Green v. Byrd

Filing 50

OPINION AND ORDER denying 38 Deandre Green's motion for partial summary judgment; and denying 44 Charles Byrd's motion for summary judgment. Signed by Judge J. Leon Holmes on 5/10/2018. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
DEANDRE GREEN
v.

PLAINTIFF
NO. 2:17CV00033 JLH

CHARLES BYRD, in his official capacity
as Police Officer of the City of Helena-West Helena

DEFENDANT

OPINION AND ORDER
Deandre Green was arrested by Charles Byrd, a Helena-West Helena police officer, on
June 28, 2013. He was jailed in a county facility for five months, before being released, uncharged,
on October 1, 2013. Green did not receive a first-appearance hearing within 72 hours of arrest. He
sued Byrd in his official capacity pursuant to 42 U.S.C. § 1983 for violation of the fourth
amendment as incorporated into the fourteenth amendment according to the Supreme Court of the
United States, as well as a parallel claim under the Arkansas Civil Rights Act for violations of the
Arkansas constitution.1 The claims are really claims against the City of Helena-West Helena. Green
now moves for partial summary judgment as to liability on his claims. The City cross moves for
summary judgment.
A court should enter summary judgment if the evidence, viewed in the light most favorable
to the nonmoving party, demonstrates that there is no genuine dispute as to any material fact and that
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986);
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine dispute

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Green had also asserted a sexual assault claim against Byrd in his individual and official capacities.
He later voluntarily moved to dismiss Byrd as a defendant in his individual capacity and to dismiss
the sexual assault claim again Byrd in his official capacity. Document #36. The Court granted that
motion and dismissed those claims without prejudice. Document #37.

of material fact exists only if the evidence is sufficient to allow a jury to return a verdict for the
nonmoving party. Anderson, 477 U.S. at 249, 106 S. Ct. at 2511.
The City first argues that Green’s claims are barred by Arkansas’s three-year statute of
limitations. Green says that the running of the statute was tolled under the rule set out in Am. Pipe
& Const. Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974). “Arkansas has adopted
the American Pipe rule.” Garner v. Butterball, LLC, No. 4:10CV01025 JLH, 2012 WL 570000, at
*7 (E.D. Ark. Feb. 22, 2012) (citing Blaylock v. Shearson Lehman Bros., Inc., 330 Ark. 620, 624,
954 S.W.2d 939, 941 (1997)). That rule provides that “commencement of a class action suspends
the applicable statute of limitations as to all asserted members of the class who would have been
parties had the suit been permitted to continue as a class action.” Am. Pipe, 414 U.S. at 554, 94 S.
Ct. at 766. The City has not responded to Green’s argument that the running of the statute tolled
under American Pipe, so the Court will assume that American Pipe applies.
Green’s claim would have been encompassed in the class action case of 2:15CV00095 before
Judge D.P. Marshall. Judge Marshall certified a class of “[a]ll those arrested in Phillips County,
Arkansas between 9 October 2012 and 10 November 2016 who did not receive a Rule 8 appearance
within seventy-two hours of arrest.” Thomas v. Byrd, No. 2:15CV00095 DPM (E.D. Ark. Nov. 10,
2015). Assuming that American Pipe applies, his claims are not barred by Arkansas’s statute of
limitations.
Green alleges that the City maintained an unconstitutional custom. The City argues that
Green has failed to offer any evidence that City policy was responsible for failing to get Green to
a first-appearance hearing. On the flip side, Green argues that there is no dispute that City actors
were responsible. Covington v. Wallace, No. 2:12CV00123 DPM, 2014 WL 5306791, at *1 (E.D.

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Ark. Oct. 15, 2014), was a class action alleging the same claims but covering a different time period
than when Green’s claim arose. As it did here, the City moved for summary judgment, arguing the
City was not liable. Judge Marshall rejected that argument and explained his reasons well:
Genuinely disputed material facts exist. The testimony of Judges King and Porter
makes plain their view that the City was either solely or jointly responsible with the
County for making sure that city arrestees got to court for a first appearance. The
City disputes this, of course, and that's an issue for trial. Covington is not asserting
claims against various City officials who were part of this machinery. His argument,
instead, is that various City hands were on the jail keys, just like County hands were.
A jury must decide where the truth is about the alleged will-call policy and the
County/City roles in all this.
Id. Green relies on the deposition testimony of Judges King and Porter as well. That testimony is
evidence that the City was involved but does not conclusively establish municipal liability under
Monell v. Dept. of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).
Deandre Green’s motion for partial summary judgment is DENIED. Document #38. Charles
Byrd’s motion for summary judgment is also DENIED. Document #44.
IT IS SO ORDERED this 10th day of May, 2018.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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