Everett v. Marks et al

Filing 25

ORDER by Magistrate Judge Charles S. Miller, Jr. denying 23 Motion for Reconsideration. (BG) Distributed on 4/30/2018. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Tilmer Everett,
Plaintiff,
vs.
Roger Marks, III, et. al.,

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ORDER DENYING MOTION FOR
RECONSIDERATION

Case No. 1:17-cv-136

Defendants.
Before the court is plaintiff's motion for reconsideration of the court's order dismissing the
above-entitled action in its entirety. For the reasons set forth below, the motion is denied.
I.

BACKGROUND
The plaintiff, Tilmer Everett (“Everett”), is an inmate at the North Dakota State Penitentiary.

He initiated the above entitled action pro se in July 2017 with the submission of a 48-page
Complaint. Therein he asserted that two Bismarck Police officers, the Bismarck Police Chief, and
a former Assistant State's Attorney (and current state district court judge) violated his civil rights
during the course of two interrelated criminal investigations and a subsequent prosecution that
culminated in his conviction in state district court of the offense gross sexual imposition and that
current Assistant State's Attorneys were perpetuating these violations insofar as they had opposed
his requests for post-conviction relief. Specifically, he asserted that the police officers: falsified their
investigation reports; withheld and/or tampered with evidence; tampered, intimidated and/or misled
witnesses; and perjured themselves at trial. He further asserted that the State's Attorney's office:
unlawfully "bounced" the state district court judge initially assigned to his criminal case; violated
the state district court's discovery orders; suborned perjury; obstructed justice; conspired with local
law enforcement to frame him; and "filed a[n] injunctive motion against [him] with the district
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court." (Doc. No. 2).
The court screened Everett’s Complaint as mandated by 28 U.S.C. § 1915A. Concluding
that the State's Attorney and his assistants (former and present) were immune from suit, that the
police officers were cloaked in immunity with respect to their claimed perjury, and that the
remainder of plaintiff's claims were Heck-barred, the court dismissed Everett’s Complaint in its
entirety.
Everett filed a motion for reconsideration on November 1, 2017, asserting that the court
misconstrued his Complaint and mischaracterized his prayer for relief.1 In so doing, he insisted that
he was simply asserting a claim for false arrest in connection with a reported sexual assault for
which he was never charged and that his references to and discussion of the events culminating in
his conviction for gross sexual imposition were merely contextual. Specifically, he averred:
Notice: I am not attacking my conviction under § 1983 action, but I am instead
challenging Case No. 06-9417 the false arrest(s) as which violated my civil rights
in the very beginning on or around May 30th 2006. I filed a civil rights § 1983
action on “Case No. 06-9417”with the court for the sum of $400.00 charging, fee
to prove that I was falsely and illegally arrested by the Bismarck Police Department
and the Burleigh County States Attorneys office, to include collusion of a cover-up
towards Case No. 06-9417 and obstruction of justice from 2006-2017, referencing
Trevor Goodiron's criminal act committed against K.W.T. the victim. I am only
attacking my false arrest(s)!
2. Whereas in conducting the screening under 28 U.S.C. § 1915A, by the court to
dismiss October 26, 2017. I as plaintiff do believe this court inadequately addressed
and imporperly failed to entertain just case No. 06-9417 false arrest(s). Being that
a § 1983 civil rights action can be filed in federal court to challenge, directly or
indirectly, a valid claim against 1. Bismarck Police and 2. Burleigh County

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The court stated in its screening order that Everett was, amongst other things, seeking the arrest and
prosecution of the individual who he believes committed the offense of which he was wrongfully convicted. The court
now corrects this statement as, upon further review and in light of the motion for reconsideration, it apparent that Everett
is seeking, inter alia, the investigation, arrest, and/or prosecution of an individual he believes committed an offense about
which he was interrogated but never charged--the sexual assault of K.W.T. This correction makes no difference in the
court’s final analysis, however.

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prosecutors with a argument, plaintiff's arrest within Case No. 06-9417 was illegal
in 2006. Thus legally disqualifying police or prosecutors any immunity from civil
liability, which led to the plaintiff's unjust arrest as which has been covered-up from
2006-2017 by fraud.
3. District Court ND, Western Division in page 2 order October 26, 2017 I as
plaintiff did not say in pray for relief, Everett demands . . . .
• the arrest and prosecution of the individual who he believes committed the
offense of which he was wrongfully convicted;
• the appointment special counsel to investigate the Bismarck Police
Department along with the State's Attorney and his assistants;
"Why" would this honorable court intentionally misconstrue the plaintiffs' 1983
request to Case No. 06-9417, as in Complaintant page 45?
A. Prayer for relief from 42 U.S.C. § 1983 violations.
(1) Plaintiff demand judgment that Trevor Goodiron be arrested and dealt
with accordingly for Case No. 06-9417 in pursuant to N.D.C.C. 11-16-06
Appointment for Special Counsel to Prosecute Sexual Asssault Complaint May 30th
2006," who Bismarck police and Burleigh County prosecutors conspired to coverup." Plaintiff did motion the district court on April 4, 2017, to prosecute Cases No.
06-9417 with no response back . . . .
Arguments
District Court, ND no one has ever been charged or prosecuted for Case No. 069417. A sexual assault investigation in 2006 that I Tilmer Everett had illegally been
arrested for by Bismarck Police, addressed in my civil rights § 1983 Complaint Case
No. 1:17-cv-136 dated June 26, 2017. False arrest within Case No. 06-9417 having
merit as in my Complaint, which violated my civil rights on it's face "alone" in front
of the court. First; the courts screening under § 1915A, dismiss is improper.
Second; the courts order page 2 about Case No. 06-9417, is improper and
completely wrong.
4. For the record, I did not file a civil rights § 1983 lawsuit on Case No. 06-9442,
against Bismarck Police officers or prosecutors or prosecutors just yet (Case No. 06k-1026) with you the District Court ND, Western Division. I am not stupid and
know that I can only file a § 1983 civil rights Complaint, after my conviction within
Case No. 06-9442 is reversed on the grounds of being completely innocent by
certificate of the court. I do realize those requirements are strictly applied in federal
lawsuit. And so my conviction is not being complained, because I am still fighting
that above case file in the state district court. “Petition May 22, 2017 and Amended
pleading September 25, 2017 have been re-litigated, towards my illegal conviction
Case No. 06-9442.”
• All motions submitted to the District Court ND, “after” filing my § 1983 civil rights
Complaint on Case No. 06-9417 (false arrest), was only to establish circumstances,
how Bismarck police and the prosecution are covering-up my false arrest.
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Obstruction of Justice! A assault Complaint (06-9417), that needs to be resolved in
truth...
5. District court ND, the mandate 28 U.S.C. § 1915A initiated against my false
arrest § 1983 civil rights complaint case No. 06-9417 dated June 26, 2018 has been
distorted, in the context of my conviction for case no. 06-9442 stated in your order
October 26, 2017. This completely prejudices my Notice of Appeal and Appeal
Process with the United States Court of Appeals for the Eighth Circuit. Making the
Heck-Bar ruling extremely unethical against violations of my civil rights towards
case no. 06-9417, a crime I was never convicted for manipulatively used in the
order. Plaintiff must request the court to reconsider dismissal, since a § 1983 civil
rights complaint has been declared against “just” case no. 06-9417 false arrest in
2006. That in pursuant to Federal Rules of Civil Procedure rule 5.1 constitutional
challenge to a Statute used above (mandate), the Heck-Bar ruling be stricken, so that
plaintiff’s § 1983 action be used to attack his false arrest in 2006 . . . .
(Docket No. 23) (emphasis and errors in original).
II.

DISCUSSION
Everett references two “case numbers” in his Complaint and Motion for Reconsideration:

Nos. 06-9417 and 06-9442. Notably, these numbers were not assigned by the state district court to
any cases pending before it. Rather, they were assigned by the Bismarck Police Department to two
separate investigations. The first investigation, No. 06-9417, concerned the sexual assault of
K.W.T. (Doc. No. 6-6). The second investigation, No. 06-9442, concerned the sexual assault of
F.R.L. that, according to police reports, came to light during the investigation of and bore a
connection with the reported sexual assault of K.W.T. (Doc. Nos. 2-2 and 2-14). It was the sexual
assault of F.R.L for which Everett was ultimately charged, tried, and convicted.
Everett’s assertion that the court erred when construing the pleadings and that he is only
challenging the validity of his arrest in connection with Investigation No. 06-9417 is specious.
Although he is now endeavoring to recast his claim as one for false arrest, he is clearly taking issue
with the alleged misconduct of police officers and prosecutors at trial, on appeal, and during post-

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conviction. proceedings.2
Everett’s effort to now parse the two incidents of sexual assault and challenge his the validity
of his arrest as to one of them is unavailing. First, his claim of false arrest is inextricably intertwined
with his allegations of police and prosecutor misconduct and his belief in a broader conspiracy that
resulted in his prosecution. Second, his pleadings are devoid of any suggestion that his arrest in
connection with Investigation No. 06-9417 occurred separate and apart from this arrest in
connection with Investigation No. 06-9442). Third, regardless of whether he was arrested once or
twice, his pleadings are devoid of any assertion that he was arrested without a warrant. See
Washington v. Tilton, No. 2:10-997, 2010 WL 2084106, at *2 (D.S.C. May 7, 2010) (“[T]o state
a claim for false arrest, a plaintiff must claim an arrest was made without an arrest warrant.”); see
also Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir.1998) (“[A] claim for false arrest may be
considered only when no arrest warrant has been obtained.”).
In any event, the supplemental materials filed by Everett belie the notion that he was arrested
more than once. Rather, these materials evince that he was: (1) questioned by detectives on May
30, 2006, about the sexual assaults of K.T.W. and F.R.L; and (2) arrested the following day (on
May 31, 2006) in connection with the sexual assault of F.R.L. and charged with gross sexual
imposition.
One could arguably surmise that Everett is equating the May 30, 2006, interview to an
arrest. Four things are worth noting, however. First, according to the police reports and transcript
excerpts filed by Everett, he submitted to the interview voluntarily. (Doc. No. 2-14). Second, the
interview encompassed both investigations. (Id.). Third, Everett was advised at the outset of the
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Everett’s insistence that he only intended to assert a claim for false arrest with respect to Investigation No.
06-9417 begs the question why named the State’s Attorney and his assistants as defendants.

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interview that he was not under arrest. (Doc. No. 11-1) (Transcript of Jury Trial, Vol. II, pp.
327)). Four, there is nothing in either the Complaint or in the supplemental materials filed by
Everett to suggest that he was held by law enforcement after the interview. 3
It is well established that probable cause to believe that a person has committed any crime
will preclude a false arrest claim, even if the person was arrested on additional or different charges
for which there was no probable cause. See Holmes v. Village of Hoffman Estate, 511 F.3d 673,
682 (7th Cir. 2007) (“An arrested individual is no more seized when he is arrested on three grounds
rather than one; and so long as there is a reasonable basis for the arrest, the seizure is justified on
that basis even if any other ground cited for the arrest was flawed.”); see also Abbott v. Sangamon
Cty., Ill, 705 F.3d 706, 70 (7th Cir. 2013) (“[A]n arrest can be supported by probable cause that the
arrestee committed any crime, regardless of the officer's belief as to which crime was at issue.”).
If. was Everett was arrested on multiple grounds, the fact that he was not charged with multiple
offenses does not now constitute the basis for false arrest claim.
III.

CONCLUSION
Everett has not stated a facially viable claim for false arrest and his pleadings are otherwise

devoid of any cognizable claims for the reason articulated by the court’s in its order of dismissal.
Everett’s motion for reconsideration (Doc. No. 23) is therefore DENIED.

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The substance or lack thereof aside, Everett’s claim for false arrest may be timed-barred. “Section 1983
provides a federal cause of action, but in several respects relevant here federal law looks to the law of the State in which
the cause of action arose.” Wallace v. Kato, 549 U.S. 384, 388 (2007). “This is so for the length of the statute of
limitations: It is that which the State provides for personal-injury torts.” Id. Under North Dakota law, there is a twoyear statute of limitations on a claim for false arrest See O’Fallon v. Pollard, 427 N.W.2d 809, 811 (N.D. 1988). see
also N.D.C.C. § 28-01-18(1). Everett initiated the above-entitled action in July 2017, or more than ten years after a
cause of action for false arrest had accrued.

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IT IS SO ORDERED.
Dated this 30th day of April, 2018.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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