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