Avery v. Ferguson et al

Filing 100

ORDER granting in part and denying in part 62 Motion for Summary Judgment; denying 88 Motion for Injunctive Relief; adopting in part and not adopted in part 97 Report and Recommendations.; ORDER REFERRING CASE to Honorable James R. Marschewski. Signed by Honorable Jimm Larry Hendren on March 12, 2009. Motions referred to James R. Marschewski.(tg)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION ROBERT W. AVERY v. Civil No. 07-5111 PLAINTIFF

SHERIFF KEITH FERGUSON; MAJOR DRAKE; DETECTIVE CHRIS SPARKS; DETECTIVE ROBERT HOLLY; SGT. TOMLIN; DEPUTY CARLTON; SGT. JARED CRABTREE; NATHAN ATCHISON; TRAVIS NEWELL; HAROLD GAGE; RICK HOLLAND; JOSH CHAPMAN; RICHARD CONNER; CHARLES ROBBINS; ERIC WARZECHA; TIM SRADER; WADE PORTER; CAPTAIN JONES; and CAPTAIN HUNTER PETRAY ORDER Now on this 12th day of March, 2009,

DEFENDANTS

come

on

for

consideration the following: * * * defendants' Motion For Summary Judgment (document #62); plaintiff's Motion For Injunctive Relief (document #88); the Magistrate Judge's Report And Recommendation

(document #97)("R&R"); * plaintiff's Objection To Magistrate Judge's Report And

Recommendation (document #98); and * plaintiff's Objection To Magistrate Judge's Report And

Recommendation Denying The Motion For Injunctive Relief (document #99), and the Court, being well and sufficiently advised, finds and

orders as follows: 1. claims: * that the Benton County SWAT Team illegally entered a In this civil rights action, plaintiff asserts four

house located at 10810 Winningham Road, Gentry, Arkansas (the "Winningham Road House"), on January 16, 2007, in order to arrest him; * that excessive force was used against him at the time of

this arrest; * that defendants Ferguson, Drake, and Jones, commanding

officers at the scene of this arrest, did nothing to prevent the use of excessive force; * that excessive force was used against him at the Benton

County Detention Center ("BCDC") on January 18, 2007; and * that defendant Petray, with knowledge of violent

tendencies on the part of Carlton and Tomlin, showed deliberate indifference toward his safety at BCDC. 2. The Magistrate Judge reported that fact issues exist

with regard to the two excessive force claims, and recommended that summary judgment be denied as to them. He recommended

granting summary judgment as to the claims of illegal entry, failure to prevent use of excessive force, and deliberate

indifference.

He also recommended denial of plaintiff's motion

for injunctive relief.

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Plaintiff

objects

to

each

of

the

Magistrate

Judge's

recommendations that are adverse to him, and the Court will examine his objections to each cause of action in turn. 3. The illegal entry claim turns on whether the SWAT Team

defendants could legally enter the Winningham Road House where they arrested plaintiff pursuant to an arrest warrant. It is axiomatic that a search may legally be undertaken with the consent of one with authority to grant consent. party with common authority -or whom Consent from a third a government agent

reasonably believes to have common authority -- will suffice. Common authority is "a function of mutual use, joint access, and control, and is a question of fact." U.S. v. Hinkle, 456 F.3d

836, 840 (8th Cir. 2006)(citation and internal quotation marks omitted). Defendants justify their entry on permission said to have been granted to them by George Winningham. An Incident Report completed by Benton County Sheriff's Investigator Robert Holly states that before the search which led to plaintiff's arrest, Sergeant Dennis Schumacher contacted "the land owner George

Winningham," who "told him there should not be anyone in the home, and he gave the Sheriff's Office permission to enter the home." An Incident Report completed by Benton County Sheriff's Investigator Brandon Rogers states that Barbara Winningham told him on January 16, 2007, that she owned the Winningham Road House,

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had owned it for a long time, and that no one had permission to be staying there.1 Plaintiff contends that Tammy Adams ("Adams") lived in the Winningham Road House with George Winningham's permission, and that her consent to search was required but not given. He relies

on Adams' Deposition Upon Written Questions to support this contention. That document does not, however, give plaintiff the it tends more to the opposite. Question #1

support he seeks;

asks "[y]ou lived at 10810 Winningham rd. Gentry Ar. off and on with the permission of George Winningham for how many years?" The answer given: "8 yrs." Question #26 asks "was the plaintiff The

living with you at 10810 Winningham Rd. Gentry, Arkansas?" answer given: "no neither one of us were living there."

These answers tend to show that Adams had at times lived in the Winningham Road House, but did not live there when the search took place. They also tend to show that George Winningham had

authority to allow use of the Winningham Road House, and thus tend to support a reasonable belief in his common authority. When the Court considers all the evidence on the issue of consent to search, it finds no genuine dispute as to the fact that Benton County Sheriff's agents could have reasonably believed George Winningham had common authority to consent to the search of the Winningham Road House. That being the case, the search was

1 Barbara Winningham gave written consent to search, but this took place after the search during which plaintiff was arrested, and thus does not alter the analysis.

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consensual,

and

plaintiff's

objections

to

the

recommendation

concerning his illegal search claim will, therefore, be overruled. 4. Plaintiff's claims against Ferguson, Drake, and Jones --

commanding officers at the scene of his arrest -- and Petray -BCDC jail administrator, cannot be predicated on a theory of vicarious liability. They depend upon a showing of actual

involvement in the alleged constitutional torts, either in a direct or supervisory capacity: A supervisor may be held individually liable under §1983 if he directly participates in the constitutional violation or if he fails to train or supervise the subordinate who caused the violation. The standard of liability for failure to train is deliberate indifference. The standard of liability for failure to supervise is "demonstrated deliberate indifference or tacit authorization of the offensive acts." Brockington v. City of Sherwood, Ark., 503 F.3d 667, 673 (8th Cir. 2007)(internal citations omitted). The claim against Ferguson, Drake, and Jones is that they supervised the SWAT team who arrested plaintiff on January 16, 2007; that the SWAT team acted under their "direct orders"; and

that they "could have prevented" the alleged use of excessive force. The claim against Petray is that he was the "Jail

Commander" on January 18, 2007, when Tomlin and Carlton were alleged to have used excessive force against plaintiff; that he was the supervisor of Tomlin and Carlton; and that he "had prior knowledge of the violent tendencies" of Tomlin and Carlton because he "answers all grievances at the B.C.D.C." -5-

In

his

support,

plaintiff

contends

that

the

number

of

lawsuits that have been filed against various defendants "shows that there has been a trend of abuse" at BCDC and "a custom of abusive treatment allowed to take place" by these defendants. He

acknowledges that "many of these cases have been dismissed," but argues that "it is clear that a problem does exist there is no possible way the defendants could be accused of so many cases of wrong doing and not be guilty of some. . . ." This, of course, is

pure speculation, and will not support any of plaintiff's claims. There being nothing more offered in support of plaintiff's claim against Petray, his objections as to that claim will be overruled. Plaintiff also contends that the personnel files of several of the individual SWAT team members show that they were untrained or had little training at the time of his arrest. coupled with the fact that Ferguson, at the Drake, scene" This evidence, and of Jones were plaintiff's

admittedly

"commanders

present

arrest, is some evidence that Ferguson, Drake, and Jones may have supervisory and/or training liability for events at the scene. Plaintiff's objections as to his claim against these defendants will be sustained, and the R&R will not be adopted as to them. 5. contention The motion for injunctive relief relates to plaintiff's that he is being picked up at his place of

incarceration and brought to BCDC for court appearances overly in advance of those appearances, and held at BCDC overly long after

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those appearances.

This is said to be a tactic on the part of

defendants to retaliate against him for filing claims against them. He claims that this tactic could cause him to miss

deadlines, and deprives him of the use of a law library for the time he is away from prison because BCDC does not have a law library. He also claims that he is placed in a cell with other

detainees who have communicable diseases, thus placing his health at risk. In considering whether to issue a preliminary injunction, courts must consider four factors: * * the threat of irreparable harm to the moving party; the balance between this harm and the injury that an

injunction would inflict on other parties; * * the probability of movant's success on the merits; and the public interest.

Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981). Under this test, plaintiff's objections must be overruled. While he alleges harm, he does not allege irreparable harm, and his suggestion that the Court intervene and direct the operations of BCDC as to him is untenable from the standpoint of BCDC. "It

is settled doctrine that except in extreme cases, the courts should not interfere with the internal operations of a prison." Rhodes v. Sigler, 448 F.2d 1237, 1238 (8th Cir. 1971). Nor is the

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public well served when the courts intervene to direct jail or prison operations. Plaintiff's objections as to this claim will,

therefore, be overruled. IT IS THEREFORE ORDERED that the Magistrate Judge's Report And Recommendation (document #97) is adopted in part and not adopted in part. It is not adopted insofar as it recommends

dismissal of plaintiff's claims for damages resulting from failure to train or supervise on the part of defendants Ferguson, Drake, and Jones. IT IS It is adopted in all other respects. FURTHER ORDERED that plaintiff's Objection To

Magistrate Judge's Report And Recommendation (document #98) is sustained in part and overruled in part. The Objection is

sustained with regard to his claims of failure to train or supervise on the part of defendants Ferguson, Drake, and Jones, and overruled in all other respects. IT IS FURTHER ORDERED that plaintiff's Objection To

Magistrate Judge's Report And Recommendation Denying The Motion For Injunctive Relief (document #99) is overruled. IT IS FURTHER ORDERED that defendants' Motion For Summary Judgment (document #62) is granted in part and denied in part. The motion is granted insofar as it seeks dismissal of plaintiff's claims for illegal entry to effectuate his arrest, and for damages for failure to supervise on the part of defendant Hunter Petray,

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and denied in all other respects. IT IS FURTHER ORDERED that plaintiff's Motion For Injunctive Relief (document #88) is denied. IT IS FURTHER ORDERED that this matter is remanded to the Magistrate Judge for further proceedings. IT IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE

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