Monson v. Mulligan, 4:95 CV 325 DDN.

• Decision Date: 26 September 1996
• Docket Number: No. 4:95 CV 325 DDN.,4:95 CV 325 DDN.
• Citation: 950 F.Supp. 262
• Parties: Demetrius MONSON, Plaintiff, v. John MULLIGAN, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

950 F.Supp. 262

Demetrius MONSON, Plaintiff, v. John MULLIGAN, Defendant.

No. 4:95 CV 325 DDN.

United States District Court, E.D. Missouri, Eastern Division.

September 26, 1996.

Frank A. Anzalone, Anzalone and Fiser, St. Louis, MO, Thomas C. Antoniou, Goffstein and Antoniou, St. Louis, MO, for plaintiff.

Peter J. Dunne, Rabbitt and Pitzer, St. Louis, MO, for defendant.

OPINION

NOCE, United States Magistrate Judge.

This action is before the court following a non-jury trial, held on February 1 and March 25, 1996. The parties have consented to the exercise of authority by the undersigned United States Magistrate Judge under 28 U.S.C. § 636(c)(3).

Plaintiff Demetrius Monson has brought this action for relief under 42 U.S.C. § 1983 against defendant John Mulligan. Plaintiff seeks substantial monetary damages and equitable relief for alleged violations of his federal rights. Plaintiff alleges that defendant Mulligan, employed as a city attorney for the City of University City, Missouri, unlawfully directed a city police officer to refrain from returning to him the sum of approximately $12,500, which plaintiff alleges had been unlawfully seized by the police from his home. Defendant Mulligan denies the plaintiff's allegations and asserts the defenses of prosecutorial immunity and qualified immunity of public officials.

From the evidence adduced during the non-jury trial of this action, the court makes the following findings of fact and conclusions of law, required by Rule 52(a), Federal Rules of Civil Procedure:

FACTS

1. On July 18, 1994, city police officers of University City, Missouri, were dispatched to the home of plaintiff Demetrius Monson, located at 7535 Milan. The police had received a report that Monson had been shot there. Two persons had forced their way into 7535 Milan and shot Monson. The police found Monson wounded in his sleeping area in the basement of the residence. An ambulance was requested and Monson was taken to an area hospital.

2. Also residing at 7535 Milan were plaintiff's mother, Lilly Monson Jones, plaintiff's stepfather, Clyde Jones, Charity Jones, and Darrick Monson, plaintiff's brother. Darrick also slept in a portion of the basement which was separated from Demetrius's portion by a sheet hung from the ceiling; the other residents slept in rooms on the first floor.

3. While the officers were in the basement, Officer Glenn Duncan attempted to retrieve a firearm which had been on a ledge of the nearby furnace and which had been knocked off the ledge into the furnace interior. In order to find the firearm, Officer Duncan removed the furnace filter, removed a cover, and reached into the vent area of the furnace. While reaching into the furnace for the firearm, Officer Duncan found a large brown plastic bag which contained a large amount of cash. Inside the bag the officers found and immediately twice counted $10,500 in currency. The money was seized pending further investigation. No permission to seize the money was sought or received from any occupant of the residence. The $10,500 was turned over to Police Captain Samuel Wilcox.

4. Police Officers Timothy Hepler and Glickard were detailed to investigate the shooting of Monson and they questioned him about the matter on July 19, while he was still hospitalized, medicated, and in intensive care. During this questioning, Officer Hepler asked Monson about the two men who shot him. Monson said that the intruders had shot him when he told them he had no money for them to take. Officer Glickard asked Monson whether he had had any money in the house. Monson answered that he may have had a couple of thousand dollars. Monson did not tell the officers where the money was located.

5. On July 21, 1994, Police Detective Tyron Thompson interviewed Darrick Monson about the money. Darrick said he did not know the location of the money, but that $8,000 of it belonged to him.

6. On July 22, 1994, the Prosecuting Attorney of St. Louis County began a civil action against Demetrius Monson, in Cause No. 665623, in the Circuit Court of St. Louis County, for the civil forfeiture, under the Missouri state Criminal Activity Forfeiture Act (CAFA), Rev.Stat.Mo. §§ 513.607 et seq. (1993 Supp.), of the $10,500 seized from 7535 Milan on July 18. The petition alleged that the money had been used or was intended to be used by Monson in the course of criminal activity. On August 11, 1994, Monson filed his answer to the forfeiture petition; the answer denied the allegations of criminal activity.

7. Also on July 22, 1994, the Prosecuting Attorney commenced another civil action, Cause No. 665624, in the state court against Demetrius Monson. The action sought the transfer of the $10,500 under CAFA to the custody of a federal agency for federal forfeiture proceedings. This petition alleged that, when the police investigated the Monson shooting on July 18, 1994, the officers seized marijuana, a firearm, and the $10,500. In response to the petition, Demetrius Monson filed an objection to the transfer. This objection denied any criminal activity and alleged the seized moneys, $12,500 in amount, were the proceeds of social security benefits. On August 23, 1994, upon motion of the Prosecuting Attorney's Office, Cause No. 665624 was dismissed.

8. On October 12, 1994, the St. Louis County Prosecutor's Office declined to prosecute Monson criminally relating to his possession of the seized currency.

9. On January 19, 1995, the Prosecuting Attorney's Office dismissed Cause No. 665623 without prejudice because criminal charges had been refused. On January 19, 1995, following the dismissal of Cause No. 665623, the Prosecuting Attorney's Office sent a letter to the University City Police Department. In that letter, the police department was informed that no forfeiture of the $10,500 would be sought, because there was to be no prosecution of the matter. The letter stated that the money should be returned to its owner, unless there was another basis for keeping it in custody.

10. Thereafter, counsel for plaintiff telephoned University City Police Captain Samuel Wilcox about the release of the seized money. Wilcox told counsel he would have to consult with the city prosecutor.

11. At the request of counsel for Demetrius Monson, Assistant Prosecuting Attorney Richard Harper had a telephone conversation with Captain Wilcox. Harper told Wilcox about the dismissal of the forfeiture proceedings and advised him to return the money.

12. Thereafter, within the month of January 1995, counsel for Demetrius Monson spoke by telephone with Capt. Wilcox who advised counsel that he would not release the seized currency without the approval of University City city attorney John Mulligan. Wilcox told plaintiff's counsel that there was a problem with the ownership of the money and that he would not release the money without a court order in a replevin action.

13. Defendant John Mulligan is an attorney, licensed by the State of Missouri. Mulligan has a private practice of law and is retained on a part-time basis by the City of University City as the city's Municipal Prosecutor; in this position, he enforces only city ordinances. Mulligan is employed by the City of University City also as one of several attorneys employed as a "city attorney" to provide legal advice to the city on a case-by-case, hourly billing basis. The City of University City does not have a legal department staffed by employed legal counsel.

14. Neither attorney Mulligan, as Municipal Prosecutor, nor the City of University City prosecuted Demetrius Monson for any violation of law relating to the July 18, 1994, seizure of the money.

15. In early 1995, both Capt. Wilcox and Monson's attorney contacted Mulligan regarding the currency seized from Monson's residence. In their first conversation about the matter, Mulligan told plaintiff's counsel that he did not know about the matter and that he would look into it. Several days later, plaintiff's counsel again telephoned Mulligan. Mulligan told counsel that there was more than one person who lived in the residence, that the city was concerned about competing claims to the money, and that the city was concerned about liability for wrongful payment of the money. He stated that the money should be returned to the true owner or owners. Mulligan suggested that Monson commence a replevin judicial action for the money so that a court can determine the proper disposition of the money. Mulligan advised plaintiff's counsel that the city would release the money to the persons determined by the court to be the rightful owner or owners. Plaintiff's counsel stated that he had a Missouri state court opinion which indicated that possession of such property was prima facie evidence of true ownership and that any claimant would have the burden of proving ownership. Plaintiff's counsel then offered to obtain affidavits from the other residents of 7535 Milan; he asked Mulligan whether that would be helpful. Mulligan said that such would be helpful and that counsel should send him a copy of the case to which he referred. Attorney Mulligan never stated he would approve the release of the money to plaintiff if he received the affidavits.

16. Thereafter, Mulligan received a letter, dated January 31, 1995, from Monson's counsel. The letter stated:

Enclosed please find the following items which I believe should be dispositive of the issues we discussed regarding the money currently being held in University City:

a) Affidavit of Lilly Jones, Clyde Jones and Darrick Monson relinquishing any claims to all sums of money to my client Demetrius Monson;

b) a copy of the case in State v. Patchen, 652 S.W.2d 265 which clearly states the law in Missouri regarding these items.

In light of the foregoing we will regard any continued conversion of this money by the police department to be evidence of bad faith establishing justification for an award of punitive damages.

See Pl.Exh. 3. Attached to the...