The opinion of the court was delivered by: Susan Webber Wright United States District Judge
This is a 42 U.S.C. § 1983 action in which the plaintiff, Brandy Clark, alleges she was subjected to excessive force during a traffic stop, violating her Fourth, Eighth and Fourteenth Amendment rights. Plaintiff also asserts a state-law claim under the Arkansas Civil Rights Act of 1993 ("ACRA"), Ark. Code Ann. §§ 16-123-101 et seq., as well as state-law claims for assault and battery and, apparently, for negligent retention. The matter is before the Court on motion of defendants for partial summary judgment [doc.#16]. Plaintiff has responded in opposition to certain aspects of defendants' motion while conceding others. Having considered the matter, the Court grants in part and denies in part defendants' motion for partial summary judgment.
On December 19, 2004, plaintiff was driving in West Memphis, Arkansas when she was stopped by separate defendant Andre Nash, a police officer with the West Memphis Police Department, for a traffic violation. As a result of the traffic stop, plaintiff was issued a citation for failing to signal when changing lanes.
Plaintiff alleges that in the course of the stop, she called her fiancé, Nigel Williams, a Memphis, Tennessee police officer, because she was concerned about the stop. Plaintiff states that as Officer Nash approached her vehicle, he "cursed her by telling her to get out of the 'fucking' car and likewise yelled at her to get off the 'fucking' phone and then grabbed her left arm, hit the right side of her face, pulled the door open at which time he again struck her and twisted her wrist, placed a weapon against her ribs, yanked her out of the car, abruptly handcuffed her, threw her back in the car and then demanded that she get her driver's licenses and registration." Compl. at ¶ 6. Plaintiff states that while she was being "cuffed, struck, bruised and threatened with a weapon, [she] requested a 'Lieutenant on the scene,' at which time [Officer Nash] became more aggravated with her, and again cursed her, told her to quit running her 'fucking' mouth and hung up her phone." Compl. at ¶ 8. Plaintiff states that because Officer Nash could not find her license in her purse, "he shoved her purse at her and demanded that she get her license which she did and as she was handing the same to [Officer Nash], she again called Nigel Williams on speed dial at which time [Officer Nash] screamed more obscenities at her, and demanded she get off the phone." Compl. at 8. Ultimately, Charlie Dabbs, a Sergeant with the West Memphis Police Department, arrived on the scene, and plaintiff advised him that Officer Nash "had struck her and cursed her, harmed her, used his weapon to threaten her and that she desired to make a formal complaint against him." Compl. at ¶¶ 9-10. Plaintiff states that Sergeant Dabbs advised her that Officer Nash did nothing to her and that when she again stated what happened, Sergeant Dabbs advised her that "'with your attitude it is no wonder' that it occurred." Compl. at ¶ 11. Plaintiff states that "following this confrontation and illegal use of force, [she] was issued a traffic citation for failure to use a signal while changing lanes." Compl. at ¶ 12.
On January 23, 2006, plaintiff was convicted of the offense for which the citation was issued. Plaintiff was not incarcerated as a result of the traffic stop or the subsequent conviction for the traffic citation.
Defendants move for partial summary judgment on the following grounds: (1) plaintiff is precluded from challenging under § 1983 and the Fourth Amendment whether probable cause existed for her traffic stop or citation; (2) plaintiff does not fall within the purview of the Eighth Amendment; (3) plaintiff's Fourteenth Amendment due process claim should be dismissed; (4) William H. Johnson, Mayor of West Memphis, Bob Paudert, Chief of Police for the West Memphis Police Department, Officer Nash, and Sergeant Dabbs, individually, are entitled to qualified immunity with respect to plaintiff's probable cause claim; (5) plaintiff's probable cause ACRA claim should be dismissed for the same reasons her probable cause § 1983 claim should be dismissed; and (6) plaintiff's claim that she suffered injuries from "policies, practices and customs which amounted to negligent retention of police officers" must be dismissed as defendants are statutorily immune from liability stemming from tort claims under Ark. Code Ann. § 21-9-301. Defendants argue there are no genuine issues of material fact with respect to any of these issues and that they are entitled to partial 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 (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 (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 (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, 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, plaintiff agrees that she is precluded from challenging whether probable cause existed for the traffic stop, that her claims do not fall within the purview of the Eighth Amendment, and that defendants are entitled to qualified immunity with respect to her probable cause claim. Accordingly, the Court grants defendants' motion for partial summary judgment on those claims. The Court now turns to the claims that are disputed.
First, defendants argue plaintiff's due process claim under the Fourteenth Amendment should be dismissed, stating correctly that claims of unlawful arrest and excessive force are more properly analyzed under the Fourth Amendment. See Andrews v. Neer, 253 F.3d 1052, 1060-61 (8th Cir 2001) (citing Graham v. Conner, 490 U.S. 386, 388 (1989)). Plaintiff does not dispute this characterization but merely states that "[r]egardless of whether unlawful arrest and excessive force claims are more properly analyzed under said Amendment," her claim in this case should also be analyzed under the Fourteenth Amendment as the District Judge for the City of West Memphis "is merely a pawn or an extension of the police department" and "refuses to rule against the police department, especially in cases where excessive force is an issue." The Court does not construe plaintiff's complaint to encompass such an allegation, however, and plaintiff's allegation is in any case wholly unsupported. Accordingly, the ...