Joseph v. Kimple

• Decision Date: 10 May 2004
• Docket Number: No. 403CV076.,403CV076.
• Parties: Nickson JOSEPH, Plaintiff, v. Kenneth KIMPLE, et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

343 F.Supp.2d 1196

Nickson JOSEPH, Plaintiff, v. Kenneth KIMPLE, et al., Defendants.

No. 403CV076.

United States District Court, S.D. Georgia, Savannah Division.

May 10, 2004.

COPYRIGHT MATERIAL OMITTED

Randall A. Schmidt, Savannah, GA, for Plaintiff.

Terry L. Readdick, Whelchel, Brown, Readdick & Bumgartner, Brunswick, GA, Paul Hughes Threlkeld, Oliver, Maner & Gray, LLP, Savannah, GA, for Defendant.

ORDER

EDENFIELD, District Judge.

I. INTRODUCTION

Nickson Joseph brings this 42 U.S.C. § 1983 action, alleging that Multi-District Agency Crack Enforcement Drug Task Force (MACE)¹ officer Kenneth Kimple arrested him based on a deficient arrest warrant. MACE, he also says, violated his First and Fourth Amendment rights by executing a search warrant against him after he complained and sought government records on his arrest. Doc. # 1. He thus sues Kimple and all MACE municipal participants.

Over Joseph's opposition, Kimple and MACE participants Liberty County, Long County and Hinesville, Georgia, move for summary judgment. Doc. # 21, 34, 38. Kimple contends, inter alia, that he is qualifiedly immune from suit. Doc. # 39 at 14. The municipal defendants insist they cannot be held liable merely because of their MACE participation. Id. at 15-22; # 24 at 3-4; # 31; # 50 ¶ 9. And Kimple, they maintain, did not act pursuant to any custom or policy attributable to them, nor lack of training (the two theories on which municipal liability is typically affixed). Defendants also have filed a motion in limine on matters here not relevant. Doc. # 49.

II. BACKGROUND²

On 10/6/99, Hinesville police officer Scott Hensler detained Daphne Henry in a rental vehicle inside a mobile home park. Doc. # 59 exh. 3 at 1-3. Hensler arrested her after he observed her chewing a plastic bag, which he believed to contain cocaine. Doc. # 39 exh. A, sub-exh. 2 at 2. A search of the rental car turned up cocaine. Doc. # 50 ¶¶ 9-11.

In fact, 12/20/99 and 3/6/00 Georgia Bureau of Investigation (GBI) lab reports confirm that over 250 grams of cocaine were recovered. Doc. # 39 exh. A (Cato Aff.) ¶ 9 & sub-exh. 6. Defendants fail to provide, however, explanations for the lab's technical terminology (the 3/6/00 lab report, for example, lists 233.6 and 219.5 grams of cocaine samples but notes "Quantitation" of 22% and 68% respectively; does "quantitation" bespeak purity levels?). A small plastic bag of what later tested positive for marijuana (2.1 grams) was also found, in addition to $810 in cash and pornographic photos. Doc. # 39 exh. A, sub-exh. 3 at 4-5.

The vehicle was rented (the Court is not told to whom) and documents in it belonged to Joseph, her boyfriend. Doc. # 50 ¶¶ 5-6. In a recorded sworn statement, doc. # 59 at 43, Henry told Kimple that the cocaine belonged to Joseph. Doc. # 50 ¶ 7. Kimple then successfully sought an arrest warrant from a magistrate, who found probable cause. Id. ¶ 8.

In his warrant application, Kimple claimed that on 10/6/99, at the trailer lot (not identified on the warrant as such but known to police as the place where Joseph and Henry had been staying), Joseph "did unlawfully possess 28 grams or more of a controlled substance, to wit: cocaine, in violation of the Georgia Controlled Substance Act." Doc. # 39 exh. A., sub-exh. 7 (emphasis added).³

But Kimple had not first obtained crime lab results on the cocaine, though it (months later, as noted above) did later test positive as cocaine. Doc. # 50 ¶¶ 11, 13. And Joseph swears that he was not even in the State of Georgia on 10/6/99. Doc. # 51 (attached Joseph Aff. ¶ 3). What more Kimple told the magistrate cannot be independently corroborated because Kimple did not keep notes, nor can defendants produce any record of his presentation.⁴

Kimple does recall bringing his case file to the magistrate, then being placed under oath and answering the magistrate's questions. Doc. # 59 at 18-20; id. at 19 ("On this case we talked about it to the extent where [the magistrate] felt comfortable with issuing the warrant"). He also recalls that the drugs found in the vehicle with Henry were field tested that morning, but he did not testify what the results were. Doc. # 59 at 43-44. His understanding is that a minimum quantity and purity of cocaine are needed to support a trafficking charge. Id. at 20.

Pursuant to the 10/8/99 warrant, the police arrested Joseph on 11/10/99. He was initially denied bond until after he retained counsel and successfully petitioned a superior court judge to set it. Doc. # 1 ¶¶ 18-21; doc. # 50 ¶¶ 16-18; see also doc.# 59 at 16-17. At subsequent trial, the charge was dismissed for lack of evidence. Doc. # 1 ¶ 23; # 50 ¶ 21.

Plaintiff thereafter filed a Georgia Open Records Act (ORA), OCGA § 50-18-70 et seq., request for records about his arrest. Doc. # 1 ¶ 24. He also provided notice of a claim he wished to bring under the Georgia Tort Claims Act (GTCA), O.C.G.A. § 50-21-20, et seq., against each MACE participating entity. Id.; doc. # 50 ¶ 22.

Rather than fully investigate the matter, Joseph alleges, MACE retaliated by procuring a warrant for the search of Joseph's residence. Doc. # 1 ¶ 25. Plaintiff believes that that warrant was not supported by the probable cause required by the Fourth Amendment. Id. ¶ 26. The search yielded no fruit. Id. ¶ 27; see also doc. # 50 at 7 (asserting that "police officers attempted to frame him").

Both in his Complaint and at the 4/27/04 pretrial conference in this case, however, Joseph (through counsel) was vague (due to government record-keeping deficiencies, he claims) about when that search occurred; defendants insisted that if it was a 2003 search then those behind it were oblivious to the ORA/GTCA request/claim, so plaintiff therefore cannot establish a retaliation claim.

In any event, Joseph alleges First and Fourth Amendment violations which have caused him to suffer humiliation and "mental and emotional anguish." Doc. # 1 ¶¶ 28-29. He thus demands a judgment for compensatory and special damages, plus attorney fees/costs. Id. (Prayer).

III. ANALYSIS

A. Statute of Limitations

Defendants contend that to the extent Joseph brings any claims based on his 11/10/99 arrest, they are time-barred. Doc. # 39 at 22-23; # 24 at 4-5. There is no disagreement that § 1983 "claims have a two-year statute of limitations. See Williams v. City of Atlanta, 794 F.2d 624, 626 (11th Cir.1986)." Seegars v. Adcox, 258 F.Supp.2d 1370, 1375 (S.D.Ga.2002). Doc. # 30 at 6-7.⁵ But plaintiff, who filed this case on 4/23/03, doc. # 1 at 1, insists that the two-year clock did not begin to tick until a judge dismissed the prosecution (stemming from that search) on 4/24/01. Id. & exh. 2 (state court criminal trial transcript).

"Federal law determines when a § 1983 claim has accrued, and the federal rule is that a claim accrues when the plaintiff knows or should have known that his constitutional rights have been violated." Holly v. Anton, 97 Fed.Appx. 39, 39-40, 2004 WL 179220 at *1 (7th Cir.1/22/04) (unpublished) (cite omitted); 2 CIV. ACTIONS AGAINST STATE & LOC. GOV'T § 12:40 (Feb.2004).

But where a § 1983 claim for an alleged Fourth Amendment violation is based on an arrest that is made as part of a prosecution, it does not accrue until that prosecution terminates in the plaintiff's favor. Whiting v. Traylor, 85 F.3d 581, 585-86 (11th Cir.1996).⁶ Joseph brought this action on 4/23/03. Doc. # 1. Two years from 4/24/01 is 730 days (365 × 2), which means plaintiff had until 4/24/03 within which to file this case.⁷

B. Qualified Immunity

Kimple invokes the qualified immunity doctrine, which generally shields police from suit over actions they take while performing their duties in good faith. The immunity is lost if an officer's conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).... [Courts first] decide "whether a constitutional right would have been violated on the facts alleged...." Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). .... [If the Court believes] that a constitutional violation did occur, [it] must consider whether the right was "clearly established." Saucier, 533 U.S. at 201, 121 S.Ct. 2151; see Groh v. Ramirez, 540 U.S. 551[551], 124 S.Ct. 1284, 157 L.Ed.2d 1068 [(2004)].

Doe v. Groody, 361 F.3d 232, 237-38 (3rd Cir.2004).

Joseph therefore can pierce Kimple's qualified immunity defense by showing that the law was clearly established yet Kimple violated it. He can do so "by (1) pointing to a materially similar case that has already decided that what the police officer was doing was unlawful; or (2) demonstrating that the words of the pertinent federal statute or federal constitutional provision ... are specific enough to establish clearly the law applicable to particular conduct and circumstances and to overcome qualified immunity, even in the total absence of case law." Storck v. City of Coral Springs, 354 F.3d 1307, 1317 (11th Cir.2003) (quotes, cites and alterations omitted).

C. Fourth Amendment

Joseph first contends that Kimple violated his Fourth Amendment rights when he "alleged in a conclusory affidavit that [Joseph] violated [O.C.G.A. §] 16-13-31, trafficking in cocaine, by possessing 28 grams or more of [cocaine at the same location where Henry was arrested]." Doc. # 1 ¶ 10. Kimple, he says, relied only on that affidavit when he requested an arrest warrant from a State court magistrate. Id. ¶ 11.

While Joseph agrees that the affidavit complied with O.C.G.A. § 17-4-45 (a "form" statute),⁸ he argues that it nevertheless violated the Fourth Amendment. Id. ¶ 12. Again, it is undisputed that when Kimple obtained the warrant for Joseph, the cocaine had not yet been tested for purity. Id. ¶ 14; doc. # 50 ¶¶ 11, 13.

As of 10/8/99 (the day Kimple...