Eckert v. Dougherty

658 F. App'x 401
CourtCourt of Appeals for the Tenth Circuit
DecidedSeptember 14, 2016
Docket15-2204
StatusUnpublished
Cited by6 cases

This text of 658 F. App'x 401 (Eckert v. Dougherty) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eckert v. Dougherty, 658 F. App'x 401 (10th Cir. 2016).

Opinion

ORDER AND JUDGMENT *

Harris L Hartz Circuit Judge

David Eckert appeals the district court's judgment in favor of Deputy District Attorney Daniel Dougherty in a civil-rights suit under 42 U.S.C. § 1983. Concluding that Mr. Dougherty was entitled to qualified immunity, the district court granted his motion to dismiss. The court also denied Mr. Eckert’s motion to amend his complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

BACKGROUND

I. Factual Background

Because the district court disposed of Mr. Eckert’s claims on a motion to dismiss, the facts are taken from Mr. Ec-kert’s complaint unless otherwise indicated.

On January 2,2013, police officer Robert Chavez stopped Mr. Eckert for failing to obey a stop sign in Deming, New Mexico. Officer Chavez said that while patting Mr. Eckert down, he noticed his “posture to be erect and he kept his legs together.” Aplt. App. at 17 (internal quotation marks omitted). Another officer arrived and issued Mr. Eckert a citation. Officer Chavez told Mr. Eckert he was free to go, but then began questioning him. Officer Chavez decided to search Mr. Eckert’s car; it is disputed whether Mr. Eckert consented to the search.

Hidalgo County Sheriff Deputies David Arredondo and Patrick Green brought a “narcotics canine” to search the vehicle. Id. The officers reported that the dog alerted to the driver’s seat. “[Officer Bobby] Oros-co and [Deputy] Arredondo then informed [Officer] Chavez that [Mr. Eckert] was known in Hidalgo County to insert drugs into his anal cavity.” Id. This information was false.

Officer Chavez contacted Mr. Dougherty about getting a search warrant for Mr. Eckert’s vehicle and person. The officer wrote an affidavit in support of the warrant stating that the search was “to in- *404 elude but not [be] limited to [Mr. Eckert’s] anal cavity.” Id. at 18 (internal quotation marks omitted). The affidavit primarily relied on the following facts to establish probable cause: (1) Mr. Eckert’s posture as observed by Officer Chavez (standing erect with his legs together); (2) the dog alert; and (3) the statement by the law-enforcement officer(s) (identified in the affidavit only as a Hidalgo County K-9 officer) that Mr. Eckert “was known to insert drugs into his anal cavity and had been caught in Hidalgo County with drugs in his anal cavity.” Dist. Ct. CM7ECF Doc. 26-1 at 2. 1 Mr. Dougherty reviewed the affidavit and approved it, and a judge signed the search warrant.

Officer Chavez took Mr. Eckert to the Deming Emergency Room to execute the warrant. The attending physician, however, refused to conduct an exam on the ground that it was medically unethical. Mr. Dougherty then authorized Officer Chavez to transport Mr. Eckert to another medical facility.

Officer Chavez and an Officer Hernandez took Mr. Eckert to Gila Regional Medical Center. A doctor there conducted an abdominal X-ray, which showed no foreign object in Mr. Eckert’s rectum or elsewhere in his abdomen. Dr. Robert Wilcox then performed a digital rectal exam and reported that he felt something soft that could have been stool. He referred Mr. Eckert to Dr. Okay Odocha for a surgical consultation. Dr. Odocha performed a second digital rectal exam and detected only stool. Nevertheless, he ordered that Mr. Eckert be administered enemas until all results were “clear.” Id. at 20 (internal quotation marks omitted). Mr. Eckert was subjected to three enemas, but his bowel movements produced no narcotics. After the third enema, a doctor took a chest X-ray, which also revealed no evidence of narcotics. Nevertheless, Dr. Odocha ordered a colonoscopy, which was conducted in the early morning of January 3. The colonoscopy also revealed no evidence of narcotics.

II. Procedural Background

Mr. Eckert filed a civil-rights complaint against Mr. Dougherty as well as the officers and medical personnel. Only the claims against Mr. Dougherty are at issue in this appeal. Those claims are based on two actions—the approval of the search warrant and affidavit, and the authorization for officers to take Mr. Eckert to Gila Regional Medical Center.

Mr. Dougherty moved to dismiss on the grounds of absolute and qualified immunity. 2 Mr. Eckert opposed dismissal. After holding a hearing, the district court entered a short order granting dismissal. In this order the court found that prosecuto-rial immunity protected Mr. Dougherty from liability for approving the search warrant. The court dismissed the complaint without prejudice to amendment, stating, “Plaintiff David Eckert may file a motion for leave to amend the Complaint to allege that Dougherty directed police *405 officers to conduct an unlawful search.” Aplt. App. at 108.

Four months later, Mr. Eckert moved to amend his complaint. The proposed amended complaint did not seek to add any new theories, and Mr. Eckert conceded that he “does not and cannot allege that Dougherty directed the officers to conduct an unlawful search.” Id, at 112. Instead, the amended complaint presented additional factual allegations about a conversation between Mr. Dougherty and the attending physician at the Deming Emergency Room that purportedly showed that Mr. Dougherty was aware that initial tests could lead to false positives and additional (and possibly more invasive) tests. Mr. Ec-kert represented that he was not aware of the details of the conversation before filing his complaint.

The district court held a hearing on the motion to amend, at which it clarified that the basis for its decision had been qualified immunity, not prosecutorial immunity. 3 It discussed its views of the various issues and denied the motion to amend, a decision it soon memorialized in a short written order. The district court later issued a comprehensive memorandum opinion discussing its reasons for granting the motion to dismiss and denying the motion to amend. In this order it held the following: the search warrant affidavit established probable cause; the search warrant’s description of the area to be searched was sufficiently particular; Mr. Dougherty did not violate Mr. Eckert’s constitutional rights by allowing officers to take him to Gila Regional Medical Center; all procedures after the first digital exam and the first X-ray were unconstitutional; but Mr. Dougherty neither knew nor reasonably should have known that his actions would lead to constitutional violations. The district court further held that even if Mr. Dougherty had violated Mr. Eckert’s constitutional rights, the law was not clearly established. It denied the motion to amend on the grounds that it was untimely and was futile because the proposed additional facts failed to show that Mr. Dougherty knew or should have known that his actions would cause others to violate Mr. Eckert’s constitutional rights. Mr.

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658 F. App'x 401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eckert-v-dougherty-ca10-2016.