Calhoun v. Buck

Filing 45

MEMORANDUM DECISION & ORDER: granting 36 Motion to Dismiss for Failure to State a Claim. Plaintiff's Second Amended Complaint is dismissed with prejudice. Signed by Magistrate Judge Dustin B. Pead on 04/05/2019. (kpf)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

JAIME CALHOUN,

MEMORANDUM DECISION AND
ORDER
Plaintiff,

v.

Case No. 2:18-cv-00299

OFFICER TERRY BUCK,

Magistrate Judge Dustin B. Pead
Defendant.

INTRODUCTION 1
On February 27, 2016, Defendant Terry Buck (“Defendant” or “Trooper Buck”) arrested
Plaintiff Jaime Calhoun (“Plaintiff or “Ms. Calhoun”) and issued a citation for driving under the
influence (“DUI”) in violation of Utah Code Ann. § 41-6A-502. The charge was subsequently
dismissed. Ms. Calhoun now brings this lawsuit pursuant to 42 U.S.C. § 1983, alleging that
Trooper Buck did not have probable cause to detain and cite her for DUI after her breath test
returned a breath alcohol concentration (“BAC”) of .037.

1

The parties in this case consented to United States Magistrate Judge Dustin B. Pead conducting
all proceedings, including entry of final judgment. (ECF No. 12.)

1

This matter is currently before the court on Defendant’s motion to dismiss Plaintiff’s
second amended complaint for failure to state a claim. 2 Trooper Buck also asserts qualified
immunity. 3 Oral argument on Defendant’s motion was held on February 21, 2019. 4
BACKGROUND
The following facts are taken from Plaintiff’s second amended complaint 5 and other
documents attached to the pleading. 6 A court may “consider attached exhibits and documents
incorporated into the complaint, so long as the parties do not dispute the documents’
authenticity.” 7 The court views the complaint in a light most favorable to Ms. Calhoun. 8
On February 27, 2016, at approximately 1:15 a.m., Utah Highway Patrol Trooper Terry
Buck observed Plaintiff’s vehicle on 1200 East 3300 South in Salt Lake City, Utah. 9 A vehicle
registration check revealed no insurance on file, and Trooper Buck initiated a traffic stop of

2

ECF No. 36.

3

Id.

4

ECF No. 43.

5

ECF No. 32.

6

Attached documents include: Dash-Cam video (Exhibit A), Police Report (Exhibit B),
Search Warrant Application (Exhibit D) and Toxicology Report (Exhibit E).

7

Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1178 (10th Cir. 2012) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)).

8

Jordan-Arapahoe, LLP v. Bd. of County Comm’rs, 633 F.3d 1022, 1025 (10th Cir. 2011).

9

ECF No. 32 at ¶6.

2

Plaintiff’s vehicle. 10 Ms. Calhoun was the driver and sole occupant of the car. 11 During the traffic
stop, Trooper Buck observed:
a. the odor of alcohol coming from the interior of Plaintiff’s vehicle and from Ms.
Calhoun’s person; 12
b. Plaintiff’s eyes appeared “glassy”; 13
c. Plaintiff admitted she had consumed one alcoholic beverage around 10:00 p.m; 14
d. Plaintiff’s pupils were equal in size, but she did not have “smooth tracking in a cursory
check of her eyes;” 15 and
f. Ms. Calhoun reported that she had taken ibuprofen, but had not taken any medication
that would impair her driving. 16
As a result, Defendant administered Field Sobriety Tests. During the tests, Trooper Buck
observed:
g. during the walk and turn test, Plaintiff “stepped out of the test position, missed heel to
toe, stepped off line and raised her arms greater than six inches from her side”; 17

10

Id. at ¶¶ 7-9, Exhibit B, “Police Report”.

11

Id.

12

Id. at ¶10, Exhibit B.

13

Id., Exhibit D, “Search Warrant Application”.

14

Id.

15

Id.

16

Id., Exhibit A at 1:23:41,“Dash Camera Footage”.

17

Id., Exhibit B.

3

h. Ms. Calhoun “swayed forwad [sic] and backward and during the check for vertical gaze
nystagmus almost fell over backwards”; 18
i. during the ABC test, Plaintiff was unable to recite the alphabet from “D to Q” and stated
that she needed to start with the letter A; 19
j. Ms. Calhoun was unable to complete the backwards counting test and could not count
from 65 to 42 backward; 20 and
k. during the one leg stand test, Plaintiff “swayed and put her foot down.” 21
Next, Trooper Buck administered a preliminary breath test (PBT). He observed Ms.
Calhoun attempt to deliberately defeat the test by not blowing into the PBT. 22 After three attempts,
Ms. Calhoun provided a sufficient breath sample which showed positive for alcohol. 23 Trooper
Buck arrested Ms. Calhoun for DUI. 24
After arrest, Trooper Buck asked Ms. Calhoun if she needed any items from her vehicle.
Ms. Calhoun disclosed there was Xanax in her purse and that she had taken Xanax at

18

Id.

19

Id.

20

Id.

21

Id.

22

Id.

23

Id., Exhibit B, “Arrest Report”.

24

Id.

4

approximately three or four in the afternoon. 25 Ms. Calhoun submitted to a breath test on an
Intoxilyzer machine in Trooper Buck’s vehicle. The Intoxilyzer returned a result of .037 BAC.26
After obtaining the Intoxilyzer result, Defendant became concerned that Xanax was a factor in Ms.
Calhoun’s field sobriety test results. 27 Ms. Calhoun would not consent to a blood draw, so Trooper
Buck sought and obtained a warrant. In his application for the warrant, Trooper Buck stated:
[b]ased upon the SFSTs and the admission of the prescription
Drugs I believe there are medications or controlled substances
in the subject’s body, so I requested a blood test . . . .” 28
The affidavit further alleged evidence of “[d]riving under the [i]nfluence, in violation of Utah
Code Ann. Section 41-6a-502, specifically, the substance [a]lcohol, prescription drugs and
controlled substan[ce] [sic].” 29 The court granted the search warrant application and a blood
sample was taken and submitted for analysis. Defendant issued Plaintiff a citation for DUI in
violation of Utah Code Ann. §41-6A-502, and booked her into the Salt Lake County jail.

25

Id. at 28, Exhibit E, “Toxicology Report”. According to the Toxicology Report Xanax “is a
benzodiazepinprescription drug with CNS depressant effects that may be additive with alcohol or other
CNS depressants.”

26

Id. at ¶42, Exhibit A at 2:22:50-2:20:40, Exhibit B, Exhibit D.

27

Id. at ¶37, Exhibit A, 2:43:23-2:43:32, Exhibit D at 26 (stating “[b]ased on the SFSTs and the
admission of the prescription drugs I believe there are medications or controlled substances in the
subject’s body so I requested a blood test from the subject. . . .”)).

28

Id., Exhibit D.

29

Id.

5

Plaintiff’s blood sample subsequently tested positive for alcohol (0.03) and Alprazolam
(Xanax). 30 On May 4, 2016, the prosecutor dismissed Plaintiff’s DUI charge, 31 and several days
later the court dismissed the remaining charge for failure to show insurance. 32
Following dismissal of the criminal charges, Plaintiff initiated this federal action for
violation of her constitutional rights pursuant to 42 U.S.C. §1983. 33 On September 5, 2018, Ms.
Calhoun filed a second amended complaint alleging claims for illegal detention and malicious
prosecution against Trooper Buck. 34
ANALYSIS
I.

Standard of Review

To state a claim under 42 U.S.C. § 1983, “a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” 35 Section 1983 permits
an injured person to “seek damages against an individual who has violated his or her federal
rights while acting under color of state law.” 36 Standing alone, the statute does not create
substantive civil rights; rather, § 1983 serves as a procedural mechanism for enforcement of

30

Id., Exhibit E.

31

Id. at ¶ 58.

32

Id. at ¶ 59; see Utah Code Ann. § 41-12A-303.2.

33

ECF No. 1, ECF No. 2.

34

ECF No. 32.

35

West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted).

36

Cillo v. City of Greenwood Vill., 739 F.3d 451, 459 (10th Cir. 2013).

6

existing federal and constitutional rights. 37 Where such as here, a defendant asserts qualified
immunity, the plaintiff “must allege facts sufficient to show (assuming they are true) that the
defendant[ ] plausibly violated [the plaintiff’s] constitutional rights, and that those rights were
clearly established at the time.” 38
In reviewing a motion to dismiss for failure to state a claim, the court assumes the truth of
well-pleaded facts and draws reasonable inferences in a light most favorable to the plaintiff. 39
Conclusory pleadings “are not entitled to the assumption of truth,” 40 and a claim survives only if
“there is plausibility in the complaint.” 41 “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.” 42

37

See Wyatt v. Cole, 504 U.S. 158, 161 (1992) (“[t]he purpose of § 1983 is to deter state actors
from using the badge of their authority to deprive individuals of their federally guaranteed rights and to
provide relief to victims if such deterrence fails.”).

38

Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008).

39

See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011).

40

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

41

Hall v. Witteman, 584 F.3d 859, 863 (10th Cir. 2009) (citations and quotations omitted).
In her opposition brief, Plaintiff cites to case law from Louisiana, Pennsylvania and Tennessee in support
of her claim that dismissal should be granted “unless it appears beyond doubt that Plaintiff can prove no
set of facts in support of his claim which would entitle him to relief.” ECF No. 39 at 6 (citing McCray v.
Veneman, 298 F. Supp 2d 13 (2002, DC Dist. Col. 2002)). However, in Bell Atl. Corp. v. Twombly the
Supreme Court identified the appropriate standard as review for “a claim to relief that is plausible on its
face.” 550 U.S. 544, 570 (2007).
42

Id. (quoting Ashcroft, 556 U.S. at 678).

7

II.

Failure To State A Claim.

Ms. Calhoun fails to state a claim under 42 U.S.C. § 1983 for malicious prosecution and
illegal detention because her arrest, detention and citation for DUI were supported by probable
cause and there was no constitutional or statutory violation.
a.

Arrest, Detention and Citation for DUI Supported By Probable Cause.

“Probable cause to arrest exists where, under the totality of the circumstances, a
reasonable person would believe that an offense has been committed by the person arrested.” 43
Probable cause is assessed using an objective standard and determined at the time of the arrest. 44
“An arrest is not invalid under the Fourth Amendment simply because the police officer
subjectively intended to base the arrest on an offense for which probable cause is lacking, so
long as “‘the circumstances, viewed objectively, justify’ the arrest.” 45 Under this standard,
Trooper Buck is “entitled to qualified immunity if a reasonable officer could have believed that
probable cause existed to arrest or detain” Ms. Calhoun. 46

43

Morris v. Noe, 672 F.3d 1185, 1192 (10th Cir. 2012) (citations and quotation omitted); see also Johnson
v. Lindon City Corp., 405 F.3d 1065, 1068 (10th Cir. 2005) (quoting Jones v. City & County of Denver,
854 F. 2d 1206, 1210 (10th Cir. 1988) (“[p]robable cause exists if facts and circumstances within the
arresting officer’s knowledge and of which he or she has reasonably trustworthy information are
sufficient to lead a prudent person to believe that the arrestee has committed or is committing an
offense.”)).
44

Summers v. Utah, 927 F.2d 1165, 1166 (10th Cir. 1991) (citations omitted).

45

Apodaca v. City of Albuquerque, 443 F.3d 1286 (10th Cir. 2006) (quoting Devenpack v. Alford,
543 U.S. 146, 153 (2004)).

46

Stonecipher v. Valles, 759 F.3d 1134, 1142 (10th Cir. 2014) (emphasis added).

8

Ms. Calhoun concedes that prior to administration of the Intoxilyzer breath test, Trooper
Buck had probable cause to arrest her for DUI. She asserts, however, that the .037 breath test
vitiated any probable cause and therefore Defendant had an affirmative duty to release her.
Plaintiff further contends that after obtaining her breath test result Trooper Buck abandoned his
acting under the influence of alcohol theory and improperly pursued a drug-related DUI for
which there was insufficient probable cause.
At the time of Ms. Calhoun’s arrest, Utah’s DUI statute stated. in in relevant part:
(1) A person may not operate or be in actual physical control of a vehicle within
this state if the person:
(a) has sufficient alcohol in the person's body that a subsequent chemical
test shows that the person has a blood or breath alcohol concentration of
.08 grams [of alcohol per 100 milliliters of blood] or greater at the time of
the test; [or]
(b) is under the influence of alcohol, any drug, or the combined influence
of alcohol and any drug to a degree that renders the person incapable of
safely operating a vehicle. 47
Thus, although Ms. Calhoun’s BAC of .037 precluded prosecution under subsection
(1)(a) of the statute, it did not vitiate probable cause under subsection (1)(b). Subsection (1)(b)
clearly allows for prosecution of a DUI with a BAC below .08, if an individual is under the
influence of alcohol, drugs, or both “to a degree that renders the person incapable of safely
operating a vehicle.” 48 Here, there was sufficient indicia to support the conclusion that Ms.
Calhoun was unable to safely operate her vehicle, and the totality of the circumstances gave
Trooper Buck probable cause. While Trooper Buck did not observe any unsafe driving, Ms.

47

Utah Code Ann. § 41-6a-502.

48

Id. at 41-6a-502(1)(b).

9

Calhoun’s glassy eyes, the odor of alcohol, admission to drinking, difficulties both physically
and cognitively on the field sobriety tests, positive PBT and an admission to taking Xanax
provided sufficient probable cause to establish that Plaintiff was under the influence of alcohol,
drugs, or both, and incapable of safely operating a vehicle. 49
In turn, Trooper Buck was not required to believe Ms. Calhoun’s qualifications, 50 or pick
a specific theory under the statute. Indeed, at the time of arrest, a reasonable officer may not be
able to determine whether the indicia of intoxication stem from the use of alcohol, drugs or both.
As such, an arrest is considered lawful “as long as probable cause exists for some offense.” 51
b.

No Claim For Malicious Prosecution.

The existence of probable cause bars a Section 1983 claim for malicious prosecution. 52
“Where . . no Fourth Amendment violation occurred because the officer possessed probable
cause to arrest and charge the individual, ‘the inquiry ends and the officer is entitled to qualified
immunity.’” 53

49

Id.

50

See D.C. v. Wesby, 138 S. Ct. 577, 592 (2018) (“[I]nnocent explanations--- even uncontradicted ones--do not have any automatic, probable-cause-vitiating effect.”)); see also Olsen v. Layton Hills Mall, 312
F.3d 1304, 1321 (10th Cir. 2002) (“[T]he arresting officer has no obligation to believe the suspect.”).
Indeed, Plaintiff’s statement that she took Xanax hours earlier, when she made no similar statement about
ibuprofen, suggests a self-consciousness about her use that a reasonable officer, under a totality of the
circumstances, could interpret as deception supporting probable cause.
51

Morris, 672 F.3d at 1193 (emphasis in original).

52

Fernandez v. Perez, 937 F.2d 368, 371 (7th Cir. 1991) (“The existence of probable cause for
arrest is an absolute bar to a Section 1983 claim for unlawful arrest, false imprisonment,
or malicious prosecution.”)).
53

Titus v. Ahlm, 297 F. App’x. 796, 801 (10th Cir. 2008) (unpublished) (citing Wilder v. Turner, 490 F.3d
810, 813 (10th Cir. 2007)).

10

Thus, because Trooper Buck had probable cause, Ms. Calhoun’s claim for malicious
prosecution must fail.
c.

Duty To Release.

The court further concludes that Trooper Buck had no affirmative duty to release Ms.
Calhoun after obtaining her .037 breathalyzer result. The Tenth Circuit’s decision in Titus v.
Ahlm is instructive. 54 In Titus, the plaintiff was arrested, under New Mexico law, for driving
while intoxicated after running a red light, smelling of alcohol, admitting to drinking beer,
performing poorly on at least two field sobriety tests and refusing a PBT. 55 Subsequent to his
arrest, plaintiff provided a breath test of .02. 56 The police officer then obtained a blood sample
and, while the test results were pending, charged plaintiff with driving while intoxicated. 57
Similar to the present case, after the charges were dismissed, plaintiff sued claiming probable
cause was vitiated by his breath test result and the officer had an immediate duty to release
him. 58
In affirming the District Court’s finding of probable cause, the Tenth Circuit concluded
that under New Mexico statute, a driving while intoxicated prosecution could be brought for
“‘driving while impaired to the slightest degree’” and therefore under a totality of the
circumstances “a reasonable officer could have believed that probable cause existed to charge

54

Titus, 297 Fed. App’x. at 796.

55

Id. at 798-99.

56

Id. at 799.

57

Id.

58

Id. at 798-99.

11

[plaintiff].”59 Further the court determined that the police officer had no duty to immediately
release plaintiff because his “.02 did not exonerate him.” 60
This court fails to discern a meaningful distinction between the facts of this case and
Titus. While Utah’s statutory language differs from that of New Mexico, under Utah’s statute,
Ms. Calhoun’s .037 BAC did not preclude a viable prosecution pursuant to subsection (1)(b).
Specifically, subsection (1)(b) criminalizes the operation of a vehicle “if the person is under the
influence of alcohol influence of alcohol, any drug, or the combined influence of alcohol and any
drug to a degree that renders the person incapable of safely operating a vehicle since.” 61 As
discussed above, Trooper Buck had sufficient evidence to support the conclusion that Plaintiff
could not safely operate her vehicle, her .037 BAC did not vitiate probable cause and Defendant
had no affirmative duty to release her. 62
III.

Qualified Immunity

Trooper Buck asserts he is entitled to qualified immunity on Plaintiff’s claims.
“Individual defendants named in a § 1983 action may raise a defense of qualified immunity,
which shields public officials from damages actions unless their conduct was unreasonable in
light of clearly established law.” 63 “Once an individual defendant asserts qualified immunity, the
plaintiff carries a two-part burden to show: (1) that the defendant’s actions violated a federal

59

Id. at 800 (quoting Vondrak v. City of Las Cruces, 535 F.3d 1198, 1207 (10th Cir. 2008).

60

Id.

61

Utah Code Ann. § 41-6a-502(1)(b).

62

See Bowles v. Rossetti, 2018 U.S. Dist. LEXIS 99247, *8 (June 12, 2018, D. Utah).

63

Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (quotations and citations
omitted).

12

constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of
the defendant’s unlawful conduct.” 64 “This is a heavy burden. If the plaintiff fails to satisfy
either part of the inquiry, the court must grant qualified immunity.” 65
Courts have discretion to determine “which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at hand.” 66
As discussed, Trooper Buck had probable cause and there was no violation of a federal or
statutory right. 67 In addition, even assuming a violation, there was no clearly established right
and therefore qualified immunity applies.
a.

No Violation of Clearly Established Law.

In order to determine whether a right was clearly established, the court asks “whether
‘the contours of a right are sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.’” 68 A plaintiff may demonstrate that a
constitutional right is clearly established by reference to cases from the Supreme Court, the
Tenth Circuit, or the weight of authority from other circuits. 69 The Supreme Court has repeatedly

64

Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016) (quotations omitted).

65

Carabajal v. City of Cheyenne, 847 F.3d 1203, 1208 (10th Cir. 2017).

66

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

67

Supra at 8-10.

68

Henderson v. Glanz, 813 F.3d 938, 951 (10th Cir. 2015) (quoting Ashcroft v. Al-Kidd, 563 U.S.
731, 741 (2011) (other citation omitted); see also Wesby, 138 S. Ct. at 590 (quoting Saucier v. Katz, 533
U.S. 194, 202 (2001) (The rule must be defined with enough specificity that it is “clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.”)).

69

Id.

13

counseled “not to define clearly established law at a high level of generality.” 70 Rather, the
dispositive question is “whether the violative nature of particular conduct is clearly
established.” 71 The specificity needed for the clearly established law requirement is especially
important in Fourth Amendment probable cause cases. 72 With respect to probable cause, relevant
law must show that the law is clearly established and “beyond debate”. 73
Ms. Calhoun is unable to show that an affirmative duty to release “was clearly
established at the time of the conduct at issue.” 74 The Tenth Circuit has unambiguously held that
there is no clearly established law imposing a duty to release. 75 Moreover, the duty is not
recognized by “the clearly established weight of authority of other courts.” 76 Indeed, “[t]he
majority of courts have never imposed such a duty, much less under circumstances similar
enough to make the contours of the right … sufficiently clear that a reasonable officer [ ] would
understand that [their] actions violated that right.” 77

70

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Aschcroft, 563 U.S. at 741).

71

Id. (Emphasis in original).

72

Wesby, 138 S. Ct. at 590.

73

Id.

74

Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008).

75

Panagoulakos v. Yazzie, 741 F.3d 1126, 1131 (10th Cir. 2013).

76

Id.

77

Id.

14

Given the Tenth Circuit’s clear pronouncement, 78 this Court concludes that even if, as
Calhoun argues, a .037 BAC eliminated probable cause to arrest and detain her for DUI, Buck
was not on notice of a recognized duty to release her and is therefore entitled to qualified
immunity.
IV.

Amendment Would Be Futile

Ms. Calhoun argues she should be given an opportunity to amend her complaint. She has,
however, has already amended her complaint twice, and does not identify any specific grounds
for further amendment. 79 Plaintiff’s second amended complaint and exhibits present a detailed
picture of the events at issue. Accordingly, after review of the materials and the relevant legal
authority, the court does not discern any additional facts that Ms. Calhoun could plead to state a
plausible claim for relief. Therefore, Defendant’s motion to dismiss is granted with prejudice. 80

78

Id.

79

See In Re Gold Resource Corp. Securities Litigation, 776 F.3d 1103, 1118-19 (10th Cir. 2015)
(citing Calderon v. Kansas Dept. of Social & Rehabilitation Services, 181 F.3d 1180, 187 (10th Cir.
1999)).

80

See Knight v. Mooring Capital Fund, LLC, 749 F.3d 1180, 1190 (10th Cir. 2014) (dismissal
with prejudice is appropriate where complaint fails to state a claim and amendment
would be futile).

15

ORDER
IT IS ORDERED that Defendant’s Motion to dismiss with prejudice is GRANTED. 81
Plaintiff’s Second Amended Complaint is dismissed with prejudice.
Dated this 5th day of April, 2019.

BY THE COURT:

Dustin B. Pead
U.S. Magistrate Judge

81

ECF No. 36.

16