Dwain Smith v. Conway County, Arkansas

United States Court of Appeals

For the Eighth Circuit

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No. 13-3095

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Dwain Smith

lllllllllllllllllllll Plaintiff - Appellee

v.

Conway County, Arkansas, A Public Body Corporate and Politic; Mike Smith, In

His Official Capacity as Sheriff for Conway County, Arkansas

lllllllllllllllllllll Defendants - Appellants

Cheryl Eoff, In Her Individual and Official Capacity as Jail Administrator for

Conway County Detention Center

lllllllllllllllllllll Defendant

Jacob Zulpo, In His Individual and Official Capacity as Jailer for the Conway

County Detention Center; Jansen Choate, In His Individual and Official Capacity

as Jailer for the Conway County Detention Center; Rick Emerson, In His

Individual and Official Capacity as Jail Administrator for Conway County

Detention Center

lllllllllllllllllllll Defendants - Appellants

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Appeal from United States District Court

for the Eastern District of Arkansas - Little Rock

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Submitted: April 16, 2014

Filed: July 16, 2014

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Before RILEY, Chief Judge, BENTON and KELLY, Circuit Judges.

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RILEY, Chief Judge.

On the morning of February 28, 2012, police officers arrested Dwain Smith on

a charge of delivering a controlled substance (hydrocodone) and took him to the

Conway County, Arkansas (county), jail. Later that day, a jailer, Jacob Zulpo, with

the assistance of a fellow jailer, Jansen Choate, used a taser on Smith as Smith lay

moaning in his bunk complaining he was in pain and could not get up. Zulpo had not

received any training on the use of a taser before he tased Smith. The county jail

administrator, Rick Emerson, had encouraged both Zulpo and Choate to use a taser

as needed for security and for compliance at the jail. Emerson even posted signs on

the jail walls, one of which (according to Zulpo) read, “Failure to immediately comply

with orders of jail staff, you will be tased.”

Smith brought this 42 U.S.C. § 1983 action alleging, as relevant in this appeal,

excessive use of force by Zulpo and Choate and a failure to train or supervise by

Emerson, in their individual and official capacities. Smith also brought claims against

the county and Sheriff Mike Smith (Sheriff Smith) in his official capacity. The district

court1 denied qualified immunity to Zulpo, Choate, and Emerson and denied summary

judgment to the county and to the four individual defendants in their official capacities

on all claims but one. The defendants bring this interlocutory appeal. We affirm in

part and dismiss in part.

1

The Honorable Kristine G. Baker, United States District Judge for the Eastern

District of Arkansas.

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I. BACKGROUND

A. Facts2

Police officers arrested Smith, a veteran of the Vietnam War, for delivering

hydrocodone and took Smith to the county jail. During the intake process, Smith

informed the jailers he suffered from lower back pain and other medical problems,

including post-traumatic stress disorder. After eight hours in the jail, Smith informed

his jailers he was in pain. Although the jailers gave Smith ibuprofen, they denied

Smith’s requests for his prescription medications and for medical care. About an hour

later, jailers Zulpo and Choate escorted Smith to a different cell block where Smith

was placed in a cell by himself. Smith was fully compliant during this move and did

not need assistance.

A few hours later, Smith started yelling that he was in pain. Jail administrator

Emerson instructed Zulpo and Choate to take Smith to the jail’s medical observation

cell. “When Choate and Zulpo entered . . . Smith’s cell, he was lying down, rocking

back and forth, moaning,” on his bunk. What happened next is disputed.

Zulpo alleges after he placed his hand on Smith’s shoulder, Smith started to

“push and kick at” Zulpo and “started to turn violent.” Zulpo applied a pressure point

to Smith’s ear “to get his attention.” Smith sat up and retreated back into the bunk,

toward the wall, farther away from Zulpo and Choate. Around this point, according

to Choate, “Zulpo was trying to get ahold of [Smith], to kind of control him, and when

doing this, Zulpo was accidently kicked in the mouth.” Choate did not think Smith

was trying to kick Zulpo—the kick was “unintentional.” Zulpo stated in his incident

report that Smith kicked him in the chest. Smith’s descriptions of the kick

2

“For this interlocutory appeal of the district court’s denial of qualified

immunity, . . . we accept the district court’s findings of fact, taken in the light most

favorable to” the non-moving party, Smith. Roberts v. City of Omaha, 723 F.3d 966,

969 n.1 (8th Cir. 2013).

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vary—Smith contends he “accidently” kicked Zulpo either “[d]uring the tasering

process,” or, alternatively, in “react[ion]” to the pressure point technique.3

According to Smith, the officers asked Smith “to get up off of [his] bunk.”

Smith told the officers he was in pain and could not get up. Choate handed a taser to

Zulpo. Zulpo told Smith, “You need to comply with our orders or else we’re going

to be forced to tase [you].” Zulpo tased Smith, who was shirtless, in the abdomen, so

that the taser probes inserted into Smith’s skin. Smith almost fell off the bunk, but

Zulpo caught him. Smith, now lying on the bunk with the taser probes affixed in his

abdomen, again told Zulpo he could not get up. Zulpo told Smith, “You need to

comply with our orders so we don’t have to do this anymore.” Smith repeatedly said,

“I can’t get up.” Zulpo responded, “We can’t help you . . . Mr. Smith, you’ve got [to

get up on your own] or else.” While Smith was attempting to sit up, Zulpo tased

Smith a second time, saying, “We can do this all night.” Smith fell to the floor,

crying. During the entire encounter, Smith did not move toward the officers at all or

act hostile. Eventually, Smith got up, picked up his mat, and walked to the front of

the jail, and when Smith leaned on the wall for support, Zulpo threatened to tase him

yet again.

According to Choate, before the incident with Smith, jail administrator Emerson

instructed Choate he was “authorized to use a Taser on any inmate in order to get the

inmate to comply with orders.” Emerson also had posters placed throughout the jail

informing inmates “[i]f they didn’t comply with [the jailers’] verbal commands, that

they were subject to punishment.”

When Zulpo went to work at the county jail, he received no training. Before

the day Zulpo tased Smith, Zulpo had not “received any type of training on the use of

3

Although Smith admitted to the district court he accidentally kicked Zulpo,

now on appeal, Smith denies that he kicked Zulpo at all.

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tasering.” Emerson told Zulpo and “all the jailers” “to get one [a taser] and use it if

[you] need to,” meaning, “for your protection, if you’re in danger, or for compliance.”

Zulpo agreed “there were signs posted inside the jail warning inmates that if they

failed to comply with orders, that they could be tased.” The signs were placed “in the

booking area and in the window to each cell block.” These postings were “all signed

by [Emerson].”

B. Procedural History

Smith brought this 42 U.S.C. § 1983 action alleging Zulpo and Choate used

excessive force against him, and Emerson failed to train and supervise Zulpo and

Choate. Relevant to this appeal, Smith also brought claims of: an unconstitutional

policy, practice, and custom alleged against the county, Sheriff Smith, and Emerson;

failure to train against the county; and failure to train and supervise against Sheriff

Smith. Upon cross-motions for summary judgment, the district court denied summary

judgment to Smith, denied requests for qualified immunity by Zulpo, Choate, and

Emerson, and denied summary judgment to defendants on the remaining counts at

issue here.

II. DISCUSSION

A. Appellate Jurisdiction

Defendants claim the district court erred in denying qualified immunity to

Zulpo, Choate, and Emerson. “Ordinarily, we lack jurisdiction to review the denial

of a motion for summary judgment, because it does not constitute a final order.”

Edwards v. Byrd, 750 F.3d 728, 731 (8th Cir. 2014). Here, however, we have

appellate jurisdiction under 28 U.S.C. § 1291 and the collateral-order doctrine to

review the district court’s denial of qualified immunity. See Mitchell v. Forsyth, 472

U.S. 511, 530 (1985). “Our jurisdiction in such cases extends only to ‘abstract issues

of law,’ not to ‘determination[s] that the evidence is sufficient to permit a particular

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finding of fact after trial.’” Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009)

(alteration in original) (quoting Johnson v. Jones, 515 U.S. 304, 314, 317 (1995)).

Defendants also claim the county and the individual defendants in their official

capacities “are entitled to . . . dismissal since the questions of supervisory and

municipal liability are necessarily resolved in Emerson’s and the County’s favor by

the grant of qualified immunity to the individual Appellants.” “A suit against a public

official in his official capacity is actually a suit against the entity for which the official

is an agent.” Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006). “We will

exercise pendent appe[llate] jurisdiction over such an appeal only in the ‘exceptional

circumstance’ in which it is ‘inextricably intertwined’ with the qualified immunity

appeal, which occurs when the resolution of the qualified immunity claim ‘necessarily

resolves the pendent claims as well.’” S.L. ex rel. Lenderman v. St. Louis Metro.

Police Dep’t Bd. of Police Comm’rs, 725 F.3d 843, 854 (8th Cir. 2013) (quoting

Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1012 (8th Cir. 2003) (en

banc)). We do not find such an “exceptional circumstance” here, see, e.g., Nord v.

Walsh Cnty., ___ F.3d ___, ___, No. 12-3249, 2014 WL 2884049, at *1 n.2 (8th Cir.

June 26, 2014), and we decline to review the district court’s order denying summary

judgment to the county and to the individual defendants in their official capacities.

B. Qualified Immunity

“We review ‘de novo a denial of summary judgment on grounds of qualified

immunity.’” Stoner v. Watlingten, 735 F.3d 799, 802 (8th Cir. 2013) (quoting Small

v. McCrystal, 708 F.3d 997, 1003 (8th Cir. 2013)).

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

engage in a two-pronged inquiry. The first asks whether the facts, ‘[t]aken in the light

most favorable to the party asserting the injury, . . . show the officer’s conduct

violated a [federal] right.’” Tolan v. Cotton, 572 U.S. ___, ___, 134 S. Ct. 1861, 1865

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(2014) (per curiam) (alterations and omission in original) (quoting Saucier v. Katz,

533 U.S. 194, 201 (2001)). “The second prong of the qualified-immunity analysis

asks whether the right in question was ‘clearly established’ at the time of the

violation.” Id. at ___, 134 S. Ct. at 1866 (quoting Hope v. Pelzer, 536 U.S. 730, 739

(2002)). “A right is clearly established if its contours are ‘sufficiently clear that a

reasonable official would understand that what he is doing violates that right.’”

Mitchell v. Shearrer, 729 F.3d 1070, 1076 (8th Cir. 2013) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

Because Smith was a pretrial detainee, the county “concededly [could] detain

him to ensure his presence at trial and [could] subject him to the restrictions and

conditions of the detention facility so long as those conditions and restrictions do not

amount to punishment, or otherwise violate the Constitution.” Bell v. Wolfish, 441

U.S. 520, 536-37 (1979). “Although ‘the Eighth Amendment has no application’ until

there has been a ‘formal adjudication of guilt,’ the Fourteenth Amendment gives state

pretrial detainees—just as the Fifth Amendment gives federal pretrial

detainees—rights which are ‘at least as great as the Eighth Amendment protections

available to a convicted prisoner.’” Walton v. Dawson, ___ F.3d ___, ___, No. 12-

4000, 2014 WL 2053835, at *4 (8th Cir. May 20, 2014) (emphasis omitted) (quoting

City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). “Conduct

constituting ‘cruel and unusual punishment’ a fortiori constitutes punishment. And the

Due Process Clause prohibits any punishment of a pretrial detainee, be that

punishment cruel-and-unusual or not.” Edwards, 750 F.3d at 732 n.2.

In an Eighth Amendment excessive force case, “the core judicial inquiry is

‘whether force was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.’” Santiago v. Blair, 707 F.3d 984, 990

(8th Cir. 2013) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). “Whether the

force used was reasonable is ‘judged from the perspective of a reasonable officer on

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the scene’ and in light of the particular circumstances.” Story v. Norwood, 659 F.3d

680, 686 (8th Cir. 2011) (quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)).

In making such a determination, “it may also be proper to evaluate the need for

application of force, the relationship between that need and the amount of force used,

the threat ‘reasonably perceived by the responsible officials,’ and ‘any efforts made

to temper the severity of a forceful response.’” Hudson, 503 U.S. at 7 (quoting

Whitley v. Albers, 475 U.S. 312, 321 (1986)).

We have previously addressed the use of a taser-like weapon to force

compliance in a prison setting. In Hickey v. Reeder, 12 F.3d 754, 756 (8th Cir. 1993),

a recalcitrant convicted criminal inmate refused to comply with an order to sweep his

prison cell. After ample warning and several discussions with prison officials, one of

the officers present shot the inmate with a stun gun. See id. “After recovering from

the shock, [the inmate] swept his cell. He continued carrying on, cursing, and

threatening to sue the officers until the last officer left.” Id. While the district court

found the officer “shot [the inmate] because [the officer] feared [the inmate] would

become violent,” we rejected that assessment: “We can draw no other conclusion than

that the stun gun was used on [the inmate] to cause enough pain and harm to force him

to sweep his cell, and to make an example out of him.” Id. at 758.

While considering “whether such conduct amounts to the wanton and

unnecessary infliction of pain forbidden by the Eighth Amendment,” we determined

“there was no need for physical force to compel [the inmate] to sweep his cell.” Id.

We reasoned that “[the inmate] was not physically threatening the officers, nor was

the stun gun applied for that reason. The relationship between the need for force

(zero) and the force used (a painful and incapacitating shock) was excessive.” Id. We

rejected the defendants’ argument “that the Constitution permits the use of summary

force to compel compliance with any direct order given in a jail setting, and that such

authority is necessary to maintain control of the institution,” explaining “[t]his

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represents a fundamental misunderstanding of the law concerning the use of summary

force in prison settings. The law does not authorize the day-to-day policing of prisons

by stun gun.” Id. at 758-59.

Acknowledging the real dilemmas faced by jail personnel, we did not wish to

“limit good faith applications of force where it is reasonably thought to be necessary

to maintain the order and security of a penal institution, but summary force has yet to

be ratified as the de jure method of discipline where security concerns are not

immediately implicated.” Id. at 759. Similarly, we did not “presume to tell the

[jailers] how to ensure compliance with their internal housekeeping regulations, but

using a stun gun is not a constitutionally permissible option.” Id. “[A]s a matter of

law,” we concluded “the use of a stun gun to enforce the order to sweep was both an

exaggerated response to [the inmate’s] misconduct and a summary corporal

punishment that violated [the inmate’s] Eighth Amendment right to be free of cruel

and unusual punishment.” Id. (emphasis added); see also, e.g., Brown v. City of

Golden Valley, 574 F.3d 491, 497-98 (8th Cir. 2009) (finding, in the context of a

Fourth Amendment excessive force case, “there is a genuine issue of material fact as

to whether [an officer] used excessive force [by using a taser] in violation of [the

plaintiff’s] constitutional rights” when the plaintiff’s “principal offense, it would

appear, was to disobey the commands to terminate her call to the 911 operator”).

We are bound to follow the holding and reasoning of our Hickey precedent,

which recognizes prison officials’ constitutional ability to use “force”—including a

taser—“in a good-faith effort to maintain or restore discipline, but not “maliciously

and sadistically to cause harm” to a nonviolent inmate who is simply slow to comply

with a jailer’s non-emergency instruction. Hudson, 503 U.S. at 7 (emphasis added).

1. Officer Zulpo

In denying the defendants’ motions for summary judgment, the district court

first observed that at the time of the incident, Smith was in jail and unarmed. The

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district court also noted Smith denied he was “a danger to himself or the officers

thereby necessitating the use of force.” As to the first tasing, the district court

reasoned, “There is some evidence that Mr. Smith kicked Mr. Zulpo, but that evidence

is disputed especially as to the timing of the kick in the sequence of events.” The

district court found “a question of fact as to whether the second tasing was necessary

or excessive, given the alleged sequence of events.” Consequently, the district court

determined “the evidence establishes a genuine issue of material fact concerning

whether the force used against Mr. Smith was objectively reasonable in light of the

facts and circumstances confronting defendants” and, when viewing the facts in the

light most favorable to Smith, Zulpo’s tasing of Smith “ma[d]e out a violation of a

constitutional right” that was “clearly established.” The district court denied Zulpo

qualified immunity.

Defendants assert, “The District Court’s opinion on [Smith’s] excessive force

claim against Appellant Zulpo misconstrues at least one critical fact - the undisputed,

and indisputable, fact that Appellee Smith kicked Officer Zulpo prior to any

deployment of Zulpo’s taser - and, in so doing, errs on its qualified immunity

analysis.” We recognize that a jury could credit Choate’s observations that the kick

was “accidental” and “unintentional” and could find that a reasonable officer would

not respond to an accidental and unintentional kick by deploying a taser. The test is

an objective one: “‘the perspective of a reasonable officer’” under “the particular

circumstances.” Story, 659 F.3d at 686 (quoting Graham, 490 U.S. at 396).

Assuming a reasonable officer in Zulpo’s position—actually being kicked—could

believe the kick was purposeful and aggressive, establishing Zulpo’s first use of the

taser was reasonable, we cannot say the same for the second taser deployment.

Apparently the officers were following Emerson’s order to move Smith to a

medical observation cell, and defendants claim Smith was yelling and causing a

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disturbance in the jail. As described by the defendants themselves, the second taser

shot was fired for the purpose of achieving compliance:

After Smith kicked [O]fficer Zulpo, Zulpo got a taser from Officer

Choate and told the Plaintiff that he needed to comply. When Smith

continued his refusal to comply, Zulpo deployed a five second cycle with

his taser. Despite being tased and being warned several times that he

needed to comply or he would be tased, Plaintiff was tased a second

time.

(Emphasis added). As to the second taser strike, a jury could find Smith was

nonviolent and an objectively reasonable officer would not use a taser on Smith as

corporal inducement, given Hickey’s pronouncement that such methods cannot be

used as a first resort to induce compliance of a nonviolent inmate in routine

circumstances. Hickey, 12 F.3d at 758-59. We emphasize the fact that our conclusion

might well be different “where security concerns are . . . immediately implicated,” id.

at 759, or where the force is used as a reasonable last resort to preserve “discipline,”

Hudson, 503 U.S. at 7. But here, viewing the evidence in the light most favorable to

Smith, we see a nonviolent pretrial detainee in pain, seeking help, having taser probes

affixed to his abdomen, no longer acting aggressively toward the jailers (if he ever

was), and attempting to comply with Zulpo’s orders to get up. No “security concern”

or disciplinary necessity is apparent.

The defendants also contend the law was not clearly established such that under

the particular facts of this case, an officer would know that the taser strikes would

violate Smith’s constitutional rights. While we do not “define clearly established law

at a high level of generality,” at the same time, “a case directly on point” is not

required. Ashcroft v. al-Kidd, 563 U.S. ___, ___, 131 S. Ct. 2074, 2083-84 (2011).

At a minimum, with regard to Zulpo’s second taser strike, the district court correctly

found, inferring Smith was a nonviolent inmate, Smith’s constitutional right to be free

from being tased for non-compliance was clearly established by Hickey as of the date

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of the incident. “The law does not authorize the day-to-day policing of prisons” either

“by stun gun,” Hickey, 12 F.3d at 759, or by taser.

2. Officer Choate

Smith’s claim against Choate must be analyzed independently of Smith’s claim

against Zulpo. See Heartland Acad. Cmty. Church v. Waddle, 595 F.3d 798, 805-06

(8th Cir. 2010). Yet the two claims are inherently intertwined: “‘We believe it is

clear that one who is given the badge of authority of a police officer may not ignore

the duty imposed by his office and fail to stop other officers who summarily punish

a third person in his presence or otherwise within his knowledge.’” Putman v.

Gerloff, 639 F.2d 415, 423 (8th Cir. 1981) (quoting Byrd v. Brishke, 466 F.2d 6, 11

(7th Cir. 1972)); see id. (finding a prison official is “jointly liable for failing to

intervene if a fellow officer, albeit his superior, was using excessive force and

otherwise was unlawfully punishing the prisoner”). At the time Smith was tased, “it

was clearly established that a jail official violates a detainee’s due-process rights if the

official knows that another official is using excessive force against the detainee but

fails to intervene.” Edwards, 750 F.3d. at 733.

Here, like Zulpo, Choate was on notice from Hickey that a reasonable officer

could not use a taser for “day-to-day policing of prisons.” Hickey, 12 F.3d at 759.

Although given ample opportunity to intervene after Zulpo’s warning to Smith,

Choate “fail[ed] to intervene” when Zulpo tased Smith the second time. Putman, 639

F.2d at 423. The district court correctly concluded that when viewing the facts in the

light most favorable to Smith, Choate violated Smith’s clearly established

constitutional right to be free from excessive force. Choate is not entitled to qualified

immunity at this stage.

3. Administrator Emerson

“To succeed on a claim under the Due Process Clause of the Fourteenth

Amendment, a pretrial detainee” like Smith “must show the defendant official was

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deliberately indifferent to his rights.” Walton, ___ F.3d. at ___, 2014 WL 2053835,

at *4 (emphasis omitted). In order to succeed on his claim against Emerson, Smith

“must prove” Emerson “personally knew of the constitutional risk posed by [his]

inadequate training or supervision and proximately caused [Smith] injury by failing

to take sufficient remedial action.” Id., at *5 (emphasis omitted).

The district court denied qualified immunity to Emerson on Smith’s failure to

train or supervise claim. The district court noted the following evidence: “Emerson

was . . . on duty the night Mr. Smith was tased”; Emerson “communicated with”

Zulpo and Choate about Smith that night; Emerson had permitted Zulpo and Choate

to use tasers in the past, even though Zulpo had no taser training; and Emerson posted

signs on the jail walls warning prisoners they would be tased for non-compliance.

“Based on this evidence viewed in the light most favorable to Mr. Smith, the [district

c]ourt denie[d Emerson] qualified immunity.”

Emerson does not argue a lack of knowledge on his part. Rather, Emerson

offers a lone, general objection to the district court’s conclusion—he claims he “is

entitled to qualified immunity because the law does not allow for supervisory liability

where there is no underlying constitutional violation” by Zulpo and Choate. See, e.g.,

Carpenter v. Gage, 686 F.3d 644, 651 (8th Cir. 2012) (“Without a showing that the

deputies violated the Constitution, however, there can be no liability for failure to

train.”). Emerson states, “Since there is no proof to establish an underlying

constitutional violation, Appellant Emerson is necessarily entitled to qualified

immunity and summary judgment as a matter of law.” We take Emerson’s “no proof”

argument as an allegation that the evidence viewed in the light most favorable to

Smith is insufficient for a reasonable jury to find Zulpo and Choate violated Smith’s

clearly established, constitutional rights. We disagree, as explained above, and we

affirm the district court’s denial of qualified immunity to Emerson.

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III. CONCLUSION

We affirm the district court’s denial of qualified immunity to Zulpo, Choate,

and Emerson. We dismiss the rest of the defendants’ appeal for lack of interlocutory

jurisdiction.4

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4

On December 16, 2013, defendants filed a “motion to supplement the record.”

Defendants state one page of a deposition transcript excerpt was inadvertently omitted

from a document submitted to the district court. Because the missing transcript page

does appear in the record before the district court in document number 36-1 (and in

the joint appendix at page 173), the motion is denied as moot. See Fed. R. App. P.

10(a)(1) (stating “the original papers and exhibits filed in the district court” are among

the “items [that] constitute the record on appeal”).

On December 26, 2013, as amended and supplemented on December 27, 2013,

Smith filed “motion[s] to supplement the record,” along with proposed additional

materials. It is unclear to us whether all of the additional materials were contained in

the record before the district court. On the one hand, Smith states he “wishes to

supplement the record with the above mentioned documents.” Yet he also states the

documents would give this court “a clearer assessment of the evidence established

before the trial court.” Because we must rely on the record in the district court, see

id., and we have not relied upon Smith’s additional materials here, we deny Smith’s

motions as moot.

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