Mahle v. Municipality of Anchorage et al
Order on Motion to Dismiss
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
MUNICIPALITY OF ANCHORAGE,
ORDER AND OPINION
Motion at Docket 55]
I. MOTION PRESENTED
At docket 55, defendants Municipality of Anchorage, Steven Boltz, and Dwayne
Jones (collectively “Municipal defendants”) move for an order dismissing plaintiff’s
claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6). At docket 61,
plaintiff Gerald Mahle opposes the motion. Municipal defendants reply at docket 66.
Oral argument was not requested, and it would not assist the court.
On November 6, 2000, Gerald Mahle was indicted on numerous weapons and
controlled substance charges. The charges were based on evidence seized after a
series of four search warrants were executed at his home. The first search warrant was
issued to search Mahle’s home based on a police officer’s testimony that he smelled
marijuana coming from the home. The second warrant was issued to search a safe in
Mahle’s bedroom based on police officer testimony that they could smell marijuana
coming from the safe during the execution of the first warrant. The second warrant
yielded evidence of illegal possession of drugs and weapons, which led to the issuance
of the third and fourth warrants. After a jury trial, Mahle was convicted of most of the
Prior to sentencing, Mahle’s conviction was set aside based on an intervening
decision in State v. Crocker,1 in which the Alaska Court of Appeals held that “a judicial
officer should not issue a warrant to search a person’s home for evidence of marijuana
possession unless the State’s warrant application establishes probable cause to believe
that the person’s possession of marijuana exceeds the scope of the possession that is
constitutionally protected under Ravin.”2 In Ravin, the Alaska Supreme Court held that
the privacy provision of the Constitution of the State of Alaska “protects an adult’s right
to possess a limited amount of marijuana in their home for personal use.”3
On November 2, 2006, Mahle filed a complaint against the Municipality of
Anchorage, John Does 1-30, and the State of Alaska. Plaintiff’s complaint alleged
claims under 42 U.S.C. §§ 1983, 1985, and 1988, as well as state law claims of
“intentional/negligent infliction of emotional distress; defamation; false arrest; malicious
prosecution; and false imprisonment.”4 On November 22, 2006, defendant State of
Alaska filed a motion to dismiss plaintiff’s claims in part on the grounds that the State is
not a “person” subject to suit under § 1983 and § 1985. The court granted the State’s
motion in part, dismissing plaintiff’s claims against the State under § 1983, § 1985, and
§ 1988. Plaintiff requested and received leave to file an amended complaint. Plaintiff’s
amended complaint alleges the same claims as the original complaint, but names
Steven Boltz, Duane Jones, Kevin Donley, and Kari Brady as defendants, in addition to
97 P.3d 93 (Alaska App. 2004).
Crocker, 97 P.3d at 94 (citing Ravin v. State, 537 P.2d 494 (Alaska 1975)).
Complaint at 2, doc. 1.
the Municipality of Anchorage, John Does 1-26, and the State of Alaska.5 By prior
orders, the court has dismissed all of plaintiff’s claims against the State, as well as
plaintiff’s claims under § 1983, § 1985, and § 1988 against defendants Donley and
Plaintiff’s amended complaint alleges that defendants Steven Boltz and Duane
Jones, who were employed as police officers by the Municipality of Anchorage,
executed the search warrants at issue in their individual capacities. The amended
complaint further avers that Mahle’s civil rights were violated by the Municipality of
Anchorage “through its improper searches of Mahle’s residence.”7
III. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim made pursuant to Federal Rule of
Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. In
reviewing a Rule 12(b)(6) motion to dismiss, “[a]ll allegations of material fact in the
complaint are taken as true and construed in the light most favorable to the nonmoving
party.”8 The court is not required to accept every conclusion asserted in the complaint
as true; rather the court "will examine whether conclusory allegations follow from the
description of facts as alleged by the plaintiff."9 A claim should only be dismissed if "it
appears beyond doubt that a plaintiff can prove no set of facts in support of his claim
which would entitle him to relief."10 A dismissal for failure to state a claim can be based
Docs. 46, 51, and 68.
Complaint at 4, doc. 1.
Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997).
Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (quoting Brian Clewer, Inc. v.
Pan American World Airways, Inc., 674 F.Supp. 782, 785 (C.D.Cal. 1986)).
Vignolo, 120 F.3d at 1077.
on either “the lack of a cognizable legal theory or the absence of sufficient facts alleged
under a cognizable legal theory.”11
Claims Under 42 U.S.C. § 1983
Municipal defendants move to dismiss plaintiff’s § 1983 claims against them on
two grounds: (1) plaintiff’s claims are not cognizable under § 1983; and (2) defendants
Boltz and Jones are immune from the alleged claims. To establish a claim under
§ 1983, plaintiff must show that “1) a violation of a right secured by the Constitution and
laws of the United States has occurred; and 2) the person alleged to have committed
the violation acted under color of state law.”12
It is undisputed that defendants Boltz and Jones were acting under color of state
law. As to the first element of his § 1983 claim, plaintiff asserts that the Municipal
defendants violated his civil rights “through its improper searches of [plaintiff’s]
residence.”13 Plaintiff’s complaint specifically alleges that defendants “did not have
probable cause to search plaintiff’s mobile home in light of State v. Cocker.”14
The Municipal defendants argue that plaintiff’s claims are not cognizable under
§ 1983 because they are based on violations of state law, not federal law. “[W]hen a
violation of state law causes the deprivation of a right protected by the United States
Constitution, that violation may form the basis for a Section 1983 action.”15 “However,
Section 1983 limits a federal court’s analysis to the deprivation of rights secured by the
federal ‘Constitution and laws.’ To the extent that the violation of a state law amounts to
Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).
Villegas v. City of Gilroy, 484 F.3d 1136, 1139 (9th Cir. 2007).
Amended Complaint at 4, doc. 18.
Id. at 4.
Lovell By and Through Lovell v. Poway Unified School Dist., 90 F.3d 367, 370 (9th Cir.
the deprivation of a state-created interest that reaches beyond that guaranteed by the
federal Constitution, Section 1983 offers no redress.”16
“Probable cause exists when the arresting officer has ‘a reasonable belief,
evaluated in light of the officer’s experience and the practical considerations of everyday
life, that a crime has been, is being, or is about to be committed.’”17 Under federal law,
“the presence of the odor of contraband may itself be sufficient to establish probable
cause.”18 Under Alaska law, the odor of marijuana alone is not sufficient to establish
probable cause ”unless the State’s warrant application establishes probable cause to
believe that the person’s possession of marijuana exceeds the scope of the possession
that is constitutionally protected under Ravin.”19
Citing Kerr, Municipal defendants argue that “[b]ecause it is a crime to possess
marijuana under federal law, officer testimony of a strong odor of marijuana coming
from a private residence is sufficient to establish probable cause for the issuance of a
warrant to search the home for marijuana.”20 The court concurs. Because there was
sufficient probable cause under federal law to support the issuance and execution of the
search warrants in question, plaintiff’s claims based on the lack of probable cause are
not cognizable under § 1983.
Defendants next contend that plaintiff’s § 1983 claims against defendants Boltz
and Jones must be dismissed because they are entitled to either absolute or qualified
immunity. In a suit against a police officer for an alleged violation of a constitutional
right, “the requisites of a qualified immunity defense must be considered in proper
sequence.”21 A court deciding the issue of qualified immunity must first consider the
Id. (internal citation omitted).
Johnson v. Hawe, 388 F.3d 676, 681 (9th Cir. 2004) (quoting Hopkins v. City of Sierra
Vista, 931 F.2d 524, 527 (9th Cir. 1991) (citation and internal quotation marks omitted)).
United States v. Kerr, 876 F.2d 1440, 1445 (9th Cir. 1989).
Crocker, 97 P.3d at 94 (citing Ravin v. State, 537 P.2d 494 (Alaska 1975)).
Doc. 56 at 5.
Saucier v. Katz, 533 U.S. 194, 201 (2001).
threshold question: “Taken in the light most favorable to the party asserting the injury,
do the facts alleged show the officer’s conduct violated a constitutional right?”22 “If no
constitutional right would have been violated were the allegations established, there is
no necessity for further inquiries concerning qualified immunity. On the other hand, if a
violation could be made out on a favorable view of the parties’ submissions, the next,
sequential step is to ask whether the right was clearly established.”23 “This second
inquiry ‘must be undertaken in light of the specific context of the case,’ to discern
whether ‘[t]he contours of the right [are] sufficiently clear that a reasonable official would
understand that what he is doing violates that right.’”24
Plaintiff’s complaint alleges that defendants Boltz and Jones violated his rights by
executing the search warrants at issue and conducting improper searches of his
residence. As indicated above, the crux of plaintiff’s claim is that defendants violated
his rights by executing a search warrant without probable cause under Crocker, in which
the Alaska Court of Appeals ruled that the odor of marijuana alone is generally not
sufficient to establish probable cause. Taken in the light most favorable to plaintiff the
facts alleged do not show that defendants’ conduct violated “a constitutional right.”
Rather, plaintiff’s claim alleges the deprivation of a state-created interest that reaches
beyond that guaranteed by federal law.25 Moreover, even if plaintiff were able to show
an enforceable federal violation based on the right to privacy in the Alaska Constitution
and state court decisions interpreting that right, the right that plaintiff alleges was
violated was not clearly established at the time of defendants’ actions such that a
reasonable officer would know that his actions violated that right. The cases plaintiff
cites in support of his claims were both decided after the actions alleged in plaintiff’s
Johnson v. Hawe, 388 F.3d 676, 681 (9th Cir. 2004).
Lovell, 90 F.3d at 370.
complaint.26 For the reasons set out above, the Municipal defendants are entitled to
judgment dismissing plaintiff’s § 1983 claims against them.
Claims Under 42 U.S.C. § 1985
In his amended complaint, plaintiff alleges that defendants violated 42 U.S.C.
§ 1985, which proscribes certain types of conspiracies to deprive persons of the equal
protection of the laws. Because plaintiff does not assert any federal interest or
involvement with the alleged conspiracy, the court concludes that plaintiff’s §1985
claims against the Municipal defendants are based on the second clause of § 1985(2)
or the first clause of 1985(3).27 “Under the relevant clauses of these subsections, a
properly pleaded claim must include an allegation of racial or class-based animus.”28
“To establish racial or class-based animus, a plaintiff must show ‘invidiously
discriminatory motivation...behind the conspirators’ action.’”29
Municipal defendants move to dismiss plaintiff’s § 1985 claims on the grounds
that “Mahle has not alleged any racial or class-based discriminatory animus.”30 Plaintiff
did not respond to defendants’ argument. Because plaintiff has not alleged any race or
class-based discrimination nor shown any invidiously discriminatory motivation behind
defendants’ conduct, plaintiff fails to state a claim for relief under §1985. Because the
Municipal defendants are entitled to judgment dismissing plaintiff’s claims under § 1983
and § 1985, plaintiff’s claim for attorney’s fees under § 1988 against the Municipal
defendants must also be dismissed.
State Law Claims
Pursuant to 28 U.S.C. § 1367(c)(3), a district court may decline to exercise
supplemental jurisdiction over a claim if the court “has dismissed all claims over which it
State v. Crocker, 97 P.3d 93 (Alaska App. 2004); Noy v. State, 83 P.3d 538 (Alaska
Bretz. v. Kelman, 773 F.2d 1026, 1028 (9th Cir. 1985) (en banc).
Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987).
Id. (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)).
Doc. 56 at 11.
has original jurisdiction.” The court has now dismissed all claims over which it has
original jurisdiction in this action.31 The only claims remaining before the court are
plaintiff’s state law claims against the Municipal defendants and defendants Brady and
Donley. As no claims over which the court has original jurisdiction remain before the
court, the court declines to exercise supplemental jurisdiction over plaintiff’s state law
claims pursuant to § 1367(c)(3). Plaintiff is free, of course, to file his state law claims in
the appropriate state court
For the reasons set out above, Municipal defendants’ motion to dismiss at docket
55 is GRANTED and plaintiffs’ claims against the Municipal defendants under 42 U.S.C.
§§ 1983, 1985, and 1988 are DISMISSED. As no claims over which the court has
original jurisdiction remain before the court, the court declines to exercise supplemental
jurisdiction over plaintiff’s state law claims pursuant to 28 U.S.C. § 1367(c)(3), and this
matter is DISMISSED. The clerk of court will please enter judgment in this matter.
DATED at Anchorage, Alaska, this 21st day of November 2007.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
See docs. 46, 51, 68.
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