# Berrios v. Bailey

> District Court, W.D. Arkansas · September 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10766825

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** September 27, 2024
- **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/10766825

## How later opinions describe it (automated extraction)

- explaining that once the moving party meets its burden, “the party opposing summary judgment must not rest on the allegations in its pleadings; it must set forth specific facts showing that there is a genuine issue for trial”
- concluding that plaintiff had established a claim for deliberate indifference where defendant was aware that plaintiff was exhibiting symptoms substantially more serious than ordinary intoxication but failed to seek medical attention

## Opinion text

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

MITCHELL L. BERRIOS, PLAINTIFF

v. Civil No. 5:23-CV-05019-TLB-CDC

OFFICER JOSHUA BAILEY, Fayetteville Police Department; and
CORPORAL D. HARWOOD, DEFENDANTS.

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff Mitchell L. Berrios has filed a civil rights action pursuant to 42 U.S.C. § 1983.
Berrios proceeds pro se and in forma pauperis (IFP). See (ECF No. 9). Pursuant to the
provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable Timothy L. Brooks, United States
District Judge, referred this case to the undersigned for the purposes of making a Report and
Recommendation on Defendants’ Motion for Summary Judgment. (ECF No. 38). Berrios has
filed his Response. (ECF No. 43). This matter is therefore now ripe for the Court’s consideration.
For the reasons outlined below, the undersigned RECOMMENDS that the Motion for Summary
Judgment, (ECF No. 38), be GRANTED and that this matter be dismissed with prejudice.
I. BACKGROUND
On January 25, 2023, Plaintiff initiated a civil rights complaint pursuant to 42
U.S.C. § 1983.1 (ECF No. 1). Plaintiff’s original complaint identified Officer Joshua Bailey,
Fayetteville Police Department, Nancy Pryor, Washington County Public Defender, and Corporal

1 This section does not endeavor to describe every docket entry, only those relevant to the Court’s
consideration of Defendants’ Motion for Summary Judgment.
1
D. Harwood as defendants and generally alleged that he was arrested without probable cause on
May 3, 2022, and that his due process rights had been violated. Id. Because Plaintiff neither
submitted an in forma pauperis (“IFP”) application nor paid the full statutory filing fee when he
filed his complaint, this Court ordered Plaintiff, who was a pretrial detainee at the Washington
County Detention Center (“WCDC”) at the time, to either file a complete IFP application or pay

the full filing fee by February 15, 2023, failing which this matter would be subject to dismissal for
failure to prosecute. (ECF Nos. 2, 4).
On February 13, 2023, Plaintiff submitted an IFP application but disputed the information
provided in the inmate account and assets form. (ECF No. 5). In response to his objection, this
Court ordered Plaintiff to submit copies of his inmate account statements for the six months
preceding his initiation of this action so that this Court could calculate his initial partial filing fee
based on the formula prescribed by law, see 28 U.S.C. § 1915(b). On February 23, 2023, Plaintiff
submitted a supplement to his complaint. (ECF No. 7). On March 8, 2023, Plaintiff submitted
an amended IFP application. (ECF No. 8). Upon review of the amended IFP application, this

Court granted Plaintiff’s request to proceed IFP, and cautioned him that he must provide the Court
and parties with updated contact information within 30 days of any such change, failing which this
matter would be subject to dismissal. (ECF No. 9).
Upon preservice review of Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A(a), this
Court recommended that Plaintiff’s claims against Public Defender Nancy Pryor be dismissed
without prejudice for failure to state a claim upon which relief can be granted, see 28
U.S.C. § 1915(b)(1), and that the remaining claims be stayed pursuant to Younger v. Harris, 401
U.S. 37 (1971), because the factual predicate of Plaintiff’s claims was also the subject of ongoing

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criminal proceedings. (ECF No. 11). This Court further recommended that Plaintiff be ordered
to file a motion to reopen the case within 30 days of the conclusion of those criminal proceedings,
failing which this matter would be subject to dismissal. Id. Judge Brooks adopted those
recommendations over Plaintiff’s objection and this case was administratively closed pursuant to
Younger. (ECF No. 14).

Approximately five months later, on September 13, 2023, Plaintiff filed a Motion to
Reopen the case after the criminal case giving rise to Plaintiff’s claims was dismissed. (ECF No.
15). That same day, this Court granted Plaintiff’s Motion to Reopen and ordered Plaintiff to
submit an amended complaint describing his claims and cautioned him that the amended complaint
must not contain claims that were previously dismissed for failure to state a claim upon which
relief may be granted. (ECF No. 17). On September 25, 2023, Plaintiff filed an Amended
Complaint identifying Officer Joshua Bailey and Cpl. D. Harwood as defendants in their individual
capacities and alleging two claims for relief: (1) on May 3, 2022, Defendants Officer Joshua Bailey
and Cpl. D. Harwood fabricated evidence by saying that his mother, Ms. Valerie Jeremiah, claimed

that he had choked her to establish probable cause for his arrest; and (2) on May 3, 2022,
Defendants Bailey and Harwood failed to provide him and his mother with necessary medical
care.2 (ECF No. 18). On September 26, 2023, this Court ordered that Defendants Bailey and
Harwood be served with the Amended Complaint. (ECF No. 19). On October 2, 2023, Plaintiff
filed a supplement, adding further factual detail to his claims. (ECF No. 21).
On October 20, 2023, Defendants filed their Answer. (ECF No. 25). After the

2 Plaintiff’s Amended Complaint expressly identifies three claims for relief but claim three merely
provides additional factual detail regarding claim one (arrest without probable cause) and claim
two (failure to provide necessary medical care). See (ECF No. 18).
3
Defendants indicated that they did not intend to pursue the affirmative defense that Plaintiff first
failed to exhaust his administrative remedies before pursuing this action, (ECF No. 28), this Court
entered an initial scheduling order governing discovery and directing defendants to file a motion
for summary judgment on the merits by March 29, 2024, (ECF No. 29). Upon the Defendants’
request, this Court extended the deadlines to complete discovery and to file a motion for summary

judgment. (ECF Nos. 32, 33). On April 30, 2024, Defendants filed a Motion for Summary
Judgment, including four exhibits, a memorandum, and statement of facts in support. (ECF Nos.
38-40). That same day, this Court ordered Plaintiff to submit a response and provided instructions
on how to respond. (ECF No. 41). Plaintiff’s response was due May 21, 2024. Id. On May
20, 2024, Plaintiff filed his response, saying that he reviewed the body cam videos and was no
longer claiming the defendants fabricated evidence to establish probable cause for his arrest by
claiming that his mother had said that he had choked her but that he maintains that he did not, in
fact, choke her. (ECF No. 43).
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.

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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. FACTS
The facts in this case are largely undisputed.3 On May 3, 2022, Defendant Fayetteville
Police Officer Joshua Bailey was dispatched to 539 Gabbard Drive, one half of a duplex, in
Fayetteville, Arkansas in response to a domestic disturbance call. (ECF No. 38-2, p. 2). A
resident of 541 Gabbard Drive, the second half of the duplex, had called 911 to report that his
neighbor at 539 Gabbard Drive, later identified as Plaintiff Mitchell Berrios, was assaulting his
mother, Valerie Jeremiah. Id. When Defendant Bailey arrived, he encountered Plaintiff and
recognized him from previous encounters. Id. A third party sitting in a van parked in the
driveway was also present. Id. Defendant Bailey’s body cam was operating at the time and

captures the events leading up to and following Plaintiff’s arrest, including Defendant Bailey’s
conversation with Ms. Jeremiah. (Id.); see also (ECF No. 37, Joshua Bailey,
Axon_Body_3_Video_2022-05-03_0056_X6039CGHX (“Bailey Body Cam”)).
During his initial encounter with Plaintiff, Defendant Bailey could smell a strong odor of

3 Plaintiff’s Response to Defendants’ Motion for Summary Judgment was neither sworn under
penalty of perjury nor notarized. (ECF No. 43). Thus, this Court considers Plaintiff’s verified
Amended Complaint in determining whether there are any material fact disputes that preclude
summary judgment. See Ward v. Moore, 414 F.3d 968, 970 (8th Cir. 2005) (“Because [plaintiff]
verified her second amended complaint under penalty of perjury, it is the equivalent of an affidavit
and can serve as her response to the defendants’ summary judgment motion under Federal Rule of
Civil Procedure 56(e).”).
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alcohol emanating from Plaintiff’s breath. (ECF No. 38-2, p. 3). Defendant Bailey spoke with
Plaintiff and told him that he needed to check on Ms. Jeremiah before he could leave. (Id.).
Plaintiff eventually allowed Defendant Bailey to enter the house to speak to Ms. Jeremiah. (Id.).
Defendant Bailey was aware from his previous encounters with Plaintiff that Ms. Jeremiah is
disabled and hard of hearing. (Id.). When he spoke to Ms. Jeremiah, she was initially sitting on

the recliner in her room. (Id.). This next point, however, is in dispute: Defendant Bailey says
that when he asked Ms. Jeremiah how she was doing, Ms. Jeremiah eventually told him that
Plaintiff choked her and pointed to her neck. (Id.) She said it hurt but that she was able to
breathe. (Id.) Defendant Bailey included this information in his police report, (ECF No. 38-2,
p. 6), and the probable cause statement in support of Plaintiff’s arrest, (ECF No. 38-2, pp. 8-9).
In his Amended Complaint and at his deposition, Plaintiff says that the defendants fabricated this
evidence because his mother never told them that he had choked her. (ECF No. 18, p. 5); (ECF
No. 38-1, pp. 26-27).4
Defendant Bailey’s body cam video shows Defendant Bailey talking to Plaintiff for over

ten minutes before Plaintiff agrees to allow Defendant Bailey to check on Ms. Jeremiah’s safety.
(ECF No. 37, Bailey Body Cam at 6:06:49). During this time, Defendant Bailey remains calm
and maintains a conversational tone with Plaintiff, never raising his voice. (Id. at 5:56:18—
6:06:40). Plaintiff’s speech, by contrast, is plainly slurred, he grows agitated, and raises his voice,
exclaiming his grievances against his neighbors. (Id.) At one point, he stumbles and falls onto

4 In his Response to Defendants’ Motion for Summary Judgment, Plaintiff says that after having
watched Defendant Bailey’s body cam video, he no longer claims that Defendant Bailey fabricated
evidence but maintains that he never choked his mother. (ECF No. 43). Plaintiff’s change in
position is addressed below.
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the ground. (Id. at 6:05:56). When Defendant Bailey finally enters the house, he follows
Plaintiff, proceeding directly to the back room, where Ms. Jeremiah is sitting in a recliner. (Id. at
6:07). Defendant Bailey asks her how she is doing and directs Plaintiff to speak to another officer
about his complaints about his neighbors and then proceeds to talk to Ms. Jeremiah alone. (Id. at
6:08:26—6:08:45). The body cam video shows Ms. Jeremiah telling Defendant Bailey that she

is “basically ok, but really, no.” (Id. at 6:08:45). Upon further inquiry, Ms. Jeremiah told
Defendant Bailey that Plaintiff choked her that night. (Id. at 6:09:51—6:10:00). Defendant
Bailey told Ms. Jeremiah that he could see bruising on her neck and saw an injury on her chest, by
her collar bone. (Id.). The body cam video also shows Defendant Bailey using different
techniques to communicate with Ms. Jeremiah, who is hard of hearing—at one point he speaks
clearly and directly into her ear, and another time he writes his question on his notepad for Ms.
Jeremiah to read.
There is no dispute about any additional facts. After finishing his conversation with Ms.
Jeremiah, Defendant Bailey then walked back outside and asked Plaintiff what had happened.

(ECF No. 38-2, p. 4). Defendant Bailey explained to him that Ms. Jeremiah had told him that
Plaintiff had choked her, and that Plaintiff was under arrest for second degree domestic battery for
the alleged assault on Ms. Jeremiah and disorderly conduct for causing alarm to the public. (Id.).
Defendant Bailey then transported Plaintiff to the Washington County Detention Center
(“WCDC”), where he was booked into jail on those charges. (Id.).
Before Defendant Bailey left the scene to transport Plaintiff to the WCDC, he delegated
further investigation, including the task of taking pictures of Ms. Jeremiah’s injuries to other
officers who had arrived at the scene, including Defendant Harwood. (ECF No. 37, Joshua Baily

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Body Cam at 6:19); (ECF No. 38-3, p. 3). Defendant Harwood spoke to Ms. Jeremiah and took
pictures of her injuries. (ECF No. 38-3, p. 2). Again, the parties dispute what Ms. Jeremiah told
Defendant Harwood. Defendant Harwood says that she told him that Plaintiff “had been drinking
all day, came into her room upset, and placed his hands around her throat,” (ECF No. 38-3, pp. 2-
3), and he included this information in his police report, (ECF No. 38-3, p. 5). Plaintiff claims

that Defendants “fabricated” this evidence. (ECF No. 18, p. 5); (ECF No. 38-1, pp. 26-27).
Defendant Harwood, like Defendant Bailey, was wearing a body camera during this
incident. (ECF No. 37, Derek Harwood Axon_Body_3_Video_2022-05-03_0059_X6039CHYN
(“Harwood Body Cam”)). The body camera video captures Defendant Harwood’s conversation
with Ms. Jeremiah. (Id.). Defendant Harwood and Ms. Jeremiah are clearly having a more
difficult time communicating with each other. (See ECF No. 37, Harwood Body Cam, 6:27:30—
6:33). Ms. Jeremiah can read lips, but she cannot see Defendant Harwood’s face because the
overhead light is in her eyes. Defendant Harwood then writes his questions on a notepad, asking
Ms. Jeremiah if Plaintiff had scared her that night. (Id. at 6:31). Ms. Jeremiah reads the question

and responds, “yes,” explaining that she tries to keep her mouth shut. (Id.).
It is also undisputed that when Defendant Bailey arrived, he observed that Plaintiff had a
black eye. Plaintiff says that his neighbor, who had called 911 to report the disturbance, had
“knocked [him] out.” (ECF No. 18, p. 5). But neither Defendant contacted emergency medical
services (EMS) to examine his injuries (or his mother’s). At his deposition, Plaintiff explained
that he thought it would have been “prudent” if the officers to have done more to address his
injuries, but he further explained that he was no longer going to pursue the claim that officers failed
to properly treat his injuries. (ECF No. 38-1, pp. 24-28). Instead, he wanted to focus on the

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claim that the defendants fabricated evidence—namely, that his mother told them that he choked
her—to establish probable cause for his arrest. (Id.).
IV. ANALYSIS
Plaintiff’s Amended Complaint asserts two claims for relief: (1) on May 3, 2022,
Defendants Bailey and Harwood fabricated evidence to establish probable cause for his arrest; and

(2) Defendants Bailey and Harwood failed to render aid. (ECF No. 18). Defendants argue that
they are entitled to qualified immunity with respect to both claims. This Court agrees.
To determine whether Defendants are entitled to qualified immunity, the Court conducts a
two-part inquiry: “(1) whether the facts, viewed in the light most favorable to [Plaintiff],
demonstrate the deprivation of a constitutional or statutory right; and (2) whether that right was
clearly established at the time of the deprivation.” Ryno v. City of Waynesville, 58 F.4th 995,
1004 (8th Cir. 2023). Courts have “discretion to decide which of the two prongs of the qualified-
immunity analysis to tackle first.” Id. at 1005 (quoting Lombardo v. City of St. Louis, 38 F.4th 684,
690 (8th Cir. 2022)). “If [courts] conclude that the alleged facts do not violate a constitutional

right, then [courts] need not address the second inquiry, and the defendants will be entitled to
qualified immunity.” Id. (quoting Groenewold v. Kelley, 888 F.3d 365, 371 (8th Cir. 2018)).
Here, for the reasons described below, when viewed in the light most favorable to Plaintiff,
the undisputed facts in the summary judgment record show that the Defendants did not violate
Plaintiff constitutional rights. Alternatively, Plaintiff has either conceded or abandoned his
claims. Defendants’ Motion for Summary Judgment should therefore be granted. This Court
addresses each claim, in turn, below.

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A. Claim Two – Failure to Render Medical Aid
At his deposition, Plaintiff advised that he was abandoning claim two—failure to render
medical care—and that he intended to proceed only with respect to his claim that Defendants
Bailey and Harwood fabricated evidence to establish probable cause for his arrest (claim one).
(ECF No. 38-1, pp. 24-28). Plaintiff, therefore, explicitly abandoned claim two. Accordingly,

Plaintiff’s claim that the Defendants failed to render proper medical care is subject to dismissal on
that basis.
In any event, this claim fails on the merits. In determining whether the Defendants’ failure
to seek medical care for Plaintiff violated Plaintiff’s constitutional rights, courts apply the Eighth
Amendment “deliberate indifference” standard. See Barton v. Taber, 820 F.3d 958, 964 (8th Cir.
2016) (applying the Eighth Amendment “deliberate indifference” standard to an arrestee’s claim
that he was denied proper medical care during his arrest). The deliberate-indifference standard
requires “both an objective and subjective analysis.” Id. (quoting Hall v. Ramsey Cnty., 801 F.3d
912, 920 (8th Cir. 2015)).

“To meet the objective component of the deliberate-indifference standard, the complaint
must plead facts to demonstrate that [plaintiff] suffered an objectively serious medical need.” Id.
(citing Grayson v. Ross, 454 F.3d 802, 808-09 (8th Cir. 2006)). “To be objectively serious, a
medical need must have been diagnosed by a physician as requiring treatment or must be so
obvious that even a layperson would easily recognize the necessity for a doctor’s attention.” Id.
Courts “determine whether an objectively serious medical need exists based on the attendant
circumstances, irrespective of what the officer believes the cause to be.” Id. Here, it is
undisputed that Plaintiff was intoxicated, but he was awake, talking to officers, and responding to

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questions. In other words, there is no evidence in the record that Plaintiff was exhibiting any
symptoms aside from ordinary alcohol intoxication.
The subjective component “requires a showing that [defendant] actually knew [plaintiff]
needed medical care and disregarded a known risk to the arrestee’s health.” Id. at 965. Here,
again, while it is undisputed that Defendants Bailey and Harwood were aware that Plaintiff was

intoxicated, Plaintiff has offered no evidence suggesting that his medical condition required
prompt medical attention, he was not vomiting, he did not complain of a head injury, there is no
evidence that he ingested any controlled substances in addition to alcohol, and, indeed, he did not
request any medical care. Thus, Defendants did not violate Plaintiff’s constitutional rights in
failing to provide him with medical care.5 Cf. Barton, 820 F.3d at 967 (concluding that plaintiff
had established a claim for deliberate indifference where defendant was aware that plaintiff was
exhibiting symptoms substantially more serious than ordinary intoxication but failed to seek
medical attention). Defendants, therefore, are entitled to summary judgment with respect to this
claim.

B. Claim One -- Probable Cause for Arrest
In his Amended Complaint, Plaintiff contends that the Defendants fabricated evidence to
establish probable cause for his arrest by claiming that his mother, Ms. Jeremiah, said that he had
choked her on the night of his arrest. (ECF No. 18).
The Fourth Amendment protects the “right of the people to be secure in their persons,

5 To the extent that Plaintiff claims that the Defendants failed to provide adequate medical care to
his mother, Ms. Jeremiah, Plaintiff, a nonlawyer, has no right to represent another entity. See
Knoefler v. United Bank of Bismark, 20 F.3d 347, 348 (8th Cir. 1994) (providing that “[a]
nonlawyer . . . has no right to represent another entity”). Those claims are therefore similarly
dismissed.
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houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
A warrantless arrest violates the Fourth Amendment “unless it is supported by probable cause.”
Webster v. Westlake, 41 F. 4th 1004, 1010 (8th Cir. 2022) (citing Borgman v. Kedley, 646 F.3d
518, 522-23 (8th Cir. 2011)). “Probable cause exists when the totality of the circumstances at the
time of arrest would lead a reasonable person to think the defendant committed or is committing a

crime.” Id. (citing Ulrich v. Pope Cnty., 715 F.3d 1054, 1059 (8th Cir. 2013)). Further,
“arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is
based on probable cause if the mistake is ‘objectively reasonable.’” Joseph v. Allen, 712 F.3d
1222, 1226 (8th Cir. 2013).
It is undisputed that Defendants arrested Plaintiff on May 3, 2022, for second degree
domestic battery in violation of Ark. Code § 5-26-304 and disorderly conduct in violation of § 5-
71-207. (ECF No. 38-2, p. 8). Pursuant to § 5-26-304(a),
A person commits domestic battering in the second degree if:

. . .

(4) the person knowingly causes physical injury to a family or
household member he or she knows to be sixty (60) years of age
or older or twelve (12) years of age or younger.

Ark. Code § 5-26-304(a)(4).
Ark. Code § 5-71-207 provides that:
(a) A person commits the offense of disorderly conduct if, with the
purpose to cause public inconvenience, annoyance, or alarm or
recklessly creating a risk of public inconvenience, annoyance or
alarm, he or she:

(1) Engages in fighting or in violent, threatening, or tumultuous
behavior;

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(2) Makes unreasonable or excessive noise;
. . . .

Ark. Code § 5-71-207(a).
It is further undisputed that the Defendants arrived at Plaintiff’s address in response to
Plaintiff’s neighbor calling 911 to report a domestic disturbance at Plaintiff’s address and that
Plaintiff and his neighbor live in a duplex with shared walls. While Plaintiff asserts in his
Amended Complaint and claimed in his deposition that his mother, Ms. Jeremiah, never told police
that he had choked her, Defendants have presented evidence, including their sworn affidavits and
body cam video, demonstrating that Ms. Jeremiah did, in fact, tell police that Plaintiff had choked
her that night. Plaintiff, for his part, presents no facts rebutting this evidence, showing there is a
genuine issue for trial. See United of Omaha Life Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir.
2006) (explaining that once the moving party meets its burden, “the party opposing summary
judgment must not rest on the allegations in its pleadings; it must set forth specific facts showing
that there is a genuine issue for trial”). This Court, therefore, considers undisputed the fact that
Ms. Jeremiah told Defendants that Plaintiff had choked her that night. See Fed. R. Civ. P. 56(e)(2)

(when a party fails to properly address another party’s assertion of fact as required pursuant to Fed.
R. Civ. P. 56(c) the court may “consider the fact undisputed for the purposes of the motion”); see
also Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories,
one of which is blatantly contracted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for the purposes of ruling on a motion for summary
judgment.”).6

6 Plaintiff maintains that he did not, in fact, choke his mother the evening of May 3, 2022. (ECF
No. 43). But this Court need not decide whether Plaintiff choked his mother. Rather, this
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Accordingly, under the totality of the circumstances, it was not unreasonable, as a matter
of law, for Defendants to believe the crimes of second-degree battery and disorderly conduct were
being committed where, as here, it is undisputed that Defendants responded to Plaintiff’s residence
after a 911 call from a neighbor reporting a domestic disturbance; Plaintiff was intoxicated; Ms.
Jeremiah, who was identified as Plaintiff’s mother, also resided at that address; and Ms. Jeremiah

reported that Plaintiff had hurt her that night by choking her. On this record, therefore,
Defendants had probable cause to arrest Plaintiff without a warrant. Accordingly, Defendants are
entitled to summary judgment on claim one, as well.7
IV. CONCLUSION
In sum, and for the reasons described above, this Court recommends that Defendants’
Motion for Summary Judgment, (ECF No. 38), be GRANTED, and that this matter be
DISMISSED WITH PREJUDICE.
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

Court’s inquiry is limited to considering whether a reasonable officer upon hearing Ms. Jeremiah’s
report that her son had choked her would believe given totality of the circumstances that Plaintiff
had committed a crime. See Ulrich, 715 F.3d at 1059 (defining probable cause to arrest as “when
the totality of the circumstances at the time of the arrest are sufficient to lead a reasonable person
to believe that the defendant has committed or is committing an offense”). Upon review of the
undisputed facts in the summary judgment record, this Court answers that question in the
affirmative.
7 Plaintiff expressly concedes in his Response to Defendants’ Motion for Summary Judgment that
the Defendants’ body camera videos show that Ms. Jeremiah tells the Defendants that he had
choked her. Alternatively, therefore, this claim is subject to dismissal as waived. See Satcher v.
Univ. of Arkansas at Pine Bluff Bd. of Trustees, 558 F.3d 731, 735 (8th Cir. 2009) (“failure to
oppose a basis for summary judgment constitutes a waiver of that argument”).
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reminded that objections must be both timely and specific to trigger de novo review by the
district court.
STATUS OF REFERRAL: This matter is no longer referred.
DATED this 27th day of September 2024.

/s/ Christy Comstock
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10766825. Public record. Not legal advice.