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Garcia v. O'Kelley

United States District Court, W.D. Arkansas, Fayetteville Division

March 15, 2017

CHIEF OF POLICE KATHY O'KELLEY, in her official and individual capacities; CAPTAIN MIKE PETERS, in his individual and official capacities; and JOHN and JANE DOES DEFENDANTS



         Currently before the Court is the Report and Recommendation ("R&R") (Doc. 41) of the Honorable Mark E. Ford, United States Magistrate Judge for the Western District of Arkansas, filed in this case on November 4, 2016, regarding Defendants Chief of Police Kathy O'Kelly's and Captain Mike Peters' (together, the "Defendants") Motion for Summary Judgment (Docs. 24, 34). The R&R recommends that the Court grant the Defendants' Motion in its entirety. Plaintiff Rene Garcia filed Objections to the R&R (Doc. 42), on November 16, 2016. The Court has now conducted a de novo review as to all proposed findings and recommendations pertaining to the claims against the Defendants. 28 U.S.C. § 636(b)(1). The Court finds that the R&R should be, and hereby is, ADOPTED, with the reasoning and analysis set forth below.

         I. BACKGROUND

         According to the Complaint, Garcia was arrested at his residence on October 8, 2012. (Doc. 1). Law enforcement obtained a search warrant authorizing the seizure of any materials depicting, or containing, child pornography on October 20, 2012. See Doc. 26-1. The return of the search warrant indicates the following items were seized: a Dell computer; a Samsung flat-screen TV; a Vizio flat-screen TV; two Sony PlayStation 3s; and an Xbox 360 (collectively, the "Property"). (Doc. 26-2). The Springdale Police Department ("SPD") left a receipt at the residence indicating that they took the Property. (Doc. 27, p. 9).

         Garcia's efforts to get the Property back began in March of 2013 when his brother hired Bryan Powell to represent Garcia. Powell assured Garcia that the Property would be returned upon the completion of his case. See Doc. 37, p. 3. Garcia was convicted on two counts of rape on October 3, 2013, and was sentenced to a total term of 840 months in the Arkansas Department of Corrections with 240 months suspended. (Doc. 26-5). On October 8, 2013, Powell filed a motion for return of property in the Circuit Court of Washington County on behalf of Garcia. (Doc. 26-7). In that motion, Powell asked that the Property be released to him. Id. In early November 2013, Garcia sent two letters to Powell thanking him for filing the motion to get the Property back. See Docs. 26-9, 26-10.

         On November 15, 2013, Amy Driver, the prosecuting attorney in Garcia's rape case, sent SPD Detective Kevin Williams an email asking him to review the list of seized items to see if they contained evidentiary value. See Doc. 26-11. Driver noted that Powell had filed a motion for the return of the items. Id. Williams later replied that none of the items had evidentiary value, and they could be returned. Id.

         On November 20, 2013, Garcia sent a letter to K. Sylvestor, the Washington County Court Clerk, asking about his appeal and the motion for return of property. See Doc. 26-12. Garcia asked how he could get the paperwork showing the motion had been filed. Id. In response to these communications being sent to the court, Judge William Storey held a hearing on November 26, 2013, regarding the return of the Property. See Doc. 26-13. Powell represented Garcia at this hearing, id., but the two had no further contact after the hearing. See Doc. 26-22, p. 3.

         On December 20, 2013, Detective Williams received a phone call from Steve Parker, the sole evidence technician for SPD at the time, saying that Powell wanted to pick up the Property. See Doc. 26-6, p. 2. Williams told Parker that he would double-check the items with Driver. Id. That same day, at 8:27 a.m., Williams sent an email to Driver asking whether the Property could be released. See Doc. 27, p. 3. Before Williams received a response from Driver, Parker released the Property to Powell at 12:19 p.m. that day. Id. at 3, 7; Doc. 26-15. The chain of custody form indicates that the Property was "release[d] to owner." (Doc. 26-15). SPD's policy on Evidence and Property Handling states that "[w]hen no longer needed for evidentiary purposes, all evidence, with the exception of firearms and contraband, shall be returned to its lawful owner, . . . [or, if] the owner is not allowed to lawfully have the evidence or property, the release shall not be authorized without a signed court order." (Doc. 26-24, pp. 10-11).

         On February 2, 2014, Garcia wrote another letter to Sylvestor asking about his appeal, who he should write to about Powell not communicating with him, and if he could get a copy of the motion for return of property. See Doc. 26-16. Garcia testified that he did not know the Property had been released to Powell until after he filed this lawsuit. He also did not believe Powell had the authority to keep the Property.

         On March 13, 2015, Powell was removed as Garcia's counsel. See Doc. 26-20. Garcia filed the instant suit against the SPD, Police Chief Kathy OKelley, Captain Mike Peters, and John and Jane Does in their individual and official capacities on April 8, 2015, alleging that the Defendants violated his due process rights under the Fourteenth Amendment and in violation of 42 U.S.C. § 1983. See Doc. 1.[1]

         Garcia objects to the Magistrate Judge's recommendation that the Court grant the Defendants' Motion for Summary Judgment and dismiss his case with prejudice. The Court interprets Garcia's objections as arguing that there are genuine issues of material fact regarding his claims because: (1) like the plaintiffs in King v. Fletcher, 319 F.3d 345 (8th Cir. 2003), Garcia has no adequate post-deprivation remedies; (2) Peters and O'Kelley failed to adequately supervise employees at the SPD on December 20, 2013, which resulted in the Property being released to Powell without his consent; (3) Peters and O'Kelley intentionally deprived Garcia of the Property by directing SPD employees to release the Property to Powell without his consent, which was contrary to SPD's policy stating that property should not be released absent a signed court order; and (4) the standard set out in Mathews v. Eldridge, 424 U.S. 319 (1976), usually requires some kind of hearing before the government deprives a person of his or her property. See Doc. 42, pp. 2-3.[2]


         Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). When deciding a motion for summary judgment, the Court must consider all the evidence and draw all reasonable inferences that arise from the evidence in a light most favorable to the nonmoving party. Nitsche v. CEO of Osage Valley Bee. Co-Op., 446 F.3d 841, 845 (8th Cir. 2006). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is, therefore, entitled to judgment as a matter of law. Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996).

         Once the moving party has met this burden, the nonmoving party must set forth specific facts by affidavit and other evidence, showing that a genuine issue of material fact exists. See Fed. R. Civ. P. 56(e). Genuine issues of material fact exist where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249. To withstand a defendant's motion for summary judgment, a plaintiff must substantiate his or her allegations with "sufficient probative evidence that would permit a finding in his favor on more than mere speculation, conjecture, or fantasy." Gregory v. Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992). ...

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