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ROACH v. MADDEN

December 20, 1989

VIRGIL ROACH, PLAINTIFF
v.
SHERIFF DALE MADDEN, DEFENDANT



The opinion of the court was delivered by: WOODS

 INTRODUCTION.

 On August 1, 1989, plaintiff, Virgil Roach, filed the pro se complaint at bar pursuant to 42 U.S.C. § 1983. His complaint, which seeks damages and declaratory relief, was submitted as a result of the actions taken by defendant, Dale Madden, Sheriff of Prairie County, Arkansas, in evicting him from his residence pursuant to a Writ of Assistance ("Writ") issued by the Chancery Court of Prairie County, Arkansas, Northern Division. Plaintiff maintains that defendant's actions give rise to three causes of action:

 
22. Defendant Madden along with Defendants John Doe One through Ten seized the Plaintiff's private property without a lawful Court Order in violation of the Plaintiff's Constitutional right to be free from unlawful seizures of his private property.
 
23. Defendant Madden's conduct in not allowing the Plaintiff an opportunity to remove his property from the seized real estate violated the Plaintiff's constitutional right to due process and equal protection of the law.
 
24. Defendant Madden's conduct of damaging, destroying, and distributing the Plaintiff's personal property violated the Plaintiff's inherent right to possess and use personal property and such conduct violated the Plaintiff's right to due process and equal protection of the law.

 Complaint at 6. Defendant joined the issues by filing an answer on August 18, 1989.

 On October 4, 1989, defendant filed the pending motion for summary judgment. *fn1" His motion, supported by an affidavit and various other exhibits, was predicated upon two grounds. First, he alleged that his actions in evicting plaintiff were pursuant to a valid court order. He therefore maintained that he was entitled to quasi-judicial, or absolute, immunity from suit. Second, as an alternative contention, he alleged that his actions were such that a reasonable officer could have believed them lawful, in light of the clearly established law and the information he possessed at the time of plaintiff's eviction. Thus, he maintained that he was entitled to qualified immunity from suit. Plaintiff responded to this motion on October 30, 1989. His response was supported by essentially the same exhibits submitted by defendant, plus his own affidavit and those of Zelma Nell Roach and Phil Isbell.

 The Court has thoroughly examined the various pleadings and exhibits submitted by the parties. This examination has persuaded the Court that the material facts are not in dispute and defendant is entitled to judgment as a matter of law. His motion for summary judgment is therefore granted.

 SUMMARY JUDGMENT. "A motion for summary judgment should be granted if, in viewing the evidence in the light most favorable to the non-moving party, 'there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law.'" Nelson v. City of McGehee, 876 F.2d 56, 57 (8th Cir. 1989) (citation omitted). See also Fed.R.Civ.P. 56. The non-moving party, in opposing the motion, must be given the benefit of all favorable factual inferences. See Holloway v. Lockhart, 813 F.2d 874, 878 (8th Cir. 1987). When a motion for summary judgment is made and supported as provided for by Rule 56, the non-moving party may not "'rest upon the mere allegations or denial of his pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.'" Nelson v. City of McGehee, 876 F.2d at 57 (citation omitted). "Only disputes over facts that may affect the outcome of the lawsuit under the governing substantive law will properly preclude the entry of summary judgment." Id. (citation omitted).

 FACTS. The parties have submitted several affidavits and various other exhibits. Defendant maintains that the Court should not consider two of the affidavits submitted by plaintiff, the first by Zelma Nell Roach and the second by Phil Isbell. It is defendant's position that neither affidavit is notarized nor falls within the exception found in 28 U.S.C. § 1746. See Reply at 3. It is true neither affidavit is notarized, but both were made under penalty of perjury "after being first duly sworn." See Affidavits of Zelma Nell Roach at 1 and Phil Isbell at 1. The Court therefore finds that both comply with § 1746, see Pfeil v. Rogers, 757 F.2d 850, 858-59 (7th Cir.), cert. denied, 475 U.S. 1107, 89 L. Ed. 2d 912, 106 S. Ct. 1513 (1985), and the matters attested to in the affidavits will be considered by the Court in resolving defendant's motion.

 The various pleadings and exhibits establish the following material facts:

 1. On March 24, 1977, plaintiff and his wife executed and delivered a promissory note to the Federal Land Bank of St. Louis ("Bank") in the amount of $ 64,000.00. See Defendant's Exhibit B at 3. That same day, plaintiff and his wife, in order to secure the payment of the note, executed and delivered to the Bank a mortgage conveying the following real property:

 
All of the Northeast Quarter (NE 1/4) of Section Thirty-Two (32), in Township Four North (T4N), Range Six West (R6W) of the Fifth Principal Meridian, Northern District of Prairie County, Arkansas, ...

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