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Maxwell v. Dodd

April 21, 2010

KIA MAXWELL, INDIVIDUALLY, AND AS NEXT FRIEND OF T.D., A MINOR, AND B.R., A MINOR. PLAINTIFFS,
v.
DARREN DODD; A. ROESKE; SMITH; JOHN DOE, FIVE UNKNOWN AGENTS OF THE UNITED STATES SECRET SERVICE; UNITED STATES OF AMERICA; STERLING HEIGHTS POLICE DEPARTMENT; JAY DONALDSON; ROGER GONGOS; MATTHEW GUNNARSON; JAMES KNIGHT; GREGORY LASKI; DANIEL LANGHOR; AND JOSEPH SVESKA, DEFENDANTS.



The opinion of the court was delivered by: Honorable Patrick J. Duggan

OPINION AND ORDER

At a session of said Court, held in the U.S. District Courthouse, Eastern District of Michigan, on April 21, 2010.

PRESENT: THE HONORABLE PATRICK J. DUGGAN U.S. DISTRICT COURT JUDGE

This action arises from the arrest of Bryan Ross at the home of Kia Maxwell, T.D., and B.R. (collectively "Plaintiffs") on October 18, 2007. Plaintiffs allege that, while at their home, the various defendants violated their civil rights. The Court held a jury trial as to some of the alleged claims from November 16 to November 19, 2009, and entered final judgment on November 20, 2009, after the jury returned its verdict. Presently before the Court are various post-trial motions filed by Plaintiffs and some of the defendants. The motions have been fully briefed and the Court dispensed with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2).

I. Facts and Procedural Background

In the months leading up to the events that are the subject of this lawsuit, United States Secret Service Agent Darren Dodd had been investigating Bryan Ross as a suspected conspirator in the use of counterfeit money and checks. By mid-October 2007, Dodd had obtained two arrest warrants based on information obtained through his investigation and surveillance of Ross. On October 18, 2007, Dodd and a team comprised of Secret Service Agents Jay Donaldson, Joseph Sveska, Roger Gongos, Matthew Gunnarson, James Knight, Gregory Laski, and Daniel Langhor and Sterling Heights Police Officers A. Roeske and Smith arrested Ross at the home of Kia Maxwell, Ross's girlfriend. Other residents of the home included Ross's daughter, T.D.; the son of Ross and Maxwell, B.R.; and Maxwell's sister, Tyra Maxwell.

After Ross's arrest, Plaintiffs allege that the Secret Service agents conducted an unlawful search of their home without consent or a search warrant. More specifically, Maxwell alleges that the agents held her at gunpoint, used racially derogatory language, and dragged her from room to room of the house while they conducted their search. Maxwell was nine-months pregnant at the time and she further alleges that the agents refused to allow her to use the bathroom while they were present, causing Maxwell to urinate on herself. Before leaving the home, Plaintiffs allege that the agents unlawfully seized a shotgun, ammunition, and approximately $9600 in cash. Meanwhile, the agents maintain that Maxwell consented to the search of the home, willingly led them from room to room, and never urinated on herself. The agents deny taking any cash from the home but admit seizing the shotgun and ammunition as evidence of a felon-in-possession charge against Ross.

On March 27, 2008, Plaintiffs filed a seven-count complaint against Dodd, five unknown Secret Service agents, and the two officers of the Sterling Heights Police Department-Roeske and Smith. The complaint alleged violations of Plaintiffs' Fourth and Fourteenth Amendment rights in violation of 42 U.S.C.A. §§ 1983 and 1985(3) and the commission of various state torts. On September 16, 2008, the United States of America substituted in for Dodd in Counts II-VII of the complaint. After being briefed on a motion to dismiss, this Court issued an opinion and order on September 30, 2008, dismissing the claims against the United States and Dodd without prejudice. The claims against the United States were dismissed because Plaintiffs had not exhausted their administrative remedies as required by the Federal Tort Claims Act ("FTCA"), 28 U.S.C.A. § 2675.

On October 8, 2008, Plaintiffs filed, as of right, a seven-count amended complaint against Dodd, the five unknown Secret Service agents, Roeske, and Smith. On October 27, 2008, Plaintiffs stipulated to the dismissal of Roeske and Smith. Pursuant to another stipulation, Plaintiffs filed a two-count second amended complaint on January 19, 2009, naming Dodd, Donaldson, Gongos, Gunnarson, Knight, Laski, Langhor, and Sveska as defendants. On June 3, 2009, Plaintiffs stipulated to the dismissal of Donaldson and Sveska. On July 17, 2009, the remaining defendants filed a motion for summary judgment. The Court granted the motion in part and denied it in part at a hearing on October 1, 2009.*fn1 On October 8, 2009, Plaintiffs stipulated to the dismissal of Langhor. On October 20, 2009, the United States, Dodd, Donaldson, Gongos, Gunnarson, Knight, and Laski filed motions for judgment alleging that the "judgment bar" of 28 U.S.C.A. § 2676 barred Plaintiffs from recovering at trial. The Court denied the motions in an opinion and order dated November 12, 2009.

The jury trial in this case began November 16, 2009. At trial, Plaintiffs pursued a Fourth Amendment Bivens claim against Dodd, Gongos, Gunnarson, Knight, and Laski and a civil rights conspiracy claim against Dodd and Knight.*fn2 At the close of all the proofs, the Court granted in part a motion for directed verdict by the defendants. The Court thereby dismissed all claims against defendant Gunnarson, all claims by plaintiff B.R., and all claims of a civil rights conspiracy. Before instructing the jury on the remaining claims, defense counsel entered on the record an objection to jury instructions that placed the burden of proof for exceptions to the search warrant requirement on defendants. The Court overruled defense counsel's objection.

Near the end of the second day of deliberations, the jury returned a unanimous verdict as to the remaining claims. The jury found that Dodd and Knight violated Maxwell's Fourth Amendment rights by searching her home without consent, unlawfully detaining her at the premises, and seizing her shotgun and ammunition. The jury awarded Maxwell $1000 in compensatory damages, $500 each from Dodd and Knight, and $2000 in punitive damages from Dodd. The jury found against T.D. as to all of her claims.

Presently pending before the Court are four separate post-trial motions: (1) a renewed motion for judgment as a matter of law or, in the alternative, for a new trial filed by Dodd and Knight; (2) a motion to correct, alter, or amend judgment filed by Dodd, Gongos, Gunnarson, Knight, Laski, and the United States; (3) a motion for a new trial as to damages only filed by Maxwell; and (4) a motion for costs and attorney fees filed by Maxwell. Through these motions, the parties raise several of the same and interrelated issues. Rather than separately address each of the motions, then, the Court will analyze the issues raised in turn.

II. The Judgment Bar, 28 U.S.C.A. § 2676

In their post-trial motions, defendants again assert that Maxwell's recovery is barred by 28 U.S.C.A. § 2676. The Court previously rejected this argument in an opinion and order issued November 12, 2009. Acknowledging this, defendants argue that the Court erroneously concluded in the prior opinion and order that Plaintiffs made a strategic decision not to pursue claims against the United States to judgment. In support of their argument, defendants note that Plaintiffs opposed the United States's motion to dismiss for failure to exhaust administrative remedies, sued the Secret Service agents in their individual and official capacities in their second amended complaint, and filed a notice of appeal naming the United States as a defendant. None of these observations change the Court's prior reasoning.

Although constitutional rights violations by federal agents give rise to claims against both the United States and the individual agents, the judgment bar of 28 U.S.C.A. § 2676 prohibits a plaintiff from recovering on the latter claims once he or she pursues claims against the United States under the Federal Torts Claims Act ("FTCA") to judgment. See Manning v. United States, 546 F.3d 430, 434-35 (7th Cir. 2008). Even so, the statute allows a plaintiff to pursue claims against both the United States and the individual agents simultaneously without implicating the "judgment bar" so long as the plaintiff ultimately makes a strategic choice between the parallel remedies. (Nov. 12, 2009, Opinion and Order at 4-7 (citing relevant cases).) Given this understanding of the judgment bar, the Court concludes that 28 U.S.C.A. § 2676 is not implicated where a plaintiff's FTCA claims against the United States are dismissed without prejudice such that the plaintiff is entitled pursue those claims, if he or she so desires, in another forum.

Intentionally or not,*fn3 Plaintiffs temporarily pursued FTCA claims against the United States in this case. The conduct noted by defendants in their present motions, however, fails to establish that Plaintiffs pursued FTCA claims to judgment or that Plaintiffs failed to make strategic decisions regarding the available remedies so as to implicate the judgment bar. Even though Plaintiffs initially opposed dismissal of the United States on the state law tort claims for failure to exhaust administrative remedies under the FTCA, Plaintiffs made a voluntary, strategic decision after the United States's dismissal without prejudice not to pursue those claims further. (See also Nov. 12, 2009, Opinion and Order at 7 n.5 (discussing the "voluntariness" of Plaintiffs' actions).)

Furthermore, to the extent that Plaintiffs may have asserted claims against the federal agents in their official capacities in the second amended complaint, dismissal of those Bivens claims on the basis of sovereign immunity would not result in a judgment for the United States under the FTCA as required to implicate the judgment bar. See Fagan v. Luttrell, No. 97-6333, 2000 WL 876775, *3 (6th Cir. June 22, 2000) (concluding that Bivens claims brought against government officials in their official capacities are barred by sovereign immunity); 28 U.S.C. § 2676 ("The judgment in an action under section 1346(b) of this title [the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim." (emphasis added).) The judgment bar imposes an election between FTCA and Bivens remedies, not an election between Bivens official capacity and individual capacity claims. See Will v. Hallock, 546 U.S. 345, 354, 126 S.Ct. 952, 960 (2006) ("If a Bivens action alone is brought, there will be no possibility of a judgment bar . . . .").

Finally, the Court is unaware of any reason why the filing of a notice of appeal by a plaintiff acting pro se should convert the Court's prior dismissal of the United States without prejudice as to the FTCA claims into a judgment that implicates 28 U.S.C.A. § 2676. For these reasons and all the reasons explained in this Court's November 12, 2009, opinion and order, the Court denies defendants motions to the extent they seek relief from judgment under

28 U.S.C.A. § 2676.*fn4

III. Judgment as a ...


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