Green v. Byrd

          OPINION AND ORDER

          J. LEON HOLMES, UNITED STATES DISTRICT JUDGE

         Deandre 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.

         I. Summary Judgment Standard

         A court 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. Id.

         II. History of the

         Case 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 was released.

         Green sued Charles Byrd in his individual capacity and official capacity.^[1] 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.^[2] 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.^[3]

         The 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.

         III. Cross Motions for Summary Judgment

         The 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.

         A. Whether Green's Affidavit Creates a Genuine Dispute of Fact as to Whether He Received a First Appearance

          For 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.

         As 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.

         The 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.

         Green's 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 signing.

         The 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.

         "The 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).

         Here, 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 conviction).

         It is 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)).

         Under 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.

         B. Judge Harrod's Jurisdiction to Conduct ...