656 F.3d 300 (6th Cir. 2011), 10-6274, Cochran v. Gilliam

Docket Nº:10-6274.
Citation:656 F.3d 300
Opinion Judge:ZOUHARY, District Judge.
Party Name:Rodney COCHRAN, Plaintiff-Appellee, v. Dan GILLIAM and Don Gilliam, individually, Defendants-Appellants.
Attorney:Winter R. Huff, Law Offices Of John G. Prather, Somerset, Kentucky, for Appellants. Cameron Cole Griffith, Theodore H. Lavit & Associates, P.S.C., Lebanon, Kentucky, for Appellee. Winter R. Huff, Law Offices of John G. Prather, Somerset, Kentucky, for Appellants. Theodore H. Lavit, Theodore H. La...
Judge Panel:Before: McKEAGUE and WHITE, Circuit Judges; ZOUHARY, District Judge.[*]
Case Date:September 02, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
FREE EXCERPT

Page 300

656 F.3d 300 (6th Cir. 2011)

Rodney COCHRAN, Plaintiff-Appellee,

v.

Dan GILLIAM and Don Gilliam, individually, Defendants-Appellants.

No. 10-6274.

United States Court of Appeals, Sixth Circuit

September 2, 2011

Argued: April 29, 2011.

Page 301

[Copyrighted Material Omitted]

Page 302

ARGUED:

Winter R. Huff, Law Offices Of John G. Prather, Somerset, Kentucky, for Appellants.

Cameron Cole Griffith, Theodore H. Lavit & Associates, P.S.C., Lebanon, Kentucky, for Appellee.

ON BRIEF:

Winter R. Huff, Law Offices of John G. Prather, Somerset, Kentucky, for Appellants.

Theodore H. Lavit, Theodore H. Lavit & Associates, P.S.C., Lebanon, Kentucky, for Appellee.

Before: McKEAGUE and WHITE, Circuit Judges; ZOUHARY, District Judge.[*]

OPINION

ZOUHARY, District Judge.

In this 42 U.S.C. § 1983 action, Defendants-Appellants Dan and Don Gilliam (collectively, " Gilliams" ) appeal the district court's denial of their motion for summary judgment on the basis of qualified immunity. Plaintiff-Appellee Rodney Cochran alleges the Gilliams, both deputy sheriffs in Lincoln County, Kentucky, violated his constitutional rights by assisting Cochran's landlords in wrongfully seizing all his personal property without due process during the execution of an eviction order. For the reasons set forth below, we AFFIRM the district court's decision denying summary judgment.

BACKGROUND

Cochran's Eviction

In 2008, Rodney Cochran leased a home from Charles and Laila Williams (" Landlords" )

Page 303

in Stanford, Kentucky. Cochran fell behind on his rent and, as of August 2008, Cochran owed the Landlords $1,225 for a portion of the July rent, rent for the entire month of August, and late fees. Cochran v. Folger, 740 F.Supp.2d 923, 927 (E.D.Ky.2010).

The Landlords filed a Forcible Detainer Complaint in state court on August 18, 2008. While it is not clear whether Cochran received the Complaint or was aware of the scheduled hearing, the state district court ruled against Cochran and issued a Judgment in Forcible Detainer, stating Cochran " was guilty of forcible detainer as charged and that [the Landlords] have [ sic ] restitution of the premises ... and recover of the Defendant the costs expended herein." Id. at 927-28. In connection with this Judgment, the court issued a standard form " Eviction Notice: Warrant for Possession" on September 5, 2008. The Notice read:

To the Sheriff or any other Constable of Lincoln County: Defendant [Cochran] on 8-28-2008 was found guilty of a forcible detainer of the premises located at 3700 HWY 2141, Stanford, KY 40484 to the injury of the Plaintiff [Mr. and Mrs. Williams]. Defendant having failed to file an appeal on or before the seventh day after the finding, and upon request of the Plaintiff, you are commanded, in the name of the Commonwealth of Kentucky, to put the Plaintiff in possession of the premises, and to make due return to the Court within 8 days showing you have executed this warrant.

This Eviction Notice was executed on Cochran's residence three days later by the Landlords, the Gilliams, and another deputy sheriff who is not a party to this lawsuit. Id. at 928. Cochran does not challenge the validity of the Judgment or the Eviction Notice.

Execution of the Eviction Notice

The events that occurred on September 8, during the execution of the Eviction Notice, form the basis of this lawsuit. The following paragraphs, excerpted from the district court opinion, recite the pertinent facts:

[The] Williams and Deputy Sheriffs Don Gilliam, Bill Schnitzler and Dan Gilliam arrived at Cochran's home at some point during the day to execute the Warrant for Possession. It is undisputed that the Warrant for Possession, and the Judgment in Forcible Detainer on which it was based, were the only authority for the Williamses and the deputy sheriffs' actions that day. It is further undisputed that the deputy sheriffs only reviewed and relied upon the Warrant for Possession for their actions.

According to Don Gilliam's Affidavit, after reviewing the Warrant for Possession, he realized that it was silent as to Cochran's personal property located at the premises. Don Gilliam told Mr. Williams to secure Cochran's personal property as he expected that Cochran would want to take it following the eviction.

Mr. Williams advised Don Gilliam that the Lincoln County Attorney had told him that Cochran's personal property could be sold to recover Mr. and Mrs. Williams' losses. Don Gilliam states that he then contacted the county attorney and was told that Mr. Williams had a " right to sell the property" . Using a key to enter the residence, Mr. and Mrs. Williams, with the assistance of others, removed Cochran's personal property from the residence.

Cochran was at work when he received a message from his neighbor, Dr. Shane Randolph, indicating that the Williams and the deputy sheriffs were at Cochran's home. Cochran's mother and

Page 304

sister were already on site by the time he arrived.

The deputy sheriffs on site threatened to restrain and/or arrest anyone who attempted to interfere with the Williams' procurement of Cochran's personal property. Cochran, his neighbors, and family made calls to 911 and the Kentucky State Police throughout the day to try to stop the Williams from taking Cochran's personal belongings. Dr. Randolph attempted to call the Sheriff, Curt Folger, but was informed that he was out of town on September 8, 2008 and could not be reached.

Don and Dan Gilliam were both present on the premises during the removal of Cochran's personal property. Don Gilliam admits that he paid $100 to the Williams for a television that was removed from Cochran's home. He states that he purchased the television for use at the Sheriff's office. Cochran's guns and prescription medications were also taken by the deputy sheriffs. At the Williams' request, the guns were turned over to Mr. Williams' uncle, Constable John Williams the next day.

Cochran asked the Williams for the return of his personal property and offered money in exchange for the return of his property. Those requests were denied. To date, none of Cochran's personal belongings have been returned to him.

Cochran, 740 F.Supp.2d at 928-29 (internal footnote omitted). Shortly after the eviction, the Landlords declared bankruptcy, further thwarting Cochran's recovery efforts.

Disputed Details

While not disputing the accuracy of the district court's statement of facts, the parties disagree about several additional details of the events on September 8.

First, the Gilliams dispute the district court's statement that Don Gilliam only reviewed and relied upon the Warrant for Possession in support of his actions that day. While it is true that the Warrant was the only document relied upon by Don Gilliam, he spoke with the county attorney by phone to inquire whether the Landlords could indeed sell Cochran's property to recover the rent owed. The Gilliams claim the district court did not consider this additional supporting basis for the Gilliams' actions. The Gilliams' claim is incorrect; the district court explicitly considered Don Gilliam's conversation with the county attorney, comparing his conversation to the scenario in Soldal v. Cook County, Ill., 506 U.S. 56-58, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). Cochran, 740 F.Supp.2d at 931 n. 3.

Second, the parties disagree about the calls made to the Kentucky State Police. The Gilliams claim Cochran called the state police but then sent the responding officers away once they arrived. In contrast, Cochran points to the call report, obtained from the state police, indicating a deputy sheriff advised the responding state police that " they will handle it." While the call report does not explicitly name the sheriff's officer, the record supports that it was a deputy sheriff, not Cochran, who turned away the state police.

Third, the parties disagree over the Gilliams' actual involvement in the alleged seizure of Cochran's personal property. While the Gilliams attempt to portray their presence that day as limited to their official duties of serving the Warrant for Possession and keeping the peace, this generic portrayal is not supported by the record. The Gilliams admit to helping the Landlords load Cochran's property onto the Landlords' vehicles, stating: " [T]he deputies did assist Mr. and Mrs. Williams ... in loading property." Furthermore, the...

To continue reading

FREE SIGN UP