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Spencer v. Short

United States District Court, W.D. Arkansas, Fort Smith Division

May 1, 2019

JOSHUA ROBERT SPENCER PLAINTIFF
v.
OFFICER CHRIS SHORT (Arkansas State Police, Troop H), OFFICER DUSTIN BARENTINE (Fort Smith Police Department) and OFFICER KEITH SHELBY (Fort Smith Police Department) DEFENDANTS

          OPINION AND ORDER

          P. K. HOLMES, III CHIEF U.S. DISTRICT JUDGE.

         Plaintiff proceeds in this matter pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. Currently before the Court are Motions for Summary Judgment by Defendants Barentine and Shelby (ECF No. 31) and Defendant Short (ECF No. 35).

         I. BACKGROUND

         A. Procedural Background

         Plaintiff filed his Complaint on January 30, 2018. (ECF No. 1). Noting that Plaintiff's Complaint was not on the court-approved form, the Court entered an Order on January 31, 2018 directing Plaintiff to submit an Amended Complaint. (ECF No. 6). Plaintiff did so on February 14, 2018. (ECF No. 8).

         Plaintiff alleges his constitutional rights were violated on October 13, 2017 when excessive force was used during his arrest and by the denial of medical care for injuries he received during the arrest. Specifically, Plaintiff alleges Defendants Creek, Short, and Barentine kicked and punched him during his arrest. Plaintiff alleges he did not resist, he was on the ground, he said he was sorry, and he pleaded with the officers to stop. (ECF No. 8 at 4, 5, 6). Plaintiff alleges he received cuts and bruises from the actions of Defendant Creek and Defendant Barentine. (ECF No. 8 at 4, 6). Plaintiff alleges he received a broken tooth from the actions of Defendant Short. (ECF No. 8 at 5). Plaintiff alleges the Jane Doe Officer at the Sebastian County Detention Center (“SCDC”) denied him medical care for his injuries. (ECF No. 8 at 8).

         Plaintiff proceeds against all Defendants in their official and personal capacities. (ECF No. 8 at 4-6). Plaintiff seeks compensatory, punitive, and nominal damages. (ECF No. 8 at 7).

         Pursuant to PLRA preservice screening, Plaintiff's official capacity claims and his personal capacity claim for denial of medical care against Defendant Jane Doe were dismissed on March 12, 2018. (ECF No. 9). His personal capacity excessive force claims against Defendants Creek, Barentine, and Short remained for further consideration. (Id.).

         On July 11, 2018, Plaintiff filed a Motion to Amend/Correct Complaint. (ECF No. 19). In his Motion, Plaintiff sought permission to voluntarily dismiss Defendant Creek and add Defendant Shelby. Plaintiff also stated that Defendant Short did not transfer him to an emergency room for medical treatment. (Id.). On July 18, 2018, Plaintiff's Motion to Amend/Correct was granted; Defendant Creek was removed as a Defendant from the case, and Defendant Shelby was added per Plaintiff's request. (ECF No. 20).

         Defendants Barentine and Shelby filed their Motion for Summary Judgment on September 13, 2018. (ECF No. 31). Defendant Short filed his Motion for Summary Judgment on September 28, 2018. (ECF No. 35). On October 4, 2018, the Court entered an Order directing Plaintiff to respond to the Motions for Summary Judgment. (ECF No. 44). Plaintiff filed his Response on October 25, 2018. (ECF No. 45).

         B. The Chase and Arrest

         There is no dispute regarding the following facts. On October 13, 2017, Plaintiff was observed driving a red Dodge one-ton diesel flat-bed truck that had been reported stolen. (ECF Nos. 33 at 1; 36 at 1; 36-4 at 15-16). Defendant Short was advised by dispatch that the Fort Smith Police Department (FSPD) was in pursuit of the truck. (ECF No. 36 at 1). Defendant Short met the truck as it was traveling westbound on Rogers Avenue just east of the intersection at 74th Street, with no police units pursuing it. (Id.). The truck swerved and came within three feet of hitting Defendant Short's vehicle head-on. (Id.). Short turned his vehicle around, activated his lights and siren and began pursuing the stolen truck. (Id. at 1-2). Over the course of about ten (10) minutes, [1] Plaintiff led Defendant Short and FSPD officers on a high-speed chase through Fort Smith, avoiding stop sticks, traveling through a business parking lot, and ramming civilian vehicles. (ECF Nos. 31-4 at 17; 33 at 1). The road route of the chase was:

1. South on 74th Street;
2. West on Phoenix Avenue;
3. The intersection of Phoenix Avenue and Old Greenwood Road, where Plaintiff struck two vehicles and then continued on Phoenix Avenue;
4. South on 24th Street;
5. West on Savannah Street;
6. South on Jenny Lind Road;
7. West on Zero Street;
8. North on 14th Street;
9. West on Vicksburg Street;
10. North on Towson Avenue; and,
11. Right turn into the parking lot of Village South Apartments.

(ECF No. 36 at 2). In the parking lot, Defendant Short pulled up to the driver side of the truck to try and box Plaintiff in, and contact was made between the truck and the state police vehicle. The truck stopped and Plaintiff put both hands out of the open window. (ECF Nos. 31-4 at 20; 36 at 3).

         Defendants Short, Barentine, and Shelby approached the vehicle with their service pistols drawn and gave verbal commands for Plaintiff to open the truck door. When Plaintiff did not do so, Shelby opened the driver side truck door, and with Short, pulled Plaintiff down from the truck and down to the ground. (ECF Nos. 31-4 at 13-14; 33 at 2; 36 at 3). Before Plaintiff was handcuffed, Short struck him in the head and shoulder area/side (ECF Nos. 31-4 at 25; 36 at 4), and Shelby used his knee and hand to deliver some controlled blows. (ECF Nos. 31-4 at 30-31; 33 at 2). Plaintiff was then handcuffed and Short placed him in the state trooper vehicle. (ECF Nos. 31-2 ...


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