McRae v. Bradshaw et al

Filing 46

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on February 14, 2019. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
TORGER MCRAE
v.

PLAINTIFF
Civil No. 1:18-CV-01018

HOUSTON BRADSHAW, Detective,
Camden Police Department;
JOHNATHAN CHAMBERS, Detective
Camden Police Department; JOHN VOSS,
Chief of Police, Camden Police
Department;
and CAMERON OWENS, Administrator
Ouachita County Detention Center

DEFENDANTS

MEMORANDUM OPINION
This is a civil rights action filed pro se by Plaintiff, Torger McRae, under 42 U.S.C. § 1983.
The parties have consented to the jurisdiction of a magistrate judge to conduct all proceedings in
this case, including conducting the trial, ordering the entry of a final judgment, and conducting all
post-judgment proceedings. (ECF No. 28). Currently before the Court are two motions for
summary judgment filed by Defendant John Voss (ECF No. 32) and Defendants Houston
Bradshaw and Jonathan Chambers. 1 (ECF No. 36). Plaintiff has filed a response. (ECF No. 45).
The Court finds this matter ripe for consideration.
I. BACKROUND
Plaintiff is currently being held in the Ouachita County Detention Center (“OCDC”)
awaiting trial on pending criminal charges. (ECF No. 9, p. 3). Plaintiff filed his Complaint on
March 6, 2018, in the Eastern District of Arkansas. (ECF No. 2). On March 8, 2018, the case was
transferred to the Western District of Arkansas, El Dorado Division. (ECF No. 4). That same day,

1

Defendant Chambers is incorrectly referenced in the case caption as “Johnathan” Chambers.

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the Court directed Plaintiff to submit a completed IFP application and file an Amended Complaint
to clarify his claims against the defendants. (ECF Nos. 6, 7). Plaintiff named Houston Bradshaw
and Jonathan Chambers – members of the 13th Judicial District Drug Task Force, John Voss – the
Chief of Police for the Camden Police Department, and Cameron Owens – the Administrator for
the OCDC as Defendants. On March 22, 2018, Plaintiff filed his Amended Complaint. (ECF No.
9). Plaintiff’s IFP application was approved that same day. (ECF No. 11).
In his Amended Complaint, Plaintiff claims he was unlawfully arrested and transported to
jail in his boxer shorts and subjected to racial slurs and excessive force. In addition, Plaintiff claims
his bail was set too high because Defendants Bradshaw, Chambers and Voss forced a parolee to
violate his parole by participating in a controlled buy which ultimately resulted in Plaintiff’s arrest
and subsequently, his alleged excessive bail.2 Plaintiff sued Defendants in their individual and
official capacities. He is seeking compensatory and punitive damages. Plaintiff also requests
“disciplinary actions/sanctions against defendants, policy & procedure review by outside agency,
compliance check in jail to ensure ACA standards.” (ECF No. 9, p. 10).
On April 17, 2018, the Court entered a screening order pursuant to 28 U.S.C. § 1915A
dismissing the individual and official capacity claims against Defendants Bradshaw, Chambers,
and Voss related to excessive force and racial slurs. (ECF No. 14, p. 9). The Court also found the
unlawful arrest claims against these Defendants were barred under the Younger abstention doctrine.
The Court stayed these claims until Plaintiff’s pending state criminal charges are resolved.
Currently before the Court are Plaintiff’s claims against Defendants Bradshaw, Chambers, and
Voss based on a violation of the Fourth Amendment for refusing to allow Plaintiff to put on clothes

2

Plaintiff also asserts claims against Defendant Owens for retaliation, denial of medical care, conditions of confinement at
the OCDC, denial of access to legal materials, and excessive bail. These claims will be addressed by separate order.

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when he was arrested and transported to jail and the imposition of excessive bail. Id. Taken in the
light most favorable to Plaintiff, the relevant facts are as follows.
On August 22, 2017, Sergeant Easttem, an officer with the Camden Police Department,
requested that a search warrant be issued for the residence of Plaintiff located at 2200 Airline Drive.
(ECF No. 34-1, pp. 1-2). Sergeant Easttem is not a named defendant in this lawsuit. On August
22, 2017, Sergeant Easttam submitted an affidavit and Judge Hamilton Singleton, after finding
probable cause based on this affidavit, issued a search warrant for the residence of Plaintiff. (ECF
No. 34-4). At this time, the Drug Task Force already had an active warrant for Plaintiff for delivery
of cocaine base or crack. (ECF 34-2). Pursuant to the August 22nd search warrant, on August 29,
2017, at 11:09 A.M., Sergeant Easttem, executed the search warrant on the residence, after
“receiving further information there were drugs, firearms, possible stolen property in the residence
and the DTF having a DOC warrant for McRae.” (ECF No. 34-1). The search involved eleven
officers, including Defendants Bradshaw and Voss. (ECF No. 34-5, p. 2). Upon entering the
residence, the officers found Plaintiff lying in bed in his boxer shorts. During the search officers
collected various items including a handgun, suspected methamphetamine, crack cocaine and
marijuana, digital scales, plastic baggies and $467.00 in cash. (ECF No. 34-1).
While officers conducted the search, Plaintiff and his girlfriend sat on the outside porch of
the residence. Body camera footage from Officer Easttem shows Plaintiff in his boxers. The boxer
shorts covered all of Plaintiff’s private areas and did not reveal his genitals when he sat down or
stood up. In addition, the camera footage shows Plaintiff’s girlfriend was fully dressed in a tank
top and gray pants. (ECF No. 34-6, Axon Body 2 Video X81109770 2017-08-29 091201, 02:2206:51). At one point, Plaintiff’s girlfriend walks away with an officer and another officer asks
Plaintiff if he has any shoes to wear. In response to this question, Plaintiff asked his girlfriend if

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she could grab him some clothes. One of the officers told Plaintiff he only needed something for
his feet.3 Id. at 03:08-03:22. Plaintiff did not object or respond to the officer’s instructions. Within
minutes, another officer came out of the house with red tennis shoes for Plaintiff. This officer
helped Plaintiff put on his shoes, and Plaintiff was then taken to the Camden Police Department.
Id. at 03:22-03:51. Once they arrived at the police department, Plaintiff was put in a cell and
allowed to keep his shoes because he was not wearing socks.

A review of the video and audio

reveals Plaintiff never complained about his lack of clothing during his arrest, transport to the
police station, or his interview with detectives. Id.; (ECF No. 34-7, Torger McRae Interview,
00:01-29:59).
On August 31, 2017, Plaintiff appeared before Judge Singleton, where he was advised he
was being detained on several charges including possession of a controlled substance with purpose
to deliver (Class D Felony), possession of drug paraphernalia (Class D Felony), maintaining a drug
premises (Class B Felony), proximity to certain facilities, delivery of a controlled substance (Class
C Felony) and maintaining a drug premises (Class C Felony). Judge Singleton then set his bond
for $250,000 after considering his family relationships, residency in Camden, and prior criminal
convictions.4 (ECF No. 34-3, pp. 1-6).
On December 4, 2018, Defendant Voss and Defendants Bradshaw and Chambers filed
separate his motions for summary judgment arguing: 1) Plaintiff’s constitutional rights were not
violated when Plaintiff was arrested and detained in his boxer shorts; 2) Defendants Bradshaw and
Chambers were not involved in Plaintiff’s arrest; 2) none of these Defendants played any role in
setting Plaintiff’s bail; and 3) Defendants are entitled to qualified immunity. (ECF Nos. 32, 36).

3

It is not clear from the record which officer made this statement.
Plaintiff had previously been convicted of domestic battery in 2008, delivery of a controlled substance in 2010, delivery of
a controlled substance in 2010, possession of a controlled substance in 2012, and delivery of a controlled substance in 2013.
(ECF No. 34-3, p. 4).

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II. LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986), the record "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).
"Once a party moving for summary judgment has made a sufficient showing, the burden rests with
the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a
genuine issue of material fact exists.” National Bank of Commerce v. Dow Chemical Co., 165 F.3d
602, 607 (8th Cir. 1999).
The non-moving party "must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient
evidence to support a jury verdict in their favor." National Bank, 165 F.3d at 607 (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). "A case founded on speculation or suspicion is
insufficient to survive a motion for summary judgment." Id. (citing, Metge v. Baehler, 762 F.2d
621, 625 (8th Cir. 1985)). “When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v.
Harris, 550 U.S. 372, 380 (2007).
III. DISCUSSION
A. Plaintiff’s arrest in his boxer shorts
Plaintiff claims Defendants Voss, Bradshaw and Chambers violated his constitutional
rights when he was arrested, transported to jail and questioned in his boxer shorts.

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1. Defendants Bradshaw and Chambers
First, the summary judgment evidence demonstrates neither Defendant Bradshaw or
Chambers had any role in the arrest, transport or interrogation of Plaintiff in August of 2017. It is
Plaintiff’s burden to demonstrate the way a defendant violated a specific constitutional right. Berge
v. VanLangen, 54 App’s 252, 253 (8th Cir. 2003) citing Martin v. Sargent, 780 F.2d 1334, 1338
(8th Cir. 1985)). To state a § 1983 claim against a defendant, Plaintiff must allege a defendant “was
personally involved in or had direct responsibility for incidents that” resulted in injury. Id.
Defendant Chambers was not at the scene of Plaintiff’s arrest. (ECF No. 37-3, p. 1).
Although Defendant Bradshaw was on the scene for Plaintiff’s arrest, he was present to assist the
Camden Police Department in executing a search warrant of Plaintiff’s residence and did not
participate in the arrest or transport of Plaintiff. (ECF No. 37-2, p. 1). Because neither Defendant
Bradshaw or Chambers were involved in Plaintiff’s arrest in his boxer shorts, they are entitled to
summary judgment.
2. Defendant Voss
Defendant Voss was one of several officers who assisted in executing the search warrant
and arrest of Plaintiff on August 29, 2017. While the Eighth Circuit has not specifically addressed
the issue of whether arresting someone in only boxers and shoes is a Fourth Amendment violation,
it has said that a violation of the right to bodily integrity must be “so egregious, so outrageous, that
it may fairly be said to shock the contemporary conscious of the court.” Villanueva v. City of
Scottsbluff, 779 F.3d 507 (8th Cir. 2015) (quoting Cnty. Of Sacramento v. Lewis, 523 U.S. 833, 847
n. 8 (1998)). Whether a search incident to an arrest is reasonable under the Fourth Amendment
requires a balancing of the scope of the intrusion, the manner in which it is conducted, the

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justification for initiating the search, and the place in which it is conducted. Bell v. Wolfish, 441
U.S. 520, 559 (1979).
“Cases addressing the reasonableness of searches involving undergarments typically focus
on cases where undergarments are intentionally removed and private areas are necessarily exposed
for the purposes of visual inspection.” Farkarlun v. Hanning, 855 F. Supp.2d 906, 927 (D. Minn.
2012). A search of a suspect incident to arrest is not unlimited in scope. Curd v. City court of
Judsonia, Ark., 141 F.3d 839, 842 (8th Cir. 1998). For example, “the interests supporting a search
incident to arrest would hardly justify disrobing an arrestee on the street…” Illinois v. Lafayette,
462 U.S. 640, 645 (1983). Partial disrobing is also disfavored but may be permissible if a suspect’s
private areas are not exposed and officers take “steps commensurate with the circumstances” to
diminish the potential invasion of a suspect’s privacy. United States v. Williams, 477 F.3d 974,
977 (8th Cir. 2007) (holding search reasonable because police took steps to protect privacy and
there was no evidence that an onlooker would have seen private areas of contact between officer
and suspect’s private areas).
When Defendant Voss arrived at Plaintiff’s residence on August 29, 2017, he and other
officers found Plaintiff in his boxer shorts and arrested him. When Plaintiff asked his girlfriend to
get him some clothes, one of the officers told him all he needed was shoes. Officers then provided
Plaintiff with shoes to wear. Plaintiff was initially detained on the front porch of his residence. He
was then transported by Officer Easttem in a police car and escorted to what appears to be a single
cell. He was then questioned in a separate room by two male officers. There is no summary
judgment evidence indicating Plaintiff’s genitals were ever exposed during the incident. Further,
there is no evidence Plaintiff was injured or suffered any physical harm because of his dress at the
time of the arrest and interrogation.

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The Court finds there was no violation of Plaintiff’s constitutional rights when he was
arrested, transported to jail, and interrogated in his boxer shorts. Accordingly, Defendant Voss is
entitled to summary judgment on this claim.
B. Excessive Bail
Plaintiff alleges that Defendants Voss, Bradshaw and Chambers used a parolee as a
confidential informant to violate his parole by participating in a controlled buy, which ultimately
resulted in Plaintiff’s arrest and $250,000 bail. Plaintiff claims his constitutional rights were
violated because the amount of bail was excessive. Plaintiff’s claim fails for several reasons.
First, the use of a parolee as a confidential informant is not relevant in establishing the
amount of bail. This issue, if relevant to anything, has more to do with whether probable cause
existed to arrest Plaintiff or some other defensive theory of the underlying criminal charge. As
previously stated, Plaintiff’s constitutional claims relating to his arrest have been stayed until his
criminal proceedings have concluded.
Second, there is no summary judgment evidence establishing that Defendants Voss,
Bradshaw or Chambers were involved in determining the amount of Plaintiff’s bail. It is the judge
who determines bail. A judge’s decision in setting bail is entitled to “great deference.” Harris v.
United States, 404 U.S. 1232 (1971). When setting bail in Arkansas, the judge considers the
following factors contained in Rule 9.2 of the Arkansas Rules of Criminal Procedure: employment
status, family relationships, past and present residence, character, the nature of the charges and
likelihood of conviction, and the defendant’s prior criminal record. Ark. R. Crim. P. 9.2. The
amount of bail rests in the reasonable discretion of the court. Foreman v. State, 317 Ark. 146
(1994).

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Here, Judge Singleton considered that Plaintiff was a lifelong resident of Camden and had
family there. However, he also noted Plaintiff’s extensive criminal history and the fact he was
being charged with numerous offenses, ranging from possession of several different substances
with an intent to deliver to illegal possession of firearms. After taking all these factors into
consideration, Judge Singleton set Plaintiff’s bail at $250,000.
Because Defendants Voss, Bradshaw and Chambers were not involved in setting Plaintiff’s
bail, they are entitled to summary judgment on this claim.
CONCLUSION
For the reasons stated above, Defendants’ Motions for Summary Judgment (ECF No. 32)
and (ECF No. 36) are GRANTED. All claims against Defendants Houston Bradshaw, Jonathan
Chambers, and John Voss are hereby DISMISSED WITH PREJUDICE.5
IT IS SO ORDERED this 14th day of February 2019.

Barry A. Bryant

/s/
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE 

5

Because the Court finds there are no violations of Plaintiff’s constitutional rights, it is not necessary for the Court to
address the issue of qualified immunity.

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