Gresham v. Carson et al

Filing 71

ORDER: re All Pending Motions. (See order for full details). Signed by Judge Sharon L. Gleason on 09/07/2012. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

COREY S. GRESHAM,
Plaintiff,
v.
JACK CARSON, et. al.,
Defendants.

Case No. 3:12-cv-00008-SLG

ORDER RE ALL PENDING MOTIONS
Mr. Gresham, a prisoner representing himself, filed his Complaint in this action
on January 17, 2012. 1 The defendants include (1) the Municipality of Anchorage, the
Anchorage Police Department, and three police officers from the Anchorage Police
Department, including Chief Mark Mew and officers Jack Carson and Eric Smith
(hereinafter “the Municipal Defendants”); (2) Joseph Masters, the Commissioner of the
Alaska Department of Public Safety; (3) two individual Alaska State Troopers, Michael
Ingram and Kyle Young (hereinafter the “Trooper Defendants”); 2 and (4) Matanuska
Electric Association (hereinafter “MEA”). The Complaint asserts claims under 42 USC
§§ 1983 and 1985 and alleges that the defendants entered a “chain conspiracy to
deprive plaintiff of guaranteed constitutional rights” in the course of Mr. Gresham’s

1

2

Compl. (Docket 1).

On February 10, 2012, this court dismissed the Alaska State Troopers as immune from suit under
the Eleventh Amendment. Docket 20 at 1. A third individual, Joseph Hazelaar, was also identified as
an Alaska State Trooper in Mr. Gresham’s complaint, but he has not appeared in this action. See
Compl. at 4 (Docket 1); Text Order (Docket 68). To date, no executed summons has been returned
as to Mr. Hazelaar.

arrest on November 30, 2010 and subsequent criminal prosecution in federal court. Mr.
Gresham seeks monetary relief as well as declaratory or injunctive relief. 3
There are currently five motions pending before the court. On February 13,
2012, the Municipal Defendants filed a Motion to Dismiss Municipal Defendants. 4 On
February 21, 2012, Joseph Masters filed a Motion to Dismiss and Alternative Motion for
Summary Judgment. 5 On March 7, 2012, the Trooper Defendants filed a Motion for
Summary Judgment. 6

And on May 18, 2012, MEA filed a Motion for Summary

Judgment. 7 Mr. Gresham filed responses in opposition to each of these motions. All
four motions have now been fully briefed. Oral argument was not requested on any of
the motions and was not necessary to this court’s determination of these motions.
On July 3, 2012, Mr. Gresham filed a Motion to Stay Proceedings, seeking to
stay this action until August 3, 2012. 8 As that date has now elapsed, that motion is
DENIED as moot.
FACTUAL BACKGROUND
The factual allegations in Mr. Gresham’s complaint are as follows: On November
30, 2010, law enforcement officers entered a residence at 1100 West Fairview Loop in

3

Compl. at 11.

4

Municipal Mot. to Dismiss (Docket 21).

5

Masters Mot. to Dismiss (Docket 28).

6

Trooper Mot. for Summ. J. (Docket 34). The Alaska State Troopers filed this motion along with the
individual Troopers. But as the Alaska State Troopers are no longer parties to this case, see docket
20, the motion will be treated as if it had been filed only by the individual Troopers.
7

MEA Mot. for Summ. J. (Docket 60).

8

Mot. to Stay (Docket 66).

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Wasilla, Alaska pursuant to a search warrant issued by a U.S. Magistrate Judge. 9 Mr.
Gresham alleges that the property was not his residence, but he was a visitor at that
residence. 10 Among the officers who entered the Fairview Loop residence were four
defendants named in this action: Alaska State Troopers Michael Ingram and Joseph
Hazelaar and APD Officers Jack Carson and Eric Smith. 11 The officers searched the
residence, arrested Mr. Gresham, and transported him first to the FBI building in
Anchorage for questioning and then to the Anchorage Correctional Complex. 12
In his Complaint, Mr. Gresham describes the circumstances of his arrest as
follows:
20. When plaintiff heard officers were looking for him, plaintiff
slowly opened the bedroom door and was confronted by multiple
officers and their tactical weapons aimed at him.
21. Plaintiff was ordered to get his hands up and to crawl to their
location, which was about 25 feet away in the living room. There
was a hallway that connected all of the bedrooms of the home.
This hallway gave full access, and the only access available to the
living room from any one of the bedrooms.
22. The officers commanded plaintiff to crawl to them from the rear
bedroom to their position while plaintiff was only in his boxer shorts.
Plaintiff did not understand why they were looking for him or having
him crawl to them in his boxer as plaintiff posed no threat to the
officers.
23. Once to the officers, plaintiff was placed in handcuffs behind his
back while still only in his boxer shorts. Plaintiff and Malcolm
Brooks were taken into the kitchen by search team members.
Plaintiff was very upset at this point and wanted to know why he
was being arrested and treated this way.
9

Compl. at 5.

10

Id.

11

Id.

12

Id. at 6-9.

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24. Jack Carson stated he had a warrant to search the house, and
asked plaintiff how long had he been living at the 1100 W. Fairview
Loop, and had been growing marijuana. Plaintiff stated that he did
not live at the residence and doesn't grow marijuana, and was only
visiting for the holidays. Plaintiff asserted his residency and home
was in Georgia.
25. Plaintiff then asked Jack Carson to see a copy of the warrant
and asked what the warrant was for. Jack Carson told plaintiff to
hold on he will get to that in a minute. Officer Carson proceeded to
the bedroom where plaintiff was prior to entry, and located his
travel bags and some of his clothing with identification.
26. While in the rear bedroom Officer Carson noticed a handgun
next to the bed where the travel bags were. There was also a
handgun case inside of the luggage with an Alaska Airlines firearms
declaration tag showing that the handgun had travel with plaintiff
from Georgia.
27. When Officer Carson returned from the bedroom he took some
cash out of plaintiff's pants pocket and placed it on the kitchen table
and asked plaintiff how he got the cash. Carson also put plaintiff
Georgia Driver's License on the kitchen table. Officer Carson then
asked plaintiff who the firearms belong to and if there were
anymore. Plaintiff told Officer Carson they belong to the plaintiff
and that he travels with firearms for his personal safety and for
recreational use. Officer Carson knew plaintiff wasn't a felon and
his possession was lawful.
28. During the search of the residence Officer Carson was pacing
back and forth from the kitchen to the back bedroom. Plaintiff was
very cold and had complained to other search team members about
being cold. Plaintiff was still in his boxer shorts sitting in a chair,
while still handcuffed in the kitchen, right beside the front door that
had been breached by search team members. Officer Carson
finally brought plaintiff some clothing.
29. Plaintiff demanded to see the warrant that Officer Carson told
him to wait on, while sitting only in his boxer shorts right by the front
door, that had remained open during the entire search of the
residence.
30. Plaintiff was handed an old bench warrant from an unrelated
traffic incident for failure to appear. Plaintiff didn't see a search
warrant for 1100 W. Fairview Loop when plaintiff requested. Officer
Carson then stood plaintiff up while still handcuffed. Officer Carson
then put a red shirt over plaintiff head, and shoulders, put a pair of
jeans on plaintiff, shoes, and no coat. Plaintiff, and Malcolm Brooks

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where then transported to the FBI office in Anchorage for further
questioning.
31. While being transported to the Anchorage FBI office plaintiff
was placed in a civilian SUV, driven by Officer Carson. Michael
Ingram sat in the backseat with plaintiff whose hands were cuffed
behind his back during the transport. Ingram asked if plaintiff had
any kids and about his faith.
32. Once there at the FBI building in Anchorage, plaintiff was taken
to an interrogation room that had no windows, was extremely cold,
and was handed a cup of water. Plaintiff was then un-cuffed from
behind his back and had his right-hand handcuffed to an elevated
metal railing alongside the wall. 13

Mr. Gresham was indicted in federal court on three counts: drug conspiracy,
manufacture of a controlled substance, and possession of firearms in furtherance of a
crime of drug trafficking. 14 Trial was set before a U.S. District Judge and continued
several times. Mr. Gresham filed a motion seeking to suppress statements that he
alleged were obtained in violation of his Miranda rights. 15 A Magistrate Judge held an
evidentiary hearing on that motion and issued a 16-page Report & Recommendation.16
Based on that Report & Recommendation, the assigned District Judge granted in part
and denied in part Mr. Gresham’s motion, allowing the use of certain statements Mr.
Gresham had made after finding a waiver of his Miranda rights. 17 Mr. Gresham also
filed a pretrial motion seeking to suppress all evidence obtained through the execution

13

Id. at 5-7.

14

Attach. A. to Compl. at 8 (Docket 1-1). See also USA v. Gresham et al., Case No. 3:10-cr-00121HRH, Docket 1.

15

Attach. A. to Compl. 10-11 (Docket 1-1); 18-22.

16

Gresham, Case No. 3:10-cr-00121-HRH, Docket 75.

17

Gresham, Case No. 3:10-cr-00121-HRH, Docket 100.

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of the search warrant, asserting that the warrant was not supported by probable cause.
A Magistrate Judge held a three-day hearing on that motion and issued a 48-page
Report & Recommendation recommending the denial of the motion, which was
subsequently adopted by the assigned District Judge. 18 On September 12, 2011, all
pending criminal charges against Mr. Gresham were dismissed without prejudice due to
Speedy Trial Act violations. 19
As noted above, Mr. Gresham filed this civil action on January 17, 2012. Three
days later, on January 20, 2012, Mr. Gresham was reindicted by a federal Grand Jury
on substantially the same charges as the original indictment. 20 On March 30, 2012, the
parties stipulated in that second case to preserve and consolidate all of the pretrial
motions and orders on the motions that had been entered in the dismissed case for
purposes of appeal in the newly filed case. 21 That second criminal case has not yet
been concluded. 22
Mr. Gresham’s Complaint in this action asserts claims under 42 USC §§ 1983
and 1985 arising from the issuance of the search warrant for 1100 West Fairview Loop,

18

Gresham, Case No. 3:10-cr-00121-HRH, Docket 213.

19

Compl. at 10; Gresham, Case No. 3:10-cr-00121-HRH, Docket 216.

20

USA v. Gresham et al., Case No. 3:12-cr-00015-TMB, Docket 2. Pursuant to Evidence Rule 201,
this court has taken judicial notice of the court’s file in that criminal proceeding.

21

Gresham, Case No. 3:12-cr-00015-TMB, Docket 54 (granted at docket 57).

22

See generally Gresham, Case No. 3:12-cr-00015-TMB, Docket 181 (continuing the Imposition of
Sentence until September 12, 2012). A review of the docket indicates that in April 2012, a jury
returned a verdict of guilty on two counts of the indictment, and not guilty on count 3. See Jury
Verdict (Docket 100).
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his arrest, and the criminal charges brought against him. Liberally construed, 23 the
Complaint asserts that law enforcement conducted a search and seizure pursuant to an
unlawful warrant, used excessive force in his arrest, and violated his Miranda rights in
contravention of the Fourth and Fifth Amendments and 42 USC § 1983. The Complaint
also asserts a claim for a chain conspiracy to deprive Mr. Gresham of his constitutional
rights in violation of 42 USC § 1985. 24
DISCUSSION
I.

Jurisdiction.
This court has subject matter jurisdiction over this action pursuant to 28 USC
§ 1331 and 28 USC § 1343(a)(3).

II.

Analysis.
A. Summary Judgment Standard.
The Municipal Defendants filed a motion to dismiss all claims against them. 25

Defendant Joseph Masters filed a motion to dismiss, or alternatively a motion for
summary judgment. 26

23

See Porter v. Ollison, 620 F.3d 952 (9th Cir. 2010) (“Prisoner pro se pleadings are given the
benefit of liberal construction.”) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). See
also Hebbe v. Plier, 627 F.3d 338, 342 (9th Cir. 2010) ("[O]ur 'obligation' remains [after Ashcroft v.
Iqbal, 129 S.Ct. 1937 (2009)], 'where the petitioner is pro se, particularly in civil rights cases, to
construe the pleadings liberally and to afford the petitioner the benefit of any doubt.'") (citation
omitted).
24

Mr. Gresham also lists the Second, Sixth, Eighth, and Fourteenth Amendments of the U.S.
Constitution as having been violated. However, as his Complaint contains no specific factual
allegations or legal claims to explain how these Amendments were violated, this court has
interpreted his Complaint as alleging the claims identified above.

25

Municipal Mot. to Dismiss (Docket 21).

26

Masters Mot. to Dismiss (Docket 28).

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A motion to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6) seeks dismissal of a claim against a party based solely upon the
statements made in the complaint and answer. 27 In contrast, with a motion for summary
judgment, the court considers all of the affidavits, declarations, and other cited materials
in determining the motion. 28 If a motion to dismiss is filed, but the court considers
materials outside the pleadings, “the motion must be treated as one for summary
judgment.” 29 Here, this court has considered all of the materials filed by the parties with
respect to each of the defendants’ pending dispositive motions, such that the motions
will all be treated as motions for summary judgment.
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment
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.” The burden of showing the absence
of a genuine dispute of material fact initially lies with the moving party. 30 If the moving
party meets this burden, the non-moving party must present specific factual evidence
demonstrating the existence of a genuine issue of fact. 31

When considering a motion

for summary judgment, a court must accept as true all evidence presented by the nonmoving party, and draw “all justifiable inferences” in the non-moving party’s favor. 32

27

See Fed. R. Civ. P. 12(b)(6) and (d).

28

See Fed. R. Civ. P. 56(c).

29

Fed. R. Civ. P. 12(d).

30

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

31

Anderson, 477 U.S. at 248-49.

32

Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).

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And yet the non-moving party may not rely on mere allegations or denials. 33 The nonmoving party “must do more than simply show that there is some metaphysical doubt as
to the material facts.” 34

He must demonstrate that enough evidence supports the

alleged factual dispute to require a finder of fact to make a determination at trial
between the parties’ differing versions of the truth. 35 The evidence must be such as
“would allow a reasonable fact-finder to return a verdict for the non-moving party.” 36 If
the evidence provided by the non-moving party is “merely colorable” or “not significantly
probative,” summary judgment is appropriate. 37
When granting or denying a motion for summary judgment, a court should state
on the record its reasons for doing so. 38
B. Defendant Joseph Masters.
Mr. Masters seeks dismissal of Mr. Gresham’s claims against him.

In his

Complaint, Mr. Gresham names Joseph Masters “individually and in his official capacity”
as Commissioner of the Alaska Department of Public Safety. 39 He alleges that as
Commissioner, Mr. Masters “was the overall supervisory commanding official” for the

33

Id. at 248-49.

34

Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586–587 (1986)).
35

Anderson, 477 U.S. at 248-49 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253
(1968)).

36

Id. at 248.

37

Id. at 255.

38

Fed. R. Civ. P. 56(a).

39

Compl. at 4.

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Trooper Defendants and “was responsible for their training, supervision and conduct.” 40
Mr. Gresham makes no other specific allegations regarding Mr. Masters’ involvement in
the facts giving rise to his claims.
Mr. Masters asserts that vicarious liability under § 1983 is not available on the
sole basis of a supervisory relationship. 41 He adds that because he had no personal
involvement in the Troopers’ conduct alleged by Mr. Gresham, the claims against him
must be dismissed. In the affidavit filed in support of motion, Mr. Masters testifies that
he “had no personal involvement in any activities by employees of the Division of Alaska
State Troopers concerning the plaintiff in this case, Corey S. Gresham[,]” and that he
has “never directly supervised . . . the individual Alaska State Troopers named as
defendants in this case.” 42 In his sworn opposition, Mr. Gresham acknowledges that
Mr. Masters “did not have a direct role as one of the actors in this instant civil action or
directly supervise Michael Ingram, Kyle Young, and Joseph Hazelaar[.]”43 Thus, no
issue of fact has been raised as to Mr. Masters’ lack of personal involvement in the
conduct giving rise to Mr. Gresham’s Complaint. But Mr. Gresham nonetheless asserts
that he can maintain an action against Mr. Masters because “he was directly
responsible for [the Trooper Defendants’] training, supervision, and conduct” as
Commissioner of the Alaska Department of Public Safety. 44

40

Id. at 4.

41

Masters Mem. in Supp. at 2-3 (Docket 29).

42

Masters Aff. at 2 (Docket 29-1);

43

Masters Opp. at 1 (Docket 42).

44

Masters’ Opp. at 1 (Docket 42).

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The applicable law is clear. The United States Supreme Court has held that “[i]n
a § 1983 suit or a Bivens action—where masters do not answer for the torts of their
servants—the term ‘supervisory liability’ is a misnomer. Absent vicarious liability, each
Government official, his or her title notwithstanding, is only liable for his or her own
misconduct.”45 Thus, to hold a government official liable in § 1983 suits, “a plaintiff must
plead that each Government-official defendant, through the official's own individual
actions, has violated the Constitution.”46 The Ninth Circuit has held that “[a] defendant
may be held liable as a supervisor under § 1983 ‘if there exists either (1) his or her
personal involvement in the constitutional deprivation, or (2) a sufficient causal
connection between the supervisor's wrongful conduct and the constitutional
violation.’” 47
Based on this case law, Mr. Gresham cannot sustain a § 1983 claim against Mr.
Masters solely because he may have overall responsibility for the training, supervision,
and conduct of the Alaska State Troopers. Mr. Gresham has failed to plead any specific
alleged wrongdoing by Mr. Masters which might have a causal connection to the alleged

45

Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).

46

Id., 556 U.S. 662, 676 (2009) (“respondent correctly concedes that Government officials may not
be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat
superior.”) (citing Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691 (1978); Dunlop
v. Munroe, 7 Cranch 242, 269, 3 L.Ed. 329 (1812); Robertson v. Sichel, 127 U.S. 507, 515–516
(1888)).

47

Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) cert. denied, 132 S. Ct. 2101 (U.S. 2012)
(citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989)). See also Lacey v. Maricopa Cnty., 2012
WL 3711591, *10 (9th Cir. 2012)
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constitutional violations that are pled in Mr. Gresham’s complaint. 48 Summary judgment
is therefore granted to Mr. Masters.
C. Defendants MOA, APD, and Mark Mew.
Based on this court’s review of Mr. Gresham’s Complaint, MOA, APD, and APD
Chief Mark Mew are named as defendants solely in their capacity as the employers or
supervisors of the individual Troopers or police officers. As explained in the previous
section, defendants cannot face supervisory liability in § 1983 actions unless they were
personally involved in the alleged constitutional deprivation or there is a causal
connection between their wrongful conduct and the deprivation. 49 As Mr. Gresham has
not alleged that MOA, APD, or Mr. Mew were personally involved in or engaged in any
wrongdoing causally related to the alleged violations of his constitutional rights, he
cannot sustain his constitutional claims against them. MOA, APD, and Mr. Mew are
therefore dismissed from this action.
D. Defendant MEA.
Mr. Gresham alleges that MEA violated his privacy rights by providing law
enforcement officials with electrical consumption records for 1100 W. Fairview Loop in
Wasilla, 50 the residence where Mr. Gresham was arrested and where the marijuana
plants that form the basis of his criminal charges were located.

48

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

49

Starr, 652 F.3d at 1207. See also Lacey, 2012 WL 3711591 at *10.

50

Compl. at 4; Attach. A. to Compl. at 4, 15 (Docket 1-1).

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MEA argues that it is entitled to summary judgment for two reasons. 51 First, it
asserts that no legitimate expectation of privacy exists in the seven-month utility
consumption history MEA provided to law enforcement. Second, it asserts that even if
there was such a right to privacy, Mr. Gresham lacks standing to assert any such right
related to the electrical consumption history of 1100 W. Fairview Loop, as Victoria
Scheuner, and not Mr. Gresham, resided at that address. Appended to its motion is an
affidavit from an MEA employee that indicates that Mr. Gresham “has never been listed
as a utility subscriber for the residence at 1100 W. Fairview Loop.”52
In his opposition, Mr. Gresham acknowledges that the electrical consumption
history of a residence “can be supplied freely by an MEA representative to real estate
agents or to the general public.”53 But he argues that MEA should not have provided
Ms. Scheuner’s name to law enforcement along with those records.

Without Ms.

Scheuner’s name, he argues, law enforcement would not have been able to draw a
connection to him at that property. 54 Thus, it is the release of Ms. Scheuner’s name to
law enforcement personnel that Mr. Gresham asserts violated his right to privacy.
It is undisputed that Mr. Gresham did not reside full time at 1100 W. Fairview
Loop; however, he has asserted that he did spend overnights there on occasion. 55
Even if Mr. Gresham had standing to assert the privacy rights of Ms. Scheuner, the
51

MEA Mem. in Supp. at 1-2 (Docket 61).

52

Carlson Aff. at 2 (Docket 60-3).

53

MEA Opp. at 2 (Docket 62).

54

Pl. Resp. at 2 (Docket 62).

55

An overnight guest may have a legitimate expectation of privacy in the home of his host.
Minnesota v. Olson, 495 U.S. 91 (1990).

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case law is well-established that a utility “customer ordinarily lacks ‘a reasonable
expectation of privacy’ in an item, like a business record, ‘in which he has no
possessory or ownership interest.’”56

Here, the records that were produced are

business records owned and possessed by MEA. Accordingly, this court finds that, as a
matter of law, Mr. Gresham had no reasonable expectation of privacy relating to the
electrical consumption records of 1100 W. Fairview Loop.

Summary judgment is

therefore granted to MEA.
E. The Trooper and Municipal Defendants.
The Trooper Defendants’ Motion for Summary Judgment addresses Mr.
Gresham’s § 1983 claims. The Municipal Defendants’ Motion to Dismiss addresses Mr.
Gresham’s § 1985 chain conspiracy claim.

The Municipal Defendants specifically

requested that this court decide their motion under Rule 12 rather than Rule 56. 57 But
as Mr. Gresham’s opposition includes several exhibits containing matters outside the
pleadings which this court has considered, this court has treated the motion as a motion
for summary judgment rather than a motion to dismiss. Both motions are addressed in
this section.

56

United States v. Golden Valley Electric Association, ___ F.3d ___, 2012 WL 3185827 *6 (9th Cir.
August 7, 2012) (citing U.S. v. Hamilton, 434 F. Supp. 974, 980 (D. Or. 2006) (when the [defendant]
used power in his home, he voluntarily conveyed that information to … his electric company. As a
result, he had no reasonable expectation of privacy in his power records.”)). See also Samson v.
State, 919 P.2d 171, 173 (Alaska App. 1996) (“utility records are maintained by the utility and do not
constitute information in which society is prepared to recognize a reasonable expectation of
privacy.”).

57

MEA Reply at 2-3 (Docket 58).

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i.

Unlawful search and seizure.

In his Complaint, Mr. Gresham asserts that the warrant that led to his arrest and
the search of 1100 West Fairview Loop was not supported by probable cause. 58 He
alleges that the affidavit on which the Magistrate Judge based the warrant relied on
information fraudulently provided by the Trooper Defendants and that the Trooper
Defendants executed the warrant in violation of his constitutional rights.

Such

allegations may state a claim under the Fourth Amendment, which provides that “no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.” 59
The Trooper Defendants correctly note that the probable cause issue has already
been determined in the first criminal proceeding. 60

And as discussed above, by

stipulation of the parties in the second criminal proceeding, the orders that had been
issued in the dismissed case, including the order denying Mr. Gresham’s motion to
suppress, were preserved and consolidated in the new case. 61
For the purposes of this summary judgment motion, this court views the facts in
the light most favorable to Mr. Gresham. Thus, this court is accepting—without deciding
and solely for the purposes of this motion—Mr. Gresham’s allegations regarding the
Trooper Defendants’ actions relating to the warrant.
58

Attach. A. to Compl. at 5-7 (Docket 1-1).

59

U.S. Const. amend. IV.

60

Case No. 3:10-cr-00121-HRH.

61

Gresham, Case No. 3:12-cr-00015-TMB, Docket 54 (granted at docket 57).

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The Trooper Defendants argue that absolute immunity protects them from any
liability for their testimony in support of the issuance of the warrant, and that qualified
immunity protects them from liability for their execution of the warrant. 62 As a matter of
law, the Trooper Defendants’ testimony in support of the warrant is protected by
absolute immunity, regardless of the accuracy of that testimony. 63 Thus, any claims Mr.
Gresham has asserted against the Trooper Defendants arising from their testimony in
support of the warrant are DISMISSED.
The Trooper Defendants also assert that qualified immunity protects them from
liability for executing the warrant because they relied on the Magistrate Judge’s
determination. But this court finds that dismissing Mr. Gresham’s claims on the basis of
qualified immunity is not appropriate at this time. In Messerschmidt v. Millender, the
United States Supreme Court held that “the fact that a neutral magistrate has issued a
warrant authorizing the allegedly unconstitutional search or seizure does not end the
inquiry into objective reasonableness.”64 The Supreme Court recognized an exception
to qualified immunity for situations where “it is obvious that no reasonably competent
officer would have concluded that a warrant should issue.” 65 Mr. Gresham’s allegations
that the Trooper Defendants testified fraudulently and then executed a warrant based
on that testimony, if proven true, may render this exception applicable, as no
reasonable officer may likely then conclude that a warrant should issue in such
62

Trooper Mem. in Supp. at 6-7 (Docket 35).

63

See, e.g., Franklin v. Terr, 201 F.3d 1098, 1102 (9th Cir. 2000).

64

132 S. Ct. 1235, 1245 (2012).

65

Id. at 1245 (2012) (citing Malley v. Briggs, 475 U.S. 335, 341 (1986).

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circumstances.

Given the highly fact-intensive inquiry that would be required to

determine the issue of qualified immunity with regard to this claim, as demonstrated by
the record of the suppression proceedings in the first criminal case, this court finds that
it is not appropriate to decide this issue in the context of this motion for summary
judgment at this time.
Alternatively, the Trooper Defendants argue that issue preclusion precludes Mr.
Gresham from challenging the validity of the probable cause determinations in this civil
lawsuit. 66 Issue preclusion prevents parties from relitigating an issue that has been
previously determined in a prior proceeding. But traditional issue preclusion does not
provide the appropriate analysis here. The United States Supreme Court’s decisions in
Heck v. Humphrey 67 and Wallace v. Kato 68 dictate this court’s action with regard to Mr.
Gresham’s probable cause claims at this time. The Supreme Court has held that a
plaintiff cannot challenge the fact or duration of his confinement through a civil rights
action unless his conviction has been invalidated. 69 In Heck v. Humphrey, the Supreme
Court explained:
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance
of a writ of habeas corpus . . . A claim for damages bearing that

66

Trooper Mem. in Supp. at 8-9 (Docket 35).

67

512 U.S. 477, 486-87 (1994).

68

549 U.S. 384 (2007).

69

Heck, 512 U.S. at 486-87.

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relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983. 70
“The fact that [a plaintiff] seeks money damages . . . as a remedy does not alter this
conclusion.” 71
Here, Mr. has not yet been sentenced in his criminal case, and has not yet had
the opportunity to appeal the conviction. The Supreme Court’s analysis in Wallace v.
Kato 72 is instructive. There, the petitioner, Mr. Wallace, had been tried and convicted in
state court. On appeal, his case was remanded for a new trial and ultimately the state
dropped the charges against him. Mr. Wallace subsequently filed a § 1983 suit seeking
damages arising from, among other things, his unlawful arrest. The Seventh Circuit
held that Mr. Wallace’s suit was time-barred, as his cause of action had accrued at the
time of his arrest, not when his conviction was set aside, and he had failed to file his suit
within two years of his arrest. In affirming the Seventh Circuit’s decision, the Supreme
Court explained:
If a plaintiff files a false-arrest claim before he has been convicted
(or files any other claim related to rulings that will likely be made in
a pending or anticipated criminal trial), it is within the power of the
district court, and in accord with common practice, to stay the civil
action until the criminal case or the likelihood of a criminal case is
ended. . . If the plaintiff is ultimately convicted, and if the stayed civil
suit would impugn that conviction, Heck will require dismissal;

70

Id. (emphasis in original).

71

See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) ("[A] state prisoner's § 1983 action is barred
(absent prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the
target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)—if
success in that action would necessarily demonstrate the invalidity of confinement or its duration.").

72

549 U.S. 384.

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otherwise, the civil action will proceed, absent some other bar to
suit. 73
Here, unlike the plaintiff in Wallace, Mr. Gresham filed his civil suit within two
years of his challenged arrest.

But Mr. Gresham’s § 1983 claims arising from the

alleged lack of probable cause supporting the warrant are directly related to the criminal
action pending against him. Therefore, until his criminal action is fully concluded, his §
1983 claims relating to the lawfulness of the execution of the search warrant are
STAYED. 74
ii.

Miranda Violations.

Mr. Gresham’s Complaint alleges that statements characterized as admissions
were obtained from him in violation of his Miranda rights. 75

Though the Trooper

Defendants and the Municipal defendants seek dismissal of all of Mr. Gresham’s claims,
their motions do not specifically address this claim. As Mr. Gresham’s Miranda claims
are directly related to the criminal proceedings pending against him, they too are
controlled by Heck, for the reasons discussed on pages 17-18 supra. Accordingly, Mr.
Gresham’s claims relating to the alleged violations of his Miranda rights are STAYED
until the conclusion of his criminal proceedings.

73

Kato, 549 U.S. at 393-94 (citing Heck, 512 U.S. at 487-77 n.8; Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 730 (1996); Edwards v. Balisok, 520 U.S. 641, 649 (1997)).

74

If the judgment in the criminal case is not set aside on appeal, then Heck mandates the dismissal
of all of Mr. Gresham’s remaining claims in this action when the criminal case is concluded. But if
the final determination in the criminal case is that the warrant is determined to have been improperly
issued, that evidence could be “subject to exclusion as the fruit of a constitutional violation,” U.S. v.
$186,416.00 in U.S. Currency, 590 F.3d 942, 950 (9th Cir. 2010), and this portion of Mr. Gresham’s
civil § 1983 action could then proceed, absent another bar to suit.
75

Attach. A to Compl. at 12 (Docket 1-1).

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iii.

Excessive Force.

Mr. Gresham asserts that law enforcement used excessive force on him. 76 The
Trooper Defendants argue that they are protected from personal liability on this claim by
qualified immunity, and that regardless, no constitutional violation occurred. 77

Mr.

Gresham’s description of his arrest does not always differentiate between the
defendants—often referring to them collectively as “the officers”—so this analysis
applies to all of the defendants who were allegedly involved in the arrest, not just the
Trooper Defendants. Specifically, this analysis applies to Troopers Michael Ingram and
Joseph Hazelaar and APD Officers Jack Carson and Eric Smith.
The Ninth Circuit has “held on many occasions that summary judgment or
judgment as a matter of law in excessive force cases should be granted sparingly[,]”
because an excessive force inquiry “nearly always requires a jury to sift through
disputed factual contentions, and to draw inferences therefrom[.]”78 Here, however, for
purposes of this motion, this court will assume that the facts regarding Mr. Gresham’s
arrests are as set forth by him. At issue, therefore, is—assuming the facts are proven to

76

Compl. at 2.

77

Trooper Mem. in Supp. at 9-12 (Docket 35). This court notes that Mr. Gresham’s Complaint does
not specifically allege that excessive force was used in his arrest; but it does include “excessive
force” in a long list of results he alleges that he suffered from the acts of the defendants. Compl. at
2. As that list includes several items that clearly do not form the basis of specific causes of action—
such as “loss of life” and “loss of reputation”—it is not entirely clear that Mr. Gresham is making a
Fourth Amendment claim of excessive force in this suit. However, as the Trooper Defendants
briefed this claim in their Motion for Summary Judgment, see Trooper Mem. in Supp. at 9-12, this
court will address it.

78

Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc) (citing Santos v. Gates, 287
F.3d 846, 853 (9th Cir. 2002); Liston v. Cnty. of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997)).

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be as pled by Mr. Gresham—whether the defendants are entitled to judgment on this
claim as a matter of law.
The United States Supreme Court has held that claims that law enforcement
used excessive force in the course of an arrest should be analyzed under the Fourth
Amendment. 79 In conducting a Fourth Amendment analysis, a court is to balance “the
‘nature and quality of the intrusion’ on a person's liberty with the ‘countervailing
governmental interests at stake’ to determine whether the force used was objectively
reasonable under the circumstances.”80 As “the availability of qualified immunity also
turns on the objective reasonableness of the action,” 81 this court will first examine the
objective reasonableness of the force used under the Fourth Amendment.
The first step is to “assess the quantum of force used” in the arrest, 82 by
considering “the type and amount of force inflicted.”83 Though Mr. Gresham has not
alleged that any physical force was used on him, this does not necessarily bar his claim
of excessive force, as the Ninth Circuit has held that “[a]n officer's show of force is
subject to Fourth Amendment reasonableness requirements even where no actual force

79

Davis v. City of Las Vegas, 478 F.3d 1048, 1052 (9th Cir. 2007) (“all claims that law enforcement
officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or
other ‘seizure’ ... should be analyzed under the Fourth Amendment and its ‘reasonableness'
standard.”) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)); U.S. Const. amend. IV (protecting
“[t]he right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures[.]”).

80

Davis, 478 F.3d at 1053 (citing Smith, 394 F.3d at 701).

81

Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012) (citations omitted).

82

Davis, 478 F.3d at 1054.

83

Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir. 2001) (citing Headwaters Forest Def. v. Cnty.
of Humboldt, 240 F.3d 1185, 1198 (9th Cir.2000), vacated and remanded on other grounds sub
nom. Cnty. of Humboldt v. Headwaters Forest Def., 534 U.S. 801 (2001)).
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is applied.” 84

Thus, the precedents of this circuit establish that even the threat of

physical injury—such as brandishing a gun in a civilian’s face, or keeping a firearm
trained on the head of an infant—can constitute excessive force in certain situations. 85
Here, however, even viewing Mr. Gresham’s factual allegations in the most
favorable light to him, he alleges, at most, that he found weapons pointed at him when
he opened a door in the home, that he was instructed to crawl down a hallway, that he
was detained inside 1100 W. Fairview Loop in his underwear, and that he was made
uncomfortable by open doorways and cold rooms. 86 This court finds that as a matter of
law, these actions do not constitute the use of force, actual or threatened, of the severity
and degree recognized in the case law as constitutionally excessive. 87 Mr. Gresham
also alleges that law enforcement pointed weapons at him. While the Ninth Circuit has
held that pointing or brandishing weapons at a plaintiff can in unique circumstances
constitute a Fourth Amendment violation, it has done so in the context of plaintiffs who

84

Motley v. Parks, 432 F.3d 1072, 1088 (9th Cir. 2005). See also Nelson v. City of Davis, 2012 WL
2821931 *6 (9th Cir. 2012) (“force can be unreasonable even without physical blows or injuries.”)
(citing extensive precedent).

85

Motley, 432 F.3d at 1088-89 (citing Robinson v. Solano Cnty., 278 F.3d 1007, 1014-15 (9th Cir.
2002); McDonald v. Haskins, 966 F.2d 292 (7th Cir.1992)).
86

Compl. at 6-9. The materials Mr. Gresham has provided since filing his Complaint are consistent
with his original description of his arrest. See Ex. A to Municipal Defs.’ Opp. at 57-59 (Docket 44).

87

See, e.g., Davis, 478 F.3d at 1055 (severe use of force where “[Officer] Miller forcefully slammed
[the plaintiff] head-first against a wall, and then swung him into another wall, also head-first, thereby
breaking his neck. Officer Miller then threw [the plaintiff] face-down onto the floor, placed his knee
on his back, and then turned him over and punched him in the face.”); Smith, 394 F.3d at 694
(severe use of force where plaintiff was thrown to the ground, bitten repeatedly by a police canine,
and dragged face-down, while being pepper sprayed repeatedly); Bryan v. MacPherson, 630 F.3d
805, 826 (9th Cir. 2010) (“tasers like the X26 constitute an ‘intermediate or medium, though not
insignificant, quantum of force’”).
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were not under suspicion for criminal activity at the time. 88 Here, law enforcement
personnel were acting pursuant to a warrant to search the residence. This court finds
that for law enforcement to train their weapons on a closed door, as a precaution
against any unknowns that may emerge, and to continue pointing their weapons from a
distance at a known suspect who emerges, is objectively reasonable under the
circumstances as pled in Mr. Gresham’s Complaint. 89
Accordingly, assuming solely for purposes of this motion that all of the facts are
as pled by Mr. Gresham with respect to the arrest, no constitutionally excessive force
was used. Summary judgment as to both the Trooper Defendants and the Municipal
Defendants is therefore granted on this issue.
iv.

Chain Conspiracy.

Mr. Gresham’s Complaint alleges that the defendants conspired to deprive him of
his rights in violation of 42 USC § 1985. Mr. Gresham claims that
the Anchorage Police Department, Municipality of Anchorage,
Alaska State Troopers, MEA, and a prosecutor for the United
States Attorney’s Office did conspire or go in disguise, some parties
unknown, for the purpose of depriving, either directly or indirectly,
the equal protection of the laws, or equal privileges and immunities
under the Laws and Constitution. 90
Section 1985(3) provides, in relevant part:

88

See, e.g., Robinson, 278 F.3d at 1015 (“We agree with the Fifth Circuit that ‘[a] police officer who
terrorizes a civilian by brandishing a cocked gun in front of that civilian's face may not cause physical
injury, but he has certainly laid the building blocks for a section 1983 claim against him.’) (citing
Petta v. Rivera, 143 F.3d 895, 905 (5th Cir.1998) (citation omitted) (emphasis in original)).

89

See Davis, 478 F.3d at 1053 (citing Smith, 394 F.3d at 701).

90

Compl. at 2. Elsewhere, Mr. Gresham includes in the list of alleged conspirators members of the
U.S. Attorney’s Office, as well as members of the federal judiciary, by name. See Attach. A to
Compl. at 2 (Docket 1-1).

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If two or more persons in any State or Territory conspire or go in
disguise on the highway or on the premises of another, for the
purpose of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; or for the purpose of
preventing or hindering the constituted authorities of any State or
Territory from giving or securing to all persons within such State or
Territory the equal protection of the laws; . . . in any case of
conspiracy set forth in this section, if one or more persons engaged
therein do, or cause to be done, any act in furtherance of the object
of such conspiracy, whereby another is injured in his person or
property, or deprived of having and exercising any right or privilege
of a citizen of the United States, the party so injured or deprived
may have an action for the recovery of damages occasioned by
such injury or deprivation, against any one or more of the
conspirators. 91
Thus, § 1985(3) allows a cause of action for conspiracy to deprive a plaintiff of his
constitutional rights, but only where the plaintiff has suffered an actual constitutional
deprivation. 92
As detailed above, this court has ruled that the defendants are entitled to
summary judgment on all of Mr. Gresham’s claims, with the exception of his challenge
to the search warrant and the Miranda warning, as to which further proceedings have
been stayed pending the conclusion of the criminal case. As a matter of law, therefore,
Mr. Gresham cannot sustain an action for § 1985 conspiracy based on the dismissed
claims, as he has not demonstrated any deprivation as required by § 1985(3).
As discussed above, Mr. Gresham’s § 1983 claims arising from the alleged lack
of probable cause for the warrant and alleged violation of Miranda rights are not

91

42 U.S.C.A. § 1985(3).

92

See also Municipal Defs.’ Mem. in Supp. at 2 (Docket 22) (“fundamental to establishing a
conspiracy under § 1985 is that the complaint must allege a theory, and facts, that support an
underlying § 1983 claim.”).

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presently before the court. That portion of Mr. Gresham’s claim of conspiracy under
§ 1985 are inexorably linked to these § 1983 claim. Accordingly, for the reasons stated
above in this court’s application of Heck and Wallace to Mr. Gresham’s § 1983 claims,
Mr. Gresham’s related § 1985 claims against the remaining defendants are also
STAYED until the conclusion of his criminal proceedings.
CONCLUSION
For the foregoing reasons, it is ordered:
1.

Mr. Masters’ Motion at docket 28 is GRANTED. Mr. Masters is dismissed

from this action.
2.

The Motion to Dismiss Municipal Defendants MOA, APD, and Mark Mew

at docket 21 is GRANTED, and these three defendants are dismissed from this action.
3.

MEA’s Motion for Summary Judgment at docket 60 is GRANTED. MEA is

dismissed from this action.
4.

The Troopers Defendants’ Motion for Summary Judgment at docket 34

and the Motion to Dismiss Municipal Defendants Jack Carson and Eric Smith at docket
21, treated as a Rule 56 motion for summary judgment, are GRANTED with respect to
all of Mr. Gresham’s claims raised against these defendants in this action except his
§§ 1983 and 1985 claims relating to the execution of the search warrant and the alleged
violation of Miranda rights as pled against Jack Carson, Eric Smith, Michael Ingram and
Kyle Young.
5.

Mr. Gresham’s §§ 1983 and 1985 claims relating to the execution of the

search warrant and the alleged violation of his Miranda rights as pled against Jack
Carson, Eric Smith, Michael Ingram, and Kyle Young are STAYED until the conclusion
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of Case No. 3:12-cr-00015-TMB, including any appeal or the expiration of the time limit
for any appeal in that case has run. At that time, any party may file a motion to lift the
stay or dismiss this matter.
6.

Mr. Gresham shall file a report with this court regarding the status of his

criminal proceedings no later than November 30, 2012, and at such intervals thereafter
as this court may order.
7.

Mr. Gresham’s Motion to Stay Proceedings at docket 66 is DENIED as

moot.
DATED at Anchorage, Alaska this 7th day of September, 2012.
/s/ Sharon L. Gleason
United States District Judge

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