Brown v. Novak

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

DESIRE KRISTIN BROWN PLAINTIFF

V. CASE NO. 3:18-CV-3022

REBECCA NOVAK, Individually and in her

Official Capacity; KIMBERLY FLOWERS,

Individually and in her Official Capacity;

MARK BAILEY, Individually and in his

Official Capacity; RANDY P. MAYFIELD,

Individually and in his Official Capacity;

CARROLL COUNTY, ARKANSAS; and

JOHN DOES I-IV, Individually and in their

Official Capacities DEFENDANTS

MEMORANDUM OPINION AND ORDER

Currently before the Court are:

e a Motion for Summary Judgment (Doc. 29), Brief in Support (Doc. 30), and

Statement of Indisputable Material Facts in Support (Doc. 31), all filed by

Defendants Kimberly Flowers, Mark Bailey, Randy Mayfield, and Carroll County

(collectively, “Carroll County Defendants”); and a Response (Doc. 41), Brief in

Support of Response (Doc. 42), and Response to Defendants’ Statement of

Indisputable Material Facts (Doc. 43), all filed by Plaintiff Desire Kristin Brown; and

e a Motion for Summary Judgment (Doc. 32), Statement of Undisputed Material

Facts (Doc. 33), and Brief in Support (Doc. 34), all filed by Defendant Rebecca

Novak; and a Response (Doc. 44), Brief in Support of Response (Doc. 45), and

Statement of Disputed Facts (Doc. 46), all filed by Ms. Brown.

For the reasons given below, both Motions are GRANTED.

|. BACKGROUND

On January 6, 2017, Plaintiff Desire Brown’s husband, Billy Brown, called the

police and reported that during an argument with Ms. Brown earlier that day, she had

pointed a gun at him and at one of their children. After interviewing Mr. Brown in a parking

lot, deputies from the Carroll County Sheriff's Department (including Kimberly Flowers

and Mark Bailey) went to the Browns’ residence, along with an investigator from the

Arkansas Department of Human Services (“DHS”) named Rebecca Novak. There, while

interviewing Ms. Brown, they found several unsecured and easily accessible guns

throughout the house. At the conclusion of this interview, Ms. Brown was arrested and

taken to the Carroll County jail for aggravated assault on a family member, endangering

the welfare of a minor, obstructing governmental operations, and terroristic threatening.

Mr. Brown was also arrested for endangering the welfare of a minor and for being a felon

in possession of a firearm.

A protective hold was placed on the Browns’ children by DHS, and on January 9,

2017, Ms. Novak submitted an affidavit to the Carroll County Circuit Court in support of a

DHS petition for emergency custody. That Court issued an ex parte order granting the

petition two days later; and then, following a hearing on February 23, 2017, where all

parties were present and represented by counsel, it found that the children were

dependent-neglected.

Ms. Brown’s initial appearance on her criminal charges also occurred on January

9, at which time a judge set her bond at $75,000. Ms. Brown was unable to post that

bond. On February 3, an Information was filed formally charging her with accomplice

liability for Mr. Brown’s unlawful possession of a firearm, and with aggravated assault on

a family member, terroristic threatening, and endangering the welfare of a minor. Three

days later, she was released from jail after her bond was reduced to $5,000. Four and a

half months after that, the State of Arkansas moved for nolle prosequi of the Information.

The State’s motion was granted, and the charges against Ms. Brown were dismissed.

Ms. Brown filed the instant lawsuit on February 9, 2018. Her Amended Complaint

styles her claims against these Defendants as six counts: (1) malicious prosecution; (2)

cruel and unusual treatment during her incarceration in violation of the Eighth Amendment

to the United States Constitution; (3) civil conspiracy; (4) violation of substantive due

process; (5) outrage; and (6) punitive damages. Ms. Novak and the Carroll County □

Defendants filed their respective motions for summary judgment on December 28, 2018,

seeking dismissal of all claims. Ms. Brown responded to both motions on January 25,

2019. No replies were filed in support of either motion. Both motions are now ripe for

decision.

ll. LEGAL STANDARD

“The court shall grant summary judgment if the movant shows that there is no

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

of law.” Fed. R. Civ. P. 56(a). The Court must view the facts in the light most favorable

to the non-moving party, and give the non-moving party the benefit of any logical

inferences that can be drawn from the facts. Canada v. Union Elec. Co., 135 F.3d 1211,

1212-13 (8th Cir. 1997). The moving party bears the burden of proving the absence of

any material factual disputes. Fed. R. Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-87 (1986). If the moving party meets this burden, then

the non-moving party must “come forward with ‘specific facts showing that there is a

genuine issue for trial.” Matsushita, 475 U.S. at 587 (quoting then-Fed. R. Civ. P. 56(e))

(emphasis removed). These facts must be “such that a reasonable jury could return a

verdict for the nonmoving party.” Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th

Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “The

nonmoving party must do more than rely on allegations or denials in the pleadings, and

the court should grant summary judgment if any essential element of the prima facie case

is not supported by specific facts sufficient to raise a genuine issue for trial.” Register v.

Honeywell Fed. Mfg. & Techs., LLC, 397 F.3d 1130, 1136 (8th Cir. 2005) (citing Celotex

Corp v. Catrett, 477 U.S. 317, 324 (1986)).

Ill. DISCUSSION

The Court will begin its analysis with Ms. Brown’s constitutional claims. Then, the

Court will discuss Ms. Brown’s state-law claims.

A. Constitutional Claims

Ms. Brown has alleged violations of various rights guaranteed to her under the

United States Constitution, and she has brought these claims against the Defendants in

both their individual and official capacities. All of the individual-capacity Defendants have

asserted the defense of qualified immunity against these claims. When a government

official is sued in her individual capacity for violating someone’s federal constitutional

rights under color of law, then under the doctrine of qualified immunity, that official is

immune from claims for damages arising from the alleged violation unless both of the

following prongs are satisfied: (1) “the facts that a plaintiff has alleged . . . make outa

violation of a constitutional right”; and (2) “the right at issue was clearly established at the

time of the defendant's alleged misconduct.” See Pearson v. Callahan, 555 U.S. 223,

232 (2009). When courts perform this qualified-immunity analysis, it is often preferable

to consider the “violation” prong before considering the “clearly established” prong, but it

is not mandatory for them to do so. See id. at 236.

Ms. Brown’s claim under the Fourth Amendment, as applied to the states through

the Fourteenth Amendment, appears to be premised on the fact of her warrantless arrest.

“A warrantless arrest is consistent with the Fourth Amendment if it is supported by

probable cause, and an officer is entitled to qualified immunity if there is at least arguable

probable cause.” Ulrich v. Pope Cnty., 715 F.3d 1054, 1058 (8th Cir. 2013) (quoting

Borgman v. Kedley, 646 F.3d 518, 522—23 (8th Cir. 2011)) (internal quotation marks

omitted). Whether probable cause exists is determined by whether “the totality of the

circumstances at the time of the arrest are sufficient to lead a reasonable person to

believe that the [arrestee] has committed or is committing an offense.” /d. And even

when an arrest is based on a mistaken belief that probable cause exists, there is still

“arguable” probable cause “if the mistake is objectively reasonable” under the

circumstances. See id. (internal quotation marks omitted).

Here, the evidence in the record shows that Ms. Brown’s arrest, and the charges

brought against her, were all indisputably supported by probable cause. There is

unrebutted and undisputed evidence in the record that on the day of her arrest, the

arresting officers had received an unsolicited report from Ms. Brown’s husband that she

had pointed a gun at him and at their child, and that she had threatened to shoot him.

See Doc. 31-1, pp. 7-9. Ms. Brown insists that she never pointed a gun at or threatened

to shoot anyone; but she does not dispute that Mr. Brown made that allegation to the

officers. There is also unrebutted and undisputed evidence that when the officers

interviewed Ms. Brown, they found unsecured and unloaded guns and ammunition that

were potentially accessible by the children inside her house. See Doc. 31-1, p. 7; Doc.

31-2, p. 55. Ms. Brown not only conceded this fact in her deposition—she also conceded

that this state of affairs was dangerous for her children. See Doc. 31-2, p. 57. Ms. Brown

also admitted in her deposition that she had known since 2016 that her husband was a

convicted felon. See Doc. 31-2, p. 16. Under these circumstances, it was objectively

reasonable for the arresting officers to believe that Ms. Brown and her husband had both

committed multiple criminal offenses that day.

Ms. Brown asserts that the officers unlawfully entered her residence without a

warrant, and that there would have been no probable cause if they had not done so. But

setting aside whether she is correct about the latter proposition (which ignores her

husband's police report and her own admission to officers before entering the residence

that there was a gun “on top of the safe in the house,” see Doc. 31-2, p. 51), she can

plainly be heard, on Deputy Flowers’ body camera recording, replying “that’s fine” in

response to an officer's suggestion to her of “let’s go in the house . . . is that good?”. See

Doc. 35, at 15:43:50. Thus, there is no reasonable dispute of fact that Ms. Brown

consented to warrantless entry of her residence by these officers; and it is of course well

established that the Fourth Amendment does not require police officers to obtain a

warrant before entering a residence when they have obtained consent to do so from

someone with apparent authority to provide that consent. See, e.g., United States v.

Almeida-Perez, 549 F.3d 1162, 1169-70 (8th Cir. 2008) (collecting cases).

Ms. Brown also argues that the arresting officers failed to conduct an adequate

investigation, and ignored exculpatory evidence. But it is not at all clear to the Court what

she believes this exculpatory evidence to be. The only example she provides is her clean

prior criminal record as contrasted with her husband's prior felony record. But obviously

crimes are frequently committed by persons with no prior criminal record; and just as

obviously, investigators on her case quickly learned of her husband’s criminal record,

given their decision to formally charge Ms. Brown with accomplice liability for her

husband’s unlawful possession of a firearm. See Doc. 31-2, p. 174. In sum, there was

no constitutional violation associated with Ms. Brown’s arrest.

Ms. Brown’s substantive due process claim appears to be premised in part on the

loss of her employment because of her arrest and detention, and in part on the removal

of her children from her custody. Regarding the former premise, the Court has already

found there was probable cause to support her arrest and detention. As for the latter

premise, the Eighth Circuit has “repeatedly held that when a state official takes an action

that would otherwise disrupt familial integrity he or she is entitled to qualified immunity if

the action is properly founded upon a reasonable suspicion of child abuse.” See K.D. v.

Cnty. of Crow Wing, 434 F.3d 1051, 1056 (8th Cir. 2006). “In cases in which continued

parental custody poses an imminent threat to the child’s health or welfare, emergency

removal of children without a court order is constitutionally permitted.” See id. Here, as

already noted, Ms. Brown conceded in her deposition that the presence of unsecured

firearms in her home was dangerous for her children; and the same facts supporting

probable cause for Ms. Brown’s arrest for, inter alia, endangering the welfare of a minor,

likewise made Ms. Novak's suspicion of child abuse a reasonable one.

Ms. Brown argues that Ms. Novak failed to follow DHS policies during the removal

and placement proceedings. She does not point to any particular policy that Ms. Novak

allegedly failed to follow, except for the requirement that relatives be notified of the

proceedings, and that efforts be made to place removed children with relatives. But Ms.

Novak testified in her deposition that she is an investigator whose duties do not

encompass such matters, and whose role in an investigation ends once removal has been

adjudicated; and Ms. Brown has not offered any evidence to undermine or call that

proposition into question. See Doc. 35-1, pp. 35-38, 44-55. There also is no evidence,

and Ms. Brown does not appear to contend, that any individual Defendants other than

Ms. Novak played any meaningful role in the removal of the children. In other words,

there is no evidence that any individually-named Defendant in this case committed any

constitutional violation with respect to the removal of Ms. Brown’s children.

Ms. Brown’s Eighth' Amendment claim is premised on the conditions of her

confinement in the Carroll County jail, where she contends she was placed in an

excessively cold cell with feces on the wall, and refused food, nourishment, and medical

care despite being pregnant. But whatever the conditions of her confinement were, there

is no evidence in the record that any of these individually-named Defendants had anything

to do with them. Thus, there is no basis for imposing individual liability on any of these

Defendants for whatever mistreatment Ms. Brown may have suffered at the Carroll

County jail.

1 The Court questions whether the Eighth Amendment is the proper vehicle for this claim,

rather than the Fourteenth Amendment. See, e.g., Ervin v. Busby, 992 F.2d 147, 150

(8th Cir. 1993) (“[A]s a pretrial detainee, Ervin’s claim is analyzed under the due process

clause of the fourteenth amendment rather than the eighth amendment.”). But

regardless, “[p]retrial detainees are entitled to at least as much protection under the

Fourteenth Amendment as under the Eighth Amendment.” Hartsfield v. Colburn, 371

F.3d 454, 457 (8th Cir. 2004).

To recap, then: all named Defendants have qualified immunity from the claims that

Ms. Brown has brought against them in their individual capacities for alleged violations of

her constitutional rights. As for her official-capacity claims premised on the same alleged

violations, those must be construed as claims against Carroll County and the State of

Arkansas. See Monell v. Dept. of Social Servs. of City of N.Y., 436 U.S. 658, 690 n.55,

694 (1976). Under the Eleventh Amendment, the State of Arkansas enjoys sovereign

immunity from claims for damages arising from alleged constitutional violations. See,

e.g., Bunch v. Univ. of Ark. Bd. of Trustees, 863 F.3d 1062, 1067 (8th Cir. 2017).

Counties, on the other hand, may be liable for deprivations of constitutional rights,

but only when the deprivation was caused by the “execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts or acts may fairly be

said to represent official policy.” See Monell, 436 U.S. at 690 & nn.54—55, 694. But as

already discussed above, Ms. Brown has not shown any deprivation of her constitutional

rights at all with respect to her arrest or the removal of her children. Regarding the

conditions of her confinement, Ms. Brown has not pointed to any particular policy that

would accord with the treatment she claims to have received at the Carroll County jail,

nor has she put on any evidence, beyond the individual instances she is alleged to have

experienced personally, of “a pattern of ‘persistent and widespread’ unconstitutional

practices which became so ‘permanent and well settled’ as to have the effect and force

of law” at the Carroll County jail. See Jane Doe A by and through Jane Doe B v. Special

School Dist. of St. Louis Cnty., 901 F.2d 642, 646 (8th Cir. 1990) (quoting Monell, 436

U.S. at 691). Thus she cannot establish liability by Carroll County for any deprivations of

her constitutional rights that she may have experienced while detained at the Carroll

County jail.

To summarize: all of Ms. Brown’s constitutional claims must be dismissed, both

those brought against Defendants in their individual capacities, as well as those brought

against Defendants in their official capacities. The Court will now turn to Ms. Brown’s

state-law claims.

B. State-Law Claims

Ms. Brown has brought as many as four claims under Arkansas law: malicious

prosecution, outrage, civil conspiracy, and punitive damages. It is not clear to the Court

whether the claim Ms. Brown has styled as one for “malicious prosecution” refers to the

Arkansas tort by that name, or rather simply to a claim for violation of her rights under the

Fourth and Fourteenth Amendments as already discussed above. But regardless, she

cannot make out an Arkansas tort claim for malicious prosecution, because an essential

element of that claim is that there be “absence of probable cause for the proceeding.”

See Sundeen v. Kroger, 355 Ark. 138, 142 (2003). This Court has already found in the

preceding subsection of this Opinion and Order that there is no material dispute that

probable cause existed here.

As for Ms. Brown’s claim for outrage, that tort has four elements:

(1) the actor intended to inflict emotional distress or knew or should have

know that emotional distress was the likely result of his conduct; (2) the

conduct was extreme and outrageous, was beyond all possible bounds of

decency, and was utterly intolerable in a civilized community; (3) the actions

of the defendant were the cause of the plaintiffs distress; and (4) the

emotional distress sustained by the plaintiff was so severe that no

reasonable person could be expected to endure it.

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Kiersey v. Jeffrey, 369 Ark. 220, 222 (2007) (internal quotation marks omitted). The

Arkansas Supreme Court “gives a narrow view to the tort of outrage, and requires clear-

cut proof to establish the elements in outrage cases.” /d. This Court is unaware of any

Arkansas cases holding or even implying that it is “extreme and outrageous’ for a state

actor to make an arrest based on probable cause or to initiate removal proceedings based

on reasonable suspicion of child abuse or imminent harm to a child, and it is inconceivable

to this Court that the Arkansas Supreme Court would ever make such a holding. And

given that—as discussed in the preceding subsection—Ms. Brown has not introduced

any evidence that any of the named Defendants played any role in the conditions of her

confinement, she cannot satisfy the element of outrage requiring that “the actions of the

defendant were the cause of the plaintiff's distress.”

As for Ms. Brown’s claim for “civil conspiracy,” it is not clear to the Court whether

she is asserting the Arkansas tort by that name, or a federal cause under 42 U.S.C.

§ 1983. But either way, the claim must be dismissed. The Arkansas tort is not actionable

in and of itself, but rather must be predicated on some injury that was inflicted on Ms.

Brown pursuant to the alleged conspiracy. See Ballard Grp., Inc. v. BP Lubricants USA,

Inc., 2014 Ark. 276, at *17-*18. The federal cause is similarly derivative, and must be

predicated on an actual deprivation of a constitutional right or privilege. See Askew v.

Millerd, 191 F.3d 953, 957 (8th Cir. 1999). As already discussed, Ms. Brown has not

introduced any evidence that any of these Defendants had anything to do with her

conditions of confinement, and she has not shown that she suffered any other legal wrong

or actionable injury.

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Finally, Ms. Brown’s sole remaining count—“Count VI Punitive Damages,” see

Doc. 19, p. 23—is a remedy, not a cause of action. And as all her other claims have been

dismissed, there is no basis for awarding it.

IV. CONCLUSION

IT IS THEREFORE ORDERED that the Motion for Summary Judgment (Doc. 29)

filed by Defendants Kimberly Flowers, Mark Bailey, Randy Mayfield, and Carroll County,

and the Motion for Summary Judgment (Doc. 32) filed by Defendant Rebecca Novak are

both GRANTED. Judgment will be a ae with this Order.

IT IS SO ORDERED on this ae. day of March, 2019.

fe

NED STATES DISTRICT JUDGE

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