Wheeler v. Searcy Arkansas, City of

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

BRANDON LEE WHEELER *

PLAINTIFF *

*

V. *

* CASE NO. 4:18CV00859 SWW

*

CITY of SEARCY, ARKANSAS, ET *

AL. *

DEFENDANTS

OPINION and ORDER

Plaintiff Brandon Lee Wheeler (“Wheeler”) brings this action under 42 U.S.C.

§ 1983, charging that his constitutional rights were violated when he was arrested for

capital murder and abuse of a corpse, charges that a prosecutor eventually dismissed by

nolle prosequi, with leave of court. Wheeler names as defendants Searcy Police

Department (“SPD”) officers Mark Kidder (“Kidder”), Adam Sexton (“Sexton”), and

Nick Darnell (“Darnell”); former SPD police chief Eric Webb (“Webb”); and former

SPD officer and investigator Charles Perry (“Perry”). Wheeler sues each defendant in his

individual and official capacities. Before the Court is Defendants’ motion for summary

judgment [EFC Nos. 19, 20, 21] and Wheeler’s response in opposition [EFC Nos. 24, 25,

26]. After careful consideration, and for reasons that follow, the motion for summary

judgment is granted in part and denied in part.

I. Summary Judgment Standard

Summary judgment is appropriate when “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). As a prerequisite to summary judgment, a moving party

must demonstrate “an absence of evidence to support the non-moving party’s case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly

supported its motion for summary judgment, the non-moving party must “do more than

simply show there is some metaphysical doubt as to the material facts.” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)

The non-moving party may not rest on mere allegations or denials of his pleading

but must come forward with ‘specific facts showing a genuine issue for trial. Id. at 587.

“[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed

fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a

reasonable jury could return a verdict for either party.” RSBI Aerospace, Inc. v. Affiliated

FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).

II. Background

On October 5, 1994, David Green contacted the Searcy Police Department

(“Searcy PD”) to report that his twenty-year-old son, Jarrod Green (“Green”), had been

missing since 8:00 p.m. on September 30, 1994. A related SPD report stated: “The

complainant stated that his son had left the complainant’s home to meet with a Brandon

Wheeler, . . . because his son owed Brandon Wheeler money for drugs.”1 After receiving

the missing person report, the SPD began an extensive investigation into Green’s

1ECF No. 21-1, at 22.

disappearance. On September 17, 1995, almost a year after Green went missing, an

individual named Charles Langley (“Langley”) provided the following statement:

Sometime late last year, Brandon Wheeler and Jason Webb came to my

house in Higginson. They had come to sell me some crystal. While there[,]

they asked me if I wanted to get rid of someone for them because he owed

them $7,500. The guy they wanted to get rid of was [Jarrod]2 Green.

Sometime later in December they came to my house again and said that Jason

Green was no longer a problem, that he had been taken out of the picture.

They told me that they had grabbed him at the [Walmart] store and took care

of him. Both . . . guys used to get at [a lot] of guns from the Higginson gun

store. They would deal with the son of the store owner. Later they talked

about getting rid of this guy[,] and I told them that I didn’t want anything to

do with them.3

SPD officers concluded that Jarrod Green was deceased and that Wheeler had murdered

him, but they did not pursue charges because evidence was lacking.

On March 9, 2000, Defendant Perry, then an SPD officer, interviewed Langley,

who recanted his September 17, 1995 statement. At the time, Langley was imprisoned at

the St. Francis County Jail, and he provided Perry the following statement:

I knew the reason for Det. Perry coming . . . [,] and it was about Jarrod Green,

the boy that came up missing in 1994. He asked me if I could tell him about

. . . people I was dealing with around that time and why I said that I could

shed some light on Jarrod being missing. I told Det. Perry that I was on my

way to prison at the time that I made the statement . . . [,] and most of what I

told him was stuff that was being spread around the drug community. I

explained that I did not even know the guys, meaning Brandon Wheeler and

Robert Webb, at the time that Jarrod came up missing. I had my first dealings

with Wheeler and Webb either in late 1994 or early 1995. The two were

always carrying guns and at one point in early [‘95] they had left a Glock 45

at my house for several days. The statement that I [made in 1995] was an

2Charles Langley’s handwritten statement dated September 17, 1995 refers to “Jason Green,” not

Jarrod Green.

3ECF No. 21-1, at 23.

attempt to shorten my stay or possibly even keep me from going to prison,

but most of which was a lie.4

In November 2016, Defendants Kidder, Darnell, and Sexton (collectively, “the

officers”) reopened Green’s missing person case. Defendant Webb, then the SPD police

chief, gave the officers permission to reopen the case. Investigative notes record that the

officers interviewed Langley a third time, 5 and once again, Langley recanted the

statement he had provided on September 17, 1995.6

The officers suspected that Green’s remains were present at a rural property,

which they searched on December 13, 2016, using a certified cadaver dog named

“Gunner.” A “mission report” documenting the search stated that Gunner was “brought

to the point last seen and allowed to take inventory of the odors in the area prior to being

scented,”7 indicating that a dog handler exposed Gunner to Green’s sent before the search

proceeded. The mission report recorded that Gunner showed repeated interest in a spot

near an old deer stand, an area that had been described by a confidential informant.8 On

December 17, 2015, the officers searched the property with additional certified cadaver

dogs, Savvy and Shy, who both reacted to the same spot where Gunner had shown an

4ECF No. 19-1, at 24.

5A copy of the investigative notes indicate that Langley’s third interview took place on

December 5, 2017, see ECF No. 25-1, at 6, but Plaintiff’s statement of disputed facts state that

that the interview took place on December 5, 2016, ECF No. 25, at 3. Langley also submitted to

a computerized voice stress analysis (“CVSA”) on March 28, 2017, and investigative notes state

that “Arkansas State Police SSA Scott Clark . . . determined Langley to be telling the truth,

though he cited slight deception on one question (are you withholding information from law

enforcement).” ECF No. 25-1, at 6. The Court is without information as to the questions posed

to Langley during the CVSA.

6ECF No. 25-1.

7ECF No. 21-1, at 28.

8ECF No. 21-1, at 29.

interest. The search extended to a pond on the property, which was drained, but physical

evidence of human remains was never found.

During the reopened investigation, the officers consulted prosecuting attorney

Rebecca Reed McCoy (“McCoy”), and she reviewed evidence and information that the

officers had gathered. Officer Sexton prepared a sworn affidavit for Wheeler’s arrest for

capital murder and abuse of a corpse, which he signed on March 28, 2017. At some

point, McCoy reviewed the affidavit and made corrections and changes, and she, along

with the officers, appeared before White County Circuit Court Judge Robert Edwards to

request an arrest warrant. Sexton’s affidavit read as follows:

On Wednesday, October 5, 1994 David Green made a missing [person]

report with the Searcy police Department. Mr. Green reported his 20-year

old son, Jarrod Devlin Green, left his home of [address redacted] in Searcy,

AR on September 30, 1994 to meet Brandon Wheeler in relation to a drug

debt owed to Mr. Wheeler. Mr. Green explained [that] shortly before this

report[,] Jarrod Green's vehicle had been located in the Searcy, AR Wal-

Mart parking lot with the windows down and the keys in the floorboard.

Mr. Green said Jarrod Green had not been seen or heard from by anyone

since September 30, 1994.

On Wednesday, November 2, 2016, I, Detective Adam Sexton, Detective

Mark Kidder, and Detective Nick Darnell re-opened this case for further

investigation. During . . . this investigation[,] there have been many

witnesses interviewed [about] Jarrod Green's disappearance. Witnesses

[who] were interviewed agreed that there was a conflict between Brandon

Wheeler and Jarrod Green[,] which concerned a debt owed to Mr. Wheeler

by Jarrod Green.

On July 17, l995[,] Witness 1 [Charles Langley] made a statement both

verbally and in written form to Law Enforcement. Witness 1 stated he was

approached by Brandon Wheeler and Wheeler's roommate in 1994, prior to

Jarrod Green's disappearance and offered one thousand ($1,000.00) dollars

to get rid of Jarrod Green. After Jarrod Green's disappearance[,] Brandon

Wheeler and his roommate came back to Witness 1 and stated Jarrod Green

had been done away with. Witness 1 also provided details about Brandon

Wheeler and his roommate grabbing Jarrod Green at the Wal-Mart Super

Center store parking lot. Original police reports show Jarrod Green's

vehicle was found at the Wal-Mart Super Center parking lot.

On December 8, 2016[,] myself (Detective Sexton), along with Detective

Mark Kidder, and Detective Nick Darnell interviewed Witness 2 at the

Branson Police Department in Branson, MO. Witness 2 explained on the

night of Jarrod Green's disappearance, he met with Jarrod at the Searcy

Country Club parking lot per Jarrod Green's request. Witness 2 explained

at that . . . time[,] he possessed Jarrod Green's .38 Rossi revolver. Witness

2 went on to say when Mr. Green arrived[,] he requested he have his

revolver back due to a meeting he was about to have with Brandon Wheeler.

Witness 2 said Jarrod Green told him he needed his gun for protection

against Brandon Wheeler. Witness 2 said after he gave Jarrod Green his

gun[,] he told Jarrod to be careful and then left the area. Witness 2 provided

a written statement that will be retained in this case file.

On December 13, 2016[,] a written statement was obtained from Witness

3. Witness 3 said [that] shortly before Jarrod Green went missing, Jarrod

left home to get away from who she believed to be Brandon Wheeler.

Witness 3 said about a week before Jarrod Green went missing[,] he

received a phone call telling him he had nothing to worry about and that no

one was after him anymore. Witness 3 stated Jarrod then came back home

to Searcy, AR and stayed at his parent's residence. Witness 3 stated

approximately one week later[,] Jarrod went missing. Witness 3 provided a

written statement that will be retained in this case file.

On December 14, 2016[,] myself (Detective Sexton) and Detective Mark

Kidder interviewed Witness 4 at the Searcy Police Department in Searcy,

AR. Witness 4 explained [that] she and Jarrod Green were in a relationship

at the time of his disappearance. Witness 4 said Jarrod Green begged her

to come along with him on the night he went missing. Witness 4 said Jarrod

Green was acting out of character during her conversation with him.

Witness 4 said Jarrod Green was crying and begging her to come with him.

Witness 4 said she opted not to go with Jarrod Green and never [saw] or

heard from him since that phone call. Witness 4 provided a written

statement that will be retained in this case file.

On December 14, 2016[,] Detective Mark Kidder obtained a written

statement from Witness 5. Witness 5 explained he was [a friend of] Jarrod

Green during the time that Jarrod went missing. Witness 5 said that about

a week or two before Jarrod went missing, Jarrod approached him at his

residence in Jonesboro, AR. During the conversation between Witness 5

and Jarrod Green, Jarrod said Brandon Wheeler fronted him a lot of "dope."

Witness 5 said Jarrod Green told him he did not have any intention to pay

Brandon Wheeler back due to being “ripped off” by Brandon Wheeler so

many times before. Witness 5 said this was the last time he saw Jarrod

Green.

Approximately ten (10) months later, after the disappearance of Jarrod

Green, Brandon Wheeler's roommate and best friend was reported as a

missing person by his mother. Reference Case number 97-12-563. An

investigator reported during this time, the aforementioned individual was

bragging he was a part of the disappearance of Jarrod Green, just before his

own disappearance.

On December 31,2000 another close friend and roommate of Brandon

Wheeler, who was also good friends with Jarrod Green during the time of

Jarrod Green's disappearance, committed suicide. Prior to committing

suicide, this subject gave disclosure of two separate murders to his cousin

who was also his pastor.

On December 19, 2016, a search was signed by a judge for property of

interest in connection with this case in rural White County Arkansas. From

December 20, 2016 through December 23, 2016[,] the aforementioned

uninhabited property was searched due to evidence found confirming

information obtained from various sources in this investigation. This

information indicated Jarrod Green's body was disposed of at this location.

Certified Cadaver dogs were used successfully in locating the

aforementioned evidence.

I, therefore, request a warrant be issued for Brandon Lee Wheeler, for

Capital Murder in violation of [Arkansas Code] § 5-10-101[,] a Class Y

Felony, [and] Abuse of a Corpse, [in violation of Arkansas Code] § 5-60-

101, a Class C Felony.

This case is under investigation.9

On April 6, 2017, Judge Edwards issued a warrant for Wheeler’s arrest on the

charges of capital murder and abuse of a corpse, and on May 10, 2017, McCoy issued an

information charging Wheeler with capital murder and abuse of a corpse. Thereafter,

9ECF No. 19-1, at 48-50.

Wheeler was arrested in Ohio, interrogated, and transported to Arkansas, where he was

detained. On June 5, 2017, Wheeler was released on bail, and on November 9, 2017,

McCoy moved to nolle pros the charges against Wheeler, for the stated reason that

“additional is evidence expected to be recovered and DNA testing would not be

completed within the time frames set by the Court.”10 By affidavit, Steve Taylor, who

served as the SPD assistant chief at the time, testifies: “Following the draining of the

pond and the inability to secure DNA testing in a timely manner, prosecuting attorney,

Rebecca Reed McCoy, made the decision to Nolle Prosequi these charges for further

investigation.”11

III. Discussion

With his complaint, Wheeler charges that he was unlawfully arrested, interrogated,

and imprisoned based on either lies or recklessness on part of the defendant officers. He

alleges that a month after his arrest, he was released on bond but forbidden to leave

Arkansas, which caused him to suffer lost wages and severe mental anguish and

suffering.

Wheeler seeks damages under 42 U.S.C. § 1983, charging that Defendants caused

him to suffer the following constitutional deprivations: (1) unreasonable seizure, in

violation of the Fourth and Fourteenth Amendments; (2) deprivation of liberty and

property without due process, in violation of the Fourteenth Amendment; (3) deprivation

of the right to a speedy trial, in violation of the Sixth Amendment; and (3) cruel and

10ECF No. 19-1, at 53.

11ECF No. 19-1, at 7-8.

unusual punishment and excessive bail, in violation of the Eighth Amendment.12

Wheeler sues defendants in their official and individual capacities, and his official-

capacity claims are claims against the city of Searcy, Arkansas. Kentucky v. Graham,

473 U.S. 159, 165 (1985). Wheeler also brings supplemental claims under the Arkansas

Civil Rights Act and a claim for intentional infliction of emotional distress under state

tort law.

Defendants move for summary judgment arguing that (1) Wheeler’s arrest was

supported by probable cause, (2) the officers sued in their individual capacity are entitled

to qualified immunity, and (3) Wheeler’s supplemental claim for intentional infliction of

emotional distress fails as a matter of law.

A. Individual-Capacity Claims for Unreasonable Seizure

Qualified immunity protects government officials “from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818, 102 S. Ct. 2727 (1982). In determining whether a defendant is entitled to

qualified immunity, a court examines (1) whether the facts alleged or shown, construed

most favorably to the plaintiff, establish a violation of a constitutional right and (2)

whether that constitutional right was clearly established at the time of the alleged

misconduct, such that a reasonable official would have known that the acts were

unlawful. Small v. McCrystal, 708 F.3d 997, 1003 (8th Cir. 2013)(citation omitted).

12The parties do not reference Wheeler’s Sixth and Eighth Amendment claims, and it is not clear

whether he has abandoned these claims.

“The first step in any [§1983] claim is to identify the specific constitutional right

allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271, 114 S. Ct. 807, 811–12, 127

L. Ed. 2d 114 (1994)(citing Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 1870

(1989). Here, Wheeler appears to claim that his arrest and pretrial detention violated

several constitutional rights, including his right to due process. However, a claim for

relief under § 1983 based on a pretrial deprivation of liberty is governed by the Fourth

Amendment’s prohibition of unreasonable seizures. Manuel v. City of Joliet, Ill., 137 S.

Ct. 911, 920 (2017)(holding that the Fourth Amendment governs a claim for unlawful

pretrial detention, even beyond the start of legal process).

“The standard for arrest is probable cause, defined in terms of facts and

circumstances sufficient to warrant a prudent man in believing that the (suspect) had

committed or was committing an offense.” Gerstein v. Pugh, 420 U.S. 103, 111–12, 95

S. Ct. 854, 862 (1975) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225 (1964)

(internal quotation marks omitted)). An arrest warrant normally confers a “shield of

immunity” to officers acting within its scope because “the fact that a neutral magistrate . .

. issued a warrant is the clearest indication that the officers acted in an objectively

reasonable manner or . . . in ‘objective good faith.’” Messerschmidt v. Millender, 565

U.S. 535, 546, 132 S. Ct. 1235, 1245 (2012) (quoting United States v. Leon, 468 U.S.

897, 922–923, 104 S. Ct. 3405 (1984)). But the fact that an arrest warrant issued in this

case does not end the inquiry. “‘Where the judicial finding of probable cause is based

solely on information the officer knew to be false or would have known was false had he

not recklessly disregarded the truth, not only does the arrest violate the Fourth

Amendment, but the officer will not be entitled to good faith immunity.’” Small v.

McCrystal, 708 F.3d 997, 1006–07 (8th Cir. 2013) (quoting Myers v. Morris, 810 F.2d

1437, 1457 (8th Cir.1987), abrogated on other grounds by Burns v. Reed, 500 U.S. 478,

111 S. Ct. 1934 (1991)). Under such circumstances, officers may still be entitled to

qualified immunity “‘if all the false and reckless portions of a warrant affidavit are

corrected and the corrected affidavit still supports a finding of probable cause.’” Id.

(quoting Bagby v. Brondhaver, 98 F.3d 1096, 1099 (8th Cir.1996)).

Defendants contend that Wheeler’s primary complaint is that the warrant affidavit

underlying his arrest should have stated that Langley had recanted his original statement

that implicated Wheeler in Green’s disappearance. Defendants argue that even if all

information about Langley’s statement were stricken from the affidavit, the remaining

testimony supplied probable cause for an arrest warrant. Wheeler, however, contends

that the probable cause affidavit contains two glaring omissions: (1) that Langley

completely recanted his September 17, 1995 statement13 and (2) that the December 2017

cadaver-dog searches uncovered no evidence of human remains or evidence connected to

Green.

13Langley recanted his original statement for the most part, but not completely. In March 2000,

Langley renounced the portion of his original statement implicating Wheeler, and he said that

“most” of his original statement was a lie. A portion of the original statement contained

information that corroborated facts in Green’s missing person case. For example, Langley’s

original statement included that Wheeler and Webb told him that they grabbed Green at Walmart

and “took care of him,” which corroborated the fact that Green’s car was discovered abandoned

in the Walmart parking.

It is undisputed that Sexton, Kidder, and Darnell knew that, contrary to the warrant

affidavit, Langley had renounced his initial statement and that Green’s body was never

recovered. Also undisputed is that the officers appeared before Judge Edwards and

sought a warrant for Wheeler’s arrest based on Sexton’s affidavit. Importantly, the

warrant affidavit is the sole evidence submitted in this case regarding evidence that was

presented to Judge Edwards before he issued the arrest warrant. Defendants report that

McCoy and the officers “visited with . . . Judge . . . Edwards and discussed with him the

issue of whether . . . there was probable cause to issue a bench warrant to arrest Brandon

Wheeler.” However, the record is void of evidence regarding the content of the

“discussion” before Judge Edwards.

The portion the warrant affidavit that described Langley’s initial statement was

arguably crucial to a finding of probable cause. Additionally, the affidavit falsely

indicated that cadaver dogs had located Green’s remains. The undisputed facts confirm

that such was not the case. Although the cadaver dogs showed an interest in the area

around a deer tree stand, the dogs did not recover physical evidence of a dead body, and

human remains were never found.

After removing the paragraph describing Langley’s incriminating statement and

the paragraph indicating that Green’s remains had been recovered, the warrant affidavit

contains the following pertinent information: (1) On October 5, 1994, Green’s father

reported that his twenty-year-old son, Jarrod, had been missing since September 30,

1994, when he left home to meet Wheeler about a drug debt; (2) after Green went

missing, his abandoned vehicle was discovered at the Walmart parking lot, with the

windows down and the keys in the floorboard; (3) the night of his disappearance, Green

obtained his revolver from a friend and stated that he was going to meet with Wheeler

and needed the weapon for protection; (4) weeks before Green went missing, he left

home in order to avoid someone, who Witness 3 “believed to be Brandon Wheeler[,]” but

Green returned home after receiving a phone call, telling him “he had nothing to worry

about and that no one was after him anymore[,]” and Green went missing two weeks after

he returned home; (5) the night that Green disappeared, he talked to his girlfriend and,

acting out of character, he cried and begged her to “come with him”; and (6)

approximately one week before Green went missing, he told a friend that he owed

Wheeler money for “dope” but had no intention of paying the debt. The affidavit also

includes vague information about the disappearance of Brandon Wheeler's roommate and

best friend, who had allegedly bragged about his involvement in Green’s disappearance,

and the suicide of another friend of Wheeler, who told his cousin, a pastor, about two

murders.

“For probable cause to exist, there must be probable cause for all elements of the

crime . . . . ” Williams v. City of Alexander, Ark., 772 F.3d 1307, 1312 (8th Cir.

2014)(citing Kuehl v. Burtis, 173 F.3d 646, 651 (8th Cir.1999)(holding that an officer

who ignored exculpatory evidence that negated the mens rea required for assault was not

entitled to qualified immunity for arrest without probable cause). In a homicide case, the

corpus delicti consists of proof that the victim died and that the death was caused by a

criminal act of another person. 14 Although a dead body is not required, there must be

circumstantial evidence that there was in fact a death caused by the criminal agency of

another. Derring v. State, 273 Ark. 347, 353, 619 S.W.2d 644, 647 (1981).

Here, the warrant affidavit did not establish that Green was a person of strict

routine or that he normally kept his family apprised of his whereabouts. In fact, the

affidavit stated that for a period before Green’s disappearance, he had left home to hide

from someone, and the day of his disappearance, he begged his girlfriend to “come with

him.” After editing out the incomplete and false portions of the warrant affidavit, the

remaining information was insufficient to establish that Green was dead and that his

death was caused by the criminal act of another person. Accordingly, the Court finds that

Sexton, Kidder, and Darnell are not entitled to qualified immunity as to Wheeler’s claim

that he was arrested and detained without probable cause.

In contrast, the Court finds no genuine issues for trial as to Wheeler’s claims

against separate defendants Perry and Webb. There is no respondeat superior liability in

' 1983 actions, and defendants sued in their individual capacities are personally liable

only for their own misconduct. Monell v. Dep t of Soc. Servs., 436 U.S. 658, 690-92

(1978); Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997). Wheeler alleges no facts

and provides no evidence that Perry had any role in the reopened investigation or events

14Under Arkansas law, a person commits capital murder if acting alone or with one or more other

persons, “with the premeditated and deliberated purpose of causing the death of another person,

the person causes the death of any person.” Ark. Code. Ann. § 5-10-101(a)(4).

that lead to Wheeler’s arrest, and the Court finds that he is entitled to summary judgment

in his favor.

Wheeler seeks to hold Webb liable under a failure-to-supervise theory, reasoning

that he gave the officers permission to reopen the missing person case, solely because the

they asked, and he failed to monitor the reopened investigation. A supervisor can be

liable for a subordinate’s constitutional violation only “‘if he directly participated in the

constitutional violation, or if his failure to train or supervise the offending actor caused

the deprivation.’” Otey, 121 F.3d at 1155 (quoting Tilson v. Forrest City Police Dep't, 28

F.3d 802, 806 (8th Cir.1994)). When, as here, a supervising officer had no participation

in an alleged constitutional violation, he is entitled to qualified immunity unless the

plaintiff proves that he (1) received notice of a pattern of unconstitutional acts committed

by the subordinate, and (2) authorized or demonstrated deliberate indifference to those

unconstitutional acts. deliberately indifferent to or authorized those acts. S.M. v.

Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015)(citing Livers v. Schenck, 700 F.3d 340, 355

(8th Cir. 2012)). Here, the record is void of evidence that Webb was deliberately

indifferent to or tacitly authorized unconstitutional acts, and the Court finds that he is

entitled to qualified immunity and summary judgment in his favor.

B. Official-Capacity Claims

Wheeler claims that the City’s failure to properly train its officers caused his

alleged constitutional deprivations. To establish municipal liability

under a failure-to-train theory, a plaintiff must prove that the failure to train in a relevant

respect demonstrated “deliberate indifference” to his constitutional rights. City of Canton

v. Harris, 489 U.S. 378, 389 (1989); Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir.1996).

Deliberate indifference in this context is a stringent standard of fault, requiring proof the

City had notice that its procedures were inadequate and likely to result in a violation of

constitutional rights. See id. Notice may be implied when (1) the failure to train is so

likely to result in a constitutional violation that the need for training is patently obvious

or (2) a pattern of misconduct indicates that the current training is insufficient to protect

citizens’ constitutional rights. See Id.

The City submits undisputed evidence that each defendant received basic law

enforcement training and that at all relevant times, the City’s policies required that

officers had probable cause for making an arrest and provided accurate and complete

information in seeking an arrest warrant. Wheeler, on the other hand, fails to come

forward with a single fact showing that the City had notice that its training procedures

were inadequate and likely to result in wrongful arrest. The Court finds that the City is

entitled to summary judgment.

C. Intentional Infliction of Emotional Distress

Under Arkansas law, a claim for intentional infliction of emotional distress, also

known as outrage, has four elements: (1) the defendant intended to inflict emotional

distress or should have known that emotional distress was the likely result of its conduct;

(2) the defendant’s conduct was extreme and

outrageous, beyond all possible bounds of decency, and utterly intolerable in a civilized

community; (3) the defendant’s conduct caused the plaintiff emotional distress; and (4)

the plaintiff’s emotional distress was so severe that no reasonable person could be

expected to endure it. Crockett v. Essex, 341 Ark. 558, 563-64 (2000).

Defendants move for summary judgment on Wheeler’s outrage claim, asserting

that the warrant affidavit contained no falsehoods and established probable cause to arrest

Wheeler. For reasons previously stated, the veracity of the warrant affidavit at issue is

questionable, and when the inaccurate portions are redacted, the remaining content does

not support a finding of probable cause. Wheeler contends that resolution of his outrage

claim requires credibility determinations and weighing of evidence by a jury, and the

Court agrees. Murray v. Wal-Mart, Inc., 874 F.2d 555, 560 (8th Cir. 1989)(finding that

evidence of detention, search, and prosecution for shoplifting without probable cause

“smacks of exactly the type of ‘intentional infliction’ to which this cause of action

refers”).

III.

For the reasons stated, Defendants’ motion for summary judgment [ECF No. 19] is

GRANTED IN PART AND DENIED IN PART. The motion is granted to the extent that

Plaintiff’s claims against Separate Defendants Eric Webb, Charles Perry, and the City

are DISMISSED WITH PREJUDICE. The motion is denied in all other respects.

IT IS SO ORDERED THIS 27th DAY OF MAY, 2020.

/s/Susan Webber Wright

UNITED STATES DISTRICT JUDGE