Newton v. Wilson

OCR transcription for search; preserved printed pages are authoritative

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION
KENNETH O.B. NEWTON PLAINTIFF
v. Civil No. 1:24-CV-1056-SOH-SGS
CODY A. WILSON DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions
of 28 U.S.C. § 636(b)(1) and (3), the Honorable Susan O. Hickey, United States District Judge,
referred this case to the undersigned for the purpose of making a Report and Recommendation.
Currently before the Court is Defendant’s Motion for Summary Judgment. (ECF No. 27). Plaintiff
failed to respond. The Court finds the matter ripe for consideration.

I. PROCEDURAL BACKGROUND

Plaintiff originally filed this case on August 27, 2024. (ECF No. 1). Plaintiff was
incarcerated in the Union County Detention Center (hereinafter “UCDC’’) as pre-trial detainee at
the time of filing and proceeds in this matter in forma pauperis. Id.

In his Complaint, Plaintiff names only one Defendant, Cody Wilson, a patrolman with the
El Dorado Police Department (“EDPD”). (ECF No. 1, p. 2). Plaintiff claims Defendant used
excessive force against him during Plaintiff's arrest on February 3, 2024. Specifically, Plaintiff
alleges:

On 2-3-2024 [Defendant] shot me in the head with his taser after being

stopped for fleeing. He shot me in the back of the head when there were

clearly other parts of my body visible. Which to me this is a case of

attempted murder cause that 50 thousand volt upon deploying the electros

from the taser that law enforcement use. I was tased not once but twice hit
me in the arm, ever way I was shot from behind clearly shows to me he had

AUTHENTICATED
U.S. GOVERNMENT
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no regard for my person that shot hitting me in the head says that. Because
it could have cause brain damage if it had hit me in the right spot. Not to
mention it is against the law to be shot with any weapon taser gun or
anything considered to be a weapon. And upon being shot in the back of
the head he . . . could have killed me in doing so. He showed intent in doing
so or brain damage in not know the outcome of shooting from the back.
And El Dorado Police Department has a well documented history of miss
treating people they have to pursue. 	And I am suing in both capacities –
official and personal. Because he did in a professional manner when he shot
me from behind. I’m still having severe headaches and migraines from this
incident. 	I want him fired as a part of my punitive damages. 	My
compensatory I’m asking for Five Million because he could have killed me
when he shot me from behind striking me . . . that could be considered as
attempted murder.
(ECF No. 1, pp. 5-6) (partially cleaned up). When prompted to list specifically how he was injured
by the complaint form, Plaintiff stated:
I was swollen from the injured head and hurt by the taser. I feel bad off and
on because to the head injured me I have a hard time staying focusing from
the taser to the head. And still from headaches severe migraines traumatic
shock from the incident.
(ECF No. 1, p. 7) (partially cleaned up). As Plaintiff states in his factual claims, he alleges this
claim against Defendant in both his individual and official capacities. When prompted to describe
the custom, policy, or widespread practice that violated his constitutional right, Plaintiff stated:
I 	believe 	my 	constitutional 	rights 	and 	civil 	was 	in 	violation 	when
[Defendant] tased me in the head and I was tased from the back being hit in
the back of the head. I was fleeing back there were other parts of my body
that provided a better target.
(ECF No. 1, p. 7) (partially cleaned up). 	For relief, Plaintiff requests both compensatory and
punitive damages in the amount of five million dollars and for Defendant to be fired. (ECF No. 1,
p. 11).
On March 21, 2025, Defendant filed the instant Motion for Summary Judgment, Brief in
Support, and Statement of Indisputable Facts. (ECF Nos. 27, 28, 29). Defendant argues: (1) while
he did tase Plaintiff, he did not use excessive force; (2) Defendant is entitled to qualified immunity
from Plaintiff’s excessive force claim; and (3) the City of El Dorado is not liable for any official
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capacity claim because Plaintiff did not demonstrate the existence of any policy or custom that
caused his alleged constitutional violation, nor did he demonstrate any custom, pattern, or practice
of the City of El Dorado that caused his alleged constitutional violation. (ECF No. 28).
In support of his Motion for Summary Judgment, Defendant submitted the following on
the summary judgment record: (1) the February 3, 2024 Arkansas Incident Report from the EDPD
(ECF No. 29-1); (2) an Internal Memo from Defendant to Chief Hickman detailing the incident on
February 3, 2024 (ECF No. 29-3); (3) Defendant’s body camera footage from February 3, 2024
showing the entire incident (ECF No. 29-3); (4) the EDPD Use of Force Policy and Procedure
(ECF No. 29-4); (5) Defendant’s hiring documentation from the EDPD (ECF No. 29-5); and
(6) Defendant’s taser certification and training documentation from Axon Training (ECF No. 29-
6).
On March 24, 2025, the Court ordered Plaintiff to respond to Defendant’s Motion for
Summary Judgment. (ECF No. 31). In this Order, Plaintiff was given very specific instructions
on how to properly respond to a Motion for Summary Judgment pursuant to Federal Rule of Civil
Procedure 56. Id. Plaintiff was also advised that failure to respond to Defendant’s Motion would
be the same as failing to present any evidence at trial and that his case would be subjected to
dismissal. Id. Plaintiff’s response was due on April 14, 2025. Id.
On April 7, 2025, the Court received its March 24, 2025 Order returned as undeliverable
mail. 	(ECF No. 33). 	The Order was originally mailed to Plaintiff at the UCDC which was his
address of record.
On April 15, 2025, the Court received a Notice of Change of Address from Plaintiff
notifying the Court of Plaintiff’s release from the UCDC and providing his current address of
record. 	(ECF No. 34). 	The Clerk of the Court resent all documents that were returned as
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undeliverable to Plaintiff on the same day. 	This included the Court’s March 24, 2025 Order
directing a response to Defendant’s Motion for Summary Judgment. Id.
The Court then provided Plaintiff time to respond to its Order after it was resent, however,
Plaintiff failed to do so. Accordingly, the Court entered an Order to Show Cause on May 16, 2025,
ordering Plaintiff to Show Cause why he failed to respond to the Court’s Order and Defendant’s
Motion for Summary Judgment. (ECF No. 42). Plaintiff responded on June 3, 2025. (ECF No.
43). 	However, Plaintiff discussed his free-world in forma pauperis application rather than his
response to Defendant’s Motion for Summary Judgment in this Response. 	(ECF No. 43).
Accordingly, the Court entered a second Order to Show Cause explaining to Plaintiff the need for
his response to Defendant’s Motion for Summary Judgment and again extending his time to
respond to June 30, 2025. 	(ECF No. 44). 	Additionally, the Court granted the Clerk’s Office
permission to print and provide Plaintiff with additional copies of Defendant’s Motion for
Summary Judgment and supporting documents if Plaintiff needed such copies. 	Specifically,
Plaintiff was instructed he could go to the El Dorado Clerk’s Office to make this request if needed.
Id.
On July 7, 2025, Plaintiff responded to the Court’s second Order to Show Cause. In this
Response, Plaintiff stated he did send a response but must have submitted it incorrectly. He also
states he is sick and “been under a doctor.” He then states he has no car to go to El Dorado to get
the “documents Defendant’s ask for,” and he says, “I can’t really do too much of anything now.”
(ECF No. 45). Plaintiff has not communicated with the Court since this July 7, 2025 filing. The
Court never received any response to Defendant’s Motion for Summary Judgment from Plaintiff.
II. 	FACTUAL BACKGROUND
Defendant alleged in his statement of facts:
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1. On February 3, 2024. officers were summoned to 1217 B Avenue in El Dorado
Arkansas regarding a possible burglary in progress. See, Exhibit A, El Dorado Police Department
Incident Report No. 2024-002974.

2. Upon arrival, Sgt. Cody Wilson observed a black male, later identified as Kenneth
Newton, stepping down from the front porch and walking away from the residence. Exhibit A.

3. Officers were already on alert regarding 1217 B Avenue because there had been
calls throughout previous nights of someone possibly attempting the burglarize the residence and
possibly harm the homeowners. See Exhibit B, Internal Memorandum dated September 12, 2024.

3. Upon contact, Mr. Newton was asked to provide his name and identified himself to

officers as Kenneth Smith! See Exhibit A, Exhibit C, Bodycam video of incident.

4. While questioning Mr. Newton, he attempted mote than once to put his hands inside
his pockets. Jd. After the second time, Mr. Newton was advised that if he placed his hands inside
his pockets again, he would be detained and placed in handcuffs until further investigation. Ja.

5. At that time, Mr. Newton began to flee from officers carrying a black bag in his left
hand. Jd.

6. After a brief foot pursuit, Sgt. Wilson activated lus department issued Taser 7 and
deployed a single shot in the direction of Mr. Newton. Due to the prongs not making a connection
with Mr. Newton through his clothing, Set. Wilson fired a second shot from his Taser which was
successful in bringing Mr. Newton to a stop and to the ground. Jd.

7. Mr. Newton, in his complaint, alleges that he was shot in the head by Set. Wilson
with the Taser. Mr. Newton was not shot in the head or anywhere close to his head. The Taser hit
Mr. Newton in his lower back area. See Exhibit B, Exhibit C_

8. After Newton was on the ground, he continued to struggle with officers while they
attempted to take him into custody. Jd. After a short struggle, officers were able to place Mr.

Newton into handcuffs without further incident. Jd.

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(ECF No. 29) (errors in original). 	Defendant relies on his Incident Report (ECF No. 29-1), his
Internal Memorandum (ECF No. 29-2), and his Bodycam Footage (ECF No. 29-3) as support for
these facts.
The Court, reviewed Defendant’s body camera footage, offered as an exhibit to the Motion
for Summary Judgment, and makes the following observations:
1. 	Defendant drove up to the scene and exited his vehicle. 	The video does not show
Plaintiff leaving the porch but does show him in the driveway of a home. Defendant
did not turn on the audio on his bodycam until he was already conversing with Plaintiff.
(ECF No. 29-3).
2. 	Defendant asked Plaintiff if he lived in the home. Plaintiff initially responded no but
then said he stayed there with his uncle. Plaintiff then attempted to put his hands in his
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coat pocket. Defendant told Plaintiff to get his hands out of his pockets. Defendant
then asked Plaintiff his name, and Plaintiff responded it was Curtis Smith. (ECF No.
29-3).
3. 	While Defendant was radioing Plaintiff’s proffered name in, Plaintiff again attempted
to put his hand in his coat pocket. Defendant said: “Take your hand out of your pocket.
I done told you. Do it again and I will put you in cuffs.” At this point, Plaintiff turns
around and runs away from Defendant. (ECF No. 29-3).
4. 	At time stamp 1:25, while Defendant is chasing Plaintiff, you can see the laser light of
the taser on Plaintiff’s back and hear the taser firing. However, Plaintiff continues to
run away from Defendant.
5. 	At time stamp 1:32 Plaintiff falls to the ground. Defendant runs up to Plaintiff and the
sound of the taser firing is still audible. Plaintiff rolls on to his back as Defendant runs
to where he is laying. 	It is obvious from Plaintiff’s body language that he is being
tased. (ECF No. 29-3).
6. 	At this time, additional officers enter the scene and join Defendant. Multiple officers
are ordering Plaintiff to put his hands behind his back. 	A non-party officer grabs
Plaintiff to attempt to handcuff him.
7. 	At time stamp 1:38, Defendant grabs Plaintiff and Tases him again, this time in drive-
stun mode, in the rib cage. 	After a short struggle where Plaintiff is rolled onto his
stomach, Defendant along with a non-party officer, successfully handcuff Plaintiff.
Defendant then immediately allows Plaintiff off his stomach and sits him up. 	(ECF
No. 29-3).
8. 	Then the officers (Defendant plus three unidentified nonparty officers) stand Plaintiff
up and begin the process of pulling the taser probes off Plaintiff. 	Defendant can be
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heard saying “they are all over him,” but it is clear in the body camera footage that no
probes are pulled out of Plaintiff’s head. All probes are in Plaintiff’s back and lower
body. (ECF No. 29-3).
As Plaintiff did not respond to Defendant’s Motion for Summary Judgment or his
Statement of Undisputed Facts, the Court will proceed with such facts alleged by Defendant as
undisputed. 	Fed. R. Civ. P. 56(e)(2). 	Unless, however, Plaintiff alleges contrary facts in his
Complaint. A verified complaint is the equivalent of an affidavit for summary judgment purposes.
See, e.g., Roberson v. Hayti Police Dep't., 241 F.3d 992, 994-95 (8th Cir. 2001). As the Court in
Roberson pointed out, “[a]lthough a party may not generally rest on his pleadings to create a fact
issue sufficient to survive summary judgment, the facts alleged in a verified complaint need not
be repeated in a responsive affidavit to survive the summary judgment motion.” Id. The Court
will “piece[ ] together [Plaintiff’s] version of the facts from the verified complaint . . . .”
McClanahan v. Young, No. 4:13-cv-04140, 2016 WL 520983, *1 (D.S.D. Feb. 5, 2016). Those
portions of the Defendant’s statement of material facts that do not conflict with [Plaintiff’s verified
Amended Complaint] are deemed admitted.” (Id.).
Here, the only fact disputed by Plaintiff in his verified Complaint is the placement of the
taser shot while Plaintiff was fleeing from Defendant. 	Plaintiff claims in his Complaint that
Defendant shot him twice: once in the arm and once in the back of the head. (ECF No. 1, pp. 5-
6). However, the Court need not recognize a fact as disputed when the record clearly contradicts
the parties’ assertion such as in video evidence. “When opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Here the body camera video clearly shows
Plaintiff was not tased in the head, but instead tased in the back and extremities. Accordingly, the
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Court finds no facts are disputed herein, and it may make its findings as a matter of law based on
the undisputed record before it.
III. 	LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the nonmoving party, the record “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Once
a party moving for summary judgment has made a sufficient showing, the burden rests with the
non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine
issue of material fact exists.” Nat’l Bank of Comm. v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir.
1999).
The non-moving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita, 475 U.S. at 586. “They must show there is sufficient
evidence to support a jury verdict in their favor.” Nat’l Bank, 165 F.3d at 607. “A case founded
on speculation or suspicion is insufficient to survive a motion for summary judgment.” Id. at 610.
“When opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380
(2007).
III. 	DISCUSSION
Plaintiff’s excessive force claim against Defendant is centered solely around his tasing.
Plaintiff does not challenge: (1) Defendant’s reasonableness for the initial stop; (2) the fact he was
actively fleeing when he was tased; or (3) any physical contact between Defendant and himself
during his handcuffing. Instead, Plaintiff claims only that the manner in which Defendant tased
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him while he was fleeing was unreasonable and constituted excessive force. (ECF No. 1, pp. 5-
6). Accordingly, the only issue before the Court for consideration is whether there are issues of
fact regarding Defendant’s tasing of Plaintiff while he was actively fleeing from Defendant.1
A. 	Individual Capacity Claim
Defendant first argues he did not use excessive force against Plaintiff. Defendant does not
dispute he tased Plaintiff, as shown in the video, however, Defendant contends such use of force
was justified under the circumstances. (ECF No. 28, p. 3). Next, Defendant argues even if the
Court finds his actions in tasing Plaintiff constituted excessive force, he is entitled to qualified
immunity for the tasing. (ECF No. 28, p. 5). The Court agrees Defendant is entitled to qualified
immunity from Plaintiff’s claims of excessive force.
Qualified immunity “shields [a] government official[] from liability in a § 1983 action
unless the official’s conduct violates a clearly established constitutional or statutory right of which
a reasonable person would have known.” Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th
Cir. 2009). Qualified immunity protects “all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). “At summary judgment, qualified
immunity shields a law enforcement officer from liability in a § 1983 action unless: (1) the facts,
viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional
or statutory right; and (2) the right was clearly established at the time of the deprivation.” Watson
v. Boyd, 2 F.4th 1106, 1109 (8th Cir. 2021) (internal citation and quotations omitted). The Court
may use its discretion in determining which of these two prongs to address first. 	Pearson v.
1 The Court notes the video depicts another tasing in drive-stun mode to Plaintiff’s rib cage while
Defendant is attempting to handcuff Plaintiff, however, Plaintiff did not challenge this tasing in
anyway in his Complaint. (ECF No. 1). Plaintiff also did not seek to amend his Complaint after
receiving the video evidence during discovery to add this tasing to his Complaint. Accordingly,
that tasing is not properly before this Court and will not be address herein. 	See Ridenour v.
Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062, 1067 (8th Cir. 2012) (collecting cases holding
a court cannot consider arguments not before a magistrate judge).
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Callahan, 555 U.S. 223, 236 (2009). 	If a constitutional right was not clearly established at the
time of deprivation, then the Court need not determine whether the particular plaintiff’s
constitutional rights were violated based on the facts before it because the defendant is entitled to
qualified immunity regardless. 	See Dimock v. City of Brooklyn, et. al, No. 24-1728, 2024 WL
5220190, *3 (8th Cir. Dec. 26, 2024). Qualified immunity is a legal question for the Court, not
the jury, to decide. Luckert v. Dodge County, 684 F.3d 808, 817 (8th Cir. 2012).
Plaintiff’s claim that excessive force was used during his arrest is analyzed under the
Fourth Amendment. Goffin v. Ashcraft, 977 F.3d 687, 691 (8th Cir. 2020). This analysis requires
an inquiry into “whether the [officer’s] actions are objectively reasonable in light of the facts and
circumstances confronting them, without regard to their underlying intent or motivation.” Graham
v. Connor, 490 U.S. 386, 397 (1989). Specific factors to consider in this inquiry include: (1) “the
severity of the crime at issue;” (2) “whether the suspect posed an immediate threat to the safety of
the officers or others;” and (3) “whether [the suspect] was actively resisting arrest or attempting to
evade arrest by flight.” 	Boudoin v. Harsson, 962 F.3d 1034, 1041 (8th Cir. 2020) (quoting
Graham, 490 U.S. at 396).
It is clearly established, under Eighth Circuit precedent, that it is unlawful to tase a
nonviolent, suspected misdemeanant who is not fleeing or resisting arrest, who poses little to no
threat to anyone’s safety. See Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009).
However, it is also clearly established that arresting officers may use force, in the form of a taser,
with arrestees attempting to flee or actively resisting arrest. 	See Boudoin v. Harsson, 962 F.3d
1034 (8th Cir. 2020) (finding it was objectively reasonable for an officer to tase a motorcycle
driver during a traffic stop when he first refused to pull over for the officer, was driving recklessly,
and then appeared to be putting his motorcycle in gear to flee from the traffic stop); see also
McKenney v. Harrison, 635 F.3d 354, 360 (8th Cir. 2011) (holding the tasing of arrestee, suspected
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of a misdemeanor, was objectively reasonable because the arrestee made a sudden movement
toward the window which was interpreted by the officer as an attempt to flee, and the fact the
arrestee fell out of said window to his death did not negate the reasonableness of the tasing).
Here, the undisputed facts indicate, prior to his encounter with Plaintiff at 1217 B Avenue,
Defendant was aware of calls to the EDPD, from the night before, reporting someone attempting
to burglarize the residences around 1217 B Avenue and potentially harm residents. (ECF No. 29-
2). Also, Defendant was called specifically to 1217 B Avenue, on the day at issue, with a report
of a possible burglary in progress. Id. Additionally, it is undisputed Plaintiff attempted to put his
hand inside his pocket despite directions not to do so, and then when told he would be handcuffed,
Plaintiff ran away from Defendant through a neighborhood. (ECF No. 29-3).
The Court finds it was not only reasonable, but obvious to any officer on the scene that
Plaintiff was attempting to evade arrest here. 	Plaintiff even admits this fact in his Complaint.
(ECF No. 1, p. 5)). 	Furthermore, the Court finds it was reasonable for Defendant to believe
Plaintiff was potentially dangerous given the previous calls reporting a potential burglary and harm
to the residents at the home where Plaintiff was witnessed leaving the porch. Residential Burglary
is a Class B Felony in Arkansas. 	Ark. Code Ann. § 5-39-201. 	Furthermore, Congress and the
Eighth Circuit have recognized burglary as “an inherently dangerous crime because burglary
creates the possibility of a violent confrontation between the offender and an occupant, caretaker,
or some other person who comes to investigate.” United States v. Sims, 933 F.3d 1009, 1014 (8th
Cir. 2019) (affirming the Arkansas Court of Appeals decision that a residential burglary of a
vehicle being used as a residence in Arkansas is a violent felony under the Armed Career Criminal
Act warranting enhanced sentencing).
Accordingly, based on the undisputed facts on this summary judgment record, the Court
finds Defendant’s actions in tasing Plaintiff, a suspect in a dangerous felony who fled from
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Defendant, was objectively reasonable under the case law at the time of the tasing. 	Therefore,
such use of force did not violate Plaintiff’s Fourth Amendment rights, and Defendant is entitled to
qualified immunity from Plaintiff’s individual capacity claim.
B. 	Official Capacity Claim
Official capacity claims are “functionally equivalent to a suit against the employing
governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). In
this case, Plaintiff's official capacity claim against Defendant is treated as a claim against the City
of El Dorado, Arkansas. See Murray v. Lene, 595 F.3d 868, 873 (8th Cir. 2010).
“[I]t is well established that a municipality cannot be held liable on a respondeat superior
theory, that is, solely because it employs a tortfeasor.” Atkinson v. City of Mountain View, Mo.,
709 F.3d 1201, 1214 (8th Cir. 2013). To establish the City of El Dorado’s liability under Section
1983, “plaintiff must show that a constitutional violation was committed pursuant to an official
custom, policy, or practice of the governmental entity.” Moyle v. Anderson, 571 F.3d 814, 817
(8th Cir. 2009) (citation omitted). 	Thus, Plaintiff’s official capacity claim against Defendant is
“functionally equivalent” to alleging his employer, the City of El Dorado, had “a policy, custom,
or [took an] official action” that deprived him of his constitutional rights. 	Veatch, 627 F.3d at
1257; Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006).
To establish a claim for “custom” liability, Plaintiff must demonstrate:
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 official of that misconduct; and
3) That Plaintiff was injured by acts pursuant to the government entity’s custom, i.e., that
the custom was a moving force behind the constitutional violation.
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Johnson v. Douglas County Medical Dept., 725 F.3d 825, p. 828 (8th Cir. 2013). 	“A single
deviation from a written, official policy does not prove a conflicting custom.” Id. at 828 (internal
citation omitted).
While Plaintiff alleges in his Complaint a conclusory statement that the EDPD has a
practice of mistreating individuals they are pursuing, he does not dispute the EDPD use of force
policy presented on the summary judgment record. 	He also does not allege how this policy
violated his Fourth Amendment rights. Plaintiff must show there is sufficient evidence to support
a jury verdict in his favor. Nat’l Bank, 165 F.3d at 607. His conclusory statement is nothing more
than speculation or suspicion and therefore insufficient to survive a motion for summary judgment
on his official capacity claim against Defendant. Id. at 610.
Furthermore, as the Court has determined Plaintiff’s Fourth Amendment claim against
Defendant fails as a matter of law, there can be no corresponding official capacity claim. 	See
McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005) (The Eighth Circuit has
consistently recognized without an underlying substantive constitutional violation against a
defendant in their individual capacity, a plaintiff cannot be successful on an official capacity claim
against that defendant’s employer).
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V. 	CONCLUSION
Accordingly, it is RECOMMENDED that Defendant’s Motion for Summary Judgment
(ECF No. 27) be GRANTED and Plaintiff’s Complaint be DISMISSED WITH PRJEUDICE.
Referral Status: The referral of this case should be terminated with the filing of this
Report and Recommendation.
The parties have fourteen days from receipt of the Report and Recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 15th day of December 2025.
/s/ Spencer G. Singleton
HON. SPENCER G. SINGLETON
UNITED STATES MAGISTRATE JUDGE
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