Silpot v. Napier et al

Filing 8

ORDER re 1 Complaint Referred (42:1983) filed by Glenford Olando Silpot. Signed by Honorable P. K. Holmes, III on October 26, 2016. Plaintiff's claims against Separate Defendants Robert McClure and Judge Taber are DISMISSED WITH PREJUDICE, this case is DISMISSED WITHOUT PREJUDICE.(hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
GLENFORD OLANDO
SILPOT
v.

PLAINTIFF
Case No. 2:16-CV-02034

GREG NAPIER, Fort Smith
Police Department,
Narcotics Unit; ERIC
FAIRLESS, Detective, Fort
Smith Police Department,
Narcotics Unit; FORT
SMITH POLICE
DEPARTMENT, Narcotics
Department; ROBERT
McCLURE, Prosecutor for
Sebastian County; JUDGE
TABER, Sebastian County,
Criminal Division

DEFENDANTS

ORDER
This is a civil rights action filed by the Plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff
proceeds pro se and in forma pauperis (IFP).
Pursuant to 28 U.S.C. § 1915(e)(2), the Court has the obligation to screen any complaint
in which an individual has sought leave to proceed IFP. 28 U.S.C. § 1915(e)(2). On review, the
Court is to dismiss the complaint, or any portion of the complaint, that is frivolous, malicious, or
fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
I.

BACKGROUND
Plaintiff filed his complaint on February 24, 2016. (Doc. 1, p. 2). At the time he filed this

action, Plaintiff was incarcerated at the Sebastian County Jail in Fort Smith, Arkansas. (Doc. 1, p.

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2). Plaintiff named as defendants in this case the following individuals: Greg Napier, a policeman
for the Fort Smith Police Department’s narcotics unit; Detective Eric Fairless, a detective for the
Fort Smith Police Department’s narcotics unit; Judge Taber, a Circuit Judge for Sebastian County,
criminal division; Robert McClure, a prosecuting attorney in Sebastian County; and Fort Smith
Police Department, narcotics department. (Doc. 1, pp. 2-3).
In his complaint, Plaintiff alleges that his Fourth Amendment constitutional rights have
been violated by the execution of a fraudulent search warrant dated October 8, 2015. (Doc.1, p.
12). Plaintiff alleges that the search warrant was not signed by judge order and was not in relation
to the items seized from his residence. (Doc. 1, p. 12). Specifically, the warrant was signed for
another residence on the same street and then later fraudulently duplicated. (Doc. 1, p. 16). The
duplicated search warrant did not pertain to the Plaintiff’s address, 2716 Neis St, Fort Smith,
Arkansas 72906. (Doc. 1, p. 16).
With respect to Defendant Detective Greg Napier, Plaintiff alleges that the Defendant
issued a false arrest warrant that contained false accusations, which led to the false arrest of the
Plaintiff. (Doc. 1, p. 4). During this allegedly illegal arrest, the Defendant used excessive force
when he stepped on the Plaintiff’s back and “excessive hand cuff Plaintiff.” (Doc. 1, p. 4).
Plaintiff alleges that because this Defendant illegally searched his residence, he lost everything of
value that was within that residence. (Doc. 1, p. 5). Plaintiff further alleges that the Defendant
issued to him, while in custody at the Sebastian County Jail, a duplicate search warrant dated
October 8, 2015, sworn by Detective Eric Fairless. (Doc. 1, p. 16). This duplicate search warrant
did not pertain to the Plaintiff’s address, 2716 Neis St., Fort Smith, Arkansas 72906. (Doc. 1, p.
16). Plaintiff alleges that Detective Napier attached an unsigned evidence sheet to this duplicated
search warrant in order to cover up illegal search and seizure procedures used by the Defendant.

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(Doc. 1, p. 19).
With respect to Defendant Detective Eric Fairless, Plaintiff alleges that the Defendant
swore to a fraudulent search warrant dated October 8, 2015. (Doc. 1, p. 1). On this date, the
Defendant gave a sworn affidavit to Sebastian County Criminal Judge Taber containing false
accusations about the Plaintiff and his residence. (Doc. 1, p. 6). As a result of the Defendants’
sworn oath, Sebastian County Narcotics unit executed an illegal search warrant, with respect to
the Plaintiff’s residence, which resulted in loss of Plaintiff’s residence and other property illegally
seized. (Doc. 1, p. 6). Plaintiff further alleges, that this Defendant’s sworn testimony led to false
charges being filed against him and a false arrest. (Doc. 1, p. 6).
Regarding Defendant Judge Taber, the Plaintiff alleges that the Defendant issued an illegal
search warrant to Detective Eric Fairless and later Greg Napier dated October 8, 2015. (Doc. 1,
pp. 6-7). Each of these warrants contained inconsistences with respect to the Plaintiff’s residence
address and the evidence to be seized. (Doc. 1, p. 7). This resulted in the Plaintiff being falsely
imprisoned, at the Sebastian County Jail, for four (4) months. (Doc. 1, p. 7).
As for the Defendant Fort Smith Police Department’s narcotics unit, the Plaintiff alleges
that the Defendant was negligent in accompanying Greg Napier and Detective Eric Fairless in
carrying out an illegal search of the Plaintiff’s residence. (Doc. 1, p. 8). Detective Eric Fairless
and Greg Napier are both members of the Fort Smith Police Department’s narcotics department.
Finally, with respect to Defendant Robert McClure, prosecuting attorney, Plaintiff alleges
the Defendant had prior knowledge of the two illegal search warrants and the inconsistences they
contained. (Doc. 1, p. 9). Plaintiff further alleges that Defendant Robert McClure failed to produce
any physical evidence to support his claim that Plaintiff was in control of more than 2 grams but
less than 10 grams of a schedule II controlled substance. (Doc. 1, p. 8). Plaintiff alleges Defendant

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Robert McClure failed to respond to Plaintiff’s discovery requests for evidence in support of the
allegations against him. (Doc. 1, p. 8). Lastly, Plaintiff alleges that the Defendant was negligent
in falsely imprisoning the Plaintiff. (Doc. 1, p. 9).
Plaintiff also alleges that his constitutional rights have been violated by an illegal
deprivation of his liberty. Plaintiff states that due to the execution of an illegal search warrant, by
Detectives Eric Fairless and Greg Napier, which lead to an illegal arrest, the Plaintiff’s probation
was revoked. (Doc. 1, p. 4). The Plaintiff alleges that due to his false imprisonment, he lost
everything of value, including his residence, everything inside his residence, and his vehicle. (Doc.
1, p. 6).
Plaintiff proceeds against all Defendants in both their official and personal capacities. As
relief, Plaintiff seeks “both mental/physical damage[s]. There’s no State [of] Arkansas evidence
[produced by the] laboratory results on 10-7-15. 10-8-15, charges [for] two search warrants [and]
illegal residence invasion. [Resulting in,] Confinement, residence/ vehicle gone.” (Doc. 1, p. 10).
From this the Court infers that the Plaintiff seeks compensatory damages for all seized
property inside the residence, for the residence, and for mental and physical damage caused due to
the illegal search and arrest. The Court further infers that Plaintiff is requesting that all charges as
the result of the illegal search be dropped due to a lack of evidence produced by the State.
II.

ANALYSIS
A.

Personal Capacity Claims

Plaintiff’s complaint against prosecuting attorney Robert McClure is subject to dismissal.
As a prosecuting attorney, Defendant Robert McClure is immune from suit. A prosecutor is
absolutely immune from suit for any conduct undertaken in his or her role as advocate for the state.
Imbler v. Pachtman, 424 U.S. 409 (1976).

Absolute prosecutorial immunity protects the

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prosecutor as a key participant in the criminal justice process, such that the prosecutor need not be
inhibited from performing his or her functions by a constant fear of retaliation. Id. at 428. This is
true no matter the underlying motive of the prosecutor or the propriety of the actions taken. Myers
v. Morris, 810 F.2d. 1437, 1446 (8th Cir. 1987) (finding that allegations that a prosecutor
proceeded with a prosecution based on an improper motive did not defeat absolute prosecutorial
immunity); Schenk v. Chavis, 461 F.3d 1043, 1046 (8th Cir. 2006) (“Actions connected with
initiation of prosecution, even if those actions are patently improper are immunized.” (internal
quotation omitted)).
Plaintiff’s complaint against Judge Taber is subject to dismissal. A judge is subject to
absolute immunity when acting in his judicial capacity. "Judges performing judicial functions
enjoy absolute immunity from ' 1983 liability." Robinson v. Freeze, 15 F.3d 107, 108 (8th Cir.
1994). AA judge will not be deprived of immunity because the action he took was in error, was
done maliciously, or was in excess of [his] authority.@ Stump v. Sparkman, 435 U.S. 349, 356-57,
98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978). Judicial immunity is overcome in two situations: (1) if
the challenged act is non-judicial; and (2) if the action, although judicial in nature, was taken in
the complete absence of all jurisdiction. Mireles, 502 U.S. at 11. It is clear from the allegations
of the complaint that neither situation applies here.
Plaintiff’s complaint against Fort Smith Police Department’s narcotics department is subject
to dismissal. The Fort Smith Police Department is not a “person” or a legal entity subject to suit
under §1983. See e.g., Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (A[s]heriff=s
departments and police departments are not usually considered legal entities subject to suit@);
Powell v. Cook County Jail, 814 F. Supp. 757 (N.D. Ill. 1993) (jail not subject to suit); Marsden
v. Fed. Bureau of Prisons, 856 F. Supp. 832, 836 (S.D.N.Y. 1994) (Ajail is not an entity that is
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amenable to suit@); In re Scott County Master Docket, 672 F. Supp. 1152, 1163 n. 1 (D. Minn.
1987) (sheriff=s department is not a legal entity subject to suit), aff=d, Myers v. Scott County, 863
F.2d 1017 (8th Cir. 1989).
Plaintiff alleges the false accusations lead to his incarceration on a probation violation. He
also requests the dismissal of pending charges against him. (Doc. 1, pp., 11, 15). Thus, Plaintiff
clearly challenges the fact and duration of his confinement. Plaintiff may not use the civil rights
statutes as substitute for habeas corpus relief. In other words, he cannot seek declaratory or
injunctive relief relating to his confinement and/or conviction. See e.g., Edwards v. Balisok, 520
U.S. 641, 648 (1997); Heck v. Humphrey, 512 U.S. 477, 483-89 (1994); Preiser v. Rodriquez, 411
U.S. 475, 500 (1973) (habeas corpus is the exclusive remedy for prisoners attacking the validity
of their conviction or confinement).
To the extent Plaintiff‘s statement regarding mental and emotional damages could be
construed as a claim for damages from false arrest or illegal search and seizure, his claims are
premature at this time. A § 1983 claim that would necessarily imply the invalidity of his
confinement is premature if the confinement is not first called into question by the appropriate
state or federal remedy. Heck, 512 U.S. at 486–87; see also Newmy v. Johnson, 758 F.3d 1008
(8th Cir. 2014) (holding that Heck applies to section 1983 challenges to parole revocations
regardless if the plaintiff remains incarcerated); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995)
(the plaintiff’s § 1983 claim for denial of parole was dismissed because the plaintiff did not first
challenge his continued confinement through the appropriate state or federal remedies). Here,
Plaintiff’s pending methamphetamine charges and probation revocation are based upon evidence
gathered by the allegedly illegal search and seizure; therefore, his § 1983 claim would necessarily
imply the invalidity of his confinement. See e.g. Moore v. Sims, 200 F.3d 1170, 1172 (8th Cir.
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2000) (when Plaintiff was convicted of drug possession, his § 1983 claim that the drugs were
“planted” by officers was barred by Heck, but his claim that his initial stop and later detention at a
detoxification center were without probable cause could proceed). In the event Plaintiff’s pending
charges do not result in a conviction, or his conviction is reversed on appeal, he could proceed
with a § 1983 claim for false arrest and illegal search and seizure at that time.
Further, pursuant to Younger v. Harris, 401 U.S. 37 (1971), federal courts are required to
abstain from hearing cases when “(1) there is an ongoing state judicial proceeding which (2)
implicates important state interests, and when (3) that proceeding affords an adequate opportunity
to raise the federal questions presented.” Norwood v. Dickey, 409 F.3d 901, 903 (8th Cir. 2005)
(citing Fuller v. Ulland, 76 F.3d 957, 959 (8th Cir. 1996)). Ongoing state criminal proceedings
implicate the important state interest of enforcing state criminal law, and constitutional claims
relating to that proceeding should be raised there. Meador v. Paulson, 385 Fed. App’x 613 (8th
Cir. 2010); see also Gillette v. N. Dakota Disc. Bd. Counsel, 610 F.3d 1045, 1046 (8th Cir. 2010)
(“federal courts may not enjoin pending state court criminal proceedings absent a showing of bad
faith, harassment, or any other unusual circumstance that would call for equitable relief.”) (internal
quotations omitted)). Based on Plaintiff’s complaint, there is an ongoing state criminal proceeding
against him, and he has not made any allegation that could be construed as exceptions to the
Younger abstention doctrine. He must, therefore, raise his claim of illegal search and seizure in
his state court criminal proceeding.
Plaintiff failed to state a cognizable claim against Defendant Napier for excessive force
during arrest. Plaintiff alleges only that Defendant Napier stepped on his back and “excessive
hand cuff Plaintiff.” “An ‘actual injury’ must be shown to support an excessive force claim under
the Fourth Amendment.” Hanig v. Lee, 415 F.3d 822, 824 (8th Cir. 2005) (quoting Dawkins v.

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Graham, 50 F.3d 532, 535 (8th Cir. 1995)). “For the application of handcuffs to amount to
excessive force, there must be something beyond minor injuries.” Id. (citing Crumley v. City of St.
Paul, 324 F.3d 1003, 1008 (8th Cir. 2003)). Plaintiff alleged no actual injuries from Napier’s
actions during his arrest.
Finally, Plaintiff failed to state a cognizable claim under § 1983 for his alleged property
loss.

Even if the deprivation of his property was intentional, Plaintiff has adequate post-

deprivation remedies. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional deprivation
of property does not violate due process when meaningful post-deprivation remedy is available);
Barnett v. Centoni, 31 F.3d 813 (9th Cir. 1994) (negligent or intentional deprivation of prisoner's
property fails to state claim under § 1983 if state has adequate post-deprivation remedy); Elliot v.
Hurst, 307 Ark. 134, 817 S.W.2d 877, 880 (1991) (cause of action for conversion lies where
distinct act of dominion is exerted over property in denial of owner's right). Accordingly, because
Plaintiff could seek redress in Arkansas state courts for his claim of lost property, he has no claim
pursuant to § 1983 in this regard.
B.

Official Capacity Claims

Under ' 1983, a defendant may be sued in either his individual capacity, or in his official
capacity, or in both. In Gorman v. Bartch, the Eighth Circuit Court of Appeals (“Eighth Circuit”)
discussed the distinction between individual and official capacity suits. As explained by the
Gorman case:
Claims against government actors in their individual capacities differ from those in
their official capacities as to the type of conduct that is actionable and as to the type
of defense that is available. See Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116
L.Ed.2d 301 (1991). Claims against individuals in their official capacities are
equivalent to claims against the entity for which they work; they require proof that
a policy or custom of the entity violated the plaintiff's rights, and the only type of
immunity available is one belonging to the entity itself. Id. 502 U.S. at 24–27, 112

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S.Ct. at 361–62 (1991). Personal capacity claims, on the other hand, are those
which allege personal liability for individual actions by officials in the course of
their duties; these claims do not require proof of any policy and qualified immunity
may be raised as a defense. Id. 502 U.S. at 25–27, 112 S.Ct. at 362.
Gorman, 152 F.3d 907, 914 (8th Cir. 1998). “[R]igorous standards of culpability and causation
must be applied to ensure that the [county] is not held liable solely for the actions of its employee”
in cases where a plaintiff claims a county has caused an employee to violate the plaintiff’s
constitutional rights. Board of County Commissioners, Oklahoma v. Brown, 520 U.S. 397, 405
(1997).
Plaintiff did not make any allegations concerning a custom or policy of Sebastian County
or Fort Smith Police Department’s narcotics division which violated his rights He therefore failed
to state a cognizable official capacity claim.
IT IS THEREFORE ORDERED that Plaintiff’s claims against Separate Defendants Robert
McClure and Judge Taber are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s complaint (Doc. 1) is otherwise DISMISSED
WITHOUT PREJUDICE.
Judgment will be entered accordingly.
IT IS SO ORDERED this 26th day of October, 2016.

/s/P. K. Holmes, III
P. K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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