Carpenter v. Gage et al
ORDER granting 19 Motion for Summary Judgment and dismissing case with prejudice. Signed by Honorable Jimm Larry Hendren on April 19, 2011. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
NORMAN JAY CARPENTER
Civil No. 09-5276
BENTON COUNTY, ARKANSAS;
DEPUTY HAROLD GAGE, DEPUTY
KENNETH D. PAUL; and SHERIFF
in their official and individual capacities
O R D E R
consideration defendants’ Motion for Summary Judgment (Doc. 19) and
sufficiently advised, finds and orders as follows:
This case arises out of an incident that occurred on
April 4, 2008, at the residence of the plaintiff, Norman Jay
On that day, plaintiff’s girlfriend called 911 because
she believed that plaintiff was having a stroke.
When the first
responders arrived, plaintiff acted aggressively towards them. The
first responders called the police and, after police arrived on the
scene, a confrontation occurred.
Plaintiff was arrested and
transported to the Benton County jail where he was charged with
Three or four days after he was released from jail,
plaintiff sought medical treatment.
Plaintiff claims that he
suffered permanent injuries as a result of not receiving timely
emergency medical care.
Plaintiff filed his lawsuit on December 8, 2009, and,
with the Court’s permission, filed a First Amended Complaint on
July 27, 2010. The current claims brought by plaintiff against the
- unlawful entry of residence without lawful authority;
- use of excessive force;
- unlawful detention;
- denial of emergency medical care; and
- failure to train law enforcement officers.
Plaintiff has sued defendants in their individual and official
damages, costs and his attorney’s fees.
Summary judgment shall be granted when the moving party
shows “that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
The following material facts are undisputed:
On or about April 4, 2008, Connie Gunem, who had been
dating plaintiff, went to plaintiff’s house.
After the two awoke from a nap, Gunem noted some odd
behavior from plaintiff.
Specifically, plaintiff was slurring his
speech, was falling over, his face was really drawn, and there was
saliva dripping from his mouth and he “looked horrible.”
depo. at 11).
Gunem started to call 911, but plaintiff started arguing
So, she went outside and called 911.
When the first responders1 arrived and entered his house,
plaintiff started “yelling” and telling them to “get the hell out
(Gunem depo. at 12-14).
Plaintiff recalls telling the
first responders that “there wasn’t nothing wrong with me” and
asking them to leave.
(Plaintiff’s depo. at 17).
When the first
responders did not leave, Plaintiff recalls saying, “I got a
baseball bat that says you will get out of here.”
(Id. at 19).
The first responders exited the house, and called the police.
When the police arrived, Gunem told them that there was
a rifle in the house.
(Gunem depo. at 16).
he had a “.22 and a BB gun” in the house.”
Plaintiff admits that
(Plaintiff’s depo. at
When Deputy Gage arrived on the scene, he talked to Gunem
who told him that she thought plaintiff “had a stroke, so she
called the paramedics, and she told [Gage] a little bit about him
slurring and slobbering and some other stuff.” (Gage depo. at 9).
Deputy Gage then spoke to the first responders who told him that
The first people to arrive were the “first responders”
who are the people who respond to 911 calls before the ambulance
arrives. (Gates depo. at 8). In several of the depositions
provided to the Court, witnesses refer to the ambulance and the
“paramedics” on the scene. It is not clear to the Court,
however, whether an ambulance actually arrived. For ease of
reference, the Court will refer to the medical personnel who were
present as the first responders – although there may have been
other medical personnel, such as paramedics, present as well.
plaintiff had “ran them out of there with a baseball bat.”
depo. at 9).
Deputy Gage went up to plaintiff’s house and knocked on
the door. About the same time, Deputy Paul walked up to the house.
Deputy Paul had been informed that “there was a possibility a rifle
[was] in the house, that was what was reported, and also a baseball
(Paul depo. at 9).
At this point, plaintiff opened his door
and said, “who the hell’s on my front porch?”
(Gage depo. at 12).
Deputy Gage identified himself and said “I need to see if your
alright and I need to talk to you about your little incident with
At that point, Deputy Paul asked plaintiff what the
problem was, and plaintiff said “that’s the f’ing problem right
there, and he’s pointing to Deputy Paul’s badge.”
(Gage depo. at
13; Paul depo. at 9). Deputy Gage told plaintiff, “they’re telling
us you had a stroke, are you ok?”
(Gage depo. at 13).
said something the deputy could not understand, and then he turned
to walk back into his house.
“By him acting like that, [Deputy
Gage] followed him because [he] didn’t want [plaintiff] retrieving
Deputy Gage admits that, at this point, plaintiff
had not threatened him or any other officer.
(Id. at 14).
Paul immediately followed behind Deputy Gage into the house. (Paul
depo. at 10).
After they entered the house, Deputy Gage kept trying to
ask plaintiff if he was ok, but plaintiff was not acknowledging
“So, when [plaintiff] started to go to the bedroom, [Gage]
grabbed his coat sleeve.”
So [Deputy Gage] told [plaintiff] I was going to
(Gage depo. at 15).
(Id.; Paul depo. at 13).
“At that point, [plaintiff] tried to go . . . towards the
[Plaintiff] said, you son of a - and he reared back and he swung
and what [Deputy Gage] did is just pushed [plaintiff’s] arm in from
of him and he ended up hitting himself.
By that time, when he hit
his own shoulder, he was on the ground, and [Deputy Gage] still had
a hold of [plaintiff’s] arm.”
(Gage depo. at 21).
There were 5 police officers in the house at the time.
They all tried to subdue plaintiff.
Deputy Paul and/or one of the
other officers screamed several times to plaintiff “give us your
hands . .
(Paul depo. at 14).
At that point,
Deputy Paul told plaintiff “if you do not give us your hands, I
will drive stun2 you in the back.”
When plaintiff did not
comply, Deputy Paul used his tazer gun and tazed plaintiff twice.
(Id. at 14-16; Gage Depo. at 21).
Plaintiff’s memory of the incident in his house is
Plaintiff recalls an officer telling him to stand still,
or that he gave him “some kind of order.”
(Plaintiff’s depo. at
A “drive stun” – according to Deputy Gage - means to take
the cartridge off the tazer and touch it directly to the body.
(Gage depo. at 19-20). Deputy Gage admitted that a drive stun
causes pain, but he said the purpose is to temporarily immobilize
the suspect. (Id.).
Plaintiff asserts that the officer said “if you don’t do so-
and-so, I’m going to shoot you.”
(Plaintiff’s depo. at 25).
Plaintiff asserts that he responded by saying, “well, blow my f’ing
head off if that’s what makes you sleep good.”
point, the officer informed plaintiff that he did not have a gun,
he had a tazer.
Plaintiff says the next thing he knew was that he was
(Plaintiff’ depo. at 27).
He says that he put his arm up on the
couch “trying to breathe” and the officers told him to get his arm
down, and when he wouldn’t “that’s when they just kept tazing me in
(Id. at 27, 35).
Plaintiff says that he “kept telling
[the officers] I couldn’t breathe and they didn’t care.”
He says that his other arm was underneath him, so he couldn’t
put it behind his back as the officers commanded him to do.
Plaintiff denies ever swinging at the police officers or
that he raised his hand in any way to them.
(Id. at 36).
After Deputy Paul tazed plaintiff, he handcuffed him, sat
him up on the couch, and called the first responders in to look at
him. Deputy Paul asserts that they asked plaintiff if he wanted to
be transported to the hospital, and plaintiff refused. (Paul depo.
Plaintiff denies that he refused to go to the hospital,
but he admits that the first responders did not tell him that there
(Plaintiff’s depo. at 37).
Further, plaintiff has not asserted
that he expressly asked to go to the hospital.
Deputy Paul then transported plaintiff to jail.
Depo. at 18).
Plaintiff cannot identify the officers who were in his
house and tazed him because he was “attacked from behind.”
(Plaintiff’s depo. at 41-43).
With respect to defendant Deputy Paul, plaintiff does not
remember seeing him until Paul was putting plaintiff in the police
car after he was arrested.
(Id. at 29).
With respect to defendant Duty Gage, plaintiff does not
remember seeing Gage on his property at all.
(Id. at 29-30).
Plaintiff was charged with assaulting Deputy Gage.
criminal charge was subsequently dismissed.
Plaintiff was released from jail later that night.
(Plaintiff’s depo. at 38-39, 45-46). He went to the hospital three
or four days later, and learned that he had suffered two strokes.
Plaintiff asserts that he has permanent injuries as a
result of not receiving timely emergency medical treatment.
At the outset, the Court will address plaintiff’s claim
for denial of medical care.
To establish a constitutional violation for denial of a
medical need, plaintiff must show that he suffered from a serious
medical need, and that the defendants acted with "deliberate
indifference," such that they actually knew of his need, but
deliberately failed to meet it.
Hott v. Hennepin County, 260 F.3d
901, 906 (8th Cir. 2001); Williams v. Kelso, 201 F.3d 1060, 1065
(8th Cir. 2000).
A “serious medical need” is one that has been diagnosed
by a physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity for a
See Johnson v. Busby, 953 F.2d 349 (8th Cir.
To establish deliberate indifference, a plaintiff must
demonstrate that “he suffered objectively serious medical needs,
and the officials actually knew of but deliberately disregarded
Webb v. Hedrick, 2010 U.S. App. LEXIS 23261, at *2
(8th Cir. Nov. 5, 2010) (quoting Johnson v. Hamilton, 452 F.3d 967,
972-72 (8th Cir. 2006)).
“[N]egligence alone is not actionable
under the Eighth Amendment.”
Id. at *3 (citing Estelle v. Gamble,
429 U.S. 97, 106, 97 S. Ct. 285, 50 L.Ed. 2d 251 (1976)).
In the Court’s view, plaintiff has failed to show that he
suffered a “serious medical need” as defined above because, while
he argues that it was obvious that he needed emergency medical
treatment, no physician had mandated that he receive treatment and
there is no evidence that the first responders said that plaintiff
needed to go to the hospital.
Thus, it cannot reasonably be said
that the deputies should have recognized plaintiff needed to go to
the hospital when the medical personnel at the scene did not
recognize any such need.
Even if -- in light of plaintiff’s subsequent diagnosis
at a hospital -- it could be said that plaintiff had a serious
medical need at the time of his arrest, he has not shown that
deliberately disregarded, that need.
Indeed, Deputy Paul testified that, while plaintiff was acting
handcuffed him and they immediately called in the first responders
to check him out.
There is no evidence in the record that the
first responders advised the officers that plaintiff needed medical
plaintiff if he wanted to go to the hospital, he refused.
plaintiff denies that he refused to go to hospital, he does not
assert that he asked to go to the hospital.
Further, his memory of
the events are sketchy.
Plaintiff submits the deposition testimony of two doctors
for the purpose of showing that persons having a stroke need to be
treated immediately at a hospital, and that a person having a
stroke may be unaware that they need medical care.
Based on this
testimony, plaintiff argues that it was unreasonable for the
deputies to rely on plaintiff’s refusal to seek treatment and,
moreover, if they did not recognize that he had a serious medical
need, then they had not been properly trained by the Benton County
Plaintiff’s argument misses the point.
The issue is whether
defendants acted with deliberate indifference to a medical need of
which they were actually aware.
While a physician may have
recognized plaintiff’s medical need to go to the hospital, there is
no evidence in the record from which a reasonable person could find
that either Deputy Gage or Deputy Paul actually recognized that
plaintiff needed emergency medical care, and deliberately refused
to meet that need.
Therefore, defendants are entitled to summary judgment on
plaintiff’s denial of medical care claim.
Defendants Deputy Gage and Deputy Paul
assert that they are entitled to qualified immunity for their
plaintiff’s claims against them in their individual capacities.
“The doctrine of qualified immunity protects government
officials such as police officers from individual liability under
§ 1983, unless their conduct violated ‘clearly established’ . . .
constitutional rights of which a reasonable person would have
known.” Baribeau v. City of Minneapolis, 596 F.3d 465, 473-74 (8th
Cir. 2010) (internal citation omitted).
To overcome the defendants’ qualified immunity claims,
plaintiff must show that:
the facts, when viewed in the light most favorable
deprived plaintiff of a constitutional right; and
the right was clearly established at the time of
Baribeau, 596 F.3d at 474.
Plaintiff alleges that Deputies Gage and Paul deprived
him of his constitutional rights by:
entering his home without justification:
arresting him without probable cause; and
using excessive force in arresting him.
The Court will address each of these claims in turn:
Warrantless entry of plaintiff’s home
“Police officers may not enter or search a home without a
warrant unless justified by exigent circumstances.”
circumstances exception to the warrant requirement is narrowly
“The exception justifies immediate police action
without obtaining a warrant if lives are threatened, a suspect's
escape is imminent, or evidence is about to be destroyed.”
Plaintiff asserts that the police officers did not have
consent to enter his house, and that no exigent circumstances
The Court does not need to reach the issue of consent,
because the Court finds that exigent circumstances existed.
Specifically, at the time they entered plaintiff’s house, the
responders with a baseball bat, and that he had a gun in the house.
Further, when the deputies approached plaintiff, he was belligerent
When plaintiff entered his house, it was
reasonable for the officers to follow, acting on their belief that
plaintiff posed a threat to them and to others outside if he went
inside to get his gun.
Lack of probable cause to arrest
“The Fourth Amendment, as applied to the States through the
Fourteenth Amendment, requires that an officer have probable cause
before making a warrantless arrest.”
Veatch v. Bartels Lutheran
Home, 627 F.3d 1254, 1257 (8th Cir. 2010).
“Probable cause exists
when a police officer has reasonably trustworthy information that
is sufficient to lead a person of reasonable caution to believe
that the suspect has committed or is committing a crime.”
Plaintiff asserts that there was no probable cause to arrest
him for assault because he never took a swing at Deputy Gage.
Plaintiff asserts that Officer Jim Johnson -- who was also at the
scene -- supports his version of events.
The Court has reviewed Officer Johnson’s deposition and,
specifically, the portion cited by plaintiff.
testified that plaintiff “threw his arms in the air in a very
agitated state and then started walking into the kitchen area.”
(Johnson depo. at 10).
While Officer Johnson did not state that
plaintiff took a swing at the officers, he was never directly asked
that question – as far as the Court can tell.
Thus, while the Court must view the evidence in the light most
favorable to plaintiff and should not weigh evidence or make
credibility determinations, the only reasonable conclusion -- based
on the evidence before the Court -- is that plaintiff took a swing
at Deputy Gage.
There is no basis on which to question the
credibility of Deputy Gage’s or Deputy Paul’s testimony -– both of
whom assert that plaintiff took a swing at Deputy Gage.
plaintiff denies that he did so, his memory of the events from that
day are incomplete, to say the least.
Thus, the Court finds that
the dispute over whether plaintiff took a swing at Deputy Gage is
not “genuine” and, thus, does not preclude summary judgment.
Further, the defendants also assert that they had probable
cause to arrest plaintiff for threatening the first responders with
a baseball bat.
“Probable-cause determinations generally may be
based on hearsay." United States v. Leppert, 408 F.3d 1039, 1042
(8th Cir. 2005).
The Court finds that the evidence is undisputed
physically threatened the first responders with a bat, which also
gave the deputies probable cause to arrest plaintiff.
Excessive Force Claim
Plaintiff relies on Brown v. City of Golden Valley, 574 F.3d
491 (8th Cir. 2009) in support of his claim that Deputies Gage and
Paul used excessive force on him.
In that case, the Eighth Circuit stated that courts should
analyze excessive force claims in the context of seizures under the
Brown, 574 F.2d at 496.
The Supreme Court's
“‘Fourth Amendment jurisprudence has long recognized that the right
to make an arrest . . . necessarily carries with it the right to
use some degree of physical coercion or threat thereof to effect
it.’" Id. (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct.
1865, 104 L. Ed. 2d 443 (1989)).
"To establish a constitutional violation under the Fourth
Amendment’s right to be free from excessive force, the test is
whether the amount of force used was objectively reasonable under
the particular circumstances."
Id. (internal quotation marks and
The Court evaluates the reasonableness of an
officer’s use of force “from the perspective of a reasonable
hindsight." Id. (internal quotation marks and citations omitted).
“This calculus allows for the fact that police officers are often
forced to make split-second decisions--in circumstances that are
tense, uncertain, and rapidly evolving--about the amount of force
that is necessary in a particular situation."
quotation marks and citations omitted).
The circumstances that are relevant to the reasonableness of
the officer’s conduct include "the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight."
Brown, 574 F.3d at 496
(internal quotation marks and citations omitted).
The Court finds that, from the perspective of a reasonable
officer on the scene, Deputy Paul’s use of the tazer gun was
The officers acted reasonably in their
assessment that plaintiff posed an immediate threat to the safety
of the officers or others because he had a gun in the house and he
was actively resisting arrest and/or attempting to evade arrest by
walking away from the officers.
While plaintiff’s medical condition may have been the reason
for his behavior, the officers -- when faced with the possibility
that plaintiff was going to his bedroom to retrieve a gun -- used
circumstances to subdue him.
Thus, the Court finds that the facts, when viewed in the light
most favorable to the plaintiff, demonstrate that neither Deputy
Gage nor Deputy Paul deprived plaintiff of his Eighth Amendment
right to be free from excessive force.
Therefore, because neither Deputy Gage nor Deputy Paul
deprived plaintiff of a constitutional right, they are entitled to
against them in their individual capacities will be dismissed.
Further, because plaintiff has not established any constitutional
violation, his claims against Deputy Gage and Deputy Paul in their
official capacities will also be dismissed.
The Court now turns to plaintiff’s failure to train
claim. A governmental or municipal entity may be held liable under
§ 1983 if it fails to train or supervise the subordinate who caused
Tilson v. Forrest City Police Dep’t, 28 F.3d 802,
806 (8th Cir. 1994).
In the case at bar, because plaintiff’s allegations fail to
state a claim for an underlying constitutional violation by either
Deputy Gage or Deputy Paul, neither Benton County nor Sheriff
Ferguson can be held liable for failure to train.
See Abbott v.
City of Crocker, 30 F.3d 994, 998 (8th Cir. 1994) (“The City cannot
be liable ... whether on a failure to train theory or a municipal
custom or policy theory, unless [an officer] is found liable on the
underlying substantive claim.”).
IT IS THEREFORE ORDERED that, for the reasons set forth above,
defendants’ Motion for Summary Judgment (Doc. 19) is hereby GRANTED
and plaintiff’s First Amended Complaint is hereby DISMISSED WITH
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
HON. JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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