and that he had not received any treatment for those injuries. (ECF No. 45-9). Plaintiff testified that after the wreck, he was diagnosed with a sprained wrist and sprained neck. Id. Plaintiff was arrested following the wreck in the early morning of April 19, 2018, and the incident involving Jones occurred approximately twenty-four (24) hours later. Id. Prior to the incident but after the wreck, Plaintiff was taken by ambulance to the emergency room. Id.
Plaintiff testified that when he got to the jail, he remembered lying down in the drunk tank. (ECF No. 45-9). Plaintiff testified that after he went to the drunk tank, he remembered doing an interview with Roy Bethel. Id. Plaintiff testified that he believed Officer Bethel was not concerned with the wreck because he was trying to get a meth bust. He also believed Officer Bethel should have been more concerned about the wreck. Id.
Plaintiff testified that he did not know how long his interview with Officer Bethel lasted, but that after the interview he went to his arraignment, after which they dressed him out and searched him. (ECF No. 45-9). Plaintiff testified that while the officer was dressing him out, the officer was trying to irritate him. Id.
Plaintiff testified that the officer kept running him mouth, that he came up behind the officer, that he pushed the officer and swung at the officer. The officer hit the wall. Plaintiff stated that Burdett then came up behind them, and that they all went to the ground. (ECF No. 45-9).
Plaintiff testified that Robert Jones then came running up and Plaintiff got hit in the face eight or ten times. (ECF No. 45-9). Plaintiff testified that he had three cops striking him in the face and that he was resisting them. Id. Plaintiff testified that Burdett was trying to get him down and put handcuffs on him, but Parrott and Jones were striking him and using excessive force on him. Id.
Plaintiff testified that he attacked Parrott, and struck Parrott in the face, but that he did not try to strike anyone else. (ECF No. 45-9).
Plaintiff testified that it was wrong for Jones to use force against him because Jones struck Plaintiff in the face with a closed fist. (ECF No. 45-9). Plaintiff testified that he did not strike Jones. Id. Plaintiff testified that Jones's report said Plaintiff hit him first but the video showed otherwise. Id.
Plaintiff testified that he was on the ground and he was not swinging his arms or moving his legs at all. (ECF No. 45-9). Plaintiff testified that he was trying to avoid Burdett's efforts to handcuff him by pulling his arms away but he was not striking anyone. Id.
Plaintiff testified that he received a "ridiculous false charge" of battery against Jones and that it was dismissed. (ECF No. 45-9). Plaintiff testified that he was found guilty of battery against Parrot. Id.
Plaintiff testified that he had pictures of Jones's broken hand and himself spitting blood down the hallway. (ECF No. 45-9). Plaintiff testified that he was spitting blood because he was choking and that he spit at the officers one time. Id.
Plaintiff testified that excessive force and police brutality was the policy of Clark County. (ECF No. 45-9). Plaintiff testified that he personally experienced police brutality from Clark County twice but did not know of any other instances of police brutality from Clark County in the past three years. Id.
Plaintiff testified that after this incident happened, he was placed in a restraint chair and several hours later was taken to the hospital. (ECF No. 45-9).
Plaintiff testified that they took photographs of him and that he had seen those photographs. (ECF No. 45-9). Plaintiff testified that the photographs did not show any injuries to him and he did not know why they did not show his injuries. Id. Plaintiff testified that the blood was coming from his mouth but it was not on his mouth. Id. Plaintiff testified that he did not recall anyone cleaning up his face. Id. Plaintiff testified that after a couple of hours, he was taken to the doctor at Arkadelphia Baptist Hospital. Id. At the hospital, they took x-rays of him and gave him some pills. Plaintiff testified that the x-rays showed that he had a broken toe and he was given codeine. Plaintiff testified that he did not have any injuries to his face but he had lacerations in his mouth. Id. Plaintiff testified that he probably had bruising on his face but he never saw any bruising on his face. Plaintiff testified that after he went to the doctor, he went back to the drunk tank until the next shift change. Id.
Plaintiff testified that, while he was in the drunk tank, a bunch of officers woke him up from a dead sleep, convinced him to put on handcuffs and leg irons, walked him out of the jail, put him in a police car, put a seatbelt on him and hit him in the face with mag lights. (ECF No. 45-9). Plaintiff testified that the cop that started the beating said his name was Ferguson but it might have been Morrison.
Plaintiff testified that Officer Morrison started the beat-down, sprayed him and tased him. (ECF No. 45-9). Plaintiff testified that at this point, he was completely defeated because he had lost the love of his life in the wreck. Id.
Plaintiff testified that Officer Morrison put the seatbelt on him, said Plaintiff tried to bite him, and started hitting him in the face. (ECF No. 45-9). Plaintiff testified that after Officer Morrison hit him, the other officers started hitting him from both sides. Id. Plaintiff testified that the assault lasted about ten minutes but that he did not know how many times Officer Morrison struck him. Id. Plaintiff testified that he did not suffer any broken teeth but that he was bleeding from his mouth and nose and his left eye was almost swollen shut. Id.
Plaintiff testified that during the assault, Officer Perry was leaning in the car from the driver's side and that Perry started attacking Plaintiff after his seatbelt was buckled. (ECF No. 45-9). Plaintiff testified that he did not know if more than one officer was leaning in the car on both sides because he closed his eyes and lowered his head, after the first couple of hits. Id. Plaintiff testified that he did not know how all the officers would have gotten in to strike him but that he was struck repeatedly and they were all responsible for his assault. Id.
Plaintiff testified that Officer Morrison emptied his can of mace on him and shot him with his taser. (ECF No. 45-9). Plaintiff testified that after he was sprayed by Officer Morrison, Morrison stunned him with a stun gun to his leg, ribs and abdomen for several seconds each time. (ECF No. 45-9). Plaintiff testified that he did not see any marks on his skin or burned places on his clothes from the stun gun. Id.
Plaintiff testified that after he was sprayed, the officers closed the door to the car and that he was in the closed car for a long time. (ECF No. 45-9). While in the car, Plaintiff testified that Sheriff Jason Watson threatened him over the car radio. Id. Plaintiff testified that he heard Watson's voice over the radio and that Watson was talking bad to him and threatening him. Id. Plaintiff testified that he knew that it was Sheriff Watson that threatened him because Watson was at the wreck the night before and Plaintiff recognized his voice. Id. Plaintiff testified that he did not see Sheriff Watson on the night of the incident, but only heard him on the radio. Id. Plaintiff testified that he thought Watson sent the officers into his cell to drag him out and beat him up. Id. Plaintiff testified that he believed the other officers did what they did to him because Watson told them to do it. Plaintiff also testified that he believed the officers would not do something that they believed was wrong. Id.
Plaintiff testified that Jones came into his cell but that he did not know what else Jones did during the night incident. (ECF No. 45-9). Plaintiff testified that Officer Kersey was there. Id. Plaintiff testified that he was not alleging that Officers Jones or Kersey struck him during the night incident. Id. Plaintiff testified that Deputy Barnes was the jail administrator but that he was not there. Id. Plaintiff testified that although Barnes was not personally involved in this situation, he was responsible for the situation because it happened on his watch. Id. Plaintiff testified that Deputies Samuels and Funderburk were two of the eight officers that dragged him out of his cell. Id. Plaintiff testified that he did not know what Samuels and Funderburk did during the night incident. Id. Plaintiff testified that Deputy Love was the jailer on duty and that he opened the door so the other officers could come into Plaintiff's cell. Id. Plaintiff testified that Love went with him to the car, but that he did not recall Love striking him. Id.
Plaintiff testified that the officers let him take a shower and that they then put him in the restraint chair for several hours. (ECF No. 45-9). Plaintiff testified that when they let him out of the restraint chair, he went back to the drunk tank until he went to court the next Monday. Id. Plaintiff testified that during that time, he took the codeine and other pills that the jailer gave him. Id.
Plaintiff testified that he had a copy of the restraint chair log but that there was no incident report that gave a reason for him to be in the restraint chair during the time of the night incident. (ECF No. 45-9). Plaintiff testified that he never received medical treatment for his injuries from the incident in the back of the police car. Id. Plaintiff testified that while he was in the police car, he was hit in the face and top of the head but he did not know if his shoulders or chest were injured. Id. Plaintiff testified that he asked for a million dollars in compensatory damages because that was the number he came up with and that he just came up with a number for punitive damages. Id.
Plaintiff testified that the CCDC would not give him a grievance form and that he did not file a grievance. (ECF No. 45-9). Plaintiff also testified that after he was taken back to the drunk tank, he asked for a grievance form but he did not know who he asked or when he asked for it. Id.
Plaintiff testified that he was transferred to Ouachita County after court on Monday. (ECF No. 45-9).
The CCDC chair log appears to reflect that Plaintiff was in the restraint chair from 22:58 on April 20, 2018 to 1:20 on April 21, 2018. (ECF No. 45-5).
The CCDC has specific policies in place concerning its grievance procedure. (ECF No. 45-6). It is the policy of the CCDC that if a Detainee needs to make a request or file a grievance, the Detainee is to be given the appropriate form and is to return it to the Jailer on Duty. Id. Jailers are directed to note their receipt of the form, making sure to put their name, date, and time on the form, and then give it to the Administrator to be answered or passed on. Id.
It is the policy of the CCDC that upon the approval of the (Patrol) Shift Supervisor (in the absence of management), staff members will be authorized to use the emergency restraint chair (ERC) as necessary to control inmates who display behavior which creates a substantial risk of destruction of property or who place themselves and/or others in danger of physical harm. (ECF No. 45-6). It is the policy of the CCDC that the ERC will never be used to punish any inmate. Id.
It is the policy of the CCDC that the shift supervisor will be responsible for all appropriate incident reports, medical and mental health reports, observation reports and or any other written documents. (ECF No. 45-6). It is the policy of the CCDC that the inmate will be placed in an area of the facility that is monitored and recorded. Id. It is the policy of the CCDC that a written observation log will be maintained for any inmate who is placed in an ERC. Id. It is the policy of the CCDC that inmates will not be kept in restraints for no longer than four (4) hours except for medical cases. Id.
In support of his responses to the Defendants' Motions, Plaintiff has filed three affidavits. (ECF No. 75, 76, 77). Plaintiff states "I, Gary Max Chambers, know that I did in fact ask for grievance forms a few times while I was in jail in Clark County between April the 19th and April 23rd of 2018. I do not remember exactly who I asked or when. I remember asking while I was in the restraint chair, but not sure who I asked or what time. Without these facts I simply tried to skip to the next question during my deposition." (ECF No. 75).
Plaintiff's Affidavit further states: "I, Gary Max Chambers, believe that this sworn Affidavit and the Attached incident report should prove that Clark Counties Grievance Policy and Procedure is not only inadequate, but I know from my own personal experience that even asking for a grievance in Clark County Detention Center, Clark County, Arkansas put an inmate in immediate risk of substantial physical harm." (ECF No. 75).
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party, the record "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); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Once a party moving for summary judgment has made a sufficient showing, the burden rests with the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists." Nat'l Bank of Comm. v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir. 1999).
The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient evidence to support a jury verdict in their favor." Nat'l Bank, 165 F.3d at 607 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). "A case founded on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. (citing Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985)). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).
The Clark County Defendants contend they are entitled to summary judgment with respect to Plaintiff's claims. (ECF No. 43). Specifically, the Clark County Defendants argue that:
The Plaintiff opposes the Clark County Defendants' Motion.
The Prison Litigation Reform Act ("PLRA") in 42 U.S.C. § 1997e(a) provides: "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Exhaustion is mandatory. Porter v. Nussle, 534 U.S. 516, 524-25 (2002). In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court concluded "to properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with the applicable procedural rules." Id. at 218 (internal quotation marks and citation omitted). The Court stated that the "level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Id. "[F]ailure to exhaust available administrative remedies is an affirmative defense, not a matter of subject matter jurisdiction." Lenz v. Wade, 490 F.3d 991, 993 n. 2 (8th Cir. 2007).
The Eighth Circuit has recognized two exceptions to the PLRA exhaustion requirement: (1) when officials have prevented prisoners from utilizing the grievance procedures; or (2) when the officials themselves fail to comply with the grievance procedures. See Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (citing Miller v. Norris, 247 F.3d 736 (8th Cir. 2001) (explaining a prisoner is only required to exhaust those administrative remedies that are available and any remedies that prison officials prevent a prisoner from utilizing are not considered available)).
There is no dispute that the CCDC had a grievance procedure in place for detainees to use at the time of the incidents occurred which Plaintiff claims resulted in a violation of his rights. (ECF No. 45-6). It is also undisputed that Plaintiff failed to file a grievance with respect to either incident. However, although the Defendants argue that Plaintiff is not sure whether he even requested a grievance form, Plaintiff's deposition and affidavit testimony states otherwise. Specifically, Plaintiff states: "I, Gary Max Chambers, know that I did in act ask for grievance forms a few times when I was in jail in Clark County between April the 19th and April 23rd of 2018. I do not remember exactly who I asked or when. I remember asking while I was in the restraint chair but not sure who I asked or what time." (ECF No. 75). Further Plaintiff states, "that Clark Counties grievance policy and procedure is not only inadequate, but I know from my own personal experience that even asking for a grievance in Clark County Detention Center, Clark County, Arkansas put an inmate in immediate risk of substantial physical harm." Id.
As set forth above, the Eighth Circuit has recognized exceptions to the PLRA exhaustion requirement: (1) when officials have prevented prisoners from utilizing the grievance procedures; or (2) when the officials themselves fail to comply with the grievance procedures. See Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005). Here, Plaintiff has alleged that both that officials prevented him from utilizing the grievance procedure (by not providing a grievance form) and that officials themselves failed to comply with the grievance procedures (by not providing a grievance form). The Defendants have failed to refute Plaintiff's deposition and affidavit testimony. I, therefore, find that Defendants have failed to establish that they are entitled to the affirmative defense of exhaustion of administrative remedies.
"Liability under section 1983 requires a causal link to, and direct responsibility for, the deprivation of rights. To establish personal liability on the part of a defendant, [the plaintiff] must allege specific facts of personal involvement in, or direct responsibility for, a deprivation of [his] constitutional rights." Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007) (citation and internal quotation marks omitted). The Defendants argue that Plaintiff could only describe what three of the Defendants allegedly did to him (Defendants Jones, Morrison, and Perry). Defendants further argue that there is no evidence that Sheriff Watson, Jail Administrator Barnes, Chief Deputy Funderburk, Deputy Kersey, Deputy Love, or Deputy Samuels were personally involved in either of the two alleged incidents of excessive force from which the Plaintiff claims injury.
Having reviewed the entirety of the pleadings, it is clear that with respect to Sheriff Watson, Plaintiff has set forth no evidence to establish personal liability with respect to either of Plaintiff's claims for excessive force. Plaintiff states: that Sheriff Watson threatened him verbally in the booking area; that he believes Sheriff Watson "gave orders" to other officers with respect to the alleged night incident following his removal from the "drunk tank"; and, that although Sheriff Watson was not physically present during the night incident, Sheriff Watson verbally threatened Plaintiff during the incident over the car radio. "[M]ere verbal threats made by a state-actor do not constitute a § 1983 claim." Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992). Further, Plaintiff's conclusory allegations that Sheriff Watson "gave orders" which instigated the night incident are simply not enough to support liability. See Springdale Educ. Ass'n v. Springdale School Dist., 133 F.3d 649, 651 (1998) ("At a minimum . . . a complaint must contain facts sufficient to state a claim as a matter of law and must not be merely conclusory in its allegations.").
Similarly, I find that Plaintiff has set forth no facts sufficient to find liability with respect to Jail Administrator Barnes. Although Plaintiff appears to allege that Barnes was present in the booking area during times surrounding the first incident, Plaintiff makes no allegations against Barnes with respect to the first incident. Further, regarding the night incident, Plaintiff is clear that Barnes was not present. See Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007).
However, although Plaintiff pleadings, deposition, and affidavit testimony are unclear as to Jones, Funderburk, Kersey, Love and Samuels' direct actions during the night incident, Plaintiff consistently maintains that each Defendant was present. Without any evidence from the Defendants to the contrary, I find that at a minimum, Plaintiff's facts support a claim for failure to protect from excessive force. An officer may be liable for failing to act or intervene to prevent excessive force by another officer if "`(1) the officer observed or had reason to know that excessive force would be or was being used, and (2) the officer had both the opportunity and the means to prevent the harm from occurring.'" Nance v. Sammis, 586 F.3d 604, 612 (8th Cir. 2009) (quoting Floyd v. City of Detroit, 518 F.3d 398, 406 (6th Cir. 2008)).
The Clark County Defendants next argue that Defendant Jones is entitled to summary judgment with respect to Plaintiff's third claim because the level of force used by Jones was reasonable in light of the circumstances. Plaintiff's third claim, which is stated only against Jones, concerns the incident following Plaintiff's book-in at the CCDC on April 20, 2018. At the time, Plaintiff was a pretrial detainee.
The Supreme Court has held that a pretrial detainee's excessive force claim should be analyzed under an objective reasonableness standard. Kingsley v. Hendrickson, et al, ___ U.S. ___, 135 S.Ct. 2466, 2473 (2015). The objective reasonableness of a use of force "turns on the `facts and circumstances of each particular case.'" Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The determination should be made:
Id. (quoting Bell v. Wolfish, 441 U.S. 520, 540 (1979)). An action is objectively unreasonable if it is not reasonably related to legitimate governmental interests such as maintaining order and security. Id.
In determining whether a given use of force was reasonable or excessive, the Court held that the following may bear on the issue:
Id. The Court noted that the list was not exclusive but instead only illustrated the "types of objective circumstances potentially relevant to a determination of excessive force." Id.
Not every push or shove rises to the level of a constitutional violation. Wilkins v. Gaddy, 559 U.S. 34, 38 (2010). "Section 1983 is intended to remedy only egregious conduct and not every assault or battery which violates state law will create liability under it." Askew v. Millerd, 191 F.3d 953, 958 (8th Cir. 1999).
Given the standards set forth above, the incident following Plaintiff's book-in does not rise to the level of a constitutional violation. According to the Plaintiff's deposition testimony, the incident occurred while Plaintiff was frustrated because he felt like Parrott unreasonably required Plaintiff to "squat and cough" multiple ties and "was trying to irritate him." As evidenced by the video and as confirmed by Plaintiff's deposition testimony, the incident began when the Plaintiff attacked Parrott from behind, pushing and swinging at the officer. Burdett and Jones then joined in, with reasonable attempts to restrain Plaintiff. Although Plaintiff testified that he had three cops striking him in the face, Plaintiff also testified that he was resisting the officers. Plaintiff testified that it was wrong for Jones to use force against him because Jones struck Plaintiff in the face with a closed fist. While it is accurate that Jones struck Plaintiff more than once, Plaintiff continued to resist throughout the incident, even spitting at the officers while being restrained. Less than two (2) minutes elapsed from the time Plaintiff attacked Parrott from behind to the time that the officers regained control of Plaintiff and had Plaintiff back onto his feet.
I find that the force used by Jones during the incident following Plaintiff's book-in was not excessive and was reasonable in light of the circumstances. For this reason, I recommend that summary judgment should be granted with respect to Officer Jones
The Clark County Defendants next argue that they are entitled to qualified immunity with respect to their actions. Analyzing a claim of qualified immunity requires a two-step inquiry. Jones v. McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012). "An official is entitled to qualified immunity unless (1) the evidence, viewed in the light most favorable to the nonmoving party, establishes a violation of a federal constitutional or statutory right, and (2) the right was clearly established at the time of the violation." Robinson v. Payton, 791 F.3d 824, 828 (8th Cir. 2015). "Unless the answer to both these questions is yes, the defendants are entitled to qualified immunity." Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009).
As set forth above, I find that the Plaintiff has failed to set forth facts to prove a constitutional injury with respect to Sheriff Watson and Jail Administrator Barnes. In addition, I find that the undisputed facts establish that the amount of force Defendant Jones used during the incident following Plaintiff's book-in was reasonable in light of the circumstances. I, therefore, find that Sheriff Watson and Jail Administrator Barnes are entitled to qualified immunity with respect to Plaintiff's personal capacity claims against them. I also find that Defendant Jones is entitled to qualified immunity with respect to his actions during the incident following Plaintiff's book-in on April 20, 2018.
Qualified immunity is not appropriate at this time with respect to Plaintiff's other personal capacity claims against the Clark County Defendants as questions of fact remain. As set forth above, although Plaintiff is unclear about whether Jones, Funderburk, Kersey, Love and Samuels actively participated in any physical force against Plaintiff during the night incident. However, Plaintiff consistently maintains that each Defendant was present. The Defendants have presented no affidavit or deposition testimony to the contrary. I find that it is clearly established that an officer may be liable for failing to act or intervene to prevent excessive force by another officer if "`(1) the officer observed or had reason to know that excessive force would be or was being used, and (2) the officer had both the opportunity and the means to prevent the harm from occurring.'" Nance v. Sammis, 586 F.3d 604, 612 (8th Cir. 2009) (quoting Floyd v. City of Detroit, 518 F.3d 398, 406 (6th Cir. 2008)); see also Krout v. Goemmer, 583 F.3d 557, 565 (8th Cir. 2009) (finding that it is clearly established that a state actor may be liable if he fails to intervene to prevent the unconstitutional use of force). I, therefore, find that Separate Defendants Jones, Funderburk, Kersey, Love and Samuels are not entitled to qualified immunity with respect to the April 20-21, 2018 night incident.
The Clark County Defendant admit that questions of fact remain with respect to action of Separate Defendants Morrison and Perry during the night incident. (ECF No. 44). Further, the Clark County Defendants do not seek summary judgment based on qualified immunity with respect to Morrison and Perry. Id.
Finally, the Clark County Defendants argue that there is no basis for official capacity liability and therefore seek summary judgment in that respect.
As set forth above, on each of his claims stated against Clark County Defendants, the Plaintiff has sued the Defendant in his official capacity as well as his personal capacity. Official capacity claims are "functionally equivalent to a suit against the employing governmental entity." Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). In other words, these official capacity claims against are treated as claims against Clark County. See Murray v. Lene, 595 F.3d 868, 873 (8th Cir. 2010).
"[I]t is well established that a municipality [or county] cannot be held liable on a respondeat superior theory, that is, solely because it employs a tortfeasor." Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). To establish any liability on the part of Clark County under section 1983, "plaintiff must show that a constitutional violation was committed pursuant to an official custom, policy, or practice of the governmental entity." Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir. 2009) (citation omitted). To establish the existence of an unconstitutional policy, the Plaintiff must point to "a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters." Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999).
Plaintiff has failed to produce evidence of any policy or custom of Clark County that contributed to the alleged violation of Plaintiff's constitutional rights. Accordingly, I find that the Clark County Defendants are entitled to summary judgment on Plaintiff's claims against them in their official capacities.
Plaintiff's claim against Separate Defendant Tommy Waldron concerns an incident that Plaintiff asserts took place on July 2, 2017. Plaintiff claims that Waldron "came to my house to use his gun and badge so I would lay down, and 2 other people could beat me up." (ECF No. 7). Plaintiff testified that earlier in the day, he had gotten into an altercation with Andrew Barrett, a civilian. Later Waldron came to his house with Barrett and Barrett's father. Plaintiff testified that he was ordered to lay down on the ground, and that after he did so, the two civilian men came running up within a few feet of him. Plaintiff jumped up and grabbed a stick, allegedly to protect himself from the two civilian men, and was tased by Waldron. Plaintiff testified that he ripped the wires out of the taser and was then shot with the taser again. Waldron instructed Plaintiff to get back on the ground, but the Plaintiff refused and asked for another officer to be called. Plaintiff was held by Waldron for approximately thirty (30) minutes until other officers arrived. Plaintiff was then arrested and charged with battery and criminal mischief.
Separate Defendant Waldron has submitted no testimony or other evidence to contradict Plaintiff's allegations and deposition testimony.
In Waldron's motion for summary judgment, he argues that he is entitled to summary judgment because the force he used was reasonable under the circumstances. Alternatively, Waldron argues that he is entitled to qualified immunity in this regard. Finally, Waldron argues that there is no basis for official capacity liability.
Plaintiff's excessive force claim is based on his verified allegation that Waldron "came to my house to use his gun and badge so I would lay down, and 2 other people could beat me up." (ECF No. 7). Plaintiff's allegation is bolstered by his deposition testimony that after he initially complied with Waldron's command to lay on the ground, Andrew Barrett and Barrett's father ran up within a few feet of him. As set forth above, Separate Defendant Waldron has submitted no testimony or other evidence to contradict Plaintiff's allegations and deposition testimony.
Although it is conceivable that the force used by Waldron could be reasonable as Plaintiff admittedly disobeyed Waldron's commands to stay on the ground, certainly, if Waldron's actions are consistent with Plaintiff's verified allegations and deposition testimony, his use of force was a clear violation of Plaintiff's constitutional rights. Accordingly, I find that questions of fact prevent entry of summary judgment on the basis of either reasonable force or qualified immunity.
Plaintiff has sued Waldron in his official capacity as well as his personal capacity. Waldron argues that there is no basis for official capacity liability and seeks summary judgment in that respect.
As set forth above, official capacity claims are "functionally equivalent to a suit against the employing governmental entity." Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). In other words, Plaintiff's official capacity claims against Waldron is treated as a claim against Clark County or the City of Amity. See Murray v. Lene, 595 F.3d 868, 873 (8th Cir. 2010).
"[I]t is well established that a municipality [or county] cannot be held liable on a respondeat superior theory, that is, solely because it employs a tortfeasor." Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). To establish any liability on the part of a municipality under section 1983, "plaintiff must show that a constitutional violation was committed pursuant to an official custom, policy, or practice of the governmental entity." Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir. 2009) (citation omitted). To establish the existence of an unconstitutional policy, the Plaintiff must point to "a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters." Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999).
Plaintiff has failed to produce evidence of any policy or custom of Clark County or the City of Amity that contributed to the alleged violation of Plaintiff's constitutional rights. Accordingly, I find that Waldron is entitled to summary judgment on Plaintiff's claim against him in his official capacity.
For the reasons stated above, I recommend that the Clark County Defendants' Motion for Summary Judgment (ECF No. 43) be
I further recommend that Separate Defendant Tommy Waldron's Motion for Summary Judgment (ECF No. 47) be
