Josh Brewington v. Ben Keener
Opinion
In this excessive force suit, Josh Brewington appeals the district court's 1 grant of summary judgment to Independence County ("County") Sheriff Steve Jeffery and Deputy Ben Keener in their official *799 capacities, as well as the grant of qualified immunity to Sheriff Jeffery in his individual capacity. Brewington also asserts that following entry of default judgment against Deputy Keener in his individual capacity, the district court erroneously calculated Brewington's compensatory damages and attorneys' fees. We affirm.
I. Background
On August 26, 2014, Brewington stole items from the local Walmart. He fled the scene in a vehicle with potential accomplices. Deputy Keener was responding to the theft call and was walking toward the Walmart entrance as Brewington and company drove by in the parking lot.
Law enforcement officers soon stopped the vehicle and removed Brewington and the other individuals from the car. The officers handcuffed Brewington and his companions and placed them on the ground in seated positions near the vehicle. Soon after, Deputy Keener arrived at the arrest scene. Without provocation and without communicating his intent to the other officers, Deputy Keener angrily kicked Brewington once to the side of his face. Afterwards, the other officers called an ambulance for Brewington, which soon arrived. The next day, Deputy Keener submitted his resignation to the County Sheriff's Office, turning in his badge and his gun. The County terminated Deputy Keener as well. The incident led to criminal charges against Deputy Keener, and he eventually pleaded guilty to third-degree battery.
Brewington sued Sheriff Jeffery
2
and Deputy Keener, both in their official and individual capacities, alleging excessive force during his arrest under
Upon consideration of the defendants' motion, the district court granted summary judgment in favor of Sheriff Jeffery and Deputy Keener in their official capacities. The court dismissed those claims after finding "no evidence to demonstrate that the actions of [Deputy] Keener were motivated by a County policy or custom of violating citizen's rights to be free from excessive force."
Brewington v. Keener
, No. 1:15-cv-00088-JM,
The County, having terminated Deputy Keener's employment, declined to defend Deputy Keener against Brewington's individual capacity claims. Deputy Keener failed to answer Brewington's complaint or to appear before the district court to defend the lawsuit. The court granted Brewington's motion to enter default judgment against Deputy Keener. The court proceeded to hear evidence on damages. At a bench trial, Brewington's medical expert *800 testified about the extent of Brewington's dental damages and opined that Brewington required complete and permanent dentures. The district court awarded Brewington $38,693.67 in compensatory and $75,000 in punitive damages against Deputy Keener. Brewington's counsel requested $41,920.00 in attorneys' fees, but the district court reduced the award to $16,500, citing duplicative work.
II. Discussion
Brewington appeals, contending that the district court erroneously granted summary judgment in favor of Sheriff Jeffery and Deputy Keener in their official capacities. Brewington also asserts the district court erred in granting qualified immunity to Sheriff Jeffery. Next, he claims the district court misapplied the standard for causation in calculating compensatory damages. Last, Brewington avers that the district court abused its discretion in reducing the attorneys' fees award. We address each argument in turn.
A. Official Capacity Claims
Brewington argues that the district court erred in granting summary judgment to Sheriff Jeffery and Deputy Keener in their official capacities. Brewington asserts that despite having an official written policy against the use of excessive force, the County also had an unstated, unofficial contrary custom and practice. This alleged unstated policy condoned excessive force against arrestees who attempt to flee. Alternatively, Brewington contends that because Sheriff Jeffery was a final policymaker, his unwritten policy of excessive force has the force of command sufficient for county liability. "We review a district court's grant of summary judgment
de novo
, drawing all reasonable inferences, without resort to speculation, in favor of the nonmoving party."
Anderson v. Durham D & M, L.L.C.
,
Brewington filed suit against Sheriff Jeffery and Deputy Keener in their official capacities,
3
and as such, "it must be treated as a suit against the County."
Liebe v. Norton
,
In Monell v. New York City Dept. of Social Services ,436 U.S. 658 ,98 S.Ct. 2018 ,56 L.Ed.2d 611 (1978), [the Supreme *801 Court] decided that a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983.Id. , at 694-695,98 S.Ct. at 2037-38 . "It is only when the 'execution of the government's policy or custom ... inflicts the injury' that the municipality may be held liable under § 1983." Springfield v. Kibbe ,480 U.S. 257 , 267,107 S.Ct. 1114 , 1119,94 L.Ed.2d 293 (1987) (O'CONNOR, J., dissenting) (quoting Monell , supra , at436 U.S. at 694 ,98 S.Ct. at 2037-38 ).
City of Canton v. Harris
,
Thus, at issue here is whether the County officially or unofficially directed Deputy Keener to use excessive force against Brewington. Brewington acknowledges that the County has a written policy expressly prohibiting excessive force. He contends, however, that despite the written policy, the County Sheriff's Office had a custom or practice of excessive force against arrestees who attempt to flee. We explained previously that
a plaintiff may establish municipal liability through an unofficial custom of the municipality by demonstrating "(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 officials of that misconduct; and (3) that plaintiff was injured by acts pursuant to the governmental entity's custom, i.e., that the custom was a moving force behind the constitutional violation."
Corwin v. City of Indep., Mo.
,
Brewington attempts to show the County engaged in a pattern of widespread and persistent unconstitutional conduct by presenting affidavits from two former deputy sheriffs as well as Deputy Keener's testimony. The former deputies recounted an incident several years earlier where they alleged that Sheriff Jeffery was involved in an excessive force incident. Deputy Keener testified at his deposition that a sergeant informed him that the County Sheriff's Office itself had a policy of making an example of arrestees who attempt to flee; the sergeant allegedly told Deputy Keener to whip, kick, hit, or do something to deter the arrestees. Deputy Keener recalled one incident where-sometime between 2009 and 2014-a suspect was beaten as he walked through a *802 gauntlet of officers. In sum, as evidence of the County's alleged unconstitutional conduct, Deputy Keener and the two former deputies described two prior incidents of excessive force. Additionally, Deputy Keener-through hearsay-testified that he was informed of an informal custom by a higher-ranking officer, but not by Sheriff Jeffery.
Brewington's evidence falls short. First, inadmissible hearsay discovered during discovery may not be used to defeat summary judgment.
Shaver v. Indep. Stave Co.
,
In the alternative, Brewington argues that because Sheriff Jeffery was a final policymaker, his action constitutes the creation of an unofficial custom.
See
Davison
,
In sum, Brewington failed to prove the existence of an unconstitutional custom or policy. He also failed to show causation assuming there was such a custom or policy. Brewington therefore cannot establish municipal liability.
See
Corwin
,
B. Qualified Immunity
Brewington also argues on appeal that the district court erroneously granted *803 qualified immunity to Sheriff Jeffery. He contends Sheriff Jeffery failed to train Deputy Keener adequately. 4 This argument lacks merit, and we affirm.
"Sheriff [Jeffery] may be liable under § 1983 if he (1) had 'notice of a pattern of unconstitutional acts committed by subordinates'; (2) was deliberately indifferent to or tacitly authorized those acts; and (3) failed to take 'sufficient remedial action'; (4) proximately causing injury to [Brewington]."
Livers v. Schenck
,
Brewington says that Sheriff Jeffery's failure to train is readily apparent from the purported policy of "beat[ing] people up,"
see
Appellant's Br. at 39, and from the other officers' failure to intervene when Deputy Keener kicked Brewington. He does not allege any other incidents of misconduct by Deputy Keener. We have already discussed Brewington's failure to show an unconstitutional policy or custom.
See supra
Part II.A. Under our precedent, a single incident cannot serve as notice for a pattern of misconduct.
See
Howard v. Adkison
,
C. Causation Standard for Compensatory Damages
Brewington argues that the district court applied an incorrect causation standard to calculate Brewington's dental damages stemming from Deputy Keener's kick to his face. We disagree and find no abuse of discretion.
See
Stevens v. McHan
,
As we explained:
In order to establish a violation of constitutional rights under § 1983, the plaintiff must prove that the defendant's unconstitutional action was the "cause in fact" of the plaintiff's injury. Carey v. Piphus ,435 U.S. 247 , 263,98 S.Ct. 1042 , 1052,55 L.Ed.2d 252 (1978) ; Cowans v. Wyrick ,862 F.2d 697 , 703 (8th Cir. 1988) (McMillian, J., concurring). Conduct is the cause in fact of a particular result if the result would not have occurred but for the conduct . Similarly, if the result would have occurred without the conduct complained of, such conduct cannot be a cause in fact of that particular result. Carey ,435 U.S. at 263 , 98 S.Ct. at 1052 ; see W. Page Keeton, Prosser and Keeton on the Law of Torts , § 41, at 264 (5th Ed. 1984).
Butler v. Dowd
,
Proximate cause is that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred.
*804 Wal-Mart Stores, Inc. v. Kilgore ,85 Ark.App. 231 ,148 S.W.3d 754 (2004). This traditional tort standard requires proof that "but for" the tortfeasor's negligence, the plaintiff's injury or death would not have occurred. Dodd v. Sparks Reg'l Med. Ctr. ,90 Ark.App. 191 ,204 S.W.3d 579 (2005).
Thomas v. Meadors
,
At the bench trial, Brewington described Deputy Keener's kick as a "field-goal kick[ ]" to his face. Transcript of Bench Trial at 19, Brewington v. Keener , No. 1:15-cv-00088-JM (E.D. Ark. Jan. 23, 2017), ECF No. 45. The kick immediately knocked out two of Brewington's teeth. Brewington's dental expert testified that Brewington "had a lot of [previous] dental work done, root canals and crowns and fillings and extractions." Id. at 28. At the time the expert examined Brewington-more than a year and a half after the incident with Deputy Keener-Brewington had lost seven teeth. He also had abscesses on eleven teeth. The dentist concluded that Brewington "probably had some things that needed to be done as a result of the accident or the incident," but also "probably would have had to have something done to catch up with what he had done before." Id. at 30. He opined that Brewington needed a full set of permanent dental implants, because a "partial denture requires teeth to support it and he has no teeth to support a partial denture, no teeth in there that are strong enough or could be made strong enough to take care of it for any period of time." Id. at 31. But, the expert also concluded that Brewington "has [some] solid teeth in [his mouth] now." Id. at 36. At the end of the trial, the district court concluded that it did not
feel that [it had] sufficient evidence to award [the damages amount for the full implants] because the doctor didn't testify that but for the actions of Mr. Keener that Mr. Brewington would not have needed the dentures altogether. He had a complex dental situation or history and [the court] didn't hear anything from the doctor that said but for Keener's actions, he would have needed those.
Id. at 42.
Brewington challenges the district court's conclusion, arguing that he is an eggshell plaintiff 5 whose prior deteriorated teeth became exacerbated by Deputy Keener's kick, requiring a full set of restorative implants. Brewington's expert's opinion belies this contention. The dentist testified that Brewington still had solid teeth after the incident and that he had sustained damage to multiple teeth, but not all. The egg-shell plaintiff rule is inapplicable here; Deputy Keener's kick did not proximally cause damage to all of Brewington's teeth. Thus, the district court correctly concluded that Deputy Keener's kick was not the but-for cause for all of Brewington's dental injuries, and we find no abuse of discretion.
D. Attorneys' Fees Calculation
Brewington also contests the district court's reduction of his requested attorneys' fees. "Attorney's fees are within the broad discretion of the district court and will not be reversed absent an abuse of discretion."
Hanig v. Lee
,
To calculate attorneys' fees, courts typically begin by using the lodestar method. This method " 'multipl[ies] the number of hours reasonably expended by the reasonable hourly rates.' When determining reasonable hourly rates, district courts may rely on their own experience and knowledge of prevailing market rates."
Here, the district court reduced Brewington's requested attorneys' fees from $41,920 to $16,500, citing duplicative work. The court stated that it also "consider[ed] the results obtained by [Brewington's] counsel in determining the reasonableness of the fee award." Order at 2, Brewington v. Keener , No. 1:15-cv-00088-JM (E.D. Ark. Feb. 22, 2017), ECF No. 42. Brewington's attorneys conceded to some amount of duplicative work, see Appellant's Br. at 56-57, but argue that the reduction is disproportionate with the identifiable duplication of work.
We have reviewed in depth Brewington's supporting documentation. One attorney charged $17,000-40.6 percent of the requested total-for e-mails alone. This amount is questionable. Additionally, Brewington concedes to some duplication of work. Given the limited success in this case, we find that a significant reduction in attorneys' fees is appropriate.
See
Hensley
,
III. Conclusion
We find the ultimate amount determined by the district court to be reasonable. We affirm.
The Honorable James M. Moody Jr., United States District Judge for the Eastern District of Arkansas.
Sheriff Jeffery is no longer the sheriff of the County.
The Arkansas Civil Rights Act (ACRA) directs Arkansas courts to "look for guidance to state and federal decisions interpreting the Civil Rights Act of 1871, as amended and codified in
Brewington also alleged that Sheriff Jeffery failed to supervise Deputy Keener in his complaint, but he appears to abandon this claim on appeal.
See
Jenkins v. Winter
,
"[T]he 'egg-shell plaintiff' rule ... in essence [states that] a defendant takes a plaintiff as he finds [him]."
Freeman v. Busch
,
Reference
- Full Case Name
- Josh BREWINGTON, Plaintiff - Appellant v. Ben KEENER, Officer, Individually and in His Official Capacity as an Independence County Sheriff's Deputy; Steve Jeffery, Sheriff, Individually and in His Official Capacity as Sheriff of the Independence County Sheriff's Department, Defendants - Appellees Josh Brewington, Plaintiff - Appellant v. Ben Keener, Officer, Individually and in His Official Capacity as an Independence County Sheriff's Deputy; Steve Jeffery, Sheriff, Individually and in His Official Capacity as Sheriff of the Independence County Sheriff's Department, Defendants - Appellees
- Cited By
- 462 cases
- Status
- Published