Kavanaugh v. Edwards

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

WILLIAM DANIEL KAVANAUGH, )

)

Plaintiff, )

)

vs. ) Case No. 4:19-cv-3256-MTS

)

DUSTIN EDWARDS, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Before the Court is Defendant Nicholas Osmer’s Motion for Partial Summary Judgment,

Doc. [80], pursuant to Federal Rule of Civil Procedure 56, on Plaintiff’s Complaint, Doc. [43], for

several constitutional violations pursuant to 42 U.S.C. § 1983. Plaintiff William Daniel

Kavanaugh, a pro se litigant, brought this action against Defendants Osmer (“Defendant”) and

Dustin Edwards (“Edwards”), police detectives for the Florissant Police Department, in connection

with a traffic stop. For reasons discussed below, the Court grants Defendant’s motion for partial

summary judgment.

I. BACKGROUND

On July 27, 2018, Edwards initiated a traffic stop of a vehicle operated by Plaintiff. At the

time of the traffic stop, Plaintiff was on active parole in the State of Illinois. At some point during

the traffic stop, Defendant arrived on the scene after responding to a radio “call out.” Doc. [82-5]

¶ 6. During the traffic stop, Plaintiff claims Edwards conducted unlawful warrantless searches of

the vehicle and a cell phone and conducted a strip search and sexually assaulted Plaintiff.1 Plaintiff

claims Defendant did not “physically conduct any search during the entire” traffic stop, Doc. [90]

1 For a more detailed version of the facts, see the Court’s Memorandum and Order denying in part and granting in

part Defendant Dustin Edwards’s Motion for Summary Judgment. See Doc. [101].

¶ 21, but was present during these incidents and did not intervene to stop Edwards’s

unconstitutional conduct.

During the traffic stop, two clear plastic baggies containing a crystalized substance were

recovered from the vehicle and believed to be consistent with methamphetamine. Edwards

arrested Plaintiff for possession of methamphetamine and drove Plaintiff to the Florissant Police

Department. While in the car, according to Plaintiff, Edwards told Plaintiff that if he refused to

be an informant, Edwards would “convince” Plaintiff’s parole officer to issue a warrant for

Plaintiff’s arrest. Doc. [90-2] ¶ 31. Plaintiff refused and allegedly invoked his right to an attorney.

Id. ¶ 32.

Defendant contacted Plaintiff’s Illinois parole officer (“Parole Officer”) and informed him

of Plaintiff’s arrest in Florissant, Missouri due to Plaintiff’s possession of methamphetamine. Doc.

[82-5] ¶ 19; see also Doc. [82-6] at 1 (the Parole Violation Report states that Defendant notified

the parole agent that Plaintiff “had been arrested earlier that day in Florissant Missouri” due to

“being caught with an amount of methamphetamine (approximately 2 whole ounces) much larger

than is generally obtained for individual consumption”). It is Defendant’s usual practice to contact

the parole officer when a suspect is taken into custody. Doc. [82-5] ¶ 20. Plaintiff claims,

however, that Defendant reported “false facts” to Parole Officer in retaliation for Plaintiff refusing

to become an informant. See Doc. [90-2] ¶ 33; Doc. [90] ¶ 18–19; Doc. [82-1] at 11–12, 14.

Specifically, Plaintiff claims Defendant lied to Parole Officer saying Plaintiff had a new felony

drug charge but, in reality, Plaintiff was not actually “charged” with anything related to the July

2018 traffic stop until four months later in November 2018. Doc. [90] ¶ 18; see also Doc. [82-9]

(St. Louis County v. William Kavanaugh Charge for “Possession of Controlled Substance . . .

Class D Felony”).

Upon learning of Plaintiff’s arrest and because Plaintiff “went to Missouri without

authorization,” Parole Officer issued an Illinois Department of Corrections (“IDOC”) warrant “to

ensure that [Plaintiff] would remain in a secure facility due to his being a flight risk.” Doc. [82-6]

at 1. Plaintiff was confined in St. Louis County while awaiting extradition to Illinois. Id. at 1–2;

Doc. [85-4] at 6 (22:1–23:8). Shortly after, Plaintiff was extradited to an Illinois correctional

center and there, confined for 190 days. Doc. [85-4] at 6 (22:1–23:8), at 22–23 (86:22–21); Doc.

[85-1] at 14.

In total, Parole Officer issued a Parole Violation Report against Plaintiff with seven charges

of alleged parole violations, including failing to get Parole Officer’s “permission before leaving

the State of Illinois,” “knowingly associating with other persons on parole or mandatory supervised

release without prior written permission,” “possession of narcotics or other controlled substances,”

“being in places where controlled substances are illegally sold, used, distributed, or administered,”

and failure to comply with “additional conditions of release” including “substance abuse

treatment.” Id. at 3. Plaintiff waived his right to a preliminary hearing on these violations but

would later be “given a full revocation hearing before the Prisoner Review Board.”2 Id. Plaintiff

does not claim, and no evidence establishes, that Plaintiff’s parole was ultimately revoked.

Plaintiff brings several claims of constitutional violations against Defendant based on the

unreasonable search of the vehicle, cell phone, and strip search during the traffic stop and

“retaliation” that led to Plaintiff’s parole violation warrant. Doc. [82-1]. Defendant moves for

summary judgment on all claims, except for the claim based on his alleged failure to intervene

during Edward’s strip search during the traffic stop. Doc. [80].

2 It is unclear from the record what parole violations, if any, Plaintiff was ultimately charged for.

II. LEGAL STANDARD

Because Plaintiff is proceeding pro se, the Court is bound to liberally construe his filings

in order to do substantial justice. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Native Am. Council

of Tribes v. Solem, 691 F.2d 382, 384 (8th Cir. 1982). However, a litigant’s pro se status does not

excuse him from compliance with the Federal Rules of Civil Procedure or the Local Rules of this

District. McNeil v. United States, 508 U.S. 106, 113 (1993); Burgs v. Sissel, 745 F.2d 526, 528

(8th Cir. 1984) (“Although pro se pleadings are to be construed liberally, pro se litigants are not

excused from failing to comply with substantive and procedural law.”).

“A court must grant a motion for summary judgment if the moving party shows that there

are no genuine disputes of material fact and that it is entitled to judgment as a matter of law.”

Bedford v. Doe, 880 F.3d 993, 996 (8th Cir. 2018) (citing Fed. R. Civ. P. 56(a)). A dispute is not

“genuine” unless the evidence is such that a reasonable fact-finder could return a verdict for the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears

the initial burden of explaining the basis for its motion, and it must identify those portions of the

record that demonstrate the absence of a genuine issue of material fact. Torgerson v. City of

Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). “The moving party can satisfy its burden in either

of two ways: it can produce evidence negating an essential element of the nonmoving party’s case,

or it can show that the nonmoving party does not have enough evidence of an essential element of

its claim to carry its ultimate burden of persuasion at trial.” Bedford, 880 F.3d at 996. If the

nonmoving party fails to make a sufficient showing on an essential element of his or her case with

respect to which he or she has the burden of proof, the moving party is “entitled to a judgment as

a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court views any factual

disputes in the light most favorable to the nonmoving party, but only if there is a “genuine” dispute

as to those facts. Scott v. Harris, 550 U.S. 372, 380 (2007).

III. DISCUSSION

Plaintiff brings several constitutional violations against Defendant. Pertinent to the motion

here, Plaintiff’s claims are based on Defendant’s failure to intervene in Edward’s warrantless

search of the vehicle and cell phone and for “retaliating” against Plaintiff by reporting Plaintiff’s

Missouri arrest to Parole Officer. Defendant argues he is entitled to qualified immunity on

Plaintiff’s claims. “Qualified immunity shields a government official from liability and the

burdens of litigation in a § 1983 action for damages.” Chambers v. Pennycook, 641 F.3d 898, 904

(8th Cir. 2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A police detective, like

Defendant, is entitled to qualified immunity unless the evidence establishes (1) a violation of a

constitutional or statutory right, and (2) the right was clearly established at the time of the violation

such that a reasonable person would have known that his actions were unlawful. Blazek v. Iowa

City, 761 F.3d 920, 922–23 (8th Cir. 2014). If possible, the Court may resolve the case under

either prong of the analysis. Blazek, 761 F.3d at 923; Kulkay v. Roy, 847 F.3d 637, 642 (8th Cir.

2017) (“Because an official is entitled to qualified immunity unless both prongs are satisfied, our

analysis will end if either of the two is not met.”); see also Pearson v. Callahan, 555 U.S. 223,

242 (2009).

A. Failure to Intervene in Unreasonable Search of Vehicle

Plaintiff claims Defendant violated his Fourth Amendment rights by failing to intervene in

the unreasonable search of the vehicle by Edwards,3 a different named defendant, during the July

2018 traffic stop. See, e.g., Doc. [89] at 2–3 (Plaintiff stating in his Opposition Brief that

Defendant violated Plaintiff’s Fourth Amendment rights “by being present for the vehicle search

3 At summary judgment, Plaintiff maintains Defendant never searched his vehicle at all. Doc. [90] ¶¶ 10–13; Doc.

[90-2] ¶ 19.

conducted by Edwards without a warrant, probable cause or consent and for failing to stop the

search” and “fail[ing] to intervene”). Plaintiff offers no legal authority to support the existence of

a law enforcement officer’s duty to intervene to prevent an unreasonable search of a vehicle. To

the contrary, the U.S. Court of Appeals for the Eighth Circuit has declined to extend a duty to

intervene to prevent constitutional violations, other than for violations of excessive force. Hess v.

Ables, 714 F.3d 1048, 1052 (8th Cir. 2013) (“As an initial matter, we recently held that, outside of

the excessive force context, there is no clearly established law regarding a duty to intervene to

prevent constitutional violations.”); see also Livers v. Schenck, 700 F.3d 340, 360 (8th Cir. 2012)

(“A law enforcement officer who knows another officer is using excessive force has a duty to

intervene. . . . We have not recognized a duty to intervene to prevent other constitutional

violations.”). Because there is no clearly established law regarding a law enforcement officer’s

duty to intervene outside of the excessive force context, Defendant is entitled to qualified immunity

on Plaintiff’s claim for failure to intervene in an unreasonable vehicle search.

B. Failure to Intervene in Unreasonable Search of Cell Phone

Plaintiff claims Defendant violated Plaintiff’s Fourth Amendment rights by failing to

intervene in Edward’s warrantless search of the cell phone during the traffic stop.4 Doc. [90] ¶ 21.

Like Plaintiff’s claim for unreasonable search of the vehicle, Defendant is entitled to qualified

immunity on Plaintiff’s claim that Defendant failed to intervene in Edwards’s alleged

unconstitutional cell phone search because there is no clearly established law regarding a law

enforcement officer’s duty to intervene outside of the excessive force context. See Hess, 714 F.3d

at 1052.

4 In responding to Defendant’s statement of material fact that states, “Plaintiff alleges a § 1983 claim for unreasonable

search of cell phone, alleging that Osmer searched text messages on Plaintiff’s cell phone without a warrant or

consent,” Doc. [82] ¶ 71(b), Plaintiff specifically controverts paragraph “71(b)” and reiterates that Defendant did not

“physically conduct any search during the entire” traffic stop, Doc. [90] ¶ 21.

The Court notes Defendant is entitled to qualified immunity on this claim for another

reason, too. There is no Fourth Amendment violation for a cell phone search unless the person

“has a legitimate expectation of privacy in the object that was searched.’” United States v. Turner,

781 F.3d 374, 382 (8th Cir. 2015) (quoting United States v. Stringer, 739 F.3d 391, 396 (8th Cir.

2014)). It is undisputed Plaintiff did not own the cell phone he claims was searched. Doc. [82] ¶

66. In his Opposition Brief, Plaintiff does not address this issue, claim, or Defendant’s argument

that he is entitled to summary judgment on this claim. See Doc. [89]. Without any argument to

support the conclusion that Plaintiff had a legitimate expectation of privacy in the cell phone he

did not own, Plaintiff cannot show a violation of his Fourth Amendment rights. See Schmidt v.

City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009) (“The essential elements of a § 1983 claim .

. . [include] that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected

federal right.”). Therefore, Defendant is entitled to qualified immunity, under either prong of the

analysis, for Plaintiff’s claim for failure to intervene in unreasonable search of the cell phone.

C. Retaliation Claim

Plaintiff claims Defendant “retaliated” against him by reporting “false facts” to Parole

Officer, which resulted in a parole violation warrant and subsequent incarceration of 190 days.

See Doc. [90-2] ¶ 33; Doc. [82-1] at 11–12, 14; Doc. [90] ¶ 18. Plaintiff seeks “$500,000” in

damages directly resulting from Defendant’s “retaliation” and reporting of “a false set of facts” to

Parole Officer that resulted “in cruel and unusual punishment” and “deprivation of liberty and

amenity and the denial of Due Process” in violation of his “Fifth and Fourteenth Amendment

rights.” Doc. [85-1] at 18–19, 21. The Court is not entirely clear what specific claim Plaintiff

asserts here based on the smorgasbord of rights alleged, especially considering Plaintiff’s failure

to entirely address this claim in his Opposition Brief. See Doc. [89]. Keeping in mind Plaintiff is

a pro se litigant, however, the Court liberally construes his claim for violations sounding in the

Fifth, Eighth, and Fourteenth Amendments. See Doc. [85-1] at 18–19, 21.

To the extent Plaintiff’s claim here is for due process violations under the Fifth5 and

Fourteenth Amendments, Defendant is entitled to qualified immunity. It is well established that

parole revocation deprives an individual of “conditional liberty,” which “is valuable and must be

seen as within the protection of the Fourteenth Amendment.” Morrissey v. Brewer, 408 U.S. 471,

480–82 (1972). The Supreme Court explained the “process that is due” for a parole revocation is

at two stages in the revocation process—first, when the parolee is “arrested and detained,”

including at the “preliminary hearing,” and second “when the parole is formally revoked.” Id. at

485–490; see also Belk v. Purkett, 15 F.3d 803, 805–14 (8th Cir. 1994) (applying Morrissey and

analyzing whether a parolee was denied due process because of his revocation).

Here, Parole Officer—not Defendant—issued a parole violation warrant which “detained”

Plaintiff based on alleged parole violations and for being a “flight risk.”6 See Doc. [82-6] at 1.

Plaintiff does not allege any issues with the arrest, detention, or proceedings related to the parole

violations.7 Nor does Plaintiff seek damages against Parole Officer or the IDOC. Instead,

Plaintiff’s claim is that Defendant’s “retaliation” caused Parole Officer and/or the IDOC to deprive

Plaintiff of the “liberty” at issue. Even if true, there is no due process violation here against

5 To the extent Plaintiff brings a Fifth Amendment claim against Defendant, Defendant is entitled to summary

judgment because he is not a federal employee. Dusenbery v. United States, 534 U.S. 161, 167 (2002) (“The Due

Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth

Amendment prohibits the States, from depriving any person of property without due process of law.”) (cleaned up);

Hess v. Ables, 714 F.3d 1048, 1053 (8th Cir. 2013) (a Fifth Amendment claim is unsustainable against non-federal

government defendants); Warren v. Gov't Nat’l. Mortg. Ass'n., 611 F.2d 1229, 1232 (8th Cir. 1980) (the Due Process

Clause of the Fifth Amendment applies to the federal government, while the Fourteenth Amendment Due Process

Clause applies to the States).

6 Notably, there are seven alleged parole violations, at least five of which are unrelated to the July 2018 traffic stop.

See Doc. [82-6] at 1.

7 To the contrary, Plaintiff admits he did violate his parole, regardless of what the Board ultimately concluded. See,

e.g., Doc. [85-4] at 6–7 (24:9–25:16).

Defendant as he had nothing to do with Plaintiff’s arrest or detention based on the parole violations,

Plaintiff’s parole revocation hearing, or the final parole revocation, if any. Therefore, Defendant

is entitled to qualified immunity for any claims based on due process violations for reporting to

Parole Officer or for Plaintiff’s subsequent confinement based on parole violations.

To the extent Plaintiff’s claim here sounds as an Eighth Amendment violation, Defendant

is entitled to qualified immunity. “Eighth Amendment protection extends to conditions of

incarceration and confinement.” Kulkay, 847 F.3d at 642 (citing Farmer v. Brennan, 511 U.S.

825, 833 (1994)). Plaintiff does not allege the conditions of his incarceration are “cruel and

unusual.” Kulkay, 847 F.3d at 642 (analyzing a plaintiff’s §1983 claim for violating the Eighth

Amendment’s ban on “cruel and unusual punishment”). Rather, he complains the reason for his

confinement is “cruel and unusual.” But the Eighth Amendment is not concerned with the

circumstances leading to confinement, as so much as the conditions of confinement. As such,

because Plaintiff cannot show a violation of the Eighth Amendment, Defendant is entitled to

qualified immunity for any claims based on Eighth Amendment violations for “retaliatory”

reporting to Parole Officer.

Finally, to the extent Plaintiff’s claim here sounds as a malicious prosecution claim,

Defendant is entitled to qualified immunity because Plaintiff’s claim is based on violations of the

Fifth, Eighth, and Fourteenth Amendments.8 Harrington v. City of Council Bluffs, 678 F.3d 676,

679 (8th Cir. 2012) (remarking that “[i]f malicious prosecution is a constitutional violation at all,

it probably arises under the Fourth Amendment”); see also Thompson v. Clark, 142 S. Ct. 1332,

8 Malicious prosecution by itself does not allege a constitutional injury. Kurtz v. City of Shrewsbury, 245 F.3d 753,

758 (8th Cir. 2001). Rather, a plaintiff must “identify the specific constitutional right allegedly infringed.” Albright

v. Oliver, 510 U.S. 266, 271 (1994). When looking to the substantive allegations of Plaintiff’s claim, he states

violations of his Fifth, Eighth, and Fourteenth Amendment rights. See Doc. [85-1] at 18–19, 21. This is especially

notable because unlike the majority of Plaintiff’s other claims, Plaintiff specifically grounded his “retaliation” claim

in violations other than the Fourth Amendment.

1337 (2022) (recognizing a Fourth Amendment claim under § 1983 for malicious prosecution, “

sometimes referred to as a claim for unreasonable seizure pursuant to legal process”). Unlike

majority of Plaintiff’s other claims, Plaintiff specifically grounded his “retaliation” claim in

violations other than the Fourth Amendment. Hoffert v. Westendorf, 854 F. App’x 93, 95–96 (8th

Cir. 2021) (per curiam) (concluding no malicious prosecution claim or right to be free from

prosecution absent probable cause under the Fourteenth Amendment and explaining any claim

under the Fourth Amendment was abandoned because the plaintiff “did not expressly invoke the

Fourth Amendment, unlike his prior complaints”). As such, Defendant is entitled to qualified

immunity for any claims sounding in malicious prosecution.

As a final note, Plaintiff’s claim could also be barred by Heck v. Humphrey, 512 U.S. 477

(1994); see also Newmy v. Johnson, 758 F.3d 1008, 1011-12 (8th Cir. 2014) (applying Heck to bar

plaintiff’s § 1983 claim of parole revocation and subsequent extended incarceration); Flying Horse

v. Hansen, 691 F. A’ppx. 299, 300 (8th Cir. 2017) (per curiam) (same). However, the record is

not clear as to whether Plaintiff’s revocation was ultimately revoked and if so, on what basis.

Without more, the Court cannot determine whether a judgment in his favor in this action would

render the parole revocation invalid. Flying Horse, 691 F. A’ppx. at 300 (Heck bar applied to

plaintiff's claim for damages after revocation of parole, because “a judgment in his favor would

render the parole revocation invalid”). Regardless of whether Heck bars this claim, for the several

reasons discussed above, Defendant is entitled to qualified immunity on any claims for retaliation.

CONCLUSION

Defendant is entitled to qualified on immunity on Plaintiff’s claim for unreasonable search

of the vehicle and a cell phone because there is no clearly established right regarding a law

enforcement officer’s duty to intervene in another officer’s unreasonable search. Defendant is also

entitled to qualified immunity on Plaintiffs “retaliation” claim because Plaintiff cannot establish

a constitutional violation under the Fifth, Eighth, or Fourteenth Amendments.

Accordingly,

IT IS HEREBY ORDERED that Defendant’s Motion for Partial Summary Judgment, Doc.

[80], is GRANTED. OO)

Dated this 17th day of February, 2023. (Li / | Ko _

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MATTHEW T. SCHELP

UNITED STATES DISTRICT JUDGE

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