Aaron Flemons v. John Devane ( 2019 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-3111
___________________________
Aaron Anthony Flemons
lllllllllllllllllllllPlaintiff - Appellant
v.
John Devane, Jail Administrator, Sebastian County Detention Center; Ms. Jackson,
Assistant Jail Administrator, SCDC; Miller, Jail Administrator, SCDC; Sgt Taulbee
lllllllllllllllllllllDefendants - Appellees
Steele, Shift Supervisor; Hobbs, Deputy; Woods, Deputy
lllllllllllllllllllllDefendants
Partain, Deputy; Frazier, Deputy
lllllllllllllllllllllDefendants - Appellees
LPN S. Overstreet; John Doe, Security; Bunn, Deputy; Fuller, Deputy
lllllllllllllllllllllDefendants
Bates, Deputy; Adams, Deputy; Curry, Deputy
lllllllllllllllllllllDefendants - Appellees
Lindberg, Deputy
lllllllllllllllllllllDefendant
Dumas, Deputy
lllllllllllllllllllllDefendant - Appellee
____________
Appeal from United States District Court
for the Western District of Arkansas - Ft. Smith
____________
Submitted: October 7, 2019
Filed: October 11, 2019
[Unpublished]
____________
Before BENTON, KELLY, and ERICKSON, Circuit Judges.
____________
PER CURIAM.
In this 42 U.S.C. § 1983 case, Aaron Flemons—an inmate currently in the
custody of the Arkansas Department of Correction, and formerly confined as a
convicted prisoner at the Sebastian County Detention Center (SCDC)—appeals the
magistrate judge’s denial of his motion for appointed counsel, and the district court’s
subsequent adverse grant of summary judgment on his Eighth Amendment claims,
which related to two incidents that occurred while he was confined at SCDC. Also
pending are his motions for appointed counsel, and to submit new evidence.
Initially, we conclude that we lack jurisdiction to review the magistrate judge’s
denial of Flemons’s motion for appointed counsel because he did not object in the
district court. See McDonald v. City of St. Paul, 679 F.3d 698, 709 (8th Cir. 2012)
-2-
(under Fed. R. Civ. P. 72(a), after magistrate issues order on nondispositive pretrial
matter, party may serve and file written objections within 14 days; party may not
assign as error defect not objected to); Daley v. Marriott Int’l, Inc., 415 F.3d 889, 893
n.9 (8th Cir. 2005) (when parties do not consent to final disposition by magistrate, this
court lacks jurisdiction to consider direct appeal of magistrate’s order on
nondispositive pretrial matter).
As to the merits, we first note that—because all of the defendants directly
involved in the first incident were dismissed for lack of service, and because Flemons
has not offered any meaningful argument as to the merits of that dismissal on
appeal—his claims as to that incident are limited to failure-to-train and failure-to-
supervise claims against the SCDC administrators. See Ahlberg v. Chrysler Corp.,
481 F.3d 630, 638 (8th Cir. 2007) (points not meaningfully argued on appeal are
waived). Next, we conclude that the district court did not err in granting summary
judgment on Flemons’s failure-to-train and failure-to-supervise claims against the
SCDC administrators based on both incidents. See Wise v. Lappin, 674 F.3d 939, 941
(8th Cir. 2012) (de novo review of grant of summary judgment). Specifically,
Flemons did not create a genuine dispute as to whether any of the defendants acted
pursuant to a county policy or custom, or whether the administrators were deliberately
indifferent in failing to train or supervise the other defendants. See Parrish v. Ball,
594 F.3d 993, 997 (8th Cir. 2010) (official-capacity suit against public official is
actually suit against entity); see also Mick v. Raines, 883 F.3d 1075, 1079 (8th Cir.
2018) (municipality can be liable under § 1983 if constitutional violation resulted
from municipal policy, custom, or deliberately indifferent failure to train or
supervise). Similarly, the administrators were entitled to summary judgment in their
individual capacities, as there was no evidence showing that they failed to supervise
adequately the other defendants, or that they were deliberately indifferent to any
inadequacies in the other defendants’ training. See Brockinton v. City of Sherwood,
503 F.3d 667, 673 (8th Cir. 2007) (standard of liability for municipal failure-to-
supervise claim is “demonstrated deliberate indifference or tacit authorization of the
-3-
offensive acts”); Larkin v. St. Louis Hous. Auth. Dev. Corp., 355 F.3d 1114, 1117
(8th Cir. 2004) (to survive summary judgment on failure-to-train claim, plaintiff must
show that need for training was patently obvious, or that pattern of misconduct
indicated responses to regularly recurring situation were insufficient).
As to the second incident, we conclude that the district court properly granted
summary judgment on Flemons’s failure-to-protect claims, as there is no indication
any of the defendants knew that he faced a substantial risk of harm or that they were
deliberately indifferent to that risk. See Patterson v. Kelley, 902 F.3d 845, 851 (8th
Cir. 2018) (to prevail on failure-to-protect claim, inmate must show that he faced
substantial risk of harm, and that prison official was deliberately indifferent to that
risk). We further conclude that summary judgment was properly granted on
Flemons’s failure-to-intervene claim, as there was no indication that any of the
deputies failed to intervene when Frazier allegedly attacked Flemons, or that they
could have prevented him from falling immediately after he was tased. See Krout v.
Goemmer, 583 F.3d 557, 565 (8th Cir. 2009) (officer may be liable under § 1983 if
he is aware another officer is using excessive force and duration of episode is
sufficient to permit inference of tacit collaboration). In addition, we conclude that the
district court properly granted summary judgment on Flemons’s excessive-force claim
against Deputy McCollum because the video of the second incident shows beyond
genuine dispute that the force McCollum used while handcuffing Flemons was a
good-faith effort to maintain or restore discipline. See Wilkins v. Gaddy, 559 U.S. 34,
36-39 (2010) (per curiam) (in excessive-force claim, core judicial inquiry is whether
force was used in good-faith effort to maintain or restore discipline, or was instead
used maliciously and sadistically to cause harm); Hudson v. McMillian, 503 U.S. 1,
6-7 (1992) (discussing relevant factors).
We conclude, however, that summary judgment was not proper on Flemons’s
individual-capacity, excessive-force claims against Frazier and Partain. As to these
claims, the district court based its grant of summary judgment, at least in part, on facts
-4-
that were genuinely disputed, and did not credit Flemons’s version of the aspects of
the second incident that were not depicted in the video evidence. See Wise, 674 F.3d
at 941; cf. Scott v. Harris, 550 U.S. 372, 380 (2007). The video evidence in the
summary judgment record does not show the events that led up to the second incident
or Partain tasing Flemons; and it does not conclusively disprove Flemons’s version
of those aspects of the second incident, as described in his verified complaint and the
affidavit he submitted with his summary judgment response. See Thompson v. City
of Monticello, 894 F.3d 993, 997-98 (8th Cir. 2018) (affirming denial of summary
judgment based on qualified immunity on excessive-force claim because, inter alia,
video captured only part of incident, did not clearly show key facts, and did not
conclusively disprove plaintiff’s version of incident); cf. Davis v. Jefferson Hosp.
Ass’n, 685 F.3d 675, 682 (8th Cir. 2012) (verified complaint is equivalent of affidavit
for summary judgment purposes).
Accordingly, we reverse the district court’s grant of summary judgment on
Flemons’s individual-capacity, excessive-force claims against Frazier and Partain;
affirm in all other respects; and remand for further proceedings. Flemons’s motions
are denied as moot.
______________________________
-5-