Odom v. Kaizer

Decision Date01 August 2012
Docket NumberCase No. 1:10–cv–085.
PartiesCharles ODOM, Plaintiff, v. Kenan KAIZER, Defendant.
CourtU.S. District Court — District of North Dakota

884 F.Supp.2d 923

Charles ODOM, Plaintiff,
v.
Kenan KAIZER, Defendant.

Case No. 1:10–cv–085.

United States District Court,
D. North Dakota,
Southwestern Division.

Aug. 1, 2012.


[884 F.Supp.2d 925]


Charles Odom, Bismarck, ND, pro se.

Randall J. Bakke, Smith Bakke Porsborg Schweigert & Armstrong, Bismarck, ND, for Defendant.


ORDER ADOPTING REPORT AND RECOMMENDATION

DANIEL L. HOVLAND, District Judge.

Before the Court is Magistrate Judge Charles S. Miller, Jr.'s Report and Recommendation. See Docket No. 58. Judge Miller recommends denying defendant Kenan Kaizer's motion for judgment on the pleadings. See Docket No. 44. The Court has carefully reviewed the Report and Recommendation, relevant case law, and the entire record, and finds the Report and Recommendation to be persuasive. Accordingly, the Court ADOPTS the Report and Recommendation (Docket No. 58) in its entirety and DENIES the defendant's

[884 F.Supp.2d 926]

motion for judgment on the pleadings (Docket No. 44).

IT IS SO ORDERED.

REPORT AND RECOMMENDATION
CHARLES S. MILLER, JR., United States Magistrate Judge.

Odom, a state prisoner, is suing Kaizer pursuant to 42 U.S.C. § 1983 for giving false evidence in support of a complaint and warrant for Odom's arrest on charges to which he later pled guilty. Odom contends that probable cause was lacking for his arrest and that his Fourth Amendment rights were violated.

Before the court now is Kaizer's motion for judgment on the pleadings. For the reasons set forth below, it recommended that the motion be denied.

I. BACKGROUNDA. Odom's claim in this case

Odom is suing Kaizer individually under 42 U.S.C. § 1983 for violating his federal constitutional rights in connection with his arrest on December 4, 2005, on charges of possession of drug paraphernalia and marijuana, relating to events that occurred in January 2004, some two years earlier. Odom alleges that Kaizer appeared before a state court judge some eight months prior to his arrest to swear out a complaint and obtain an arrest warrant. He alleges that Kaizer gave false testimony, either intentionally or recklessly, which was material to the court's determination of probable cause and without which the warrant would not have been issued. Odom seeks only monetary damages.

B. State criminal proceedings
1. The events at the Select Inn in January 2004

On January 20, 2004, Bismarck police received a 911 call from an individual by the name of Riddle Johnson. Johnson advised officers that he had locked himself in the bathroom at the Select Inn in Bismarck because another individual, who he identified as Odom, had threatened him with assault for the purpose of collecting on a drug debt. Bismarck police responded to the motel and eventually discovered several items of drug paraphernalia in the room where Johnson was located after having received permission to search the room. Odom v. State, 2010 ND 65, ¶ 2, 780 N.W.2d 666. Beyond these bare facts, it is not clear what may be in dispute regarding the events of January 20, 2004.

2. The complaint and arrest warrant

Apparently, Odom was not arrested in January 2004 when police responded to the Select Inn, and it was not until April 25, 2005, some sixteen months later, that Kaizer went before a state district court judge to swear out a complaint and obtain a warrant for Odom's arrest. Odom v. State, 2010 ND 65, ¶¶ 2–3, 780 N.W.2d 666. Why the authorities waited so long is not clear.

Kaizer presented oral sworn testimony in support of the complaint and arrest warrant in lieu of submitting an affidavit, which the court understands is a common local practice. Based solely on Kaizer's testimony, the state district judge found there was probable cause for the charges set forth in the complaint, namely felony possession of drug paraphernalia and misdemeanor possession of a small quantity of marijuana, and issued a warrant for Odom's arrest. Id.

As will be discussed in more detail later, the North Dakota Supreme Court stated in one of its subsequent opinions that Kaizer's testimony was inaccurate in two respects. Also, in the same opinion, the court set forth additional “facts” relating

[884 F.Supp.2d 927]

to the events of January 20, 2004, that were not reflected in Kaizer's testimony, and what the court relied upon as the source for these facts is not clear at this point.

3. Odom's arrest and a second set of charges

On December 4, 2005, approximately seven months after the arrest warrant was issued, the manager of the Days Inn called Bismarck police to report suspicious activity on the part of a Charles Odom who had just checked in at the motel. See Odom v. Brutger Equities, Inc., No. 1:06–cv–038, 2007 WL 1611923, **2–3 (D.N.D. June 1, 2007); Odom v. State, 2010 ND 65, ¶ 4, 780 N.W.2d 666. The police responded and arrested Odom outside the Days Inn on the still outstanding warrant for the charges of possession of drug paraphernalia and marijuana arising out of the events at the Select Inn almost two years earlier. Following Odom's arrest, police searched his room. In the room's safe, they found a digital scale covered with cocaine residue, a bundle of cash, and crack cocaine. Odom v. State, 2010 ND 65, ¶ 4, 780 N.W.2d 666;State v. Odom, 2006 ND 209, ¶¶ 2–6, 722 N.W.2d 370.

There is some information which suggests that Odom was held in custody on the charges that are the subject of this action and, at some point later, a second set of charges was brought against him for possession of cocaine with the intent to deliver and possession of drug paraphernalia based on what was discovered in his room's safe at the Days Inn. State v. Odom, 2006 ND 209, ¶ ¶ 2–6, 722 N.W.2d 370. It is not clear at this point what process was used to initiate the second set of charges. However, it does appear that the state district court conducted a combined preliminary hearing sometime in January 2006 on both sets of charges and that Odom was bound over to stand trial on the charges. Odom v. State, 2010 ND 65, ¶ 5, 780 N.W.2d 666.

4. Disposition of the first set of charges

According to subsequent decisions of the North Dakota Supreme Court, Odom changed his plea to guilty on the first set of charges, which are the subject of this case, on September 6, 2006, and was immediately sentenced to time served and a small fine. Odom v. State, 2010 ND 65, ¶ 5, 780 N.W.2d 666. However, upon learning that he would not be released because of the charges pending in the second case, Odom immediately moved to withdraw his plea of guilty. A judgment of conviction was entered on September 13, 2006, which was followed by another motion to withdraw the guilty plea. On April 11, 2007, the state district court denied the motions to withdraw the plea of guilty. Thereafter, it does not appear that a direct appeal was taken from either the judgment of conviction or the order denying the motions to withdraw the plea of guilty. See Odom v. Kaizer, No. 1:07–cv–019, 2009 WL 2709395, *3 (D.N.D. Aug. 24, 2009). In any event, the North Dakota Supreme Court in Odom v. State, denied his request for postconviction relief on the first set of charges as discussed in more detail in a moment.

5. Disposition of the second set of charges

As for the second set of charges, the state district court initially suppressed the evidence from the search of the safe in Odom's room at the Days Inn on the grounds that Odom's consent to the search of his room did not extend to the room's safe. However, the State's Attorney took an immediate appeal and the North Dakota Supreme Court reversed the trial court's decision in State v. Odom, supra. See also Odom v. State, 2010 ND 65, ¶ 5, 780 N.W.2d 666.

[884 F.Supp.2d 928]

In June 2007, Odom entered a conditional plea of guilty to the second set of charges after the district court denied his motion to suppress the evidence. He was sentenced to twenty years' incarceration. On January 17, 2008, the North Dakota Supreme Court summarily affirmed the criminal judgment in State v. Odom, 2008 ND 2, 747 N.W.2d 136.See Odom v. State, 2010 ND 65, ¶ 5, 780 N.W.2d 666.

6. Odom's petition for post-conviction relief

Odom next filed a state petition for post-conviction relief in March 2008, arguing that he had been denied effective assistance of counsel. Odom contended that his attorney should have requested a transcript of the testimony given by Kaizer in April 2005 in support of the warrant for his arrest and uncovered his allegedly false testimony, which Odom contended made his arrest unlawful. Odom v. State, 2010 ND 65, ¶ 6, 780 N.W.2d 666. The state district court denied the petition, concluding that Odom's counsel's performance was not ineffective and also that Odom had not suffered prejudice. With respect to the latter, the district court concluded that, notwithstanding the inaccurate testimony, sufficient other evidence had been presented to establish probable cause. Id. ¶ 6.

On April 6, 2010, the North Dakota Supreme Court affirmed the district court's order denying Odom's petition for post-conviction relief, but on more limited grounds. The court agreed that Odom had failed to prove that his counsel's representation was ineffective. And, because of that conclusion, the court stated it was unnecessary to consider whether or not Odom had suffered prejudice, i.e., whether there was sufficient other evidence to establish probable cause. Id. at ¶ 13.

C. Proceedings inOdom v. Kaizer I

On March 20, 2007, Odom filed a § 1983 action against Kaizer and several other named defendants. Odom v. Kaiser, No. 1:07–cv–019. Odom alleged, among other things, that Kaizer provided false information that was used in support of a complaint and warrant for his arrest. Odom sought both equitable relief, i.e., dismissal of his state charges, and damages for pain and suffering and mental anguish.

Initially, the court stayed this action because of Odom's ongoing state criminal proceedings. When those proceedings were completed, the court conducted a preservice screening as required by 28 U.S.C. § 1915A...

To continue reading

Request your trial
2 cases
  • Sebrite Agency, Inc. v. Platt
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • 7 Agosto 2012
  • Odom v. Kaizer, Case No. 1:10-cv-085
    • United States
    • United States District Courts. 8th Circuit. United States District Court of North Dakota
    • 6 Diciembre 2013
    ...malicious prosecution, it would still most likely be considered a variant of a § 1983 claim for false arrest. See Odom v. Kaizer, 884 F. Supp. 2d 923, 930 n.1 (D.N.D. 2012). And, if so, then, arguably, it is foreclosed by the Eighth Circuit case law holding that a § 1983 claimant does not h......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT