Smith v. Walsh

• Decision Date: 29 September 1993
• Docket Number: No. CIV-92-1521-A.,CIV-92-1521-A.
• Citation: 833 F. Supp. 844
• Court: U.S. District Court — Western District of Oklahoma
• Parties: Howard Ray SMITH, Plaintiff, v. John WALSH, Sheriff Cleveland County, Oklahoma, Michael J. Followwill, Cliff Winkler, Kevin Austin, Dennis Siddles, Jay Denly, Johnnie Oberlechner, John's Trucking, Inc., an Oklahoma corporation, Professional Towers, Inc., d/b/a L & A Wrecker Service, the Board of County Commissioners of Cleveland County, Oklahoma, Defendants.

833 F. Supp. 844

Howard Ray SMITH, Plaintiff, v. John WALSH, Sheriff Cleveland County, Oklahoma, Michael J. Followwill, Cliff Winkler, Kevin Austin, Dennis Siddles, Jay Denly, Johnnie Oberlechner, John's Trucking, Inc., an Oklahoma corporation, Professional Towers, Inc., d/b/a L & A Wrecker Service, the Board of County Commissioners of Cleveland County, Oklahoma, Defendants.

No. CIV-92-1521-A.

United States District Court, W.D. Oklahoma.

September 29, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Joseph E. McKimmey, Shawnee, OK, for plaintiff.

Jamie J. McGraw, Dist. Atty.'s Office, Norman, OK, Tom A. Lucas, Lucas Law Office, Norman, OK, William S. Flanagan, Dist. Atty.'s Office, El Reno, OK, for defendants John Walsh, Cliff Winkler, Kevin Austin and Cleveland County Bd. of County Com'rs.

R. Pope Van Cleef, Jr., Bush & Underwood, Oklahoma City, OK, for defendants Michael J. Followwill and John's Trucking Inc.

Jamie J. McGraw, Dist. Atty.'s Office, Norman, OK, for defendant Cleveland County Treasurer.

ORDER

ALLEY, District Judge.

Pending before the Court are two Motions For Summary Judgment, one from defendants, John Walsh, Sheriff Of Cleveland County ("the Sheriff"), Cliff Winkler ("Winkler"), Kevin Austin ("Austin") and The Board Of County Commissioners Of Cleveland County, Oklahoma ("the County") and the other from defendants, Michael J. Followwill ("Followwill") and John's Trucking, Inc. ("John's Trucking"). See Fed.R.Civ.P. 56. Plaintiff Howard Ray Smith ("Smith") has responded in opposition to both motions. For the reasons stated herein, the Court finds that the Motions For Summary Judgment should be GRANTED with respect to all defendants.¹

STATEMENT OF UNDISPUTED FACTS

Whether there are undisputed facts, depends upon whether "there are genuine factual issues that properly can be resolved only be a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The undisputed facts are as follows.

In September 1991, plaintiff Smith and defendant Followwill entered into a lease-purchase agreement for a 1967 Hobbs trailer. This agreement was accompanied by a hauling contract which required Smith to perform hauling services for Followwill as payment for the trailer. On March 5, 1992, the trailer was involved in an accident, as a result of which the vehicle sustained some damage. At the time, there was some question whether the vehicle was insured and who had the responsibility for providing insurance. On March 9, 1992, Followwill notified Smith of his intention to rescind their agreement. That afternoon, Smith took the trailer from Followwill's place of business, John's Trucking, where it had been parked awaiting inspection by an insurance agent. Followwill then filed a report with the McClain County Sheriff's Department claiming that the trailer had been stolen and indicating that Smith might be responsible.

Later that evening, Deputy Sheriff Austin was summoned to the Country Boy IGA parking lot in Norman, Oklahoma. The parking lot was adjacent to where the trailer was being stored by Smith in a fenced compound. Austin met Followwill at the scene, where Followwill identified the trailer as the one he had reported stolen earlier that day and produced a facially valid title for the vehicle. Austin verified the reported theft through the National Crime Information Computer (NCIC) and called for Deputy Sheriff Winkler, who arrived soon after. Smith drove up to the scene while Winkler, Austin and Followwill were at the parking lot. Austin and Walker briefly detained Smith and retrieved a pocket knife from his clothing during their search. Smith produced the purchase agreement with Follow-will and told the deputies that he was storing the trailer with the permission of the lot owner, Dan Hopson.

Winkler then contacted Hopson and obtained permission to enter the premises and recover the trailer. Winkler decided that, because of the dispute over the ownership of the vehicle and the NCIC confirmation of the theft, the trailer should be impounded pending legal adjudication, rather than given to either Followwill or Smith. In order to impound the vehicle, Austin contacted L & A Wrecker Services ("L & A"). L & A arrived and, due to the damage sustained by the trailer, were forced to heat the grease on the fifth wheel and choke in order to free the king pin and remove the trailer from the truck cab.

Smith subsequently brought an action in small claims court in McClain County, Oklahoma, SC-92-61, to recover possession of the trailer. On March 31, 1992, at the proceeding, Smith was awarded title and possession of the vehicle, as well as $1,170.79 for services performed. Followwill was given a judgment lien of $1,000 and was ordered to maintain insurance on the truck through John's Trucking. On August 11, 1992, plaintiff commenced this action against defendants under 42 U.S.C. § 1983, alleging various violations of his Fourth and Fourteenth Amendments rights. Plaintiff claimed that, at Hopson's lot, he had been unlawfully "arrested"; and that the trailer was unlawfully seized by Austin and Winkler without a warrant, that the seizure was under color of law and pursuant to the policies, customs and procedures of the Cleveland County Sheriff's Office, that the seizure violated his Fourteenth Amendment due process property right and that Followwill should be held liable under § 1983 as a state actor.

SUMMARY JUDGMENT

Summary judgment is appropriate if the pleadings, affidavits and depositions "show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). Any doubt as to the existence of a genuine issue of material fact must be resolved against the party seeking summary judgment. In addition, the inferences drawn from the facts presented must be construed in the light most favorable to the nonmoving party. Board of Education v. Pico, 457 U.S. 853, 863, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982). Nonetheless, a party opposing a motion for summary judgment may not simply allege that there are disputed issues of fact; rather the party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted).

A. Defendants Winkler and Austin

Smith alleges two bases for holding defendants Winkler and Austin liable under § 1983: first, that they unconstitutionally arrested and searched him and, second, that they seized his trailer without a proper warrant. Therefore, the Court's first examination must be whether constitutional violations are involved here. Based upon the undisputed facts, the Court cannot say that constitutional violations occurred. Also, plaintiff cites no clearly established law that law enforcement officers may not conduct a brief detention or seize property without a warrant under the particular circumstances of this case. While law enforcement officers do not have carte blanche to do what they please, nothing the plaintiff seeks to prove is per se unconstitutional.

In any event, Winkler and Austin have asserted the defense of qualified immunity, claiming that their actions were in good faith and "objectively reasonable" under the circumstances. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Immunity questions should be resolved "at the earliest possible stages of litigation." Hunter v. Bryant, ___ U.S. ___, ___, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991). Claims of qualified immunity are evaluated against an objective test. "When government officials are performing discretionary functions, they will not be held liable for their conduct unless their actions violate `clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir.1988) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). The plaintiff bears the burden of convincing the court that the law was "clearly established" at the time of the alleged violation. Id. A plaintiff must do more than assert a generalized violation of a right. Rather, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). If the plaintiff fails to meet this burden, the court "must prevent the plaintiff from subjecting government officials to trial." Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir.1990). See also Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Finally, in cases where reasonable mistakes in judgment are made that may violate established rights, qualified immunity will still protect law enforcement officials from liability. See Anderson, 483 U.S. at 641, 107 S.Ct. at 3039. Reasonableness is evaluated based upon the facts known to the official at the time of the acts in controversy. See Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 1097-98, 89 L.Ed.2d 271 (1986).

Plaintiff asserts that, while he was at the parking lot, he was illegally searched and detained by Austin and Winkler. In support of his claim, he refers to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which sets forth the standards for reviewing Fourth Amendment search and seizure violations. Terry requires that police conduct be...