Martz v. Simmons

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

HOLLIS DEVIN MARTZ PLAINTIFF

v. Civil No. 4:1 8-cv-04040

SHERIFF BENNY SIMMONS,

Sevier County, Arkansas; and

DEPUTY KRIS HUNDLEY DEFENDANTS

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants’ Motion for Summary Judgment. (ECF No. 19). Plaintiff

filed his Response on February 8, 2019. (ECF No. 24). Defendants filed a Reply (ECF No. 26) and

two supplements (ECF Nos. 28, 30, 33). The Court finds this matter is ripe for consideration.

I. BACKGROUND

This is a civil rights action filed by Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff

proceeds pro se and in forma pauperis. Plaintiff is incarcerated in the Pine Bluff Unit of the

Arkansas Department of Correction (“ADC”). Plaintiff has named Sevier County Sheriff Benny

Simmons and Deputy Kris Hundley as Defendants.

On April 27, 2016, Sevier County Deputies were dispatched to the residence of Thomas

and Christina Martz at 9:02 p.m., following a 911 call reporting that Plaintiff was shooting a gun

and being disorderly. (ECF No. 21-2 at 5-6). A Remington 870 Express shotgun was found in a

vehicle in front of the residence. (Id. at 5). Two spent shell casings were found and a vehicle had

been damaged by a shotgun blast. (Id.). Plaintiff could not be located and the officers left the

scene. (Id.). At approximately 12:30 a.m., Trudy Martz contacted the Sheriff’s Office again and

reported that Plaintiff was back in her yard. (Id.). Deputies, including Kris Hundley, were

dispatched and Plaintiff was taken to the ground, handcuffed, and placed under arrest. (Id.).

On April 27, 2016, Deputy Michael Barnes completed a probable cause affidavit for

Plaintiff’s arrest. (ECF No. 21-2 at 16-18). The probable cause affidavit outlines Plaintiff’s

conduct and notes that he was on “[p]robation with the Arkansas Department of Corrections for

Aggravated Assault.” (Id. at 17). On April 28, 2016, a judge found probable cause existed for the

issuance of an arrest warrant. (Id. at 19). A notation was made that bond would be set at the first

appearance. (Id.). Plaintiff was booked into the Sevier County Detention Center (“SCDC”) on

April 28, 2016, and charged with criminal mischief in the first degree, possession of firearms by

certain persons, aggravated assault with a deadly weapon, and terroristic threatening. (ECF No.

21-2 at 22). On May 1 and 6, 2016, Plaintiff submitted grievances claiming that he was placed

under arrest without a warrant, without any “paperwork,” and without any legal charges. (ECF

No. 21-3 at 2-3).

It is the policy of the SCDC that “detainees are responsible for informing detention facility

staff of their needs, and of problems they are experiencing. They must utilize the written sick call

and grievance procedures if necessary.” (ECF No. 21-1 at 2). Further, “[a]ny inmate shall be

allowed to file a grievance at such time as the inmate believes that he/she has been subjected to

abuse, harassment, abridgement of civil rights or denied privileges specified in the posted rules.”

(ECF No. 21-4 at 4). The SCDC has no written policy regarding first appearance hearings. (ECF

No. 30-1). According to Jail Administrator Chris Wolcott, “Former Sheriff Benny Simmons had

no personal involvement in arranging for the Plaintiff’s first appearance hearings on the criminal

charges made against him in Sevier County.” (Id.).

Plaintiff’s first appearance was held on May 12, 2016. (ECF No. 21-2 at 23). On June

10, 2016, Plaintiff was transported to the ADC. (ECF No. 21-2 at 25). Thereafter, he was booked

back into the SCDC on several occasions not having to do with the issues currently before the

Court. (Id. at 27-40).

Plaintiff’s criminal trial was held on March 14-15, 2018. (ECF No. 1-1 at 2). Plaintiff was

found guilty of possession of a firearm by a certain person and sentenced to a term of imprisonment

of 144 months in the ADC. (ECF No. 28-1 at 1 & 3). This charge had been severed from the other

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pending charges. (Id. at 3). Plaintiff received jail time credit for the thirty-three days he was

incarcerated in the SCDC in 2016. (Id). At the time judgment was entered on March 28, 2018,

the other charges remained pending. (Id).

In the instant case, Plaintiff alleges that his civil rights were violated when he was arrested

on April 28, 2016, and during his subsequent detention in the Sevier County Detention Center

(“SCDC”). Specifically, Plaintiff contends he was: (1) arrested without probable cause, (2)

subjected to the use of false statements in connection with his criminal prosecution, (3) subjected

to an illegal seizure of his firearm, (4) subjected to a violation of the speedy trial act, (5) not given

Miranda warnings, and (6) detained fifteen days before his first appearance on May 12, 2016.1

Plaintiff sues Defendants in their individual and official capacities.

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, the record “show[s] that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(c).

“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.” Nat’l Bank of Comm. v. Dow Chem. Co., 165 F.3d 602, 607

(8th Cir. 1999).

The nonmoving 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.” Nat’l 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

1 Plaintiff refers to a claim for denial of access to the law library in his summary judgment response. This claim was

not asserted in the Complaint and will not be addressed

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

621, 625 (8th Cir. 1985)).

III. DISCUSSION

Defendants contend they are entitled to summary judgment for the following reasons: (1)

there is no proof of any personal involvement by Defendants; (2) Plaintiff’s constitutional rights

were not violated by his first appearance hearing; (3) Plaintiff’s allegations are barred as a

collateral attack on his conviction under Heck v. Humphrey, 512 U.S. 477 (1994) and/or because

collateral estoppel applies; (4) Defendants are entitled to qualified immunity; and (5) there is no

basis for official capacity liability.

A. Arrest without Probable Cause, False Statements, and Illegal Seizure

Plaintiff’s claim that he was arrested without probable cause is not cognizable. In Heck v.

Humphrey, the Supreme Court held that a claim for damages for “allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render

a conviction or sentence invalid” is not cognizable until “the conviction or sentence has been

reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such a determination, or called into question by a federal court’s issuance of a

writ of habeas corpus.” 512 U.S. 477, 486-87. A finding that Plaintiff was arrested without

probable cause would necessarily imply the invalidity of his conviction. See, e.g, Sanders v.

Fayetteville City Police Dep’t, 160 Fed. App’x. 542, 543 (8th Cir. 2005) (citing Smithart v.

Towery, 79 F.3d 951, 952 (9th Cir. 1996) (allegations that the defendants lacked probable cause to

arrest the plaintiff and brought unfounded criminal charges challenged validity of conviction and

were Heck-barred)). To the extent Plaintiff is asserting his firearm was illegally seized and the

speedy trial act was violated, these claims too are not cognizable under Heck.2 Similarly, his claim

2 Collateral estoppel may also apply. Collateral estoppel applies when a Plaintiff seeks to use a section 1983 action

to relitigate in federal court issues that were decided against him in a state criminal proceeding. Allen v. McCurry,

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that Deputy Hundley made false statements and/or fabricated reports are barred by Heck. See, e.g.,

Young v. Bullock, No. 1:18-cv-102, 2019 WL 354874, at *3 (E.D. Mo. Jan. 29, 2019). Moreover,

Plaintiff’s conviction of the underlying offense of possession of a firearm by a certain person

conclusively determines that probable cause existed for his arrest. Malady v. Crunk, 902 F.2d 10,

11 (8th Cir. 1990) (conviction of underlying offense is complete defense to a civil rights action

asserting arrest was without probable cause).3

Accordingly, Defendants are entitled to summary judgment on these claims.

B. Miranda Warnings

The claims based on Defendants’ alleged failure to read Plaintiff his Miranda4 warnings

fail as a matter of law. The Constitution does not require the giving of Miranda warnings. See,

e.g., Chavez v. Martinez, 538 U.S. 760 (2003). In United States v. Patane, the Supreme Court

noted that “[o]ur cases . . . make clear . . . that a mere failure to give Miranda warnings does not,

by itself, violate a suspect’s constitutional rights or even the Miranda rule. . . . [T]he nature of the

right protected by the Self-Incrimination Clause, which the Miranda rule, in turn, protects . . . is a

fundamental trial right.” 542 U.S. 630, 641 (2004) (internal quotation marks and citations omitted)

(emphasis in original). If statements obtained during custodial interrogation are not used against

the party, there is no constitutional violation. Davis v. City of Charleston, 827 F.2d 317, 322 (8th

Cir. 1987). Plaintiff does not argue that any statements obtained from him during custodial

interrogation were used against him.

Accordingly, Defendants are entitled to summary judgment on this claim.

449 U.S. 90, 103 (1980); Simmons v. O’Brien, 77 F.3d 1093, 1097 (8th Cir. 1996) (“When a federal constitutional

issue is previously decided in a state criminal proceeding following a full and fair hearing, issue preclusion will

therefore bar relitigation of that issue in a § 1983 action”). However, the Court has insufficient information regarding

the state criminal proceedings to determine whether collateral estoppel applies and so expresses no opinion as to that

issue.

3 The Court also notes that the probable cause determination was made without delay on April 28, 2016. See Cnty.

of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991) (noting judicial probable cause determination should

generally be made within 48 hours of the warrantless arrest).

4 Miranda v. Arizona, 384 U.S. 436 (1966).

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C. First Appearance

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

detainee’s right to a prompt appearance in court after arrest. See Hayes v. Faulkner Cnty., 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)

whether the Due Process Clause prohibits an extended detention, without an initial appearance,

following arrest by a valid warrant; (2) whether a defendant’s conduct offends the standards of

substantive due process; and (3) whether the totality of the circumstances shocks the conscience.

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

Court will examine each in turn.

1. Extended Detention

In this case, Plaintiff was arrested without a warrant. A probable cause determination was

made later that same day. This probable cause determination satisfies the Fourth Amendment

requirements for a prompt judicial determination of probable cause following a warrantless arrest.

See Gerstein v. Pugh, 420 U.S. 103, 124-25 (1975). The determination can be made without a

personal appearance by the arrestee. See, e.g., Jones v. City of Santa Monica, 383 F.3d 1052,

1055-56 (9th Cir. 2004); Green v. Byrd, 358 F. Supp. 3d 782, 793-95 (E.D. Ark. 2018). This

determination serves to judicially approve the arrest without a warrant and places the arrest on the

same footing as one made pursuant to a warrant. See Tilson v. Forrest City Police Dep’t., 28 F.3d

802, 815 n.10 (8th Cir. 1994).

In Hayes, the Eighth Circuit, in addressing the first question—whether the Due Process

Clause prohibits an extended detention, without an initial appearance, following arrest by a valid

warrant—concluded that the “Due Process Clause forbids an extended detention, without a first

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appearance, following [an] arrest by warrant.” Hayes, 388 F.3d at 673. It is undisputed in this case

that Plaintiff was arrested on April 28, 2016, and did not appear before a judge until May 12, 2016.

The probable cause determination made in this case did not constitute a first appearance within the

meaning of Arkansas Rules of Criminal Procedure 8.1 and 8.3. Rule 8.1 requires a detainee, who

has not been released on citation or other lawful manner, be taken “before a judicial officer without

unnecessary delay.” Ark. R. Crim. P. 8.1. Rule 8.3 requires that the detainee be informed of the

charges against him; that he is not required to say anything and that anything he says can be used

against him; that he has the right to counsel; and that he has a right to communicate with his

counsel, family, or friends, and that reasonable means will be provided for him to do so. Ark. R.

Crim. P. 8.3(a). Further, Rule 8.3 provides that after the arrested person has an opportunity to

confer with counsel, the judicial officer may proceed with the pretrial release inquiry. Id. at 8.3(b).

The probable cause determination made the day of Plaintiff’s arrest did not accord him the

adversary safeguards afforded at the first appearance. In Gerstein, the Supreme Court noted that

“[t]he consequences of prolonged detention may be more serious than the interference occasioned

by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and

impair his family relationships.” Gerstein, 420 U.S. at 114.

Accordingly, the Court finds that the undisputed record indicates Plaintiff was subjected to

an extended detention.

2. Standards of Substantive Due Process

Second, the court must consider “whether the defendants’ conduct offends the standards

of substantive due process.” Hayes, 388 F.3d at 674. In this regard, the Hayes court noted that

“‘liability for deliberate indifference to inmate welfare rests upon the luxury enjoyed by prison

officials of having time to make unhurried judgments, upon the chance for repeated reflection,

largely uncomplicated by the pulls of competing obligations.’” Id. (quoting Cnty. of Sacramento

v. Lewis, 523 U.S. 833, 853 (1998)). The Hayes court noted that in Coleman v. Frantz, 754 F.2d

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719, 723-24 (7th Cir. 1985), the Seventh Circuit determined that the plaintiff’s “18-day detention

after arrest by warrant, but before initial appearance, violated [his] substantive due process rights.”

Hayes, 388 F.3d at 673. For the reasons discussed below, the Court finds that Defendant Sheriff

Simmons’ conduct offends the standards of substantive due process.

In this case, Plaintiff has sued Defendants in both their individual and official capacities.

To be held individually liable under section 1983, a defendant must, through his own actions, have

violated the Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A defendant in a section

1983 suit cannot be held vicariously liable for the acts of another. Parrish v. Ball, 594 F.3d 993,

1001 (8th Cir. 2010).

a. Individual Capacity Claim against Deputy Hundley

Here, the only connection Deputy Hundley had with Plaintiff was that he was one of the

deputies present when Plaintiff was arrested. Nothing in the record suggests he had any role in

Plaintiff’s continued detention or in scheduling or monitoring first appearances.

Accordingly, there is no basis for individual liability against Deputy Hundley and the issue

of whether he is entitled to qualified immunity need not be addressed.5

b. Individual Capacity Claim against Sheriff Simmons

With respect to Sheriff Simmons, there is nothing in the summary judgment record

indicating he was aware of Plaintiff’s arrest or detention. There is simply no evidence of any direct

participation in the alleged constitutional violations on his part. However, Plaintiff contends

Sheriff Simmons is liable based on his failure to properly train or supervise SCDC staff. A

supervisor can be held liable if his failure to train or supervise the offending actor caused the

5 Qualified immunity analysis need only be performed when there is a basis for individual liability. See, e.g., Parrish,

594 F.3d at 1001 (qualified immunity shields government officials from liability in their individual capacities).

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constitutional deprivation. Audio Odyssey, Ltd. v. Brenton First Nat’l Bank, 245 F.3d 721, 742

(8th Cir. 2001).

In Parrish, the Eighth Circuit set forth the requirements for liability for failure to supervise.

594 F.3d at 1002. Under Parrish, in order for Plaintiff to establish Sheriff Simmons’ liability as a

supervisor, he must show Sheriff Simmons: “1) Received notice of a pattern of unconstitutional

acts committed by subordinates; 2) Demonstrated deliberate indifference or tacit authorization of

the offensive acts; 3) Failed to take sufficient remedial action; and 4) That such failure proximately

caused [his] injury[.]” Id. (citations omitted). Here, “there is no showing of previous illegalities

that place Sheriff [Simmons] on the requisite notice.” Audio, 245 F.3d at 742. Therefore, Sheriff

Simmons is not liable based on a failure to supervise theory.

A supervisor may also be held liable for a failure to train an inferior officer “where the

failure to train amounts to deliberate indifference to the rights of persons with whom the police

come into contact. In such a situation, a plaintiff must also prove that the alleged failure to train

‘actually caused’ the constitutional deprivation.” Parrish, 594 F.3d at 1002. As can be seen from

Hayes and other cases discussed herein, a reasonable supervisor would have known that his failure

to train jail personnel on the issue of when first appearances should occur and on whether the jail

had authority for an extended detention of a detainee would likely result in the violation of

detainees’ substantive due process rights. Hayes, 388 F.3d at 673-74. In the case at bar, the

summary judgment record adequately supports the existence of a nexus between the failure to train

and the constitutional violation. Accordingly, the Court finds that there is a basis for Plaintiff’s

individual capacity claim against Sheriff Simmons.

However, Sheriff Simmons may avoid individual capacity liability if he is entitled to

qualified immunity. “Determining whether a defendant is entitled to qualified immunity requires

a two-step inquiry. Jones v. McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012). First, the Court must

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determine whether Plaintiff has alleged a deprivation of a constitutional right. Cox v. Sugg, 484

F.3d 1062, 1065 (8th Cir. 2007). If so, the Court must decide whether the implicated right was

clearly established at the time of the deprivation. Jones, 675 F.3d at 1161 (citing Parrish, 594

F.3d at 1001). “Clearly established” means “[t]he contours of the right must be sufficiently clear

that a reasonable official would understand that what he is doing violates that right.” Id. (quoting

Anderson v. Creighton, 483 U.S. 635, 640, (1987)). For a right to be clearly established, “existing

precedent must have placed the statutory or constitutional question beyond debate.” Smith v. City

of Minneapolis, 754 F.3d 541, 546 (8th Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011)). “If no reasonable fact finder could answer yes to both of these questions, the official

is entitled to qualified immunity.” Nance v. Sammis, 586 F.3d 604, 609 (8th Cir. 2009) (citation

omitted).

Turning to the first prong of the qualified immunity inquiry, the Court finds that Plaintiff

has alleged a deprivation of a constitutional right. For the reasons discussed above, the Court has

concluded that the facts, viewed in the light most favorable to Plaintiff, demonstrate that Sheriff

Simmons’ conduct offends the standards of substantive due process.

As noted above, the second prong of the qualified immunity inquiry asks whether the law

regarding substantive due process in connection with extended detentions was clearly established

in 2016. As can be seen from Hayes, 388 F.3d at 673-74, and the other cases cited above, the law

was clearly established by 2016 that a county sheriff had a duty to train jail personnel that they

must monitor whether detainees were taken for a first appearance and whether the jail had the right

to hold a detainee for an extended period of time.

Accordingly, as Plaintiff has alleged a deprivation of a constitutional right and that right

was clearly established at the time of the alleged deprivation, the Court finds that Sheriff Simmons

is not entitled to qualified immunity.

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c. Official Capacity Claims

Claims against Sheriff Simmons6 in his official capacity are the equivalent of a suit against

Sevier County. See, e.g., Roberts v. Dillon, 15 F.3d 113, 115 (8th Cir. 1994) (“An official-capacity

suit is merely another way of pleading an action directly against the public entity itself”). “[T]o

sustain the action against Sheriff [Simmons] in his official capacity, [Plaintiff] must prove that the

county ‘itself caused the constitutional violation at issue.’” Parrish, 594 F.3d at 997 (citation

omitted).

Specifically, Plaintiff “must show that his constitutional injury was caused by a policy or

custom of the [county], the implementation of which amounted to deliberate indifference to his

constitutional rights.” Lund v. Hennepin Cnty., 427 F.3d 1123, 1125 (8th Cir. 2005) (citations

omitted). “A policy is deliberately indifferent to a person’s constitutional rights when its

inadequacy is both obvious and likely to result in the alleged deprivation of constitutional rights.”

Russell v. Hennepin Cnty., 420 F.3d 841, 847 (8th Cir. 2005).

In Hayes, the plaintiff argued the county policy was to submit names of detainees to the

court and then wait for the court to schedule a hearing. Hayes, 388 F.3d at 674. The Eighth Circuit

noted that Oviatt v. Pearce, 954 F.2d 1470, 1478 (9th Cir. 1992), found a policy was deliberately

indifferent where the jail had no internal procedures to track whether inmates had been arraigned.

Hayes, 388 F.3d at 674. Further, the Eighth Circuit noted the court in Armstrong, 152 F.3d at 578-

79, had stated “[a] policy that ignores whether the jail has the authority for long-term confinement

seems to be a policy of deliberate indifference.” Hayes, 388 F.3d at 674. The Hayes court held

that “[b]ecause the County’s policy . . . attempts to delegate the responsibility of bringing detainees

6 An official capacity claim was also asserted against Deputy Hundley. However, it is appropriate to dismiss that

claim as duplicative or redundant because the claim is also asserted against Sheriff Simmons. Veatch v. Bartels

Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010) (citation omitted). Accordingly, the official capacity claim

against Deputy Hundley should be dismissed as duplicative and will not be discussed further.

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to court for a first appearance and ignores the jail’s authority for long-term confinement, the policy

is deliberately indifferent to detainees’ due process rights.” Id.

In the case at bar, Sevier County not only had no written policy regarding first appearances,

it required the detainees to bring any problems involving violations of their civil rights to the

attention of the jail staff. Plaintiff did so in this case, but Defendants took no action in response to

his grievances. While Plaintiff’s grievances did not specifically use the words “first appearance,”

it was clear he was objecting to his detention since his grievances claimed that he was placed under

arrest without a warrant, without any “paperwork,” and without any legal charges. (ECF No. 21-

3 at 2-3). Thus, the Court concludes that Plaintiff has adequately supported his claim that the

County’s “policy”—its failure to adopt adequate safeguards or provide training—was the product

of deliberate indifference to the constitutional rights of detainees. No internal safeguards were put

in place, no procedures were developed to ensure that the first appearances in fact occurred, no

follow-up was done, and no steps were taken to ensure that the detention center in fact had the

authority to continue to detain arrested individuals. The inadequacy of this policy appears to be

both obvious and likely to result in the deprivation of constitutional rights. See, e.g., Armstrong,

152 F.3d at 578-79 (“[J]ailers hold not only the keys to the jail cell, but also the knowledge of who

sits in the jail and how long they have sat there. They are the ones directly depriving detainees of

liberty.”).

Accordingly, the Court finds that Sheriff Simmons is not entitled to summary judgment on

Plaintiff’s official capacity claim.

3. Conduct that Shocks the Conscience

The “third and final step in this substantive due process analysis is determining whether,

in the totality of the circumstances, the defendants’ conduct in depriving the [plaintiff] of a

constitutional right shocks the conscience. This is a question of law.” Hayes, 388 F.3d at 675

(citations omitted). Deliberately indifferent conduct may not always shock the conscience. Id.

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As the Supreme Court has noted, “[d]eliberate indifference that shocks the conscience in one

environment may not be so patently egregious in another, and our concern with preserving the

constitutional proportions of substantive due process demands an exact analysis of circumstances

before any abuse of power is condemned as conscience-shocking.” Cnty of Sacramento, 523 U.S.

at 850.

The Eighth Circuit in Hayes stated that “in the totality of the circumstances in this case,

the key is Arkansas Rule of Criminal Procedure 8.1 that makes a prompt judicial appearance

mandatory.” Hayes, 388 F.3d at 675. The Eighth Circuit concluded that “[t]he County’s and

Kelley’s failure to take Hayes before a judge for 38 days [for a first appearance] shocks the

conscience.” Id.; see also Armstrong, 152 F.3d at 581-82 (shocks the conscience when inmate held

for fifty-seven days without first appearance despite his repeated inquiries); Coleman v. Frantz,

754 F.2d 719, 723-24 (7th Cir. 1985) (eighteen day detention without a first appearance shocks

the conscience); Scott v. Denzer, No. 06-cv-5202, 2008 WL 2945584, at *7 (W.D. Ark. July 28,

2008) (stating “failure to take Scott before the judge for seventeen days following the first arrest

and thirty-one days following the second arrest shocks the conscience”). But see Luckes, 415 F.3d

at 940 (twenty-four hour detention before first appearance does not shock the conscience);

Alexander v. City of Muscle Shoals, 766 F. Supp. 2d 1214, 1234 (N.D. Ala. 2011) (nine day

detention between arrest and time brought before a judge was not so severe as to shock the

conscience); Head v. United States, No. 07-3555, 2010 WL 908034, at *10 (D. Minn. March 9,

2010) (stating “four-day detention was not an extended detention, nor does it shock the

conscience”); Sanchez v. Campbell, No. 4:09-cv-420, 2010 WL 547620, at *3 (N.D. Fla. Feb. 10,

2010) (five day detention prior to first appearance does not violate the Fourteenth Amendment);

Afeworki v. Thompson, No. C06-628, 2007 WL 2572293, at *3-5 (W.D. Wash. Sept. 5, 2007)

(seventeen day delay did not amount to a due process violation); London v. Dorney, No. 07-2087,

2009 WL 903392, at *4 (W.D. Ark. Apr. 1, 2009) (three day delay in first appearance did not

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shock the conscience); Pledger v. Reece, No. 04-3084, 2005 WL 3783428, at *4 (W.D. Ark. Nov.

10, 2005) (fifteen day delay before first appearance did not shock the conscience where county

policy provided any new inmates must be brought before a judge within seventy-two hours and

sheriff immediately ordered Pledger released when he was notified of the extended detention).

In light of the caselaw on this subject, the Court finds that a fifteen day detention before a

first appearance, in conjunction with the showing Plaintiff has made and the grievances he filed,

shocks the conscience.

Accordingly, Defendant are not entitled to summary judgment on this claim.

D. Entitlement to Damages

Defendants next argue that Plaintiff is not entitled to damages because he was given credit

on his sentence for each day he was confined in Sevier County. Defendants’ correctly point out

that Plaintiff’s sentence was shortened by the days he spent detained prior to his first appearance.

Perhaps more importantly, the provisions of 42 U.S.C. § 1997e(e) bar a prisoner’s recovery for

mental or emotional damages in the absence of a physical injury. Here, Plaintiff has made no

allegation he suffered physical injury because of his detention. Thus, Plaintiff may not recover for

mental or emotional damages related to his substantive due process claim. Plaintiff, however, may

be entitled to an award of nominal and/or punitive damages against Sheriff Simmons. Royal v.

Kautzky, 375 F.3d 720, 723-24 (8th Cir. 2004) (observing that in cases where no physical injury

exists, the inmate is still free to seek nominal and punitive damages). That being said, this issue

is not presently before the Court and, accordingly, the Court will not decide it at this time.

IV. CONCLUSION

For the reasons stated, Defendants’ Motion for Summary Judgment (ECF No. 19) should

be and hereby is GRANTED IN PART and DENIED IN PART. Specifically, the Motion is

GRANTED with respect to the following claims:

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(1) Plaintiff’s claims that he was arrested without probable cause, that false statements

were made during his criminal case, and that an illegal seizure occurred. Plaintiff may

not pursue these claims until his conviction has been reversed, set aside, or otherwise

called into question. Accordingly, these claims are DISMISSED WITHOUT

PREJUDICE;

(2) Plaintiff’s claim that he was not given Miranda warnings is DISMISSED WITH

PREJUDICE; and

(3) All claims against Deputy Hundley are DISMISSED WITH PREJUDICE.

The Motion is DENIED with respect to:

(1) Plaintiff’s individual and official capacity claims against Sheriff Simmons that his

extended detention without a first appearance violates his substantive due process

rights.

Sheriff Simmons is advised that the Court believes it may be appropriate to grant Plaintiff

summary judgment on this remaining claim. Sheriff Simmons is given until May 29, 2019, to file

a response on this issue. Plaintiff may also file any further argument or documentation he wishes

by May 29, 2019.

IT IS SO ORDERED, this 14th day of May, 2019.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge

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