Koven et al v. Hammond et al

Filing 145

FINDINGS OF FACT AND CONCLUSIONS OF LAW - Judgment shall be entered by separate document in favor of Plaintiffs, and against Defendant Leroy Lewis in the amount of $1.00, plus taxable court costs. Plaintiffs' claim against Defendant David Murdoch is dismissed with prejudice. Ordered by Magistrate Judge F.A. Gossett. (Copy e-mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID SCOTT KOVEN SR., and )
ROXANNE DIANE KOVEN,
)
)
Plaintiffs,
)
)
V.
)
)
LEROY LEWIS, Plattsmouth Police )
Officer, and DAVID MURDOCH, )
Plattsmouth Police Chief,
)
)
Defendants.
)
)

8:10CV373

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

This matter is before the Court following a non-jury trial held on November 5 and 6,
2013. Pursuant to Fed. R. Civ. P. 52, the Court makes the following findings of fact and
conclusions of law.
BACKGROUND
Plaintiff David Koven (“Mr. Koven”) and his wife, Roxanne Koven (“Ms. Koven”)
(collectively referred to herein as “Plaintiffs”), filed this action against the City of
Plattsmouth, Nebraska (“the City”), as well as several members of the City’s police
department in their individual capacities. (Filing 1.) These officers included Todd
Hammond (“Hammond”), Leroy Lewis (“Lewis”), David Murdoch (“Murdoch”), Robert
Sorenson (“Sorenson”), Andrew Kennan (“Kennan”) and David Walker (“Walker”).
Plaintiffs alleged that Defendants were liable under 42 U.S.C. § 1983 for violating their
constitutional rights. In particular, Plaintiffs asserted that the defendant officers illegally
searched their home (“Count I”), unconstitutionally seized their children (“Count II”),
unconstitutionally seized Mr. Koven (“Count III”) and conspired to violate Plaintiffs’
constitutional rights. (“Count IV”). Plaintiffs also maintained that the City’s policies,
practices, and customs caused the alleged violations of their constitutional rights (“Count
V”).

On April 6, 2012, the Court granted, in part, a motion for summary judgment filed by
Defendants. (Filing 45.) The Court dismissed Counts II, IV, and V of the Complaint with
prejudice, and dismissed the City of Plattsmouth from the suit. The Court also dismissed
Count III as it pertained to Defendants Walker and Kennan. The Court found genuine issues
of fact remained as to Counts I and III which precluded the entry of summary judgment as
to those claims at that time.
Trial in this matter commenced on November 5, 2013, with Plaintiffs proceeding pro
se. At the close of Plaintiffs’ evidence, Defendants moved to dismiss Plaintiffs’ claims,
arguing that Plaintiffs failed to met their initial burdens of proof. The Court granted
Defendants’ motion, in part, dismissing Defendants Hammond, Sorenson, Kennan and
Walker from the suit. The Court concluded that Plaintiffs had failed to establish a prima
facie case as to those Defendants. The Court found, however, that Plaintiffs had established
a prima facie case on Count I as to Lewis, and on Court III as to Murdoch. Accordingly,
Lewis and Murdoch are the only Defendants remaining in this suit.
FINDINGS OF FACT
Having considered the evidence presented, and taking into account the credibility of
all witness testimony and the weight to be given to that testimony, the Court makes the
following findings of fact:
1.
On the evening of June 27, 2009, Mr. Koven was home alone with his two
minor children, ages eight and three. Ms. Koven, who was deployed out of state with the
Army National Guard, had been out drinking that evening and had made numerous attempts
to contact Mr. Koven by telephone, but had been unable to reach him. Consequently, Ms.
Koven contacted her neighbor, Cindy Burke (“Burke”), and requested that Burke check on
her family. Burke testified that Ms. Koven told her over the phone that Mr. Koven was
suicidal. Ms. Koven testified that she contacted Burke because she was worried about her
husband, but that she does not recall telling Burke that Mr. Koven was suicidal. Ms. Koven
admitted, however, that she was aware of a past suicide attempt by her husband at the time
she contacted Burke.

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2.
Rather than going to the Koven home, Burke contacted police. Burke informed
the police that Ms. Koven had advised her that Mr. Koven was suicidal.
3.
Following receipt of Burke’s call, police officers Murdoch, Hammond, Lewis
and Sorenson traveled to the Koven home. When the officers arrived, they approached Mr.
Koven outside his home and told him that they were there to conduct a health and welfare
check. The officers informed Mr. Koven that they received a report that he was suicidal and
that they needed to speak with him or they would have to take him into emergency protective
custody (“EPC”). Mr. Koven denied being suicidal or having threatened suicide and allowed
the officers to see his children, who, upon examination, appeared to be fine. Mr. Koven
testified that at the time the officers arrived, they seemed very concerned about the situation.
4.
Mr. Koven refused to answer questions asked by Murdoch, the officer in
charge. Hammond testified that Mr. Koven was agitated, combative, belligerent, and refused
to speak to the officers. Likewise, Sorenson testified that Mr. Koven was uncooperative and
belligerent. Lewis also testified that Mr. Koven was agitated and refused to answer basic
questions. Because Mr. Koven refused to answer questions and was uncooperative, Murdoch
ordered the officers to place Mr. Koven into EPC. Mr. Koven was then hand-cuffed and
placed in the back of a police cruiser. While in the cruiser, Mr. Koven kicked the passenger
door, which resulted in damage to the vehicle’s window.
5.
Mr. Koven testified that he was cooperative with the officers, but he
acknowledged that he told Murdoch he did not want to speak to him and told Murdoch to
leave. Mr. Koven further testified that he did not know what Murdoch meant by “EPC.” He
stated that he had known what that meant, he probably would have slammed the door to his
home and made the officers kick the door down.
6.
After Mr. Koven was taken into custody, Sorenson transported him to the
Lasting Hope mental health facility in Omaha, Nebraska. Mr. Koven stayed at Lasting Hope
for approximately two weeks.
7.
With Mr. Koven in custody, Lewis entered Plaintiffs’ house to supervise
Plaintiffs’ children until arrangements could be made to put them in foster care. After being
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in the home for a couple hours, Lewis went downstairs to the basement to look for clean
clothes for the children to take to foster care.
8.
Lewis could smell the odor of marijuana as he entered the basement. When he
got downstairs, he walked toward a room that appeared to be a bathroom. Lewis went into
the bathroom and he saw what appeared to be marijuana twigs and marijuana bongs. Lewis
was then met by Plaintiffs’ daughter, Kristin, who pointed Lewis toward the laundry room.
As he was leaving the laundry room, Nathan, Plaintiffs’ son, pointed toward a closed door
in the basement and stated that it was Daddy’s room. Nathan opened the door, but Kristin
shut it. Lewis testified at trial that his “professional curiosity” got the better of him, and that
he re-opened the door and took three steps inside the room. Lewis noticed a filtration system
and a green light while in the room. Lewis also observed potted marijuana stems. Lewis
concluded that he had found a small marijuana growing operation and exited the room.
Lewis informed Murdoch of what he found in the basement. Lewis did not have a warrant
to search the home.
9.
On June 28, 2009, Ms. Koven spoke to Kennan, a detective with the police
department, by telephone. Ms. Koven refused to consent to a search of the home.
10.
Mr. Koven was later charged by the State of Nebraska with manufacture of a
controlled substance, but the charges were dismissed following a suppression hearing.
11.
The Court finds that the witness testimony of Burke, Hammond, Lewis,
Murdoch, Sorenson, Kennan and Walker is credible and supported by the evidence. The
officers’ testimony was clear and their demeanor was professional. The Court finds the
testimony of Mr. and Ms. Koven and Kristin Koven less than credible to the extent their
testimony is primarily self-serving and inconsistent with the other evidence of record.
CONCLUSIONS OF LAW
A.

Placement of Mr. Koven in Emergency Protective Custody (Count III)

Mr. Koven contends that his Fourth Amendment rights were violated when he was
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placed in emergency protective custody. A law enforcement officer is authorized under
Nebraska law to take an individual into emergency protective custody if the officer has
probable cause to believe that the person is mentally ill and dangerous. Neb. Rev. Stat. § 71919. Nebraska law defines “mentally ill and dangerous” to include a person who is mentally
ill or substance dependent and, because of such mental illness or substance dependence,
presents:
(1) A substantial risk of serious harm to another person or persons within the
near future as manifested by evidence of recent violent acts or threats of
violence or by placing others in reasonable fear of such harm; or
(2) A substantial risk of serious harm to himself or herself within the near
future as manifested by evidence of recent attempts at, or threats of, suicide or
serious bodily harm or evidence of inability to provide for his or her basic
human needs . . .
Neb. Rev. Stat. § 71-908.
The Court finds that the officers had probable cause to place Mr. Koven in emergency
protective custody. Mr. Koven admittedly refused to speak to Murdoch, the officer in
charge. Additionally, several of the other officers on the scene testified that Mr. Koven was
uncooperative and combative. The Court finds the officers’ testimony as to Mr. Koven’s
behavior during the encounter credible and supported by the evidence. Moreover, Mr. Koven
himself testified that he would have resisted the officers’ attempts to place him into
emergency protective custody. Mr. Koven’s erratic behavior is further evidenced by his
behavior in the police cruiser. The Court finds no constitutional violation under the
circumstances of this case. Plaintiffs’ Complaint will be dismissed with prejudice as to
Murdoch.
Moreover, even if Plaintiffs could establish that Murdoch did not have probable cause
to take Mr. Koven into custody, Murdoch would nevertheless be entitled to qualified
immunity. “Qualified immunity shields government officials from suit unless their conduct
violated a clearly established constitutional or statutory right of which a reasonable person
would have known.” Yowell v. Combs, 89 F.3d 542, 544 (8th Cir. 1996). “Stated another
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way, qualified immunity shields a defendant from suit if he or she could have reasonably
believed his or her conduct to be lawful in light of clearly established law and the
information that the defendant possessed.” Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th
Cir. 2000) (internal quotations and citation omitted). “The qualified immunity standard gives
ample room for mistaken judgments by protecting all but the plainly incompetent or those
who knowingly violate the law.” Id. (quotation and citation omitted).
The police received a report that Mr. Koven was suicidal. Mr. Koven was
uncooperative and refused to answer questions. Knowing that Mr. Koven had small children
in the house, and given Mr. Koven’s behavior and the information received from Burke, the
Court is unable to conclude that Murdoch acted unreasonably in removing the children from
Mr. Koven’s care and taking Mr. Koven into custody.
B.

Search of Plaintiffs’ Home (Count I)

Plaintiffs also allege a deprivation of their right to be free from unreasonable search
and seizure. “The Fourth Amendment protects the right of the people to be secure in their
persons, houses, papers and effects, against unreasonable searches and seizures.” True v.
Nebraska, 612 F.3d 676, 680 (8th Cir. 2010) (internal quotation and citation omitted). “The
Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary
and invasive acts by officers of the Government, without regard to whether the government
actor is investigating crime or performing another function.” Id. (quotation and citation
omitted).
“The Fourth Amendment prohibits a warrantless entry of a home by law enforcement
officers unless the circumstances are within a reasonableness exception to the warrant
requirement.” United States v. Clarke, 564 F.3d 949, 958-59 (8th Cir. 2009). The Eighth
Circuit has recognized a “reasonableness exception to the warrant requirement which allows
a non-consensual, warrantless search of a home if the search is supported by probable cause
and exigent circumstances.” Id. “Exigent circumstances exist if an objectively reasonable
officer on the scene would have sufficient grounds to believe an exigency existed.” United
States v. Poe, 462 F.3d 997, 1000 (8th Cir. 2006). “Exigent circumstances include threats
to an individual’s life, a suspect’s imminent escape, the imminent destruction of evidence,
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or situations where there is a compelling need for official action and there is no time to
secure a warrant.” Smith v. Kansas City, Mo. Police Dep’t, 586 F.3d 576, 580 (8th Cir.
2009) (internal quotation and citation omitted).
There has not been a demonstration of exigency in this case. Although the odor of
marijuana was present in the basement, and Lewis viewed other drug-related items in plainview while downstairs, there was no reason for Lewis to open the door to Mr. Koven’s room.
There was no exigent circumstances present which made a warrantless search necessary at
that point. Mr. Koven had been removed from the home and the only occupants remaining
in the residence were the Koven children. There was no threat that evidence would be
destroyed. In fact, Lewis had been in the Koven home for several hours prior to venturing
into the basement. Lewis admits that he opened the door to the room because his
professional curiosity got the best of him. The Court finds that Plaintiffs’ constitutional
rights were violated by Lewis’ warrantless search of their home.
Lewis is not entitled to qualified immunity on Plaintiffs’ unlawful search claim. It is
well-settled that the Fourth Amendment requires that a warrantless search of the home be
supported by consent or by probable cause and exigent circumstances. Poe, 462 F.3d at 999.
A reasonable officer would have known that searching the home under the circumstances
violated a clearly established right. Lewis had no reason to believe his conduct was lawful
in light of this clearly established law and the information then in his possession. In short,
Lewis’ behavior was not objectively reasonable in light of the clearly established law at the
time. Therefore, judgment will be entered in favor of Plaintiffs and against Lewis on the
unlawful search claim.
C.

Damages

As stated above, the Kovens’ Fourth Amendment rights were violated by Lewis’
warrantless search of their home. However, Plaintiffs have failed to show that they sustained
any actual damages as a result of Lewis’ search.
The purpose of § 1983 damages is “to compensate persons for injuries that are caused
by the deprivation of constitutional rights.” Memphis Community School Dist. v. Stachura,
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477 U.S. 299, 307 (1986) (quotation and citation omitted). “[C]ompensatory damages may
include not only out-of-pocket loss and other monetary harms, but also such injuries as
impairment of reputation . . . , personal humiliation, and mental anguish and suffering.” Id.
(internal quotation and citation omitted). However, “[i]n order to recover substantial
compensatory damages, actual injury must be demonstrated.” Reutcke v. Dahm, 707 F. Supp.
1121, 1135 (D. Neb. 1988). Additionally, compensatory damages “must be considered with
reference to the nature of the interests protected by the particular constitutional right in
question.” Carey v. Piphus, 435 U.S. 247, 265 (1978). In other words, recovery in the
Fourth Amendment context is limited “to damages directly related to the invasion of privacy
that the Fourth Amendment is intended to protect.” Padilla v. Miller, 143 F. Supp.2d 479,
491 (M.D. Pa. 2001).
Plaintiffs have not demonstrated any actual damage which resulted from the search
of their home. Mr. Koven provided some conclusory testimony regarding emotional distress
Plaintiffs and their children purportedly sustained as a result of their encounter with the
Defendant police officers on June 27, 2009. Mr. Koven also provided some ambiguous and
unsubstantiated testimony about the impact the incident had on his ability to maintain a job
and his reputation in the community. This testimony is insufficient to establish actual injury.
There was no credible testimony explaining the circumstances of these alleged injuries in
reasonable detail. There is no evidence that any mental distress or negative impact on
Plaintiffs’ reputations or employment prospects is actually attributable to the Fourth
Amendment violation. See Carey, 435 U.S. at 264 (stating that although mental and
emotional distress caused by the violation of a federally-protected right is compensable under
§ 1983, “neither the likelihood of such injury nor the difficulty of proving it is so great as to
justify awarding compensatory damages without proof that such injury actually was
caused”). Although criminal charges were levied against Mr. Koven as a result of the
materials found during the search, victims of unreasonable searches or seizures “cannot be
compensated for injuries that result from the discovery of incriminating evidence and
consequent criminal prosecution.” Townes v. City of New York, 176 F.3d 138, 148 (3d Cir.
1999).
Nevertheless, if a plaintiff shows that his Fourth Amendment rights were violated
through an illegal search of his home, he is entitled to nominal damages even if he cannot
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prove actual damages. Garrett v. Clarke, 147 F.3d 745, 747 (8th Cir. 1998). See also
Westborough Mall, Inc. v. City of Cape Girardeau, Mo., 794 F.2d 330, 339 (8th Cir. 1986)
(“A plaintiff whose constitutional rights have been violated is entitled to a finding of liability
and nominal damages even if no compensatory damages are shown”). The Court will award
Plaintiffs nominal damages in the amount of $1.00 for the unlawful search of their home.
There is no basis for an award of punitive damages in this case. “Punitive damages
may be recovered in a § 1983 case when a defendant’s conduct is shown to be motivated by
malicious or evil motive or intent, or when it involves reckless or careless disregard or
indifference” to the protected rights of others. Estate of Davis by Ostenfeld v. Delo, 115 F.3d
1388, 1396 (8th Cir. 1997) (citation omitted). Punitive damages may even be awarded when
only nominal damages are shown. See Goodwin v. Circuit Court of St. Louis County, Mo.,
729 F.2d 541, 548 (8th Cir. 1984) (“As to the claim that punitive damages may not be
awarded unless actual damages are proved, this is not the law”). Having considered the
matter, the Court finds that there is no evidence that Lewis’ entry into the basement and
search of the home was motivated by an evil intent or taken in reckless disregard of
Plaintiffs’ federally protected rights.
Accordingly,
IT IS ORDERED:
1.

Judgment shall be entered by separate document in favor of Plaintiffs,
and against Defendant Leroy Lewis in the amount of $1.00, plus
taxable court costs.

2.

Plaintiffs’ claim against Defendant David Murdoch is dismissed with
prejudice.

DATED January 9, 2014.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge
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