Josh Brewington v. Ben Keener

United States Court of Appeals

For the Eighth Circuit

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No. 17-1382

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Josh Brewington

lllllllllllllllllllllPlaintiff - Appellant

v.

Ben Keener, Officer, Individually and in his Official Capacity as an Independence

County Sheriff’s Deputy; Steve Jeffery, Sheriff, Individually and in his Official

Capacity as Sheriff of the Independence County Sheriff’s Department

lllllllllllllllllllllDefendants - Appellees

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No. 17-1433

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Josh Brewington

lllllllllllllllllllllPlaintiff - Appellant

v.

Ben Keener, Officer, Individually and in his Official Capacity as an Independence

County Sheriff’s Deputy; Steve Jeffery, Sheriff, Individually and in his Official

Capacity as Sheriff of the Independence County Sheriff’s Department

lllllllllllllllllllllDefendants - Appellees

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Appeals from United States District Court

for the Eastern District of Arkansas - Batesville

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Submitted: April 11, 2018

Filed: August 30, 2018

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Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

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SMITH, Chief Judge.

In this excessive force suit, Josh Brewington appeals the district court’s1 grant

of summary judgment to Independence County (“County”) Sheriff Steve Jeffery and

Deputy Ben Keener in their official capacities, as well as the grant of qualified

immunity to Sheriff Jeffery in his individual capacity. Brewington also asserts that

following entry of default judgment against Deputy Keener in his individual capacity,

the district court erroneously calculated Brewington’s compensatory damages and

attorneys’ fees. We affirm.

I. Background

On August 26, 2014, Brewington stole items from the local Walmart. He fled

the scene in a vehicle with potential accomplices. Deputy Keener was responding to

the theft call and was walking toward the Walmart entrance as Brewington and

company drove by in the parking lot.

Law enforcement officers soon stopped the vehicle and removed Brewington

and the other individuals from the car. The officers handcuffed Brewington and his

companions and placed them on the ground in seated positions near the vehicle. Soon

after, Deputy Keener arrived at the arrest scene. Without provocation and without

1

The Honorable James M. Moody Jr., United States District Judge for the

Eastern District of Arkansas.

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communicating his intent to the other officers, Deputy Keener angrily kicked

Brewington once to the side of his face. Afterwards, the other officers called an

ambulance for Brewington, which soon arrived. The next day, Deputy Keener

submitted his resignation to the County Sheriff’s Office, turning in his badge and his

gun. The County terminated Deputy Keener as well. The incident led to criminal

charges against Deputy Keener, and he eventually pleaded guilty to third-degree

battery.

Brewington sued Sheriff Jeffery2 and Deputy Keener, both in their official and

individual capacities, alleging excessive force during his arrest under 42 U.S.C.

§ 1983, Ark. Code Ann. § 16-123-105(a), and Arkansas tort law. Brewington

acknowledged that the County had a written use-of-force policy and that Deputy

Keener’s kick violated the policy. Brewington, however, alleged that despite the

written policy, the County Sheriff’s Office had an unwritten rule, policy, or custom

encouraging its officers to physically assault suspects who attempt to flee. He alleged

that Sheriff Jeffery had instituted the unwritten policy or custom and that Sheriff

Jeffery failed to adequately train or supervise Deputy Keener.

Upon consideration of the defendants’ motion, the district court granted

summary judgment in favor of Sheriff Jeffery and Deputy Keener in their official

capacities. The court dismissed those claims after finding “no evidence to

demonstrate that the actions of [Deputy] Keener were motivated by a County policy

or custom of violating citizen’s rights to be free from excessive force.” Brewington

v. Keener, No. 1:15-cv-00088-JM, 2017 WL 5953131, at *2 (E.D. Ark. Feb. 1, 2017).

The district court also found that Brewington failed to present “proof of ‘widespread

unconstitutional conduct that was so pervasive and well-settled that it had the effect

of law.’” Id. (quoting Smith v. Watkins, 159 F.3d 1137, 1138 (8th Cir. 1998)). It also

granted qualified immunity to Sheriff Jeffery, finding that Brewington “offer[ed] no

2

Sheriff Jeffery is no longer the sheriff of the County.

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proof that Sheriff Jeff[er]y had notice of a pattern of conduct by Keener that violated

a clearly established constitutional right.” Id. at *3 (citation omitted).

The County, having terminated Deputy Keener’s employment, declined to

defend Deputy Keener against Brewington’s individual capacity claims. Deputy

Keener failed to answer Brewington’s complaint or to appear before the district court

to defend the lawsuit. The court granted Brewington’s motion to enter default

judgment against Deputy Keener. The court proceeded to hear evidence on damages.

At a bench trial, Brewington’s medical expert testified about the extent of

Brewington’s dental damages and opined that Brewington required complete and

permanent dentures. The district court awarded Brewington $38,693.67 in

compensatory and $75,000 in punitive damages against Deputy Keener. Brewington’s

counsel requested $41,920.00 in attorneys’ fees, but the district court reduced the

award to $16,500, citing duplicative work.

II. Discussion

Brewington appeals, contending that the district court erroneously granted

summary judgment in favor of Sheriff Jeffery and Deputy Keener in their official

capacities. Brewington also asserts the district court erred in granting qualified

immunity to Sheriff Jeffery. Next, he claims the district court misapplied the standard

for causation in calculating compensatory damages. Last, Brewington avers that the

district court abused its discretion in reducing the attorneys’ fees award. We address

each argument in turn.

A. Official Capacity Claims

Brewington argues that the district court erred in granting summary judgment

to Sheriff Jeffery and Deputy Keener in their official capacities. Brewington asserts

that despite having an official written policy against the use of excessive force, the

County also had an unstated, unofficial contrary custom and practice. This alleged

unstated policy condoned excessive force against arrestees who attempt to flee.

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Alternatively, Brewington contends that because Sheriff Jeffery was a final

policymaker, his unwritten policy of excessive force has the force of command

sufficient for county liability. “We review a district court’s grant of summary

judgment de novo, drawing all reasonable inferences, without resort to speculation,

in favor of the nonmoving party.” Anderson v. Durham D & M, L.L.C., 606 F.3d 513,

518 (8th Cir. 2010) (quoting Johnson v. Ready Mixed Concrete Co., 424 F.3d 806,

810 (8th Cir. 2005)). “Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law.”

Id. (citing Johnson, 424 F.3d at 810).

Brewington filed suit against Sheriff Jeffery and Deputy Keener in their official

capacities,3 and as such, “it must be treated as a suit against the County.” Liebe v.

Norton, 157 F.3d 574, 578 (8th Cir. 1998) (citing Hafer v. Melo, 502 U.S. 21, 25

(1991)).

3

The Arkansas Civil Rights Act (ACRA) directs Arkansas courts to “look for

guidance to state and federal decisions interpreting the Civil Rights Act of 1871, as

amended and codified in 42 U.S.C. § 1983.” Ark. Code Ann. § 16-123-105(c). The

Arkansas Supreme Court also noted with approval that “the [Arkansas] court of

appeals has relied on federal precedent to analyze an excessive-force claim under the

ACRA.” Graham v. Cawthorn, 427 S.W.3d 34, 45 (Ark. 2013) (citation omitted); see

also Repking v. Lokey, 377 S.W.3d 211, 220 (Ark. 2010) (citing Fegans v. Norris, 89

S.W.3d 919 (Ark. 2002)). We therefore analyze Brewington’s federal and ACRA

claims co-extensively using federal standards. See Henderson v. Simmons Foods, Inc.,

217 F.3d 612, 615 n.3 (8th Cir. 2000) (“Claims premised under the Arkansas Civil

Rights Act of 1993 are analyzed in the same manner as [federal] claims.” (citing Ark.

Code Ann. § 16-123-103(c))); see also Hess v. Ables, 714 F.3d 1048, 1054 (8th Cir.

2013) (holding that “because [the appellant] did not explain why [her] ACRA claims

warranted separate analysis, the district court did not err in dismissing the ACRA

claims alongside the § 1983 claims” (citing Lewis v. Jacks, 486 F.3d 1025, 1030 (8th

Cir. 2007))).

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In Monell v. New York City Dept. of Social Services, 436 U.S.

658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), [the Supreme Court]

decided that a municipality can be found liable under § 1983 only where

the municipality itself causes the constitutional violation at issue.

Respondeat superior or vicarious liability will not attach under § 1983.

Id., at 694–695, 98 S. Ct. at 2037–38. “It is only when the ‘execution of

the government’s policy or custom . . . inflicts the injury’ that the

municipality may be held liable under § 1983.” Springfield v. Kibbe, 480

U.S. 257, 267, 107 S. Ct. 1114, 1119, 94 L. Ed. 2d 293 (1987)

(O’CONNOR, J., dissenting) (quoting Monell, supra, at 436 U.S. at 694,

98 S. Ct. at 2037–38).

City of Canton v. Harris, 489 U.S. 378, 385 (1989) (ellipsis in original). 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. Szabla v. City of

Brooklyn Park, Minn., 486 F.3d 385, 389, 390 (8th Cir. 2007) (first quoting Bd. of the

Cty. Comm’rs v. Brown, 520 U.S. 397, 404–05 (1997), then citing City of Okla. City

v. Tuttle, 471 U.S. 808, 822–23 (1985) (plurality opinion)). 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 custom, that existed.” Davison v.

City of Minneapolis, 490 F.3d 648, 659 (8th Cir. 2007) (citing City of St. Louis v.

Praprotnik, 485 U.S. 112, 121 (1988)).

Thus, at issue here is whether the County officially or unofficially directed

Deputy Keener to use excessive force against Brewington. Brewington acknowledges

that the County has a written policy expressly prohibiting excessive force. He

contends, however, that despite the written policy, the County Sheriff’s Office had

a custom or practice of excessive force against arrestees who attempt to flee. We

explained previously that

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a plaintiff may establish municipal liability through an unofficial custom

of the municipality by demonstrating “(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 plaintiff was injured by acts pursuant to the governmental

entity’s custom, i.e., that the custom was a moving force behind the

constitutional violation.”

Corwin v. City of Indep., Mo., 829 F.3d 695, 700 (8th Cir. 2016) (quoting Snider v.

City of Cape Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014)). The pattern of

unconstitutional conduct must be so pervasive and widespread so “as to have the

effect and force of law.” Andrews v. Fowler, 98 F.3d 1069, 1075 (8th Cir. 1996)

(citations omitted).

Brewington attempts to show the County engaged in a pattern of widespread

and persistent unconstitutional conduct by presenting affidavits from two former

deputy sheriffs as well as Deputy Keener’s testimony. The former deputies recounted

an incident several years earlier where they alleged that Sheriff Jeffery was involved

in an excessive force incident. Deputy Keener testified at his deposition that a

sergeant informed him that the County Sheriff’s Office itself had a policy of making

an example of arrestees who attempt to flee; the sergeant allegedly told Deputy

Keener to whip, kick, hit, or do something to deter the arrestees. Deputy Keener

recalled one incident where—sometime between 2009 and 2014—a suspect was

beaten as he walked through a gauntlet of officers. In sum, as evidence of the

County’s alleged unconstitutional conduct, Deputy Keener and the two former

deputies described two prior incidents of excessive force. Additionally, Deputy

Keener—through hearsay—testified that he was informed of an informal custom by

a higher-ranking officer, but not by Sheriff Jeffery.

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Brewington’s evidence falls short. First, inadmissible hearsay discovered

during discovery may not be used to defeat summary judgment. Shaver v. Indep.

Stave Co., 350 F.3d 716, 723 (8th Cir. 2003) (“There are limits on what kinds of

evidence a judge may consider in reviewing a motion for summary judgment, and

inadmissible evidence obtained during discovery cannot be used to defeat such a

motion.” (citing Mays v. Rhodes, 255 F.3d 644, 648 (8th Cir. 2001))). Brewington

presents no basis for admission of Deputy Keener’s hearsay testimony. Second, in the

face of an express municipal policy prohibiting excessive force, two incidents of

excessive force—even assumed to be true—cannot be considered a pattern of

widespread and pervasive unconstitutional conduct. See Smith, 159 F.3d at 1138

(“We 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, 98 F.3d at 1076)); see also Roberts v. City of Shreveport,

397 F.3d 287, 295 (5th Cir. 2005) (holding that evidence of an officer brandishing his

handgun during a traffic stop, committing one other incident of deadly force, and

receiving two complaints of excessive force insufficient to establish a pattern of

unconstitutional conduct); Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir.

2002) (concluding that eleven incidents were insufficient to establish an

unconstitutional pattern).

In the alternative, Brewington argues that because Sheriff Jeffery was a final

policymaker, his action constitutes the creation of an unofficial custom. See Davison,

490 F.3d at 659 (“[A]n unconstitutional government policy could be inferred from a

single decision taken by the highest officials responsible for setting policy in that area

of the government’s business.” (quoting Praprotnik, 485 U.S. at 123)). However, this

argument suffers from the same evidentiary infirmity as Brewington’s prior

contention. Other than Deputy Keener’s hearsay testimony that a higher-ranked

officer told him of an excessive force custom, Brewington offers no evidence that

Sheriff Jeffery ever instituted the custom or practice. Brewington’s evidence therefore

failed to demonstrate the existence of an unofficial excessive force custom or practice

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that has the effect or force of law in the County. Finally, even assuming the existence

of an unconstitutional custom, Brewington cannot show that the policy was the

“moving force” behind Deputy Keener’s conduct. Deputy Keener was asked in his

deposition, “Sitting here today, do you know why you kicked Josh?” J.A. at 76. He

answered, “Other than just being angry, no.” Id. Brewington’s anger—not any county

policy or directive—was the moving force for his conduct.

In sum, Brewington failed to prove the existence of an unconstitutional custom

or policy. He also failed to show causation assuming there was such a custom or

policy. Brewington therefore cannot establish municipal liability. See Corwin, 829

F.3d at 700. The district court correctly granted summary judgment in favor of Sheriff

Jeffery and Deputy Keener in their official capacities.

B. Qualified Immunity

Brewington also argues on appeal that the district court erroneously granted

qualified immunity to Sheriff Jeffery. He contends Sheriff Jeffery failed to train

Deputy Keener adequately.4 This argument lacks merit, and we affirm.

“Sheriff [Jeffery] may be liable under § 1983 if he (1) had ‘notice of a pattern

of unconstitutional acts committed by subordinates’; (2) was deliberately indifferent

to or tacitly authorized those acts; and (3) failed to take ‘sufficient remedial action’;

(4) proximately causing injury to [Brewington].” Livers v. Schenck, 700 F.3d 340,

355 (8th Cir. 2012) (quoting Andrews, 98 F.3d at 1078). Ultimately, Brewington must

prove that Sheriff Jeffery “had notice that the training procedures and supervision

4

Brewington also alleged that Sheriff Jeffery failed to supervise Deputy Keener

in his complaint, but he appears to abandon this claim on appeal. See Jenkins v.

Winter, 540 F.3d 742, 751 (8th Cir. 2008) (“Claims not raised in an opening brief are

deemed waived.” (citations omitted)).

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were inadequate and likely to result in a constitutional violation.” Id. at 356 (quoting

Andrews, 98 F.3d at 1078).

Brewington says that Sheriff Jeffery’s failure to train is readily apparent from

the purported policy of “beat[ing] people up,” see Appellant’s Br. at 39, and from the

other officers’ failure to intervene when Deputy Keener kicked Brewington. He does

not allege any other incidents of misconduct by Deputy Keener. We have already

discussed Brewington’s failure to show an unconstitutional policy or custom. See

supra Part II.A. Under our precedent, a single incident cannot serve as notice for a

pattern of misconduct. See Howard v. Adkison, 887 F.2d 134, 138 (8th Cir. 1989)

(holding that a single incident, or a series of isolated incidents, is usually insufficient

to infer a pattern). On this record, Brewington failed to show failure to train, and

Sheriff Jeffery is entitled to qualified immunity.

C. Causation Standard for Compensatory Damages

Brewington argues that the district court applied an incorrect causation

standard to calculate Brewington’s dental damages stemming from Deputy Keener’s

kick to his face. We disagree and find no abuse of discretion. See Stevens v. McHan,

3 F.3d 1204, 1207 (8th Cir. 1993) (standard of review for § 1983 damages award).

As we explained:

In order to establish a violation of constitutional rights under § 1983, the

plaintiff must prove that the defendant’s unconstitutional action was the

“cause in fact” of the plaintiff’s injury. Carey v. Piphus, 435 U.S. 247,

263, 98 S. Ct. 1042, 1052, 55 L. Ed. 2d 252 (1978); Cowans v. Wyrick,

862 F.2d 697, 703 (8th Cir. 1988) (McMillian, J., concurring). Conduct

is the cause in fact of a particular result if the result would not have

occurred but for the conduct. Similarly, if the result would have

occurred without the conduct complained of, such conduct cannot be a

cause in fact of that particular result. Carey, 435 U.S. at 263, 98 S. Ct.

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at 1052; see W. Page Keeton, Prosser and Keeton on the Law of Torts,

§ 41, at 264 (5th Ed. 1984).

Butler v. Dowd, 979 F.2d 661, 669–70 (8th Cir. 1992) (emphasis added). Contrary to

Brewington’s assertion, Arkansas courts also apply the but-for standard of causation:

Proximate cause is that which in a natural and continuous sequence,

unbroken by any efficient intervening cause, produces the injury and

without which the result would not have occurred. Wal-Mart Stores, Inc.

v. Kilgore, 85 Ark. App. 231, 148 S.W.3d 754 (2004). This traditional

tort standard requires proof that “but for” the tortfeasor’s negligence, the

plaintiff’s injury or death would not have occurred. Dodd v. Sparks

Reg’l Med. Ctr., 90 Ark. App. 191, 204 S.W.3d 579 (2005).

Thomas v. Meadors, 527 S.W.3d 724, 731 (Ark. Ct. App. 2017). While a medical

expert need not invoke a set of “magic words,” he nevertheless must articulate but-for

causation, “to be judged upon the entirety of the opinion.” Wal-Mart Stores, Inc., 148

S.W.3d at 759 (citation omitted).

At the bench trial, Brewington described Deputy Keener’s kick as a “field-goal

kick[]” to his face. Transcript of Bench Trial at 19, Brewington v. Keener, No. 1:15-

cv-00088-JM (E.D. Ark. Jan. 23, 2017), ECF No. 45. The kick immediately knocked

out two of Brewington’s teeth. Brewington’s dental expert testified that Brewington

“had a lot of [previous] dental work done, root canals and crowns and fillings and

extractions.” Id. at 28. At the time the expert examined Brewington—more than a

year and a half after the incident with Deputy Keener—Brewington had lost seven

teeth. He also had abscesses on eleven teeth. The dentist concluded that Brewington

“probably had some things that needed to be done as a result of the accident or the

incident,” but also “probably would have had to have something done to catch up

with what he had done before.” Id. at 30. He opined that Brewington needed a full set

of permanent dental implants, because a “partial denture requires teeth to support it

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and he has no teeth to support a partial denture, no teeth in there that are strong

enough or could be made strong enough to take care of it for any period of time.” Id.

at 31. But, the expert also concluded that Brewington “has [some] solid teeth in [his

mouth] now.” Id. at 36. At the end of the trial, the district court concluded that it did

not

feel that [it had] sufficient evidence to award [the damages amount for

the full implants] because the doctor didn’t testify that but for the

actions of Mr. Keener that Mr. Brewington would not have needed the

dentures altogether. He had a complex dental situation or history and

[the court] didn’t hear anything from the doctor that said but for

Keener’s actions, he would have needed those.

Id. at 42.

Brewington challenges the district court’s conclusion, arguing that he is an

eggshell plaintiff5 whose prior deteriorated teeth became exacerbated by Deputy

Keener’s kick, requiring a full set of restorative implants. Brewington’s expert’s

opinion belies this contention. The dentist testified that Brewington still had solid

teeth after the incident and that he had sustained damage to multiple teeth, but not all.

The egg-shell plaintiff rule is inapplicable here; Deputy Keener’s kick did not

proximally cause damage to all of Brewington’s teeth. Thus, the district court

correctly concluded that Deputy Keener’s kick was not the but-for cause for all of

Brewington’s dental injuries, and we find no abuse of discretion.

5

“[T]he ‘egg-shell plaintiff’ rule . . . in essence [states that] a defendant takes

a plaintiff as he finds [him].” Freeman v. Busch, 349 F.3d 582, 590 (8th Cir. 2003)

(citation omitted).

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D. Attorneys’ Fees Calculation

Brewington also contests the district court’s reduction of his requested

attorneys’ fees. “Attorney’s fees are within the broad discretion of the district court

and will not be reversed absent an abuse of discretion.” Hanig v. Lee, 415 F.3d 822,

825 (8th Cir. 2005) (citing Harmon v. City of Kan. City, 197 F.3d 321, 329 (8th Cir.

1999)).

To calculate attorneys’ fees, courts typically begin by using the lodestar

method. This method “‘multipl[ies] the number of hours reasonably expended by the

reasonable hourly rates.’ When determining reasonable hourly rates, district courts

may rely on their own experience and knowledge of prevailing market rates.” Id. (first

quoting Fish v. St. Cloud State Univ., 295 F.3d 849, 851 (8th Cir. 2002), then citing

Warnock v. Archer, 397 F.3d 1024, 1027 (8th Cir. 2004)). “There is no precise rule

or formula for making these determinations. The district court may attempt to identify

specific hours that should be eliminated, or it may simply reduce the award to account

for . . . limited success.” Hensley v. Eckerhart, 461 U.S. 424, 436–37 (1983). The

court must “provide a concise but clear explanation of its reasons for the fee award.”

Id. at 437.

Here, the district court reduced Brewington’s requested attorneys’ fees from

$41,920 to $16,500, citing duplicative work. The court stated that it also

“consider[ed] the results obtained by [Brewington’s] counsel in determining the

reasonableness of the fee award.” Order at 2, Brewington v. Keener, No. 1:15-cv-

00088-JM (E.D. Ark. Feb. 22, 2017), ECF No. 42. Brewington’s attorneys conceded

to some amount of duplicative work, see Appellant’s Br. at 56–57, but argue that the

reduction is disproportionate with the identifiable duplication of work.

We have reviewed in depth Brewington’s supporting documentation. One

attorney charged $17,000—40.6 percent of the requested total—for e-mails alone.

This amount is questionable. Additionally, Brewington concedes to some duplication

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of work. Given the limited success in this case, we find that a significant reduction

in attorneys’ fees is appropriate. See Hensley, 461 U.S. at 436 (“If . . . a plaintiff has

achieved only partial or limited success, the product of hours reasonably expended

on the litigation as a whole times a reasonable hourly rate may be an excessive

amount. This will be true even where the plaintiff’s claims were interrelated,

nonfrivolous, and raised in good faith.”).

III. Conclusion

We find the ultimate amount determined by the district court to be reasonable.

We affirm.

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