Opinion
No. A03-289 CV (JWS).
September 15, 2004
ORDER FROM CHAMBERS [Re: Motion at Docket 7]
I. MOTION PRESENTED
At docket 7, defendants move to dismiss plaintiff Timothy K. Barr's complaint. Mr. Barr opposes the motion. Oral argument was not requested and would not assist the court.
All named defendants, with the exception of attorney Mike Logue and correction officer Butler, have joined in the motion.
II. BACKGROUND
This dispute arises out of the criminal investigation and subsequent prosecution of Mr. Barr. On the evening of October 22, 2001, Mr. Barr's wife, Kimberly, phoned police and accused Barr of possessing child pornography. Anchorage Police Officers responded to the Barr residence and began an investigation. Defendants contend that Timothy and Kimberly Barr both consented in writing to a search of the Barr residence and consented to the seizure of any property related to the investigation. Following a search of the residence, officers located and seized pornographic stories written by Timothy Barr which detailed sexual encounters between an 11-year-old girl and an adult male. Police also seized Mr. Barr's personal computer. In the course of the investigation, which failed to turn up any evidence of child pornography, Kimberly Barr reported to officers that Timothy Barr had assaulted her in an attempt to prevent her from calling the police. The officers observed bruises on Kimberly Barr's arm at that time and subsequently arrested Timothy Barr for assault. Timothy Barr was released on bond the following day and ordered not to return to the Barr residence, not to consume alcohol, and to have no contact with Kimberly Barr.
Expanded Complaint, attached as Exhibit 5 to Docket 4, at ¶ 18; doc. 7 at 3.
Located at 3741 Richmond Street Apartment, Anchorage, Alaska.
Doc. 7 at 4, and documents referenced there.
Id.
Id.
Expanded Complaint at ¶ 18; admitted at doc. 7 at 4.
Doc. 7 at 4; Arrest Report, attached as Ex. C to doc. 7.
Doc. 7 at 4.
Plaintiff filed suit in Superior Court on October 23, 2003. Plaintiff's original complaint alleges that the Anchorage Police Department ("APD") negligently and wrongfully subjected the plaintiff to criminal prosecution and false imprisonment. Plaintiff's original complaint also alleges that the municipal prosecutor negligently investigated the allegations of domestic abuse, and that plaintiff's counsel negligently performed his duties.
Case Number 3AN-03-12629, attached as Exhibit A to doc. 1.
Original Conplaint, attached as Ex. A to doc. 1 at 1.
Plaintiff's expanded complaint, filed on November 7, 2003, restates the allegations listed above, and also presents a claim for violation of plaintiff's Fourth Amendment right to be free from unreasonable search and seizure.
Attached as Ex. C to doc. 1.
Id. at ¶ 37.
Jurisdiction exists pursuant to 28 U.S.C. § 1331.
III. STANDARD OF REVIEW
Although framed as a 12(b)(6) motion, defendant's exhibits are beyond the scope of the pleadings, and must properly be considered under a summary judgment standard. Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if there is no genuine dispute as to material facts and if the moving party is entitled to judgment as a matter of law. The moving party has the burden of showing that there is no genuine dispute as to material fact. The moving party need not present evidence; it need only point out the lack of any genuine dispute as to material fact. Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial. All evidence presented by the non-movant must be believed for purposes of summary judgment, and all justifiable inferences must be drawn in favor of the non-movant. However, the nonmoving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of the truth at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Id. at 323-25.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
Id. at 255.
Id. at 248-49.
IV. DISCUSSION
Defendants present a motion to dismiss plaintiff's complaint at docket 7. In support of the motion, defendants assert that plaintiff's service was improper and insufficient, that plaintiff's claims are untimely, that plaintiff's no contest plea bars his negligent arrest and false imprisonment claims, that the defendants have absolute or qualified immunity, and that plaintiff's consent to be searched bars his Fourth Amendment claim.As a preliminary matter, this court's jurisdiction is dependent in the present case upon the existence of a federal question. The only federal claim presented addresses an alleged violation of the Fourth Amendment. In the interest of efficiency, the court addresses this issue first.
Defendants assert that Timothy Barr consented to the search of his residence and seizure of his property, and consequently is unable to assert a violation of his Fourth Amendment rights. Defendants have attached a copy of the consent form signed by Timothy Barr in which he acknowledges being informed of his rights not to have his premises searched absent a search warrant, and in which he gives his consent to the police "to conduct a complete search" of the residence and remove "any evidence or property needed for the criminal investigation."
Attached as Ex. D at docket 7.
The Fourth Amendment does not prohibit all searches and seizures; it prohibits only unreasonable searches and seizures. The Supreme Court has "long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so." In order to be valid, however, the consent to search and seize must be freely and voluntarily given. Voluntariness is measured by the totality of circumstances.
Florida v. Jimeno, 500 U.S. 248 (1991); citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
Schneckloth, 412 U.S. at 222.
Id. at 248-49.
Mr. Barr presents no argument that he signed the consent form against his will, makes no allegations of coercion or threats by the police, and argues only that his consent "in no way granted permission to confiscate anything that was not illegal." The consent form, however, specifically authorizes police to take " any evidence or property needed for the criminal investigation."
Attached as Ex. D at doc. 7. (emphasis added).
Moreover, even if Mr. Barr could successfully argue that his consent was involuntary, he presents no argument that the consent form signed by the other legal occupant of the Barr residence, Kimberly Barr, was involuntary. It is well established that a third party who possesses common authority or other sufficient relationship over the premises may validly consent to a search of the premises. There is no dispute that Ms. Barr, as a legal occupant of the residence, possessed common authority over the residence. Consequently, there can be no Fourth Amendment violation.
Attached as Ex. E at doc. 7.
See United States v. Matlock, 415 U.S. 164, 171 (1974).
For the above reasons, the court finds that police had valid consent to search the Barr residence and remove any property necessary to their investigation. Consequently, Count IV of the expanded complaint must be dismissed. Count III, to the extent that it alleges a Fourth Amendment violation, is also dismissed.
Having dismissed the only claims over which it has original jurisdiction, the court now exercises its supplemental jurisdiction pursuant to 28 U.S. § 1367 in addressing the remaining state claims.
Regarding Barr's negligent arrest/investigation (Count II), negligent prosecution (Count VI), and false imprisonment claims (Count III), defendants argue that, having pled no contest to assault charges, Barr is precluded from claiming that the police investigation and subsequent prosecution constitute tortuous injuries. Defendants cite Burcina v. City of Ketchikan for the proposition that a no contest plea "constitutes an admission that the police had a reasonable basis for the investigation and prosecution, as well as the imposition of punishment." Mr. Barr presents no argument or case law on the issue. Instead, Mr. Barr's response merely states that a plaintiff may plead no contest to criminal charges without foreclosing the possibility of filing a civil suit on the same matter.
Doc. 7 at 7.
902 P.2d 817 (Alaska 1995).
Id.
Doc. 12 at 5.
There is ample support for the proposition that one whose intentional criminal acts result in incarceration is precluded from recovering damages associated with that incarceration from others whose conduct may also have contributed to the incarceration. In Adkinson v. Rossi Arms Company, the defendant was convicted of manslaughter and sentenced to thirty years incarceration after a shotgun he pointed at the victim allegedly misfired. Adkinson subsequently attempted to sue the manufacturer of the shotgun for damages suffered as a result of his incarceration. The court denied Adkinson's claim, holding that Adkinson engaged in an intentional criminal act by pointing the shotgun at his victim. But for this wrongful act, the court found, there would be no shooting, and public policy prohibits Adkinson from shifting responsibility for his wrongful acts to the manufacturer of the shotgun, even if it was defective.
See Adkinson v. Rossi Arms Co., 611 P.2d 528 (Alaska 1983); Lord v. Fogcutter Bar, 813 P.2d 660 (Alaska 1991); Shaw v. State, 861 P.2d 566 (Alaska 1993); and Burcina v. City of Ketchikan, 902 P.2d 817 (Alaska 1995).
In Lord v. Fogcutter Bar, the defendant, Lord, was served more than fourteen alcoholic drinks at the Fogcutter Bar and subsequently kidnapped and raped another bar patron. Lord was convicted and attempted to sue the Fogcutter Bar for damages suffered as a result of his incarceration, alleging that the bar was negligent in providing him fourteen alcoholic beverages. The Alaska Supreme Court assumed the bar was negligent, but nevertheless rejected Lord's claim because "to impose liability on others for the consequences of his own anti-social conduct runs counter to basic values underlying our criminal justice system."
Citation at n. 31 above.
Fogcutter Bar, 813 P.2d at 663 (citing Adkinson, 659 P.2d at 1240).
In Burcina v. City of Ketchikan, the Alaska Supreme Court expanded the public policy principle precluding those convicted of a crime from imposing civil liability on others for the consequences of their crime to include convictions based on no contest pleas. The effect of this policy is to collaterally estop a plaintiff "from relitigating any element of a criminal charge to which he has pled nolo contendere." Mr. Barr pled no contest to a charge of assault on November 13, 2001. But for this wrongful act of assault, there would be no prosecution or incarceration, and public policy prohibits Barr from shifting responsibility for his assault to those who investigated and prosecuted the crime, even if their investigation and prosecution were somehow negligent. Stated differently, Mr. Barr's no contest plea serves as an acknowledgment that the state had a reasonable basis to investigate and prosecute him. Additionally, Mr. Barr's no contest plea precludes him from seeking recovery for damages relating to his incarceration. For these reasons, Counts II, III, and VI must be dismissed.
Citation at n. 31 above.
City of Ketchikan, 902 P.2d at 821-22.
Id.
Criminal judgment attached as Ex. P to doc. 7.
Even if Mr. Barr had not pled no contest, any claims against Municipal Prosecutor McConnaughy would in all probability be barred because prosecutors have immunity with regard to functions that are intimately related to the conduct of the judicial process, including the decision to file charges.
Count I of the complaint alleges that Anchorage Police Chief Walt Monegan breached his duty to Mr. Barr to ensure that the police who responded to the Barr residence were properly trained to deal with the mentally ill in a reasonable manner. While not a model of clarity, Mr. Barr's complaint seems to argue that the police were negligent in believing Kimberly Barr's allegations of domestic violence given her alleged history of mental illness. As discussed above, Mr. Barr's no contest plea constitutes an admission that the police had a reasonable basis to investigate and prosecute allegations of assault. Consequently, Mr. Barr is precluded from arguing that the police acted negligently in investigating Kimberly Barr's allegations, or that their training was somehow inadequate. For this reason, Count I must be dismissed.
Mr. Barr's final remaining claim (Count V) alleges negligence on the part of Mr. Barr's attorney, Mike Logue, and was not addressed in the present motion.
As a final housekeeping issue, the court notes the existence of a named defendant, corrections officer Butler, who did not join in the present motion. Although named in the complaint, there does not appear to be any claim pled against Mr. Butler. Indeed, the only mention of Butler throughout the complaint are in the caption and at ¶ 15, in which Butler is identified as a resident of Anchorage, Alaska.
V. CONCLUSION
For the reasons stated above, the motion at docket 7 is GRANTED in part. Counts I, II, III, IV, and VI are DISMISSED.