The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
STEVEN V. WARREN PLAINTIFF
No. 3:20-cv-79-DPM
GERALD GOZA, Police Chief,
City of Egypt, Individually and in
his Official Capacity; CITY OF
EGYPT; JERRY COOK, Mayor,
Individually and in his Official
Capacity; and VELVA JOY
LINGO, Clerk/Record for City of
Egypt, Individually and in her
Official Capacity DEFENDANTS
ORDER
1. The many claims in this case arise from encounters between
a citizen and some city officials in Egypt, Arkansas, a small town a few
miles southwest of Jonesboro. Steven Warren is a long-time resident
and former seasonal employee of Egypt. Warren grew concerned about
allegations that Egypt was operating a speed trap. He began looking
into city officials’ backgrounds, making Freedom of Information Act
requests, attending city council meetings, and posting on social media
about city officials and their interactions with him. He was fired in
2019. He began to question the credentials of the Egypt chief of police,
Gerald Goza. Warren learned that Chief Goza had been fired from
police departments in neighboring towns before Egypt’s mayor, Jerry
Cook, hired Goza in 2017. Warren says that Chief Goza, Mayor Cook,
and the city clerk, Velva “Joy” Lingo, conspired to prevent him from
presenting his findings to the city council. He also contends that they
retaliated against him—by having him arrested twice and by filing
orders of protection against him. He faults Egypt for having poor
policies, providing inadequate training, and exercising inadequate
oversight. He has sued these three city officials, as well as Egypt itself.
Appendix A lists Warren’s many federal and state claims by defendant,
as well as the Court's rulings on the motion for summary judgment by
the officials and Egypt.
With one caveat, where some genuine dispute of material fact
exists, the Court has taken the record in the light most favorable to
Warren. Oglesby v. Lesan, 929 F.3d 526, 532 (8th Cir. 2019). The caveat:
This record contains several videos of Warren’s encounters with Chief
Goza, Clerk Lingo, and a deputy sheriff, whom Warren has not sued.
When testimony by affidavit or deposition blatantly contradicts a
video, the Court has accepted what the video shows as the truth about
what happened. Scott v. Harris, 550 U.S. 372, 380 (2007).
2. Some threshold points. Egypt and its officials prevail on
Warren’s Fifth Amendment, Eighth Amendment, and official capacity
claims. The Fifth Amendment claims fail to state a claim because
Warren hasn’t named any federal defendants or alleged any federal
action. Jackson v. Stair, 944 F.3d 704, 709 (8th Cir. 2019). Warren wasn’t
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a convicted prisoner, so his Eighth Amendment claim must be analyzed
under the Fourteenth Amendment. This distinction is for precision;
these constitutional provisions offer Warren the same protection in the
circumstances presented. Hott v. Hennepin County, 260 F.3d 901, 905
(8th Cir. 2001). Precedent in this circuit is clear that strip searches and
cavity searches are constitutional. Story v. Foote, 782 F.3d 968, 971 (8th
Cir. 2015). His substantive due process claims therefore fail as a matter
of law. Warren’s official capacity claims against Chief Goza, Mayor
Cook, and Clerk Lingo duplicate his claims against the city of Egypt.
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). These duplicative
claims will be dismissed without prejudice.
3. All the false arrest claims turn on whether Chief Goza had
arguable probable cause to arrest Warren. If it existed, Chief Goza is
entitled to qualified immunity for the arrests. Brown v. City of St. Louis,
40 F.4th 895, 901 (8th Cir. 2022). Even if Chief Goza was operating
under a mistaken belief that Warren had committed a criminal offense,
he remains entitled to qualified immunity if his mistake was objectively
reasonable in the circumstances at the time of the arrests. Quraishi v. St.
Charles County, 986 F.3d 831, 836 (8th Cir. 2021). Whether arguable
probable cause existed is a question of law. Hosea v. City of St. Paul, 867
F.3d 949, 955 (8th Cir. 2017).
The 13 August 2019 Arrest. The day before and the morning of
his first arrest, Warren submitted several written FOIA requests to
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Clerk Lingo. Among other things, Warren sought documents from
Chief Goza’s personnel file, including copies of “preemployment
records” and any complaints by town citizens made against him. Doc.
24-8 & 24-13. He followed up in person at city hall, making additional
oral requests to Clerk Lingo to review public records.
Warren and Clerk Lingo dispute the nature of their encounter.
But the videos show much of what happened that morning. They
record that Warren and Clerk Lingo disagreed about whether Warren
had the right to review immediately any available records covered by
his FOIA requests. Warren settled in at a table in the city hall lobby,
unpacking his computer, water bottle, and other items. His voice was
raised, but Warren remained respectful and minded his manners, never
failing to say “please” and “thank you, ma’am” when appropriate. He
never got unruly. Warren was vexed by Clerk Lingo’s responses to his
requests. He became a bit agitated. Clerk Lingo was patient and calm
at first. She knew Warren well. And she knew he had hearing
difficulties. As the encounter continued, though, she grew weary of
dealing with Warren. She retreated to her office and closed the door.
Unsure how to handle the situation, Clerk Lingo made four calls:
(1) to the city attorney; (2) to Mayor Cook; (3) to Chief Goza, who did
not answer; and (4) to 911. It was approximately fifteen minutes after
Warren arrived at city hall, asking to inspect the records, that Clerk
Lingo called 911. She told the dispatcher that she was alone at city hall
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and that there was a white male “causing a scene and refusing to leave.”
Doc, 24-21. The dispatcher notified Chief Goza, who then called Lingo
to tell her he was on his way. Chief Goza also knew Warren well.
Craighead County Deputy Sheriff Jerry Roth was closer than
Chief Goza to city hall and got there first. He spoke briefly with Clerk
Lingo in her office, and then returned to the main room. He asked
Warren about his FOIA requests. Chief Goza arrived at city hall as
Deputy Roth and Warren were speaking. Goza accused Warren of
having raised his voice at Clerk Lingo. Warren replied that he had the
encounter “on tape,” and he told Chief Goza that if he had raised his
voice, it was due to his impaired hearing. Deputy Roth asked Warren
why he needed the FOIA information he’d requested, but Warren
refused to tell him. Chief Goza told Deputy Roth: “We've been having
trouble with [Warren] . . . and the mayor’s wanting him arrested
because he has been threatening her.” At that time, Lingo approached.
She and Chief Goza went to her office to speak, while Warren and
Deputy Roth remained in the lobby area. When Chief Goza returned,
he immediately arrested Warren for disorderly conduct and escorted
him out of city hall.
Chief Goza’s subjective reason for arresting Warren makes no
legal difference. Devenpeck v. Alford, 543 U.S. 146, 153-56 (2004). He is
entitled to qualified immunity if he can demonstrate that arguable
probable cause existed to arrest Warren for any criminal offense. Ibid.
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Chief Goza argues that he had arguable probable cause to arrest Warren
for disorderly conduct, obstructing governmental operations, or
harassment.
Chief Goza testified on deposition that he arrested Warren for
disorderly conduct after he observed Warren “screaming” loudly
enough to be heard outside and “bumping up... in a threatening
manner, blowing up, and bouncing around,” to a degree that the police
“couldn't get him to calm down to talk” to them. Doc. 24-23 at 19. The
video footage contradicts this version of events. Warren remained
seated throughout the encounter with the officers. His voice was
raised, but the volume wasn’t unreasonable. To be sure, Warren was
clearly agitated with the way events were unfolding. But his behavior
was not disruptive enough either to violate Arkansas’ disorderly
conduct statute or to cause a reasonable officer to conclude that he
might have violated the statute. ARK. CODE ANN. § 5-71-207; M.J. v.
State, 2011 Ark. App. 171, 381 S.W.3d 880 (2011); Thurairajah v. City of
Fort Smith, 925 F.3d 979, 983-84 (8th Cir. 2019). Public servants must be
patient with everyone they encounter, especially with those such as
Warren who try that patience. On this record, Chief Goza did not have
arguable probable cause to arrest Warren for disorderly conduct.
The videos also undermine Chief Goza’s contention that he had
arguable probable cause to arrest Warren for obstructing governmental
operations. ARK. CODE ANN. § 5-54-102. Warren didn’t obstruct the
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officers’ ability to question him. One video shows that when Deputy
Roth asked him who he was, Warren replied that he was a citizen
making a FOIA request. Deputy Roth did not press the issue. By the
time the Deputy had finished talking to Clerk Lingo, he knew Warren’s
identity. After that, Warren answered Deputy Roth’s questions about
why he was at city hall. At one point, Warren told Roth he did not want
to have any further conversation. But, Warren continued answering
the Deputy’s questions even after he said he didn’t want to do so. Doc.
24-16 at 7:48-8:55. On this record, Chief Goza hasn’t established that
he or Deputy Roth witnessed any behavior by Warren that would
provide arguable probable cause to support an arrest for obstructing
governmental operations.
The last potentially applicable crime is harassment. ARK. CODE
ANN. § 5-71-208. “A person commits the crime of harassment if, with
purpose to harass, annoy, or alarm another person, without good cause,
he or she...” takes any of various listed actions. ARK. CODE ANN. § 5-
71-208(a). The provision most applicable here forbids conduct “that
alarms or seriously annoys another person and that serves no legitimate
purpose.” ARK. CODE ANN. § 5-71-208(a)(5).
After Chief Goza arrived at city hall, he spoke briefly with Clerk
Lingo, didn’t consult with Deputy Roth, and didn’t ask Warren any
questions at all. Whether Goza could have reasonably believed
Warren’s conduct was intended to alarm or seriously annoy Lingo
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hinges on what a reasonable police officer would have perceived when
speaking to her and taking the whole situation in. And there are
material facts in genuine dispute about all those things.
The videos are not dispositive—because they don’t show
everything that happened. Most importantly, they do not show Clerk
Lingo inside her office, where she spent some time on the phone,
including with Chief Goza. And the Court must consider the situation
from a responding officer’s perspective. First, Chief Goza received a
call from the 911 dispatcher. The “dispatch call detail” document refers
to an “unwanted guest” call describing a white male “causing a scene
and refusing to leave.” Doc. 24-21. Chief Goza then called Clerk Lingo.
He testified on deposition that he let Lingo know that a deputy sheriff
was on his way, but “didn’t hold a full conversation with her.” Doc.
24-23 at 18-19.
What Lingo said to the officers, and how she appeared to them, is
disputed. On the one hand, Chief Goza testified that Lingo was crying
and acting “terrified.” Ibid. She testified that she was crying when she
spoke with both Deputy Roth and Chief Goza at the scene. Doc. 24-6 at
10. If the police officers perceived such great alarm coming from Lingo,
the case for arguable probable cause is stronger. On the other hand, the
videos show no crying or terror. Clerk Lingo does not appear to have
been crying when Chief Goza’s call came through to her cell phone,
Doc. 24-22 at 1:30, when she and Deputy Roth emerged from her office,
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Doc. 24-16 at 6:50, or when she and Chief Goza entered her office to
speak just before the arrest, Doc. 24-16 at 8:25. The videos could
support a finding that Lingo was neither crying nor terrified when she
spoke to police. United States v. Hirani, 824 F.3d 741, 747 (8th Cir. 2016).
What Lingo said to the officers, how she said it, and how she appeared,
will determine whether a reasonable officer would have had arguable
probable cause to arrest Warren for harassment on August 13th.
The 22 August 2019 Arrest. Several days later, Chief Goza
arrested Warren again for disorderly conduct. The parties’ versions of
this encounter vary considerably. There is no video. Chief Goza argues
that he had arguable probable cause on August 22nd to arrest Warren
for either disorderly conduct or assault.
Warren approached Chief Goza as he sat in his patrol car on the
street. According to Goza, Warren flung open his car door, threw paper
into the car, and then yelled and cursed at Chief Goza so loudly that a
neighbor across the street sent her children inside. Doc. 24-23 at 21.
Warren testified, however, that he never raised his voice and never
cursed. He said he tried to leave throughout their encounter, but Chief
Goza kept following him. Doc. 24-1 at 34. Here, too, the jury must
answer the disputed fact questions before the Court can decide whether
the arrest for disorderly conduct was supported by arguable probable
cause.
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Whether arguable probable cause existed for assault depends on
what happened after Warren approached the patrol car. Again, Chief
Goza says Warren opened the car door and forcefully threw paper on
him. Warren responds that Chief Goza opened the car door to speak to
him, and then Warren tried to hand him a piece of paper. Doc. 24-1 at
24. According to Warren, Goza refused to accept it, so Warren let the
paper flutter to Goza’s lap. What happened with the piece of paper is
another genuinely disputed material fact that must be resolved at trial.
The false arrest claim about the August 22nd arrest goes forward.
4. Egypt argues that Warren’s claims against it should be
dismissed because Warren has failed to point to a policy or custom that
was the moving force behind his alleged constitutional violations.
Monell v. Department of Social Services, 436 U.S. 658, 690 (1978). Warren
responds first that the city had a custom of letting its officers do
whatever they pleased. But a municipality cannot be held liable for
merely failing to implement a policy that limits its officers’ discretion,
even if the policy would have prevented the officers’ unconstitutional
acts. Atkinson v. City of Mountain View, 709 F.3d 1201, 1216 (8th Cir.
2013). Warren also faults the city for its failure to train Chief Goza in
handling minor offenses or evaluating probable cause. This is not a
pleaded claim. In any event, Warren has not provided evidence
sufficient to support a verdict that Egypt had notice of a pattern of
conduct —that Chief Goza routinely arrested people without having
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arguable probable cause. Ibid. Finally, Warren implies that Mayor
Cook knew that Chief Goza was violating social security laws by
working for the city. That issue is not a solid basis for any stand-alone
claim against the city in this case. Egypt is entitled to summary
judgment on Warren’s claims.
5. | Warren made no response to the city officials’ motion for
summary judgment on his malicious prosecution claim. He therefore
waived his right to respond on that point. Satcher v. University of
Arkansas at Pine Bluff Board of Trustees, 558 F.3d 731, 734-35 (8th Cir.
2009). It is not the Court’s place to search the record looking for factual
disputes. Rodgers v. City of Des Moines, 435 F.3d 904, 908 (8th Cir.
2006). But, the Court has studied the videos to address other claims,
and they create jury issues here, too.
Did the city officials have arguable probable cause to pursue any
of the charges? Wal-Mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 348, 681
S.W.2d 359, 361 (1984). That’s the dispositive question on the malicious
prosecution claims. Arkansas law is concerned with the facts known
before the action commenced. Sundeen v. Kroger, 355 Ark. 138, 145, 133
S.W.3d 393, 397 (2003). And a lack of probable cause can allow an
inference of malice. Cordes v. Outdoors Living Center Inc., 301 Ark. 26,
31, 781 S.W.2d 31, 33 (1989). Chief Goza lacked arguable probable cause
to arrest Warren for either disorderly conduct or obstructing
governmental operations, and the videos create questions of material
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fact about whether a reasonable officer would have had arguable
probable cause to arrest him for harassment. So, the malicious
prosecution claims go forward to trial.
A final point about malicious prosecution. The city officials argue
that ARK. CODE ANN. § 21-9-301, which provides tort immunity for
municipalities and municipal employees, extends to these claims and
therefore shields them from liability. This statute, though, provides
immunity to municipal employees against suit in their official
capacities. Autry v. Lawrence, 286 Ark. 501, 696 S.W.2d 315 (1985). Here,
Warren’s malicious prosecution claims are against Chief Goza, Mayor
Cook, and Clerk Lingo in their individual capacities. This immunity
statute therefore does not apply.
6. Warren also brings claims for abuse of process. This tort has
three elements. Chief Goza and Clerk Lingo must have set in motion a
legal procedure. They must have perverted the procedure to
accomplish an ulterior purpose for which it was not designed. And
there must have been some willful act in using the legal process that
was improper. National Bank of Arkansas v. River Crossing Partners, LLC,
2011 Ark. 475, 11, 385 S.W.3d 754, 761 (2011). Arkansas law defines
“ulterior purpose” narrowly—the judicial process must have been
used to extort or coerce. Union National Bank of Little Rock v. Kutait, 312
Ark. 14, 19, 846 S.W.2d 652, 655 (1993).
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Warren's claim here is about a no-contact order that was issued
approximately two weeks after his second arrest and in connection with
Clerk Lingo pursuing a criminal complaint of harassment under ARK.
CODE ANN. § 5-71-208. Warren says the no-contact order was issued ex
parte. He says that he was not served with the order for several weeks
after it was issued, despite Chief Goza having the order and the related
summons in hand all that time. He also says that the order was served
on the day of a city council meeting to prevent his attendance.
Chief Goza and Clerk Lingo seek summary judgment on this
claim with a “no harm, no foul” response. They point out that Warren
and his lawyer were able appear in district court and get the order
modified. They also say that the order did not actually chill Warren’s
First Amendment rights, because he continued to submit FOIA
requests to the city even after the order was issued. These arguments
are insufficient, though, to eliminate Warren’s claim. The Arkansas
statute on point contemplates notice when a no-contact order is issued
in connection with a harassment charge: “Upon pretrial release of the
defendant, a judicial officer shall enter a no contact order in writing...
and shall give notice to the defendant of penalties contained in Rule 9.5
of the Arkansas Rules of Criminal Procedure.” ARK. CODE ANN. § 5-71-
208(d)(1). Even assuming some flexibility on notice when a summons
rather than a warrant is issued, the delay in service, and the belated
service of the order on the day of a city council meeting, could support
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a verdict that the order was secured to stop uncomfortable speech and
criticism by Warren at a public meeting, rather than to stop harassment.
The jury must decide what Chief Goza and Clerk Lingo’s motivations
were and whether they abused the legal process.
7. The Egypt officials argue that Warren’s federal and state
retaliation claims fail if arguable probable cause existed for the arrests.
This is correct on the law. But, the argument does not succeed given
the Court’s rulings about arguable probable cause. The city officials
further contend that Warren has not presented evidence that they
conspired to have him arrested. But sufficient evidence exists to
support a verdict on this part of his retaliation claims. Warren testified
that, on 31 July 2019, approximately two weeks before his first arrest,
he told Mayor Cook that he intended to present incriminating
information about Chief Goza’s history and qualifications to the city
council. Doc. 24-1 at 10. Mayor Cook allegedly responded that his
employment decisions were none of Warren’s business, and none of the
city council’s business, either. A city council meeting was scheduled
for the evening of August 13th, the day Warren got arrested at city hall.
That morning, Warren had requested Chief Goza’s personnel file
(among other things) from Clerk Lingo. She then called Mayor Cook
and Chief Goza before she called 911. And, just prior to Warren’s arrest,
Chief Goza told Deputy Roth that the mayor wanted Warren arrested.
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The First Amendment protects every citizen’s right to criticize
public officials. Hoyland v. McMenomy, 869 F.3d 644, 655 (8th Cir. 2017).
This is a core right in our free country. Being arrested, twice, and then
being served with a criminal summons and a no-contact order, “would
chill a person of ordinary firmness from exercising” his First
Amendment rights in the future. 869 F.3d at 657. The jury must decide
whether Warren has proved a causal connection between the city
officials’ alleged retaliatory animus and the adverse actions that
occurred. Ibid.
8. Warren makes defamation claims against Chief Goza,
Mayor Cook, and Clerk Lingo. To prove defamation under Arkansas
law, Warren must show that each city official published or
communicated a defamatory statement of fact about him and that he
suffered resulting damages. Little Rock Newspapers, Inc. v. Fitzhugh, 330
Ark. 561, 568, 954 S.W.2d 914, 918 (1997).
First, Warren says Mayor Cook and Clerk Lingo made knowingly
false statements in the affidavits they filed in support of their petitions
for no-contact orders. Docs. 24-26, 32-6 & 32-7. (More on these
petitions ina moment). Mayor Cook is entitled to summary judgment
here because his affidavit does not contain a statement that “impl[ies]
an assertion of an objective verifiable fact.” Faulkner v. Arkansas
Children’s Hospital, 347 Ark. 941, 956, 69 S.W.3d 393, 402-03
(2002). Clerk Lingo argues that Warren cannot prove that her
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statements were knowingly false. But her affidavits contain key facts
that are genuinely disputed. After considering the whole record, a jury
could reasonably find a knowing falsehood here.
Second, Warren alleges that Chief Goza, Mayor Cook, and Clerk
Lingo made defamatory statements by warning folks in Egypt to keep
their distance from him because he was schizophrenic and posed a
danger to the community. The city officials respond that Warren hasn’t
offered any evidence that he was actually damaged as a result of these
alleged statements. But Warren only needs to show slight harm.
Northport Health Services, Inc. v. Owens, 356 Ark. 630, 642, 158 S.W.3d
164, 172 (2004). Warren and his wife submitted affidavits in opposition
to summary judgment. They say that the officials’ knowingly false
statements caused Warren and his family considerable stress, anxiety,
and fear for their safety. Doc. 32-1 at 13-14 & 32-2 at 2. That’s enough
proof for now. Warren’s defamation claims against the officials go
forward.
9. | Warren’s procedural due process claims survive, too. After
Warren’s second arrest, Clerk Lingo and Mayor Cook both sought no-
contact orders against Warren in circuit court. Docs. 32-6 & 32-7. That
court denied their petitions because they were not family members or
household members entitled to seek such an order by statute. ARK.
CODE ANN. § 9-15-201. The next day, Chief Goza escorted Clerk Lingo
to district court, where she filled out an affidavit of arrest accusing
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Warren of harassment, Doc. 24-26, in violation of ARK. CODE ANN. § 5-
71-208. Based on that affidavit, the district court issued a criminal
summons and a no-contact order to serve on Warren, and gave both to
Chief Goza. Doc. 32-5. The order put three limits on Warren: He could
not come within one hundred yards of Clerk Lingo, including at her
workplace at city hall; he could not possess weapons or firearms; and
he could not drink alcohol. The record here does not show that Warren
received a hearing on the no-contact order until two months later, when
Warren's lawyer appeared and had the order modified to allow Warren
to attend city council meetings. Doc. 24-27.
As discussed above, Arkansas’ harassment statute authorizes no-
contact orders. ARK. CODE ANN. § 5-71-208(d)(1). Rule 9.5, in turn,
describes penalties for violating those orders. ARK. R. CRIM. P. 9.5. But
Warren’s case presents some peculiar factual circumstances that keep
his claims alive for trial.
There is no record evidence to indicate that Warren attended any
hearing or other formal proceeding at which he received the no-contact
order. The district court’s decision to issue a summons, rather than an
arrest warrant, indicates that the court did not view the circumstances
as serious enough to justify custody. ARK. R. CRIM. P. 6.1. In addition,
the statute and the Rules required that Warren be given notice of the
order, the summons, and Clerk Lingo’s complaint against him. ARK.
CODE ANN. § 5-71-208(d)(1); ARK. R. CRIM. P. 6.2 & 9.4. That, of course,
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could have been done in open court, had a hearing been held. It could
also be done by service of all those papers on Warren. That task was
entrusted to Chief Goza. According to Warren, Goza did not serve the
no-contact order on him until one month after it was issued. Doc. 24-1
at 17-18. This Court can and does take judicial notice of the district
court’s docket, which is a public record. Roe v. Nebraska, 861 F.3d 785,
788 (8th Cir. 2017). That docket contains a proof of service reflecting
that Chief Goza served the summons on Warren. State v. Warren, Case
No. JOSEG 19-194, 28 October 2019 Entry. The proof of service does not
indicate when service occurred, but it must have happened before
October 28th, which was the filing date. The no-contact order is
attached to the return of service, but it is unsigned. In addition to the
unsigned order, the paperwork is silent as to whether Chief Goza
served Clerk Lingo’s complaint on Warren. The docket does record
service of the amended no-contact order, which was entered after a
hearing in November.
The Egypt officials seek summary judgment on Warren’s due
process claims. They argue that because Warren and his attorney were
present for the eventual hearing on the no-contact order, it was not
actually issued ex parte. The Court is not persuaded. Due process
requires that, with some exceptions, before a liberty is lost, a person
receive notice of the allegations against him and the opportunity to
meet them. Mathews v. Eldridge, 424 U.S. 319, 348 (1976). The original
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no-contact order implicated Warren’s significant liberty interests, and
it is unclear on this record whether Warren received timely, adequate
notice of that order or had any meaningful opportunity to challenge it
before the November hearing. Summary judgment is denied on these
claims.
10. Chief Goza is entitled to qualified immunity, and therefore
summary judgment, on Warren’s federal and state claims of excessive
force. Regarding the August 13th arrest, Warren claims only that Chief
Goza used too much force in handcuffing him. Doc. 33 at 24-25. The
video undermines this claim. It shows that Chief Goza asked Warren
to get up from his chair several times. Doc. 24-24 at 0:00-0:30. Warren
initially ignored those requests and remained seated. When Chief Goza
tried to handcuff Warren, Warren flinched and shifted his body away.
Warren’s actions could reasonably be construed as resistance. And, in
any event, the video does not show Chief Goza doing anything more
than grabbing Warren’s wrists to handcuff him. This was a permissible
use of force in the circumstances. Blazek v. City of Iowa City, 761 F.3d
920, 925 (8th Cir. 2014). On this record, no reasonable juror could
conclude that Chief Goza used excessive force in making the August
13th arrest.
The same conclusion holds for Warren’s excessive force claim
arising out of his August 22nd arrest. Here again, Warren’s claim is
solely about how he was handcuffed. Warren acknowledges, however,
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that the force used during this arrest was even less than Chief Goza
used on August 13th. Plus, Warren has not alleged that he sustained
any permanent injury, or sought any treatment for an injury, resulting
from either of these arrests.
Warren’s excessive force claims fail as a matter of law. Foster v.
Metropolitan Airports Commission, 914 F.2d 1076, 1082 (8th Cir. 1990).
11. The next issues involve Warren’s claims for battery and
assault. In Arkansas, battery is “any unlawful touching of the person
of another.” Swindle v. Thorton, 229 Ark. 437, 440, 316 S.W.2d 202, 203
(1958). One commits an assault if he acts to create a reasonable
apprehension of immediate battery. Mann v. Pierce, 2016 Ark. 418, 7,
505 S.W.3d 150, 154 (2016). Warren says that Chief Goza battered and
assaulted him when he arrested him twice without probable cause and
placed him in handcuffs each time. Chief Goza responds that no
unlawful touching occurred on either occasion because an officer may
exert as much physical force as necessary to overcome the resistance he
encounters in making an arrest. Crouch v. Richards, 212 Ark. 980, 982,
208 S.W.2d 460, 462 (1948). But, whether Chief Goza’s touching was
unlawful depends on whether he had arguable probable cause to make
the arrests. On the current record, however, he did not have that
supporting foundation on either disorderly conduct or obstructing
governmental operations, and genuine factual disputes exist on
harassment.
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Warren also says that Mayor Cook and Clerk Lingo are liable for
battery and assault based on Goza’s alleged unlawful
touching. Arkansas recognizes joint and several liability for those who
aid and abet another in committing either of those torts. Hargis v.
Horrine, 230 Ark. 502, 503, 323 S.W.2d 917, 917 (1959). A third party
who encourages or incites the tortious conduct by words, gestures,
looks, or other signs can satisfy the aiding and abetting
requirement. Costner v. Adams, 82 Ark. App. 148, 156, 121 S.W.3d 164,
170 (2003). And Arkansas statutory law recognizes joint and several
liability for battery and assault when parties act in concert, sharing a
conscious agreement to pursue a common plan or design to commit the
tort. ARK. CODE ANN. § 16-55-205. Here, questions of fact exist about
the conversations between Mayor Cook, Clerk Lingo, and Chief
Goza. Until those questions are answered at a trial, Warren’s battery
and assault claims against Mayor Cook and Clerk Lingo proceed.
12. Clerk Lingo and the city are entitled to summary judgment
on Warren’s failure to accommodate claim under the Americans with
Disabilities Act. Warren says they denied him meaningful access to the
city records by refusing to accommodate his dyslexia. He points out,
and the video confirms, that Warren told Clerk Lingo at city hall that
he is hard of hearing and dyslexic. She already knew he was hard of
hearing. Instead of allowing Warren to make a verbal request for
records, Clerk Lingo asked Warren to write his request down and
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handed him a pen and a pad. Warren says this was insufficient and
violated the ADA by denying him the opportunity to communicate
effectively.
While Warren is correct that Arkansas’ Freedom of Information
Act does not require a written request, ARK. CODE ANN. § 25-19-
105(a)(2)(A)(B), he makes no FOIA claim. And his ADA claim fails on
the record as a whole. Warren had submitted eight written FOIA
requests by email in the twenty-four hours before he arrived at city
hall. He also acknowledges that he communicated with city officials
using text messages. Doc. 24-1. Also, only a few minutes elapsed
between Lingo telling Warren to write down his requests and the police
officers arriving at city hall. There was no time for the good faith back
and forth that is contemplated by the ADA. If Warren had tried to write
out his request and failed, and Clerk Lingo had refused to hear what
records he wanted to see, then Warren might have a solid ADA claim.
In the circumstances, though, no reasonable juror could conclude that
there was a failure to accommodate.
In his papers responding to the motion for summary judgment,
Warren appears to be asserting anew ADA claim—retaliation. He did
not plead this claim. Doc. 1 at 20-21. And he cannot amend his
pleading in his summary judgment briefing. Northern States Power Co.
v. Federal Transit Administration, 358 F.3d 1050, 1056-57 (8th Cir.
2004).
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13. Warren’s outrage claim also fails. Arkansas disfavors this
tort and views it narrowly. Crockett v. Essex, 341 Ark. 558, 564, 19
S.W.3d 585, 589 (2000). The law requires extreme and outrageous
conduct beyond all bounds of decency. Faulkner, 347 Ark. at 957, 69
S.W.3d at 403-04. Warren says that the strip searches and body-cavity
searches he endured meet this high threshold. While of course these
searches were intrusive, and offended Warren, they are a routine part
of jail administrative procedures and do not exceed all bounds of
decency. Nor has Warren shown that he suffered emotional distress so
severe that no reasonable person could be expected to endure it. Ibid.
Motion for summary judgment, Doc. 22, partly granted and partly
denied. See Appendix A for specifics. Much of this case needs a
trial. The Court of Appeals has outlined the applicable procedure for
resolving disputed material facts before a qualified immunity defense
can be definitively addressed. Littrell v. Franklin, 388 F3d 578, 584-85
(8th Cir. 2004). This Court has followed this procedure in Cole v.
Hutchins, No. 4:17-cv-553-DPM, and Tanner v. Ziegenhorn, No. 4:17-cv-
780-DPM. Counsel should consult those dockets. See Doc. 72, 135 & 142
in Cole and Doc. 97 & 142 in Tanner.
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So Ordered.
D.P. Marshall Jr.
United States District Judge
30 Septowlhn 2022
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Appendix A
Gerald Goza
First Amendment- Retaliation
Fourth Amendment- Proceeds
False Arrest (August 13th & 22nd)
Fourth Amendment- Dismissed with prejudice
Excessive Force (August 13th & 22nd) Pre]
Fifth Amendment Dismissed without prejudice
Eighth Amendment Dismissed with prejudice
Fourteenth Amendment- Proceeds
Procedural Due Process
Fourteenth Amendment- Lo, . Lg.
Substantive Due Process Dismissed with prejudice
Official Capacity Claims Dismissed without prejudice
*Each echoing claim proceeds under the Arkansas Civil Rights Act
proceeds, or fails, like each federal claim.
Stand-alone Arkansas Law Claims
Assault & Battery Proceeds
(August 13th & 22nd)
~25-
Jerry Cook
First Amendment-Retaliation
Fifth Amendment Dismissed without prejudice
Eighth Amendment Dismissed with prejudice
Fourteenth Amendment- gs
Substantive Due Process Dismissed with prejudice
Official Capacity Claims Dismissed without prejudice
*Each echoing claim proceeds under the Arkansas Civil Rights Act
proceeds, or fails, like each federal claim.
Stand-alone Arkansas Law Claims
Assault & Battery Proceeds
(August 13th & 22nd)
Abuse of Process Dismissed with prejudice
~26-
Velva “Joy” Lingo
First Amendment- Retaliation
Fifth Amendment Dismissed without prejudice
Eighth Amendment Dismissed with prejudice
Fourteenth Amendment- Proceeds
Procedural Due Process
Fourteenth Amendment- 1
Substantive Due Process Dismissed with prejudice
Americans with Disabilities Act Dismissed with prejudice
Official Capacity Claims Dismissed without prejudice
*Each echoing claim proceeds under the Arkansas Civil Rights Act
proceeds, or fails, like each federal claim.
Stand-alone Arkansas Law Claims
Assault & Battery Proceeds
(August 13th & 22nd)
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City of Egypt
Fourth Amendment-
Policy or Custom of Dismissed with prejudice
Unconstitutional Violations
Fourth Amendment- Not pleaded;
Failure to Train or Supervise Dismissed without prejudice
*Each echoing claim proceeds under the Arkansas Civil Rights Act
proceeds, or fails, like each federal claim.
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