Stovall v. Brotherton

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
VANDY STOVALL 	PLAINTIFF
v. 	Civil No. 6:23-cv-06115-SOH-MEF
JASON A. BROTHERTON 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed by Plaintiff Vandy Stovall under 42 U.S.C. § 1983.
Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable Timothy L. Brooks,
Chief 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 Jason A. Brotherton’s
Motion for Summary Judgment (ECF No. 39). The Court has also reviewed Defendant’s Brief in
Support (ECF No. 40) and Statement of Undisputed Material Facts (ECF No. 41), as well as
Plaintiff’s Response in Opposition (ECF No. 44). For the reasons given below, the undersigned
recommends that Defendant’s Motion be DENIED.
I. 	BACKGROUND
Plaintiff’s Second Amended Complaint (ECF No. 15) brings one claim for cruel and
unusual punishment in violation of the Eighth Amendment to the United States Constitution, which
he alleges occurred on August 15, 2023, while he was incarcerated at the Arkansas Division of
Corrections’ Ouachita River Unit. 	Specifically, Plaintiff alleges that Brotherton, a correctional
officer at that unit, placed his hand on his gun and told Plaintiff that he “heard black people can
run fast, so Stovall take off so I can shoot you.” 	See ECF No. 15, pp. 4–7. 	Defendant denies
having ever said this, and has moved for summary judgment on this claim, asserting the defense
of qualified immunity. Defendant’s Motion is now ripe for decision.
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II. 	LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986), 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).
“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.” 	National Bank of Commerce v. Dow Chemical 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.” National Bank, 165 F.3d at 607 (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “A case founded on speculation or suspicion is
insufficient to survive a motion for summary judgment.” Id. (citing Metge v. Baehler, 762 F.2d
621, 625 (8th Cir. 1985)). 	“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. 	ANALYSIS
Section 1983 was enacted to provide a “broad remedy for violations of federally protected
civil rights.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 685 (1978). To assert a claim under
§ 1983, a plaintiff must allege two elements: (1) that the action occurred under color of law; and
(2) that the action is a deprivation of a right secured by the Constitution or laws of the United
States. See West v. Atkins, 487 U.S. 42, 48 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th
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Cir. 1999). Defendant contends that he is entitled to qualified immunity from Plaintiff’s claim.
The qualified immunity inquiry consists of two questions: “(1) whether the facts alleged or shown
. . . establish a violation of a constitutional or statutory right, and (2) whether that constitutional
right was clearly established as of” the time of the relevant conduct “such that a reasonable official
would have known that his actions were unlawful.” Krout v. Goemmer, 583 F.3d 557, 564 (8th
Cir. 2009). The Court can answer the questions in either order. Pearson v. Callahan, 555 U.S.
223, 242 (2009). 	A § 1983 plaintiff may defeat qualified immunity only if the answer to both
questions is yes. Krout, 583 F.3d at 564.
Eighth Circuit caselaw has been well-settled for decades now that although “[v]erbal
threats and name calling usually are not actionable under § 1983,” McDowell v. Jones, 990 F.2d
433, 434 (8th Cir. 1993), there is an exception to this general principle when a correctional officer
“terrorize[s]” a prisoner “with threats of death,” Burton v. Livingston, 791 F.2d 97, 101 (8th
Cir.1986). In Burton, the plaintiff alleged that a guard at his prison drew his pistol, hurled a racial
epithet at the plaintiff, and told him to “run, I want you to run,” so that if the plaintiff ran then “he
could shoot me in my back and say I tried to escape.” 791 F.2d at 99. The Eighth Circuit clearly
and expressly held that “the guard’s actions, if proved, were a violation of [the plaintiff]’s rights”
under, among other things, the Fourteenth Amendment of the United States Constitution. See id.
at 101. 	The Court also clarified that any relief the plaintiff could obtain under the Eighth
Amendment on these facts would be coextensive with that obtained under the Fourteenth
Amendment. See id. at n. 2.
In the instant matter, Plaintiff has provided sworn deposition testimony that while he and
around 20 other inmates who were working together on the hoe squad sat down to have lunch,
Defendant, who was their supervisor, placed his hand on his gun and said “y’all know what I heard
last night[?] . . . I heard black people can run fast, Stovall take off running so I can shoot you.”
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See ECF No. 39-1, pp. 11–13. Defendant, for his part, has provided a sworn declaration that he
never said any such thing to Plaintiff or to any other inmate. See ECF No. 39-2, ¶¶ 6–7. There is
no testimony in the record from any other potential witnesses of this incident.
Clearly either Plaintiff or Defendant is lying, or else profoundly confused, about what
Defendant did or did not say to Plaintiff on August 15, 2023. If Plaintiff’s account is true, then
Defendant violated a clearly established constitutional right of the Plaintiff under Burton. On the
other hand, if Defendant’s account is true, then no deprivation of Plaintiff’s rights occurred. This
obviously presents a material factual dispute. How to resolve this conflicting evidence? The only
way is for the finder of fact to make credibility assessments of these two witnesses’ testimony. To
that end, Defendant has introduced evidence that in the weeks immediately preceding this alleged
incident, Defendant had issued two major disciplinary forms against Plaintiff for failing to report
for work, implying that Plaintiff has a revenge motive for fabricating this claim. See ECF No. 41,
¶¶ 9, 23–24; see also ECF Nos. 39-3 and 39-4. 	But weighing this sort of evidence to make
credibility determinations is precisely the sort of thing that courts may not do at the summary
judgment stage. “At the summary judgment stage, the court should not weigh the evidence, make
credibility determinations, or attempt to determine the truth of the matter. 	Rather, the court’s
function is to determine whether a dispute about a material fact is genuine.” Peter v. Wedl, 155
F.3d 992, 996 (8th Cir. 1998) (quoting Kraft v. Ingersoll-Rand Co., 136 F.3d 584, 585 (8th Cir.
1998)). 	And if a “genuine dispute exists concerning predicate facts material to the qualified
immunity issue, the defendant is not entitled to summary judgment on that ground.” Pace v. City
of Des Moines, 201 F.3d 1050, 1056 (8th Cir 2000). That is the case here.
IV. 	CONCLUSION
For these reasons, it is RECOMMENDED that Defendant Jason A. Brotherton’s Motion
for Summary Judgment (ECF No. 39) be DENIED.
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The parties have fourteen (14) 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 23rd day of January 2026.
/s/
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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