Harrison v. Faughn

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

NORTHERN DIVISION

DANA HARRISON, et al. PLAINTIFFS

V. NO. 3:18-CV-00214-ERE

BRODIE FAUGHN, et al. DEFENDANTS

OPINION AND ORDER

Pending before the Court1 is Defendants’ motion for reconsideration and

supporting brief (Docs. 129, 130), asking the Court to revisit its rulings on the issues

of municipal liability and bifurcation. Plaintiffs have filed a response in opposition

(Doc. 131), and the motion is ripe for review.

After careful consideration, and for reasons that follow, the motion for

reconsideration is granted as to the issue of municipal liability. All official-capacity

claims, which are claims against the City, are dismissed with prejudice because the

City is entitled to summary judgment. With respect to the three remaining claims

involving three separate, unrelated incidents, the Court believes separate trials or

phases are likely necessary to avoid undue prejudice but seeks the parties’ input

before making a final decision.

1 The parties previously consented in writing to the jurisdiction of a United States

Magistrate Judge. Doc. 39.

I. Background

On November 8, 2018, multiple plaintiffs filed this lawsuit under 42 U.S.C. §

1983, alleging that Defendant Brodie Faughn, a Wynne, Arkansas police officer,

violated their Fourth Amendment rights related to a traffic stop or arrest. Doc. 1.

Some Plaintiffs also brought claims against Wynne police officer Brittany Eskridge.

In addition, each Plaintiff sued Wynne Police Chief Jeff Sanders, Wynne Mayor

Robert Stacy, and members of the Wynne City Council, alleging that each of these

defendants ignored multiple complaints about Officer Faughn’s conduct, thus

contributing to their injuries.

Plaintiffs sued each defendant in his or her individual and official capacities,

and redundant to the official-capacity claims, they also named the City of Wynne as

a defendant. See Parrish v. Ball, 594 F.3d 993, 997 (8th Cir. 2010) (noting that “[a]

suit against a public official in his official capacity is actually a suit against the entity

for which the official is an agent.”).

The parties and claims have narrowed since 2018. Four Plaintiffs voluntarily

dismissed their claims without prejudice (Docs. 76,77), and all Plaintiffs voluntarily

dismissed individual-capacity claims against city council members (Docs. 36, 38).

On July 15, 2020, Defendants filed a joint motion for summary judgment, asserting

among other things that the individual Defendants were entitled to qualified

immunity and that Plaintiffs lacked evidence to support their claims against the City.

Doc. 69 at 31-42.

On March 3, 2021, the Court granted summary judgment in favor of Officer

Faughn as to several Plaintiffs’ individual-capacity claims but found: “With so many

facts remaining in dispute, the Court cannot decide questions of qualified immunity

or municipal liability at this stage of the litigation.” Doc. 100 at 14.

On March 24, 2021, Defendants Faughn, Sanders, and Stacy filed notice of

interlocutory appeal regarding qualified immunity. Doc. 107. While the appeal was

still pending, Defendants Sanders and Stacy filed a motion in this Court requesting

a specific ruling as to their assertion of qualified immunity. Docs. 110, 111. On May

25, 2021, the Court granted that motion, stating: “Because questions of fact remain

about their knowledge of officer misconduct, Defendants Sanders and Stacy are not

entitled to qualified immunity. Likewise, disputed facts remain regarding municipal

liability.” 2 Doc. 120 at 2.

In a July 1, 2022 opinion, the Eighth Circuit held that: (1) officer Faughn was

entitled to qualified immunity as to individual capacity claims by James O’Hara and

Christa Hess (Doc. 124 at 8-10); and (2) Chief Sanders and Mayor Stacy were

2 On May 28, 2021, following Magistrate Judge Beth Deere’s retirement, this case was

reassigned to the undersigned Magistrate Judge.

entitled to qualified immunity as to all individual capacity claims against them. Doc.

124 at 10-11.

Plaintiffs sought to hold Chief Sanders and Mayor Stacy individually liable

for Officer Faughn’s alleged unconstitutional actions, alleging that both officials had

received notice of Officer Faughn’s behavior but failed to stop it. Id. at 10. The

Eighth Circuit noted that Chief Sanders and Mayor Stacy could be liable in their

supervisory capacities only if: (1) they had notice of a pattern of unconstitutional

acts committed by Officer Faughn; (2) were deliberately indifferent to or tacitly

authorized those acts; and (3) failed to take sufficient remedial action; and (4)

proximately caused Plaintiffs’ injuries. Id. (quoting Livers v. Schenk, 700 F.3d 340,

355 (8th Circ. 2012). The Court of Appeals held that even assuming Chief Sanders

and Mayor Stacy knew about the citizen complaints against Officer Faughn,

Plaintiffs failed to present evidence that either official subjectively knew of and

deliberately disregarded a substantial risk of unconstitutional harm posed by Officer

Faughn. Id. at 11.

On July 6, 2022, the Court dismissed claims according to the Eighth Circuit’s

mandate, issued July 1, 2022 (Doc. 126), and directed the parties to file a joint status

report specifying the remaining claims. Doc. 128. The parties filed a joint status

report agreeing that the following claims remain: (1) Dana Harrison’s unlawful

search claim against Officer Eskridge; (2) Shane Willard’s unlawful seizure claim

against Officer Faughn; (3) Alvin Miller’s unlawful stop and arrest claim against

Officer Faughn and (4) Plaintiffs’ claims against the City. Doc. 135 at 2.

II. Motion for Reconsideration of Municipal Liability

The City argues that there are no genuine issues for trial as to municipal

liability and asks the Court to reconsider the earlier decision denying summary

judgment. Docs. 129, 130. Considering the Eighth Circuit’s conclusion that “no

evidence in the record supports a finding that either Sanders or Stacy subjectively

knew of and deliberately disregarded a substantial risk of unconstitutional harms

posed by Faughn,” the Court agrees. Doc. 124 at 11.

In deciding Defendants’ motion, the Court is mindful that under the law of the

case doctrine, “when a case has been decided by an appellate court and remanded

for further proceedings, every question decided by the appellate court, whether

expressly or by necessary implication, is finally settled and determined, and the court

on remand is bound by the decree and must carry it to execution . . . . ” Thompson v.

C.I.R., 821 F.3d 1008, 1011 (8th Cir. 2016) (citing Klein v. Arkoma Prod. Co., 73

F.3d 779, 784-85 (8th Cir.1996)).

A. Municipal Liability Under § 1983

Just as Chief Sanders and Mayor Stacy could not be held liable in their

individual capacities based on their status as supervisors, “a municipality cannot be

held liable solely because it employs a tortfeasor—or, in other words, a municipality

cannot be held liable under § 1983 on a respondeat superior theory.” Monell v.

Department of Social Services of City of New York, 436 U.S. 658, 691 (1978)

(emphasis in original). Section 1983 liability is imposed against a municipality only

where a constitutional violation resulted from: (1) an “action pursuant to official

municipal policy” or (2) misconduct so pervasive among non-policymaking

employees of the municipality “as to constitute a ‘custom or usage’ with the force

of law.” Mitchell v. Kirchmeier, 28 F.4th 888, 899 (8th Cir. 2022) (quoting Ware v.

Jackson County, Mo., 150 F.3d 873, 880 (8th Cir. 1998)). Municipal policies and

practices that may give rise to § 1983 liability include deliberately indifferent

training or supervision of employees. City of Canton v. Harris, 489 U.S. 378, 388

(1989); see also Atkinson v. City of Mountain View, 709 F.3d 1201, 1216 (8th Cir.

2013). Regardless of the policy or practice at issue, a plaintiff must show that it was

the “moving force [behind] he constitutional violation.” Monell, 436 U.S. at 694; see

also Board of Comm’rs v. Brown, 520 U.S. 397, 400 (1997) (“The plaintiff must . .

. demonstrate that, through its deliberate conduct, the municipality was the “moving

force” behind the injury alleged.”).

B. Summary Judgment Record

Plaintiffs have acknowledged they do not claim that a written municipal

policy is to blame for their alleged injuries. Doc. 80 at 8. Instead, they contend that

their injuries resulted from the City’s custom of ignoring citizen complaints about

Officer Faughn. Id.; see also Doc. 26 at 3. In their second amended complaint,

Plaintiffs alleged that despite knowledge of Officer Faughn’s misconduct, “all the

Defendants who [were] municipal decision makers . . . stood silent and allowed

Faughn and Eskridge3 to run amok as their own tag team vigilante force within the

city.” Id.

In moving for summary judgment, the City presented evidence that Chief

Sanders believed that citizen complaints against Officer Faughn had been

investigated and determined to be without merit. Doc. 68-4 at 14-16 (Sanders Dep.).

The City’s evidence also included the affidavits of William Colvin and Jeff Stewart,

former Wynne police lieutenants who were responsible for investigating citizen

complaints during the relevant period. Id. at 21-22 (Colvin Aff.), 23-24 (Stewart

Aff.). The former officers stated that after they investigated a complaint, which

included reviewing any available body camera footage, they would report their

3 Dana Harrison is the only plaintiff with a claim against Officer Brittany Eskridge. She

alleges that on December 6, 2017, Officer Eskridge subjected her to an intrusive, public body

search in violation of the Fourth Amendment. Doc. 26 at 6-7. Ms. Harrison has produced no

evidence that City officials ignored citizen complaints regarding misconduct committed by Officer

Eskridge before December 6, 2017.

The record includes a single citizen complaint against Defendant Eskridge, the one Ms.

Harrison submitted two days after the December 6 incident, complaining that Officer Faughn

stopped her car for false reasons and accused her of using drugs, and a “lady officer” on the scene

performed an intrusive body search. Doc. 79-9 at 22-23; see also footnote 4, infra, summarizing

all citizen complaints relied upon by Plaintiffs.

In conclusion, there is simply no evidence that the City’s failure to remedy a known pattern

of misconduct by Officer Eskridge was the moving force behind the alleged unreasonable search

of Ms. Harrison’s person on December 6, 2017.

findings to Chief Sanders. The City also offered evidence that Mayor Stacy received

“a couple” of complaints concerning Officer Faughn, and he reviewed body camera

footage related to one complaint; however, his normal practice was to refer citizen

complaints about police conduct to Chief Sanders. Doc. 68-4 at 19 (Stacy Dep.).

In opposition to summary judgment, Plaintiffs presented copies of citizen

complaints against Officer Faughn (Doc. 79-7), 4 which attorney Carter Dooley had

presented to city council members and Mayor Stacy, who then forwarded the

complaints to Chief Sanders. Doc. 80 at 8. Plaintiffs also provided the transcript of

4 The following is a brief summary of the citizen complaints provided by Plaintiffs: (1)

complaint by non-party Katelyn Williams, dated September 5, 2017, stating that Officer Faughn

arrested her for DUI and pulled her out of her car, causing her to reinjure and dislocate her shoulder

(Doc. 79-7 at 1-6); (2) complaint by non-party Kenneth W. Nettles, dated January 15, 2018, stating

that he was only chewing gum while working as a truck driver, when Officer Faughn arrested him

for trying to chew and swallow drugs, twisted his arm, and caused him to lose his job (Id. at 7-9);

(3) complaint by non-party Janet Partain, dated September 22, 2017, stating that Officer Faughn

played “peek-a-boo” with students in a special education class (Id. at 10); (4) complaint by former

Plaintiff, Stephanie Sturgeon, dated November 20, 2017, stating that after she declined Officer

Faughn’s request for a date, he harassed her and stopped her car multiple times (Id. at 12-17); (5)

complaint by non-party Candy McCoy Hunt, dated July 26, 2017, stating that Officer Faughn

stopped her car, asked if she had been drinking, and gave her a ticket (Id. 18-19); (6) complaint by

non-party Veronica Blake, dated September 20, 2017, stating that Officer Faughn arrested her for

DUI, which caused her to lose her job and get a divorce (Id. at 20-21); (7) complaint by Plaintiff

Dana Harrison, dated December 8, 2017, stating that on December 6, 2017, Officer Faughn

stopped her car for false reasons and accused her of using drugs, a “lady officer” on the scene

(Defendant Brittany Eskridge) performed an intrusive body search, and Officer Faughn

confiscated hydrocodone pills from her purse (Id. 22-23); (8) complaint by non-party Alanna

Johnson, dated November 9, 2017, stating that Officer Faughn approached her, with her daughter

present, and falsely accused her of having improper car seats and threatened that he would pull her

over again and send her children to DHS (Id. at 24-25); (9) complaint by former Plaintiff Chrissy

Duncan, dated September 26, 2016, stating that Officer Faughn stopped her that day for improper

tags and was abusive to her and her daughter (Id. at 26-27); (10) complaint by former Plaintiff

Chrissy Duncan, dated October 7, 2016, stating that Officer Faughn refused to change her court

date (Id. at 28-29); (10) complaint by former Plaintiff Whitney Tracy, listing multiple grievances

concerning a traffic stop by Officer Faughn which resulted in her arrest. Id. at 30-47.

Mayor Stacy’s April 19, 2018 deposition in a separate, state court case filed against

Officer Faughn. Doc. 79-9. There, Mayor Stacy acknowledged that Mr. Dooley had

provided him and city council members with written complaints against Officer

Faughn. Id. at 10-12. In addition, Mayor Stacy explained that he referred citizen

complaints about police officers to Chief Sanders. Id. at 17-18.

C. Analysis

“Municipal liability attaches only where the decisionmaker possesses final

authority to establish municipal policy with respect to the action ordered.” Pembaur

v. City of Cincinnati, 475 U.S. 469, 481 (1986); see also Jett v. Dallas Independent

School Dist., 491 U.S. 701, 737 (1989) (stating it is necessary to identify “those

officials or governmental bodies who speak with final policymaking authority for

the [City] concerning the action alleged to have caused the particular constitutional

. . . violation at issue.”). Given Plaintiffs’ allegation that the City had a custom of

ignoring citizen complaints about Officer Faughn and that “all decisionmakers”

allowed him to “run amok,” it is necessary to determine the City’s final

decisionmaker or policymaker with respect to officer personnel actions such as

training, supervision, and discipline. It is for the Court, not a jury, to make this

determination by consulting: “(1) ‘state and local positive law’ and (2) ‘state and

local ‘custom or usage’ having the force of law.’” Atkinson v. City of Mountain View,

Mo., 709 F.3d 1201, 1215 (8th Cir. 2013) (quoting Jett, 491 U.S. at 737). “This

question of law must be answered before determining whether there are genuinely

disputed material facts as to whether a policy or custom resulted in the predicate

constitutional violation.” Long v. Smith, No. 2:19-cv-00061-LPR, ECF No. 81 at 36,

2022 WL 906352 at *20 (E.D. Ark. March 28, 2022).

Wynne, Arkansas qualifies as a city of the first class under Arkansas law. See

Ark. Code Ann. § 14-37-103(a)(1) (stating that “municipal corporations having over

two thousand five hundred (2,500) inhabitants shall be deemed cities of the first

class”); https://www.census.gov/quickfacts/wynnecityarkansas (showing population

estimate for Wynne, Arkansas at 8,275) (last visited July 22, 2022). Arkansas law

charges the governing body of a city of the first class, here the city council, with

establishing a police department and providing it the proper means and resources to

carry out law enforcement services to citizens. See Ark. Code Ann. 14-52-101(a).

However, state law provides that “the duty of the chief of police and other officers

of the police department is under the direction of the mayor.” Ark. Code Ann. § 14-

52-203(a).

Arkansas law also charges the chief of police with executing “all process

directed to him by the mayor[,]” and provides that the police chief may appoint

deputies and is responsible for the acts of the deputies. Ark. Code Ann. § 14-52-

202(a). These statutory provisions make clear that Mayor Stacy and Chief Sanders,

not the city council, are charged with the day-to-day supervision of a police

department and serve as policy-making officials over personnel decisions regarding

police officers.

The Court now turns to whether issues for trial remain as to actions on the part

of Mayor Stacy or Chief Sanders. In the absence of a facially unconstitutional

municipal policy, where “it is asserted that a municipality should have done more to

prevent constitutional violations by its employees, a plaintiff must establish the

existence of a ‘policy’ by demonstrating that the inadequacies were a product of

deliberate or conscious choice by policymakers.” Szabla v. City of Brooklyn Park,

Minnesota, 486 F.3d 385, 390 (8th Cir. 2007) (citing City of Canton v. Harris, 489

U.S. 378, 389 (1989)). Whether the theory of liability is based on an unofficial

custom or practice or a failure to train or supervise, a plaintiff must demonstrate that

the municipal action at issue was taken with deliberate indifference as to its known

or obvious consequences. Id. (applying the deliberate indifference standard of fault

where plaintiff claimed that city’s failure to train resulted in the use of excessive

force); Brewington v. Keener, 902 F.3d 796, 801 (8th Cir. 2018) (noting that

municipal liability based on an unwritten or unofficial policy requires proof that

policymaking officials demonstrated deliberate indifference to a continuing,

widespread, persistent pattern of unconstitutional misconduct by government

employees).

Even assuming a pervasive pattern of unconstitutional conduct by Officer

Faughn, the Eighth Circuit’s conclusion that “no evidence in the record supports a

finding that either Sanders or Stacy subjectively knew of and deliberately

disregarded a substantial risk of unconstitutional harms posed by Faughn” (Doc. 124

at 11) is fatal to Plaintiffs’ claim against the City.5

III. Motion for Reconsideration-Bifurcation of Trial

On May 25, 2021, the Court denied Defendants’ motion to bifurcate, asking

the Court to hold a separate trial for each Plaintiff’s claim(s). Docs. 112, 120.

Defendants now ask the Court to reconsider that ruling and “hold a separate trial for

each Plaintiff against the appropriate Defendant.” Doc. 130 at 5. Alternatively,

5 In opposition to the City’s motion for reconsideration, Plaintiffs argue that they have

presented “sufficient facts to present a jury question as to whether the mayor and police chief were

derelict in their duties to supervise the officers.” Doc. 131 at 1. According to Plaintiffs, a jury

should decide whether: (1) Mayor Stacy should have “taken the matter” before the city council;

(2) Chief Sanders should have permitted an “underling” to decide whether complaints against

Officer Faughn were valid; (3) citizen complainants should have been permitted to voice their

concerns in person; and (4) city officials held any bias against the complainants. Id. at 2.

Deliberate indifference is the “standard of culpability sufficient to identify a dereliction as

reflective of municipal policy and to sustain a claim of municipal liability for failure to train [or

supervise] an employee who causes harm by unconstitutional conduct for which he would be

individually liable.” Sacramento v. Lewis, 523 U.S. 833, 850 n.10 (1998) (citing Canton v. Harris,

489 U.S. 378, 388–389 (1989)). Here, the Eighth Circuit concluded that Plaintiffs failed to present

evidence to create material issues of fact regarding deliberate indifference on the part of Mayor

Stacy or Chief Sanders, specifically stating that “no evidence in the record supports a finding that

either Chief Sanders or Mayor Stacy subjectively knew of and deliberately disregarded a

substantial risk of unconstitutional harms posed by Faughn . . . . ” Doc. 124 at 11. The Eighth

Circuit’s determination stands as the law of this case and forecloses Plaintiffs’ official capacity

claims against Wynne’s mayor and chief of police, as well as the claim against the City of Wynne.

Defendants ask the Court to try Plaintiff Harrison’s illegal search claim against

Officer Eskridge separate from Plaintiff Willard’s and Plaintiff Miller’s unlawful

stop and arrest claims against Officer Faughn. Id. Defendants argue: “Defendant

Eskridge would be greatly prejudiced by having her case tried at the same time as

unrelated claims against a different Defendant by different Plaintiffs.” Doc. 130 at

5.

When multiple plaintiffs and/or defendants are permissively joined in one

action, “[t]he court may issue orders—including an order for separate trials—to

protect a party against embarrassment, delay, expense, or other prejudice that arises

from including a person against whom the party asserts no claim and who asserts no

claim against that party.” Fed. R. Civ. P. 20(b). In addition, Rule 42(b) provides that

for convenience, to avoid prejudice, or when separate trials would be conducive to

expedition and economy, a court may order a separate trial of any claim or issue in

a case.

With the dismissal of Plaintiffs’ claims against the City and Plaintiff

Harrison’s claims against Officer Faughn, the remaining claims no longer present

common questions of fact or law such that judicial economy would be served by

trying them together. Additionally, there is a strong argument that both Defendant

Faughn and Eskridge will suffer prejudice if Plaintiffs’ separate claims are tried to

the same jury at one time. The Court is considering selecting two juries and trying

the remaining claims in three separate phases.° The Court invites the parties to

comment on this proposal or to offer an alternative plan for fairly and efficiently

resolving the remaining claims.

IV. Conclusion

IT IS THEREFORE ORDERED that Defendants’ motion for reconsideration

(Doc. 129) is GRANTED IN PART AND DENIED IN PART. The Court grants

summary judgment in favor of the City of Wynne, Arkansas, and all official capacity

claims are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that the parties have up to and including Friday,

August 5, 2022 to file objections or an alternative to the Court’s proposal.

Dated this 27th day of July, 2022.

Aff MEZLVvr_.

UNITED STATES MAGISTRATE JUDGE

6 The Court envisions selecting two juries. The first jury would decide, separately, the claim

against Officer Eskridge and one of the claims against Officer Faughn. The second jury would

decide the other claim against Officer Faughn.

14