Brewington v. Keener

• Decision Date: 30 August 2018
• Docket Number: No. 17-1382, No. 17-1433,17-1382
• Citation: 902 F.3d 796
• Parties: Josh BREWINGTON, Plaintiff - 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, Defendants - Appellees Josh Brewington, Plaintiff - 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, Defendants - Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

902 F.3d 796

Josh BREWINGTON, Plaintiff - 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, Defendants - Appellees

Josh Brewington, Plaintiff - 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, Defendants - Appellees

No. 17-1382

No. 17-1433

United States Court of Appeals, Eighth Circuit.

Submitted: April 11, 2018

Filed: August 30, 2018

Blair Arnold, William Allen Arnold, MURPHY LAW FIRM, Batesville, AR, Robert Steven Tschiemer, ROBERT S. TSCHIEMER, P.A., Mayflower, AR, for Plaintiff - Appellant.

Jason E. Owens, Michael R. Rainwater, RAINWATER & HOLT, Little Rock, AR, for Defendants - Appellees.

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

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 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 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. 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, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) ).

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, 109 S.Ct. 1197, 103 L.Ed.2d 412 (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, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997), then citing City of Okla. City v. Tuttle , 471 U.S. 808, 822–23, 105 S.Ct. 2427, 85 L.Ed.2d 791 (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, 108 S.Ct. 915, 99 L.Ed.2d 107 (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

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 ...