Duren v. Watson et al

Filing 33

MEMORANDUM OPINION granting in part and denying in part 25 Motion for Summary Judgment; Officer Moon (Added from member case 12-4052), Alvin Howard (Added from member case 12-4052) and Alice Miller (Added from member case 12-4052) terminated. Signed by Honorable Barry A. Bryant on March 28, 2014. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
WILLIAM B. DUREN
v.

PLAINTIFF

Civil No. 4:12-cv-04015 & 4:12-cv-04052

KIM WATSON, Disciplinary Committee
Judge; CAPTAIN STEVE HARTLINE;
WARDEN M. BRAZWELL; CORPORAL
HANNING; ALICE MILLER; ALVIN
HOWARD; OFFICER MOON, and
HAROLD RIGSBY

DEFENDANTS

MEMORANDUM OPINION
This is a civil rights case brought by the Plaintiff under the provisions of 42 U.S.C. § 1983.
He proceeds pro se and in forma paupers. The case is before me pursuant to the consent (ECF No.
16) of the parties.
Plaintiff is currently incarcerated in a Texas Department of Criminal Justice facility in
Tennessee Colony, Texas. At all times relevant to this case, Plaintiff was incarcerated in the Miller
County Detention Center (MCDC) located in Texarkana, Arkansas.
While incarcerated at the MCDC, Plaintiff maintains his constitutional rights were violated
in the following ways: (1) he was denied due process in connection with a disciplinary charge he
was given following an incident on January 9, 2012; (2) excessive force was used against him on
February 1, 2012; and (3) excessive force was used against him on February 6, 2012.
Currently before me for decision is the partial summary judgment motion (ECF Nos. 25-27)
filed by the Defendants.1 Plaintiff has responded (ECF No. 32) to the motion.

1

The motion does not address the claim that Captain Hartline denied Plaintiff a due process hearing in retaliation for Plaintiff filing a
grievance against Hartline.

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1. Background
On December 7, 2011, Plaintiff was booked into the MCDC. Defendants’ Exhibit A
(hereinafter Defts’ Ex.). Marty Brazell is the jail warden. Plaintiff’s Exhibit (hereinafter Plff’s Ex.)
C at pg. 1.
On January 7, 2012, a contraband shakedown was done. Defts’ Ex. D. Plaintiff had four
“kites” or notes. Id. Plaintiff was charged with a D-9 disciplinary violation. Id. A D-9 violation
is possession of any items not authorized for retention. Defts’ Ex. K at pg. 4.
According to the disciplinary policy, ordinarily, a charged inmate would appear before the
disciplinary committee2 within three working days after receipt of the written disciplinary report,
excluding weekends, holidays, and Court days. Defts’ Ex. K at pg. 6. Exceptions to the three day
rule include the inmate being on suicide watch; the inmate being disruptive or presenting a safety
threat to staff or others; the inmate being absent from the facility; or when the possibility of criminal
charges against the inmate are being considered. Id. at pgs. 6-7. See also Resp. at ¶ 48.
On January 9th, a disciplinary hearing was held. Defts’ Ex. B. Plaintiff was put on
disciplinary segregation and lost his commissary and visitation privileges for seven days. Id. He
was given three days credit for time he already served. Id. He was to be released from disciplinary
segregation on January 13th. Id.; Resp. at ¶ 6; Plff’s Ex. B.
On January 10th, Plaintiff was involved in a fight with inmate Ellingburg. Defts’ C; Resp.
at ¶ 5. At the time, Plaintiff was still on lock-down from the January 7th disciplinary violation and
he remained on lock-down. Defts’ Ex. C; Plff’s Resp. at ¶ 6. He was served with a warrant on the
criminal charge on January 20th. Amended Complaint (ECF No. 22)
Plaintiff was criminally charged with aggravated assault. Defts’ Ex. C. In accordance with
2

A committee is no longer utilized. Plff’s Ex. 2 at pg. 2. Instead, since February 1, 2011, there is a disciplinary hearing officer, Kim
Watson, who hears the cases on Monday of each week. Plff’s Ex. D at pg. 3; Plff’s Ex. J at pg. 1. In Watson’s absence, Captain Hartline is
certified as a disciplinary officer. Plff’s Ex. J at pg. 2. The copy of the disciplinary policy provided to the Court has not been updated.

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the disciplinary policy, “[t]he disciplinary procedure [was] suspended pending criminal prosecution
or declination by the [Criminal Investigation Division].” Defts’ Ex. K. The criminal charge was
resolved on January 23rd when Plaintiff pled guilty. Resp. at ¶ 49. According to Watson and
Hartline, Plaintiff was being held in administrative segregation and not disciplinary segregation
during the time the disciplinary charge was in suspension. Plff’s Ex. D at pg. 2; Plff’s Ex. J at pg.
2.
On February 6th, a disciplinary hearing was held on the January 9th disciplinary violation.
Defts’ Ex. C.; Resp. at ¶ 47. Watson maintains that the hearing was held on the earliest possible date.
Pff’s Ex. D at pg. 1. Plaintiff was charged with violation of A-3 which is aggravated assault. Defts’
Ex. K at pg. 2. Plaintiff was found guilty and assigned to disciplinary segregation and loss of
commissary and visitation for sixty days. Defts’ Ex. C. He was given fourteen3 days for time already
served. Id. He was to be released on March 23rd. Id. Plaintiff maintains the hearing was a sham
and did not satisfy due process. Resp. at ¶ 47.
On February 1st, officers engaged in hand to hand combat with the Plaintiff. Defts’ Ex. D
Officer Mitchell Moon was involved in the incident. Id. at ¶ 3. Moon indicates that Plaintiff was
in the day room and refusing to go back to his cell. Defts’ Ex. E. According to Plaintiff, he had
asked Officer Murray to speak with a supervisor and was told by “to hang on” while Murray checked
with the supervisor. Resp. at ¶ 9. Plaintiff indicates he sat down at the table while waiting. Id.
Sergeant Alice Miller arrived with several other officers. Defts’ Ex. E. Moon, Officer Alvin
Howard, and Officer Harold Rigsby, entered the pod. Id. at ¶ Plaintiff was sitting at a table. Id.
He was “given several verbal commands to return to his cell and refused.” Id. at ¶ 8. Moon and

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It is not clear how the fourteen days was calculated. There are twenty-four calendar days between January 13th, when he would have
been off disciplinary segregation, and February 6th ,when the hearing was held. It appears that he may have been given credit for the days between
his conviction on the criminal charge and the date the hearing was held.

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Howard each grabbed Plaintiff by an arm in order to physically put him back into his cell. Id. at ¶
9. Howard states that the Plaintiff was in a combative state. Plff’s Ex. H at pg. 3. Defendants assert
that Plaintiff began resisting and kicked Rigsby. Defts’ Ex. E at ¶ 10. Plaintiff, however, states he
was attempting to defend himself from an assault. Resp. at ¶ 15. He states that he did accidentally
kick Rigsby. Id.
Plaintiff indicates that Howard pulled him off the table by his left arm and then put Plaintiff
in a choke hold. Resp. at ¶ 14. Moon grabbed Plaintiff’s legs. Defts’ Ex. E. at ¶ 11. Plaintiff asserts
that Howard slammed him to the ground face first and landed on his back. Resp. at ¶ 16. According
to Moon, Howard never choked the Plaintiff. Defts’ Ex. E. at ¶ 13. Howard indicates that he and
the other officers had to pick Plaintiff up by his arms and legs to carry him to his cell because he
would not obey the orders to return to his cell. Plff’s Ex. H at pg. 1.
Miller was present and directed Plaintiff to return to his cell. Plff’s Ex. H at pg. 6. Miller did
not use any physical force. Id.; see also Plff’s Ex. O at pgs. 2-3. She did not attempt to stop the use
of physical force by the officers. Plff’s Ex. O at pg. 4.
After Plaintiff was subdued, he was taken to the nurse to determine if he had any injuries.
Defts’ Ex. E at ¶ 12; Defts’ Ex. F. The nurse’s notes indicate Plaintiff denied having any injuries.
Defts’ Ex. F. Plaintiff, however, states he reported pain in his neck and back and a cut in his mouth.
Resp. at ¶ 15. No disciplinary violation was issued. Plff’s Ex. F at pg. 5. Both Brazell and Captain
Hartline review cases where officers use force on inmates. Plff’s Ex. C at pg. 4.
The next incident began on February 6th around 10:00 a.m. Defts’ Ex. I. Corporal Hanning
accompanied by D. Floyd, Murray, and Rigsby entered the cell block. Defts’ Ex. H. Plaintiff refused
to return to his cell. Id. According to Defendants, Plaintiff responded: “Well I guess [you are] gonna
have to gas me.” Id. Plaintiff denies having made this statement. Resp. at ¶ 26. He indicates he

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merely said that he needed to speak to the warden. Id.
After three direct orders to return to his cell were ignored by Plaintiff, Hanning administered
a short one second burst of OC pepper spray to Plaintiff’s facial area Defts’ Exs. H & I. Plaintiff
states he was not given any direct orders. Resp. at ¶ 27. Furthermore, he indicates the first use of
the spray hit him in the back of his head. Id. at ¶ 28.
Plaintiff retreated to the back of the cell. Defts’ Ex. I. Hanning told Plaintiff to go to the
ground. Id. Plaintiff asserts that he never heard an order to go to the ground. Id. at ¶ 30.
When Plaintiff did not obey, Hanning administered another short burst of OC pepper spray.
Defts’ Ex. I. Plaintiff was directed again to go to the ground. Id. He did not comply and Hanning
administered a third short burst of spray. Id. According to Hanning, only approximately thirty
seconds passed between the first and third applications of the spray. Plff’s Ex. G at pg. 3.
Plaintiff ran toward the shower and attempted to wash his face off. Defts’ Ex. I. Plaintiff
physically resisted but the officers were able to gain control of Plaintiff. Deft’ Ex. I; Resp. at ¶ 32.
Plaintiff was placed in hand restraints until the restraint chair was brought into the pod. Defts’ Ex.
I; Resp. at ¶ 32. He was placed in the restraint chair at approximately 10:45. Resp. at ¶ 34. Plaintiff
was checked for injuries by the nurse and was allowed to decontaminate himself in the shower at
about 10:50 a.m. Defts’ Ex. I; Resp. at ¶ 34. Plaintiff notes that he was not handcuffed or otherwise
restrained while he showered. Resp. at ¶ 34.
After he changed into a clean uniform, Plaintiff was placed back into the restraint chair at
approximately 11:10 a.m. Defts’ Ex. I. According to Hanning, Brazell made the decision that
Plaintiff should be put back in the restraint chair. Plff’s Ex. G at pg. 4. Plaintiff was removed from
the restraint chair at 1:45 p.m.. Id.; Resp. at ¶ 36.
Defendants submitted a video showing Plaintiff being placed in the restraint chair. Defts’ Ex.

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J. Plaintiff was put in the restraint chair and it was wheeled out of view of the camera for a short
time period. Defts’ Ex. J; Resp. at ¶ 43. A few minutes later he was removed from the restraint chair,
presumably to shower. Id. He was put back in the restraint chair approximately twenty-five minutes
later. Id. He remained in the restraint chair for approximately two and a half hours. Id. Plaintiff
was not harmed when put in the restraint chair and wasn’t left in a dangerous situation. Id. at ¶¶ 4445.
Plaintiff was charged with a C-54 disciplinary violation for refusing to obey the orders of a
staff member. Defts’ Ex. H. Plaintiff was released from the MCDC on February 15th. Plff’s Ex.
C at pg. 1.
2. Summary Judgment 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, 106 S. Ct. 2505, 91 L. Ed.2d 202 (1986)). "A case founded on

4

The disciplinary policy submitted as an exhibit, Defendants’ Exhibit K, does not contain a C-5 violation.

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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)).
3. Discussion
Section 1983 provides a federal cause of action for the deprivation, under color of law, of a
citizen's "rights, privileges, or immunities secured by the Constitution and laws" of the United States.
In order to state a claim under 42 U.S.C. § 1983, plaintiff must allege that the defendant acted under
color of state law and that he violated a right secured by the Constitution. West v. Atkins, 487 U.S.
42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999).

The deprivation must be

intentional; mere negligence will not suffice to state a claim for deprivation of a constitutional right
under § 1983. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986).
(A). Due Process
When “an inmate is deprived of privileges or placed in a special confinement status in order
to punish him for past misconduct, due process requires some kind of hearing beforehand.” Jones
v. Mabrey, 723 F.2d 590, 594 (8th Cir. 1983). "The Supreme Court has outlined the procedures
correctional facilities must follow to conduct an impartial due process hearing on a disciplinary
matter." Hartsfield v. Nichols, 511 F.3d 826, 830 (8th Cir. 2008)(citing Wolff v. McDonnell, 418
U.S. 539, 563-66 (1974)). These procedures include written notice of the charges, a brief period to
prepare, a written statement of the evidence relied on and reasons for the disciplinary action, and the
ability for the inmate to call witnesses and present documentary evidence. Id; see also Dible v.
Scholl, 506 F.3d 1106, 1110 (8th Cir. 2007).
Once Plaintiff’s guilt on the criminal charge was established, Defendants maintain Plaintiff
was not even entitled to a disciplinary hearing. Defendants also argue they correctly followed the
disciplinary policy and suspended determination of the disciplinary violation until after the criminal

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charge had been concluded. Finally, Defendants maintain that the short duration, less than a month,
is insufficient to state a due process claim.
Plaintiff points out that he remained on disciplinary segregation after January 13th when he
was due to be released from segregation. Additionally, he points out that the criminal case was
resolved on January 23rd but he did not receive a hearing that day or on January 30th although other
disciplinary hearings were held. Finally, he maintains the policy itself is unconstitutional.
In Brown-El v. Delo, 969 F.2d 644 (8th Cir. 1992), the Court noted that it did:
not quarrel with the prison’s need to segregate individual inmates from the general
prison population for non-punitive reasons; for example, where the inmate is being
held pending an investigation of misconduct charges or where there is a threat to the
safety and security of the institution. Absent a showing of an expressed intent to
punish by the prison officials, whether an inmate is segregated for “punitive” reasons
or for administrative purposes generally will turn on whether the detention is
reasonably related to a legitimate government objective. If the decision to segregate
is arbitrary or purposeless, a court may infer that the purpose of the governmental
action is punishment that may not be constitutionally inflicted upon inmates.
Id. at 647-48 (internal quotation marks and citations omitted).
In this case, Plaintiff was held in disciplinary segregation from January 13th to February 6th
when a hearing was held. As noted above, Watson asserts that Plaintiff was being held in
administrative segregation pending the disciplinary hearing. Nothing in the summary judgment
record indicates that Plaintiff’s status or conditions of confinement changed. Hartline indicates the
Plaintiff was housed in Max Alfa from January 9th to February 6th because of his physical altercation
with another inmate. Plff’s Ex. N at pg. 1. Plaintiff was kept on 23-hour lock-down. Plff’s Ex. P at
pg. 7.
Defendants indicate that the disciplinary policy was suspended while the criminal charge was
pending but do not explain their reasons for continuing to hold Plaintiff in disciplinary segregation
during the suspension period or after the criminal case was resolved. A question of fact exists as to
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whether Plaintiff was being punished for a disciplinary violation without the hearing requirements
set forth in Wolff being complied with.
Defendants have relied on Sandin v. Conner, 515 U.S. 472, 486 (1995). They assert that
Plaintiff must show some type of atypical and significant deprivation before his liberty interest is
implicated. Sandin applies to convicted inmates not to pretrial detainees. See e.g., Bistrian v. Levi,
696 F.3d 352, 373 (3d Cir. 2012). Nothing in the summary judgment record indicates Plaintiff was
in convicted status prior to January 23rd.
I reject Plaintiff’s argument that the disciplinary policy is itself unconstitutional. It is not the
policy that Plaintiff disagrees with. Instead, it is the way the policy was applied in his case.
(B). Excessive Force--February 1, 2012
“When confronted with a claim of excessive force alleging a violation of the Eighth
Amendment, the core judicial inquiry is ‘whether force was applied in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to cause harm.’” Santiago v. Blair, 707 F.3d
984, 990 (8th Cir. 2013)(quoting Hudsonv. McMilliam, 503 U.S. 1, 6-7 (1992)). “[E]very malicious
push or shove does not amount to a deprivation of constitutional rights.” Hickey v. Reeder, 12 F.3d
754, 757 (8th Cir. 1993).
The Court must consider such factors as the need for the application of force, the relationship
between the need and the amount of force that was used, the extent of the injury inflicted, the threat
to the safety of the staff and inmates, and any attempt to temper the severity of the response.
Whitley v. Albers, 475 U.S. 312, 321 (1986).
In Wilkins v. Gaddy, 590 U.S. 34 (2010), the Supreme Court held that “the extent of any
resulting injury, while material to the question of damages and informative as to the likely degree of

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force applied is not in and of itself a threshold requirement for proving this type of Eighth
Amendment claim.” Williams v. Jackson, 600 F.3d 1007, 1012 (8th Cir. 2010).
In this claim, Moon, Howard, and Rigsby are entitled to summary judgment in their favor.
Even assuming Plaintiff did not hear the verbal orders given him, he concedes he began to defend
himself by struggling and kicking when the officers took hold of his arms. These actions justified
the use of some amount of additional force to gain control of the Plaintiff.
The type or amount of force used during this incident is not repugnant to the conscience of
mankind. Jones v. Shields, 207 F.3d 491, 496 (8th Cir. 2000). Indeed, the Eighth Circuit has
recognized that “summary applications of force are constitutionally permissible when prison security
and order, or the safety of other inmates or officers, has been placed in jeopardy.” Hickey v. Reeder,
12 F.3d 754, 757 (8th Cir. 2000). Defendants are entitled to summary judgment on this claim.
(C). Excessive Use of Force–February 6, 2012
On February 6th, OC pepper spray or another similar chemical agent, was used by Hanning
three times in a short period of time. Plaintiff was then placed in the restraint chair before
decontamination and was returned to the restraint chair following his decontamination.
Courts, including the Eighth Circuit, have concluded that “a limited application of [nonlethal chemical agent] to control a recalcitrant inmate constitutes a ‘tempered response by prison
officials’ when compared to other forms of force.” Jones v. Shields, 207 F.3d 491, 496 (8th Cir.
2000)(discussing cases from a number of jurisdictions holding the use of chemical agents did not
constitute cruel and unusual punishment if reasonably necessary to maintain security and order or
subdue a recalcitrant prisoner). The Eighth Circuit also noted that when “[u]sed in such manner and
purpose, its application should ‘rarely be a proper basis for judicial oversight.’” Jones, 207 F.3d at

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496.
In Johnson v. Blaukat, 453 F.3d 1108, 1113 (8th Cir. 2006), the court considered factors
including whether the actions of the officers were defensive in nature or motivated by anger; whether
the actions were necessary to maintain order or were excessive reactions by frustrated officers; and
whether the amount of force used was commensurate with the situation. Id. The court noted
additional material issues included whether or not the inmate failed to comply with orders given by
officers in the cell, whether the inmate was actively resisting them, whether verbal orders or the
application of less force would have been sufficient, whether or not a warning issued before the
application of the pepper spray, and whether the inmate suffered real injuries. Id.
Plaintiff maintains: he was not given any verbal warnings; he did not refuse to go to his cell
at any time; he asked to speak to the warden; he did not make a statement that he guessed Hanning
would have to “gas” him; while still sitting he turned his back to Hanning; and he “retreated” in an
effort to get away from the officers. Id. at ¶¶ 25-31. Clearly, there are genuine issues of material fact
in this case. Hanning’s and Plaintiff’s versions of the event differ dramatically. At the summary
judgment stage, I am not free to adopt one parties' version of the events over another.
“[L]iberty from bodily restraint always has been recognized as the core of the liberty
protected by the Due Process Clause from arbitrary governmental action.” Youngberg v. Romeo, 457
U.S. 307, 316 (1982). “The interest survives a criminal conviction and incarceration, pretrial
detention, or involuntary civil commitment. Of course, a detainee’s liberty interest in freedom from
restraint is highly qualified and must be balanced against the state’s reasons for restraining that
liberty.” Benjamin v. Fraser, 264 F.3d 175, 188 (2nd Cir. 2001)(citations omitted).
In this case, there are clearly genuine issues of material fact based on the record before us.

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Defendants have introduced nothing that establishes why it was believed that this additional restraint
was necessary and who decided the length of time Plaintiff would remain in the restraint chair.
According to Hartline, an inmate remains in the restraint chair until it is determined the inmate is no
longer physically aggressive. Plff’s Ex. J. at pg. 4. Nothing in the record indicates who made the
decision Plaintiff was no longer physically aggressive.
This is particularly true when Plaintiff was returned to the restraint chair after having
showered. Plaintiff was put back into the restraint chair despite the fact that he was unrestrained
when walking back to pod control where the restraint chair was and was offering no resistence.
There are genuine issues of material fact as to whether Plaintiff was a threat to safety or security at
this point. Defendants are not entitled to summary judgment on this claim.
(D). Official Capacity Claims
Official capacity claims are “functionally equivalent to a suit against the employing
governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). In
other words, the official capacity claims are treated as claims against Miller County. See Murray v.
Lene, 595 F.3d 868, 873 (8th Cir. 2010).
To establish Miller County’s liability under § 1983, “plaintiff must show that a constitutional
violation was committed pursuant to an official custom, policy, or practice of the governmental
entity.” Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir. 2009)(citation omitted). The applicable law
has been summarized as follows:
There are two basic circumstances under which municipal liability will attach: (1)
where a particular municipal policy or custom itself violates federal law, or directs
an employee to do so; and (2) where a facially lawful municipal policy or custom
was adopted with “deliberate indifference” to its known or obvious consequences.
Seymour v. City of Des Moines, 519 F.3d 790, 800 (8th Cir.2008). There need not
be a finding that a municipal employee is liable in his or her individual capacity
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before municipal liability can attach. Speer v. City of Wynne, 276 F.3d 980 (8th
Cir.2002); Parrish v. Luckie, 963 F.2d 201, 207 (8th Cir.1992) (“A public entity or
supervisory official may be held liable under § 1983 even though no government
individuals were personally liable.”). Where an official policy is itself
unconstitutional or directs employees to take unconstitutional action, no evidence
beyond a statement of the policy and its exercise is necessary to establish § 1983
liability. Szabla v. City of Brooklyn Park, 486 F.3d 385, 389-90 (8th Cir.2007).
Id. at 817-18.
Plaintiff maintains that the disciplinary policy is unconstitutional. However, as noted above,
the policy, as written, directs compliance with the standards set forth by the Supreme Court in Wolff.
“Proof of a single incident of unconstitutional activity is not sufficient to impose liability . . . unless
proof of the incident includes proof that it was caused by an existing, unconstitutional municipal
policy, which policy can be attributed to a municipal policymaker.’” Mann v. Yarnell, 497 F.3d 822,
827-828 (8th Cir. 2007)(quoting City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985).
Defendants are entitled to summary judgment on the official capacity claims because there is no
genuine issue of material fact as to whether a custom or policy of the MCDC was the moving force
behind the constitutional violations alleged to exist in this case.
4. Conclusion
For the reasons stated, the summary judgment motion (ECF No. 25) is granted in part and
denied in part. In particular, the motion is granted as to the February 1st incident and all official
capacity claims. The motion is denied as to the due process issue and the issue of whether excessive
force was used on February 6th. All claims against Miller, Moon, and Howard are dismissed.
DATED this 28th day of March 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE

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