Brinkley v. Helena-West Helena, Arkansas et al
OPINION AND ORDER granting 77 Motion for Partial Summary Judgment. This action will proceed to trial solely against Mikel Hall in his individual capacity. Signed by Judge Susan Webber Wright on 8/21/2014. (ks)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CITY OF HELENA-WEST HELENA,
ARKANSAS and ARNELL WILLIS or
JAMES VALLEY, Individually and in
their Official Capacity as MAYOR and
as Former MAYOR OF HELENAWEST HELENA, MIKE HALL, in his
Individual and Official Capacity as a
police officer for the CITY OF
OPINION AND ORDER
Doretha Brinkley brings this action against the City of Helena-West Helena,
Arkansas (the City), Arnell Willis, Mayor of the City, James Valley, former Mayor of the
City, and Mikel Hall, former police officer for the City, for injuries she claims she
suffered while being arrested by Hall on November 16, 2008.1 Brinkley claims that while
she was handcuffed and compliant, Hall slammed her head into his police cruiser and
struck her with his baton and fists, knocking out some of her teeth and causing her other
The caption of Brinkley’s complaint refers to her first name as “Doretha.” The body of
Brinkley’s complaint, however, refers to her first name at various times as “Dorletha,”
Dorothea,” and “Dorleth.” The Court notes also that although Hall was sued as “Mike Hall” and
he answered plaintiff’s complaint in the name of “Mike Hall,” defendants later refer to Hall’s
first name as “Mikel.” Exhibits in the record indicate that Hall’s first name is indeed “Mikel.”
serious bodily injury.
The matter is before the Court on motion of the City, Mayor Willis and former
Mayor Valley, in their individual and official capacities, and Hall, in his official capacity
only, for partial summary judgment [doc.#77].2 Brinkley has responded in opposition to
defendants’ motion and defendants have replied to Brinkley’s response. For the reasons
that follow, the Court grants defendants’ motion for partial summary judgment.
Brinkley asserts claims against Hall for violating her Fourth Amendment rights by
using excessive force against her during her arrest. Compl. ¶¶ 5–8. She also asserts
against Hall “all common law claims resulting from” his intentional actions. Id. ¶ 38.
Brinkley asserts claims against the City for negligent hiring, training, supervision,
and retention of Hall. Id. ¶¶ 15-27. She also claims that Hall’s unconstitutional use of
force was pursuant to a “policy, custom, ordinance, regulation, decision, edict or act of a
policymaker,” id. ¶ 2, and she asserts “all common law claims against City” resulting
from Hall’s intentional actions. Id. ¶ 35.
Brinkley claims former Mayor Valley was the final policymaker for the City’s
police department at the time of the incident and that the “policies, customs, ordinances,
regulations, decisions, edicts or acts of the policymaker, under the color of state law, were
A suit against an official in his official capacity is the equivalent of a suit against the
municipality itself. Smith v. Watkins, 159 F.3d 1137, 1138 n.3 (8th Cir. 1998). The official is
distinct only in his individual capacity. Doe v. Washington County, 150 F.3d 920, 923 (8th Cir.
1998). Defendants acknowledge that there are genuine issues of material fact with regards to
Brinkley’s claims against Hall in his individual capacity.
the moving forces in [her] injuries and damages....” Id. ¶¶ 2-3. She names current Mayor
Willis as a defendant “to the extent Arnell Willis should be the named party as he came
into the office of mayor and succeeded to the duties and responsibilities of Valley....” Id.
Brinkley seeks damages for the above claims pursuant to 42 U.S.C. §§ 1983, 1988;
the Arkansas Civil Rights Act of 1993 (ACRA), Ark. Code Ann. §§ 16-123-101, 16-123105; Ark. Code Ann. § 21-9-301; and Ark. Const. Art. 2, § 15.3
Defendants move for partial summary judgment on several grounds, including that
the city council, not the mayor, is the final policy maker for the City’s police department
and that Brinkley has failed to establish the existence of a continuing, widespread,
persistent pattern of unconstitutional misconduct by the City’s police officers.
Defendants argue there are no genuine issues of material fact with respect to these issues
and that they are entitled to partial summary judgment as a matter of law.
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(a). To support an assertion that a fact cannot be or is genuinely
Concerning her ACRA claim, Brinkley actually cites Ark. Code Ann. §§ 16-23-101, 1623-105. As these statutes deal with county law libraries, the Court presumes that Brinkley’s
citation to these statutes was in error and that she in fact meant to cite to ACRA.
disputed, a party must cite “to particular parts of materials in the record,” or show “that
the materials cited do not establish the absence or presence of a genuine dispute,” or “that
an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1)(A)-(B). “The court need consider only the cited materials, but it may consider
other materials in the record.” Fed.R.Civ.P. 56(c)(3). The inferences to be drawn from
the underlying facts must be viewed in the light most favorable to the party opposing the
motion. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (citations
omitted). Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citation and quotation marks
omitted). However, “[w]here the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita,
475 U.S. at 587 (citation omitted). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes
that are irrelevant or unnecessary will not be counted.” Id.
As a preliminary matter, the Court identifies those arguments that are no longer at
issue in this action. In addition to the two arguments set forth above on which defendants
move for partial summary judgment, defendants also move for partial summary judgment
regarding 1) the existence of an official policy regarding excessive force, 2) deliberately
indifferent hiring, training, and supervising practices, 3) the impropriety of all claims
against current Mayor Willis, 4) the claims of negligence and other state torts against the
City, 5) the request for punitive damages against the City, and 6) the impropriety of the
individual capacity claim against former Mayor Valley. Brinkley, however, does not
contest these additional arguments that the defendants have set forth in their motion that
they state entitles them to partial summary judgment. Accordingly, Brinkley has waived
those arguments. See Satcher v. University of Arkansas at Pine Bluff Bd. of Trustees, 558
F.3d 731, 735 (8th Cir. 2009) (“failure to oppose a basis for summary judgment constitutes
waiver of that argument”).4
The Court now turns to the remaining arguments on which defendants move for
partial summary judgment, beginning with defendants’ argument that the city council, not
the mayor, is the final policymaker for the City’s police department. Determining who
was the final policymaker is vital because a municipality will only be liable under § 1983
if the official was “‘responsible for establishing final policy with respect to the subject
matter in question.’” Granda v. City of St. Louis, 472 F.3d 565, 568 (8th Cir. 2007)
In addition, Brinkley has failed to file a Local Rule 56.1 statement of the material facts
as to which she contends genuine issues exist to be tried. Brinkley has thus admitted the facts set
forth by the defendants in their statement of undisputed material facts as to which they contend
there are no genuine issues to be tried. See Local Rule 56.1(c) (“[a]ll material facts set forth in
the statement filed by the moving party pursuant to paragraph (a) shall be deemed admitted
unless controverted by the statement filed by the non-moving party under paragraph (b)”).
(quoting Penbaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986)). “‘Whether an
official had final policymaking authority is a question of state law.’” Bernini v. City of St.
Paul, 665 F.3d 997, 1008 (8th Cir. 2012) (quoting Penbaur, 475 U.S. at 483).
The parties do not dispute that the City is a city of the first class. See Ark. Code.
Ann. § 14-37-103(a)(1) (“All municipal corporations having over two thousand five
hundred (2,500) inhabitants shall be deemed cities of the first class.”).5 There is also no
dispute that “[i]n a municipality, the duty of the chief of police and other officers of the
police department is under the direction of the mayor.” Ark. Code Ann. § 14-52-203(a).
This grant of authority to the mayor, however, does not necessarily render the mayor the
final policymaker for a police department. See Greer v. City of Warren, Civil No. 1:10cv-01065, 2012 WL 1014658, *13 (W.D. Ark. March 23, 2013) (noting that “[d]espite
[Ark. Code Ann. § 14-52-203(a)’s] grant of authority to the mayor, the mayor is still not
always considered the final policymaker of the police department under Arkansas law”).
Rather, Ark. Code. Ann. § 14-52-101 provides that in cities of the first and second class,
“[t]he city council shall have power to establish a city police department, to organize it
under the general superintendence of the mayor, and to prescribe its duties and define its
powers in such manner as will most effectually preserve the peace of the city, secure the
citizens thereof from personal violence, and safeguard their property from fire and
Municipal corporations are generally divided into the following classes: (1) cities of the
first class; (2) cities of the second class; and (3) incorporated towns. Ark. Code Ann. § 14-37102.
unlawful depredations.” Thus, while the day-to-day duties of the chief of police and other
officers of the police department in a city of the first and second class are “under the
direction” and “general superintendence” of the mayor, Ark. Code Ann. §§ 14-52-101,
14-52-203(a), the city council prescribes the police department’s duties and defines its
powers, i.e., makes the police department’s policy. Ark. Code Ann. § 14-52-101.
Brinkley, however, argues that former Mayor Valley, not the city council, was the
final policymaker for the City’s police department when Hall allegedly applied excessive
force in arresting her. In support of this argument, Brinkley relies on S.S. ex rel. A.S. v.
Bono Police Dept., No. 3:07CV00124-WRW, 2008 WL 4493065 (E.D. Ark. Oct. 1,
In Bono Police Dept., the court held that “chiefs of police are under the direction
of a mayor with regard to policymaking” given that chiefs of police in cities of the first
class “‘shall execute all process directed to him by the mayor ...’” and “‘the duty of the
chief of police and other officers of the police department shall be under the direction of
the mayor.’” Id. at *3 (quoting Ark. Code Ann. §§ 14-52-202(a), 14-52-203(a) and
adding emphasis). Thus, based on its understanding of Ark. Code Ann. §§ 14-52-202(a),
14-52-203(a), the court found that the mayor of the City of Bono (a city of the first class)
has the final authority when official police policy is made. Id.
Likewise, in Williams v. City of Alexander, Ark., No. 4:12-cv-00187 KGB, 2013
WL 5970686, *10 (E.D. Ark. Nov. 08, 2013), a case not cited by the parties, the court
concluded that “a chief of police for a first class city ... is not a final policymaker under
Arkansas law because he is under the direction of a mayor, who has final authority when
official policy is made.” In so concluding, the court relied on Bono Police Dept. and Ark.
Code Ann. §§ 14-52-202(a), 14-52-203(a). Id.
The Court finds the reasoning of Bono Police Dept. and Williams regarding who
has final authority in a city of the first class when official police policy is made to be
unpersuasive. The statutes upon which those courts rely–Ark. Code Ann. §§ 14-52202(a), 14-52-203(a)–say nothing about any policymaking responsibilities of the mayor
concerning a city’s police department but only address the powers and duties of police
chiefs and police officers. Moreover, neither Bono Police Dept. nor Williams discuss or
acknowledge Ark. Code Ann. § 14-52-101 and its granting to the city council in a city of
the first and second class the power to prescribe a police department’s duties and define
its powers. Thus, any basis upon which Bono Police Dept. and Williams distinguished or
discounted the plain language of Ark. Code Ann. § 14-52-101 is not clear. For these
reasons, the Court disagrees with Bono Police Dept. and Williams that the mayor of a city
of the first (or second) class has final authority when official police policy is made and
instead determines that the authority to establish police department policy in such a city
generally resides with the city council under Ark. Code Ann. § 14-52-101. As Brinkley
does not claim that the city council for the City relinquished or delegated its
policymaking authority to the mayor of the City (indeed, she admits that the city council
adopted the police department’s Use of Force Policy), the Court finds that the city
council, not former Mayor Valley, had final policymaking authority for the City’s police
department. Cf. Breedlove v. City of Coal Hill, Civil No. 08-2018, 2009 WL 160301, *6
(W.D. Ark. Jan. 21, 2009) (finding that in light of Ark. Code Ann. § 14-52-101, it is
evident that under Arkansas law, chief of police of City of Coal Hill, a city of the second
class, did not have the requisite authority to establish police department policy through
his acts; rather, such authority resided with the city council and plaintiffs did not claim
that the city council relinquished or delegated its policymaking authority to chief of
police); Graves v. Sullivan, No. 4:06-cv-1710 SWW (E.D. Ark. May 21, 2008) (this
Court found that under Ark. Code Ann. § 14-52-101, the city council of DeValls Bluff, a
city of the second class, had the power to “prescribe [a police department’s] duties and
define its powers” and as plaintiff “[did] not claim that the city council relinquished or
delegated its policymaking authority to [police chief],” the police chief lacked authority
to set policy in question).
The Court now turns to the question of municipal liability. A plaintiff may
establish municipal liability under § 1983 by proving that his or her constitutional rights
were violated by an “action pursuant to official municipal policy” or misconduct so
pervasive among non-policymaking employees of the municipality “as to constitute a
‘custom or usage’ with the force of law.” Ware v. Jackson County, Mo., 150 F.3d 873,
880 (8th Cir. 1998) (quoting Monell v. Dept. of Social Serv., 436 U.S. 658, 691 (1978)).
“Official policy involves ‘a deliberate choice to follow a course of action * * * made from
among various alternatives’ by an official who [is determined by state law to have] the
final authority to establish governmental policy.” Id. (quoting Jane Doe A v. Special Sch.
Dist., 901 F.2d 642, 645 (8th Cir. 1990)). Alternatively, “custom or usage” is
demonstrated by: (1) the existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees; (2) deliberate
indifference to or tacit authorization of such conduct by the governmental entity’s
policymaking officials after notice to the officials of that misconduct; and (3) the
plaintiff’s injury by acts pursuant to the governmental entity’s custom, i.e., proof that the
custom was the moving force behind the constitutional violation. Id. (quoting Jane Doe
A, 901 F.2d at 646).
Brinkley does not argue that her constitutional rights were violated by an action
pursuant to official municipal policy but rather that her injuries resulted from a regular
pattern of unconstitutional misconduct. In her response to defendants’ motion for partial
summary judgment, Brinkley identifies two incidents in which a police officer for the
City allegedly applied excessive force to incapacitated African-American female
prisoners. She claims, based on the deposition testimony of Obera Manual, that a police
chief “assaulted” a hand-cuffed African-American female in 2006 and that a police
officer “body slammed” an African-American female in 2008. Brinkley further notes that
Manual stated she “saw other incidents of officers using force against people who were
handcuffed or not a threat before November 2008” and that Manual also stated “[i]t was a
regular pattern of the City of Helena-West Helena police department to brutalize African
The Court will assume for purposes of today’s decision that the two prior incidents
identified by Brinkley of African-American female prisoners allegedly being “assaulted”
and “body slammed” by police officers constitute unconstitutional misconduct. However,
Manual’s claims of seeing other incidents of officers using force against people who were
handcuffed or not a threat and that it was a regular pattern of the police department to
“brutalize African American women” are much too vague and conclusory to support
Brinkley’s argument concerning a regular pattern of unconstitutional conduct. Taken
together, Brinkley’s reference to two specific incidents and her reference to unspecific
incidents involving unnamed police officers simply are not sufficient to establish the
existence of a continuing, widespread, persistent pattern of unconstitutional misconduct.
Cf. Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996) (noting that “two specific prior
complaints ... and the various rumors that do not implicate a particular officer pale in
comparison to the type of prior complaints” that have been held to constitute a persistent
and widespread pattern of misconduct); Watkins, 159 F.3d at 1138 (two specific
complaints and various rumors about an officer were not sufficient to establish a policy or
custom of condoning unconstitutional conduct) (citing Andrews, 98 F.3d at 1076));
Jenkins v. County of Hennepin, Minn., 557 F.3d 628, 634 (8th Cir. 2009) (testimony from
nurse that she “perceived a variety of shortfalls” in Detention Center’s provision of
medical care was insufficient to establish the pervasive pattern of constitutional violations
required to sustain liability). Moreover, while Brinkley states that Manual “advised
Mayor Valley each time one of these incidents occurred [and filed an FBI report],” that
“Mayor Valley advised that he would look into it after the August 2008 incident,” and
that “Mayor Valley has a direct say so of what goes on in the police department,”
Brinkley has introduced no evidence whatsoever that the city council–the final
policymaker for the police department–was deliberately indifferent to or tacitly
authorized police misconduct after notice of that misconduct. Cf. Ware, 150 F.3d at 883
(finding there was sufficient notice that County had notice of sexual misconduct by
corrections officers at County Department of Corrections because the director of that
facility, a final policymaker, knew of corrections officers’ sexual misconduct and failed to
adequately discipline those officers).
For the foregoing reasons, the Court grants the motion of the City of Helena-West
Helena, Arkansas, Arnell Willis and James Valley, in their individual and official
capacities, and Mikel Hall, in his official capacity, for partial summary judgment
[doc.#77]. This action will proceed to trial solely against Mikel Hall in his individual
IT IS SO ORDERED this 21st day of August 2014.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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