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Thiel v. Korte

United States District Court, E.D. Missouri, Northern Division

March 20, 2019

RICHARD SCOTT THIEL, Plaintiff,
v.
SHERIFF STEPHEN KORTE, et al., Defendants.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.

         In October 2013 and November 2014, deputies of the Pike County, Missouri Sheriff's Office executed search warrants on plaintiff Richard Scott Thiel's property. They seized various items and arrested Thiel. In this action, Thiel brings claims against Pike County Sheriff Stephen Korte and Deputy Sheriffs Joseph Minor and Josh Baker under 42 U.S.C. § 1983, alleging that the searches and seizures, including his arrest, were unlawful under the Fourth and Fourteenth Amendments and that Sheriff Korte's continued retention of his seized property violates his Fourteenth Amendment due process rights. Thiel also seeks a writ of replevin under Missouri law for return of his property. For the reasons that follow, I will grant defendants' motion for summary judgment on Thiel's constitutional claims, and deny Thiel's motion for partial summary judgment.[1] I decline to exercise supplemental jurisdiction over Thiel's state law claim.

         Legal Standard

         In determining whether to grant summary judgment, I must view the facts - and any inferences from those facts - in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The movant bears the burden of establishing that (1) it is entitled to judgment as a matter of law and (2) there are no genuine issues of material fact. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this burden, the nonmoving party may not rest on the allegations in its pleadings but must, by affidavit or other evidence, set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(c)(1), (e). Where a factual record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 587.

         “[T]he filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits.” Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983). Instead, each summary judgment motion must be evaluated separately on its own merits to determine whether a genuine issue of material fact exists and whether the movant is entitled to judgment as a matter of law. Husinga v. Federal-Mogul Ignition Co., 519 F.Supp.2d 929, 942 (S.D. Iowa 2007).

         Evidence Before the Court on the Motions

         Plaintiff Thiel owns several acres of property in Pike County, Missouri. His residence and at least four other buildings used for business and farming are on a parcel of property located at 16644 Pike 9166, Louisiana, Missouri. Thiel's business is managing foreclosed properties, which includes general maintenance, making repairs, and removing abandoned property, including abandoned vehicles. He stores several abandoned vehicles on his property at 16644 Pike 9166. Thiel has no employees but hires several individuals as independent contractors on an as-needed basis. His friend, Amanda Sherwin, is his business partner.

         October 2013 Search and Seizure

         On October 8, 2013, Deputy Minor received information that a white Ford Expedition that had been stolen from Enid, Oklahoma, was on Thiel's property. The following day, Deputies Minor and Baker went onto the property of Thiel's neighbor, from where they saw a white Ford Expedition located toward the rear of Thiel's property. Minor and Baker then went on to Thiel's property and took photographs of the vehicle. Minor thereafter contacted the Enid, Oklahoma Police Department who confirmed that the description of the Ford Expedition on Thiel's property matched the description of the vehicle stolen from Enid in July 2013. Minor then submitted an affidavit to the Pike County Prosecuting Attorney, who applied for a search warrant for Thiel's property related to the stolen vehicle.

         On October 10, 2013, a circuit judge issued a search warrant authorizing a search of Thiel's property and the seizure of the “2003 White Ford Expedition, VIN 1FMPU17L93LB45057.” Minor and Baker and other deputies executed the warrant that same day and seized the vehicle. Minor observed that the keys were not in the vehicle, so the search of Thiel's property continued for the keys. A Ford key and key-fob were eventually located in a shed on the property and seized.

         During the execution of the search warrant, the deputies noted a camera surveillance system on Thiel's property. They then located in Thiel's house a digital video recorder (DVR) and related equipment that was connected to the surveillance system. Believing the equipment could contain recorded evidence of the Ford vehicle coming onto the property, the deputies seized the DVR, two external hard drives, and ten computer memory cards. (Minor Depo., ECF 44-4 at pp. 52-53; Baker Depo., ECF 44-6 at p. 26.) Thiel claims, and defendants deny, that the deputies also seized two pistols and $200 cash. The computer memory cards were later returned to and retrieved by Amanda Sherwin. Defendants claim, and Thiel denies, that the hard drives, recording system, and Ford key and key-fob were also returned to Sherwin.

         Thiel was not home when the search of his property began. Upon learning of the search, he attempted to go home but was stopped by Deputy Carroll (not a defendant) when he entered his driveway. Deputy Carroll then arrested him. (ECF 44-2, Thiel Depo. at pp. 81-83.) Thiel was released from the sheriff's office later that evening. (Id. at pp. 95-96.)

         Defendant Korte did not personally conduct any search of Thiel's property on October 10.

         No criminal proceedings were ever brought against Thiel relating to the white Ford Expedition or the October 10 search of his property.

         November 2014 Search and Seizure

         During the evening hours of November 28, 2014, Bonnie Murray traveled to Thiel's residence with Nicholas Echternkamp and Darren Jones to collect checks from Thiel for work they had performed for him. Murray went into the house to ask about the checks; Echternkamp and Jones stayed in their truck, which was parked on the road at the end of the driveway. Thiel gave Murray her check but did not give checks for either Echternkamp or Jones. After Murray got her check, she left the residence and walked down the driveway toward the road, at which time she heard what she thought were gunshots coming from the house. Believing that Thiel was shooting at her, Murray ran to the truck and she, Echternkamp, and Jones drove away from the property. Murray called 911 and reported that Thiel shot at her when she was leaving his residence. Murray, Echternkamp, and Jones then met with Pike County deputy sheriffs and gave statements. In her statement, Murray also described the firearm she observed on Thiel when she retrieved her check from him.

         Upon receiving the report, Minor and Baker went to Thiel's residence and spoke to Thiel about the alleged incident. Thiel told them that he could not shoot a firearm because of arthritis, but later said that he fired a shotgun that morning to scare cats from his porch. Thiel was then advised that he would be detained and that an application would be made to obtain a search warrant for the house. Thiel was taken into custody and transported to the sheriff's office.

         Minor submitted an affidavit for search warrant to the prosecuting attorney along with affidavits from Murray, Echternkamp, and Jones, each stating that Thiel had discharged a firearm in Murray's direction. An associate circuit judge issued a search warrant granting authority to search the residence and seize “any and all handguns and evidence of a firearm being fired at the residence in the last 7 hours including but not limited to a gunshot residue test of Richard Scott Thiel and the clothes of Richard Scott Thiel for purposes of testing for gunshot residue.” Minor and Baker and other deputies executed the warrant at Thiel's residence and seized various handguns, holsters, two .38 caliber rounds, and a Samsung DVR.[2] Thiel's clothing and shoes were seized from Thiel at the sheriff's office to test for the presence of gunshot residue. Thiel was released from the sheriff's office a few hours after being taken into custody. (Thiel Depo., ECF 48-2 at p. 130.)

         Defendant Korte did not personally conduct any search of Thiel's property on November 28.

         No criminal proceedings were ever brought against Thiel relating to the alleged shooting or the November 28 search of his property. None of the property seized on November 28 has been returned to Thiel.

         Discussion

         Thiel raises several Fourth Amendment claims challenging the search of his property, the seizure of his personal property, and his arrest. In addition to his claims against the defendants in their individual capacities, Thiel alleges that the unlawful searches were conducted under official policy, or custom or practice, as promulgated by Korte. He also challenges Korte's refusal to return his seized property, claiming that such deprivation violates his Fourteenth Amendment right to due process.

         For the reasons that follow, I agree with defendants that Minor and Baker are entitled to qualified immunity on Thiel's Fourth Amendment claims, and Korte is entitled to summary judgment in both his individual and official capacities. I also agree that the State of Missouri provides an adequate post-deprivation remedy that satisfies due process, and that Thiel has failed to avail himself of this remedy. I will therefore grant summary judgment on Thiel's constitutional claims.

         A. Fourth Amendment Search and Seizure

         As an initial matter, to the extent Thiel seeks individual liability against Korte for the alleged unlawful searches, Korte is entitled to summary judgment. The evidence is undisputed that Korte did not personally participate in any search of Thiel's property on either October 10, 2013, or November 28, 2014; and Thiel does not allege that Korte failed to supervise and train his officers. See Johnson v. Blaukat, 453 F.3d 1108, 1113 (8th Cir. 2006) (supervisors can be individually liable if they directly participate in a constitutional violation or if they failed to supervise and train officers).

         With respect to defendants Minor and Baker, they are entitled to qualified immunity on Thiel's Fourth Amendment claims.[3]

         In § 1983 actions, an individual defendant is entitled to qualified immunity if his conduct does not violate clearly established constitutional rights of which a reasonable person would have known. White v. Pauly, 137 S.Ct. 548, 551 (2017) (per curiam). To be clearly established, preexisting law must make the unlawfulness of the officials' conduct apparent so that they have “fair and clear warning” they are violating the Constitution; qualified immunity therefore protects “all but the plainly incompetent or those who knowingly violate the law.” Id. at 551-52. Because qualified immunity protects officials who make bad guesses in gray areas, Littrell v. Franklin, 388 F.3d 578, 582 (8th Cir. 2004), it gives them breathing room to make reasonable but mistaken judgments. Blazek v. City of Iowa City, 761 F.3d 920, 922 (8th Cir. 2014).

         Thiel has the burden of showing that the law was clearly established, Hess v. Ables, 714 F.3d 1048, 1051 (8th Cir. 2013), and that existing precedent places the constitutional question “‘beyond debate.'” City & Cty. of S.F., Calif. v. Sheehan, 135 S.Ct. 1765, 1774 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). However, “‘clearly established law should not be defined at a high level of generality' and must be particularized to the facts of the case so that the unlawfulness of an official's actions [is] apparent.” Estate of Walker v. Wallace, 881 F.3d 1056, 1061 (8th Cir. 2018) (quoting White, 137 S.Ct. at 552). “Context is critical in determining qualified immunity in Fourth Amendment cases.” Id. (citing Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (per curiam)).

         1. October 2013 Search and Seizure

         With respect to the October 2013 search and seizure, Thiel claims: a) that the defendants exceeded the scope of the search warrant when they continued to search his property after seizing the target vehicle; b) that the defendants unlawfully seized personal property that was neither authorized to be seized by nor reasonably related to the warrant; c) and that his arrest was unlawful because it was made without a warrant and without probable cause.

         a. Ex ...


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