Smith v. Conway Cnty., Ark., Body Corporate

• Decision Date: 16 July 2014
• Docket Number: No. 13–3095.,13–3095.
• Citation: 759 F.3d 853
• Parties: Dwain SMITH, Plaintiff–Appellee v. CONWAY COUNTY, ARKANSAS, A Public Body Corporate and Politic; Mike Smith, In His Official Capacity as Sheriff for Conway County, Arkansas, Defendants–Appellants Cheryl Eoff, In Her Individual and Official Capacity as Jail Administrator for Conway County Detention Center, 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, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

759 F.3d 853

Dwain SMITH, Plaintiff–Appellee

v. CONWAY COUNTY, ARKANSAS, A Public Body Corporate and Politic; Mike Smith, In His Official Capacity as Sheriff for Conway County, Arkansas, Defendants–AppellantsCheryl Eoff, In Her Individual and Official Capacity as Jail Administrator for Conway County Detention Center, DefendantJacob 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, Defendants–Appellants.

No. 13–3095.

United States Court of Appeals, Eighth Circuit.

Submitted: April 16, 2014.

Filed: July 16, 2014.

Jason E. Owens, argued, Little Rock, AR, for Appellant.

Michael R. Rainwater, on the brief, Little Rock, AR, for Appellant.

Austin Porter, Jr., argued and on the brief, Little Rock, AR, for Appellee.

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

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 court ¹ 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 defendantsbring this interlocutory appeal. We affirm in part and dismiss in part.

I. BACKGROUNDA. Facts ²

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 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 instructedChoate 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 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. DISCUSSIONA. 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, 105 S.Ct. 2806, 86 L.Ed.2d 411 (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 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, 115 S.Ct. 2151, 132 L.Ed.2d 238 (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., 757 F.3d 734, 737–38 n. 2, 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...