DePugh v. Smith, No. C 94-4030.

• Court: United States District Courts. 4th Circuit. Northern District of West Virginia
• Writing for the Court: G. Daniel Gildemeister, Gildemeister, Willia & Keane, Sioux City, IA, for defendants
• Citation: 880 F. Supp. 651
• Parties: Robert B. DePUGH, Plaintiff, v. Dennis SMITH, Sheriff of Monona County, Iowa; Cydney Bartholomew, Deputy Sheriff of Monona County, Iowa; Summer Erlandson, Deputy Sheriff of Monona County, Iowa; John Does One and Two; all in their Official and Personal Capacities, Defendants.
• Decision Date: 22 March 1995
• Docket Number: No. C 94-4030.

880 F. Supp. 651

Robert B. DePUGH, Plaintiff,
v.
Dennis SMITH, Sheriff of Monona County, Iowa; Cydney Bartholomew, Deputy Sheriff of Monona County, Iowa; Summer Erlandson, Deputy Sheriff of Monona County, Iowa; John Does One and Two; all in their Official and Personal Capacities, Defendants.

No. C 94-4030.

United States District Court, N.D. Iowa, Western Division.

March 22, 1995.

880 F. Supp. 652

COPYRIGHT MATERIAL OMITTED

880 F. Supp. 653

Robert B. DePugh, plaintiff, pro se

G. Daniel Gildemeister, Gildemeister, Willia & Keane, Sioux City, IA, for defendants.

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT, DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

 TABLE OF CONTENTS
                I. INTRODUCTION AND PROCEDURAL BACKGROUND ................................. 654
                II. STANDARDS FOR SUMMARY JUDGMENT ........................................ 655
                III. FINDINGS OF FACT ..................................................... 657
                 A. Undisputed Facts .................................................. 657
                 B. Disputed Facts .................................................... 658
                IV. LEGAL ANALYSIS ........................................................ 658
                 A. The statute of Limitations For § 1983 Claims ................. 658
                 1. The Applicable Statute ......................................... 659
                 2. Accural Of A § 1983 Claim ................................. 659
                 B. Cognizable Claims Pursuant To § 1983 ......................... 660
                 1. A Brief Overview Of § 1983 ................................ 661
                 2. DePugh's Fourth Amendment Claim ................................ 661
                 3. DePugh's Fourteenth Amendment Claim ............................ 664
                 a. Equal protection ............................................ 664
                 b. Due process ................................................. 665
                 C. Qualified Immunity ................................................ 666
                

880 F. Supp. 654
                 1. Analysis of a qualified immunity defense ......................... 667
                 2. The test for qualified immunity on summary judgment .............. 667
                 D. Declaratory Judgment ................................................ 668
                V. CONCLUSION ............................................................ 668
                

BENNETT, District Judge.

This is a civil rights suit brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202 by a pro se plaintiff against the Sheriff of Monona County, Iowa, two of his deputies, and two unnamed individuals. This litigation arises from three searches conducted by the defendants in 1990 and 1991 at an old school building owned by the plaintiff in which he resided and out of which he operated a business.

Both plaintiff and defendants moved for summary judgment, and the court originally granted summary judgment in favor of defendants on the ground that plaintiff's suit was barred by the applicable statute of limitations. However, upon plaintiff's motion to alter or amend the judgment on the ground that his complaint was timely filed within two years of accrual of his claims, the court sets aside its previous judgment, and enters this amended and substituted order disposing of the parties' motions for summary judgment. The motions of the parties require the court to consider when plaintiff's claims of unreasonable search and seizure accrued, whether plaintiff has stated a claim upon which relief can be granted, and whether defendants are entitled to summary judgment on the ground that they have qualified immunity to the claims raised herein.

I. INTRODUCTION AND PROCEDURAL BACKGROUND

Plaintiff Robert DePugh, a former resident of Soldier, Iowa, and current resident of Independence, Missouri, filed this lawsuit pursuant to 42 U.S.C. § 1983 pro se on March 23, 1994. Defendants are Dennis Smith, the Sheriff of Monona County, Iowa, and deputy sheriffs Cydney Bartholomew, Summer Erlandson, and two "John Doe" defendants. Each of the defendants is sued in both his or her individual and official capacities. DePugh's complaint asserts two causes of action. The first cause of action alleges violation of DePugh's Fourth Amendment rights against unreasonable searches and seizures as the result of three warrantless searches of DePugh's residence and place of business, known as the old Soldier Schoolhouse, in Soldier, Iowa. The second cause of action alleges violation of DePugh's rights to due process and equal protection under the law.¹ DePugh seeks $10,000 in compensatory damages from each defendant and punitive damages as follows:

(1) $50,000 against Defendant Smith;

(2) $25,000 against Defendant Erlandson;

(3) $25,000 against Defendant Bartholomew;

(4) $10,000 apiece against Defendants John Doe One and John Doe Two.

Additionally, DePugh seeks declaratory relief that defendants violated his rights under the Fourth Amendment by conducting the searches and seizures of which he complained, and that each defendant violated DePugh's rights to due process and equal protection by failing to prevent other defendants from violating DePugh's Fourth Amendment rights. Defendants Smith, Bartholomew, and Erlandson answered the complaint on April 21, 1994.²

On August 24, 1994, the defendants moved for summary judgment on both counts of DePugh's complaint. Defendants argued that DePugh's complaint was barred by the applicable two-year statute of limitations for

880 F. Supp. 655

claims pursuant to § 1983, because it had been filed more than two years after any of the searches of which it complained. Defendants also argued that the complaint failed to state a claim upon which relief can be granted, because defendants conducted the searches of the Schoolhouse upon the consent of a person with appropriate authority over the premises. Finally, defendants asserted that they were entitled to qualified immunity to all of DePugh's claims, because they did not violate any clearly established law by conducting a consensual search of the Schoolhouse

DePugh resisted the motion for summary judgment on September 26, 1994, and additionally filed a motion for summary judgment in his favor. DePugh argued that his claims did not accrue until he learned of the warrantless searches in January of 1993, or at some time shortly before that date. DePugh also argued that no valid consent had been given to the searches, and that defendants therefore could not escape liability either on the merits of a Fourth Amendment violation or upon the ground of qualified immunity. DePugh argued that the undisputed material facts demonstrated that he was entitled to summary judgment against defendants Smith and Erlandson.

On October 5, 1994, this court granted defendants' motion for summary judgment, and denied DePugh's motion for summary judgment, on the ground that DePugh's complaint was time-barred. On October 17, 1994, DePugh filed a timely motion to alter or amend this judgment on the ground that his pleadings and resistance to the motion for summary judgment adequately alleged and argued that his claims did not accrue until within the two-year period preceding filing of his complaint, and that the court had not adequately addressed those allegations and arguments. Defendants resisted the motion to alter or amend on October 26, 1994.

A motion to alter or amend judgment is brought pursuant to Fed.R.Civ.P. 59(e), which states that such a motion must be filed within ten days after the entry of the judgment, but which does not otherwise establish the criteria by which the court is to assess the merits of the motion. However, the Eighth Circuit Court of Appeals has repeatedly held that the trial court's grant or denial of a motion pursuant to Fed.R.Civ.P. 59(e) is reviewed on the grounds of abuse of discretion. Concordia College Corp. v. W.R. Grace & Co., 999 F.2d 326, 330 (8th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 926, 127 L.Ed.2d 218 (1994); Twin City Constr. Co. of Fargo v. Turtle Mountain Band of Chippewa Indians Through LaFromboise, 911 F.2d 137, 139 (8th Cir.1990); Hagerman v. Yukon Energy Corp., 839 F.2d 407, 413 (8th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 63, 102 L.Ed.2d 40 (1988); Roudybush v. Zabel, 813 F.2d 173, 178 (8th Cir.1987); Harris v. Arkansas Dep't of Human Servs., Div. of Mental Retardation-Developmental Disabilities Servs., 771 F.2d 414, 416-17 (8th Cir.1985). "`A motion to alter or amend judgment cannot be used to raise arguments which could have been raised prior to the issuance of judgment.'" Concordia College Corp., 999 F.2d at 330 (quoting Hagerman, 839 F.2d at 414). Furthermore, the party making the motion cannot "use a Rule 59(e) motion `to introduce new evidence that could have been adduced during pendency of the summary judgment motion.... Nor should a motion for reconsideration serve as the occasion to tender new legal theories for the first time.'" Id. (quoting Hagerman, 839 F.2d at 414).

The court finds that DePugh is not attempting in the present motion to alter or amend judgment to do any of these forbidden things; rather, he seeks reconsideration of a point previously argued, that his claim did not accrue until less than two years prior to his filing of this lawsuit, and his argument is not based on any offers of new evidence. The court finds further that it did not give due consideration to DePugh's statute of limitations and accrual arguments in its prior disposition of the parties' motions for summary judgment. In order to correct this error, the court grants DePugh's motion to alter or amend judgment to the extent described below, and provides this amended and superseding ruling on disposition of the motions for summary judgment.

II. STANDARDS FOR SUMMARY JUDGMENT

The Eighth Circuit Court of Appeals recognizes "that summary judgment is a drastic

880 F. Supp. 656

remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries." Wabun-Inini v. Sessions, 900 F.2d...