United States District Court, E.D. Arkansas, Pine Bluff Division
DONALD R. FRAZIER, JR., a.k.a. Donald Muhammad PLAINTIFF
THE CITY OF PINE BLUFF, ARKANSAS; JEFF HUBANKS, Police Chief, in his official and individual capacities; MIKE SWEENEY, in his official and individual capacities; and MATTHEW HENRY DEFENDANTS
motion for summary judgment filed by defendants City of Pine
Bluff, Jeff Hubanks, and Mike Sweeney [Doc. No. 60] is
granted with respect to the federal claims. The federal
claims against Matthew Henry are dismissed sua
sponte. All state claims are dismissed without
Donald Frazier, a black male, sued defendants for
constitutional and state law violations stemming from three
incidents. The City, Hubanks, and Sweeney moved for summary
judgment. Doc. No. 60. Although Henry was served [Doc. No.
9], he has not answered or participated. Frazier moved for
default judgment, but his motions were denied and he has not
addressed his complaint's deficiencies. See Doc.
No. 37 (noting deficiencies).
September 12, 2012 - Recording Officers Apprehending
September 2012, Frazier recorded police officers as they
attempted to apprehend a suspect. Pl.'s Am. Statement
Facts (“Pl.'s Facts”) ¶ 3, Doc. No. 75.
Sweeney saw Frazier and grabbed Frazier by the arm, twisted
his arm, and spoke to him “like [he] was trash.”
Frazier Dep. 26:19-26:22, Doc. No. 60-2. Frazier filed a
complaint with the Pine Bluff Police Department's Office
of Internal Affairs. Doc. No. 76-3 at 2. Hubanks, the chief
of police, notified Frazier that Sweeney was exonerated. Doc.
No. 76-3 at 1.
March 22, 2013 - City Council Meeting
alleges Sweeney attempted to remove him from a public city
council meeting because of Frazier's desire to record the
meeting. Am. Compl. ¶ 37, Doc. No. 12. Frazier recorded
the meeting and Sweeney worked security. Pl.'s Facts
¶¶ 8-9. Edna Butler, an off-duty police officer,
observed Frazier approach a city council member and the city
attorney during the meeting. See Doc. No. 60-5
(incident report); Pl.'s Facts ¶ 11 (Butler
witnessed events). Sweeney approached Frazier and motioned
toward seats for citizens. Frazier responded “You are
not making anybody else move, I'm part of the
media.” Doc. No. 60-5 at 2.
thereafter, another black man went to the same location where
Frazier had been, and Sweeney approached that individual.
That individual left the area after Sweeney approached him,
and Frazier than went to the same position again. Another
person attending the meeting blocked Frazier and blocked his
camera lens, and the pair “became somewhat physical
with each other.” Id.
Frazier alleged in the compliant that the incident took place
on July 21, 2014, the parties agree the incident occurred on
March 22, 2013. Pl.'s Facts ¶ 7.
July 29, 2015 - Frazier's Arrest
29, 2015, Sweeney arrested Frazier for felony criminal
mischief, which Frazier alleges was unlawful. The arrest
stems from an incident at a rental apartment building owned
by Henry, who, from time to time, asked Frazier to perform
maintenance. Doc. No. 60-18 at 3, 4, 17. Henry told police
that, on the day in question, he asked Frazier to serve an
eviction notice on a tenant and to change the locks after the
tenant vacated. Id. at 5-6. According to Xavier
Holman, who lived in the property, Frazier came to his
apartment to change the locks while he and his family were
still inside, and on one occasion, attempted to kick in the
door. Doc. No. 60-12 at 3, 5.
two weeks prior to the arrest, on July 15, 2015, Frazier and
Jeremiah Johnson went to the property to switch out breakers.
Frazier Dep. 85:22-85:25. Holman states that his power went
out and when he looked out the window, he saw two black males
leaving. Doc. No. 60-11 (Holman's victim statement).
Frazier does not deny that he was at the breaker box, but
denies turning off the power. Frazier, however, states that
after removing the breakers, he left to obtain replacements.
When Frazier and Johnson returned, Holman approached them
with a gun and asked them to leave. Doc. No. 60-11; Frazier
Aff. ¶ 4, Doc. No. 73 at 8-9. Frazier, who feared for
his life, left the property and contacted law enforcement.
response to Frazier's call, Sweeney and detective Billy
Robertson investigated a possible assault in which Frazier
and Johnson were victims. Pl.'s Facts ¶ 13. Frazier
provided a written statement in which he described himself as
the “manager” of the apartment. Doc. No. 60-8.
Sweeney and Robinson interviewed others, including Holman who
said Frazier and Johnson flipped over a metal shed and
destroyed it as they were leaving. Sweeney Dep. 62:15-62:19;
see also Doc. No. 60-14 (witness statement saying
witness, a juvenile, saw Frazier, also known as “Dray,
” flip shed). Frazier does not dispute Holman provided
this information, though he objects to the police relying on
it because it was “derived from illegal investigation
tactics and this is a credibility issue which must be decided
by a jury.” Pl.'s Facts ¶ 20; see also
Id. ¶ 20 (commenting Holman never said this to
Sweeney because “[t]hese are words put into
Holman's mouth by Sweeney who was only leading Holman in
what to say”). Photographs confirm wires were pulled
from the breaker box and there was damage to the shed. Doc.
had also interviewed Henry, who denied Frazier was the
property manager. Doc. No. 60-18 at 3 (interview on August 4,
2015, recapping Henry's prior statements); see also
Id. at 16 (denying the written statement attesting to
the opposite). Henry stated that Frazier does, however,
perform maintenance services from time to time, though Henry
denies Frazier was ever in charge of maintenance or was the
one who exclusively performed maintenance at the property.
Id. at 4, 17. Notably, Henry did not explicitly tell
Sweeney that Frazier should not work on the breakers or
provide any indication that the damage to the shed was
authorized or should not be pursued. See, e.g., Id.
at 8 (saying he would like to pursue legal action in original
statement to Sweeney).
on this information, Sweeney drafted a probable cause
affidavit and sent it in to have charges brought against
Frazier for criminal mischief. Doc. No. 60-6; Sweeney Aff.
¶ 8, Doc. No. 60-1; Pl.'s Facts ¶ 40. On July
22, 2015, Sweeney was advised that the prosecutor's
office would be filing charges and that a warrant would
issue. Sweeney Aff ¶ 9; Pl.'s Facts ¶ 41. At
8:15 a.m. on July 29, 2015, the prosecutor's office
advised Sweeney that a warrant was on the judge's desk to
be signed. Pl.'s Facts ¶ 42. At 9:50 a.m. that day,
Frazier saw Sweeney driving and flagged Sweeney down to
obtain an update on the assault case in which Frazier was the
victim. Pl.'s Facts ¶ 43.
audio recording of the events that followed provides an
account of what occurred. Doc. No. 63. Sweeney informed
Frazier that charges were sent in and there was a warrant for
Frazier's arrest. Although Frazier denies resisting
arrest, the audio recording is clear that Sweeney asked
Frazier to place his hands behind his back multiple times, to
which Frazier responded with requests to make a phone call
first and to place his phone in his pocket. Id. at
approximately twenty seconds of Sweeney informing Frazier of
a warrant, Frazier was in handcuffs. Frazier was placed in
Sweeney's vehicle. Sweeney Aff. ¶ 14. Sweeney then
learned, however, that a warrant had not actually been
signed, but was signed at approximately 10:00 a.m. Sweeney
Aff. ¶ 19. Frazier disputes that Sweeney learned of a
warrant after his arrest because an arrest report has
“Felony P/C” crossed off in the facts of the
arrest, but Frazier provides no explanation for this mark and
no evidence to dispute Sweeney's statement. See
Doc. No. 73 at 18. Regardless, a bench warrant was signed on
July 29, 2015 (no time indicated). Doc. No. 60-23.
Frazier was in Sweeney's vehicle, Frazier complained that
the handcuffs were too tight and asked that they be loosened.
Pl.'s Facts ¶ 53. Robertson noticed Frazier's
right wrist was twisted where the handcuffs had become tight.
Id. ¶ 54. Robertson loosened the handcuffs,
straightened Frazier's arm, and tightened the handcuffs
again. Id. ¶ 55. Although Frazier disputes
defendants' statement of facts that he did not make other
complaints about tight handcuffs after Robertson loosened
them, Frazier cited to his own affidavit as support in which
there contains no evidence that he made further complaints.
statement provided after Frazier's arrest, Henry shared
how multiple individuals reached out to him to provide a
statement to the prosecutor's office to have the charges
dismissed. See, e.g., Doc. No. 60-18 at 22
(approached with multiple statements). Ultimately, this led
to phone calls to his home, a personal visit to his home,
calls to his office from Frazier's wife and Thelma Walker
(also referred to as “Alderman Walker”), and a
visit to his office by Frazier's wife, Walker, and
“Muhammed”. Id. at 12-13. Muhammed is
assumed to be another individual because Henry referred to
Frazier as “Donald” during his statement, even
though Frazier also refers to himself as “Donald Ray
Frazier AKA Donald [M]uhammad.” See, e.g.,
Doc. No. 67 at 5.
office, Muhammed typed up a statement on Henry's office
computer. That statement, which Frazier provided as evidence
to support his opposition to defendants' motion, said
that Frazier was managing rental property, was in charge of
maintenance, and “[w]ith respect to the issue
surrounding Mr. Frazier's arrest, [Henry] authorized
[Frazier] to change the locks on the property located on 1212
W. 11th Apt. B.” Doc. No. 73 at 19. Further, the
statement reads that Henry has “no reason to believe
[Frazier] would willfully damage anything.”
Id. Even though Henry did not “digest”
the document before signing and disagreed with some of the
information contained in it, he signed it to get people
“out of [his] hair.” Doc. No. 60-18 at 15-16, 19.
one can tell, Whitson v. Stone County Jail, 602 F.3d
920, 922 n.1 (8th Cir. 2010) (citation omitted) (“[A]
pro se complaint must be liberally construed, and pro se
litigants are held to a lesser pleading standard than other
parties.”), Frazier filed suit against defendants
alleging multiple state and federal claims. Frazier alleges
the City, Hubanks, and Sweeney violated Frazier's First,
Fourth, Fifth, Eighth, and Fourteenth Amendment rights; 42
U.S.C. § 1981; and Arkansas state law violations for
outrage, “owners and occupiers, ” negligence,
imputed negligence, defamation, “duty of care, ”
breach of confidence, abuse of process, fraud, conspiracy,
invitee, violation of the Rico Act, assault, and battery.
Similarly, Frazier sued Henry for many of the same
violations, as well as also committing the breach of
fiduciary duties and contract.
judgment is appropriate when there is no genuine dispute as
to any material fact and the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-50 (1986). Once the movant demonstrates there is no
genuine dispute of material fact, the non-moving party must
produce admissible evidence demonstrating a genuine factual
dispute that must be resolved at trial. Holden v.
Hirner, 663 F.3d 336, 340 (8th Cir. 2011). Evidence is
not weighed at the summary judgment stage, Jenkins v.
Winter, 540 F.3d 742, 750 (8th Cir. 2008), and all
reasonable inferences must be drawn in a light most favorable
to the non-moving party, Holland v. Sam's Club,
487 F.3d 641, 643 (8th Cir. 2007).
raises multiple federal and state law claims against Sweeney,
Hubanks, the City of Pine Bluff, and Henry. These claims stem
from three events: (1) Frazier videotaping officers
apprehending a suspect; (2) Sweeney attempting to remove
Frazier from a city council meeting; and (3) Frazier's
arrest for criminal mischief. As described below, all federal
claims against defendants are dismissed with prejudice, and
the remaining state law claims are dismissed without
prejudice for lack of jurisdiction.
Official Capacity Claims Against Hubanks and Sweeney
Frazier sued police officers Hubanks and Sweeney in their
individual and official capacities. It is well settled that
official capacity claims against municipal officials are
treated as claims against the municipality itself.
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985);
Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257
(8th Cir. 2010); Artis v. Francis Howell N. Band Booster
Ass'n, 161 F.3d 1178, 1182 (8th Cir. 1982). Since