159 F.3d 1137 (8th Cir. 1998), 98-1416, Smith v. Watkins

• Docket Nº: 98-1416.
• Citation: 159 F.3d 1137
• Party Name: Leroy SMITH, Appellant, v. Horace WATKINS; The City of Eudora, Appellees.
• Case Date: November 05, 1998
• Court: United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1137

159 F.3d 1137 (8th Cir. 1998)

Leroy SMITH, Appellant,

v.

Horace WATKINS; The City of Eudora, Appellees.

No. 98-1416.

United States Court of Appeals, Eighth Circuit

November 5, 1998

Submitted Sept. 22, 1998.

John P. Lewis, Hot Springs, AR, argued, for appellant.

Page 1138

Shane Perry, North Little Rock, AR, argued, for appellees.

Before RICHARD S. ARNOLD, WOLLMAN, and KELLY, ¹ Circuit Judges.

WOLLMAN, Circuit Judge.

Leroy Smith appeals from the district court's ² grant of summary judgment in favor of the City of Eudora (City). We affirm.

The City hired Horace Watkins as a full-time police officer on June 20, 1994. On September 8, 1994, Watkins arrested Leroy Smith for fleeing a police officer. In the course of apprehending Smith, Watkins broke Smith's hip. Smith brought this action against the City under 42 U.S.C. § 1983 on two grounds. ³ First, he claimed that the City had an unconstitutional policy of condoning Watkins's use of excessive force. Second, he alleged that the City failed to train Watkins adequately.

We review the grant of summary judgment de novo. See Hossaini v. Western Missouri Med. Ctr., 140 F.3d 1140, 1142 (8th Cir.1998). Summary judgment should be granted if the evidence, viewed in the light most favorable to the nonmoving party, shows that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Id.

The City would be liable for Watkins's conduct only if it had a policy or custom that caused Smith's injury. See Board of County Comm'rs v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 1388, 137 L.Ed.2d 626 (1997). In the absence of a written policy, Smith must identify a pattern of widespread unconstitutional conduct that was so pervasive and well-settled that it had the effect of law. See Jane Doe A v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir.1990). Smith must show that the City "through its deliberate conduct ... was the 'moving force' behind the injury alleged." Brown, 117 S.Ct. at 1388.

Smith contends that the City established a policy or custom of condoning Watkins's use of excessive force by refusing to act on complaints about Watkins's conduct. The only evidence that such a policy existed before September 8, 1994, are the affidavits of Mabel Alexander, a dispatcher, and Ronald Nichols, a deputy sheriff. Alexander asserted that the City had received complaints about unreasonable stops by Watkins before Smith's arrest. Nichols averred that complaints had been made regarding unnecessary stops by Watkins "since 1991." However, neither Alexander nor Nichols could identify specific complaints that put the City on notice of a widespread pattern of unconstitutional conduct by Watkins prior to Smith's arrest. We recently held that two specific complaints and various rumors about an officer were not sufficient to establish a policy or custom of...