United States District Court, E.D. Arkansas, Helena Division
OPINION AND ORDER
LEON HOLMES, UNITED STATES DISTRICT JUDGE
Green claims under 42 U.S.C. § 1983 that the City of
Helena-West Helena, Arkansas, violated his constitutional
right to a prompt first appearance after his arrest. The City
and Green both move for summary judgment. For the reasons
that will be explained, the City's motion is granted and
Green's motion is denied.
Summary Judgment Standard
should grant summary judgment if the evidence demonstrates
that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of demonstrating the absence of a genuine dispute for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party
meets that burden, the nonmoving party must come forward with
specific facts that establish a genuine dispute of material
fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986); Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine
dispute of material fact exists only if the evidence is
sufficient to allow a reasonable jury to return a verdict in
favor of the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). The Court must view the evidence in the
light most favorable to the nonmoving party and must give
that party the benefit of all reasonable inferences that can
be drawn from the record. Pedersen v. Bio-Med.
Applications of Minn., 775 F.3d 1049, 1053 (8th Cir.
2015). If the nonmoving party fails to present evidence
sufficient to establish an essential element of a claim on
which that party bears the burden of proof, then the moving
party is entitled to judgment as a matter of law.
History of the
Charles Byrd, a Helena-West Helena police officer, arrested
Green on Friday, June 28, 2013, shortly before 8:00 p.m. On
the next day, a City officer swore -an affidavit of probable
cause and obtained an arrest warrant. Green was transported
to the Ashley County jail. He did not receive a first
appearance before Monday, July 1. The parties dispute whether
he received a first appearance on Monday at all, but the City
says that Judge Reid Harrod, an Ashley County District Court
judge, presided over Green's first appearance on Monday.
After several months, the charges were dismissed and Green
sued Charles Byrd in his individual capacity and official
capacity. Helena-West Helena is located in Phillips
County. Green also sued the Phillips County Sheriff in his
official capacity. He claimed among other things that his
constitutional right to a timely first appearance was
violated. Green also initially asserted a claim that
he was arrested without probable cause. See Document
#16 at 2-3. He has now abandoned that claim. The City argued
and provided evidence that Helena-West Helena officers
arrested Green based on probable cause, see Document
#84 at 7-8, but Green did not respond to that argument. Any
probable-cause claim is therefore waived. See Denson
v. Steak 'nShake, Inc., __F.3d__, 2018 WL6273586
at *1 n.2 (E.D. Mo. Dec. 3, 2018) ("Denson did not
respond to Steak 'n Shake's arguments in support of
summary judgment on the retaliation claim, and the district
court correctly deemed the claim waived."). Remaining is
Green's § 1983 claim that Charles Byrd, in his
official capacity, violated Green's constitutional right
to a timely first appearance.
City conceded for years that Green did not have a first
appearance hearing. That concession was made not only in this
case but also in a previous class action in which Green opted
out of a class comprised in relevant part by "[a]ll
those arrested in Phillips County, Arkansas between 9 October
2012 and 10 November 2016 who did not receive a Rule 8
appearance within seventy-two hours of arrest[.]"
See Document #16 at 1; Thomas v. Byrd,
2:15-cv-00095-DPM, Document #54 (E.D. Ark. Nov. 10, 2016). In
preparing for trial in this case, however, the City's
lawyers uncovered, for the first time, in the Ashley County
records, a "Record of First Judicial Appearance"
for Green. See Documents #60 and #61. This document
records that Green received a first appearance before Ashley
County District Court Judge Reid Harrod on July 1, 2013.
See Document #61-3. Both Judge Harrod's and
Green's signatures appear on the document.
Cross Motions for Summary Judgment
City contends, among other things, that the record shows that
Green received a first appearance on Monday, July 1, 2013,
within three days of his Friday evening arrest. Document #85
at ¶¶ 8-13. The City argues that, as a matter of
law, the delay from Friday evening to Monday did not violate
Green's rights. Green asserts that he did not receive a
first appearance that Monday. He also contends that, even if
he did have a first appearance, Judge Harrod had no
jurisdiction to conduct it because Judge Harrod is an Ashley
County District Court judge whereas Green was arrested and
charged in Phillips County. Green argues, therefore, that the
first appearance was void. Finally, Green maintains that the
City should be estopped from now contending that he received
a first appearance when it has previously conceded that he
did not have one.
Whether Green's Affidavit Creates a Genuine Dispute of
Fact as to Whether He Received a First Appearance
purposes of his own motion for summary judgment, Green
concedes he saw Judge Harrod in Ashley County. In response to
the City's motion, however, he contends that even if
jurisdiction existed, "there is still a genuine issue of
material fact because the Plaintiff swears he did not see
Judge Harrod," and he provides an affidavit to that
effect. Documents #98 at 1-2 and #98-2.
noted above, City police officers arrested Green on Friday,
June 28, 2013, shortly before 8:00 p.m. Document #85-1. On
the following day a City officer swore an affidavit of
probable cause, which a judge signed. Document #85-2.
Warrants for Green's arrest were issued. Document #85-3.
On that same day-Saturday, June 29th-Green was transported to
the Ashley County jail. Document #85-5. All of these facts
are undisputed. See Document #99 at 3.
City further says, and provides evidence, that on Monday,
July 1, the City asked Judge Harrod to perform a first
appearance for Green. Document #85-6. It made the request via
a fax, date- stamped July 1, 2013, sent from the Helena-West
Helena Police Department to Judge Harrod. Id.
Documents included in the fax are a June 29 probable cause
affidavit and warrants for Green's arrest. Id.
at 12-18. Also included is a blank "Record of First
Judicial Appearance" for "Deandre Green."'
Id. at 10. The City further provides documentary
evidence that Green was transported to court on Monday, July
1, around 7:00 a.m. Document #85-5 at 1. Finally, the City
has produced a completed "'Record of First Judicial
Appearance" dated July 1, showing that Green received a
first appearance that day. Document #85-7. This document
slates that "the above named Defendant did appear
before" Judge Harrod, and names "Deandre
Green" as the defendant. Id. Both Judge
Harrod's and Green's signatures appear on the form.
Judge Harrod attests that the signature is his and that the
document reflects that Green received a first appearance
before him on July 1, 2013. Id. at 2. Green does not
dispute that the defendant's signature is his. The record
also lists various information that Green was given,
including his right to counsel; further, the name of a lawyer
that Green "will retain" is handwritten on the
form. Id. at 1.
contrary proof consists of his affidavit in which he swears
that he "did not receive a first appearance before a
judge." Document #98-2. He does state, however, that he
"recall[s] being presented with paperwork at the jail to
sign."/rf. He does not explain what paperwork he signed,
nor does he state that he was confused about what he was
first issue is whether Green's affidavit creates a
genuine dispute as to whether he received a first appearance
before Judge Harrod on July 1.
presumption of regularity supports the official acts of
public officers, and, in the absence of clear evidence to the
contrary, courts presume that they have properly discharged
their official duties." Cooper v. United
States, 233 F.2d 821, 824 (8th Cir. 1956) (quoting
United States v. Chem. Found. Inc., 272 U.S. 1,
14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926)). As the Supreme
Court has stated, "[a]cts done by a public officer which
presuppose the existence of other acts to make them legally
operative, are presumptive proofs of the latter."
R.H. Steams Co. of Boston, Mass. v. United States,
291 U.S. 54, 63, 54 S.Ct. 325, 328, 78 L.Ed. 647 (1934)
(citations and quotation omitted). Federal courts presume the
accuracy of district court clerk docket entries, for example,
absent reliable evidence to the contrary. Arnold v.
Wood, 238 F.3d 992, 995 (8th Cir. 2001) (citing
MacNeil v. State Realty Co. of Boston, hie., 229
F.2d 358, 359 (1st Cir. 1956) ("It may perhaps be that
an erroneous entry . . . was made by the clerk of the court
below. But we do not consider the affidavit of the appellant
standing alone sufficient to outweigh the respect to be
accorded in this court to the docket entries certified for
appeal by the clerk of the District Court.")). Moreover,
documents that merely call into question the validity of an
official document are not "clear evidence" of its
invalidity. Riggs Nat. Corp. & Subsidiaries v.
C.I.R., 295 F.3d 16, 21 (D.C. Cir. 2002); see also
Webster v. Estelle, 505 F.2d 926, 929-930 (5th Cir.
1974) (holding that habeas petitioner's uncorroborated
testimony that he had no counsel when he pleaded guilty did
not overcome the presumption of regularity accorded to court
documents showing that he was represented at the plea).
as noted above, the City has provided documentary evidence
that it asked Judge Harrod to conduct Green's first
appearance on July 1, 2013; that it sent Green's arrest
information to Judge Harrod; and that it transported Green to
court. Most important, the July 1 "Record of First
Judicial Appearance" for Green shows that he appeared
before Judge Harrod on that day. Judge Harrod has sworn that
his signature appears on the form. Green's signature
appears on it as well. Although Green has not expressly
admitted that he signed the form, he has not denied that he
signed it. Nor does he say or provide any evidence that he
was confused about what he was signing. The Court therefore
takes as undisputed that Green signed the form. Thus, not
only does Green's recent affidavit contradict a court
record entitled to a presumption of regularity, it also
contradicts Green's own prior affirmation of that court
record. See Bonvillain v. Blackburn, 780 F.2d 1248,
1251-52 (5th Cir. 1986) (holding no habeas relief warranted
based on broken plea agreement; record showed petitioner knew
17-year sentence was for forcible rape conviction and
sentence on parole revocation was unrelated, where both
petitioner and his lawyer signed a form at the plea
acknowledging that 17-year sentence was for forcible rape
true that an affidavit generally suffices to create an issue
of material fact. Fed.R.Civ.P. 56(c)(1)(A). But not always.
For example, if a person responding to a motion for summary
judgment submits an affidavit that contradicts his earlier
deposition testimony, unless the deposition testimony
reflects confusion, the affidavit does not create a genuine
dispute of material fact. See Camfield Tires, Inc. v.
Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir.
1983). To hold otherwise "would greatly diminish the
utility of summary judgment as a procedure for screening out
sham issues of fact." Id. at 1365. Likewise, in
Conolly v. Clark, the Eighth Circuit held that a
plaintiff could not defeat summary judgment by his
self-serving affidavit attempting to contradict the objective
evidence. 457 F.3d 872, 876 (8th Cir. 2006). There, the
parties were still negotiating a contract, as partly evinced
by the plaintiffs email stating the agreement was "just
preliminary and a more formal proposal will be
forthcoming" Id. Despite the plaintiffs
subsequent affidavit swearing that he meant the agreement
terms were "preliminary" in the sense that a
different document would ultimately memorialize the oral
agreement-not that a final agreement had not been reached yet
-summary judgment was appropriate. As the Eighth Circuit
noted, "a properly supported motion for summary judgment
is not defeated by self-serving affidavits." Id.
(citing Davidson &Assocs. v. Jung, 422 F.3d 630, 638
(8th Cir. 2005)).
the circumstance here, where a court record that not only is
presumed to be correct, but also is signed by the defendant,
shows that the first appearance took place, that defendant
cannot create a genuine dispute of material fact merely by
signing an affidavit contradicting his own signature. In the
face of the objective evidence that the City has provided,
and against the backdrop of the presumption of regularity
accorded the court records, Green's affidavit does not
create a genuine issue of fact.
Judge Harrod's Jurisdiction to Conduct ...