United States District Court, E.D. Arkansas, Helena Division
OPINION AND ORDER
Kristine G. Baker United States District Judge
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; Dustin McCluskey,
individually and in his official capacity as the former Chief
of Police for the City of Hughes; James Wright, Jr.,
individually and in his official capacity as a police officer
for the City of Hughes; and James Wright, Sr.,  individually and
in his official capacity as a police officer for the City of
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).
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).
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.
following reasons, the Court grants in part and denies in
part defendants' motions for summary judgment (Dkt. Nos.
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.
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.
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).
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.
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.
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.
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.
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.
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).
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
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,
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.
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.
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.
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.
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).
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).
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.
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).
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.
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).
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,
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
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.
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.
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.
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.
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
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.
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.
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.
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
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).
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.
Standard of Review
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).
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).
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.
Glasper concedes his claims under the Fifth and Eighth
Amendments; thus, the Court will analyze Mr. Glasper's
federal constitutional claims ...