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Garner v. O'Brien

United States District Court, D. North Dakota

March 21, 2014

Anthony Craig Garner, Plaintiff,
v.
Adam O'Brien, Donald Walter Kern, Jr., Cherie L. Clark, Paul David McKeever, Michael Bernier, and Sara Gunther, Defendants.

REPORT AND RECOMMENDATION

KAREN K. KLEIN, Magistrate Judge.

Plaintiff Anthony Craig Garner, who is incarcerated at the Cass County Jail, filed a complaint pursuant to 42 U.S.C. § 1983. (Complaint, Doc. #5). Garner also filed a motion for a preliminary injunction. (Motion, Doc. #16). Although the court had not yet conducted its initial review of the complaint pursuant to 28 U.S.C. § 1915A, and had not ordered service upon any of the defendants, Adam O'Brien, Cherie L. Clark, Sara Gunther, and Michael Bernier filed a response to the motion for a preliminary injunction. (Response, Doc. #18). The court now considers the complaint pursuant to 28 U.S.C. § 1915A and the motion for a preliminary injunction.[1]

Summary of Recommendation

Defendants Donald Walter Kern, Jr. and Paul David McKeever are private citizens who were not acting under color of state law. Officers Adam O'Brien, Sara Gunther, and Michael Bernier[2] had probable cause to arrest Garner for aggravated assault. Assistant State's Attorney Cherie L. Clark had probable cause to prosecute Garner. Garner has failed to state a claim in his complaint upon which relief can be granted. It is RECOMMENDED that Garner's complaint be DISMISSED with prejudice. Pursuant to Younger v. Harris , 401 U.S. 37 (1971), the court should refrain from enjoining the state criminal proceedings in which Garner is a defendant. It is RECOMMENDED that Garner's motion for a preliminary injunction be DENIED.

Background

Garner is a pretrial detainee who is charged with aggravated assault in two separate state cases. See State v. Garner, Cass County, Case No. 09-2013-CR-03601; State v. Garner, Cass County 09-2013-CR-03603. Garner alleges he was arrested and detained without probable cause by defendants Michael Bernier, Sara Gunther, and Adam O'Brien, who are police officers. (Complaint, Doc. #5, pp. 2-3). Garner contends he is innocent, and that Assistant State's Attorney Cherie L. Clark is pursuing charges against him in bad faith and to harass Garner. Id. at pp. 3-4.

Garner states in his complaint that on October 6, 2013, Officers Bernier and Gunther arrested Garner without probable cause. (Complaint, Doc. #5, p. 3). Garner contends that Paul David McKeever attacked him and that he acted in self-defense. Id . Garner admits that McKeever "misled" the officers about what occurred. Id.

An Incident Report submitted by defendants is consistent with plaintiff's admission in his complaint that McKeever "misled" or told the officers that he was attacked by Garner. (Incident Report, Doc. #19-1). McKeever, who was supervising Garner at a job site, reported to Officer Bernier that Garner "punched him in the mouth with a closed fist" after McKeever ordered Garner to "clock out and go home for the evening." Id . The Incident Report states that the officers at the scene observed that McKeever was missing two teeth and had a swollen lip. Id.

The court takes judicial notice of a petition for habeas relief filed with this court by Garner. See Garner v. Laney, D.N.D. Case No. 3:13-cv-100, Petition, Doc. #3. Garner's petition for habeas relief is consistent with the admission in his complaint. In the petition Garner admits that McKeever "falsely accused" him of assault. Id. at p. 2. Garner states that he "struck" McKeever one time in self defense. Id.

Garner states in his complaint that he was arrested without probable cause by Officer O'Brien after another incident and that the arrest was based "on a bald allegation made by defendant Donald Walter Kern, Jr." (Complaint, Doc. #5, p. 3). Garner contends that Kern "knowingly faked an injury... for the sole purpose of causing the plaintiff to be arrested." Id . Garner admits that Kern "lied" to the officer when Kern stated that Garner "struck" him and knocked him unconscious. Id.

A second Incident Report submitted by defendants is consistent with plaintiff's admission in his complaint that Kern reported to Officer O'Brien that Garner "attacked him and punched him in the head 2-4 times knocking him unconscious." (Incident Report, Doc. #19-3). Kern stated that when he awoke Garner was "kicking him in the chest and stomach." Id . The Incident Report states that the officers at the scene observed that Kern "had a slight red mark on his chest." Id.

The habeas petition filed with this court by Garner is consistent with Garner's admission in his complaint. See Garner v. Laney, D.N.D. Case No. 3:13-cv-100, Petition, Doc. #3. In the petition Garner states that Kern "falsely accused" Garner of "assaulting" Kern and "lied to police by falsely telling them he was injured." Id. at p. 3. Garner also states in the petition that Kern faked an injury. Id.

Garner seeks to enjoin the criminal prosecutions. (Complaint, Doc. #5, p. 4); (Motion, Doc. #16); (Brief in Support of Motion, Doc. #17). Garner also requests a declaration that the defendants violated his constitutional rights, ...


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