DePugh v. Penning, C 93-0226.
| Citation | 888 F. Supp. 959 |
| Decision Date | 26 May 1995 |
| Docket Number | No. C 93-0226.,C 93-0226. |
| Parties | Robert B. DePUGH, Plaintiff, v. Rick D. PENNING, Sheriff of Grundy County, Iowa, In his Personal and Official Capacities, John L. McCarter, In His Personal Capacity, Todd A. Geer, In His Personal Capacity, et al. |
| Court | U.S. District Court — Northern District of Iowa |
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Robert B. DePugh, Independence, MO, plaintiff, pro se.
Nathan A. Callahan, Waterloo, IA, for defendant.
This case raises the question of whether the sheriff of Grundy County, Iowa, exceeded the authority which restrained the King of England in William Pitt's time and, in the process, violated the Fourth Amendment of the United States Constitution, our own embodiment of the right to privacy in our homes and property.
In this lawsuit brought pursuant to 42 U.S.C. ? 1983, a pro se plaintiff seeks money damages against a county sheriff, in both his official and individual capacities, as the result of issuance of a search warrant and seizure of personal property allegedly in violation of plaintiff's First Amendment rights to freedom of speech and expression, Fourth Amendment right to be free from unreasonable search and seizure, and Fourteenth Amendment right to due process. On cross-motions for summary judgment, plaintiff asserts that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. The defendant county sheriff argues that issues of fact preclude summary judgment in plaintiff's favor, but that on the undisputed facts he is entitled to summary judgment on a number of grounds. The sheriff argues plaintiff's lack of standing or damages, the validity of the warrant in question, or, if the warrant was invalid, the receipt of consent for the search, abandonment of the property seized, applicability of the "plain view" exception, and duplication of a private search, as well as qualified immunity, as establishing his entitlement to summary judgment.
On October 12, 1993, plaintiff Robert B. DePugh filed his complaint in this action pursuant to 42 U.S.C. ? 1983 alleging ten causes of action for violation of his civil rights as the result of execution of a search warrant for his former residence in Reinbeck, Iowa, on October 22, 1991. Defendants were John L. McCarter, a magistrate of Iowa's First Judicial District in Grundy County, Iowa, who issued the search warrant for DePugh's former residence, Rick D. Penning, the Sheriff of Grundy County, who sought and executed the warrant, and Todd A. Geer, an Assistant Grundy County Attorney, who purportedly refused to return the property seized pursuant to the warrant.3
In his complaint, DePugh sought $10,000 in compensatory damages and $40,000 in punitive damages against each defendant. In addition, DePugh sought declaratory judgment to the effect that the conduct of the defendants violated various of his constitutional rights. In lieu of answering, on November 16, 1993, defendants Penning and Geer filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Following renewed service on all of the defendants, on May 17, 1994, defendant McCarter also filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Defendants Penning and Geer then renewed their motion to dismiss on May 25, 1994. The court permitted limited discovery in light of the motions to dismiss. Although none of the defendants had yet answered the complaint in this matter, on November 3, 1994, plaintiff filed a motion for summary judgment, asserting that there is no genuine issue of material fact, and that he is entitled to judgment as a matter of law.
On January 10, 1995, this court granted the motion to dismiss of defendant McCarter, on the grounds of judicial immunity and lack of a "live" controversy for the purposes of declaratory judgement. The court also granted defendant Geer's motion to dismiss, because the court concluded that DePugh had failed to state a claim that Geer violated his constitutional rights of access to the courts and due process: what the complaint alleges is that Geer identified for DePugh the appropriate process for vindication of those rights. However, the court concluded that DePugh had adequately pleaded claims against defendant Penning in his official and individual capacities. The court concluded that DePugh's allegation that Penning, as the Sheriff of Grundy County "possessed final authority over the subject matter at issue and used that authority in an unconstitutional manner," if proven, would be sufficient to establish official-capacity liability. Any claim for punitive damages against defendant Penning in his official capacity was stricken, however, because an official-capacity claim is in all but name a claim against the governmental entity, and such a governmental entity is immune from punitive damages under ? 1983. DePugh has also stated a claim against Penning in his individual capacity because he alleged that Penning acted under color of law by committing constitutional violations under the authority of a warrant from an Iowa state court.
The court reserved ruling on DePugh's motion for summary judgment until such time as defendant Penning had answered the complaint and filed a response to the motion for summary judgment. This matter therefore has proceeded only upon claims for money damages against defendant Penning in his official and individual capacities.4
Penning answered the complaint on January 26, 1995, and on February 1, 1995, he resisted DePugh's motion for summary judgment. Penning asserted as grounds for denial of DePugh's motion for summary judgment that the warrant authorizing search of the premises in Reinbeck, Iowa, and seizure of DePugh's property was supported by probable cause. On February 6, 1995, Penning filed his cross-motion for summary judgment. In that motion, Penning asserts that he is entitled to summary judgment on a number of grounds.
First, Penning again argues that the warrant in question was supported by probable cause that the property to be seized had been obtained in violation of law, was illegal to possess, was possessed with intent to commit a public offense, or was evidence of a crime. Next, Penning argues that DePugh has no cause of action for damages,...
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...United States v. Leary, 846 F.2d 592, 595 (10th Cir.1988). 5 Although not cited by either party, to the extent that DePugh v. Penning, 888 F.Supp. 959, 977 (N.D.Iowa 1995), may be read as premising the standing to contest a seizure, pursuant to a Warrant, solely upon a property interest in ......
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