The opinion of the court was delivered by: Wright, Chief J.
This is a 42 U.S.C. s 1983 action in which the plaintiff, Terry Guest, alleges excessive force, unreasonable seizure, unlawful arrest, failure to protect, assault, and battery in the course of his arrest on September 17, 2002. Trial is scheduled for July 25, 2005. The following motions are before the Court: (1) motion of separate City defendants, City of Brookland, Mark Rusher,*fn1 Chief of Police of the City of Brookland, and Aaron Murphy, a police officer for the City of Brookland Police Department, for summary judgment (the "City defendants") [doc.# 21]; and (2) motion of separate County defendants, Jack McCann, Sheriff of Craighead County, and Craighead County Sheriff Deputies Jared Bassham, Ron Richardson, and Leon Johnson for summary judgment (the "County defendants") [doc.# 25].*fn2 The plaintiff has responded in opposition to both of these motions, and the City and County defendants have each filed a reply to plaintiff's response. Having considered the matter, the Court finds that the City defendants' motion for summary judgment should be and hereby is granted in its entirety, and that the County defendants' motion for summary judgment should be and hereby is granted in part and denied in part.
On September 17, 2002, Officer Aaron Murphy of the City of Brookland Police Department went to plaintiff's ex-wife's house where plaintiff was located to serve what was titled a warrant of arrest on plaintiff from the City of Hoxie for fictitious tags and failure to appear. City Def.'s Ex. 1. It was Murphy's belief that he was there to arrest plaintiff--to take him into custody--as "[t]hat's what the warrant had read," Murphy Depo. at 39, although according to Terry Sutton, then-Chief of Police for the City of Brookland, Murphy was being asked to "[j]ust serve the warrants ... just to appear in court, to give him a court date." Sutton Depo.
Upon arriving at the residence, Murphy knocked on the door, which plaintiff opened. Upon seeing that it was Officer Murphy, and knowing that Murphy had seen him, plaintiff shut the door "on him" and did not open it "for a few minutes." Guest Depo. at 28-29.*fn3 When plaintiff finally opened the door, Murphy said he needed to speak to plaintiff outside. Plaintiff did not want to step outside because he did not feel well and it was hot outside. Guest had had sixteen teeth removed earlier that day, having spent five hours in the dentist's office, and "really, really felt terrible. Sick at my stomach and hurt." Guest Depo. at 29. Plaintiff noted that his teeth were bleeding at this time and that he had to "change the gauze ever so often or blood gets to running down your throat." Guest Depo. at 30-31. Murphy, who apparently at that time had determined not to take plaintiff into custody but just give him a court date pursuant to the warrant he was then serving, see Murphy Depo. at 39- 40, told plaintiff that it would only take a minute and plaintiff, after asking for the fourth time what Murphy wanted while insisting how bad he felt, finally relented and stepped outside on the porch. Murphy told plaintiff he was there to give him a court date and for plaintiff to accompany him to the patrol car. Plaintiff told Murphy he was not going to go to the car. After refusing three or four times and starting to feel irritated, plaintiff finally gave up arguing with Murphy and went out to the car. Guest Depo. at 33-34.
Hospital records revealed that plaintiff had a dislocated right elbow, a cracked rib, and a tiny pneumothorax (collapsed lung). Plaintiff was unable to specifically identify which of the deputies inflicted the injuries upon him. Plaintiff does not attribute these injuries to directly to Murphy, claiming only that Murphy "set off the chain of events that directly led to [his] injuries, even if some of [his] more serious injuries were caused by the County Deputies." Pl.'s Resp. to City Def.'s Undisp. Facts at p 16. Although plaintiff claims Murphy's throwing him to the ground caused him to bleed from the mouth, even though he acknowledges he was already bleeding from the mouth when Murphy arrived at the residence, no mention was made in the hospital records of any mouth injury, such as busted stitches, and plaintiff does not point to any dental records that might indicate such an injury.*fn4
The City defendants move for summary judgment on grounds that (1) Murphy did not use excessive force on plaintiff; (2) there was probable cause to arrest plaintiff; (3) there was no unreasonable seizure; (4) Murphy had no duty to protect plaintiff under the circumstances; (5) Murphy is entitled to qualified immunity; (6) there is no municipal liability; and (7) plaintiff's state-law claims of assault and battery are barred by the one-year statute of limitations for such claims under Arkansas law. The County defendants, in turn, move for summary judgment on grounds that (1) plaintiff was not subjected to excessive force by the County defendants; (2) the County defendants did not arrest plaintiff for purposes of plaintiff's unreasonable seizure and unlawful arrest claims--Officer Murphy did--and even if they did, there was probable cause to do so; (3) County defendants had no duty to protect plaintiff from Officer Murphy; (4) there is no negligence liability; (5) plaintiff's assault and battery claims are time-barred; (6) there is no municipal liability on the part of Craighead County; (7) County defendants are entitled to qualified immunity; and (8) plaintiff can offer no proof of compensatory or punitive damages. All defendants argue that there are no genuine issues of material fact with respect to any of these issues and that they are entitled to summary judgment as a matter of law.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). As a prerequisite to summary judgment, a moving party must demonstrate "an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, the nonmoving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party may not rest on mere allegations or denials of his pleading, but must "come forward with 'specific facts showing that there is a genuine issue for trial." ' Id. at 587 (quoting Fed.R.Civ.P. 56(e) and adding emphasis). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., 475 U.S. at 587 (citations omitted). However, "[w]here 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." ' Id. (citation omitted).
As an initial matter, the Court notes that plaintiff does not address in his response to the City and County defendants' motions for summary judgment their arguments that they are entitled to summary judgment on plaintiff's failure to protect and negligence liability claims (he has thus created no issue of material fact on these claims in the face of defendants' properly supported motions for summary judgment) and he acknowledges that his assault and battery claims are time-barred. Summary judgment therefore is granted on all these claims as to both the City and County defendants. The Court now turns to the remainder of the issues presented by defendants' motions for summary judgment beginning first with the City defendants' motion for summary judgment on plaintiff excessive force claim.