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Brewer v. Wheelis

United States District Court, E.D. Arkansas, Jonesboro Division

July 21, 2015

JERRY TODD BREWER, Plaintiff,
v.
JEREMY WHEELIS, in his Individual Capacity, Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BRIAN S. MILLER, Chief District Judge.

This case was tried to the bench on July 13, 2015. Having listened to the testimony and reviewed the exhibits introduced into evidence, judgment is entered for defendant Jeremy Wheelis, and against plaintiff Jerry Todd Brewer.

I. FINDINGS OF FACT

Plaintiff Jerry Todd Brewer was at the home he shared with a female roommate when she and his girlfriend came to the residence drunk. Brewer was on parole and his girlfriend was on probation, so he was upset that his roommate had taken his girlfriend out and gotten drunk. Consequently, he began to argue with his roommate, who called the police.

By the time Jonesboro police officers Jeremy Wheelis and Rick Davis responded to the call, Brewer had left the residence, so Wheelis drove around the neighborhood to locate him. When Wheelis returned to the residence, Brewer was standing against the house. Wheelis called Brewer's parole officer, who informed him that, per the terms of Brewer's parole and his girlfriend's probation, they were not supposed to be together. Davis entered the house to take Brewer's girlfriend into custody, while Wheelis approached Brewer. Although Brewer did not recognize Wheelis, the officer recognized Brewer from a previous arrest. Neither man had ever had a bad encounter with, nor harbored ill-will toward, the other.

Wheelis told Brewer he was under arrest, and placed him into handcuffs. He then stood behind Brewer and removed Brewer's hat from his head. In doing so, Wheelis inadvertently pulled on some of Brewer's hair, which caused Brewer to instinctively jerk his head forward. Believing Brewer to be agitated, Wheelis pushed Brewer against a vehicle that was parked in the driveway and then attempted to turn Brewer around and take him to the ground. In doing so, Wheelis was unable to support Brewer's body weight and Brewer fell hard to the concrete "like a sack of potatoes" and injured his nose and knee. Wheelis helped Brewer into a chair, found a rag to staunch the bleeding on Brewer's nose, and called an ambulance. Brewer was transported to the hospital for treatment and then placed into custody.

Both Brewer and Wheelis were credible witnesses and neither appeared to give testimony with the intent to mislead the fact-finder. Moreover, apart from a few details, their accounts of the arrest are very similar.

II. CONCLUSIONS OF LAW

Judgment is entered for Wheelis because Brewer did not suffer a constitutional violation. Further, even if Brewer suffered a constitutional violation, judgment would be entered for Wheelis because he is immune from this lawsuit.

42 U.S.C. section 1983 is not a source of substantive rights, but is merely a vehicle to vindicate rights elsewhere conferred. See Roach v. City of Fredericktown, Mo., 882 F.2d 294, 297 (8th Cir. 1989). Negligence, even gross negligence, does not amount to a section 1983 claim. See id. Thus, the initial inquiry is whether Brewer suffered the violation of a constitutional right through Wheelis's use of force, which Brewer contends was excessive.

The standard for determining excessive force is whether the force used was objectively reasonable under the particular circumstances. See Coker v. Arkansas State Police, 734 F.3d 838, 842 (8th Cir. 2013). Reasonableness is judged from the perspective of a reasonable officer on the scene, without the benefit of hindsight. Id. During an arrest, an officer is permitted to use some degree of physical coercion or threat. Id. Additionally, a court must balance an individual's Fourth Amendment interests against the relevant governmental interests. Id. Relevant considerations may include:

[T]he severity of the crime; whether the suspect poses a threat of harm to others; whether the suspect is resisting arrest... whether the situation is tense, uncertain, and rapidly evolving, ' which would force an officer to make split-second judgments' about how much force is necessary.

Id. at 842-43. The severity of the plaintiff's injuries may also be considered, as well as whether the police used standard procedures. Mann v. Yarnell, 497 F.3d 822, 826 (8th Cir. 2007).

Brewer's excessive force claim is based on three of Wheelis's acts. In the first act, Wheelis snatched Brewer's hat from his head and accidently pulled Brewer's hair. When, as a reflex, Brewer jerked his head, Wheelis committed the second and third acts, which were pushing Brewer against a vehicle and then taking him to the ground. Wheelis contends that, at most, he may be guilty of negligence. Brewer agrees that Wheelis did not attempt to hurt him ...


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