Swift v. Cohart et al

Filing 88

MEMORANDUM AND ORDER - The plaintiff's motion for summary judgment (filing 61 ) is denied. The defendant's motion for summary judgment (filing 71 ) is granted. The plaintiff's motion for summary judgment (filing 84 ) is denied. The plaintiff's complaint is dismissed. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES SWIFT,
Plaintiff,

8:14-CV-243

vs.
MEMORANDUM AND ORDER
RICHARD KYLER,
Defendant.
This matter is before the Court on the defendant's motion for summary
judgment (filing 71), the plaintiff's motion for summary judgment (filing 61),
and the plaintiff's cross-motion for summary judgment (filing 84). The Court
will deny the plaintiff's motion, grant the defendant's motion, and dismiss the
plaintiff's complaint.
BACKGROUND
This case began with a report to the Omaha Police Department that the
plaintiff was selling drugs from his Omaha home. Filing 72 at 2.1 On August
1, 2014, the defendant applied for a search warrant for the residence, which
was issued by a state county court judge. Filing 72 at 3. On August 8, 2014,
the defendant and other Omaha law enforcement officers executed the
warrant. Filing 72 at 3. The plaintiff was not home at the time. Filing 72 at 4.

Pursuant to NECivR 56.1, a party moving for summary judgment must include in its brief
a statement of material facts about which the movant contends there is no dispute, and the
party opposing summary judgment must include in its brief a concise response to that
statement of facts, noting any disagreement. Properly referenced material facts in the
movant's statement are considered admitted unless controverted in the opposing party's
response. NECivR 56.1(b)(1). The Court has substantially relied upon the defendant's
statement of undisputed material facts, because the plaintiff did not controvert it, either in
a brief as required by the local rules, or even by presenting evidence that might contradict
it. Accordingly, the plaintiff has waived any objection to the defendants' statement of facts
by failing to properly dispute it. See, Jackson v. United Parcel Serv., 643 F.3d 1081, 1088
(8th Cir. 2011); Ballard v. Heineman, 548 F.3d 1132, 1133-34 (8th Cir. 2008); Libel v.
Adventure Lands of Am., Inc., 482 F.3d 1028, 1032-33 (8th Cir. 2007); Jones v. United
Parcel Serv., 461 F.3d 982, 989-91 (8th Cir. 2006); Nw. Bank & Trust Co. v. First Ill. Nat'l
Bank, 354 F.3d 721, 724-25 (8th Cir. 2003); compare Jenkins v. Winter, 540 F.3d 742, 747
(8th Cir. 2008). But the Court also notes that the defendant's index of evidence
substantiates his statement of undisputed material facts.
1

Instead, the plaintiff was nearby, being detained by police conducting a
traffic stop. Filing 72 at 4. He was operating a motor vehicle without a valid
license, in violation of Nebraska law. Filing 72 at 4. He was detained and,
along with his passenger, was transported to his residence, where he was
Mirandized and invoked his right to counsel.2 Filing 72 at 4. Drug residue
and paraphernalia were located at the residence and seized, but the plaintiff
was not arrested at that time. Filing 72 at 5.
The plaintiff sued the Omaha police and the defendant, who was then
styled as a John Doe. Filing 1 at 1. The plaintiff's complaint, generally
described, alleged that the defendants (i.e., the City of Omaha and John Doe)
had illegally broken into his house and had detained him and his passenger
while driving, purportedly because he had not used his traffic signal. Filing 1
at 1-2. Then, according to the complaint, they were handcuffed and
transported to his residence. Filing 1 at 2. The complaint sought money
damages. Filing 1 at 3.
On initial review, the Court found that the plaintiff had not stated a
claim against the City, but the plaintiff might have a viable Fourth
Amendment claim against John Doe arising from the plaintiff's detention
while away from the residence to be searched.3 Filing 6 at 4-5 (citing Bailey v.
United States, 133 S. Ct. 1031, 1042-43 (2013)). So, the Court gave the
plaintiff an opportunity to file an amended complaint stating a claim for
relief against the City, and gave the plaintiff 30 days to identify John Doe so
that process could be served. Filing 6 at 5. The plaintiff did not file an
amended complaint, so his claims against the City were dismissed. Filing 8 at
2. He did, however, file a supplement identifying John Doe as the defendant.
Filing 7. The Court ordered that the plaintiff's claim against the defendant
proceed to service of process. Filing 8. The plaintiff subsequently filed a
number of supplements to his pleadings, raising allegations such as that he
was "illegally arrested on pretext search warrant," and that the defendant
contacted the plaintiff and asked him to work as a confidential informant.
Filing 23; filing 30; filing 32.4
After several delays occasioned by the plaintiff's filings, the defendant
moved for summary judgment. Filing 71. In support of his motion for
The complaint was initially somewhat unclear about who was where. But from the entire
record, the Court can say that the plaintiff's wife, Arnetta Hill, was still at home when the
search warrant was executed, while the plaintiff and his passenger, Latini Swift Tyler,
were out and about and were detained at the traffic stop. See filing 73-7 at 2.
2

The fact that the plaintiff had been driving without a valid operator's license was not
stated in his complaint.
3

To make sure the record is clear: the Court has aggregated the plaintiff's various
"pleadings," but limited the plaintiff's claim to that brought against this defendant.
4

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summary judgment, the defendant placed evidence before the Court that for
the first time clearly explained two facts: (1) the plaintiff was operating a
motor vehicle without a license when he was detained, and (2) the defendant
was not actually the officer who detained the plaintiff, because the defendant
was at the time busy executing the search warrant. Filing 73-1 at 3. The
plaintiff filed an affidavit in opposition to summary judgment (filing 74), then
filed his own motion for summary judgment (filing 84).
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
DISCUSSION
The defendant's motion for summary judgment is based on qualified
immunity. Qualified immunity shields public officials performing
discretionary functions from liability for conduct that does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known. Parker v. Chard, 777 F.3d 977, 979 (8th Cir. 2015); see,
Messerschmidt v. Millender, 132 S. Ct. 1235, 1244 (2012); Pearson v.
Callahan, 555 U.S. 223, 231 (2009). Qualified immunity balances two
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important interests—the need to hold public officials accountable when they
exercise power irresponsibly, and the need to shield officials from
harassment, distraction, and liability when they perform their duties
reasonably. Pearson, 555 U.S. at 231. It gives government officials breathing
room to make reasonable but mistaken judgments about open legal questions
and protects all but the plainly incompetent or those who knowingly violate
the law. Parker, 777 F.3d at 979-80.
In determining whether a government official is entitled to qualified
immunity, the Court asks (1) whether the facts alleged establish a violation
of a constitutional or statutory right and (2) whether that right was clearly
established at the time of the alleged violation, such that a reasonable official
would have known that his actions were unlawful. Johnson v. Phillips, 664
F.3d 232, 236 (8th Cir. 2011); see Parker, 777 F.3d at 980. Whether an official
protected by qualified immunity may be held personally liable for an
allegedly unlawful official action turns on the objective legal reasonableness
of the action, assessed in light of the legal rules that were clearly established
at the time it was taken. Messerschmidt, 132 S. Ct. at 1245; Pearson, 555
U.S. at 244. The protection of qualified immunity applies regardless of
whether the government official's error is a mistake of law, a mistake of fact,
or a mistake based on mixed questions of law and fact. Messerschmidt, 132 S.
Ct. at 1245.
For purposes of this motion, the Court assumes that the right upon
which the plaintiff's claim against the defendant is based was clearly
established. For a right to be clearly established, the contours of the right
must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right. Parker, 777 F.3d at 980. Clearly
established law is not defined at a high level of generality, since doing so
avoids the crucial question whether the official acted reasonably in the
particular circumstances that he or she faced. Id.; see Seymour v. City of Des
Moines, 519 F.3d 790, 798 (8th Cir. 2008). It is unnecessary to have a case
directly on point, but existing precedent must have placed the statutory or
constitutional question beyond debate. Parker, 777 F.3d at 980. The Supreme
Court's decision in Bailey made it sufficiently clear that when a suspect is
away from the scene of a search, detaining the suspect is not justified by the
search warrant; rather, it is controlled by other standards such as a Terry
stop or an arrest based on probable cause. 133 S. Ct. 1031, 1042.
But that constitutional right was not violated by the defendant in this
case, for two fairly obvious reasons. First, the defendant was not the officer
who detained the plaintiff. And liability for damages for a federal
constitutional tort is personal, so each defendant's conduct must be
independently assessed. Wilson v. Northcutt, 441 F.3d 586, 591 (8th Cir.
2006). Second, the plaintiff does not contest that he was driving without a
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license. And that provided cause for his arrest.5 See United States v.
Stephens, 350 F.3d 778, 780 (8th Cir. 2003); see also, Neb. Rev. Stat. § 60-484,
Neb. Rev. Stat. § 60-4,111; Neb. Rev. Stat. § 28-106(1).
So, the remaining question is whether it was constitutionally
unreasonable to transport the plaintiff to his residence after he was detained,
instead of to jail. Or, stated another way: did the plaintiff have a
constitutional right to go to jail or be released, instead of being taken
someplace else? The Court is aware of no authority establishing such a right,
much less clearly establishing such a right. Bailey does not help the plaintiff
there. To the extent that the defendant can be said to have directed the
plaintiff to be transported after his arrest, the defendant is entitled to
qualified immunity. "'Officials are not liable for bad guesses in gray areas;
they are liable for transgressing bright lines.'" Luckert v. Dodge County, 684
F.3d 808, 817 (8th Cir. 2012). Even if there was a bad guess here—and the
Court does not see any authority suggesting that is the case—there was
certainly no transgression of any bright line.
The plaintiff's opposition to summary judgment goes in an entirely
different direction: the plaintiff is complaining about the search warrant. But
that argument is unavailing, for two reasons. First, the claim that proceeded
to process here was based on the plaintiff's detention, not the search of the
residence. And the uncontroverted evidence establishes that the plaintiff was
detained based on his operation of a vehicle, not the search warrant.
Second, even if the validity of the search warrant was relevant, the
plaintiff's argument regarding the warrant lacks merit. The plaintiff, relying
on Neb. Rev. Stat. § 29-814.04, asserts that the warrant is invalid because
the affidavit supporting issuance of the warrant did not name the
confidential informant upon which it relied. Filing 74; see filing 67. But there
is no such requirement. Section 29-814.04 provides, in relevant part, that a
search warrant "shall indicate the name or names of the person or persons
whose affidavit or statement has been taken in support thereof." But that
person is the police officer seeking the warrant. There is no requirement that
a police officer's informant be identified by name. See State v. Lammers, 676
N.W.2d 716, 724 (Neb. 2004). And information from a confidential informant,

The Court recognizes that at least initially, the plaintiff complained about the basis for
the traffic stop—that is, he was stopped for not activating a turn signal, but he said he had.
See filing 1. But the plaintiff has not pursued that theory since. And more importantly,
even if the defendant can be connected to the plaintiff's detention and transportation, there
is nothing connecting him to the initial stop. If it was reported to the defendant that the
plaintiff had been detained for violating traffic laws, then the defendant's right to rely on
that information entitles him to qualified immunity. See United States v. Hensley, 469 U.S.
221, 230-31 (1985).
5

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independently corroborated, can support issuance of a search warrant. See
United States v. Formaro, 152 F.3d 768, 770 (8th Cir. 1998).6
For the sake of completeness, the Court notes the additional allegations
in one of the plaintiff's supplementary pleadings: characterized loosely, the
plaintiff describes a sequence of events in which the defendant, a week after
executing the search warrant, arranged to meet the plaintiff, and at least
implicitly threatened him with prosecution unless he provided the police with
information. Filing 32 at 1-4.7 But while that may have been unpleasant for
the plaintiff, the Court is aware of no constitutional right that the defendant
would have violated. See Roberts v. United States, 445 U.S. 552, 558-59
(1980); cf., Fare v. Michael C., 442 U.S. 707, 727 (1979); Doody v. Ryan, 649
F.3d 986, 1045 (9th Cir. 2011); United States v. Johnson, 351 F.3d 254, 26162 (6th Cir. 2003); United States v. Gallardo-Marquez, 253 F.3d 1121, 1123
(8th Cir. 2001); United States v. Williams, 47 F.3d 658, 662-63 (4th Cir.
1995); United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1347-48 (5th Cir.
1994); United States v. Rutledge, 900 F.2d 1127, 1130-31 (7th Cir. 1990).
In sum, the evidence before the Court demonstrates that there is no
genuine issue as to any material fact, and that the defendant is entitled to
judgment as a matter of law. Not surprisingly, then, the Court finds that the
plaintiff's motions for summary judgment are without merit. His first
pending motion for summary judgment (filing 61) is unsupported by any
evidence or argument, and therefore does not comply with Fed. R. Civ. P.
56(c). His second pending motion for summary judgment (filing 84) is
supported by an affidavit asserting that something similar to what happened
to the plaintiff also happened to the plaintiff's brother in 1993. See filing 85.
That, of course, does not prove that the plaintiff was unlawfully seized in
2014. So, the Court will deny the plaintiff's motions for summary judgment.
Instead, the Court will grant summary judgment to the defendant.

And to be clear, it is federal law that is at issue here. The plaintiff has misread the
Nebraska statute, but even if he had not, the violation of a state statute does not state a
claim under the federal Constitution or 42 U.S.C. § 1983. Bagley v. Rogerson, 5 F.3d 325,
328 (8th Cir. 1993).
6

That pleading also refers to the "escapade commenc[ing]" when the defendant allegedly
kicked in the plaintiff's door and finding the defendant's wife asleep on the couch. Filing 32
at 4-5. But it is clear that those allegations refer to the execution of the initial search
warrant, see filing 73-7 at 2, and the defendant's actions then were justified by the warrant.
7

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IT IS ORDERED:
1.

The plaintiff's motion for summary judgment (filing 61) is
denied.

2.

The defendant's motion for summary judgment (filing 71) is
granted.

3.

The plaintiff's motion for summary judgment (filing 84) is
denied.

4.

The plaintiff's complaint is dismissed.

5.

A separate judgment will be entered.

Dated this 25th day of November, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

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