Martin et al v. Julian et al

Filing 22

ORDER denying 19 motion to vacate or set aside order. The relief requested is denied. Signed by Judge Kristine G. Baker on 10/13/2020. (jbh)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
DELTA DIVISION
HUBERT W. MARTIN, KAREN FARMER,
and MATTHEW WILLIAMS
v.

PLAINTIFFS

Case No. 2:18-cv-00176-KGB

LISA JULIAN, individually; BLAKE
HUDSON, individually; GILL
BRAZEALE, individually; and KEITH
WEAVER, individually

DEFENDANTS
ORDER

Before the Court is a motion to vacate or set aside order filed by plaintiffs Hubert W.
Martin, Karen Farmer, and Matthew Williams (Dkt. No. 19). Defendants Lisa Julian, Blake
Hudson, Gill Brazeale, and Keith Weaver filed a response (Dkt. No. 20), and plaintiffs filed a reply
(Dkt. No. 21). For the following reasons, the Court denies plaintiffs’ motion to vacate or set aside
order (Dkt. No. 19).
I.

Background

Defendants filed two separate motions to dismiss in March 2019 (Dkt. Nos. 8, 10).
Plaintiffs never responded to those motions. On December 19, 2019, the Court entered an Order
granting those motions to dismiss as to plaintiffs’ federal claims, declining to exercise
supplemental jurisdiction over plaintiffs’ remaining state law claims, and dismissing plaintiffs’
complaint (Dkt. No. 17). In that Order, the Court concluded that plaintiffs’ Fourth Amendment
claims were time-barred under the applicable statute of limitations and that plaintiffs’ allegations
of a violation of rights under Brady v. Maryland, 373 U.S. 83 (1963), or their right to a fair trial
under the Due Process Clause of the Fourteenth Amendment were inapposite because plaintiffs
did not go to trial and were not convicted of anything (Id., at 4-8).

In the instant motion, plaintiffs state that their counsel was unaware that defendants filed
these, though CM/ECF indicates that both motions were delivered via email to plaintiffs’ counsel
(Dkt. Nos. 8; 10; 19, at 1). However, plaintiffs claim that where an “order addresses fewer than
all the claims or the rights and liabilities of fewer than all the parties, it is not final and the Eighth
Circuit has considered it pursuant to” Federal Rules of Civil Procedure 52(b) and 60 (Dkt. No. 19,
at 1). Plaintiffs argue that the Court’s December 19, 2019, Order did not address plaintiffs’ count
for malicious prosecution or prosecution without probable cause (Id., at 2). Plaintiffs assert that
this claim “alleg[es] violations of federally protected rights as well as claims protected by state
law” (Dkt. No. 21, at 1). Plaintiffs maintain that this claim is governed by a three-year statute of
limitations and did not accrue until the underlying criminal charges in this action were resolved in
their favor (Id., at 3). Plaintiffs’ charges were nolle prossed on January 7, 2016, and they filed this
action on December 11, 2018 (Id.). Accordingly, plaintiffs argue that this claim was timely
brought and should not be dismissed (Id.). On these grounds, plaintiffs request that the Court
reconsider its order granting defendants’ motions to dismiss pursuant to Federal Rules of Civil
Procedure 52(b) and 60 and Local Rules 5.5 and 7.2 (Dkt. No. 19, at 1-2).
For their part, defendants characterize plaintiffs’ malicious prosecution claim as arising
under Arkansas law and note that this Court expressly declined to exercise supplemental
jurisdiction over that claim and any other claim brought under state law (Dkt. No. 20, at 1). In
addition, defendants argue that the statute of limitations bars a constitutional claim of malicious
prosecution (Id., at 3-4). Defendants maintain that the statute of limitations for any constitutional
or federal malicious prosecution claim plaintiffs might have alleged began to run at the time
plaintiffs became detained to legal process rather than at the time the criminal case was concluded
in plaintiffs’ favor (Id., at 4). See Wallace v. Kato, 549 U.S. 384, 389, 391, 397 (2007). Under

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this theory, defendants argue that plaintiffs’ possible Fourth Amendment malicious prosecution
claims would also be time-barred (Id.).
II.

Legal Standard

Rule 52(b) provides that “[o]n a party’s motion filed no later than 28 days after the entry
of judgment, the court may amend its findings—or make additional findings—and may amend the
judgment accordingly.” Fed. R. Civ. P. 52(b).
“Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of
his case, under a limited set of circumstances including fraud, mistake, and newly discovered
evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). Rule 60(b) “provides for extraordinary
relief which may be granted only upon an adequate showing of exceptional circumstances.” U.S.
v. Young, 806 F.2d 805, 806 (8th Cir. 1986). “Motions under Rule 60(b) are within the discretion
of the district court . . . .” Baxter Intern., Inc. v. Morris, 11 F.3d 90, 92 (8th Cir. 1993).
Rule 60(b) relieves a party from a judgment or order on one of six specified grounds:
mistake, inadvertence, surprise, or excusable neglect; newly-discovered evidence that with
reasonable diligence could not have been discovered in time for a Rule 59(b) motion; fraud,
misrepresentation, or misconduct by an opposing party; the judgment or order is void; the
judgment or order has been satisfied, released, or discharged; the judgment or order is based on an
earlier judgment or order that has been reversed or vacated; or applying the judgment or order
prospectively is no longer equitable; and any other reason that justifies relief. Fed. R. Civ. P.
60(b). Rule 60(b) provides for extraordinary relief which may be granted only upon an adequate
showing of exceptional circumstances. Schwieger v. Farm Bureau Ins. Co. of NE, 207 F.3d 480,
487 (8th Cir. 2000). Rule 60(b) “is not a vehicle for simple reargument on the merits.” Broadway
v. Norris, 193 F.3d 987, 990 (8th Cir. 1999).

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III.

Discussion

The Court has reexamined plaintiffs’ complaint in reconsidering plaintiffs’ claim of
malicious prosecution or prosecution without probable cause (Dkt. No. 1).1

The first two

paragraphs of plaintiffs’ complaint generally lay out plaintiffs’ claims (Id., ¶¶ 1-2). The first
paragraph states that, pursuant to 42 U.S.C. § 1983, plaintiffs “seek redress against for [sic] the
defendants for their acts of commission and omission which were in violation of the plaintiffs’
rights protected by the U.S. Constitution as well as federal laws” (Id., ¶ 1). The second paragraph
provides the following:
Additionally, pursuant to its plenary power under 28 U.S.C. § 1367, the plaintiffs
seek relief from this Honorable Court under Ark. Const. Art. 2 § 2[,] 2 § 6, 2 § 9, 2
§ 15[,] redressable under the Arkansas Civil Rights Act of 1993 (ACRA), codified
at A.C.A. § 16-123-101 et seq. Furthermore, pursuant to this court’s plenary
powers she seeks redress for the state tort of malicious prosecution and false
imprisonment.
(Dkt. No. 1, ¶ 2) (emphasis added). Plaintiffs also provide the following paragraph as the final
paragraph in the “Facts” section of their complaint:
The plaintiffs bring this suit against the defendants individually seeking redress for
their violations of the plaintiffs' rights to be free of unreasonable searches,
unreasonable seizures to include false arrest, false imprisonment, violation of their
rights to be free of malicious prosecution, abuse of legal process, wrongful
institution of legal process and/or wrongful use of judicial process protected by the
4th Amendment and the ACRA.
(Id., ¶ 52) (emphasis added).

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The Court notes that plaintiffs’ complaint contains five duplicatively-numbered
paragraphs. Paragraph number 52 is followed by paragraph number 48 (Dkt. No. 1, at 8). From
there, the paragraphs proceed in normal numerical order. This mistake means that the complaint
has two identically numbered but substantively different paragraphs for paragraphs 48 through 52
(Id., at 7-8). Though the Court finds it clear which paragraph is at issue when one of these duplicate
paragraphs is cited given the different content of each paragraph, the Court makes this observation
based on the record before it.
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Plaintiffs’ complaint contains three counts (Id., ¶¶ 48-66). Count I asserts that defendants
presented the investigation packet to the prosecutor without revealing that the so-called
confidential informant had been recruited for the specific purpose to plant drug paraphernalia on
the plaintiffs’ property, that he had planted the drug devices on the property, and that he had done
so on defendants’ promise they would aid him in his quest to obtain custody of his child from the
plaintiff; states that defendants failed to disclose any and all exculpatory evidence known to the
State in violation of Brady v. Maryland; claims that “Defendants’ actions violated the plaintiffs’
right to due process both procedural and substantive protected by both the 4th Amendment
prohibition against unreasonable searches and seizures, and the due process clause of the 14th
Amendment as well”; and provides that “plaintiffs bring this suit against the defendants
individually for their violations of the plaintiffs’ rights to a fair trial when they caused the
prosecutor to not disclose evidence that was favorable to them” (Id., ¶¶ 50-55). Count II claims
that defendants still refuse to return items to plaintiffs that plaintiffs claim were illegally seized on
plaintiffs’ property (Id., ¶¶ 58-61). Count III claims that defendants were aware that a search
warrant granting them entry onto plaintiffs’ property was based upon fabricated evidence; argues
that the items found and seized on plaintiffs’ property did not give them probable cause to arrest
plaintiffs; and asserts that defendants were aware that the subsequent warrant for plaintiffs’ arrest
was based upon fabricated evidence and thus the magistrate’s issuance of the warrants did not
establish legal authority for the arrest of plaintiffs (Id., ¶¶ 63-65). None of these counts expressly
mention malicious prosecution, prosecution without probable cause, or any like claim.
The Supreme Court “has not defined the elements of” a malicious prosecution § 1983
claim, see McDonough v. Smith, 139 S. Ct. 2149, 2156 n.3 (2019) (citing Manuel v. Joliet, 137 S.
Ct. 911, 921-22 (2017)), or decided “whether a claim of malicious prosecution may be brought

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under the Fourth Amendment,” Manuel, 137 S. Ct. at 923 (Alito, J., dissenting). The Eighth
Circuit, however, addresses a Fourth Amendment cause of action regarding malicious prosecution
in Stewart v. Wagner, 836 F.3d 978, 983 (8th Cir. 2016) (Dkt. No. 21, at 1-2). In Stewart, the
Eighth Circuit held that “a § 1983 plaintiff’s claim that he was arrested or prosecuted without
probable cause, even if labeled a claim of malicious prosecution, ‘must be judged’ under the Fourth
Amendment, not substantive due process.” Id. (quoting Albright v. Oliver, 510 U.S. 266, 270-71
& n.4 (1994)); but see Bates v. Hadden, 576 Fed. App’x 636, 639 (8th Cir. 2014) (“In a pair of
2001 decisions, we observed that malicious prosecution is not a constitutional injury. As recently
as 2012, we expressed uncertainty as to whether ‘malicious prosecution is a constitutional violation
at all.’” (quoting Harrington v. City of Council Bluffs, Ia., 678 F.3d 676, 679 (8th Cir. 2012)
(internal citations omitted)); Harrington, 678 F.3d at 679 (“If malicious prosecution is a
constitutional violation at all, it probably arises under the Fourth Amendment.”).
In Stewart, the police officer defendants interviewed a witness named Alicia Kimberling
multiple times about a homicide. See id. at 982-83. On the day that she was first interviewed, Ms.
Kimberling identified two individuals named Leo Connelly and Christy Pethoud as the killers
responsible for the homicide.

See id. at 982.

Ms. Kimberling surreptitiously recorded

conversations with Mr. Connelly, plaintiff Zackary Stewart, and Mr. Stewart’s sister Candy
Seaman on three separate days following the first interview, but these recordings provided no
incriminating evidence regarding the homicide. See id. at 982. About a week later, the police
officer defendants interviewed Ms. Kimberling again. See id. at 982-83. During this interview,
Ms. Kimberling claimed that she saw Mr. Stewart and the previously identified individuals Mr.
Connelly and Ms. Pethoud in a car shortly after the homicide occurred; that Mr. Connelly was
covered in blood; that Mr. Stewart was in the back of the car; and that she saw a gun. See id. at

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983. Following this interview, the police officer defendants completed an affidavit or statement
of probable cause, reciting what Ms. Kimberling said to implicate Mr. Stewart in her second
interview. See id. This statement did not report that she had implicated Mr. Connelly and Ms.
Pethoud, but not Mr. Stewart, during her initial interview. See id. That same day, the police officer
defendants filed murder charges against Mr. Stewart and Mr. Connelly based on the probable cause
statement. See id. Based off these facts, Count I of the plaintiff’s complaint in Stewart “included
the § 1983 claim that [defendants] procured [ ] fabricated statements to create probable cause when
none existed.” Id. The Eighth Circuit understood this claim to allege that the plaintiff “was
arrested or prosecuted without probable cause” and held that this claim—sometimes labeled a
claim of malicious prosecution—should be judged under the Fourth Amendment. Id.
Here, Count I of plaintiffs’ complaint alleges that defendants presented the investigation
packet to the prosecutor without revealing that their informant had been recruited for the specific
purpose to plant drug paraphernalia on the plaintiffs’ property; that he had planted the drug devices
on the property; and that he had done so on the defendants’ promise that they would aid him in his
quest to obtain custody of his child from the plaintiff (Dkt. No. 1, ¶ 50). Plaintiffs allege that these
actions “violated [their] right to due process both procedural and substantive protected by both the
[Fourth] Amendment prohibition against unreasonable searches and seizures, and the due process
clause of the [Fourteenth] Amendment as well” (Id., ¶ 54). Additionally, Count III of plaintiffs’
complaint alleges that the search warrant granting defendants entry onto plaintiffs’ property and
the subsequent warrants issued for plaintiffs’ arrest were based on fabricated evidence (Dkt. No.
1, ¶¶ 63, 65). Plaintiffs’ complaint could be clearer, if as plaintiffs now maintain they intended to
allege a claim of malicious prosecution under both the Fourth Amendment and traditional state
law grounds.

The Court understands these allegations to claim that defendants fabricated

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statements and manufactured events leading to the search of plaintiffs’ property, the seizures of
plaintiffs’ persons and possessions, and the initiation of criminal proceedings against plaintiffs in
violation of the Fourth Amendment.
The Court recognizes defendants’ argument that, even if properly alleged, plaintiffs’
malicious prosecution claims brought pursuant to the Fourth Amendment are time-barred. The
Supreme Court has noted that “[a]n element of [the tort of malicious prosecution] is the
‘termination of the . . . proceeding in favor of the accused’; and accordingly, the statute of
limitations does not start to run until that termination takes place.” Manuel v. City of Joliet, Ill.,
137 S. Ct. 911, 921 (2017) (quoting Heck v. Humphrey, 512 U.S. 477, 484, 489 (1994)); see also
Heck, 512 U.S. at 489 (“[A] cause of action for malicious prosecution does not accrue until the
criminal proceedings have terminated in the plaintiff’s favor . . . .”). Some courts that recognize
malicious prosecution as a cognizable constitutional claim question whether a voluntary dismissal
of charges constitutes a “favorable termination” at all. See, e.g., Cordova v. City of Albuquerque,
816 F.3d 645, 650-61 (10th Cir. 2016) (“Although the dismissal of the assault charges certainly
worked to [plaintiff’s] benefit, we agree with the district court that it was not a favorable
termination under prevailing law.”). The Court determines that, to resolve plaintiffs’ pending
motion, the Court need not resolve specifically these issues. Instead, even if the Court were to
conclude that plaintiffs’ complaint plausibly alleges a claim of malicious prosecution under both
the Fourth Amendment and traditional state law grounds, the Court still would deny plaintiffs’
pending motion for the following reasons.
Even if the Court were to conclude that plaintiffs’ complaint plausibly alleges a claim of
malicious prosecution under both the Fourth Amendment and traditional state law grounds,
plaintiffs would have plausibly pleaded malicious prosecution as the sole surviving federal or

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constitutional claim in this § 1983 action. The Eighth Circuit has been clear that an allegation of
malicious prosecution without a corresponding constitutional violation cannot sustain a civil rights
claim under § 1983. See, e.g., Joseph v. Allen, 712 F.3d 1222, 1228 (8th Cir. 2013) (“[A]n
allegation of malicious prosecution without more cannot sustain a civil rights claim
under § 1983.”); Kurtz v. City of Shrewsbury, 245 F.3d 753, 758 (8th Cir. 2001) (stating that
“malicious prosecution by itself is not punishable under § 1983 because it does not allege a
constitutional injury.”); Technical Ordinance, Inc. v. United States, 244 F.3d 641, 650 (8th Cir.
2001) (“The general rule is that an action for malicious prosecution does not state a claim of
constitutional injury.”); McNees v. City of Min. Home, 993 F.2d 1359, 1361 (8th Cir. 1993) (stating
that a claim for malicious prosecution is not cognizable under § 1983 if it does not allege a
constitutional or federal statutory injury). Plaintiffs initially pleaded additional constitutional
violations, but the Court dismissed those claims as either time-barred or lacking merit in its
December 19, 2019, Order (Dkt. No. 17, at 4-8). Defendants do not challenge those findings in
the instant motion, nor does the Court see any grounds upon which they could challenge those
findings (Dkt. No. 19).

Because plaintiffs’ complaint fails to plead plausibly any other

constitutional violations corresponding with their malicious prosecution claim, Eighth Circuit
precedent dictates dismissal of this malicious prosecution claim brought pursuant to § 1983. See
Joseph, 712 F.3d at 1228; Kurtz, 245 F.3d at 758; Technical Ordinance, 244 F.3d at 650; McNees,
993 F.2d at 1361.
Accordingly, for these reasons, the Court denies plaintiffs’ motion to set aside or vacate
order (Dkt. No. 19).

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IV.

Conclusion

For the above reasons, the Court denies plaintiffs’ motion to set aside or vacate order (Dkt.
No. 19). The relief requested is denied.
So ordered this 13th day of October 2020.

Kristine G. Baker
United States District Judge

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