Davis v. Robbs, 84-5394

• Decision Date: 09 July 1986
• Docket Number: No. 84-5394,84-5394
• Citation: 794 F.2d 1129
• Parties: Louis C. DAVIS, Plaintiff-Appellant, v. Mike ROBBS, # 462, Tonyia Johnston and Mike Seay, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1129

794 F.2d 1129

Louis C. DAVIS, Plaintiff-Appellant, v. Mike ROBBS, # 462, Tonyia Johnston and Mike Seay Defendants-Appellees.

No. 84-5394.

United States Court of Appeals Sixth Circuit.

Argued April 14, 1986.

Decided July 9, 1986.

B. Todd Thompson (argued), Woodward, Hobson & Fulton, Louisville, Ky., court-appointed-Pro bono, for plaintiff-appellant.

Eugene N. Collins, City Atty., Chattanooga, Tenn., Gary D. Lander, Randall L. Nelson (argued), for defendants-appellees.

Before KRUPANSKY and WELLFORD, Circuit Judges, and PECK, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

The plaintiff-appellant Louis C. Davis (Davis) appealed from an order of the district court granting summary judgment to the defendants-appellees Mike Robbs (Robbs), a Chattanooga Tennessee police officer, and Tonyia Johnston (Johnston) and Mike Seay (Seay), two auxiliary police officers, in this civil rights action initiated pursuant to 42 U.S.C. Sec. 1983.

On January 28, 1983, Robbs, Johnston and Seay were dispatched to the Davis' residence in response to a call from a taxi driver named Theordis R. Little (Little).

Little informed the officers that he had transported Davis to his residence and that Davis was intoxicated and had refused to pay his four dollar cab fare. In an effort to resolve the situation amicably, Robbs approached the house knocked on the door, identified himself as a police officer, and expressed a desire to speak with Davis.

Davis responded with a threat to kill whoever was at the door. Peering through a window, Robbs observed Davis inside the front door with a rifle. After the officers had retreated and had taken cover away from the house, Davis stepped outside and, in response to a police request to surrender the rifle, repeated his previous threat, stating "Where are you? I'll kill you."

Davis reentered his residence to engage in a telephone conversation with a neighbor. The officers observed Davis place the rifle against the telephone table whereupon he announced his intent to surrender. However, before opening the front door, Davis removed a pocketknife from his pocket, exposed the blade and returned it to his pocket. The officers stationed themselves outside the door. When Davis opened the door, the officers entered the house, removed Davis' hands from his pockets, confiscated the pocketknife, handcuffed him and placed him under arrest. He was placed into a squad car. Robbs reentered the residence through the open doorway and retrieved the rifle from its position against the telephone table where it had been placed by Davis immediately before he was placed into custody and where it had remained in clear view during the entire period of his arrest. Davis was charged with aggravated assault, disorderly conduct and public drunkenness and later indicted for felonious assault and public drunkenness.

Davis initiated this pro se civil rights action pursuant to 42 U.S.C. Sec. 1983 wherein he averred that the police "raided in" and handcuffed him, arrested him without advising him of his rights, searched his home, and took him to jail where he was held until his case was dismissed.

Johnston and Seay filed a joint answer to the complaint. Robbs filed a separate answer. The defendants' answers detailed the facts of plaintiff's conduct from the moment they arrived at the scene in basically the same terms as outlined above. Davis filed two traverses in which he denied the facts asserted in the answers and, in conclusory language, stated that he had been arrested without probable cause.

Thereafter, the plaintiff filed a motion for summary judgment which was not accompanied by any affidavits, exhibits, or other supporting evidence. The defendants filed a cross motion for summary judgment tendering therewith affidavits wherein they attested to each and every factual allegation incorporated into their answers. The district court granted summary judgment in favor of the defendants and this timely appeal followed.

On appeal, the plaintiff has charged that the district court erred in granting summary judgment in favor of the defendants because there existed a conflict of material fact as to his claims of (1) false arrest without probable cause in violation of his Fourth Amendment rights; (2) unreasonable search and unlawful seizure of his rifle in violation of the Fourth Amendment; and (3) false imprisonment which infringed his liberty interest without due process of law.

Pursuant to Federal Rule of Civil Procedure 56, the party moving for summary judgment bears the burden of demonstrating that there is an absence of material issues of fact and that it is entitled to judgment as matter of law. Fed.R.Civ.P. 56(c). Where, as here, the moving defendants have supported their motion with affidavits and other documents, the plaintiff may not rest on the mere allegations or denials of his pleadings, but rather "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). Felix v. Young, 536 F.2d 1126, 1134-35 (6th Cir.1976). As this court noted in Bryant v. Kentucky, 490 F.2d 1273, 1275 (6th Cir.1974), conclusory and unsupported allegations do not satisfy that burden.

In the present case, the defendants, by attesting to the factual allegations of their answers, set forth specific facts that demonstrated that they had probable cause to arrest the plaintiff as a result of his threats to kill them with his rifle and his disorderly response to their appearance at his doorstep. The plaintiff's traverse, filed in response to the defendants' answers, was nothing more than a general denial of the defendants' allegations coupled with a conclusory self serving statement that the "[p]laintiff was not in violation of any Tennessee State laws when the defendant[s] arrived at the scene and defendant[s] did not have any legal authority to arrest plaintiff." The defendants do not dispute that they lacked probable cause to arrest the plaintiff when they arrived at his residence and it is conceded that they made no attempt to do so. Rather, the defendants insist that the plaintiff's threats to kill them with his rifle in response to their efforts to amicably resolve a dispute between Davis and Little created independent probable cause to arrest him for assault and disorderly conduct. Aside from his unsupported conclusory allegation that there was no probable cause for his arrest, plaintiff has failed to contest the basic facts which supported the probable cause for his arrest. Accordingly, the district court did not err in granting summary judgment in favor of the defendants as to the cause of action for unlawful arrest.

The plaintiff has also asserted that the district court erred in granting summary judgment in the face of conflicting material facts bearing upon the plaintiff's claim of illegal search. The defendants' uncontroverted affidavits established that the plaintiff had threatened to kill them with his rifle, that the defendants had...