Powell v. Tordoff, No. C 95-0129.

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
PartiesDavid M. POWELL and Robert B. Depugh, Plaintiffs, v. Ron TORDOFF, et al., Defendants.
Decision Date19 December 1995
Docket NumberNo. C 95-0129.

911 F. Supp. 1184

David M. POWELL and Robert B. Depugh, Plaintiffs,
v.
Ron TORDOFF, et al., Defendants.

No. C 95-0129.

United States District Court, N.D. Iowa, Cedar Rapids Division.

December 19, 1995.


911 F. Supp. 1185
COPYRIGHT MATERIAL OMITTED
911 F. Supp. 1186
David M. Powell, Richmond, Missouri, pro se

Robert B. DePugh, Independence, Missouri, pro se.

Nathan Callahan, Waterloo, Iowa, for Ron Tordoff, Rick D. Penning, Todd A. Geer, and Tim Wolthoff.

911 F. Supp. 1187

Gerald R. Monk, pro se.

John Stull, pro se.

Pamela D. Griebel, Assistant Attorney General, Iowa Attorney General's Office, Des Moines, Iowa, for John L. McCarter.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' MOTIONS TO DISMISS

BENNETT, District Judge.

 TABLE OF CONTENTS
                 I. INTRODUCTION AND BACKGROUND ................................................. 1187
                 II. LEGAL ANALYSIS .............................................................. 1188
                 A. Standards For Rule 12(b)(6) Motions To Dismiss ........................... 1188
                 B. Standing ................................................................. 1189
                 C. Statute Of Limitations ................................................... 1190
                 1. Applicable statute of limitations .................................... 1190
                 a. Claims pursuant to §§ 1983, 1985, and 1986 ........................ 1191
                 b. Claims pursuant to the Privacy Protection Act of 1980 ............. 1192
                 2. Accrual of claims .................................................... 1193
                III. CONCLUSION .................................................................. 1196
                

The defendants in this lawsuit arising from an allegedly illegal search and seizure have moved to dismiss all thirty of the plaintiffs' causes of action. The motions to dismiss require the court to tread the familiar ground of the statute of limitations for and date of accrual of civil rights claims brought pursuant to 42 U.S.C. §§ 1983, 1985, and 1986. In addition, they require the court to explore the virgin territory of the statute of limitations for, date of accrual of, and standing to bring claims under the Privacy Protection Act of 1980, 42 U.S.C. § 2000aa-2000aa-12. The motions to dismiss all assert that the plaintiffs' claims are time-barred under the applicable statute of limitations and otherwise fail to state claims upon which relief can be granted. The plaintiffs have resisted all of the motions to dismiss asserting that their claims are viable.

I. INTRODUCTION AND BACKGROUND

Plaintiffs David M. Powell and Robert B. DePugh filed their complaint in this matter on April 24, 1995, alleging thirty causes of action against various defendants arising from the search and seizure of materials from a building in Reinbeck, Iowa, on October 22, 1991. Mr. DePugh and Mr. Powell allege that the search of the building and the seizure from it of certain materials constituted a violation of their federal and constitutional rights under color of state law, conspiracy to violate those rights, and failure to prevent a conspiracy by others to violate those rights.1 The plaintiffs assert these causes of action pursuant to three federal civil rights statutes, 42 U.S.C. §§ 1983, 1985(3), and 1986, as well as pursuant to the federal Privacy Protection Act of 1980 (PPA), 42 U.S.C. § 2000aa-2000aa-12.

Mr. DePugh is the former owner of the building that was searched and at one time he had both resided and operated a business there. Mr. Powell was the lessee of the building, which, at the time of the search in question, was owned by Lincoln Savings Bank of Reinbeck, Iowa. The defendants are Rick D. Penning, the Sheriff of Grundy County, Iowa, and Deputy Sheriffs Ron Tordoff and Tim Wolthoff; Todd A. Geer, an Assistant County Attorney for Grundy County, Iowa; John L. McCarter, a magistrate of Iowa's First Judicial District in Grundy County, Iowa; and Gerald R. Monk and John Stull, who are, respectively, an attorney and officer for Lincoln Savings Bank of Grundy County, Iowa. Plaintiffs have also named

911 F. Supp. 1188
John Doe defendants One and Two and Jane Doe defendants One and Two

The defendants identified by name have all moved to dismiss the complaint as to them on the grounds that the plaintiffs' many causes of action are time-barred under the applicable statute of limitations and otherwise fail to state claims upon which relief can be granted.2 The plaintiffs were granted leave to amend their complaint on August 24, 1995, but the amendments were essentially typographical. Most of the defendants moved the court to consider their motions to dismiss the original complaint as applicable to the amended complaint, and the court will do so. Defendant McCarter filed a renewed motion to dismiss the amended complaint reiterating his grounds for dismissal of the original complaint.

The complaint in this matter alleges that on October 22, 1991, Sheriff Penning and Deputy Sheriff Tordoff conducted a search of a building in Reinbeck, Iowa, leased by David Powell from Lincoln Savings Bank, which Robert DePugh had once owned, used as a residence, and from which he had conducted a business.3 Mr. DePugh had left some personal property in the premises. The sheriff and his deputy were purportedly acting on a tip from Gerald Monk that John Stull had been through the building and had there discovered two cardboard boxers containing material which Stull "had `determined' to be contraband." Sheriff Penning obtained a search warrant for the premises from Magistrate McCarter to search for and seize a "storage box approximately 3 feet × 15 inches containing `Minute Men' literature and a box containing photographs of models, cassette tapes, film and address book ... being kept ... in the possession of David Powell." Penning and Tordoff seized the following items from the premises, all of which are alleged to be the property of Robert DePugh: 1) a cardboard box with film, video, pictures, and address book; 2) a plastic basket with film and miscellaneous papers or receipts; 3) a letter from Mrs. Hazel Dennison to Mr. DePugh; and 4) a cardboard box with Minute Men literature inside.

II. LEGAL ANALYSIS

A. Standards For Rule 12(b)(6) Motions To Dismiss

A motion to dismiss may be made, inter alia, for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) requires the court to review only the pleadings to determine whether the pleadings state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b).4 Such motions "can serve a useful purpose in disposing of legal issues with the minimum of time and expense to the interested parties." Hiland Dairy, Inc. v. Kroger Co., 402 F.2d 968, 973 (8th Cir.1968), cert. denied, 395 U.S. 961, 89 S.Ct. 2096, 23 L.Ed.2d 748 (1969). The issue is not whether a plaintiff will ultimately prevail, but rather whether the plaintiff is entitled to offer evidence in support of the plaintiff's claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); United States v. Aceto Agricultural Chem. Corp., 872 F.2d 1373, 1376 (8th Cir.1989).

In considering a motion to dismiss under Rule 12(b)(6), the court must assume that all facts alleged in the plaintiff's complaint

911 F. Supp. 1189
are true, and must liberally construe those allegations. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The court is mindful that in treating the factual allegations of a complaint as true pursuant to Rule 12(b)(6), the court "does not, however, blindly accept the legal conclusions drawn by the pleader from the facts." Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990) (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987), and 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357, at 595-97 (1969)); see also LRL Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1103 (6th Cir.1995) (the court "need not accept as true legal conclusions or unwarranted factual inferences," quoting Morgan, 829 F.2d at 12). Thus, the court need not and will not take as true merely conclusory allegations; rather, the court will consider whether the facts alleged in the complaint, accepted as true, are sufficient to state a claim upon which relief can be granted. Westcott, 901 F.2d at 1488

"A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46, 78 S.Ct. at 102. Rule 12(b)(6) does not countenance dismissals based on a judge's disbelief of a complaint's factual allegations. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989). Thus, it is only in the "unusual case" where the complaint on its face reveals some insuperable bar to relief that a dismissal under Rule 12(b)(6) is warranted. Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir.1982).

The plaintiffs here filed both their original complaint and the amended complaint pro se. Thus, the court must also be mindful of its oft-stated obligation to treat pro se pleadings to liberal construction. See, e.g., Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) (per curiam) (allegations in a pro se complaint are entitled to a liberal construction); Mellott v. Purkett, 63 F.3d 781, 785 (8th Cir.1995) (pro se pleadings must be given "appropriate liberal construction"); Edgington v. Missouri Dep't of Corrections, 52 F.3d 777, 779 (8th Cir.1995) (allegations of a pro se complaint are entitled to a liberal construction); Smith v. St. Bernards Regional Medical Ctr., 19 F.3d 1254, 1255 (8th Cir.1994). However, the liberality of such construction is not limitless: a pro se complaint may be dismissed as frivolous under 28 U.S.C. § 1915(d) if it is based on "an indisputably meritless legal theory" or if the factual contentions are...

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8 practice notes
  • Bala v. Stenehjem, Case No. 1:09-cv-015.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of North Dakota
    • November 30, 2009
    ...that the defendants engaged in a conspiracy cannot withstand a motion to dismiss for failure to state a claim. See Powell v. Tordoff, 911 F.Supp. 1184, 1196 n. 8 (N.D.Iowa The Plaintiffs' amended complaint fails to allege that Attorney General Stenehjem violated their federal rights. The am......
  • Gunderson v. ADM Investor Services, Inc., No. C96-3148-MWB (N.D. Iowa 2/13/2001), No. C96-3148-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • February 13, 2001
    ...980 F. Supp. 300, 302 (N.D.Iowa 1997); North Cent. F.S., Inc. v. Brown, 951 F. Supp. 1383, 1404 (N.D.Iowa 1996); Powell v. Tordoff, 911 F. Supp. 1184, 1188 (N.D.Iowa 1995); Quality Refrigerated Servs., Inc. v. City of Spencer, 908 F. Supp. 1471, 1489 (N.D.Iowa 1995); Reynolds v. Condon, 908......
  • Gunderson v. Adm Investor Services, Inc., No. C96-3148-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • February 28, 2000
    ...Inc., 980 F.Supp. 300, 302 (N.D.Iowa 1997); North Cent. F.S., Inc. v. Brown, 951 F.Supp. 1383, 1404 (N.D.Iowa 1996); Powell v. Tordoff, 911 F.Supp. 1184, 1188 (N.D.Iowa 1995); Quality Refrigerated Servs., Inc. v. City of Spencer, 908 F.Supp. 1471, 1489 (N.D.Iowa 1995); Reynolds v. Condon, 9......
  • Gunderson v. Adm Investor Services, Inc., No. C96-3148-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 22, 1999
    ...Inc., 980 F.Supp. 300, 302 (N.D.Iowa 1997); North Cent. F.S., Inc. v. Brown, 951 F.Supp. 1383, 1404 (N.D.Iowa 1996); Powell v. Tordoff, 911 F.Supp. 1184, 1188 (N.D.Iowa 1995); Quality Refrigerated Servs., Inc. v. City of Spencer, 908 F.Supp. 1471, 1489 (N.D.Iowa 1995); Reynolds v. Condon, 9......
  • Request a trial to view additional results
8 cases
  • Bala v. Stenehjem, Case No. 1:09-cv-015.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of North Dakota
    • November 30, 2009
    ...that the defendants engaged in a conspiracy cannot withstand a motion to dismiss for failure to state a claim. See Powell v. Tordoff, 911 F.Supp. 1184, 1196 n. 8 (N.D.Iowa The Plaintiffs' amended complaint fails to allege that Attorney General Stenehjem violated their federal rights. The am......
  • Gunderson v. ADM Investor Services, Inc., No. C96-3148-MWB (N.D. Iowa 2/13/2001), No. C96-3148-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • February 13, 2001
    ...980 F. Supp. 300, 302 (N.D.Iowa 1997); North Cent. F.S., Inc. v. Brown, 951 F. Supp. 1383, 1404 (N.D.Iowa 1996); Powell v. Tordoff, 911 F. Supp. 1184, 1188 (N.D.Iowa 1995); Quality Refrigerated Servs., Inc. v. City of Spencer, 908 F. Supp. 1471, 1489 (N.D.Iowa 1995); Reynolds v. Condon, 908......
  • Gunderson v. Adm Investor Services, Inc., No. C96-3148-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • February 28, 2000
    ...Inc., 980 F.Supp. 300, 302 (N.D.Iowa 1997); North Cent. F.S., Inc. v. Brown, 951 F.Supp. 1383, 1404 (N.D.Iowa 1996); Powell v. Tordoff, 911 F.Supp. 1184, 1188 (N.D.Iowa 1995); Quality Refrigerated Servs., Inc. v. City of Spencer, 908 F.Supp. 1471, 1489 (N.D.Iowa 1995); Reynolds v. Condon, 9......
  • Gunderson v. Adm Investor Services, Inc., No. C96-3148-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 22, 1999
    ...Inc., 980 F.Supp. 300, 302 (N.D.Iowa 1997); North Cent. F.S., Inc. v. Brown, 951 F.Supp. 1383, 1404 (N.D.Iowa 1996); Powell v. Tordoff, 911 F.Supp. 1184, 1188 (N.D.Iowa 1995); Quality Refrigerated Servs., Inc. v. City of Spencer, 908 F.Supp. 1471, 1489 (N.D.Iowa 1995); Reynolds v. Condon, 9......
  • Request a trial to view additional results

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