1:24-cv-01056•Newton v. Wilson
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1 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 1 of 15 PageID #: <pageID>
2 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 2 of 15 PageID #: <pageID>
3 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 3 of 15 PageID #: <pageID>
4 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: Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 4 of 15 PageID #: <pageID>
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6 (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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 6 of 15 PageID #: <pageID>
7 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 7 of 15 PageID #: <pageID>
8 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 8 of 15 PageID #: <pageID>
9 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 9 of 15 PageID #: <pageID>
10 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). Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 10 of 15 PageID #: <pageID>
11 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 11 of 15 PageID #: <pageID>
12 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 12 of 15 PageID #: <pageID>
13 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. Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 13 of 15 PageID #: <pageID>
14 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). Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 14 of 15 PageID #: <pageID>
15 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 15 of 15 PageID #: <pageID>
OCR transcription for search; preserved printed pages are authoritative
Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 1 of 15 PagelD #: <pagelD> 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 INFORMATION GPO 1 2 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 2 of 15 PageID #: <pageID> 3 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 3 of 15 PageID #: <pageID> 4 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: Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 4 of 15 PageID #: <pageID> Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 5 of 15 PagelD #: <pagelD> 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. 6 (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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 6 of 15 PageID #: <pageID> 7 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 7 of 15 PageID #: <pageID> 8 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 8 of 15 PageID #: <pageID> 9 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 9 of 15 PageID #: <pageID> 10 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). Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 10 of 15 PageID #: <pageID> 11 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 11 of 15 PageID #: <pageID> 12 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 12 of 15 PageID #: <pageID> 13 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. Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 13 of 15 PageID #: <pageID> 14 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). Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 14 of 15 PageID #: <pageID> 15 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 Case 1:24-cv-01056-SOH Document 46 Filed 12/15/25 Page 15 of 15 PageID #: <pageID>
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