                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-1382
                        ___________________________

                                 Josh Brewington

                       lllllllllllllllllllllPlaintiff - Appellant

                                          v.

Ben Keener, Officer, Individually and in his Official Capacity as an Independence
 County Sheriff’s Deputy; Steve Jeffery, Sheriff, Individually and in his Official
     Capacity as Sheriff of the Independence County Sheriff’s Department

                      lllllllllllllllllllllDefendants - Appellees
                         ___________________________

                                No. 17-1433
                        ___________________________

                                 Josh Brewington

                       lllllllllllllllllllllPlaintiff - Appellant

                                          v.

Ben Keener, Officer, Individually and in his Official Capacity as an Independence
 County Sheriff’s Deputy; Steve Jeffery, Sheriff, Individually and in his Official
     Capacity as Sheriff of the Independence County Sheriff’s Department

                      lllllllllllllllllllllDefendants - Appellees
                                      ____________

                   Appeals from United States District Court
                 for the Eastern District of Arkansas - Batesville
                                    ____________

                              Submitted: April 11, 2018
                               Filed: August 30, 2018
                                   ____________

Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
                             ____________

SMITH, Chief Judge.

       In this excessive force suit, Josh Brewington appeals the district court’s1 grant
of summary judgment to Independence County (“County”) Sheriff Steve Jeffery and
Deputy Ben Keener in their official capacities, as well as the grant of qualified
immunity to Sheriff Jeffery in his individual capacity. Brewington also asserts that
following entry of default judgment against Deputy Keener in his individual capacity,
the district court erroneously calculated Brewington’s compensatory damages and
attorneys’ fees. We affirm.

                                    I. Background
       On August 26, 2014, Brewington stole items from the local Walmart. He fled
the scene in a vehicle with potential accomplices. Deputy Keener was responding to
the theft call and was walking toward the Walmart entrance as Brewington and
company drove by in the parking lot.

       Law enforcement officers soon stopped the vehicle and removed Brewington
and the other individuals from the car. The officers handcuffed Brewington and his
companions and placed them on the ground in seated positions near the vehicle. Soon
after, Deputy Keener arrived at the arrest scene. Without provocation and without

      1
       The Honorable James M. Moody Jr., United States District Judge for the
Eastern District of Arkansas.

                                          -2-
communicating his intent to the other officers, Deputy Keener angrily kicked
Brewington once to the side of his face. Afterwards, the other officers called an
ambulance for Brewington, which soon arrived. The next day, Deputy Keener
submitted his resignation to the County Sheriff’s Office, turning in his badge and his
gun. The County terminated Deputy Keener as well. The incident led to criminal
charges against Deputy Keener, and he eventually pleaded guilty to third-degree
battery.

       Brewington sued Sheriff Jeffery2 and Deputy Keener, both in their official and
individual capacities, alleging excessive force during his arrest under 42 U.S.C.
§ 1983, Ark. Code Ann. § 16-123-105(a), and Arkansas tort law. Brewington
acknowledged that the County had a written use-of-force policy and that Deputy
Keener’s kick violated the policy. Brewington, however, alleged that despite the
written policy, the County Sheriff’s Office had an unwritten rule, policy, or custom
encouraging its officers to physically assault suspects who attempt to flee. He alleged
that Sheriff Jeffery had instituted the unwritten policy or custom and that Sheriff
Jeffery failed to adequately train or supervise Deputy Keener.

      Upon consideration of the defendants’ motion, the district court granted
summary judgment in favor of Sheriff Jeffery and Deputy Keener in their official
capacities. The court dismissed those claims after finding “no evidence to
demonstrate that the actions of [Deputy] Keener were motivated by a County policy
or custom of violating citizen’s rights to be free from excessive force.” Brewington
v. Keener, No. 1:15-cv-00088-JM, 2017 WL 5953131, at *2 (E.D. Ark. Feb. 1, 2017).
The district court also found that Brewington failed to present “proof of ‘widespread
unconstitutional conduct that was so pervasive and well-settled that it had the effect
of law.’” Id. (quoting Smith v. Watkins, 159 F.3d 1137, 1138 (8th Cir. 1998)). It also
granted qualified immunity to Sheriff Jeffery, finding that Brewington “offer[ed] no


      2
          Sheriff Jeffery is no longer the sheriff of the County.

                                            -3-
proof that Sheriff Jeff[er]y had notice of a pattern of conduct by Keener that violated
a clearly established constitutional right.” Id. at *3 (citation omitted).

      The County, having terminated Deputy Keener’s employment, declined to
defend Deputy Keener against Brewington’s individual capacity claims. Deputy
Keener failed to answer Brewington’s complaint or to appear before the district court
to defend the lawsuit. The court granted Brewington’s motion to enter default
judgment against Deputy Keener. The court proceeded to hear evidence on damages.
At a bench trial, Brewington’s medical expert testified about the extent of
Brewington’s dental damages and opined that Brewington required complete and
permanent dentures. The district court awarded Brewington $38,693.67 in
compensatory and $75,000 in punitive damages against Deputy Keener. Brewington’s
counsel requested $41,920.00 in attorneys’ fees, but the district court reduced the
award to $16,500, citing duplicative work.

                                      II. Discussion
       Brewington appeals, contending that the district court erroneously granted
summary judgment in favor of Sheriff Jeffery and Deputy Keener in their official
capacities. Brewington also asserts the district court erred in granting qualified
immunity to Sheriff Jeffery. Next, he claims the district court misapplied the standard
for causation in calculating compensatory damages. Last, Brewington avers that the
district court abused its discretion in reducing the attorneys’ fees award. We address
each argument in turn.

                            A. Official Capacity Claims
       Brewington argues that the district court erred in granting summary judgment
to Sheriff Jeffery and Deputy Keener in their official capacities. Brewington asserts
that despite having an official written policy against the use of excessive force, the
County also had an unstated, unofficial contrary custom and practice. This alleged
unstated policy condoned excessive force against arrestees who attempt to flee.

                                          -4-
Alternatively, Brewington contends that because Sheriff Jeffery was a final
policymaker, his unwritten policy of excessive force has the force of command
sufficient for county liability. “We review a district court’s grant of summary
judgment de novo, drawing all reasonable inferences, without resort to speculation,
in favor of the nonmoving party.” Anderson v. Durham D & M, L.L.C., 606 F.3d 513,
518 (8th Cir. 2010) (quoting Johnson v. Ready Mixed Concrete Co., 424 F.3d 806,
810 (8th Cir. 2005)). “Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.”
Id. (citing Johnson, 424 F.3d at 810).

      Brewington filed suit against Sheriff Jeffery and Deputy Keener in their official
capacities,3 and as such, “it must be treated as a suit against the County.” Liebe v.
Norton, 157 F.3d 574, 578 (8th Cir. 1998) (citing Hafer v. Melo, 502 U.S. 21, 25
(1991)).


      3
       The Arkansas Civil Rights Act (ACRA) directs Arkansas courts to “look for
guidance to state and federal decisions interpreting the Civil Rights Act of 1871, as
amended and codified in 42 U.S.C. § 1983.” Ark. Code Ann. § 16-123-105(c). The
Arkansas Supreme Court also noted with approval that “the [Arkansas] court of
appeals has relied on federal precedent to analyze an excessive-force claim under the
ACRA.” Graham v. Cawthorn, 427 S.W.3d 34, 45 (Ark. 2013) (citation omitted); see
also Repking v. Lokey, 377 S.W.3d 211, 220 (Ark. 2010) (citing Fegans v. Norris, 89
S.W.3d 919 (Ark. 2002)). We therefore analyze Brewington’s federal and ACRA
claims co-extensively using federal standards. See Henderson v. Simmons Foods, Inc.,
217 F.3d 612, 615 n.3 (8th Cir. 2000) (“Claims premised under the Arkansas Civil
Rights Act of 1993 are analyzed in the same manner as [federal] claims.” (citing Ark.
Code Ann. § 16-123-103(c))); see also Hess v. Ables, 714 F.3d 1048, 1054 (8th Cir.
2013) (holding that “because [the appellant] did not explain why [her] ACRA claims
warranted separate analysis, the district court did not err in dismissing the ACRA
claims alongside the § 1983 claims” (citing Lewis v. Jacks, 486 F.3d 1025, 1030 (8th
Cir. 2007))).



                                          -5-
              In Monell v. New York City Dept. of Social Services, 436 U.S.
      658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), [the Supreme Court]
      decided that a municipality can be found liable under § 1983 only where
      the municipality itself causes the constitutional violation at issue.
      Respondeat superior or vicarious liability will not attach under § 1983.
      Id., at 694–695, 98 S. Ct. at 2037–38. “It is only when the ‘execution of
      the government’s policy or custom . . . inflicts the injury’ that the
      municipality may be held liable under § 1983.” Springfield v. Kibbe, 480
      U.S. 257, 267, 107 S. Ct. 1114, 1119, 94 L. Ed. 2d 293 (1987)
      (O’CONNOR, J., dissenting) (quoting Monell, supra, at 436 U.S. at 694,
      98 S. Ct. at 2037–38).

City of Canton v. Harris, 489 U.S. 378, 385 (1989) (ellipsis in original). When a
plaintiff can point to a municipal policy that either “violates federal law, or directs an
employee to do so,” “no evidence is needed other than a statement of the municipal
policy and its exercise” to establish a constitutional violation. Szabla v. City of
Brooklyn Park, Minn., 486 F.3d 385, 389, 390 (8th Cir. 2007) (first quoting Bd. of the
Cty. Comm’rs v. Brown, 520 U.S. 397, 404–05 (1997), then citing City of Okla. City
v. Tuttle, 471 U.S. 808, 822–23 (1985) (plurality opinion)). But when a plaintiff
alleges an unwritten or unofficial policy, there must be “evidence of . . . a practice,
so permanent and well-settled so as to constitute a custom, that existed.” Davison v.
City of Minneapolis, 490 F.3d 648, 659 (8th Cir. 2007) (citing City of St. Louis v.
Praprotnik, 485 U.S. 112, 121 (1988)).

       Thus, at issue here is whether the County officially or unofficially directed
Deputy Keener to use excessive force against Brewington. Brewington acknowledges
that the County has a written policy expressly prohibiting excessive force. He
contends, however, that despite the written policy, the County Sheriff’s Office had
a custom or practice of excessive force against arrestees who attempt to flee. We
explained previously that



                                           -6-
      a plaintiff may establish municipal liability through an unofficial custom
      of the municipality by demonstrating “(1) the existence of a continuing,
      widespread, persistent pattern of unconstitutional misconduct by the
      governmental entity’s employees; (2) deliberate indifference to or tacit
      authorization of such conduct by the governmental entity’s
      policymaking officials after notice to the officials of that misconduct;
      and (3) that plaintiff was injured by acts pursuant to the governmental
      entity’s custom, i.e., that the custom was a moving force behind the
      constitutional violation.”

Corwin v. City of Indep., Mo., 829 F.3d 695, 700 (8th Cir. 2016) (quoting Snider v.
City of Cape Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014)). The pattern of
unconstitutional conduct must be so pervasive and widespread so “as to have the
effect and force of law.” Andrews v. Fowler, 98 F.3d 1069, 1075 (8th Cir. 1996)
(citations omitted).

       Brewington attempts to show the County engaged in a pattern of widespread
and persistent unconstitutional conduct by presenting affidavits from two former
deputy sheriffs as well as Deputy Keener’s testimony. The former deputies recounted
an incident several years earlier where they alleged that Sheriff Jeffery was involved
in an excessive force incident. Deputy Keener testified at his deposition that a
sergeant informed him that the County Sheriff’s Office itself had a policy of making
an example of arrestees who attempt to flee; the sergeant allegedly told Deputy
Keener to whip, kick, hit, or do something to deter the arrestees. Deputy Keener
recalled one incident where—sometime between 2009 and 2014—a suspect was
beaten as he walked through a gauntlet of officers. In sum, as evidence of the
County’s alleged unconstitutional conduct, Deputy Keener and the two former
deputies described two prior incidents of excessive force. Additionally, Deputy
Keener—through hearsay—testified that he was informed of an informal custom by
a higher-ranking officer, but not by Sheriff Jeffery.



                                         -7-
      Brewington’s evidence falls short. First, inadmissible hearsay discovered
during discovery may not be used to defeat summary judgment. Shaver v. Indep.
Stave Co., 350 F.3d 716, 723 (8th Cir. 2003) (“There are limits on what kinds of
evidence a judge may consider in reviewing a motion for summary judgment, and
inadmissible evidence obtained during discovery cannot be used to defeat such a
motion.” (citing Mays v. Rhodes, 255 F.3d 644, 648 (8th Cir. 2001))). Brewington
presents no basis for admission of Deputy Keener’s hearsay testimony. Second, in the
face of an express municipal policy prohibiting excessive force, two incidents of
excessive force—even assumed to be true—cannot be considered a pattern of
widespread and pervasive unconstitutional conduct. See Smith, 159 F.3d at 1138
(“We recently held that two specific complaints and various rumors about an officer
were not sufficient to establish a policy or custom of condoning unconstitutional
conduct.” (citing Andrews, 98 F.3d at 1076)); see also Roberts v. City of Shreveport,
397 F.3d 287, 295 (5th Cir. 2005) (holding that evidence of an officer brandishing his
handgun during a traffic stop, committing one other incident of deadly force, and
receiving two complaints of excessive force insufficient to establish a pattern of
unconstitutional conduct); Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir.
2002) (concluding that eleven incidents were insufficient to establish an
unconstitutional pattern).

       In the alternative, Brewington argues that because Sheriff Jeffery was a final
policymaker, his action constitutes the creation of an unofficial custom. See Davison,
490 F.3d at 659 (“[A]n unconstitutional government policy could be inferred from a
single decision taken by the highest officials responsible for setting policy in that area
of the government’s business.” (quoting Praprotnik, 485 U.S. at 123)). However, this
argument suffers from the same evidentiary infirmity as Brewington’s prior
contention. Other than Deputy Keener’s hearsay testimony that a higher-ranked
officer told him of an excessive force custom, Brewington offers no evidence that
Sheriff Jeffery ever instituted the custom or practice. Brewington’s evidence therefore
failed to demonstrate the existence of an unofficial excessive force custom or practice

                                           -8-
that has the effect or force of law in the County. Finally, even assuming the existence
of an unconstitutional custom, Brewington cannot show that the policy was the
“moving force” behind Deputy Keener’s conduct. Deputy Keener was asked in his
deposition, “Sitting here today, do you know why you kicked Josh?” J.A. at 76. He
answered, “Other than just being angry, no.” Id. Brewington’s anger—not any county
policy or directive—was the moving force for his conduct.

       In sum, Brewington failed to prove the existence of an unconstitutional custom
or policy. He also failed to show causation assuming there was such a custom or
policy. Brewington therefore cannot establish municipal liability. See Corwin, 829
F.3d at 700. The district court correctly granted summary judgment in favor of Sheriff
Jeffery and Deputy Keener in their official capacities.

                             B. Qualified Immunity
       Brewington also argues on appeal that the district court erroneously granted
qualified immunity to Sheriff Jeffery. He contends Sheriff Jeffery failed to train
Deputy Keener adequately.4 This argument lacks merit, and we affirm.

       “Sheriff [Jeffery] may be liable under § 1983 if he (1) had ‘notice of a pattern
of unconstitutional acts committed by subordinates’; (2) was deliberately indifferent
to or tacitly authorized those acts; and (3) failed to take ‘sufficient remedial action’;
(4) proximately causing injury to [Brewington].” Livers v. Schenck, 700 F.3d 340,
355 (8th Cir. 2012) (quoting Andrews, 98 F.3d at 1078). Ultimately, Brewington must
prove that Sheriff Jeffery “had notice that the training procedures and supervision


      4
       Brewington also alleged that Sheriff Jeffery failed to supervise Deputy Keener
in his complaint, but he appears to abandon this claim on appeal. See Jenkins v.
Winter, 540 F.3d 742, 751 (8th Cir. 2008) (“Claims not raised in an opening brief are
deemed waived.” (citations omitted)).



                                          -9-
were inadequate and likely to result in a constitutional violation.” Id. at 356 (quoting
Andrews, 98 F.3d at 1078).

       Brewington says that Sheriff Jeffery’s failure to train is readily apparent from
the purported policy of “beat[ing] people up,” see Appellant’s Br. at 39, and from the
other officers’ failure to intervene when Deputy Keener kicked Brewington. He does
not allege any other incidents of misconduct by Deputy Keener. We have already
discussed Brewington’s failure to show an unconstitutional policy or custom. See
supra Part II.A. Under our precedent, a single incident cannot serve as notice for a
pattern of misconduct. See Howard v. Adkison, 887 F.2d 134, 138 (8th Cir. 1989)
(holding that a single incident, or a series of isolated incidents, is usually insufficient
to infer a pattern). On this record, Brewington failed to show failure to train, and
Sheriff Jeffery is entitled to qualified immunity.

                 C. Causation Standard for Compensatory Damages
       Brewington argues that the district court applied an incorrect causation
standard to calculate Brewington’s dental damages stemming from Deputy Keener’s
kick to his face. We disagree and find no abuse of discretion. See Stevens v. McHan,
3 F.3d 1204, 1207 (8th Cir. 1993) (standard of review for § 1983 damages award).

      As we explained:

      In order to establish a violation of constitutional rights under § 1983, the
      plaintiff must prove that the defendant’s unconstitutional action was the
      “cause in fact” of the plaintiff’s injury. Carey v. Piphus, 435 U.S. 247,
      263, 98 S. Ct. 1042, 1052, 55 L. Ed. 2d 252 (1978); Cowans v. Wyrick,
      862 F.2d 697, 703 (8th Cir. 1988) (McMillian, J., concurring). Conduct
      is the cause in fact of a particular result if the result would not have
      occurred but for the conduct. Similarly, if the result would have
      occurred without the conduct complained of, such conduct cannot be a
      cause in fact of that particular result. Carey, 435 U.S. at 263, 98 S. Ct.


                                           -10-
      at 1052; see W. Page Keeton, Prosser and Keeton on the Law of Torts,
      § 41, at 264 (5th Ed. 1984).

Butler v. Dowd, 979 F.2d 661, 669–70 (8th Cir. 1992) (emphasis added). Contrary to
Brewington’s assertion, Arkansas courts also apply the but-for standard of causation:

      Proximate cause is that which in a natural and continuous sequence,
      unbroken by any efficient intervening cause, produces the injury and
      without which the result would not have occurred. Wal-Mart Stores, Inc.
      v. Kilgore, 85 Ark. App. 231, 148 S.W.3d 754 (2004). This traditional
      tort standard requires proof that “but for” the tortfeasor’s negligence, the
      plaintiff’s injury or death would not have occurred. Dodd v. Sparks
      Reg’l Med. Ctr., 90 Ark. App. 191, 204 S.W.3d 579 (2005).

Thomas v. Meadors, 527 S.W.3d 724, 731 (Ark. Ct. App. 2017). While a medical
expert need not invoke a set of “magic words,” he nevertheless must articulate but-for
causation, “to be judged upon the entirety of the opinion.” Wal-Mart Stores, Inc., 148
S.W.3d at 759 (citation omitted).

       At the bench trial, Brewington described Deputy Keener’s kick as a “field-goal
kick[]” to his face. Transcript of Bench Trial at 19, Brewington v. Keener, No. 1:15-
cv-00088-JM (E.D. Ark. Jan. 23, 2017), ECF No. 45. The kick immediately knocked
out two of Brewington’s teeth. Brewington’s dental expert testified that Brewington
“had a lot of [previous] dental work done, root canals and crowns and fillings and
extractions.” Id. at 28. At the time the expert examined Brewington—more than a
year and a half after the incident with Deputy Keener—Brewington had lost seven
teeth. He also had abscesses on eleven teeth. The dentist concluded that Brewington
“probably had some things that needed to be done as a result of the accident or the
incident,” but also “probably would have had to have something done to catch up
with what he had done before.” Id. at 30. He opined that Brewington needed a full set
of permanent dental implants, because a “partial denture requires teeth to support it


                                         -11-
and he has no teeth to support a partial denture, no teeth in there that are strong
enough or could be made strong enough to take care of it for any period of time.” Id.
at 31. But, the expert also concluded that Brewington “has [some] solid teeth in [his
mouth] now.” Id. at 36. At the end of the trial, the district court concluded that it did
not

       feel that [it had] sufficient evidence to award [the damages amount for
       the full implants] because the doctor didn’t testify that but for the
       actions of Mr. Keener that Mr. Brewington would not have needed the
       dentures altogether. He had a complex dental situation or history and
       [the court] didn’t hear anything from the doctor that said but for
       Keener’s actions, he would have needed those.

Id. at 42.

       Brewington challenges the district court’s conclusion, arguing that he is an
eggshell plaintiff5 whose prior deteriorated teeth became exacerbated by Deputy
Keener’s kick, requiring a full set of restorative implants. Brewington’s expert’s
opinion belies this contention. The dentist testified that Brewington still had solid
teeth after the incident and that he had sustained damage to multiple teeth, but not all.
The egg-shell plaintiff rule is inapplicable here; Deputy Keener’s kick did not
proximally cause damage to all of Brewington’s teeth. Thus, the district court
correctly concluded that Deputy Keener’s kick was not the but-for cause for all of
Brewington’s dental injuries, and we find no abuse of discretion.




       5
        “[T]he ‘egg-shell plaintiff’ rule . . . in essence [states that] a defendant takes
a plaintiff as he finds [him].” Freeman v. Busch, 349 F.3d 582, 590 (8th Cir. 2003)
(citation omitted).

                                          -12-
                           D. Attorneys’ Fees Calculation
      Brewington also contests the district court’s reduction of his requested
attorneys’ fees. “Attorney’s fees are within the broad discretion of the district court
and will not be reversed absent an abuse of discretion.” Hanig v. Lee, 415 F.3d 822,
825 (8th Cir. 2005) (citing Harmon v. City of Kan. City, 197 F.3d 321, 329 (8th Cir.
1999)).

        To calculate attorneys’ fees, courts typically begin by using the lodestar
method. This method “‘multipl[ies] the number of hours reasonably expended by the
reasonable hourly rates.’ When determining reasonable hourly rates, district courts
may rely on their own experience and knowledge of prevailing market rates.” Id. (first
quoting Fish v. St. Cloud State Univ., 295 F.3d 849, 851 (8th Cir. 2002), then citing
Warnock v. Archer, 397 F.3d 1024, 1027 (8th Cir. 2004)). “There is no precise rule
or formula for making these determinations. The district court may attempt to identify
specific hours that should be eliminated, or it may simply reduce the award to account
for . . . limited success.” Hensley v. Eckerhart, 461 U.S. 424, 436–37 (1983). The
court must “provide a concise but clear explanation of its reasons for the fee award.”
Id. at 437.

      Here, the district court reduced Brewington’s requested attorneys’ fees from
$41,920 to $16,500, citing duplicative work. The court stated that it also
“consider[ed] the results obtained by [Brewington’s] counsel in determining the
reasonableness of the fee award.” Order at 2, Brewington v. Keener, No. 1:15-cv-
00088-JM (E.D. Ark. Feb. 22, 2017), ECF No. 42. Brewington’s attorneys conceded
to some amount of duplicative work, see Appellant’s Br. at 56–57, but argue that the
reduction is disproportionate with the identifiable duplication of work.

      We have reviewed in depth Brewington’s supporting documentation. One
attorney charged $17,000—40.6 percent of the requested total—for e-mails alone.
This amount is questionable. Additionally, Brewington concedes to some duplication

                                         -13-
of work. Given the limited success in this case, we find that a significant reduction
in attorneys’ fees is appropriate. See Hensley, 461 U.S. at 436 (“If . . . a plaintiff has
achieved only partial or limited success, the product of hours reasonably expended
on the litigation as a whole times a reasonable hourly rate may be an excessive
amount. This will be true even where the plaintiff’s claims were interrelated,
nonfrivolous, and raised in good faith.”).

                               III. Conclusion
     We find the ultimate amount determined by the district court to be reasonable.
We affirm.

                        ______________________________




                                          -14-
