Horton v. Pennington et al

Filing 49

OPINION granting in part and denying in part 22 Motion to Dismiss for Failure to State a Claim. The Motion is GRANTED with respect to all Fifth Amendment claims. The unlawful arrest and unlawful search claims are STAYED until Plaintiffs state crim inal case has been fully resolved. The Motion is DENIED with respect to the excessive force claim. Plaintiff has until March 6, 2018, to advise the Court whether he wishes to proceed with the excessive force claims at this time. Signed by Honorable P. K. Holmes, III on February 22, 2018. (tg)

THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

RICHARD PATRICK HORTON

PLAINTIFF

v.

Civil No. 5:17-CV-05160

K-9 OFFICER TRAVIS J. PENNINGTON,
Rogers Police Department (RPD); SERGEANT
DUSTIN MUSTEEN, RPD; DETECTIVE
CHRIS NEEDHAM, RPD; DETECTIVE
J. THOMPSON, RPD; OFFICER J. OCHOA,
RPD; and DUSTIN DEAN SMITH, Rogers
Fire Department
DEFENDANTS
OPINION
Plaintiff, Richard P. Horton, filed this action pursuant to 42 U.S.C. §1983. He proceeds
pro se and in forma pauperis. Plaintiff is currently incarcerated in the East Arkansas Regional
Unit of the Arkansas Department of Correction. The subject of this lawsuit is a traffic stop that
occurred in Rogers, Arkansas.
The case is before the Court on the Motion to Dismiss (ECF No. 22) filed by Separate
Defendants K-9 Officer Pennington, Sergeant Musteen, Detective Needham, Detective
Thompson and Officer Ochoa. Plaintiff filed a Response (ECF No. 24). Defendants filed a
Reply (ECF No. 28) and Plaintiff filed a Reply (ECF No. 44). The Motion (ECF No. 22) is
ready for decision.
I.

BACKGROUND

According to the allegations of the complaint (ECF No. 1), on September 23, 2016,
Plaintiff was pulled over by K-9 Officer Pennington for an expired license plate. Officer
Pennington called for backup. Sergeant Musteen, Detective Needham, Detective Thompson,

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and Officer Ochoa responded.

All of these Defendants are employed by the Rogers Police

Department (“RPD”).
Plaintiff alleges he told the officers that they did not have probable cause to suspect him
of having possession of any contraband. Plaintiff states the officers intimidated him and forced
their will on him to allow the dog sniff of his vehicle. Plaintiff alleges that when the dog did
not alert, on the dog’s second pass around the car, Officer Pennington “squatted down at the
front bumper of the car tapping the underside signaling for the dog to sit.” Officer Pennington
then claimed the dog’s act of sitting was an alert.
According to Plaintiff, it has “been a common practice with the local law enforcement to
call false alerts to justify their practice of illegal searches and seizures.” Plaintiff indicates that
he had three false alerts in a four month period—two involving the RPD.
As Officer Pennington was searching the vehicle, Plaintiff alleges Sergeant Musteen
yelled to Officer Pennington that Plaintiff had put something in his mouth. Sergeant Musteen
“shoved” the Plaintiff against the police vehicle while pinning his arms behind him. Plaintiff
alleges Officer Pennington ran over and grabbed Plaintiff’s lower jaw and inserted his fingers
into Plaintiff’s mouth. While doing so, Plaintiff alleges Officer Pennington dug his fingernails
into his lower lip and gums “ripping the [Plaintiff’s] mouth open and causing him to bleed from
the mouth.” Plaintiff states he was not resisting arrest and presented no threat to the officers’
safety.

Plaintiff alleges the actions of Officer Pennington and Sergeant Musteen were

“excessive and uncalled for in violation of [Plaintiff’s] Eighth Amendment rights.”
According to Plaintiff, Detectives Needham and Thompson were “just conveniently” in
the parking lot across the street from where this incident took place. He alleges they informed
Officer Pennington that they had “information that the [Plaintiff] was allegedly in possession of

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a firearm and selling drugs.” Plaintiff asserts the traffic stop was “orchestrated” by the
Defendants acting in concert and under color of state law to violate his Fourth, Fifth, Eighth,
and Fourteenth Amendments.
When the Rogers Fire Department Paramedics, including Dustin Smith, 1 arrived on the
scene, Plaintiff alleges they noticed blood coming from Plaintiff’s mouth. According to
Plaintiff, Officer Pennington stated “yeah I did that” referring to the blood.
Plaintiff alleges he then stepped into the back of the paramedic vehicle and allowed them
to check out his mouth. Plaintiff then laid down on the stretcher and he was held down while
one of the paramedics shoved what Plaintiff believes to have been a wooden tongue depressor
into his mouth. Plaintiff bit down on it and it broke. Another wooden instrument was inserted
into his mouth and they “[pried] the [Plaintiff’s] plate out of his mouth cracking and chipping
teeth as they did.” Further, Plaintiff states they ripped up the inside of his mouth causing him
to bleed more.
After Plaintiff’s partial plate was removed, he alleges the paramedics tried to “stick some
sort of plastic tube into his mouth.” Plaintiff turned his head to prevent them from putting the
tube in his mouth and the paramedics made some sort of angry statement and “grabbed him by
[the] throat choking him while they forced the tube down his throat.” Plaintiff states he could
not breathe because his oxygen was cut off and he started panicking and thrashing around trying
to get air. He alleges he then heard someone say “paralyze him.” Shortly after that, Plaintiff
asserts he lost consciousness and did not wake up until three days later when he was in the
Intensive Care Unit (ICU) of Mercy Hospital.

1

On December 15, 2017, Plaintiff moved (ECF No. 36), to substitute Dustin Smith in place of the John Doe
Defendant. The Motion (ECF No. 36) was granted (ECF No. 37) and Dustin Smith was served with the Complaint
(ECF No. 1). No other paramedics were, or have been, identified.

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Officer Ochoa accompanied the Plaintiff to the paramedic vehicle and rode in the vehicle.
Plaintiff alleges the paramedics and Officer Ochoa used excessive force against him to the point
of rendering the Plaintiff unconscious and cutting up the inside of his mouth. Plaintiff states he
ended up in the ICU on a ventilator. When he regained consciousness, Plaintiff noticed his
hands, wrists, and forearms up to his elbows were swollen to approximately three times their
normal size and there were cuts on his wrists from his handcuffs.
A few days prior to the September 23rd traffic stop, Plaintiff alleges he received a message
via Facebook messenger from Wayne Morgan in which Morgan stated he was going to turn
Plaintiff into the police. According to Plaintiff, Morgan was doing this because he believed
Plaintiff was having an affair with his wife, Micha Satchel.
Plaintiff alleges this was the second time he had been “accosted” by Officer Pennington.
On the first occasion, Officer Pennington reportedly told the Plaintiff that he had received
information that Micha Satchel and Zachary McJunkin, Morgan’s step-son, had been “trading
things” to the Plaintiff for drugs. Officer Pennington ran his dog around Plaintiff’s vehicle but
the dog did not alert. A few days later, Plaintiff alleges he was told that it had been Morgan
who called the police and gave them the erroneous information. Plaintiff asserts that Officer
Pennington later confirmed that he was friends with Morgan on Facebook.
As relief, Plaintiff seeks the following: (1) a declaration that the acts and omissions of the
Defendants violated his rights under the Constitution; (2) an injunction ordering the Defendants
to cease and desist the excessive use of force and brutalities mentioned in the Complaint; (3)
compensatory damages in the amount of $150,000 from each Defendant, jointly and severally;
(4) punitive damages in the amount of $50,000 against each Defendant; (5) a jury trial on all

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issues triable by a jury; (6) costs; and (7) any additional relief the Court deems just, proper, and
equitable.
II.

LEGAL STANDARD

Rule 8(a) contains the general pleading rules and requires a complaint to present “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). “In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6),
‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.’” Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.
2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted)). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft,
556 U.S. at 678. While the Court will liberally construe a pro se plaintiff’s complaint, the
plaintiff must allege sufficient facts to support his claims. See Stone v. Harry, 364 F.3d 912,
914 (8th Cir. 2004).
III.

DISCUSSION

Defendants first maintain that the Plaintiff cannot assert a Fifth Amendment violation as
a basis for a § 1983 claim. The Due Process Clause of the Fifth Amendment applies to the
federal government while the Fourteenth Amendment Due Process Clause applies to the states
or political subdivisions. Warren v. Government Nat. Mortg. Ass’n, 611 F. 2d 1229, 1232 (8th
Cir. 1980); Clark v. City of St. Louis, 735 F. Supp. 333, 334 (E.D. Mo. 1990). Any Due Process
Clause claim under the Fifth Amendment is, therefore, subject to dismissal as no federal officials
are named as Defendants.
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To the extent Plaintiff is making a claim based on the Self-Incrimination Clause, the claim
also fails. There is no suggestion that compelled statements have been, or will be, used against
the Plaintiff. Entzi v. Redmann, 485 F.3d 998, 1004 (8th Cir. 2007). Defendants are entitled to
the dismissal of any Fifth Amendment claims.
Next, Defendants maintain they are entitled to dismissal of the action based on the
Younger and/or Pullman abstention doctrines. In support, they rely on the criminal case filed
against the Plaintiff as a result of the September 23, 2016, traffic stop. 2 Plaintiff was charged
in the Benton County Circuit Court with possession of drug paraphernalia (methamphetamine
and cocaine), tampering with physical evidence, and possession of a controlled substance. State
v. Horton, 04-CR-16-1756. (ECF No. 22 at 13-18). Reference to the current docket sheet shows
that the case is still open and Plaintiff has a pre-trial hearing scheduled for March 5, 2018.
https://caseinfo.aoc.arkansas.gov/cconnect/PROD/public/ck_public_qry_doct.cp_dktrpt_frame
s (accessed Feb. 13, 2018).
Pursuant to Younger v. Harris, 401 U.S. 37 (1971), federal courts are required to abstain
from hearing cases when “(1) there is an ongoing state judicial proceeding which (2) implicates
important state interests, and when (3) that proceeding affords an adequate opportunity to raise
the federal questions presented.” Norwood v. Dickey, 409 F.3d 901, 903 (8th Cir. 2005) (citing
Fuller v. Ulland, 76 F.3d 957, 959 (8th Cir. 1996)). Plaintiff’s state criminal case is ongoing.
Ongoing state criminal proceedings implicate the important state interest of enforcing state
criminal law, and constitutional claims relating to that proceeding should be raised there. See
e.g., Gillette v. North Dakota Disc. Bd. Counsel, 610 F.3d 1045, 1046 (8th Cir. 2010). With
respect to Plaintiff’s claims that he was arrested without probable cause and his vehicle was

2

Defendants correctly point out that the Court may consider materials that are part of the public record in deciding
a Rule 12(b)(6) motion. See State ex re. Nixon v. Coeur D’Alene Tribe, 164 F.3d 1102, 1107 (8th Cir. 1999).

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unlawfully searched, the Court agrees the Plaintiff’s claims for injunctive relief and/or
declaratory relief are barred by Younger. Plaintiff may raise these constitutional claims in his
state criminal case and move for the suppression of any evidence unlawfully obtained.
“If all three questions are answered affirmatively, a federal court should abstain unless it
detects ‘bad faith, harassment, or some extraordinary circumstance that would make abstention
inappropriate’” Night Clubs, Inc. v. City of Ft. Smith, Ark., 163 F.3d 475, 479 (8th Cir.
1998)(quoting Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 435
(1982)). Despite Plaintiff’s claim that Officer Pennington’s involvement in two dog sniff
searches on two separate occasions was harassment, the Court does not believe that this
constitutes harassment within the meaning of the Middlesex criterion. 3 There is no evidence of
bad faith or other extraordinary circumstance.
When only equitable relief is sought, Younger “contemplates the outright dismissal of the
federal suit, and the presentation of all claims, both state and federal to the state courts.” Gibson
v. Berryhill, 411 U.S. 564, 577 (1973)(a § 1983 case involving only injunctive relief, and not
damages). In cases where damages are sought, the Eighth Circuit has noted that the Supreme
Court instructs that traditional abstention principles generally require a stay as the appropriate
mode of abstention rather than a dismissal. Night Clubs, Inc., 163 F. 3d at 481. In Quackenbush
v. Allstate Ins. Co., 517 U.S. 706 (1996), the Court said:
In those cases in which we have applied traditional abstention principles to
damages actions, we have only permitted a federal court to withhold action until
the state proceedings have concluded, that is, we have permitted federal courts
applying abstention principles in damages actions to enter a stay, but we have not
permitted them to dismiss the action altogether.

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“A dog sniff of the exterior of a vehicle does not constitute a search.” United States v. Olivera-Mendez, 484 F.
3d 505, 511 (8th Cir. 2007)(citing Illinois v. Caballes, 543 U.S. 405, 408-09 (2005) and United States v. Place,
462 U.S. 696, 707 (1983)).

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Id. at 730. It is therefore appropriate to stay Plaintiff’s unlawful arrest and unlawful search claims
for injunctive relief and for damages. 4
However, Plaintiff’s excessive force claim is not so barred. The excessive force claims
may not be raised by the Plaintiff in his pending criminal action. See e.g., Scheuerman v. City
of Huntsville, AL, 373 F. Supp. 2d 1251, 1256 (N.D. Ala. 2005). The claims have “no bearing
on his state criminal proceeding. He has not been charged with resisting arrest or any related
offense.” Rivas v. California Franchise Tax Bd., 619 F. Supp. 2d 994, 1006 (E.D. Cal.
2008)(citations omitted). Thus, an excessive force claim, when there is no charge of resisting
arrest or a related offense, may proceed because the claim does not undermine the lawfulness of
the arrest. Hooper v. County of San Diego, 629 F.3d 1127, 1133 (9th Cir. 2011). Plaintiff’s
excessive force claim may therefore proceed.
IV.

CONCLUSION

Accordingly, the Motion to Dismiss (ECF No. 22) is GRANTED in part and DENIED
in part. Specifically, the Motion is GRANTED with respect to all Fifth Amendment claims.
The unlawful arrest and unlawful search claims are STAYED until Plaintiff’s state criminal
case has been fully resolved. The Motion is DENIED with respect to the excessive force claim.
Plaintiff has until March 6, 2018, to advise the Court whether he wishes to proceed with
the excessive force claims at this time.
IT IS SO ORDERED on this 22nd day of February 2018.

/s/P.K. Holmes,III
P. K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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Having found Younger abstention to be applicable, the Court need not discuss the Pullman abstention doctrine.
See Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941).

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