Nattress v. Lancaster County, Nebraska et al

Filing 43

MEMORANDUM AND ORDER - The plaintiff's motion for summary judgment (filing 20 ) is denied. The defendants' motion for summary judgment (filing 22 is granted in part. The plaintiff's first and third claims for relief are dismissed without prejudice. The plaintiff's second claim for relief is dismissed as to the County. The plaintiff's second claim for relief is dismissed as to defendants Powers, Holbrook, and Eisenmann in their official capacities. The balance of the defendants' motion for summary judgment (filing 22 ) is denied. Ordered by Judge John M. Gerrard. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RONALD NATTRESS,
Plaintiff,

4:14-CV-3161

vs.
MEMORANDUM AND ORDER
LANCASTER COUNTY,
NEBRASKA, et al.,
Defendants.
This matter is before the Court on the cross-motions for summary
judgment filed by the plaintiff, Ronald Nattress and the defendants,
Lancaster County and several Lancaster County employees. The plaintiff's
motion for summary judgment (filing 20) will be denied in its entirety. The
defendants' motion for summary judgment (filing 22) will be granted in part,
and in part denied. Specifically, the plaintiff's first and third claims for relief
will be dismissed pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). And
the plaintiff's second claim for relief will be dismissed as to Lancaster County
and as to the individual defendants in their official capacities. But, the
plaintiff may proceed on his second claim for relief against the remaining
defendants in their individual capacities.
I. BACKGROUND
The events underlying this case were set in motion by an unrelated
criminal prosecution: the plaintiff was charged with first degree sexual
assault and was being held by the Lancaster County Department of
Corrections at the Lancaster County Intake and Detention Facility (the IDF)
pending trial. Filing 23 at 2.1 Defendants Adam Powers, Robert Holbrook,
and Scott Eisenmann were all employed by the Department of Corrections.
Filing 23 at 2.
Pursuant to NECivR 56.1, a party moving for summary judgment must include in its brief
a statement of material facts about which the movant contends there is no dispute, and the
party opposing summary judgment must include in its brief a concise response to that
statement of facts, noting any disagreement. Properly referenced material facts in the
movant's statement are considered admitted unless controverted in the opposing party's
response. NECivR 56.1(b)(1). The Court has relied upon the parties' respective statements
of material fact to the extent that they were not substantively disputed.
1

The IDF was connected by a skywalk to the Lancaster County Hall of
Justice, where the trial was being held.2 Filing 23 at 3. When the jury
reached a verdict, the plaintiff was brought from the IDF to the Hall of
Justice to receive it, accompanied by Corrections Officer Cheryl Slade (who is
not a defendant) and Powers. Filing 23 at 2; filing 21-5 at 4. The plaintiff was
found not guilty. Filing 23 at 2. The trial court accepted the verdict and
ordered the plaintiff released from custody, but told the plaintiff that "it will
take them a while to get you out." Filing 23 at 3. This was, apparently, a
reference to the fact that instead of being released from the courtroom, the
plaintiff would be taken back to the IDF for outprocessing. The plaintiff
expected that he would have to go back to the IDF to get his personal effects,
and for removal of a leg brace placed on him for trial. Filing 21-5 at 6.
The plaintiff, pleased with the outcome of the trial, made a taunting
gesture toward the prosecuting attorney, with whom he had some history.
Filing 24-4 at 18-20. The sequence of events that follows is disputed in some
details—important details, to be sure—but the broad contours are consistent.
Slade testified that she saw the plaintiff and prosecutor staring at each other,
and that the plaintiff looked angry, so she stepped in and took the plaintiff by
the arm because she did not want the situation to escalate. Filing 21-12 at 2.
The plaintiff said that Slade grabbed his arm, so he pulled it away, telling
her that she didn't have to grab him. Filing 21-5 at 6. The plaintiff's defense
attorney echoed that account. Filing 21-7 at 4. Then Powers stepped in. Filing
21-5 at 7. According to defense counsel, Powers grabbed the plaintiff with
both hands and dragged him from the room. Filing 21-7 at 4.
The plaintiff said that instead of going through what he called the "go
to jail" door, he was taken to the hallway outside the courtroom. Filing 21-5
at 7. Powers, the plaintiff said, slammed him into the wall and then on to the
ground and jumped on him, shouting "stop resisting, stop resisting." Filing
21-5 at 7. The plaintiff's defense counsel said that she could hear the officers
in the hallway directing the plaintiff to "stop resisting." Filing 21-7 at 6. The
plaintiff says that he was not resisting, and had been given no commands to
disobey. Filing 21-5 at 8. Powers, on the other hand, testified that the
plaintiff was told to put his hands behind his back to be handcuffed, but did
not comply. Filing 21-8 at 2. Slade said the same thing. Filing 21-12 at 2.
Powers said he took the plaintiff to the ground, but according to both Slade
and Powers, the plaintiff kept pulling his arms underneath him, preventing
the officers from handcuffing him. Filing 21-8 at 3; filing 21-12 at 2. Defense
counsel said that when she exited the courtroom into the hallway, to see if
A new facility, some distance away from the Hall of Justice, has since been opened. See
filing 24-6 at 12.
2

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she could calm the situation, "there were so many people on top" of the
plaintiff that "there was nothing that could be said or done." Filing 21-7 at 6.
Eventually the plaintiff was handcuffed and Powers and a sheriff's
deputy got the plaintiff up and walked him toward the IDF. Filing 21-5 at 10;
filing 21-12 at 2. Holbrook and Eisenmann came up from the IDF and met
them at the door to the skywalk. Filing 21-5 at 10. The plaintiff said that he
couldn't walk because his leg was locked up, so Holbrook, Eisenmann, and
perhaps Powers lifted him and carried him to the elevator to ride back to the
IDF. Filing 21-5 at 11. (The plaintiff wasn't sure if Powers was in the
elevator; Powers testified that he took a different elevator. Filing 21-8 at 4.)
Slade said the plaintiff was continuing to resist by refusing to walk. Filing
21-12 at 3. According to the plaintiff, the officers on the elevator ran him into
the back wall, again telling him to stop resisting. Filing 21-5 at 12. The
plaintiff denies resisting. Filing 21-5 at 12. Eisenmann testified that the
plaintiff was resisting by twisting his upper body, but denies slamming the
plaintiff's head into the elevator wall. Filing 21-10 at 5-6.
The plaintiff and escorting officers were met off the elevator by a
restraint chair, which the plaintiff was strapped into. Filing 21-5 at 12. The
plaintiff says that an electronic restraint device (ERD) was displayed. Filing
21-5 at 12. (Such a device is much like a "Taser" gun, but it uses electrodes
instead of wires to shock the target.) The plaintiff testified that Holbrook and
Powers used their devices to shock the plaintiff repeatedly, while Eisenmann
stood to the plaintiff's side. Filing 21-5 at 13-15. Powers, on the other hand,
said that the plaintiff was resisting being strapped into the restraint chair
and his ERD was applied once to the plaintiff's abdomen to secure his
compliance. Filing 21-8 at 6. After that, the plaintiff complied and he was
secured into the chair. Filing 21-8 at 8.
The plaintiff was charged with third degree assault on an officer
(Slade), but that charge was reduced to simple third degree assault. Filing
21-15; filing 21-17. The defendant was convicted of third degree assault
pursuant to a no contest plea, and was sentenced to 365 days' imprisonment.
Filing 24-12 at 61, 69.
II. STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
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does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
III. DISCUSSION
Rather than address the parties' motions separately, it will be easier to
break the parties' arguments down separately for each of the plaintiff's
claims for relief. The plaintiff's complaint alleges three claims for relief:
1.

The plaintiff was deprived of his right to be free from
unlawful arrest contrary to the Fourth Amendment to the
U.S. Constitution. Filing 1-1 at 7.

2.

The plaintiff was subjected to excessive force in violation of
the Fourteenth Amendment to the U.S. Constitution.3
Filing 1-1 at 8.

3.

The plaintiff was denied his right to due process under the
Fourteenth Amendment—specifically, his right to a fair
court proceeding—by the defendants' failure to retain any
copies of the video surveillance of the plaintiff's detention.
Filing 1-1 at 9.

The Court will discuss each claim in turn.4

The plaintiff's complaint actually raises the Fifth and Fourteenth Amendments, but as
will be explained below, it is the Fourteenth Amendment that's relevant here.
3

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1. UNLAWFUL ARREST
The plaintiff's first claim is that he was unlawfully arrested after his
acquittal. The defendants argue that this claim is barred by Heck, 512 U.S.
477. Filing 23 at 7. The Court agrees.
In Heck, the Supreme Court held that
when a state prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has
already been invalidated. But if the district court determines that
the plaintiff's action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the
plaintiff, the action should be allowed to proceed, in the absence
of some other bar to the suit.
512 U.S. at 487 (emphasis in original) (footnotes omitted).
Thus, in order to recover damages for an allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a plaintiff must
prove that the conviction or sentence has been reversed on direct appeal,
declared invalid by an appropriate state tribunal, or called into question by a
federal court's issuance of a writ of habeas corpus. Id. at 486–87. This has
come to be known as the "favorable termination" requirement of Heck. See,
Marlowe v. Fabian, 676 F.3d 743, 745 (8th Cir. 2012).
A guilty plea forecloses a § 1983 claim for arrest without probable
cause. Williams v. Schiaro, 93 F.3d 527, 528-29 (8th Cir. 1996); see, Sanders
v. Fayetteville City Police Dep't, 160 F. App'x 542, 543 (8th Cir. 2005);
Anderson v. Franklin Cnty., Mo., 192 F.3d 1125, 1131 (8th Cir. 1999). As
noted above, the plaintiff was convicted, pursuant to a no contest plea, of
attempted third degree assault arising out of his contact in the courtroom
with Slade. Filing 23 at 4. So, in order to show that there was no probable
cause for his arrest, the plaintiff would need to show that he had not, in fact,
assaulted Slade. And the plaintiff's conviction for that assault has not been
reversed or invalidated. Filing 23 at 4. Accordingly, his unlawful arrest claim
is barred by Heck.

Although the plaintiff's complaint is not specific on this point, the Court understands all
the plaintiff's claims to have been brought pursuant to 42 U.S.C. § 1983.
4

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The plaintiff's argument to the contrary is threefold. First, the plaintiff
cites Spencer v. Kemna, 523 U.S. 1 (1998), for the proposition that a claim is
not Heck-barred if the plaintiff has been released from imprisonment on the
underlying conviction. Filing 32 at 17-20. The plaintiff goes so far as to assert
that Spencer overruled Heck. Filing 32 at 18. Unfortunately for the plaintiff,
what his brief relies upon is actually Justice Souter's concurring opinion in
Spencer, which did not muster a majority. 523 U.S. at 18-22. And the Eighth
Circuit has expressly held, in the wake of Spencer, that Heck's favorabletermination rule still applies when a § 1983 plaintiff is not incarcerated.
Newmy v. Johnson, 758 F.3d 1008, 1010-12 (8th Cir. 2014) (citing Entzi v.
Redmann, 485 F.3d 998, 1003 (8th Cir. 2007)). The Eighth Circuit
"recognize[d] that this rule could preclude a damages remedy for an inmate
who is detained for only a short time with limited access to legal resources,
but that is a consequence of the principle barring collateral attacks that was
applied in Heck." Id. And the Court of Appeals, in no uncertain terms,
reaffirmed its holding that Heck "impose[s] a universal favorable termination
requirement on all § 1983 plaintiffs attacking the validity of their conviction
or sentence." Id.
Second, the plaintiff argues that he only pled no contest to assault
because video recordings of the force used to arrest him had not been
retained, and he was threatened with the charge of being a habitual criminal.
Filing 32 at 20. Essentially, he implies that his guilty plea was coerced. But
Heck holds that a § 1983 claim that would necessarily imply the invalidity of
a conviction or sentence should be dismissed without prejudice unless the
"conviction has already been invalidated." Anderson, 192 F.3d at 1131
(emphasis supplied). His allegation of a coerced plea does not change that.
See id.
Finally, the plaintiff suggests it makes a difference that he pled no
contest, instead of guilty. Filing 32 at 21. He points out that evidence of a
plea of nolo contendere is not admissible evidence against the person who
made it. See, Fed. R. Evid. 410; Neb. Rev. Stat. § 27-410. But Heck is
premised on a previous conviction, not the plea from which it may have
resulted. See Olsen v. Correiro, 189 F.3d 52, 66-70 (1st Cir. 1999); see also,
Radwan v. Cnty. of Orange, 519 F. App'x 490, 490-91 (9th Cir. 2013); Claunch
v. Williams, 508 F. App'x 358, 359 n.2 (5th Cir. 2013); Quinlan v. City of
Pensacola, 449 F. App'x 867, 870 (11th Cir. 2011); Marable v. West Pottsgrove
Twp., 176 F. App'x 275, 280 (3d Cir. 2006); cf. Moore v. Sims, 200 F.3d 1170
(8th Cir. 2000). Rule 410 does not preclude evidence of a prior conviction,
even if it was based on a plea of nolo contendere. Olsen, 189 F.3d at 58-66.
Simply put, the plaintiff's false arrest claim is based on the assertion
that there was no probable cause to arrest him. Such a finding would
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necessarily imply the invalidity of his conviction for assault, and that
conviction has not been set aside. Accordingly, the plaintiff's first claim for
relief is Heck-barred.
2. EXCESSIVE FORCE
The plaintiff's second claim for relief—that excessive force was used in
his continued detention—is not Heck-barred. A finding that law enforcement
used excessive force would not necessarily imply the invalidity of the
plaintiff's subsequent conviction, because there is no inherent conflict
between a conviction for assaulting an officer and a finding that law
enforcement used excessive force in effectuating the arrest. Colbert v. City of
Monticello, Ark., 775 F.3d 1006, 1007-08 (8th Cir. 2014).
The plaintiff's claim is brought against the County and County
employees in their official and individual capacities, and it will be necessary
to separately evaluate the plaintiff's official and individual capacity excessive
force claims. But as a preliminary matter, it is necessary to consider what
constitutional standard is applicable to the unique circumstance of a plaintiff
who alleges that excessive force was applied after his acquittal, but before he
was released from custody or charged with another offense.
It matters because the constitutional standard applied when excessive
force is alleged may vary depending upon whether the victim is an arrestee, a
pretrial detainee, or a convicted inmate of a penal institution. Andrews v.
Neer, 253 F.3d 1052, 1060 (8th Cir. 2001). The first step in analyzing a § 1983
excessive force claim is to identify the specific constitutional right allegedly
infringed by the challenged application of force. Graham v. Connor, 490 U.S.
386, 394 (1989). If the victim is an arrestee, the Fourth Amendment's
"objective reasonableness" standard applies. Andrews, 253 F.3d at 1060; see,
Schoettle v. Jefferson Cnty., No. 14-1993, 2015 WL 3621446, at *3 (8th Cir.
June 11, 2015); Bernini v. City of St. Paul, 665 F.3d 997, 1006 (8th Cir. 2012).
The evaluation of excessive force claims brought by pretrial detainees,
although grounded in the Fifth and Fourteenth Amendments rather than the
Fourth Amendment, also relies on an objective reasonableness standard.
Andrews, 253 F.3d at 1060; see Hicks v. Norwood, 640 F.3d 839, 842 (8th Cir.
2011). While the Eighth Circuit has not drawn a bright line dividing the end
of arrestee status and the beginning of pretrial detainee status, see Wilson v.
Spain, 209 F.3d 713, 715 (8th Cir. 2000), it is clear that the state may not
punish a pretrial detainee. Andrews, 253 F.3d at 1060-61; see, Kingsley v.
Hendrickson, No. 14-6368, 2015 WL 2473447, at *8 (U.S. June 22, 2015);
Edwards v. Byrd, 750 F.3d 728, 732 (8th Cir. 2014). And excessive force
claims brought by prisoners fall under the protections provided by the Eighth
Amendment's prohibition of cruel and unusual punishment, in which the
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Court considers whether force was applied in a good-faith effort to maintain
and restore discipline or maliciously and sadistically for the purpose of
causing harm. Andrews, 253 F.3d at 1061; see Johnson v. Blaukat, 453 F.3d
1108, 1112 (8th Cir. 2006).
None of those categories fits precisely here, but the Court finds that the
Fourteenth Amendment standard applicable to pretrial detainees should
apply (although that standard, as will be explained, incorporates aspects of
the Fourth and Eighth Amendment tests). To begin with, the Fourth
Amendment doesn't fit the facts: it is apparent that what happened to the
plaintiff—under any account—was related to his continued detention, not a
fresh arrest on a new charge. As the Fifth Circuit has said, the Fourth
Amendment does not provide "an appropriate constitutional basis for
protecting against deliberate official uses of force occurring after the incidents
of arrest are completed, after the plaintiff has been released from the
arresting officer's custody, and after the plaintiff has been in detention
awaiting trial for a significant period of time." Brothers v. Klevenhagen, 28
F.3d 452, 456 (5th Cir. 1994) (emphasis in original) (citation and quotation
omitted). Accordingly, the Fifth Circuit applied Fourteenth Amendment
standards to the re-apprehension of a pretrial detainee who attempted to
escape while being transported, because "[u]ntil the detainee is released from
custody, this status never reverts back to that of mere suspect." Id. at 457.
Nor does the Eighth Amendment fit, because it is intended to draw the
line between permissible and impermissible punishments, and until a
prisoner has been convicted of a crime, punishment of any kind is
impermissible. See Kingsley, 2015 WL 2473447, at *8. Accordingly, when a
plaintiff found not guilty by reason of insanity was allegedly subjected to
excessive force at the facility where he had been involuntarily committed
after his acquittal, the Eighth Circuit held that the Fourteenth Amendment
was applicable. Andrews, 253 F.3d at 1061. The plaintiff, the Court of
Appeals said, had been found not guilty,
and thus he was not a "prisoner" subject to punishment. The
Eighth Amendment excessive-force standard provides too little
protection to a person whom the state is not allowed to punish.
On the other hand, the state . . . was entitled to hold [the
plaintiff] in custody. His confinement in a state institution raised
concerns similar to those raised by the housing of pretrial
detainees, such as the legitimate institutional interest in the
safety and security of guards and other individuals in the facility,
order within the facility, and the efficiency of the facility's
operations. Accordingly, we conclude that [the plaintiff]'s
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excessive-force claim should be evaluated under the objective
reasonableness standard usually applied to excessive-force claims
brought by pretrial detainees.
Id.
Much the same is true here. The plaintiff, as in Andrews, might fairly
be characterized as a "post-trial detainee." And as in Andrews, the same
governmental concerns are implicated. Guided by the Eighth Circuit's
reasoning in Andrews, the Court will apply a Fourteenth Amendment
standard to the plaintiff's excessive force claim.
Under that standard, the plaintiff must show that force was purposely
or knowingly used against him,5 and that the force used was objectively
unreasonable. Kingsley, 2015 WL 2473447, at *5. Objective reasonableness
turns on the facts and circumstances of each particular case. Id. A court must
make this determination from the perspective of a reasonable officer on the
scene, including what the officer knew at the time, not with the 20/20 vision
of hindsight. Id. A court must also account for the legitimate interests that
stem from the government's need to manage the facility in which the
individual is detained, appropriately deferring to policies and practices that
in the judgment of jail officials are needed to preserve internal order and
discipline and to maintain institutional security. Id. Considerations that bear
on the reasonableness or unreasonableness of the force used may include the
relationship between the need for the use of force and the amount of force
used, the extent of the plaintiff's injury; any effort made by the officer to
temper or to limit the amount of force, the severity of the security problem at
issue, the threat reasonably perceived by the officer, and whether the
plaintiff was actively resisting. Id. at *6. A plaintiff can prevail by providing
objective evidence that the challenged government action was not rationally
related to a legitimate government purpose or that it was excessive in
relation to that purpose. Id.
And while the Eighth Amendment is not directly applicable, the
Fourteenth Amendment affords rights which are at least as great as the
Eighth Amendment protections available to a convicted prisoner. Smith v.
Conway Cnty., Ark., 759 F.3d 853, 858 (8th Cir. 2014); Edwards, 750 F.3d at
732. Conduct constituting "cruel and unusual punishment" a fortiori
constitutes punishment, and the Due Process Clause prohibits any
punishment of a detainee, cruel-and-unusual or not. Smith, 759 F.3d at 858;

The Supreme Court in Kingsley, 2015 WL 2473447, at *5, also left the door open to
liability for force used recklessly, but on the facts presented here, the use of force (whether
or not it was justified) was clearly deliberate.
5

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Edwards, 750 F.3d at 732 n.2. So if the use of force in this case would have
violated the Eighth Amendment had the plaintiff been a prisoner, that
conduct necessarily violated his rights under the Fourteenth Amendment.
Edwards, 750 F.3d at 732. But an official's use of force does not amount to
punishment in the constitutional sense if it is simply an incident of some
other legitimate governmental purpose. Jackson v. Buckman, 756 F.3d 1060,
1067 (8th Cir. 2014).
With that framework established, the next question the Court must
address is whether the County, or the County's employees in their official
capacities, may be held liable.
(a) Official Capacity Claims
A municipality can be held liable under § 1983 only where the
municipality itself causes the constitutional violation at issue. City of Canton
v. Harris, 489 U.S. 378, 385 (1989). Respondeat superior or vicarious liability
will not attach under § 1983. City of Canton, 489 U.S. at 385; Johnson v.
Douglas Cnty. Med. Dep't, 725 F.3d 825, 828 (8th Cir. 2013). But local
governing bodies can be sued directly under § 1983 for monetary, declaratory,
or injunctive relief where the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body's officers. Johnson, 725 F.3d
at 828 (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978)).
Moreover, local governments may be sued for constitutional deprivations
visited pursuant to governmental custom even though such a custom has not
received formal approval through the body's official decisionmaking channels.
Id. (citing Monell, 436 U.S. at 690-91). Thus, the first inquiry in any case
alleging municipal liability under § 1983 is whether there is a direct causal
link between a municipal policy or custom and the alleged constitutional
deprivation. City of Canton, 489 U.S. at 385.
(i) Policy
There is no evidence here of a policy causing any constitutional
deprivation. The County has presented evidence of its use of force policy,
which limits the use of force to legitimate governmental interests such as
self-defense, prevention of injury, and enforcement of lawful orders. Filing 241 at 11. The policy provides for an escalation of the use of force, beginning
with officer presence and verbal direction, followed by a show of force and
display of the ERD before the ERD is used, then proceeding to "soft empty
hand control" using pressure points and pain compliance. Filing 24-1 at 12.
And "[t]he use of excessive force is strictly prohibited." Filing 24-1 at 12. The
plaintiff has presented no evidence to contradict the County's evidence of its

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policy regarding the use of force. Nor has the plaintiff presented any
allegation, evidence, or argument suggesting that the County failed to
adequately train its officers in the appropriate use of force. See, City of
Canton, 489 U.S. at 390; B.A.B. v. Bd. of Educ. of St. Louis, 698 F.3d 1037,
1040 (8th Cir. 2012).
Instead, the plaintiff proffers three theories regarding the County's
policy. The first is that Powers, as a sergeant, is a "policymaker" for the
County, so his actions or inactions constitute official policy. Filing 32 at 28.
This argument is without merit. Whether an individual exercised final
policymaking authority for a municipality is a question of state law. Atkinson
v. City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). For
instance, in Atkinson, the Court of Appeals held that a city police chief was
not a municipal policymaker, because the mayor and board of aldermen of the
city had the ultimate policymaking authority, and there was no evidence that
the city had a record of delegating such authority to the police chief. Id. at
1215-16. Similarly, in Bernini, the Eighth Circuit held that an area
commander for the City of St. Paul, Minnesota, who commanded
approximately 500 officers, was not a "policymaker" because there were
layers of policymaking authority above the area commander's rank, starting
with the chief of police. 665 F.3d at 1008. The fact that the area commander
"had discretion in the exercise of particular functions does not, without more,
give rise to municipal liability based on an exercise of that discretion." Id.
(citation and quotation omitted).
In this case, the plaintiff points to no state or local positive law, nor any
state or local custom or usage having the force of law, suggesting that a
corrections sergeant is somehow responsible for final policymaking for the
County. See Atkinson, 709 F.3d at 1215. Nor is the Court aware of such
authority. A "policy" for these purposes involves a deliberate choice to follow
a course of action made from among various alternatives by an official who
has the final authority to establish governmental policy. Brockinton v. City of
Sherwood, Ark., 503 F.3d 667, 674 (8th Cir. 2007). Powers was not such an
official.6
Second, the plaintiff contends that the County's use of force policy is
itself deficient. Filing 32 at 28-29. The plaintiff asserts that "interpersonal
skills and direct supervision techniques" play no part on the "use of force
continuum," and that it is "counterintuitive" that the ERD is used before "soft
The plaintiff's complaint also identifies "Defendant Gray" as a policymaker who was in
attendance. Filing 1-1 at 9-10. But there is no defendant named Gray. The plaintiff is
presumably referring to Lieutenant Rick Gray, who was at that time in charge of transport.
Filing 21-10 at 7; filing 24-6 at 28. But although Gray was Powers' superior officer, he was
no more a policymaker than Powers.
6

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empty hand control." Filing 32 at 29. But there are two problems with that
argument. First, the Court is not convinced that it is consistent with the
plaintiff's evidence. The plaintiff's own testimony does not suggest that the
County's use of force policy caused a constitutional deprivation; rather, if the
plaintiff's testimony is credited, then the defendants' failure to follow the
policy caused a constitutional deprivation. See Elder-Keep v. Aksamit, 460
F.3d 979, 987 (8th Cir. 2006). That does not support municipal liability, see
id., and the Court is not persuaded that the plaintiff may ground his claims
against the County on the falsity of his own testimony. But more
fundamentally, the plaintiff's criticism of the County's use of force policy falls
short of implicating constitutional concerns. Simply put, the use of force
policy is entirely consistent with the Fourteenth Amendment standard for the
use of force set forth above.
Finally, the plaintiff also suggests that the County's failure to create or
retain video surveillance was a County policy supporting municipal liability.
Filing 1-1 at 9. It is not clear whether this allegation was meant to relate to
the plaintiff's excessive force claim, but for the sake of completeness, the
Court notes that the Eighth Circuit has rejected a claim that the failure to
use recording equipment was a proximate cause of excessive force, as the
recording "would only show the events leading up to the alleged assault" but
"could not have prevented or caused the assault." Elder-Keep, 460 F.3d at
987; cf. Alexander v. Hedback, 718 F.3d 762, 766 (8th Cir. 2013) (municipal
liability requires direct causal link between municipal policy and alleged
constitutional deprivation).
(ii) Custom
Nor is there evidence in this case of a "custom" supporting the County's
liability. To show the existence of a "custom," it is necessary to establish (1)
the existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity's employees; (2)
deliberate indifference to or tacit authorization of such conduct by the
governmental entity's policymaking officials after notice to the officials of
that misconduct; and (3) that plaintiff was injured by acts pursuant to the
governmental entity's custom, i.e., that the custom was a moving force behind
the constitutional violation. Johnson, 725 F.3d at 828. And in the absence of a
pattern, it is equally difficult to infer notice of a custom to policymaking
officials and deliberate indifference on their parts. See Johnson, 725 F.3d at
829. There is no such evidence here. Although the plaintiff alleges "there
have been other reported cases" of the use of the restraint chair and ERD, the
plaintiff has not identified one.

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In the absence of a policy or custom that is causally linked to the
alleged violation of the plaintiff's constitutional rights, the County is entitled
to summary judgment.
(iii) Individual Defendants in Official Capacities
The Court's disposition of the plaintiff's claims against the County is
also dispositive of his claims against the individual defendants in their
official capacities. It is well-settled that a suit against a governmental actor
in his official capacity is treated as a suit against the government entity
itself. Alexander, 718 F.3d at 766; Brockinton, 503 F.3d at 673. Accordingly,
summary judgment is appropriate as to the individual defendants in their
official capacities.
(b) Individual Capacity Claims
Although the plaintiff's excessive force claims against Powers,
Holbrook, and Eisenmann in their official capacities will be dismissed, the
plaintiff may proceed against them in their individual capacities unless they
are protected by qualified immunity.
Qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known. Ransom v. Grisafe, No. 14-2204, 2015 WL 3824763, at *4 (8th Cir.
June 22, 2015); Ulrich v. Pope Cnty., 715 F.3d 1054, 1058 (8th Cir. 2013);
Bernini, 665 F.3d at 1002; Brockinton, 503 F.3d at 671. This immunity
applies to discretionary functions of government actors. Ransom, 2015 WL
3824763, at *4. An official is entitled to qualified immunity unless (1) the
evidence, viewed in the light most favorable to the nonmoving party,
establishes a violation of a federal constitutional or statutory right; and (2)
the right was clearly established at the time of the violation. Robinson v.
Payton, No. 14-1962, 2015 WL 3937653, at *3 (8th Cir. June 29, 2015);
Ulrich, 715 F.3d at 1058; Bernini, 665 F.3d at 1002.
So, to overcome the defense of qualified immunity, the plaintiff must
have shown that the officers' actions violated a constitutional right that was
clearly established at the time of their alleged misconduct. Ransom, 2015 WL
3824763, at *4. In other words, the officers must have been plainly
incompetent or must have knowingly violated the law when they used force
against him. Id.; see Brockinton, 503 F.3d at 671-72. And the Court evaluates
the defense of qualified immunity from the perspective of a reasonable officer
based on facts available to the officer at the time of the alleged constitutional
violation. Ransom, 2015 WL 3824763, at *4.

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Specifically, to withstand a motion for summary judgment on qualified
immunity grounds, a civil rights plaintiff must (1) assert a violation of a
constitutional right; (2) demonstrate that the alleged right is clearly
established; and (3) raise a genuine issue of fact as to whether the official
would have known that his alleged conduct would have violated the plaintiff's
clearly established right. Brockinton, 503 F.3d at 672; see Reasonover v. St.
Louis Cnty., Mo., 447 F.3d 569, 580 (8th Cir. 2006).
The Court finds that the plaintiff has met that burden here. The
plaintiff has asserted—and presented evidence—that he was subjected to
physical force despite engaging in no misconduct and proffering no resistance
to any direction from the defendants. Specifically, the plaintiff's testimony, if
credited by the trier of fact, would support a conclusion that Powers used
unnecessary force on the plaintiff outside the courtroom, that Holbrook and
Eisenmann used unnecessary force on the plaintiff in the elevator to the IDF,
and that Powers and Holbrook unnecessarily used their ERDs on the plaintiff
while all three defendants collaborated in strapping the plaintiff into a
restraint chair. And while Eisenmann is not alleged to have used an ERD on
the plaintiff, the plaintiff testified that he was present, and an officer who
fails to intervene to prevent the unconstitutional use of excessive force by
another officer may also be held liable. See, Robinson, 2015 WL 3937653, at
*3; Smith, 759 F.3d at 861; Hicks, 640 F.3d at 843.
In sum, these facts, if proved, could show that the defendants "did not
apply this force in order to restore order or discipline but rather for the sole—
and impermissible—purpose of inflicting unjustified harm on the [plaintiff]."
Edwards, 750 F.3d at 732. The Court is also mindful of the Eighth Circuit's
decisions in Smith, 759 F.3d at 859, and Hickey v. Reeder, 12 F.3d 754, 758
(8th Cir. 1993), which can be read to stand for the proposition that the use of
an ERD to enforce compliance, even with a lawful order, may be
constitutionally excessive force where the detainee did not present a physical
threat to the officers. An officer may use force—including an ERD—in a goodfaith effort to maintain or restore discipline, but not maliciously and
sadistically to cause harm to a nonviolent detainee who is simply slow to
comply with the officer's non-emergency instruction. Smith, 759 F.3d at 859.
And the right to be free from excessive force is a clearly established
right. See id. at 861; see also, Atkinson, 709 F.3d at 1212; Edwards, 750 F.3d
at 733. Accordingly, the Court finds that the plaintiff has raised genuine
issues of material fact as to whether his right to be free from excessive force
was violated, and whether the officers who used that force (or permitted it to
be used) would have known that. A jury will determine the credibility of each
of these claims. The Court will deny qualified immunity to the individual

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defendants in their individual capacities on the plaintiff's excessive force
claim.
3. VIDEO RECORDING POLICY
The plaintiff's final claim for relief is hard to make out. The underlying
facts are fairly straightforward: the County contends that no video recording
exists of the incidents that gave rise to this case. The County's evidence is
that while there were approximately 100 cameras in the IDF at the time, the
County only had ports to record from 32 of them. Filing 24-10 at 18. Of those
32, 16 were hard-wired to record, while the other 16 to record could be
selected through software. Filing 24-10 at 18, 26-28. The County was only
able to find footage of the plaintiff being wheeled in the restraint chair into
the elevator, the booking area, and a holding cell, presumably after any use of
force. Filing 24-10 at 26. According to the County, none of the cameras that
might have been in position to record other parts of the incident were
recording. Filing 24-10 at 26.
The plaintiff's complaint suggests that the County's failure to keep
recordings of the incident somehow violated his Due Process right to a fair
court proceeding. Filing 1-1 at 9. It is not entirely clear from the complaint
which court proceeding the plaintiff meant: the assault charge, or the instant
case. His brief elucidates that theory somewhat: the plaintiff suggests that he
was denied his right to a fair hearing on the assault charge by the failure to
retain exculpatory evidence. Filing 21 at 30.
But because that theory is premised on the inadequacy of his state
criminal proceeding, it calls into question the validity of a conviction that has
not been independently invalidated; as such, it is plainly Heck-barred. See
Moore v. Novak, 146 F.3d 531, 536 (8th Cir. 1998). The plaintiff's brief in
support of his motion for summary judgment also expands on this theory in a
way that does not clearly appear in his complaint: the theory that his Due
Process rights were violated because the assault charges against him were
not adequately investigated, and false evidence was presented. Filing 21 at
26-30. But to the extent that this claim has been raised, it is also Heckbarred. See Moore v. Sims, 200 F.3d at 1172.
IV. CONCLUSION
For the reasons stated above, the plaintiff's motion for summary
judgment will be overruled in its entirety. The defendants' motion will be
granted as to the plaintiff's unlawful arrest and fair court proceeding claims,
as to the County on the plaintiff's excessive force claim, and as to Powers,
Holbrook, and Eisenmann in their official capacities on the plaintiff's
excessive force claim. Summary judgment will be denied on the plaintiff's

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excessive force claim as to Powers, Holbrook, and Eisenmann in their
individual capacities.
IT IS ORDERED:
1.

The plaintiff's motion for summary judgment (filing 20) is
denied.

2.

The defendants' motion for summary judgment (filing 22) is
granted in part.

3.

The plaintiff's first and third claims for relief are dismissed
without prejudice.

4.

The plaintiff's second claim for relief is dismissed as to the
County.

5.

The plaintiff's second claim for relief is dismissed as to
defendants Powers, Holbrook, and Eisenmann in their
official capacities.

6.

The balance of the defendants' motion for summary
judgment (filing 22) is denied.

Dated this 13th day of July, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

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