Johnson v. Bavetta et al
Filing
43
Memorandum Opinion and Order re 25 MOTION to Amend/Correct 1 Complaint, 1 Complaint, 29 MOTION to Amend/Correct 1 Complaint, 23 MOTION for Summary Judgment. Signed by Magistrate Judge F. Keith Ball on September 13, 2011. Copy mailed to Plaintiff. (WS)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
ROY LEE JOHNSON
PLAINTIFF
VS.
CIVIL ACTION NO. 4:10-cv-122-DPJ-FKB
MARSHA BAVETTA, PATRICK BURT,
DONNIE ADKINS, RALPH SCIPLE,
GRANT MAYER AND KEVIN BAYSINGER
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause comes before the Court on Defendants’1 Motion for Summary
Judgment (Docket No. 23) and Plaintiff's Motions to Amend (Docket Nos. 25, 29). The
Court held an omnibus hearing2 in this matter on August 10, 2011, at which time it
conferred with Plaintiff and counsel for Defendants in this suit brought pursuant to 42
U.S.C. § 1983. Johnson, who is housed at the Mississippi Department of Corrections
Alcorn Satellite Facility,3 filed his complaint on July 19, 2010, via the mailbox rule.4 On the
same day, he also filed an application to proceed in forma pauperis in this case. By
previous order, this Court granted Johnson’s request to proceed in forma pauperis under
1
Only Defendants Adkins, Baysinger, Myers (incorrectly listed as Mayer), and
Sciple filed a Motion for Summary Judgment. Defendants Bavetta and Burt moved to
dismiss ore tenus at the Spears hearing in this matter.
2
See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
3
Though the docket sheet in this matter indicates Johnson is housed at EMCF,
he testified at the Spears hearing that he is at the Alcorn Satellite.
4
A pro se prisoner's complaint is considered filed when delivered to prison
authorities for mailing. Houston v. Lack, 487 U.S. 266, 270–71 (1988); Causey v.
Cain, 450 F.3d 601, 604 (5th Cir. 2006).
28 U.S.C. § 1915. (Docket No. 8). Johnson is pursuing his claims pro se.
At the hearing, the parties consented to have the undersigned conduct any and all
further proceedings in this case and enter final judgment, and the District Judge
subsequently entered an order of reference. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For
the reasons described below, the undersigned grants summary judgment as to all
defendants.
I.
THE CLAIMS
By his complaint, Johnson alleges that on February 22, 2008, the Neshoba County,
Mississippi, Sheriff Donnie Adkins and his deputies/investigators Ralph Sciple, Grant
Myers and Kevin Baysinger (“County Defendants”) violated the Fourth Amendment in
executing a search warrant for narcotics at Johnson’s residence, which Johnson testified
at the hearing was a mobile home belonging to his sister. During the search pursuant to a
warrant,5 officers found a loaded firearm within close proximity to Johnson. Johnson was
arrested and later convicted on the charge of possession of a firearm by a felon and the
Mississippi Court of Appeals affirmed. Johnson v. State, 42 So. 3d 53 (Miss. Ct. App.
2010).
Separate from the arrest on February 22, 2008, Johnson also alleges that on
November 15, 2008, he was falsely arrested by Philadelphia, Mississippi, police
officers/investigators Marsha Bavetta and Patrick Burt (“City Defendants”) on a charge of
5
In his Motion for Leave to File an Amended Complaint, Johnson stated that
there was a valid warrant. Docket No. 25. At the hearing, Johnson first testified that
there was no warrant but then admitted that there was a warrant; he just did not
consider it specific enough.
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rape. He alleges that he was found not guilty on the rape charge. There are no
attachments by any parties as to the details of this finding from any state court records.
However, in an opinion issued in another case in which Johnson sued the alleged rape
victim, the Court stated that Johnson was found not guilty on this rape charge. Johnson v.
Alexander, 2011 WL 1540384, *1 (S.D. Miss. Apr. 22, 2011)(dismissing Johnson’s claims
as frivolous).
Johnson challenges only the two arrests and acts leading to the arrests, not events
at trial or during confinement. As for relief, the complaint seeks $150,000.00 from each
defendant in his or her individual capacity and that they pay for counseling for Johnson’s
“emotional and physical disturbance.”
Johnson filed two Motions to Amend, one on January 26, 2011, asserting malicious
prosecution as to Defendants Bavetta and Burt arising from the incident on November 15,
2008, and a second motion to amend on April 25, 2011, alleging excessive force during
the original incident on February 22, 2008. Defendants Adkins, Sciple, Myers and
Baysinger oppose Johnson’s second motion to amend on the basis that it would be futile
to allow amendment since the statute of limitations has expired with respect to any
excessive force claim arising form the original arrest.
Fed. R. Civ. Proc. 15(a)(2) states that the “Court should freely give leave [to
amend] when justice so requires.” Since Johnson is pro se, the motions for leave to
amend are granted and the Court will consider all claims raised by Johnson.
At his August 10, 2011, omnibus hearing, Johnson was given an opportunity to
clarify his claims and develop the facts leading to this lawsuit. The essence
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of his Section 1983 claim is that he was arrested first by the County Defendants for
possession of a firearm by a felon on a vague warrant when he did not know there was a
weapon present, and then arrested by the City Defendants for a rape of which he was
ultimately acquitted. Johnson also testified at the hearing that the County Defendants
“manhandled” personal property while executing the search warrant on February 22,
2008.
After the hearing, the Court received a letter motion from Johnson, which he mailed
before the hearing, requesting the date of the omnibus hearing and that counsel be
appointed. Johnson did not mention his request for counsel at the hearing and the motion
is denied. There is no automatic right to appointment of counsel in a Section 1983 case
and the Court concludes that this case does not present exceptional circumstances
warranting appointment of counsel. Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.
1982). In making this determination, the Court is required to consider the following
factors: “(1) the type and complexity of the case; (2) whether the indigent is capable of
adequately presenting his case; (3) whether the indigent is in a position to investigate
adequately the case, and (4) whether the evidence will consist in large part of conflicting
testimony so as to require skill in the presentation of evidence and in cross examination.”
Id. at 213 (internal citations omitted).
Johnson has articulated his straightforward claims of violation of the Fourth
Amendment in a clear and concise manner. He testified at the hearing that he had all the
documents supporting his claims. After reviewing his filings in this case and Johnson’s
testimony regarding his history with the court system, the Court concludes Johnson is
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capable of adequately representing himself in this matter.
II.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if the pleadings show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law. Fed. R. Civ. P. 56(c). “The mere existence of a factual dispute does not by
itself preclude the granting of summary judgment.” St. Amant v. Benoit, 806 F.2d 1294,
1296-97 (5th Cir.1987). “The requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). “Only disputes over the facts
that might effect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not
be counted.” Id. Moreover, the Fifth Circuit has consistently held that “[b]are bones
allegations are insufficient to withstand summary judgment because the party opposing
summary judgment ‘must counter factual allegations by the moving party with specific,
factual disputes; mere general allegations are not a sufficient response.’” Howard v. City
of Greenwood, 783 F.2d 1311, 1315 (5th Cir.1986) (quoting Nicholas Acoustics &
Specialty Co. v. H & M Constr. Co. Inc., 695 F.2d 839, 845 (5th Cir.1983)).
In considering a motion for summary judgment, the trial court views the evidence in
the light most favorable to the non-moving party, Johnson. Howard v. City of Greenwood,
783 F.2d 1311, 1315 (5th Cir.1986). In order to survive summary judgment, the
non-moving party must demonstrate the existence of a disputed issue of material fact.
Anderson, 477 U.S. at 247-48 (1986). To avoid the entry of summary judgment, the
non-movant must bring forth “evidence of [his] own establishing each of the challenged
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elements of [his] case. Because factual disputes may not be resolved on motion for
summary judgment, the plaintiff need not offer all of the evidence tending to support his
case, only enough evidence ‘from which a jury might return a verdict in [his] favor. If [he]
does so, there is a genuine issue of fact that requires a trial.’” Int’l Shortstop, Inc. v.
Rally's, Inc. 939 F.2d 1257, 1264 (5th Cir. 1991) (internal quotations, citations, and
brackets omitted).
III.
ORIGINAL CLAIM AGAINST DEFENDANTS ADKINS, BAYSINGER,
MYERS, AND SCIPLE
Having reviewed the first claim and considered Johnson’s testimony at the omnibus
hearing, the Court finds that this claim should be dismissed. In Heck v. Humphrey, the
United States Supreme Court held that:
when a state prisoner seeks damages in a 1983 suit,
the district court must consider whether a judgment in
favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; [and] if it would, the complaint
must be dismissed unless the plaintiff can demonstrate
that the conviction or sentence has already been invalidated.
Heck v. Humphrey, 521 U.S. 477, 487 (1994).
Johnson claims that the warrant was not specific enough and that he did not know
the gun the officers found during the search incident to the warrant was there. Obviously,
if Johnson were to prevail on these claims in this suit, it would necessarily imply the
invalidity of Johnson’s conviction for possession of a firearm by a convicted felon.
Johnson’s conviction has never been invalidated, and, in fact, the Mississippi Court of
Appeals affirmed Johnson’s conviction on this charge. Johnson v. State, 42 So. 3d 53
(Miss. Ct. App. 2010).
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Thus, Johnson’s claims regarding the sufficiency of the search warrant which led
to the discovery of the firearm are barred by Heck. Heck, 512 U.S. at 487. Accordingly,
these claims against the County Defendants, Adkins, Baysinger, Myers and Sciple, are
dismissed with prejudice.
IV.
ORIGINAL CLAIM AGAINST DEFENDANTS BAVETTA AND BURT
As to his allegations concerning false arrest on a charge of rape against
Defendants Burt and Bavetta, Johnson has not sufficiently alleged facts supporting a
Section 1983 claim for false arrest. Qualified immunity shields officers from false arrest
claims if they could have believed the arrest lawful under the law and with the information
they had at the time. See, e.g., Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000).
To overcome qualified immunity and prevail on a Section1983 claim for false
arrest, Johnson must demonstrate that he was arrested without probable cause. Brown v.
Lyford, 243 F.3d 185, 189 (5th Cir. 2001). “[P]robable cause is present ‘when the totality
of the facts and circumstances within a police officer’s knowledge at the moment of arrest
are sufficient for a reasonable person to conclude that the suspect had committed or was
committing an offense.’” Vance v. Nunnery, 137 F.3d 270, 276 (5th Cir. 1998) (quoting
United States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996)). A police officer who
reasonably but mistakenly concludes that probable cause is present is still entitled to
immunity from liability. Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000). “The
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 every suspect
released.” Baker v. McCollan, 443 U.S. 137, 145 (1979).
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Johnson testified that his only complaint against Bavetta and Burt is that Bavetta
interviewed him, showed the rape victim a photo line up, obtained a DNA sample from
him, and that together Bavetta and Burt, on behalf of the victim, pursued charges against
him. Johnson admitted that the rape victim identified him and did not allege that Bavetta
and Burt had any reason to disbelieve the victim or that the City Defendants acted
maliciously.
The City Defendants had probable cause to arrest Johnson based on the victim’s
statement and identification of Johnson, and a grand jury also found that probable cause
existed and returned an indictment against Johnson for rape. The mere fact that Johnson
was later found not guilty following a jury trial does not itself support a cause of action for
false arrest. Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 754 n.10 (5th Cir. 2001).
These claims are dismissed as well.
V.
AMENDED CLAIMS AGAINST DEFENDANTS SCIPLE, MYERS,
BAYSINGER, AND ADKINS
Johnson asserts an amended claim for excessive force against Sciple, Myers,
Baysinger, and Adkins arising from the February 22, 2008 search. This claim is not Heck
barred, if the success of the §1983 claim “will not demonstrate the invalidity of a
[conviction]....” Brown v. Sudduth, 255 Fed. Appx. 803, 805 (5th Cir. Nov. 7, 2007). In
order to determine whether an excessive force claim is barred by Heck, the Court must
analyze “whether success on the excessive force claim requires negation of an element of
the criminal offense or proof of a fact that is inherently inconsistent with one underlying
the criminal conviction.” Bush v. Strain, 513 F.3d 492, 497 (5th Cir. 2008). Johnson was
convicted of possession of a firearm by a felon, and a finding of excessive force would not
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undermine that conviction.
However, to overcome qualified immunity and maintain an excessive force claim
pursuant to §1983, Johnson must prove that he: “(1) suffered some injury which (2)
resulted from force that was clearly excessive to the need for force; (3) the excessiveness
of which was objectively unreasonable.” Heitschmidt v. City of Houston, 161 F.3d 834,
839 (5th Cir. 1998). The Fifth Circuit has held that a plaintiff must have “suffered at least
some form of injury” which is not from a de minimis use of force to maintain an excessive
force claim. Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993); see also Williams
v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999). Though Johnson made a cursory statement
in a motion to amend, Docket No. 29, that the County Defendants violated his right to be
free from excessive force, Johnson did not testify at the hearing as to any force used
against him at all, excessive or otherwise. Nor did Johnson testify that he suffered any
injury. Accordingly, Johnson’s excessive force claim is dismissed.
At the hearing, Johnson testified that his Fourteenth Amendment Due Process
right was violated because personal property (specifically, a couch, closet and carpet) was
treated roughly by officers during the execution of the search warrant at the mobile home
on February 22, 2008. First of all, according to his testimony, Johnson did not own the
property; it belonged to his sister; and, therefore, he has no claim or “injury” for any
alleged damage to the property. Moreover, although Johnson testified that the subject
property was “tore up,” he then testified that the carpet could be put back down and the
couch and closet put back together, and that there was no permanent damage to or
deprivation of the property. Therefore, Johnson has no right to assert this claim for
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alleged damage to someone else’s property and has failed to show that there was, in fact,
any damage to the property.
Further, Johnson did not assert this claim through any available state court
process. Even assuming arguendo that Johnson could assert a claim for nonpermanent
damage to his sister’s property, the claim is barred.
As the Fifth circuit has recently reiterated:
Under the Supreme Court's well-settled Parratt/Hudson line of
cases, “a deprivation of a constitutionally protected property
interest caused by a state employee's random, unauthorized
conduct does not give rise to a Section 1983 procedural due
process claim, unless the State fails to provide an adequate
post-deprivation remedy.” Allen v. Thomas, 388 F.3d 147,
149 (5th Cir.2004); See also Parratt v. Taylor, 451 U.S. 527,
541–44, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Hudson v.
Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393
(1984). The burden is on the complainant to show that the
state's post-deprivation remedy is not adequate. Myers v.
Klevenhagen, 97 F.3d 91, 94 (5th Cir.1996).
White v. Epps, 411 Fed. Appx. 731, 732-33 (5th Cir. 2011).
Johnson did not demonstrate or allege that Mississippi fails to provide an
adequate post-deprivation remedy. Even if he had so alleged, the Fifth Circuit has held
that Mississippi's post-deprivation remedies satisfy due process. See Nickens v. Melton,
38 F.3d 183, 185 (5th Cir.1994). Therefore, this claim is also barred by the
Parratt/Hudson doctrine. Johnson’s claim fails.
VI.
AMENDED CLAIM AGAINST DEFENDANTS BAVETTA AND BURT
Johnson’s amended claim for malicious prosecution against Defendants Bavetta
and Burt is based on the exact same facts as his Fourth Amendment false arrest claim.
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Again, probable cause existed for the rape charge against Johnson, and Johnson has not
alleged that Bavetta or Burt acted maliciously in performing their respective duties as law
enforcement officers with respect to the rape charge. The Fifth Circuit has held that there
is no free-standing constitutional right to be free from malicious prosecution and the
plaintiff in a Section 1983 case must identify a specific constitutional violation. Castellano
v. Fragozo, 352 F.3d 939 (5th Cir. 2003). Johnson has failed to identify any constitutional
violation by Bavetta or Burt in relation to the rape charge, and these claims are dismissed.
VII.
QUALIFIED IMMUNITY
Alternatively, all Defendants are entitled to qualified immunity. Anderson v.
Creighton, 483 U.S. 635, 640 (1987). The facts alleged by Johnson are simply
insufficient, even if true, to overcome the qualified immunity defense. At the hearing,
Johnson claimed Defendant Sciple was “harassing” him because Johnson had “beat him”
on a previous charge, but Johnson failed to describe any conduct by Sciple outside
executing the search warrant. All Defendants, by Johnson’s own testimony, were acting in
an objectively reasonable manner in carrying out discretionary functions and Johnson
alleges no conduct which violated his constitutional rights. Davis v. Scherer, 468 U.S.
183, 194 (1984).
VIII. CONCLUSION
Based on the foregoing, this case is dismissed with prejudice.
SO ORDERED AND ADJUDGED, this the 13th day of September,2011.
/s/F. Keith Ball
UNITED STATES MAGISTRATE JUDGE
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