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McGee v. Lindsey

United States District Court, W.D. Arkansas, Fort Smith Division

July 17, 2015

JOHN W. McGEE, SR., Plaintiff,
KEVIN D. LINDSEY, Chief of Police, Fort Smith Police Department; DETECTIVE MICHAEL McCOY; OFFICER JOSH MIXON; and, OFFICER GARY HULSEY, Defendants.


MARK E. FORD, Magistrate Judge.

Plaintiff, John W. McGee, Sr. ("McGee"), brings this civil rights action pursuant to 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis. The case has been assigned to the undersigned pursuant to the consent of the parties. (Doc. 13) Presently before the Court is the Motion for Summary Judgment (the "Motion") filed by Defendants. (Doc. 14) Plaintiff has filed no response to the Motion.

I. Background

McGee filed this action on October 28, 2014. His Complaint (Doc. 1) alleges that he was arrested without a warrant and without probable cause. He has sued the Defendant, Kevin D. Lindsey ("Chief Lindsey"), both in his official and personal capacity, and McGee alleges that Lindsey is the Chief of Police and "his omissions breached his duty by arresting me... without probable cause was (sic) the proximate cause of Plaintiff's damages herein." (Doc. 1, ¶ IV(B)(1)) As for the other Defendants, Detective Michael McCoy ("Det. McCoy"), Officer Josh Mixon (" Ofc. Mixon"), and Officer Gary Hulsey ("Ofc. Hulsey"), McGee has sued them in both their official and personal capacities, and he alleges that on October 26, 2012, said Defendants arrested him, "breached [their] duty without a warrant and probable cause, " and as a result he suffered the loss of liberty, emotional distress, waste of time in custody and in defending against the allegations, and the expenditure of money to defend against the allegations and to secure a bond for his release. (Doc. 1, ¶¶ IV(B)(2)-(4)) McGee seeks compensatory and punitive damages. (Doc. 1, ¶ VII)

Defendants filed their Answer to McGee's Complaint on November 20, 2014. (Doc. 11) Defendants state that on October 24, 2012, several officers of the Fort Smith Police Department conducted "Operation Safe Scare II" for the purpose of verifying the addresses of sex offenders living within the City of Fort Smith. This process, Defendants allege, is conducted periodically and included a list of all known sex offenders living in the City, including but not limited to, McGee, in that McGee had been previously convicted of raping a 74 year old woman and, upon his release from the Arkansas Department of Corrections, had been classified as a Level 3 sex offender. (Doc. 11, ¶ 2) A copy of the Judgment of McGee's October 15, 1982 conviction for rape is attached to Defendants' Answer. (Doc. 11, Exhibit 1) A copy of the Risk Assessment and Offender Profile Report classifying McGee as a Level 3 sex offender is also attached to Defendants' Answer. (Doc. 11, Exhibit 2)

Defendant police officers allege that they went to the address McGee had listed as his permanent residence, i.e. 3915 Rowe Avenue, Fort Smith, Arkansas, to verify that he actually lived there, and that McGee was not there. (Doc. 11, ¶ 2) The officers allege that a neighbor, Marion Keene, advised them that while McGee still rented the apartment he had not been staying there, that he would come by to get his mail, but that he had not been staying at the apartment for the past couple of months. (Doc. 11, ¶ 2) It is further alleged that later that afternoon another neighbor, Kevin Mallard, confirmed to Det. McCoy that McGee had not been staying at the apartment for the past couple of months. (Doc. 11, ¶ 2) It is alleged that two days later on October 26, 2012, Officers Mixon and Hulsey went to 3915 Rowe Avenue to set up surveillance on the residence and, consistent with the information obtained from the neighbors, they observed McGee drive up to the mailbox (which was some distance from the residence) to get his mail, and upon leaving Plaintiff was stopped by the officers and taken into custody. (Doc. 11, ¶ 2)

Defendants state that McGee subsequently submitted to an interview by Det. McCoy, at which time McGee confirmed that he had been staying with his girlfriend because she has health problems, and that while he "lives" at 3915 Rowe Avenue, he also stayed with friends on numerous occasions and he would allow friends to stay the weekend at his apartment when he was not there. (Doc. 11, ¶ 2) A copy of the Incident Report relating to the Officers' contact with the neighbors and relating to Plaintiff's October 26, 2012 arrest is attached to Defendants' Answer. (Doc. 11, Exhibit 3)

Defendants assert that McGee's arrest on October 26, 2012 was based on the reasonable belief that McGee had violated the provisions of A.C.A. § 12-12-906(g)(3)(J) in that McGee had failed to provide the address of any current temporary residence. (Doc. 11, ¶ 3) Defendants admit that the case against McGee was ultimately nolle prossed by the Sebastian County Prosecuting Attorney, because of the unavailability of the two neighbor witnesses, but that said dismissal does not alter the fact that there was a reasonable basis for McGee's arrest in the first place. (Doc. 11, ¶ 3) Defendants affirmatively state that they complied with the requirements of A.C.A. § 12-12-912(c) which provides that "[a] law enforcement officer shall arrest a sex offender when... the officer has reasonable grounds for believing that a sex offender... has not reported a change of address in violation" of the Arkansas Sex Offender Registration Act, a Class C felony. (Doc. 11, ¶ 3) Defendants also affirmatively state that they are immune from civil liability, pursuant to A.C.A. § 12-12-920, in that they acted in good faith. (Doc. 11, ¶ 3)

Det. McCoy, Ofc. Mixon and Ofc. Hulsey allege that as to any allegations against them in their individual capacity, they are entitled to qualified immunity for any action they may have taken in that they acted reasonably under the circumstances and in good faith. (Doc. 11, ¶ 4)

Answering further, Defendants state that as to any of McGee's allegations that may sound in negligence that they are entitled to absolute immunity from suit pursuant to A.C.A. § 21-9-301. (Doc. 11, ¶ 5)

Chief Lindsey admits that at the time of McGee's arrest he was the Chief of Police for the City of Fort Smith, but he avers that he had no personal involvement in the arrest and should be dismissed from the lawsuit. (Doc. 11, ¶ 6)

Det. McCoy, Ofc. Mixon and Ofc. Hulsey state that they are not policymakers for the City of Fort Smith, and thus there is no policy, custom or usage that has been alleged or might be alleged which might subject the City of Fort Smith to liability, and so McGee's claims against them in their official capacity should be dismissed. (Doc. 11, ¶ 6)

On January 13, 2015, Defendants filed a Motion for Summary Judgment. (Doc. 14) The Motion alleges that there are no material facts in dispute based upon the allegations of the pleadings and the supporting affidavits and documents, and that summary judgment should be entered in favor of all Defendants. McGee has not responded to the Motion.

II. Discussion

Pursuant to 42 U.S.C. § 1983, "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress..." Thus, a § 1983 complaint must allege that each Defendant, acting under color of state law, deprived Plaintiff of "rights, privileges or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983; DuBose v. Kelly, 187 F.3d 999 (8th Cir. 1999). McGee alleges that the Defendants, acting in their official and personal capacities, have deprived him of ...

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