Elliott v. Osceola Arkansas, City of

Filing 56

ORDER granting 42 Motion for Summary Judgment. Cross-motion, 46 , denied. Signed by Judge D. P. Marshall Jr. on 8/20/2015. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
GLAND ELLIOTT
v.

PLAINTIFF
No. 3:13-cv-251-DPM

CHRISTOPHER ELLIS

DEFENDANT

ORDER
1. After this Court screened Gland Elliott's amended complaint and
supplement, NQ 14,* Elliott filed an" Addendum Complaint" about a March
2014 arrest. NQ 24. The Court must screen this addendum too. 28 U.S.C. §
1915A. As supplemented, Elliott's complaint states Fourth Amendment
claims for unlawful arrest on two occasions: February 2013 and March 2014.
Elliott also states a claim that the March 2014 arrest was retaliation for filing
this lawsuit. The remainder of Elliott's pleadings fail to state a claim and will
be dismissed without prejudice.
2.

Osceola police sergeant Christopher Ellis moves for summary

judgment on Elliott's unlawful arrest and retaliation claims. NQ 42. These

*The Court's screening Order dismissed Elliott's claims related to "his
August 2013 arrest[.]" NQ 14 at 1. To clarify, the formal charges were filed
in August of 2013. NQ 13 at 2. But the alleged offense occurred in late July
of that year. Ibid.

claims fail if Ellis had at least arguable probable cause for each arrest.
Greenman v. Jessen, 787 F.3d 882, 891 (8th Cir. 2015); Chevallier v. Hand, 722

F.3d 1101, 1104 (8th Cir. 2013). He did. An eyewitness identification and
Sergeant Ellis's review of surveillance video provided probable cause for the
February 2013 arrest. And officers' locating a substance that field-tested
positive for cocaine gave probable cause for the March 2014 arrest. Further,
the Court sees no constitutional violation in the search of Elliott's home
because he was on probation. ARK. CODE ANN.§ 16-93-106. And to the extent
Elliott contests his pre-search detention, Sergeant Ellis is entitled to qualified
immunity. Klingler v. United States, 409 F.2d 299, 303 (8th Cir. 1969).
Elliott's conclusory responses, Ng 46-Ng 49 & NQ 54-55, don't create a
genuine jury issue. FED. R. Crv. P. 56(a), (c)(1) & (e); Anderson v. Liberty Lobby,
477 U.S. 242, 248-49 (1986). Sergeant Ellis is therefore entitled to summary
judgment on Elliott's wrongful-arrest and retaliation claims. Those claims
will be dismissed with prejudice.
3. A final clarification. This Court's 13 June 2014 Order stated that
Elliott's claims against the City of Osceola would be dismissed with prejudice.
Because the dismissal is for failure to state a claim, however, the Court

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concludes that Elliott's claims against the City should be dismissed without
prejudice. Cf Larson v. Stow, 36 F.3d 1100 (8th Cir. 1994) (per curiam).

***
Motion for summary judgment, Ng 42, granted. Cross-motion, Ng 46,
denied.
So Ordered.

D.P. Marshall Jf
United States District Judge

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