# Martz v. Simmons

> District Court, W.D. Arkansas · July 30, 2019

URL: https://www.frixlaw.com/law-library/cases/10010100

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** July 30, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10010100

## How later opinions describe it (automated extraction)

- finding eighteen day detention without a first appearance shocks the conscience
- stating that a “single incident, or a series of isolated incidents, usually provides an insufficient basis upon which to assign supervisory liability”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION

HOLLIS DEVIN MARTZ PLAINTIFF

v. Civil No. 4:18-cv-04040

SHERIFF BENNY SIMMONS, DEFENDANT
Sevier County, Arkansas

MEMORANDUM OPINION

On May 14, 2019, the Court entered a Memorandum Opinion and Order (ECF No. 34)
granting in part and denying in part Defendants’ Motion for Summary Judgment (ECF No. 19).
Specifically, the motion (ECF No. 19) was denied as to Plaintiff’s individual and official capacity
claims against Sheriff Simmons for allegedly violating Plaintiff’s substantive due process rights
when Sheriff Simmons extended Plaintiff’s detention without a first appearance. The Court
advised Sheriff Simmons that it might be appropriate to grant Plaintiff summary judgment on these
claims. Sheriff Simmons was given until May 29, 2019, to file a response on this issue. (ECF No.
34, p. 15). Plaintiff was also given until May 29, 2019, to file any further argument or
documentation he wished for the Court to consider. (Id.). Sheriff Simmons filed a response (ECF
No. 35) contending he that he remains entitled to summary judgment. (ECF No. 35). Plaintiff has
filed objections to the response. (ECF No. 36). The Court finds this matter is ripe for
consideration.
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 Randall L. Williams Unit
of the Arkansas Department of Correction (“ADC”).
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, p. 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, pp. 2-3).
Plaintiff’s first appearance was held on May 12, 2016. (ECF No. 21-2, p. 23). On June
10, 2016, Plaintiff was transported to the ADC. (ECF No. 21-2, p. 25).
Plaintiff’s criminal trial was held on March 14-15, 2018. (ECF No. 1-1, p. 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, pp. 1, 3). This charge had been severed
from the other 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.1 (Id.).
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 A more detailed background is contained in the Court’s Memorandum Opinion and Order. (ECF No. 34).
insufficient to survive a motion for summary judgment.” Id. (citing Metge v. Baehler, 762 F.2d
621, 625 (8th Cir. 1985)).
DISCUSSION
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.
I. The Original Summary Judgment Motion
In their Summary Judgment Motion and supporting documents (ECF Nos. 19-21, 30),
Defendants presented the following information regarding the handling of first appearances: (1)
the SCDC had no written policy regarding first appearance hearings; and (2) 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.”

Defendants presented no other evidence regarding any training that was done with respect
to the timing of first appearances, or any internal safeguards, or procedures to ensure that the first
appearances did in fact occur, or any steps taken to ensure the detention center had the authority
to continue to detain arrested individuals. In view of this lack of evidence, the Court concluded
that due to the failure to adopt adequate safeguards or provide training, it appeared both obvious
and likely to result in the deprivation of constitutional rights. The Court further concluded that a
fifteen-day detention before a first appearance, in conjunction with the showing Plaintiff had made,
and the grievances he filed, shocked the conscience.
II. Sheriff Simmons’ Supplement
In Sheriff Simmons’ supplement (ECF No. 35), he presents for the first time his affidavit
describing the training he provided to Administrator Wolcott and another affidavit2 from
Administrator Wolcott setting forth his efforts to obtain an earlier first appearance for Plaintiff.
Sheriff Simmons seeks to excuse his failure to provide this evidence previously on the grounds
that “counsel thought that the case law—which has never found a delay of 15 days or less
conscience-shocking prior to the Court’s Order in this case—would entitle the Defendants to
qualified immunity . . . rendering arguments about necessity [of the delay] superfluous.” (ECF
No. 35, p. 2 n.1).
The applicable case law does not support counsel’s belief that there is a bright-line rule
that delineates when a detention amounts to an extended detention which shocks the conscience
within the meaning of the Due Process Clause. While longer periods of detention without a first
appearance appear to be the norm in cases finding that an extended detention shocks the
conscience, there is support in the case law for the conclusion that shorter periods of detention may
indeed shock the conscience. See, e.g., Curtis v. White, No. 2:09-cv-00097, 2010 WL 5625668
(E.D. Ark. Dec. 17, 2018) (finding due process violated by detention of ten days before a first
appearance); see also Coleman v. Frantz, 754 F.2d 719, 723-24 (7th Cir. 1985) (finding eighteen
day detention without a first appearance shocks the conscience). Moreover, with respect to Rule

8.1 of the Arkansas Rules of Criminal Procedure, it has been held that detentions of three-and-a-
half days without a first appearance violate this provision. Clay v. State, 883 S.W.2d 822, 829
(Ark. 1994). Consequently, whether substantive due process was violated depends on the

2 Two affidavits were submitted with the original summary judgment motion. (ECF Nos. 21-1, 30-1).
particular facts of each case and their egregiousness—not necessarily the number of days detained.
Although Plaintiff was subjected to an extended detention, that does not necessarily mean that
liability follows. There has to be a determination whether under the totality of the circumstances
Sheriff Simmons’ conduct amounts to a violation of substantive due process and shocks the
conscience.
According to Sheriff Simmons, prior to the relevant time period, he “instructed and trained”
Administrator Wolcott: (1) that first appearance hearings were required for each new inmate,
regardless of their reason for being in jail, and each inmate charged with a new crime while in jail;
(2) that first appearance hearings were substantively different from the probable cause
determination; (3) that first appearance hearings should occur without unnecessary delay,
generally within 72 hours; and (4) that the Sheriff should be advised if the jail administrator needed
the Sheriff’s assistance on a particular hearing and/or if an inmate had gone for an extended period
of time, no longer than a week, without receiving a first appearance. (ECF No. 35-1, p. 1). Sheriff
Simmons also indicates he told Administrator Wolcott that he was personally responsible for
coordinating and scheduling all first appearance hearings. (Id.).
Sheriff Simmons indicates that he was not informed of the delay in Plaintiff’s first
appearance. (ECF No. 35-1, p. 2). Sheriff Simmons asserts that he “did not actually know those
facts until this suit was filed.” (Id.). Further, he states he could not recall ever being sued by an
inmate in relation to a delay in a first appearance. (Id.).
Administrator Wolcott indicates he was trained as set forth in Sheriff Simmons’ affidavit
and knew it was his responsibility to schedule and coordinate the first appearances. (ECF No. 35-

2, p. 1). Specifically, with respect to Plaintiff, Administrator Wolcott states that:
In the case of Hollis Devin Martz, in late April and early May of 2016, I began
trying to schedule his first appearance hearing almost immediately after his intake
into the jail. Unfortunately, at the time, the state district judges would not see
inmates for first appearance hearing[s] and the circuit judges could not, and would
not (for reasons related to the judges’ schedules and availability), see Mr. Martz
until his first appearance hearing on May 12, 2016.
(Id. at 2). Administrator Wolcott goes on to add that he never advised Sheriff Simmons of the
scheduling difficulties with respect to Plaintiff’s first appearance because there was nothing else
that could be done and he did not consider the delay to be unnecessary since it was based on the
availability of a judge. (Id.).
Based on this newly presented evidence, Sheriff Simmons argues that Plaintiff cannot
establish a substantive due process violation. Sheriff Simmons also contends that he is entitled
to qualified immunity. Plaintiff disagrees, arguing that if Administrator Wolcott was trained by
Sheriff Simmons “they both had knowledge” about Plaintiff’s first appearance. Further, Plaintiff
contends Administrator Wolcott should be added as a Defendant.3

A. Individual Liability
Individual liability under section 1983 must be based on personal involvement. Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009). “Liability under section 1983 requires a causal link to, and
direct responsibility for, the deprivation of rights. To establish personal liability of the supervisory
defendant, [Plaintiff] must allege specific facts of personal involvement in, or direct responsibility
for, a deprivation of his constitutional rights.” Clemmons v. Armontrout, 477 F.3d 962, 967 (8th
Cir. 2007) (quoting Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006)). 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).
Upon review, no evidence suggests Sheriff Simmons was personally involved in, or even
aware of, Plaintiff’s extended detention without a first appearance. Rule 8.1 requires an arrestee
to be taken for a first appearance without unnecessary delay which has been interpreted to mean

3 There is currently no pending motion or proposed amended pleading seeking to join Administrator Wolcott as a
party to this action as required by the Federal Rules of Civil Procedure and the Local Rules. See Fed. R. Civ. P,
7(b); Local Rule 5.5. Moreover, the deadline to amend pleadings and join parties in this case passed on November
26, 2018. (ECF No. 17, p. 2). Therefore, the Court declines to join Administrator Wolcott as a party to this action.
within seventy-two hours. While Sheriff Simmons does not have a written policy, he asserts that
his verbal training incorporated the seventy-two-hour limit. As noted above, Administrator
Wolcott did not advise the Sheriff about Plaintiff’s situation. Therefore, the Court finds that
Sheriff Simmons cannot be held liable in his personal capacity when he did not participate in the
alleged unconstitutional conduct.
However, Sheriff Simmons may still be subject to liability in his supervisory capacity if
his own failure to supervise or train Administrator Wolcott resulted in the alleged constitutional
violation. Audio Odyssey, Ltd. v. Brenton First Nat’l Bank, 245 F.3d 721, 742 (8th Cir. 2001). In
order for Plaintiff to establish Sheriff Simmons’ liability for failure to supervise, 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 injury to
[Plaintiff].” Parrish, 94 F.3d at 1002.
The summary judgment record, when viewed in the light most favorable to the Plaintiff,
contains “no showing of previous illegalities that place Sheriff [Simmons] on the requisite notice”
of a pattern of unconstitutional acts committed by subordinates. Audio, 245 F.3d at 742.
Therefore, the Court finds that 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. Sheriff Simmons has
outlined the training given to Administrator Wolcott and Administrator Wolcott has affirmatively
acknowledged having received that training. There is nothing in the summary judgment record
that shows a pattern of delays in first appearances or even that there were other incidents where an
extended delay occurred. Wever v. Lincoln Cnty. Neb., 388 F.3d 601, 607 (8th Cir. 2004) (stating
that a “single incident, or a series of isolated incidents, usually provides an insufficient basis upon
which to assign supervisory liability”). In the case at bar, there is no suggestion that the training
was so inadequate that it actually caused the constitutional deprivation. Therefore, the Court finds
that Sheriff Simmons is not liable based on a failure to train theory.
Accordingly, Sheriff Simmons is entitled to summary judgment on Plaintiffs individual
capacity claims.
B. Official Capacity Claim
Claims against individuals in their official capacities are equivalent to claims against the
entity for which they work. Hafer v. Melo, 502 U.S. 21, 24-27 (1991). “There are two basic
circumstances under which municipal liability will attach: (1) where a particular municipal policy

or custom itself violates federal law, or directs an employee to do so; and (2) where a facially
lawful municipal policy or custom was adopted with ‘deliberate indifference’ to its known or
obvious consequences.” Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir. 2009) (citation omitted).
The SCDC’s verbal policy does not itself violate federal law or direct an employee to do
so. “A policy which does not ‘affirmatively sanction’ unconstitutional action, and which instead
relies on the discretion of the municipality’s employees, is not an unconstitutional policy.” Id. at
818.
Because SCDC’s verbal policy was:
facially lawful and did not compel unconstitutional action, [Plaintiff has] the high
burden of proving that the county’s decision to maintain the policy was made with
deliberate indifference to its known or obvious consequences. The standard for
deliberate indifference is objective; a governmental entity is liable if it has
maintained a policy in which the inadequacy is so obvious, and the inadequacy is
so likely to result in the violation of constitutional rights that the policymakers can
be said to have been deliberately indifferent. A showing of simple or even
heightened negligence will not suffice.

Id. at 818-819 (internal citation and quotation omitted).
In the instant case, Plaintiff has pointed to no evidence in the summary judgment record
that creates a genuine issue of fact as to whether “the county had notice of an alleged inadequacy
in the [first appearance] policy or that the policy’s alleged inadequacy was so patently obvious that
the county should have known that a constitutional violation was inevitable.” Moyle, 571 F.3d at

819. However, a local government may also be held liable if the failure to train or supervise the
offending actor caused the deprivation. In Parrish, the Court set forth the requirements to establish
governmental or official capacity liability based on a failure to train. Parrish, 594 F.3d at 997. It
stated that a government may be subject to liability for inadequate training of its employees where:
(1) the [county’s] . . . training practices [were] inadequate; (2) the [county] was
deliberately indifferent to the rights of others in adopting them, such that the failure
to train reflects a deliberate or conscious choice by [the county] ; and (3) an alleged
deficiency in the . . . training procedures actually caused the plaintiff’ s injury.

Id. (cleaned up).
Even where it is established that only minimal training is received, “that finding alone will
not satisfy a § 1983 claim for failure to train.” Parrish, 594 F.3d at 997. Instead, Plaintiff:
must demonstrate “that in light of the duties assigned to specific officers . . . the
need for more or different training is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that the policymakers of the [county]
can reasonably be said to have been deliberately indifferent to the need.”

Id. at 998 (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)).
Plaintiff has made no such showing. He does not identify any specific deficiency in the
training given to Administrator Wolcott. Instead, he simply argues that he was detained for an
extended period of time without a first appearance. The summary judgment record does not
contain any evidence of a deficiency in the training or suggest a causal relationship between the
failure to train and the alleged constitutional violation. The Plaintiff does not indicate there were
other occasions on which Administrator Wolcott failed to promptly arrange for an arrestee’s first
appearance. See Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996) (finding failure to
follow policy does not state a claim for relief under section 1983). Therefore, Sevier County is
not liable for its alleged failure to train.
Finally, Plaintiff asserts an official capacity claim based on an alleged failure to supervise.

The summary judgment record, however, contains no evidence of a custom, policy, or widespread
practice of failing to supervise officers. A single incident that resulted in an outcome not
satisfactory to the Plaintiff does not demonstrate that Sevier County had notice that its supervision
was so lacking that it was likely to result in inmates being detained for extended periods of time
without a prompt first appearance. Parrish, 594 F.3d at 999. In sum, the Court finds no basis for
official capacity liability.
Accordingly, Sheriff Simmons is entitled to summary judgment on Plaintiff’s official
capacity claims.4
CONCLUSION
For the above reasons, the Court GRANTS summary judgment in favor of Sheriff
Simmons.5 Accordingly, this case is DISMISSED WITH PREJUDICE. A judgment of even

date shall issue.
IT IS SO ORDERED, this 30th day of July 2019.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge

4 Because no constitutional violation occurred, the Court does not address the issue of qualified immunity. Morris
v. Lanpher, 563 F.3d 399, 402 (8th Cir. 2009).
5 The Court grants summary judgment sua sponte pursuant to Federal Rule of Civil Procedure 56(f)(1). As noted
above, both parties were given notice and an opportunity to respond to the Court’s finding that Plaintiff’s claims
could be resolved on summary judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10010100. Public record. Not legal advice.