Allen v. Perkins

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

MICHAEL RAY ALLEN, JR. PLAINTIFF

v. Civil No. 5:22-CV-05199-TLB-CDC

PATROL OFFICER PERKINS DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions

of 28 U.S.C. § 636(b)(1) and (3), the Honorable Timoth L. Brooks, United States District Judge,

referred this case to the undersigned for the purpose of making a Report and Recommendation.

Currently before the Court is Defendant’s Motion for Summary Judgment. (ECF Nos. 28, 29, 30).

For reasons set forth below, the undersigned recommends that the Motion be granted.

I. BACKGROUND

Plaintiff filed his Complaint on September 27, 2022, (ECF No. 1), and he was granted in

forma pauperis status. (ECF No. 3). An Order directed Plaintiff to submit an Amended Complaint

to address pleading deficiencies, (ECF No. 7), and it was filed on October 28, 2022. (ECF No. 9).

On December 2, 2022, Defendant filed a Motion to Dismiss (ECF No. 14), and the undersigned

directed Plaintiff to respond or file a newly Amended Complaint. (ECF No. 16). A Second

Amended Complaint was filed on December 14, 2022 (ECF Nos. 17, 18), and the Motion to

Dismiss denied as moot. (ECF No. 20).

Plaintiff is currently incarcerated in the Arkansas Division of Correction (“ADC”)

Cummins Unit, but his Second Amended Complaint focuses on events which led to his

incarceration for a parole violation. (ECF No. 18). Plaintiff alleges that on June 30, 2022, at 10:30

p.m., he was walking home from the store1 with his dog when Defendant Patrol Officer Perkins

turned his vehicle spotlight on him. (Id. at 3). Plaintiff states Defendant Perkins had already seen

him going into the store and did not approach until Plaintiff left the store. (Id. at 4). When

Defendant turned the spotlight on him, Plaintiff alleges that, because he was breaking no law, he

approached Defendant Perkins to see if he could be of assistance. (Id.). Plaintiff states he

understood that, because of the Thirteenth Amendment, he was considered a slave or property of

the State of Arkansas but approached, nonetheless. (Id.). Plaintiff alleges he asked Defendant

Perkins what was wrong, at which point Defendant tried to get him to produce his identification

papers. (Id. at 5). Plaintiff states he had left his identification papers at home and did not believe

it was necessary to carry them because he was not living in either Nazi Germany or the Soviet

Block. (Id.). Plaintiff alleges that “at no point did Officer Perkins state I was suspected of any

wrongdoing, only that he wanted me to produce papers or tell him who I was.” Plaintiff further

elaborates:

While I knew I was a slave or property of the State, because of the thirteenth

Amendment, and that I was obligated to being searched at any time, I also could

tell that Officer Perkins did not know this and that his actions until I was positively

identified was illegal. At least that was my thought. The City of Rogers may well

teach their officers to randomly ask people for their papers based on race, ethnicity,

or what neighborhood they are in.

(Id.). Plaintiff says he “held his ground” and refused to give his papers or answer questions until

Defendant Perkins threatened his dog. Specifically, he alleges Defendant Perkins threatened to

call Animal Control to have them take Plaintiff’s dog and put it down. Plaintiff states that he then

1 Plaintiff did not identify the store he exited in his Second Amended Complaint. In his original

Complaint, however, he indicated he left a Casey’s convenience store. (ECF No. 1 at 4). Although

his original Complaint was superseded by the two later Amended Complaints, the Court takes

judicial notice of the fact to provide clarity to the factual background regarding this and other

businesses referenced in the summary judgment record.

gave his name under duress because he “cares more about his dog than any confinement or

trouble.” (Id. at 5-6). Plaintiff alleges that, once he gave his name, he was searched and charged

with various crimes. (Id. at 6). “Amazing, however, the City did not pursue those as (a). I was

going to be locked up anyway and (b) I might get a public defender who knew what they were

doing. (Id.). Plaintiff argues that, until he was identified, he “was just a citizen of the U.S. and

for that reason this was a violation of my 4th and 5th Amendment” rights.” (Id.).

Plaintiff proceeds against Defendant Perkins in his individual capacity. (Id. at 4). He seeks

compensatory damages for pain, suffering and lost wages, as well as punitive damages. (Id. at 7).

Defendant Perkins filed his Motion for Summary Judgment on July 5, 2023. (ECF Nos.

28, 29, 30). He argues (1) he had reasonable suspicion to detain and question Plaintiff based on

the totality of the circumstances; (2) he lawfully arrested and searched Plaintiff because Plaintiff

had refused to provide identification and had a parolee search waiver on file; (3) Plaintiff’s Fifth

Amendment rights were not violated; and (4) Defendant Perkins is entitled to qualified immunity.

(ECF No. 29).

In the documentation submitted in support of Defendant’s Motion, the date and order of

the incident events differ somewhat from Plaintiff’s. In his probable cause affidavit concerning

the incident, Defendant Perkins states:

The records of the Rogers Police Department reflect that on Saturday, June 25,

2022, at approximately 2257 hours, MPO (Master Police Officer) Perkins was in

the area of South 2nd Street and West Locust Street, when he observed a male

walking his dog across South 2nd Street. MPO Perkins thought the subject was

possibly a male identified as Maurice Floyd, who had multiple felony warrants

issued for his arrest. As MPO Perkins was trying to locate a photo of Floyd, he

realized that he lost sight of the subject and was unable to locate him again.

A short time later, MPO Perkins was driving northbound on South 2nd Street, when

he looked down West Olive Street and observed a silhouette of a person walking

from the direction of a closed business toward another closed business. MPO

Perkins turned around to check on the subject and ensure that the person was not

breaking into business as the area he was in was dark and there were no houses in

the immediate area. As MPO Perkins approached the subject, he observed that it

was the same male who he previously thought may have been Maurice Floyd. MPO

Perkins found it odd that the subject was taking a different route and seemingly

trying to avoid MPO Perkins by walking around closed businesses that had very

little light around them.

MPO Perkins made contact with the male and informed him why he stopped to talk

to him. The male stated he was walking home, so MPO Perkins asked where he

lived. The male told MPO Perkins that he lived on C Street, which was the same

street Maurice Floyd lived on. MPO Perkins asked the male a specific address and

he hesitantly responded "840" as if he had to think about his answer. MPO Perkins

asked the male for identification, and he did not cooperate. The male began telling

MPO Perkins that he had no reason to identify him because he was doing nothing

wrong. After asking the male multiple times, he finally informed MPO Perkins that

his name was Mike Allen but refused to give his date of birth. MPO Perkins asked

Mike for his date of birth several times and informed him that if he did not provide

it, he would go to jail for obstruction. Mike still refused, so MPO Perkins placed

him [in] custody for obstruction.

During a search of his person, MPO Perkins located a black spherical container that

contained two plastic bags with suspected methamphetamine. The suspected

methamphetamine was tested using a field test ampule and it turned blue indicating

a positive result for methamphetamine. MPO Perkins continued his attempts to

positively identify Mike but was not able to. Mike eventually agreed to identify

himself if MPO Perkins would arrange for his dog to be taken to his house that was

actually located at 820 North C Street. MPO Perkins agreed, and Mike identified

himself as Michael Allen, DOB: [redacted]. After checking Allen Via ACIC, it

was discovered that he had a full extradition felony warrant out of the Arkansas

Board of Probation and Parole. Michael was later transported to the Benton County

Jail to be held for charges of possession of a controlled substance and obstructing

governmental operations. His dog was taken to 820 North C Street and placed in

the back yard. MPO Perkins later checked the business[es] to ensure they had not

been tampered with and did not locate any damage.

MPO Perkins Mirandized Allen and after stating he understood each right. He

agreed to speak without counsel. MPO Perkins asked Allen if he planned on selling

the methamphetamine and he said no that it was just personal use and he got it for

the weekend. MPO Perkins asked Allen how long he had been running from his

warrant and he stated, "I always abscond".

MPO Perkins transported the suspected methamphetamine to the Rogers Police

Department and entered it into the property room as evidence. The total weight of

the two bags containing suspected methamphetamine was 7 .5 grams. It will be sent

to the Arkansas State Crime lab for drug analysis.

No Further information

(ECF No. 30-2).

In response to the Motion, Plaintiff argues he was stopped, threatened, and searched by

Officer Perkins at approximately 10:30 p.m. on June 30, 2022. (ECF No. 32 at 1). He alleges this

is shown on video footage provided to the Court. (Id.). The undersigned pauses to note it has not

received video footage for this case from either party. Plaintiff argues he has stated an official

capacity claim, and in the event he has not, he asks that the individual capacity claim remains. (Id.

at 2). Finally, he states stopping citizens and asking them for their papers is reminiscent of Nazi

Germany. (Id.).

Plaintiff submitted a document labelled “Undisputed Facts,” which contains five points.

The undersigned first notes this document was not filed in compliance with the Court’s Order, the

Local Rules or the example provided for Plaintiff in his Prisoner Litigation Guide. Specifically,

Plaintiff was advised that if he “disputes any of the facts set forth by the Defendant in the Statement

of Undisputed Facts, each numbered paragraph must be identified that contains the fact in dispute

and, for each paragraph identified, explain why there is a dispute.” (ECF No. 31) (emphasis in

original). Plaintiff’s document is not responsive to the 20 numbered paragraphs in Defendant’s

Statement of Facts. Instead, Plaintiff provides 5 paragraphs using alphabetical labels. Plaintiff

repeats his allegations that he was stopped at approximately 10:30 p.m. on June 30, 2022. (ECF

No. 32 at 3). He repeats allegations that he was detained and asked for ID which he did not have.

He alleges, for the first time in this case, that Defendant Perkins said he fit the description of

Maurice Floyd. (Id.). He says he saw a picture of Floyd and it did not match his description.2

(Id.). After he was handcuffed, Plaintiff asked for a supervisor several times and was denied. (Id.)

Plaintiff alleges Defendant Perkins searched his belongings without his permission, and then

arrested him for loitering, obstruction, and possession of a controlled substance. (Id. at 1-2).

Plaintiff again refers to a flash drive of the dash camera and body camera; however, the

undersigned again notes that such items were not submitted evidence in this case by either party.

Defendant Perkins filed his Reply on July 27, 2023. (ECF No. 33). He repeats that Plaintiff

was stopped on June 25, 2022. (Id. at 1). He notes that Plaintiff never saw a photo of Maurice

Floyd, but did ask to speak to a supervisor, neither of which are facts material to this case. (Id.).

He argues Plaintiff has not pointed to any additional facts which would constitute evidence of an

unconstitutional claim.

As a preliminary matter, the Court notes that Plaintiff alleges the incident in this case

occurred on June 30, 2022. Defendant Perkins alleges it occurred on June 25, 2022. There is no

dispute, however, that both are referring to the same incident, and that the actual date is immaterial

to the analysis.

II. LEGAL STANDARD

Summary judgment is appropriate if, after viewing the facts and all reasonable inferences

in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986), the record “shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“Once a party moving for summary judgment has made a sufficient showing, the burden rests with

2 Neither photographs nor a description of Maurice Floyd or Plaintiff were submitted into the

summary judgment record by either party.

the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a

genuine issue of material fact exists.” National Bank of Commerce v. Dow Chemical Co., 165

F.3d 602, 607 (8th Cir. 1999).

The non-moving party “must do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita, 475 U.S. at 586. “They must show there is sufficient

evidence to support a jury verdict in their favor.” National Bank, 165 F.3d at 607 (citing Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “A case founded on speculation or suspicion is

insufficient to survive a motion for summary judgment.” Id. (citing Metge v. Baehler, 762 F.2d

621, 625 (8th Cir. 1985)). “When opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not

adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott

v. Harris, 550 U.S. 372, 380 (2007).

III. ANALYSIS

A. Plaintiff’s Failure to Comply with Local Rules

Local Rule 56.1(a) requires any party moving for summary judgment to submit a separate

statement of undisputed material facts. Local Rule 56.1(b) requires the non-moving party

opposing the summary judgment motion to file a separate statement of disputed facts. Pro se

inmates are advised of this requirement in the Order directing them to file a summary judgment

response. Pro se inmates are also advised of this requirement in the District’s Prisoner Litigation

Guide, which contains an example to help them understand the concept of using the same

paragraph numbering as that used by the moving party in their own statement of disputed facts.

Because Plaintiff failed to comply with the Court’s Order to Provide a Separate Statement

of Disputed Facts and the Local Rules of Civil Procedure, Defendant’s Statements of Facts is

deemed admitted pursuant to Local Rule 56.1(c). In determining whether there are genuine

disputes of material fact for trial, however, the Court has also considered the allegations set forth

in Plaintiff’s verified Amended Complaint. A verified complaint is the equivalent of an affidavit

for summary judgment purposes. See, e.g., Roberson v. Hayti Police Dep’t., 241 F.3d 992, 994-

95 (8th Cir. 2001). “[A] complaint signed and dated as true under penalty of perjury satisfies the

requirements of a verified complaint . . ..” Id. As the Court in Roberson pointed out, “[a]lthough

a party may not generally rest on his pleadings to create a fact issue sufficient to survive summary

judgment, the facts alleged in a verified complaint need not be repeated in a responsive affidavit

to survive the summary judgment motion. Id. The Court will, therefore, “piece[] together

[Plaintiff’s] version of the facts from the verified complaint . . ..” McClanahan v. Young, No.

4:13-cv-04140, 2016 WL 520983, *1 (D.S.D. Feb. 5, 2016).

B. Plaintiff’s Arkansas Parolee Search and Seizure Waiver

There is no dispute that Plaintiff is an Arkansas parolee and signed a search waiver as part

of his conditions of release. This waiver states:

SEARCH AND SEIZURE. You must submit your person, place of residence, motor

vehicles. and/or any other area or property under your control to search and seizure

at any time, day or night, with or without a search warrant by any Arkansas

Community Correction officer or any other certified law enforcement officer.

(ECF No. 30-3 at 3). This waiver was signed on October 29, 2019, and was valid for a period of

6 years. (ECF No. 29 at 7). Thus, it was in effect on the night of the incident for this case. The

waiver is based on Arkansas statutory law and required for all Arkansas parolees:

(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 offense.

(b) (1) A person who will be placed on supervised probation or parole and is

required to agree to the waiver required by this section shall acknowledge and sign

the waiver.

Ark. Code Ann. §§ 16-93-106(a)(1)-(2) and (b)(1).

It is well-established that waivers for the suspicionless search and seizure of parolees

pursuant to a state statute do not violate the Fourth Amendment. Samson v. California, 547 U.S.

843, 853 (2006); U.S. v. Thabit, 56 F.4th 1145, 1149 (8th Cir. 2023) (“Samson ultimately held that

a suspicionless search of a parolee pursuant to a California statute was constitutional”). Thus, once

Plaintiff was identified as a parolee, his Fourth Amendment search and seizure rights could not be

violated by the type of search and seizure implemented by Defendant Perkins.

There is, however, some inconsistency in the summary judgment record as to when this

identification occurred. In his Amended Complaint, Plaintiff alleges he was searched and charged

with crimes after he gave his name to Defendant Perkins to protect his dog. In his Summary

Judgment Response, he states he was stopped, threatened, and searched, but does not indicate when

Perkins received his full identification, which includes his birthdate. He also states he was detained

and was asked for ID which Plaintiff did not have. In Defendant Perkin’s probable cause affidavit,

Perkins states he placed Plaintiff in custody for obstruction before obtaining his date of birth,

which, in conjunction with his name, led to his discovery of the existence of the waiver and

warrant. Thus, for the purposes of this Report and Recommendation, the Court will consider

Defendant Perkin’s statement as the timeline. With this timeline, Plaintiff’s identity was not

verified until after he was arrested for obstruction and searched. Thus, the question remains as to

whether Defendant Perkins violated Plaintiff’s rights prior to obtaining Plaintiff’s full

identification information.

C. Reasonable Suspicion for Terry Stop Prior to Full Identification

A police officer can stop and briefly detain a person for investigatory purposes if the officer

has a reasonable suspicion that criminal activity “may be afoot.” This is known as a “Terry stop.”

Terry v. Ohio, 392 U.S. 1, 30 (1968). To determine whether Defendant had reasonable suspicion

to conduct a Terry stop, the Court looks at the information Defendant possessed at the time. Terry

392 U.S. at 21-22 (1968). The Court views Defendant's “observations as a whole, rather than as

discrete and disconnected occurrences.” Waters v. Madson, 921 F.3d 725, 736 (8th Cir. 2019).

The “determination of reasonable suspicion must be based on commonsense judgments and

inferences about human behavior.” Wardlow, 528 U.S. at 125. If a Defendant “lacked reasonable

suspicion and thus conducted an unlawful Terry stop, she may nonetheless be entitled to qualified

immunity if she had arguable reasonable suspicion—that is, if a reasonable officer in the same

position could have believed she had reasonable suspicion.” Waters, 921 F.3d at 736.

“Reasonable suspicion is a fact-specific inquiry, determined by the totality of the

circumstances, taking account of an officer's deductions and rational inferences resulting from

relevant training and experience.” Irvin v. Richardson, 20 F.4th 1199, 1204 (8th Cir. 2021) (citing

United States v. Arvizu, 534 U.S. 266, 273-74 (2002). “It requires ‘some minimal level of objective

justification,’ but a series of acts may be ‘innocent if viewed separately, but . . . taken together

warrant [] further investigation.’” (Id.) (quoting United States v. Sokolow, 490 U.S. 1, 7, 9-10

(1989) (cleaned up)). “Factors that may reasonably lead an experienced officer to investigate

include time of day or night, location of the suspect parties, and the parties' behavior when they

become aware of the officer's presence.” U.S. v. Quinn, 812 F.3d 694, 697–98 (8th Cir. 2016)

(quoting United States v. Dawdy, 46 F.3d 1427, 1429 (8th Cir.1995)). “In addition, a person's

temporal and geographic proximity to a crime scene, combined with a matching description of the

suspect, can support a finding of reasonable suspicion. (Id.) (citing United States v. Juvenile TK,

134 F.3d 899, 903–04 (8th Cir.1998)). “[A]rgumentative, evasive, and uncooperative behavior”

can support a finding of reasonable suspicion. Waters, 921 F.3d at 738 (8th Cir. 2019). Indeed,

the combination of “unpredictability, evasiveness, argumentative demeanor, refusal to disobey

legitimate officer commands” and a size difference between the suspect and the officer has been

found to support handcuffing and placement of the suspect in a patrol car during a Terry stop to

protect officer safety and maintain the status quo. (Id.).

In contrast, “a refusal to cooperate, without more, does not furnish the minimal level of

objective justification needed for a detention or seizure.” Fla. v. Bostick, 501 U.S. 429, 437 (1991).

Nor is “an individual's presence in an area of expected criminal activity, standing alone, . . . enough

to support a reasonable, particularized suspicion that the person is committing a crime.” Illinois

v. Wardlow, 528 U.S. 119, 124 (2000). Finally, passive observation of police-citizen interactions

from a distance combined with a refusal to supply full identification is insufficient to establish

reasonable suspicion. Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020).

Here, the record supports that Defendant Perkins had reasonable suspicion to suspect that

crime was afoot. While on patrol at approximately 10:30 p.m., he saw Plaintiff walking his dog

and believed he met the description of Maurice Floyd, who had multiple felony arrest warrants.

While looking for a photo of Floyd, Perkins lost sight of Plaintiff. Perkins later saw the silhouette

of an individual walking from one closed business to another closed business. Concerned that the

individual might be attempting to break into the closed businesses, Perkins approached and

observed it was the same individual he had seen earlier and believed to be Maurice Floyd. Because

this was a different route than Plaintiff appeared to be initially taking, and because Plaintiff was

keeping to dimly lit areas near the closed businesses, Defendant Perkins believed Plaintiff was

trying to avoid him. When approached, Plaintiff told him he was walking home, and when queried

as to his address, he “hesitantly” gave him an address on the same street as Floyd. He then refused

to give Perkins identification when asked, stating he had no reason to give him that information

because he was not doing anything wrong. He then gave his name as Mike Allen but refused to

give his date of birth. He was then placed in custody for obstruction.3 During a search of his

person, Defendant found a substance which tested positive for methamphetamine. Plaintiff then

gave his full name and date of birth in exchange for a promise to have his dog taken to his house.

At this point his status as a parolee and the warrant from the Arkansas Board of Probation and

Parole became known.

Several factors support the existence of reasonable suspicion in this case. First, Defendant

Perkins believed that Plaintiff was Maurice Floyd, an individual with multiple outstanding felony

warrants. This belief was initially based upon his appearance, and further bolstered by some

apparently evasive action in the presence of a police officer. Although this belief was ultimately

shown to be incorrect, a reasonable but mistaken belief can justify an investigative stop. See U.S.

v. Bailey, 417 F.3d 873, 877 (8th Cir. 2005); U.S. v. Black-McCormick, No. 12-00363-14-CR-W-

DGK, 2014 WL 7005189, at *3 (W.D. Mo. Dec. 10, 2014) (“Inherent in the concept of reasonable

3There does not appear to be any dispute that probable cause existed to arrest Plaintiff for

obstruction. Based on the summary judgment record before the Court, Defendant Perkins was

investigating suspected criminal activity, and Plaintiff was, therefore, required to comply with the

identification request under Arkansas law. See Brown v. Jordan, No. 5:18-CV-05199, 2019 WL

637720, at *6 (W.D. Ark. Feb. 14, 2019) (discussing the Arkansas obstruction statute and Rule 2.2

of the Arkansas Rules of Criminal Procedure in the context of a Section 1983 claim for unlawful

arrest).

suspicion is the fact that officers may be mistaken in their beliefs.”). Second, the perceived evasive

behavior occurred late in the day and after dark; Plaintiff was observed approaching closed

businesses in a poorly lit area. Loitering late at night near closed businesses can support a

reasonable suspicion that crime may be afoot. See U.S. v. Trogdon, 789 F.3d 907, 910 (8th Cir.

2015). Third, once stopped, Plaintiff was uncooperative, repeatedly refusing to identify himself

fully, and then hesitantly giving a home address on the same street as Maurice Floyd. Refusal to

identify oneself to officers, combined with other factors, can constitute reasonable suspicion. See

Waters, 921 F.3d at 736-37. Taking these facts together, the undersigned concludes Defendant

Perkins had reasonable suspicion to suspect that crime was afoot.4 Without facts in material

dispute, Defendant Perkins is entitled summary judgment as a matter of law.

D. Fifth Amendment Violation

Plaintiff also alleges that his Fifth Amendment rights against self-incrimination were

violated because Plaintiff only agreed to identify himself fully when Defendant Perkins threatened

to have his dog euthanized, and Defendant Perkins asked him questions after reading him his

Miranda rights. Defendant argues Plaintiff did not invoke his Fifth Amendment rights at any time

during the interaction, and Plaintiff raised no dispute to this argument in his Summary Judgment

Response. It is not necessary to address these arguments because the United States Supreme Court

recently held that “a violation of Miranda does not necessarily constitute a violation of the

Constitution, and therefore such a violation does not constitute “the deprivation of [a] right . . .

secured by the Constitution” and cognizable under 42 U.S.C. § 1983. Vega v. Tekoh, 597 U.S.

134, 150 (2022). Thus, Defendant Perkins is entitled to summary judgment as a matter of law.

4 As the Court finds Defendant Perkins had reasonable suspicion, it is not necessary to address

whether Perkins had arguable reasonable suspicion.

IV. CONCLUSION

Accordingly, it is recommended that Defendant’s Motion for Summary Judgment. (ECF

No. 28) be GRANTED and Plaintiff’s claims be dismissed WITH PREJUDICE.

The parties have fourteen 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 21* day of December 2023.

CHRISTY COMSTOCK

UNITED STATES MAGISTRATE JUDGE

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