James M. Hayes, Appellee, v. Faulkner County, Arkansas; Marty Montgomery, Sheriff of Faulkner County, Arkansas, in his individual and official capacities; Kyle Kelley, Jail Administrator, in his individual and official capacities, Appellants.

No. 03-3787

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

388 F.3d 669; 2004 U.S. App.

September 17, 2004, Submitted
October 29, 2004, Filed


PRIOR HISTORY: [**1] Appeal from the United States District Court for the Eastern District of Arkansas. Hayes v. Faulkner County, 285 F. Supp. 2d 1132, 2003 U.S. Dist. (E.D. Ark., 2003)

DISPOSITION: Affirmed.


COUNSEL: For JAMES M. HAYES, Plaintiff - Appellee: Gordon Smeade Rather, Jr., Claire Shows Hancock, WRIGHT & LINDSEY, Little Rock, AR.

James M. Hayes, Plaintiff - Appellee, Pro se, Conway, AR.

For FAULKNER COUNTY, ARKANSAS, MARTY MONTGOMERY, Sheriff of Faulkner County, Arkansas, in his individual and official capacities, KYLE KELLEY, Jail Administrator, in his individual and official capacities, Defendants - Appellants: Michael R. Rainwater, Jason E. Owens, DUNCAN & RAINWATER, Little Rock, AR.

JUDGES: Before MURPHY, MCMILLIAN, and BENTON, Circuit Judges.

OPINIONBY: BENTON

OPINION: [*672] BENTON, Circuit Judge.
James M. Hayes sued Faulkner County and its sheriff and jail administrator under 42 U.S.C. § 1983. The district court n1 ruled that his 38-day pre-appearance detention violated his right to due process, and entered judgment against Faulkner County and individually against jail administrator Kyle Kelley. Jurisdiction being proper under 28 U.S.C. § 1291, this Court now affirms.

n1 The Honorable William R. Wilson, Jr., United States District Judge for the Eastern District of Arkansas.

[**2]
In 1997, a police officer ticketed Hayes for not having automobile tags and vehicle insurance. Hayes failed to appear at his municipal court hearing; bench warrants issued. Stopped for a traffic violation on April 3, 1998, Hayes was arrested on the warrants, given a court date of May 11, and jailed at the Faulkner County Detention Center. He did not post the $ 593 cash-only bond. He remained in jail at the Center until appearing before the court on May 11.
While in jail, Hayes sent four grievances to Kelley, who had primary responsibility to oversee the Center. The first three were on April 16 (requesting a money order), April 18 (requesting medication), and April 19 (requesting medication). On April 26, Hayes hand-wrote a grievance stating,


I've been here for 23 days and have not been to court. According Prompt First Appearance Rule 8.1 I should seen a judge within 72 hrs. I have yet to be told when I will go to court. I also know that the arresting told booking to hold me back. I want to know when you plan to obay the law and allow me to go to court?


Kelley's written response: "I don't set people up for court. I hope you go to court & are able to get out. Write [**3] the booking officer to find out about your court date."
Kelley testified he would have followed the same course of conduct if Hayes had been jailed for 99 days. He said he wanted to obey the court and was not trying to be disobedient as a jailer or law enforcement officer. During the detention, the court met on April 13 and April 29. Though an April 29 appearance date was entered on Hayes's booking card, he did [*673] not have the opportunity to appear before a judge until May 11.
The issue is a pretrial detainee's right to a prompt appearance in court, after arrest by warrant. The Due Process Clause of the Fourteenth Amendment controls. Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 905 (8th Cir. 1999), cert. denied, 528 U.S. 1157, 145 L. Ed. 2d 1076, 120 S. Ct. 1165 (2000). This Court reviews de novo questions of law arising under the Constitution. Estate of Davis v. Delo, 115 F.3d 1388, 1394 (8th Cir. 1997).
The Seventh Circuit decided similar cases in Coleman v. Frantz, 754 F.2d 719 (7th Cir. 1985) and Armstrong v. Squadrito, 152 F.3d 564 (7th Cir. 1998). In Coleman, an 18-day detention after arrest by [**4] warrant, but before initial appearance, violated Coleman's substantive due process rights. 754 F.2d at 723-24; cf. Davis v. Hall, 375 F.3d 703, 713-14 (8th Cir. 2004). Citing the Fifth, Sixth, and Eighth amendments, the Seventh Circuit stated, "Almost every element of a 'first appearance' under state statutes or the Federal Rules of Criminal Procedure serves to enforce or give meaning to important individual rights that are either expressly granted in the Constitution or are set forth in Supreme Court precedent." Coleman, 754 F.2d at 724. An extended pretrial detention without an initial appearance "substantially impinges upon and threatens" all of those specific rights. Id. Thus, the "ultimate effect" of Coleman's 18-day detention was a denial of substantive due process. Id.
The Seventh Circuit followed Coleman in the Armstrong case, where a 57-day detention on a (civil) body-attachment warrant without an initial appearance violated substantive due process. The court looked to the totality of circumstances. Armstrong, 152 F.3d at 570, citing County of Sacramento v. Lewis, 523 U.S. 833, 850, 140 L. Ed. 2d 1043, 118 S. Ct. 1708 (1998). [**5] It considered three questions: (1) whether the Due Process Clause prohibits an extended detention, without an initial appearance, following arrest by a valid warrant; (2) whether the defendants' conduct offended the standards of substantive due process; and (3) whether the totality of circumstances shocks the conscience. Armstrong, 152 F.3d at 570. By that analysis, the 38-day detention here violates substantive due process.
First, the Due Process Clause forbids an extended detention, without a first appearance, following arrest by warrant. The Seventh Circuit so held in Coleman and Armstrong, following two Fourth Amendment cases, Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975) and Baker v. McCollan, 443 U.S. 137, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979). In Gerstein, invalidating an extended warrantless detention, the Supreme Court wrote, "The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect's job, interrupt his source of income, and impair his family relationships." 420 U.S. at 114. In Baker, the Supreme [**6] Court reiterated its concern with "extended restraint of liberty following arrest" in the context of a mistaken arrest under a valid warrant after a judge found probable cause. See Coleman, 754 F.2d at 723, quoting Gerstein, 420 U.S. at 114. The Baker Court wrote, "Obviously, one in respondent's position could not be detained indefinitely in the face of repeated protests of innocence even though the warrant under which he was arrested and detained met the standards of the Fourth Amendment." Baker, 443 U.S. at 144.
[*674] Second, this Court considers whether the defendants' conduct offends the standards of substantive due process. Deliberate indifference to prisoner welfare may sufficiently shock the conscience to amount to a substantive due process violation. County of Sacramento, 523 U.S. at 853. "Liability for deliberate indifference to inmate welfare rests upon the luxury enjoyed by prison officials of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations." Id. at 853. This Court considers [**7] the County's official policy separately from Kelley's individual conduct.
As for the County, this Court examines the policy the district court found deliberately indifferent. "A plaintiff may establish municipal liability under § 1983 by proving that his or her constitutional rights were violated by an 'action pursuant to official municipal policy'. . . ." Ware v. Jackson County, 150 F.3d 873, 880 (8th Cir. 1999), quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). A "policy" is a "deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986). According to Kelley and the sheriff, the County adopted a policy requiring that arrestees be taken before a court within 72 hours after arrest. Also as policy, when a person is arrested, the sheriff's office notifies the court by sending a jail roster to every court in the County. The sheriff's office then relies on the [**8] court to schedule hearings, call the Center, and identify which detainees the court will pick up for hearings. Hayes was subject to the same policy as other detainees at the Center.
The County's policy was to submit the names of confinees to the court and then wait for the court to schedule a hearing. That policy attempts to delegate the responsibility of taking arrestees promptly before a court. In Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 1992), a policy was deliberately indifferent where the jail had no internal procedures to track whether inmates had been arraigned. Id. at 1478. "A policy that ignores whether the jail has the authority for long-term confinement seems to be a policy of deliberate indifference." Armstrong, 152 F.3d at 578-79. Because the County's policy here attempts to delegate the responsibility of bringing detainees to court for a first appearance and ignores the jail's authority for long-term confinement, the policy is deliberately indifferent to detainees' due process rights.
Next, the Court considers whether Kelley's individual acts violate the standards of due process. Kelley helped promulgate [**9] and enforce the deliberately indifferent policy. Receiving Hayes's specific appearance grievance, Kelley made a conscious decision to do nothing. Kelley testified that he would have followed the same course of conduct even if Hayes were held for 99 days. While Hayes sat in the Center for 38 days, Kelley consciously disregarded the violation of his constitutional rights. See Armstrong, 152 F.3d at 577. That conscious disregard is deliberate indifference violating the standards of due process.
The third and final step in this substantive due process analysis is determining whether, in the totality of circumstances, the defendants' conduct in depriving Hayes of a constitutional right shocks the conscience. Id. at 581. See County of Sacramento, 523 U.S. at 846-47 [*675] . This is a question of law. Armstrong, 152 F.3d at 581.
In the totality of circumstances in this case, the key is Arkansas Rule of Criminal Procedure 8.1, entitled "Prompt first appearance." The Rule requires: "An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without [**10] unnecessary delay." Ark. R. Crim. P. 8.1. Rule 8.1 is mandatory. Bolden v. State, 262 Ark. 718, 561 S.W.2d 281, 284 (Ark. 1978). Detentions of less than 38 days violate Rule 8.1. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653, 656 (Ark. 1987) (3 days); Cook v. State, 274 Ark. 244, 623 S.W.2d 820, 821 (Ark. 1981) (31 days); cf. Richardson v. State, 283 Ark. 82, 671 S.W.2d 164 (Ark. 1984) (56 days). Rule 8.1 is designed to protect "basic and fundamental rights which our state and federal constitutions secure to every arrestee." Bolden, 561 S.W.2d at 284 (emphasis added). The County's and Kelley's failure to take Hayes before a judge for 38 days shocks the conscience. See Coleman, 754 F.2d at 724.
To hold Kelley liable as an individual under 42 U.S.C. § 1983, Hayes must prove: (1) the official's conduct deprived him of constitutional rights, and (2) the official's actions were taken under color of law. See Jennings v. Davis, 476 F.2d 1271, 1275 (8th Cir. 1973). As discussed, Kelley's conduct [**11] deprived Hayes of substantive due process. And as jail administrator, Kelley was acting under color of law. Thus, unless shielded by qualified immunity, Kelley is individually liable under § 1983.
"Qualified immunity shields government officials from suit unless their conduct violated a clearly established constitutional or statutory right of which a reasonable person would have known." Yowell v. Combs, 89 F.3d 542, 544 (8th Cir. 1996), citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). To be clearly established, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989), quoting Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). In other words, a constitutional right is clearly established when "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001).
Rule 8.1 of the Arkansas Rules [**12] of Criminal Procedure requires a jailer to ensure that a pretrial detainee appears before a judge "without unnecessary delay." A reasonable officer knows that detentions of less than 38 days violate Rule 8.1. See, e.g., Cook, 623 S.W.2d at 821. A reasonable officer knows that Rule 8.1 protects "basic and fundamental rights which our state and federal constitutions secure to every arrestee." See Bolden, 561 S.W.2d at 284 (emphasis added). A law enforcement officer cannot reasonably believe that holding a person in jail for 38 days without bringing him before a judicial officer for an initial appearance is constitutional. Kelley is not entitled to qualified immunity.
Kelley argues this lawsuit is time-barred because Hayes did not amend the complaint to include him until the statute of limitations expired. But, the amended complaint relates back to the date of the original complaint under Schiavone v. Fortune, 477 U.S. 21, 91 L. Ed. 2d 18, 106 S. Ct. 2379 (1986) and Federal Rule of Civil Procedure 15. The allegations against Kelley arose from the same conduct described in the original complaint. [**13] Kelley is not prejudiced in maintaining his [*676] defense because after the complaint was filed, Kelley gave Hayes's file to the County lawyer. He had notice of Hayes's lawsuit within the limitations period. He should have known that, but for a legal mistake, he would have been named in the original complaint. See Schiavone, 477 U.S. 21, 29, 91 L. Ed. 2d 18, 106 S. Ct. 2379; Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 557, 560 (7th Cir. 1996). The suit is not time-barred.
Under § 1983, a prevailing party may receive compensatory damages. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307, 91 L. Ed. 2d 249, 106 S. Ct. 2537 (1986). Here, the district court awarded $ 49,000 against Faulkner County and $ 1,000 against Kelley. This award is not clearly erroneous. See Harmon v. City of Kansas City, 197 F.3d 321, 329 (8th Cir. 1999), cert. denied, 529 U.S. 1038, 146 L. Ed. 2d 348, 120 S. Ct. 1534 (2000).
The district court may allow attorney's fees to the prevailing party in a § 1983 action. 42 U.S.C. § 1988. Attorney's fees are within the broad discretion of the district court and will not [**14] be reversed absent an abuse of discretion. Harmon, 197 F.3d at 328-29. The fee award here of $ 46,929.50 is not an abuse of discretion.
The judgment of the district court is affirmed. n2

n2 Hayes's motion to supplement the record is denied as moot.

JAMES HAYES, PLAINTIFF VS. FAULKNER COUNTY, ARKANSAS; MARTY MONTGOMERY, SHERIFF OF FAULKNER COUNTY, in his individual and official capacities; and KYLE KELLY, MAJOR, in his individual and official capacities, DEFENDANTS

NO. 4:01-CV-00198-WRW

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS, WESTERN DIVISION

285 F. Supp. 2d 1132; 2003 U.S. Dist.

September 22, 2003, Decided
September 22, 2003, Filed; September 23, 2003, Entered


SUBSEQUENT HISTORY: Affirmed by Hayes v. Faulkner County, 2004 U.S. App. (8th Cir. Ark., Oct. 29, 2004)

DISPOSITION: [**1] Order was entered awarding compensatory damages and attorney's fees and costs.


COUNSEL: For JAMES M HAYES, plaintiff: Gordon S. Rather, Jr., Wright, Lindsey & Jennings, Little Rock, AR.

JAMES M HAYES, plaintiff, Pro se, Conway, AR.

For FAULKNER COUNTY, ARKANSAS, MARTY MONTGOMERY, KYLE KELLEY, defendants: Michael R. Rainwater, Duncan & Rainwater, Little Rock, AR.

For FAULKNER COUNTY, ARKANSAS, defendant: James Stephen Holt, Duncan & Rainwater, Little Rock, AR.

For MARTY MONTGOMERY, KYLE KELLEY, defendants: Scott Paris Richardson, Duncan & Rainwater, Little Rock, AR.

JUDGES: William R. Wilson, Jr., UNITED STATES DISTRICT JUDGE.

OPINIONBY: William R. Wilson, Jr.

OPINION:
[*1135] MEMORANDUM OPINION AND ORDER
I. STATEMENT OF FACTS
On October 15, 1997, a Vilonia police officer issued two citations to Plaintiff James Hayes ("Plaintiff" or "Hayes") for not having tags and vehicle insurance. Mr. Hayes was instructed to appear in the Vilonia Municipal Court on November 10, 1997. He did not appear as ordered, and two arrest warrants were issued. Each warrant had a cash-only bond amount set by the court.
On April 3, 1998, an Arkansas [**2] State Trooper stopped Mr. Hayes for an unrelated traffic violation. When the officer discovered that there were two outstanding warrants, he arrested Mr. Hayes, placed him on the court's docket for May 11, 1998, and jailed him at the Faulkner County Detention Center ("FCDC"). Mr. Hayes was not able to post bond and remained in jail at the FCDC until May 11, 1998, when he appeared in court for the first time since his arrest, pled not guilty, and was released with orders to appear before the judge on May 27, 1998. On May 27, Mr. Hayes appeared as ordered, and the charges against him were dismissed.
On April 3, 2001, Mr. Hayes filed a pro se Complaint against Faulkner County, Arkansas (the "County"), alleging that he should have been "taken before a judicial officer without unnecessary delay" under Rule 8.1 of the Arkansas Rules of Criminal Procedure [*1136] and, because he was not taken before a judge, his due process rights under the United States Constitution were violated. n1

n1 See Kentucky Dept. of Corrs. v. Thompson, 490 U.S. 454, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989).

[**3]
The County filed a Motion for Summary Judgment on September 27, 2001, alleging: (1) Mr. Hayes was arrested according to a valid warrant and held as ordered by the Vilonia Municipal Court until his scheduled appearance; therefore, the 38-day detention complied with the Court's schedule; (2) County officials are entitled to the defense of qualified immunity; and (3) Mr. Hayes should not have sued the County because the doctrine of respondeat superior does not apply.
On August 23, 2003, I denied the County's Motion, holding that Mr. Hayes' 38-day detention before his first appearance hearing, notwithstanding the fact that Mr. Hayes was arrested under a valid warrant, violated Mr. Hayes' due process rights. n2 I concluded that summary judgment was not appropriate because questions of fact existed regarding whether the 38-day delay was due to a County policy or custom, or whether it was unique to Plaintiff." n3

n2 Doc. No. 36.
n3 Id.

Mr. Hayes later amended his Complaint to add Sheriff Martin "Marty" [**4] Paul Montgomery ("Sheriff Montgomery") and Major Kyle Kelley, the Jail Administrator for Faulkner County ("Major Kelley"). The County objected to the Amended Complaint, asserting that the statute of limitations barred the addition of new parties. n4 I overruled the County's objection, holding that the amendment was proper under the "relation back" doctrine. On March 3, 2003, a bench trial commenced in this case. I find in favor of Plaintiff for the reasons set forth below.

n4 Doc. No. 47.

II. DISCUSSION
Mr. Hayes brings his claims against Defendant under 42 U.S.C. § 1983, which provides, in relevant part that:


Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . [**5] ..." n5


The Eighth Circuit has determined that a pretrial detainee's claims are "properly analyzed under the Due Process Clause of the Fourteenth Amendment," n6 and that pretrial detainees are entitled to protection "at least as great" as that afforded to convicted prisoners under the Eighth Amendment. n7 Although the Eighth Circuit has not yet determined the appropriate standard to apply in cases concerning a pretrial detainee's due process rights, the United States Supreme Court has suggested that, if a convicted prisoner may prevail by proving that prison official were "deliberately indifferent" to his constitutional rights .under the Eighth Amendment, the same standard satisfies the fault requirement of due process claims filed by pretrial detainees. n8

n5 42 U.S.C. § 1983.
n6 Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 905 (8th Cir. 1999).
n7 Id. at 906.
n8 See County of Sacramento v. Lewis, 523 U.S. 833, 850, 140 L. Ed. 2d 1043, 118 S. Ct. 1708 (1998).

[**6]
[*1137] A. FAULKNER COUNTY'S LIABILITY
Mr. Hayes first asserts that Faulkner County is liable for his 38-day detention in the FCDC. The Supreme Court has determined that government entities, such as the County, are "persons" subject to liability under 42 U.S.C. § 1983. n9 A government entity may only be held liable for injuries caused by the government itself. n10 In order to prevail against the County, Mr. Hayes must prove: (1) that he had a constitutional right; (2) that the governmental entity had a policy; (3) that the policy amounted to deliberate indifference to his constitutional rights; and (4) that the policy was the moving force behind the constitutional violation. n11

n9 See Monell v. N.Y. City Dept. of Soc. Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).
n10 See Okla. City v. Tuttle, 471 U.S. 808, 818, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985).
n11 Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (citing City of Canton v. Harris, 489 U.S. 378, 389-91, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989); see also Monell, 436 U.S. at 690; see also Pembaur v. City of Cincinnati, 475 U.S. 469, 471, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986).

[**7]
1. Mr. Hayes' Constitutional Right
In this case, Mr. Hayes had a constitutional right to be taken before a judge within a reasonable time after his arrest, to ensure that "basic and fundamental rights" were protected under the state and federal constitutions. n12 In Gerstein v. Pugh, n13 the Supreme Court addressed the rights of an individual arrested without a warrant and held that "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest." n14 Under Rule 8.1 of the Arkansas Rules of Criminal Procedure, this same right extends to an individual arrested under a validly executed warrant. n15

N12 Bolden v. State, 262 Ark. 718, 724, 561 S.W.2d 281, 284 (1978).
n13 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975).
n14 Id. at 114.
n15 See Armstrong v. Squadrito, 152 F.3d 564 (7th Cir. 1998).

Rule 8.1 provides that "an arrested person who is not released by citation or by [**8] other lawful manner shall be taken before a judicial officer without unnecessary delay." n16 The Arkansas Supreme Court has addressed Rule 8.1 on numerous occasions, and has recognized that:


Rule 8.1 is designed and has as its purpose to afford an arrestee protection against unfounded invasion of liberty and privacy. Moreover, the person under arrest taken before a judicial officer without unnecessary delay will have the charges explained, will be advised of his constitutional rights, and will have counsel appointed for him if an indigent, and arrangements for bail can be made expeditiously. Such action may avoid the loss of the suspect's job and eliminate the prospect of the loss of income and the disruption and impairment of his family relationship. Indeed, these are basic and fundamental rights which our state and federal constitutions secure to every arrestee. n17


n16 ARK. R. CRIM. P. 8.
n17 Bolden, 262 Ark. at 724, 561 S.W.2d at 284 (emphasis added).

Under Rule 8.1, [**9] a person may be detained "only for as long as it takes to process 'the administrative steps incident to arrest.'" n18 An extended detention without this first appearance "substantially [*1138] impinges upon and threatens" the rights protected by the hearing. n19 Therefore, "federal due process simply does not permit the state to detain an arrestee indefinitely without procedural protections." n20

n18 Wayland v. City of Springdale, Ark., 933 F.2d 668, 670 (8th Cir. 1991).
n19 Armstrong, 152 F.3d at 573.
n20 Id.

The Arkansas Supreme Court has held that "compliance with [Rule 8.1] is mandatory," n21 not discretionary. n22 The sheriff and prosecuting attorney are responsible if the rule is not followed. n23 The police may not absolve themselves of liability by merely notifying the prosecuting attorney's office of an accused's arrest. n24 For violations of this rule, "there are remedies for victims ... through civil litigation." n25

N21 Bolden, 262 Ark. at 724, 561 S.W.2d at 284.
[**10]


n22 Cook v. State, 274 Ark. 244, 246, 623 S.W.2d 820, 821 (1981).
n23 Richardson v. State, 283 Ark. 82, 85, 671 S.W.2d 164, 166 (1984).
n24 Wayland, 933 F.2d at 670.
n25 Richardson, 283 Ark. at 86, 671 S.W.2d at 167.

Defendants correctly assert that there is no specific guidance in Rule 8.1, or in the Commentary, as to what constitutes an "unnecessary delay." However, in Cook v. State, n26 the Arkansas Supreme Court held that a delay of 31 days before bringing an accused to a judicial officer violated Rule 8.1. In Richardson v. State, n27 the court held that a delay of 35 days violated the rule. n28 Therefore, even though Rule 8.1 does not specify what is meant by the phrase "unnecessary delay," the law as it existed before Mr. Hayes' arrest clearly established that Mr. Hayes had a constitutional right to be taken before a court by the police long before 38 days had passed, n29 and he wasn't. The County's failure to take Mr. Hayes before the court not only deprived him of a constitutionally-protected [**11] liberty interest, but also compromised his right to be advised of the charges against him, his right to have counsel appointed to represent him, if appropriate, and his right to have a judge determine whether he should be released on bail. n30

n26 274 Ark. 244, 623 S.W.2d 820 (1981).
n27 283 Ark. 82, 671 S.W.2d 164 (1984).
n28 Id. at 91, 671 S.W.2d at 167; see also Coleman v. Frantz, 754 F.2d 719, 723 (7th Cir. 1985) (holding that plaintiff's eighteen-day detention violated plaintiff's due process rights).
n29 Because it is clear that this delay was unnecessary, I do not need to decide exactly what constitutes an "unnecessary delay" under Rule 8.1. See Duncan v. State, 291 Ark. 521, 527, 726 S.W.2d 653, 656 (1987); see also Coleman, 754 F.2d at 725 (suggesting that, to "specify after what period of time a given detention not accompanied by a first appearance becomes constitutionally infirm ... would amount to inappropriate judicial legislation.").
n30 Bolden, 262 Ark. at 724, 561 S.W.2d at 284.

[**12]
2. Faulkner County's Policy
The evidence established that Faulkner County adopted a policy which violated Plaintiff's constitutional right to be taken before a judge without unnecessary delay. n31 A "policy" is a "deliberate choice to follow a course of action ... made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." n32 According to the Supreme Court, a single decision [*1139] by a policymaker may give rise to governmental liability. n33

n31 Tuttle, 471 U.S. at 818.
n32 Pembaur, 475 U.S. at 483-84.
n33 Id. at 480; see also Cornfield v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1324-25 (7th Cir. 1993).

It is undisputed that Sheriff Montgomery is one of the County's official policymakers. He had "custody, rule, and charge of the jail within his county and all prisoners," and was authorized to "appoint a jailer for whose conduct [**13] [he was] responsible." n34 Sheriff Montgomery appointed Major Kelley to supervise the FCDC, and the two officers developed the County's official policies and procedures.

n34 ARK. CODE ANN. § 12-41-502.

According to Sheriff Montgomery and Major Kelley, the County adopted a policy which required that each arrestee be taken before a court no more than 72 hours following a person's arrest. However, also as a matter of policy, when a person is arrested, the sheriff's office notifies the court by sending an entire jail roster to every court in the County. The sheriff's office then relies on the court to schedule hearings, to call the FCDC, and to identify which detainees the court will pick up for hearings. n35 Mr. Hayes was subject to the same policy, procedure, custom, or practice as every other inmate at the FCDC. Accordingly, Plaintiff has established that Sheriff Montgomery and Major Kelley, as officials with final policymaking authority, adopted a policy for which the County is [**14] responsible.

n35 These policies were presented to the Faulkner County Quorum Court by the Sheriff and Major Kelley, and were not rejected. The evidence is unclear whether the deference given to the court was an actual policy presented to the quorum court; however, a plaintiff may also prevail if he can prove that the violation was caused by a continuing, widespread, persistent pattern, or "custom," of unconstitutional misconduct by the county's employees, even if the practice was not formally approved by the County. See Pembaur, 475 U.S. at 484 n.10; see also Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999).

3. Faulkner County's Policy was Deliberately Indifferent to Mr. Hayes' Constitutional Rights
Next, I hold that the County's adopted policy, or custom or practice, was "deliberately indifferent" to Plaiantiff's constitutional rights, for which the County may be held liable. n36 "Deliberate indifference" is defined as the "conscious disregard of known or obvious [**15] dangers," n37 and a policy may be said to be "deliberately indifferent" when the "need for more or different action 'is so obvious, and the inadequacy [of the current procedure is] likely to result in the violation of constitutional rights.'" n38

n36 City of Canton, 489 U.S. at 389 (holding that the existence of a policy, alone, is insufficient to trigger local governmental liability under 42 U.S.C. § 1983).
n37 Armstrong, 152 F.3d at 577.
n38 City of Canton, 489 U.S. at 390.

The facts in this case are similar to those in Oviatt v. Pearce. n39 In Oviatt, the plaintiff was arrested and cited for unlawful use of a motor vehicle. When the plaintiff failed to appear for a pretrial conference, a bench warrant was issued. After his arrest, the plaintiff was held for an extended period of time. The Oviatt court held that, even though the plaintiff was confined according to a bench warrant, he was nevertheless "entitled [**16] to a speedy court appearance to determine whether he should be released pending trial," n40 which the county's policy consciously disregarded. In so holding, the court was critical of the authorities because the jail had "no [*1140] internal procedures for keeping track of whether inmates had received an arraignment," n41 and concluded that the policy of relying on "inmates, attorneys, family members, court personnel, and members of the jail staff" to notify the jail of missed arraignments or court appearances was insufficient. n42

n39 954 F.2d 1470 (9th Cir. 1992).
n40 Id. at 1475.
n41 Id. at 1473.
n42 Id.

Similarly, in Armstrong v. Squadrito, n43 the plaintiff asserted that the "will call" policy at the jail, under which the jail placed a detainee's name on a list and then delegated its responsibility to take each detainee before the court to the court's personnel, was constitutionally inadequate. The Seventh Circuit rejected this procedure, recognizing [**17] that "a policy that ignores whether the jail has the authority for long-term confinement seems to be a policy of deliberate indifference." n44 The court reasoned that:


Jailers hold not only the keys to the jail cell, but also the knowledge of who sits in the jail and for how long they have sat there. They are the ones directly depriving detainees of liberty ... The sheriff's department ... [is] charged with taking those arrested ... to court. The jail knew this ... [but] promulgated a policy under which it abdicated responsibility. The jail acts at its own peril if it passes responsibility off on another party-whether [to] the courts or the prosecutor. n45


n43 152 F.3d 564 (7th Cir. 1998).
n44 Id. at 578-79.
n45 Id. (suggesting that the government may escape liability if it accepts complaints from detainees, if the government actually investigates the complaints filed by inmates). Here, although the County had a policy of accepting complaint forms, Major Kelley did not investigate Mr. Hayes' claims or take any action to help Mr. Hayes, because the sheriff's office deferred to the court.

[**18]
Under these cases, the County cannot adopt a policy in which the sheriff's office simply submits the names of those confined in jail to the court and then waits for the court to schedule a hearing. Major Kelley's testimony seems to suggest that, because Mr. Hayes had access to telephones, pencil and paper, and could have contacted a bail bondman or a lawyer at any time to help secure his release, the County should not be held liable. However, I agree with the Oviatt and Armstrong courts, which held that the police cannot delegate its responsibility to take an arrested person before a court for a prompt first appearance.
4. Faulkner County's Policy caused Plaintiff's Injury
Finally, there is no question that the County's policy caused Plaintiff's injuries, or was the "moving force behind [the deprivation of his] liberty." n46 Even in the absence of a written policy, a county may be liable if the county failed to develop procedures, rules, or regulations, or if the County's failure to develop a policy was "closely related to the ultimate injury." n47 As discussed above, the County deferred to the court to schedule arrestees' initial appearance hearings, as a matter [**19] of policy. This policy caused the County to detain Mr. Hayes for more than one month before he was finally taken before a court. Accordingly, because Mr. Hayes has proven that the County had a policy or custom which was deliberately indifferent to his constitutional rights and caused Mr. Hayes' injuries, Faulkner County is liable.

n46 Tilson v. Forrest City Police Dep't, 28 F.3d 802, 808 (8th Cir. 1994).
n47 City of Canton, 489 U.S. at 391; see also Tilson, 28 F.3d at 807 and Cornfield, 991 F.2d at 1326.

[*1141] B. INDIVIDUAL LIABILITY OF OFFICERS
Plaintiff also asserted that Sheriff Montgomery and Major Kelley must be held liable for his injuries in their individual capacities. Defendants contend that their actions did not violate Plaintiff's constitutional rights because they complied with Rule 8.1. Specifically, Defendants assert that Mr. Hayes was arrested under a warrant for which a judicial officer had already determined that probable [**20] cause existed, a judicial officer had already determined that Mr. Hayes could be released if he paid a cash-only bond, and a court appearance was scheduled at the time of his arrest. Thus, Defendants insist, the 38-day confinement did not violate Rule 8.1 or Mr. Hayes' rights under the Fourteenth Amendment.
I do not agree, and I now hold that Major Kelley is liable in his individual capacity for violating Plaintiff's constitutional rights; however, Sheriff Montgomery is not. The evidence showed that Sheriff Montgomery did not know that Mr. Hayes was in jail. Nor did he know, until much later, that Mr. Hayes was held for 38 days. Finally, Sheriff Montgomery did not know that Mr. Hayes has submitted grievance forms to Major Kelley, in which Mr. Hayes complained about the length of his confinement. Under these circumstances, Sheriff Montgomery did not possess the level of personal knowledge and awareness typically required in order to hold a county official liable in his individual capacity.
In order to state a claim against an individual official under 42 U.S.C. § 1983, Plaintiff must prove: (1) that the official's conduct subjected him to a deprivation of rights, [**21] privileges, or immunities secured by the Constitution and laws of the United States; and (2) that the official's actions were taken "under color of law." n48 Under section 1983, "[a] person 'subjects' another to the deprivation of a constitutional right ... if he does an affirmative act, or omits to perform an act which he is legally required to do that caused the deprivation of which [the] complaint is made." n49 In other words, an official may be personally liable for a constitutional violation of another's rights if an official "acts or fails to act with deliberate or reckless disregard of plaintiff's constitutional rights." n50 For the same reasons discussed in the preceding section, there is no question that Mr. Hayes' constitutional rights were violated, nor is there any question that Major Kelley acted under color of law at all relevant times.

n48 See Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970) and Jennings v. Davis, 476 F.2d 1271, 1276 (8th Cir. 1973).
n49 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
[**22]


n50 Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982).

Despite the fact that Mr. Hayes has established that Major Kelley violated his constitutional rights, n51 Major Kelley contends that he is protected by qualified immunity. Qualified immunity shields a government official for conduct that does "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." n52 Thus, an official is not immune from liability under section 1983 if: (1) "he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of [Plaintiff];" or (2) if the official acted "with the malicious intention to cause a deprivation of constitutional rights or other injury." n53 [*1142] The defendant's actions "must be considered in light of not only the sincerity in his belief that what he was doing was right, but the reasonableness of his actions in the circumstances." n54 However, the Eighth Circuit has held that "where it is patently obvious that [the defendant's] conduct will [**23] oppressively harm another person, and he acts with reckless disregard of a person's constitutional rights, a submissible case is made." n55

n51 See Ebmeier v. Stump, 70 F.3d 1012 (8th Cir. 1995).
n52 Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982).
n53 457 U.S. at 815.
n54 Guzman v. W. St. Bank of Devils Lake, 540 F.2d 948, 952 (8th Cir. 1976).
n55 Id.

Major Kelley asserts that he is entitled to qualified immunity because his actions complied with the requirements of Rule 8.1. The facts and law do not support this assertion. Rule 8.1. of the Arkansas Rules of Criminal Procedure and case law, as it existed at the time of Mr. Hayes' arrest, required the sheriff's office to ensure that a pretrial detainee is taken before a court without unnecessary delay. The sheriff's office cannot delegate this responsibility to others. Accordingly, there is no question that Plaintiff's detention was prohibited [**24] under clearly established law in existence at the time of Mr. Hayes' arrest and detention.
I also believe that Major Kelley's actions, or failure to act, constituted a "reckless disregard" for Plaintiff's constitutional rights. When Major Kelley received Mr. Hayes' grievance forms, he made a conscious decision to do nothing. Although Major Kelley testified that he was bound by the date set by the court, he did not know the circumstances surrounding Mr. Hayes' arrest. He did not know that the warrant for Mr. Hayes' arrest specified that he was to be held under a "cash-only" bond or that the May 11, 1998, court date had been set, until after Mr. Hayes filed his Complaint in this action. He was unaware of whether Mr. Hayes' name had been submitted to the court for a first hearing. Finally, Major Kelley did not call the booking officer, the prosecuting attorney, or the court; nor did he examine Mr. Hayes' file, to which he had access, to determine the validity or seriousness of Mr. Hayes' grievance.
I am also troubled by the fact that Major Kelley testified that he would have followed this same course of conduct, even if Mr. Hayes had been held for 99 days, out of deference to the [**25] Vilonia Municipal Court. Be that as it may, in this case, Major Kelley did nothing to ensure that Mr. Hayes rights were protected and Mr. Hayes was unconstitutionally held in the FCDC for 38 days, even though there were two earlier dates, April 13 and April 29, 1998, when he could have gone to court. Under these facts, qualified immunity is not applicable. Not only had the Arkansas Supreme Court "clearly established" that the sheriff's office had a duty to take each arrestee before a court for a prompt first appearance, it had also held that even shorter detentions violated a detainee's constitutional rights. Therefore, Major Kelley is liable, in his individual capacity, for the deprivation of Mr. Hayes' constitutional rights and resulting injuries.
C. RELATION BACK DOCTRINE
Defendants maintain that the County and Major Kelley cannot be held liable in this case because Plaintiff did not amend his Complaint to include Sheriff Montgomery and Major Kelley, in their official and individual capacities, until long after the statute of limitations expired. However, in Schiavone v. Fortune, n56 the United States Supreme Court held that an [*1143] amendment "relates back" to the [**26] date the original Complaint was filed, if four requirements are met:


(1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. n57


Reading Mr. Hayes' original pro se Complaint liberally, as I am required to do, n58 I overruled Defendants' objections before the trial began. I continue to hold that the Amended Complaint was proper, under Rule 15 of the Federal Rules of Civil Procedure.

n56 477 U.S. 21, 91 L. Ed. 2d 18, 106 S. Ct. 2379 (1986).
n57 Id. at 29; see also Ayala Serrano v. Lebron Gonzalez, 909 F.2d 8, 12 (1st Cir. 1990).
n58 See Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); see also Ayala Serrano, 909 F.2d at 12.

[**27]
First, in his original Complaint, Mr. Hayes alleged that the Faulkner County Sheriff's Office detained him for 38 days before he was taken to court. These same allegations are repeated in Mr. Hayes' Amended Complaint, and there is no question that the allegations against Sheriff Montgomery and Major Kelley arose out of the same events outlined in Mr. Hayes' original Complaint. n59

n59 Schiavone, 477 U.S. at 29.

Second, Sheriff Montgomery and Major Kelley received notice that Mr Hayes had filed a lawsuit. When Mr. Hayes filed his first Complaint on April 3, 2001, the Complaint was directed to Sheriff Montgomery's attention. Sheriff Montgomery then forwarded the Complaint to the County's lawyer. Major Kelley, in turn, provided Mr. Hayes' FCDC file to the lawyer. These facts show that Sheriff Montgomery and Major Kelley knew that Mr. Hayes had filed a lawsuit; accordingly, they were not prejudiced when they were compelled to defend against Mr. Hayes claims. n60

n60 See id.; see also Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 195 (3d Cir. 2001); and Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 175, 13 V.I. 666 (3d Cir. 1977) (holding that a defendant had adequate notice of a pending lawsuit when the person inadvertently saw a copy of the Complaint naming the place where he worked and an "unknown employee," which he knew referred to him).

[**28]
Third, Sheriff Montgomery and Major Kelley knew, or should have known, that Mr. Hayes' action would have been brought against them if Mr. Hayes had a legal background or legal representation. Mr. Hayes testified that he made a conscious decision not to sue individual officers; however, his decision was based, in part, on the fact that he had previously sued the local prosecutor and judge. Both were later held to be immune; therefore, when Mr. Hayes filed his second lawsuit, he assumed that Sheriff Montgomery and Major Kelley were also immune. However, Mr. Hayes' knowledge of the law is limited and, although he may not have known that officials are not always immune from liability, Sheriff Montgomery and Major Kelley knew otherwise. Because they may be charged with knowledge of the law, Sheriff Montgomery and Major Kelley should have known that, but for Mr. Hayes' legal mistake, they would have been named in his initial Complaint. n61

n61 See Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 557 (7th Cir. 1997); see also Woods v. Indiana Univ.-Purdue Univ., 996 F.2d 880, 887-88 (recognizing that Rule 15(c) "contemplates ... retrospective application of an amended complaint ... when plaintiff or plaintiff's attorney realizes that the defendant should have been named at the outset.").

[**29]
[*1144] Finally, Sheriff Montgomery and Major Kelley undoubtedly received notice of the pending lawsuit within 120 days after Mr. Hayes filed his Complaint because the County's Answer to Plaintiff's Complaint was filed only one month after the Complaint was filed. n62 Under these circumstances, the Amended Complaint adding Sheriff Montgomery and Major Kelley was proper under Rule 15 of the Federal Rules of Civil Procedure and "related back" to the date the original Complaint was filed.

n62 Even if the two officers did not receive actual notice, they did receive constructive notice of the pending lawsuit, which also satisfies Schiavone. First, under the "identity of interest" principle, which imputes knowledge to a newly-named defendant "when the original and newly-added parties are so closely related in business or other activities that it is fair to presume the added parties learned of the institution of the action shortly after it was commenced," there is little doubt that a complaint against the County for alleged misconduct would not immediately be brought to the attention of the Sheriff, who is responsible for each inmate, arrestee, and deputy in Faulkner County, and to the attention of his appointed jail administrator. Ayala Serrano, 909 F.2d at 12. Second, under the "shared attorney" principle, which imputes notice to a newly-named defendant who shares the same attorney as the originally-named defendant because the attorney probably "communicated to the [added] party that he may very well be joined in the action," the individual defendants received constructive notice of this lawsuit. Singletary, 266 F.3d at 196; see also Garvin v. Philadelphia, 2002 U.S. Dist. LEXIS 23346, 2002 WL 31739948 (E.D. Pa. 2002) (explaining that "the prescribed limitations period" refers to 120-day period granted to the plaintiff to serve a copy of the summons and complaint under Rule 4(m) of the Federal Rules of Civil Procedure).

[**30]
D. DAMAGES AND ATTORNEY'S FEES
Mr. Hayes is entitled to recover damages from the County and Major Kelley, individually, to compensate him for the personal humiliation and embarrassment, mental anguish and emotional distress, damage to his reputation, physical injuries, and economic losses he suffered as a result of his 38-day incarceration. However, I decline to award punitive damages, as a matter of discretion. n63 Additionally, because Plaintiff is the prevailing party in this case, he should be awarded a reasonable attorney's fee.

n63 In order to recover punitive damages, a plaintiff must show more than "a bare violation of section 1983." See Wade v. Haynes, 663 F.2d 778, 785 (8th Cir. 1981). He must also prove that the defendant acted "with actual knowledge that he was violating a right 'secured by the Constitution and laws' or "with reckless disregard of whether he was ... violating such a right." Guzman, 540 F.2d at 953; see also Walters v. Grossheim, 990 F.2d 381, 385 (8th Cir. 1993). Punitive damages are never awarded as a matter of right, no matter how egregious the defendant's conduct may have been, and governmental entities are immune from liability for punitive damages under section 1983. Smith v. Wade, 461 U.S. 30, 36, 52, 75 L. Ed. 2d 632, 103 S. Ct. 1625 (1983).

[**31]
1. Damages
Compensatory damages are appropriate in actions brought under 42 U.S.C. § 1983 if an "official acted with such an impermissible motivation or with such disregard [of the plaintiff's] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith." n64 Damages "are not limited to the out-of-the-pocket pecuniary loss the plaintiff suffers ... [but] can be awarded for emotional and mental distress even though no actual damages are proven." n65 An award may also include [*1145] damages for "impairment of reputation ... [and] personal humiliation." n66 Compensatory damages are mandatory, n67 and should compensate the plaintiff for the losses he has suffered through the "deprivation of his constitutional rights." n68 Alternatively, presumed damages, which act as a "substitute for ordinary compensatory damages," n69 are appropriate when a plaintiff seeks compensation for an injury that is "likely to have occurred[,] but [is] difficult to establish." n70

n64 Guzman, 540 F.2d at 951; see also Brandon v. Holt, 469 U.S. 464, 471-72, 83 L. Ed. 2d 878, 105 S. Ct. 873 (1985) (holding that "a judgment against a public servant 'in his official capacity' imposes liability on the entity that he represents...," provided the governmental entity received notice and an opportunity to respond).
[**32]


n65 Guzman, 540 F.2d at 952.
n66 Memphis Comm. Sch. Dist. v. Stachura, 477 U.S. 299, 306, 91 L. Ed. 2d 249, 106 S. Ct. 2537 (1986).
n67 Smith, 461 U.S. at 52.
n68 Stachura, 477 U.S. at 306.
n69 Id. at 310.
n70 Id.

Mr. Hayes suffered personal humiliation and embarrassment as a result of his incarceration because people in his hometown knew that he had been in jail, and have ridiculed him about his experience. Moreover, although Mr. Hayes could once secure a $ 500,000 bond when he worked for a banking equipment company, he could no longer do so because he had been in jail. Before his arrest, Mr. Hayes often ran errands for construction crews to earn extra money; after his release, Mr. Hayes has trouble finding part-time employment because he had been in jail. In other words, Mr. Hayes' reputation in the community was compromised as a result of his confinement.
Next, Mr. Hayes contended that he experienced mental anguish and emotional distress as a result of his incarceration. Although [**33] he had not consulted a physician, Mr. Hayes testified that he often experienced feelings of unprovoked anger. Things which should have only mildly irritated him caused him to "explode" in front of others, which in turn caused him great embarrassment. He also explained that he was afraid that he could be arrested again and held for a long period of time for no reason. He added that he has trouble sleeping, and has had nightmares. Moreover, although he suffered from depression before his arrest, his condition had only worsened after his ordeal and his doctor prescribed Zoloft for him.
Plaintiff testified that he experienced great pain as a result of his prolonged incarceration. He ruptured a disc his back in the 1970s and had two back surgeries, one in 1979, and one in 1987. n71 He was also involved in an automobile accident, which crushed his pelvis, and has rheumatoid arthritis in his hips and shoulder. When Mr. Hayes was in jail, he testified, his injuries were aggravated because he was forced to sleep on a thin mattress on the floor of his over-crowded cell for an extended period of time. Moreover, during his incarceration, Mr. Hayes was briefly denied medication for his cholesterol [**34] level, blood pressure, emphysema, and depression. He subsequently had difficulty breathing and became congested.

n71 As a result of his injury, Plaintiff was disabled and, at the time of his arrest, received less than $ 700 each month from the Social Security and Veteran's administrations.

Financially, Mr. Hayes was injured because his home and property were left unattended while he was detained in the FCDC. The electricity at his home was disconnected, and everything in his refrigerator spoiled. When he was released, Mr. Hayes used his money to register his vehicle and to pay for insurance. Ultimately, although Mr. Hayes was released on May 11, 1998, he was unable to return to his home until June 3, two months after his arrest. Under these circumstances, compensatory damages are appropriate.
[*1146] 2. Attorney's Fees
Under 42 U.S.C. § 1988, I am authorized to award Mr. Hayes, as the prevailing party, "a reasonable attorney's fee as part of the costs," and have decided to do so. n72 The [**35] plaintiff must not only show that he is entitled to an award, but must also document "the appropriate hours expended and hourly rates." n73 Although "a lawyer is not required to record in great detail how each minute of his time was expended," n74 the records should explain how hours were "allotted to specific tasks-for example, how many hours were spent researching, how many interviewing the client, how many drafting the Complaint, and so on." n75

n72 42 U.S.C. § 1988.
n73 Hensley v. Eckerhart, 461 U.S. 437, 437, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983).
n74 461 U.S. at 437 n.12.
n75 Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983).

The Supreme Court has also recognized that "[a] request for attorney's fees should not result in a second major litigation." n76 Therefore, before I determine the amount of compensatory damages to which Mr. Hayes is entitled and an appropriate attorney's fee, I direct the parties to first attempt to agree on [**36] an appropriate amount themselves. They are directed to notify me within fifteen (15) days of this Order, whether or not settlement attempts have succeeded; and Mr. Hayes' lawyer should supplement his Motion for Attorney's Fees with more detailed records within that time. Defendants will have ten days after Plaintiff submits additional records to file written objections to Plaintiff's Motion.

n76 Hensley, 461 U.S. at 437; see also Emery v. Hunt, 272 F.3d 1042 (8th Cir. 2001).

III. CONCLUSION
Faulkner County is liable for the unconstitutional policies and customs adopted by Sheriff Montgomery and Major Kelley, in their official capacities. Major Kelley is also liable in his individual capacity because Arkansas law clearly imposed upon him a duty to ensure that the prisoners under his care were taken before a court without unnecessary delay, and because Major Kelley did not investigate Plaintiff's grievances. Major Kelley's actions were "deliberately indifferent" to Mr. Hayes' [**37] rights, and are not protected by qualified immunity. If the parties are unable to settle the amount of damages and attorney's fees, I will consider Plaintiff's Motion for Attorney's Fees and Defendants' objections, and will enter an Order awarding compensatory damages and attorney's fees and costs. I may set oral arguments on either or both issues.
IT IS SO ORDERED this 22nd day of September, 2003.
UNITED STATES DISTRICT JUDGE
WM. R. WILSON JR.