Hutcheson v. Benton County Sheriff's Department

Filing 25

REPORT AND RECOMMENDATIONS re 19 MOTION for Summary Judgment filed by Keith Ferguson, Steve Metheney. Objections to R&R due by 7/31/2009. Signed by Honorable James R. Marschewski on July 14, 2009. (tg)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS F A Y E T T E V ILLE DIVISION R O N A LD HUTCHESON v. C ivil No. 08-5002 PLAINTIFF

SHERIFF KEITH FERGUSON; and D E PU T Y STEVE METHENEY

D E FE N D A N T S

M A G I S T R A T E JUDGE'S REPORT AND RECOMMENDATION P la in tiff, Ronald Hutcheson (hereinafter Hutcheson), brings this pro se civil rights action p u rs u a n t to 42 U.S.C. § 1983. Hutcheson contends his constitutional rights were violated when h e was arrested and charged with simultaneous possession of a firearm and drugs, possession w ith intent to sell, and communicating a false report. D e fe n d a n ts filed a motion for summary judgment (Doc. 19). To assist plaintiff in re s p o n d in g to the summary judgment motion, I entered an order (Doc. 23), directing Hutcheson to complete, sign, and return an attached questionnaire that would serve as his response to the s u m m a ry judgment motion. Hutcheson filed a timely response to the court's questionnaire (Doc. 2 4 ). The case is currently before the undersigned for the issuance of a report and

re c o m m e n d a tio n on the summary judgment motion. I . BACKGROUND Hutcheson was arrested on January 5, 2006, at 6:30 p.m. Resp. at ¶ 1. He was booked in to the Benton County Detention Center (BCDC) at 8:27 p.m. Id. at ¶ 2. He bonded out of the B C D C on January 18, 2006. Id. at ¶ 3. O n January 5, 2006, at approximately 5:31 p.m., Deputy Steve Metheney of the Benton C o u n ty Sheriff's Office was dispatched to 12926 Bryant Way for a disturbance with shots fired. -1-

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R e s p . at ¶ 4. On the way to the address, Metheney was advised by dispatch that a man, later id e n tifie d as Hutcheson, was locked in a bathroom. Id. at ¶ 5. Metheney was also advised that h e had told them a woman had shot a 38 caliber handgun at him. Id. Hutcheson had placed the call to the Benton County Sheriff's Office. Resp. at ¶ 6. He in d ic a te s Bonnie Davis had pulled a pistol on him and threatened him with it. Id. He thought s h e was going to shoot him with it so this was the reason he reported shots fired. Id. He placed th e call at about 5:30 p.m. Id. Hutcheson was living at 12926 Bryant Way in Rogers, Arkansas. Resp. at ¶ 7. He had b e e n living there about four weeks. Id. Deputy Powell and Metheney responded to the call. Defendants' Exhibit (hereinafter D e fts ' Ex.) 2 at page 1; Resp. at ¶ 8 (without knowledge to agree or disagree). Powell arrived first a n d the female was outside the home. Id. He advised Metheney to slow his response because e v e ryth in g was okay. Id. M e th e n e y arrived a few minutes later. Resp. at ¶ 9. Sgt. Conner also arrived to assist. Id. Conner advised Metheney on the radio that a man had gone out the back door. Id. Metheney located the man on Bryant Lane and he was identified as Randy Giles. Defts' E x . 2 at page 1. He stated he lived at 12926 Bryant Way but was not involved in the disturbance. Id. According to Hutcheson, Giles was involved in the altercation with the gun. Resp. at ¶ 10. Additionally, Hutcheson maintains Giles is a known methamphetamine cook and had done prison tim e for it. Id. M e th e n e y did not know what was going on so he placed Giles in cuffs and transported h im back to 12926 Bryant Way. Resp. at ¶ 11. When Metheney arrived at 12926 Bryant Way,

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P o w e ll had arrested Bonnie Davis, the female accused of shooting the gun. Defts' Ex. 2 at page 1 . Hutcheson states that Metheney talked to Davis for about forty-five minutes and never said a word to him. Resp. at ¶ 12. He states Davis was not arrested until after he was arrested and ta k e n from the house. Id. Powell had not found the gun but had found a large amount of Marijuana. Resp. at ¶ 13. Davis signed a consent to search her residence and a Miranda Warning Form. Id. at ¶ 14. Davis liv e d at 12926 Bryant Way. Id. at ¶ 15. She was advised she could withdraw consent at anytime a n d Powell stayed with her to relay that message if she chose to stop consent. Defts' Ex. 2 at p a ge 2. M e th e n e y went inside the residence where he heard Hutcheson tell Conner that the drugs w e re Bonnie's. Resp. at ¶ 17. Conner advised Metheney that the Criminal Investigation Division (C ID ) was en route to process the scene. Id. at ¶ 18. Metheney asked if the gun had been located a n d Conner said it had not. Defts' Ex. 2 at page 2. C o n n e r took Metheney into the master bedroom, located at the north east portion of the re s id e n c e , and showed him the bathroom floor where the drugs were located. Defts' Ex. 2 at page 2 ; Resp. at ¶ 20 (without knowledge to agree or disagree). Metheney observed a purple see th ro u gh backpack with what appeared to be a large zip lock bag containing Marijuana. Defts' Ex. 2 at page 2; Resp. at ¶ 21(without knowledge to agree or disagree). Metheney looked into a large piece of bedroom furniture located next to the bathroom for th e gun. Defts' Ex. 2 at page 2; Resp. at ¶ 22 (without knowledge to agree or disagree). The d o o rs were open and he could see several boxes of 38 caliber ammunition. Id.

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M e th e n e y opened a clear baggy containing the ammunition and located a hammer-less 3 8 caliber hand gun. Defts' Ex. 2 at page 2; Resp. at ¶ 23 (without knowledge to agree or d is a gre e ). It was wrapped in a plastic baggy and unloaded. Id. He did not smell any gun powder re s id u e on it. Id. Powell and Metheney asked Hutcheson why he told dispatch a shot was fired and he s ta te d because he wanted them to get there faster. Resp. at ¶ 24. He was arrested for

c o m m u n ic a tin g a false report and placed in a patrol car. Id. at ¶ 25. He also admitted to taking th e drugs into the bathroom to hold for the officers. Id. at ¶ 26. Hutcheson was transported to ja il and charged with simultaneous possession of a firearm and drugs, possession with intent to s e ll, and communicating a false report. Id. at ¶ 27. Metheney brought Davis inside the residence and asked her to complete a written s ta te m e n t. Defts' Ex. 2 at page 3; Resp. at ¶ 28 (without knowledge to agree or disagree). CID In v e s tiga to rs Newell and Rogers arrived and Metheney showed them where the marijuana was fo u n d . Defts' Ex. 2 at page 3; Resp. at ¶ 29 (without knowledge to agree or disagree). Metheney a ls o gave them a brief description of what had occurred and turned the scene over to them. Id. T h e marijuana had a gross weight of 1.15 pounds. Resp. at ¶ 30. Metheney stayed with D a v is while CID conducted a search and gathered evidence. Defts' Ex. 2 at page 3; Resp. at ¶ 31 (w ith o u t knowledge to agree or disagree). Davis never withdrew her consent to search. Id. D a v i s stated she did not know where all the drugs came from. Defts' Ex. 2 at page 3; R e s p . at ¶ 32 (without knowledge to agree or disagree). She indicated she only kept 1/4 ounce o f Marijuana for herself. Id. She indicated she smoked it to relieve pain. Id.

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D a v is was Hutcheson's girlfriend. Resp. at ¶¶ 33-34. However, because of "her dope d e a lin g life style he was moving out." Id. Giles had moved in and according to Hutcheson was d e a lin g drugs. Resp. at ¶ 35. Hutcheson maintains he had given Detective Ray Giles' vehicle lic e n s e plate number. Id. M e th e n e y did not find enough evidence for domestic violence charges against Hutcheson o r Davis. Resp. at ¶ 36. Davis admitted the gun was hers. Id. at ¶ 37. According to Metheney, Hutcheson was found in close proximity to the gun, both he and D a v is had access to the gun and drugs, they lived together, and they admitted to smoking M a riju a n a . Defts' Ex. 2 at page 4. Hutcheson, however, states he was often drug tested for D e p a rtm e n t of Transportation (DOT) purposes. Resp. at ¶ 38. While he does drink some, he s ta te s he does not do illegal drugs. Id. He states he had just passed a drug test. Id. A fte r CID was done with the investigation, Davis was transported to jail and charged with s im u lta n e o u s possession of a firearm and drugs and possession with intent to sell. Defts' Ex. 2 a t page 4; Resp. at ¶ 39 (without knowledge to agree or disagree). While en route to the jail, M e th e n e y asked dispatch to make a copy of the 911 call. Defts' Ex. 2 at page 4; Resp. at ¶ 40 (w ith o u t knowledge to agree or disagree). The prosecuting attorney did not file the communicating a false police report charge a ga in s t Hutcheson. Resp. at ¶ 41. Probable cause was found to exist for the other charges against H u tc h e s o n . Id. These charges were dismissed on July 10, 2007. Id. Prior to January 5, 2006, Hutcheson asserts he was providing information to Detective R a y of the Rogers Police Department. Resp. at ¶ 43. Hutcheson first provided information to R a y on January 1, 2006. Id. The information Hutcheson provided was about Davis dealing five

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p o u n d s or more of Marijuana. Id. Hutcheson also states he also provided information about R a n d y Giles and stated that he was going to be cooking somewhere. Id. Hutcheson states Ray w a s going to set up a buy or sting to catch Davis. Id. Davis was convicted of the crimes she was c h a rge d with on January 5, 2006. Resp. at ¶ 44. Hutcheson states he spoke with Sheriff Ferguson when he came to Hutcheson's cell. Resp. at ¶ 46. He indicates he told Sheriff Ferguson what happened and he couldn't believe it. Id. Hutcheson maintains Benton County has a policy that if you have been arrested before yo u must be guilty now. Resp. at ¶ 47. Since he had a prior record, Hutcheson states they a u to m a tic a lly believed he was guilty. Id. II. SUMMARY JUDGMENT STANDARD S u m m a ry judgment is appropriate if, after viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio C o r p ., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), the record "show[s] that th e re is no genuine issue as to any material fact and that the moving party is entitled to a ju d gm e n t as a matter of law." Fed. R. Civ. P. 56(c). "Once a party moving for summary ju d gm e n t has made a sufficient showing, the burden rests with the non-moving party to set forth s p e c ific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists." National Bank of Commerce v. Dow Chemical Co., 165 F.3d 602, 607 (8th Cir. 1999). T h e non-moving party "must do more than simply show that there is some metaphysical d o u b t as to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient e v id e n c e to support a jury verdict in their favor." National Bank, 165 F.3d at 607 (citing

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A n d e r s o n v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). "A case founded on speculation or suspicion is insufficient to survive a motion for summary ju d gm e n t." Id. (citing Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985)). III. DISCUSSION D e fe n d a n ts have moved for summary judgment. They contend Hutcheson's false arrest a n d wrongful detention claims fail as a matter of law because he was lawfully arrested and d e ta in e d . Finally, they contend Hutcheson's defamation claim does not state a claim of

c o n s titu tio n a l dimension. In Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979), the S u p re m e Court stated: T h e Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted-indeed, for e v e ry suspect released. Nor are the manifold procedural protections afforded c rim in a l defendants under the Bill of Rights "without limits." Patterson v. New Y o r k , 432 U.S. 197, 208, 97 S.Ct. 2319, 2326, 53 L.Ed.2d 281 (1977). "Due p ro c e s s does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person." Ibid. T h e Fourteenth Amendment does not protect against all deprivations of liberty. It protects only against deprivations of liberty accomplished "without due process o f law." A reasonable division of functions between law enforcement officers, c o m m ittin g magistrates, and judicial officers-all of whom may be potential d e fe n d a n ts in a § 1983 action-is entirely consistent with "due process of law." Baker, 443 U.S. at 145-46. "Probable cause exists if the totality of the facts based on reasonably trustworthy in fo rm a tio n would justify a prudent person in believing the individual arrested had committed . . . an offense." Flynn v. Brown, 395 F.3d 842, 844 (8th Cir. 2005)(internal quotation marks and c ita tio n s omitted). "[D]etermining if probable cause exists is not an exact science," Brodnicki v . City of Omaha, 73 F.3d 1261, 1265 (8th Cir. 1996), however, viewing the facts as a whole at

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th e time of Hutcheson's arrest, we believe a prudent person would have been justified in b e lie v in g Hutcheson had committed the offenses of simultaneous possession of a firearm and d ru gs , possession of a controlled substance with intent to sell, and communicating a false report. There is no evidence of a Fourth Amendment violation. Sheets v. Butera, 389 F.3d 772, 778 (8th C ir. 2004). See also Anderson v. Larson, 327 F.3d 762, 770 (8th Cir. 2003)(A claim of false a rre s t 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)("[A] false arrest claim under § 1983 fa ils as a matter of law where the officer had probable cause to make the arrest. Since the record a d e q u a te ly support the conclusion that the police officers had probable cause to arrest Kurtz for ta m p e rin g, plaintiffs' allegations of false arrest fail to establish a civil rights violation."). F u rth e rm o re , Hutcheson does not deny that proper procedures were utilized to arrest him, b o o k him into the detention center, and to file criminal charges against him. Rather, he merely c la im s he was innocent of the charges and was able to ultimately prevail and have all charges a ga in s t him dismissed. We conclude Hutcheson has stated no claim that his rights under the Due P ro c e s s Clause have been violated. N e x t, the "Constitution does not mention malicious prosecution nor do[es Hutcheson] c ite a basis for a federal action for malicious prosecution." Kurtz v. City of Shrewsbury, 245 F.3d 7 5 3 , 758 (8th Cir. 2001). The Eighth Circuit has "uniformly held that malicious prosecution by its e lf is not punishable under § 1983 because it does not allege a constitutional injury." Id. Finally, to the extent Hutcheson seeks to assert a defamation claim, that claim also fails. "[D ]efam atio n , per se, is not actionable under section 1983." Underwood v. Pritchard, 638 F.2d 6 0 , 62 (8th Cir. 1981). See also Wade v. Goodwin, 843 F.2d 1150, 1152 (8th Cir. 1988)(A cause

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o f action for damage to character or reputation is not cognizable under § 1983). The Supreme C o u rt has held that a person's interest in his reputation is not considered liberty or property p ro te c te d by the Due Process Clause. Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 4 0 5 (1976). Thus, "regardless of whom a plaintiff chooses to sue, section 1983 does not address an alleged injury to reputation." Idema v. Wager, 120 F. Supp. 2d 361, 371 (S.D.N.Y. 2000), aff'd 2 9 Fed. Appx. 676 (2d Cir. 2002). I V . CONCLUSION I therefore recommend that the motion for summary judgment (Doc. 19) be granted and th is case dismissed with prejudice. T h e parties have ten 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 o b je c tio n s may result in waiver of the right to appeal questions of fact. The parties are r e m in d e d that objections must be both timely and specific to trigger de novo review by the d is tr ic t court. D A T E D this 14th day of July 2009.

/s /

J. Marschewski

HON. JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE

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