United States District Court, W.D. Arkansas, Hot Springs Division
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE.
Brooks and Hewitt have filed a motion (Doc. 55) for summary
judgment and a statement of facts (Doc. 56) and brief (Doc.
57) in support of their motion. Plaintiff thereafter filed a
notice of change of address. (Doc. 58). Plaintiff also filed
motions to appoint counsel, for transcripts, and to compel
discovery, which were denied by a previous order. Defendants
Brooks and Hewitt thereafter filed an affidavit (Doc. 65)
stating that the motion for summary judgment was also served
on Plaintiff at his new address. Plaintiff has not responded
to the motion for summary judgment, and the material facts
set forth in the statement of facts (Doc. 56) are deemed
admitted. W.D. Ark. R. 56.1(c). The motion will be granted.
Furthermore, because Defendant Garner was never served and
Plaintiff never requested an extension of time to amend his
complaint to include the proper party (Doc. 52), claims
against Garner will also be dismissed.
second amended complaint (Doc. 42), Plaintiff asserted both
official and personal capacity claims against Defendants
Brooks and Hewitt. As part of its order (Doc. 41) denying a
motion to dismiss as moot, the Court reviewed the amended
complaint and dismissed a number of Plaintiff's claims.
The only claims remaining for consideration on this motion
are Plaintiff's personal capacity claims against Brooks
and Hewitt, which are premised on Plaintiff's allegation
that he was assaulted by them in April, 2015. (Doc. 41).
undisputed material facts are that Plaintiff was a resident
at Arkansas Community Correction's Omega Technical
Violator Program in Malvern, Arkansas, on April 19, 2015.
Plaintiff went to Defendant Hewitt's office that day to
request a yard pass. Hewitt denied Plaintiff's request
because he said it had been raining, and Plaintiff became
visibly and audibly angry to the point that he was
contemplating using force. Plaintiff left the office, but
returned shortly thereafter. Plaintiff was still angry and
belligerent, and raised his voice with those present in the
office. Plaintiff rejected several commands to be quiet, lost
his temper, and was verbally combative. Hewitt directed that
Plaintiff be handcuffed. Plaintiff turned to the wall, and
Defendant Brooks, who was present at that time, began to
handcuff Plaintiff. After one arm was handcuffed, Plaintiff
began to physically resist the restraint, ignored
Hewitt's order to stop resisting, and began to make
threats. Brooks took Plaintiff to the floor and finished
handcuffing him, then escorted Plaintiff to restrictive
housing. Hewitt did not touch Plaintiff until he was already
handcuffed, and then only to help Brooks escort Plaintiff to
Plaintiff can show that the force used against him in
Hewitt's office was excessive, judgment for Brooks and
Hewitt is appropriate.
In an Eighth Amendment excessive force case, “the core
judicial inquiry is ‘whether force was applied in a
good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.'”
Santiago v. Blair, 707 F.3d 984, 990 (8th Cir. 2013)
(quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)).
“Whether the force used was reasonable is ‘judged
from the perspective of a reasonable officer on the
scene' and in light of the particular
circumstances.” Story v. Norwood, 659 F.3d
680, 686 (8th Cir. 2011) (quoting Graham v. Connor,
490 U.S. 386, 396-97 (1989)). In making such a determination,
“it may also be proper to evaluate the need for
application of force, the relationship between that need and
the amount of force used, the threat ‘reasonably
perceived by the responsible officials,' and ‘any
efforts made to temper the severity of a forceful
response.'” Hudson, 503 U.S. at 7 (quoting
Whitley v. Albers, 475 U.S. 312, 321 (1986)).
Smith v. Conway County, Ark., 759 F.3d 853, 858-59
(8th Cir. 2014).
reasonable officer, when confronted by a detainee who is
noncompliant, argumentative, loud, and apparently on the
verge of using physical force, might in good faith believe
that applying restraints to the detainee is necessary to
maintain or restore discipline. When that detainee physically
resists the restraints partway through the process, a
reasonable officer might in good faith believe that bringing
the detainee to the ground-an escalation of the force already
being used-is necessary. When the detainee is finally
restrained, with hands cuffed behind his back, a reasonable
officer might in good faith believe that physical contact
with the detainee is necessary to assist the detainee to his
ultimate destination. The force used in this case was no more
than that a reasonable officer might in good faith apply to
maintain or restore discipline. It does not rise to a
THEREFORE ORDERED that Defendants' motion for summary
judgment (Doc. 55) is GRANTED, and this case is DISMISSED