Collins v. Harvey et al

Filing 29

Memorandum Opinion and Order granting 23 MOTION for Summary Judgment. A separate judgment will be entered, as set out herein. Signed by District Judge Tom S. Lee on 1/25/13 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
NICHOLAS COLLINS

PLAINTIFF

VS.

CIVIL ACTION NO. 3:11CV572TSL-MTP

DETECTIVE ALTRICH HARVEY,
INDIVIDUALLY

DEFENDANT

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendant
Altrich Harvey for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure.

Plaintiff Nicholas Collins has

responded to the motion and the court, having considered the
memoranda of authorities, together with attachments, submitted by
the parties, concludes that defendant’s motion is well taken and
should be granted.
Plaintiff filed this 42 U.S.C. § 1983 action against Altrich
Harvey, a police detective with the City of Jackson, Mississippi,
in his individual capacity, alleging violations of his Fourth
Amendment rights arising from an June 10, 2010 incident in which
he was arrested and his property searched.

It appears from the

record evidence that the following pertinent facts relating to the
incident are not in dispute.
On June 10, 2010, Jackson Police Department Detective
Aldridge Harvey was made aware of an e-mail from an Amber McGee,
who reported that her father-in-law David McGee had been living in

a shack he had built on an abandoned lot next to 630 Red Oak
Street in Jackson; that David McGee was gone from the property and
had no plans to return; and that David McGee had told her that
there were numerous guns (among which were assault rifles) inside
the shack that could present a hazard to persons in the vicinity,
including children.

Detective Harvey and other members of the

narcotics unit went to the Red Oak location to obtain the
firearms.

The officers were unable to find a 620 Red Oak but

noticed a homemade structure on Red Oak next to an abandoned lot.
The officers observed plaintiff Nicholas Collins cleaning the lot.
They explained to Collins why they were there and asked to search
the property.

Collins, who owned the lot, confirmed that David

McGee lived at the location, but he refused to allow them to enter
and search the property, and told them he would not allow them to
search unless they had a warrant.

Harvey states in his affidavit,

which plaintiff does not contradict, that Harvey was irate and
combative toward the officers.

The officers ran a local check and

found there was an outstanding contempt warrant for Collins.
Harvey states – and plaintiff does not deny -- that upon being
informed of the warrant, Collins’ hostility increased, and
officers from another precinct were called in to assist.

While

the officers remained on the scene, the detectives obtained a
search warrant.

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In his affidavit, Harvey states each time officers and
detectives approached Collins for the purpose of arresting him, he
would take an aggressive stance as if preparing to fight.

For

this reason, units from Precinct Five were called to the scene to
assist, since that unit was equipped with a Taser.

Harvey relates

that when the Precinct Five unit arrived, Officer Tracy Haymon
attempted to talk to Collins, but every time he did, Collins would
assume a defensive stance.

Officer Haymon gave Collins several

verbal commands to place his hands behind his back and to get on
the ground, but Collins refused to comply.

Collins then started

backing towards a two by four that was lying by a nearby fence.
After Collins refused several more commands, Officer Haymon
deployed the taser on him, following which he was taken into
custody.
For his part, plaintiff states in his own affidavit that he
had his hands up and out when one of the officers fired a stun gun
at him.

However, he does not deny there was an outstanding

warrant for his arrest, and he does not deny that he was
uncooperative, hostile and combative towards the officers or that
he refused Officer Haymon’s commands to place his hands behind his
back and get on the ground.
Plaintiff alleges that Detective Harvey violated his Fourth
Amendment rights when he arrested plaintiff and searched the

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premises and purports to assert a claim against Harvey for
excessive force based on supervisory liability.
Harvey, who is sued in his individual capacity only, has
moved for summary judgment on the basis of qualified immunity,
contending that there was no violation of plaintiff’s
constitutional rights since he was arrested pursuant to a valid
arrest warrant and since plaintiff’s property was searched
pursuant to a valid search warrant.

He submits that even if there

was some type of violation, his actions were objectively
reasonable under the circumstances he faced at that time.
“Qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.”

Lytle v. Bexar

County, Tex., 560 F.3d 404, 409 (5th Cir. 2009) (internal
quotation marks and citation omitted).
defense has two prongs:

The qualified immunity

whether an official's conduct violated a

constitutional right of the plaintiff; and whether the right was
clearly established at the time of the violation.
Lawson, 585 F.3d 839, 843 (5th Cir. 2009).
either prong of the defense in its analysis.

Manis v.

A court may rely on
Id.

Plaintiff alleges he was arrested without probable cause, in
violation of his rights under the Fourth Amendment.

The Fourth

Amendment right to be free from arrest without probable cause has
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long been clearly established.

Carthon v. Prator, 408 Fed. Appx.

779, 782, 2010 WL 4351204, 2 (5th Cir. 2010) (citing Club Retro,
L.L.C. v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009)).

However, as

it is undisputed that plaintiff was arrested pursuant to a valid
arrest warrant, there was no Fourth Amendment violation based on
the arrest, and Harvey is entitled to qualified immunity.
“A police officer cannot be held liable in an individual's
subsequent § 1983 suit for false arrest if that officer arrested
that individual either with probable cause or pursuant to a valid
arrest warrant.”

Anderson v. Oster, Civil Action No. 10–0293,

2011 WL 2532411, 9 (E.D. La. June 24, 2011) (citing Mundy v. Ga.,
586 F.2d 507, 508 (5th Cir. 1978), and Smith v. Gonzales, 670 F.2d
522, 526 (5th Cir. 1982) (“Where an arrest is made under authority
of a properly issued warrant, the arrest is simply not a false
arrest.”)).

Even where there may be some basis for challenging

the validity of the warrant, “a police officer who makes an arrest
on the basis of a facially valid arrest warrant will in most cases
be entitled to qualified immunity....”

Vance v. Nunnery, 137 F.3d

270, 276 n.3 (5th Cir. 1998) (citing Hamill v. Wright, 870 F.2d
1032 (5th Cir. 1989)).

An exception arises where the officer

participated in securing the warrant and he knows or has reason to
know that the magistrate who issued the warrant was materially
misled on the basis for a finding of probable cause.

See

Mendenhall v. Riser, 213 F.3d 226, 232 (5th Cir. 2000) (stating
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that "a valid arrest warrant [will] normally insulate officers
against a claim of false arrest," unless "the officers charged
with the false arrest [are] responsible for securing the
warrant"); Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994)
(stating that when an arresting “officer knows, or has reason to
know, that he has materially misled a magistrate on the basis for
a finding of probable cause, ... the shield of immunity [afforded
by a warrant] is lost”).

But an officer who did not participate

in obtaining an allegedly defective warrant but who merely
participated in an arrest pursuant to the warrant which was valid
on its face will have no liability, as he is entitled to assume
that the warrant was obtained validly.

Bennett v. City of Grand

Prairie, Texas, 883 F.2d 400, 408 (5th Cir. 1989).

See also

Michalik v. Hermann, 422 F.3d 252, 261 (5th Cir. 2005) (holding
that an officer who merely participates in an arrest and search
and seizure, but was not an affiant and did not participate in
preparing or obtaining a warrant, has no liability as he may rely,
in good faith, on the acts of another officer in procuring a
warrant); Hart v. O'Brien, 127 F.3d 424, 445 (5th Cir. 1997)
(“[A]n officer who has no personal knowledge of facts asserted in
an affidavit [may] rely on information provided by another officer
to file a warrant application.”) (citing Kalina v. Fletcher, 522
U.S. 118, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997)), abrogation on

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other grounds recognized by Spivey v. Robertson, 197 F.3d 772, 775
(5th Cir. 1999).
In the present case, plaintiff alleges that he was arrested
pursuant to a nine-year old “no tag” warrant; but he has not
suggested any basis on which the warrant might be found invalid.
Accordingly, there was no violation of his constitutional right to
be free from false arrest.

See Smith, supra, 670 F.2d at 526.

Even if plaintiff did challenge the validity of the warrant, the
record evidence establishes without dispute neither Harvey nor any
of the other officers present at the time of plaintiff’s arrest
secured the warrant; they merely discovered while on the scene
that there was an outstanding warrant for plaintiff’s arrest,
which they executed by arresting plaintiff.

Under the

circumstances, Harvey is entitled to qualified immunity as to
plaintiff’s claim for wrongful arrest.
In his complaint, plaintiff alleges that officers used
excessive force in effecting his arrest and thereby violated his
Fourth Amendment right to be free from unreasonable seizure, see
Deville v. Marcantel, 567 F.3d 156, 169 (5th Cir. 2009) (per
curiam) (explaining that an arrestee had a clearly established
right to be free from excessive force); and he alleges that
Harvey, as a supervisor responsible for training, supervision
and/or discipline, is liable for his subordinate’s use of

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excessive force.1

In his motion, Harvey correctly contends that

he is entitled to summary judgment on any claim for excessive
force premised on a theory of vicarious liability since under
§ 1983, supervisory officials are not liable for the actions of
subordinates on a theory of vicarious liability, see Monell v.
Dep't of Social Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L.
Ed. 2d 611 (1978)).

He further contends he cannot be liable on a

failure to train theory since there is no evidence that he had any
responsibility for the training, supervision or discipline of the
officers.

See Roberts v. City of Shreveport, 397 F.3d 287, 292

(5th Cir. 2005) (holding that the city police chief was entitled
to qualified immunity because the plaintiff did not show a failure
to train or supervise the officer).

Plaintiff does not contend

otherwise in his response, and in fact, has not addressed and thus
has not opposed Harvey’s motion with respect to the putative
excessive force claim.

Accordingly, summary judgment will be

granted on this claim.
Similarly, plaintiff has not responded to Harvey’s motion as
it relates to the putative claim asserted in the complaint against
1

Plaintiff does not allege that Harvey used excessive
force, but rather than he is legally responsible for others’ use
of excessive force. Specifically, he states:
Defendant Harvey and or some other unnamed defendants
John and James Doe was at all relevant times a
supervisor in the JPD, with oversight responsibility for
the training, instructions, supervision and discipline
of other defendant police officers who deprived Collins
of his federal and state constitutional rights.
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Harvey for failing to intervene to prevent the use of excessive
force against plaintiff.

In order to prove a civil rights

violation under 42 U.S.C. § 1983 for such a failure to intervene,
plaintiff must demonstrate that the defendant did not take
reasonable measures to protect him from another officer's use of
excessive force.
1995).

See Hale v. Townley, 45 F.3d 914, 919 (5th Cir.

Harvey submits, and plaintiff has offered no contrary

proof, that Harvey witnessed excessive force and failed to
intervene to stop it.

See Nowell v. Acadian Ambulance Serv., 147

F. Supp. 2d 495, 507 (W.D. La. 2001) (no bystander liability
unless defendant observed the use of excessive force or had an
opportunity to take steps to prevent the alleged use of force, or
to intervene to stop it).

For these reasons, Plaintiff’s claim

for bystander liability will be dismissed.
Plaintiff’s claim with respect to the search of his property
is apparently that although Harvey and the other officers
purported to search his property pursuant to a search warrant, the
search violated his rights under the Fourth Amendment since the
warrant procured by Harvey was not for plaintiff’s property, which
was located at 170 Red Oak Street, but was instead issued for 160
Red Oak Street, which plaintiff states, based on information and
belief, is owned and/or occupied by one Flora McGee.
Harvey argues that the fact that the address in the warrant
was incorrect does not strip him of qualified immunity, and the
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court agrees.

As Harvey notes, the Supreme Court has held that

police officers do not necessarily violate the Fourth Amendment
when they mistakenly execute a search warrant on the wrong
address.

See Maryland v. Garrison, 480 U.S. 79, 88, 107 S. Ct.

1013, 94 L. Ed. 2d 72 (1987).

Law enforcement officers are

generally granted qualified immunity if the evidence is undisputed
that they merely made an honest mistake when entering the
incorrect home.

See Simmons v. City of Paris, 378 F.3d 476,

479-80 (5th Cir. 2004).

Here, the property which the officers

searched was the intended target of the search warrant, i.e., guns
located in the structure occupied by David McGee.

The magistrate

who issued the warrant found that probable cause existed for
issuance of a warrant to search for guns located in the shack
formerly occupied by McGee on property owned by plaintiff.

The

warrant merely contained a single-digit error in setting out the
address of the property that was to be searched.

Harvey’s actions

in proceeding with a search of the property for which the warrant
was sought, and for which he believed a warrant had been issued,
was objectively reasonable.

See Williams v. Bramer, 180 F.3d 699,

703 (5th Cir. 1999) (holding that whether an official's conduct
was objectively reasonable is a question of law for the court, not
a matter of fact for the jury).

He is consequently entitled to

qualified immunity as to this claim, as well.

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Based on the foregoing, it is ordered that Harvey’s motion
for summary judgment is granted.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 25th

day of January, 2013.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

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