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Lowery v. Atkinson

October 23, 2006

NANCY LOWERY PLAINTIFF
v.
TERESA ATKINSON DEFENDANT



The opinion of the court was delivered by: J. Leon Holmes United States District Judge

OPINION AND ORDER

Nancy Lowery brings this civil rights action against Teresa Atkinson in her individual capacity asserting a Fourth Amendment claim pursuant to 42 U.S.C. § 1983 and a supplementary state claim under the Arkansas Constitution. The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 as to the claims that arise under federal law. The Court has authority under 28 U.S.C. § 1367 to exercise supplemental jurisdiction over the state-law claims. Lowery alleges that Atkinson, a civilian employee of the Arkansas State Police Division of Crimes Against Children, deprived her of the right to be secure in her home against unreasonable searches and seizures when she requested Guy Chief of Police, Tony Hartwick, to seize her home in the course of an investigation into an anonymous report of child sexual abuse. Atkinson now moves for summary judgment. For the following reasons, the defendant's motion for summary judgment will be granted in part and denied in part.

I. Summary Judgment Standard

A court should enter summary judgment if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202 (1986); Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847, 850 (8th Cir. 2005). The party moving for summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed. 2d 265 (1986). If the moving party carries its burden, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed. 2d 538 (1986) (quoting FED. R. CIV. P. 56(e)).

A genuine issue for trial exists only if there is sufficient evidence to allow a jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. When a nonmoving party cannot make an adequate showing on a necessary element of the case on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.

II. Facts

On April 14, 2004, a report to the Child Abuse Hotline was made stating that minors were being allowed to view pornographic images on a computer in Lowery's home and that Lowery was aware of it. The Child Abuse Hotline is a part of the Crimes Against Children Division of the Arkansas State Police. The complaint was assigned to Atkinson, who was notified of the complaint on April 15, 2004. Atkinson's responsibilities included investigating allegations made to the child abuse hotline to determine whether the allegations were true or unsubstantiated. At approximately 1:05 p.m., Atkinson contacted local law enforcement to give notice of the report and to request assistance with the investigation. Atkinson subsequently spoke to the Guy Chief of Police, Tony Hartwick, who agreed to assist in the investigation.

Hartwick initially spoke with Lowery's son at Guy-Perkins High School. Lowery's son told Hartwick that a man, not a minor, had seen a pop-up of a nude man. The account given by Lowery's son did not substantiate the allegations made in the report to the hotline. Hartwick then spoke to Lowery, who was also a teacher at Guy-Perkins High School, in her classroom. Following this discussion, Hartwick, Lowery, and Lowery's son retreated to the Lowery home. When they arrived, Hartwick entered the home to obtain the computer for evidence as part of the investigation. Lowery's son disconnected the computer and began to bring it to Hartwick. Before turning the computer over to Hartwick, Lowery withdrew her consent for him to take the computer. According to Lowery, she then asked Hartwick to leave. Hartwick denies that Lowery asked him to leave but admits that Lowery's husband asked him to leave.

Hartwick relayed this information to Atkinson, and the two discussed the possibility of obtaining a search warrant. According to Hartwick, Atkinson said that Karl Byrd, a trooper with the Arkansas State Police, would obtain a warrant and would be there with it soon. Hartwick also testified that Atkinson told him to secure the computer and the residence. Hartwick remained at the Lowery home for approximately two hours. Eventually, Hartwick called Byrd, learned that he was not obtaining a warrant, and withdrew from the Lowery home. Byrd testified that Atkinson never contacted him and never asked him to obtain a warrant. The child maltreatment report was ultimately found to be unsubstantiated. Throughout April 15, 2004, Lowery and Atkinson never spoke, and Atkinson never visited the Lowery residence. It is undisputed that Atkinson was not trained in search and seizure law and had no authority over Hartwick.

III. Section 1983 Claims

Lowery has brought this claim under 42 U.S.C. § 1983 alleging that Atkinson violated her right to be free from unreasonable searches and seizures. "[T]he essential elements of § 1983 liability [are]: (1) violation of a constitutional right, (2) committed by a state actor, (3) who acted with the requisite culpability and causation to violate the constitutional right." Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 777 (8th Cir. 2001) (citing Bd. of County Comm'rs v. Brown, 520 U.S. 397, 403-04, 117 S.Ct. 1382, 1388, 137 L.Ed. 2d 626 (1997)); see also Okla. City v. Tuttle, 471 U.S. 808, 829, 105 S.Ct. 2427, 2439, 85 L.Ed. 2d 791 (1985) (Brennan, J., concurring). In this case, the second element, that Atkinson was a state actor, is not in controversy because Atkinson was a state employee acting pursuant to the Arkansas Child Maltreatment Act. See ARK. CODE ANN. §§ 12-12- 501 to -519. As the other two elements are disputed, the Court will take each in turn.

A. Deprivation of a Constitutional Right

In her complaint, the plaintiff alleges that she was deprived of the rights guaranteed to her by the Fourth Amendment, specifically the "right of the people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures . . . ." U.S. CONST. amend. IV. In her motion for summary judgment, Atkinson attempts to draw a distinction among Lowery's Fourth Amendment rights, arguing that Lowery has pled facts that allege only an unlawful seizure and not an unlawful search. However, such facts need not be pled in federal court, as the "essential function of notice pleading 'is to give the opposing party fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved." Northern States Power Co. v. Fed. Transit Admin., 358 F.3d 1050, 1056-57 (8th Cir. 2004) (quoting Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 714 (8th Cir. 1979)).

1. Search

Analysis of a claim for unconstitutional search begins with the "well-established constitutional principle that law enforcement officers may not enter a person's home without a warrant unless the entry is justified by exigent circumstances or the consent of the occupant." United States v. Conner, 127 F.3d 663, 666 (8th Cir. 1997) (citing Steagald v. United States, 451 U.S. 204, 211, 101 S.Ct. 1642, 1647, 68 L.Ed. 2d 38 (1981); Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed. 2d 639 (1980)). The exigent circumstances "'exception justifies immediate police action without obtaining a warrant if lives are threatened, a suspect's escape is imminent, or evidence is about to be destroyed.'" United States v. Amburn, 412 F.3d 909, 915 (8th Cir. 2005) (quoting United States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996)). In this case, Lowery and her son had prepared to turn over the computer if a search warrant were to arrive, and Lowery and her son had given Hartwick "no problems." (Hartwick's Dep. at p. 16, ll. 13-21; p. 19, l. 14-p. 20, l. 5). Thus, no lives were threatened, no suspect's escape was imminent, and no evidence was "'in imminent danger of removal or destruction.'" United States v. Clement, 854 F.2d 1116, 1119 (8th Cir. 1988) (quoting United States v. Kulcsar, 586 F.2d 1283, 1287 (8th Cir. 1978)).

Hartwick's intrusion of the Lowery home could nevertheless have been lawful if the Lowerys consented to it. Whether consent is freely and voluntarily given is a question of fact for the jury. United States v. Sanders, 424 F.3d 768, 773 (8th Cir. 2005). Furthermore, even if consent is given, it may be withdrawn. Id. at 774. Nancy Lowery testified that she asked Hartwick to leave. Moreover, it is undisputed that Jimmy Lowery asked Hartwick to leave. Hartwick did not leave in spite of this request. (Hartwick's Dep. at p. 20, ll. 18-20; p. 21, ll. 5-6). The bulk of Hartwick's time at the house took place after at least one unequivocal request to leave. A genuine issue for trial therefore exists on the issue of consent. Viewing the facts in the light most favorable to the ...


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