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Frazier v. City of Pine Bluff

United States District Court, E.D. Arkansas, Pine Bluff Division

July 25, 2017

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


         The 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 prejudice.

         I. BACKGROUND

         Plaintiff 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).

         A. September 12, 2012 - Recording Officers Apprehending Suspect

          In 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.

         B. March 22, 2013 - City Council Meeting

         Frazier 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.

         Soon 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.

         Although 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.

         C. July 29, 2015 - Frazier's Arrest

         On July 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.

         Approximately 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.

         In 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. No. 60-16.

         Sweeney 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).

         Based 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.

         An 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 0:10-0:16, 0:18-0:32.

         Within 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.

         While 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.

         In a 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.

         At the 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.

         D. Claims

         As best 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.


         Summary 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).


         Frazier 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.

         A. 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 Frazier ...

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