Lewis v. Brazell et al

Filing 109

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Honorable Susan O. Hickey on September 28, 2015. Associated Cases: 4:12-cv-04100-SOH-BAB, 4:12-cv-04139-SOH-BAB (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION

DON EARL LEWIS
v.

PLAINTIFF
Civil No. 4:12-cv-04100

MARTY BRAZELL; and
ERICA CALLWOOD

DEFENDANT

DON EARL LEWIS
V.

PLAINTIFF
CIVIL NO. 4:12-cv-04139

STEPHEN WARD

DEFENDANT

FINDINGS OF FACT AND CONCLUSIONS OF LAW
This is a consolidated civil rights action filed by Plaintiff, Don Lewis, pursuant to the
provisions of 42 U.S.C. § 1983. Plaintiff proceeds in forma pauperis and is currently incarcerated
in the Arkansas Department of Correction, Ouachita River Unit in Malvern, Arkansas (“ADC”).
The Court held a bench trial on August 24, 2015 to address Plaintiff’s claims. After review of the
record and evidence presented at trial, the Court makes the following findings of fact and
conclusions of law.
I. BACKGROUND
The events at issue, occurred while Plaintiff was incarcerated in the Miller County
Detention Center (“MCDC”).

As noted above, Plaintiff is now incarcerated in the ADC.

Plaintiff’s only claim remaining before the Court is that his Fourth Amendment rights were
violated when Defendants illegally obtained his deoxyribonucleic (“DNA”) through an
unreasonable search at the MCDC. (ECF No. 10).

At the bench trial, the testimony of the following witnesses was heard: (1) Plaintiff Don
Lewis; (2) Officer Shane Johnston; (3) Defendant Erica Callwood; (4) Defendant Marty Brazell,
(5) Defendant Michael Bryan; (6) Defendant Stephen Ward; and (7) Sheriff Ron Stovall.
Plaintiff offered Exhibits 1 - 3 including: (1) Plaintiff’s Arrest and Booking Detail; (2)
Affidavit of Erica Callwood; and (3) Arkansas State Crime Laboratory Evidence Submission Form.
All of Plaintiff’s exhibits were admitted without objection.
Separate Defendants did not offer any exhibits into evidence at the trial.
II. FINDINGS OF FACT
This case revolves around a single incident occurring in the MCDC on May 10, 2012 when
Plaintiff’s DNA was collected without a warrant. Plaintiff claims this warrantless search violated
his Fourth Amendment rights. The Court’s findings of fact regarding Plaintiff’s claim are as
follows:
1.

Plaintiff was booked into the MCDC on April 24, 2012 on a charge of felony rape.
Plaintiff’s Ex. 1.

2.

Plaintiff was fingerprinted during booking but DNA was not collected during the booking
procedures. Plaintiff’s Ex. 1.

3.

Defendant Erica Callwood was the nurse at the MCDC at the time in issue.

4.

Defendant Michael Bryan was a jailer at the MCDC at the time in issue.

5.

Defendant Stephen Ward was a Corporal in the Criminal Investigation Unit at Miller
County Sheriff’s Office during the time in issue and he was assigned the investigation of
Plaintiff’s criminal rape charge.

6.

Defendant Marty Brazell was the jail administrator at the MCDC during the time in issue.
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7.

Plaintiff’s DNA was collected on May 10, 2012, sixteen (16) days after he was booked into
the MCDC.

8.

Defendant Callwood collected Plaintiff’s DNA by using a procedure known as a buccal
swab.

9.

There was no warrant or court order for the collection of Plaintiff’s DNA.

10.

Defendant Callwood received direction to take Plaintiff’s DNA from Defendant Stephen
Ward.

11.

Defendant Michael Bryan brought Plaintiff from his cell to the infirmary at the MCDC for
Defendant Callwood to take Plaintiff’s DNA.

12.

Plaintiff was not handcuffed or otherwise restrained, and Defendant Bryan and Defendant
Callwood were the only persons present while Plaintiff’s DNA was taken.

13.

Neither Defendant Callwood nor Defendant Bryan represented to Plaintiff there was a court
order to take his DNA.

14.

Plaintiff did not verbally or physically resist before, or during, Defendant Callwood
obtaining the DNA sample.

15.

The collection of Plaintiff’s DNA was ordered by Defendant Ward after the alleged victim
in Plaintiff’s criminal case provided a DNA sample.

16.

Both the victim’s DNA and Plaintiff’s DNA were sent to the Arkansas Crime Laboratory
together for analysis.

17.

Defendants Ward, Bryan, and Callwood believed they were in compliance with Arkansas
law in the warrantless taking of Plaintiff’s DNA.

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18.

Defendant Brazell did not order the collection of Plaintiff’s DNA, nor did he have any
knowledge Plaintiff’s DNA was being collected until after the collection occurred.

19.

Plaintiff claims the DNA collection derailed his criminal case, destroyed his financial and
personal life, and embarrassed him and his family.1
III. CONCLUSIONS OF LAW
Section 1983 provides a federal cause of action for the deprivation, under color of law, of

a citizen's "rights, privileges, or immunities secured by the Constitution and laws" of the United
States. In order to state a claim under 42 U.S.C. § 1983, plaintiff must allege that the defendant
acted under color of state law and that he violated a right secured by the Constitution. West v.
Atkins, 487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999).

The

deprivation must be intentional; mere negligence will not suffice to state a claim for deprivation
of a constitutional right under section 1983. Daniels v. Williams, 474 U.S. 327 (1986); Davidson
v. Cannon, 474 U.S. 344 (1986).
Initially, the Court will dismiss Michael Bryan from this case because Plaintiff failed to
state a claim against him in his Complaint or Supplement. By Order dated March 19, 2015,
Magistrate Judge Barry Bryant granted Plaintiff’s Motion to Amend his Complaint by adding
Michael Bryan as a defendant in this matter. Judge Bryant directed that Plaintiff’s Motion to
Amend be filed as a Supplement to Plaintiff’s Complaint.

(ECF No. 62).

In Plaintiff’s

Supplement he requested that all references to “unknown John Doe Defendant” in his original

Plaintiff also claims he was injured by being handcuffed, having his “arms jacked up,” and
being threatened with isolation all prior to the collection of his DNA. Because the Court finds
Plaintiff was not handcuffed or threatened in anyway prior to the collection of his DNA, these
claimed injuries are nullified.
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Complaint be replaced with the name Michael Bryan. (ECF No. 63). The Court was unable to
locate any references to an “unknown John Doe Defendant” in Plaintiff’s original Complaint. At
trial, the Court requested that Plaintiff’s counsel produce to the Court any and all references to
such John Doe Defendant. Plaintiff filed a Brief in Response to Inquiry Regarding the Claims
Pleaded Against Officer Michael Bryan on September 1, 2015. (ECF No. 108). In this Brief,
Plaintiff noted that the first reference to Michael Bryan was in his Response to Motion for
Summary Judgment on June 24, 2013. He did not point the Court to any references to an unknown
John Doe Defendant in his Complaint.
While pro se pleadings are to be construed liberally, a pro se litigant is not excused from
complying with substantive and procedural law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.
1984). Federal Rule of Civil Procedure 8(a) contains the general pleading rules and requires a
complaint to present “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiff simply failed to make any allegations against an
unknown John Doe Defendant or Defendant Michael Bryan. Accordingly, the Court must dismiss
Defendant Michael Bryan as Plaintiff has failed to state a claim against him.
The Court now sets forth its conclusions of law related to the remaining Defendants:
1.

The Court finds without merit Defendant Callwood’s assertion that no cognizable claim is
stated under the ruling of the Supreme Court in Heck v. Humphrey, 512 U.S. 477 (1994).
In Heck, the Supreme Court held that a claim for damages for "allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid" is not cognizable until "the conviction or sentence
has been reversed on direct appeal, expunged by executive order, declared invalid by a state
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tribunal authorized to make such a determination, or called into question by a federal
court's issuance of a writ of habeas corpus." Heck, 512 U.S. at 486-87. The Court noted
that if a successful claim would not demonstrate the invalidity of an outstanding criminal
judgment, it should be allowed to proceed. Id. A general exception exists, however, for
damages actions stemming from an illegal search because of doctrines such as independent
source, inevitable discovery, and harmless error. Heck, 512 U.S. at 487 n.7; see also
Simmons v. O’Brien, 77 F.3d 1093, 1095 (8th Cir. 1996). Accordingly, Plaintiff’s Fourth
Amendment claim is not barred by the holding of the Supreme Court in Heck.
2.

A section 1983 plaintiff must prove not only that the search was unlawful, but that it
caused him actual and compensable injury in order to recover compensatory damages. This
actual and compensable injury does not encompass the ‘injury’ of being convicted and
imprisoned (until his conviction has been overturned). Heck, 512 U.S. at 487 n. 7.

3.

The 2012 version of Arkansas Code Annotated § 12-12-10062 allowed for a DNA sample
to be taken from an arrestee “immediately following an arrest” for one of the enumerated
offenses in the statute. Rape was one of theses enumerated offenses. Based on the existing
facts, Plaintiff’s DNA sample was not authorized by this statute.

4.

However, the issue before the Court is not whether Defendants complied with Arkansas
law, Ark. Code Ann. § 12-12-1006, but instead, whether Defendants’ actions violated the
Constitution of the United States and more specifically the Fourth Amendment. See
Knowles v. Iowa, 525 U.S. 113, 116 (1998) (holding that a search done pursuant to state
law nonetheless violated the Fourth Amendment); United States v. Maholy, 1 F.3d 718, 721

2

The version in effect at the time Plaintiff’s DNA was taken.
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(8th Cir. 1993) (in determining the admissibility of evidence obtained by state officers the
legality of the search is resolved by Fourth Amendment analysis).
5.

The Fourth Amendment to the United States Constitution protects “personal privacy and
dignity against unwarranted intrusion by the State.” Schmerber v. California, 384 U.S.
757, 767 (1966). Specifically, the Fourth Amendment provides:
[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched and the persons or things to be
seized.
U.S. Const. amend. 4.

6.

The Fourteenth Amendment extends these Fourth Amendment protections to the states.
Burlison v. Springfield Public Schools, 708 F.3d 1034, 1039 (8th Cir. 2013).

7.

“Under the Fourth Amendment a warrantless search of the person is reasonable only if it
falls within a recognized exception to the warrant requirement.” United States v. Chartier,
772 F.3d 539, 545 (8th Cir. 2014). Recognized exceptions include searches incident to
arrest, pursuant to consent, and “when special needs, beyond the normal need for law
enforcement, make the warrant and probable cause requirement impractical,” Smook v.
Minnahaha County, 457 F.3d 806, 810 (8th Cir. 2006).

8.

The Fourth Amendment prohibits “unreasonable” searches, and “[t]he test of
reasonableness . . . requires a balancing of the need for the particular search against the
invasion of personal rights that the search entails.” Id (quoting Bell v. Wolfish, 441 U.S.
520, 559 (1979). “Fourth Amendment reasonableness is predominately an objective
inquiry. We ask whether the circumstances, viewed objectively, justify [the challenged]
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action. This approach recognizes that the Fourth Amendment regulates conduct rather than
thoughts.” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, 2080 (2011) (internal
quotation marks and citation omitted).
9.

“A search unsupported by probable cause may be reasonable when special needs; beyond
the normal need for law enforcement, make the warrant and probable-cause requirement
impracticable.” Smook, 457 F.3d at 810 (quoting Bd. of Educ. v. Earls, 536 U.S. 822, 829
(2002)); see also Ashcroft, 131 S. Ct. at 2081. In determining whether a “special needs”
situation justifies a search without individualized suspicion, “a court must undertake ‘a
fact-specific balancing of the intrusion . . . against the promotion of legitimate
governmental interests.” Smook, 457 F.3d at 810. Considerations courts may use in this
balancing analysis include, but are not limited to, whether there is an issue of discretion for
a neutral magistrate to decide, the degree of the particular intrusion, and the person’s
privacy expectations in the particular circumstance. See Maryland v. King, __ U.S. __, 133
S. Ct. 1958, 1969, 1978-79 (2013).

10.

“The need for a warrant is perhaps least when the search involves no discretion that could
properly be limited by the interpolation of a neutral magistrate between the citizen and the
law enforcement officer.” Maryland, 133 S. Ct. at 1969 (internal quotation marks and
citation omitted); see also Ashcroft, 131 S. Ct. at 2081 (describing cases in which special
needs existed).

11.

It is undisputed that “using a buccal swab on the inner tissues of a person’s cheek in order
to obtain DNA samples is a search. Virtually any intrusion into the human body, will work

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an invasion of cherished personal security that is subject to constitutional scrutiny.”
Maryland ,133 S. Ct. at 1968-69 (internal quotation marks and citations omitted).
12.

The use of a buccal swab only involves “a light touch on the inside of the cheek. . . . The
fact [that] an intrusion is negligible is of central relevance to determining reasonableness,
although it is still a search as the law defines that term.” Maryland, 133 S. Ct. 1969 (2013)
(internal quotation marks and citations omitted).

13.

The Supreme Court in Maryland, found that the warrantless collection of DNA from an
arrestee, through the use of a buccal swab, during the booking process was reasonable
under the Fourth Amendment. While this case informs the Court’s Fourth Amendment
analysis, the holding does not extend to the warrantless collection of DNA evidence from
the Plaintiff sixteen (16) days after he was booked into the detention center.

14.

The DNA swab in this case was not taken: incident to the arrest; as part of a routine
booking procedure; to be used in assisting or ensuring that the correct individual had been
arrested; or for the purpose of deciding pretrial custody issues. Instead, the DNA swab
was taken in response to a request by Corporal Ward from the Criminal Investigation Unit
of the Miller County Sheriff’s Office. Clearly, the DNA swab was taken to aide in the
criminal prosecution of the Plaintiff and to establish his guilt.

15.

“Once an individual has been arrested on probable cause for a dangerous offense that may
require detention before trial, however, his or her expectations of privacy and freedom from
police scrutiny are reduced.” Maryland, 133 S. Ct. at 1978 (internal quotation marks and
citations omitted).

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16.

At the time the DNA was taken, Plaintiff was in custody. Nothing in the record suggests
he was about to be released from custody. Plaintiff had already been in custody for sixteen
days. There were no important non-law enforcement purposes for the collection.

There

was ample time and opportunity for a warrant to be obtained to take the Plaintiff’s DNA.
The warrant requirement was not impractical under these circumstances. Thus, the special
needs exception to the Fourth Amendment warrant requirement is inapplicable.
17.

Consent is also a recognized exception to the warrant requirement. “Consensual searches
do not violate the Fourth Amendment because it is no doubt reasonable for the police to
conduct a search once they have been permitted to do so.” Florida v. Jimeno, 500 U.S.
248, 250-51 (1991) (internal quotation marks and citation omitted). Consent may be
express or implied. United States v. Williams, 521 F.3d 902, 906 (8th Cir. 2008). To
justify a search based on consent, the Defendants must prove that there was consent and
that it was voluntary. Florida v. Royer, 460 U.S. 491, 497 (1983). The question for
whether implied consent was given is “whether the [Plaintiff’s] conduct would have caused
a reasonable person to believe that he consented.” Williams, 521 F.3d at 906-07.

18.

Defendants maintain that the Plaintiff’s lack of resistence and failure to object during the
taking of the DNA sample constitutes implied consent. The Court disagrees. Plaintiff was
in custody and escorted by an officer to a facility nurse to have the DNA sample collected.
He was not asked to give his consent either verbally or in writing. Plaintiff did nothing to
manifest his consent. A reasonable person would have concluded he had no choice but to
allow the nurse to take the DNA sample. United States v. Poe, 462 F.3d 997, 1000 (8th
Cir. 2006). Under the circumstances, his lack of objection cannot be construed as implied
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consent. Cf. United States v. Hillard, 490 F.3d 635, 639 (8th Cir. 2007) (“Hillard’s silence
in the face of events taking place before him in his own residence gave the officers no
reason to believe Hillard had a superior privacy interest or to doubt Cole’s authority over
the Arden residence.”); United States v. Stapleton, 10 F.3d 582, 584 (8th Cir. 1993)
(objectively reasonable for the officer conducting the search of a vehicle to conclude he
either had all the consent that was constitutionally required, after receiving the driver’s
consent, or had the passenger defendant’s implied consent, given the defendant’s silence
during the search).
19.

Under the circumstances of this case, the collection of the DNA sample violated the Fourth
Amendment.

20.

Plaintiff’s claims against Warden Marty Brazell, however, fail as a matter of law. A claim
of deprivation of a constitutional right cannot be based on a respondeat superior theory of
liability. See Monell v. Department of Social Servs, 436 U.S. 654, 694 (1978). “[A]
supervisor is not vicariously liable under 42 U.S.C. § 1983 for an employee’s
unconstitutional activity.” White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994); see also
Whitson v. Stone County Jail, 602 F.3d 920, 928 (8th Cir. 2010) (“In a § 1983 case, an
official is only liable for his own misconduct and is not accountable for the misdeeds of
his agents under a theory such as respondeat superior or supervisor liability”) (internal
quotations omitted); Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997) (“general
responsibility for supervising the operations of a prison is insufficient to establish the
personal involvement required to support liability”). “Liability under section 1983 requires
a causal link to, and direct responsibility for, the deprivation of rights. To establish
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personal liability of the supervisory defendants, [Plaintiff] must allege specific facts of
personal involvement in, or direct responsibility for, a deprivation of his constitutional
rights.” Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007) (quoting Mayorga
v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006)). No such facts exist in this case.
Warden Brazell did not order the collection of the DNA sample or even know it was being
collected until after the fact.
21.

Plaintiff’s official capacity claims also fail as a matter of law.

Such claims are

“functionally equivalent to a suit against the employing governmental entity.” Veatch v.
Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). In other words, the official
capacity claims are treated as claims against Miller County. See Murray v. Lene, 595 F.3d
868, 873 (8th Cir. 2010). To establish Miller County’s liability under section 1983,
“plaintiff must show that a constitutional violation was committed pursuant to an official
custom, policy, or practice of the governmental entity.” Moyle v. Anderson, 571 F.3d 814,
817 (8th Cir. 2009)(citation omitted). No evidence suggests the existence of any such
custom, policy, or practice.
22.

As Plaintiff’s conviction has not been overturned or invalidated, he must establish that he
suffered “actual, compensable injury,” separate and apart from the “‘injury’ of being
convicted and imprisoned in order to recover compensatory damages. Heck, 512 U.S. at
487 n. 7. On the record before the Court, the only conceivable injury Plaintiff suffered from
the collection of the DNA evidence, was his conviction. Plaintiff has suffered no
compensable injury. His compensatory damages claims are therefore barred by Heck.

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23.

In Carey v. Piphus, 435 U.S. 247 (1978), the Supreme Court held that if a constitutional
violation exists without proof on injury that the Plaintiff was entitled to an award of
nominal damages in the amount of $1. The holding of Carey has been extended to cases
where no compensable damages are recoverable under Heck. See DePugh v. Penning, 888
F. Supp. 959, 980 (N.D. Iowa 1995). In DePugh, the Court held that even if the Plaintiff
could show no actual damages as a result of a search violative of the Fourth Amendment,
he is entitled to pursue his cause of action under section 1983 and obtain at least nominal
damages and potentially punitive damages. Id.

24.

Having found a violation of the Fourth Amendment, the Court finds the Plaintiff is entitled
to an award of nominal damages in the amount of $1.00.

25.

The Court finds no basis for the recovery of punitive damages. An award of punitive
damages is appropriate only when the Defendants’ “conduct is shown to be motivated by
evil motive or intent, or when it involves reckless or callous indifference to the federally
protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). The facts establish that
Defendant Ward believed he was complying with Arkansas law and that a search warrant
was not necessary. A misunderstanding of the law does not equate to the type of conduct
necessary to support an award of punitive damages. There is even less support for an
award of punitive damages against Defendant Callwood. She was merely acting pursuant
to the orders of Stephen Ward.
III. CONCLUSION
Based upon the above findings of fact and conclusions of law, the Court finds that:

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A. All official capacity claims are subject to dismissal and all individual capacity claims
against Warden Brazell and Michael Bryan3 are subject to dismissal. Plaintiff’s individual capacity
claims against Defendant Michael Bryan will be dismissed without prejudice, and all of Plaintiff’s
official capacity claims and Plaintiff’s individual capacity claims against Defendant Marty Brazell
will be dismissed with prejudice; and
B. Plaintiff is entitled to a judgment against Defendants Stephen Ward and Erica Callwood
and an award of nominal damages in the amount of $1.00 against each Defendant.
A judgment of even date consistent with this opinion shall issue.
DATED, this 28th day of September 2015.

/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

As explained above, Plaintiff failed to state any claims against Michael Bryan in his Complaint
or Supplement.

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