Harris v. Hot Springs, Arkansas, City of et al

Filing 19

OPINION AND ORDER granting 10 Motion for Summary Judgment. Signed by Honorable P. K. Holmes, III on June 27, 2017. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
TYRONE HARRIS
v.

PLAINTIFF
No. 6:16-06071

CITY OF HOT SPRINGS, ARKANSAS;
and OFFICER SHANE LEWIS, in his
individual and official capacities

DEFENDANTS

OPINION AND ORDER
Before the Court are Defendants’ motion for summary judgment (Doc. 10), brief in support
(Doc. 11), and statement of facts (Doc. 12); Plaintiff’s response (Doc. 15), response to the
statement of facts (Doc. 16), and brief in support (Doc. 17); and Defendants’ reply (Doc. 18). The
motion for summary judgment will be granted. 1
I.

Analysis
Plaintiff’s complaint raises claims under 42 U.S.C. § 1983 for violations of his Fourth,

Eighth, and Fourteenth Amendment rights. Plaintiff also asserts various state law civil rights and
tort claims. Plaintiff’s federal claims against Defendant Lewis allege an unreasonable seizure
premised on false arrest, false imprisonment, and excessive use of force. Plaintiff’s federal claims
against Defendant the City of Hot Springs allege an unconstitutional failure to train. All claims
arise out of a September 21, 2012 incident during which Plaintiff was pepper sprayed while
walking away from officers, fled, and was later physically taken into custody.

1

Each of Plaintiffs’ responsive documents to the instant motion is signed “Lucien
Gillham.” Only one attorney has entered an appearance for Plaintiff in this matter—Luther Sutter.
While Mr. Gillham appears to be professionally associated with Mr. Sutter, Mr. Gillham has not
entered his appearance and is not an attorney of record. Rule 11 typically requires the Court to
strike documents that have not been signed by an attorney of record if this omission is not promptly
corrected. Because judgment is being granted against Plaintiff, the matter appears to be moot, and
the Court sees no need strike the responsive documents at this time.
1

The cases following Heck v. Humphrey 2 require the Court to grant judgment in Defendants’
favor on Plaintiff’s § 1983 unreasonable seizure claims premised on false arrest and false
imprisonment. “Heck states that, in order to recover damages for harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal.” Schaffer v. Beringer, 842 F.3d 585,
594 (8th Cir. 2016). For his September 21, 2012 conduct, Plaintiff was convicted of disorderly
conduct, fleeing apprehension, and third degree assault. (Docs. 12-3, 12-5). To succeed on his
§ 1983 unreasonable seizure claims premised on false arrest or false imprisonment, Plaintiff must
show that his state conviction was rendered invalid. Anderson v. Franklin Cty., Mo., 192 F.3d
1125, 1131–32 (8th Cir. 1999) (affirming dismissal of § 1983 false arrest and false imprisonment
claims where state conviction and sentence had not been rendered invalid).
Heck does not mandate dismissal of Plaintiff’s § 1983 unreasonable seizure claims
premised on an excessive use of force, however. Colbert v. City of Monticello, Ark., 775 F.3d
1006, 1007 (8th Cir. 2014) (“A finding that [Defendant] used excessive force would not
necessarily imply the invalidity of [Plaintiff’s] convictions.”). On a motion for summary judgment
on the § 1983 unreasonable seizure claims premised on excessive force, the Court views the
evidence in a light most favorable to Plaintiff and draws all reasonable inferences in his favor.
Malone v. Hinman, 847 F.3d 949, 952 (8th Cir. 2017).

In excessive force claims, “[t]he

reasonableness of a use of force turns on whether the officer’s actions were objectively reasonable
in light of the facts and circumstances confronting him, without regard to his subjective intent or
motivation.” Id. at 952–53.
A.

2

Officer Shane Lewis

512 U.S. 477 (1994).
2

Having reviewed the facts in a light most favorable to Plaintiff, the Court is compelled to
find that Defendant Lewis is entitled to qualified immunity from suit on Plaintiff’s excessive force
claims, which are premised on Defendant Lewis’s use of pepper spray against Plaintiff and
Defendant Lewis striking Plaintiff and putting him roughly into a patrol car. “‘An official is
entitled to qualified immunity unless (1) the evidence, viewed in the light most favorable to the
plaintiff, establishes a violation of a constitutional or statutory right, and (2) the right was clearly
established at the time of the violation.’” Id. at 952 (quoting Loch v. City of Litchfield, 689 F.3d
961, 965 (8th Cir. 2012)).
The Court has no doubt that a reasonable jury could find Defendant Lewis’s use of pepper
spray was objectively unreasonable, and therefore was a constitutional violation. In an analogous
case, the Eighth Circuit applied the Graham 3 factors for measuring reasonable use of force—the
severity of the crime, whether the suspect poses an immediate threat to the safety of others, and
whether the suspect is actively resisting or evading arrest—and determined that a jury could find
an officer’s use of pepper spray was objectively unreasonable:
Here, by the undisputed facts, Robinson informed Tatum he was a police officer,
told him he was under arrest, told him to put his hands on a clothes rack, warned
him he would use pepper spray if he did not calm down, and then pepper sprayed
him. Tatum was given an opportunity to comply. He did not, instead arguing
angrily with Robinson. It was reasonable for Robinson to use some force. But it
was not reasonable to immediately use significant force. In addition to the lack of
justification from the three Graham factors, other facts and circumstances indicate
only limited force was reasonable. Robinson was not alone—another security
officer was close by, as were at least two Dillard’s employees. Robinson was offduty and in plain clothes.
It was not reasonable for Robinson to immediately use pepper spray. Pepper spray
can cause more than temporary pain. Robinson presents no evidence he attempted
to use other force to secure compliance—no evidence he tried to grab Tatum’s
hands and place them on the clothes rack, for example. Instead, he proceeded to
pepper spray Tatum 14 seconds after he encountered him, and necessarily fewer
3

Graham v. Connor, 490 U.S. 386, 396 (1989).
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seconds after Tatum failed to comply with his command.
Tatum v. Robinson, 858 F.3d 544, No. 16-1908, pp. 8–9 (8th Cir. May 30, 2017) (slip copy)
(emphasis in original, citations and parentheticals omitted). On the facts as considered on
summary judgment, Plaintiff was suspected of committing relatively minor crimes, was leaving
the scene at another officer’s direction, and Defendant Lewis deployed pepper spray against
Plaintiff nearly immediately after telling Plaintiff “you’re not going anywhere” and without having
attempted to secure Plaintiff’s compliance through a less severe use of force.
Whether a jury could find that Defendant Lewis acted objectively unreasonably is not the
end of the analysis, however. Qualified immunity extends where the right in question was not
clearly established at the time of the incident. Plaintiff was leaving a “heated” situation while
officers wanted to search his wife’s vehicle, and was told not to go anywhere. (Doc. 12-1, pp.
50:24–53:20). 4 In light of the Eighth Circuit’s discussion in Tatum of the state of the law in 2014,
and because one of the Graham factors is whether the suspect is fleeing or evading arrest,
Plaintiff’s right to be free from the use of pepper spray under these facts was not sufficiently
definite in September, 2012. See Tatum, No. 16-1908 at 9–10 (discussing state of the law as of
April 29, 2014). Defendant Lewis is therefore entitled to qualified immunity from suit on the
pepper spray claims.
Defendant Lewis is also entitled to qualified immunity on Plaintiff’s excessive force claims
arising out of Defendant Lewis’s arrest of Plaintiff. After being pepper sprayed, Plaintiff fled to
the porch of his parents’ business. Defendant Lewis came through the gate, took Plaintiff over to
Defendant Lewis’s patrol car, struck Plaintiff several times (including once in the eye), and then
shoved Plaintiff into the back of the patrol car. (Doc. 12-1, pp. 57:23–61:24). Based on his

4

Deposition citations are to the document’s internal pagination.
4

conviction for assault in the third degree, Plaintiff also engaged in conduct that “purposely
create[d] apprehension of imminent physical injury in another person.” Ark. Code Ann. 5-13207(a). Two of the Graham factors—whether Plaintiff posed an immediate threat to the safety of
officers or others, and whether he was actively resisting—directly bear on the reasonableness of
any force Defendant Lewis used at this point. Furthermore, “the right to make an arrest . . .
necessarily carries with it the right to use some degree of physical coercion . . . to effect it.”
Graham, 490 U.S. at 396.
The Court need not determine whether, on these facts, a reasonable jury could find
Defendant Lewis used excessive force in removing Plaintiff from the porch and putting him in the
squad car because at the time of Plaintiff’s arrest, it was not clearly established that striking a
suspect (even in the face) who is threatening physical injury to another would violate that suspect’s
constitutional rights. See Winters v. Adams, 254 F.3d 758, 764–65 (8th Cir. 2001) (holding that a
punch to a suspect’s face was objectively reasonable when that suspect was himself attempting to
use physical force against another); Mayard v. Hopwood, 105 F.3d 1226, 1227–28 (8th Cir. 1997)
(holding that physically putting a resisting suspect into a squad car was objectively reasonable).
B.

City of Hot Springs

The City is entitled to summary judgment on the failure to train and failure to supervise
claims. Section 1983 liability cannot be premised on a respondeat superior theory. Atkinson v.
City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). There is no evidence that the
City had a facially unlawful policy or custom. See id. (setting out appropriate theories of municipal
liability). Nor is there any evidence that the City “had reason to believe, before the events giving
rise to this case, that its training or supervision of [Defendant Lewis] was inadequate.” Id. at 1217
(explaining that “some form of notice” is required before a municipality can be “deliberately

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indifferent to the risk that its training or supervision . . . would result in ‘a violation of a particular
constitutional or statutory right.’” (quoting Bryan Cty., Okla. v. Brown, 520 U.S. 397, 411 (1997))).
C.

State Law Claims

Because the Court is granting summary judgment on the federal claims, it declines to
exercise supplemental jurisdiction over the state law claims, and those claims will be dismissed
without prejudice. 28 U.S.C. § 1367(c)(3); Keating v. Neb. Pub. Power Dist., 660 F.3d 1014,
1018–19 (8th Cir. 2011).
II.

Conclusion
IT IS THEREFORE ORDERED that Defendants’ motion for summary judgment (Doc. 10)

is GRANTED. Plaintiff’s 42 U.S.C. § 1983 claims are DISMISSED WITH PREJUDICE.
Plaintiff’s Arkansas state law claims are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED this 27th day of June, 2017.

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

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