United States District Court, W.D. Arkansas, Hot Springs Division
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
the Court are Defendants' motion for summary judgment
(Doc. 10), brief in support (Doc. 11), and statement of facts
(Doc. 12); Plaintiff's response (Doc. 15), response to
the statement of facts (Doc. 16), and brief in support (Doc.
17); and Defendants' reply (Doc. 18). The motion for
summary judgment will be granted.
complaint raises claims under 42 U.S.C. § 1983 for
violations of his Fourth, Eighth, and Fourteenth Amendment
rights. Plaintiff also asserts various state law civil rights
and tort claims. Plaintiff's federal claims against
Defendant Lewis allege an unreasonable seizure premised on
false arrest, false imprisonment, and excessive use of force.
Plaintiff's federal claims against Defendant the City of
Hot Springs allege an unconstitutional failure to train. All
claims arise out of a September 21, 2012 incident during
which Plaintiff was pepper sprayed while walking away from
officers, fled, and was later physically taken into custody.
cases following Heck v. Humphrey require the Court
to grant judgment in Defendants' favor on Plaintiff's
§ 1983 unreasonable seizure claims premised on false
arrest and false imprisonment. “Heck states
that, in order to recover damages for harm caused by actions
whose unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct
appeal.” Schaffer v. Beringer, 842 F.3d 585,
594 (8th Cir. 2016). For his September 21, 2012 conduct,
Plaintiff was convicted of disorderly conduct, fleeing
apprehension, and third degree assault. (Docs. 12-3, 12-5).
To succeed on his § 1983 unreasonable seizure claims
premised on false arrest or false imprisonment, Plaintiff
must show that his state conviction was rendered invalid.
Anderson v. Franklin Cty., Mo., 192 F.3d 1125,
1131-32 (8th Cir. 1999) (affirming dismissal of § 1983
false arrest and false imprisonment claims where state
conviction and sentence had not been rendered invalid).
does not mandate dismissal of Plaintiff's § 1983
unreasonable seizure claims premised on an excessive use of
force, however. Colbert v. City of Monticello, Ark.,
775 F.3d 1006, 1007 (8th Cir. 2014) (“A finding that
[Defendant] used excessive force would not necessarily imply
the invalidity of [Plaintiff's] convictions.”). On
a motion for summary judgment on the § 1983 unreasonable
seizure claims premised on excessive force, the Court views
the evidence in a light most favorable to Plaintiff and draws
all reasonable inferences in his favor. Malone v.
Hinman, 847 F.3d 949, 952 (8th Cir. 2017). In excessive
force claims, “[t]he reasonableness of a use of force
turns on whether the officer's actions were objectively
reasonable in light of the facts and circumstances
confronting him, without regard to his subjective intent or
motivation.” Id. at 952-53.
Officer Shane Lewis
reviewed the facts in a light most favorable to Plaintiff,
the Court is compelled to find that Defendant Lewis is
entitled to qualified immunity from suit on Plaintiff's
excessive force claims, which are premised on Defendant
Lewis's use of pepper spray against Plaintiff and
Defendant Lewis striking Plaintiff and putting him roughly
into a patrol car. “‘An official is entitled to
qualified immunity unless (1) the evidence, viewed in the
light most favorable to the plaintiff, establishes a
violation of a constitutional or statutory right, and (2) the
right was clearly established at the time of the
violation.'” Id. at 952 (quoting Loch
v. City of Litchfield, 689 F.3d 961, 965 (8th Cir.
Court has no doubt that a reasonable jury could find
Defendant Lewis's use of pepper spray was objectively
unreasonable, and therefore was a constitutional violation.
In an analogous case, the Eighth Circuit applied the
Graham factors for measuring reasonable use of
force-the severity of the crime, whether the suspect poses an
immediate threat to the safety of others, and whether the
suspect is actively resisting or evading arrest-and
determined that a jury could find an officer's use of
pepper spray was objectively unreasonable:
Here, by the undisputed facts, Robinson informed Tatum he was
a police officer, told him he was under arrest, told him to
put his hands on a clothes rack, warned him he would use
pepper spray if he did not calm down, and then pepper sprayed
him. Tatum was given an opportunity to comply. He did not,
instead arguing angrily with Robinson. It was reasonable for
Robinson to use some force. But it was not
reasonable to immediately use significant force. In addition
to the lack of justification from the three Graham
factors, other facts and circumstances indicate only limited
force was reasonable. Robinson was not alone-another security
officer was close by, as were at least two Dillard's
employees. Robinson was off-duty and in plain clothes.
It was not reasonable for Robinson to immediately use pepper
spray. Pepper spray can cause more than temporary pain.
Robinson presents no evidence he attempted to use other force
to secure compliance-no evidence he tried to grab Tatum's
hands and place them on the clothes rack, for example.
Instead, he proceeded to pepper spray Tatum 14 seconds after
he encountered him, and necessarily fewer seconds after Tatum
failed to comply with his command.
Tatum v. Robinson, 858 F.3d 544, No. 16-1908, pp.
8-9 (8th Cir. May 30, 2017) (slip copy) (emphasis in
original, citations and parentheticals omitted). On the facts
as considered on summary judgment, Plaintiff was suspected of
committing relatively minor crimes, was leaving the scene at
another officer's direction, and Defendant Lewis deployed
pepper spray against Plaintiff nearly immediately after
telling Plaintiff “you're not going anywhere”
and without having attempted to secure Plaintiff's
compliance through a less severe use of force.
a jury could find that Defendant Lewis acted objectively
unreasonably is not the end of the analysis, however.
Qualified immunity extends where the right in question was
not clearly established at the time of the incident.
Plaintiff was leaving a “heated” situation while
officers wanted to search his wife's vehicle, and was
told not to go anywhere. (Doc. 12-1, pp.
50:24-53:20). In light of the Eighth Circuit's
discussion in Tatum of the state of the law in 2014,
and because one of the Graham factors is whether the
suspect is fleeing or evading arrest, Plaintiff's right
to be free from the use of pepper spray under these facts was
not sufficiently definite in September, 2012. See
Tatum, No. 16-1908 at 9-10 (discussing state of the law
as of April 29, 2014). Defendant Lewis is therefore entitled
to qualified immunity from suit on the pepper spray claims.
Lewis is also entitled to qualified immunity on
Plaintiff's excessive force claims arising out of
Defendant Lewis's arrest of Plaintiff. After being pepper
sprayed, Plaintiff fled to the porch of his parents'
business. Defendant Lewis came through the gate, took
Plaintiff over to Defendant Lewis's patrol car, struck
Plaintiff several times (including once in the eye), and then
shoved Plaintiff into the back of the patrol car. (Doc. 12-1,
pp. 57:23-61:24). Based on his conviction for assault in the
third degree, Plaintiff also engaged in conduct that
“purposely create[d] apprehension of imminent physical
injury in another person.” Ark. Code Ann. 5-13-207(a).
Two of the Graham factors-whether Plaintiff posed an
immediate threat to the safety of officers or others, and
whether he was actively resisting-directly bear on the