Harris v. Little Rock Arkansas, City of et al

Filing 59

ORDER granting 51 deft's Motion for Summary Judgment; denying 57 pltf's Motion for Summary Judgment and dismissing the case with prejudice. Signed by Chief Judge J. Leon Holmes on 2/23/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
EDDY S. HARRIS, SR.
v.

PLAINTIFF
No. 4:11CV00231 JLH

CITY OF LITTLE ROCK, ARKANSAS

DEFENDANT

OPINION AND ORDER
Eddy S. Harris, Sr., filed a pro se complaint against the City of Little Rock, Arkansas, the
Pulaski County Sheriff’s Department, the Arkansas Department of Motor Vehicles, and Blue Hill
Wrecker Services, Inc. Document #2. In an amended complaint, he added Isaac Cornetti, a/k/a
“Dash Dangerfield,” Slammer, and Steve Thomas, Public Defender, as defendants. Document #7.
Subsequently, a number of the defendants moved to dismiss the complaint. Documents #9, #15,
#24, #27. The City moved for partial dismissal. Document #32. Harris moved to file a second
amended complaint. Document #31. The Court granted the motions to dismiss, including the City’s
motion for partial dismissal, but denied Harris’s motion to file an amended complaint on the grounds
that the proposed amendment would be futile. Document #37.
Presently, the City is the only remaining defendant. Harris’s remaining claims are for
alleged deprivations of his civil rights in violation of the Fourth Amendment, Fifth Amendment,
Eighth Amendment, and “Common Law rights to personal freedoms.”1 The City has moved for
summary judgment. Document #51. Because Harris failed to file a timely response, the Court

1

The Court was unable to find any case law referencing “common law rights to personal
freedoms.” But see Kneedler v. Lane, 45 Pa. 238, 1863 WL 4874, at *19 (1863) (referencing
suspension during war of militia member’s “common law rights of personal freedom”). To the
extent this claim is not coterminous with Harris’s constitutional claims, it must be dismissed because
a plaintiff cannot create a cause of action ex nihilo and Harris has not identified any authority
recognizing this claim.

entered an order directing Harris to respond. Document #55. Harris has filed two documents
entitled “Motion for Summary Judgement” and “Statement of Undisputed Material Facts.”
Documents #57, #58. The Court will construe these documents as responsive to the City’s motion.
For the following reasons, the motion for summary judgment is granted.
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 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.
Harris’s remaining claims arise out of three alleged traffic stops. On June 2, 2010, Harris
was stopped by Little Rock police officers and charged with two traffic violations. He was
subsequently found guilty of both charges by the Traffic Division of the Little Rock District Court.
Document #51-2. Harris alleges that he was stopped on February 26, 2011, by Little Rock police
officers and issued a citation for driving on a suspended license and a non-functioning tail light.
Counsel for the City asserts that Harris never responded to discovery requests regarding this traffic
stop and that the City has no record of this stop. Finally, Harris alleges that on March 3, 2011,
officers stopped a vehicle being driven by his son, wherein Harris was a passenger, because one of
the rear lights was out. Harris alleges that he was treated as if he had robbed a bank, that five police
vehicles were present, that the officers made him keep his hands in the same position while the
vehicle was searched, and that the officers took some property. Further, Harris alleges that he was

2

removed from the vehicle, bound, and placed in the back of a police vehicle.
The City offers the affidavit of Stuart Thomas, the Chief of the Little Rock Police
Department (“LRPD”). Document #51-1. Thomas testified that he has worked for the LRPD since
1978 and has been Chief since 2005. Thomas testified that only the City Board of Directors and the
Chief of Police can promulgate police policy. After laying out the various categories into which
LRPD guidelines fall, Thomas testified that there is no policy or general order which requires or
permits officers to unlawfully or unconstitutionally search or seize any person or thing. Thomas
testified that he would never sanction, approve or adopt such a policy. He testified that all orders
and guidelines are sanctioned by the Chief and adhere to state law, federal law, and case law as well
as constitutional requirements. Specifically, official policy conforms to all laws and procedural
requirements relating to traffic stops, searches, and seizures. Thomas testified that officers in the
LRPD receive rigorous training and are subjected to a thorough background investigation. Thomas
testified about the merits and nature of the training and noted that it greatly exceeds the requirement
of 280 hours imposed by the State of Arkansas Commission on Law Enforcement Standards and
Training. Id. Harris offers no evidence tending to contradict Thomas’s affidavit.
Harris invokes 42 U.S.C. §§ 1983 and 1985.2 It is well-settled that municipalities “can be
sued directly under § 1983 for monetary, declaratory, or injunctive relief[.] Monell v. Dept. of Soc.

2

The first two subsections of section 1985, which pertain to conspiracies to interfere with
an official’s attempt to perform his duties and to obstruct justice, are irrelevant to the instant action.
Subsection 1985(3), which grants a cause of action to a victim of a conspiracy to deprive persons
of rights or privileges, only applies where there is “some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators’ action.” Griffin v. Breckenridge, 403
U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971). Because Harris makes no allegations
that he was a victim of a conspiracy arising from racial or other invidious discrimination, he cannot
bring his constitutional claims through subsection 1985(3).
3

Servs. of City of N.Y., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611 (1978).
However, as the Eighth Circuit has explained,
A governmental entity cannot be held vicariously liable for its agent’s acts under §
1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed.
2d 611 (1978). Rather, a plaintiff must identify a governmental “policy or custom
that caused the plaintiff’s injury” to recover from a governmental entity under §
1983. Bd. of the County Comm’rs v. Brown, 520 U.S. 397, 403, 117 S. Ct. 1382, 137
L. Ed. 2d 626 (1997) (citations and quotations omitted). A governmental policy
“involves a deliberate choice to follow a course of action . . . made from among
various alternatives by an official who has the final authority to establish
governmental policy.” Doe v. Special Sch. Dist., 901 F.2d 642, 645 (8th Cir. 1990)
(quotations and citations omitted). A governmental custom involves “a pattern of
‘persistent and widespread’ . . . practices which bec[o]me so ‘permanent and well
settled’ as to have the effect and force of law.” Id. at 646 (quoting Monell, 436 U.S.
at 691, 98 S. Ct. 2018). “This circuit has consistently recognized a general rule that,
in order for municipal liability to attach, individual liability first must be found on
an underlying substantive claim.” McCoy v. City of Monticello, 411 F.3d 920, 922
(8th Cir. 2005).
Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 674 (8th Cir. 2007).
In the instant case, even if Harris’s allegations about the first two traffic stops are true,
nothing about the officers conduct in either case, as described by Harris, is unconstitutional. For
example, Harris has not alleged that the officers used excessive force against him or stopped him
on account of his race or for some other unjustifiable reason. In fact, Harris has even identified an
appropriate justification for the second stop—one of his rear lights was not working.3 Since Harris
has failed to allege facts, vis-a-vis his first two stops, which would establish liability on the part of
the individual officers for any substantive constitutional violation, no municipal liability pursuant
to section 1983 can attach to the City.
Even assuming that Harris’s allegations tend to establish a constitutional violation on the part

3

Harris contends, without supporting authority, that Arkansas law only requires one rear
light to be working. Harris is mistaken. See Ark. Code Ann. § 27-36-216.
4

of the officers with respect to the third stop—a questionable premise at best—Harris has failed to
offer evidence tending to establish that any such violation was the result of an unconstitutional
municipal policy or custom. Thomas testified that the LRPD has no official policy encouraging or
permitting unconstitutional conduct on the part of officers. Rather, official policy explicitly
prohibits such conduct, and officers receive extensive training to guarantee that they are familiar
with official policy. Further, Thomas testified that there is no informal custom sanctioning
unconstitutional conduct on the part of officers. Harris offers no evidence tending to undermine this
testimony. In his complaint, Harris does allege that the stops were the result of a policy, practice,
custom, or procedure on the part of the LRPD of failing to train and supervise police officers to
avoid unlawful and unconstitutional arrests and of being deliberately indifferent to such unlawful
arrests. However, Harris offers no evidence to substantiate this claim. Harris has not identified any
specific official policy permitting officers to engage in unconstitutional conduct. Although Harris
does allege that the LRPD has a policy of failing to sufficiently train officers, that allegation is
contradicted by Thomas’s unrebutted testimony regarding officer training.4 Nor has Harris pointed
to evidence tending to establish a pattern of persistent and widespread practices which have become
so permanent and well settled as to have the effect and force of law. Even if Harris could prove that
the third stop involved a constitutional violation, no reasonable jury could find that the City had a
custom encouraging unconstitutional traffic stops and arrests. See Mettler v. Whitledge, 165 F.3d
1197, 1204 (8th Cir. 1999) (“A single incident normally does not suffice to prove the existence of

4

Harris also alleges that the City does not properly supervise its officers. However, as stated
above, a municipality may not be held vicariously liable pursuant to section 1983.
5

a municipal custom.”). In light of Thomas’s unrebutted testimony about the City’s policies and
customs, summary judgment in Little Rock’s favor is warranted.5
CONCLUSION
For the foregoing reasons, the City of Little Rock’s motion for summary judgment is
GRANTED. Document #51. Harris’s claims are dismissed with prejudice. To the extent it can be
construed as an independent motion, Harris’s “Motion for Summary Judgement” is without merit
and is DENIED. Document #57.
IT IS SO ORDERED this 23rd day of February, 2012.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

5

Harris’s failure to offer evidence of a municipal policy or custom giving rise to alleged
unconstitutional conduct by Little Rock police officers defeats not only his Fourth Amendment
claim but also his Fifth and Eighth Amendments claims. Furthermore, Harris has failed to offer any
explanation about how the officers allegedly violated his Fifth Amendment rights. The Court will
not speculate about what Harris might have left out of his complaint that, if included, would state
a claim for a violation of the Fifth Amendment. Similarly, it is doubtful whether any of Harris’s
allegations about the traffic stops implicate the Eighth Amendment, which protects against cruel and
unusual punishment, excessive bail, and excessive fines.
6