Pratt v. Cearly

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION

BARRY MICHAEL PRATT, JR. PLAINTIFF

v. Civil No. 1:22-cv-01040-BAB

DEPUTY CEARLY1; and

LIEUTENANT BILL0F Y PERRY DEFENDANTS

MEMORANDUM OPINION

This is a civil rights action filed pro se by Plaintiff, Barry Michael Pratt, Jr., under 42

U.S.C. § 1983. On November 3, 2022, the parties consented to have the undersigned conduct all

proceedings in this case including a jury or nonjury trial and to order the entry of a final judgment

in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (ECF No. 20).

Plaintiff names as Defendants Deputy Kyle Clearly and Lieutenant Billy Perry. Plaintiff

claims Defendants violated his constitutional rights in both their individual capacities as well as

official capacities. Currently before the Court, is Defendants’ Motion for Summary Judgment

(ECF No. 30). Plaintiff responded to the Motion for Summary Judgment with a Motion to Proceed

to Trial. (ECF No. 35).

I. BACKGROUND

Plaintiff is not currently incarcerated. The claims here arose from Plaintiff’s arrest in El

Dorado, Arkansas on September 9, 2018. Plaintiff filed the instant Complaint on July 22, 2022 in

1 Defendant Kyle Clearly is incorrectly identified in the Complaint as Deputy Cearly. See

Answer, ECF No. 16.

this District. In his Complaint, Plaintiff alleges he was subjected to excessive force during his

arrest. It is undisputed Defendants arrested Plaintiff at his aunt’s home on September 9, 2018, and

Plaintiff suffered a head injury through the course of the arrest. (ECF No. 1).

The parties do not dispute the fact Plaintiff originally filed a separate lawsuit, in the Eastern

District of Arkansas, asserting this same excessive force claim. Pratt v. Perry, et al., Civil No.

4:20-cv-00754-KGB, at Plaintiff’s Complaint, ECF No. 1 (E.D. Ark. June 15, 2020). In Plaintiff’s

June 15, 2020 Complaint, Plaintiff included Defendant Perry and a John Doe officer as the

defendants. The Honorable Kristine G. Baker dismissed Plaintiff’s Complaint on January 25, 2021

for failure to update his address, file a completed in forma pauperis application, or pay the filing

fee in accordance with court orders. Pratt v. Perry, et al., Civil No. 4:20-cv-00754-KGB, Order

and Judgment, ECF Nos. 6-7 (E.D. Ark. Jan. 25, 2021). The dismissal was without prejudice.2

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Id.

Defendants filed a Motion for Summary Judgment with Brief in Support and Statement of

Undisputed Facts on February 17, 2023. (ECF Nos. 30, 31, 32). Defendants argue, Plaintiff’s

excessive force claim is barred by the applicable statute of limitations and cannot be “saved” by

the Arkansas “saving statute.” (ECF No. 31).

Plaintiff responded with a Motion to Proceed to Trial. (ECF No. 35). The Court construed

this as a response to Defendants’ Motion for Summary Judgment. Plaintiff argues this case was

originally filed in 2020 but dismissed for “mootness.” Plaintiff then reopened it in 2022 with the

instant Complaint. Further, Plaintiff notes he did not name Defendant Clearly in his 2020

2 The Court takes judicial notice of all documents and filings in Pratt v. Perry, et al., Civil No.

4:20-cv-00754-KGB (E.D. Ark. Jan. 25, 2021). See Stutzka v. McCarville, 420 F.3d 757, 760, n.

2 (8th Cir. 2005) (explaining a court may enlarge the record to consider judicial opinions and

public records).

Complaint by name but instead as a “John Doe.” (ECF No. 35, p. 1).3

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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 "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); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "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 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." Nat’l Bank, 165 F.3d at 607. "A case founded

on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. at 610.

“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).

Under Section 1983, a defendant may be sued in either his personal capacity, or in his

official capacity, or claims may be stated against a defendant in both his personal and his official

3 Plaintiff goes on to argue facts related to the use of excessive force, his injuries, and the

Defendants’ histories and behaviors. (ECF No. 35, pp. 2-4). The Court finds these facts

irrelevant to its analysis of the statute of limitations issue.

capacities. The type of conduct that is actionable and the type of defense available depend on

whether the claim is asserted against a defendant in his official or individual capacity. See Gorman

v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (internal citations omitted). “Claims against

individuals in their official capacities are equivalent to claims against the entity for which they

work; they require proof that a policy or custom of the entity violated the plaintiff’s rights, and the

only type of immunity available is one belonging to the entity itself.” Id. Personal capacity claims

“are those which allege personal liability for individual actions by officials in the course of their

duties; these claims do not require proof of any policy and qualified immunity may be raised as a

defense” to these individual capacity claims. Id. To state a claim under 42 U.S.C. § 1983, Plaintiff

must allege that the defendant acted under color of state law, and that the actor violated a right,

privilege, or immunity secured by the Constitution. West v. Atkins, 487 U.S. 42, 48 (1988);

Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999). The deprivation must be intentional;

mere negligence will not suffice to state a claim for deprivation of a constitutional right under

Section 1983. See Daniels v. Williams, 474 U.S. 327 (1986); See also Davidson v. Cannon, 474

U.S. 344 (1986).

Official capacity claims are “functionally equivalent to a suit against the employing

governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). To

sustain an official capacity claim against such an entity a plaintiff “must show that there was a

policy, custom, or official action that inflicted an actionable injury.” Johnson v. Hamilton, 452

F.3d 967, 973 (8th Cir. 2006). Thus, Plaintiff's official capacity claims against County Defendants

are “functionally equivalent,” Veatch, 627 F.3d at 1257, to alleging their employer, Miller County,

had “a policy, custom, or [took an] official action” that deprived him of his constitutional rights,

Johnson, 452 F.3d at 973.

To establish a claim for “custom” liability, Plaintiff must demonstrate:

1) The existence of a continuing, widespread, persistent pattern of unconstitutional

misconduct by the governmental entity's employees;

2) Deliberate indifference to or tacit authorization of such conduct by the governmental

entity's policymaking officials after notice to the official of that misconduct; and

3) That Plaintiff was injured by acts pursuant to the government entity's custom, i.e., that

the custom was a moving force behind the constitutional violation.

Johnson v. Douglas Cty Medical Dept., 725 F.3d 825, p. 828 (8th Cir. 2013). “A single deviation

from a written, official policy does not prove a conflicting custom.” Id. (quoting Wedemeier v.

City of Ballwin, Mo., 931 F.2d 24, 26 (8th Cir. 1991)).

III. DISCUSSION

Section 1983 claims are governed by the personal injury statute of limitations of the state

where the claim arose. Miller v. Norris, 247 F3d 736, 739 (8th Cir. 2001). In Arkansas that

limitation is three years. Ark. Code Ann. § 16-56-105 (2005); Baker v. Chisom, 501 F.3d 920, 922

(8th Cir. 2007) (explaining the Arkansas three-year statute of limitations applies to Section 1983

excessive force claims against officers) (citing Morton v. City of Little Rock, 934 F.2d 180, 182

(8th Cir. 1991)). The Arkansas Saving Statute also applies to Section 1983 claims if an Arkansas

plaintiff files a timely action and then “suffers a nonsuit.” Meaning the plaintiff “may commence

a new action within one (1) year” of the dismissal of his first non-suited action. Baker, 501 F.3d

at 922 (quoting Ark. Code Ann. § 16-56-126). However, “only causes of action pleaded in the

non-suited action are tolled by the one-year savings statute.” Id. at 922-23 (citing Dillaha v.

Yamaha Motor Corp., 23 F.3d 1376, 1377-78 (8th Cir. 1994)).

Here, it is undisputed the alleged excessive force occurred on September 9, 2018. It is also

undisputed, Plaintiff filed his original suit in the Eastern District of Arkansas on June 15, 2020.

Finally, it is undisputed Plaintiff’s Eastern District of Arkansas Complaint was dismissed without

prejudice on January 25, 2021.

Plaintiff filed the instant action on July 22, 2022—three years and ten months after the

incident occurred. Plaintiff’s claim is time barred unless tolled by the Arkansas Saving Statue.

The Saving Statute requires the new action be filed “within one (1) year after the nonsuit suffered

or judgment arrested or reversed.” Ark. Code Ann. § 16-56-126 (2023). Plaintiff filed this action

on July 22, 20224—approximately eighteen months after his initial action was dismissed, on

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January 25, 2021, by the Eastern District of Arkansas. Accordingly, Plaintiff’s claim is barred by

the applicable three-year statute of limitations, and Defendants are entitled to summary judgment.

IV. CONCLUSION

Defendants’ Motion for Summary Judgment (ECF No. 30) is GRANTED and all of

Plaintiff’s claims against Defendants are DISMISSED with prejudice.

IT IS SO ORDERED this 14th day of September 2023.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

4 Plaintiff’s instant Complaint was postmarked July 20, 2022 from the Union County Detention

Center. Accordingly, even if the prisoner mailbox rule applied, Plaintiff still cannot meet the one-

year Saving Statute grace period. See Sulik v. Taney Cty., 316 F.3d 813, 814-15 (8th Cir. 2003),

overruled on other grounds, 393 F.3d 765 (8th Cir. 2005); see also United States v. Harrison, 469

F.3d 1216, 1217 (8th Cir. 2006) (“Under the prison mailbox rule, a pro se pleading is deemed filed

upon deposit in the prison mail system prior to the expiration of the filing deadline.”).