Duhe v. City of Little Rock, Ark., an Ark. Mun. Corp.
| Decision Date | 27 April 2017 |
| Docket Number | Case No. 4:14-cv-580-KGB |
| Parties | RONALD DUHE, individually; MARK HOLICK, individually; and SPIRIT ONE CHRISTIAN CENTER, INC., a Kansas Non-Profit Corporation PLAINTIFFS v. THE CITY OF LITTLE ROCK, ARKANSAS, an Arkansas municipal corporation; SIDNEY ALLEN, in an individual capacity; and PULASKI COUNTY, an Arkansas political subdivision DEFENDANTS |
| Court | U.S. District Court — Eastern District of Arkansas |
Plaintiffs Ronald Duhe, individually; Mark Holick, individually; and Spirit One Christian Ministries, Inc. ("Spirit One") filed this action pursuant to 42 U.S.C. § 1983 alleging violations of their First, Fourth, and Fourteenth Amendment rights by defendants after plaintiffs were arrested while participating in a protest at No. 4 Office Park Drive in Little Rock, Arkansas, outside the Little Rock Family Planning Services ("LRFPS"). Previously, this Court issued an Order (Dkt. No. 189) resolving three pending motions for summary judgment (Dkt. Nos. 100, 134, 138). In that Order the Court indicated that its reasoning would be set out in a separate Order (Dkt. No. 189). Subsequently, plaintiffs filed a motion to amend order and make additional findings (Dkt. No. 190). Plaintiffs request that this Court set forth the reasoning for its opinion issued in the previous Order. The Court will state its rationale for the disposition of the motions for summary judgment in the instant Order (See Dkt. Nos. 100, 134, 138).1 Thus, the Court denies as moot plaintiffs' motion to amend order and make additional findings (Dkt. No. 190).
First is the second motion for partial summary judgment filed by plaintiffs (Dkt. No. 100). This Court denied as moot plaintiffs' first motion for partial summary judgment after plaintiffs filed their amended complaint (Dkt. Nos. 56, 58). Defendants Lieutenant Sidney Allen and the City of Little Rock, Arkansas (the "City"), filed a response to the second motion (Dkt. No. 124). Defendant Pulaski County, Arkansas (the "County"), also filed a response (Dkt. No. 121). Plaintiffs have filed replies to each of these responses (Dkt. Nos. 142, 143, 144). This Court denied plaintiffs' second motion for partial summary judgment by separate Order (Dkt. No. 189), and this Order sets forth the Court's reasoning.
Second is Lt. Allen and the City's motion for summary judgment (Dkt. No. 134). Plaintiffs filed a response to that motion (Dkt. No. 146). Lt. Allen and the City filed a reply that included additional deposition transcripts and, according to the plaintiffs, raised certain issues for the first time (Dkt. No. 153). Thus, this Court granted plaintiffs' motion to file a sur-reply, and plaintiffs have now filed their sur-reply (Dkt. Nos. 156, 158, 160). Lt. Allen and the City have filed a response to the plaintiffs' sur-reply (Dkt. No. 161). This Court granted Lt. Allen and the City's motion for summary judgment by separate Order (Dkt. No. 189), and this Order sets forth the Court's reasoning.
Third is the County's motion for summary judgment (Dkt. No. 138). Plaintiffs filed a response to the County's motion (Dkt. No. 149). The County filed a reply to the plaintiffs' response (Dkt. No. 152). This Court granted the County's motion for summary judgment by separate order (Dkt. No. 189), and this Order sets forth the Court's reasoning.
Essentially, these motions are cross motions for summary judgment. Plaintiffs moved for summary judgment on all claims, reserving only the issue of damages for trial (Dkt. No. 100), and defendants moved for summary judgment on all claims, as well (Dkt. Nos. 134, 138). For the following reasons, the Court denies plaintiffs' motion for summary judgment (Dkt. No. 100), grants Lt. Allen and the City's motion for summary judgment (Dkt. No. 134), and grants the County's motion for summary judgment (Dkt. No. 138).
Plaintiffs filed their first complaint in this matter on September 26, 2014, alleging violations of their First, Fourth, and Fourteenth Amendment rights by defendants after plaintiffs were arrested while participating in a protest at No. 4 Office Park Drive in Little Rock, Arkansas, outside the LRFPS (Dkt. No. 1). As defendants, plaintiffs named the City and Lt. Allen, an officer with the Little Rock Police Department ("LRPD"), in his individual capacity (Dkt. No. 1).
On August 4, 2015, plaintiffs filed their amended complaint, which is the operative pleading in this case (Dkt. No. 58). In their amended complaint, plaintiffs allege 13 causes of action, each of which is discussed in more detail below. Essentially, plaintiffs allege that their First, Fourth, and Fourteenth Amendment rights were violated by their arrest and subsequent detention. In addition to the City and Lt. Allen, plaintiffs named the County as a defendant.
For their claims against Lt. Allen, plaintiffs allege that Lt. Allen violated their First Amendment rights by arresting them during the protest while plaintiffs were engaged in speech on a matter of public concern in a public location (Dkt. No. 58, ¶¶ 73-76, 90-93). Plaintiffs allege that Lt. Allen violated their Fourth and Fourteenth Amendment rights by arresting them withoutprobable cause and subjecting them to an unreasonable search and seizure (Dkt. No. 58, ¶¶ 78-81, 94-98).
As against the City, plaintiffs allege that the City violated their First Amendment rights through an official decision, policy, or practice that permitted Lt. Allen to arrest them while they were engaged in speech on a matter of public concern in a public place (Dkt. No. 58, ¶¶ 82-85, 99-102). Plaintiffs further allege that the City violated their Fourth and Fourteenth Amendment rights through an official decision, policy, or practice, which led to their arrest without probable cause (Dkt. No. 58, ¶¶ 86-89, 103-A106). Plaintiffs also request declaratory relief against the City in the form of an Order declaring that both the City's Permit Ordinance and Arkansas Code Annotated § 5-71-207 are unconstitutional (Dkt. No. 58, ¶¶ 107-110, A112-7-10).
As against the County, plaintiffs allege claims for unlawful detention and unlawful photo publication (Dkt. No. 58, ¶ A112-1-4). Plaintiffs also contend that the City is liable for the County's unconstitutional acts (Dkt. No. 58, ¶ A112-6).
Finally, with respect to all defendants, plaintiffs allege a cause of action for attorney's fees pursuant to 42 U.S.C. § 1988 (Dkt. No. 58, ¶ 111-A112).
In their answer, defendants Lt. Allen and the City deny any wrongdoing in connection with plaintiffs' arrests and contend that both Arkansas Code Annotated § 5-71-207 and the City's Permit Ordinance are constitutional (Dkt. No. 64). Lt. Allen asserts the defense of qualified immunity for his individual actions (Dkt. Nos. 64, at 122; 135, at 8-30). In its answer, the County denies any wrongdoing or liability based on its detention and publication of the plaintiffs' photos (Dkt. No. 66).
Plaintiffs initially filed their motion for partial summary judgment before filing their amended complaint (Dkt. Nos. 16; 58). The City and Lt. Allen responded to that motion and submitted 20 exhibits in support of their response (Dkt. No. 28). Plaintiffs filed a combined reply to defendants' response to plaintiffs' statement of undisputed facts and to defendants' affidavits and exhibits (Dkt. No. 32). In that document, plaintiffs lodged several evidentiary objections to defendants' record evidence. When granting plaintiffs leave to file their amended complaint, the Court denied as moot plaintiffs' initial motion for partial summary judgment and, as a result, did not rule on plaintiffs' objections (Dkt. No. 56).
In responding to plaintiffs' current motion for partial summary judgment, the City and Lt. Allen incorporated those 20 exhibits and submitted additional exhibits in support of their response (Dkt. No. 124). Plaintiffs renewed their objections to the 20 exhibits and lodged objections to the additional exhibits (Dkt. Nos. 142-1; 146-1).
"A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Gannon Int'l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012). "[T]he standard is not whether the evidence at the summary judgment stage would be admissible at trial - it is whether it could be presented at trial in an admissible form." Id. (emphasis in original). To the extent necessary for resolution of the pending motions, the Court rules as follows on all of plaintiffs' objections:
(a) Plaintiffs' objections to Bruce Moore's affidavit (Dkt. No. 28-1) based on alleged lack of materiality and Federal Rule of Evidence 701 are overruled.
(b) Plaintiffs' objections to Assistant Police Chief Bewley's affidavit (Dkt. No. 28-2) based on alleged lack of materiality, Federal Rule of Evidence 602, Federal Rule of Evidence 701, and Federal Rule of Evidence 403 are overruled.
(c) The Court will not strike Lt. Allen's affidavit (Dkt. No. 28-3); the Court does not deem it to be in direct conflict with his prior trial testimony cited by plaintiffs. Plaintiffs point to testimonial statements made by Lt. Allen which they argue tend to establish that their arrest was motivated by violation of the permit ordinance (Dkt. No. 32, at 4-5). Plaintiffs argue that Lt. Allen's testimony at their trial is inconsistent with an affidavit he filed in this litigation. Plaintiffs appear to argue that the arrest was at least in part premised upon the permit ordinance. The Court disagrees. The Court determines that Lt. Allen's testimony at trial was at most equivocal on this point.
During direct examination, Lt. Allen testified that he arrested Mr. Duhe and Mr. Holick for "disroderly conduct, for impeding the flow of the traffic into the business and for causing a general annoyance and disturbance with the amplification device to the local business." (Dkt. No. 147-1, at 7)...
To continue reading
Request your trial