Simmons v. Davis et al

Filing 29

ORDER granting in part and denying in part 8 Motion to Dismiss. All claims against Defendant Kidwell are dismissed. Simmons's Fourth Amendment and negligence claims against defendant Harper are still active. If Simmons wants to pursue injunctive or declaratory relief against Harper or Kidwell, then he must file an amended complaint by 7 February 2014. Signed by Judge D. P. Marshall Jr. on 1/17/14. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JAMES W. SIMMONS

v.

PLAINTIFF
No. 5:13-cv-100-DPM

REX DAVIS; REUBEN MICHEL;
MARK GOBER, Sheriff; JERRY CLARKE;
ROBERT ROSEGRANT, Chief; DAVID OUTLAW;
STAN WITT, Colonel; HARPER, FNU; JOHN
KIDWELL, Director, all individually and in their
official capacities; DREW COUNTY; and
CITY OF MONTICELLO

DEFENDANTS

ORDER
University of Arkansas-Monticello Department of Public Safety officials
Harper and Kidwell move to dismiss James W. Simmons's complaint for
many reasons. Simmons says that Officer Harper used excessive force against
him during an arrest and failed to intervene when other officers used
excessive force too. He alleges that Kidwell, as Harper's supervisor, is also
liable for Harper's conduct.
1. § 1983 claims. Sovereign immunity bars Simmons's official-capacity
claims for damages against these two state officers. Damages may not be
recovered against the State through its officers, absent waiver or abrogation

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of sovereign immunity; and none has occurred here. Kentucky v. Graham, 473
U.S. 159, 165-6 (1985); Florida Department of Health & Rehabilitative Services v.

Florida Nursing Home Ass'n., 450 U.S. 147, 149-50 (1981)(per curiam). Nonmonetary prospective relief, injunctive or declaratory, is possible. Edelman v.

Jordan, 415 U.S. 651, 663-69 (1974). Simmons's request for this kind of relief
is too murky to state a claim. NQ 1 at 1-2 & NQ 20 at 6. This request is
dismissed without prejudice and with leave to amend by 7 February 2014.
Any amendment must be clear and specific.
Harper. Simmons has not pleaded sufficient facts to state a due-process
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claim against Harper. His allegations that Harper's conduct Shock[ed] the
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contemporary conscious" and failed to comport with traditional ideas of fair
play and decency" are conclusory. NQ 20 at 19-20. Simmons's due-process
claim will be dismissed without prejudice. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007).
Simmons also alleges that Harper violated his Fourth Amendment right
to be free from umeasonable seizures and excessive force. He alleges that
Harper
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placed [his] weight upon Plaintiff's back," and that defendants

dragged [him] through briers and concrete ... with his hands handcuffed
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behind his back." NQ 1 at 7 & 9. He also says that Harper ignored his pleas for
help and failed to intervene when other officers used excessive force against
him. NQ 1 at 7 & 20. Accepting these allegations as true, they state plausible
Fourth Amendment claims. Twombly, 550 U.S. at 570.
Harper asserts qualified immunity. The facts viewed in the light most
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favorable to Simmons demonstrate the deprivation of a constitutional or
statutory right[.]" Jones v. McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012). The
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question then becomes whether Harper violated clearly established statutory
or constitutional rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A person's right to be free from

unreasonable seizures and excessive force was clearly established before April
2010, when Simmons was arrested. E.g., Guite v. Wright, 147 F.3d 747, 750 (8th
Cir. 1998); Nance v. Sammis, 586 F.3d 604, 611 (8th Cir. 2009). It was also
clearly established that a state actor may be liable for an unreasonable
II

seizure under the Fourth Amendment if he fails to intervene to prevent the
unconstitutional use of excessive force by another official." Krout v. Goemmer,
583 F.3d 557, 565 (8th Cir. 2009). The Court rejects without prejudice Harper's
request for qualified immunity on the pleadings.
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Kidwell. Simmons seeks to hold Kidwell liable for Harper's actions

under a theory of supervisory liability. But under§ 1983, a public official is
responsible only for his or her own conduct. Whitson v. Stone Cnty. Jail, 602
F.3d 920, 928 (8th Cir. 2010). Simmons candidly acknowledges that this claim
is undeveloped. NQ 20 at 8 & 10. His individual-capacity claims against
Kidwell must be dismissed without prejudice to pleading particulars. Tilson
v. Forrest City Police Dep't, 28 F.3d 802, 806-07 (8th Cir. 1994).

2. State-law claims. Simmons also alleges that Harper and Kidwell

were negligent under Arkansas law. But as state employees, they're immune
from liability unless their actions were either covered by liability insurance or
malicious. ARK. CODE. ANN.§ 19-10-305(a). Simmons has not pleaded the
liability-insurance exception. He has pleaded sufficient facts that Harper
acted with malice-" an intent and disposition to do a wrongful act greatly
injurious to another." Simons v. Marshall, 369 Ark. 447, 452-53, 255 S.W.3d
838, 842 (2007). Nothing, though, suggests that Kidwell maliciously failed to
train or supervise Harper.

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Both Harper and Kidwell also assert statutory immunity pursuant to
ARK.

CODE.

ANN.§ 25-17-306, whose text is in the margin. 1 Here again, the

supervisor is entitled to immunity, but the line officer is not. Simmons has not
alleged that Kidwell exceeded his authorized authority in supervising Harper.
Though he does not say that Harper acted ultra vires, no police officer is
authorized by law to use excessive force against citizens. This statutory
immunity, like qualified immunity, is denied on the pleadings but without
prejudice to being reasserted on a factual record.

* * *
Motion to dismiss, NQ 8, granted in part and denied in part. All of
Simmons's official-capacity claims for damages against Harper and Kidwell
are dismissed with prejudice.

His due-process claims against Harper

individually are dismissed without prejudice. All Simmons's § 1983 claims
against Kid well individually are dismissed without prejudice. His negligence
claim against Kidwell is dismissed with prejudice. Both qualified immunity

1

Any institutional law enforcement officers so appointed and designated
and any other institutional employees so authorized executing the duties
delegated to them under this subchapter shall not be personally liable for injuries
to persons or for damages to property dealt with while acting within the scope of
their authorized authority on behalf of the State of Arkansas and its institutions.

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and§ 25-17-306 immunity for Harper are rejected for the moment.
Here is where the case stands as to these two defendants. Kidwell is out
of the case for now; no claims against him remain pending. Simmons's Fourth
Amendment and negligence claims against Harper go forward. All other
claims against him have been dismissed.

If Simmons wants to pursue

injunctive or declaratory relief against Harper or Kidwell, then he must file an
amended complaint by 7 February 2014.

Any amended pleading must

conform to all the rulings in this Order.
So Ordered.
{/

D.P. Marshall Jr.
United States District Judge

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