# LeClaire v. Dyer

> District Court, W.D. Arkansas · May 31, 2023

URL: https://www.frixlaw.com/law-library/cases/10632705

## Case

- **Court:** District Court, W.D. Arkansas
- **Decided:** May 31, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

CHRISTOPHER MICHAEL LECLAIRE PLAINTIFF

v. Civil No. 2:22-cv-02131-PKH-MEF

DEPUTY RICHARD DYER,
Crawford County Sheriff’s Department;
DEPUTY BRANDON CHANCEY,
Crawford County Sheriff’s Department;
BRIAN TEJADA,
Parole Officer Sebastian County DEFENDANTS

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, Christopher Michael LeClaire (“LeClaire”), a prisoner, filed the above-captioned
civil rights matter pursuant to 42 U.S.C. § 1983. LeClaire proceeds pro se and in forma pauperis
(IFP). (ECF No. 3). The Court initially recommended that this matter be stayed pursuant to the
Younger abstention principles because the factual predicate of the Complaint—the circumstances
surrounding Plaintiff’s arrest and subsequent incarceration—was also the subject of ongoing state
criminal proceedings. (ECF No. 6). Those criminal proceedings resolved, and Plaintiff
requested that the stay be lifted. (ECF No. 8). The Court granted Plaintiff’s motion to reopen
the case and directed him to file an Amended Complaint. (ECF No. 9).
The case is now before the Court on Separate Defendant Brian Tejada’s Motion to Dismiss
the Amended Complaint. (ECF No. 17). LeClaire filed a response to the Motion and a
Supplement. (ECF Nos. 20 & 21). Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3),
the Honorable P. K. Holmes, III, Senior United States District Judge, referred the Motion to
Dismiss to the undersigned for the purpose of making a Report and Recommendation. For the
reasons outlined below, the undersigned RECOMMENDS that the Motion to Dismiss (ECF No.
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17) be GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
LeClaire contends that when Deputy Richard Dyer (“Deputy Dyer”) arrested him on March
1, 2022, Deputy Brandon Chancey (“Deputy Chancey”) directed Deputy Dyer to transport him to
an address, 141 Arkansas Avenue, rather than the jail. (ECF No. 10). LeClaire further alleges

that he did not reside at the 141 Arkansas Avenue address, but that Deputy Chancey reported to
his parole officer, the Separate Defendant Brian Tejada (“Tejada”), that LeClaire did reside at that
address - so that Deputy Chancey could use LeClaire’s parole status as a basis to search the
property. Id. Specifically, LeClaire states that Tejada gave law enforcement permission to
search the address, knowing it was not LeClaire’s parole address, because “Deputy Brandon
Chancey called [Tejada] and told him that [LeClaire] said [he] moved to 141 Arkansas Ave.” Id.
at 8. LeClaire alleges he was subsequently charged with several felony offenses in state court.
He requests money damages and an order reprimanding the Defendants for their conduct. Id. at
9.

II. LEGAL STANDARD
Rule 8(a) contains the general pleading rules and requires a complaint to present “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). “In order to meet this standard and survive a motion to dismiss under Rule 12(b)(6), ‘a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.’” Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. While the Court will
liberally construe a pro se plaintiff’s complaint, the plaintiff must allege sufficient facts to support
his claims. Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
III. DISCUSSION
Parole Officer Tejada contends (1) that sovereign immunity bars Plaintiff’s official

capacity claim against him, (2) that the individual capacity claim should be dismissed for failure
to state a claim as a matter of law, and (3) that he is entitled to qualified immunity. (ECF No. 17).
A. Official Capacity Claim
Turning first to Plaintiff’s official capacity claims, the Court agrees with Officer Tejada.
“A suit against a government official in his or her official capacity is another way of pleading an
action against an entity of which an officer is an agent.” Baker v. Chisom, 501 F.3d 920, 925 (8th
Cir. 2007) (citing Monell v. Dep’t of Social Services, 436 U.S. 658, 690 n.55 (1978)). In this case,
Tejada, as a parole officer, is an agent of the State of Arkansas. However, “[n]either a state nor
its officials acting in their official capacities are ‘persons’ under § 1983” when sued for money

damages. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Thus, state officials may
only be sued in their official capacities for prospective injunctive relief. Ex parte Young, 209 U.S.
123, 157-60 (1908); Fond du Lac Band of Chippewa Indians v. Carlson, 68 F.3d 253, 255 (8th
Cir. 1995) (“Ex parte Young recognized that suits may be brought in federal court against state
officials in their official capacities for prospective injunctive relief to prevent future violations of
federal law.”). Here, LeClaire requests money damages for relief. Because money damages are
not available against Tejada in his official capacity as an Arkansas parole officer, LeClaire’s
official capacity claim against Tejada fails as a matter of law.

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B. Individual Capacity Claim
LeClaire also sues Tejada in his individual capacity. With respect to this claim, Tejada
asserts that LeClaire has failed to state a claim upon which relief may be granted and that he is
entitled to qualified immunity. (ECF No. 17). The undersigned agrees.
Officers are “entitled to qualified immunity under § 1983 unless: (1) they violated a federal

statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established
at the time.” Lane v. Nading, 927 F.3d 1018, 1022 (8th Cir. 2019) (quoting District of Columbia
v. Wesby, __ U.S. __, 138 S. Ct. 577, 589 (2018) (internal quotations omitted)). “Clearly
established” means that, “at the time of the officer’s conduct, the law was ‘sufficiently clear’ that
every ‘reasonable official would understand what he is doing’ is unlawful.” Wesby, 138 S. Ct. at
589 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). “The ‘clearly established’ standard
also requires that the legal principle clearly prohibit the officer’s conduct in the particular
circumstances before him.” Id. at 590. “If either prong is not satisfied, the defendant is entitled
to qualified immunity.” LeMay v. Mays, 18 F.3d 283, 287 (8th Cir. 2021).

Here, Tejada argues that LeClaire had no constitutional right to be free from the search of
141 Arkansas Ave on March 1, 2022, because, as a parolee, the suspicionless search of his
residence was permitted under Ark. Code Ann. § 16-93-106. (ECF No. 18). Tejada further
argues that LeClaire admitted to Deputy Chancey that he resided at that address, and Tejada’s pre-
search conversation with Deputy Chancey did not implicate Plaintiff’s constitutional rights. Id.
The Court first addresses whether LeClaire has established that Tejada violated his
constitutional rights. He has not. The Fourth Amendment protects against unreasonable
searches and seizures. U.S. Const. amend IV. The Fourth Amendment rights of a parolee, such

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as LeClaire, however, are significantly curtailed. To assert a violation of the Fourth Amendment,
one must have a legitimate expectation of privacy. United States v. Green, 275 F.3d 694, 698
(8th Cir. 2001). But because “parole is an established variation on imprisonment of convicted
criminals,” Samson v. California, 547 U.S. 843, 850 (2006), parolees “have severely diminished
expectations of privacy.” Id. at 852. Where “a parolee is released on the condition that he must

submit to suspicionless searches by a parole officer or other peace officer at any time and is
unambiguously made aware of that condition, he lacks an expectation of privacy that society would
recognize as legitimate.” Lane, 927 F.3d at 1024 (quoting Samson, 547 U.S. at 852) (cleaned up).
Here, as a condition of parole, LeClaire was required to submit to a suspicionless search of
his residence in accordance with Ark. Code Ann. § 16-93-106(a), which provides that:
(a)(1) A person who is placed on supervised probation or is released on parole under
this chapter is required to agree to a waiver as a condition of his or her supervised
probation or parole that allows any certified law enforcement officer or Division of
Community Correction officer to conduct a warrantless search of his or her person,
place of residence, or motor vehicle at any time, day or night, whenever requested
by the certified law enforcement officer or division officer.

(2) A warrantless search that is based on a waiver required by this section shall be
conducted in a reasonable manner but does not need to be based on an articulable
suspicion that the person is committing or has committed a criminal offence.

Ark. Code Ann. § 16-93-106(a)(1)-(2).1
In Clingmon v. State, 620 S.W.3d 184, 190 (Ark. Ct. App. 2021), the Arkansas Court of
Appeals found that “the statutory language [of Ark. Code Ann. § 16-93-106(a)] is clear [in that]
reasonable suspicion [to search a parolee’s residence] is not required.” In so finding, the Court
of Appeals concluded that the court was faced with the same question presented to the Supreme

1 In considering a motion to dismiss, courts are permitted to take judicial notice of public records.
See Stahl v. U.S. Dep’t of Agric., 327 F.3d 697, 700 (8th Cir. 2003).
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Court in Samson, 547 U.S. 843 (2006): “whether a condition of release can so diminish or eliminate
a released prisoner’s reasonable expectation of privacy that a suspicionless search by a law
enforcement officer would not offend the Fourth Amendment.” Id. Recognizing that the
Supreme Court answered this question in the affirmative in Samson, the Arkansas Court of
Appeals, relying on that holding, concluded that Ark. Code Ann. § 16-93-106(a) did not violate

the Arkansas and United States Constitutions. Id. Thus, pursuant to Clingmon and Samson, a
suspicionless search of LeClaire’s residence does not violate his constitutional rights.
This conclusion does not end the analysis because, as LeClaire claims, 141 Arkansas Ave
was not his residence.2 In United States v. Thabit, 56 F.4th 1145 (8th Cir. 2023), the United States
Court of Appeals for the Eighth Circuit explained that “[a]n officer must have probable cause to
believe a dwelling is the residence of a parolee in order to initiate a warrantless search of a
residence not known to be the home of a parolee.” Id. at 1151. In this context, “probable cause
[] require[s] a person of reasonable caution to believe the parolee resided at a certain location prior
to a search.” Id. “Determining whether probable cause exists at the time of the search is a

‘commonsense, practical question’ to be judged from the ‘totality-of-the-circumstances.’” United
States v. Donnelly, 475 F.3d 946, 955 (8th Cir. 2007) (quoting Illinois v. Gates, 462 U.S. 213, 238
(1983)).
In this case, however, LeClaire does not allege that Tejada was present at or participated

2 The Court is not persuaded by Tejada’s assertion that LeClaire admitted to residing at 141
Arkansas Ave. (ECF No. 18 at p. 7). When considering a motion to dismiss, the Court must
construe the facts in the light most favorable to the non-moving party. See Ritchie v. St. Louis
Jewish Light, 630 F.3d 713, 715 (8th Cir. 2011). In doing so here, the Court understands LeClaire
as alleging that Deputy Chancey reported to Tejada that LeClaire had said that he resided at that
address when, in truth, he had not. (ECF No. 10).
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in the search. Further, by its express terms, Tejada’s permission to search the dwelling was not
required under Ark. Code Ann. § 16-93-106. Indeed, the language of Ark. Code Ann. § 16-93-
106(a) expressly allows “any certified law enforcement officer or Division of Community
Correction officer” to conduct a warrantless search of . . . [the parolee’s] residence.” Id. In light
of Thabit, the relevant question, then, is whether Deputy Chancey had probable cause to believe

that LeClaire resided at 141 Arkansas Avenue at the time of the search.3 And this is a question
not presently before the Court. To the extent that Deputy Chancey misrepresented to Tejada that
Plaintiff had said that he resided at this address, this misrepresentation does not impute liability on
Tejada because there are no allegations that Tejada himself made any intentional or reckless
misrepresentations, or that Deputy Chancey subsequently relied on Tejada’s misrepresentations to
establish probable cause to believe that Plaintiff resided at that address. Cf. Moody v. St. Charles
Cnty., 23 F.3d 1410, 1411-12 (8th Cir. 1994) (allegation that officer lied in an affidavit that served
as a basis for an arrest warrant is actionable under § 1983). Accordingly, because LeClaire has
failed to establish that Tejada violated his constitutional rights, Tejada is entitled to qualified

immunity.
C. Section 1915(g)
Defendant Tejada asks that the Court issue a “strike” against LeClaire pursuant to 28
U.S.C. § 1915(g). Tejada’s request should be DENIED.

3 The search at issue here predates United States v. Thabit, 56 F.4th 1145 (8th Cir. 2023). But
the level of suspicion required to believe that a dwelling is the residence of a parolee, in order to
justify a suspicionless search of that residence, is not dispositive here. Rather, the question for
the Court is whether Tejada—who was not present for the search, did not participate in the search,
and did not make any reckless or intentional misrepresentations about Plaintiff’s residence—
violated Plaintiff’s constitutional rights. For the reasons outlined supra, the Court answers this
question in the negative.
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First, dismissals based on immunity—such as this one—are not among the types of
dismissals listed as strikes in § 1915(g). Castillo-Alvarez v. Krukow, 768 F.3d 1219, 1220 (8th
Cir. 2014). Second, even if the claims against Tejada were dismissed for failure to state a claim,
the dismissal would not constitute a strike within the meaning of 28 U.S.C. § 1915(g) because
§ 1915(g) applies to the dismissal of “an action or appeal . . . on the grounds that it is frivolous,

malicious, or fails to state a claim upon which relief may be granted . . ..” (Emphasis added).
The dismissal of the claims against Tejada does not result in the dismissal of this action.
IV. CONCLUSION
For the reasons stated, it is recommended that Parole Officer Tejada’s Motion to Dismiss
(ECF No. 17) be GRANTED IN PART and DENIED IN PART. Specifically, all claims
against Parole Officer Tejada should be DISMISSED. Parole Officer Tejada’s request to impose
a strike against LeClaire pursuant to 28 U.S.C. § 1915(g) should be DENIED.
The parties have fourteen (14) days from receipt of the Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file

timely objections may result in waiver of the right to appeal questions of fact. The parties
are reminded that objections must be both timely and specific to trigger de novo review by
the district court.
DATED this 30th day of May 2023.

/s/
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10632705. Public record. Not legal advice.