Vasquez v. Lewis et al
Filing
55
MEMORANDUM AND ORDER granting in part and denying in part Motions to Dismiss by defendant Lewis 38 , by defendant Edie 47 , and by defendant Jimerson 49 . Any claims asserted against defendants Lewis, Edie, and Jimerson in their official capacities are hereby dismissed based upon Eleventh Amendment immunity. The remainder of the defendants' motions are denied. Signed by District Judge Richard D. Rogers on 1/9/2013. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PETER L. VASQUEZ,
)
)
)
)
)
)
)
)
)
)
_
Plaintiff,
v.
DAX K. LEWIS, RICHARD JIMERSON,
and JASON EDIE,
Defendants.
Case No. 12-4021-RDR
MEMORANDUM AND ORDER
This is an action brought by the plaintiff pursuant to 42 U.S.C.
' 1983 against three Kansas Highway Patrol(KHP) troopers, Dax K.
Lewis, Richard Jimerson and Jason Edie.
Plaintiff contends that he
was illegally detained by the officers when his car was stopped on
December 16, 2011.
dismiss.
Each of the troopers has filed a motion to
Having carefully reviewed the arguments of the parties,
the court is now prepared to rule.
Plaintiff initially filed his complaint on February 28, 2012.
He then filed an amended complaint on September 5, 2012.
Plaintiff
attached a transcript of a recording that he made on the night of
the stop to the amended complaint.
The court shall consider the
transcript as well as the amended complaint in considering the
defendants= motions to dismiss.
See GFF Corp. v. Associated
Wholesale Grocers, 130 F.3d 1381, 1385 (10th Cir. 1997).
I.
In his amended complaint, plaintiff alleges that he was
traveling on Interstate 70 in Wabaunsee County, Kansas on December
16, 2011.
He was stopped by KHP Trooper Lewis and cited for a
registration violation because the tint of his windows made it
difficult for his temporary Colorado tag to be seen at night.
He
further alleges that Troopers Jimerson and Lewis Adiscussed their
observations and jointly decided to continue [his] detention after
issuance of the citation.@
Plaintiff alleges that Troopers Jimerson
and Lewis Adid so without reasonable suspicion and in violation of
[his] Fourth Amendment rights.@
Plaintiff asserts that while was he stopped he told Troopers
Jimerson and Lewis he was on his way to Elkton, Maryland to join his
girlfriend and his daughter who already lived there.
He also alleged
that he carried some of his personal belongings with him as part of
the final portion of his move.
During the stop, the troopers checked
his registration and determined he also owned a 2011 Chevy Malibu.
Trooper Lewis also noticed that one of plaintiff=s headlights was not
functioning.
asked
A further conversation ensued in which Trooper Lewis
plaintiff
why
cross-country trip.
he
was
not
driving
his
newer
car
on
a
Plaintiff explained that he had purchased this
car, a 1992 BMW, for his girlfriend and the 2011 Malibu had already
been moved to Maryland on a previous trip.
Plaintiff was then asked
where all of Ahis stuff was@ and plaintiff explained that Amost of his
2
belongings had already been moved to Maryland, and this was his final
trip between his home in Colorado and his new home in Maryland.@
After presenting the ticket to plaintiff, and indicating
that
plaintiff was free to leave, Trooper Lewis Areturned to ask more
questions
of
[plaintiff].@
Trooper
Lewis
asked
if
he
was
transporting anything illegal and plaintiff said he was not.
Trooper Lewis asked for permission to search the car and plaintiff
denied the request.
Trooper Lewis then asked for permission to have
a canine search the exterior of plaintiff=s vehicle.
Plaintiff told
Trooper Lewis that he would not consent to a canine search.
Lewis then told plaintiff he was being detained.
Trooper
When plaintiff
asked why, Trooper Lewis responded that Ahe thought something
criminal might be going on.@
He did not, however, specify what
criminal activity he suspected.
Plaintiff was forced to wait
fifteen minutes for a drug dog to arrive.
Plaintiff alleges that
Trooper Edie arrived later with the drug dog and was briefed on the
situation by Trooper Jimerson.
Trooper Edie used the drug dog to
sniff the exterior of plaintiff=s car Awhile the Plaintiff was
detained without reasonable suspicion to believe he was involved in
criminal activity.@
After the drug dog sniff, Trooper Lewis demanded that plaintiff
turn over his keys to enable the officers to search the vehicle.
When
plaintiff asked why he had to provide the keys, Trooper Lewis told
3
him, ABecause of the dog.@
Nothing illegal was found in the car.
After being detained for approximately 45 minutes total and 30
minutes after the issuance of the citation, plaintiff was permitted
to
leave.
Plaintiff
has
alleged
that
he
was
Apolite
and
He does assert, however, that Ahe
non-obstructive@ during the stop.
clearly voiced his objections every time the troopers attempted to
get his consent to a search of his vehicle.@
Plaintiff
used
his cellular phone to record the audio-video of his interactions with
the troopers.
Plaintiff alleges that the transcripts of these
recordings show that Aany reasonable officer would have known that
there was not reasonable suspicion to detain [him].@
Plaintiff seeks the following relief: (1) $375 in damages to
his vehicle; (2) $10,000 for non-economic damages; (3) punitive
damages; (4) reasonable attorney=s fees; and (5) payment of costs.
II.
In their separate motions, the defendant troopers have raised
a variety of arguments, some collectively and some individually.
Each of the troopers contends that any claims asserted by plaintiff
against any one of them in their official capacity is barred by
Eleventh Amendment immunity.
Each trooper further argues that
plaintiff cannot assert an official capacity against each of them
because a KHP Trooper is not a Aperson@ subject to liability under
42 U.S.C. ' 1983.
They further assert that plaintiff lacks standing
4
to claim $375 for damages to the vehicle because the car belongs to
his girlfriend.
The troopers next contend they are entitled to
dismissal based upon qualified immunity.
Each contends that his
conduct would not violate clearly established law of which every
reasonable law enforcement officer would have known.
Finally,
Troopers Jimerson and Edie assert that plaintiff has failed to plead
facts sufficient to show that each personally participated in any
alleged violation of plaintiff=s rights.
Trooper Edie has also
argued that he cannot be liable to merely conducting a canine sniff
of the plaintiff=s car since the law is clearly established that a
canine sniff does not implicate the Fourth Amendment.
III.
ATo survive a motion to dismiss [under Rule 12(b)(6) ], a
complaint must contain sufficient factual matter, accepted as true,
to >state a claim to relief that is plausible on its face.= A Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008).
AA 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, 556 U.S. at 678. Determining whether a
complaint states a plausible claim for relief is a Acontext-specific
task that requires the reviewing court to draw on its judicial
5
experience and common sense.@
decided
is
Awhether
the
See id. at 679. The question to be
complaint
sufficiently
alleges
facts
supporting all the elements necessary to establish an entitlement
to relief under the legal theory proposed.@ Lane v. Simon, 495 F.3d
1182, 1186 (10th Cir. 2007)(internal quotation omitted).
A.
Eleventh Amendment
The defendants seek dismissal of any claims made by plaintiff
against them in their official capacities.
The defendants contend
that such claims are barred by the Eleventh Amendment.
Plaintiff
has not responded to this argument, and the court believes that this
lack of a response is an indication from plaintiff that he never
intended to assert such a claim.
Nevertheless, to the extent that
such claims can be gleaned from plaintiff=s complaint, the court shall
dismiss them.
When an officer is sued under ' 1983 in his official
capacity, the suit is simply another way of pleading an action against
the entity of which the officer is an agent.
In this case, the
officers are employed by the State of Kansas.
Official capacity
suits against the State of Kansas are barred by the Eleventh
Amendment.
See Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995).
Accordingly, to the extent that such claims are asserted by the
plaintiff, they shall be dismissed.
B.
Standing to Raise Damages Claim
Trooper Edie has also suggested that plaintiff lacks standing
6
to claim $375 for alleged damage to a car he claims belongs to his
girlfriend.
He contends that plaintiff cannot assert this claim on
behalf of his girlfriend.
He further argues that such a claim is
a state law claim, not a civil rights claim.
He asserts that such
a claim is not cognizable under ' 1983 based upon a violation of the
Fourth Amendment.
Plaintiff has responded that he does have
standing to assert this claim because the car is titled in his name.
Based upon the present record, the court is unable to dismiss
plaintiff=s claim for damages to the car.
There is nothing in the
amended complaint to indicate that plaintiff lacks standing to assert
this claim.
Moreover, the court finds no support for defendant=s
position that his claim for property damages is not cognizable under
' 1983.
See Townes v. City of New York, 176 F.3d 138, 148-49 (2nd
Cir. 1999)(AVictims of unreasonable searches or seizures may recover
damages directly related to the invasion of their privacy--including
(where appropriate) damages for physical injury, property damages,
injury to reputation, etc.@).
C.
Failure to State a Claim
The court next considers whether the plaintiff has sufficiently
alleged a constitutional violation against defendants Jimerson and
Edie.
The Fourth Amendment guarantees an individual=s right to be
free from unlawful search and seizure.
555 U.S. 135, 136 (2009).
Herring v. United States,
An investigatory stop must be Areasonably
7
related
in
scope
to
the
circumstances
interference in the first place.@
(1968).
which
justified
the
Terry v. Ohio, 392 U.S. 1, 20
In order to satisfy this requirement, the ensuing detention
Amust not exceed the reasonable duration required to complete the
purpose of the stop.@
Cir. 2007).
United States v. Rice, 483 F.3d 1079, 1082 (10th
Accordingly, in the context of an investigatory stop
of a motorist, A[o]nce an officer returns the driver=s license and
registration, the traffic stop has ended and questioning must cease;
at that point, the driver must be free to leave.@
Villa, 589 F.3d 1334, 1339 (10th Cir. 2009).
United States v.
The detention cannot
be continued beyond this point Aunless the driver consents to further
questioning or the officer has reasonable suspicion to believe other
criminal activity is afoot.@
Rice, 483 F.3d at 1083B84.
Even a very
brief extension of the detention without consent or reasonable
suspicion violates the Fourth Amendment.
See United States v.
Lopez, 443 F.3d 1280, 1285 (10th Cir. 2006) (AThe Supreme Court has
also made clear ... that an individual >may not be detained even
momentarily
without
reasonable,
objective
grounds
for
doing
so.=@(quoting Florida v. Royer, 460 U.S. 491, 498 (1983))).
To prevail on a ' 1983 claim, a plaintiff must show that a
defendant personally participated in a constitutional violation, see
Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996), or
Apersonally directed the violation or had actual knowledge of the
8
violation and acquiesced in its continuance,@ Beedle v. Wilson, 422
F.3d 1059, 1074 (10th Cir. 2005).
The amended complaint adequately alleges that defendant Trooper
Jimerson
decided,
along
with
Trooper
Lewis,
to
Acontinue
the
detention of [plaintiff] after the issuance of the citation@ and they
did so Awithout reasonable suspicion.@
This allegation and the
supporting alleged facts in the amended complaint, when viewed as
true with all inferences drawn in plaintiff=s favor, are sufficient
to allege a ' 1983 claim against Trooper Jimerson.
The amended complaint further alleges that Trooper Edie, who
arrived later at the scene of the stop with the drug dog, Afacilitated
and participated in the prolonged detention of [plaintiff] without
reasonable suspicion@ after he was Abriefed on the situation@ by
Trooper Jimerson.
This presents a closer case than the claim against
Trooper Jimerson, but the court is persuaded that there are
sufficient allegations in the amended complaint against Trooper Edie
to demonstrate that he had actual knowledge of the violation and
acquiesced in its continuance.
Accordingly, the court shall deny
this aspect of the defendants= motions.
Trooper Edie has also suggested that he is not liable for merely
using his dog to sniff the exterior of plaintiff=s vehicle because
a dog sniff does not implicate the Fourth Amendment.
Although the
Supreme Court has held that a dog sniff, standing alone, does not
9
violate the Fourth Amendment, United States v. Place, 462 U.S. 696
(1983), it must occur during a lawful traffic stop. Illinois v.
Caballes, 543 U.S. 405, 409 (2005). Thus, having determined that the
plaintiff has made sufficient allegations that the defendants did
not have reasonable suspicion to further detain plaintiff following
the return of his documents, then we find no merit to Trooper Edie=s
contention.
IV.
The court next considers the application of qualified immunity
here.
Qualified immunity protects governmental officials Afrom
liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.@ Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). This doctrine balances Athe need to hold public
officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability
when they perform their duties reasonably.@
U.S. 223, 231 (2009).
Pearson v. Callahan, 555
The qualified immunity inquiry requires
analysis of two distinct questions: (1) whetherC-taken in the light
most
favorable
to
the
plaintiff
as
the
party
asserting
the
injuryC-the plaintiff alleges sufficient facts to show the public
official=s conduct violated plaintiff=s constitutional rights; and
(2) whether the constitutional right alleged to be violated was
10
clearly established at the time of the alleged violation in a
sufficiently analogous factual setting.
See Saucier v. Katz, 533
U.S. 194, 201 (2001), abrogated in part by Pearson, 555 U.S. at 236.
While it is often desirable to proceed initially with the first prong,
a finding of qualified immunity may be appropriate on either
question. See Pearson, 555 U.S. at 236.
The determination of whether a right was clearly established
within a sufficiently analogous factual setting must be made within
the specific context of the case, not as a broad general proposition.
Saucier, 533 U.S. at 201; see also Medina v. City and County of Denver,
960 F.2d 1493, 1497 (10th Cir. 1992). AOrdinarily, in order for the
law to be clearly established, there must be a Supreme Court or Tenth
Circuit decision on point, or the clearly established weight of
authority from other courts must have found the law to be as the
plaintiff maintains.@ Medina, 960 F.2d at 1498.
This does not mean
the prior case law must have precisely the same facts, however, but
rather requires a particularized inquiry to determine whether the
contours of the right were sufficiently defined by prior case law
such that Aa reasonable official would understand what he is doing
violates that right.@ See Anderson v. Creighton, 483 U.S. 635, 640
(1987). AThe more obviously egregious the conduct in light of
prevailing constitutional principles, the less specificity is
required from prior case law to clearly establish the violation.@
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Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).
The defendants argue that plaintiff has not demonstrated
the
constitutional
right
alleged
to
be
violated
was
that
clearly
established at the time of the alleged violation in a sufficiently
analogous factual setting.
We must disagree.
The court is
thoroughly persuaded that the law was clearly established that a law
enforcement officer cannot detain a driver after he has issued a
citation or warning without reasonable suspicion unless the driver
consents to further questioning or the officer has reasonable
suspicion to believe other criminal activity is afoot.
The
defendants have argued that the various facts present here indicate
that they are entitled to qualified immunity on plaintiff=s claim.
The defendants specifically suggest that the following facts show
that the officers had reasonable suspicion to detain the plaintiff:
(1) plaintiff=s extreme nervousness; (2) the unusual arrangement of
blankets to cover items in the car despite the tinted windows of the
car; (3) fresh fingerprints on the trunk; (4) plaintiff=s lack of eye
contact; (5) plaintiff covering his mouth when talking to them; (6)
plaintiff=s evasive, hesitant and incomplete answers to their
questions; (7) plaintiff=s inconsistent answers to questions by
different
officers
and
internally
inconsistent
answers;
(8)
plaintiff traveling alone through the middle of the nightB-nearly 3
a.m.; (9) plaintiff choosing to drive an older car across the country
12
rather than two newer cars; and (10) plaintiff providing a different
reaction to a question about marijuana than to a question about
cocaine.
In making this argument, the defendant relies upon a number of
cases where either (1) the court granted summary judgment to law
enforcement officers based upon qualified immunity in § 1983 actions
asserting illegal search or seizure under the Fourth Amendment; or
(2) criminal cases where the court denied motions to suppress after
considering
arguments
that
law
enforcement
officers
lacked
reasonable suspicion to search or seize them under the Fourth
Amendment.
The problem with defendants= argument is none of the facts noted
above are presently before the court.
The court must consider the
defendants= motions based only upon the amended complaint and the
transcripts which have been attached.
At this stage, for purposes
of deciding defendants’ motions, the facts alleged do not support
a finding that it was Aobjectively reasonable@ for the defendants to
believe there was reasonable suspicion for the continued detention
of the plaintiff.
Indeed, on the facts alleged by plaintiff, a
reasonably competent officer would not believe he had reasonable
suspicion to detain plaintiff after he issued the citation and
returned plaintiff=s documents.
Accordingly, the defendants are not
entitled to qualified immunity from plaintiff=s unreasonable seizure
13
claim at this time.
In reaching this decision, the court notes the defendants=
reliance upon a recent decision issued by the Tenth Circuit,
Arencibia v. Barta, 2012 WL 4513233 (10th Cir. 10/3/2012).
There,
the Tenth Circuit affirmed a grant summary judgment by the district
court to law enforcement officers based upon qualified immunity.
Plaintiff had filed ' 1983 action against several officers, alleging
that the defendants had violated his Fourth Amendment right to be
free from unlawful search and seizure during a traffic stop.
Similarly
to
this
case,
plaintiff
did
not
dispute
the
constitutionality of the initial traffic stop or the subsequent
search of his truck.
Arencibia, 2012 WL 4513233 at * 3.
Rather,
he challenged his detention following the receipt of a warning and
the return of his papers as an unconstitutional seizure under the
Fourth Amendment, as the plaintiff does here.
Id.
The district
court concluded after considering all of the evidence at the summary
judgment that qualified immunity applied because the law did not
clearly establish that the officers lacked reasonable suspicion in
the context of that stop.
Id. at * 5.
There, the law enforcement
officer had identified multiple factors pointing to reasonable
suspicion.
Id.
Under those circumstances, the Tenth Circuit
agreed with the district court that the officer, having identified
multiple factors pointing to reasonable suspicion, could not have
14
been
on
notice
that
constitutional right.
he
was
violating
a
clearly
established
Id.
The distinguishing factor here is that the defendants are
seeking the application of qualified immunity on a motion to dismiss.
The court understands that qualified immunity questions should be
resolved Aat the earliest possible stage of litigation.@
Schwartz
v. Booker, ___ F.3d ____, 2012 WL 6604196 at * 3 (10th Cir.
12/19/2012)(quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)(per
curiam)).
Nevertheless, the various factors noted by the defendants
are not presently the court.
The court, at this stage, is limited
to considering the amended complaint and any attachments to it
provided by the plaintiff.
See County of Santa Fe, N.M. v. Pub. Serv.
Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002)(AIn deciding a Rule
12(b)(6) motion, a federal court may only consider facts alleged
within the complaint.@).
The court simply cannot make a legal
determination here because the facts surrounding the detention are
critical to the application of qualified immunity.
The facts as
alleged in this case make a plausible Fourth Amendment violation.
In making that determination, the court does not find that reasonable
suspicion was lacking, only that it was sufficiently pled, and that
determination is reserved for the summary judgment stage.
Thus, the
court is not persuaded that Arencibia provides any support for the
defendants= position at this time.
15
IT IS THEREFORE ORDERED that defendant Lewis= motion to dismiss
(Doc. #38) be hereby granted in part and denied in part.
Any claims
asserted against defendant Lewis in his official capacity are hereby
dismissed based upon Eleventh Amendment immunity.
The remainder of
the defendant=s motion is denied.
IT IS THEREFORE ORDERED that defendant Edie=s motion to dismiss
(Doc. #47) be hereby granted in part and denied in part.
Any claims
asserted against defendant Edie in his official capacity are hereby
dismissed based upon Eleventh Amendment immunity.
The remainder of
the defendant=s motion is denied.
IT IS THEREFORE ORDERED that defendant Jimerson=s motion to
dismiss (Doc. #49) be hereby granted in part and denied in part.
Any
claims asserted against defendant Jimerson in his official capacity
are hereby dismissed based upon Eleventh Amendment immunity.
remainder of the defendant=s motion is denied.
IT IS SO ORDERED.
Dated this 9th day of January, 2013 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
16
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