                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-3601
                         ___________________________

                                  Gabriel M. Coker

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

  Arkansas State Police; Brad Cartwright, in his individual capacity and official
            capacity as a State Trooper for the Arkansas State Police

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                           Submitted: September 24, 2013
                              Filed: November 5, 2013
                                   ____________

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
                          ____________

MELLOY, Circuit Judge.

       Gabriel Coker sued the Arkansas State Police and one of its state troopers, Brad
Cartwright, in his individual and official capacities, under 42 U.S.C. § 1983. Coker
claimed that Cartwright used excessive force in violation of the Fourth Amendment
to the U.S. Constitution when Cartwright arrested Coker after a high-speed chase
along a divided Arkansas highway. Coker claimed that Cartwright used excessive
force when he used his patrol vehicle to hit Coker's motorcycle, kicked Coker in the
face, broke the bones in Coker's face by striking Coker with a metal flashlight while
in the process of handcuffing Coker, and struck Coker's broken cheek once again
after securing Coker.

       The district court correctly found the claim against the Arkansas State Police
barred by Eleventh Amendment sovereign immunity. Further, because Coker has
made no cognizable claim for prospective injunctive relief against Cartwright's
official capacity, that claim is barred by sovereign immunity. See Monroe v. Ark.
State Univ., 495 F.3d 591, 594 (8th Cir. 2007); Zajrael v. Harmon, 677 F.3d 353, 355
(8th Cir. 2012) (per curiam). The district court entered summary judgment against
Coker, granting qualified immunity to Cartwright on Coker's individual capacity
claim. Coker does, however, present several genuine disputes of material fact
regarding Cartwright's conduct that, if true, preclude a grant of qualified immunity.

      We therefore affirm in part, reverse in part, and remand for further proceedings.

                                          I.

       On February 12, 2009, at 2:30 A.M., Cartwright was on patrol when he noticed
Coker traveling at a high rate of speed on his motorcycle along a divided highway.
Cartwright clocked the motorcycle's speed at 102 mph. Cartwright also noticed that
Coker did not have a license plate for the motorcycle. Cartwright activated his lights
and siren and began to pursue Coker. Coker did not stop, later claiming he did not
realize Cartwright was behind him. At one point during the three-minute chase,
Coker's speed exceeded 150 mph. Several times during the pursuit, Coker slowed
down as if to stop, only to speed back up again. Eventually, Coker crossed onto the
highway median and onto the other side of the highway. Coker then began to drive
the wrong direction on an onramp, and Cartwright bumped the motorcycle with his
patrol vehicle, causing the motorcycle to tip over and Coker to fall to the ground.

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Coker then jumped up and ran to the side of the road. All of the action prior to Coker
running to the side of the road is captured on Cartwright's patrol vehicle's dash
camera.

       To the extent that Coker's story differs from what is shown on the video—for
example, Coker claims he did not run after falling off the motorcycle—we find that
the district court correctly used the dash-camera recording to resolve any factual
disputes up to this point. See Scott v. Harris, 550 U.S. 372, 380 (2007) ("When
opposing parties tell two different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.").
After Coker rolls off of his motorcycle and runs to the side of the road, however, all
of the subsequent events leading to the present § 1983 action take place out of view
of the dash camera. The camera continued to record, but the audio of the incident is
difficult to discern. To the extent that the audio is understandable, it does not provide
a clear picture of what was happening. This is also when the parties' versions of
events really begin to diverge.

      In Cartwright's version, he exited the patrol vehicle to pursue Coker on foot.
Cartwright claims that Coker turned to face him in a crouched fighting stance.
Cartwright instructed Coker to get on the ground. When Coker ignored this direction,
Cartwright kicked Coker's face, which knocked Coker to the ground. Cartwright then
sat on Coker and attempted to handcuff him. Coker continued to squirm, and
Cartwright hit the side of Coker's face in order to subdue him. Cartwright admits he
had his metal Maglite flashlight out in order to see in the dark, and states in a
declaration that it is "very possible that the flashlight struck" Coker. Cartwright
maintains he only used the amount of force necessary to make the arrest.

       Coker describes a different version of events after the parties were out of view
of the patrol vehicle's dash camera. Coker claims he complied with all of Cartwright's

                                          -3-
directions and immediately fell to the ground, waiting to be handcuffed. At that
point, Coker claims that Cartwright kicked him in the face, causing his head to slam
into the ground. Then, while handcuffing him, Coker claims that Cartwright struck
Coker's face with a metal Maglite flashlight, breaking the bones in Coker's cheek.
Coker also alleges that Cartwright struck him a third time, throwing an elbow into
Coker's newly broken cheek bones after Coker was in handcuffs while the two walked
to the police car. Cartwright denies this third strike happened. Police then
transported Coker to the hospital for treatment for the injuries to his face. It is
undisputed that Cartwright broke Coker's cheek bones by striking him, either when
he kicked his face or struck him with the flashlight.

      Despite the differing stories, the district court judge ruled that, regardless of
which party was telling the truth, Cartwright was entitled to qualified immunity
because his use of force was reasonable throughout the altercation. Coker now
appeals.

                                          II.

       This court reviews a district court's grant of summary judgment de novo.
Hayek v. City of St. Paul, 488 F.3d 1049, 1054 (8th Cir. 2007). "Summary judgment
is proper if, after viewing the evidence and drawing all reasonable inferences in the
light most favorable to the nonmovant, no genuine issues of material fact exist and
the movant is entitled to judgment as a matter of law." Id.; Fed. R. Civ. P. 56(c). In
a § 1983 action, qualified immunity shields a government official from liability
"unless his conduct violates 'clearly established statutory or constitutional rights of
which a reasonable person would have known.'" Loch v. City of Litchfield, 689 F.3d
961, 965 (8th Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
"When a defendant asserts qualified immunity at the summary judgment stage, the
plaintiff must produce evidence sufficient to create a genuine issue of fact regarding



                                         -4-
whether the defendant violated a clearly established right." Bishop v. Glazier, 723
F.3d 957, 961 (8th Cir. 2013).

       When analyzing a grant of qualified immunity, we consider two questions: "(1)
whether there is sufficient evidence the officer violated a constitutional right, and (2)
whether the constitutional right [the officer violated] was so clearly established at the
time of the alleged violation that a reasonable officer would have known that his
conduct was unlawful." Atkinson v. City of Mountain View, Mo., 709 F.3d 1201,
1211 (8th Cir. 2013) (quoting Rohrbough v. Hall, 586 F.3d 582, 585 (8th Cir. 2009)
(alteration in original) (internal quotation marks omitted). "At the summary judgment
stage, granting qualified immunity 'is not appropriate where . . . a dispute remains
regarding facts material to the qualified immunity issue.'" Id. at 1212 (quoting
Rohrbough, 586 F.3d at 587).

       Coker claims that the district court, in its summary judgment order, improperly
weighed evidence, made credibility determinations, and failed to consider disputed
facts in the light most favorable to Coker, the nonmoving party. See, e.g., Montoya
v. City of Flandreau, 669 F.3d 867, 872 (8th Cir. 2012) ("While a jury may credit [an
officer's] characterization of the incident and disbelieve [the plaintiff] at trial, it is not
our function to remove the credibility assessment from the jury.") (internal quotation
marks omitted). Coker believes there are sufficient material disputed facts that should
preclude a grant of qualified immunity in Cartwright's favor. See Bell v. Kansas City
Police Dep't., 635 F.3d 346, 347 (8th Cir. 2011) (per curiam) ("The dispute was
material, because it bears on whether the use of force was objectively reasonable
under the circumstances.").

       "The right to be free from excessive force in the context of an arrest is clearly
established under the Fourth Amendment's prohibition against unreasonable searches
and seizures." Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009).
An excessive force claim is "evaluated under the reasonableness standard of the

                                             -5-
Fourth Amendment." Johnson v. Carroll, 658 F.3d 819, 825 (8th Cir. 2011) (quoting
McKenney v. Harrison, 635 F.3d 354, 359 (8th Cir. 2011)). The Eighth Circuit
recognizes that during an arrest, an officer has the "right to use some degree of
physical coercion or threat" to effectuate an arrest. Brown, 574 F.3d at 496 (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989). "To establish a constitutional violation
under the Fourth Amendment's right to be free from excessive force, the test is
whether the amount of force used was objectively reasonable under the particular
circumstances." Henderson v. Munn, 439 F.3d 497, 502 (8th Cir. 2006). "The
'reasonableness' of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."
Graham, 490 U.S. at 396.

       When determining whether the force was excessive, this court balances the
"individual's Fourth Amendment interest against the countervailing governmental
interests at stake." Id. (internal quotation marks omitted). Some relevant
considerations include: the severity of the crime; whether the suspect poses a threat
of harm to others; whether the suspect is resisting arrest; and other factors, such as
whether the situation is "tense, uncertain, and rapidly evolving," which would force
an officer to make "split-second judgments" about how much force is necessary.
McKenney, 635 F.3d at 360 (quoting Graham, 490 U.S. at 396–97). The court may
also consider the severity of the complainant's injuries. Mann v. Yarnell, 497 F.3d
822, 826 (8th Cir. 2007).

       When drawing all reasonable inferences in the light most favorable to Coker,
we cannot conclude that Cartwright's use of force once out of view of the dash camera
was objectively reasonable as a matter of law. Rather, a reasonable jury could find
that the severity of Coker's injuries demonstrates excessive force, particularly
Cartwright's decision to strike Coker using a metal flashlight after Coker was already
on the ground and allegedly complying with Cartwright's demands. See Kelly v.
Bender, 23 F.3d 1328, 1331 (8th Cir. 1994) (affirming denial of summary judgment

                                         -6-
because whether or not the use of a flashlight as a weapon was reasonable to
effectuate arrest was a question of fact for a jury to decide), abrogated on other
grounds by Johnson v. Jones, 515 U.S. 304 (1995). Without the aid of video or an
understandable audio recording, it is impossible to determine what happened that
night after Coker ran out of view of the camera without weighing Cartwright's version
of events against Coker's story. Making credibility determinations or weighing
evidence in this manner is improper at the summary judgment stage, and "it is not our
function to remove the credibility assessment from the jury." Kukla v. Hulm, 310
F.3d 1046, 1050 (8th Cir. 2002). We reverse and remand, leaving it to a jury to
decide whose story is more plausible.

                                         III.

      Accordingly, we affirm the district court's grant of summary judgment to the
Arkansas State Police.1 We reverse the district court's grant of qualified immunity to
Officer Cartwright and remand for further proceedings consistent with this opinion.
                       ______________________________




      1
       Coker also sought to amend his original complaint nearly a month after the
deadline set by the court's scheduling order. The district court denied this motion as
untimely, and Coker appealed. We affirm the district court's decision, finding that
Coker has failed to show good cause for why he should be allowed to amend his
complaint after missing the deadline. Fed. R. Civ. P. 16(b)(4) ("A schedule may be
modified only for good cause and with the judge's consent."). Coker offers no reason
for why he missed the original deadline or how he has been prejudiced by not being
allowed to add new theories of recovery to his original § 1983 claim. Accordingly,
the district court did not abuse its discretion when it denied Coker the ability to
amend his complaint. See Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir.
2008) ("A decision whether to allow a party to amend [his] complaint is left to the
sound discretion of the district court and should be overruled only if there is abuse
of discretion.").

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