Case 3:09-cv-00230-JLH Document 124 Filed 05/27/11 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION JACOB THOMAS EARLS ADC #114556 v. CASE NO. 3:09-cv-00230-JLH-JJV

PLAINTIFF

MATTHEW RING, OFFICER, PARAGOULD POLICE DEPARTMENT PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS

DEFENDANT

The following recommended partial1 disposition has been sent to United States District Chief Judge J. Leon Holmes. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in a waiver of the right to appeal questions of fact. If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a new hearing for this purpose before either the District Judge or Magistrate Judge, you must, at the time you file your written objections, include the following: 1. 2. Why the record made before the Magistrate Judge is inadequate. Why the evidence to be proffered at the new hearing (if such a hearing is granted) was

This opinion only addresses the issue of liability. The issue of damages will be addressed later, as explained infra. 1

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not offered at the hearing before the Magistrate Judge. 3. The details of any testimony desired to be introduced at the new hearing in the form

of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the new hearing. From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and Statement of Necessity to: Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR 72201-3325 DISPOSITION Plaintiff, Jacob Earls, is incarcerated in the East Arkansas Regional Unit of the Arkansas Department of Correction (ADC). Mr. Earls filed a pro se Complaint (Doc. No. 2) pursuant to 42 U.S.C. 1983, alleging that on August 11, 2009, Officer Ring violated his Fourth Amendment rights by using excessive force while arresting him. I. PROCEDURAL HISTORY By Order entered January 14, 2010 (Doc. No. 5), this matter was referred to the undersigned magistrate judge. An evidentiary hearing was held on August 16, 2010, and, for the reasons stated in this opinion, later concluded on May 4, 2011. The Court received exhibits and heard testimony from the parties and their supporting witnesses. While the parties admitted a number of documents, Defendants Exhibits 1 and 2 (admitted August 16, 2010) are crucial to this opinion. Therefore, they are attached as Addendum 1 to this Order. At the first evidentiary hearing, Plaintiff testified that, on August 11, 2009, Officer Ring arrested and handcuffed him. Earls alleges Ring slammed his face against the police vehicle and

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rendered him unconscious. Earls testified that he remembered nothing after his head was slammed against the vehicle. (Doc. No. 79 at 13). The Court admitted into evidence Defendants Exhibit 1, an Inmate Information Sheet created on August 11, 2009, 2:12:46 a.m. (later authenticated by Brian Agee in Doc. No. 73). This exhibit contains a booking photograph showing Earls in a restraint chair with a bandana on his neck, and clearly unconscious, with a jailer holding his head up. Earls face is swollen and bloodied. Earls testified that he found Defendants Exhibit 1 in his personal property when he was released from the jail.2 Officer Ring offered a starkly different version of events. Ring testified that, although he arrested Earls on August 11, 2009, he in no way used excessive force during the arrest as alleged. (Doc. No. 79 at 88-91). Officer Ring reported that he used a straight-arm-bar-take-down when Earls tried to flee, but Earls received only two minor scratches, there was no blood, and Earls appeared to be fine. (Id.). Ring testified that he had a pleasant discussion with Earls while transporting him to the Greene County Detention Facility. (Id. at 92-93). Paragould Police Officer Marcoe and Lt. Baldridge testified that they arrived at the scene almost immediately after the arrest and noticed nothing of concern. (Id. at 112-114, 123-125). The defense offered into evidence Defendants Exhibit 2, a Booking Sheet dated August 11, 2009, 2:03 a.m., which contained a booking photograph which showed Plaintiff appearing normal and wearing a colorful shirt. Ring and other witnesses testified that Plaintiff appeared as shown in Exhibit 2 because they specifically and distinctly remembered the colorful shirt. (Doc. No. 79 at 100-103, 114-115). They also testified

The actual document placed in Plaintiffs personal property was the version filed with his Complaint (Doc. No. 2 at 12). It is slightly different than Defendants Exhibit 1 (Doc. No. 79 at 166); however, the crucial component of the document is the photograph. 3

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that if Earls had looked like the photo in Defendants Exhibit 1, they would have called an ambulance or sought medical attention for him. (Doc. No. 79 at 115, 126-127). At the end of witness testimony on August 16, 2010, the Court sought an explanation from the defense for the photograph in Defendants Exhibit 1. (Id. at 168, 173-176). The defense offered none. (Id.). The Court believed that Defendants last witness, Cody Oost, was clearly uncomfortable and evasive when asked about the circumstances surrounding the photograph in Defendants Exhibit 1. Thus, the Court believed that further development of the record was necessary before a decision could be made in the case, particularly in light of the photographs which told two completely different stories. (Id. at 170, 172-177). At the conclusion of the August 16, 2010, hearing, the Court held in abeyance its ruling on Defendants Motion for Summary Judgment (Doc. No. 79. at 169-170), and held the record open for fourteen days to allow the parties to submit additional information. (Id. at 172). The Court also asked the parties to submit any information they could gather regarding the origins of Defendants Exhibit 1. (Id. at 170). On August 17, 2010, the Court also ordered defense counsel to produce any and all photographs of Plaintiff taken by the Greene County Sheriffs Department, the Greene County Jail, and the Paragould Police Department and to indicate the dates the photographs were taken. (Doc. No. 65). Defense counsel submitted an affidavit from Brian Agee, a software developer at Tiger Correctional Services. (Doc. No. 73). Tiger Software produces Tiger Track, the jail management software used at the Greene County Detention Center. (Doc. No. 73 at 1). Mr. Agee stated that he had reviewed the various photographs taken of Mr. Earls using the Tiger Track software. (Id.). Agee reported that the photograph on Defendants Exhibit 1 had been deleted from the system, and the document labeled 4

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Defendants Exhibit 1 was created on August 11, 2009, at 2:12:46 at the Greene County Detention Center. (Id. at 2). He further determined that the photograph on Defendants Exhibit 2 was created on May 18, 2009, 11:21 p.m. at the Greene County Detention Center, while the Booking Sheet reflects a book in date of Mr. Earls on August 11, 2009 at 2:03 a.m. (Id. at 2-3). Mr. Agees affidavit directly contradicts Defendant Ring and the other officers testimony that Earls appeared as shown in Exhibit 2 after his arrest. The affidavit also bolstered Earls credibility concerning the events on August 11, 2009. Accordingly, the Court appointed counsel to represent Mr. Earls (Doc. Nos. 74, 81) and found that the evidentiary hearing should be resumed. (Id.). On October 27, 2010, the undersigned magistrate judge filed a Proposed Findings and Recommendations (Doc. No. 83) recommending that Defendants Motion for Summary Judgment (Doc. No. 37) be denied because questions of material fact remained as to whether Officer Ring used excessive force when he arrested Plaintiff. (Doc. No. 83 at 7). The district judge entered an Order on November 17, 2010 (Doc. No. 84), adopting the Proposed Findings and Recommendations. Prior to the Court resuming the hearing, Defendant renewed his Motion for Summary Judgment (Doc. No. 97) and filed a Motion in Limine (Doc. No. 112) seeking to exclude Plaintiffs video statement from former jailer Brandon Morgan. Brandon Morgan provided a video statement to Plaintiffs counsel but is now deceased. Thus, Defendant objected to the admission of the statement as inadmissible hearsay. The evidentiary hearing was resumed on May 4, 2011. The Court first heard argument from the parties regarding both motions, concluded that the video statement was inadmissible hearsay, and granted Defendants Motion in Limine (Doc. No. 117). For the reasons stated herein and in the Courts previous Order (Doc. No. 84), the Court concludes that Defendants Motion for Summary 5

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Judgment (Doc. No. 97) should be DENIED. II. EVIDENCE FROM THE HEARINGS A. Jacob Earls

On the night of August 10, 2009, Earls went to the home of his sister, Tahnee Earls, who lived with Allen Peyton. (Doc. No. 79 at 12). Peyton would not allow Earls inside the house, so he waited in the backyard. (Id.). While waiting, Plaintiff saw a patrol car pull up to the home and hid behind an overturned water-heater in the backyard. (Id.). Peyton pointed out where Earls was hiding and Officer Ring proceeded to the backyard. (Id.). As Ring approached, he ordered Earls to get up. (Id.). A warrant was outstanding for Earls so Ring intended to arrest him. (Doc. No. 79 at 86). Ring helped Plaintiff up and the two walked to the patrol car. (Id. at 12). Plaintiff stated that when he started to turn around, Officer Ring slammed him against the patrol car. (Id. at 13). Plaintiff states he was rendered unconscious and remembered nothing else from the arrest. (Id.). The next thing he remembered was waking up in the Greene County Detention Center. (Id. at 14). Plaintiff stated that when he awoke, he was sore, unable to move, and his face was injured. (Id. at 14, 16). Plaintiff asserted that as a result of his arrest, he now has a steady numbness and tingling in his arm. (Id. at 15-17, 20-21). Earls was asked how he came into possession of the document marked as Defendants Exhibit 1 and he answered, I found it in the trash bag in my clothes and it was in my personal property. They have plastic Ziplock bags that they seal when they -- like your wallet, your watch. The picture was in there, folded in half. I took it and I slipped it in my pocket because I knew it was crucial. It was crucial evidence. I knew that. (Id. at 176). Earls also stated that because he was unconscious, he had no recollection of the photograph being taken. (Id. at 42). Earls said the photograph on Defendants Exhibit 2 was taken after his May 18, 2009, arrest by the Marmaduke, 6

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Arkansas, Police Department. (Id. at p. 43). B. Brandon Lorren

Brandon Lorren testified that on August 11, 2009, he received a phone call from Plaintiffs sister asking him to come and pick up Plaintiff. (Doc. No. 121 at 140-141). When he arrived, Earls was being placed under arrest. (Id.). Lorren stated, I think he had both cuffs on him, he jerked away or he was getting the other one, trying to get the other one on, one of the two . . . I couldn't see real good, but -- and then he got slammed -- well, took down I guess you would say. But, you know, he got ... slammed down []. (Id.). C. Officer Matthew Ring

Officer Ring testified that during the early hours of August 11, 2009, he was dispatched to the home of Allen Peyton after Peyton notified the Paragould Police Department that Earls was in his backyard. (Doc. No. 79 at 86). Ring testified that when he responded to the call, he knew a parole violation arrest warrant had been issued for Earls. (Id.). When Ring arrived, Peyton was on the porch and indicated that Earls was in the backyard. (Id. at 87). As Officer Ring approached the backyard, he saw Earls lying on the ground. (Id.). Officer Ring identified himself and ordered Earls to get up. (Id. at 88). After helping him up, Officer Ring placed both hands on Plaintiff and escorted him to his patrol car. (Id.). At the patrol car, Officer Ring started to handcuff Earls. (Doc. No. 79 at 88). As he removed his right hand from Plaintiff, Earls attempted to flee. (Id. at 88-89). Officer Ring stated Earls only took three steps before he used a straight-arm-bar take down and took Earls to the ground. (Id. at 89). He then placed his knee between Earls shoulder blades and ordered him to stop resisting. (Id. at 89-90). Officer Ring recalled that while he had Plaintiff on the ground, Lieutenant Brendan Baldridge and Officer Tamara Marcoe arrived. (Id. at 91). Ring did not recall seeing Brandon 7

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Lorren. (Id. at 103). After regaining control of Earls, Ring performed a search incident to arrest and placed Earls in his patrol car. (Id. at 91). He then used his flashlight and looked at Plaintiffs face. (Id.). Ring testified that Earls received like two small scratches but they were so minor they didnt even draw blood. (Id.) Officer Ring testified that he and Earls sat out in the patrol car talking a jaw. (Id. at 93). When they arrived at the Greene County Detention Center, Earls walked into the jail on his own. (Id. at 101). Ring recalled that Cody Oost was at the booking desk and that Oost made a comment about Plaintiffs shirt being colorful. (Id. at 93). Officer Ring said that he snickered at the comment and replied, Yes, its colorful. (Id.). He then placed Earls on a stool and removed the handcuffs. (Id.). He stated that while filling out his paperwork, he stood next to Plaintiff and carried on a conversation with him. (Id.). Officer Ring testified that because force was involved in Earls arrest, he completed a Use of Force Report. (Doc. No. 79 at 97). He stated, This is just -- any time there's any use of force, whether it be OC spray, any type of takedown, maybe an altercation where someone was punched or kicked or baton used, this is something we fill out in addition to the incident report. (Id.). When asked if the form required him to identify whether any injury had occurred during the use of force, Ring answered, It's on the back page, pretty much the same as in the statement, the scratches to the face and all of them minor, and he didn't ask nor appear to need medical attention. (Id. at 98). Lt. Baldridge and Capt. Faulkner reviewed Officer Rings Use of Force Report and neither found anything of concern. (Id. at 129). When shown Defendants Exhibit 1, Officer Ring replied that he was not present when Plaintiffs booking photograph was taken. (Doc. No. 79 at 99). He testified that Earls clothing in 8

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Defendants Exhibit 1was not the same clothing he wore on the night of his arrest. (Id. at 99, 103). Officer Ring definitively stated that Earls was wearing the same button-up shirt depicted in Exhibit 2 on the night of his arrest. (Id. at 100, 103). Ring wholly denied causing the injuries shown in the Exhibit 1 photograph. (Id. at 100). He asserted that the Exhibit 1 photograph did not show how Earls appeared on the night of his arrest. (Id. at 103). Officer Ring was also shown Defendants Exhibit 2 and he testified that the photograph in Defendants Exhibit 2 was consistent with Earls appearance on the night of his arrest. (Id. at 100-101). D. Allen Peyton

Allen Peyton testified that he called the Paragould Police Department after receiving a telephone call from Plaintiffs sister informing him that Plaintiff was threatening her. (Doc. No. 79 at 67). Peyton was outside when Officer Ring arrived and he saw Officer Ring escort Plaintiff to the patrol car. (Id. at 68-69). At the patrol car, Plaintiff began resisting and tried to flee. (Id.). According to Peyton, police officers took Plaintiff to the ground and placed him into handcuffs. (Id. at 70). Peyton states that he heard Officer Ring tell Plaintiff to stop resisting. (Id. at 71). Because it was dark, Peyton did not see Plaintiff after the officers had him restrained. (Id. at 72). Peyton remembered someone driving by in a red truck and yelling something out the window but did not remember whether the person stopped. (Id. at 82). E. Officer Tamara Marcoe

Officer Marcoe of the Paragould Police Department testified that on August 11, 2009, she was on patrol during the early morning shift with Lt. Brendan Baldridge. (Doc No. 79 at 111-112). She heard Officer Ring dispatched to a call. (Id. at 112). Because she and Lt. Baldridge were nearby, they responded to the call to serve as backup. (Id.). Officer Marcoe testified that while en route, she heard Officer Rings radio clicking. (Id.). She explained that the clicking noise usually 9

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indicates a struggle of some sort. (Id.). When they arrived, Officer Ring was in the process of handcuffing Earls. (Id. at 112, 117). She noticed Earls had a small scratch or cut on his face with a little bit of blood. (Id. at 113). She described him as coherent. (Id. at 118). Officer Marcoe recalled that during a conversation with Lt. Baldridge about what had happened, Officer Ring stated Plaintiff had tried to run. (Id. at 112-113). During her testimony, Officer Marcoe was shown Defendants Exhibits 1 and 2. She could not remember what Plaintiff was wearing on the night of his arrest. (Doc. No. 79 at 114). She did believe, however, that she would remember whether Plaintiff was wearing a bandana. (Id.). Officer Marcoe testified that the injuries shown in Defendants Exhibit 1 were not consistent with the injuries she saw on Plaintiff following his arrest. (Id. at 115). Officer Marcoe testified that, had Plaintiff appeared as he did in Defendants Exhibit 1, I probably would have been like, Hey, does he need an ambulance or something. I mean, from that it appears that he would have somewhat serious injuries. (Id.). Officer Marcoe also stated that Defendants Exhibit 2 accurately captured how Plaintiff looked on the night of his arrest. (Id. at 115, 120). F. Lt. Brendan Baldrige

Lt. Baldridge was Officer Rings supervisor. (Doc. No. 79 at 121). He testified that when he and Officer Marcoe arrived, Officer Ring had Plaintiff in custody and was searching him. (Id. at 124). When he asked Ring what had happened, Ring replied that Earls tried to run and he had to take him down. (Id.). Lt. Baldridge described Plaintiffs arrest as a non-event. (Id.). He stated, I mean, it was just a routine arrest, other than the fact that, you know, I mean, I guess they dont try to run every time, but like I say, I noticed some minor scratches on Mr. Earls face but that was all. . . . (Id.). When asked about Earls condition, Lt. Baldridge said, It's hard for me to remember because it was to [sic] unremarkable. There may have been a little bit. I mean, I don't -- there was 10

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not a lot of blood by any means. Like I say, I remember either a little bit of blood or a minor scratch or something like that on his face. (Id. at 125). When asked if Defendants Exhibit 1 portrayed Earls condition that night, Lt. Baldridge unequivocally answered, Absolutely not. It appears that his face was swoll up here. (Id. at 126). Baldridge was sure of his answer, Because I would have noted any injuries like that and, then, that would not have been a non-event for me. (Id.). Lt. Baldridge testified that if Earls had looked as shown in Exhibit 1, he would have possibly needed some medical attention. (Id. at 127). Lt. Baldridge was also shown Defendants Exhibit 2. He could not recall what Plaintiff was wearing on the night of his arrest but he did recall Plaintiff only having only a minor scratch and a trickle of blood. (Id. at 126-127). G. Cody Oost

In August 2009, Cody Oost was a jailer at the Greene County Detention Center. (Doc. No. 79 at 145). Oost testified that his duties included taking an arrestees booking photograph. (Id. at 146). On the morning of August 11, 2009, he was working at the booking desk. (Id. at 93). He assisted Officer Ring with Plaintiffs booking. (Id. at 149). While Officer Ring filled out the jails Intake Form3 , Oost completed Earls Medical Intake Form4, noting any marks or abrasions that might have been on Plaintiff. (Id. at 150-151). Oost did not remember Plaintiff having any abrasions or bruises on the night of his arrest. (Id. at 151). Prior to the August 16, 2010, hearing, Cody Oost reviewed Defendants Exhibits 1 and 2. (Id. at 147). He testified that he was pretty sure [he] was present for both [photographs]. (Id.).

Admitted on August 16, 2010, as Defendants Exhibit 6.

Admitted on August 16, 2010, as Defendants Exhibit 8 and on May 4, 2011, as Plaintiffs Exhibit 4a. 11

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He stated that the hand on Plaintiffs head in Exhibit 1 was not his. (Id.). Oost testified that the photograph in Exhibit 2 was taken on the night of Plaintiffs arrest by Officer Ring. (Id. at 148). When asked if the photograph from Exhibit 2 was the photograph taken the night Officer Ring brought Plaintiff to the detention center, he answered, Yes, it is. . . . I just remember the shirt; I remember making fun of that shirt when he was brought in. (Id.) Oost did not know when the photograph in Defendants Exhibit 1 was taken. (Id. at 149). He testified that he was familiar with the Tiger Computer system used at the jail (Id. at 148, 156) and that a person cannot take a photograph from a previous intake and place it on another intake. (Id. at 156). When the Court asked Mr. Oost to explain Defendants Exhibit 1, Oost responded, I don't know how this is even brought up because when I went back and got this for [defense counsel], you can't even find this picture on our system no more. I can't even find this intake because I tried to get one of these for [defense counsel]. I couldn't even find that booking intake sheet. (Id. at 157). When asked if he was present at the time the photograph was taken, Oost stated, Im believing I was because - - I mean, Im not saying I took the picture. (Id.). When the Court pointedly asked Oost, What happened during - - what were the facts surrounding the taking of that photograph, Oost responded, This one? . . . Why hes in that chair? Is that what youre asking? (Id. at 157- 158). Upon further questioning by the Court seeking an explanation for the photograph, Oost stated: They're totally different intakes but, I mean, I just remember very little on this intake where he's all bloody. I remember why he's in that chair and that's why I indicated that he's not strapped in because he wasn't being combative or anything. He just couldn't stand up. He wasn't being combative with us; he wasn't trying to hurt us. He just couldn't stand up, he couldn't walk and, you know, that's why he's setting in that chair because when he -- , you know, when he got a wheelchair out there for him to sit in so they usually sit in that, and that's why -- I couldn't tell you what officer's hand is on his head but it's -- you know, that's why he's holding his head up is what he's there for, a proper picture. (Id. at 160). 12

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Although moments before he testified that he thought he was present when the photograph was taken (Id. at 147), Oost then testified: I couldn't testify when that picture was taken. I have no -- I just remember that picture. I don't remember if I was even there when that picture was taken. I just remember everybody looking at that picture because, you know. . . I mean, it's not every day we have a, you know, an inmate come in looking like that, you know, just acting how he was, you know, just all, you know -- I don't even remember; I couldn't tell you why he come in looking that -- (Id. at 162-163). H. William Shaw

William Shaw, an inmate at the ADC, testified for Plaintiff. Shaw said he was in the jails detox cell on August 11, 2009 (Doc. No. 79 at 48), due to his prosthetic leg. (Id. at 61). The detox cell is behind the booking desk and the window in the cell allowed him to look out into the booking area. (Id. at 51-52). He remembered the night that Officer Ring brought Earls into the jail using a restraint chair. (Id. at 49). Mr. Shaw testified, ...he was totally out. I mean, he had blood from the corner of his mouth, he had a black bandana on his head, and he kept falling over in the chair. He was out. When they took his picture they took his head like this and held it back, and theyre laughing and stuff because he was out. (Id.). Mr. Shaw identified Defendants Exhibit 1 as the way Plaintiff appeared the night he was brought to the Greene County Detention Center. (Id. at 50-52). Shaw remembered that jailer Jerry Whiteside took the photograph while jailer Oost placed his hand on Plaintiffs head to hold it up for the photograph. (Doc. No. 79 at 51). Mr. Shaw also testified that Defendants Exhibit 2 did not depict how Plaintiff looked on the night of his arrest. (Doc. No. 79 at 52). According to Shaw, after Plaintiffs photograph was taken, the officers wheeled Plaintiff to the back and dressed [him] out. (Id. at 57). He stated that Plaintiff was brought back to the

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booking area in the restraint chair. (Id.) They wheeled him in [the detox cell] and they put a mat on the thing [sic] and just dumped him into it and he was out for two days. (Id. at p. 53). I. Jerry Whiteside

Jerry Whiteside, a former floor/medical officer at the Greene County Detention Center, testified on Plaintiffs behalf. On August 10, 2009, Officer Whiteside was working the 6:30 p.m to 6:30 a.m. shift with Cody Oost and Sergeant Brandon Morgan. (Doc. No. 121 at 27). He testified that during his shift he received a call from dispatch stating that Officer Ring was bringing in a combative inmate and that he needed to meet Officer Ring at the sally-port with a restraint chair. (Id. at 29). Whiteside recalled that two patrol cars arrived at the sally-port; one was driven by Officer Jerry Williams of the Paragould Police Department and the other was driven by Officer Ring. (Id. at 29-30). Whiteside stated that he noticed blood and a dent in the back panel of Officer Williams patrol car.5 (Id. at 31). Mr. Whiteside testified that he saw Plaintiff lying unresponsive on the seat of Rings patrol car. (Doc. No. 121 at 30). Officer Ring and Sgt. Morgan removed Plaintiff from the patrol car and placed him in the restraint chair. (Id.). Mr. Whiteside testified that during his head to toe assessment of Plaintiff, he noticed cuts and bruises. (Id. at 31). He also testified that Plaintiff was wearing a dark shirt and there was blood all over the shirt. (Id. at 69-70). He said that during booking, Plaintiff was just in and out of consciousness the whole time. (Id. at 32). Mr. Whiteside identified the photograph on Defendants Exhibit 1 as the booking photograph he took of Plaintiff on the night of his arrest. (Id. at 54). He stated that Sgt. Morgan held Plaintiffs head for the photograph. (Doc. No. 121 at 54). Whiteside pointed out the blood on Earls bandana

Officer Ring testified in rebuttal that the dent was made while he assisted Officer Williams with the arrest of another person named Hensley. (Doc. No. 121 at 151-152). 14

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and said that the clothing in the photograph was the same clothing Earls wore on the night of his arrest. (Id. at 70). Whiteside could not recall what time the photograph was taken but he was certain that the photograph was taken on August 11, 2009, and shows how Plaintiff looked on the night of his arrest. (Id. at 36). Mr. Whiteside explained that a copy of the arrestees booking sheet is placed with the arrestees property to properly identify the owner. (Doc. No. 121 at 45). He testified that he printed a copy of Earls booking sheet from the jails computer system and placed it with Plaintiffs property. Whiteside also explained that in August 2009, the jails Tiger Track system was new and the officers at the jail were still working the bugs out of the system. (Id. at 41, 57). One of the bugs was the lack of time ke[eping]. (Id. at 57). He testified that the system allowed the officers to bring up an inmates previous profile and certain information repopulates. (Id. at 59). Mr. Whiteside also testified that the jails computer system may have allowed someone to edit an inmates previous photographs but at the time of Plaintiffs arrest, he did not know if it could be edited. (Id. at 59-60). Mr. Whiteside no longer works at the jail as he was terminated for misconduct. J. Tahnee Earls

Tahnee Earls is Jacob Earls sister. (Doc. No. 121 at 89). She testified that she had tried to talk Plaintiff into turning himself in on his outstanding warrant. (Id. at 95). She remembered him coming around her house the night of his arrest and that he scared her. (Id. at 94-95). She was unable to provide any details of the arrest other than her brother was yelling for [her] to help him and Jacob was fighting with them. (Id. at 92, 97-98). She did not remember what he was wearing that night other than she remembered him wearing a bandana. (Id. at 90-91). She also testified that she did not believe her brother was intoxicated. (Id. at 99).

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K.

Captain Greg Trout

The defense offered Paragould Police Captain Greg Trout to question the security of Tiger Track and call into question the veracity of Defendants Exhibits 1 and 2. Captain Trout admitted he was not an expert with the software. (Doc. No. 121 at 164-168). The Court did not allow Captain Trouts testimony, finding he was not the appropriate witness to address the Tiger Track system. The Court ruled that if Defendant wished to discredit the documents, Brian Agee was the correct witness and they did not call him as a witness. (Id. at 167-173). The Court allowed Captain Trout to testify about the dispatch radio logs because he was the custodian of the Paragould Police Departments radio logs.6 (Id. at 158-159). He testified that the radio log for August 11, 2009, showed the following relevant activity: 2:38:52 2:38:55 2:42:59 2:45:57 2:45:59 2:46:03 2:51:59 2:52:31 3:13:34 Officer Ring dispatched to a residence on N. 4th Street. Officer Ring en route. Officer Ring arrived. Officer Marcoe en route. Officer Marcoe arrived. Officer Ring advised that he had suspect in custody. Officer Ring en route to Greene County Detention Center with Plaintiff. Officer Marcoe back in service. Officer Ring back in service.

(Doc. No. 121 at 159-161). Captain Trouts testimony revealed that Earls was taken to the jail around 3:00 a.m.,

Admitted on May 4, 2011, as Defendants Exhibit 5a. 16

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conflicting with the times of Exhibits 1 and 2 established in Agees Affidavit. The times submitted through Captain Trouts testimony also correspond with the written Jail Hourly Log. (Pls. Ex. 1a). IV. ANALYSIS A. Constitutional Standard

Claims of excessive force during an arrest are analyzed under the Fourth Amendments objective reasonableness standard. Brosseau v. Haugen, 543 U.S. 194, 197 (2004); Graham v. Conner, 490 U.S. 386, 395 (1989); Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009). The right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. Graham, 490 U.S. at 396. Thus, the key question is whether the officers use of force was objectively reasonable, in light of the particular facts and circumstances confronting the officer, without regard to the officers intent or motivation. Copeland v. Locke, 613 F.3d 875, 881 (8th Cir. 2010); Nance v. Sammis, 586 F.3d 604, 610 (8th Cir. 2009). The reasonableness of an officers use of force must be judged from the perspective of a reasonable officer on the scene, rather than with perfect hindsight vision because police officers are required to make split second judgments about the use of force during tense, uncertain, and rapidly evolving circumstances. Cook v. City of Bella Villa, 582 F.3d 840, 851 (8th Cir. 2009); Nance, 586 F.3d at 610; Rohrbough v. Hall, 586 F.3d 582, 586 (8th Cir. 2009). The Court may also consider the extent of the suspects injuries. Rohrbough, 586 F.3d at 586. B. Findings of Fact

Only Jacob Earls and Officer Matthew Ring know precisely what happened on August 11, 2009, and they offer starkly different versions of the events. In one, Earls is beaten and rendered unconscious. In the other, Earls receives very minor scrapes and scratches and is essentially 17

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unharmed. While the central question before the Court is whether Plaintiff has shown by a preponderance of the evidence that Officer Ring acted objectively unreasonable when using force against him, the Court must first determine which of these versions is true. After careful consideration of the evidence, the Court credits Jacob Earls version of the facts and concludes that Officer Matthew Rings version is fabricated. 1. Fabricated Evidence: Defendants Exhibit 2

Officer Ring offered Defendants Exhibit 2 as evidence to support his version of events. Officer Ring gratuitously testified that he remembered the shirt Earls was wearing in the photo on Defendants Exhibit 2 because, Soon as we come in the door Cody Oost had made a comment about Jacob's shirt being colorful or something and I kind of snickered back and said, yes, it's colorful. . . . (Doc. No. 79 at 93). Rings supervisor, Lt. Baldridge, and fellow patrolman, Officer Marcoe, also testified that the photograph from Exhibit 2 accurately portrayed Earls condition that night after his arrest. Even jailer Cody Oost testified, I just remember the shirt; I remember making fun of that shirt when he was brought in. (Id. at 148). The police officers agreed that had Earls looked as pictured in Defendants Exhibit 1, he would have required medical attention. (Id. at 115, 127). Had Earls looked as pictured in Exhibit 1, he clearly would not have been able to converse with others as the defense suggests. (Id. at 93, 116, 151). This Court concludes that Defendant Ring and his witnesses committed to advance the same story and joined together in attempting to convince this Court that their photograph in Exhibit 2 was proof positive that Officer Ring did not use excessive force. Unfortunately for Defendant Ring, the indisputable evidence reveals that this story was fabricated. Brian Agees Affidavit (Doc. No. 73) is conclusive, objective proof that the photograph from Exhibit 2 did not show the condition of Earls on August 11, 2009, because this photograph was, in 18

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fact, from an arrest months earlier in Marmaduke, Arkansas, just as Earls said. (Doc. No. 79 at 153). Rather, the true photograph of Earls from August 11, 2009, as Brian Agee reports, is the one in Defendants Exhibit 1. It is, therefore, impossible that Jacob Earls was walking on his own or conversing with the officers, or that his arrest was a non-event as Officer Ring and his police officer and jail witnesses claimed. 2. Earls Was Beaten and Rendered Unconscious - Exhibit 1

Defendants Exhibit 1, without question, shows Earls beaten, bloodied, and rendered unconscious while being booked into the Greene County Detention Center. The defense offers no explanation whatsoever for Earls condition in this photograph - a condition that everyone agreed was serious and would require medical attention. Jailer Oosts extremely evasive testimony about the photograph was wholly incredible. It is not believable that Oost was present during the taking of the photograph on Exhibit 1 and did not remember the details surrounding the event. Rather, Oosts evasive testimony made it abundantly clear that he was attempting to provide cover for Defendant Ring.7 The lack of an explanation for this unquestionably significant event further discredits the defense. 3. Defendants Arguments a. Greene County Detention Centers Fault

Defendant argues that liability rests with the Greene County Detention Center because after Officer Ring transported Earls to the jail, he was not responsible for what might have happened to him. Defendant Ring wishes this Court to find that Earls must have been beaten and bloodied while

The Court notes that while Officer Ring did not have access to remove the photograph from the Tiger Track system, jailer Oost did have such access. Additionally, Oost was the only other witness besides Ring who specifically said he remembered Earls wearing the colorful shirt from Exhibit 2 on August 11, 2009. 19

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in the Greene County Detention Center. This reasonable doubt type of argument is wholly unsupported by the evidence. Additionally, it is not believable to think that Plaintiff sued Officer Ring because of a beating he suffered at the Greene County Detention Center. b. Reliability of Defendants Exhibits 1 and 2

Defendant Ring urges this Court to conclude that Defendants Exhibits 1 and 2 are unreliable because, according to the time stamps on Exhibit 2 and in Agees Affidavit, the forms were created one hour before the actual time of Earls arrest. According to Agee, Exhibit 1 was created on August 11, 2009 at 2:12:46. (Doc. No. 73 at 2). Exhibit 2 reports the Arrest Date as 8/11/2009 2:04:21 AM. (Def.s Ex. 2). However, Defendant offered the official Radio Log Report that states Earls was arrested and brought to the jail on 8/11/2009 02:51:59." (Def.s Ex. 5a). This time is further corroborated by Plaintiffs Exhibit 1a the Greene County Jail Hourly Log that documents a restraint chair was taken to the sally port for Earls at 0300 and he was later placed in Detox at 0325. (Pl.s Ex. 1a). Because the evidence clearly shows that Earls was arrested closer to 3:00 a.m., the defense argued that Exhibit 1 was unreliable and could not be the basis for a finding of liability against Officer Ring. When the Court pointed out that Exhibit 2 the one that Defendant asked the Court to rely upon also had the same flaw, the defense contended that neither Exhibit 1 nor 2 could be relied upon. The Court finds this argument unpersuasive for two reasons. First, the Tiger System that created Exhibits 1 and 2 is likely one hour off from the actual time. A logical explanation for this would be an incorrect time set in the software or because of daylight savings time. If one hour is added to the times of Exhibits 1 and 2, the times are wholly consistent. Second, and more interesting, is the fact that Officer Rings Use of Force Report states he completed the form at 8/11/09 / 230 AM. (Def.s Ex. 7). The Court can only think of one logical explanation for Officer 20

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Rings scriveners error - that he created his Use of Force Report in preparation of his defense of this lawsuit. The Court makes this finding based on the fact that Exhibit 2 was fraudulently created and likely Officer Ring used the time from this fraudulent document, 2:03 AM, when completing the Report. Additionally, it is absurd to believe that Officer Ring immediately completed the Use of Force Report for an arrest resulting in scratches but did not complete the incident report until more than five months later, on January 30, 2010. (Def.s Ex. 5). C. Conclusions of Law

After careful consideration of the evidence, both documentary and testimonial, the Court finds that Plaintiffs evidence was overall credible. The Court further concludes that Defendants evidence is unreliable because Officer Ring perjured himself, as did Defendants witnesses, Lt. Baldridge, Officer Marcoe, and Cody Oost. The Court concludes that pursuant to 28 U.S.C. 636(e), contempt authority remains with the presiding district judge. Therefore, the Court will not address this issue beyond a finding that these law enforcement officials have lied under oath and have engaged in a cover-up in defense of this lawsuit. Additionally, although all other photographs of Earls remain on the Tiger Track system, the photograph from Exhibit 1 has inexplicably been removed from the system. The Court concludes that this photograph was intentionally removed in defense of Officer Ring and constitutes spoliation of evidence. Thus, the Court concludes that the objective evidence definitively proves that Officer Ring used an amount of force that rendered Plaintiff bruised, bloodied, and unconscious. The Court credits the testimony of Jacob Earls, William Shaw, and Jerry Whiteside and finds that their testimony corroborates the objective evidence about Earls condition when he was brought to the jail. Officer Ring contends that he was required to use force against Jacob Earls to prevent him from fleeing. In some cases, police officers may need to use force to prevent an individual from resisting 21

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or fleeing from lawful arrest. However, Officer Rings testimony is without credibility. Accordingly, the Court concludes that Officer Matthew Ring used excessive force while arresting Jacob Earls on August 11, 2009. The evidence overwhelmingly supports this conclusion. Moreover, it is only logical that an officer acting objectively reasonable would not lie about his actions. Thus, the Court finds that Officer Ring, unprovoked or using more force than was necessary, slammed Earls head into his police vehicle rendering Earls unconscious. The Court concludes that, pursuant to 42 U.S.C. 1983, Officer Ring should be held personally liable for his actions. Officer Ring is also sued in his official capacity. To prevail against Defendant Ring in his official capacity, Plaintiff must show that enforcement of the Paragould Police Departments policy or custom caused the excessive force in this case. While the actions of Officer Ring and his fellow officers of engaging in a cover-up seriously call into question the departments policy or custom, these actions were done in response to the allegation of excessive force and did not cause the violation of Earls rights. Accordingly, the Court finds that Plaintiff has failed to make a showing of liability against Defendant Ring in his official capacity. The Court finds Defendant Ring should be held personally liable for the use of excessive force against Plaintiff Earls. At the request of the parties, the issue of damages should be stayed until they may appear before a mediator. V. CONCLUSION IT IS, THEREFORE, RECOMMENDED THAT: 1. 2. Defendants Motion for Summary Judgment (Doc. No. 97) should be DENIED. Defendant Ring violated Plaintiff Earls constitutional rights by using excessive

force during his arrest and Judgment should be entered for Plaintiff and Defendant should be held 22

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personally liable to Plaintiff for damages resulting from Defendants use of excessive force. 3. At the request of the parties, the issue of damages should be stayed for a reasonable

period to allow for a settlement conference. DATED this 27th day of May, 2011.

JOE J. VOLPE UNITED STATES DISTRICT JUDGE

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