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Glasper v. City of Hughes

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

August 28, 2017

CHARLIE GLASPER PLAINTIFF
v.
CITY OF HUGHES, ARKANSAS; LAWRENCE OWENS, INDIVIDUALLY and OFFICIALLY; DUSTIN MCCLUSKEY, INDIVIDUALLY and OFFICIALLY; JAMES WRIGHT, JR., INDIVIDUALLY and OFFICIALLY; JAMES WRIGHT, SR., INDIVIDUALLY and OFFICIALLY; and JOHN DOES 1-3, INDIVIDUALLY and OFFICIALLY DEFENDANTS

          OPINION AND ORDER

          Kristine G. Baker United States District Judge

         On November 22, 2014, plaintiff Charlie Glasper had an encounter with officers of the City of Hughes Police Department in Hughes, Arkansas. On March 2, 2016, Mr. Glasper filed an amended complaint pursuant to 42 U.S.C. §1983 and the Arkansas Civil Rights Act (“ACRA”), codified at Ark. Code Ann. § 16-123-101, et seq. Mr. Glasper alleges that his rights as secured by the Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States were violated. In his amended complaint, Mr. Glasper names five defendants, along with three John Doe defendants who have yet to be identified: the City of Hughes, Arkansas; Lawrence Owens, individually and in his official capacity as the Mayor of the City of Hughes;[1] Dustin McCluskey, individually and in his official capacity as the former Chief of Police for the City of Hughes; James Wright, Jr., [2] individually and in his official capacity as a police officer for the City of Hughes; and James Wright, Sr., [3] individually and in his official capacity as a police officer for the City of Hughes.

         With respect to defendant the City of Hughes, Mr. Glasper alleges that these constitutional violations resulted from a custom, practice, or policy of the City of Hughes (Dkt. No. 18). Mr. Glasper contends that Chief McCluskey failed to train or supervise Officers Wright, Sr., and Wright, Jr. Mr. Glasper also alleges constitutional claims against Officer James Wright, Jr., and Officer James Wright, Sr., individually, and pendant state law tort claims against Officer Wright, Jr. These officers were at the scene on November 22, 2014. Specifically, Mr. Glasper alleges that Officer Wright, Jr., committed an unlawful assault and battery upon him, subjected Mr. Glasper to the intentional infliction of emotional distress, committed negligence and gross negligence, engaged in false arrest and imprisonment, carried out an abuse of process, engaged in a conspiracy, committed other torts, and committed prima facie tort (Dkt. No. 18, ¶ 27).

         Before the Court are two motions for summary judgment. Defendants the City of Hughes, Arkansas, former Chief McCluskey, and former Mayor Lawrence Owens (“the City defendants”) have filed a motion for summary judgment (Dkt. No. 27). The City defendants' motion also addresses Mr. Glasper's claims against Officers Wright, Sr., and Wright, Jr., in their official capacity (Id.). Defendants Officers Wright, Sr., and Wright, Jr., have filed a motion for summary judgment requesting judgment in their favor on Mr. Glasper's claims against them in their individual capacity (Dkt. No. 30). Mr. Glasper has responded to both motions (Dkt. Nos. 35; 37), and defendants have replied to Mr. Glasper's responses (Dkt. Nos. 41; 42).

         In his responses to defendants' motions, Mr. Glasper concedes that defendants are entitled to summary judgment on his Fifth Amendment and Eighth Amendment claims “for the reasons set forth in the brief of the City defendants. . . .” (Dkt. No. 36, at 2; Dkt. No. 37, at 1). Therefore, summary judgment is granted in favor of all defendants, including all individual defendants sued in their individual and official capacities, on Mr. Glasper's Fifth Amendment and Eighth Amendment claims. The Court will limit its analysis to the claims to which Mr. Glasper responds, not those he concedes.

         For the following reasons, the Court grants in part and denies in part defendants' motions for summary judgment (Dkt. Nos. 27; 30).

         I. Factual Background

         The following facts are taken from the defendants' joint statement of undisputed facts unless otherwise indicated (Dkt. No. 28). Separate defendant Mr. Owens served as Mayor of Hughes, Arkansas, from January 1, 2011, until he left office on December 31, 2014. On October 30, 2013, separate defendant former Chief McCluskey was offered the position of Chief of Police by the City of Hughes, and he accepted the position on November 3, 2013.

         Separate defendant Wright, Sr., attended the Arkansas Law Enforcement Training Academy (“ALETA”) from January 5, 2014, to March 28, 2014, and while there, successfully completed the Basic Police Training Course consisting of 480 hours of law enforcement training (Dkt. No. 28, Ex. 18). Officer Wright, Sr., was awarded the technical certificate in Law Enforcement from Southern Arkansas University Tech on March 28, 2014 (Id., Ex. 19). While at ALETA, Officer Wright Sr. received OC Spray (Oleoresin Capsicum Spray, also known as “pepper-spray”) training, including the appropriate use of OC spray according to the Federal Law Enforcement Training Center Use of Force Model.

         On April 22, 2014, separate defendant Officer Wright, Jr., was awarded a certificate of completion for the Part-Time II Course 2013-2522 by the Forrest City Police Department. The part-time II class was a general overlook of law enforcement that offered a certification and went over several points of law enforcement, including but not limited to traffic stops, how to approach a car, how to deal with certain people, hostile environments, use of force, weapons, how to handle a weapon, red flags, when people give you drugs, narcotics, and places where people can hide drugs in the car. Officer Wright, Jr., was also awarded a certificate of completion for successfully completing the “required course of study approved by C.L.E.S.T. for the State of Arkansas” with respect to the use of OC Spray and Use of Force (Id., Ex. 16).

         Officer Wright, Jr., was hired as a part-time patrolman for the City of Hughes on May 12, 2014, and assigned badge number 406. Former Chief McCluskey was the Chief of Police when Officer Wright, Jr., was hired. Prior to hiring Officer Wright, Jr., former Chief McCluskey contacted Officer Wright, Jr.'s previous employers, personal references, and business references listed on his application. Officer Wright, Jr., was offered in-house training while he was at the Hughes Police Department, including going through a Field Training Officer (“FTO”) program with Lieutenant David Boykin, with whom Officer Wright, Jr., rode for about a week, and then Officer Wright, Jr., moved on to train with another officer, and this occurred two or three times.

         When Officer Wright, Jr., first started with the Hughes Police Department, he could not ride alone by himself; he had to be trained as far as getting familiarized with the City, the areas and streets, the procedures, getting comfortable with telling people what to do, and pulling people over. After completing the FTO ride-along program, Officer Wright, Jr., was not allowed to be on a shift by himself until former Chief McCluskey spoke to Lieutenant Boykin and the other officers who trained him, and they were all in agreement that he was ready to be on a shift or to cover a shift by himself.

         Former Chief McCluskey resigned as the Hughes Chief of Police, effective May 29, 2014. On June 2, 2014, Kristy Green was offered the position of interim Police Chief for the City of Hughes, and she accepted. On August 27, 2014, Officer Wright, Sr., applied for employment with the Hughes Police Department and began working part-time for the Hughes Police Department shortly thereafter. The Chief of Police at the time Officer Wright, Sr., was hired was Chief Green.

         At the time of his application, Officer Wright, Sr., was working full-time for the Forrest City Police Department (“FCPD”) and had worked for the FCPD since August 2013. At the time Officer Wright, Sr., was hired, Interim Assistant Chief Richard Haggans told Officer Wright, Sr., that the policies that he was following at Forrest City applied the same in Hughes.

         On September 15, 2014, a Hughes Police Staff Meeting was conducted by Chief Green and the following topics, among others, were discussed: Chief's Green's date of leave, schedules, clocking in and out, working assigned shifts, making arrests, courtesy and respect, and interim chief/chain of command. Also at the September 15, 2014, meeting, Chief Green informed the officers present that she would be leaving for the Police Academy on Sunday, September 21, 2014. At the September meeting, Chief Green communicated to the officers present that the schedule would remain the same until December 12, 2014, that no changes would be made unless authorized by the Interim Chief, and that any officer clocking in and out without approval from a supervisor was to be disciplined and potentially subject to termination.

         Chief Green also informed the officers that, if an officer should make an arrest, before the subject was placed in the unit, he or she should be read their Miranda Rights, handcuffed, searched, and placed in the vehicle with the seat belt in use. It was the policy of the Hughes Police Department to seat belt people who were being transported. Officer Wright, Sr., and Officer Wright, Jr., were both present at the September 15, 2014, meeting. On October 26, 2014, Officer Wright, Jr., signed the Law Enforcement Code of Ethics, promising in part to “respect the Constitutional rights of all men to liberty, equality and justice.” (Id., Ex. 10).

         On November 12, 2014, Ritchie Haggans, acting as Assistant Chief, notated that he had conducted a thorough background investigation on Officer Wright, Jr., and Officer Wright, Sr., and found no disqualifiers for employment for either. Mr. Haggans served as Interim Chief of Police for the Hughes Police Department from approximately September 21, 2014, until December 17, 2014, while Chief Green was away at the Police Academy.

         Mr. Glasper was in Hughes, Arkansas, on November 22, 2014, for his nephew's funeral and the repast at his sister Versie Pollard's house following the funeral. The funeral started at noon at the church, finished around 2:00 p.m., and the deceased was buried, after which people went back to Hughes and gathered at Ms. Pollard's house on College Street around 4:00 p.m. There were approximately 100 to 150 people at Ms. Pollard's three-bedroom house after the funeral, and most everyone was standing around. Everyone had been drinking alcohol and/or beer. Mr. Glasper drank what he referred to as “a couple of beers around 5:00 that evening and then drank some more, all together probably a 6 pack.” (Dkt. No. 18, Ex. 1, Glasper Depo., 30:16-24, 31:1-14).

         A physical fight broke out at Ms. Pollard's home between Mr. Glasper's niece, Rhonda Glasper, his nephew, Brian Glasper, his daughter, Angela Ross, and a “little cousin, ” whose name Mr. Glasper states he cannot remember. The police were called. On November 22, 2014, around 7:00 p.m., Officer Wright, Jr., was dispatched several times to College Street in reference to a female causing a disturbance. When Officer Wright, Jr., arrived the first time, the female who had been causing problems, the cousin, had already left, so Officer Wright, Jr., left the scene. The police instructed Mr. Glasper's brother-in-law that, if the cousin came back, he should call the police again and that they would return.

         On November 22, 2014, Officer Wright, Sr., arrived at work and was made aware that Officer Wright, Jr., had gotten a call to a scene prior to Officer Wright, Sr.'s arrival, but Officer Wright, Sr., was also made aware that the person suspected of causing a disturbance had left and that Officer Wright, Jr., had returned to the station.

         At approximately 7:08 p.m., someone called 911 a second time complaining about the female returning and causing problems. Officer Wright, Jr., responded to the College Street location a second time. Officer Wright, Jr., arrived on the scene and observed the female subject being disorderly and disruptive. Officer Wright, Jr., believed that the family was having a gathering over a death in the family and because of that did not want to arrest anyone. He told the female subject to get in the car or she was going to go to jail. The car was parked on the side of the street across from Ms. Pollard's home.

         Officer Wright, Sr., arrived on scene at the second call to the home, after hearing on the radio that Officer Wright, Jr., was going to need backup. When Officer Wright, Sr., arrived on the scene, he saw Officer Wright, Jr., telling a female to leave the area. The cousin opened the door to get out, and Mr. Glasper, who had been standing in the road, walked to the door of the car to tell her to get back in the car or she was going to go to jail.

         Defendants contend that Officer Wright, Sr., noticed that a black male, Mr. Glasper, was leaning over Officer Wright, Jr.'s shoulder and was saying something. Officer Wright, Jr., turned around on his right side and told the man something, and then Officer Wright, Jr., turned back to talk to the female. Officer Wright, Jr., commanded Mr. Glasper to remove himself from the scene because, at that time, he was obstructing government operations. Defendants contend that Officer Wright, Jr., told Mr. Glasper, “Sir, if you do not get back, I am going to pepper spray you.” (Dkt. No. 38, Ex. 4, 39:6-8). Mr. Glasper disputes these facts (Dkt. No. 39, at 1).

         Mr. Glasper, in his deposition testimony, maintains that all were standing on the road when Officer Wright, Jr., told Mr. Glasper's cousin to get in the car and leave or go to jail. Mr. Glasper contends that Officer Wright, Jr., then walked away, and his cousin started to get out of the car. Mr. Glasper testified that he approached the car, telling his cousin to get back in the car or go to jail. Mr. Glasper contends that, then, Officer Wright, Jr., told Mr. Glasper that if he did not get back he would be pepper sprayed. Mr. Glasper maintains that he threw up both of his hands and backed up to the end of the car, but he testified at his deposition that Officer Wright, Jr., ran into him from the front of the car, shoving his chest, and pushing the pepper spray (Dkt. No. 38, at 16-17).

         All parties agree that Officer Wright, Jr., then pepper sprayed Mr. Glasper. Officer Wright, Sr., did not see Officer Wright, Jr., pepper spray Mr. Glasper. Officer Wright Jr. got pepper spray in his eyes when he sprayed Mr. Glasper.

         Defendants state that Officer Wright, Jr., then put Mr. Glasper on the ground and handcuffed him. Mr. Glasper disputes that he was “put” on the ground (Dkt. No. 39, at 1). Mr. Glasper testified at his deposition that Officer Wright, Jr., grabbed him by the arm, swung him, and threw him on the ground on a pile of bricks (Dkt. No. 39, at 22-23). He maintains that Officer Wright, Jr., put his knee in his back and put the handcuffs on him (Dkt. No. 23-24).

         All parties agree that, after Mr. Glasper was handcuffed, he was placed in the back seat of the patrol unit. Mr. Glasper was arrested for obstructing governmental operations and disorderly conduct. During the hand-cuffing, family members and other people from the crowd of 100 to 150 people were gathering around Officer Wright, Jr., and Mr. Glasper and yelling. Officer Wright, Jr., did not restrain Mr. Glasper with a seatbelt in the patrol car. Due to the hostile crowd, Officer Wright, Jr., contends that he decided to meet the other officer on duty, Officer Wright, Sr., at the station.

         Defendants assert that, as Officer Wright, Jr., began to drive off with Mr. Glasper in the patrol car, people were touching the patrol car and pulling on the door of the car. Officer Wright, Jr.'s car was shaking, and there was a large crowd around the patrol car using profanity and saying “he didn't do anything. . .let him out. . .let him out.” Mr. Glasper disputes that anyone in the crowd was pulling on the car door (Id.). He claims, instead, that he heard the crowd talking and telling Officer Wright, Jr., to close the door when Officer Wright, Jr., threw him into the car (Dkt. No. 39, at 25). Further, he testified at his deposition that Officer Wright, Jr., said, “F**king forget the door.” (Dkt. No. 39, at 26).

         Defendants maintain that Officer Wright, Jr., pulled off at normal speed, made a left turn, drove about a block, made a second left turn, looked back to check on Mr. Glasper, and noticed that Mr. Glasper was not in the car because the door had come open and Mr. Glasper had slid out of the car. Mr. Glasper disputes defendants' assertion that he “slid” out of the car, but he provides no elaboration in his response to the defendants' statement of undisputed facts (Id.). Mr. Glasper testified at his deposition the only thing he remembers is, when Officer Wright, Jr., left him and turned the car to the left or turned the corner, that is when he slid out of the car. He maintains his hands were handcuffed behind his back, that he was lying on the seat, and that he could not sit up or brace himself (Dkt. No. 39, at 26).

         All parties agree that Officer Wright, Jr., stopped the car, located Mr. Glasper in the grass, ran to him, removed his handcuffs, made sure he was not hurt, and then called for backup, extra units, and emergency medical help. Officer Wright, Jr., removed the handcuffs from Mr. Glasper in case of possible injuries. At the time Officer Wright, Jr., arrived to Mr. Glasper, Officer Wright, Sr., came to his location. Officer Wright, Sr., did not see Mr. Glasper ejected from the vehicle. A large hostile crowd gathered at the location. At approximately 7:23 p.m., someone called 911 and stated that one of the Hughes cops had run over her uncle and that he was lying in the road. Mr. Glasper's family believed that he had been run over, but he had not been run over.

         An ambulance took Mr. Glasper to the Hughes High School football field. On November 22, 2014, three troopers with the Arkansas State Police responded to the Hughes High School in reference to a possible riot associated with Mr. Glasper's arrest. The helicopter took Mr. Glasper from the football field to the Medical Center (“the Med”). Mr. Glasper was at the Med for approximately 12 hours.

         On November 24, 2014, Assistant Chief Haggans notified Former Mayor Owens that “due to the incident on 11/22/2014 at approximately 7:30 p.m. Officer James J. Wright Jr. and Officer James L. Wright Sr. have been place[d] on administrative leave without pay until investigation is closed.” On November 25, 2014, both Officer Wright, Jr., and Officer Wright, Sr., were placed on administrative leave without pay from the Hughes Police Department, effective November 22, 2014, until further notice. On December 27, 2014, Interim Chief Green wrote a memo to Officer Wright, Sr., communicating to him that his employment with the City of Hughes was being terminated, in part, because he had been clocked in and working on November 22, 2014, without having been previously authorized to do so by the City. On January 2, 2015, Interim Chief Green informed Officer Wright, Jr., and Officer Wright, Sr., that their respective employment with the City of Hughes had been terminated effective December 31, 2014.

         Former Mayor Owens died on or about February 16, 2016. Mr. Glasper sued the late Mayor Owens because he knew Mayor Owens prior to the incident, and Mayor Owens did not call him or check up on him after the incident.

         Mr. Glasper sued the City of Hughes because that is the entity that employed Officer Wright, Jr., and Officer Wright, Sr., when he was arrested on November 22, 2014. Prior to November 22, 2014, Mr. Glasper had never met Officer Wright, Jr., or Officer Wright, Sr., and Mr. Glasper does not know anything about them. Prior to November 22, 2014, Mr. Glasper had not had any interactions with law enforcement officers for the City of Hughes. Mr. Glasper has never heard anyone complain about Hughes Police Officers. Mr. Glasper had not seen either Officer Wright, Jr., or Officer Wright, Sr., since November 22, 2014, until their depositions in this matter.

         Mr. Glasper has no first-hand knowledge about how the City of Hughes hires its police officers. Mr. Glasper has no knowledge about how the City of Hughes supervises its police officers. Mr. Glasper has no knowledge about how the City of Hughes trains its police officers. Mr. Glasper has no knowledge about the policies and procedures of the City of Hughes.

         Mr. Glasper sued former Chief McCluskey because Mr. Glasper believed that former Chief McCluskey called to speak with him on or about November 24, 2014, but that former Chief McCluskey spoke to Mrs. Glasper instead. Mr. Glasper believed that Chief McCluskey told Mrs. Glasper that Mr. Glasper had been arrested but not read his rights. He asked her what happened, told her that someone said Mr. Glasper was not injured, and told her that he asked the hospital about Mr. Glasper's records, to which Mrs. Glasper responded that he could watch Channel 13 local news and speak to their attorney. The parties agree that Mr. Glasper is not actually certain who called him, other than that it was a man and that the man said he was from Hughes, Arkansas.

         Former Chief McCluskey was not Chief of Police at the time of the incident. Former Chief McCluskey was not the Chief of Police when Officer Wright, Sr., was employed by the Hughes Police Department. Former Chief McCluskey has no personal knowledge regarding the incident involving Mr. Glasper and has never met Mr. Glasper. Former Chief McCluskey did not make a telephone call to Mrs. Glasper following the incident.

         Neither the City of Hughes nor the Hughes Police Department have any written or unwritten policies, procedures, or customs condoning, promoting, or causing the violation of the rights of those who come into contact with Hughes Police Officers. Law enforcement officers for the City of Hughes, Arkansas, did not and do not have the authority to make final policies for the City of Hughes, Arkansas. When asked in written discovery to identify specifically how the City of Hughes violated his rights, Mr. Glasper simply reiterated his factual assertions regarding the events of November 22, 2014.

         Defendants contend that the alleged injury to Mr. Glasper's shoulder occurred when he was somehow displaced from the patrol car and the injury did not occur when he was taken to the ground by Officer Wright, Jr. Mr. Glasper disputes this. Mr. Glasper testified that the left side of his face was sore, that he had a scar on his face, that he had a scar on his arm, and that he had a scar on the top of his head (Dkt. No. 39, at 31).

         Defendants further contend that, on November 22, 2014, Officer Wright, Jr., arrested Mr. Glasper and placed him in the back of his patrol unit. When Officer Wright. Jr., left the scene of the arrest, he believed that the doors to the back of his patrol car were securely shut. Officer Wright, Jr., did not leave the back door to the patrol car ajar. There was a large, hostile crowd around Officer Wright, Jr., when he arrested Mr. Glasper. It is possible that a member of the crowd opened the door to the back of Officer Wright, Jr.'s patrol car after Officer Wright, Jr., placed Mr. Glasper in the back of the car. Officer Wright, Jr., did not intend to harm Mr. Glasper as Officer Wright, Jr., drove the patrol car away from the scene of his arrest. Mr. Glasper disputes these facts “to the extent the declaration of James Wright Jr. is self-serving and disputed Mr. Glasper's deposition testimony.” (Dkt. No. 39, at 1-2).

         Finally, it is undisputed that Mr. Glasper could not see when he was in the back of the patrol car due to pepper spray being in his eyes, and, therefore, he testified that he does not know if the crowd gathered around the patrol car and does not know if the door to the back of the patrol car was open or shut when Officer Wright, Jr., left the scene.

         II. Standard of Review

         Summary judgment is proper when there is no genuine issue as to any material fact and when the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Holloway v. Lockhart, 813 F.2d 874, 878 (8th Cir. 1987). A factual dispute is genuine if the evidence could cause a reasonable jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008). “The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under prevailing law.” Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989). However, parties opposing a summary judgment motion may not rest merely upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party to establish that there is a genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 2008). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         III. Analysis

         Mr. Glasper alleges that his rights as secured by the Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States were violated, and he brings suit pursuant to 42 U.S.C. § 1983, as well as the ACRA. Section 1983 creates a cause of action against a person acting “under color of any statute . . . of any State” who deprives another of a federally protected right. Carlson v. Roetzel & Andress, 552 F.3d 648, 650 (8th Cir. 2008) (quoting 42 U.S.C. § 1983). To be liable under § 1983, the claimed deprivation must result from the exercise of a right or privilege having its source in state authority, and the party charged with the deprivation must be one appropriately characterized as a state actor. Id. (quotations omitted).

         In addition, “[t]he Arkansas Civil Rights Act prohibits persons, acting under color of state law, from depriving any person of ‘any rights, privileges, or immunities secured by the Arkansas Constitution.'” Glenn v. Bachand, No. 2:05-cv-00132-WRW, 2007 WL 865488, at *2 (E.D. Ark. March 20, 2007) (citing West v. Atkins, 487 U.S. 42 (1988). The “ACRA expressly requires that courts look to federal civil rights law for guidance: ‘When construing this section, a court may look for guidance to state and federal decisions interpreting the federal Civil Rights Act of 1871.'” Glenn, 2007 WL 865488, at *2. The City defendants contend that, “[m]oreover, the Arkansas Supreme Court has stated that Article 2, § 15 of the Arkansas Constitution is “virtually identical to the Fourth Amendment” and will be interpreted “in the same manner as the United States Supreme Court interprets the Fourth Amendment.” Rainey v. Hartness, 5 S.W.3d 410, 415 (Ark. 1999). Thus, the City defendants assert that the analysis of Mr. Glasper's federal constitutional claims under § 1983 is equally applicable to Mr. Glasper's state constitutional claims under the ACRA. The Court agrees.

         Mr. Glasper concedes his claims under the Fifth and Eighth Amendments; thus, the Court will analyze Mr. Glasper's federal constitutional claims ...


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