Nash v. Overstreet

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

BRIKARY KIRARY NASH, PLAINTIFF

v. Civil No. 4:22-cv-04014-SOH-BAB

JAILER PRESTON OVERSTREET,

Little River County Detention Center, DEFENDANT.

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

This is a civil rights action filed by Plaintiff Brikary Kirary Nash (“Nash”) pursuant to 42

U.S.C. § 1983. Nash proceeds pro se and in forma pauperis (IFP). Pursuant to the provisions of

28 U.S.C. §§ 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief United States District

Judge, referred this case to the undersigned for the purposes of making a Report and

Recommendation on Defendant’s Motion for Summary Judgment. (ECF No. 19). Nash has filed

a response to the Motion. (ECF No. 32). This matter is therefore now ripe for the Court’s

consideration. And for the reasons outlined below, the undersigned RECOMMENDS that the

Motion for Summary Judgment, (ECF No. 19), be DENIED IN PART and GRANTED IN PART.

I. BACKGROUND

On December 26, 2021, Nash was a pretrial inmate at the Little River County Detention

Center (“LRCDC”). (Amend. Comp. at p. 3 (ECF No. 7)).1 At some point during the day,

1 Nash was twice instructed that if he submitted an affidavit in response to the Defendant’s Motion

for Summary Judgment, the affidavit must be either: (1) sworn and subscribed to by a notary

public; or (2) executed under penalty of perjury, as provided for by 28 U.S.C. § 1746. (ECF Nos.

22 & 25). Nash’s response does neither. (ECF No. 32). Because Nash verified his Amended

Complaint under penalty of perjury, however, it is the equivalent of an affidavit and can serve as

his response to the Defendant’s Motion for Summary Judgment under Rule 56(e) of the Federal

Rules of Civil Procedure. Ward v. Moore, 414 F.3d 968, 970 (8th Cir. 2005) (citing Spear v.

Dayton’s, 733 F.2d 554, 555-56 (8th Cir. 1984)). The Court, then, considers only the Amended

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Defendant Preston Overstreet (“Overstreet”) directed Nash to return to his cell for lock down. Id.

at p. 4. The parties dispute what happened next. On motion for summary judgment, however,

the Court must take the non-movant’s version of events as true unless it is “blatantly contradicted

by the record.” Scott v. Harris, 550 U.S. 372, 380 (2007). Thus, the Court first considers Nash’s

version.

A. Nash’s version.

According to Nash, when Overstreet directed him to return to his cell for lockdown, he

requested a grievance form from her. (Amend. Comp. at p. 4 (ECF No. 7)). When she did not

bring him a grievance form as promised, he started pressing the intercom button, but no one

answered so he continued pressing the button. Id. Rather than answer the intercom, Nash claims

that Overstreet came to his cell, opened the cell door, and told him to press the intercom button

again. Id. Nash complied, and Overstreet sprayed him twice in the eyes with pepper spray. Id.

B. Overstreet’s version.

Overstreet’s affidavit paints an entirely different picture. According to Overstreet, after

he returned to his cell, Nash repeatedly pressed the intercom button and kicked his cell door.

(Overstreet Aff. ¶ 5, Exh. B (ECF No. 19-2)). Overstreet claims that she repeatedly used the

intercom system to ask Nash what was going on and to advise him to calm down, but to no avail.

Id. at ¶ 6. Overstreet contends that an inmate in a different cell then began to mirror Nash’s

behavior by also pushing the intercom button and kicking his own cell door. Id. at ¶ 7. Overstreet

became “concerned [] that Mr. Nash could become violent or start a riot.” Id. According to

Complaint in considering whether there are any genuine disputes of material fact that would

preclude granting summary judgment. Id. The Court treats as argument Plaintiff’s response to

Defendant’s Motion for Summary Judgment.

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Overstreet, when she approached Nash in his cell to address the behavior, “he again failed to follow

commands” so she pepper sprayed him. Id. at ¶ 8. Overstreet claims that she pepper sprayed him

again after a few seconds when “Nash came towards [her]” to “prevent him from coming closer.”

Id. at ¶ 9.

Although it appears there may be video of the incident, (Incident Rep. (ECF No. 19-2)), no

party submitted the video for the Court’s consideration.

II. 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). “A dispute is genuine if the evidence is such that it could cause a reasonable jury to

return a verdict for either party.” Ward v. Olson, 939 F. Supp. 2d 956, 961 (D. Minn. 2013) (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is material only when its

resolution would affect the outcome of a case. Anderson, 477 U.S. at 248.

Further, the moving party bears the initial burden of identifying “those portions of the

record which it believes demonstrate the absence of a genuine issue of material fact.” Jackson v.

United Parcel Serv., Inc., 643 F.3d 1081, 1085 (8th Cir. 2001). In response, the nonmoving party

“may not rest upon mere denials or allegations, but must instead set forth specific facts sufficient

to raise a genuine issue for trial.” Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).

In considering a summary judgment motion, the court views all the evidence and inferences in the

light most favorable to the nonmoving party. Anderson, 477 U.S. at 255.

III. ANALYSIS

Nash names Overstreet as a defendant in her individual and official capacity. Overstreet

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requests summary judgment with respect to both claims. Each claim is addressed, in turn, below.

A. Individual Capacity Claim

Overstreet contends that she is entitled to qualified immunity because her use of force

against Nash was a reasonable attempt to maintain order in the jail. (Def. Br. at p. 2 (ECF No. 20)).

“In resolving questions of qualified immunity at summary judgment, courts engage in a

two-pronged inquiry. The first asks whether the facts, taken in the light most favorable to the party

asserting the injury, show the officer's conduct violated a federal right.” Smith v. Conway County,

759 F.3d 853, 858 (8th Cir. 2014) (citation, quotation marks, and alterations omitted). The second

“asks whether the right in question was clearly established at the time of the violation.” Id. (citation

and quotation marks omitted).

1. Constitutional Right

Turning first to the question of whether Overstreet’s use of force violated Nash’s

constitutional rights, Overstreet views Nash’s claims under the Eighth Amendment’s “cruel and

unusual punishment” standard. (Def. Br. at p. 3 (ECF No. 20)). This is the wrong standard. As

a pretrial detainee, this Court analyzes Nash’s excessive-force claim under the Due Process Clause

of the Fourteenth Amendment, which “protects a pretrial detainee from the use of excessive force

that amounts to punishment.” Kingsley v. Hendrickson, 576 U.S. 389, 397-98 (2015) (quoting

Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). To prevail on such a claim, “a pretrial

detainee must show only that the force purposely or knowingly used against him was objectively

unreasonable.” Id. at 396-97. Courts, however, cannot apply the “objectively unreasonable”

standard mechanically. Id. at 397. “Rather, objective reasonableness turns on the facts and

circumstances of each particular case.” Id. (quoting Graham, 490 U.S. at 396). A court must

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adopt “the perspective of a reasonable officer on the scene” and base its analysis on “what the

officer knew at the time,” without “the 20/20 vision of hindsight.” Id.

In evaluating the reasonableness of a use of force, courts consider:

the relationship between the need for the use of force and the amount of force used; the

extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the

amount of force; the severity of the security problem at issue; the threat reasonably

perceived by the officer; and whether the plaintiff was actively resisting.

Kingsley, 576 U.S. at 397.

In this case, there is considerable disagreement regarding the circumstances leading up to

Overstreet’s use of force in first deploying the pepper spray and then in her decision to deploy it

again.2 As it must, the Court accepts as true Nash’s version of events. According to Nash, he

kept pressing the intercom button because no one was answering it. (Amend. Comp. at p. 4 (ECF

No. 7)). Nash contends that rather than answer it, Overstreet came to his cell, opened the door,

and told him to press the intercom button again. Id. When he complied, Overstreet deployed

pepper spray in his eyes, twice. Id. Applying Kingsley to these facts, the Court finds, that an issue

of material fact exists as to whether Overstreet used excessive force in violation of the Due Process

Clause.

First, there was no apparent need to use force in the first place. Although Nash was

2 Overstreet appears to contend that Nash’s failure to characterize Overstreet’s use of force as

“excessive” is somehow detrimental to Nash’s claim. (Def. Br. at p. 4 (ECF No. 20)). This Court

is not persuaded. Courts are to liberally construe pro se filings. See Erickson v. Pardus, 551 U.S.

89, 94 (2007). Liberal construction means that the court construes a pro se litigant’s filing “in a

way that permits the [litigant’s] claim to be considered within the proper legal framework.” Stone

v. Harry, 364 F.3d 912, 915 (8th Cir. 2004)). With this in mind, the Court understands Nash as

claiming that Overstreet used excessive force against him when she twice deployed pepper spray

in his face—purportedly without provocation—even though his claims do not specifically assert

that this use of force was “excessive.”

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repeatedly hitting the intercom button, this conduct, by itself, does not appear to be aggressive or

violent. By contrast, Overstreet’s response—spraying Nash in the eyes with pepper spray—was

substantial. According to Nash, moreover, Overstreet never ordered him to stop pressing the

intercom button. (Comp. at p. 4 (ECF No. 7)). Therefore, by continuing to press the button, he

was not failing to comply with her commands. Indeed, according to Nash, Overstreet sprayed

him in the eyes with pepper spray after he followed her directions and pressed the button again.

Id. This factor weighs in favor of Nash. Further, Nash claims that being pepper sprayed has

negatively affected his vision. Id. at p. 7. Third, Overstreet did not make any efforts to temper

the use of force by, for example, answering the intercom. Indeed, according to Nash, the use of

force was entirely unprovoked. Id. at p. 6. The second and third Kingsley factors, therefore, also

weigh in favor of allowing Nash’s claim of excessive force to survive summary judgment.

With respect to the fourth and fifth factors, the severity of the security concern and the

threat reasonably perceived by Overstreet were minimal. It is undisputed that the inmates were

locked in their cells at the time of the incident. See (Amend Comp. (ECF No. 7)); cf. (Aff. of

Overstreet, Exh. B (ECF No. 19-2)). Although Overstreet claims that Nash’s behavior prompted

another inmate to also repeatedly press the intercom button and kick his cell door, it appears that

Nash was in the “cell one” area of the detention center whereas this other unidentified inmate was

in “cell three.” (Aff. of Overstreet ¶¶ 3, 7, Exh. B (ECF No. 19-2)). Thus, any perceived threat

caused by Nash using (and perhaps abusing) the intercom system was mitigated by the fact that

the inmates were locked down at the time and in separate cells. Finally, according to Nash, he

was not resisting or failing to comply with Overstreet’s directives. (Amend Comp. (ECF No. 7)).

Thus, in sum, assuming, as the Court must, that Nash’s version of events is true, Overstreet acted

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without provocation in spraying him in the eyes with pepper spray. Accordingly, for the purposes

of summary judgment, the Court finds that an issue of material fact exists as to whether Overstreet

violated Nash’s Fourteenth Amendment right to be free from excessive force as a pretrial detainee.

2. Clearly Established Right

The next question in the qualified immunity analysis is whether that right was clearly

established at the time of the incident, or on December 26, 2021. The Court finds that it was.

A “defendant cannot be said to have violated a clearly established right unless the right’s

contours were sufficiently definite that any reasonable official in the defendant’s shoes would have

understood that he was violating it.” Tatum v. Robinson, 858 F.3d 544, 547 (8th Cir. 2017) (quoting

Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2012)). But “there is no requirement that [the

plaintiff] must find a case where the very action in question has previously been held unlawful, so

long as existing precedent [has] placed the statutory or constitutional question beyond debate.”

Karels v. Storz, 906 F.3d 740, 747 (8th Cir. 2018) (cleaned up).

At the time of the incident, it was clearly established that using force against a pretrial

inmate who was not actively resisting or acting aggressively was unconstitutional. See Edwards v.

Byrd, 750 F.3d 728, 732 (8th Cir. 2014) (finding that it was clearly established that using force

against pretrial inmates who “did not resist or otherwise act aggressively” was unconstitutional)

(listing cases)); Smith v. Conway Cnty., Ark., 759 F.3d 853, 860-61 (8th Cir. 2014) (concluding

that prisoner’s right to be free from being tased a second time was clearly established where

prisoner was not violent and clearly trying to comply with directives at the time of the second tase).

To be sure, Overstreet disputes Nash’s version of events. However, for the purposes of summary

judgment, the Court must accept this version as true. To this end, at a minimum, there is a genuine

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issue of material fact precluding summary judgment on Nash’s individual capacity claim against

Overstreet for her use of force against him on December 26, 2021. Accordingly, the Court

recommends that Overstreet’s Motion for Summary Judgment as to this claim be DENIED.

B. Official Capacity Claim

This leaves Nash’s official capacity claim against Overstreet. The Court must treat this

claim as a claim against her employer, or, in this case, Little River County. Brewington v. Keener,

902 F.3d 796, 800 (8th Cir. 2018) (quoting Liebe v. Norton, 157 F.3d 574, 578 (8th Cir. 1998)

(internal quotations and citations omitted)). And a municipality like Little River County is only

liable under Section 1983 when “the execution of the government’s policy or custom . . . inflicts

the injury.” Monell v. Dep’t. of Social Srvs., 436 U.S. 658, 694-95 (1978)).

“When a plaintiff can point to a municipal policy that either ‘violates federal law, or directs

an employee to do so,’ ‘no evidence is needed other than a statement of the municipal policy and

its exercise’ to establish a constitutional violation.” Brewington, 902 F.3d at 801 (citing Szabla v.

City of Brooklyn Park, Minn., 486 F.3d 385, 389, 90 (8th Cir. 2007) (additional citations omitted)).

“But when a plaintiff alleges an unwritten or unofficial policy, there must be evidence of . . . a

practice, so permanent and well-settled so as to constitute a accustom, that existed.” Id. (citing

Davison v. City of Minneapolis, 490 F.3d 648, 659 (8th Cir. 2007) (additional citations omitted)).

Here, Nash fails to point to a policy directing Overstreet—or anyone else—to violate the

federal constitution or federal law. See (Amend. Comp. (ECF No. 7)). Indeed, Nash presents no

admissible evidence controverting the express policy of the Little River Detention Center

authorizing “only that force and restraint necessary to control an inmate who displays a violent or

threatening behavior.” (Def.’s Mot. Summ. J. at p. 3, Ex. A-1 (ECF No. 19-1)). Thus, for Nash’s

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official capacity claim against Overstreet to survive summary judgment, he must establish that the

Detention Center has an unofficial policy or custom to use excessive force against pretrial inmates.

To do so, Nash 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 officials of that misconduct; and (3) that the plaintiff was injured by

acts pursuant to the governmental entity’s custom, i.e., that the custom was the moving force

behind the constitutional violation.” Corwin v. City of Independence, Mo., 829 F.3d 695, 700 (8th

Cir. 2016)). The pattern of unconstitutional conduct, moreover, “must be so pervasive and

widespread as to have the effect and force of law.” Brewington, 902 F.3d at 801 (quoting Andrews

v. Fowler, 98 F.3d 1069, 1075 (8th Cir. 1996) (quotations omitted)).

In this case, Nash does not assert any facts suggesting the “existence of a widespread,

persistent pattern of constitutional misconduct” in deploying excessive force against pretrial

inmates. See (Amend. Comp. (ECF No. 7)). One incident, as alleged here, moreover, is generally

insufficient to satisfy this standard. See Smith v. Watkins, 159 F.3d 1137, 1138 (8th Cir. 1998)

(observing that the court recently held that “two specific complaints and various rumors about an

officer were not sufficient to establish a policy or custom of condoning unconstitutional conduct”)

(citing Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996)); see also Ulrich v. Pope Cnty., 715

F.3d 1054, 1061 (8th Cir. 2013) (“Generally, an isolated incident of alleged police misconduct,

such as [Plaintiff] alleges occurred here, cannot, as a matter of law, establish a municipal policy

or custom creating liability under § 1983.”). Thus, there is no material issue of fact regarding

Nash’s official capacity claim. The Court, therefore, recommends that Defendant’s Motion for

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Summary Judgment with respect to the claim against Overstreet in her official capacity be granted.

IV. CONCLUSION

In sum, this Court recommends that Defendant’s Motion for Summary Judgment, (ECF

No. 19), be GRANTED in part, and DENIED in part. Specifically,

1. Summary Judgment as to Plaintiff Brikary Nash’s excessive-force claim against

Defendant Preston Overstreet in her individual capacity should be DENIED.

2. Summary Judgment as to Plaintiff Brikary Nash’s excessive-force claim against

Defendant Preston Overstreet in her official capacity should be GRANTED.

The parties have fourteen days from receipt of the Report and Recommendation in

which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. The parties are

reminded that objections must be both timely and specific to trigger de novo review by the

district court.

DATED this 8th day of June 2023.

/s/ Barry A. Bryant

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

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