Ault v. Baker et al

Filing 23

OPINION AND ORDER denying defts' 13 MOTION to Set Aside Default; defts' 14 MOTION to Continue, Reschedule or Cancel Damages Hearing is denied in part and granted in part. Signed by Judge Kristine G. Baker on 3/27/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
STEVE AULT
v.

PLAINTIFF
Case No. 4:12-cv-00228-KGB

SAM BAKER, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY, AND
SHERIFF GERALD ROBINSON,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY

DEFENDANTS

OPINION AND ORDER
Plaintiff Steve Ault filed suit pursuant to 42 U.S.C. § 1983 and the Arkansas Civil Rights
Act, Ark. Code Ann. § 16-123-101 et seq., against defendants Lieutenant Sam Baker and Sheriff
Gerald Robinson in their individual and official capacities. Mr. Ault alleges violations of his
rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States
Constitution.
Before the Court are defendants’ motion to set aside default (Dkt. No. 13) and
defendants’ motion to continue, reschedule, or cancel damages hearing (Dkt. No. 14). On
November 8, 2012, the Court heard argument regarding the pending motions, and both motions
were taken under advisement. The Court is now prepared to make a ruling on those motions.
The Court finds that Lieutenant Baker and Sheriff Robinson are in default. Defendants’ motion
to set aside default is denied (Dkt. No. 13). Defendants’ motion to continue, reschedule, or
cancel damages hearing is denied in part and granted in part (Dkt. No. 14).
I.

PROCEDURAL BACKGROUND

On April 16, 2012, Mr. Ault filed his complaint (Dkt. No. 1). On May 2, 2012, and May
4, 2012, John McNeil, the process server acting on behalf of Action Process Service, served both
defendants. Mr. McNeil is also a deputy sheriff with the Jefferson County Sheriff’s Department

and was on duty at the time he served defendants (Dkt. No. 13). On May 16, 2012, Mr. Ault
filed two affidavits of service of summons and the complaint on separate defendants Lieutenant
Baker and Sheriff Robinson (Dkt. Nos. 4, 5). On June 21, 2012, Mr. Ault filed two motions for
default judgment against defendants (Dkt. Nos. 7, 8). On September 7, 2012, the Court entered
an Order referring the motions for default judgment to the Clerk of the Court for consideration
(Dkt. No. 7). On September 7, 2012, the Clerk entered default (Dkt. Nos. 10, 11).
On October 3, 2012, the Court set a hearing on the motions for default judgment for
November 8, 2012 (Dkt. No. 12). On October 18, 2012, defendants filed a motion to set aside
the default (Dkt. No. 13) and a motion to continue, reschedule, or cancel the damages hearing
(Dkt. No. 14). On October 31, 2012, the Court entered an Order stating it would not proceed to
the damages hearing originally scheduled for November 8, 2012, but instead, it would hear the
issues raised in defendants’ motions (Dkt. No. 17). After the hearing, defendants’ motions were
taken under advisement by the Court.
II.

DEFAULT JUDGMENT

A “default” occurs when a defendant fails to answer or respond to a complaint, and an
“entry of default” is what the clerk of the court enters when it is established that a defendant is in
default. Roberts v. Kevmar Capital Corp., No. 4:11cv00681 BRW, 2012 WL 1193133 (E.D.
Ark. April 10, 2012). The entry of default is a procedural step in obtaining a default judgment; it
is not determinative of any rights. Id. Pursuant to Federal Rule of Civil Procedure 8(b)(6), “[a]n
allegation – other than one relating to the amount of damages – is admitted if a responsive
pleading is required and the allegation is not denied.” However, Federal Rule of Civil Procedure
55(c) states a court “may set aside an entry of default for good cause.” The burden is on the
defendant to establish good cause. Stephenson v. El-Batawi, 524 F.3d 907, 914 (8th Cir. 2008).

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To determine whether there is “good cause” to set aside a default judgment, the Eighth Circuit
considers: “(1) whether the conduct of the defaulting party was blameworthy or culpable; (2)
whether the defaulting party had a meritorious defense; and (3) whether the other party would be
prejudiced if the default were excused.” Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 784
(8th Cir. 1998). See also Forsythe v. Hales, 255 F.3d 487, 490 (8th Cir. 2001); Winston v.
Evans, No. 5:08cv00204 JMM-HDY, 2009 WL 792466 (E.D. Ark. Mar. 23, 2009).
A.

Blameworthy or Culpable Conduct

The Court’s analysis of whether to set aside the default begins with consideration of
Lieutenant Baker’s culpability for failure to make a timely response to the complaint. See
Mackie v. U.S. Mfg., Inc., 219 F.R.D. 639, 641 (N.D. Iowa 2004) (beginning the analysis by
considering culpability). In Sullivan, the defendant delayed filing an answer to the complaint
even after being warned of the consequences. The defendant had received notice of a hearing
and a copy of the entry of default, yet he did not respond with a motion to set aside the default
for over three weeks. Sullivan & Associates, LLC v. Holladay, No. 3:09cv00079 JLH, 2010 WL
582790 (E.D. Ark. Feb. 16, 2010).

Judge Holmes determined that this failure to respond

constituted more than a “marginal failure” to meet the pleading requirements. Id. Judge Holmes
observed that “[t]he Eighth Circuit has rarely, if ever, excused ‘contumacious or intentional
delay or disregard for deadlines and procedural rules,’ but has often granted relief for ‘marginal
failures where there were meritorious defenses and an absence of prejudice.’” Sullivan, 2010
WL 582790, at *2 (quoting Johnson, 140 F.3d at 784).
Like the defendant in Sullivan, here Lieutenant Baker and Sheriff Robinson do not deny
receipt of the complaint, as it was served on them by a fellow officer, Deputy Sheriff McNeil. In
their motions to set aside, Lieutenant Baker states he did not understand the nature of the

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document he was handed and that he mistakenly believed that Mr. Ault filed a citizen’s
complaint against him. Sheriff Robinson claims he does not recall being handed any documents,
but he does not contest the affidavit filed by his deputy (Dkt. No. 13, ¶¶ 4, 5).
Lieutenant Baker and Sheriff Robinson received notice of the entry of default on
September 11, 2012. Lieutenant Baker and Sheriff Robinson claim this was the first time they
were fully aware that a lawsuit had been filed against them and that default had been entered.
(Id. ¶ 8). However, even after Lieutenant Baker and Sheriff Robinson received a copy of the
entry of default, they did not respond by filing a motion to set aside the default for over five
weeks. The Court entered its Order setting a hearing on October 3, 2012, yet Lieutenant Baker
and Sheriff Robinson waited until October 18, 2012, to file their motion to set aside the default
judgment. Based on these facts, Lieutenant Baker and Sheriff Robinson took over four months
to respond to the lawsuit, and they only did so by filing a motion to set aside. Lieutenant Baker
and Sheriff Robinson still have not filed an answer or attempted to respond to the allegations in
the complaint. The Court finds Lieutenant Baker’s and Sheriff Robinson’s culpability for failure
to respond constitutes more than a “marginal failure” to meet the pleading requirements.
B.

Meritorious Defense

A meritorious defense is one that would permit a finding for the defaulting party.
Sullivan, 2010 WL 582790, at *3 (citing Johnson, 140 F.3d at 785). Courts must consider
“whether there is some possibility that the outcome. . . after a full trial will be contrary to the
result achieved by the default.” Id. (citing Stephenson, 524 F.3d at 914). In order for the court to
set aside the entry of default, the court must have before it more than just mere allegations that a
defense exists, the defaulting party must show cause for why the entry should be set aside. Id.
“The underlying concern is. . . whether there is some possibility that the outcome. . . after a full
trial will be contrary to the result achieved by the default.” Stephenson, 524 F.3d at 914, (citing
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Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808, 812 (4th Cir.
1988) (per curiam) (quoting 10 Charles Alan Wright, Arthur R. Miller & Mary K. Kane, Federal
Practice and Procedure § 2697 (2d ed. 1983)). In Fink, the court determined that even though
defendants raised two affirmative defenses in their answer, “bald allegation[s]. . . without the
support of facts underlying the defense, will not sustain the burden of the defaulting party to
show cause [for] why the entry of default should be set aside; the trial court must have before it
more than mere allegations that a defense exists.” Fink v. Swisshelm, 182 F.R.D. 630, 633 (D.
Kan. 1998) (followed by Stephenson, 524 F.3d at 914). In Winston, Judge Moody applied “the
more lenient standard for setting aside a default” even though the defendant’s defenses were not
clear at the time. Winston, at *1. However, in both Fink and Winston, the defendants had at the
very least filed an answer, even though it was not timely filed, denying the plaintiff’s allegations.
Id.

To date, Lieutenant Baker and Sheriff Robinson have failed to file an answer to the

complaint and have failed to show cause as to why the entry of default should be set aside.
Moreover, Lieutenant Baker and Sheriff Robinson failed to present a meritorious defense.
In their motions to set aside, they contend that they wish to “present valid defenses to the claims
made by the Plaintiff in this suit” (Dkt. No. 13, ¶ 9), and that they “believe that upon a fair
hearing of the evidence that the Court would find in favor of Defendants and against Plaintiff
despite his allegations to the contrary” (Dkt. No. 13, ¶10).

These statements are simple

assertions unsupported by specific facts or evidence which do not give rise to a meritorious
defense. See Stephenson, 524 F.3d at 914. The Court finds that Lieutenant Baker and Sheriff
Robinson fail to meet the standard for establishing a meritorious defense.

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C.

Prejudice

The defendant has the burden of proving that the plaintiff would not be prejudiced if the
motion to set aside were granted. Sullivan, 2010 WL 582790, at *4. In Stephenson, the court
found that “delay alone, or the fact that the defaulting party would be permitted to defend on the
merits, are insufficient grounds to establish the requisite prejudice to the plaintiff.” Stephenson,
524 F.3d at 915 (citing Johnson, 140 F.3d at 785). For the court to set aside an entry of default,
that action must prejudice the plaintiff “in a more concrete way, such as ‘loss of evidence,
increased difficulties in discovery, or greater opportunities for fraud and collusion.’” Id. (quoting
Berthelsen v. Kane, 907 F.2d 617, 621 (6th Cir. 1990)(per curiam)).
Lieutenant Baker and Sheriff Robinson claim that Mr. Ault “would suffer no hardship or
prejudice as a result of a Court order allowing the Defendants to file and answer and defend the
allegations of Plaintiff’s Complaint, if in fact the allegations of Plaintiff’s Complaint are true and
valid” (Dkt. No. 13, ¶ 12). Lieutenant Baker and Sheriff Robinson offer no support for that
allegation. Mr. Ault claims he will suffer prejudice and hardship if the entry were to be set aside
because “such a delay would result in a more difficult and less reliable discovery process, due to
the passage of time and result this could have on the memories of eyewitnesses and those
involved” (Dkt. No. 19). Lieutenant Baker’s and Sheriff Robinson’s argument that Mr. Ault
“would suffer no hardship or prejudice” fails to demonstrate that Mr. Ault would not be
prejudiced by setting aside the entry of default.
After weighing all three factors, the Court elects not to set aside its entry of default as to
Lieutenant Baker and Sheriff Robinson.

They have failed to show that their conduct in

defaulting was not culpable, they did not present a meritorious defense, and they have failed to
meet their burden of showing that Mr. Ault would not be prejudiced in setting aside the default.

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III.

CAUSES OF ACTION

This Court construes comments of counsel at the hearing on default as raising the issue of
whether the claims as alleged by Mr. Ault fail to state claims upon which relief can be granted
and, therefore, should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Before moving to the issue of damages, this Court will analyze this issue.
“It is nearly axiomatic that when a default judgment is entered, facts alleged in the
complaint may not be later contested.” Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir. 2010)
(citing Murray v. Lene, 595 F.3d 868, 871 (8th Cir. 2010)). See also Thomson v. Wooster, 114
U.S. 104 (1885); see also Fed.R.Civ.P. 8(b)(6) (“An allegation – other than one relating to the
amount of damages – is admitted if a responsive pleading is required and the allegation is not
denied.”). However, “it remains for the [district] court to consider whether the unchallenged
facts constitute a legitimate cause of action, since a party in default does not admit mere
conclusions of law.” Id. (quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice and
Procedure § 2688 at 63 (3d ed. 1998)). In his complaint, Mr. Ault alleges that “[r]elief is
pursuant to 42 U.S.C.S. § 1983 and the Fourth and Eighth Amendments to the United States
Constitution” (Dkt. No. 1, ¶ 1). Later, Mr. Ault claims that Lieutenant Baker subjected Mr. Ault
to excessive force in violation of the “Fourth, Fifth, and/or Fourteenth Amendments to the
United States Constitution” (Dkt. No. 1, ¶ 14). Mr. Ault alleges that Lieutenant Baker was
deliberately indifferent to Mr. Ault’s “obvious and serious medical condition” in violation of the
“Fifth, Eighth, and/or Fourteenth Amendments to the United States Constitution” (Dkt. No. 1, ¶
15). Mr. Ault alleges that Sheriff Robinson caused deprivation of Mr. Ault’s constitutional
rights by failing to train adequately Lieutenant Baker (Dkt. No. 1, ¶ 16). Mr. Ault also requests
that this Court assume supplemental jurisdiction over his state law claims, arising under the

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Arkansas Civil Rights Act of 1993 (Dkt. No. 1, ¶ 1). Although Mr. Ault recites this, he makes
no specific claim under the Arkansas Civil Rights Act of 1993. He asserts only the following
three claims under federal and state constitutional law.
A.

Excessive Force

An “actual injury” must be shown to support an excessive force claim under the Fourth
Amendment. Hanig v. Lee, 415 F.3d. 822, 824 (8th Cir. 2005) (citing Dawkins v. Graham, 50
F.3d 532, 535 (8th Cir. 1995)). Courts should consider the objective need for applying force, the
relationship between the need and the degree of force used, the threat the officials reasonably
perceived and other efforts used to diminish the severity of a forceful response, and the extent of
the injury inflicted. Walker v. Bowersox, 526 F.3d 1186, 1188–89 (8th Cir. 2008)) (citing
Hudson v. McMillian, 503 U.S. 1, 7 (1992)). The use of force against the plaintiff must have
been necessary to further some legitimate institutional interest such as safety, security, or
efficiency. Thomas v. Byrd, No. 4:08cv03840 SWW/BD, 2009 WL 4546666 (E.D. Ark. Nov.
30, 2009). Furthermore, the force used must not have exceeded the degree to which a reasonable
officer would have believed necessary to achieve those goals. Id. (citing Johnson–El v.
Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989)). Force may be justified to make an inmate
comply with a lawful prison regulation or order, but only if the inmate's noncompliance also
poses a threat to other persons or to prison security. Id. (citing Treats v. Morgan, 308 F.3d 868,
875 (8th Cir. 2002)).
The right to be free from excessive force is included under the Fourth Amendment's
prohibition against unreasonable seizures of the person. Andrews v. Fuoss, 417 F.3d 813, 818
(8th Cir. 2005); Guite v. Wright, 147 F.3d 747, 750 (8th Cir.1998) (citing Graham v. Conner,
490 U.S. 386, 394 (1989)). A violation of that right will support a § 1983 action, but not every

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push or shove by an officer violates the Fourth Amendment. Id. Rather, an officer's use of force
is not excessive under the Fourth Amendment if it was “objectively reasonable under the
particular circumstances.” Id. Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994).
“‘The calculus of reasonableness must embody allowance for the fact that police officers are
often forced to make split-second judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary in a particular situation.’” Id.
(quoting Graham, 490 U.S. at 396–97).
Mr. Ault claims that Lieutenant Baker used excessive force against him. Mr. Ault claims
that, when he arrived at the holding cell, he stood with both arms out in complete submission.
During this time, Mr. Ault and Lieutenant Baker exchanged verbal insults. Lieutenant Baker
grabbed Mr. Ault by the throat and slammed him against the concrete wall approximately five
feet behind Mr. Ault. Mr. Ault claims the back and possibly right side of his head hit first.
Lieutenant Baker never removed his hand from Mr. Ault’s throat. He slammed Mr. Ault up
against the wall once more, and Mr. Ault claims his head received the brunt of the second
impact. During this time, Mr. Ault kept his hands stretched out in complete submission.
Lieutenant Baker then began to move Mr. Ault by his throat guiding him toward the holding cell.
Lieutenant Baker then pushed Mr. Ault, by pushing on his throat. Mr. Ault’s body hit the side
door as he was thrown in and fell to the floor. Mr. Ault immediately felt pain in his right ear, as
well as hearing loss. Mr. Ault asked Lieutenant Baker for medical assistance, but Lieutenant
Baker denied his request, even though there was a nurse on duty that night in the jail. A couple
of hours later Mr. Baker, “apparently unhappy with something [Mr.] Ault had said from behind
his cell door, opened [Mr.] Ault’s cell door and sprayed mace in [Mr.] Ault’s face.” (Dkt. No. 1,
¶ 9).

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Mr. Ault went to the emergency that afternoon and was diagnosed as having suffered a
ruptured eardrum in his right ear. (Dkt. No. 1, ¶ 11). The medical records indicate that Mr. Ault
suffered from “Tympanic Membrane Central Perforation.” Mr. Ault claims he continues to
experience bouts of pain and diminished hearing in his right ear. (Dkt. No. 1, ¶ 12).
Based on these factual allegations, the Court finds that Mr. Ault has stated a claim for
which relief can be granted. The Court finds that, based on the facts alleged in Mr. Ault’s
complaint, the level of forced used by Lieutenant Baker was not necessary to further some
legitimate institutional interest such as safety, security, or efficiency and that use of excessive
force resulted in injury in fact to Mr Ault.
B.

Serious Medical Needs

Mr. Ault brings this suit against Lieutenant Baker alleging that he was deliberately
indifferent to Mr. Ault’s serious medical needs in violation of the Fifth, Eighth, and/or
Fourteenth Amendment to the United States Constitution and in violation of Article 2, §2, §8,
and/or §9 of the Arkansas Constitution (Dkt. No. 1, ¶¶ 15, 19).
To support a claim for an Eighth Amendment violation, Mr. Ault must prove that
Lieutenant Baker was deliberately indifferent to a serious medical need. Farmer v. Brennan, 511
U.S. 825, 834 (1994). However, even negligence in diagnosing or treating a medical condition
does not constitute a claim of deliberate indifference. Estelle v. Gamble, 429 U.S. 97, 105-06
(1976).

Rather, the “prisoner must show more than negligence, more even than gross

negligence, and mere disagreement with treatment decisions does not rise to the level of a
constitutional violation.” Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995). See
also Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir. 1990) (holding that a mere disagreement
with a course of medical treatment is insufficient to state a claim for relief under the Eighth

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Amendment). In addition, an inmate who complains that a delay in medical treatment constitutes
a constitutional violation must provide “verifying medical evidence” in the record to establish
the detrimental effect of the delay, in order to succeed on his claim. Beyerbach v. Sears, 49 F.3d
1324, 1326 (8th Cir. 1995) (overruled in part on other grounds) (examining this requirement at
the summary judgment stage of the proceeding).
Mr. Ault alleges in his complaint that Lieutenant Baker was deliberately indifferent to his
serious medical needs when he felt intense pain in his right ear, as well as hearing loss, after
being shoved up against the wall twice and then shoved into the holding cell where his body
collided with the side of the cell door as he was thrown in by Lieutenant Baker. Mr. Ault alleges
that Lieutenant Baker refused Mr. Ault’s request for medical assistance even though there was a
nurse on duty that night (Dkt. No. 1, ¶ 8).
Based on these factual allegations, the Court finds that Mr. Ault has failed to state a claim
upon which relief can be granted against Lieutenant Baker for deliberate indifference to his
serious medical needs. Mr. Ault makes no allegation that the alleged delay in treatment had a
detrimental effect. He provides no “verifying medical evidence” to establish the detrimental
effect of the delay. Mr. Ault does not allege more than negligence and mere disagreement with
treatment decisions and, therefore, is unable to state a claim for relief.
The Court acknowledges that Mr. Ault alleges that he went to the emergency room later
that afternoon and was diagnosed as having suffered a ruptured eardrum in his right ear (Dkt. No.
1, ¶ 11). He also alleges that medical records from Jefferson Regional Medical Center indicate
that Mr. Ault suffered a ruptured eardrum (Dkt. No. 1, ¶ 11). Mr. Ault does not allege, however,
a detrimental effect of the delay of treatment. He also presents no “verifying medical evidence”
to establish a detrimental effect, if such is required at this stage.

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For these reasons, the Court finds that Mr. Ault’s claims against Lieutenant Baker
alleging that Lieutenant Baker was deliberately indifferent to Mr. Ault’s serious medical needs in
violation of the Fifth, Eighth, and/or Fourteenth Amendments to the United States Constitution
and in violation of Article 2, §2, §8, and/or §9 of the Arkansas Constitution are dismissed
without prejudice.
C.

Failure to Train Adequately

Mr. Ault alleges that he was deprived of his constitutional rights due to Sheriff Gerald
Robinson’s failure to train adequately Lieutenant Baker. He further alleges that such inadequate
training and deficient training policies amount to deliberate indifference to the rights of persons
who come in contact with officers and jailers at the Dub Brassell Detention Center and constitute
deliberate indifference to the high risk of violation of the particular constitutional rights suffered
by Mr. Ault (Dkt. No. 1, ¶¶16, 20).
Here, Mr. Ault names Lieutenant Baker and Sheriff Robinson in their official capacities.
A suit against a municipal official in his official capacity is considered a suit against the
municipality itself. Brandon v. Holt, 469 U.S. 464, 471-72 (1985). In Monell v. Department of
Social Services, the Supreme Court held that a municipality is subject to liability under § 1983
only when “the action that is alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s
officers.” 436 U.S. 658, 690 (1978). The Court explained that “although the touchstone of the §
1983 action against a government body is an allegation that official policy is responsible for a
deprivation of rights protected by the Constitution, local governments, like every other § 1983
person, by the very terms of the statute, may be sued for constitutional deprivations visited
pursuant to governmental custom even though such a custom has not received formal approval

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through the body’s official decisionmaking channels.” Id. at 690-91. A plaintiff must include
allegations, references, or language by which one could infer the conduct alleged resulted from
an unconstitutional policy or custom. Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d
588, 591 (8th Cir. 2004) (citing Doe v. Sch. Dist. of City of Norfolk, 340 F.3d 605, 614 (8th Cir.
2003)).
The Eighth Circuit has “observed an important distinction between claims based on
official policies and claims based on customs. Because an official policy speaks for itself about
the intent of public officials, proof of a single act by a policymaker may be sufficient to support
liability.” Jenkins v. County of Hennepin, Minn., 557 F.3d 628, 633 (8th Cir. 2009). “In contrast
to the evidence required to establish an official policy, we have emphasized that a custom can be
shown only by adducing evidence of a ‘continuing, widespread, persistent pattern of
unconstitutional misconduct.’” Id. at 634 (quoting Mettler v. Whitledge, 165 F.3d 1197, 1204
(8th Cir. 1999)). See also Crawford v. Van Buren Cnty., Ark., 678 F.3d 666, 669 (8th Cir. 2012)
(same). A policy is a deliberate choice to follow a course of action made from among various
alternatives by the official or officials responsible under state law for establishing final policy
with respect to the subject matter in question. Russell v. Hennepin County, 420 F.3d 841, 847
(8th Cir. 2005) (internal quotations omitted). On the other hand, “[a] municipal custom is a
practice of municipal officials that is not authorized by written law, but which is so permanent
and well-settled as to have the force of law.” Id. “Inaction or laxness can constitute government
custom if it is permanent and well settled” and provided it is the moving force behind the
constitutional violation. Tilson v. Forrest City Police Department, 28 F.3d 802, 807 (8th Cir.
1994) (citing Monell, 426 U.S. at 691)).

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Mr. Ault alleges in his complaint that Sheriff Robinson “has final policymaking authority
for the Dub Brassell Detention Center, and he is responsible for training all jailers and officers
employed with the Dub Brassell Detention Center and for hiring/firing all jailers and officers
employed with the Detention Center” (Dkt. No. 1, ¶ 5).
To the extent Mr. Ault intends to assert a claim against Sheriff Robinson in his official
capacity for failure to monitor or supervise, this Court determines such a claim must be
dismissed without prejudice based on the facts alleged. There is no allegation that Lieutenant
Baker has ever been accused of using excessive force before or that Sheriff Robinson had any
idea that Lieutenant Baker would engage in the conduct he is alleged to have engaged in here.
There is no evidence presented that Sheriff Robinson had knowledge of prior incidents of alleged
excessive force and failed to take action. To establish a county’s liability based on its failure to
prevent misconduct by employees, Mr. Ault must show that county officials had knowledge of
prior incidents of misconduct and deliberately failed to take remedial action. Harden ex. Rel
Estate of Travis v. St. Louis County, No. 404cv602CEJ, 2005 WL 1661505 (E.D. Mo. July 5,
2005).
Mr. Ault’s primary claim is a failure-to-train claim. To establish a failure-to-train claim,
a plaintiff must prove that: (1) the municipality’s training practices were inadequate; (2) the
municipality was deliberately indifferent to the rights of others in adopting the procedures, such
that the municipality’s failure to train reflects its deliberate or conscious choice; and (3) the
alleged deficiency in training practices actually caused the plaintiff’s injury. Parrish v. Ball, 594
F.3d 993, 997 (8th Cir. 2010). Causation generally is a question of fact, unless the question is so
free from doubt as to justify taking it from the fact finder. Id. at 1000.

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A plaintiff must show the municipality had notice. A plaintiff must show “that in light of
the duties assigned to specific officers or employees the need for more or different training is so
obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately indifferent to the
need.” City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989). Although Canton leaves open
the possibility of single-incident liability, a pattern of similar constitutional violations by
untrained employees is “ordinarily necessary” to demonstrate deliberate indifference for
purposes of failure to train. Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 409
(1997). This is so because “[p]olicymakers’ ‘continued adherence to an approach that they know
or should know has failed to prevent tortious conduct by employees may establish the conscious
disregard for the consequences of their action – the ‘deliberate indifference’ – necessary to
trigger municipal liability.’” Connick v. Thompson, __ U.S. __, 131 S. Ct. 1350, 1360 (2011)
(quoting Bryan Cty., 520 U.S. at 407). “Without notice that a course of training is deficient in a
particular respect, decisionmakers can hardly be said to have deliberately chosen a training
program that will cause violations of constitutional rights.” Id.
At the hearing on the motion for default, counsel for Lieutenant Baker and Sherriff
Robinson suggested that Connick v. Thompson stands for the proposition that local government
liability for failure to train cannot be based on a single incident. The Supreme Court in Connick
held that a prosecutor’s Brady violation “does not fall within the narrow range of single-incident
liability hypothesized in Canton as a possible exception to the pattern of violations necessary to
prove deliberate indifference in § 1983 actions alleging failure to train.” Connick, 131 S. Ct. at
1366. The Court is not persuaded that Connick eviscerates all § 1983 claims based on a singleincident theory of liability. Indeed, the Supreme Court explicitly confined its holding in Connick

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as follows:

“Canton’s hypothesized single-incident liability does not, as a legal matter,

encompass failure to train prosecutors in the Brady obligation.” Id. at 1364. Because the Court
is unaware of any controlling caselaw that reads Connick as broadly as defendants urge this
Court to read it, the Court is not persuaded by defendants’ argument that local government
liability for failure to train cannot be based on a single incident.
This Court concludes that, even after the Connick decision, plaintiffs in a narrow range of
circumstances can rely on a “single-incident” theory that the constitutional violation was the
“obvious” consequence of inadequate training to demonstrate a municipality’s “deliberate
indifference” for purposes of a failure-to-train claim. To state a claim for failure to train rising to
the level of deliberate indifference, Mr. Ault must allege that defendants were on notice that,
absent additional specified training, it was “highly predictable” that officers would be confronted
by situations the training was intended to address and would make incorrect decisions. Id. at
1365. In fact, Mr. Ault likely needs to allege that it was so predictable that failing to train
officers amounted to conscious disregard for Mr. Ault’s rights. Id.
The Court in Connick rejected the single-incident theory in that case in part because it
involved an alleged Brady violation by prosecutors. The Court explained that: “[t]he reason
why the Canton hypothetical [of single-incident] liability is inapplicable is that attorneys, unlike
police officers, are equipped with the tools to find, interpret, and apply legal principles.” Id. at
1364. This case deals with officers, not a lawyer.
The Court in Connick also noted that, unlike the single-incident example in Canton which
assumed no knowledge at all of the constitutional limits at issue, there was a level of knowledge
in Connick just not training about the particular scenario that related to the alleged violation in
the case. The Court determined “[t]hat sort of nuance simply cannot support an inference of

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deliberate indifference here. . . . [F]ailure-to-train liability is concerned with the substance of the
training, not the particular instructional format. The statute does not provide plaintiffs or courts
carte blanche to micromanage local governments throughout the United States.” Id. at 1363. In
other words, the narrow range of circumstances where a single-incident theory applies generally
involves incidents arising from a total lack of training, not simply an assertion that a municipal
employee was not trained about “the specific scenario related to the violation.” Id. at 1363-64.
Mr. Ault alleges that Sheriff Gerald Robinson failed to adequately train Lieutenant
Baker and that inadequate training and deficient training policies amounts to deliberate
indifference to the rights of persons who come into contact with officer and jailers at the Dub
Brassell Detention Center and deliberate indifference to the high risk of violation of the
particular constitutional rights suffered by Mr. Ault (Dkt. No. 1, ¶ 16).
Here, Mr. Ault does not allege notice on the part of Sheriff Robinson. There is no
allegation that Lieutenant Baker has ever been accused of using excessive force before or that
Sheriff Robinson had any idea that Lieutenant Baker would engage in the conduct he is alleged
to have engaged in here. To state a claim for failure to train rising to the level of deliberate
indifference, Mr. Ault must allege that defendants were on notice that, absent additional
specified training, it was “highly predictable” that officers would be confronted by situations the
training was intended to address and would make incorrect decisions. Connick, 131 S. Ct. at
1366. Mr. Ault has failed to demonstrate any notice on the part of Sheriff Robinson. Without
notice, Mr. Ault cannot allege that it was so predictable that failing to train officers amounted to
conscious disregard for Mr. Ault’s rights. Id.
For these reasons, the Court finds that Mr. Ault’s claims against Sheriff Robinson
alleging that Sheriff Robinson failed to train adequately Lieutenant Baker and that inadequate

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training and deficient policies amounts to deliberate indifference to the rights of persons who
come into contact with officers and jailers at the detention center and deliberate indifference to
the high risk of violation of the particular constitutional rights suffered by Mr. Ault are dismissed
without prejudice.
III.

JURY TRIAL

Also before the Court is defendants’ motion to continue, reschedule, or cancel the
damages hearing (Dkt. No. 14). Defendants pray that, if they are not given the opportunity to
defend themselves against liability, they at least be able to defend themselves against the
assessment of damages. Defendants also request time to prepare a defense, conduct discovery,
subpoena witnesses, and prepare for an assessment of damages. “Defendants believe Rule 55(b)
will allow for a jury trial on damages even if the entry of default is not set aside.” (Dkt. No. 14,
¶4).
Rule 55 (b)(2) of the Federal Rules of Civil Procedure states that the court may conduct
hearings or make referrals -- preserving any federal statutory right to a jury trial -- when, to enter
or effectuate judgment, it needs to: conduct an accounting, determine the amount of damages,
establish the truth of any allegation by evidence, or investigate any other matter.
Mr. Ault requested a jury trial in his complaint (Dkt. No. 1, ¶23). Federal Rule of Civil
Procedure 38(d) states that a proper demand may be withdrawn only if the parties consent.
“Several cases have held that the protection of Rule 38(d) is extended to the defendant after the
entry of default, when Rule 55(b)(2) requires a determination of damages.”

Kormes v. Weis,

Voisin & Co., Inc., 61 F.R.D. 608, 610 (E.D. Pa. 1974); Bass v. Hoagland, 172 F.2d 205 (5th
Cir. 1949). See also Barber v. Turberville, 218 F.2d 34, 47 (D.C. Cir. 1954) (determining that,
when plaintiff demands a jury trial and subsequently has a default entered, “it is the better

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practice, if not actually compelled, that the issue as to damages be submitted to the jury”). The
Third Circuit has addressed this issue:
While the provisions of Rules 38 and 39, Federal Rules of Civil Procedure,
concerning notice and consent in connection with requests for and waivers of jury
trial are not expressly made applicable to default situations in which the issue of
damages must be tried, we think the requirements of notice and consent stated in
those rules should in fairness and logic be applied to cases of the present type. For
even one who fails to contest liability on an unliquidated claim has a vital interest
in the subsequent determination of damages and is entitled to be heard on that
matter.
Kormes, 61 F.R.D. at 610 (quoting Hutton v. Fisher, 359 F.2d 913, 916 (3d Cir. 1966)).
In Kormes, the court determined it would “‘in fairness and logic’ apply the consent
requirement of Rule 38(d) to the default situation of Rule 55(b)(2), and [would] in the exercise of
[its] discretion grant a jury trial to defendant. . . limited to the issue of damages.” Id. The
defendant in Kormes never consented to the withdrawal of the jury demand by the plaintiff. In
this case, defendants have not consented to the withdrawal of the jury demand by Mr. Ault.
Therefore, the Court will exercise its discretion and grant a jury trial to defendants (Dkt. No. 14).
The jury trial will be limited to the issue of damages arising from Mr. Ault’s excessive force
claim.
IV.

CONCLUSION

Defendants’ motion to set aside default is hereby denied (Dkt. No. 13). Defendants’
motion to continue, reschedule, or cancel damages hearing is denied in part and granted in part
(Dkt. No. 14). Mr. Ault’s claims against Lieutenant Baker alleging that he was deliberately
indifferent to Mr. Ault’s serious medical needs in violation of the Fifth, Eighth, and/ or
Fourteenth Amendments to the United States Constitution and in violation of Article 2, §2, §8,
and/or §9 of the Arkansas Constitution are dismissed without prejudice. Mr. Ault’s claim against
Sheriff Robinson in his official capacity for failure to monitor or supervise is dismissed without
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prejudice. Mr. Ault’s claim against Sheriff Robinson for failure to train is dismissed without
prejudice. Defendants’ request for a jury trial on damages is granted solely as to the damages
arising from Mr. Ault’s excessive force claim (Dkt. No. 14)
SO ORDERED this the 27th day of March, 2013.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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