The opinion of the court was delivered by: Susan Webber Wright United States District Court
Memorandum Opinion and Order
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and alleges that defendants violated various rights granted him by the United States Constitution and the Arkansas Constitution. Plaintiff also claims a violation of the Arkansas Civil Rights Act.
Now before the Court is defendants' motion for summary judgment to which plaintiff responded. After careful consideration, and for the reasons stated below, the Court finds the motion should be granted in part and denied in part.
On August 13, 2004, Ollie Collins, a police officer, and defendant Mike Russell, a detective with the Osceola Police Department, went to a residence owned by plaintiff Franklin Harris. They questioned Franklin Harris, Jr. in the presence of his father, the plaintiff. Defs.' Statement Uncontested Material Facts, ¶¶1-2. According to Frank, Jr., the officers wanted to know if he had seen a suspect they were looking for and, if so, whether the suspect had tried to sell or give him a pair of basketball shoes. Ex. A, Aff. ¶ 3. Once they completed their questioning, the officers left. Statement of Facts, ¶ 2. Plaintiff also left. Ex. C, Aff. ¶ 7. Later, Russell went back to the residence and told Frank, Jr. that he needed to go with Russell to the police department. Id. at ¶ 3. After allegedly attempting to contact his father, and telling Russell he did not want to go to the police station, Frank, Jr. drove to the police department. Compl. ¶8-9. He says he parked in front and was walking up to the entrance when Russell pulled up to the curb and screamed at Frank, Jr., to get in Russell's car. Defendant Russell told Frank, Jr. he had to go through the back door. Frank, Jr. says he was scared and continued to walk toward the front door. According to Frank, Jr., Russell then came running at him, grabbed him, and threw him into some bushes. He says Russell choked him and dragged him. Ex. A ¶¶10-13.
On May 11, 2005, plaintiff filed a complaint on behalf of his minor son, Frank, Jr. In Count I, plaintiff alleges defendants' actions violated the Arkansas Rules of Criminal Procedure, denied him his right to exercise free speech under the First Amendment, and denied him substantive and procedural due process. In Count II, he alleges a violation of the Arkansas Civil Rights Act, Ark. Code Ann. §16-123-106(a). He sues Russell in his individual and official capacities and Chief of Police Rigsby in his official capacity.
Trial of this matter is set for the week of July 24, 2006. Defendants seek summary judgment on the basis that plaintiff fails to state any facts and has no evidence to support his claims, that res judicata/collateral estoppel precludes plaintiff from claiming Frank, Jr. did nothing to warrant any force being used against him, and that Russell is entitled to qualified immunity.
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 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 (1986). Once the moving party has properly supported its motion for summary judgment, the non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving 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)).
"[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party." RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587 (citations omitted). Further, summary judgment is particularly appropriate where an unresolved issue is primarily legal, rather than factual. Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995).
"Summary judgment is warranted if the evidence, viewed in the light most favorable to the nonmoving party, shows that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law." Bockelman v. MCI Worldcom, Inc., 403 F.3d 528, 531 (8th Cir.2005).
A. First Amendment Violation
Plaintiff alleges defendants' actions constitute a "denial of his exercise of free speech, guaranteed to Plaintiff under the First Amendment to the United States Constitution, as well as the Arkansas Constitution." Compl. ¶ 15. The Court finds nothing in the complaint, plaintiff's response, brief, or affidavits to support a claim for a violation of free speech. ...