Aimes v. Whelchel et al

Filing 43

OPINION AND ORDER declining to adopt 36 Report and Recommendations.; granting 41 Motion ; denying 9 Motion to Stay; finding as moot 12 Motion to Dismiss for Failure to State a Claim; Case is DISMISSED WITHOUT PREJUDICE. Signed by Honorable Timothy L. Brooks on April 7, 2017. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
SIDNEY AIMES

v.

PLAINTIFF
CASE NO. 5:16-CV-05293

DETECTIVE
DETECTIVE
DETECTIVE
DETECTIVE
DETECTIVE
DETECTIVE

COREY WHELCHEL;
MIKE BALL;
STANLEY JOHNSON;
TYLER MOORE;
PRESTON OSWALT; and
MICHAEL SPARKMAN

DEFENDANTS

OPINION AND ORDER
Now pending before the Court is the Amended Report and Recommendation
(''R&R") (Doc. 36) filed on March 3, 2017 , by United States Magistrate Judge Erin L.
Weidemann .1 Objections to the R&R were due by March 20 , 2017, and none were filed.
The R&R recommended that the Court deny without prejudice Defendants' Motion to
Dismiss (Doc. 12) and administratively terminate the case during the pendency of a state
criminal action involving Plaintiff Sidney Ai mes. By way of background , the civil rights case
that Mr. Aimes filed in this Court (Doc. 1) alleges violations of his constitutional rights ,
pursuant to 42 U.S .C. § 1983, due to Defendants' use of an allegedly invalid warrant to
search his apartment and van . The search yielded certain evidence that implicated Mr.
Aimes in felony drug charges brought in Washington County Circuit Court. While these
criminal charges were still pending , Mr. Aimes filed a Supplement to the Complaint (Doc.
33) , in which he charged Defendants with further violating his constitutional rights by

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Judge Erin L. Setser at the time of the filing of the R&R.

confiscating some of his personal property during the search of his apartment and van , and
destroying other personal property of his during the course of the search.
Due to the pendency of the state criminal proceedings, the Court was prepared to
act on the recommendation of the Magistrate Judge and order the case stayed or
administratively terminated ; however, on March 31 , 2017 , Defendants filed a Notice (Doc.
40), advising the Court that Mr. Aimes' criminal case had been fully resolved , and that he
pleaded guilty to seven separate drug charges and was sentenced to a term of
imprisonment. See Doc. 40-1 . Also on March 31 , Mr. Aimes filed a Motion to Withdraw
all of the claims he made in his original Complaint (Doc. 1), without prejudice. See Doc.
41. He also asked in the same Motion that the claims stated in the Supplement to the
Complaint (Doc. 33) remain for adjud ication and not be withdrawn.
In light of the above-mentioned developments in Mr. Aimes' criminal case , the Court
finds it no longer necessary to administratively terminate and/or stay the instant matter.
The Court DECLINES TO ADOPT the R&R (Doc. 36) and also DENIES Defendants'
Motion to Stay (Doc. 9). Mr. Aimes' Motion to Withdraw (Doc. 41) is GRANTED , which
means that all claims asserted in the original Complaint (Doc. 1) are DISMISSED

WITHOUT PREJUDICE . In addition , Defendants' Motion to Dismiss (Doc. 12), which
requested dismissal of the claims in the original Complaint, is now MOOT.
The effect of the above rulings means that the only remaining claims in this lawsuit
are those that Mr. Aimes asserted in his Supplement to the Complaint (Doc. 33). In the
Supplement, he alleges that his procedural due process rights were violated as a result of
the wrongful seizure of certain personal property that was located in his apartment and

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van , which was not related to any criminal activity. Mr. Aimes also contends that some of
his personal property was damaged and/or destroyed by the police officers who conducted
the search . He asks that the confiscated personal property be returned and that he receive
money damages for the destroyed property.
As a threshold matter, "the Due Process Clause is simply not implicated by a
negligent act of an official causing unintended loss of or injury to life, liberty, or property."
Daniels v. Williams , 474 U.S. 327 , 328 (1986). See also Sellers by and through Sellers v.
Baer, 28 F.3d 895 , 902-03 (8th Cir. 1994) (allegations of inadvertence , negligence, or even

gross negligence are insufficient to state a claim under§ 1983). The Supplement to the
Complaint is deficient in that it fails to clearly state whether Defendants intentionally and
recklessly confiscated or destroyed property, or whether they did so in a negligent way.
Furthermore , although the initial deprivation of Mr. Aimes' property-which occurred during
the execution of a valid search warrant-did not implicate his due process rights , see
Walters v. Wolf, 660 F.3d 307, 314 (8th Cir. 2011) (explaining that "[w]hen seizing property

for criminal investigatory purposes, compliance with the Fourth Amendment satisfies
pre-deprivation procedural due process as well. " (internal quotation and citation omitted)),
if his property was confiscated in error, and the state refused to return it, or if his property
was destroyed in reckless or intentional fashion , these situations could violate Mr. Aimes'
due process rights. Before the Court may determine this, though , it is incumbent on Mr.
Aimes to establish that he at least attempted to exhaust the post-deprivation remedies
available to him by the state of Arkansas prior to pursuing federal action. See Hudson v.
Palmer, 468 U.S . 517 , 533 (1984) (intentional deprivation of property does not violate due

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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) .
It does not appear, from the face of the Supplement, that Mr. Ai mes made a written
request to the police department for the return of his property and/or a complaint to the
department concerning any intentional or reckless destruction of his property. In addition ,
Rule 15.2 of the Arkansas Rules of Criminal Procedure allows an individual from whose
person , property, or premises things have been seized to "move the court to whom the
warrant was returned, or the court having jurisdiction of the offense in question , as the case
may be , to return things seized to the person or premises from which they were seized. "
Ark. R. Crim . P. 15.2(a)(ii). It does not appear that Mr. Aimes filed a motion for return of
seized items in state court under Rule 15.2.

It also does not appear that he filed a

complaint with the Arkansas State Claims Commission for the unlawful taking of
property-which is yet another method of securing post-deprivation relief. See Willis Smith

& Co. , Inc. v. Ark., 548 F.3d 638 , 640 (8th Cir. 2008) (noting that Arkansas provides
adequate post-deprivation remedy for the state's alleged taking of property through the
Arkansas Claims Commission).
To state a claim upon which relief can be granted, a plaintiff's complaint "must
contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible
on its face ."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570). Here, even construing Mr. Aimes' Supplement broadly in his favor, he has failed to
state sufficient facts to show that he exhausted the administrative remedies available to
him through the state of Arkansas for the return of erroneously confiscated property or for

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the reimbursement of recklessly or intentionally destroyed property; and he has failed to
plead that the state's post-deprivation remedies are inadequate and cannot provide him
meaningful relief. His lawsuit is therefore premature and will be DISMISSED WITHOUT
PREJUDICE , sua sponte , for failure to state a claim pursuant to Rule 12(b)(6). See Smith

v. Boyd, 945 F.2d 1041 , 1042-43 (8th Cir. 1991) (holding that a district court may dismiss
a complaint under Rule 12(b)(6), sua sponte , at any time after service of process).
IT IS SO ORDERED on

this ~ day

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pril, 2017.