Pulliam

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

DELTA DIVISION

CHEEZY PULLIAM PLAINTIFF

v. CASE NO. 2:24-CV-00148-BSM

EARNEST CHAD RASH, individually

and in his official capacity for the City

of West Memphis DEFENDANT

ORDER

Defendant’s motion for summary judgment on plaintiff’s individual capacity claims

[Doc. No. 36] is denied on all claims except outrage and his motion for summary judgment

on plaintiff’s official capacity claims [Doc. No. 29] is granted.

I. BACKGROUND

The undisputed facts as set forth in plaintiff’s response to defendant’s statements of

undisputed material facts, Doc. Nos. 51 (SUMF I) & 57 (SUMF II), are as follows.

Defendant Earnest Rash is a police officer with the West Memphis Police Department.

SUMF II ¶ 1. When West Memphis Police Officer Cecil Langston attempted to stop plaintiff

Cheezy Pulliam’s car, Pulliam fled and Rash joined in the pursuit. Id. ¶¶ 2 & 4–5. Pulliam’s

car ultimately came to a stop and he was arrested by officer Taurus Harvell. Id. ¶¶ 7–8.

Pulliam states that when Rash arrived at the scene, he kicked Pulliam in the head while

Pulliam was lying on the ground in handcuffs. Id. ¶¶ 9–11. Although Pulliam told officers

on the scene that he was kicked in the head, no injuries were observed and Pulliam declined

medical care. Id. ¶¶ 12–15. Pulliam never received treatment and did not file a formal

complaint. Id. ¶¶ 17–18, 22.

The police department initiated an internal affairs investigation after a video of the

incident was uploaded to the internet. Id. ¶¶ 23–29. The investigation concluded that Rash

deliberately kicked Pulliam in violation of policy. Id. ¶ 30. Chief Robbin Campbell held a

disciplinary hearing and decided to fire Rash. Id. ¶ 32. After an appeal hearing, West

Memphis Mayor Marco McClendon overruled Campbell, reinstated Rash, gave him a ten day

suspension, and ordered him to attend anger management classes. Id. ¶¶ 34–35.

Pulliam is suing Rash in his individual and official capacities under 42 U.S.C. section

1983 and the Arkansas Civil Rights Act for excessive force and claims of civil action by a

crime victim, assault, battery, and outrage. Doc. No. 52 ¶ 21; Doc. No. 56 ¶ 1. Rash is

moving for summary judgment on all claims.

II. LEGAL STANDARD

Summary judgment is appropriate when there is no genuine dispute as to any material

fact, and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986). Once the moving party

demonstrates that there is no genuine dispute of material fact, the non-moving party may not

rest upon the mere allegations or denials in his pleadings. Holden v. Hirner, 663 F.3d 336,

340 (8th Cir. 2011). Instead, the non-moving party must produce admissible evidence

demonstrating a genuine factual dispute requiring a trial. Id. All reasonable inferences must

be drawn in a light most favorable to the non-moving party. Holland v. Sam’s Club, 487

F.3d 641, 643 (8th Cir. 2007). The evidence is not weighed, and no credibility

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determinations are made. Jenkins v. Winter, 540 F.3d 742, 750 (8th Cir. 2008).

III. DISCUSSION

A. Individual Capacity Claims

Summary judgment is denied on all of Pulliam’s individual capacity claims except his

outrage claim.

1. 42 U.S.C. Section 1983 and Arkansas Civil Rights Act

To establish an excessive force claim under the Fourth Amendment, Pulliam must

show that Rash used unreasonable force. Nieters v. Holtan, 83 F.4th 1099, 1108 (8th Cir.

2023), cert. denied, 144 S. Ct. 1349 (2024); Graham v. Cawthorn, 427 S.W.3d 34, 44–45

(Ark. 2013) (ACRA excessive force claims are analyzed identically to those filed under

section 1983). Whether the force used by Rash complied with the Fourth Amendment

depends on whether his actions were objectively reasonable in light of the facts and

circumstances confronting him, without regard to his subjective intent or motivation.

Nieters, 83 F.4th at 1108. The totality of the circumstances must be considered, including

the severity of the crime committed by Pulliam, whether Pulliam posed an immediate threat

to the safety of Rash or others, and whether Pulliam was actively fleeing or resisting arrest

at the time the force was used. Id. While de minimus use of force is not actionable, de

minimus injury is. Westwater v. Church, 60 F.4th 1124, 1129 (8th Cir. 2023).

Kicking a detainee in the head while he is lying on the ground in handcuffs violates

the Fourth Amendment. See cases cited below in qualified immunity discussion. Viewing

the record in the light most favorable to Pulliam, there are genuine issues of material fact in

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dispute as to whether Rash kicked Pulliam while he was lying on the ground in handcuffs.

This is true because the video of the incident is sufficient to create a close question. See

SUMF II, Ex. 10, Too Tymes Video at 00:04–00:29. Whether this video shows Rash kicking

Pulliam is a fact question for a jury to determine because reasonable jurors could see this

differently.

Rash argues that Pulliam’s inconsistent statements on where exactly Rash kicked him

weigh against his self-serving claim that Rash kicked him. Regardless of the specific place

on the head where the kick landed, Pulliam has consistently asserted that Rash kicked him

in the head. The weight and reliability of Pulliam’s statements is for a jury to determine.

Rash also spends a significant amount of time arguing that the Internal Affairs report

detailing the department’s response to the video should not be admitted into evidence, which

will be taken up closer to trial, but even if it were deemed inadmissable, the video is enough

to survive summary judgment.

The next question is whether Rash is immune from suit. Qualified immunity shields

law enforcement officers from civil damages when their conduct does not violate a clearly

established statutory or constitutional right of which a reasonable person would have known.

Kelsay v. Ernst, 933 F.3d 975, 979 (8th Cir. 2019).

Qualified immunity does not shield Rash because it is clearly established that an

arrestee lying on the ground in handcuffs has a right not to be kicked in the head. Nieters,

83 F.4th at 1109. Use of force against a non-threatening or non-resisting suspect may be

unlawful. See Chambers v. Pennycook, 641 F.3d 898, 907 (8th Cir. 2011) (being kicked

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several times on both sides of his body, although he was restrained on the ground and

offering no resistance was not objectively reasonable); Smith v. Kansas City, Missouri Police

Dep’t, 586 F.3d 576, 582 (8th Cir. 2009) (knocking a non-resisting suspect to the ground is

a violation of a clearly established right); Lambert v. City of Dumas, 187 F.3d 931, 936 (8th

Cir.1999) (holding that “[a] single small cut of the lateral right eyelid and small scrapes of

the right posterior knee and upper calf” were sufficient to support an excessive force claim);

compare with Robinson v. Hawkins, 937 F.3d 1128, 1136 (8th Cir. 2019) (not excessive force

when shoved against a trailer to be handcuffed). Finally, a genuine issue of material fact

exists as to whether Rash actually kicked Pulliam in the head.

2. Assault and Battery

To prove his assault and battery claim, Pulliam must show that (1) Rash intentionally

placed Pulliam in fear of immediate physical harm and (2) Rash acted with the intent to cause

harmful contact to Pulliam and did so. Mann v. Pierce, 505 S.W.3d 150, 154 (Ark. 2016).

For the reasons explained above, a reasonable juror could find that Rash intentionally kicked

Pulliam and did so with intent to cause harm. Summary judgment is therefore denied.

3. Civil Action by a Crime Victim Act

Summary judgment is denied on Pulliam’s civil action by a crime victim claim. To

establish this claim, Pulliam must prove he was damaged by Rash’s felonious conduct. Ark.

Code Ann. § 5-13-203. In support of this requirement, Pulliam argues that Rash committed

aggravated assault against him. See Br. Supp. Pl.’s Resp. Def.’s Mot. Summ. J. Individual

Capacity at 5, Doc. No. 58. Pulliam must also show that Rash purposely engaged in conduct

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that created a substantial danger of death or serious physical injury. Ark. Code Ann. § 5-13-

204 (a)(1). Pulliam argues that kicking someone in the head creates a substantial danger of

death or serious physical injury. Whether this is true is a question to be determined by the

jury. J.N.A. v. State, 532 S.W.3d 582, 589 (Ark. Ct. App. 2017) (a gun used as a bludgeon

could inflict the requisite harm for aggravated assault) (the fact-finder considers the evidence

as a whole).

4. Outrage

Summary judgment is granted on Pulliam’s outrage claim. Although Pulliam

maintains this claim in his response, he does not make any argument about it, therefore it is

waived. Satcher v. Univ. of Arkansas at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (8th Cir.

2009); Pl.’s Resp. Def.s’ Mot. Summ. J. ¶ 21, Doc. No. 52; Br. Supp. Pl.’s Resp., Doc. No.,

58.

B. Official Capacity Claims

Summary judgement is granted on Pulliam’s official capacity claims. A suit against

Rash in his official capacity is the same as a suit against the Department. See Johnson v.

Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). To prove his section 1983 claim,

Pulliam must establish the existence of a policy or custom resulting in his injury. Monell v.

Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690–91 (1978). Pulliam narrows his

official capacity arguments to ratification of Rash’s actions by Mayor McClendon and a

widespread custom of tolerating force and suppressing accountability. See Pl.’s Br. Opp.

Def.’s Mot. Summ. J. at 9–10, Doc. No. 58.

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1. Ratification by Mayor McClendon

Pulliam first argues that Mayor McClendon approved Rash’s decision and the basis

for it when he reinstated Rash and implemented a ten day suspension with anger management

as his discipline. Id. Liability for ratification attaches only when the decision maker possess

final authority to establish policy with respect to the action. Pembaur v. City of Cincinnati,

475 U.S. 469, 481 (1986). The fact that Mayor McClendon has discretion in the exercise of

particular function does not, without more, give rise to liability based on the exercise of that

discretion. Id. at 482. The problem for Pulliam, is that Mayor McClendon is not the final

policy maker for the Department. Id. (the official must be responsible for establishing final

government policy respecting such activity); see Brinkley v. City of Helena-W. Helena, Ark.,

No. 2:11-CV-00207-SWW, 2014 WL 4164614 *3 (E.D. Ark. Aug. 21, 2014) (while the

police department is under the direction of the mayor it does not necessarily render the mayor

the final policy maker for the police department); Ark. Code Ann. § 14-52-101 (the city

council shall have power to establish a city police department and prescribe its duties and

powers).

Even if Mayor McClendon is the final policymaker for the police department, he did

not approve Rash’s decisions or the basis for it. See Soltesz v. Rushmore Plaza Civic Ctr.,

847 F.3d 941, 947 (8th Cir. 2017) (ratification requires proof that the policymaker

specifically approved the subordinates act). Although, ratification is generally a question for

the jury, it is undisputed that Mayor McClendon disciplined Rash for the incident. SUMF

I ¶ 29. The fact that Pulliam disagrees with the discipline that was handed out does not mean

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that the Mayor ratified Rash’s actions.

2. Widespread Custom

Pulliam next argues that the West Memphis Police Department has a widespread

custom of tolerating force and suppressing accountability. Doc. No 58 at 10. To establish

a custom, Pulliam must show (1) the existence of a continuing, widespread, persistent pattern

of unconstitutional misconduct by the Department employees; (2) deliberate indifference to

or tacit authorization of such conduct by the Department’s policymaking officials after notice

to the officials of that misconduct; and (3) Pulliam’s injury by acts pursuant to the

Department’s custom - proof that the custom was the moving force behind the constitutional

violation. Ware v. Jackson Cnty., Mo., 150 F.3d 873, 880 (8th Cir. 1998).

To prove that there is a pattern of misconduct at the Department, Pulliam points to the

affidavit of former West Memphis police officer, Stacy Allen, that alleges the Department

has a “cowboy culture of non-compliance with the constitution;” wants staff to be like the

“Italian mafia;” and encourages the use of “phonebook” tactics. Aff. Stacy Allen, Doc. No.

51, Ex. 1 ¶¶ 4–5, 10. Additionally, Pulliam points to the declaration of Mose Walker which

explains that Chief Campbell repeatedly circumvents the chain of command and that the

discipline process is reactive to public exposure. Dec. Mose Walker, Doc. No. 51, Ex. 2 ¶¶

3–5. Evidence that the Department failed to investigate previous incidents similar to

Pulliam’s may support a finding that a custom exists. See Mettler v. Whitledge, 165 F.3d

1197, 1205 (8th Cir. 1999). The problem for Pulliam, however, is that these affidavits do not

detail any similar incidents. Although Allen’s affidavit describes an excessive force incident

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involving a citizen, it does not describe an incident similar to the one at issue and it states that

Chief Campbell said it was being investigated and two officers were disciplined. Allen Aff.

¶ 13; see also Dep. Earnest Chad Rash at 14:5–15. Further, a single incident normally does

not suffice to prove a custom. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985).

Pulliam also argues that the failure of the Department to file a use of force report

immediately after the incident shows the Department has a custom of non-reporting, non-

investigation, and leniency, which are the moving forces behind Rash’s actions. Doc. No.

58 at 11. The uncontested evidence shows that once the video appeared on social media, the

Department launched an investigation, relieved Rash of duty pending the investigation,

interviewed witnesses, including Pulliam, held a disciplinary hearing, and terminated Rash.

SUMF I ¶¶ 22–27. Pulliam points to nothing in the record that would support a pattern of

non-investigation. It is true that neither Rash nor the other officers at the scene filled out a

use of force report, but Rash maintained that he did not kick Pulliam, rather he tripped and

fell. Id. ¶¶ 19–20. While it is possible that the failure to file a use of force report was a

violation of Department policy, Pulliam has failed as a matter of law to prove causation

between a custom and his injury. Rogers v. City of Little Rock, Ark., 152 F.3d 790, 799 (8th

Cir. 1998); Walton v. Dawson, 752 F.3d 1109, 1122 (8th Cir. 2014) (violating an internal

policy does not ipso facto violate the Constitution).

Finally, Pulliam argues that Department leadership such as Chief Campbell and

Mayor McClendon were on notice and tacitly authorized deferring or suppressing internal

affairs involvement. Doc. No. 58 at 11. Even if true, this is insufficient to show that the

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West Memphis City Council was on notice of prior excessive force incidents. See Szabla v.

City of Brooklyn Park, Minn., 486 F.3d 385, 392-93 (8th Cir. 2007).

IV. CONCLUSION

For these reasons, Rash’s individual capacity motion for summary judgment is denied

on all claims except outrage and Rash’s official capacity motion for summary judgment is

granted.

IT IS SO ORDERED this 16th day of January, 2026.

UNITED STATES DISTRICT JUDGE

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