earls v. ring order

8/13/2019 Earls v. Ring Order

http://slidepdf.com/reader/full/earls-v-ring-order 1/23

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

JONESBORO DIVISION

JACOB THOMAS EARLS

ADC #114556 PLAINTIFF

v. CASE NO. 3:09-cv-00230-JLH-JJV

MATTHEW RING, OFFICER,

PARAGOULD POLICE DEPARTMENT DEFENDANT

PROPOSED FINDINGS AND RECOMMENDATIONS

INSTRUCTIONS

The following recommended partial disposition has been sent to United States District Chief 1

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. Why the record made before the Magistrate Judge is inadequate.

2. 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 addressed1

later, as explained infra.

1

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



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,

Defendant’s 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 Defendant’s 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 Defendant’s 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

Defendant’s 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 Plaintiff’s personal property was the version filed with his2

Complaint (Doc. No. 2 at 12). It is slightly different than Defendant’s Exhibit 1 (Doc. No. 79 at

166); however, the crucial component of the document is the photograph.

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that if Earls had looked like the photo in Defendant’s 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 Defendant’s Exhibit 1. ( Id. at 168, 173-176). The defense offered

none. ( Id.). The Court believed that Defendant’s last witness, Cody Oost, was clearly uncomfortable

and evasive when asked about the circumstances surrounding the photograph in Defendant’s 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

Defendant’s 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 Defendant’s

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 Sheriff’s 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 Defendant’s Exhibit 1 had been deleted from the system, and the document labeled

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Defendant’s 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 Defendant’s 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. Agee’s 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 Defendant’s 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 Plaintiff’s

video statement from former jailer Brandon Morgan. Brandon Morgan provided a video statement

to Plaintiff’s 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 Defendant’s Motion in Limine (Doc. No. 117). For the reasons stated herein and in the

Court’s previous Order (Doc. No. 84), the Court concludes that Defendant’s Motion for Summary

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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 Defendant’s

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 Defendant’s Exhibit 2 was taken after his May 18, 2009, arrest by the Marmaduke,

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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 Plaintiff’s

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

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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 Plaintiff’s face. ( Id.). Ring

testified that Earls received “like two small scratches but they were so minor they didn’t 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 Plaintiff’s shirt being colorful. ( Id. at 93). Officer Ring said that he snickered at the comment

and replied, “Yes, it’s 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 Ring’s Use of Force Report and neither found

anything of concern. ( Id. at 129).

When shown Defendant’s Exhibit 1, Officer Ring replied that he was not present when

Plaintiff’s booking photograph was taken. (Doc. No. 79 at 99). He testified that Earls’ clothing in

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Defendant’s 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 Defendant’s

Exhibit 2 and he testified that the photograph in Defendant’s 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 Plaintiff’s 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 Ring’s radio clicking. ( Id.). She explained that the clicking noise usually

9




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 Defendant’s 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 Defendant’s 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 Defendant’s 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 Defendant’s 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 Ring’s 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 Plaintiff’s 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 don’t 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




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 Defendant’s Exhibit 1 portrayed Earl’s 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 Defendant’s 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 arrestee’s 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 Plaintiff’s booking. ( Id. at 149). While Officer Ring filled out the jail’s

Intake Form , Oost completed Earls’ Medical Intake Form , noting any marks or abrasions that might3 4

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 Defendant’s 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 Defendant’s Exhibit 6.3

Admitted on August 16, 2010, as Defendant’s Exhibit 8 and on May 4, 2011, as Plaintiff’s4

Exhibit 4a.

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He stated that the hand on Plaintiff’s head in Exhibit 1 was not his. ( Id.). Oost testified that the

photograph in Exhibit 2 was taken on the night of Plaintiff’s 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 Defendant’s 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 Defendant’s 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, “I’m believing I was

because - - I mean, I’m 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 he’s in that chair? Is that what you’re 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).

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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 justremember 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 jail’s

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 they’re

laughing and stuff because he was out.” ( Id.).

Mr. Shaw identified Defendant’s 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 Plaintiff’s head to hold it up for

the photograph. (Doc. No. 79 at 51). Mr. Shaw also testified that Defendant’s Exhibit 2 did not

depict how Plaintiff looked on the night of his arrest. (Doc. No. 79 at 52).

According to Shaw, after Plaintiff’s 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 Plaintiff’s 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. ( Id. at 31).5

Mr. Whiteside testified that he saw Plaintiff lying unresponsive on the seat of Ring’s 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 Defendant’s 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 Plaintiff’s

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 Williams5

with the arrest of another person named Hensley. (Doc. No. 121 at 151-152).

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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 arrestee’s booking sheet is placed

with the arrestee’s property to properly identify the owner. (Doc. No. 121 at 45). He testified that

he printed a copy of Earls’ booking sheet from the jail’s computer system and placed it with

Plaintiff’s property. Whiteside also explained that in August 2009, the jail’s 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 inmate’s previous profile and certain information “repopulates.” ( Id. at 59).

Mr. Whiteside also testified that the jail’s computer system may have allowed someone to edit an

inmate’s previous photographs but at the time of Plaintiff’s 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 Defendant’s 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

Trout’s 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 Department’s radio logs. ( Id. at 158-159). He testified that the6

radio log for August 11, 2009, showed the following relevant activity:

2:38:52 Officer Ring dispatched to a residence on N. 4th Street.

2:38:55 Officer Ring en route.

2:42:59 Officer Ring arrived.

2:45:57 Officer Marcoe en route.

2:45:59 Officer Marcoe arrived.

2:46:03 Officer Ring advised that he had suspect in custody.

2:51:59 Officer Ring en route to Greene County Detention Center with Plaintiff.

2:52:31 Officer Marcoe back in service.

3:13:34 Officer Ring back in service.

(Doc. No. 121 at 159-161).

Captain Trout’s testimony revealed that Earls was taken to the jail around 3:00 a.m.,

Admitted on May 4, 2011, as Defendant’s Exhibit 5a.6

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conflicting with the times of Exhibits 1 and 2 established in Agee’s Affidavit. The times submitted

through Captain Trout’s testimony also correspond with the written Jail Hourly Log. (Pl’s. Ex. 1a).

IV. ANALYSIS

A. Constitutional Standard

Claims of excessive force during an arrest are analyzed under the Fourth Amendment’s

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 officer’s use of force was objectively reasonable, in light of the particular

facts and circumstances confronting the officer, without regard to the officer’s 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 officer’s 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 suspect’s 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

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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 Ring’s version is fabricated.

1. Fabricated Evidence: Defendant’s Exhibit 2

Officer Ring offered Defendant’s 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

Defendant’s 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). Ring’s 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 Defendant’s 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 Agee’s 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

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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

Defendant’s 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

Defendant’s 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 Oost’s 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,

Oost’s evasive testimony made it abundantly clear that he was attempting to provide cover for

Defendant Ring. The lack of an explanation for this unquestionably significant event further 7

discredits the defense.

3. Defendant’s Arguments

a. Greene County Detention Center’s 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 from7

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.

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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 Defendant’s Exhibits 1 and 2

Defendant Ring urges this Court to conclude that Defendant’s Exhibits 1 and 2 are unreliable

because, according to the time stamps on Exhibit 2 and in Agee’s 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 Plaintiff’s 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 Ring’s 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

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Ring’s scrivener’s 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 Plaintiff’s evidence was overall credible. The Court further concludes that Defendant’s

evidence is unreliable because Officer Ring perjured himself, as did Defendant’s 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

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or fleeing from lawful arrest. However, Officer Ring’s 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 Department’s 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 department’s 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. Defendant’s Motion for Summary Judgment (Doc. No. 97) should be DENIED.

2. 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

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personally liable to Plaintiff for damages resulting from Defendant’s 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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earls v. ring order

Documents