United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
L. BROOKS UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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.
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,
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).
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
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.
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.
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).
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). ...