Barney v. Gillespie

Decision Date11 February 1993
Docket NumberNo. 88-C-0007-S.,88-C-0007-S.
Citation813 F. Supp. 1537
PartiesDennis BARNEY, et al., Plaintiffs, v. James H. GILLESPIE, Jr., et al., Defendants.
CourtU.S. District Court — District of Utah

Loni F. DeLand, Gilbert Athay, Ronald Yengich, Salt Lake City, UT, for plaintiffs.

David L. Wilkinson, Stephen J. Sorenson, Leonard E. McGee, Atty. Gen. Office, Salt Lake City, UT, Merrill Hirsh, Washington, DC, Kathleen Barrett, Salt Lake City, UT, for defendants.

ORDER

SAM, District Judge.

The above entitled matter was referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). The magistrate judge made a report and recommendation ("R & R") that defendant Mark Whittaker's motion for summary judgment on plaintiffs' 42 U.S.C. § 1983 claim be granted. Regarding the liability of defendant Jay S. Averett on the § 1983 claim, the magistrate judge found genuine issues of material fact in dispute and recommended Averett's motion for summary judgment on this claim be denied.

In addition, the R & R found that plaintiffs have no claim for relief against defendants Whittaker and Averett under 42 U.S.C. § 1985(3). Plaintiffs' pendant state claims were also found deficient and the magistrate judge recommended defendants be granted summary judgment on the plaintiffs' state claims.

No objection has been taken to the R & R. The court has reviewed the file and hereby adopts the R & R of the magistrate judge. Therefore,

IT IS HEREBY ORDERED that the motion for summary judgment of Mark Whittaker is granted in total. The motion for summary judgment of Jay S. Averett is denied except he is granted summary judgment on plaintiffs' claim under 42 U.S.C. § 1985 and pendent state claims.

SO ORDERED.

REPORT AND RECOMMENDATION

BOYCE, United States Magistrate Judge.

Plaintiffs, Dennis Barney and Kim Hammonds, filed suit under 42 U.S.C. § 1983 against various Utah State and federal officials. The action was originally brought as a class action but was not certified for class relief and a motion for class certification was denied (File Entry 51). The individual plaintiffs alleged that plaintiff Barney was transporting $4,000 cash belonging to plaintiff Hammonds from Salt Lake City to Denver, Colorado on October 31, 1987. The money was allegedly being transported for the purpose of buying a motorcycle for Hammond while Barney was in Denver. The motorcycle was not purchased and Barney returned to Salt Lake City, Utah on November 1, 1987 with the $4,000. The plaintiff Barney was approached by DEA agents at the Denver International Airport before returning to Salt Lake City. Barney consented to a search of his luggage and the $4,000 cash was found but returned to him. It is alleged in the complaint that when Barney arrived at the Salt Lake City Airport, Barney was confronted by defendants Jay S. Averett and Mark Whittaker, Utah State Bureau of narcotics officers. Eventually the officers seized the $4,000 that Barney was transporting. The money was kept for forfeiture action which has been commenced by the Drug Enforcement Administration. Plaintiffs seek damages and injunctive relief in this action.

On May 25, 1989 some of the State and all federal defendants were dismissed from the suit on the basis of the adoption of a report and recommendation of the magistrate judge. The final order of dismissal was entered on October 10, 1989. The plaintiffs were allowed additional discovery during the time. Only the state defendants Mark Whittaker and Jay S. Averett remain as party defendants. On April 13, 1990 they made a renewed motion to dismiss or in the alternative for summary judgment. The plaintiffs requested additional time to file a response and an affidavit (File Entry 58) and a supplemental memorandum was filed in reference to the defendants Averett and Whittaker's motion for summary judgment. Material other than that presented in the complaint is before the court. Therefore, under Rule 12(b) and Rule 56, F.R.C.P. the matter is properly before the court for summary judgment. The plaintiffs were permitted additional periods for discovery and have responded to the motion for summary judgment. The plaintiffs have not objected to summary judgment under Rule 56(f) F.R.C.P. and have obviously had ample time to address the issues.1 Therefore, consideration of this dispute as a motion for summary judgment under Rule 56, F.R.C.P. is proper Nichols v. United States, 796 F.2d 361 (10th Cir. 1986); Wheeler v. Hurdman, 825 F.2d 257 (10th Cir.1987).

The case has been referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). This report and recommendation is submitted pursuant to the reference on the defendant Mark Whittaker and Jay S. Averett's motion for summary judgment.

Standard for Summary Judgment

Defendants are entitled to summary judgment if taking the affidavits and other submissions there is no material issue of fact between the parties and the defendants are entitled to judgment as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970); Burnette v. Dresser Industries, 849 F.2d 1277, 1284 (10th Cir. 1988). The non-moving party having the burden of proof at trial must come forward with evidence to show a material issue of disputed fact between the parties. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Lake Hefner Open Space Alliance v. Dole, 871 F.2d 943 (10th Cir.1989); Devery Implement Co. v. J.I. Case Company, 944 F.2d 724 (10th Cir.1991). In order for the non-moving party to show a disputed issue of fact more than a mere scintilla of evidence must be presented. Anderson v. Liberty Lobby, supra. Plaintiffs must come forward with sufficient evidence to show an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir.1992).

Evidence

The plaintiffs' complaint is not verified and therefore plaintiffs may not rely on their pleadings to create an issue of fact where the defendants have submitted affidavits or other admissible evidence. Nichols v. United States, supra. The evidence which is relevant to the liability of the remaining defendants is the evidence that must be evaluated on the motion for summary judgment.

An affidavit of Jeff Wright, a Utah Bureau of Narcotics and Liquor Law Enforcement agent, states he was a field agent in 1987 (File Entry 20, attached). At approximately 3:00 p.m. on November 2, 1987 he reported to the Salt Lake City Airport to assist agent Jay Averett, a defendant and Utah State narcotics agent. Averett said to Wright that two individuals travelling under the name of McDonald had been stopped at the Denver Airport by narcotics agents and the McDonalds were carrying a large amount of cash. Delta airlines employees had previously given information to Averett about the McDonalds "and their nervous and suspicious appearance while purchasing airline tickets to Denver." At approximately 3:10 p.m. on November 2, 1987 Wright and agents Whittaker and Averett stationed themselves near the gate where the McDonalds were to deplane from their flight to Denver. At that time a white female was observed pacing nervously near the gate. The McDonalds deplaned and met the white female, later identified as Noele Trevithick. The three individuals from the airplane walked down the concourse, past the luggage carousel, and out the front door of the terminal. They appeared nervous and were looking around in all directions.

Wright previously had become acquainted with the individuals. He knew Barney as an individual associated with the local Sundowners motorcycle club. Wright had previously investigated Barney in regard to narcotics violations. He was familiar with one Knudsen (a/k/a Blue) and his ex-wife.

Agent Averett stopped the three individuals as they exited the airport terminal and advised that he was a police officer and asked if he could speak to them. The three agreed to speak to Averett. Averett asked to see their airline tickets. Two individuals produced airline tickets in the name of McDonald. Averett asked for identification and plaintiff Barney produced identification in his own name. The other male produced identification showing he was Richard Knudsen.

Averett asked Barney and Knudsen if they were carrying any "narcotics, firearms or money." Barney and Knudsen denied carrying narcotics or firearms but stated they had $4,000 cash. Averett asked if he could see the money which was inside a brief case. Permission to look in the brief case was apparently given by Barney (¶ 12).2 A large brown envelope was in the briefcase. The envelope was opened and it contained a large amount of cash. Also observed was an Uzi automatic weapons handbook, a receipt for a .45 caliber automatic handgun and other handgun manuals including one for a Walther 9mm. When Barney was questioned about the money he said he did not trust banks and always carried large amounts of cash. He said he was carrying the money for the purchase of a motorcycle and then he said the money was "just" in his possession. Knudsen did not claim any interest in the money. No mention at any time was made of Kim Hammonds.

The agents advised Barney, Knudsen and Trevethick they were not being detained or being charged. The agents said they would like to detain the money in order to have it examined by a drug detention dog. The three individuals said they did not want to talk with the officers. The individuals did not want to wait and said that they wanted a receipt for the money. The agents and other officers went to the airport unit office where the money was counted. Barney and Knudsen refused to speak further. They were given a receipt for the money and the three left. No drug courier profile was used in making the encounter with Barney and Knudsen. The decision for the encounter was based on the information supplied by Delta Airlines, the narcotics agents in Denver, and the...

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