Submitted: April 4, 2017
from United States District Court for the District of North
Dakota - Bismarck
SMITH, Chief Judge, ARNOLD and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
prisoner Charles Odom appeals the district
court's grant of summary judgment and dismissal
with prejudice in favor of Kenan Kaizer, a former Bismarck
police officer, in Odom's 42 U.S.C. § 1983 action
seeking monetary damages. Odom alleges that Kaizer violated
his constitutional rights by deliberately or recklessly
giving partially inaccurate testimony in a probable cause
hearing. After two prior remands-see Odom v. Kaizer,
638 F.App'x 553 (8th Cir. 2016) (per curiam); Odom v.
Kaizer, 417 F.App'x 611 (8th Cir. 2011) (per
curiam)-the district court found that Kaizer is entitled to
qualified immunity. Having jurisdiction under 28 U.S.C.
§ 1291, we affirm.
review de novo the district court's grant of summary
judgment, "viewing all evidence and drawing all
reasonable inferences in favor of the nonmoving party."
Jones v. Frost, 770 F.3d 1183, 1185 (8th Cir. 2014).
"Summary judgment is proper when there is no genuine
dispute of material fact and the prevailing party is entitled
to judgment as a matter of law." Id.
April 25, 2005, Kaizer gave partially inaccurate oral
testimony in a probable cause hearing that generated an
arrest warrant for Odom for charges to which Odom eventually
pled guilty, including felony possession of drug
paraphernalia and misdemeanor possession of marijuana.
incident relevant to Kaizer's testimony occurred fifteen
months earlier in January 2004 after Bismarck police
responded to a 911 call from Riddle Johnson who had locked
himself in a hotel bathroom at the Select Inn and was seeking
police assistance because Odom was threatening him with
physical harm for failing to pay a drug debt. Upon entering
the hotel room where Johnson was locked in the bathroom,
officers found drug paraphernalia in plain view along with
Odom, Johnson, and Galen Smith-to whom the room was
registered. Kaizer, a Bismarck drug task force detective, was
called to the scene by responding officers and assumed the
role of lead investigator. Odom admitted owning a duffel bag
containing a small amount of marijuana located in a vehicle
in the hotel parking lot. Odom was the registered occupant of
a different hotel room in the Select Inn at the time of the
the probable cause hearing fifteen months later in April
2005, Kaizer accurately gave sworn oral testimony that (1)
Johnson told officers that Odom threatened to physically harm
him if he didn't pay his drug debt, and (2) drug
paraphernalia with visible drug residue was found in the room
in which Odom was present. However, Kaizer inaccurately
testified (1) from memory, that the room was registered to
Odom when it was actually registered to Smith, and (2) from
faulty interpretation of an evidence receipt, that the
marijuana was found in the hotel room when it was actually
found in Odom's duffel bag in a vehicle in the parking
March 20, 2007, Odom filed his first § 1983 action
against multiple defendants, including Kaizer, alleging false
information was provided to support his arrest and seeking
dismissal of state charges along with damages for pain,
suffering, and mental anguish. We summarily affirmed the
district court's preservice dismissal of that case.
Odom v. Burleigh Cnty. Detention Ctr., 369
F.App'x 767, 768 (8th Cir. 2010) (per curiam).
December 2, 2010, Odom filed this § 1983 action pro
se seeking monetary damages and naming only Kaizer as a
defendant. Odom alleged that Kaizer violated his
constitutional rights by intentionally or recklessly
providing false information in support of the arrest. After
the district court's preservice dismissal, this court
reversed and remanded finding that Odom's allegations
that Kaizer "knowingly gave false information while
testifying in support of issuance of an arrest warrant . . .
were sufficient to state a claim that his Fourth Amendment
rights were violated." Odom, 417 F.App'x at
611 (noting that a "warrant based on [an] affidavit
containing deliberate falsehood or reckless disregard for
truth violates [the] Fourth Amendment; [an] official who
causes such deprivation is subject to § 1983
liability" (citing Bagby v. Brondhaver, 98 F.3d
1096, 1098 (8th Cir. 1996))).
the district court granted summary judgment to Kaizer
concluding that Odom's guilty plea was a complete defense
to Odom's § 1983 claim. However, we reversed and
remanded again, finding that Odom's guilty plea did not
foreclose his § 1983 claim because Odom's claim was
for violation of his constitutional rights in connection with
the issuance of the arrest warrant-not for arrest without
probable cause. Odom v. Kaizer, 638 F.App'x at
554. We observed that an official is subject to § 1983
liability for violation of the Fourth Amendment if he or she
obtains a "warrant based upon an affidavit containing
'deliberate falsehood' or 'reckless disregard for
the truth, '" citing Bagby, 98 F.3d at 1098
(quoting Franks v. Delaware, 438 U.S. 154, 171
(1978)). Id. (internal quotation marks omitted).
However, we noted that "qualified immunity is
appropriate for [a] defendant accused of submitting [a]
recklessly false affidavit if a corrected affidavit would
still provide probable cause to arrest or search, "
again citing Bagby. Id. (internal quotation
marks omitted). We advised that "the district court
should decide whether Kaizer is entitled to qualified
immunity on the record before the court." Id.
at 554 n.1.
our instructions to rule on the qualified immunity claim, the
district court found that Kaizer is entitled to qualified
immunity, and therefore, to summary judgment, because his
faulty testimony was not knowing, reckless, or intentional.