United States District Court, E.D. Arkansas, Western Division
PROPOSED FINDINGS AND RECOMMENDED PARTIAL
DISPOSITION
Instructions
The
following recommended disposition was prepared for United
States District Judge James M. Moody, Jr. A party to this
dispute may file written objections to this recommendation.
An objection must be specific and state the factual and/or
legal basis for the objection. An objection to a factual
finding must identify the finding and the evidence supporting
the objection. An original and one copy of your objections
must be received in the office of the United States District
Clerk no later than fourteen (14) days from the date of this
recommendation. See 28 U.S.C. § 636(b)(1). The
copy will be furnished to the opposing party. The failure to
file timely objections may result in waiver of the right to
appeal questions of fact. Plaintiff is reminded that
objections must be both timely and specific to trigger de
novo review by the district court. If no objections are
filed, Judge Moody may adopt the recommended disposition
without independently reviewing all of the record evidence.
If you
are objecting to the recommendation and also desire to submit
new, different, or additional evidence, and to have a haring
for this purpose before the United States District Judge, you
must, at the same time that you file your written objections,
include a “Statement of Necessity” that sets
forth the following:
1. Why the record made before the United States Magistrate
Judge is inadequate.
2. Why the evidence to be proffered at the requested hearing
before the United States District Judge was not offered at
the hearing before the United States Magistrate Judge.
3. An offer of proof setting forth the details of any
testimony or other evidence (including copies of any
documents) desired to be introduced at the requested hearing
before the United States District Judge.
From
this submission, the United States District Judge will
determine the necessity for an additional evidentiary
hearing, either before the United States Magistrate Judge or
before the United States District Judge.
Mail your objections and “Statement of Necessity”
to: Clerk, United States District Court Eastern District of
Arkansas 600 West Capitol Avenue, Room A149 Little Rock, AR
72201
Disposition
On
December 18, 2018, pro se Plaintiff, Hank Turknett,
filed this 42 U.S.C. § 1983 action, alleging
“unreasonable search and seizure, ” “cruel,
unusual, and excessive” punishment, and failure to
return his property, namely his security cameras. He argues
the same claims under the Arkansas Constitution.
The
affidavit in support of the arrest warrant (DE #15-1, Exhibit
1) outlines the facts as these: Robert Nichols died in
November 2012. His daughter lived out of state and came to
Faulkner County to care for her deceased father's
personal business. At the time of Nichols's death, there
were three vehicles registered to him. Those vehicles were
left on the family property, but were allegedly removed some
time between March 2012, when the daughter left Arkansas, and
February 2015. One of those vehicles, a 1996 Chrysler Sebring
convertible, had reportedly been seen on Plaintiff's
property.
Investigators
went to Plaintiff's property, which is next door to the
Nichols property. They reported that they looked through a
privacy fence and noticed a similar-styled vehicle on
Turknett's property. The officers later returned and got
permission from the neighbor on the opposite side of
Turknett, to place a ladder beside the fence along
Turknett's property to capture a photo of the Chrysler to
include the VIN number. Upon investigation, the VIN number on
that car was returned as the stolen one missing from the
Nichols property. The officers obtained a search warrant. The
search took place on Turknett's property on or about
February 18, 2015. The officers seized the car, a rifle, and
several items containing what was believed to contain drug
residue. Officers claim Turknett admitted to removing the
vehicle from the property. He was arrested and charged by
felony information with seven (7) counts: simultaneous
possession of drugs and a firearm; possession of a firearm by
certain persons; four (4) counts of possession of drug
paraphernalia to ingest, inhale, etc.; and possession of a
controlled substance (DE #15-1, Exhibit 1).
Turknett
claims he was hired by new purchasers to remove the car from
the property because it did not run and to take it to his car
repair shop. Turknett states he was arrested and booked into
the Faulkner County Detention Facility, where he stayed for
three days. He states he was so cold that he passed out and
had to be awakened by smelling salts. He claims at least ten
SWAT team members came onto his property during the search,
and they searched not just for the car in question, but his
entire property and house, taking two security cameras with
them that have never been returned. Turknett also claims
Deputy Sheriff John Fowlkes had a history of threatening him
when he responded to disputes between him and his neighbors
regarding him running a car repair shop on the property. In
this particular incident, Turknett claims Fowlkes, in
response to a report of some missing vehicles, launched a
“shoddy” investigation in order to draft an
“overly broad” affidavit for a search warrant and
gain access to Turnkett's property.[1]
The
Court previously dismissed Faulkner County Sheriff's
Office and Faulkner County Detention Center. The only claims
that remain are against Defendant Fowlkes. On July 23, 2019,
Fowkles filed a Motion to Dismiss (DE #15) and Brief in
Support (DE #16). In it, Fowkles seeks dismissal of the
action in part because Plaintiff filed his initial complaint
outside of the applicable statute of limitations. Turknett
has filed a pleading in response docketed as a Motion for
Order (DE #17). In it, Turknett states that from what he
understands, it is “up to the judge if the statutes of
limitations (sic) ...