United States District Court, E.D. Arkansas, Western Division
PAUL DARROUGH, on behalf of himself and all others similarly situated PLAINTIFF
MARK GOBER and SUSAN POTTS, individually and in their official capacities; and JOHN DOES 1-10 DEFENDANTS
OPINION AND ORDER
LEON HOLMES, UNITED STATES DISTRICT JUDGE
Darrough brings this case against Mark Gober, the Sheriff of
Drew County, and Susan Potts, the Drew County Detention
Center administrator, in their individual and in their
official capacities. His claims against them in their
official capacities are, in effect, claims against Drew
County. Parrish v. Ball, 594 F.3d 993, 997 (8th Cir.
2010). Darrough's central claim is that he was deprived
of his due process rights when the Jail did not provide him a
timely first appearance on one of his charges. Darrough also
alleges that he was arrested without probable cause, that
Gober used excessive force in arresting him, that Gober
committed assault and battery, and that Gober committed a
felony tort when he assaulted him. His complaint names John
Does 1-10 as defendants. Finally, Darrough seeks to represent
a class of persons incarcerated in the Jail in the past three
years who did not receive a timely first appearance.
parties agree on many of the relevant facts. Document #49 at
3-5; Document #54 at 4-9. In November 2016 a bench warrant
was signed charging Darrough with committing the offense of
theft by receiving, based on an affidavit alleging that
stolen items were located on Darrough's property. In
April 2017, a criminal information was filed alleging that he
had committed the offense of theft by receiving. On May 10,
2017, a search warrant was executed and Darrough was arrested
at his home. He was charged with possession of firearms by
certain persons, criminal use of prohibited weapons,
possession of a defaced firearm, and delivery of
methamphetamine. That same day, the November 2016 bench
warrant alleging Darrough had committed theft by receiving
was served on Darrough while he was incarcerated. Two days
later, on May 12, 2017, Darrough appeared before District
Court Judge Bruce Anderson at the Jail. Judge Anderson set a
bond, reviewed the charges, and appointed a public defender
to assist Darrough. However, the theft by receiving charge
was not covered at this hearing. Instead, Darrough was
arraigned only on the charges of possession of firearms by
certain persons, criminal use of prohibited weapons,
possession of a defaced firearm, and delivery of
methamphetamine. On June 5, 2017, Darrough appeared before
Circuit Court Judge Robert Gibson Jr. for a first appearance
on the theft by receiving charge. Judge Gibson reduced
Darrough's bond. See Document #30-2. Darrough
bonded out approximately a week later.
motions are pending. Darrough and the defendants have filed
cross motions for summary judgment, and Darrough has moved
for the second time to certify a class of persons arrested in
Drew County who did not receive a timely first appearance.
For the reasons that follow, the defendants' motion for
summary judgment is granted as to his first appearance claim,
as well as his excessive force, assault and battery, and
felony tort claims. Darrough's asserted class action is
based on the first appearance claims. Because summary
judgment is granted to the defendants on these claims,
Darrough's class certification motion is
denied. Likewise, Darrough's motion for
partial summary judgment as to his first appearance claim is
should enter summary judgment if the evidence, viewed in the
light most favorable to the nonmoving party, demonstrates
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511,
91 L.Ed.2d 202 (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 jury to return a verdict
for the nonmoving party. Anderson, 477 U.S. at 249,
106 S.Ct. at 2511.
defendants move for summary judgment on Darrough's claims
relating to his first appearance. They argue the official
capacity claims should be dismissed because Darrough has
produced no evidence of an unconstitutional county policy or
custom as he must under Monell v. New York Dep't of
Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978). They argue that Darrough's claim against Sheriff
Gober individually fails because he was not personally
involved in any of Darrough's alleged injuries, and that
Darrough's claim against jail administrator Potts must
fail because there was no underlying constitutional
1983 protects against deprivations of federal rights caused
by a person acting under color of state law. 42 U.S.C. §
1983. “Liability under § 1983 requires a causal
link to, and direct responsibility for, the deprivation of
rights.” Madewell v. Roberts, 909 F.2d 1203,
1208 (8th Cir. 1990). Thus, counties are not liable under
section 1983 based only on injuries caused by their
employees. Monell, 436 U.S. at 694, 98 S.Ct. at
2037-38. Rather, a county can be liable for the act of its
officials or employees if the act carries out official
unconstitutional county policies or unconstitutional customs.
Id. A plaintiff must show that his constitutional
injury was caused by a policy or custom of the municipality,
the implementation of which amounted to deliberate
indifference to his constitutional rights. Lund v.
Hennepin Cnty., 427 F.3d 1123, 1125 (8th Cir.2005)
(citing City of Canton v. Harris, 489 U.S. 378,
388-91, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). The
municipal policy or custom must be the “moving
force” behind the constitutional violation. Mettler
v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999). A
county is not liable, however, if there was no
unconstitutional act by a county employee. See Evans v.
City of Helena-West Helena, Ark., F.3d, 2019 WL 179015,
*1 (8th Cir. Jan. 14, 2019).
an official policy speaks for itself about the intent of
public officials, proof of a single act by a policymaker may
be sufficient to support liability.” Jenkins v.
Cnty. of Hennepin, Minn., 557 F.3d 628, 633
(8th Cir. 2009). To establish an official county policy,
Darrough must provide evidence of “a deliberate choice
of a guiding principle or procedure made by the municipal
official who has final authority regarding such
establish a county custom, however, a plaintiff must provide
evidence of a “continuing, widespread, persistent
pattern of unconstitutional misconduct.” Id.
at 634. He must also show either that policymakers were
deliberately indifferent to the misconduct, or that they
tacitly authorized the misconduct after receiving notice of
it. Id.; Mettler, 165 F.3d at 1204. County
liability based on county custom, as opposed to a county
policy, cannot arise from a single act. Jenkins, 557
F.3d at 634.
asserts that his due process rights were violated because he
did not receive a first appearance on the theft by receiving
charge until June 5, 2017, nearly a month after his arrest.
The Fourteenth Amendment's due process clause protects
fundamental rights and liberties. Washington v.
Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 2268, 138
L.Ed.2d 772 (1997). It protects against extended detentions
without a first appearance after arrest by warrant. Hayes
v. Faulkner Cnty., Ark., 388 F.3d 669, 673 (8th Cir.
2004). However, negligent conduct causing unintended loss of
or injury to life, liberty, or property does not implicate
the due process clause. Daniels v. Williams, 474
U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986). Nor
does even grossly negligent conduct give rise to a
substantive due process violation. E.g., S.S. v.
McMullen, 225 F.3d 960, 964 (8th Cir. 2000) (en banc).
cases like this one alleging municipal liability for a due
process violation, Darrough must point to conduct by the
County, or employees acting with its knowledge, that shocks
the conscience given the totality of the circumstances.
Lund, 427 F.3d at 1126; Hayes, 388 F.3d at
674-75 (citing County of Sacramento v. Lewis, 523
U.S. 833, 853, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). To
hold the County responsible he must show both that his
detention shocks the conscience and that it was caused by a
County policy or custom evidencing a level of culpability
akin to criminal recklessness. Lund, 427 F.3d at
support of their summary judgment motion, the defendants
attach an affidavit by jail administrator Potts. Document
#49-1. Her sworn statement explains the Jail's first
appearance protocol. She states that arrestees frequently
receive a first appearance the same day as an arrest, but in
no event more than seventy-two hours after the arrest. Potts
checks every morning to determine whether new arrests have
been made, and if so, she contacts a judge to hold a first
appearance. The judge usually comes to the Jail on the same
day as an arrest to conduct a first appearance. Potts has
authorized the release of new arrestees if a judge is not
able to conduct a first appearance within seventy-two hours.
She also states that Darrough's theft by receiving charge
was inadvertently left off the paperwork for the May 12
arraignment based on someone's mistake or negligence,
which, she says, was an oversight and not intended to deprive
Darrough of his constitutional rights. To her knowledge, this
has not happened before or since.
Gober testified likewise in his deposition. He testified that
Potts is “very good at” getting new arrestees in
front of a judge. Document #49-2 at 8. He testified that
every morning she finds out who has been arrested, checks to
see how long people have been at the Jail, “and makes
sure they get their first appearance.” Id. He
testified that Potts is “typically calling people up
and saying, ‘Hey, this guy's been here today,
yesterday, come in yesterday. We need a first
appearance.'” Id. He described her as
“kinda pushy” because “[s]he likes the
first appearance the day of [the arrest].” Id.
transcript of Darrough's June 5, 2017 hearing in front of
Judge Gibson, which Darrough attached to his own summary
judgment motion, supports the testimony of Potts and Gober.
Document #30-2. That transcript shows that Judge Gibson was
surprised that Darrough had not had a first appearance on the
theft by receiving charge. He commented to Darrough, “I
don't know why you haven't had a first appearance.
Been over there in jail since [May] 10th. Let's check and
see why he was in jail on the 10th until present and no one -
the jail normally notifies a judge and - . . .”
Id. at 4. He stated, “I need to know if
there's been a first appearance because I know normally
Susan [Potts] will call me, or someone, ...