Egziabher v. Duell
ORDER ADOPTING 31 REPORT AND RECOMMENDATIONS and granting 20 Motion to Dismiss for Failure to State a Claim. Signed by Honorable Jimm Larry Hendren on March 16, 2012. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
ASSEFA GABREL EGZIABHER, JR.
Civil No. 11-5088
OFFICER PAT PARKS; and
DETECTIVE GREG LOVETT
O R D E R
NOW on this 16th day of March 2012, comes on for consideration
the Report and Recommendation of the Magistrate Judge (Doc. 31) and
plaintiff’s objection thereto (Doc. 32). The Court, being well and
sufficiently advised, finds and orders as follows:
Plaintiff is proceeding pro se in this case.
this lawsuit on April 5, 2011, against Charles Duell, Washington
Fayetteville Police Department; and Detective Greg Lovett.
Plaintiff was arrested without a warrant on February 24, 2010,
and charged by a felony information on April 21, 2010, with
possession of drug paraphernalia with the intent to manufacture in
violation of Ark. Code Ann. 5-64-403.2
The Court previously dismissed Charles Duell from this
case because he is immune from suit. See Order filed October 17,
2011 (Doc. 27).
This section was rewritten in 2011.
See Acts 2011, No.
determined that there was insufficient evidence for trial and
entered an Order for Nolle Prosequi.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983
alleging that there was a lack of probable cause for his arrest.
Defendant Parks filed his answer to the complaint on
October 4, 2011.
On October 10, 2011, Defendant Parks filed a motion to
dismiss the complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure.
This matter was referred to the Magistrate Judge who
filed her Report and Recommendation on February 29, 2012, in which
she found that the record adequately supported the conclusion that
there was probable cause for plaintiff’s arrest and, accordingly,
recommended that the Court dismiss plaintiff’s case.
As set forth in Fed. R. Civ. P. 12(b), “[e]very defense
to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required.”
Further, a party may assert certain defenses by motion,
including the defense of failure to state a claim upon which relief
can be granted, as provided by Fed. R. Civ. P. 12(b)(6).
A motion asserting a defense under 12(b)(6), however, “must be
made before pleading if a responsive pleading is allowed. In this
case, defendant filed his answer on October 4 and asserted the
defense of failure to state a claim upon which relief can be
Once defendant filed an answer to the complaint, he
“technically” cannot file a Rule 12(b)(6) motion to dismiss.
Westcott v. Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).
Rule 12(c) provides that “[a]fter the pleadings are closed
. . .
a party may move for judgment on the pleadings.”
The distinction between a Rule 12(b)(6) motion and a Rule
12(c) motion is “purely formal.”
Westcott, 901 F.2d at 1488.
Indeed, the standard of review under a Rule 12(b)(6) motion and a
Rule 12(c) motion are the same, i.e., the Court must assume that
well-pleaded factual allegations in the complaint are true and
construe the complaint, and all reasonable inferences arising
therefrom, most favorably to the pleader.
See Noble Sys. Corp. v.
Alorica Cent., LLC, 543 F.3d 978, 981 (8th Cir. 2008).
The Magistrate Judge analyzed the motion brought by defendant
as a Rule 12(b)(6) motion.
Although, as noted, the motion should
have been made as a Rule 12(c) motion, the distinction is formal
only, and the Magistrate Judge applied the correct standard of
Accordingly, the Court will treat the motion as a Rule
12(c) motion for judgment on the pleadings and deal with it as
In reviewing the factual allegations, the Magistrate
Judge pointed to the following facts that led up to plaintiff’s
the police received complaints about a man attempting to
manufacture methamphetamine at the apartment of Charity Gore;
the police went to the apartment and found a pile of
men’s clothing along with items commonly used to manufacture
Ms. Gore identified plaintiff as the owner of the drug
while the police were talking to Ms. Gore, she received
a call from plaintiff and Ms. Gore stated that plaintiff told her
he was close by and “not to say anything” to the police.
Based on these facts, the Magistrate Judge found that the
paraphernalia with the intent to manufacture.
Magistrate Judge recommended that the Court grant Officer Parks’
motion to dismiss and to sua sponte dismiss defendant Greg Lovett
as plaintiff’s allegations against Parks are the same as against
The Magistrate Judge properly considered certain
additional documents in reviewing the motion to dismiss because
such documents were public records from plaintiff’s criminal case
that were submitted by him as part of his complaint. See Noble
Sys. Corp., 543 F.3d at 982.
Plaintiff has objected to the Report and Recommendation.
allegations that Officer Parks did not have probable cause to
arrest him because he was absent at the time of the seizure of the
drug paraphernalia, there were no written statements made by the
neighbor about his suspected drug manufacturing, no recorded phone
calls and the police did not arrest Ms. Gore.
“A warrantless arrest is reasonable under the Fourth
Amendment where it is support by probable cause.”
Bernini v. City
of St. Paul, 665 F.3d 997, 1003 (8th Cir. 2012) (internal citation
“Probable cause exists when the facts and circumstances
within an officer’s knowledge are sufficient to lead a reasonable
person of reasonable caution to believe that the suspect has
committed or is committing a crime.”
Id. (internal citation
Plaintiff has cited no authority for his proposition that, to
have probable cause, a police officer must personally witness a
violation of the law4, or that there must be written statements or
recorded phone calls to support the belief that a person has
committed or is committing a crime.
The Court notes that under Arkansas Rule of Criminal
Procedure 4.1, a police officer may arrest a person without a
warrant if the officer has reasonable cause to believe that such
person has committed a felony. The felony does not have to occur
in the officer’s presence.
Here, plaintiff does not dispute the fact that the police
received a complaint that a man at Ms. Gore’s apartment was
attempting to manufacture methamphetamine; that Ms. Gore identified
the paraphernalia at her apartment as belonging to plaintiff; and
that Ms. Gore told the police that plaintiff called her and told
her “not to say anything” to the police.
The Court finds that, even assuming plaintiff’s allegations
are true and drawing all reasonable inferences in his favor, no
reasonable juror could find that the defendants lacked probable
cause to arrest plaintiff based on the facts and circumstances they
knew at the time.
Therefore, the Court finds that plaintiff has
failed to state a claim under § 1983 that there was a lack of
probable cause for his arrest.
IT IS FURTHER ORDERED that the Magistrate Judge’s Report and
Recommendation is adopted in toto.
IT IS FURTHER ORDERED that defendant’s motion to dismiss (Doc.
20) is granted and plaintiff’s case is dismissed with prejudice.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
HON. JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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