645 Fed.Appx. 785 (10th Cir. 2016), 14-5128, Goss v. Board of County Commissioners of Creek County

Docket Nº:14-5128, 15-5004
Citation:645 Fed.Appx. 785
Opinion Judge:Gregory A. Phillips, Circuit Judge
Party Name:DONALD JAY GOSS; LINDA SUE GOSS, Plaintiffs - Appellants, v. BOARD OF COUNTY COMMISSIONERS OF CREEK COUNTY, State of Oklahoma; CREEK COUNTY SHERIFF JOHN DAVIS, in his official capacity, Defendants - Appellees
Attorney:For DONALD JAY GOSS, LINDA SUE GOSS (14-5128, 15-5004), Plaintiffs - Appellants: Bradley Harold Mallett, Taylor, Foster, Mallett, Downs, Ramsey & Russell, Claremore, OK; Clinton D. Russell, Stratton Taylor Taylor Burrage Foster Mallett Downs Ramsey & Russell, Claremore, OK. For CREEK COUNTY BOARD...
Judge Panel:Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges.
Case Date:April 26, 2016
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 785

645 Fed.Appx. 785 (10th Cir. 2016)

DONALD JAY GOSS; LINDA SUE GOSS, Plaintiffs - Appellants,

v.

BOARD OF COUNTY COMMISSIONERS OF CREEK COUNTY, State of Oklahoma; CREEK COUNTY SHERIFF JOHN DAVIS, in his official capacity, Defendants - Appellees

Nos. 14-5128, 15-5004

United States Court of Appeals, Tenth Circuit

April 26, 2016

(D.C. No. 4:13-CV-00374-CVE-TLW). (N.D. Okla.).

For DONALD JAY GOSS, LINDA SUE GOSS (14-5128, 15-5004), Plaintiffs - Appellants: Bradley Harold Mallett, Taylor, Foster, Mallett, Downs, Ramsey & Russell, Claremore, OK; Clinton D. Russell, Stratton Taylor Taylor Burrage Foster Mallett Downs Ramsey & Russell, Claremore, OK.

For CREEK COUNTY BOARD OF COUNTY COMMISSIONERS (14-5128, 15-5004), State of Oklahoma, Defendant - Appellee: Andrew A. Artus, Christopher James Collins, Esq., Ambre C. Gooch, Esq., Jordan L. Miller, Collins Zorn & Wagner, Oklahoma City, OK.

For JOHN DAVIS, Creek County Sheriff, in his official capacity (14-5128, 15-5004), Defendant - Appellee: Christopher James Collins, Esq., Ambre C. Gooch, Esq., Jordan L. Miller, Collins Zorn & Wagner, Oklahoma City, OK.

Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges.

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ORDER AND JUDGMENT[*]

Gregory A. Phillips, Circuit Judge

Donald and Linda Goss1 appeal the district court's grant of summary judgment against their 42 U.S.C. § 1983 claims arising from what they assert was an illegal search warrant resulting in their wrongful arrest and illegal confinement. They also

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appeal the district court's awarding costs to the defendants. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court.

I. Background

On March 31, 2012, Jesse Thompson, an informant in Tulsa County, Oklahoma, told Deputy Jesse Brewer, an investigator with the Tulsa County Metro Drug Task Force, that he had smoked marijuana the day before with a man named Larry[2] at a mobile home in Mannford, Oklahoma. Thompson told Deputy Brewer that Larry had a large amount of marijuana on a coffee table in the mobile home. Thompson said that he had bought marijuana from Larry about 40 times at a particular mobile home in the trailer park. Thompson rode along with Deputy Brewer and showed him the mobile home where he had bought the marijuana. The mobile home's street address was 283 Navajo Place. Because the mobile home was in Creek County, and thus outside Deputy Brewer's jurisdiction, Deputy Brewer called Lieutenant Les Ruhman of the Creek County Sheriff's Office, eventually speaking to Deputy Scott Forrester. While on the telephone with and being directed by Deputy Brewer, Deputy Forrester drove past the mobile home to confirm its location and description.

Unfortunately, the affidavit Deputy Forrester submitted to obtain a search warrant misstated the mobile home's address as 238 Navajo Place (instead of 283 Navajo Place), but the affidavit also contained accurate information about the mobile home's true location: The residence is a singlewide mobile home, comprised of light color siding. The front door of the residence face [sic] east, to access the first door you go through a covered screened in porch.

Directions to the residence are from the intersection of Basin Road and Keystone loop go West to the " Y" intersection one mile. Turn South on Keystone loop to Creek Lane, continue South to Navajo Place, turn West. The residence is located as the fourth residence on the South side of the road. The residence number is marked on a box on the front of the residence.

R. vol. 2 at 381. The affidavit declares that most of its contents came from Deputy Brewer's interview with informant Thompson.

On March 31, 2012, a state judge issued a search warrant for 283 Navajo Place. In the search warrant itself, Deputy Forrester provided the correct address as 283 Navajo Place (rather than 238). In addition, he included within the search warrant an identical description of the mobile home and its location. The search warrant authorized the search for and seizure of the following items: marijuana, fruits, instrumentalities, monies, records indicating the sales of illegal drugs and proof of residency . . . located at, and . . . now being kept, possessed, and concealed by the above named defendant [Tatro], or by other persons in whose possession he has placed it for the purpose of concealment, at or upon or within a certain vehicle and/or house, building or premises, the curtilage thereof and the appurtenances thereunto belonging . . . .

Id. at 383.

At about 9:00 p.m. that night, when officers arrived at the mobile home at 283

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Navajo Place, Linda answered the door, and the officers served her with the search warrant. The caption on the search warrant read, " The State of Oklahoma, Plaintiff, vs. Larry Tatro[,] Defendant" (" Tatro" was hand-printed after striking " Unknown Last Name" ). Id. Linda told the deputies that she did not know anyone named Larry Tatro. Donald, who had been on a fishing trip, arrived home during the execution of the search warrant and parked his truck (which had his boat attached) a couple of homes down the street from 283 Navajo Place.

Deputies found no one named Larry Tatro in the mobile home. Although the deputies deployed a drug dog, the dog did not alert to the presence of illegal substances. Even so, in executing the search, the law-enforcement officers found behind a living-room sofa a gallon plastic bag containing white residue and a powdery substance. Because Deputy Forrester thought the bag's contents smelled like methamphetamine, he field tested a sample from the bag. According to Deputy Forrester, the powdery substance tested positive for methamphetamine. In addition to searching the mobile home, the officers also searched a travel trailer that was parked " three, four feet" away from the screened-in porch of the mobile home. Id. at 354. They also searched the truck, boat, and boat trailer. They seized several items, including firearms found in the home and boat. After the positive field test, the deputies arrested the Gosses for possessing methamphetamine, maintaining a place where illegal drugs were kept, and possessing a firearm during the commission of a felony.

From April 1, 2012, until late on April 3, 2012, the Gosses were detained in the Creek County Criminal Justice Center (the jail). The Gosses each raise claims relating to the conditions of their confinement. Linda bases her claims on the jail's providing her ill-fitting clothing--a 6XL size, the largest the jail said it had--whose top " [b]arely" fit and whose pants failed to cover her backside. R. vol. 1 at 198. During her confinement, she was housed in a pod that had one shower and one toilet. Although the jail staff did not restrict her use of the toilet, her use was somewhat constrained by the need to share the limited facility with the other inhabitants in her pod. Because Linda has diabetes, she is sometimes unable to regulate her urination. While waiting in line to use the bathroom, she urinated on herself several times. Linda wore the same set of clothing throughout her three-day stay at the jail, and she never asked for a new set.

Donald bases his claims on being deprived of his prescribed medications to treat a number of medical ailments, including post-traumatic stress disorder (PTSD), pain, nerve damage, and depression. During his confinement, Donald repeatedly requested his medications, but the jail staff never provided them to him. Also during his jailing, another detainee assaulted Donald while he was in the shower. Donald never requested any medical attention for any injuries caused by the assault.

On June 4, 2012, the Oklahoma State Bureau of Investigation (OSBI) ran a more precise drug test, which established that the bag's contents did not contain methamphetamine. Because OSBI had set its testing at the most sensitive testing threshold level, it declined to retest the sample. Soon afterward, local authorities dropped the charges against the Gosses. Ultimately, law enforcement returned some personal property to the Gosses--their truck, boat...

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