Roseen v. Idaho State Police et al

Filing 70

MEMORANDUM DECISION AND ORDER granting without prejudice 41 Defendant's Motion to Dismiss Count IV of Plaintiff's Revised Amended Complaint. If Plaintiff wishes to amend Count IV, he must do so within 21 days of this Order. Any other amendment must be accompanied by a motion for leave to amend. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DARIEN E. ROSEEN, individually,
Case No. 1:14-CV-118-REB
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
IDAHO STATE POLICE TROOPER
JUSTIN KLITCH, in his individual capacity;
CITY OF FRUITLAND; OFFICER ERIC
CHRISTENSEN, in his individual capacity;
PAYETTE COUNTY; DEPUTY
WEBSTER, in his individual capacity; and
JOHN DOES I-V, unknown members of law
enforcement in their individual capacities,
Defendants.

Currently pending before the Court is Defendant Justin Klitch’s Motion to Dismiss Count
IV of Plaintiff’s Revised Amended Complaint (Dkt. 41), filed September 12, 2014. This motion
is considered under Fed. R. Civ. P. 12(c) as a motion for judgment on the pleadings, because the
motion was untimely filed as a Rule 12(b)(6) motion.
BACKGROUND
On July 30, 2014, Plaintiff Darien Roseen (“Plaintiff”) filed a Revised Amended
Complaint (“Amended Complaint”) against Idaho State Police Trooper Justin Klitch, the City of
Fruitland, City of Fruitland Police Officer Eric Christensen, Payette County, and Payette County
Sheriff’s Office Deputy Webster, bringing a 42 U.S.C. § 1983 action and alleging violations of
the Fourth, Fifth, and Fourteenth Amendments for unreasonable search and seizure, unlawful
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selective enforcement, and unauthorized operation of a private motor vehicle.1 (Amend. Compl.
(Dkt. 35.)) The allegations contained in the Amended Complaint arise from a traffic stop made
by Trooper Klitch, and the subsequent transport of Plaintiff’s vehicle from the location of the
traffic stop to the sally port at the Payette County jail, and the search of the vehicle, all occurring
on January 25, 2013 with the assistance of other law enforcement officers contacted by Trooper
Klitch. Defendant Klitch has moved to dismiss Plaintiff’s Count IV, in which Plaintiff alleges
that Trooper Klitch’s decision to stop Plaintiff’s vehicle was motivated by a discriminatory
purpose, that being Plaintiff was driving a vehicle with Colorado license plates, which infringed
upon his right to interstate travel.
MOTION FOR JUDGMENT ON THE PLEADINGS
Motions for a judgment on the pleadings are governed by Federal Rules of Civil
Procedure 12(c). The principal difference between motions filed pursuant to Federal Rule of
Civil Procedure 12(b) and Rule 12(c) is the time of filing. Dworkin v. Hustler Magazine, Inc.,
867 F.2d 1188, 1192 (9th Cir. 1989). A party may move for judgment on the pleadings at any
point after the pleadings close. Fed. R. Civ. P. 12(c). “Because the motions are functionally
identical, the same standard of review applicable to Rule 12(b) motions applies to its Rule 12(c)
analog.” Dworkin, 867 F.2d at 1192.
A motion pursuant to Rule 12(b)(6) or Rule 12(c) challenges the legal sufficiency of the
claims stated in the complaint. Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir.
2011). The relevant inquiry under either Rule 12(b)(6) or Rule 12(c) is whether the plaintiff’s

1

Only Defendant Klitch remains as a defendant in this case; the other Defendants have
been dismissed. (See Dkt. 64.)
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allegations are sufficient under Federal Rule of Civil Procedure 8(a), which sets forth the
minimum pleading requirement, i.e., that the plaintiff provide a “short and plain statement of the
claim showing that the pleader is entitled to relief,” and “give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007).
When reviewing a motion to dismiss, the court must accept as true all non-conclusory,
factual (not legal) allegations made in the complaint, Ashcroft v. Iqbal, 565 U.S. 662, 678-79
(2009); Erickson v. Pardus, 551 U.S. 89 (2007), and draw all reasonable inferences in favor of
the non-moving party, Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943, 949 (9th Cir. 2009).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Iqbal, 565 U.S. at 678 (citing Twombly, 550 U.S. at 555). A complaint must
contain sufficient factual allegations to provide plausible grounds for entitlement to relief.
Twombly, 550 U.S. at 555-56. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 565 U.S. at 678.
The Court may not consider any evidence contained outside the pleadings without
converting the motion to one for summary judgment. See Fed. R. Civ. P. 12(b); United States v.
Ritchie, 342 F.3d 903, 907-908 (9th Cir. 2003). “A court may, however, consider certain
materials-documents attached to the complaint, documents incorporated by reference in the
complaint, or matters of judicial notice-without converting the motion to dismiss into a motion

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for summary judgment.” Id. at 908 (citing Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir.
2002); Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994); 2 James Wm. Moore et al., Moore’s
Federal Practice § 12.34[2] (3d ed.1999)).
DEFENDANT’S MOTION TO DISMISS
Defendant Klitch moves to dismiss Plaintiff’s Count IV: Unlawful Selective Enforcement
in Violation of the Right to Interstate Travel in Violation of the Equal Protection Clause of the
Fourteenth Amendment. First, Defendant Klitch contends that Plaintiff does not have a legally
cognizable selective enforcement claim because Plaintiff is not a member of a legally identifiable
class of persons for purposes of the Equal Protection clause and Plaintiff has not alleged a
similarly situated class of persons to which to compare his alleged class. Second, Defendant
Klitch argues that Plaintiff’s constitutional right to interstate travel was not violated or infringed
upon.
A.

Selective Enforcement and Equal Protection
Plaintiff has stated insufficient facts to proceed under the Fourteenth Amendment Equal

Protection Clause. Under the Equal Protection Clause, “all persons similarly circumstanced shall
be treated alike” by governmental entities. F.S. Royster Guano Co. v. Virginia, 253 U.S. 412,
415 (1920). However, “[t]he Constitution does not require things which are different in fact or
opinion to be treated in law as though they were the same.” Tigner v. Texas, 310 U.S. 141, 147
(1940). In pleading a § 1983 claim for violation of the Equal Protection Clause, a plaintiff must
show both a discriminatory purpose and a discriminatory effect. See Thornton v. City of St.
Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005). To allege the requisite discriminatory effect, a
complaint must plead facts demonstrating that the plaintiff was treated in a manner inconsistent

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with other similarly situated, meaning that similarly situated individuals could have been
prosecuted,2 but were not. Lacey v. Maricopa County, 693 F.3d 896, 920 (9th Cir. 2012). To
allege a discriminatory purpose, a complaint must plead facts that establish that “the decision
maker . . . selected or reaffirmed a particular course of action at least in part ‘because of’, not
merely ‘in spite of’, its adverse effects upon an identifiable group. Wayte v. United States, 470
U.S. 598, 610 (1985) (internal citation omitted).
Plaintiff alleges that Defendant Klitch “profiled, followed, and pulled over” his vehicle
because it had Colorado license plates, a state that had recently legalized marijuana.3 Amend.
Compl. ¶¶ 181, 187, 189 (Dkt. 35). While it is plausible that Plaintiff was a part of an
“identifiable group” (that of being a traveler in a vehicle with license plates identifying a state
that had legalized marijuana) that was adversely effected, Plaintiff has not alleged facts that
other persons from other states could have been followed and pulled over, but were not. The
crux of a selective enforcement claim is the differential treatment of similarly situated persons,
yet the Amended Complaint lacks any allegations in this respect. Plaintiff must identify a
similarly situated class of individuals against which his experience can be compared. See Lacey,
693 F.3d at 920. Because he has not done so, his claim will be dismissed without prejudice.

2

Although the word “prosecuted” is used, selective enforcement can be shown through a
variety of actual or threatened arrests, searches and temporary seizures, citations and other
coercive conduct by the police. Lacey, 693 F.3d at 920.
3

The record is incomplete on this particular detail. The Court understands that a ballot
initiative legalizing possession and sale of marijuana under particular circumstances had passed
in Colorado in 2012. Idaho, of course, does not border Colorado, and Plaintiff had just crossed
into Idaho from Oregon at the time of the traffic stop.
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B.

Right to Interstate Travel
Plaintiff also alleges that Defendant Klitch’s targeting and profiling of his vehicle

infringed upon and discouraged his constitutional right to interstate travel. Amend. Compl.
¶¶ 183, 185. The constitutional right to travel comprises three components: (1) “the right to go
from one place to another,” by using “highway facilities and other instrumentalities of interstate
commerce,” which “includ[es] the right to cross state borders while en route”; (2) “the right to be
treated as a welcome visitor rather than an unfriendly alien when temporarily present in the
second State”; and (3) “for those travelers who elect to become permanent residents, the right to
be treated like other citizens of that State.” See Saenz v. Roe, 526 U.S. 489, 500-01 (1999)
(internal quotation marks omitted). Plaintiff’s allegations do not implicate the third component
of the right to travel recognized by Saenz, as he does not allege that he became a permanent
resident of the State of Idaho. The Supreme Court in Saenz recognized that the second
component of the right to travel arises out of the Privileges and Immunities Clause, Article IV,
Section 2 of the U.S. Constitution. Id. at 501. While the face of Plaintiff’s allegation could be
argued to implicate this second component, this component protects only the rights of
nonresidents to exercise fundamental economic rights or to seek important services. See id. at
501-02 (discussing cases which addressed employment, medical services, and commercial
fishing). Plaintiff does not allege he was denied economic rights or important services.
Hence, all that remains is the first component of the right to travel, which pertains to the
right to transit in and through the 50 states. Plaintiff alleges that Trooper Klitch’s “profiling” of
his vehicle and pulling him over violated this right. Amend. Compl. ¶ 181. The burden placed
upon his travels by such law enforcement action, however, to not rise to the level of a

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constitutional violation. In Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999), the Ninth Circuit
considered similar arguments, and ruled that “burdens on a single mode of transportation do not
implicate the right to interstate travel . . . and [Plaintiff] does not have a fundamental ‘right to
drive.’” 176 F.3d at 1205-06 (noting that “[t]he plaintiff is not being prevented from traveling
interstate by public transportation, by common carrier, or in a motor vehicle driven by someone
with a license to drive it”). Similarly, the toils on travel created by “gasoline taxes” or “toll
roads” do not constitute violations of the right to travel. Id. at 1205. Plaintiff’s Count IV alleges
that he was prevented from traveling because his vehicle was pulled over.4 This implicates only
one mode of transportation, that of driving. Burdens on a single mode of transportation do not
violate the right to travel. See, e.g., Gilmore v. Gonzales, 435 F.3d 1125, 1137 (9th Cir. 2006)
(“[Plaintiff] does not possess a fundamental right to travel by airplane even though it is the most
convenient mode of travel for him”). The Court finds that Plaintiff has not stated a claim for
violation of his right to travel.
C.

Leave to Amend
The Court will grant Defendant’s motion to dismiss, but without prejudice. If other facts

known can more fully and properly support a claim for selective enforcement and infringement
of right to travel, Plaintiff can seek to amend. As the Amended Complaint currently reads,
however, Plaintiff has not satisfied the standards of Iqbal and Twombly and stated plausible
grounds for relief.

4

To the extent Plaintiff’s allegations incorporate the facts surrounding the seizure and
inspection of his car, those facts are implicated in his Fourth Amendment claim, not Count IV.
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ORDER
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss Count IV of
Plaintiff’s Revised Amended Complaint (Dkt. 41) is GRANTED, without prejudice. If Plaintiff
wishes to amend Count IV, he must do so within 21 days of this Order. Any other amendment
must be accompanied by a motion for leave to amend.

DATED: March 30, 2015

Honorable Ronald E. Bush
U. S. Magistrate Judge

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