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Darrough v. Gober

United States District Court, E.D. Arkansas, Western Division

January 25, 2019

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



         Paul 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.

         The 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.

         Three 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.[1] Likewise, Darrough's motion for partial summary judgment as to his first appearance claim is denied.

         A court 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.

         The 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 violation.

         Section 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).

         “Because 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 matters.” Id.

         To 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.

         Darrough 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).

         In 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 1127.

         In 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.

         Sheriff 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. at 9.

         The 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, ...

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