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Kenneth Lee Foster v. City of Asheville et al

March 30, 2011



THIS MATTER is before the Court on Plaintiff's Complaint pursuant to 42 U.S.C. § 1983 and "Bivens Action"*fn1 (Doc. No. 1); Defendant's Motion to Dismiss or in the Alternative Motion for Summary Judgment (Doc. No. 18); Plaintiff's response (Doc. No. 23); Defendant's reply (Doc. No.29); Plaintiff's Motion to Strike (Doc. No. 22) and Defendant's response (Doc. No. 30). For the reasons stated below, Defendant's Motion for Summary Judgment is GRANTED and Plaintiff's Motion to Strike*fn2 is DENIED.


On December 10, 2009, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 and Bivens alleging that on February 5, 2009, Defendant Crowe in his individual and official capacity*fn3 and other unknown officers illegally searched his residence and unlawfully seized items from his home. Plaintiff alleges that the officers lacked a warrant and that they violated the knock-and-announce requirement. Plaintiff further alleges that Defendant Pound, a supervisor of internal affairs, failed to investigate his claim of misconduct against Officer Crowe. Plaintiff also named the City of Asheville as a defendant, claiming the city subjected him to an unreasonable search and seizure and false imprisonment. Plaintiff seeks compensatory and punitive damages. (Doc. No. 1 at 4).

The Court conducted an initial review of Plaintiff's Complaint and dismissed Defendant Pound and the City of Asheville. The Court also dismissed Plaintiff's warrantless search and Federal Torts Claim Act claims, but directed that the case proceed against Defendant Crowe pursuant to 42 U.S.C. § 1983 on Plaintiff's claim that Defendant Crowe violated the knock-and-announce rule. (Doc. No 4). The Court noted that Plaintiff had not named any federal actors as defendants and, therefore, the Court would analyze his Complaint under § 1983 and not pursuant to Bivens. (Id. n.1).*fn4

The Plaintiff alleges the following facts. On February 5, 2009, Defendant Crowe and several unknown police officers cut the power to plaintiff's residence, launched explosive devices through his window and forced their way into plaintiff's home, without a warrant. Plaintiff further contends that the defendants violated the Fourth Amendment knock-and-announce requirement prior to entering his residence, and he maintains that the Defendants are not immune from suit for violating the knock-and-announce requirement. (Doc. No. 1 at 2-3).

Defendant Crowe offers the following facts. On or about February 2, 2009, a federal search warrant for the premises of 37 Waters Street, Asheville, North Carolina, was issued by Magistrate Judge Dennis Howell. (1:09mj7, Doc. No. 1). The search warrant was issued on the application of probable cause submitted by DEA Special Agent Dan Guzzo. (1:09mj7, Doc. No. 1; 1:09cv442, Doc. No. 19-2: Guzzo Affidavit). On February 5, 2009, the search warrant was executed at the Foster residence. (Docket 1:09mj7: Doc. No. 4). At all times relevant to the Complaint, Defendant Crowe was a deputized officer assigned to the Drug Enforcement Administration Drug Task Force. (Doc. No. 19-1).

In preparation for the execution of the search warrant, Special Agent Guzzo requested the assistance of the Asheville Police Department's Emergency Response Team (ERT) to make initial entry into the residence. (Doc. No. 19-2: Guzzo Affidavit). Drug Task Force Officer Tracy Crowe drove the ERT to the Foster residence. (Doc. No. 19-3: Crowe Affidavit; Doc. No. 19-4: Mundy Affidavit). Special Agent Guzzo and Defendant Crowe remained outside the premises while the ERT made their way through the common door and up the stairs to the Foster residence. (Doc. No. 19-2: Guzzo Affidavit; Doc. No. 19-3 Crowe Affidavit; Doc. No. 19-4: Mundy Affidavit). ERT Officer Mundy positioned himself at the Foster residence front door while another ERT officer knocked on the front door and shouted "police, search warrant." (Doc. No. 19-4: Mundy Affidavit). Receiving no response, the ERT officers forced open the front door, tossed in a flash-bang distraction device to disorient the occupants, and made their way into the residence. (Id.). After securing the scene, the Drug Task Force officers, including Special Agent Guzzo and Tracy Crowe, entered the residence and proceeded to search the premises. (Doc. No. 19-2: Guzzo Affidavit; Doc. No. 19-3: Crowe Affidavit).

Upon completion of the search, officers seized, among other things, 302.3 grams of crack cocaine and 556.8 grams of cocaine hydrochloride. (Docket 1:09mj7: Doc. No. 4). Plaintiff was arrested at the scene and ultimately convicted of drug charges by a jury and sentenced to 360 months in prison. (Case No 1:09cr13: Doc. No. 347). Plaintiff's conviction and sentence were affirmed on appeal. (United States v. Foster, 2011 WL 857785 (4th Cir. Mar. 14, 2011) (unpublished).


Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant has the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Id. at 322 n.3. The nonmoving party may not rely upon mere allegations or denials of allegations in his pleadings to defeat a motion for summary judgment. Id. at 324. The nonmoving party must present sufficient evidence from which "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th Cir.1995).

When ruling on a summary judgment motion, a court must view the evidence and any inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. "'Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Ricci v. DeStefano, 129 S. Ct. 2658, 2677, 557 U.S. ___ (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).


The Court dismissed Plaintiff's warrantless search claims on initial review because the record confirmed that a warrant was issued prior to the search of his home. (Doc. No. 4 at 2-3). On appeal, the Fourth Circuit Court of Appeals concluded that there was no error with respect to the warrant's issuance. Foster, 2011 WL 857785. The only issue ...

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