Turknett v. Faulkner County Sheriff's Office

          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) ...