The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge
Pending is Plaintiff Ronald Gallo's ("Gallo") Motion for Summary Judgment.*fn1 Defendants, Scott Pillow ("Pillow") and Arvin Volner ("Volner") have responded.*fn2 Also pending are Motions for Judgment on the Pleadings filed by Pillow*fn3 and Volner,*fn4 to which Gallo responded.*fn5 Gallo also has a Motion to Compel Discovery pending.*fn6 Pillow and Volner responded to this motion,*fn7 and Pillow filed a Motion to Take the Deposition of Ronald Gallo.*fn8 Gallo did not respond.
Gallo brought this action under 42 U.S.C. § 1983 for violation of his rights under the Fourth and Fourteenth Amendments, and for declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202. Gallo also alleges conversion, negligent bailment, and civil conspiracy.*fn9
Both Plaintiff and Defendants assert that they are entitled to judgment. Gallo argues that he is entitled to summary judgment, and Pillow and Volner argue that they are entitled to a judgment on the pleadings.
In the early morning hours of February 27, 2005, Gallo's motel room was searched and he was arrested. Pillow is a special investigator with the Arkansas State Police, and Volner is a Paragould police officer who helped execute the warrants. At the time of Gallo's arrest, the police confiscated $15,000.00 in cash.
According to the police report, Pillow photographed and took custody of the money.*fn10
Gallo alleges that the charges against him were nolle prossed due to flaws in Pillow's warrant affidavit. Gallo also accuses Pillow and Volner of keeping his cash under suspicious circumstances, and falsely reporting that the money was counterfeit.
Gallo states that he is entitled to summary judgment on his claim because of the following undisputed facts: (1) his fingerprints were never found on the money; (2) Gallo's cash was held for over a year after his arrest; (3) despite what was stated in the police report, no photos of the money were taken; (4) the police waited fourteen months after seizing the cash before alleging that it was counterfeit; and (5) he was never criminally charged with counterfeiting. Gallo argues that these facts show he was wrongfully deprived of his property.
Pillow and Volner state that Gallo was arrested for possession of methamphetamine with intent to deliver. At the time he was arrested, other charges were pending in Greene County Circuit Court. As part of a negotiated plea, the charges stemming from his Paragould arrest were dismissed, and, in exchange, Gallo pled guilty to the Greene County charges. Gallo is in the Arkansas Department of Corrections.
Pillow and Volner explain that Gallo's cash was not examined until his case was closed. After that, the cash was retrieved from the evidence locker and found to be counterfeit. They also point out that fingerprints generally are not found on counterfeit money.
Pillow and Volner assert that Gallo's claims should be dismissed on the pleadings for the following reasons: (1) Gallo has a post-deprivation remedy under state law; (2) Gallo fails to state a claim under § 1983 because his allegations are based on negligence; (3) Gallo's official capacity claims against the officers are barred by the Eleventh Amendment; (4) the officers, in their official capacity, are not "persons" under § 1983.
II. Summary Judgment and Motions to Dismiss Standards
Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided on purely legal grounds.*fn11 The Supreme Court has established guidelines to assist trial ...