Opinion
4:99CV3110
July 19, 2000
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This case is before me on a motion for summary judgment by the defendants, Tom Nesbitt and T.G. Hayes. Filing 69. After officers mistakenly served an arrest warrant at her residence, the plaintiff filed this § 1983 claim against several defendants. In her second amended complaint, filing 20, the plaintiff alleged that as a result of the mistaken service, she was deprived of her constitutional right of privacy, as well as her right to be free from unreasonable search and seizure. She also alleged that the defendants, through said service, intentionally inflicted emotional distress upon her. Four of the defendants named in the plaintiff's Second Amended Complaint have been dismissed. See filings 58, 59, 60, 61, 65. Accordingly, Nesbitt and Hayes are the only two defendants remaining in this action.
The defendants Nesbitt and Hayes first moved for summary judgment on April 3, 2000, claiming that they were entitled to the protection of qualified immunity. Filing 47. I granted their motion in part, but concluded that a genuine issue of material fact remained as to the reasonableness of the defendants' actions in identifying the plaintiff as the subject of the warrant. See filing 61. Accordingly, I denied the motion for summary judgment to the extent it was based on the plaintiff's claim that the defendants violated her right to be free unreasonable seizure, illegal detention, and unlawful arrest. See id.
The defendants filed the present Motion for Summary Judgment, filing 69, on January 19, 2001, again claiming that they are entitled to qualified immunity. After reviewing the materials submitted by both parties, I find that the motion will be denied with respect to the defendant Hayes and granted with respect to the defendant Nesbitt.
I. Standard of Review
A motion for summary judgment on qualified immunity grounds is precluded when the plaintiff has "(1) assert[ed] a violation of a constitutional right; (2) demonstrate[d] that the alleged right is clearly established; and (3) raise[d] a genuine issue of fact as to whether the official would have known that his alleged conduct would have violated the plaintiff[s'] clearly established right." Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th Cir. 2000) (citing Goff v. Bise, 173 F.3d 1068, 1072 (8th Cir. 1999) (quoting Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir. 1996), cert denied, 519 U.S. 1011 (1996))). In other words, a defendant is protected by the shield of qualified immunity "if he or she could have reasonably believed his or her conduct to be lawful `in light of clearly established law and the information [that the defendant] possessed.'" Id. (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987). The standard governing the qualified immunity defense "`gives ample room for mistaken judgments' by protecting `all but the plainly incompetent or those who knowingly violate the law.'" Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam) ( quoting Malley v. Briggs, 475 U.S. 335, 343, 341 (1986)). Although qualified immunity is "`an immunity from suit rather than a mere defense to liability,'" and its availability should therefore "ordinarily . . . be decided by the court long before trial," the nonmoving party is given the benefit of all relevant inferences at the summary judgment stage. Smithson, 235 F.3d at 1061 (citing Hunter, 502 U.S. at 227-228). Thus, if a "genuine dispute exists concerning predicate facts material to the qualified immunity issue, the defendant is not entitled to summary judgment on that ground." Pace v. City of Des Moines, 201 F.3d 1050, 1056 (8th Cir. 2000) (citation omitted).
A disputed fact is "material" if the dispute "might affect the outcome of the suit under the governing law. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine" issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Id. In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S H. Kress Co., 398 U.S. 144, 157 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The opposing party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial," and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57 (citation omitted).
II. Analysis
According to the United States Supreme Court, "an officer whose request for a warrant allegedly caused an unconstitutional arrest" may be entitled to qualified immunity from liability Malley, 475 U.S. at 344. In defining the boundaries of this immunity, the Court stated that "[d]efendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized." Id. at 341. Only in those cases "where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable . . . will the shield of immunity be lost." Id. at 344-45 (internal citation omitted) ; see also Thompson v Reuting, 968 F.2d 756, 760 (8th Cir. 1992) (providing that "`police officers seeking arrest warrants are entitled to qualified immunity for their actions unless `the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable. . . .'" (citing Malley, 475 U.S. at 344-45)). Accordingly, "[e]ven law enforcement officials who `reasonably but mistakenly conclude that probable cause is present' are entitled to immunity." Hunter, 502 U.S. at 226 (quoting Anderson, 483 U.S. at 641); see also Hoffman v. Reali, 973 F.2d 980, 986 (1st Cir. 1992) (stating that "it is `objectively reasonable' for a police officer to seek an arrest warrant so long as the presence of probable cause is at least arguable" (citation omitted)); see also Hill v. California, 401 U.S. 797, 802 (1971) (agreeing that "`[w]hen the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest'" (citation omitted)); United States v. Glover, 725 F.2d 120, 122 (D.C. Cir. 1984), cert denied, 466 U.S. 905 (1984) (recognizing that "[t]he arrest of a person who is mistakenly thought to be someone else is valid if the arresting officer (a) has probable cause to arrest the person sought, and (b) reasonably believed the person arrested was the person sought" (citing Hill, 401 U.S. at 802; United States v McEachern, 675 F.2d 618, 621 (4th Cir. 1982); Sanders v. United States, 339 A.2d 373, 379 (D.C. Cir. 1975)).
The Eighth Circuit has also recognized that "law enforcement officers have a duty to conduct a reasonably thorough investigation prior to arresting a suspect, at least in the absence of exigent circumstances and so long as `law enforcement would not [be] unduly hampered . . . if the agents. . . . wait to obtain more facts before seeking to arrest." Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999) (citations omitted). Thus, although an officer is not required to conduct a "mini-trial" before seeking a warrant or making an arrest, "probable cause does not exist when a `minimal further investigation' would have exonerated the suspect." See id. (citations omitted).
In Kuehl, the plaintiff brought a § 1983 against a police officer, the police chief, and the city of Sioux Falls, alleging that her arrest was without probable cause. Kuehl, 173 F.3d at 649. Although Kuehl arose in the context of a warrantless arrest, the principles set forth above appear equally applicable to the present case, where the plaintiff alleges that the defendant Hayes did not have probable cause to seek a warrant for the arrest of Donna Widler.
a. Defendant T.G. Hayes
Throughout this litigation, the defendant Hayes has freely admitted that he erroneously identified the plaintiff as the person involved in the sale of methamphetamine to his confidential informant. In the earlier motion for summary judgment, Hayes explained that his informant named Donna Aude as the subject of the controlled drug buys. Affidavit of T.G.Hayes at 2, ¶ 4 (filing 48, Def. Ex. 1). According to Hayes, this informant also knew Donna Aude by the names Donna Widler and Donna Stewart. Id. The defendant stated that prior to the arrest, he learned from a former Fairbury police officer, Mitch Siebe, that Donna Aude had married Rick Widler and was going by the name Donna Widler. Id. at 3, ¶ 7. The defendant also stated that he learned from his informant that the suspect of the investigation worked in Fairbury, Nebraska, but lived in Belvidere, Nebraska. Id. ¶ 8 Thus, in preparing to obtain an arrest warrant for the suspect, the defendant focused his investigation on Donna Widler living in Belvidere. Id. at 3-4, ¶ 9. A review of Donna Widler's driving record revealed that her address was P.O. Box 324, Belvidere, Nebraska. Id.In my prior order denying, in part, the defendants' motion for summary judgment, I determined that there was a "glaring factual hole as to the source of information that enabled the defendant Hayes to translate the post office address for Donna Widler, P.O. Box 324, Belv[i]dere, NE, to a corresponding street address." See filing 61 at 4. I therefore concluded that "a genuine issue of material fact . . . exists as to the source of this additional information and whether this source may have alerted the defendant Hayes of his error." Id. Thus, in support of his present motion for summary judgment, the defendant submitted additional affidavits in an attempt to clarify how he determined where the warrant would be served.
Hayes states that in preparation for the arrest sweep, he traveled to Hebron, Nebraska, on February 10, 1998, and met with Sheriff Gary Young. Affidavit of T.G. Hayes at 4, ¶ 10 (filing 70, Def. Ex. 1). According to Hayes, he and Young then drove to Belvedere [sic], where Young "identified the home of the Plaintiff as the home of Donna Aude, now known as Donna Widler." Id. Thus, Hayes explains "[t]his address was used for the information contained in the arrest packets." Id. Young confirms, in part, Hayes' version of events, stating the following:
On February 13, 1998, I was asked by the Nebraska State Patrol if I knew a Donna Aude, and I replied that I did, and I then identified the home in which she resided. The only "Donna Aude" that I knew who resided in Belvidere, Nebraska, was Donna Aude Widler, Widler being her married name and Aude being her maiden name
Affidavit of Gary Young in Support of his Motion for Summary Judgment at 2, ¶ 6 (filing 70, Def. Ex. 3).
Hayes argues that he acted reasonably in relying on the information supplied by Young, a fellow law enforcement officer He also asserts that because there were two women using the name Donna Aude, either presently or in the past, and because both of these women lived in Belvidere, a town of approximately 117 people, his errors were reasonable. Thus, he concludes, he is entitled to the protection of qualified immunity.
If the affidavits discussed above were the only additional evidence before me, I would be inclined to grant the defendants' motion. The plaintiff, however, has submitted affidavits suggesting the relevant questions are not only how the post office box address for Donna Widler was translated to a street address, but also how the defendant Hayes' came to focus his investigation on a person known as Donna Aude and/or Donna Widler. I agree with the plaintiff.
For purposes of clarification, I note that my prior decision denying, in part, the defendant Hayes' motion for summary judgment does not foreclose the plaintiff's present arguments See Brief in Support of Motion for Summary Judgment of Defendants Nesbitt and Hayes at 12, Widler v. Young, No. 4:99cv03110 (D.Neb.) (stating that "the sole issue remaining . . . [is whether] a reasonable controversy of fact exist[s] as to how Inv. Hayes was able to transform a P.O. Box address into the actual address of the Plaintiff"). In my order, I stated that the defendant Hayes' motion was denied "insofar as it [was] based on a claim that the seizure was unreasonable because it was made without a reasonable belief that the plaintiff was the person sought in the warrant." Filing 61 at 10. As discussed above, the evidence before me at that time convinced me that a genuine issue of material fact remained as to how Hayes was able to translate a post office box address for Donna Widler to a corresponding street address. Id. at 4. Additional discovery, however, has revealed additional issues of material fact regarding the reasonableness of Hayes belief that the plaintiff was the person involved in the controlled drug buys. Accordingly, these issues will be examined below.
In opposing the defendants' motion, the plaintiff submits the affidavit of Merrell V. Schoenrock, who states that he was the confidential information involved in the defendant Hayes' investigation. Affidavit of Merrell V. Schoenrock at 1, ¶ 1 (filing 79, Plf. Ex. 7). According to Schoenrock, he knew the person from whom he purchased drugs as "Donna Stewart." Id. ¶ 2 He also knew that Donna Stewart had used the last name of "Terrell." Id. ¶ 3. Schoenrock, however, denies that he ever referred to Donna Stewart as either Donna Aude or Donna Widler :
Prior to February 13, 1998, the only times I heard Donna Stewart referred to as Donna "Aude" was when the name was mentioned to me by either Defendant Hayes or Defendant Nesbitt. When either one of them would call Donna Stewart by that name, I would correct them and tell them that her name was Stewart. I never heard Donna Stewart referred to as Donna "Widler"Id. at 2-3, ¶ 8. In addition, Schoenrock asserts that (1) he knew where Donna Stewart resided in Belvidere; (2) he described the location of the house where Stewart resided to both Hayes and Nesbitt; and (3) he told the defendants Hayes and Nesbitt that Stewart and William Aude were not married but were living together. Id. at 2-3, ¶¶ 7, 8.
Hayes refutes this assertion, stating that "[a]t no time did the confidential informant impart any information to the affiant as to where in Belvedere [sic], Nebraska, the suspect lived." See Affidavit of T.G. Hayes at 3, ¶ 8 (filing 70, Def Ex. 1).
The plaintiff also points to several other holes in the defendant Hayes' claim that he acted reasonably in focusing his investigation on Donna Aude and/or Donna Widler. First, the plaintiff challenges Hayes' assertion that he did not personally see the subject of his investigation during the controlled drug buys. See Affidavit of T.G. Hayes at 3, ¶ 6 (filing 70, Def. Ex 1). According to Hayes, he therefore obtained the physical description for the suspect from the drivers' record database, which described Donna Widler as a five-foot, seven-inch tall female with brown hair and green eyes, weighing approximately one hundred sixty pounds. See id. at 4, ¶ 9. The plaintiff, however, contends that Hayes did, indeed, see the suspect during one of the buys. In support of her claim, the plaintiff notes that in Hayes' affidavit for the warrant he stated that during the February 1997 buy, he "saw that Arlene Stewart, sister of Donna Widler was also present, when both approached the CI's vehicle at the stated location. Affiant thereafter saw Arlene Stewart move to a different location away from the CI's vehicle and Donna Widler stayed, talking to the CI." Affidavit at 2, ¶ 1(C) (filing 79, Plf. Ex. 2). Schoenrock states that this transaction occurred on a clear and sunny afternoon, and that during the transaction, Hayes was only 200 feet from Stewart, in a car Schoenrock could easily see. See Affidavit of Merrell V. Schoenrock at 2, ¶ 5 (filing 79, Plf. Ex. 7). Schoenrock also describes Donna Stewart as five-foot, two-inch tall female with brown hair, weighing approximately one hundred thirty pounds. Id. The plaintiff asserts that the above statements by Schoenrock and Hayes create a genuine issue of material fact as to whether Hayes should have been alerted to the potential inaccuracy of the driver's licence data, where the physical description provided by the licence data did not match the physical description of the suspect.
Finally, the plaintiff asserts the defendant Hayes' explanation as to how he came to focus his attention on and obtain a residential address for Donna Widler is not, as the defendant claims, supported by the affidavits of Officer Siebe and Sheriff Young. First, the plaintiff notes that although Hayes alleges that he was told by then Officer Siebe that Donna Aude had married Rick Widler and was "now going by the name Donna Widler," Siebe never mentioned discussing the plaintiff or her marriage with Hayes. Compare Affidavit of T.G. Hayes at 3, ¶ 7 (filing 70, Def Ex. 1), with Affidavit of Mitch Siebe (filing 79, Plf. Ex. 8). In addition, the plaintiff also points out that while Hayes claims that he traveled with Young to Belvidere three days before the raid to identify the plaintiff's home address, Young initially stated that he did not identify the home where the Plaintiff resided until the day of the raid. See Affidavit of Gary Young in Support of his Motion for Summary Judgment at 2, ¶ 6 (filing 70, Def. Ex. 3). However, in an affidavit submitted to the plaintiff's counsel after being asked to address the assertions by Hayes, Young stated that he identified the home in which Donna Aude resided a few days before the February 13 raid. Affidavit of Gary Young at 3, ¶ 6 (filing 79, Plf. Ex. 10). The plaintiff also notes that in this second affidavit, Young does not mention any journey to Belvidere with the defendant Hayes. Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment at 3, Widler v. Young, No. 4:99cv03110 (D.Neb.) [hereinafter Plaintiff's Brief].
According to the plaintiff, the evidence outlined above creates a genuine issue of material fact as to whether sufficient information was made available to alert the defendant Hayes that the plaintiff was not the person involved in the drug sales with the confidential informant. I agree with the plaintiff.
In their brief, the defendants correctly observe that "[t]he question in the present case is whether another officer (in light of the `totality of the circumstances'. . .), standing in Hayes' shoes and possessing the same information as he, might reasonably have come to the conclusion that he had probable cause to apply for the arrest warrant of Donna Widler." See Brief in Support of Motion for Summary Judgment of Defendants Nesbitt and Hayes at 12, Widler v. Young, No. 4:99cv03110 (D.Neb.) [hereinafter Defendants' Brief] (citing Malley, 476 U.S. at 345; Hoffman v Reali, 973 F.2d at 986). The confidential informant's statements that (1) he knew the suspect of the investigation as only Donna Stewart or Donna Terrell, and (2) he corrected the defendant Hayes when he referred to the suspect as Donna Aude, convince me that genuine issues of material fact preclude a finding as to whether the defendant Hayes acted reasonably in focusing his investigation on Donna Aude/Donna Widler and in thereafter searching the drivers' record database for Donna Widler, rather than for Donna Stewart or Donna Terrell. Furthermore, a material factual dispute also remains as to whether the defendant Hayes did, indeed, personally see the suspect during the controlled drug buys. This factual dispute also prevents me from determining, at this stage, whether the description obtained from the drivers' record database should have alerted Hayes to his error in investigating Donna Widler. Thus, given the defendant Hayes' obligation "to conduct a reasonably thorough investigation prior to arresting a suspect," I cannot find, as a matter of law, that the defendant Hayes acted reasonably in concluding that he had probable cause to apply for the arrest warrant of Donna Widler. See Kuehl, 173 F.3d at 650; Malley, 475 U.S. at 341. Finally, the confidential informant's assertions that (1) he described the location of where the suspect resided to the defendant Hayes, and (2) he informed Hayes that the suspect and William Aude were not married but were living together, also create material factual issues that prevent me from determining whether Hayes acted reasonably in relying on Sheriff's Young's information regarding the residential address for Donna Widler. Accordingly, for the reasons outlined above, I find that genuine issues of material fact remain as to whether "`minimal further investigation'" would have alerted Hayes to his errors See Kuehl, 173 F.3d at 650. The defendant Hayes' motion for summary judgment will therefore be denied.
Accordingly, based on the analysis above and my prior order granting, in part, the defendant Hayes' motion for summary judgment, the following claims remain against the defendant Hayes: (1) the unreasonable seizure, illegal detention, and unlawful arrest claims found in Count 1 of the plaintiff's Second Amended Complaint; and (2) the privacy claim found in Count 2 of the plaintiff's Second Amended Complaint, to the extent it is derived from allegations that Hayes violated the plaintiff's Fourth Amendment right to be free from unreasonable seizure. See filing 20 at 2-10; filing 61 at 3-4, 8-9.
B. Defendant Tom Nesbitt
In the first motion for summary judgment, the defendant Nesbitt asserted that he had "[no] part in the drafting of the arrest warrant" and "[was] merely involved in the service of a facially valid arrest warrant." Brief in Support of Motion for Summary Judgment of Defendants Nesbitt, Elwell, and Hayes at 20, Widler v. Young, No. 4:990cv03310 (D.Neb.). Citing the Eight Circuit's decision in Walden v. Carmac, 156 F.3d 861 (8th Cir 1998), for the proposition that "when it [is] clear that the alleged violation occurred because of alleged mistakes in an application for a warrant, then those defendants who had no part in the drafting of the application were entitled to Summary Judgment," the defendant Nesbitt argued that he was protected by the shield of qualified immunity. Id.In my prior order denying, in part, the defendant Nesbitt's motion, I noted that while Nesbitt supervised the defendant Hayes at the time of the events giving rise to the plaintiff's claims, "[t]here [was] no evidence . . . indicating that the defendant Nesbitt was involved, other than in his supervisory capacity, in the warrant application process." Filing 61 at 7. Nor did I find any evidence "suggesting that the defendant Nesbitt failed to train the defendant Hayes properly." Id.; see also Otey v Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997) (recognizing that a supervisor can be held liable for the constitutional violations of his subordinate only "`if he directly participated in the constitutional violation, or if his failure to train or supervise the offending actor caused the deprivation. . . .'" (citation omitted)). Nevertheless, I determined that "a genuine issue of material fact remain[ed] as to how it was determined to serve the warrant at the plaintiff's residence." Filing 61 at 7. I therefore concluded as follows:
It is unclear at this point whether the defendant Nesbitt, as the Sergeant in Charge of the Rural Apprehension Program who briefed the arresting officers in regard to the warrant, played a role in ascertaining the street address that corresponded with [the] post office box number [obtained by Hayes from the drivers' record database]. If the defendant Nesbitt was involved in making this determination, questions remain as to what source of information led him to the plaintiff's residence and whether this source may have alerted him to the error.Id.
In support of his present motion for summary judgment, the defendant Nesbitt again asserts that with respect to his role as the defendant Hayes' supervisor, he "had no action in determining where to serve the warrant and relied upon Inv. Hayes' ability and judgment." Defendants' Brief at 10; see also Affidavit of Tom Nesbitt at 2, ¶ 6 (filing 70, Def. Ex. 2) ("Affiant states that he was not involved in the acquisition of the arrest warrants or in the preparation of the arrest packets. Inv. Hayes was the only member of the Nebraska State Patrol who was involved in obtaining the arrest warrants and in determining the addresses upon where the arrests would be made."). He also observes that "[t]here is nothing in the record to show that reliance was misplaced or that he played an active role in the alleged misconduct of his subordinate." Defendants' Brief at 10 (citing Ramirez v. United States, 998 F. Supp. 425 (D.N.J. 1998) (recognizing that "the supervising official does not violate a victim's constitutional rights unless he or she has played `an affirmative part' in the alleged misconduct of the subordinates" (citation omitted))); see also Affidavit of Tom Nesbitt at 2, ¶ 6 (filing 70, Def. Ex. 2) ("Affiant relied upon the address supplied by Inv. Hayes and had no reason to doubt its veracity."). Furthermore, with respect to his role in the service of the warrant at the plaintiff's residence, the defendant Nesbitt again contends that "his actions were based on a facially valid arrest warrant for Donna Widler." Defendants' Brief. at 9. Accordingly, he claims that he is entitled to qualified immunity.
In opposing the motion for summary judgment, the plaintiff challenges the defendant Nesbitt's assertion that he acted reasonably in relying on the warrant and accompanying address, both of which were obtained by the defendant Hayes. The plaintiff, in support of her challenge, directs me once again to the affidavit of the defendant Hayes' confidential informant, Merrell V. Schoenrock. As discussed above, Schoenrock states that (1) he knew the subject of the controlled buys as only Donna Stewart or Donna Terrell; (2) he "never heard Donna Stewart referred to as Donna `Widler'"; (3) the "only times [he] heard Donna Stewart referred to as Donna `Aude" was when the name was mentioned to [him] by either Defendant Hayes or Defendant Nesbitt"; and (4) whenever Hayes and Nesbitt referred to the suspect as Donna Aude, he would correct them. Affidavit of Merrell v. Schoenrock at 2-3, ¶ 8 (filing 79, Plf. Ex. 7) Schoenrock also asserts that (1) he described to both Hayes and Nesbitt the location of the house where Donna Stewart resided, and (2) he told both defendants that Stewart resided with, but was not married to, William Aude. Id. at 2-3, ¶¶ 7, 8 (filing 79, Plf. Ex. 7). In addition, the plaintiff notes that with respect to Nesbitt's role in serving the warrants, he states that he "was aware of a facially valid warrant for the arrest of Donna Widler," but "does not state, nor is it apparent from the record, that he did not have knowledge of the arrest packets or the locations where the warrants were to be served." Plaintiff's Brief at 11 (emphasis in original) (citing Affidavit of Tom Nesbitt at 2, ¶ 7 (filing 70, Def. Ex. 2)). Based on the above evidence, the plaintiff suggests that the defendant Nesbitt acted unreasonably in (1) permitting the warrant to be served on Donna Widler after he had been told by the confidential informant that the suspect's name was Donna Stewart; and (2) permitting the warrant to be served at the residence identified by the defendant Hayes after the confidential informant had specifically advised him of the location where the suspect resided and that the suspect resided with William Aude. Thus, the plaintiff contends that the confidential informant's statements regarding his discussions with the defendant Nesbitt create genuine issues of material fact as to whether Nesbitt acted reasonably in permitting officers to serve the warrant on the plaintiff, Donna Widler. I disagree.
First, assuming, arguendo, that Schoenrock advised both Nesbitt and Hayes that (1) he knew the suspect only as Donna Stewart or Donna Terrell, and (2) the suspect resided with William Aude, these facts do not render Nesbitt's actions unreasonable The evidence indicates that it was the defendant Hayes, not Nesbitt, who, after initial discussions with the confidential informant, (1) conducted additional investigation, (2) decided to seek a warrant for Donna Widler, also known as Donna L. Stewart, Donna Bauer, and Donna Terrill ( see Warrant at 1, (filing 79, Plf Ex. 12)), and (3) obtained the street address for the warrant packets. It seems to me that Nesbitt acted reasonably in relying on the professional judgment of his subordinate. Thus, in the absence of evidence suggesting that the defendant Nesbitt was involved, other than in his supervisory capacity, in either the decision to seek a warrant for Donna Widler or in the efforts to obtain a street address for Widler, I find that Nesbitt acted reasonably in allowing the warrant to be served on the plaintiff See Otey, 121 F.3d at 1555 (recognizing that a supervisor can be held liable for the constitutional violations of subordinates only "`if he directly participated in the constitutional violation, or if his failure to train or supervise the offending actor caused the deprivation. . . .'" (citations omitted). Finally, even if the confidential informant did, indeed, describe the location of the house where Donna Stewart resided, there is no evidence that the informant also provided the defendant Nesbitt with a specific street address. See Affidavit of Merrell V. Schoenrock at 2, ¶ 7 (filing 79, Plf. Ex. 7) ("I described the house as being on the hill north of the tracks, on the northwest corner of an intersection, with the front of the house facing east."). Thus, it appears to me that Nesbitt acted reasonably in relying on the street address subsequently obtained by his subordinate, the defendant Hayes. Accordingly, the defendant Nesbitt's motion for summary judgment will be granted.
IT IS ORDERED that the defendant Hayes' Motion for Summary Judgment, filing 69, is denied.
IT IS FURTHER ORDERED that the defendant Nesbitt's Motion for Summary Judgment, filing 69, is granted.