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Horton v. Pennington

United States District Court, W.D. Arkansas, Fayetteville Division

February 22, 2018




         Plaintiff, Richard P. Horton, filed this action pursuant to 42 U.S.C. §1983. He proceeds pro se and in forma pauperis. Plaintiff is currently incarcerated in the East Arkansas Regional Unit of the Arkansas Department of Correction. The subject of this lawsuit is a traffic stop that occurred in Rogers, Arkansas.

         The case is before the Court on the Motion to Dismiss (ECF No. 22) filed by Separate Defendants K-9 Officer Pennington, Sergeant Musteen, Detective Needham, Detective Thompson and Officer Ochoa. Plaintiff filed a Response (ECF No. 24). Defendants filed a Reply (ECF No. 28) and Plaintiff filed a Reply (ECF No. 44). The Motion (ECF No. 22) is ready for decision.

         I. BACKGROUND

         According to the allegations of the complaint (ECF No. 1), on September 23, 2016, Plaintiff was pulled over by K-9 Officer Pennington for an expired license plate. Officer Pennington called for backup. Sergeant Musteen, Detective Needham, Detective Thompson, and Officer Ochoa responded. All of these Defendants are employed by the Rogers Police Department (“RPD”).

         Plaintiff alleges he told the officers that they did not have probable cause to suspect him of having possession of any contraband. Plaintiff states the officers intimidated him and forced their will on him to allow the dog sniff of his vehicle. Plaintiff alleges that when the dog did not alert, on the dog's second pass around the car, Officer Pennington “squatted down at the front bumper of the car tapping the underside signaling for the dog to sit.” Officer Pennington then claimed the dog's act of sitting was an alert.

         According to Plaintiff, it has “been a common practice with the local law enforcement to call false alerts to justify their practice of illegal searches and seizures.” Plaintiff indicates that he had three false alerts in a four month period-two involving the RPD.

         As Officer Pennington was searching the vehicle, Plaintiff alleges Sergeant Musteen yelled to Officer Pennington that Plaintiff had put something in his mouth. Sergeant Musteen “shoved” the Plaintiff against the police vehicle while pinning his arms behind him. Plaintiff alleges Officer Pennington ran over and grabbed Plaintiff's lower jaw and inserted his fingers into Plaintiff's mouth. While doing so, Plaintiff alleges Officer Pennington dug his fingernails into his lower lip and gums “ripping the [Plaintiff's] mouth open and causing him to bleed from the mouth.” Plaintiff states he was not resisting arrest and presented no threat to the officers' safety. Plaintiff alleges the actions of Officer Pennington and Sergeant Musteen were “excessive and uncalled for in violation of [Plaintiff's] Eighth Amendment rights.” According to Plaintiff, Detectives Needham and Thompson were “just conveniently” in the parking lot across the street from where this incident took place. He alleges they informed Officer Pennington that they had “information that the [Plaintiff] was allegedly in possession of a firearm and selling drugs.” Plaintiff asserts the traffic stop was “orchestrated” by the Defendants acting in concert and under color of state law to violate his Fourth, Fifth, Eighth, and Fourteenth Amendments.

         When the Rogers Fire Department Paramedics, including Dustin Smith, [1] arrived on the scene, Plaintiff alleges they noticed blood coming from Plaintiff's mouth. According to Plaintiff, Officer Pennington stated “yeah I did that” referring to the blood.

         Plaintiff alleges he then stepped into the back of the paramedic vehicle and allowed them to check out his mouth. Plaintiff then laid down on the stretcher and he was held down while one of the paramedics shoved what Plaintiff believes to have been a wooden tongue depressor into his mouth. Plaintiff bit down on it and it broke. Another wooden instrument was inserted into his mouth and they “[pried] the [Plaintiff's] plate out of his mouth cracking and chipping teeth as they did.” Further, Plaintiff states they ripped up the inside of his mouth causing him to bleed more.

         After Plaintiff's partial plate was removed, he alleges the paramedics tried to “stick some sort of plastic tube into his mouth.” Plaintiff turned his head to prevent them from putting the tube in his mouth and the paramedics made some sort of angry statement and “grabbed him by [the] throat choking him while they forced the tube down his throat.” Plaintiff states he could not breathe because his oxygen was cut off and he started panicking and thrashing around trying to get air. He alleges he then heard someone say “paralyze him.” Shortly after that, Plaintiff asserts he lost consciousness and did not wake up until three days later when he was in the Intensive Care Unit (ICU) of Mercy Hospital.

         Officer Ochoa accompanied the Plaintiff to the paramedic vehicle and rode in the vehicle. Plaintiff alleges the paramedics and Officer Ochoa used excessive force against him to the point of rendering the Plaintiff unconscious and cutting up the inside of his mouth. Plaintiff states he ended up in the ICU on a ventilator. When he regained consciousness, Plaintiff noticed his hands, wrists, and forearms up to his elbows were swollen to approximately three times their normal size and there were cuts on his wrists from his handcuffs.

         A few days prior to the September 23rd traffic stop, Plaintiff alleges he received a message via Facebook messenger from Wayne Morgan in which Morgan stated he was going to turn Plaintiff into the police. According to Plaintiff, Morgan was doing this because he believed Plaintiff was having an affair with his wife, Micha Satchel.

         Plaintiff alleges this was the second time he had been “accosted” by Officer Pennington. On the first occasion, Officer Pennington reportedly told the Plaintiff that he had received information that Micha Satchel and Zachary McJunkin, Morgan's step-son, had been “trading things” to the Plaintiff for drugs. Officer Pennington ran his dog around Plaintiff's vehicle but the dog did not alert. A few days later, Plaintiff alleges he was told that it had been Morgan who called the police ...

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