H. YOUNG, Magistrate Judge
INSTRUCTIONS
The following findings and recommendation have been sent to United States District Judge George Howard, Jr. Any party may serve and file written objections to these findings and recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the Office of the United States District Court Clerk no later than eleven (11) days from the date of the findings and recommendation. The copy will be furnished to the opposing party. Failure to file timely objections may result in a waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The details of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and "Statement of Necessity" to:
Clerk, United States District Court Eastern District of Arkansas 600 West Capitol Avenue, Suite 402 Little Rock, Arkansas 72201-3325
DISPOSITION
INTRODUCTION. Several of the defendants have filed motions to dismiss. The Court begins an analysis of the motions by outlining the events giving rise to this proceeding.
EVENTS. In June of 1999, Tom Alexander ("Alexander"), a confidential informant, met with investigators of the Fifth Judicial Drug Task Force ("Drug Task Force"). The purpose of the meeting was to arrange for Alexander to make a controlled purchase of methamphetamine from plaintiff Carl Franklin Cook ("Cook"). The Arkansas Court of Appeals found that Alexander attempted to purchase one ounce of methamphetamine from Cook on July 12, 1999. The state Court of Appeals found that the following occurred prior to, and during, the purchase:
Investigators with the [Drug Task Force] met with Alexander prior to the arranged purchase and installed a body wire, provided him with a tape recorder, and gave him $1,200 in "buy" money. At approximately 10:30 p.m. on July 12, Alexander entered the residence of Carl Cook and Sandra Burris on Atkins Bottom Road in Pope County, Arkansas. In an area outside of the appellants' home, Alexander gave Cook the $1,200 in exchange for one ounce of methamphetamine. The transaction was recorded on audio tape. Appellant Burris was inside the home during the "buy." She was monitoring a police scanner and communicated to Cook that she could hear Cook's conversation with Alexander on the scanner. Cook demanded that Alexander follow him to the house for questioning. While walking to the residence, Alexander discarded the body wire and tape recorder before being questioned by Cook. Once inside the residence, Cook ordered a strip search. When Alexander's shirt was removed, a piece of tape was discovered. Before Cook released him, Alexander was robbed, threatened, and kept against his will for approximately two hours.
See Cook v. State, 76 Ark. App. 447, 68 S.W.3d 308, 310-311 (2002). The occupants of the house on Atkins Bottom Road vacated it at some point later that evening. The next day, law enforcement officers went to the house for the purpose of serving a search warrant. It appears that the house was empty when they arrived. They entered the house and began conducting their search. They eventually recovered the tape record. The body wire was not found during the search but was recovered on July 14, 1999, in a van that had earlier been seen at the house. Cook was later arrested and charged with several offenses that arose from Alexander's controlled purchase of methamphetamine. Cook was eventually convicted by a Pope County, Arkansas, Circuit Court jury of delivery of methamphetamine, conspiracy to deliver methamphetamine, and theft of property.
THE COMPLAINT AT BAR. Cook commenced this proceeding in January of 2004 by filing a 144 page complaint pursuant to 42 U.S.C. 1983. He alleged that the defendants maliciously caused excessive, and therefore unnecessary, damage to his real and personal property in executing the search warrant at the house on Atkins Bottom Road.
THE ENTRY TEAM'S MOTION TO DISMISS. Defendants Richard Hoffman, Hoyt Harness, Mark Blankenship, Kevin Webb, Robert Speer, Jeff Crow, Jeff Jester, Charlie Edmondson, Bryan Davis, and Kevin Richmond (the "Entry Team") have filed a motion to dismiss. See Document 38. Their motion contains the following representations:
1. The Plaintiff has Failed to State a Claim Upon Which Relief May Be Granted, and therefore, Plaintiff's Complaint Should Be Dismissed Pursuant to Fed.R.Civ.P. 12(b)(6).
2. Plaintiff's Complaint Is Barred by the Doctrine of Qualified Immunity.
3. Plaintiff Has Failed to State a Claim of a Constitutional Violation under the Fifth or Fourteenth Amendment.
4. Plaintiff Failed to Allege Specific Facts Establishing a Violation of the Fourth Amendment.
5. Plaintiff Alleges Only Negligence By The Separate Defendants . . . and therefore, has Failed to State a Claim Upon Which Relief may be Granted.
6. This Court Lacks Jurisdiction over Plaintiff['s] Damage Claims . . . because the Defendants are Immune Pursuant to the Eleventh Amendment.
See Document 38 at 1. For the reasons that follow, the motion should be denied.
The members of the Entry Team appear to have been law enforcement officers who participated in the entry and search of the house on Atkins Bottom Road.
The Entry Team first maintains that Cook's complaint fails to state a claim for relief. Cook, in response, has quoted fromHummel-Jones v. Strope, 25 F.3d 647, 650 (8th Cir. 1994), and the Court will do likewise. Hummel-Jones provides as follows:
Although how best to proceed in performing a search is generally left to the discretion of officers executing a warrant, possession of a search warrant does not give the executing officers a license to proceed in whatever manner suits their fancy.
Dalia v. United States,
441 U.S. 238, 257-58 . . . (1979). The manner in which a warrant is executed is always subject to judicial review to ensure that it does not traverse the general Fourth Amendment proscription against unreasonableness.
Id.;
see also Zurcher v. Stanford Daily,
436 U.S. 547, 559-60, . . . (1978) (possession of a warrant and probable cause does not immunize how and when searches are executed from review for Fourth Amendment reasonableness) . . .
See also Walden v. Carmack, 156 F.3d 861 (8
th Cir. 1998) [search warrant can be based on best of probable cause; if police officers overstep its limits, execution becomes unconstitutional];
Tarpley v. Green, 684 F.2d 1 (D.C. Cir. 1982) [destruction of furniture, wall paneling, and tape deck during search violates Fourth Amendment if destruction not necessary to effectively execute search warrant];
Duncan v. Barnes, 592 F.2d 1336 (5
th Cir. 1979) [destruction of doors, television, and tape recorder by police while executing search warrant is subject to Fourth Amendment reasonableness standard].
Cook alleges that the Entry Team maliciously caused excessive, and therefore unnecessary, damage to his real and personal property in executing the search warrant. For purposes of these findings and recommendation, the Court accepts that assertion as true. See Chapman v. Musich, 726 F.2d 405 (8th Cir.), cert. denied, 469 U.S. 931 (1984). Given the teachings ofHummel-Jones and the other cases cited above, Cook appears to have stated a Fourth Amendment claim for relief. It does not appear beyond doubt that he can prove no set of facts in support of his claim that would entitle him to relief.
The Entry Team next maintains that they are shielded by qualified immunity. The prevailing law is clear: they are shielded by qualified immunity unless they violated a clearly established right of which a reasonable person would have known.See Walker v. City of Pine Bluff, 414 F.3d 989 (8th Cir. 2005). Qualified immunity issues are oftentimes analyzed using a two step procedure. The two steps are as follows:
First, [the court asks] whether the facts as asserted by the plaintiff "show the officer's conduct violated a constitutional right."
Saucier v. Katz,
533 U.S. 194, 201,
121 S.Ct. 2151,
150 L.Ed.2d 272 (2001). If the answer is no, [the court grants] qualified immunity. If the answer is yes, [the court goes] on to determine "whether the right was clearly established."
Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."
Id. at 202,
121 S.Ct. 2151.
See Wright v. Rolette County, 2005 WL 1862343 at 2 (8
th Cir. 2005).
Do the facts as asserted by Cook show that the conduct of the Entry Team violated a constitutional right? There is obviously much that the Court does not know. For instance, the Court does not know what the parameters of the search warrant were; whether it was indeed necessary for the Entry Team to make what Cook characterizes as a "Rambo" type entrance into the house; what items were actually seized during the search; and what property was, or had to be, destroyed in executing the warrant. At this juncture of the proceeding, the Court simply accepts Cook's recital of the facts as true. He alleges that the Entry Team maliciously caused excessive, and therefore unnecessary, damage to his real and personal property. The alleged conduct of the Entry Team, if proven, would support a finding that the defendants' execution of the search warrant was unreasonable and violated Cook's Fourth Amendment right to be free from such.
Assuming for purposes of these findings and recommendation that the alleged conduct of the Entry Team would be violative of Cook's Fourth Amendment right, the question for the Court is whether the right was clearly established. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."See Id.
See also Walden v. Carmack, 156 F.3d at 873. ["In order to show that a law enforcement official is not entitled to qualified immunity with regard to the execution of a search warrant, the appellees must establish that from the perspective of a reasonably objective police officer on the scene, without regard to the actual intent or motivation of [the defendants], their conduct was not objectively reasonable. Graham v. Connor, 490 U.S. 386, 396-97 . . . (1989)."]
The Fourth Amendment prohibits, inter alia, unreasonable searches. A search conducted pursuant to a lawfully issued warrant becomes unreasonable and therefore unconstitutional if the police officers executing the search overstep the self-contained limits of the warrant. See Hummel-Jones v. Strope, supra and Walden v. Carmack, supra. The Court is satisfied that the foregoing right has been clearly established for quite some time. A reasonable officer could not believe that the conduct of the Entry Team, as alleged, was lawful in light of clearly established law. Given the foregoing, the Court is unable to find at this juncture of the proceeding that the Entry Team is shielded by qualified immunity. Such a finding may eventually be made, but it cannot be made at this juncture.
The Entry Team next maintains that Cook has failed to state a claim for relief pursuant to the Fifth Amendment. The record reflects that Cook has elected to dismiss his Fifth Amendment claim. See Document 64 at 6. His request should be granted, and his Fifth Amendment claim should be dismissed.
The Entry Team next maintains that Cook has failed to state a claim for relief pursuant to the Fourteenth Amendment. It appears to be his position that an unreasonable search can violate the substantive due process right guaranteed by the Fourteenth Amendment. See Bergquist v. County of Cochise, 806 F.2d 1364, 1369 (9th Cir. 1986) [". . . officers' conduct in destroying the Bergquists' property must be evaluated against a reasonableness standard to determine whether the officers violated either the fourth or the fourteenth amendment."]
Substantive due process prevents the government from engaging in conduct that interferes with rights implicit in the concept of ordered liberty or otherwise shocks the conscience. See Weiler v. Purkett, 137 F.3d 1047 (8th Cir. 1998).
There are two different ways of stating a substantive due process claim. First, the state violates substantive due process when it infringes "fundamental" liberty interests, without narrowly tailoring that interference to serve a compelling state interest.
Reno v. Flores,
507 U.S. 292 (1993). Second, the state violates substantive due process when it engages in conduct that is so outrageous that it shocks the conscience or otherwise offends "judicial notions of fairness, [or is] offensive to human dignity."
Weimer v. Amen,
870 F.2d 1400, 1405 (8
th Cir. 1989) (quotations omitted).
See Id. at 1051. With respect to the second way, the plaintiff must show that the actions of the government were "truly irrational, that is, something more than . . . arbitrary, capricious, or in violation of state law."
See Id. [Internal quotations omitted].
The Court has some question whether Cook has adequately alleged a substantive due process claim. It is not clear from the parties' brief and the record now before the Court whether the Entry Team infringed upon a fundamental liberty interest or whether its conduct shocks the conscience, offends judicial notions of fairness, or is offensive to human dignity. The Court so states because "[t]he protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity." See Albright v. Oliver, 510 U.S. 266, 272 (1994). Notwithstanding the foregoing, though, Cook should be allowed to proceed with this at this time.
The Entry Team alternatively maintains that Cook has failed to state a claim for relief pursuant to the Fourteenth Amendment because he has an adequate post-deprivation remedy presently available to him. See Williams v. Campbell, 25 Fed.Appx. 477, 2001 WL 1549545 (8th Cir. 2001) [when state actor deprives individual of personal property, individual does not have claim pursuant to 42 U.S.C. 1983 if state law provides adequate post-deprivation remedy]. The remedy allegedly available to him is that provided by the Arkansas State Claims Commission. Its grant of jurisdiction provides the following:
(a) Except as otherwise provided by law, the Arkansas State Claims Commission shall have exclusive jurisdiction over all claims against the State of Arkansas and its several agencies, departments, and institutions but shall have no jurisdiction of claims against municipalities, counties, school districts, or any other political subdivisions of the state.
. . .
(b)(2)(A) The commission shall have jurisdiction only over those claims which are barred by the doctrine of soverign immunity from being litigated in a court of general jurisdiction.
See Ark. Code Ann. 19-10-204(a) and (b)(2)(A). The Court knows very little about the Entry Team, save the notation that it was a S.W.A.T. It is not clear to the Court whether the members of the Entry Team are agents of an agency, department, or institution of the State of Arkansas or whether they are instead agents of a municipality, county, or other political subdivision of the State of Arkansas. In addition, it is not clear to the Court whether Cook's Fourteenth Amendment claim is barred by the doctrine of soverign immunity from being litigated in a court of general jurisdiction. Given these questions, Cook should be allowed to proceed with this claim at this time.
The Entry Team next maintains that Cook has failed to allege specific facts establishing a violation of the Fourth Amendment. A review of his 144 page complaint establishes otherwise. He has alleged facts sufficient to establish a violation of the Fourth Amendment.
The Entry Team next maintains that Cook has alleged mere negligence and therefore failed to state a claim for relief. Clearly, mere negligence does not support a claim pursuant to 42 U.S.C. 1983. See Daniels v. Williams, 474 U.S. 327 (1986). Cook, however, has alleged more than mere negligence. He alleges that the defendants maliciously caused excessive, and therefore unnecessary, damage to his real and personal property in executing the search warrant at the house on Atkins Bottom Road.
The Entry Team last maintains that the Court lacks jurisdiction over Cook's damage claims because the Entry Team is shielded by Eleventh Amendment immunity. The Eleventh Amendment bars "a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury . . ." See Edleman v. Jordan, 415 U.S. 651, 663 (1974). A claim for monetary damages against a state official in his official capacity is equivalent to a suit against the state. See Kentucky v. Graham, 473 U.S. 159 (1985). The Eleventh Amendment thus bars a claim for monetary damages against a state official for conduct carried out in his official capacity. Cook has joined the members of the Entry Team in their individual capacities. For that reason, they are not shielded by Eleventh Amendment immunity.
"A state may waive its sovereign immunity and consent to suit in federal court, and Congress may, by legislation, abrogate immunity without the state's consent in order to effectuate the provisions of the Fourteenth Amendment." See Burk v. Beene, 948 F.2d 489, 493 (8th Cir. 1991). The Court finds that the State of Arkansas has not waived its sovereign immunity and, as the United States Court of Appeals for the Eighth Circuit noted in Burk v. Beene, "Congress did not abrogate constitutional sovereign immunity when enacting the law that was to become section 1983," see Id. at 493.
On the basis of the foregoing, the undersigned recommends that the motion to dismiss filed by the Entry Team be denied. Cook appears to have stated a Fourth Amendment claim for relief. The Court is unable to find at this juncture of the proceeding that the Entry Team is shielded by qualified immunity. Cook has elected to dismiss his Fifth Amendment claim, and his request should be granted. He should be allowed to proceed with his Fourteenth Amendment claim at this time. He has alleged facts sufficient to establish a violation of the Fourth Amendment and has alleged more than mere negligence. He has joined the members of the Entry Team in their individual capacities, and for that reason, they are not shielded by Eleventh Amendment immunity.
GIBBONS' MOTION TO DISMISS. Defendant David Gibbons ("Gibbons"), the Prosecuting Attorney for the Fifth Judicial District of the State of Arkansas, has also filed a motion to dismiss. See Document 47. His motion contains the following representations:
1. The Plaintiff has failed to state a claim upon which relief may be granted, and therefore, the complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6).
2. The complaint is barred by the doctrines of Prosecutorial and Qualified Immunity.
3. Plaintiff has failed to state a claim of a constitutional violation under Fourth, Fifth, and Fourteenth Amendments.
4. Plaintiff alleges only negligence by separate defendant David Gibbons in his [section] 1983 Claim, and therefore, has failed to state a claim upon which relief may be granted.
See Document 47.
The Court has addressed all but one of the representations made by Gibbons in the context of the Entry Team's motion. The lone representation not addressed in that context, and the only one the Court will address in the context of Gibbons' motion, is the assertion that he is shielded by prosecutorial, or absolute, immunity.
A prosecutor is shielded by absolute immunity for damages for conduct related to initiating a prosecution and presenting the State's case. See Imbler v. Pachtman, 424 U.S. 409 (1976). That cloak of immunity will be lost, though, if his conduct is not "intimately associated with the judicial phase of the criminal process." See Id. at 430.
Cook alleges that Gibbons was a member of the Drug Task Force and was present during the July 13, 1999, search of the house on Atkins Bottom Road. Cook alleges that Gibbons was present in either an investigative or advisory capacity. Accepting those assertions as true, the Court is convinced that Gibbons is not shielded by absolute immunity. The United States Supreme Court has held that "giving legal advice to police during an investigation strips a prosecutor of absolute immunity for that act because it is not a normal part of prosecution." See Anderson v. Larson, 327 F.3d 762, 769 (8th Cir. 2003) [citing Burns v. Reed, 500 U.S. 478 (1991)].
On the basis of the foregoing, the undersigned recommends that the motion to dismiss filed by Gibbons be denied. He is not shielded by absolute immunity nor can he prevail on any of the other grounds for dismissal he advances.
HARPER'S MOTION TO DISMISS. Defendant Scott Harper ("Harper"), a member of the Entry Team, has filed a separate motion to dismiss. See Document 73. The motion differs in no significant respect from the motion to dismiss filed by the Entry Team. For the reasons the Entry Team's motion should be denied, Harper's motion should also be denied.
WINTERS AND CALDWELL'S MOTION TO ADOPT. Defendants Jay Winters ("Winters") and Ray Caldwell ("Caldwell") have filed a motion to adopt the motion to dismiss filed by Harper. Because Harper's motion to dismiss should be denied, Winters and Caldwell's motion to adopt should be denied.
SUMMARY. The undersigned recommends that the motion to dismiss filed by the Entry Team be denied. See Document 38. The undersigned recommends that the motion to dismiss filed by Gibbons be denied. See Document 47. The undersigned additionally recommends that the motion to dismiss filed by Harper be denied. See Document 73. The undersigned last recommends that the motion to adopt Harper's motion to dismiss filed by Winters and Caldwell be denied. See Document 84. The Fifth Amendment claim advanced by Cook should be dismissed.