Doss v. Alexander, City of et al
ORDER granting 23 Motion for Summary Judgment. Plaintiff's claims arising under federal law are DISMISSED WITH PREJUDICE, and Plaintiff's supplemental state law claims are DISMISSED WITHOUT PREJUDICE. Pursuant to the judgment entered together with this order, this action is DISMISSED IN ITS ENTIRETY. Signed by Judge Susan Webber Wright on 6/9/2014. (ks)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CITY OF ALEXANDER, ET AL.
NO: 4:13CV00121 SWW
Plaintiff Christopher Doss (Doss), who proceeds pro se, brings this action pursuant to 42
U.S.C. § 1983 against Alexander Chief of Police Horace Walters (Walters), individually and in
his official capacity; Alexander Police Officers Jeffrey Watson (Watson) and William
Blankenship (Blankenship), in their individual capacities; Saline County Sheriff Bruce
Pennington (Pennington), individually and in his official capacity; and Saline County Sheriff
Deputies Tim Green (Green) and Paul Babbit (Babbit), in their individual capacities.
Before the Court is a motion for summary judgment by the City Defendants--Walters,
Watson, and Blankenship. The Court granted Doss an extended period of time in which to file a
response in opposition to summary judgment, but the time for responding has now expired, and
Doss has not filed a response. After careful consideration, and for reasons that follow, the Court
finds that each named defendant is entitled to summary judgment as to Doss’s claims arising
under federal law and that Doss’s supplemental state law claims should be dismissed without
prejudice, pursuant to 28 U.S.C. § 1367(c)(3).
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). As a prerequisite to summary judgment, a moving party must demonstrate “an
absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). Once the moving party has properly supported its motion for summary
judgment, the non-moving party must “do more than simply show there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
The non-moving party may not rest on mere allegations or denials of his pleading but
must come forward with ‘specific facts showing a genuine issue for trial. Id. at 587. “[A]
genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is
material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury
could return a verdict for either party.” RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d
399, 401 (8th Cir. 1995).
The following facts are undisputed.1 On October 9, 2011, at approximately 12:03 a.m.,
Lashanda Billups called 911 and requested police assistance at a residence located in Alexander,
Local Rule 56.1 provides that a party moving for summary judgment must submit a
statement of the material facts as to which it contends there is no genuine issue to be tried, and
the non-moving party must file a responsive statement of the material facts as to which it
contends a genuine issue exists to be tried. “All material facts set forth in the statement filed by
the moving party . . . shall be deemed admitted unless controverted by the statement filed by the
non-moving party . . . . ” Local Rule 56.1(c).
Arkansas. Defendant Watson responded to the call, and Billups told him that she was attempting
to remove her children from a residence that she shared with Doss. When Watson approached
the residence, Doss, who had been drinking, began cursing and screaming at Billups and Watson,
and Watson requested backup assistance.
Doss eventually calmed down, and Watson cancelled his request for backup. However,
Defendants Blankenship, Green, and Billups were already near or at the scene. Watson met the
responding officers in the street and began telling them about the disturbance, and Doss appeared
and began cursing and shouting at the officers. The officers attempted to arrest Doss and
repeatedly instructed him to lie on the ground, but he cursed at them, stated that he was not going
to jail, and turned away. Babbit then attempted to grab Doss’s arm, but he resisted, and Green
warned Doss that he would employ his taser gun if necessary. Doss repeatedly refused the
officers’ orders, and he kicked the side of Watson’s patrol unit. Green “tased” Doss. Doss went
to the ground, but he continued struggling and placed his hands underneath his waistband. See
ECF No. 25-5 (Green Dep.) at 26. Green testifies that he and the other officers could not tell
whether Doss was reaching for a weapon, and one of the officers ordered Doss to show his
hands. Doss refused the order to show his hands, and Green warned him that he would use his
taser unless he complied. Doss again refused the order to show his hands, and Green “tased”
him a second time, which enabled Babbit to grab one of Doss’s hands and handcuff him. Doss
was arrested for disorderly conduct and drinking in public, and officers transported him to the
Saline County Jail. Doss reports that the charges against him were eventually nolle prossed.
On March 6, 2013, Doss filed this action pursuant to 42 U.S.C. § 1983, charging
Defendants with wrongful arrest, excessive force, and retaliation, all in violation of his
constitutional rights. Doss also claims that Defendants conspired to deprive him of
constitutional rights in violation of 42 U.S.C. § 1985, and he brings a variety of supplemental
claims pursuant to state law.
Defendants Walters, Watson, and Blankenship assert that no genuine issues exist for trial
with respect to the claims against them. For reasons that follow, the Court agrees and further
finds that the non-moving defendants are entitled to summary judgment in their favor and that
Doss’s supplemental state law claims should be dismissed without prejudice.
The Fourth Amendment, made applicable to the states by the Fourteenth Amendment,
guarantees “the right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures,” and it requires probable cause for lawful searches
and seizures. U.S. CONST. amend. IV; Katz v. United States, 389 U.S. 347, 357 (1967).
Defendants had probable cause to arrest Doss if, at the moment of the arrest, the facts and
circumstances within their knowledge, of which they had reasonably trustworthy information,
were sufficient to warrant a prudent man in believing that Doss had committed or was
committing an offense. See Peterson v. City of Plymouth, 60 F.3d 469, 473 (8th Cir. 1995)
(quoting Beck v. Ohio, 379 U.S. 89, 85 (1964)).
Under Arkansas law, a person commits the offense of disorderly conduct if, with the
purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk of
public inconvenience, annoyance, or alarm, he or she engages in fighting or in violent,
threatening, or tumultuous behavior, or makes unreasonable or excessive noise. See Ark. Code
§ 5–71–207. Based on the undisputed evidence regarding Doss’s conduct, any reasonable
officer in Defendants’ position would have believed that he was committing the crime of
disorderly conduct. The Court finds that Defendants had probable cause to arrest Doss and
finds no genuine issues for trial with respect to his claim for wrongful arrest.
All claims that law enforcement officials have used excessive force in the course of an
arrest, investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth
Amendment and its “reasonableness” standard. Graham v. Conner, 490 U.S. 386, 395, 109 S.
Ct. 1865 (1989). The test is whether the amount of force used was objectively reasonable under
the particular circumstances that confronted law enforcement officers. See Littrell v. Franklin,
388 F.3d 578, 583 (8th Cir.2004) (quoting Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th
Cir.1994)). Relevant circumstances include the threat posed by the subject, the severity of the
crime, and whether the suspect resisted arrest. Foster v. Metro. Airports Com'n, 914 F.2d 1076,
1082 (8th Cir.1990). Force that later seems unnecessary does not violate the Fourth Amendment
if it was reasonable at the time, giving consideration to the fact that the officer was forced to
make a “split second judgment” in a “tense, uncertain, and rapidly evolving” situation. Graham
v. Connor, 490 U.S. at 396-97 (1989).
Based on the undisputed evidence, officers attempted to subdue Doss with verbal
commands and warnings, but to no avail. Doss kicked a patrol car, repeatedly resisted arrest,
and refused officers’ orders to remove his hands from underneath his waistband. Faced with
these circumstances, a reasonable officer would have perceived that the extent of force employed
by Green2 was necessary to subdue Doss and effect his arrest. The Court finds no genuine
issues for trial with respect to Doss’s excessive force claims.
Doss claims that Defendants arrested him because he had previously submitted a written
complaint charging Alexander police officers with racial profiling. The First Amendment
prohibits government officials from subjecting an individual to retaliatory actions for speaking
out.3 See Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695 (2006). “To prevail on a First
Amendment retaliation claim, the [plaintiff] must show that [he] engaged in protected activity,
that the defendants' actions caused an injury to the [plaintiff] that would chill a person of
ordinary firmness from continuing to engage in the activity, and that a causal connection exists
between the retaliatory animus and the injury.” Small v. McCrystal, 708 F.3d 997, 1008 (8th Cir.
2013)(quoting Bernini v. City of St. Paul, 665 F.3d 997, 1007 (8th Cir. 2012)).
Here, given undisputed evidence showing that the Defendants had probable cause to
arrest Doss, he is unable to show that his arrest was causally connected to his complaint
regarding racial profiling. See McCabe v. Parker, 608 F.3d 1068, 1075 (8th Cir. 2010)(noting that
lack of probable cause is a necessary element of a First Amendment retaliatory arrest claim).
To prevail with a § 1985(3) conspiracy claim, Doss must establish that the defendants
Based on Doss’s complaint allegations, Green is the only defendant who employed force
It appears from the complaint that Doss brings his retaliation claim under 42 U.S.C.
§ 1981. Section 1981 gives “[a]ll persons . . . the same right . . . to make and enforce contracts .
. . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). Doss alleges that defendants retaliated
against him for submitted a complaint regarding racial profiling, not a complaint regarding the
right to make and enforce contracts. Accordingly, the Court finds § 1981 inapplicable.
conspired to deprive him of a constitutional right, that the defendants engaged in an overt act in
furtherance of the conspiracy, and that the overt act injured him. See Askew v. Millerd, 191 F.3d
953, 957 (8th Cir. 1999). Additionally, Doss must prove a deprivation of a constitutional right–a
conspiracy to deprive, without a deprivation, is insufficient. Id. Because Doss presents no facts
showing that he suffered a constitutional deprivation, his conspiracy claim must fail.
A suit against a public employee in his or her official capacity is a claim against the
public employer, in this case the City of Alexander and Saline County. See Kentucky v.
Graham, 473 U.S. 159, 165 (1985). It is fundamental that when the underlying conduct does not
deprive a plaintiff of a federally protected right, an attendant §1983 claim against a municipal
employer must fail. See Olinger v. Larson, 134 F.3d 1362, 1367 (8th Cir. 1998) ("In light of our
ruling that Detective Larson and Chief Satterlee did not violate Olinger's fourth amendment
rights, Olinger's claims against the City . . . must also fail."); Abbot v. City of Crocker, 30 F.3d
994, 998 (8th Cir. 1994) ("The City cannot be liable . . . whether on a failure to train theory or a
municipal custom or policy theory, unless [an officer] is found liable on the underlying
substantive claim."); Kohl v. Casson, 5 F.3d 1141, 1148 (8th Cir. 1993) (holding that because
defendant officers possessed probable cause to obtain an arrest warrant, no basis for liability
existed for the city or county).
Because Doss presents no facts showing that his constitutional or federal rights were
violated, his claims against the City and the County must fail.
Individual-Capacity Claim against Walters
Doss sues Alexander Police Chief Horace Walters in his individual capacity, alleging that
he “failed to properly vet, hire, train and supervise officers . . . . ” Am. Compl., ¶ 33. Because
there is no respondeat superior liability in § 1983 actions, defendants may only be held liable for
their personal actions. Monell v. Department of Social Services, 436 U.S. 658, 690-92 (1978);
Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997). Furthermore, a supervisor can be liable
under § 1983 for failure to train or supervise only if that failure caused a constitutional
deprivation. See id. Given the absence of a constitutional deprivation in this case, Doss’s
failure-to-train claims are without merit.
Claims against Non-Moving Defendants
Doss’s individual-capacity claims against Saline County Deputies Green and Babbit are
identical to the claims he brings against Alexander Police Officers Watson and Blankenship.
Additionally, Doss’s claim against Saline County Sheriff Bruce Pennington is identical to his
failure-to-train claim against Chief Walters. The Saline County defendants did not join the
summary judgment proceedings. However, district courts have the power to grant summary
judgment sua sponte when “the party against whom the judgment is entered has had a full and
fair opportunity to contest that there are no genuine issues of material fact to be tried and the
party granted judgment is entitled to it as a matter of law.” Burlington N. R.R. Co. v. Omaha
Pub. Power Dist., 888 F.2d 1228, 1231 n.3 (8th Cir. 1989). Here, Doss had a full and fair
opportunity to respond to the issues underlying the moving parties’ right to judgment, and the
Court has no reason to delay the entry of judgment for the non-moving, County defendants. See
Chrysler Credit Corp. v. Cathey, 977 F.2d 447, 449 (8th Cir.1992)(affirming a district court's sua
sponte grant of summary judgment where the non-moving party's “right to judgment turned on
the same issue as [the moving party's] right to judgment”).
State Law Claims
Because the Court finds no issues for trial with respect to claims over which it has
original jurisdiction, those claims will be dismissed with prejudice, and the Court will dismiss
Doss’s supplemental state law claims, without prejudice. See 28 U.S.C.
§ 1367(c)(3)(“The district courts may decline to exercise supplemental jurisdiction over a claim .
. . if . . . the district court has dismissed all claims over which it has original jurisdiction . . . . ”).
For the reasons stated, Separate Defendants’ motion for summary judgment (ECF No. 23)
is GRANTED, Plaintiff’s claims arising under federal law are DISMISSED WITH PREJUDICE,
and Plaintiff’s supplemental state law claims are DISMISSED WITHOUT PREJUDICE.
Pursuant to the judgment entered together with this order, this action is DISMISSED IN ITS
IT IS SO ORDERED THIS 9TH DAY OF JUNE, 2014.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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