McKinney v. Plyler

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

JOHN ROSS MCKINNEY PLAINTIFF

v. Civil No. 6:15-CV-06077

ROBBIE PLYLER (Lt. CID, Clark County DEFENDANTS

Sheriff’s Office), BRIAN DANIEL (Sgt.

CID, Clark County Sheriff’s Office), Becky

Ussery1 (Domestic Violence, Clark County

Courthouse)

ORDER

Plaintiff proceeds in this matter pro se and in forma pauperis pursuant to 42 U.S.C. § 1983.

Currently before the Court is Defendants’ Motion for Summary Judgment. (ECF No. 48).

I. BACKGROUND

Plaintiff filed his Complaint on June 22, 2015, in the Eastern District of Arkansas. (ECF

No. 2). He filed his Amended Complaint on July 13, 2015. (ECF No. 5). The case was transferred

to this District on July 21, 2015. (ECF No. 7).

In his Amended Complaint, Plaintiff alleges Defendants violated his constitutional rights

when they arrested and charged him with Felony Domestic Battery against his wife, Amber

McKinney, because he was the actual victim of the domestic battery. He also alleges Defendant

Plyler denied him medical care when he arrested him. (ECF No. 5 at 4-11).

Plaintiff alleges he was arrested by Defendant Plyler on March 19, 2015, at the Baptist

Health Emergency Room when he sought treatment for a cracked rib, black eye, upper and lower

“busted lips,” large head contusion, and possible concussion. (Id. at 4-5). He alleges the

1 Documents submitted by Defendants indicate the correct last name for this Defendant is Ursery. (ECF No. 50-3).

Defendants did not interview him or take any photographs of his injuries, even though his injuries

were much more serious than those sustained by his wife. (Id. at 5). He alleges Defendant Plyler

arrested him as he was being processed by the emergency room administration, thereby denying

him medical care. (Id. at 4). He alleges he was arrested for Domestic Battery in the Third Degree,

but his charge was upgraded to Second Degree Domestic Battery “an hour later.” (Id.).

Plaintiff alleges he received a “Facts Constituting Reasonable Cause” form dated March

22, 2015, from Defendant Daniel. Plaintiff alleges this form stated his wife had sustained a

fractured right wrist in addition to her other injuries. (Id. at 5). Plaintiff alleges this was a

“complete fabrication to ensure my illegal detainment,” because prior photos taken by Defendant

Ursery showed her using a fully functional right wrist to hold her mouth open. (Id.).

Plaintiff further alleges his wife was known as Amber Inez Williams prior to their marriage.

(Id. at 7). He alleges she had a history of violent domestic disputes, and provided a newspaper

clipping of an altercation between them prior to their marriage. In the article, she was noted to be

the aggressor in the domestic assault and had further promoted violence in front of a juvenile. (Id

at 7, 10). Plaintiff alleges these facts should have been discovered if Defendants had actually

performed an investigation. (Id. at 7).

Plaintiff alleges he was told on March 22, 2015, that he would be released. However, after

he signed the release form for a Third Degree Domestic Battery, he was informed his release

required him to be on GPS monitoring, which he could not afford, so the release papers were

“trashed.” (Id. at 5). “Two hours later” he was taken before a Judge, charged with Second Degree

Domestic Battery, given a $75,000 bond and GPS monitoring at his own expense. (Id.). Plaintiff’s

Amended Complaint was dated July 9, 2015, and Plaintiff alleges he had been detained since

March 19, 2015 with no bond reduction hearings, no pre-trial motions, and no evidence proving

him guilty. (Id.).

Plaintiff’s claims against a prosecutor and judge were dismissed at pre-service screening

on March 14, 2016. (ECF No. 22). Plaintiff’s official capacity claims were dismissed after

Defendants’ Motion to Dismiss on February 9, 2017. (ECF No. 32).

Defendants filed their Motion for Summary Judgment without supporting documents on

May 18, 2018. (ECF No. 48). The complete Motion for Summary Judgment was filed on May

21, 2018. (ECF No. 49). Documents submitted with the Motion provide additional background

and context to Plaintiff’s Complaint.

On March 19, 2015, the Clark County Sheriff’s Office received a call at approximately

6:57 p.m. on March 19, 2015. The caller reported that a woman was “laying in the middle of

[H]ighway 8,” she was bleeding from the mouth, and an ambulance had been called. (ECF No.

50-1 at 2). When Defendant Plyler arrived at the scene, the woman was identified as Amber

McKinney. She told him her husband, John McKinney, had beaten her and thrown her out of a

moving vehicle due to an argument over a Facebook request she had received. (Id.; 50-2 at 1).

Defendant Plyler observed that she had a large “knot/bruise” on the right side of her head, cuts on

her left knee, her upper lip was “busted,” and she thought a finger on her left hand was broken.

(Id.). She was taken to the Baptist Health Medical Center – Arkadelphia by ambulance. (Id.; ECF

No. 50-3 at 2). Defendant Ursery, the Victim Services Director for Clark County, Arkansas, was

called to the hospital, where interviews and photos were taken. (ECF No. 50-1 at 2; 50-3 at 1).

Photos of Amber McKinney showed cuts to her lips, mouth, and tongue. (ECF No. 50-4).

While Defendant Plyler was at the hospital, Plaintiff called Amber McKinney’s phone

several times. (ECF No. 50-2). Defendant Plyler answered the phone and spoke with Plaintiff.

Plaintiff told him he was actually the victim, as Amber McKinney had beaten him. Defendant

Plyler was unable to conduct a formal interview with Plaintiff over the phone because Plaintiff

was “belligerent.” (Id. at 1).

Plaintiff then arrived at the hospital complaining of broken ribs. (ECF No. 50-1 at 2; 50-2

at 1). Defendant Plyler observed that Plaintiff was able to talk, walk, move, and function “fine.”

No apparent injuries were noted for Plaintiff. (50-1 at 3; 50-2 at 2). Based on Amber McKinney’s

injuries, her statements, and witness statements, Defendant Plyler arrested Plaintiff for Domestic

Battery and took him to jail (ECF No. 50-1 at 3; 50-2 at 2). At the jail, EMS (Emergency Medical

Services) was called to evaluate Plaintiff’s condition, and he was “cleared.” (ECF No. 50-2 at 2).

Once Amber McKinney was treated, Plaintiff was returned to the hospital for examination. (50-1

at 3; 50-2 at 2). Defendant Plyler was not involved with Plaintiff’s criminal case after the March

19, 2015, arrest. (ECF No. 50-2 at 2).

Medical records from Baptist Health Medical Center – Arkadelphia, indicate Plaintiff was

admitted at 12:22 a.m. on March 20, 2015. (ECF No. 50-6 at 1). He presented with a complaint

of a rib injury. (Id. at 3). On examination, he exhibited tenderness in the right rib cage, with no

edema. He exhibited tenderness on the heel of the right hand. He had normal range of motion.

Contusions2 to his rib, nose, and hand were noted, but did not require workup. A headache and

urinary tract infection were also noted, but did not require workup. (ECF No. 50-6 at 4). Plaintiff

received x-rays of his head, right hand, and right ribs. No new fractures were apparent in the right

rib or elsewhere. (Id. at 5-7). Healed fractures were apparent at the second and fifth metacarpals.

(Id. at 7). There was no evidence of head injury or abnormality. (Id. at 5). Plaintiff also received

a CT scan of the head, due to his report of trauma and headache. The CT scan was negative for

2 Bruises. https://www.merriam-webster.com/dictionary/contusion#medicalDictionary (last accessed Jun. 20, 2018).

any injuries or abnormalities. (Id. at 8). Plaintiff received two tablets of acetaminophen and a

prescription for antibiotics. (Id. at 10). Plaintiff’s urine drug screen was positive for THC and

cocaine metabolite. (Id. at 9). Plaintiff was discharged from the hospital on March 20, 2015, at

2:16 p.m. (Id. at 2).

On March 22, 2015, Defendant Daniel spoke with Amber McKinney on the phone, and she

told him that she had a fractured wrist. (ECF No. 50-7; 50-8). He obtained her medical records

and determined that Plaintiff would likely be charged with Domestic Battery in the Second Degree.

(ECF No. 50-8).

Defendant Daniel completed an Affidavit of Facts Constituting Reasonable Cause

(hereafter Probable Cause) against Plaintiff for Domestic Battery in the Second Degree on March

22, 2015. (ECF No. 50-10). This Affidavit noted Amber McKinney’s physical injuries, including

cuts in her upper lip, abrasions to the side of her head and to her right knee, and a fractured right

wrist. It stated she had identified Plaintiff as her attacker. (Id. at 2). Plaintiff appeared before

Clark County Circuit Judge McCallum on March 22, 2015, for his first appearance. The Court

found probable cause to detain him on the charge of Domestic Battery in the Second Degree, set

bond for $75,000 and required electronic monitoring at Plaintiff’s expense. (ECF No. 50-11).

Arraignment was set for April 14, 2015. (Id.). The Order was signed on March 22, 2015, but not

filed by the Clerk of Court until April 7, 2015. (Id.).

Plaintiff filed two jail grievances3 stating he was being illegally detained because he was

the victim of domestic battery. (ECF Nos. 50-13). Defendant Daniel responded to one grievance,

stating he had not been aware of Plaintiff’s claim to be the victim, and telling Plaintiff to make an

appointment through jail administration to speak with him. (Id. at 1). Plaintiff met with Defendant

3 The grievance forms did not include a space for the dates, and no date information was written on either grievance.

Daniel on April 13, 2015, for an interview. (ECF No. 50 at ¶ 35). The Court reviewed the

videotape of this interview. (ECF No. 50-5). Plaintiff stated the incident started while he was

driving Amber McKinney home from work because he questioned her about a Facebook request

she had received from another man and she “went haywire.” Plaintiff stated he told her that if she

hit him again he was going to hit her back. As a result, there was more than one physical altercation

between himself and Amber McKinney in and around the vehicle that day, but he stated she was

the aggressor for all of them. After one of these altercations, Amber McKinney got out of the

vehicle at a stop sign and sat in the highway. Plaintiff followed her, she returned to the car, and

another “scuffle” ensued. According to Plaintiff, both parties hit, bit, and spit at each other during

these altercations. Amber McKinney also grabbed him by the penis and would not let go, despite

the fact the he had undergone surgery for a broken urethra early in the year when she had pulled

on and “broken his penis.” Plaintiff asked why he was not interviewed before being arrested and

charged when there were two people involved. Plaintiff further noted past incidents where Amber

McKinney had assaulted him or other women.

Defendant Daniel interviewed Amber McKinney again on October 14, 2015. (ECF No. 50

¶ 26). In the video of this interview, she described a pattern of beatings and violence from Plaintiff,

but also referenced at least one prior arrest for herself. (ECF No. 50-9). She stated she “broke his

penis” in an attempt to escape him during a prior beating. (Id.).

On March 17, 2016, Plaintiff’s charges were amended to Domestic Battery in the Third

Degree. (ECF No. 50-14). An Order transferring the case to District Court was signed the same

day. (ECF No. 50-15). Plaintiff was released from the Clark County Jail on March 18, 2016.

(ECF No. 17). After several continuances, the case was nolle prossed on May 28, 2016, because

Amber McKinney did not wish to prosecute. (ECF No. 50-16).

On May 22, 2018, this Court entered an Order directing Plaintiff to respond to the Summary

Judgment Motion by June 12, 2018. (ECF No. 52). On June 13, 2018, Defendants filed a Motion

to Deem Facts Admitted, noting Plaintiff had not filed his Response as directed. (ECF No. 55).

Plaintiff filed his Response on June 15, 2018. (ECF No. 56).

II. LEGAL STANDARD

Summary judgment is appropriate if, after viewing the facts and all reasonable inferences

in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986), the record "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).

"Once a party moving for summary judgment has made a sufficient showing, the burden rests with

the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a

genuine issue of material fact exists.” National Bank of Commerce v. Dow Chemical Co., 165

F.3d 602, 607 (8th Cir. 1999).

The non-moving party "must do more than simply show that there is some metaphysical

doubt as to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient

evidence to support a jury verdict in their favor." National Bank, 165 F.3d at 607 (citing Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). "A case founded on speculation or suspicion is

insufficient to survive a motion for summary judgment." Id. (citing, Metge v. Baehler, 762 F.2d

621, 625 (8th Cir. 1985)). “When opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not

adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott

v. Harris, 550 U.S. 372, 380 (2007).

III. ANALYSIS

Defendants argue summary judgment should be granted in their favor for the following

reasons: (1) Defendant Ursery had no personal involvement in Plaintiff’ alleged constitutional

violation; (2) Defendant Plyler is entitled to qualified immunity for Plaintiff’s claim of deliberate

indifference to his medical needs; (3) Defendant Plyler had probable cause to arrest Plaintiff for

Felony Domestic Battery, and is therefore entitled to qualified immunity; (4) Defendant Daniel

was not involved in his arrest on March 19, 2015, and his affidavit for warrant of arrest on March

22, 2015, was supported by probable cause; (5) although Plaintiff was too belligerent to interview

prior to arrest, Defendant Daniel investigated Plaintiff’s claims that he was the victim of this

incident and determined his claims to be untruthful; (6) Plaintiff’s detention in the Clark County

Jail and Defendants’ behavior did not rise to the level of a constitutional violation. (ECF No. 51

at 6-16).

In his Response, Plaintiff argues Defendant Plyler admitted Plaintiff told him he was the

victim of the domestic battery, but still refused to take Plaintiff’s statement. (ECF No. 56 at 1).

He notes Defendant Ursery mentioned speaking with a witness, but he and Amber McKinney were

alone in the car. (Id.). He notes there is no mention of the wrist injury in the Incident Report (ECF

No. 50-1), therefore the recorded phone interview between Defendant Daniel and Amber

McKinney discusses an injury that had not been mentioned previously. (Id.). He emphasizes there

are no records indicating any statement was taken from him prior to him being declared the

aggressor in the incident. (Id. at 2). Plaintiff states he disputes Defendants’ Exhibits 1-4, 7-9, and

14-16, but does not indicate what, exactly, he disputes in these documents.

A. Defendant Ursery

Plaintiff’s sole claim against Defendant Ursery is she did not interview him or take any

photographs of his injuries, therefore she did not properly investigate his claim that he was the

victim in the incident before he was arrested.

To establish liability under § 1983 there must be some personal involvement on the part of

the Defendant. Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997). The record indicates

Defendant Ursery had no personal involvement with Plaintiff’s criminal case and was actually

prohibited from assisting him in any way. In her affidavit for this case, Defendant Ursery identified

herself as the Victim Services Director for Clark County, Arkansas. (ECF No. 50-3). She is called

by law enforcement to respond to crime scenes or to the hospital. Her duties include “helping

victims navigate the criminal justice system, assisting with safety plans, advising victims of court

dates, assisting with obtaining counseling, and accompanying victims to court.” (Id. at 1). The

Victim Services Program is prohibited from assisting offenders in domestic violence cases. (Id.)

Defendant Ursery is not an attorney and does not make decisions as to whether a suspect should

be arrested, charged, or detained. (Id. at 2). Further, her opinions as to guilt or innocence in a case

are not sought by, and do not influence, any decision made by law enforcement or the prosecutor.

(Id.)

In this case, Defendant Ursery was called by law enforcement to attend to Amber

McKinney as a victim of domestic violence. Amber McKinney identified Plaintiff as the offender

in the case. As such, Defendant Ursery was prohibited from assisting Plaintiff. Nor is there any

evidence in the record that Defendant Ursery was aware of Plaintiff’s claim that he was the victim

in the incident or had any input into the decision to arrest, detain, or charge him.

Because Defendant Ursery had no personal involvement in Plaintiff’s criminal case, and

was actually prohibited from assisting him, she is entitled to summary judgment as a matter of law.

B. Defendant Plyler – Denial of Medical Care

Plaintiff’s allegation that Defendant Plyler denied him medical care when he arrested him

at the hospital is contradicted by the record. Defendant Plyler is therefore entitled to summary

judgment on this claim.

The Eighth Amendment prohibition of cruel and unusual punishment prohibits deliberate

indifference to prisoners’ serious medical needs. Luckert v. Dodge County, 684 F.3d 808, 817 (8th

Cir. 2012). To prevail on his Eighth Amendment claim, Plaintiff must prove that Defendants acted

with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106

(1976).

The deliberate indifference standard includes “both an objective and a subjective

component: ‘The [Plaintiff] must demonstrate (1) that [he] suffered [from] objectively serious

medical needs and (2) that the prison officials actually knew of but deliberately disregarded those

needs.’” Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (quoting Dulany v. Carnahan, 132

F.3d 1234, 1239 (8th Cir. 1997)).

To show that he suffered from an objectively serious medical need Plaintiff must show he

“has been diagnosed by a physician as requiring treatment” or has an injury “that is so obvious

that even a layperson would easily recognize the necessity for a doctor’s attention.” Schaub v.

VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (internal quotations and citations omitted).

For the subjective prong of deliberate indifference, “the prisoner must show more than

negligence, more even than gross negligence, and mere disagreement with treatment decisions

does not give rise to the level of a constitutional violation.” Popoalii v. Correctional Med. Servs,

512 F.3d 488, 499 (8th Cir. 2008) (internal citation omitted). “Deliberate indifference is akin to

criminal recklessness, which demands more than negligent misconduct.” Id.

Deliberate indifference may also be manifested by “prison guards in intentionally denying

or delaying access to medical care or intentionally interfering with the treatment once prescribed.”

Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). However, the “Constitution does not require jailers

to handle every medical complaint as quickly as each inmate might wish.” Jenkins v. County of

Hennepin, Minn., 557 F.3d 628, 633 (8th Cir. 2009). “A prisoner alleging a delay in treatment

must present verifying medical evidence that the prison officials ignored an acute or escalating

situation or that these delays adversely affected his prognosis.” Holden v. Hirner, 663 F.3d 336,

342 (8th Cir. 2011) (internal quotations omitted). Unless, however, the need for medical attention

is obvious to a layperson, in which case the plaintiff need not submit verifying medical evidence

to show the detrimental effects of delay. See Schaub, 638 F.3d at 919 (citing Roberson v.

Bradshaw, 198 F.3d 645, 648 (8th Cir. 1999); Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir. 1995);

cf. Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995) (“noting that a delay in treatment, coupled with

knowledge that an inmate is suffering, can support a finding of an Eighth Amendment violation”).

Plaintiff’s allegations fail to satisfy either prong of the deliberate indifference test. There

is no evidence in the record that Plaintiff suffered from an objectively serious medical need. After

physical examination, x-rays, and a CT scan, Plaintiff was diagnosed with some bruises and a

urinary tract infection. He also tested positive for THC and cocaine metabolite. He was given two

tablets of acetaminophen and a prescription for an antibiotic.

Even if one assumes the bruises constituted a serious medical need, there is no evidence in

the record of deliberate indifference. The Clark County Sheriff’s Office received the call

concerning Amber McKinney laying on Highway 8 at approximately 6:57 p.m. on March 19, 2015.

Defendant Plyler expressly noted that Plaintiff did not appear to be in distress when he spoke to

him at the hospital prior to his arrest, as he was walking, talking, and moving “fine.” Despite this,

EMS was called to the jail to evaluate Plaintiff shortly after his arrest. EMS “cleared” him of any

injuries. Plaintiff was then taken back to the hospital at 12:22 a.m. on March 20, 2015, and

admitted for evaluation and testing. The Court can discern no evidence of deliberate indifference

to Plaintiff’s medical needs in these facts.

Finally, Plaintiff failed to submit any verifying medical evidence that any delay in access

to medical care caused by his arrest adversely affected the prognosis for his bruises or any other

medical condition.

Because there is no evidence in the record of any deliberate indifference to Plaintiff’s

medical needs, Defendant Plyler is entitled to summary judgment as a matter of law on this claim.

C. Defendant Plyler4 – Warrantless Arrest - Probable Cause

Plaintiff alleges Defendants Plyler did not investigate his claim that he was the actual

victim of the domestic assault before arresting him on March 19, 2015. He did not interview him

or take photographs of his injuries, and failed to consider Amber McKinney’s past behavior and

arrests. Defendant Plyler argues the determination of probable cause was based on both Amber

McKinney’s assertions and the extent of her injuries. He further alleges Plaintiff was too

belligerent to conduct a formal interview and did not appear to be in any physical distress at the

time of arrest.

As a preliminary matter, the Court notes that Defendant Plyler’s allegation of Plaintiff’s

belligerence does not appear on the March 19, 2015, Incident Report, appearing only in his later

affidavit for this case. Therefore, although Plaintiff’s positive drug test arguably supports

Defendant Plyler’s statement of belligerent behavior, the Court will not include that behavior in

4 Plaintiff alleges only that the Defendants did not investigate; he does not delineate these claims based on date or

presence. Based on the record, it is clear that Defendant Daniel was not present for, and took no part in, Plaintiff’s

arrest on March 19, 2015. It is therefore not necessary to address Defendant Daniel’s role regarding Plaintiff’s

warrantless arrest on March 19, 2015.

the probable cause analysis. Nonetheless, the record is clear that Defendant Plyler had probable

cause for Plaintiff’s warrantless arrest on March 19, 2015.

“The law does not require law enforcement officers to conduct a perfect investigation to

avoid suit for false arrest. “ Joseph v. Allen, 712 F.3d 1222, 1228 (8th Cir. 2013). An officer is

entitled to qualified immunity for a warrantless arrest if the arrest was supported by at least

“arguable probable cause.” Id. at 1226. “An officer has probable cause to make a warrantless

arrest when the totality of the circumstances at the time of the arrest are sufficient to lead a

reasonable person to believe that the defendant has committed or is committing an offense.”

Borgman v. Kedley, 646 F.3d 518, 523 (8th Cir. 2011) (internal citations and quotations omitted).

Even if the officer is ultimately mistaken in his or her determination of probable cause, arguable

probable cause exists if the mistake is “objectively reasonable.” (Id.). “Whether a law

enforcement officer had probable cause at the time of arrest is a question of law.” Joseph, 712

F.3d at 1226-27.

The totality of the circumstances at the time of Plaintiff’s arrest are sufficient to lead a

reasonable person to believe that Plaintiff committed domestic battery against his wife. Defendant

Plyler received a call from dispatch stating a woman was laying in the middle of Highway 8 and

bleeding from the mouth. When he arrived at the scene he observed the victim to have a large

“knot/bruise” on the right side of her head, cuts on her left knee, and a “busted lip.” The victim

was identified as Amber McKinney, who stated Plaintiff was responsible for her condition. Amber

McKinney was taken to the hospital by ambulance and her injuries documented. Photographs

submitted to the Court show cuts to her lips, mouth, and tongue. Defendant Plyler spoke to

Plaintiff on the phone when Plaintiff called Amber McKinney. Plaintiff then arrived at the hospital

seeking care for himself. There is no evidence in the record that Plaintiff required an ambulance

or any assistance to arrive at the hospital. Although Plaintiff told Defendant Plyler he was the

victim of the assault, Defendant Plyler did not observe that Plaintiff suffered from any obvious

injuries, and appeared to be walking, talking, and moving “fine.” Extensive medical evaluation of

Plaintiff shortly after his arrest supports this observation, as Plaintiff’s only injuries attributable to

an assault were bruises.

Given the totality of these circumstances, Defendant Plyler had probable cause to arrest

Plaintiff at the hospital for the domestic battery of his wife, Amber McKinney. Although Plaintiff

told Plyler he was actually the victim of the assault, he exhibited no obvious injuries, and was

observed to have no difficulty in talking, walking, or moving. In contrast, Amber McKinney

exhibited multiple injuries and identified him as her attacker. Faced with these facts, Defendant

Plyler had probable cause to arrest Plaintiff for domestic battery on the night of March 19, 2015.

See Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1998) (officer may not ignore exculpatory

evidence, but does not need to conduct a mini-trial before arresting based on credible eyewitness

claims or other indicia of probable cause). That Plaintiff and his wife had a volatile history, or

that the case against Plaintiff was ultimately dropped does not change the analysis of probable

cause at the time of arrest.

Accordingly, Defendant Plyler is entitled to summary judgment as a matter of law on this

claim.

D. Defendant Daniel5 –Affidavit of Probable Cause on March 22, 2015

Plaintiff alleges Defendant Daniel did not investigate his claim that he was the actual victim

in the case. He further alleges Defendant Daniel’s statement on the March 22, 2015, Affidavit of

Probable Cause that Amber McKinney’s wrist was fractured was a “complete fabrication”

5 Based on the record, it is clear that Defendant Plyler’s role in the investigation of Plaintiff’s case ended with the

arrest on March 19, 2015. It is therefore not necessary to address Defendant Plyler’s role after that date.

intended to ensure his illegal detention. Plaintiff appears to allege that he was initially arrested for

Domestic Battery in the Third Degree (a misdemeanor), and the wrist fracture was used to upgrade

his charge to Domestic Battery in the Second degree (a felony). As a result of the upgrade, he was

not able to meet the release conditions imposed, and remained incarcerated until his case was

amended to a misdemeanor in March of 2016.

As a preliminary matter, the Court notes the March 19, 2015, Incident Report indicates

Plaintiff’s initial arrest was for Domestic Battery in the Second Degree. (ECF No. 50-1 at 1). His

allegations concerning an “upgrade” in his charges due to the alleged wrist fracture on March 22,

2015, are therefore contradicted by the record. Similarly, as the record indicates Defendant Daniel

was not aware of Plaintiff’s claim to be the victim of the assault until after March 22, 2015,

Plaintiff’s allegation that Defendant Daniel did not sufficiently investigate his claim of victimhood

before preparing the affidavit is likewise contradicted by the record.

Unless an officer engages in intentional or reckless misrepresentation in order to gain the

arrest warrant, there can be no constitutional violation. See Franks v. Delaware, 438 U.S. 154

(1978); Hunter v. Namanny, 219 F.3d 825, 829 (8th Cir. 2000) (citing Franks for the rule that a

“warrant based upon [an] affidavit containing ‘deliberate falsehood’ or reflecting ‘reckless

disregard for the truth’ violates Fourth Amendment”). “To show reckless disregard for the truth,

we do not look simply at whether a statement included in the affidavit was true; rather, we ask

whether, when looking at all the evidence available to the officer, the officer “must have

entertained serious doubts as to the truth of his [or her] statements or had obvious reasons to doubt

the accuracy of the information he [or she] reported.” United States v. Neal, 528 F.3d 1069, 1072

(8th Cir. 2008). If there is evidence of recklessness, the warrant is not automatically void. Rather,

the solution is to edit out the false or reckless information and then evaluate the corrected warrant

for probable cause. Bagby v. Bronhaver, 98 F 3d. 1096 (8th Cir. 1998). Probable cause is analyzed

at the time of the arrest, therefore “any later developed facts are irrelevant to the probable cause

analysis for an arrest.” Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008).

As discussed above, there was probable cause to arrest Plaintiff on March 19, 2015.

Defendant Daniel then had additional information to support his March 22, 2015, Affidavit of

Probable Cause. After the arrest, Plaintiff’s medical examination and testing indicated he had no

injuries other than some bruises. Defendant Daniel had a telephone conversation with Amber

McKinney on March 22, 2015, during which she stated she had a fractured wrist. Defendant

Daniel then obtained her medical records. (ECF No. 50-8). The Affidavit of Probable Cause which

was submitted to the Clark County Circuit Court March 22, 2015, relied upon these facts. The

Circuit Judge found probable cause existed based on Defendant Daniel’s affidavit. Further, when

Plaintiff filed a grievance at the Clark County Jail stating he was the actual victim in the assault,

Defendant Daniel stated he was not aware of this claim and arranged to interview him on April 13,

2015. The Court reviewed the interview video. During the video, Plaintiff admitted his

questioning of his wife over a Facebook request led to the fight. He stated he told her that if she

hit him again, he would hit her back, and followed through on this statement. He admitted that the

two of them then engaged in multiple physical altercations in and around the vehicle.

Plaintiff failed to allege any facts indicating Defendant Daniel engaged in intentional or

reckless misrepresentation in order to gain the arrest warrant from the Circuit Judge. Even if the

fractured wrist is deleted from the affidavit, sufficient probable cause existed for the arrest warrant.

As discussed more fully above, Amber McKinney was found laying on Highway 8 bleeding from

the mouth, exhibited visible physical injuries, and named Plaintiff as her attacker. Plaintiff

exhibited no obvious physical injuries, and medical examination and testing shortly after his arrest

revealed he had only bruises from the incident. When Defendant Daniel was made aware of

Plaintiff’s claim that he was the victim, he interviewed him. Finally, the affidavit was signed by

a neutral magistrate. See Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (“the fact that a

neutral magistrate has issued a warrant is the clearest indication that the officers acted in an

objectively reasonable manner”).

Accordingly, Defendant Daniel is entitled to summary judgment as a matter of law on this

claim.

E. Defendant Daniel and Defendant Plyler – Prompt First Appearance

Finally, Defendants note that Plaintiff’s allegations of unlawful imprisonment could be

interpreted to raise a Fourteenth Amendment due process claim because he was arrested on March

19, 2015, but the Order by the Circuit Court Judge was not filed until April 7, 2015. Defendants

argue, however, that prolonged detention is unlawful only when the detention occurs without

appearing before a judge. (ECF No. 51 at 16-18). Alternatively, they argue that it the duty of the

Clark County Jail - not the Clark County Sheriff’s Deputies - to schedule first appearances. (ECF

No. 51 at 18).

The Due Process Clause of the Fourteenth Amendment controls the issue of a pretrial

detainee's right to a prompt appearance in court after an arrest. See Hayes v. Faulkner County, 388

F.3d 669, 673 (8th Cir. 2004). In Hayes, the Court of Appeals for the Eighth Circuit applied the

framework set forth by the Seventh Circuit in Armstrong v. Squadrito, 152 F.3d 564 (7th Cir.

1998), in determining whether an extended detention following an arrest violated the Due Process

Clause.

Applying this framework, the Hayes court considered the following three questions: (1)

does the Due Process Clause prohibit an extended detention, without an initial appearance,

following arrest by a valid warrant; (2) does the Defendant's conduct offend the standards of

substantive due process; and, (3) do the totality of the circumstances shock the conscience. Hayes,

388 F.3d at 673; see also Luckes v. County of Hennepin, 415 F.3d 936 (8th Cir. 2005).

The Eighth Circuit concluded that the “Due Process Clause forbids an extended detention,

without a first appearance, following arrest by warrant.” Id. With respect to first appearances,

Rule 8.1 of the Arkansas Rules of Criminal Procedure provides that “[a]n arrested person who is

not released by citation or by other lawful manner shall be taken before a judicial officer without

unnecessary delay.”

Here, Plaintiff was arrested without a warrant on the evening of March 19, 2015. He was

taken to the hospital for examination and testing at 12:22 a.m. on March 20, 2015, and released at

2:16 p.m. the same day. He was taken before the Circuit Court Judge for a first appearance on

March 22, 2015. The Order finding probable cause, detailing release terms, and setting his

arraignment date was signed on March 22, 2015. It was filed by the Clerk of Court on April 7,

2015.

Thus, after receiving medical attention for his claimed injuries, Plaintiff was taken before

a judge for his initial appearance within forty-eight hours of his release from the hospital. Nothing

in these facts shocks the conscience. See e.g. Pope v. Montgomery, Case No. 3:14-cv-03104, 2018

WL 950260, *5 (W.D. Ark. Feb. 20, 2018) (seven-day detention prior to first appearance did not

shock the conscience). Additionally, neither Defendant Daniel nor Defendant Plyler was

responsible for arranging the first appearance. Accordingly, Defendants Daniel and Plyler are

entitled to summary judgment as a matter of law on this claim.

IV. CONCLUSION

For these reasons, IT IS ORDERED that Defendants’ Motion for Summary Judgment

(ECF No. 48) is GRANTED and Plaintiff’s claims are DISMISSED WITH PREJUDICE.

Judgment will be entered accordingly.

IT IS SO ORDERED this 2nd day of July 2018.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE