Guest v. Shell

Filing 19

OPINION AND ORDER re 10 MOTION for Summary Judgment filed by Bobby Shell, all of the section 1983 claims asserted by pltf against deft are dismissed with prejudice; because the Court declines to exercise supplemental jurisdiction over pltf's state-law claims against deft, this action is remanded to the Circuit Court of Saline County, Arkansas, whence Shell removed it. Signed by Judge J. Leon Holmes on 3/14/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
KEISHA FISHER GUEST
v.

PLAINTIFF
No. 4:12CV00336 JLH

BOBBY SHELL, Individually and in his
Official Capacity as a Benton Police Officer

DEFENDANT

OPINION AND ORDER
This action stems from the arrest of Keisha Fisher Guest by Bobby Shell, an officer of the
Benton Police Department. Guest alleges in her complaint that Shell stopped her without probable
cause, that he used excessive force, and that he seized her vehicle unlawfully. She asserts claims
under federal law pursuant to 42 U.S.C. § 1983, as well as state-law claims under the Arkansas Civil
Rights Act of 1993 and a state-law claim for conversion. Shell has moved for summary judgment.
For reasons that will be explained, Shell’s motion will be granted as to Guest’s section 1983 claims,
and the Court will decline to exercise supplemental jurisdiction over the state-law claims.
I.
A court should enter summary judgment if the evidence 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). The moving party bears the initial responsibility of
demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the moving party meets this burden,
the nonmoving party must respond by coming forward with specific facts establishing a genuine
dispute for trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc).

In deciding a motion for summary judgment, a court views the evidence in the light most favorable
to the nonmoving party and draws all reasonable inferences in that party’s favor. PHL Variable Ins.
Co. v. Fulbright McNeill, Inc., 519 F.3d 825, 828 (8th Cir. 2008). A genuine dispute 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. When a nonmoving party cannot make a showing sufficient to
establish a necessary element of the case on which that party bears the burden of proof, the moving
party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23, 106 S. Ct. at
2552.
II.
At approximately seven o’clock on the morning of April 7, 2011, Guest parked in a
handicapped parking space, even though she is not handicapped, while she was dropping her daughter
off at daycare in Benton. After she took her daughter into the daycare center and returned to her car,
planning to drive another daughter to school, she was confronted by Shell, who asked her to provide
her driver’s license and registration after confirming that she lacked the necessary parking permit.
When he ran the license and registration, Shell discovered that Guest had two outstanding warrants
and that her license was suspended. While Shell was running Guest’s license, Guest called her sister,
who came to retrieve Guest’s second daughter and take her to school. The sister arrived and engaged
in a verbal altercation with Shell before leaving with Guest’s second daughter. After the sister left,
Shell patted down Guest and placed her under arrest. In her deposition, Guest described the incident
as follows:
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What happened after he did that?
After he patted me down, he put the handcuffs on me.
Did he tell you you were being placed under arrest?
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After he put the handcuffs on me, yes.
And did he say why you were being placed under arrest?
Yes, after he put the handcuffs on. He said it before and after. He had
already told me that I had a warrant. After he put the handcuffs on me, that’s
when he told me again that I had a warrant with the city and county. I kept
telling him that I didn’t have a warrant.
Okay. What happened after he had the handcuffs on you?
He put the handcuffs on me. I told him that the handcuffs were tight. He was
already a little upset, like I said, with the situation with my sister. I told him
that the handcuffs were tight. When he walked me to the car, he kind of
shoved me to the car. When I actually got in the car, he shoved me in the car
and I hit my shoulder, my right shoulder, on the door.
What made you believe that the handcuffs were too tight?
I felt them. They were tight on my wrists.
So you just felt like they were kind of tight, so –
They were hurting.
Was there any sort of physical injury –
Yes.
– to your wrists from the handcuffs?
After the handcuffs were off, yeah, my wrists were hurting.
Anything other than pain?
No, nothing other than pain.
How long did they hurt?
The rest of the day.
Did you have to go see a doctor because of your wrists?
I didn’t.
And so you said he walked you over to the car. Can you tell me exactly how
he walked you over to his car?
Once I turned around and he got behind me, he did me like this, like a shove
(Demonstrating). And when I actually got into the car, the way he put me in,
he shoved me in and I hit my shoulder on the door. He was very rude and
very rough.
Well, explain to me in detail exactly how you say he shoved you into the car.
He just gave me, he gave me a push.
So did he approach the vehicle with you in handcuffs, open up the vehicle
door?
He opened the vehicle door, yes. Once I got ready to get in the car, he came
back behind me and kind of gave me a shove and I hit my shoulder on the
door.
So when you say he shoved you, how were you going into the car?
What do you mean?
Well, I guess usually when you sit down into a car, you’re sitting –

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When he opened up the door, he came back behind me and he had to place me
into the car, he shoved me into the door.
So you went into the car shoulder first, is that what you’re saying?
I went in this way, yes (Demonstrating), and my shoulder hit the back side of
the door.
And what kind of injury did you receive to your shoulder from that?
My shoulder was hurt. I didn’t go to the doctor, but my shoulder was hurt
from it.
Just some pain your [sic] experienced?
Yes, and I still have that pain.
So you haven’t seen a doctor for it?
I did not.
Has it ever kept you from doing any normal activity?
Well, you know, it hasn’t just kept me from doing it, I just have the pain at
nighttime. It’s mainly at night.
So when you alleged in your complaint that Officer Shell used excessive force
when he arrested you, was there anything else that you were referring to other
than the handcuffs being tight and the shove into the car that hurt your right
shoulder?
No.

Document #14-1, at 7.
Shell took Guest to the police station, where she was booked and released. Meanwhile, her
vehicle was searched and impounded. After she was released, she and her husband went to the place
to which it had been towed and obtained release of the vehicle. Guest was later convicted of parking
in a handicapped parking space. The charges pertaining to the two outstanding warrants were
dropped. Guest then commenced this action in the Circuit Court of Saline County, Arkansas. Shell
removed the action to this Court based on federal question jurisdiction.
III.
As noted, Guest’s first claim is that she was unlawfully stopped. In response to the motion
for summary judgment, however, she has abandoned that claim. Therefore, Shell’s motion for
summary judgment is granted as to Guest’s claim that he unlawfully stopped her.

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Guest’s next claim is that Shell used excessive force against her. The Eighth Circuit has held
that a de minimis use of force is insufficient to support a finding that the Constitution has been
violated. See Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011); Crumley v. City of St.
Paul, Minn., 324 F.3d 1003, 1007 (8th Cir. 2003); Hunter v. Namanny, 219 F.3d 825, 832 (8th Cir.
2000). In other words, “not every push or shove by an officer violates the Fourth Amendment.”
Andrews v. Fuoss, 417 F.3d 813, 818 (8th Cir. 2005). Though the fact that the injury is only de
minimis does not necessarily foreclose a claim for excessive force, the degree of injury is relevant
insofar as it tends to show whether the force was excessive. Chambers, 641 F.3d at 906; Wertish v.
Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006). “Painful handcuffing, without more, is not excessive
force in cases where the resulting injuries are minimal.” Rodriguez v. Farrell, 280 F.3d 1341, 1351
(11th Cir. 2002); see also Chambers, 641 F.3d at 907 (an allegation of pain as a result of being
handcuffed, without some evidence of more permanent injury, is insufficient to support a claim of
excessive force). Here, based on Guest’s testimony, the force used by Shell in handcuffing Guest and
putting her into his patrol car was de minimis. See Curd v. City Court of Judsonia, Ark., 141 F.3d
839, 841 (8th Cir. 1998) (“Even if seizing that [the plaintiff’s] arm and turning her body was
unnecessary to effect the arrest, we cannot conclude that this limited amount of force was objectively
unreasonable.”).
Even if Shell’s use of force violated Guest’s Constitutional rights, he would be entitled to
qualified immunity. See Chambers, 641 F.3d at 904 (finding, in a nearly identical context, qualified
immunity when even the district court did not address the issue). Qualified immunity shields a police
officer from liability under 42 U.S.C. § 1983 unless his “conduct violates a clearly established
constitutional . . . right of which a reasonable person would have known.” Brown v. City of Golden
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Valley, 574 F.3d 491, 495 (8th Cir. 2009). It was not until June 6, 2011 – nearly two months after
the encounter between Guest and Shell – that it became clearly established in the Eighth Circuit that
a plaintiff with only de minimis injuries could recover on an excessive force claim under section 1983.
See Chambers, 641 F.3d at 907-09. It is beyond dispute here that Guest suffered, at most, de
minimis injuries at the hands of Shell. See Document #14-1, at 7 (pain from handcuffs only lasted
rest of the day and did not require a doctor visit; shoulder injury did not require a doctor visit and has
not kept Guest from performing any normal activity); Document #15, at 1-2 (tacit admission by Guest
that she suffered only de minimis injuries); Chambers, 641 F.3d at 906 (“This court has concluded
that ‘relatively minor scrapes and bruises’ and a ‘less-than-permanent aggravation of a prior shoulder
condition’ are to be considered de minimis injuries.” (citation omitted)). Thus, Shell is entitled to
qualified immunity. See Chambers, 641 F.3d at 908 (“Given the state of the law in August 2005, a
reasonable officer could have believed that as long as he did not cause more than de minimis injury
to an arrestee, his actions would not run afoul of the Fourth Amendment.”); see also Glaze v. Ivey,
2:11CV00081, 2012 WL 3537238 (E.D. Ark. Aug. 14, 2012) (similar).
On Guest’s claim against Shell, individually, for having her vehicle impounded, Shell has
submitted an affidavit stating that he did not participate in the impoundment process or inventory
search of the vehicle. See Document #12-5, at 1. Guest’s only response is to submit an affidavit from
her husband, Monzell Guest, stating that he arrived at the scene after his wife was arrested and
requested that the officers present, whom he does not name, allow him to take the vehicle. See
Document #15-1. According to Monzell, the officers, “after consultation with Officer Shell on the
radio, told me this was his stop, and he had ordered the vehicle towed. They refused to allow me to
take the vehicle.” Id. Monzell Guest’s statement as to what the officers told him is hearsay with
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respect to Shell. See Fed. R. Evid. 801(c). A party may not defeat a motion for summary judgment
by relying solely on inadmissible hearsay. BancorpSouth Bank v. Hazelwood Logistics Ctr., LLC, 706
F.3d 888, 900 (8th Cir. 2013) (quoting Fin. Timing Publ’ns, Inc. v. Compugraphic Corp., 893 F.2d
936, 942 (8th Cir. 1990). This claim will be dismissed with prejudice.
Finally, Guest’s claims against Shell in his official capacity are essentially claims against the
City of Benton. See Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2012). Guest
has offered nothing here to show that any officer committed a constitutional violation pursuant to an
official custom, policy, or practice of the city. See Luckert v. Dodge Cnty., 684 F.3d 808, 820 (8th
Cir. 2012). Therefore, these claims will be dismissed with prejudice.
IV.
Having disposed of all of Guest’s claims that are based on federal law, the remaining claims
are state-law claims over which this Court has supplemental jurisdiction pursuant to 28 U.S.C.
§ 1367. The Court may decline to exercise supplemental jurisdiction over state-law claims after
dismissing all of the claims that arise under federal law. Id. § 1367(c)(3). “[I]n the usual case in
which all federal-law claims are eliminated before trial, the balance of factors to be considered under
the pendent jurisdiction doctrine – judicial economy, convenience, fairness, and comity – will point
toward declining to exercise jurisdiction over the remaining state-law claims. Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 350 n.7, 108 S. Ct. 614, 619 n.7, 98 L. Ed. 2d 720 (1988). The Eighth
Circuit has said: “We stress the need to exercise judicial restraint and avoid state law issues wherever
possible. We also recognize within principles of federalism the necessity to provide great deference
and comity to state court forums to decide issues involving state law questions.” Condor Corp. v.
City of St. Paul, 912 F.2d 215, 220 (8th Cir. 1990).
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Here, Guest contends that the protections offered by the Arkansas Civil Rights Act are
“significantly broader” than those available under federal law, so she contends that her Arkansas Civil
Rights Act claims should survive even if the section 1983 claims do not. That is an issue best
addressed by the state courts. Moreover, her conversion claim may well turn on state law governing
the actions of police officers in impounding vehicles. Again, that issue is best left to the state courts.
Therefore, out of deference and comity to the state courts, the Court declines to exercise
supplemental jurisdiction over Guest’s state-law claims. See Glorvigen v. Cirrus Design Corp., 581
F.3d 737, 749 (8th Cir. 2009).
CONCLUSION
For the reasons stated, all of the section 1983 claims asserted by Keisha Fisher Guest against
Bobby Shell, individually and in his official capacity as a Benton police officer, are dismissed with
prejudice. Because the Court declines to exercise supplemental jurisdiction over Guest’s state-law
claims against Shell, this action is remanded to the Circuit Court of Saline County, Arkansas, whence
Shell removed it.
IT IS SO ORDERED this 14th day of March, 2013.

__________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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