United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
PHILIP
P. SIMON, JUDGE
Michael
Joe Franscoviak, a prisoner without a lawyer, filed a
complaint (ECF 1) against Deputy Sheriff Seth Barton, Deputy
Sheriff Cody Foust, and Deputy Sheriff Robert Hartley. A
document filed pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quotation marks and citations omitted). Nevertheless,
pursuant to 28 U.S.C. § 1915A, I must review the merits
of a prisoner complaint and dismiss it if the action is
frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief.
Franscoviak
alleges that, in August of 2018, his criminal trial ended in
a mistrial. A hearing was scheduled for September 18, 2018,
but he did not receive notice of the hearing and did not
appear at the hearing. Due to his failure to appear, a bench
warrant was issued. On October 4, 2018, Deputy Sheriff Seth
Barton, Deputy Sheriff Cody Foust, and Deputy Sheriff Robert
Hartley broke and entered his home at 3:00 a.m. to serve the
warrant. Franscoviak does not allege whether or not law
enforcement knocked and/or announced themselves prior to
breaking into his home in the middle of the night.
Franscoviak
argues that no warrant should have issued. The defendants
named in the lawsuit, however, are not responsible for the
issuance of the bench warrant. Franscoviak also argues that
the officers should have served the warrant at some more
reasonable hour - not 3:00 a.m. when him and his daughter
were sleeping. While courts have held that serving a warrant
in a home early in the morning does not necessarily violate
the Fourth Amendment, those cases for the most part concern
warrants served near sunrise, not 3:00 a.m. See,
e.g., United States v. Thomas, 429 F.3d 282,
286-87 (D.C. Cir. 2005) (making entry at 6:30 a.m. “was
reason enough” to believe suspect would be home);
United States v. Bervaldi, 226 F.3d 1256, 1267 (11th
Cir. 2000) (officers who executed arrest warrant around 6:00
a.m. could presume suspect was at home absent evidence to the
contrary about his schedule). But I cannot say that, as a
matter of law, law enforcement's conduct here was
reasonable.
Drawing
all inferences in favor of Franscoviak, as I must at this
stage of the litigation, I find he has stated a plausible
claim. He does not allege that law enforcement knocked or
announced themselves prior to breaking into his home. If they
did not do so, then this would be a viable claim. See
Hudson v. Michigan, 547 U.S. 586, 603 (2006) (Kennedy,
J., concurring) (noting that even if a failure to knock and
announce could not be a basis to suppress evidence, tort
remedies remain for any such constitutional violation).
Furthermore, Franscoviak says that officers came by his house
in the afternoon several weeks before the events of October
4, 2018. During this alleged encounter, Franscoviak says that
he was washing dishes in the kitchen while his daughter was
playing in the yard. He alleges that Deputy Barton arrived at
his home, chased his daughter and then temporarily detained
her in his vehicle-apparently without any justification.
Thus, Franscoviak alleges facts which tend to show law
enforcement knew he could be found at his house during the
day, and that he had a young daughter who lived with him.
Again, drawing all inferences in favor of the plaintiff, this
makes the decision to execute the warrant at 3:00 a.m. at
least potentially unreasonable and a violation of
Franscoviak's Fourth Amendment rights. See Gooding v.
United States, 416 U.S. 430, 464 (1974) (Marshall, J.,
dissenting) (“searches conducted in the middle of the
night involve a greater intrusion than ordinary
searches”).
Franscoviak
also alleges that the officers used excessive force against
him during the encounter. Upon entering the home, officers
found Franscoviak and his young daughter asleep. His daughter
was clinging to him in fear, and Franscoviak explained to the
officers that he needed to contact her mother to make
arrangements for the child. When Franscoviak started to leave
the room carrying his daughter, Deputy Sheriff Seth Barton
tased him and deployed his K9. Franscoviak's daughter was
forcibly removed from his arms, and Franscoviak was taken
into custody. “A claim that an officer employed
excessive force in arresting a person is evaluated under the
Fourth Amendment's objective-reasonableness
standard.” Abbott v. Sangamon Cty., Ill., 705
F.3d 706, 724 (7th Cir. 2013). The question in Fourth
Amendment excessive use of force cases is “whether the
officers' actions are objectively reasonable in light of
the facts and circumstances confronting them, without regard
to their underlying intent or motivation.” Graham
v. Connor, 490 U.S. 386, 397 (1989). “The test of
reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application, ”
Bell v. Wolfish, 441 U.S. 520, 559 (1979), the
question is whether the totality of the circumstances
justifies the officers' actions. Graham, 490
U.S. at 396. Here, additional fact finding may demonstrate
that the force used against Franscoviak was objectively
reasonable, but giving Franscoviak the inferences to which he
is entitled at this stage of the case, I find that he has
stated a claim of excessive force against Deputy Sheriff Seth
Barton on October 4, 2018.
Thereafter,
the officers searched Franscoviak's home even though they
did not have a search warrant, only a bench warrant. The
Fourth Amendment generally protects an individual's right
to be free from warrantless intrusions into the home.
United States v. Foxworth, 8 F.3d 540, 544 (7th Cir.
1993). When a warrant issues, officers must act within the
scope of that warrant. Lawson v. Veruchi, 637 F.3d
699, 703 (7th Cir. 2011). Here, the complaint can be read to
allege that the officers entered Franscoviak's home
pursuant to a bench warrant, secured Franscoviak, and then
searched his home without consent, a search warrant, or the
presence of exigent circumstances. Giving Franscoviak the
inferences to which he is entitled at this stage, he has
alleged enough to proceed further on this claim.
For
these reasons, the court:
(1)
GRANTS Michael Joe Franscoviak leave to proceed against
Deputy Sheriff Seth Barton, Deputy Sheriff Cody Foust, and
Deputy Sheriff Robert Hartley for compensatory and punitive
damages for the execution of the arrest warrant at 3:00 a.m.
on October 4, 2018, in violation of the Fourth Amendment;
(2)
GRANTS Michael Joe Franscoviak leave to proceed against
Deputy Sheriff Seth Barton for compensatory and punitive
damages for using excessive force against him on October 4,
2018, in violation of the Fourth Amendment;
(3)
GRANTS Michael Joe Franscoviak leave to proceed against
Deputy Sheriff Seth Barton, Deputy Sheriff Cody Foust, and
Deputy Sheriff Robert Hartley for compensatory and punitive
damages for conducting a search on October 4, 2018, that fell
outside the scope of the bench warrant authorizing Michael
Joe Franscoviak's arrest, in violation of the Fourth
Amendment;
(4)
DIRECTS the clerk and the United States Marshals Service to
issue and serve process on Deputy Sheriff Seth Barton, Deputy
Sheriff Cody Foust, and Deputy Sheriff Robert Hartley at the
Pulaski County Sheriff's Department with a copy of this
order and the complaint (ECF 1) as required by 28 U.S.C.
§ 1915(d);
(5)
ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), Deputy
Sheriff Seth Barton, Deputy Sheriff Cody Foust, and Deputy
Sheriff Robert Hartley to respond, as provided for in the
Federal Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b),
to the claims for ...