Banks v. Moore, 4:20-cv-00182 KGB

• Court: United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
• Writing for the Court: KRISTINE G. BAKER, UNITED STATES DISTRICT COURT JUDGE
• Parties: PETER BANKS v. MICHAEL MOORE, individually and in his official capacity as a police officer for the City of England, Arkansas DEFENDANTS
• Decision Date: 31 March 2021
• Docket Number: 4:20-cv-00182 KGB

PETER BANKS
v.
MICHAEL MOORE, individually and in his official capacity as a police officer for the City of England, Arkansas DEFENDANTS

No. 4:20-cv-00182 KGB

United States District Court, E.D. Arkansas, Central Division

March 31, 2021

OPINION AND ORDER

KRISTINE G. BAKER, UNITED STATES DISTRICT COURT JUDGE

Plaintiff Peter Banks filed this action against separate defendants Michael Moore, individually, and Michael Moore, in his official capacity as a police officer for the City of England, Arkansas (“the City”) (collectively “Defendants”). Mr. Banks claims that his First Amendment, Fourth Amendment, and substantive and procedural Due Process rights were violated by Defendants in violation of the United States Constitution, with corresponding claims alleging violations of the Arkansas Constitution, all of which are brought pursuant to 42 U.S.C. § 1983 and the Arkansas Civil Rights Act (“ACRA”), Arkansas Code Annotated § 16-123-101 et seq. (Dkt. No. 8, ¶ 3). Mr. Banks also asserts state law claims of assault and battery, malicious prosecution, abuse of process, and felony tort (Id., ¶¶ 45-54). Mr. Banks claims that the City failed to train properly Officer Moore on the probable cause necessary for arrest and that his blood was seized without probable cause and without a proper warrant “in accordance with City policy and custom” (Id., ¶¶ 24, 25, 30, 31).

Before the Court is the Defendants' joint motion for summary judgment (Dkt. No. 49). Also before the Court is Mr. Banks's motion for stay, response to Defendants' joint motion for summary judgment, and request for hearing of Mr. Banks (Dkt. No. 58). Defendants replied to Mr. Banks's response to Defendants' motion for summary judgment (Dkt. No. 63). Mr. Banks

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filed a reply to response to motion to stay and sur-reply (Dkt. No. 66). For the reasons that follow, the Court denies Mr. Banks's motion to stay and motion for hearing (Dkt. No. 58). The Court grants Defendants' joint motion for summary judgment and declines to exercise supplemental jurisdiction over Mr. Banks's state law claims (Dkt. No. 49).

I. Mr. Banks's Motion For Stay And Request For Hearing

In his response to Defendants' joint statement of undisputed material facts, Mr. Banks responds to several paragraphs asserting the following:

Plaintiff has significant doubts about the authenticity [of the warrant]. The warrant was never returned to E[ngland ]P[olice ]D[epartment]. There are doubts about the timeline that Mr. Moore has given. There has been evidence to contradict and corroborate his timeline which in itself create a material fact in dispute that warrant a denial of summary judgment since this goes to the credibility as well as the objective reasonableness of Officer Moore. But under his facts, it was objectively and subjectively unreasonable to wait to draw the blood after the 4 hour window expired The Response should be stayed

(Dkt. No. 59, ¶¶ 46, 47, 48, 49, 50, 51). Mr. Banks later makes clear in his motion for stay and request for hearing, and then later in his request for hearing and brief in support of his reply to response to motion to stay and sur-reply, that he seeks to stay the proceedings in order to conduct further discovery “to obtain a handwriting sample from the Circuit Judge and hire an expert in order to determine whether the Order is genuine.” (Dkt. Nos. 58; 67, at 14).

This Court may, in its discretion, stay proceedings before it pending resolution of a motion brought pursuant to 28 U.S.C § 1407. “[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Cottrell v. Duke, 737 F.3d 1238, 1248 (8th Cir. 2013) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)); see also Rivers v. Walt Disney Co., 980 F.Supp. 1358, 1360 (C.D. Cal. 1997) (same). Further, “[a] district court has broad discretion

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to stay proceedings when doing so is appropriate to control its docket.” Sierra Club v. U.S. Army Corps of Eng'rs, 446 F.3d 808, 816 (8th Cir. 2006)). “A Court may properly stay an action where the following criteria are met: (1) the stay does not prejudice the non-movant; (2) the movant would suffer hardship and inequity without a stay; and (3) the stay serves the interests of judicial economy and efficiency.” Adams v. Tyson Foods, Inc., Case No. 07-cv-4019, 2007 WL 1539325, at *1 (W.D. Ark. May 25, 2007) (citing Rivers, 980 F.Supp. at 1358).

Mr. Banks bases his motion for a stay on the testimony of the Lonoke County Sheriff John Staley, who he asserts testified that “Judge [Sandy Huckabee] cannot remember signing the Warrant” (Dkt. No. 67, at 14). Sheriff Staley testified:

Q. Have you spoken to Judge Huckabee about this warrant?

A. Well, when it come through, I asked him if he remember it, and he says that, you know, we do so many and so long, you know, he would have to see if it was returned and filed with the clerk. But I didn't get - he said that it could have been, but I can't testify for him, of course, but, when I asked about it, there's some, that -

Q. Right.

(Dkt. No. 59-1, at 25). The Court has reviewed Sheriff Staley's testimony and determines that it does not support Mr. Banks's assertion that Judge Huckabee cannot remember signing the warrant. At most, Sheriff Staley's testimony is that Judge Huckabee could not remember if the search warrant was returned and filed with the clerk.

Mr. Banks subpoenaed Judge Huckabee for a deposition earlier in this case. Judge Huckabee filed a motion to quash the subpoena in which he states that he signed a search warrant permitting officers to draw blood from Mr. Banks (Dkt. Nos. 17; 24, ¶ 4). This Court granted Judge Huckabee's motion to quash the subpoena because he is entitled to judicial immunity (Dkt. No. 31).

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Mr. Banks asserts in his request for hearing and brief in support of plaintiff's reply to response to motion to stay and sur-reply that he should be allowed to depose Judge Huckabee to “ask the Judge what representations Moore made to him, in order to explore a Franks violation and the issue of whether the warrant was stale.” (Dkt. No. 67, at 14). As the Court stated in its Order granting Judge Huckabee's motion to quash Mr. Banks's subpoena, a judge cannot be required to testify regarding his mental process in formulating an official judgment. United States v. Morgan, 313 U.S. 409, 422 (1941); see also Cavitt v. Wills, Case No. 2:06-mc-42, 2006 WL 3792046, at *1 (W.D. Ark. 2006) (“The overwhelming authority concludes that a judge may not be compelled to testify concerning the mental processes used in formulating official judgments or the reasons that motivated him in the performance of his official duties.”). Mr. Banks has already deposed Officer Moore regarding his version of the events and telephone records establish that Judge Huckabee received a call on the on-call line in the early morning hours consistent with Officer Moore's version of the events.

To the extent Mr. Banks seeks to challenge Judge Huckabee's signature on the warrant, the Court agrees with Defendants who point out in their joint reply to Mr. Banks's response to their motion for summary judgment, that there are ample public records available with Judge Huckabee's signature on them that Mr. Banks could have used to compare Judge Huckabee's signature (Dkt. No. 63, at 10). Mr. Banks has not presented evidence from a handwriting expert despite having ample opportunity to do so. Accordingly, the Court is not inclined to stay these proceedings to permit Mr. Banks further discovery on that issue.

Mr. Banks relies on Birchfield v. North Dakota, 579 U.S. 438, 136 S.Ct. 2160 2185 (2016), to assert that the Court should grant summary judgment because Officer Moore subjected him to an illegal search, and he was illegally prosecuted for his refusal (Dkt. No. 67, at 1-2). However,

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Mr. Banks's case is not like Birchfield which involved a warrantless blood test. Here, Officer Moore obtained a warrant to draw Mr. Banks's blood, and the ruling in Birchfield is not applicable.

The Franks standard governs whether this Court should conduct an evidentiary hearing. Under that standard:

[t]here is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.

United States v. Mims, 812 F.2d 1068, 1074 (8th Cir. 1987) (quoting Franks v. Delaware, 438 U.S. 154, 171 (1978)). Here, Mr. Banks has not come forward with any proof other than allegations of falsehood. Accordingly, the Court denies Mr. Banks's request for a hearing and his request for a stay of these proceedings to permit Mr. Banks to conduct further discovery from Judge Huckabee.

II. Defendants' Joint Motion For Summary Judgment

A. Factual Background

Defendants filed a joint statement of undisputed material facts (Dkt. No. 50). Mr. Banks filed a response to Defendants' joint statement of undisputed material facts (Dkt. No. 59). Local Rule 56.1(b) of the United States District Court for the Eastern and Western Districts of Arkansas requires a non-moving party to supply the Court with a statement of material facts “as to which it contends a genuine issue exists to be tried.” See Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1088 (8th Cir. 2011). Mr. Banks opted not to provide the Court with a statement of material facts as required by the Local Rule. Defendants addressed Mr. Banks's response to their joint statement of undisputed material facts in their reply to Mr. Banks's response to...