Heft, Cleta v. Carpenter, Carl ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4110
CLETA HEFT,
Plaintiff-Appellant,
v.
CODY MOORE, CARL CARPENTER, ED ROOT,
JEFF MCCLAIN, and RIC HUGHES,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 01 C 2131—David G. Bernthal, Magistrate Judge.
____________
ARGUED NOVEMBER 5, 2003—DECIDED NOVEMBER 26, 2003
____________
Before FLAUM, Chief Judge, and BAUER and WILLIAMS,
Circuit Judges.
FLAUM, Chief Judge. Cleta Heft filed suit against police
officers who searched her home alleging that the officers
violated her civil rights by injuring her, causing unreason-
able property damage to her home, and planting evidence.
The district court granted summary judgment in favor of
the defendants accused of causing unreasonable property
damage and planting evidence. After Heft presented all
of her evidence at trial regarding injuries caused by
the search, the district court granted the sole remaining de-
fendant a directed verdict. Heft now appeals the district
2 No. 02-4110
court’s order of summary judgment and the directed verdict.
For the reasons stated herein, we affirm.
I. BACKGROUND
On the evening of October 21, 1999, officers from the
Illinois State Police and Decatur Police Department
executed a valid search warrant at Cleta Heft’s home.
Sergeant Kilby was in charge at the scene and the ranking
officer. Defendants Carl Carpenter, Ed Root, Jeff McClain,
Ric Hughes, and Cody Moore were officers present when the
warrant was executed.
According to Heft, she was at home watching television
when she heard a noise at the front door. She started
walking towards the door and was two or three feet away
when police officers used a battering ram to gain entry.
Heft heard shouts telling her to get down. Heft claims that
as she turned to lay down, she was hit in the lower back
and was knocked to the floor. Simultaneously, she heard a
loud explosion from the flash-bang device which the officers
had thrown into her home. At some point during this
sequence, Heft suffered injury to her knee and hand and a
large bruise on her back.
The officer who struck Heft’s door open with the battering
ram was Defendant Moore. As the door opened, he saw the
door hit Heft in the upper body and face. Officer Mullins
also saw Heft struck in the face by the door, and then saw
her fall backwards. Officers Coventry and Squires were the
first two officers to enter Heft’s home. Officers Moore and
Mullins then entered the home, followed by Officers Bell,
McClain, Kilby, Carpenter, and Hughes. When the officers
entered the home, Heft was on the floor. All of the officers
deny striking Heft or seeing her struck by another officer.
Heft cannot identify who or what struck her, but she does
state that she was not struck by the door.
No. 02-4110 3
Defendants Root, Hughes, McClain, and Carpenter all
testified that when they entered Heft’s home it was clut-
tered and disorderly. It was so messy that the officers be-
lieved it would be difficult to move around and search. Heft
claims that her home was in a “state of devastation”
immediately after the search, but provides no evidence
regarding the condition of her home prior to the search.
During the search of Heft’s home, Carpenter found a
metal box containing drugs and drug paraphernalia in the
front bedroom. When she was asked about it, Heft stated
she was not aware it was there and knew nothing about it.
Heft’s son, who lived in her front bedroom until 1997 and
still had many belongings there, also denied knowledge of
the contraband. Heft’s son still had a key to the home, as
did Heft’s sister who sometimes stayed in the front bedroom
overnight. Heft’s second son visited Heft approximately
once a month and also had access to the front bedroom. At
her deposition, Heft stated that it was possible that the box
belonged to one of her sons. Criminal charges were never
brought against Heft based on the contents of the box.
II. DISCUSSION
On appeal, Heft argues that the district court erred by: (1)
granting summary judgment to Defendants Root, Hughes,
and McClain on the issue of whether they used excessive
violence in searching Heft’s home; (2) granting summary
judgment to Defendant Carpenter on the issue of whether
he planted contraband in Heft’s home; (3) granting Defen-
dant Moore’s motion in limine excluding Heft’s evidence
that the police searched the wrong house and planted
contraband at her house; and (4) granting Defendant Moore
a directed verdict on the issue of whether he injured Heft
during the search.
4 No. 02-4110
A. Jurisdiction
As a preliminary matter we must address this Court’s
jurisdiction. In this case, Magistrate Judge Bernthal
granted Heft’s motion to dismiss various defendants before
Heft and all of the defendants had consented to proceed
before a magistrate judge. Some of the dismissed defen-
dants later filed written consent to proceed before the mag-
istrate, while others never filed written consent but simply
abandoned the case once they were dismissed. If the mag-
istrate’s dismissals were invalid due to a lack of authority,
those defendants would remain parties to the case and we
would lack jurisdiction because there would be no final
order as to all defendants as is required by 28 U.S.C. § 1291and Federal Rule of Civil Procedure 54(b).
The Federal Magistrate Act of 1979 authorized magistrate
judges to conduct “any or all proceedings in a jury or
nonjury civil matter and order the entry of judgment in the
case,” as long as the magistrates are “specially desig-
nated . . . by the district court” and are acting “[u]pon
consent of the parties.” 28 U.S.C. § 636(c)(1). Although 28
U.S.C. § 636(c)(2) and Federal Rule of Civil Procedure 73(b)
provide the method for gaining formal consent from the
parties, the Supreme Court has recently held that consent
also “can be inferred from a party’s conduct during litiga-
tion.” See Roell v. Withrow, 123 S. Ct. 1696, 1699 (2003).
The Court further held that as long as the parties have
voluntarily consented, the magistrate has full civil jurisdic-
tion under § 636(c)(1) even if the technical requirements of
§ 636(c)(2) and Federal Rule of Civil Procedure 73(b) are not
met. See id. at 1702.
Here, all of the current parties to the litigation volun-
tarily consented to proceed before a magistrate judge. Both
the plaintiff and defendants entered general appearances
before the magistrate and participated in hearings before
the magistrate. As for the dismissed defendants, all but
No. 02-4110 5
three signed formal written consent after their dismissals.
Prior to the written consent, these defendants evidenced
their voluntary consent by participating in proceedings
before the magistrate. Therefore, these defendants properly
consented to the magistrate’s jurisdiction and were appro-
priately dismissed.
This leaves three dismissed defendants who did not
appear or otherwise consent to proceed before a magistrate.
However, they are effectively no longer parties to this
litigation because the plaintiff voluntarily dismissed all
claims against them and then abandoned pursuing those
claims. This case is analogous to Baltimore Orioles, Inc. v.
Major League Baseball Players Ass’n, 805 F.2d 663, 667 (7th
Cir. 1986), in which this Court held that an order that
effectively ends the litigation on the merits is appealable as
a final order even if the lower court did not formally enter
judgment on a separate claim if that separate claim was
abandoned. Heft has long abandoned her claims against
these defendants, and this Court therefore has jurisdiction
over the appeal.
B. Property Destruction
Heft first challenges the district court’s grant of summary
judgment to Defendants Root, Hughes, and McClain, who
Heft accused of destroying her personal property. It is true
that the Fourth and Fourteenth Amendments provide a
remedy when a citizen’s property is unreasonably damaged
during a search. See United States v. Ramirez, 523 U.S. 65,
71 (1998) (holding that the “general touchstone of reason-
ableness which governs Fourth Amendment analysis,
governs the method of execution of the warrant. Excessive
or unnecessary destruction of property in the course of a
search may violate the Fourth Amendment, even though
the entry itself is lawful and the fruits of the search are not
subject to suppression.”) (citations omitted); see also Daniels
6 No. 02-4110
v. Southfort, 6 F.3d 482, 486 (7th Cir. 1993). However, in
this case Heft failed to show that her property was damaged
at all, and thus the grant of summary judgment was proper.
Summary judgment is proper where “the pleadings, dep-
ositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). To determine whether there is a genuine
issue of material fact, courts construe all facts in the light
most favorable to the non-moving party and draw all
reasonable and justifiable inferences in favor of that party.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
Even construing all of the facts in the light most favorable
to Heft, however, there is no genuine issue of material fact.
The entirety of evidence presented by Heft in support of her
claim that the defendants used unreasonable force in the
search of her home was her allegation that her home was in
a state of devastation immediately after the police raid.
While the defendants agreed that they moved several items
that belonged to Heft during the course of the search, they
also alleged that her house was cluttered and disorderly
prior to the search. Heft provided no evidence regarding the
pre-search condition of her home or any specific evidence
that any property item was damaged. In other words, Heft
failed to provide evidence that the police harmed her
property at all, let alone provide evidence that the police
harmed her property unreasonably.1 For that reason, the
1
In further support of her appeal, Heft cites to her own affidavit
which offers slightly more evidence in support of her claim of
(continued...)
No. 02-4110 7
district court properly granted summary judgment in favor
of Officers Root, Hughes, and McClain.
C. Planted Evidence
Similarly, Heft has offered no affirmative evidence that
Officer Carpenter planted evidence during the search. Al-
though we must draw all reasonable inferences in favor of
Heft, summary judgment is proper when the plaintiff’s case
consists of factually unsupported claims. Additionally, when
the defendant presents evidence in his favor, the plaintiff
cannot rest on the pleadings but must set forth “specific
facts showing that there is a genuine issue for trial.” Fed.
R. Civ. P. 56(e). Specific “facts” require more than just
speculation or conclusory statements. See Hall v. Bodine
Elec., 276 F.3d 345, 354 (7th Cir. 2002); Abrams v. Walker,
307 F.3d 650, 657 (7th Cir. 2002).
Heft’s response to the defendants’ motion for summary
judgment was completely devoid of specific facts showing
1
(...continued)
unreasonable police behavior. Specifically, the affidavit claims
that the police “destroyed various personal property and threw
numerous items all over the home.” Although Heft’s recollection
of events was available at the time of summary judgment, this
affidavit was not submitted until after the district court granted
the defendants’ motion for summary judgment when Heft filed a
motion to reconsider. In order for a court to consider new evidence
in a motion to reconsider, the movant must show that the
evidence “could not, through the exercise of due diligence,” have
been presented to the district court before the summary judgment
decision was made. See Rothwell Cotton Co. v. Rosenthal, 827 F.2d
246, 251 (7th Cir. 1987). Heft has provided no arguments regard-
ing why this affidavit constitutes new evidence, and has not
challenged the district court’s refusal to accept this new evidence.
We therefore decline to consider Heft’s untimely affidavit.
8 No. 02-4110
that Carpenter planted the drugs found in Heft’s home. The
entirety of Heft’s evidence against Carpenter was that he
had motive to plant the drugs because he was the officer in
charge of the raid, and that he had the means and opportu-
nity to plant the drugs because he was a narcotics officer
who found the contraband. Heft argues that because she
and her son deny having knowledge of the drugs, that
leaves only Carpenter as the source of the drugs. This “evi-
dence” was unsupported by record citations or analogous
cases and defies both the facts of this case and common
sense. First of all, there is no evidence that Carpenter was
in charge of the raid. The ranking officer in charge at the
scene was Sergeant Kilby. But even if Carpenter was in
charge at the scene of the search, no reasonable inference
could be drawn that he would therefore have motive to
plant evidence. Second, Heft’s deduction via process of
elimination that Carpenter planted the drugs because Heft
and her son deny knowledge of them is clearly flawed. Both
Heft’s sister and Heft’s second son also had access to the
front bedroom. Furthermore, Heft only stated that she did
not know that the box with the drugs was in the front
bedroom—she never denied that it could have been there
prior to the search. Finally, Heft admitted in her deposition
that her son could have left the box in the front bedroom.
The bare conclusion that Carpenter planted the contraband
is therefore unsupported and the district court properly
granted Officer Carpenter summary judgment.
D. Evidentiary Rulings
Once Carpenter, Root, Hughes and McClain were granted
summary judgment, the case proceeded to trial on the issue
of whether Officer Moore used unreasonable force against
Heft. Heft contends that she should have been allowed to
present evidence at trial that drugs were found at her home
and that Carpenter planted the drugs. Heft also argues that
No. 02-4110 9
she should have been able to present evidence that the
police searched the wrong house on October 21, 1999. The
district court disagreed and excluded this evidence in a
motion in limine, which Heft now appeals.
We review district court’s rulings on motions in limine for
an abuse of discretion. See Binks Mfg. Co. v. National Presto
Industries, 709 F.2d 1109, 1115 (7th Cir. 1983). Our role is
limited as “decisions regarding the admission and exclusion
of evidence are peculiarly within the competence of the
district court.” See Ellis v. City of Chicago, 667 F.2d 606,
611 (7th Cir. 1981). Using these standards, we agree that
the exclusion was proper under Federal Rule of Evidence
403.2
The sole issue at trial was whether Defendant Moore
struck Heft with a battering ram. Heft’s groundless sup-
positions that another officer at the house planted drugs
had little probative value (if any probative value at all) to
the issue of Heft’s injuries, and created the substantial risk
of confusion of the issues at trial. Similarly, Heft’s belief
that the officers were searching the wrong house also had
little or no probative value in light of the fact that the
validity of the warrant was uncontested. Furthermore, the
issue increased the probability of confusion of the issues at
trial. We therefore affirm the district court’s exclusion of
the evidence.
E. Directed Verdict
After Heft presented all of her evidence against Officer
Moore, the district court granted a directed verdict in
2
Federal Rule of Evidence 403 states that relevant evidence may
be excluded if “its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or mislead-
ing the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”
10 No. 02-4110
Moore’s favor. Heft now appeals, arguing that the directed
verdict was improper. We disagree.
Heft admits that no one, including Heft, saw Moore strike
Heft. However, Heft still contends that Moore was the only
one who could have given Heft the bruise on her back
because she was hit at the exact moment the flash-bang
device went off. Heft theorizes that immediately after
Moore used the battering ram to open the door, he waited
until the flash-bang device was thrown into the house, and
then used the two-second gap before the device went off to
“jump[ ] through the door off to the side, away from the
diversionary device, and [strike] the plaintiff as she turned
to run from the front door. He easily could have then
stepped back out 2 or 3 feet.”
To avoid a directed verdict, the plaintiff must do more
than argue that the jury might have disbelieved all of the
defendant’s witnesses. Rather, the plaintiff must offer sub-
stantial affirmative evidence to support her argument. See
Perfetti v. First Nat’l Bank, 950 F.2d 449, 456 (7th Cir.
1991). A directed verdict should be granted in favor of the
defendant “if the evidence on which [the plaintiff] relies is
in irreconcilable conflict with immutable laws of physics or
is wholly inconsistent with established and uncontroverted
physical facts.” Wright & Miller, Federal Practice and
Procedure § 2527 (1971).
In this case, Heft offered no affirmative evidence to show
that Moore was responsible for the bruise on her back.
Considering that there were approximately six other police
officers at the scene, all waiting to storm into the house
once the door was opened, it is implausible to conclude that
Moore was able to jump three feet into the house after the
door was opened, strike Heft, and then jump back out,
without any of the other officers seeing him. This is es-
pecially true since it is undisputed that the officer who
threw the flash-bang device into the home was standing
No. 02-4110 11
in front of Moore during this time period. Moreover, all
of the officers agree that Moore was the third or fourth
officer to enter the house, and not the first. Furthermore,
Heft’s testimony contradicts her own theory. She testifies
that she was hit at the exact same time that the flash-bang
device went off. Yet it is uncontested that there were no
officers in the house when the device exploded.
Heft offers no case law in support of her claim that the
district court improperly granted the defendant a directed
verdict. The failure to cite cases in support of an argument
waives the issue on appeal, despite counsel’s contentions at
oral argument that case law is unnecessary “window
dressing.” See Fed. R. App. P. 28(a)(9)(A); United States
v. Mason, 974 F.2d 897, 901 (7th Cir. 1992) (failure to cite
case law in support of argument waives appellate review);
NutraSweet Co. v. X-L Eng’g Co., 227 F.3d 776, 786 (7th
Cir. 2000). But even if we were to reach the merits, it is
clear that Heft offered no evidence to support her claim that
Moore injured her back. Heft’s unsupported theory is not
enough to avoid a directed verdict, and we therefore affirm.
III. CONCLUSION
The decisions of the district court are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-26-03