Reese v. Reyes et al

Filing 89

ORDER ADOPTING 84 REPORT AND RECOMMENDATIONS. ORDER denying 86 Motion Of Indigent Order From The Judge Allowing The Plaintiff The Transcript Of The Court Hearing. Case is dismissed with prejudice. Signed by Honorable Jimm Larry Hendren on May 10, 2010. (src)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS F A Y E T T E V I L L E DIVISION J E R E M Y DALE REESE v. O F F I C E R REYES; SHERIFF KEITH FERGUSON; C A P T . HUNTER PETRAY; C O R P O R A L THOMPSON ORDER N o w on this 10th day of May, 2009, come on for consideration t h e following: * R e p o r t And Recommendation Of The Magistrate Judge (docket C i v i l No. 07-5227 PLAINTIFF

DEFENDANTS

e n t r y #84)("R&R"); * * p l a i n t i f f ' s Motion For Objections (docket entry #85); plaintiff's Motion Of Indigent Order From The Judge

A l l o w i n g The Plaintiff The Transcript Of The Court Hearing (docket e n t r y #86); * p l a i n t i f f ' s Motion To Objections With Exhibits (docket

e n t r y #87); and * a n untitled document expressing further objections by

p l a i n t i f f (docket entry #88). 1. T h e Complaint of plaintiff Jeremy Reese ("Reese") in this

c a s e is that defendants Reyes and Thompson used excessive force against him while he was incarcerated in the Benton County

D e t e n t i o n Center ("BCDC"). 2. T h e Magistrate Judge conducted an evidentiary hearing, He reported that

a n d issued the R&R now under consideration.

Thompson excessive

was was

outside

Reese's and

cell

when

the that

force the

said

to

be

applied,

recommended

claim

against

T h o m p s o n should be dismissed.

There is no objection to this aspect

o f the R&R, and it will be adopted. 3. T h e Magistrate Judge summarized Reese's testimony that

a t the start of a shakedown, Reyes grabbed his shirt and threw him o n the floor of his cell. b e h i n d his back. He landed on his knees, with one arm was

He was supporting himself with the other arm.

Reyes jerked his arm, and then he felt something hit his "kidney area." Reese testified that when Reyes took his arm, "I did not

j e r k my shoulder, but I did tense up and pulled back toward the wall." The Magistrate Judge also summarized Reyes' testimony that he t o l d Reese to go to his knees, but Reese "threw his left shoulder a t me and almost hit me in the face", whereupon Reyes said he p e r f o r m e d an arm-bar take down and -- when Reese resisted giving R e y e s his arm -- "performed a peronial [sic] knee strike." 4. T h e Magistrate Judge reported that there was no credible

e v i d e n c e of excessive force, in that a straight arm bar take down a n d peroneal knee strike were a "very minimal use of force where D e f e n d a n t Reyes simply put the Plaintiff on the floor to secure h i m . " He found it "likely that the arm-bar take down and the knee s t r i k e are 'physical holds designed to gain control of an inmate'," a n d "do not require the inmate to become an attacker" under the B C D C policy. He further reported that Reese offered evidence of

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only minimal injury: f o r pain.

no bruising noted and only Tylenol prescribed

Finally, he reported that a case of excessive force was

n o t necessarily made out even if BCDC policy was violated, because t h e use of force stopped when Reese became cooperative. Based on these findings, the Magistrate Judge recommended that t h e claim against Reyes also be dismissed. 5. * R e e s e ' s objections to the R&R fall into two categories: t h a t Reyes was terminated for excessive force against

a n o t h e r inmate and has other excessive force cases pending against him; * t h a t it is the policy of BCDC that an inmate is not to

b e struck unless he becomes an attacker. The first of these objections is without merit based on the s e t t l e d rule of evidence that "[e]vidence of other crimes, wrongs, o r acts is not admissible to prove the character of a person in o r d e r to show action in conformity therewith." F.R.E. 404(b). The "core

The second objection is likewise without merit.

j u d i c i a l inquiry" in an excessive force claim is not whether a j a i l e r failed to follow jail policy, but "whether force was applied in a good-faith effort to maintain or restore discipline, or

m a l i c i o u s l y and sadistically to cause harm." 5 0 3 U.S. 1, 7 (1992).

Hudson v. McMillian,

The undisputed evidence here -- that Reese was offering some level of resistance (very low, according to Reese; higher,

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according to Reyes) -- cuts against a finding that the force was u s e d maliciously or sadistically, favoring instead a finding that it was applied in a good-faith effort to maintain or restore

discipline.

This conclusion is reinforced by the fact that the

f o r c e used was a typical form of control taught to jailers to deal w i t h resistance. Also factored in to the Court's analysis is that the injuury c l a i m e d by Reese is slight. not determinative in an While the extent of physical injury is excessive force claim, it is not

i r r e l e v a n t , either.

Injury is often indicative of the amount of

f o r c e , and may also provide insight into whether the force used c o u l d plausibly have been thought necessary. S . C t . 1175, 1178 (2010). Wilkins v. Gaddy, 130

Reese does not offer evidence of force His evidence is of force that

t h a t was damaging but left no mark. c a u s e d very little injury.

G i v e n that the force in question was applied in response to p r o v o c a t i o n and the injury sustained was slight, the Court finds that Reese's objections are without merit, and they will be

overruled.

That being the case, there is no basis to grant Reese

a transcript of the proceedings. I T IS THEREFORE ORDERED that the Report And Recommendation Of

The Magistrate Judge is adopted in toto. IT IS FURTHER ORDERED that plaintiff's objections to the R&R are overruled.

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IT IS FURTHER ORDERED that plaintiff's Motion Of Indigent
O r d e r From The Judge Allowing The Plaintiff The Transcript Of The C o u r t Hearing (docket entry #86) is denied.

IT IS FURTHER ORDERED that, for the reasons stated in the Report And Recommendation Of The Magistrate Judge, this matter is dismissed with prejudice. IT IS SO ORDERED.
/s/ Jimm Larry Hendren JIMM LARRY HENDREN U N I T E D STATES DISTRICT JUDGE

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