McDonald v. Lillis et al
ORDER granting in part and denying in part 24 Motion for Summary Judgment; granting as to official capacity claims against Defendants Lillis, Brazzel and Stovall; granting as to individual capacity claims against Defendants Brazzel and Stovall; denying as to individual capacity claim against Defendant Lillis. Brazzel (Warden, Miller County Detention Center) and Ron Stovall terminated. Signed by Honorable Barry A. Bryant on February 27, 2013. (cap)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CIVIL NO. 4:11-cv-04104
Corporal, Miller County Detention Center
Warden, Miller County Detention Center
Sheriff, Miller County, Arkansas
This is a civil rights action filed by Plaintiff, Eddie McDonald, pursuant to the provisions
of 42 U.S.C. § 1983 (1996). Plaintiff proceeds pro se and in forma pauperis. The Parties have
consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this case,
including conducting the trial, ordering the entry of a final judgment, and conducting all postjudgment proceedings. ECF No. 13.
Currently before the Court is Defendants’ Motion for Summary Judgment (ECF No. 24);
Brief in Support of Motion for Summary Judgment (ECF No. 25); and Statement of Facts (ECF
No. 26). Plaintiff filed a Response to the Motion for Summary Judgment utilizing a questionnaire
from the Court. ECF No. 31. Defendants have not replied, and their time to reply has passed.
See Local Rule 7.2(b). After careful consideration of the briefing, the undersigned enters the
The events that are the subject of this lawsuit occurred when Plaintiff was being detained
at the Miller County Detention Center in June of 2011. ECF No. 2; ECF No. 26 ¶ 1. Plaintiff is
currently incarcerated in the Arkansas Department of Corrections Grimes Unit in Newport,
Arkansas. ECF No. 2.
On October 21, 2011, Plaintiff filed the instant Complaint. ECF No. 2. In his Complaint,
Plaintiff alleges his constitutional rights were violated when Defendant Lillis used excessive force
against him on June 23, 2011 while he was being held in the Miller County Detention Center in
Texarkana, Arkansas. ECF No. 2, p. 10; ECF No. 26 ¶ 2. Apart the events on June 23, 2011,
Plaintiff does not claim he and Defendant Lillis had any other altercations. ECF No. 31 ¶ 4. In
addition to his claims against Defendant Lillis, Plaintiff also claims his constitutional rights were
violated by Defendants Brazzel and Stovall because they enforced an “unconstitutional policy,
custom, of [or] official action resulting in physical injury.”1 ECF No. 2, p. 10. Plaintiff has
brought this action against Defendants in both their official and individual capacities. ECF No. 2,
p. 2. With Plaintiff’s Complaint, he has attached fourteen (14) different witness statements in
support of his allegations. ECF No. 2, pp. 13-31.
Based upon his Complaint, it appears there were actually two separate altercations that both
occurred on June 23, 2011. First, Plaintiff claims he was subject to excessive force when he was
not handcuffed and was in the Max A Common Area. Specifically, Plaintiff claims this altercation
began when he claims he was denied water during a “pill call” and was directed to take his six
medications without water. ECF No. 2 ¶ 9. Because he was upset he had been denied water,
Plaintiff actually claims the Miller County Detention Center followed this unconstitutional policy, custom,
or official action and not Defendant Stovall. ECF No. 2. However, the Miller County Detention Center is not a
person subject to suit under 42 U.S.C. § 1983. ECF No. 6. Accordingly, Defendant Stovall has been substituted for
the Miller County Detention Center. Id.
Plaintiff claims he requested that a “higher ranking official” be notified. ECF No. 2 ¶¶ 11, 13.
Plaintiff claims this angered Defendant Lillis, and Defendant Lillis then aggressively shoved him
and pinned his arm behind his back. ECF No. 2 ¶ 13. Plaintiff claims that “out of fear for his
health and safety,” he then “spun around and push[ed] [Defendant] Lillis off him causing
[Defendant] Lillis to hit the floor.” Id. Plaintiff claims Defendant Lillis then “pulled out an
adjustable nightstick and attacked” him again. Id. Plaintiff claims he submitted to Defendant
Lillis on his own, put his hands behind his back, and faced the wall. Id. Plaintiff claims
Defendant Lillis then “horse-collared” him so that he fell chest and face first, which caused severe
pain to his face. Id. Plaintiff claims he was then handcuffed behind his back. Id.
Second, Plaintiff alleges excessive force after he was handcuffed and taken into a hallway
outside the Max A Common Area. ECF No. 2 ¶ 13. He claims that once he was handcuffed, he
was led into the hallway and was then “aggressively and forcibly shoved” face-first into two
different doorways. Id. Plaintiff also claimed he was “kicked” in the leg and chocked down, all
while he was handcuffed. Id. Plaintiff claims he was then picked back up and “forcible shoved”
into the door again. Id. Plaintiff claims that as a result of these injuries, he was unconscious for
two to three minutes and suffered a knot on his head. Id. Plaintiff claims Defendant Lillis then
called for back up, and Plaintiff was examined but was not seen by a nurse. ECF No. 2 ¶ 14.
Plaintiff also claims the day after this incident, Defendant Brazzel reviewed the video of
the event and investigated Plaintiff’s allegations. ECF No. 2 ¶ 15. During the investigation, the
Miller County Detention Center “staff” took pictures of his face and leg, and after the investigation
had been completed, he was given a trustee job in the kitchen. Id. Plaintiff claims that because
of these events, Defendants Brazzel and Stovall are also liable for the actions of Defendant Lillis.
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). “[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 moving party has the burden of showing the absence
of a genuine issue of material fact and that they are entitled to judgment as a matter of law, but
the nonmoving party may not rest upon mere denials or allegations in the pleadings and must set
forth specific facts to raise a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
The Court must view all evidence and inferences in a light most favorable to the
nonmoving party. See McCleary v. ReliaStar Life Ins. Co., 682 F.3d 1116, 1119 (8th Cir. 2012).
However, “[w]hen 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).
In their Motion for Summary Judgment, Defendants argue: (A) Plaintiff’s official capacity
claims against Defendants should be dismissed because there is no evidence this alleged
constitutional violation was the result of a “governmental custom or policy”; (B) Plaintiff has no
basis for his separate claims against Defendants Brazzel and Stovall because neither are liable
under the facts in this case for the alleged actions of Defendant Lillis; and (C) Plaintiff has not
demonstrated there a fact issue as to whether Defendant Lillis used excessive force against him.
ECF No. 25. The Court will address each of Defendants’ arguments.
OFFICIAL CAPACITY CLAIMS
Plaintiff claims Defendants violated his constitutional rights in their official capacities by
Defendant Lillis’s use of excessive force against him on June 23, 2011. ECF No. 2 ¶ 12. Plaintiff
claims Defendant Lillis’s actions in taking this matter into his “own hands” and injuring him was
the result of a “policy, custom, or official action” of the Miller County Detention Center. Id.
Plaintiff’s only evidence that this is a “policy, custom, or official action” is his bare claim that he saw
Defendant Lillis use excessive force three months prior to the incident in question. ECF No. 25-3,
p. 16. Additionally, Plaintiff claims the other inmates reported Defendant Lillis had used excessive
force in the past. Id.
Under Section 1983, a defendant may be sued in either his individual capacity, or in his
official capacity, or in both. In Gorman v. Bartch, the Eighth Circuit Court of Appeals (“Eighth
Circuit”) discussed the distinction between individual and official capacity suits. As explained by
the Gorman case:
Claims against government actors in their individual capacities differ from those in
their official capacities as to the type of conduct that is actionable and as to the type
of defense that is available. See Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116
L.Ed.2d 301 (1991). Claims against individuals in their official capacities are
equivalent to claims against the entity for which they work; they require proof that
a policy or custom of the entity violated the plaintiff's rights, and the only type of
immunity available is one belonging to the entity itself. Id. 502 U.S. at 24–27, 112
S.Ct. at 361–62 (1991). Personal capacity claims, on the other hand, are those
which allege personal liability for individual actions by officials in the course of
their duties; these claims do not require proof of any policy and qualified immunity
may be raised as a defense. Id. 502 U.S. at 25–27, 112 S.Ct. at 362.
Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir.1998) (emphasis added). The proof of a “policy
or custom” requires more than a single incident. See Oklahoma City v. Tuttle, 471 U.S. 808, 811
In the present action, Plaintiff has failed to provide evidence of any policy, custom, or
official action by the Miller County Detention Center that would cause Defendants to be liable in
their official capacities. Indeed, apart from his bare claim that he and other inmates saw Defendant
Lillis use excessive force at other times, there is not even an indication in the record that this was
anything other than a single, isolated incident. Accordingly, without summary judgment evidence
demonstrating this action was taken pursuant to a policy, custom, or official action, Defendants are
not liable in their official capacities. See Gorman, 152 F.3rd at 914. Thus, Defendants’ Motion
for Summary Judgment as to Plaintiff’s official capacity claims is GRANTED.
INDIVIDUAL CAPACITY CLAIMS: DEFENDANTS BRAZZEL AND STOVALL
Defendants claim the individual capacity claims against Defendants Brazzel and Stovall
should be dismissed. ECF No. 25, p. 7. Plaintiff alleges Defendants Brazzel and Stovall are liable
in their individual capacities because they did not respond to the June 23, 2011 in an acceptable
manner. ECF No. 2 ¶ 15; ECF No. 31 ¶ 3; ECF No. 25-3, p. 13-14. Specifically, Plaintiff claims
that “[b]oth the Defendants knew of what went on [during the incident in question] and never did
report it.” ECF No. 31 ¶ 3;
Under Section 1983, an official can only be held liable for his own conduct and cannot be
held liable for the misconduct of a subordinate official under the theory of respondeat superior. See
Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010). “A general responsibility for supervising the
operations of a prison is insufficient to establish the personal involvement required to support
liability.” Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997) (citation omitted). See also Rode
v. Dellarciprete, 845 F.2d 1195, 1208 (3rd Cir. 1988) (holding participation in an after-the-fact
review of a grievance is not sufficient to establish personal involvement in the grieved incident).
In the present action, Plaintiff does not dispute Defendant Lillis is the only Defendant who
allegedly used excessive force against him. ECF No. 31 ¶ 3; ECF No. 25-3, p. 13-14. As noted
above, Defendants Brazzel and Stovall are not vicariously liable for the conduct of their subordinate
Defendant Lillis. See Langford, 614 F.3d at 460. Further, their alleged after-the-fact review of
Defendant Lillis’s conduct does not subject them to liability. See Keeper, 130 F.3d at 1314. Finally,
it is also important to note that Plaintiff has not provided any evidence demonstrating this is a case
where Defendants Brazzel and Stovall knew at the time of the events in question that Defendant
Lillis was allegedly using excessive force. See, e.g., Livers v. Schenck, 700 F.3d 340, 360 (8th Cir.
2012) (holding “[a] law enforcement officer who knows another officer is using excessive force has
a duty to intervene”). Accordingly, Defendants’ Motion for summary judgment as to the individual
capacity claims against Defendants Brazzel and Stovall is GRANTED.
INDIVIDUAL CAPACITY CLAIM: DEFENDANT LILLIS
Plaintiff alleges Defendant Lillis used excessive force against him on June 23, 2011, and
he is liable in his individual capacity. ECF No. 2. As outlined in further detail above, Plaintiff
claims this excessive force included being denied water when taking his medication, attacked with
a baton, aggressively shoved,“horse-collared” onto the ground, and pushed into two different doors.
Id. In response, Defendants argue Defendant Lillis’s conduct was objectively reasonable under the
circumstances. ECF No. 25 at 7-9. As such, his conduct does not qualify as “excessive force.”
In evaluating an excessive force claim under the Eighth Amendment, the relevant inquiry
is whether the force used was applied in a good-faith effort to maintain or restore discipline or was
used to maliciously and sadistically cause harm. See U.S. v. Miller, 477 F.3d 644, 647 (8th Cir.
2007). In deciding whether a particular use of force was reasonable, the Court is required to
consider whether there was an objective need for force, the relationship between the need and the
amount of force used, the threat reasonably perceived by correctional officers, the efforts by the
officers to temper the severity of the forceful response, and the extent of the inmate’s injuries. See
Johnson v. Hamilton, 452 F.3d 967, 972 (8th Cir. 2006) (citation omitted).
As noted above, there are two different alleged incidents from June 23, 2011 wherein
Plaintiff claims Defendant Lillis used excessive force. ECF No. 2 ¶ 13. In the first incident,
Plaintiff was not handcuffed and engaged in a “scuffle” with Defendant Lillis while in the Max
A Common Area. Id. The second incident took place in the hallway outside the Max A Common
Area and occurred while Plaintiff was handcuffed. Id. There is a surveillance videotape of both
altercations, and this videotape has been submitted in support of the Motion for Summary
Judgment. ECF No. 25-2. The Court has reviewed this videotape.
Based upon this videotape, it appears that during this first altercation, Plaintiff approached
Defendant Lillis while Defendant Lillis was placing an inmate in his cell. ECF No. 25-2 (5:25 in
the video). The videotape has no sound, but it appears the two were having a discussion. Id. The
argument evidently became heated, and Defendant Lillis aggressively approached Plaintiff. Id.
Plaintiff and Defendant Lillis engaged in a brief scuffle. Id. Plaintiff then forcefully threw
Defendant Lillis onto the ground. Id. Defendant Lillis recovered, appeared to remove a set of
handcuffs, and attempted to place them on Plaintiff. Id. After he was able to handcuff Plaintiff,
he walked him outside of the Max A Common Area. Id. The time from the beginning of this
altercation until the end was approximately one minute. Id. (6:29 in the video).
Thereafter, during the second altercation, Plaintiff was escorted from the Max A Common
Area out into the hallway. ECF No. 25-2 (33:51 in the video). Plaintiff was handcuffed. Id.
Upon entering the hallway and out of the Max A Common Area, it appears Defendant Lillis and
Plaintiff were still engaged in an argument. Id. Defendant Lillis then shoved Plaintiff against a
door twice, and Defendant Lillis forced Plaintiff to the ground. Id. At that point, Plaintiff was on
the ground and handcuffed, and Defendant Lillis called for backup. Id.
In this case, based upon the videotape, it is unclear whether the actions of Defendant Lillis
qualify as excessive force under the standard outlined above. Indeed, the videotape submitted to
this Court does not provide the sound, and it is unclear what statements were made between
Plaintiff and Defendant Lillis. This is especially true during the second altercation when Plaintiff,
while in handcuffs and away from the other prisoners, was shoved into the doorway two different
times and then thrown to the ground. ECF No. 25-2 (33:43 in the video). Defendant Lillis claims
he took these actions because Plaintiff was being verbally abusive and was attempting to “pull
away” from him. ECF No. 25-1, p. 2. Plaintiff contests that claim, and as noted above, the
videotape is unclear. Accordingly, because of this dispute, there is a triable fact issue as to
whether Defendant Lillis used excessive force against Plaintiff, and Defendants’ Motion for
Summary Judgment as to the individual capacity claim against Defendant Lillis is DENIED.
For the reasons stated, Defendants’ Motion for Summary Judgment (ECF No. 24) is
GRANTED as to the official capacity claims against Defendants Lillis, Brazzel, and Stovall and
is GRANTED as to the individual capacity claims against Defendants Brazzel and Stovall.
Further, this Motion is DENIED as to the individual capacity claim against Defendant Lillis.
DATED this 27th day of February 2013.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U. S. MAGISTRATE JUDGE
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