Dotson v. Morris et al
REPORT AND RECOMMENDATIONS re 12 MOTION to Dismiss filed by William Bell, Joey Davis, Butch Morris, Justin Thorthen. Objections to R&R due by 1/24/2014. Signed by Honorable Barry A. Bryant on January 6, 2014. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CIVIL NO. 4:13-cv-04020
SHERIFF BUTCH MORRIS;
JOEY DAVIS; WILLIAM BELL;
and JUSTIN THORTHEN
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This is a civil rights action filed by the Plaintiff, Travails Dotson, pursuant to 42 U.S.C.
§ 1983. Plaintiff is currently incarcerated at the Arkansas Department of Corrections Cummins
Unit in Grady, Arkansas. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the
Honorable Susan O. Hickey, United States District Judge, referred this case to the undersigned for
the purpose of making a report and recommendation.
Currently before the Court is Defendants’ Motion to Dismiss. ECF No. 12. Plaintiff did
not respond. After careful consideration the Court makes the following Report and
Plaintiff filed his Complaint on February 14, 2013. ECF No. 1. Plaintiff names Sheriff
Butch Morris, Deputy Joey Davis, Deputy William Bell, and Deputy Justin Thorthen all from the
Howard County Sheriff’s Office as Defendants in this matter. ECF No. 1. pp.1-2. Plaintiff named
all Defendants in both their official and individual capacities. ECF No. 1, p. 2.
In his Complaint, Plaintiff alleges “the police” came to his house on April 11, 2012 and
arrested him without a warrant. ECF No. 1, p. 4. Plaintiff further alleges that while he was being
booked into jail the “officers” illegally searched his home and found drugs and a firearm. ECF No.
1, p. 4. In an affidavit attached to his Complaint, Plaintiff identifies Defendant Davis as the officer
that arrested him and searched his house without a warrant or Plaintiff’s consent. ECF No. 1, p.
Plaintiff subsequently filed a Memorandum Brief in Support of his Complaint (“Brief”).
ECF No. 7. Plaintiff attached many exhibits to this Brief and also incorporated the vast majority
of the contents of those exhibits into the body of his Brief.1 In his Brief, which the Court construes
as a supplement to his Complaint, Plaintiff alleges: (1) there was no evidence to convict him of
“possession of a controlled substance to whit delivery” or to support his firearm charge (ECF No.
7, p. 2); (2) Defendants violated his constitutional rights by falsely imprisoning him, committing
perjury, and conspiring against him (ECF No. 7, p. 3); (3) no warrant was issued on April 11, 2012
sanctioning the arrest of Plaintiff (ECF No. 7, p. 4); (4) Plaintiff was arrested for domestic batter
and while he was in jail his wife “made statement’s against [him] (ECF No. 7, p. 5); (5) Defendants
did not have a warrant to open and search Plaintiff’s safe or his home (ECF No. 7, p. 4); (6)
Plaintiff’s wife, Nikki Dottson (“Dotson”), gave Defendant Davis the key to Plaintiff’s safe and
using the contents of the safe “charged [Plaintiff] with “possession of a controlled substance with
purpose to deliver” and the firearm charge (ECF No. 7, p. 5); and (7) Plaintiff has a defense to the
As Plaintiff attached these exhibits to the Brief and also incorporated them into the
Brief, the Court will consider such exhibits on this Motion to Dismiss. See Mattes v. ABC
Plastics, Inc., 323 F.3d 695, 697, n. 4 (8th Cir. 2003) (“in considering a motion to dismiss, the
district court may sometimes consider materials outside the pleadings, such as materials that are
necessarily embraced by the pleadings and exhibits attached to the complaint”).
firearm charge and the intent to deliver charge (ECF No. 7, p. 7).
Plaintiff also attached to his Brief investigation reports and statements from the officers
involved and from Dotson. These reports and statements contained information regarding the
domestic battery allegation Dotson made against Plaintiff, Dotson’s signed consent to search the
home she shared with Plaintiff, and the officer’s reports detailing the search. ECF No. 7-2.
Defendants filed their Motion to Dismiss on June 12, 2013. ECF No. 12. In this Motion,
Defendants argues (1) Plaintiff’s claims should be dismissed because they are barred by Heck v.
Humphrey, 512 U.S. 477 (1994); (2) Plaintiff’s claim should be dismissed even if they were not
barred by Heck because the statements made by Plaintiff in his Brief and the exhibits attached to
his Brief show that Defendants had probable cause to arrest Plaintiff and had consent to search his
home; and (3) Plaintiff’s claims should be dismissed because he failed to allege specific facts
against specific Defendants to support his claims. ECF No. 12.
Rule 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). “In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6), ‘a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.’” Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S.
at 678. While the Court will liberally construe a pro se plaintiff’s complaint, the plaintiff must
allege sufficient facts to support their claims. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
Defendants first argue Plaintiff’s claims should be dismissed because they are barred by Heck
v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held:
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.
A claim for damages bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under § 1983.
Heck, 512 U.S. at 486–87. Here, Plaintiff makes multiple claims regarding what he believes to
be an invalid arrest, conviction, and incarceration. Further, Plaintiff did not assert that his criminal
conviction has been set aside or otherwise held invalid. A section 1983 claim that would
necessarily imply the invalidity of a conviction is premature. Id. Thus, Plaintiff’s claims regarding
the illegality of his arrest, conviction, and incarceration fail as a matter of law.
Furthermore, Plaintiff may not use the civil rights statutes as a substitute for habeas corpus
relief. In other words, he cannot seek declaratory or injunctive relief relating to his confinement
and/or conviction through section 1983. 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 sole federal remedy for prisoners attacking the validity of their conviction
Accordingly, Plaintiff’s claims against Defendants relating to a lack of evidence in his
criminal case, false imprisonment, perjury by investigating officers in his criminal case, conspiracy
by investigating officers in his criminal case, and defenses to his criminal charges, all fail as a matter
Plaintiff’s claim of an unlawful search of his home, however, is not barred by Heck. While
typically a challenge to one’s criminal conviction is not a cognizable claim pursuant to section 1983
unless the criminal conviction has been overturned, a damage suit for an unreasonable search may
proceed even if the challenged search produced evidence that was used against the plaintiff in his
still-outstanding criminal conviction. Heck v. Humphrey, 512 U.S. 477, 480 n.7 (1994).
Failure to state a claim
Defendants next argue that even if Plaintiff’s claims are not barred by Heck the exhibits and
factual allegations contained in Plaintiff’s Brief negate any claim of illegal search Plaintiff has
Plaintiff premises his illegal search claim on the fact that Defendants searched his home
without a warrant and without his consent. Plaintiff then, however, proceeds to make factual
allegations and provide documentary evidence showing that Dotson, his wife, consented to the search
of the home they shared.
“Generally, the Fourth Amendment requires that a warrant be issued by a neutral magistrate
on probable cause before an item can be searched or seized. There are, however, a few exceptions
to the warrant requirement.” U.S. v. James, 353 F.3d 606, 613 (8th Cir. 2003) (internal citations
As Plaintiff’ illegal search claim is the only claim not barred by Heck, it is the only claim
the Court need address with regard to this argument by Defendant.
omitted). Consent to search is one of those exceptions. Schneckloth v. Bustamonte, 412 U.S. 218
(1973). Further, consent may be given by the suspect himself or by anyone who has “common
authority over, or sufficient relations to, the item to be searched.” James, 353 F.3d at 613 (citing
United States v. Matlock, 415 U.S. 164, 171 (1974)). “Common authority is a function of mutual
use, joint access, and control, and is a question of fact.” Id. (citing United States v. Bradley, 869
F.3d 417, 419 (8th Cir. 1989); United States v. Baswell, 792 F.2d 755, 758 (8th Cir. 1986)). It is
well recognized that a spouse or co-tenant of a premises has common authority over the premises.
See e.g., U.S. v. Amratiel, 622 F.3d 914, 916 (8th Cir. 2010) (wife had common authority over home
she shared with husband in order to provide valid consent to search); United States v. Nichols, 574
F.3d 633, 636 (8th Cir. 2009) (a suspects girlfriend who had unrestricted access to the premises for
three months had common authority over the premises); see also United States v. Jones, 193 F.3d
948, 950 (8th Cir. 1999) (“It is well established that an adult co-occupant of a residence may consent
to a search.”); United States v. Duran,
957 F.2d 499, 505 (7th Cir. 1992) (“one spouse
presumptively has authority to consent to a search of all areas of the homestead.”).
While it is possible for a spouse to maintain exclusive control over some private areas in the
home, such as a locked safe, the searching parties must have had a reason to know the area or
container was off-limits to the consenting spouse. See Amratiel, 622 F.3d at 917 (citing U.S. v.
Almeida-Perez, 549 F.3d 1162, 1172 (8th Cir. 2008)). In Amratiel, the court found a wife’s consent
to a search of the home and gun safe she shared with her husband to be valid even though she first
had to retrieve the safe’s keys from her detained husband to unlock it for the searching officers. Id.
Here, Plaintiff concedes that Dotson gave Defendants consent to search their home. Plaintiff also
attaches documents and alleges in his Brief that Dotson told Defendants there were drugs in the safe,
and either gave Defendants the key to unlock the safe or used the key to unlock the safe for
Defendants to search. These allegations by Plaintiff clearly show that Dotson knew of the contents
of the safe and was in possession of the keys to unlock the safe. The Court finds, based on the facts
alleged by Plaintiff, Defendants were reasonable in their belief that Dotson had common authority
to provide valid consent to search not only the home she shared with Plaintiff but also the locked
Accordingly, considering the facts as presented by Plaintiff, his claim of an illegal search of
his home fails as a matter of law.3
Accordingly, I recommend Defendant’s Motion to Dismiss (ECF No. 12) be GRANTED.
Plaintiff’s Complaint should be dismissed with prejudice.
The Plaintiff has fourteen days from receipt of the Report and Recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. Plaintiff is reminded
that objections must be both timely and specific to trigger de novo review by the district
DATED this 6th day of January 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
The Court need not address Defendants final argument as none of Plaintiff’s claims
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