Goffin v. Peek et al

Filing 61

MEMORANDUM OPINION. Signed by Honorable Susan O. Hickey on January 23, 2018. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION

DAVDRIN GOFFIN
v.

PLAINTIFF
Case No. 1:15-cv-1040

RANDY PEEK, individually and in his official
capacity as Police Chief for the city of Warren;
CITY OF WARREN; ROBBIE K. ASHCRAFT,
individually and in her official capacity as a law
enforcement officer of the city of Warren;
BRYAN MARTIN, individually and in his official
capacity as mayor for the city of Warren; and
JOHN DOES 1-10

DEFENDANTS

MEMORANDUM OPINION
Before the Court is a Motion for Summary Judgment filed by Defendants. ECF No. 48.
Plaintiff has responded. ECF. No. 53. This matter is ripe for the Court’s consideration.
BACKGROUND
Davdrin Goffin was shot by police officer Robbie Ashcraft. He brings this action for
damages under 42 U.S.C. § 1983 against Ashcraft; Randy Peek, who is the police chief; Bryan
Martin, who is the mayor of Warren, Arkansas; and the city of Warren. Goffin alleges an excessive
use of force claim against Ashcraft. Plaintiff also brings claims for failure to train and failure to
supervise, for violations of his Eighth and Fourteenth Amendment rights, as well as state law
claims for outrage, battery, and negligence and for violations of the Arkansas Civil Rights Act.
Defendants argue that they are entitled to summary judgment on all claims.
Officers Robbie Ashcraft and Aaron Hines responded to a residential burglary call at the
home of Tommy Reddick, Goffin’s uncle by marriage. Reddick reported to Ashcraft and Hines
that Goffin had come to Reddick’s house earlier in the day and told Reddick that he dropped his

gun while running from the police. Reddick stated that Goffin then demanded Reddick’s gun but
he did not comply with the demand. Reddick further reported that later that same day, while he
was away from his home for thirty minutes, Goffin entered Reddick’s home through the back
window, kicked in his bedroom door, and took two guns (a 9mm pistol with clip and a .38 snub
nose pistol), a box of bullets, and a bottle of hydrocodone. 1 Reddick told the officers that Goffin
was “out of control.”
Ashcraft knew of Goffin from previous dealings with him and knew that Goffin had an
active arrest warrant for aggravated robbery at the time Reddick reported the burglary. Ashcraft
told Reddick that “we’ve been looking for [Goffin],” and Reddick responded that they should be
ready to fight when they find him.
After Ashcraft took Reddick’s statement and as she was preparing to leave Reddick’s
house, she saw a black truck being driven by a black male drive by the residence. Ashcraft, who
had parted ways with Hines, followed the truck to its destination and asked the driver, Dwayne
Moore, if he had seen Goffin. Moore reported that Goffin, who smelled of alcohol, had flagged
him down and jumped in Moore’s truck. Moore told Ashcraft that Goffin asked Moore to take
him to the car wash and that, when Moore hesitated, Goffin demanded a ride to the car wash and
told Moore that he had two guns. Goffin reportedly pulled out either a 9mm or 40-caliber pistol
and then pulled out either a .22 or .38 caliber pistol. Moore told Ashcraft he was afraid that Goffin
was going to rob him and that Goffin looked as if he would “take [Moore] out,” so he took Goffin
to the car wash. Moore also told Ashcraft that Goffin had a gun in each pocket. 2

1

The Court notes that Goffin questions the truthfulness of Reddick’s statements to Ashcraft and Hines; however, as
discussed later in this Opinion, these statements are offered to show their effect on Ashcraft and not for their
truthfulness.
2
The Court notes that Goffin questions the truthfulness of Moore’s statements to Ashcraft; however, as discussed later
in this Opinion, these statements are offered to show their effect on Ashcraft and not for their truthfulness.

2

After Ashcraft finished taking Moore’s statement, Hines called Ashcraft to tell her that
Goffin had been seen at a specific body shop. Ashcraft and Hines met at the body shop and walked
together toward Goffin’s suspected location. They approached a crowd of people standing in and
around the parking lot and asked where Goffin was. The body shop owner pointed to the garage
door. As they approached the garage door, they heard a voice coming from a car parked by the
garage door. Ashcraft saw Goffin sitting in the front passenger seat of the car. Both officers drew
their guns and approached the vehicle. Ashcraft walked to the driver’s side and Hines to the
passenger side. As Hines made it to the front of the car, he holstered his weapon and grabbed his
Taser gun. Both Ashcraft and Hines ordered Goffin to show his hands. Hines asked Goffin to
keep his hands up and exit the car. Goffin stepped out of the vehicle with his hands slightly raised.
Hines moved Goffin to the rear of the car while Ashcraft kept her weapon out. Ashcraft saw
something “bumping in [Goffin’s] right front pocket.”
At the rear of the vehicle, Hines ordered Goffin to put his hands on the trunk of the car
while Ashcraft continued to provide lethal cover for Hines. As Hines attempted to handcuff
Goffin, he extended his left arm, and attempted to run. According to Goffin, he was patted down
by Hines and then Goffin began to run. The fact that a pat down occurred is disputed by Hines
and Ashcraft; however, the Court will view this fact in the light most favorable to Goffin and
assume the pat down by Hines occurred. It is undisputed that Hines removed nothing from
Goffin’s pockets.
Goffin attempted to run toward the street near an area where several people were standing.
As Goffin was attempting to run, Ashcraft saw his right shoulder raise and could not see Goffin’s
hands. Ashcraft fired one shot, hitting Goffin’s lower back. Hines then handcuffed and searched
Goffin, finding a loaded 9mm pistol magazine in Goffin’s pocket and a box of bullets in another

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pocket. The parties dispute in which pocket the loaded magazine was found. Hines states that he
found the magazine in Goffin’s right front pocket. However, the Court will view this fact in the
light most favorable to Goffin, and assume the magazine was in Goffin’s back pocket as he states
in his deposition. Inside the car, officers found a 9mm pistol and .38 revolver within arms’ reach
of the seat where Goffin was sitting when he was discovered by Hines and Ashcraft. Goffin was
transported to the hospital by ambulance, and he survived the gunshot wound.
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure provide that when a party moves for summary
judgment:
The court shall grant summary judgment if 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); Krenik v. Cnty. of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). The Supreme
Court has issued the following guidelines for trial courts to determine whether this standard has
been satisfied:
The inquiry performed is the threshold inquiry of determining whether there is a
need for trial—whether, in other words, there are genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Agristor Leasing v. Farrow,
826 F.2d 732 (8th Cir. 1987); Niagara of Wis. Paper Corp. v. Paper Indus. Union-Mgmt. Pension
Fund, 800 F.2d 742, 746 (8th Cir. 1986). A fact is material only when its resolution affects the
outcome of the case. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence is such that
it could cause a reasonable jury to return a verdict for either party. Id. at 252.
The Court must view the evidence and the inferences that may be reasonably drawn from
the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank, 92

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F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. The
nonmoving party must then demonstrate the existence of specific facts in the record that create a
genuine issue for trial. Krenik, 47 F.3d at 957. A party opposing a properly supported motion for
summary judgment may not rest upon mere allegations or denials, but must set forth specific facts
showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256.
DISCUSSION
The Court will first consider a threshold evidentiary issue before examining the substance
of the summary judgment arguments Plaintiff’s claims.
A. Evidentiary Issue
When supporting or disputing statements of material fact offered to support a motion for
summary judgment, the opposing party may object that such a statement is not supported by
admissible evidence. Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to
support or dispute a fact cannot be presented in a form that would be admissible in evidence.”).
Goffin argues that several of the facts offered to support Defendants’ summary judgment motion
are inadmissible hearsay. Specifically, Goffin’s objections relate to statements made by witnesses,
Reddick and Moore, to Ashcraft and Hines and an audio recording in real time of what Ashcraft
heard Reddick say to Goffin on the phone and what he told Hines and Ashcraft about the events
that occurred on the day Goffin was shot. 3
The Court disagrees with Goffin for the following reasons. First, it does not appear that
Defendants are offering these statements by witnesses or the audio recording for the truth of the

3

The Court notes that Goffin has not filed a motion to strike the statements or audio recording, although he did object
to the conventional filing of the audio recording (ECF No. 58) and stated objections to specific facts offered by
Defendants (ECF No. 54).

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facts stated but rather they are offering them to show their effect on Ashcraft. Thus, the statements
and audio recording are not inadmissible hearsay. See United States v. Wright, 739 F.3d 1160,
1170 (8th Cir. 2014); see also Bady v. Murphy-Kjos, 628 F.3d 1000, 1002-03 (8th Cir. 2011)
(holding that information provided to an officer about a suspect is not hearsay when only offered
to show “what the officers knew, or thought they knew, at the time of the arrest.”).
Second, even if the statements and audio recording were inadmissible hearsay, Defendants
can present these items of evidence in an admissible form at trial. “The standard is not whether
the evidence at the summary judgment stage would be admissible at trial—it is whether it could
be presented at trial in an admissible form.” Gannon Int’l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th
Cir. 2012) (emphasis in original). Goffin asserts that witness statements and the audio recording
are inadmissible hearsay, but he has not shown, nor does he argue, that Defendants cannot present
the evidence in a form that would be admissible at trial. Defendants assert that each fact they offer
regarding the statements and audio recording could be admissible through witness testimony or
introduction of the audio at trial. The Court agrees. Defendants do not rely on evidence that, on
its face, presents evidentiary obstacles that would prove insurmountable at trial.
B. Excessive Force Claim against Ashcraft
Goffin alleges an excessive force claim against Ashcraft in her individual capacity, and she
argues that she is entitled to qualified immunity. Qualified immunity “shields government officials
from liability unless their conduct violates clearly established statutory or constitutional rights of
which a reasonable person would know.” Ferguson v. Short, 840 F.3d 508, 510 (8th Cir. 2016)
(citing Mallak v. City of Baxter, 823 F.3d 441, 445 (8th Cir. 2016)). In resolving the issue of
whether an officer is shielded by qualified immunity, the court must decide whether the facts
shown by the plaintiff make out a violation of a constitutional right, and if so, whether that right

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was clearly established at the time of the defendant’s alleged misconduct. Vester v. Hallock, 864
F.3d 884, 886 (8th Cir. 2017).
In claims involving the use of excessive force, the first inquiry is whether the force amounts
to a violation of the Fourth Amendment’s prohibition against unreasonable seizures. Loch v. City
of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012). In making that determination, courts must analyze
the claim under the Fourth Amendment’s “objective reasonableness” standard. Malone v. Hinman,
847 F.3d 949, 952 (8th Cir. 2017) (quoting Craighead v. Lee, 399 F.3d 954, 961 (8th Cir. 2005)).
The standard is well settled in the Eighth Circuit:
The reasonableness of a use of force turns on whether the officer's actions were
objectively reasonable in light of the facts and circumstances confronting him,
without regard to his subjective intent or motivation. [Graham v. Connor, 490 U.S.
386, 397 (1989)]. [The Court] must consider the totality of the circumstances,
including the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officer or others, and whether the suspect is actively
fleeing or resisting arrest. Id. at 396. The use of deadly force is reasonable where
an officer has probable cause to believe that a suspect poses a threat of serious
physical harm to the officer or others. See Tennessee v. Garner, 471 U.S. 1, 11
(1985). [The Court] judge[s] the reasonableness of [an officer’s] use of force “from
the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Graham, 490 U.S. at 396.
Loch, 689 F.3d at 965.
“Once the predicate facts are established, the reasonableness of [an officer’s] conduct under the
circumstances is a question of law.” Malone, 847 F.3d at 953 (quoting Tlamka v. Serrell, 244 F.3d
628, 632 (8th Cir. 2001)).
To defeat the motion for summary judgment on this issue, Goffin needs to present enough
evidence to permit a reasonable jury to conclude that Ashcraft’s use of force was objectively
unreasonable. See Thompson v. Hubbard, 257 F.3d 896, 899 (8th Cir. 2001) (citing Gardner v.
Buerger, 82 F.3d 248, 252 (8th Cir. 1996)). First, Goffin questions the credibility of Ashcraft’s
statement that she shot Goffin because she feared for her life, and he contends that a question of

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fact remains as to the “real reason why Ashcraft shot Mr. Goffin.” ECF No. 56, p. 20. However,
the reasonableness of use of force turns on whether Ashcraft’s actions were objectively reasonable
in light of the facts and circumstances confronting her, without regard to her subjective intent or
motivation. Loch, 689 F.3d at 965 (citing Graham, 490 U.S. at 397). “An officer’s evil intentions
will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor
will an officer’s good intentions make an objectively unreasonable use of force constitutional.”
Graham, 490 U.S. at 397. Thus, the “real reason why Ashcraft shot Mr. Goffin” is of no concern
to the Court in its analysis of whether Ashcraft’s use of force was objectively reasonable.
Next, Goffin argues that a fact question exists as to whether Ashcraft’s use of force was
objectively reasonable because Ashcraft knew Goffin was unarmed. Goffin attempts to discredit
Ashcraft’s statement that she believed Goffin was armed by pointing to the facts that Ashcraft
never saw a weapon in Goffin’s hand and knew that Hines had patted Goffin down for weapons
just before she shot Goffin.
Whether Officer Hines performed a pat down search of Goffin prior to his attempting to
run is a disputed fact, but the Court is required to view this fact in the light most favorable to
Goffin and assume that the pat down occurred. Nothing was seized from Goffin’s pockets as a
result of the pat down, and Goffin had a loaded magazine and bullets in his pockets. The fact that
Ashcraft knew that a pat down occurred when nothing had yet been seized from Goffin’s pockets
does not necessarily support a finding that Ashcraft knew Goffin was unarmed or that her conduct
was objectively unreasonable.
The undisputed facts are that Ashcraft never saw a weapon in Goffin’s hand, but she had
been told that Goffin had recently stolen two guns, had two guns in his pockets, and had brandished
those guns in demanding that Moore take him to the car wash. Further, it is undisputed that

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Ashcraft noticed something “bumping” in Goffin’s pocket and that Goffin, with his back toward
Ashcraft, raised his shoulder as if to reach for a gun.
The fact that a pat down occurred prior to the shooting and the fact that Ashcraft never saw
a weapon in Goffin’s hands are insufficient to support an inference that Ashcraft is lying about her
belief that Goffin had a weapon on him and that she actually knew he was unarmed. These facts
are also insufficient to satisfy Goffin’s burden of proving that Ashcraft’s actions were objectively
unreasonable. “An officer is not constitutionally required to wait until he sets eyes upon the
weapon before employing deadly force to protect himself against a fleeing suspect who turns and
moves as though to draw a gun.” Thompson, 257 F.3d at 899.
Considering the totality of the circumstances and judging from the perspective of a
reasonable officer on the scene, taking into account what Ashcraft believed at that time, the Court
concludes that summary judgment is appropriate in this case. Ashcraft had been told that Goffin
had stolen two guns and ammunition from Reddick’s house. Ashcraft knew Goffin had an
outstanding warrant for aggravated robbery and had been told that Goffin was running from the
police. Moore told Ashcraft that Goffin had two guns in his pockets and had brandished the two
guns as he demanded a ride to the car wash. Ashcraft had reason to believe that Goffin was armed
and that a gun could be in his pocket. She could not see Goffin’s hands as he attempted to flee
and raised his right shoulder, and, thus, her belief that Goffin posed a threat to her safety was
objectively reasonable. Further, a reasonable officer could believe that Goffin posed a threat to
nearby bystanders as he began to run towards a group of seven or eight people. Goffin admitted
that, if he would have continued running, he would have run right into the bystanders.
Accordingly, the Court finds that Ashcraft had probable cause to believe that Goffin posed a threat

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of serious physical harm to her and others, see Loch, 689 F.3d at 965, and concludes that Ashcraft’s
use of force was objectively reasonable.
Because the Court finds that Ashcraft did not infringe Goffin’s Fourth Amendment right
to be free from unreasonable seizures by using excessive force against him, it follows that Ashcraft
is entitled to qualified immunity.
C. Claims against the City, Chief Peek, and Mayor Martin
Goffin generally alleges, pursuant to 42 U.S.C. § 1983, that the City of Warren, Arkansas,
Chief Peek, and Mayor Martin failed to properly supervise or train Ashcraft. Goffin alleges this
claim against Chief Peek and Mayor Martin in their individual and official capacities. Any claims
against Chief Peek and Mayor Martin in their official capacities are essentially claims against the
City of Warren. See Brockington v. City of Sherwood, Ark., 503 F.3d 667, 674 (8th Cir. 2010) (“A
suit against a government actor in his official capacity is treated as a suit against the governmental
entity itself”). Therefore, Goffin’s official-capacity claims against Chief Peek and Mayor Martin
are dismissed as redundant.
1. Chief Peek and Mayor Martin in their Individual Capacities
“[A] supervisor may be held individually liable under § 1983 if he directly participates in
a constitutional violation or if a failure to properly supervise and train the offending employee
caused a deprivation of constitutional rights.” Andrews v. Fowler, 98 F.3d 1069 (8th Cir. 1996).
However, if a plaintiff has failed to establish that his constitutional rights were violated, he has no
§ 1983 claim against a defendant sued as a supervisor. Moore v. City of Deslodge, Mo., 647 F.3d
841, 849 (8th Cir. 2011); Thompson, 257 F.3d at 899 (“The § 1983 claims will not lie against either
[the officer and his supervisor] individually or against the city unless plaintiffs can prove an
underlying violation of [the suspect’s] Fourth Amendment rights.”). “A vital element of any

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section 1983 claim is a showing that a right secured by the Constitution or a federal law was
violated.” Cole v. Bone, 993 F.2d 1328, 1334 (8th Cir. 1993). In the present case, the Court has
found that Ashcraft did not violate Goffin’s constitutional rights. Therefore, the claims against
her supervisors, Chief Peek and Mayor Martin, must fail.
2. City of Warren
The Eighth Circuit has consistently held that a municipality cannot be held liable on either
an unconstitutional policy or custom theory or on a failure to train or supervise theory unless a
defendant police officer is found liable on an underlying substantive claim. McCoy v. City of
Monticello, 411 F.3d 920, 922-23 (8th Cir. 2005). In the present case, the Court has found that
Ashcraft’s use of force was objectively reasonable and that she did not violate Goffin’s
constitutional rights. Therefore, Goffin’s claims against the City of Warren, Arkansas, must fail.
D. Eighth Amendment and Fourteenth Amendment
In addition to his Fourth Amendment claim, Goffin claims a violation of his Eighth
Amendment and Fourteenth Amendment rights. The Fourth Amendment’s prohibition against
unreasonable seizures of the person applies to excessive-force claims that arise in the context of
an arrest, Chambers v. Pennycook, 641 F.3d 898, 905 (8th Cir. 2011), while the Eighth
Amendment's ban on cruel and unusual punishment applies to excessive-force claims brought by
convicted criminals serving their sentences. Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000)
(citing Whitley v. Albers, 475 U.S. 312, 318-22 (1986)). Because Goffin’s excessive-force claim
arises in the context of his arrest, it is most properly characterized as a claim invoking the
protections of the Fourth Amendment and not the Eighth Amendment. Thus, the Court finds that
Goffin’s Eighth Amendment claim should be dismissed.

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Goffin alleges some Fourteenth Amendment Due Process claims relating to the alleged use
of excessive force during his arrest. The Supreme Court has made explicit “that all claims that
law enforcement officers have used excessive force—deadly or not—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, 490 U.S. at 395. While the due process
clause protects a pretrial detainee from the use of excessive force amounting to punishment, Green
v. Missouri, 734 F. Supp. 2d 814, 840 (E.D. Mo. 2010) (citing Graham, 490 U.S. at 395), Goffin
does not allege any excessive force outside of his arrest. Thus, Goffin's Fourteenth Amendment
Due Process Clause claim fails as a matter of law.
E. State-Law Claims
In addition to his federal claims, Goffin alleges the following state-law claims: outrage,
battery, negligence, and violations of the Arkansas Civil Rights Act. Having disposed of all of
Goffin’s federal claims, the Court declines to exercise supplemental jurisdiction over his state-law
claims. See 28 U.S.C. § 1367(c)(3) (court may, sua sponte, decline to exercise supplemental
jurisdiction over pendent state-law claims if it has dismissed all claims over which it had original
jurisdiction); Johnson v. City of Shorewood, 360 F.3d 810, 819 (8th Cir. 2004) (when all federal
claims are eliminated before trial, balance of factors to be considered in deciding whether to
exercise supplemental jurisdiction over pendent state-law claims typically militates against
exercising jurisdiction) (citing Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
Accordingly, the Court finds that Goffin’s state-law claims should be dismissed without prejudice.
CONCLUSION
For the reasons stated above, the Court finds that Defendants’ Motion for Summary
Judgment (ECF No. 48) should be and hereby is GRANTED. The Court finds that Ashcraft is

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entitled to qualified immunity regarding Goffin’s Fourth Amendment claim and that all federal
claims against all Defendants should be DISMISSED WITH PREJUDICE. The Court finds that
all state-law claims against all Defendants should be DISMISSED WITHOUT PREJUDICE.
The Court will issue a Judgment of even date consistent with this Memorandum Opinion.
IT IS SO ORDERED, this 23rd day of January, 2018.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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