Fernandes v. City of Broken Arrow, Oklahoma et al

Filing 22

OPINION AND ORDER by Judge Claire V Eagan ; setting/resetting deadline(s)/hearing(s): filing of amended complaint no later than/ ( Miscellaneous Deadline set for 2/17/2017); granting in part and denying in part 13 Motion to Dismiss (djh, Dpty Clk)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
ELTON FERNANDES,
Plaintiff,
v.
CITY OF BROKEN ARROW, OKLAHOMA,
and CRAIG BROWN, individually and in his
official capacity, and MIKE JACKSON,
individually and in his official capacity,
Defendants.

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Case No. 16-CV-0630-CVE-FHM

OPINION AND ORDER
Now before the Court is Defendants’ Motion to Dismiss and Memorandum of Law in
Support (Dkt. # 13). Defendants ask the Court to dismiss plaintiff’s complaint for failure to state a
claim upon which relief can be granted. Dkt. # 13, at 1. Plaintiff responds that he properly pled all
claims, and, alternatively, asks the Court for leave to amend his complaint. Dkt. # 20.
I.
This case arises out of the alleged illegal search of plaintiff’s automobile and home and his
subsequent arrest and prosecution for knowingly and intentionally possessing with intent to
distribute AB-FUBINACA and XLR11. Dkt. # 1, at 3-5. Plaintiff alleges that on the morning of
October 7, 2014, six to eight officers were conducting surveillance of his residence. Plaintiff asserts
that at approximately 11:11 a.m., defendant Mike Jackson notified defendant Craig Brown that
plaintiff had carried a white plastic bag from his residence to his vehicle and was driving toward
Brown. Id. at 3. Plaintiff asserts that Jackson and Brown were working in dual capacities on October
7, 2016, as officers of the Broken Arrow Police Department (BAPD) and as members of a Drug

Enforcement Agency (DEA) task force. Id. at 2. Plaintiff alleges that Brown saw plaintiff fail to
signal a turn and initiated a traffic stop. Id. at 3. Plaintiff asserts that, after providing his license and
registration, Brown began questioning plaintiff and never told plaintiff he was free to leave. Id.
During the questioning, plaintiff asserts that he was outside his vehicle, flanked by Brown and
Jackson with two uniformed officers standing ten to twelve feet behind them, and that three law
enforcement vehicles with their lights flashing were parked immediately behind him. Id. Plaintiff
alleges that Brown asked him if there was anything illegal in the car, and that after plaintiff told him
there was nothing illegal in the car, Brown searched the vehicle without consent. Id. Brown found
a white bag containing approximately 100 foil packages labeled “King Kong” under the front
passenger seat of plaintiff’s vehicle. Id. Plaintiff asserts that Jackson searched plaintiff’s person and
retrieved $3,000 in cash. Id. at 3-4. Plaintiff alleges that he was released after the search because the
officers did not have the equipment needed to test whether the packages contained contraband. Id.
at 4.
Plaintiff further alleges that Brown and as many as four BAPD officers entered plaintiff’s
residence before obtaining a warrant and without the consent of plaintiff’s wife, Vallery Soares, who
was the only adult at the home. Id. Plaintiff asserts that the officers looked around the home, and
when Soares asked them to leave, the officers responded that at least two of them had to stay in the
home with her. Id. Plaintiff alleges that the officers stayed in the home until the warrant was issued.
Id. Plaintiff alleges that after the search warrant for plaintiff’s home was served and contraband was
seized from the residence, Brown and Jackson arrested plaintiff. Id. A grand jury returned a twocount indictment against plaintiff, charging him with the knowing and intentional possession with
intent to distribute of AB-FUBINACA and XLR-11, both Schedule I controlled substances, in

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violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). Id.; see also Indictment, United States v.
Fernandes, No. 15-CR-0185-JED (N.D. Okla. Dec. 7, 2015).
On February 12, 2016, Judge John E. Dowdell granted plaintiff’s motion to suppress the
evidence seized as part of the search of plaintiff’s vehicle and the search of plaintiff’s home. Dkt.
# 1, at 5; see also United States v. Fernandes, 161 F. Supp. 3d 1081 (N.D. Okla. 2016). The Court
found (1) that although the traffic stop was initially justified, the officers did not have reasonable
suspicion to continue detaining plaintiff after completing the traffic stop; (2) that the extension of
the traffic stop was not consensual; and (3) that plaintiff did not consent to the search of his vehicle.
Fernandes, 1090-93. Therefore, the Court granted plaintiff’s motion to suppress evidence obtained
during the traffic stop. Id. at 1093. Because the evidence acquired during the traffic stop would be
suppressed, the Court also found there was not probable cause to obtain a warrant for the search of
plaintiff’s home. Id. Additionally, the Court found that the officers did not act in good faith reliance
on a warrant because they entered the home before the search warrant was issued. Id. at 1093-94.
Thus, the Court granted plaintiff’s motion to suppress the evidence obtained from his home. Id. at
1094. After the Court’s suppression ruling, the United States dismissed the case against plaintiff.
Dkt. # 1, at 6.
On October 6, 2016, plaintiff brought this suit against the City of Broken Arrow; Brown,
individually and in his official capacity; and Jackson, individually and in his official capacity. Id.
Plaintiff asserts claims against Brown and Jackson under 42 U.S.C. § 1983 and Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and alleges that he
is entitled to punitive damages from Brown and Jackson. Dkt. # 1, at 6-9. Plaintiff also asserts a

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municipal liability claim against Broken Arrow under 42 U.S.C. § 1983. Id. at 9-11. Defendants now
move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. # 13.
II.
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine
whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is
properly granted when a complaint provides no “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). A complaint must contain enough “facts to state a claim to relief that is plausible on its face”
and the factual allegations “must be enough to raise a right to relief above the speculative level.”
Id. (citations omitted). “Once a claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint.” Id. at 562. Although decided within
an antitrust context, Twombly “expounded the pleading standard for all civil actions.” Ashcroft v.
Iqbal, 556 U.S. 662, 683 (2009). For the purpose of making the dismissal determination, a court
must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and
must construe the allegations in the light most favorable to a claimant. Twombly, 550 U.S. at 555;
Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton Energy
Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not accept as true those
allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. of Cnty. Comm’rs, 263 F.3d
1151, 1154-55 (10th Cir. 2001). “[C]onclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 110910 (10th Cir. 1991).

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III.
Defendants ask the Court to dismiss the complaint, arguing (1) that the § 1983 claims
against Brown and Jackson should be dismissed because they were acting under color of federal, not
state, law; (2) that the official capacity claims against Brown and Jackson should be dismissed
because they are redundant; (3) that plaintiff’s cause of action for punitive damages is
impermissible; (4) that Brown and Jackson are entitled to qualified immunity because there are no
actionable constitutional violations in this case; and (5) that plaintiff has failed to plead sufficient
facts to support its municipal liability claim. Dkt. # 13. The Court will address each of defendants’
arguments in turn.
A.
Defendants argue that the § 1983 claims against Brown and Jackson should be dismissed
because they were acting under color of federal, not state law. Section 1983 provides a claim for
relief against state actors for violation of a plaintiff’s federal rights. Becker v. Kroll, 494 F.3d 904,
914 (10th Cir. 2007). To state a claim under § 1983, a plaintiff must allege two essential elements:
(1) that a right secured by the Constitution or laws of the United States was violated and (2) that the
alleged violation was committed by a person acting under color of state law. See West v. Atkins,
487 U.S. 42, 48 (1988); Anderson v. Suiters, 499 F.3d 1228, 1232-33 (10th Cir. 2007). In Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922 (1982), the Supreme Court held that if the conduct at issue
constitutes “state action,” then it is “also action under color of state law and will support a suit under
§ 1983.” 457 U.S. at 935. “To constitute state action, ‘the deprivation must be caused by the exercise
of some right or privilege created by the State . . . or by a person for whom the State is responsible,’

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and ‘the party charged with the deprivation must be a person who may fairly be said to be a state
actor.’” West, 487 U.S. at 49 (quoting Lugar, 457 U.S. at 937) (alteration in original).
Plaintiff alleges that Brown and Jackson were acting in “dual capacities,” as members of the
DEA task force and the BAPD, and that they were therefore acting under color of state law and color
of federal law. Dkt. # 1, at 2, 6; Dkt. # 20, at 8. However, plaintiff has cited no authority for his
proposition that an individual can act under color of state and federal law simultaneously, and the
Court has found no precedent to support plaintiff’s position. To act under color of a government’s
law is to exercise power possessed by virtue of that law and made possible only because the actor
is clothed with the government’s authority. See West, 487 U.S. at 49. Although Brown and Jackson
may have been able to exercise either state or federal authority by virtue of their status as BAPD
officers who have been deputized as members of the DEA task force, they may not exercise state
and federal authority simultaneously. In other words, Brown and Jackson may act overall as dual
agents, but their actions in any particular case are made pursuant to, and possible by, the authority
of the state or federal government. Further, the Court’s finding that Brown and Jackson could not,
as a matter of law, have been acting under color of both state and federal law comports with other
federal courts who have treated local officers assigned to federal task forces as acting either under
color of state law or color of federal law. See, e.g., Guerrero v. Scarazzini, 274 F. App’x 11, 12 n.1
(2d Cir. 2008); Majors v. City of Clarksville, 113 F. App’x 659, 659 (6th Cir. 2004); Pike v. United
States, 868 F. Supp. 2d 667, 677-78 (M.D. Tenn. 2012); Bordeaux v. Lynch, 958 F. Supp. 77, 84
& n.5 (N.D.N.Y. 1997); Pou v. U.S. D.E.A., 923 F. Supp. 573, 579 (S.D.N.Y. 1996); Amoakohene
v. Bobko, 792 F. Supp. 605, 608 (N.D. Ill. 1992).

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Plaintiff may plead inconsistent, alternative claims under Rule 8(d)(2) of the Federal Rules
of Civil Procedure. Thus, at this stage, plaintiff may assert that Brown and Jackson were acting
under color of state law to support a § 1983 claim and that Brown and Jackson were acting under
color of federal law to support a Bivens claim. However, to survive a 12(b)(6) motion to dismiss,
plaintiff must plead sufficient facts to support each claim. Here, plaintiff has failed to state a § 1983
claim against Brown and Jackson because plaintiff has failed to allege facts sufficient to support that
Brown and Jackson were acting under color of state law.
Plaintiff alleges that Brown and Jackson were members of the BAPD and were deputized
members of the DEA task force. Dkt. # 1, at 2. Although plaintiff’s complaint is not entirely clear,
construing the complaint in the light most favorable to plaintiff, plaintiff alleges that Brown and
Jackson were conducting surveillance on plaintiff as members of the DEA task force, and that the
six to eight officers involved in the events at issue other than Brown and Jackson were BAPD
officers that were not members of the DEA task force. Further, plaintiff asserts that Brown and
Jackson were acting as BAPD supervising officers when they were organizing, directing, and
supervising the actions of the non-task-force-member officers. See id. at 2, 6-7.
In United States v. Martin, 163 F.3d 1212 (10th Cir. 1998), the Tenth Circuit held that a local
police detective who had been deputized to assist a federal investigation was a federal officer for the
purposes of 18 U.S.C. § 115 (threatening to “assault, kidnap, or murder . . . a Federal law
enforcement officer”). See 163 F.3d at 1215. The Tenth Circuit reasoned that the “dispositive
factors” were the officer’s assistance to federal agents and his federal deputation, not the source of
his salary. Id. Although Martin relied on an interpretation of § 115, courts that have dealt with local
officers deputized as members of federal task forces have concluded that such officers are acting

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under color of federal law under the same reasoning as in Martin. See, e.g., Guerrero, 274 F. App’x
11, 12 n.1 (noting that because the defendant officers were deputized members of a DEA task force,
plaintiff’s claim was properly brought as a Bivens action); Majors, 113 F. App’x at 659 (interpreting
a plaintiff’s § 1983 claim against local officers acting as DEA task force agents as a Bivens claim);
Pike, 868 F. Supp. 2d at 677 (holding that plaintiff’s § 1983 claims against local officers assisting
in a federal task force operation were “plainly Bivens claims”); Bordeaux, 958 F. Supp. at 84
(holding that local officers assigned to DEA task force could not be sued under § 1983 because they
were federal officers); Amoakohene, 792 F. Supp. at 608 (holding that local officers arresting
someone for a municipal code violation incident to activities in connection with a DEA task force,
of which the officers were members, did not act under color of state law). Thus, under the reasoning
of Martin, the Court finds that a local police officer acting as a member of a DEA task force is a
federal officer.
Based on plaintiff’s allegations that Brown and Jackson were acting as members of the DEA
task force, they were acting as federal officers. However, that is not the end of the Court’s inquiry.
A federal officer can, in some cases, act under color of state law for § 1983 purposes. Big Cats of
Serenity Springs, Inc. v. Rhodes, 843 F.3d 853, 869 (10th Cir. 2016). Plaintiff argues that the actions
as issue were a “joint venture” between state and federal officers, which would subject the federal
officers to liability under § 1983. Dkt. # 20, at 9. Federal officers can act under color of state law
when they “conspire with state officials to infringe a protected constitutional right.” Big Cats, 843
F.3d at 869 (citing Martinez v. Winner, 771 F.2d 424, 441 (10th Cir. 1985)). “[C]onspiracy with
state actors is a requirement to finding that federal actors jointly acted under color of state law.” Id.
(citing Strickland ex rel. Strickland v. Shalala, 123 F.3d 863, 866-67 (6th Cir. 1997)). Thus, to allege

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that a federal officer acted under color of state law, the complaint must allege: “(1) an agreement
between two or more persons, with (2) an intent to achieve an unlawful act.” Id. Here, plaintiff does
not allege that Brown and Jackson conspired with the BAPD officers, but that they directed them.
See Dkt. # 1, at 2, 4. Consequently, plaintiff has failed to allege facts sufficient to support a claim
that Brown and Jackson acted under color of state law because they were involved in a joint
operation with state actors. For the reasons above, plaintiff has failed to state a § 1983 claim against
Brown and Jackson.
B.
Defendants argue that the claims against Brown and Jackson in their official capacities
should be dismissed because they are redundant. Plaintiff asserts that he is alleging only a § 1983
claim against Brown and Jackson in their official capacities, not a Bivens claim.1 See Dkt. # 20, at
6, 11. Suing an individual defendant in his or her official capacity under § 1983 “is essentially
another way of pleading an action against the county or municipality they represent.” Porro v.
Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010). “[I]f a governmental entity is already a defendant in
a lawsuit, then any official capacity claims against its employees are redundant and may be
dismissed.” Moore v. Tulsa, 55 F. Supp. 3d 1337, 1349 (N.D. Okla. 2014). Plaintiff has brought a
§ 1983 claim against Broken Arrow; thus, the claims against Brown and Jackson in their official
capacities are redundant and should be dismissed.
C.

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A plaintiff cannot bring a Bivens suit against a defendant in his or her official capacity.
Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001) (“There is no such animal as a Bivens
suit against a public official tortfeasor in his or her official capacity.”).
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Defendants argue that plaintiff’s claim for punitive damages is impermissible and should be
dismissed. “A punitive damage claim is not an independent cause of action or issue separate from
the balance of a plaintiff’s case.” Mason v. Texaco, Inc., 948 F.2d 1546, 1554 (10th Cir. 1991).
Plaintiff’s separate claim for punitive damages should therefore be dismissed.

D.
Defendants argue that Brown and Jackson are entitled to qualified immunity because there
are no actionable constitutional violations in this case. “Qualified immunity is an entitlement not to
stand trial or face the other burdens of litigation.” Maestas v. Lujan, 351 F.3d 1001, 1007 (10th Cir.
2003) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)) (internal quotation marks omitted).
Qualified immunity represents the “best attainable accommodation of competing values,” namely
the need to allow plaintiffs vindication for constitutional violations by government officials and the
need to preclude costly and time-consuming litigation of meritless issues. Harlow v. Fitzgerald, 457
U.S. 800, 813-14 (1982).
Determining whether a defendant is entitled to qualified immunity involves
answering two questions: (1) whether a plaintiff has asserted that the defendant
violated a constitutional or statutory right, and if she has, (2) “whether that right was
clearly established such that a reasonable person in the defendant’s position would
have known that his conduct violated that right.”
Keylon v. City of Albuquerque, 535 F.3d 1210, 1218 (10th Cir. 2008) (quoting Maestas, 351 F.3d
at 1007).
Plaintiff argues that, under the doctrine of collateral estoppel, the Court’s findings in
plaintiff’s criminal case that his Fourth Amendment rights were violated preclude defendants from

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arguing that no constitutional violation occurred. Dkt. # 20, at 16. Four elements must be met before
collateral estoppel will bar a claim:
(1) the issue previously decided is identical with the one presented in the action in
question, (2) the prior action has been finally adjudicated on the merits, (3) the party
against whom the doctrine is invoked was a party or in privity with a party to the
prior adjudication, and (4) the party against whom the doctrine is raised had a full
and fair opportunity to litigate the issue in the prior action.
Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009). None of the defendants was a party in
plaintiff’s criminal case. Thus, collateral estoppel cannot be invoked against them unless they were
in privity with the United States. Privity is not easily definable, but it “requires, at a minimum, a
substantial identity between the issues in controversy and showing the parties in the two actions are
really and substantially in interest the same.” Pelt v. Utah, 539 F.3d 1271, 1281 (10th Cir. 2008).
The Tenth Circuit has clearly held that no privity exists between the prosecution in a criminal case
and the officers in a subsequent civil suit. Novitsky v. City of Aurora, 491 F.3d 1244, 1252 n.2 (10th
Cir. 2007) (“As we have previously made clear, a court’s conclusion during a criminal prosecution
that a law enforcement officer’s conduct was unconstitutional is not afforded collateral estoppel
effect in a subsequent civil case against the officer because there is no privity between the
prosecution in the criminal case and the officer.”) (citing Morgan v. Gertz, 166 F.3d 1307, 1309
(10th Cir. 1999); Kinslow v. Ratzlaff, 158 F.3d 1104, 1105-07 & n.3 (10th Cir. 1998)). Thus,
collateral estoppel will not be applied in this case, and plaintiff must establish anew that defendants
violated his constitutional rights.
Plaintiff alleges that Brown and Jackson violated his rights under the Fourth and Fourteenth
Amendments of the United States Constitution. Dkt. # 1, at 8. Plaintiff’s allegations of Brown and
Jackson’s constitutional violations fall into four broad categories: (1) the detention of plaintiff

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during the traffic stop; (2) the search of plaintiff’s vehicle; (3) the search of plaintiff’s home; and
(4) plaintiff’s arrest and prosecution. Defendants assert that plaintiff failed to allege facts sufficient
to establish any constitutional violation.

i.
Plaintiff alleges that the traffic stop violated the Fourth and Fourteenth Amendments by
exceeding the scope of the initially lawful stop. Dkt. # 1, at 3. The Fourth Amendment secures the
right of the people to be free from unreasonable searches and seizures. The basic purpose “is to
safeguard the privacy and security of individuals against arbitrary invasions by governmental
officials.” Camara v. Mun. Court, 387 U.S. 523, 528 (1967). “[T]he Fourth Amendment is
enforceable against the States through the Fourteenth Amendment.” Id.
To determine the constitutionality of a traffic stop under the Fourth Amendment, courts
apply the “reasonable suspicion” standard originally set forth by the Supreme Court in Terry v.
Ohio, 392 U.S. 1 (1968). See United States v. Winder, 557 F.3d 1129, 1133 (10th Cir. 2009). Terry
set out a two-part inquiry: (1) whether the stop was “justified at its inception,” and (2) if the stop was
initially justified, whether “the resulting detention was reasonably related in scope to the
circumstances that justified the stop in the first place.” Id. at 1133-34 (quoting United States v.
Valenzuela, 494 F.3d 886, 888 (10th Cir. 2007)). Here, the first prong of Terry is not at issue;
plaintiff admits that the initial stop was justified by plaintiff’s turn signal violation. Dkt. # 1, at 3.
Plaintiff argues that the stop violated the Fourth Amendment because it exceeded the scope of the
purpose of the stop.

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A traffic stop may generally last no longer than is necessary to effectuate the purpose of the
stop. United States v. Cervine, 347 F.3d 865, 870-71 (10th Cir. 2003). “Under ordinary
circumstances, this limits the officer to a request for the driver’s license and registration, a computer
check on the car and driver, an inquiry about the driver’s travel plans, and the issuance of a citation.”
Id. at 871. An officer may extend a traffic stop for reasons unrelated to the initial stop under two
circumstances: “(1) the officer has an objectively reasonably and articulable suspicion that illegal
activity has occurred or is occurring; or (2) if the initial detention has become a consensual
encounter.” Id. A traffic stop becomes a consensual encounter once an officer returns the driver’s
documentation and a reasonable person under the circumstances would believe he or she was “free
to leave or disregard the officer’s request for information.” United States v. Bradford, 423 F.3d
1149, 1158 (10th Cir. 2005). Whether a traffic stop is consensual requires a court to consider the
totality of the circumstances surrounding the encounter, but the Tenth Circuit has identified a
number of factors that suggest an encounter was not consensual, including:
the “threatening presence of several officers,” the “use of aggressive language or
tone of voice indicating that compliance with an officer’s request is compulsory,” the
“prolonged retention of a person’s personal effects such as identification,” the
“absence of other members of the public,” and the officer’s failure to advise the
defendant that [he] is free to leave.
United States v. Ledesma, 447 F.3d 1307, 1314 (10th Cir. 2006).
Nothing in plaintiff’s complaint would support finding that Brown and Jackson had a
reasonable articulable suspicion that illegal activity had occurred or was occurring. Moreover,
assuming the facts pled by plaintiff, the traffic stop was not consensual. Plaintiff alleges that he was
outside his car and flanked by Brown and Jackson with two uniformed officers standing ten to
twelve feet behind them. Dkt. # 1, at 3. Further, plaintiff asserts that three law enforcement vehicles

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were parked immediately behind him with their lights flashing. Id. Plaintiff’s allegations show that
after plaintiff’s documentation was returned to him, there was a coercive show of authority that
rendered the encounter non-consensual. Therefore, plaintiff has alleged sufficient facts to state a
claim for violation of the Fourth Amendment as to the traffic stop.

ii.
Plaintiff alleges that the search of his vehicle violated the Fourth and Fourteenth
Amendments. Dkt. # 1, at 3. “‘If there is probable cause to believe a vehicle contains evidence of
criminal activity,’ the warrant requirement does not apply to ‘a search of any area of the vehicle in
which the evidence might be found.’” United States v. Polly, 630 F.3d 991, 999 (10th Cir. 2011)
(quoting Arizona v. Gant, 556 U.S. 332, 347 (2009)). Nothing in plaintiff’s complaint would support
finding that Brown and Jackson had probable cause to believe plaintiff’s vehicle contained evidence
of criminal activity. Additionally, plaintiff asserts that he did not consent to the search. Defendants
argue that there was no Fourth Amendment violation because the search was “de minimis.” In
support of their argument, defendants misconstrue Parker v. Strong, 717 F. Supp. 767 (W.D. Okla.
1989). The only search at issue in Parker was a search of the plaintiff’s person incident to arrest. See
Parker, 717 F. Supp. at 769. Thus, Parker is entirely inapplicable to this case.2 Plaintiff alleges that

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Defendants also argue that the search of plaintiff’s vehicle and the search of plaintiff’s home
did not violate plaintiff’s constitutional rights because the searches were carried out “without
any physical harm or injury to Plaintiff or his family and uncovered illegal drugs and guns.”
Dkt. # 13, at 11. This argument seems to be based on a fictional Fourth Amendment
standard. The constitutional standard for searches is not, and has never been, whether
contraband was found as a result of the search.
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Brown and Parker searched his vehicle without probable cause or consent; plaintiff’s allegations
clearly state a violation of his Fourth Amendment rights.
iii.
Plaintiff alleges that the search of his home violated his Fourth and Fourteenth Amendment
rights. Dkt. # 1, at 4. “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures
inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S.
573, 586 (1980); see also United States v. Najar, 451 F.3d 710, 713 (10th Cir. 2006). Plaintiff
alleges that Brown and up to four BAPD officers entered and searched his home hours before a
warrant was obtained. Dkt. # 1, at 4. Plaintiff asserts that Soares asked the officers to leave, that no
exigent circumstances existed, and that the officers did not act in a reasonable good faith reliance
on a warrant. Id. Assuming the facts plaintiff alleges, the search of his home would have clearly
violated plaintiff’s Fourth Amendment rights.
iv.
Plaintiff asserts that his arrest and prosecution violated his Fourth and Fourteenth
Amendment rights. To determine the contours of a § 1983 or Bivens claim, courts look to commonlaw torts as analogies. Myers v. Koopman, 738 F.3d 1190, 1194 (10th Cir. 2013). Although not
explicit in the complaint, plaintiff’s allegations regarding his arrest and prosecution align best with
a claim of malicious prosecution.3 Plaintiff claims that Brown and Jackson unlawfully detained him
and “malicious[ly] plac[ed] charges against him.” Dkt. # 1, at 6. However, plaintiff does not plead
any facts to support his conclusory allegations. He asserts that Brown and Jackson arrested him

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Plaintiff’s claim is not a false imprisonment claim because he was subjected to legal process.
See Wallace v. Kato, 549 U.S. 384, 389-90 (2007).
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based on the searches, but he does not allege that Brown and Jackson falsified evidence, lied to
obtain an arrest warrant or to convince prosecutors to charge plaintiff, or committed any other
offense separate from the previously discussed searches. Thus, plaintiff has failed to allege facts
sufficient to support a claim that Brown and Jackson violated plaintiff’s constitutional rights through
malicious prosecution.

v.
As discussed above, plaintiff has properly pled a Bivens suit against Brown and Jackson,
alleging that they of violated plaintiff’s Fourth and Fourteenth Amendment rights during the traffic
stop, search of plaintiff’s vehicle, and search of plaintiff’s home. Defendants have not argued that
Brown and Jackson are entitled to qualified immunity on the basis that they did not violate “clearly
established law.” However, the Court finds that, accepting plaintiff’s allegations as true, Brown and
Jackson would have violated clearly established law. It has long been clearly established that
officers may not search a home without a warrant or a specific exception to the warrant requirement.
See, e.g., Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) (“[W]arrants are generally required to
search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law
enforcement so compelling that the warrantless search is objectively reasonable under the Fourth
Amendment.”) (citing McDonald v. United States, 335 U.S. 451, 456 (1948); Johnson v. United
States, 333 U.S. 10, 14-15 (1948)). Similarly, a warrantless search of an automobile without
probable cause or consent has long been a clear violation of the Fourth Amendment. See, e.g.,
Almeida-Sanchez v. United States, 413 U.S. 266, 269 (1973) (“Automobile or no automobile, there
must be probable cause for the search.”). Further, the Tenth Circuit has continuously held that in the

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absence of objectively reasonable and articulable suspicion, to extend a traffic stop beyond its initial
purpose requires the encounter to be consensual, and a “coercive show of authority, such as the
presence of more than one officer,” renders an encounter nonconsensual. United States v. Turner,
928 F.2d 956, 959 (10th Cir. 1991). Thus, Brown and Jackson and not entitled to qualified
immunity.

E.
Defendants final argument is that plaintiff has failed to plead sufficient facts to support his
municipal liability claim. To state a § 1983 claim against a municipal entity, “a plaintiff must show
(1) the existence of municipal policy or custom, and (2) that there is a direct causal link between the
policy or custom and the injury alleged.” Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir.
2010) (quoting Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)).
A municipal policy or custom may take the form of (1) a formal regulation or policy
statement; (2) an informal custom amoun[ting] to a widespread practice that,
although not authorized by written law or express municipal policy, is so permanent
and well-settled as to constitute a custom or usage with the force of law; (3) the
decisions of employees with final policymaking authority; (4) the ratification by such
final policymakers of the decisions–and the basis for them–of subordinates to whom
authority was delegated subject to these policymakers’ review and approval; or (5)
the failure to adequately train or supervise employees, so long as that failure results
from deliberate indifference to the injuries that may be caused.
Id. (citing Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189-90 (10th Cir. 2010))
(internal quotation marks omitted) (alteration in original). A plaintiff “must show that the municipal
action was taken with the requisite degree of culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal rights.” Barney v. Pulsipher, 143 F.3d

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1299, 1307 (10th Cir. 1998) (quoting Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 404
(1997)).
Plaintiff alleges that “Broken Arrow, Jackson, and Brown promulgated, created[,]
implemented, supervised, and/or possessed responsibility for enforcing” the following: (1) “Officers
utilizing so-called protective sweeps of private premises as a method of obtaining entry into a
residence prior to actually obtaining a warrant and without the specific knowledge that a warrant
will actually be obtained”; (2) “The practice of ‘scattering’ throughout a property during these
‘protective sweeps’ in an effort to ‘plainly view’ evidence before legally obtaining a lawful search
warrant to enter property; (3) “Deploying large groups of backup officers to traffic stop scenes in
an effort to overcome any hesitation for providing consent to search by impliedly threatening and/or
coercing traffic stop detainees. . . .”; (4) “Not documenting alleged ‘side of the road’ consents
supposedly given to officers”; (5) “Officers providing or omitting skewed or distorted facts to obtain
search warrants”; (6) “Officers ignoring direct refusals of consent to search by traffic stop
detainees”; and (7) “Supervisors directing uniformed officers in their testimony to support
supervisors’ perjury.” Dkt. # 1, at 9-10. Plaintiff also alleges that BAPD failed to train its officers
in “the proper way to approach a motorist to obtain uncoerced consent to search, when it is legal to
enter residences[,] and . . . what information validly forms the basis [of] a search warrant,” and that
these deficiencies in training caused plaintiff’s rights to violated. Id. at 11.
First, the Court notes that a determination that Brown and Jackson were not acting under
color of state law is not dispositive of the municipal liability claim against Broken Arrow. Plaintiff
must show that a municipal policy or custom is “the moving force behind the constitutional
violation,” see City of Canton v. Harris, 489 U.S. 378, 388 (1989), but Broken Arrow “itself is the

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state actor ‘and its action in maintaining the alleged policy at issue supplies the ‘color of law’
requirement under § 1983.’” Bladdick v. Pour, 833 F. Supp. 2d 1032, 1039 (S.D. Ill. 2011) (quoting
Gibson v. City of Chicago, 910 F.2d 1510, 1519 (7th Cir. 1990)). Plaintiff alleges that Brown and
Jackson are BAPD officers and Broken Arrow is responsible for their training. Dkt. # 1, at 10.
Assuming plaintiff’s allegations are true that there are flaws and/or omissions in the BAPD training
that caused Brown and Jackson to violate plaintiff’s constitutional rights, Broken Arrow would
liable under § 1983 regardless of what authority under which Brown and Jackson acted at the time
of the violations.
Plaintiff has alleged numerous, specific policies or customs that could plausibly have caused
the violation of his rights. However, plaintiff’s allegations are not adequately formed to state a claim
of municipal liability based on policy or custom. Plaintiff has not alleged that these are formal
policies, widespread customs, or the result of a policymaker’s decision or ratification of a
subordinate’s decision. It appears that plaintiff is asserting municipal liability based on the decisions
of a policymaker. However, plaintiff attributes the policies to “Broken Arrow, Jackson, and Brown,”
but none of these is a policymaker. A municipal official must have final policymaking authority in
order for his or her actions to subject the government to § 1983 liability. City of St. Louis v.
Praprotnik, 485 U.S. 112, 123 (1998). Broken Arrow itself is not a municipal official, and plaintiff
has not alleged facts to establish that either Brown or Jackson have final policymaking authority.
Thus, plaintiff has failed to state a municipal liability claim against Broken Arrow based on a custom
or policy.
On the other hand, plaintiff has stated a claim for municipal liability based on failure to train.
Plaintiff alleges that BAPD failed to adequately train its officers in obtaining consent during traffic

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stops, conducting searches, and obtaining warrants. Plaintiff also asserts that the failure to properly
train BAPD officers caused his alleged constitutional violations, and the need for such training is
obvious. Defendants argue that Lopez v. LeMaster, 172 F.3d 756 (10th Cir. 1999), and Mocek v.
City of Albuquerque, 813 F.3d 912 (10th Cir. 2015), compel dismissal of plaintiff’s failure to train
claim. However, Lopez involved a motion for summary judgment, Lopez, 172 F.3d at 758, and the
plaintiff in Mocek alleged merely that the municipality had “fail[ed] to train its employees properly,
Mocek, 813 F.3d at 934. Plaintiff’s allegations against Broken Arrow for its failure to train its
officers is not robust, but plaintiff has certainly alleged more than a general failure to properly train.
Plaintiff has alleged deficiencies in BAPD training specific enough to put Broken Arrow on notice
of the claim against it and show that the allegations could plausibly have caused the alleged
violations of plaintiff’s constitutional rights. Therefore, at this point in the litigation, plaintiff has
done enough to state a claim for municipal liability under § 1983 for failure to train.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss and Memorandum
of Law in Support (Dkt. # 13) is granted in part and denied in part. It is granted as to plaintiff’s
claims against Craig Brown and Mike Jackson in their official capacities, plaintiff’s claims against
Craig Brown and Mike Jackson under 42 U.S.C. § 1983, plaintiff’s claim for punitive damages, and
plaintiff’s claim against the City of Broken of Arrow under 42 U.S.C. § 1983 based on a custom or
policy; it is denied as to plaintiff’s claims against Craig Brown and Mike Jackson under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and plaintiff’s
claim against the City of Broken Arrow under 42 U.S.C. § 1983 based on a failure to train.
IT IS FURTHER ORDERED that plaintiff may file an amended complaint, consistent with
the rulings herein, no later than February 17, 2017.

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DATED this 3rd day of February, 2017.

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