Ulrich v. Thornton et al

Filing 35

ORDER granting in part and denying in part 26 Motion for Partial Summary Judgment; granting as to Plaintiff's official capacity § 1983 claims and they are dismissed with prejudice; denying as to individual capacity intentional-tort claims. The Plaintiff's individual-capacity § 1983 claims, official-capacity tort claims, and individual-capacity tort claims remain for trial. Signed by Honorable Susan O. Hickey on May 29, 2012. (jn) Modified on 5/30/2012 to edit text (cap).

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION

WILLIAM E. ULRICH

VS.

PLAINTIFF

CASE NO. 4:10-CV-04024

DEPUTY J. THORNTON, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY WITH
THEHEMPSTEAD COUNTY SHERIFF’S
DEPARTMENT; DEPUTY GARY DORMAN,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY WITH THE HEMPSTEAD COUNTY
SHERIFF’S DEPARTMENT

DEFENDANTS

ORDER
Before the Court is Defendants J. Thornton’s and Gary Dorman’s Motion for Partial
Summary Judgment. (ECF No. 26). The Plaintiff has responded (ECF No. 32), and the matter is
ripe for the Court’s consideration. For the following reasons, the Defendants’ motion will be
granted in part and denied in part.
The Plaintiff’s action against the Defendants is based on the Plaintiff’s arrest on March
24, 2009. Around 6:00 that evening, the Plaintiff noticed Herman Keel, his neighbor with whom
he had been having a property dispute, on his property. Mr. Keel had called the Sheriff’s
Department out to his property to explore a flooding problem that Mr. Keel believed the Plaintiff
had caused. The Plaintiff approached Mr. Keel, who was talking to Deputy Thornton, and asked
Mr. Keel to leave the Plaintiff’s property. Deputy Dorman then approached the Plaintiff and told
him to back off. A heated exchange ensued, and the Plaintiff was arrested and charged with
disorderly conduct. He was found guilty of that charge at trial.

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The Plaintiff filed suit against the deputies in their individual and official capacities
claiming: 1) use of excessive force and failure to train under 42 U.S.C. § 1983; 2) intentional
infliction of emotional distress; and 3) battery. The Plaintiff seeks compensatory and punitive
damages on each of his claims. In their motion for partial summary judgment, the Defendants
ask for judgment on their official-capacity liability. The Defendants contend that, viewing the
facts most favorably to the Plaintiff, there is no basis for liability in their official capacities.
STANDARD OF REVIEW
The standard of review for summary judgment is well established. 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. County of LeSueur, 47 F.3d 953 (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 Wisconsin Paper Corp. v. Paper Indus. UnionManagement 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 v. Liberty Lobby, Inc., 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.

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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. Enterprise Bank v. Magna
Bank, 92 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 v. County of LeSueur, 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 v. Liberty Lobby,
Inc., 477 U.S. 256.
DISCUSSION
The Plaintiff’s claims may be grouped into two types for the purpose of summaryjudgment analysis: 1) § 1983 claims; and 2) intentional-tort claims. The Defendants’ argument
against official-capacity liability on both types of claims rests on the Defendants’ government
status. A defendant’s government status is analyzed differently under each type of claim, and so
the Court will take each in turn.
1. Section 1983 claims
Under 42 U.S.C. §1983, a citizen is authorized to file suit against anyone who, under
color of law, deprives the citizen of “any rights, privileges or immunities secured by the
Constitution.” 42 U.S.C. § 1983 (2006). The Plaintiff has brought suit under that statute claiming
various constitutional violations. The Defendants’ move for summary judgment in their official
capacities on the Plaintiff’s excessive-force and failure-to-train claims.
A suit against a person in his official capacity is treated as a suit against the state. Hafer
v. Melo, 502 U.S. 21, 25 (1991). A local government may not be sued under § 1983 based solely

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on the acts of its employees. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,
694 (1978). A local government may, however, be liable where lawmakers, or those whose acts
represent official policy, establish a policy or custom that inflicts constitutional injury. Id.
Government-policy liability exists where final policymakers deliberately choose to follow a
course of action chosen from among various alternatives, and the course of action causes
constitutional injury. Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). Governmentcustom liability exists where the Plaintiff shows:
1) The existence of a continuing, widespread, persistent pattern of unconstitutional
misconduct by the governmental entity's employees;
2) Deliberate indifference to or tacit authorization of such conduct by the
governmental entity's policymaking officials after notice to the officials of that
misconduct; and
3) That plaintiff was injured by acts pursuant to the governmental entity's custom,
i.e., that the custom was the moving force behind the constitutional violation.
Ware v. Jackson County, Mo., 150 F.3d 873, 880 (8th Cir. 1998) (citing Jane Doe A By and
Through Jane Doe B v. Special School Dist. Of St. Louis County, 901 F.2d 642, 646 (8th Cir.
1990) (internal citation omitted)).
1.1

Excessive Force

Official-capacity liability1 for a government custom requires proof of a continuing,
widespread, and persistent pattern of unconstitutional conduct by government employees. Ware
v. Jackson County, Mo., 150 F.3d 873, 880 (8th Cir. 1998). The Defendants’ Motion does not
discuss whether the deputies’ conduct was unconstitutionally excessive, but the Court may
assume for now that it was. Still, the Plaintiff here has not shown sufficient facts to demonstrate

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The Plaintiff may not allege government-policy liability on his excessive force theory, because the deputies who
arrested the Plaintiff did not have policy making authority, and the Plaintiff has not claimed that the sheriff’s
department deliberately chose a policy of excessive force.

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a pattern of such conduct. All of his allegations relate to his experience on March 24, 2009. That
single experience is not enough to show a widespread pattern of misconduct. Therefore, the
Court finds that summary judgment for the defendants in their official capacities is proper on the
Plaintiff’s excessive-force claim.
1.2

Failure to Train

In his Complaint, the Plaintiff claims that the Hempstead County Sheriff’s Department
does not have an adequate policy to prevent officers from getting involved in civil disputes and
taking sides. (ECF No. 1, at 4). Because the Department lacked such a policy, the Plaintiff
argues, the individual Defendants who arrested the Plaintiff were not adequately trained to deter
the type of behavior that harmed the Plaintiff. (ECF No. 1, at 4).
A government agency can be liable for inadequately training its employees. City of
Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). But inadequate police training only supports a
§ 1983 claim where the failure to train “amounts to deliberate indifference to the rights of
persons with whom the police come into contact.” Id. In the Eighth Circuit, on-the-job training
and education at a police academy are typically sufficient to avoid failure-to-train liability. See,
e.g., Andrews v. Fowler, 98 F.3d 1069, 1078–79 (8th Cir. 1996) (two weeks on-the-job training
and police-academy training within one year of employment found sufficient); Williams-El v.
Johnson, 872 F.2d 224, 230 (8th Cir. 1989) (policy of city to give on-the-job and police-academy
training found sufficient).
The Defendants note that both deputies involved in the Plaintiff’s alleged harm had
completed the Arkansas Law Enforcement Training Academy program, which is required of all
Arkansas law-enforcement officers. The deputies also had on the job training. The Plaintiff has
not offered evidence to dispute that training, and a bare assertion that the officers were not

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adequately trained will not survive summary judgment. The Plaintiff has failed to raise a material
issue of fact regarding the sufficiency of the deputies’ training in this case. Therefore, the Court
finds that summary judgment for the Defendants in their official capacities is proper on the
Plaintiff’s failure-to-train claim.
2. Intentional-tort liability
The Plaintiff claims that the Defendants committed the intentional torts of battery and
outrage against him. As in the Plaintiff’s § 1983 claims, the Court does not now discuss the
Defendants’ underlying liability for those torts, because the Defendants have not raised that issue
in their Motion. The only issue currently before the Court is whether the Defendants in their
official capacities are immune from the Plaintiff’s intentional-tort claims.
Deputies Thornton and Dorman seek shelter under an Arkansas statute making
government actors immune from tort liability. ARK. CODE. ANN. § 21-9-301 (West 2012).
Whether an official is covered by the statute is a question of law. City of Farmington v. Smith,
237 S.W.3d 1, 5 (Ark. 2006). The Arkansas Supreme Court has “consistently held that section
21-9-301 provides city employees with immunity from civil liability for negligent acts, but not
for intentional acts.” Id. The government-immunity statute thus does not shield government
actors from intentional-tort liability. Deitsch v. Tillery, 833 S.W.2d 760, 762 (Ark. 1992); Battle
v. Harris, 766 S.W.2d 431, 433 (Ark. 1989); Martin v. Hallum, ___S.W.3d___, 2010 Ark. App.
193. That point of Arkansas law is clear, and so the intentional-tort claims against the individual
deputies in their official capacities must remain.
CONCLUSION
For the above reasons, the Defendants’ Motion for Partial Summary Judgment (ECF No.
26) should be and hereby is GRANTED as to the Plaintiff’s official-capacity § 1983 claims.

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Those claims are therefore DISMISSED WITH PREJUDICE. The Defendants’ Motion for
Partial Summary Judgment should be and hereby is DENIED as to the Plaintiff’s officialcapacity intentional-tort claims. The Plaintiff’s individual-capacity § 1983 claims, officialcapacity tort claims, and individual-capacity tort claims remain for trial.
IT IS SO ORDERED, this 29th day of May, 2012.

/s/ Susan O. Hickey
Hon. Susan O. Hickey
United States District Judge

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