Gunn v. City of Cleveland et al
MEMORANDUM OPINION re 78 JUDGMENT on Motion for Summary Judgment, Order on Motion for Leave to File. Signed by Michael P. Mills on 7/11/2012. (lpm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CASE NO. 2:09-CV-114
CITY OF CLEVELAND, ET AL.
Defendants renew their motion for summary judgment, arguing that the plaintiff
submitted incomplete information to the court so that this previously closed civil rights case
would be reopened. Defendants assert that probable cause existed for arresting the plaintiff and
as such, his claims for malicious prosecution, false arrest, constitutional violations, and civil
conspiracy cannot pass summary judgment. Defendants contend that had the plaintiff supplied a
complete report, the court would have upheld its prior order granting summary judgment. Upon
due consideration of the motion, responsive briefs, and evidence in the record, the court finds
that summary judgment should be granted in favor of the defendants.
This civil rights lawsuit arises from the August 22, 2008 arrest of Timothy Gunn by
Cleveland City police for allegedly burglarizing Gail Riley’s home in Cleveland, Mississippi.
Riley claims she arrived home on August 9, 2008 to find a male burglar exiting the front door of
her house and holding a trash bag filled with property. She yelled at the burglar, who dropped
the bag and rode away on a bicycle. Riley then called police to report the crime.
Police Officer Greg Perkins claims he was on his way to Riley’s home in response to the
burglary when he saw Timothy Gunn riding a bicycle nearby the crime scene. Doc. 70-5 at 4. In
addition, Officer Bryan Goza claims he saw Gunn on a bicycle earlier that day leaving from
behind Riley’s home and carrying a trash bag over his shoulder. Doc. 70-2 at 5. Police showed
Riley a picture of Gunn, but she was unable to identify him as the burglar.
In preparing the incident report, police listed the property found in the burglar’s trash
bag, which included jewelry, food, and household products. The list was later updated to include
a bottle of Pine-All1 cleaner; however, it is unclear when the update took place. Police lifted
fingerprints from the recovered property. Officer George Serio claims he compared the
fingerprints taken from the Pine-All bottle to those of Timothy Gunn and believed there was a
match. Police then sent the lifted prints and Gunn’s ink prints2 to the Mississippi Crime
Laboratory to confirm that the prints matched.
On August 12, 2008, a municipal court judge issued police a warrant for Gunn’s arrest.3
Gunn was later arrested and charged with the August 9, 2008 burglary. Prosecution ensued in
state court. During trial, Riley testified that Gunn was not the person who burglarized her home.
The jury ultimately found Gunn not guilty of the charges against him.
Following the criminal trial, Gunn filed a civil rights lawsuit in Bolivar County Circuit
Court. He alleges civil conspiracy, false arrest, malicious prosecution, civil assault and battery,
intentional and/ or negligent infliction of emotional distress, as well as violations of his federal
The parties refer to the cleaner as “Pine-All,” however Gail Riley identified the cleaner
as “Pine-Sol” during the criminal trial when questioned by the State regarding the items police
recovered from her home. Doc. 70-1 at 13. The court’s reference to the bottle of “Pine-All”
cleaner throughout this opinion shall also be considered as referring to the “Pine-Sol” cleaner.
Gunn had a prior criminal history and his inked prints were on file with the police.
On August 14, 2008, police requested the Mississippi Crime Laboratory to perform a
Latent Print Examination on the fingerprint evidence. The court assumes that police relied on
Officer Serio’s comparison of the fingerprints when they requested the municipal judge to issue
an arrest warrant on August 12, 2008.
due process and equal protection rights. Gunn seeks damages as well as an injunction preventing
the City of Cleveland and the individually named officers from engaging in future conduct
amounting to malicious prosecution. On July 7, 2009, the defendants removed the case to this
court based on federal question jurisdiction.
On November 9, 2010, this court granted the defendants summary judgment, finding that
Officers Galloway, Perkins, Goza, and Serio were entitled to qualified immunity; Chief Bingham
was not liable in his official or individual capacities; there was no agreement to commit a false
arrest; the claims for battery, assault, and negligent infliction of emotional distress were not
viable because no defendant had physical contact with Gunn; and sufficient probable cause
existed for Gunn’s arrest, thereby dismissing the claims for malicious prosecution, false arrest,
and intentional infliction of emotional distress. The court primarily based its finding of probable
cause on fingerprint evidence from the Pine-All bottle police recovered from the victim’s home.
Gunn moved the court to reconsider its order, asserting that probable cause was lacking because
the Pine-All bottle was not listed on the August 11, 2008 incident report prepared by Cleveland
police. Learning this new information, the court reversed its prior decision on all issues, except
its ruling that Chief Bingham was not liable in his official and individual capacities. The court
found summary judgment improper due to the inconclusive fingerprint evidence and reopened
the plaintiff’s case.
The defendants now renew their motion for summary judgment, asserting that Gunn
presented an incomplete incident report to the court rather than the final official report which
lists the Pine-All bottle. The defendants maintain that the final report supports their argument
that probable cause existed for arresting Gunn and therefore, the court should grant the officers
qualified immunity and enter summary judgment in the defendants’ favor. Since this case turns
on whether Timothy Gunn was illegally arrested, the court will focus its analysis on whether the
Pine-All bottle was found at the crime scene and whether the fingerprints taken from the bottle
gave police probable cause to arrest the plaintiff.
Summary judgment should be granted when the evidence shows that there are no genuine
issues of material fact and the moving party is entitled to a judgment as a matter of law. Fed. R.
Civ. P. 56(a); see also Tebo v. Tebo, 550 F.3d 492, 496 (5th Cir. 2008). Once the moving party
meets its burden, the nonmoving party must “come forward with specific facts showing a
genuine factual issue for trial.” Harris ex rel. Harris v. Pontotoc Cnty. Sch. Dist., 635 F.3d 685,
690 (5th Cir. 2011). The party opposing summary judgment cannot rely on metaphysical doubt,
conclusive allegations, or unsubstantiated assertions but instead must show that there is an actual
controversy warranting trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(internal citations omitted).
Qualified immunity shields government employees from civil liability unless their
conduct violates a clearly established constitutional right. Jones v. Lowndes County, Mississippi,
678 F.3d 344, 351 (5th Cir. 2012) (quoting Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir.
2003)). The court conducts a two-part inquiry when resolving questions of qualified immunity.
Scott v. Harris, 550 U.S. 372, 377 (2007) (internal citations omitted). First, it determines
whether the facts, in the light most favorable to the plaintiff, establish that the employee’s
conduct violated a statutory or constitutional right. Id. If so, the court then determines whether
that right was clearly established in the context of the case. Id.
Gunn asserts that the officers falsely arrested him in violation of his due process and
equal protection rights. The court acknowledges that freedom from illegal arrests is a clearly
established right under the Fourth and Fourteenth Amendments to the United States Constitution.
“Whether [Gunn’s] arrest is legal, however, hinges on the absence of probable cause.” Soreson
v. Ferrie, 134 F.3d 325, 328 (5th Cir. 2008) (citing Baker v. McCollan, 443 U.S. 137, 144-45, 99
S.Ct. 2689, 2694-95, 61 L.Ed. 2d 433 (1979). For there to be a constitutional rights violation,
Gunn must show that the defendant officers lack probable cause to arrest him. If Gunn is unable
to show that the officers lacked probable cause, he cannot establish that his constitutional rights
were violated, and in turn, the defendant officers would be entitled to qualified immunity.
In the court’s initial order granting summary judgment, it determined that police had
probable cause to arrest Gunn based on the matching fingerprint evidence found on the Pine-All
bottle. Based on Gunn’s submission of the August 11, 2008 incident report, the court reversed
its ruling and questioned whether probable cause existed for the plaintiff’s arrest. The
defendants have now provided the court with a copy of the final official incident report dated
August 22, 2008, which lists “misc. cleaner” as property recovered from Riley’s residence. The
defendants contend that the Pine-All bottle is the “misc. cleaner” referenced in the report.
Police obtained a warrant for Gunn’s arrest on August 12, 2008. The defendants have not
submitted a copy of the report bearing the date on which the warrant was issued. However, the
defendants explain that the date listed on the report reflects when the report was printed, not
when it was updated. Gunn argues in response that the reliability of the fingerprint evidence is
compromised because police sent lifted prints rather than the actual Pine-All bottle to the crime
lab for testing. He also questions why officers failed to lift prints from other property in the
victim’s home. Gunn further asserts “the absence of documentation of the pine-all purpose
cleaner as the item from which the lifts were taken....is indicia of reasonable inference of
probable tampering with the evidence.” Doc. 72 at 12.
Regarding the plaintiff’s chain of custody argument, the court acknowledges that missing
documentation goes to the weight of the evidence and not its admissibility. United States v.
Doggins, 633 F.3d 379, 383 (5th Cir. 2011). Presumably, Gunn challenged the reliability of the
fingerprint evidence during the criminal trial and the jury considered it in returning its “not
guilty” verdict. In this civil case, the plaintiff presents no legal authority which requires police
to send the actual Pine-All bottle to the crime lab rather than the prints lifted from it. In fact,
much of the plaintiff’s argument opposing summary judgment consists of unsupported
Gunn spends the entirety of his response claiming that the officers racially profiled him,
fabricated evidence, and gave false testimony. Yet, he presents no evidence to support these
assertions. To illustrate, the plaintiff makes the following statements in his brief:
Officer Bryan Goza falsely testified under oath at trial that Gail Riley had
described the person as being bald or short hair and that Gail Riley’s description
was vague (IOA 13). This was patently false.
Serio wrote in his report that a statement was taken from Gail Riley in which she
stated that it all happened so fast that she could not give a good description other
than a B/M and a green bike. (Ex. W). This statement was false, as well as the
characterization of Ms. Riley as being so distraught that she could not recall a
Doc. 72 at 15, 18. Although the plaintiff makes this argument, the court notes that Gail
Riley testified during the criminal trial that she was unable to give police an accurate description
of the burglar at the time the crime occurred. Doc. 70-1 at 13-14.
Once defendants submitted proof that no material fact issues remained warranting trial,
the burden shifted to Gunn. Rather than responding with specific facts, Gunn relied on his bare
allegations that summary judgment was not proper. The final official incident report shows that
a miscellaneous cleaner was recovered from the burglarized home. Defendants submit that the
bottle of Pine-All was the miscellaneous cleaner listed in the report. Further, Gail Riley testified
that the cleaner was recovered from her home. Officer Serio visually compared the fingerprints
lifted from the Pine-All bottle with inked prints of Timothy Gunn and believed the prints
matched. The Mississippi Crime Laboratory later confirmed that the lifted fingerprints belonged
to Gunn. The plaintiff argues that this evidence is unreliable because police did not send the
actual Pine-All bottle to the crime lab. Gunn fails to provide–and this court is unaware of–any
authority requiring police to send the actual bottle rather than the prints lifted from it to the crime
lab. As the plaintiff is unable to show that the officers tampered with the fingerprint evidence,
the court finds the prints reliable and therefore, officers had probable cause to arrest Gunn.
Considering that Gunn was not illegally arrested, the court finds that no constitutional
violation occurred. Officers Goza, Galloway, Perkins, and Serio are therefore immune from
liability in this civil rights lawsuit. In light of the court’s finding of probable cause, the
plaintiff’s remaining claims must fail. The defendants’ renewed motion for summary judgment
 is GRANTED. Pursuant to Fed. R. Civ. P. 58, a separate order shall be entered this day.
This the 11th day of July, 2012.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
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