Harris v. McGough et al
MEMORANDUM OPINION AND ORDER. Signed by Honorable Robert T. Dawson on April 9, 2014. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
ANTHONY D. HARRIS
Case No. 1:13-CV-1043
WILLIAM COOPER, Individually and
as a member of the 13th Judicial District
Drug Task Force; STEVEN JERRY, Individually and
as a member of the El Dorado Police Department;
MICHAEL BLAKE, Individually and as a member of
the El Dorado Police Department; JOHN MILLER,
Individually and as a member of the El Dorado
Police Department; and ANGELA MEANS, Individually
and as a member of the El Dorado Police Department
MEMORANDUM OPINION AND ORDER
Currently before the Court are Separate Defendant William
Cooper’s (“Cooper”) Motion for Summary Judgment and supporting
Plaintiff’s Supplemental Response and supporting brief (docs.
Steven Jerry and Angela Mean’s (“Police Defendants”) Motion for
Plaintiff’s Responses2 and supporting materials (docs. 53-56);
Without leave and untimely, Plaintiff filed a Supplemental Response in
opposition to Separate Defendants’ motion for summary judgment (doc. 71) on
March 19, 2014. Cooper filed a Reply (doc. 73) on March 20, 2014.
CM/ECF Document 53 is “Plaintiff’s Response to Separate Defendants’ Motion
for Summary Judgment” and CM/ECF Document 56 is “Separate Defendants’
Response to Plaintiff’s First Statement of Undisputed Facts”.
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Police Defendants’ Reply3 and supporting brief (docs. 57-58);
Police Defendants’ Reply (doc. 58); Plaintiff’s First Motion in
Limine (doc. 63), Cooper’s Response and supporting brief (docs.
Plaintiff’s Third Motion in Limine and supporting brief (docs.
69-70); Cooper’s Response and supporting brief (docs. 77-78);
limine and supporting brief (docs.
For the reasons set out below Cooper’s Motion for Summary
Judgment (doc. 40) is GRANTED; Police Defendants’ Motion for
Summary Judgment (doc. 43) is GRANTED; Plaintiff’s motions in
limine (docs. 63-64, 69) are DENIED as moot.
Plaintiff brings suit under 42 U.S.C. § 1983, 42 U.S.C.
§ 1985, the 4th, 5th, 8th and 14th Amendments to the United
States Constitution alleging that on June 7, 2011, his residence
was searched without a warrant and that he was arrested on that
date without probable cause and without a warrant.
injunctive relief, wage loss, compensatory damages, and for fees
CM/ECF Document 57 is “Separate Defendants’ Reply to Plaintiff’s Response to
Separate Defendants’ Statement of Undisputed Material Facts and Response to
Plaintiff’s Second Statement of Undisputed Facts”. (Doc. 57).
Plaintiff filed his original complaint on May 6, 2013 (doc. 1), his First
Amended Complaint on June 26, 2013 (doc. 24), and his Second Amended
Complaint (doc. 36) on January 14, 2014.
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On January 15, 2014, Cooper filed his Answer and denied the
allegations of wrongdoing and asserted various defenses.
On January 22, 2014, Police Defendants filed their Answer
and denied the allegations of wrongdoing and asserted various
On January 30, 2014, Cooper filed his motion for summary
judgment contending: (1) despite the fact that Plaintiff was
misidentified as a resident of building “LJ” after his arrest in
Defendants had an arrest warrant, and even without an arrest
claims fail because there is no allegation of any alleged custom
or policy of the 13th Judicial District Drug Task Force; and (3)
he is entitled to qualified immunity.
On January 30, 2014, Police Defendants filed their motion
for summary judgment contending: (1) there was a valid search
warrant for Plaintiff’s address and a FNU/LNU5 (John Doe) warrant
for Plaintiff’s arrest; and (2) they are entitled to qualified
The parties filed their responses and
replies and the motions are ripe for consideration.
FNU/LNU is shorthand for First Name Unknown/Last Name Unknown, and may be
followed with a descriptive shorthand, to include B/M for Black/Male.
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Standard of Review
In determining whether summary judgment is appropriate, the
absence of a genuine issue of material fact and that it is
entitled to judgment as a matter of law.
See Fed. R. Civ. P.
56(c); Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,
Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999).
The Court must review the facts in a light most favorable to the
party opposing a motion for summary judgment and give that party
the benefit of any inferences that logically can be drawn from
Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13
(8th Cir. 1998) (citing Buller v. Buechler, 706 F.2d 844, 846
(8th Cir. 1983)).
Once the moving party demonstrates that the record does not
disclose a genuine dispute on a material fact, the non-moving
party may not rest upon the mere allegations or denials of his
provided in Rule 56, must set forth specific facts showing that
there is a genuine issue for trial.
Ghane v. West, 148 F.3d
979, 981 (8th Cir. 1998) (citing Burst v. Adolph Coors Co., 650
F.2d 930, 932 (8th Cir. 1981)).
In order for there to be a
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produce evidence “such that a reasonable jury could return a
verdict for the nonmoving party.”
Allison v. Flexway Trucking,
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“[w]here the unresolved issues are primarily legal rather than
factual, summary judgment is particularly appropriate.”
v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1315 (8th
Cir. 1996) (quoting Crain v. Bd. of Police Comm’rs, 920 F.2d
1402, 1405-06 (8th Cir. 1990)).
III. Uncontroverted Facts
uncontroverted and are viewed in a light most favorable to the
investigation , Cooper, an officer with the 13th Judicial
District Drug Task Force at the time, obtained search
warrants for several of the apartment buildings in the
South Roselawn Street Apartments in El Dorado, Arkansas.
(Doc. 42 at ¶ 4).
Operation Bee Swarm targeted drug activity by multiple
individuals using multiple residences located at the South
Roselawn Street Apartments.
Plaintiff’s apartment, “LL” and a vacant apartment “LJ”,
which was connected to several controlled drug buys,
including one in which the Plaintiff was later identified
as a suspect. (Doc. 42 at ¶ 5).
Cooper also obtained a FNU/LNU arrest warrant for an
unknown individual associated with these controlled drug
buys, later identified as Plaintiff.
The description in
the controlled drug buy attributed to Plaintiff in the
Probable Cause Affidavit matches the description of the
The investigation was nicknamed Operation Bee Swarm.
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(Doc. 44 at ¶ 2)
controlled buy in the Affidavit for Warrant of Arrest.
(Id. at ¶ 6).
On May 23, 2011, Cooper swore out an affidavit for Search
Warrant for building “LL” in front of Union County Circuit
Court Judge Michael R. Landers. (Doc. 41, Att. 1).
On May 23, 2011, Judge Landers issued a Search Warrant for
building “LL”. (Doc. 41, Att. 2).
Building “LL” is a one-bedroom suite and contained only one
residence. (Doc. 44 at ¶ 4).
Cooper also swore out affidavits for buildings “LJ” and
“LM”, and search warrants and search warrants returns were
also issued and executed. (Doc. 41, Atts. 1-7,9).
Plaintiff was arrested in relation to a drug raid on June
7, 2011, by Cooper, who was assisted by City of El Dorado
Police Officers Michael Blake, John Miller, and Steven
Jerry. (Doc. 42 at ¶ 4; Doc. 44 at ¶ 1).
Plaintiff was arrested in building “LL” and building “LL”
was searched. (Doc. 44 at ¶ 5).
Plaintiff contends that Cooper did not have with him at the
time of the search the search warrant for building “LL”.
Cooper contends he had the valid search warrant for
building “LL” with him at the time of search.
At the time of his arrest, Plaintiff resided at 201 South
Roselawn, building “LL” in El Dorado, Arkansas.
Plaintiff was arrested and found to be in the possession
of, among other things, a prescription bottle without his
name containing thirteen (13) Darvocet pills. (Doc. 42 at
Possession of a controlled substance without a prescription
is a Class C Felony. Ark. Code. Ann. § 5-64-403.
Plaintiff was booked into the Union County Detention Center
and charged with one (1) count of delivery of a controlled
substance, possession of a controlled substance without a
prescription, and maintaining a drug premises. (Doc. 42 at
The Search Warrant Return states that Cooper received the
search warrant on May 18, 2011, at 8:42 am and the building
searched was building “LJ” and that the single item
inventoried is “WC-E-1 A prescription bottle containing 13
Darvocet pills.” (Doc. 36, Att. 3).
A Search Warrant Return states that building “LL” was
searched and no evidence was found or taken from the
residence. (Doc. 41, Att. 3).
The Affidavit for Warrant of Arrest and the Warrant for
Arrest were for the person later identified as Anthony
Harris. (Doc. 44 at ¶ 12).
The arrest report of Plaintiff indicates the location to be
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“Building LJ, South Roselawn Street, El Dorado AR”, and
that both a search and arrest warrant were served.
narrative states “[o]n 6/7/11 at 7:10 a.m. Deputies from
the USCO, Officers from the EL (sic) Dorado Police
Department, assisted with DTF in the Search and Arrest
Warrants for Anthony D. Harris and his apartment building
LJ. Found in Harris’s possession was a prescription bottle
of 13 Darvocet pills without Harris’s name on it.
was placed into custody, and transported to the UCSO, where
he is being held for 1st appearance on 6/8/2011 at 0130
hours.” (Doc. 41, Att. 17).
The Affidavit of Probable Cause as to Anthony D. Harris, is
dated June 8, 2011, and identifies Plaintiff as the unknown
individual described in the control buy conducted on April
13, 2011, in front of building “LJ”.
further states that on June 7, 2011, search and arrest
warrants were executed for “FNU/LNU” and “his apartment
building LJ”. (Doc. 41, Att. 15).
On June 8, 2011, Plaintiff was charged with: (1) Delivery
of a Controlled Substance, (2) Maintaining a Drug Premises,
and (3) Possession of a Controlled Substances Without a
Prescription. (Doc. 41, Att. 20).
On November 3, 2011, an order of nolle pros in the case of
State of Arkansas v. Anthony D. Harris, CR-2011-378-4, was
entered. (Doc. 41, Att. 21).
investigation that led to the issuance of the search
warrants or arrests warrants. (Doc. 44 at ¶ 13).
The Police Defendants involvement in this matter began only
after the issuance of the aforementioned search and arrest
warrants. (Doc. 44 at ¶ 14).
The Police Defendants (excluding Means) only alleged
involvement in this matter was that they assisted with
Cooper in the arrest of Plaintiff. (Id. at ¶ 15).
Means only involvement in this matter is her alleged
identification of “Anthony Harris: (1) as being the person
depicted in a photograph and (2) as being the person in
Cooper’s custody sometime shortly after Plaintiff was
arrested by Cooper. (Doc. 44 at ¶ 16).
Cooper’s position is that the Search Warrant Return for
building “LL” is the one identified as being for building
Similarly, the Search Warrant Return for building
“LJ” is the one identified as being for building “LL”. The
error in the mislabeling the search warrant returns is
reflected in the erroneous reporting that Plaintiff was
arrested in and the Darvocet pills were seized from
building “LJ”, whereas Plaintiff was actually arrested and
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the contraband seized in building “LL”.
Plaintiff brings suit against defendants under § 1983 for
violations of his Fourth, Fifth, Eighth and Fourteenth Amendment
Plaintiff also brings suit under § 1985 for conspiracy
to interfere with his civil rights.
42 U.S.C. § 1983 - Individual Capacity Claims
Qualified immunity shields government officials performing
discretionary functions from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or Constitutional rights of which a reasonable person would have
“Qualified immunity protects all but the plainly incompetent or
those who knowingly violate the law.”
U.S. 335, 341 (1986).
Malley v. Briggs, 475
Law enforcement officers, as government
individual capacity unless they violate a clearly established
right of which a reasonable person would know.
Harlow, 457 U.S.
“To determine whether an official is entitled to qualified
immunity, we ask two questions: (1) whether, after viewing the
facts in the light most favorable to the party asserting the
injury, there was a deprivation of a constitutional right; and,
if so, (2) whether the right was clearly established at the time
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Vaughn v. Greene County, Arkansas, 438 F.3d 845,
850 (8th Cir. 2006).
To survive a summary judgment motion based
on qualified immunity, a plaintiff must assert a violation of a
established, and raise an issue of material fact as to whether
the defendant would have known that the conduct in question
violated the clearly established right.”
Brockinton v. The City
(citing Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir.
The initial inquiry is whether the facts as alleged
show that the officers’ conduct violated a constitutional right.
Brokinton v. City of Sherwood, Arkansas, 503 F.3d 667, 672 (8th
Cir. 2007) (citing Scott v. Harris, 550 U.S. 372, 377 (2007).
Saucier v. Katz, 533 U.S. 194, 201 (2001).
(excluding Means) violated his Fourth Amendment rights7 when they
executed a search warrant at his apartment in building “LL” with
Plaintiff does not respond to the defendants’ challenges to his Fifth,
Eighth and Fourteenth Amendment, and 42 U.S.C. § 1985 claims. Rather, in his
responses Plaintiff solely addresses allegations of violations of his Fourth
Amendment rights. (Doc. 45, 58).
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a search warrant for building “LJ”.
(Doc. 51 at 2).
The uncontroverted fact is that there was a valid search
documents erroneously indicate Plaintiff to be a resident of
building “LJ” as opposed
to “LL” neither
warrant for building “LL” invalid nor the defendants’ conduct a
violation of Plaintiff’s rights.
search was unconstitutional because the defendants did not have
in their physical possession the search warrant for building
“LL” at the time of the search8.
Plaintiff fails to cite, and
the Court does not find, any authority for the proposition that
execution renders the search unconstitutional.
Procedure does not impose an inflexible requirement of prior
notice based on the circumstances of the case9.
41[(f)] does require federal officers to serve upon the person
material obtained, . . . it does not invariably require that
this be done before the search takes place.”
Katz v. United
Plaintiff does not dispute that a valid search warrant for building “LL” had
been issued at the time of the search.
Notwithstanding the Court’s finding that the Fourth Amendment and Federal
Rules of Criminal Procedure controls the search at issue, the Court finds the
Arkansas Rule of Criminal Procedure 13.3 would permit the executing officers
flexibility in furnishing a copy of the search warrant after the search based
on the uncontroverted description that the search was a part of “raid”.
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States, 389 U.S. 347, 356 n.16 (1967); see e.g., United States
v. Woodring, 444 F.2d 749, 751 (9th Cir. 1971) (police officer
searched house after learning over police radio that a search
warrant arrived an hour and a half after search started); United
(citing United States v. Grubbs, 547 U.S. 90, 99 (2006) (holding
Procedure, controls the search and that the Fourth Amendment and
the Federal Rule of Criminal Procedure 41 do not require the
executing officers to show the warrant before conducting the
search); United States v. Hepperle, 810 F.2d 836, 839 (8th Cir.
warrant prior to commencing a search[.]”).
identifying him as a drug dealer prior to his arrest, at the
arrest scene and from a photograph shown by Cooper.
4; Doc. 53 at 1).
(Doc. 36 at
Although Means does not recall making the
identification, assuming arguendo that she did, the fact is not
material because Means would have made the identification after
the warrants had been issued (because the Police Defendants were
(Doc. 44 ¶ 14).
Contrary to Plaintiff’s contention, Means’s
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identification did not influence his arrest and therefore Means’
conduct did not violate Plaintiff’s constitutional rights.
The Court finds Plaintiff fails to show the search of his
residence in building “LL” violated his constitutional rights
and therefore the defendants are entitled to qualified immunity
on this claim.
Second, a claim of false arrest brought pursuant to § 1983
fails if the officer had probable cause to make the arrest.
Kurtz v. City of Shrewsbury, 245 F.3d 753, 758 (8th Cir. 2001).
Probable cause exists if “at the moment the arrest was made . .
knowledge and of which [the officer] had reasonably trustworthy
believing” that the person arrested committed the crime with
which he was charged.
Beck v. Ohio, 379 U.S. 89, 91 (1964).
Plaintiff claims the defendants had no probable cause to arrest
him; however, the uncontroverted fact is Plaintiff was found in
substance, without a prescription in violation of Ark. Code Ann.
Plaintiff’s possession of the contraband provided
probable cause to arrest him.
The Court finds Plaintiff cannot
show his arrest violated his constitutional rights and therefore
the defendants are entitled to qualified immunity on this claim.
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violated a constitutional right and therefore his claims against
42 U.S.C. § 1983 - Official Capacity Claims
their official capacities are deemed to be claims against the
city of El Dorado and the six counties that comprise the 13th
(8th Cir. 1998).
See Liebe v. Norton, 157 F.3d 574, 578-79
In a § 1983 action, a municipality may only be
held liable for constitutional deprivations if the deprivation
is the result of a policy or custom of the municipality.
complaint that fails to allege that a constitutional injury was
the result of an official policy or widespread custom of the
municipality is “insufficient, on its face, to state a claim”
against the municipality.
Springdale Educ. Assn. v. Springdale
Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998).
Plaintiff’s Second Amended Complaint does not allege that
any constitutional injury was the result of an official policy
or widespread custom of the cities and counties.
is thus insufficient, on its face, to state a claim against the
city and counties.
See, e.g., Sanders v. Sears, Roebuck & Co.,
The 13th Judicial District is comprised of Calhoun, Cleveland, Columbia,
Dallas, Ouachita, and Union Counties.
13th Judicial District of Arkansas,
http://www.arkprosecutor13.com/index.htm (last visited April 9, 2014).
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984 F.2d 972, 976 (8th Cir. 1993) (dismissal affirmed on grounds
that plaintiff failed to plead that defendant had a policy or
Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 735-36 (7th Cir.
complaint failed to adequately allege policies or customs on
part of corporation).
Plaintiff has not properly alleged a claim against the city
official capacities are DISMISSED WITH PREJUDICE.
42 U.S.C. § 1985 Claims
Section 1985(3) entitles a plaintiff to money damages when
two or more persons act in furtherance of a conspiracy, “whereby
another is injured in his person or property, or deprived of
having and exercising any right or privilege of a citizen of the
42 U.S.C. § 1985(3) (2005).
claim, “[t]he plaintiff must show that the conspiracy is fueled
Andrews v. Fowler, 98 F.3d 1069, 1079 (8th Cir. 1996) (quoting
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 268
Although Plaintiff alleges in his Second Amended Complaint
this Court has jurisdiction pursuant to 42 U.S.C. § 1983, he
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Moreover, there are no allegations suggesting that any acts by
Andrews v. Fowler, 98 F.3d. 1069, 1079.
Plaintiff has not properly alleged a claim under § 1985 and
therefore this claim is DISMISSED WITH PREJUDICE.
For the reasons set out above Separate Defendant William
Separate Defendants Michael Blake, John Miller, Steven Jerry and
Angela Mean’s Motion for Summary Judgment (doc. 43) is GRANTED;
Plaintiff’s motions in limine (docs. 63-64, 69) are DENIED as
Monday, April 14, 2014 at 3:00pm is CANCELED, and the jury trial
set to begin Tuesday, April 15, 2014 at 9:00am is CANCELED.
IT IS SO ORDERED this 9th day of April, 2014.
/s/ Robert T. Dawson
Honorable Robert T. Dawson
United States District Judge
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