Welch v. Morgan
ORDER ADOPTING REPORT AND RECOMMENDATIONS and granting 23 Motion for Summary Judgment. CASE DISMISSED WITH PREJUDICE. Signed by Honorable Jimm Larry Hendren on August 26, 2013. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 12-5137
OFFICER CHAD MORGAN and
MAJOR RANDALL DENZER
O R D E R
consideration the following:
defendants’ Motion For Summary Judgment (document #23);
the Report And Recommendation Of The Magistrate Judge
(document #43); and
Defendants’ Objections To The Report And Recommendation
Of The Honorable Magistrate Judge (document #44),
and the Court, being well and sufficiently advised, finds and
orders as follows:
Plaintiff Tyrone Welch brought this claim pursuant to 42
U.S.C. § 1983, alleging that he was subjected to excessive force
by defendant Officer Chad Morgan while he was a pretrial detainee
at Washington County Detention Center on June 5, 2012.
being held in a pod with multiple other prisoners.
attention, and Morgan came to the door in response.
He had been
At the same
time, Welch and another prisoner got into an verbal altercation,
and Morgan directed both prisoners to step outside the pod, where
the events in suit took place.
These events were recorded on a
In response to a motion to amend, the Magistrate Judge
later added Randall Denzer, Jail Administrator, as a defendant in
“person” subject to suit under § 1983.
Defendants moved for summary judgment, contending that
conclusively that Morgan did not use excessive force, and that
Welch has stated no claim against Denzer.
Magistrate Judge Erin L. Setser conducted an evidentiary
hearing to allow Welch to respond to the motion, and then issued
the Report And Recommendation now under consideration.
reported that the video recording could be interpreted as support
for the position of either Welch or Morgan, and that a genuine
issue of material fact existed which precluded summary judgment on
Welch’s claim of excessive force against Morgan. In light of this
fact issue, Magistrate Judge Setser reported that she could not
determine the issue of qualified immunity as to Morgan.
recommended that the motion for summary judgment be denied as to
Welch’s claim against Morgan.
Magistrate Judge Setser further reported that there were no
recommended that the motion be granted as to Welch’s claim against
Morgan objects that the video recording clearly supports
his defense that he reasonably believed that he was in jeopardy,
especially since the pod door was still open at the time of the
occurrence, which would leave him “vulnerable to potential attack
by dozens of inmates.”
He cites Scott v. Harris, 550 U.S. 372,
380 (2007), for the proposition that “[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.”
The Court has reviewed the video recording in question, and
agrees with Magistrate Judge Setser that reasonable jurors could
differ in their interpretation of it, seeing it either as evidence
in favor of Morgan, or evidence in favor of Welch.
“blatantly contradict” Welch’s version of events.
It does not
That being the
case, there is a disputed issue of material fact on Welch’s claim
of excessive force, and this objection is without merit.
Morgan next contends that even if there is a disputed
issue of material fact on the excessive force claim he is entitled
to summary judgment on the issue of qualified immunity.
Qualified immunity is a doctrine that has evolved to protect
government officials from liability for civil damages where their
constitutional rights of which a reasonable person would have
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
reasonable but mistaken judgments, and protects all but the
plainly incompetent or those who knowingly violate the law.”
Messerschmidt v. Millender, 132 S.Ct. 1235, 1244 (2012).
qualified immunity exists in a given situation is a question of
law, not fact, McClendon v. Story County Sheriff’s Office, 403
F.3d 510, 515 (8th Cir. 2005), although there may be disputed
issues of fact about what that situation is.
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court
mandated a two-step inquiry for analyzing qualified immunity
claims, an inquiry which is still useful and desirable although it
is no longer mandated in every case, Pearson v. Callahan, 555 U.S.
A court required to rule upon the qualified
immunity issue must consider, then, this threshold
Taken in the light most favorable to the
party asserting the injury, do the facts alleged show
the officer’s conduct violated a constitutional right?
This must be the initial inquiry. . . .
If no constitutional right would have been violated
were the allegations established, there is no necessity
for further inquiries concerning qualified immunity. On
the other hand, if a violation could be made out on a
favorable view of the parties’ submissions, the next,
sequential step is to ask whether the right was clearly
established. This inquiry, it is vital to note, must be
undertaken in light of the specific context of the case,
not as a broad general proposition . . . .
Saucier, id., 533 U.S. at 201.
Fleshing out the meaning of “clearly established,” the Court
in Saucier explained that “[t]he relevant, dispositive inquiry in
determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted. . . . If the law did not
put the officer on notice that his conduct would be clearly
Id. at 202.
It is with the second question in the Saucier analysis
that the Court is now concerned, having determined that a genuine
issue of material fact exists as to the first.
question might be formulated thus:
Would it have been clear to a
reasonable law enforcement officer, at the time of the occurrence,
that Morgan’s takedown of a pretrial detainee who was upset and
yelling because he was in pain and angry at another prisoner, and
who raised his arm over his head in the face of the officer, was
a violation of the constitutional prohibition against the use of
In order to answer this question it is necessary to ask
what constitutes the use of excessive force?
force claims brought by pretrial detainees are analyzed under an
“objective reasonableness” standard grounded in the Fifth and
Andrews v. Neer, 253 F.3d 1052, 1060 (8th
Because pretrial detainees have not been convicted,
they cannot be subjected to conditions of confinement which amount
Bell v. Wolfish, 441 U.S. 520, 535 (1979).
is not to say, however, that the officials who guard them are
without power to maintain order and prevent mayhem.
to maintain order and security, and restraints reasonably related
Id. at 540.
In Graham v. Connor, 490 U.S. 386, 396-97 (1989), where an
“objective reasonableness” standard was used to analyze a Fourth
Amendment claim of excessive force during an arrest, the Court
allowance for the fact that police officers are often forced to
make split-second judgments -- in circumstances that are tense,
uncertain, and rapidly evolving -- about the amount of force that
is necessary in a particular situation.”
The Court has reviewed the transcript of the evidentiary
hearing in this matter as well as the video recording.
admitted at the hearing that he was upset because he felt his
medical needs were not getting attention.
was hurting and yelling.
He testified that he
He also testified that he and another
prisoner were having words, and were riled up at each other.
video recording shows that after the two prisoners stepped out
into the hallway, and before the door to the pod closed (prisoners
can be seen peering out the door), Welch raised one arm over his
head in the direction of Morgan.
At this point Morgan grabbed
Welch, threw him against the wall, and then threw him on the
Under these circumstances, the Court finds that it would not
Morgan’s position that a takedown of Welch was a violation of the
constitutional prohibition against the use of excessive force.
Even giving Welch the benefit of every doubt, the evidence still
supports three key findings:
Morgan was dealing with a potentially volatile situation
(volatile because of Welch’s anger at the other prisoner);
other prisoners from the Pod could have come out into
the hallway to complicate the situation; and
Welch raised his arm over his head in front of Morgan.
Morgan had to make a split-second decision on how to handle
this situation, which was tense and at best uncertain.
may have been mistaken about what Welch intended by raising his
objection on the basis of qualified immunity will be sustained.
Morgan also objects that the Magistrate Judge should not
involving other use of force incidents by Morgan, those being
irrelevant. He argues that the documents involve only allegations
inadmissible character evidence.
Because the Court has resolved the issues in this case
favorably to Morgan on a different basis, it need not address this
objection, which will be deemed moot.
IT IS THEREFORE ORDERED that Defendants’ Objections To The
(document #44) are sustained in part and overruled in part, as set
forth in detail in this Order.
IT IS FURTHER ORDERED that the Report And Recommendation Of
The Magistrate Judge (document #43) is adopted in part and not
adopted in part.
The R&R is adopted insofar as it recommends dismissal of
Welch’s claims against defendant Denzer, and not adopted insofar
as it recommends denial of Morgan’s motion for summary judgment.
IT IS FURTHER ORDERED that defendants’ Motion For Summary
Judgment (document #23) is granted, and this matter is dismissed
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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