Opinion
Case No. 4:23-cv-00179-RK
2023-12-27
Sean Wayne NULL, Plaintiff, v. Anthony GARCIA, Badge No. 4399, in His Official Capacity as a Kansas City, Missouri Police Department Officer, and as an Individual, et al., Defendants.
Kenneth N. Caldwell, Edward N. Foster, Caldwell Law Firm PC, Kansas City, MO, for Plaintiff. Adam J. Merello, Office of the Missouri Attorney General, Kansas City, MO, Diane Peters, Wyrsch, Hobbs & Mirakian, PC, Kansas City, MO, Andrew Tyler Bailey, Missouri Attorney General's Office, Jefferson City, MO, for Defendants Anthony Garcia, Michael Wells, Edward L. Lamport. Amanda Rae Langenheim, Daryl Ryan Taylor, Office of the County Counselor of Jackson County, Kansas City, MO, for Defendants Dustin Atkins, David Kennedy, Caitlin Brock, Daniel Francis Portnoy, Jean Peters Bakers. Jacqueline M. Longfellow, Baker, Sterchi, Cowden & Rice, LLC, Kansas City, MO, for Defendants Emelyna Aurich, Gabriel Robinson, The Cordish Companies, Inc. Jacqueline M. Longfellow, Torey J. Darin, Baker, Sterchi, Cowden & Rice, LLC, Kansas City, MO, for Defendant Block 110 Residential, LLC.
Kenneth N. Caldwell, Edward N. Foster, Caldwell Law Firm PC, Kansas City, MO, for Plaintiff.
Adam J. Merello, Office of the Missouri Attorney General, Kansas City, MO, Diane Peters, Wyrsch, Hobbs & Mirakian, PC, Kansas City, MO, Andrew Tyler Bailey, Missouri Attorney General's Office, Jefferson City, MO, for Defendants Anthony Garcia, Michael Wells, Edward L. Lamport.
Amanda Rae Langenheim, Daryl Ryan Taylor, Office of the County Counselor of Jackson County, Kansas City, MO, for Defendants Dustin Atkins, David Kennedy, Caitlin Brock, Daniel Francis Portnoy, Jean Peters Bakers.
Jacqueline M. Longfellow, Baker, Sterchi, Cowden & Rice, LLC, Kansas City, MO, for Defendants Emelyna Aurich, Gabriel Robinson, The Cordish Companies, Inc.
Jacqueline M. Longfellow, Torey J. Darin, Baker, Sterchi, Cowden & Rice, LLC, Kansas City, MO, for Defendant Block 110 Residential, LLC.
ORDER
ROSEANN A. KETCHMARK, JUDGE.
Before the Court are Defendants' motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure and a motion for judgment on the pleadings under
Rule 12(c). (Docs. 17, 21, 28, 39.) The motions are fully briefed. (Docs. 18, 22, 34, 35, 38, 42, 43, 44, 46, 47.) After careful consideration and for the reasons explained below, the Court ORDERS that Defendants' motions to dismiss and motion for judgment on the pleadings are GRANTED for failure to state a claim or on qualified immunity grounds as set out below. Additionally, as to the remaining state-law claims, pursuant to 28 U.S.C. § 1367(c), the Court declines to exercise supplemental jurisdiction, and those claims are therefore DISMISSED without prejudice.
Background
The facts stated here are taken from Plaintiff's complaint (Doc. 1). For purposes of considering Defendants' Rule 12(b)(6) and 12(c) motions, the Court accepts as true properly pleaded facts alleged in the complaint. Glick v. W. Power Sports, Inc., 944 F.3d 714, 717 (8th Cir. 2019) (in reviewing a motion to dismiss under Rule 12(b)(6), the Court "accept[s] as true all factual allegations in the light most favorable to the nonmoving party") (citation omitted); Lion Oil Co. v. Tosco Corp., 90 F.3d 268, 270 (8th Cir. 1996) (same for Rule 12(c) motion for judgment on the pleadings).
On or about March 13, 2020, Detective Antonio Garcia with the Kansas City, Missouri Police Department ("KCPD"), was working at a United Parcel Service ("UPS") sort facility in Kansas City, Kansas. (Doc. 1 at ¶ 21.) Detective Garcia had a drug sniffing dog with him, K-9 Zina. (Id. at ¶¶ 22, 27.) Detective Garcia identified a suspicious package for enhanced drug screening. (See id. at ¶¶ 22-24, 27.) Detective Garcia pulled the package and noted the name, phone number and address of the sender (located in California) as well as the name ("Nully") and address (an apartment at One Light Luxury Apartments ("One Light") in downtown Kansas City, Missouri) of the intended recipient of the package. (Id. at ¶¶ 24, 25, 41 128.) Detective Garcia also weighed the package and recorded that it weighed approximately 11 pounds. (Id. at ¶ 26.)
Plaintiff's name is Sean Wayne Null.
Detective Garcia placed the target package among four other packages of unknown origin and unknown contents for K-9 Zina to conduct a sniff search. (Id. at ¶ 27.) K-9 Zina indicated that the target package contained drugs. (Id. at ¶ 28.) Detective Garcia then took the package with him to the police department and applied for a search warrant. (Id. at ¶¶ 29, 33.) Upon obtaining a search warrant, Detective Garcia opened the package and found what appeared to be marijuana wrapped in five food saver bags. (Id. at ¶ 36.) A field test of the package's contents tested positive for THC. (Id. at ¶ 37.) The five bags and their contents weighed a total of 5.4 pounds. (Id. at ¶ 38.)
Detective Garcia and KCPD Detective Michael Wells went to the designated delivery address at One Light. (Id. at ¶ 41.) At One Light, Detective Garcia and Detective Wells made contact with Emelyna Aurich, Director of Property Management for Block 110 Residential. (Id. at ¶ 42.) Although the detectives had at that time only received a search warrant for the target package, they told Ms. Aurich that they "had a warrant for their activities." (Id.) Plaintiff alleges that the detectives "and/or" Ms. Aurich then made a (false) entry in the apartment's "parcel notification system," alerting Plaintiff that a package had arrived for him which could be picked up in the apartment's secured package room. (Id. at ¶ 43.) When Plaintiff arrived to the secure package room, Detective Garcia and Detective Wells placed him under "investigatory arrest" and seized his cell phone and apartment keys. (Id. at ¶ 46.) When the detectives attempted to question Plaintiff about the package, Plaintiff advised that he wanted his attorney present for any questioning. (Id. at ¶¶ 47, 48.) Plaintiff asked the detectives to produce an arrest warrant or warrant to seize his cell phone and apartment keys; Detective Garcia stated that they did not have one. (Id. at ¶¶ 49-51.)
Detective Garcia told Plaintiff that they were going to search his apartment. (Id. at ¶ 52.) Plaintiff refused consent. (Id. at ¶ 53.) Plaintiff told the detectives that he was going to "file an action for violating his fourth amendment constitutional rights to be free from search and seizure without a warrant." (Id. at ¶ 54.) Detective Garcia obtained consent from Ms. Aurich to conduct a dog sniff search with K-9 Zina on the seventh floor of the apartment, the floor where Plaintiff's apartment was located. (Id. at ¶¶ 55, 57.)
Access to the seventh floor was restricted and required a key fob for entry. (Id. at ¶ 56.) Plaintiff alleges that only "tenants of the seventh floor or employees of the entity Defendants[]" had the required key fob with access to the seventh floor. (Id.) Ms. Aurich instructed Gabriel Robinson, Vice President of Operations for K.C. Live!, a Cordish Company, to accommodate the requested search. (Id. at ¶ 57.) Plaintiff alleges that Detective Garcia and Detective Wells ultimately "gained access to the secure seventh floor using Plaintiff's confiscated key fob" and had K-9 Zina conduct a sniff search outside Plaintiff's apartment in the apartment hallway. (Id. at ¶ 58.)
The three entities named in Plaintiff's complaint are Block 110 Residential, LLC, The Corish Companies, Inc., and Semper Blue Professional Services, Inc. It is not clear which of these three Plaintiff alleges employees had access to the seventh floor of One Light.
Plaintiff alleges K.C. Live!, a Cordish Company operates "Block 110 Residential (Kansas City Properties)." (Doc. 1 at ¶ 12.)
Detective Garcia reported that K-9 Zina alerted to the presence of narcotics outside Plaintiff's apartment. (Id.) Accordingly, Detective Garcia sought a second search warrant, this time for the apartment, which was issued on the same day. (Id. at ¶¶ 59, 60.) The search warrant authorized a search of Plaintiff's apartment for marijuana, cocaine, methamphetamine, and heroin. (Id. at ¶ 60.) Detective Garcia, Detective Wells, and KCPD Officer Dustin Atkins carried out the search, finding (and seizing) 28 grams of marijuana, a FN Five Seven firearm, gold and diamond jewelry, and over $10,500 in cash. (Id. at ¶¶ 63, 66.) Detective Garcia later applied for a search/seizure warrant for the non-drug items that were seized at the time of the search and not specifically named in the initial search warrant for the apartment. (Id. at ¶ 64.)
Five days later, on March 19, 2020, Defendant Garcia drafted and signed a probable cause statement which included a statement that Plaintiff had two expunged felony convictions in the state of Kansas. (Id. at ¶ 65.) Plaintiff alleges this statement was false. (Id.)
The following day, on March 20, 2020, Jackson County prosecutors filed a civil forfeiture proceeding for the handgun and $10,500 in cash which had earlier been seized during the March 13, 2020 search of Plaintiff's One Light apartment. (Id. at ¶ 66.) More than one year later, on April 15, 2021, Jackson County prosecutors filed criminal charges against Plaintiff for distribution of a controlled substance and unlawful use of a weapon for possessing a weapon and a felony controlled substance.
(Id. at ¶ 68.) Plaintiff alleges that prosecutors filed these criminal charges to facilitate the civil forfeiture proceeding. (Id. at ¶ 68.) In October 2021, Jackson County prosecutors offered a deferred prosecution agreement to Plaintiff in the criminal case in exchange for relinquishing the already seized firearm; an offer that Plaintiff asserts violates Missouri law, § 513.617.3 RSMo. (Id. at ¶ 69.) Both the civil forfeiture and criminal actions were dropped or dismissed on October 21, 2021. (Id. at ¶ 71.)
Plaintiff now brings this suit seeking damages under 42 U.S.C. § 1983 alleging violations of his constitutional rights including under the First, Fourth, Fifth, and Fourteenth Amendments, alongside state-law claims for malicious prosecution, invasion of privacy, intentional infliction of emotional distress, and abuse of process. Plaintiff filed this lawsuit against thirteen defendants:
• Detective Anthony Garcia; Detective Michael Wells; Officer Dustin Atkins, and Supervising Officer Edward Lamport ("KCPD Defendants");
• Emelyna Aurich; Gabriel Robinson; Block 110 Residential, LLC; The Cordish Companies, Inc. ("One Light Defendants");
• Jackson County prosecutors David Kennedy, Caitlin Brock, Daniel Portnoy, and Jean Peters Baker ("Prosecutor Defendants"); and
• Semper Blue Professional Services, Inc.
Plaintiff also initially asserted claims against Defendant Michael ("Mike") Sosa, an employee of Defendant Semper Blue Professional Services, whom Plaintiff voluntarily dismissed pursuant to Rule 41(a) after not completing service of process. (See Docs. 41, 48.)
As to the KCPD and Prosecutor Defendants, Plaintiff brings this lawsuit against each of them in their individual and official capacities. Plaintiff asserts twenty-one claims for relief or damages, including sixteen claims brought under 42 U.S.C. § 1983 for violation of Plaintiff's federal constitutional rights, and six tort claims brought under Missouri law.
Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court "accept[s] the allegations contained in the complaint as true and draw[s] all reasonable inferences in favor of the nonmoving party." Cole v. Homier Distrib. Co., 599 F.3d 856, 861 (8th Cir. 2010) (citation and quotation marks omitted). In doing so, however, the Court is not bound to accept as true "legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations." Wiles v. Capitol Indem. Corp., 280 F.3d 868, 870 (8th Cir. 2002) (citation omitted).
Under Rule 12(c), "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." The standard under a Rule 12(c) motion for judgment on the pleadings is the same as a motion to dismiss under Rule 12(b)(6). Spagna v. Phi Kappa Psi, Inc., 30 F.4th 710, 715 (8th Cir. 2022); see Rule 12(h)(2) (providing that "[f]ailure to state a claim upon which relief
can be granted" may be raised by motion pursuant to Rule 12(c)).
Discussion
Collectively, Defendants argue that they are entitled to qualified immunity and/or Plaintiff fails to state a claim under Rule 12(b)(6). The Court addresses the Defendants' arguments, below.
I. Federal-law (§ 1983) claims
Title 42 U.S.C. § 1983 provides a federal remedy for violation of federal constitutional or statutory rights by state officials:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]
In response to a claim under § 1983, a defendant may assert the defense of qualified immunity. "The defense of qualified immunity gives government officials engaged in discretionary activities immunity from liability unless their conduct violates 'clearly established statutory or constitutional rights.'" Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "Officials are entitled to qualified immunity only to the extent that 'their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Hedges v. Poletis, 177 F.3d 1071, 1074 (8th Cir. 1999) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. 2727). "Qualified immunity balances two important interests—the 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." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). It protects government officials from "a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Id. (quotation omitted). Put another way, "[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law." Stanton v. Sims, 571 U.S. 3, 5, 134 S.Ct. 3, 187 L.Ed.2d 341 (2013) (internal quotations omitted). "Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." Id. (quoting Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004)) (internal quotation marks omitted).
The Court uses a two-part test to determine whether a government official is entitled to qualified immunity. See Branch v. Gorman, 742 F.3d 1069, 1072 (8th Cir. 2014). The first part is to determine "whether the facts alleged, construed in the light most favorable to [Plaintiff], established a violation of a constitutional or statutory right[]." Id. The second part of this test is to determine "whether that right was clearly established at the time of the alleged violation, such that a reasonable officer would have known his actions were unlawful." Id. If the answer to either part is "no" then the defendant is entitled to qualified immunity. Montin v. Moore, 846 F.3d 289, 293-94 (8th Cir. 2017).
A. One Light Defendants as Private Parties
First, the Court considers Plaintiff's claims against One Light Defendants as non-state actors or private parties. To state a § 1983 claim against a
private party (as opposed to a state actor like Detective Garcia or Detective Wells, for example) the complaint must allege facts plausibly supporting a "meeting of the minds" between the private party— here, primarily Ms. Aurich or Mr. Robinson —and Detective Garcia or Detective Wells as to the alleged unconstitutional act(s), i.e., Detective Garcia's use of excessive force, Plaintiff's unlawful arrest/detention, the illegal search of Plaintiff's apartment, or the unlawful seizure of the firearm, for instance. See Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980) (§ 1983 liability extends to "[p]rivate persons, jointly engaged with state officials in the challenged action") (holding complaint alleged sufficient state action as to private parties to the extent the complaint alleged that the private parties conspired to bribe a judge to obtain an injunction); Young v. Harrison, 284 F.3d 863, 870 (8th Cir. 2002) (insufficient state action for § 1983 claim asserted against private parties where "no evidence that [the private party] and the police had a meeting of the minds with regard to violating [the plaintiff]'s constitutional rights"); Mershon v. Beasley, 994 F.2d 449, 451 (8th Cir. 1993) (to state a § 1983 claim against a private party, a plaintiff must "allege, at the very least, that there was a mutual understanding, or a meeting of the minds, between the private party and the state actor"); see also Dossett v. First State Bank, 399 F.3d 940, 950-51 (8th Cir. 2005) (holding that "both state officials and private actors may be held liable under § 1983 for conspiring to retaliate against protected speech, if the evidence shows the requisite agreement to violate or disregard the law").
Plaintiff does not allege any independent action by Block 110 Residential or The Cordish Companies other than through Ms. Aurich and Mr. Robinson as their employees. Plaintiff suggests in his briefing that "[t]he allegations are that Defendant Aurich was employed by Block 110/Cordish Properties and... the joint participation [between Ms. Aurich and law enforcement] may be due to Block 110/Cordish's written policy or custom." (Doc. 347 at n.1.) The complaint alleges no facts, however, of any such written policy or custom by Block 110 Residential or The Cordish Companies that was the driving force behind the alleged constitutional violations and therefore Plaintiff has failed to allege facts that Block 110 Residential and The Cordish Companies are state actors for a claim under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See Van Stelton v. Van Stelton, No. C11-4045-MWB, 2013 WL 3776813, at *12-13 (N.D. Iowa July 17, 2013) (finding plaintiff failed to state § 1983 claim against law firm because the complaint was "completely bereft of any allegations that the Law Firm was involved in establishing a policy or custom that was the cause of the alleged constitutional violations, and therefore cannot be a state actor").
At best, Plaintiff alleges that after Detective Garcia and Detective Wells told Ms. Aurich (falsely) that they had a warrant for their activities, Ms. Aurich (and/or one of the detectives (Doc. 1 at ¶ 43)) made a false entry in the apartment's parcel notification system to notify Plaintiff that he had a package that was ready to be picked up in the secured package room. As to Mr. Robinson, Plaintiff alleges that he accompanied Detective Garcia and Detective Wells to the seventh floor at Ms. Aurich's direction after she consented to a drug dog search on the seventh floor to "facilitate[]"the K-9 search in the seventh-floor hallway—although Plaintiff also alleges particularly that the detectives gained access to the seventh floor using Plaintiff's own key fob—and then "assist[ed]" with the search of Plaintiff's apartment after the officers obtained a warrant to do so.
Ultimately, even viewing the facts alleged in a light most favorable to Plaintiff, the Court finds that Plaintiff does not allege
a sufficient "meeting of the minds" to maintain a § 1983 claim against these private parties. See also Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (the state action requirement under § 1983 is satisfied regarding a private party who is "jointly engaged with state officials in the prohibited action") (holding in that case "petitioner will have made out a violation of her Fourteenth Amendment rights and will be entitled to relief under § 1983 if she can prove that a Kress employee [a private actor], in the course of employment, and a Hattiesburg policeman somehow reached an understanding to deny [plaintiff] service in The Kress store or to cause her subsequent arrest" in violation of the Equal Protection Clause under the Fourteenth Amendment). Plaintiff does not allege the false entry in the package notification system itself violated his constitutional rights. Plaintiff alleges no facts otherwise that plausibly support any joint understanding or meeting of the minds between Ms. Aurich or Mr. Robinson and the detectives to violate Plaintiff's Fourth Amendment rights in any of the ways Plaintiff alleges Detective Garcia and Detective Wells are alleged to have done so, such as by using excessive force against Plaintiff by placing him in handcuffs, unlawfully detaining/arresting him, unlawfully searching the apartment hallway and his apartment, or retaliating against him in violation of his First Amendment freedom-of-speech rights by Detective Garcia filing a false probable cause statement, etc.
Therefore, Plaintiff fails to state any claim under § 1983 against One Light Defendants as private parties. Counts 3, 4, and 6-14 are accordingly DISMISSED without prejudice as to the One Light Defendants.
In Count 14, Plaintiff asserts a § 1983 First Amendment retaliation and 42 U.S.C. § 1985 conspiracy claim against Detective Garcia and Detective Wells alongside Ms. Aurich, Block 110 Residential, and The Cordish Companies. The Court addresses Count 14 in addition, below.
Alternatively, the Court notes that to the extent the Court finds below that Plaintiff fails to state a § 1983 claim against Detective Garcia or Detective Wells as the state actors in Counts 3, 6, and 10, the Court would otherwise find Plaintiff fails to state a claim against these private actors as to those claims as well. See Sanders v. City of Minneapolis, 474 F.3d 523, 527 (8th Cir. 2007).
B. Count 1 (§ 1983 Fourth Amendment claim — unlawful seizure of package)
In Count 1, Plaintiff alleges that Detective Garcia violated his Fourth Amendment rights by seizing the target package at the UPS sort facility in Kansas City, Kansas, without a warrant.
The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. art. IV. As alleged in his complaint, Detective Garcia seized the target package after K-9 Zina gave a positive alert that the package contained drugs. Law enforcement may, consistent with the Fourth Amendment, seize property without a warrant if they "have probable cause to believe [such] property holds contraband or evidence of a crime." United States v. Mays, 993 F.3d 607, 614 (8th Cir. 2021) (citation and quotation marks omitted). A positive alert from a drug-sniffing K-9 police dog generally provides law enforcement with probable cause to seize a package without a warrant. United States v. Sundby, 186 F.3d 873, 876 (8th Cir. 1999) ("[a] [police] dog's positive indication alone is enough to establish probable cause for the presence of a controlled substance if the dog is reliable," that is, if the dog is "trained and certified to detect drugs"). In the context of a criminal case, a police K-9's reliability as a drug-sniffing dog may be established by affidavit which states that the K-9 is trained and certified to detect drugs. Id. This is not a criminal case, however. This is a civil action brought under § 1983 seeking damages for alleged constitutional violations. As the plaintiff bringing this civil action, Plaintiff must allege facts in the complaint plausibly showing that his constitutional rights were violated. In other words, to state a violation of the Fourth Amendment for unreasonable seizure of the target package, Plaintiff must allege facts plausibly demonstrating that the seizure was not supported by probable cause. Plaintiff has not done so here. Plaintiff does not allege any facts plausibly supporting that K-9 Zina was not trained and certified to detect drugs, for example.
At most, Plaintiff alleges that Detective Garcia was not acting within his jurisdiction when he seized the package and therefore violated Plaintiff's Fourth Amendment rights by doing so. Without something more, this does not state a claim for violation of the Fourth Amendment, however. In Marksmeier v. Davie, 622 F.3d 896 (8th Cir. 2010), the Eighth Circuit held that a warrantless arrest otherwise supported by probable cause by a law enforcement officer outside his primary jurisdiction did not violate the Fourth Amendment regardless of any underlying possible violation of state law. Id. at 901. Plaintiff argues that Marksmeier is inapposite here because it involved the arrest of a person rather than a seizure of property. The Court finds this proposed distinction unpersuasive. Plaintiff provides no legal authority supporting this distinction. The holding in Marksmeier—that a law enforcement officer acting outside their primary jurisdiction (even if in violation of state law) does not raise a constitutional issue if the warrantless seizure is otherwise supported by probable cause— applies easily to both the seizure of persons as to the seizure of property under the Fourth Amendment. See also Adams v. City of Lincoln, No. 4:19CV3051, 2021 WL 1536885, at *4 (D. Neb. Mar. 18, 2021) (officers entitled to qualified immunity for plain-view search alleged to have been conducted by officers acting outside their territorial jurisdiction).
In sum, without something more, the Court finds that Plaintiff fails to allege facts plausibly stating a claim that the seizure of the package violated his Fourth Amendment rights. Count 1 is therefore DISMISSED without prejudice for failure to state a claim.
C. Count 2 (§ 1983 Fourteenth Amendment claim — equal protection)
In Count 2, Plaintiff asserts a claim against Detective Garcia and Detective Wells under the Equal Protection Clause. Specifically, Plaintiff alleges that he was "treated differently from others similarly situated," relying on United States v. Green, 9 F.4th 682 (8th Cir. 2021). In particular, Plaintiff's theory is that in Green, after law enforcement had identified a suspicious package in transit and after a K-9 gave a positive alert for drugs, law enforcement conducted a controlled delivery of the package to its intended destination and only after the defendant had taken possession of the package was he then arrested.
In Green, the Eighth Circuit affirmed this Court's finding of probable cause to arrest the defendant without a warrant under the circumstances of that case. 9 F.4th at 690-91.
"The Equal Protection Clause generally requires the government to treat similarly situated people alike." In re Kemp, 894 F.3d 900, 909 (8th Cir. 2018)
(citation and quotation marks omitted). Plaintiff asserts this equal protection claim under the so-called "class-of-one" theory. (Doc. 35 at 7.) As the Eighth Circuit has explained:
The Supreme Court recognizes such a "class of one" equal protection claim— meaning "the plaintiff did not allege membership in a class or group"— "where the plaintiff alleges that [he] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment."
Robbins v. Becker, 794 F.3d 988, 995 (8th Cir. 2015) (quoting Vill. Of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); citing Barstad v. Murray Cnty., 420 F.3d 880, 884 (8th Cir. 2005)). This theory of liability under the Equal Protection Clause, however, "does have limits." Id. In Flowers v. City of Minneapolis, 558 F.3d 794 (8th Cir. 2009), for instance, the Eighth Circuit held that "a police officer's investigative decisions... may not be attacked in a class-of-one equal protection claim." Id. at 799-800. In doing so, the Court applied the Supreme Court's decision in Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), which recognized that "forms of state action ... which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments" are not conducive to an equal protection claim under the class-of-one theory. Id. at 603, 128 S.Ct. 2146.
To the extent Plaintiff's claim in Count 2 is based on the underlying investigation by law enforcement regarding the target package containing drugs that was addressed to "Nully" at Plaintiff's address, under Flowers, Plaintiff necessarily fails to state a § 1983 equal protection claim under a class-of-one theory.
Alternatively, to the extent Plaintiff's complaint could be read as asserting an Equal Protection claim premised on race, see Doc. 35 at 8 (arguing that "Plaintiff, a non-Caucasian minority, was singled out for different and less favorable treatment than Green [the defendant in Green] and similarly situated individuals"), Plaintiff fails to allege any facts showing that any "similarly-situated person of another race was treated more favorably," thus showing an inference of unlawful discrimination. Mitchell v. Dakota Cnty. Soc. Servs., 959 F.3d 887, 899 (8th Cir. 2020) (citation omitted); see Bogren v. Minn., 236 F.3d 399, 407 (8th Cir. 2000) (plaintiff's equal protection claim failed because plaintiff "failed to show that similarly situated white and male probationary troopers were treated more favorably"). Plaintiff alleges that he is a "non-Caucasian minority" but does not allege the race of any other individual who was similarly situated but was treated more favorably, including the defendant in Green.
Count 2 is therefore DISMISSED without prejudice for failure to state a claim.
D. Count 3 (§ 1983 Fourth Amendment claim — excessive force) and Count 5 (§ 1983 Fourth Amendment claim failure to intervene)
In Count 3, Plaintiff asserts a § 1983 excessive force claim against Detective Garcia and Detective Wells. Plaintiff specifically alleges that Detective Garcia used excessive force when he handcuffed him in the One Light package pick-up room only to the extent he was "handcuffed ... without probable cause and without a warrant." (Doc. 1 at ¶ 87.) In Count 5, Plaintiff asserts a § 1983 failure-to-intervene claim against Detective Wells for failing to intervene in Detective Garcia's alleged use of excessive force against Plaintiff by handcuffing him. "A de minimis use of force is insufficient to support a [Fourth Amendment excessive force] claim." Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011) (citing Hunter v. Namanny, 219 F.3d 825, 831-32 (8th Cir. 2000); other citation omitted); see also Mitchell v. Kirchmeier, 28 F.4th 888, 898 (8th Cir. 2022) (recognizing that under the Fourth Amendment "if a person is not suspected of a serious crime, is not threatening anyone, and is neither fleeing nor resisting arrest, then it is unreasonable for an officer to use more than de minimis force against him"). Here, Plaintiff's excessive-force claim does not assert anything more than a de minimis use of force against him.
Indeed, Plaintiff's argument appears to be that Detective Garcia used excessive force merely by handcuffing him (a de minimis use of force) because of the lack of probable cause to detain or arrest him. This excessive-force theory improperly conflates what is an independent Fourth Amendment claim for excessive force (to address the unreasonable use of force in effectuating an arrest/seizure of a person) with a Fourth Amendment claim for unlawful arrest or detention (to address an unreasonable arrest/seizure without probable cause or reasonable suspicion, as applicable). See Cnty. of Los Angeles v. Mendez, 581 U.S. 420, 428-29, 137 S.Ct. 1539, 198 L.Ed.2d 52 (2017) (cautioning against "conflat[ing] distinct Fourth Amendment claims," and recognizing that "[a]n excessive force claim ... is not a claim that an officer used reasonable force after committing a distinct Fourth Amendment violation").
Because Plaintiff alleges no more than a de minimis use of force and improperly conflates Fourth Amendment claims, the Court finds that Plaintiff fails to state a § 1983 Fourth Amendment excessive force claim against Detective Garcia. As a result, Count 5, as the accompanying § 1983 failure-to-intervene claim against Detective Wells is dismissed for failure to state a claim as well. See also Hollingsworth v. City of St. Ann, 800 F.3d 985, (8th Cir. 2015) (qualified immunity applies to claim against officer for failing to intervene as to unconstitutional excessive force where the officer who used force is otherwise entitled to qualified immunity for the use of force).
Counts 3 and 5 are therefore DISMISSED without prejudice for failure to state a claim.
E. Count 4 (§ 1983 Fourth Amendment claim — unlawful detention) and Count 8 (§ 1983 Fourth Amendment claim — unlawful arrest)
In Counts 4 and 8, Plaintiff asserts Fourth Amendment claims under § 1983 for unlawful detention and arrest against Detective Garcia and Detective Wells.
"A law enforcement officer may detain a person for investigation without probable cause to arrest' when the officer has a reasonable suspicion supported by articulable facts that criminal activity is afoot." United States v. Morgan, 729 F.3d 1086, 1089 (8th Cir. 2013) (citation and quotation marks omitted). Reasonable suspicion requires a "particularized and objective for suspecting legal wrongdoing" or a "likelihood of criminal activity" involving the person stopped. United States v. Martin, 15 F.4th 878, 882 (8th Cir. 2021) (citations and quotation marks omitted).
A warrantless arrest, in turn, does not violate the Fourth Amendment if it is supported by probable cause. Ehlers v. City of Rapid City, 846 F.3d 1002, 1008-09 (8th Cir. 2017). Generally, a law enforcement officer has probable cause to make an arrest without a warrant "when the totality of the circumstances at the
time of the arrest are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense." Id. (citation and quotation marks omitted). Stated another way, probable cause "requires showing a substantial chance of criminal activity," even if not "an actual showing of criminal activity." Green, 9 F.4th at 691 (citation and quotation marks omitted).
Even if a warrantless arrest is not supported by probable cause in the final analysis, however, an officer is nonetheless entitled to qualified immunity if the arrest was supported by "arguable probable cause." Ehlers, 846 F.3d at 1008-09 (citation and quotation marks omitted). Arguable probable cause exists where an officer arrests a suspect based on a mistaken belief that he has probable cause to do so, as long as the mistake is "objectively reasonable." Ulrich v. Pope Cnty., 715 F.3d 1054, 1059 (8th Cir. 2013) (citation and quotation marks omitted). In this way, the Eighth Circuit has recognized that "the issue of arguable probable cause is properly part of the resolution of qualified immunity's second prong, the clearly established prong." Brown v. City of St. Louis, 40 F.4th 895, 901 (8th Cir. 2022) (citations omitted). In other words, where law enforcement officers have arguable probable cause to act, then "it was not clearly established that doing so would violate" a plaintiff's constitutional rights. Id. at 903.
The complaint alleges that when Plaintiff arrived in the One Light package pick-up room, he was placed under "investigatory arrest" and was handcuffed. (Doc. 1 at 46.) At that time, Officer Garcia had recovered a package containing more than five pounds of marijuana that was addressed to "Nully" and in transit to Plaintiff's address at One Light. (Doc. 1 at ¶ 128.) Plaintiff argues that the officers lacked probable cause to arrest him at that time because the package was not physically present and he did not otherwise acquire or take possession or "show any indication of being acquainted with" the target package. (Doc. 35 at 10.) Plaintiff relies on the Eighth Circuit's opinion in United States v. Green, 9 F.4th 682 (8th Cir. 2021), finding probable cause to arrest a defendant in the context of a completed controlled delivery of a package containing drugs.
Throughout the complaint, Plaintiff alleges that he was "detained" or "placed ... under investigatory arrest" or "arrested" outside the secure package room having received a notification about a package delivery. (Doc. 1 at ¶¶ 46, 91, 109.) Because the Court finds that Detective Garcia and Detective Wells had arguable probable cause to arrest Plaintiff, whether Plaintiff was initially "detained" or "arrested" outside the package storage room the outcome for purposes of the Rule 12(b)(6) analysis is the same.
Importantly, to start, the Court notes that Green was decided after the facts of this case arose. Moreover, in Green, the Eighth Circuit found probable cause to arrest the defendant after law enforcement conducted a controlled delivery of a package known to contain drugs. Id. at 690-91. This case did not involve a completed controlled delivery. And, moreover, the Eighth Circuit's holding in Green does not mean that a controlled delivery is necessarily required to establish probable cause. At any rate, the Court emphasizes that this is a civil § 1983 action, not a criminal case at the motion to suppress stage, for example. As such, the doctrine of qualified immunity applies. Other than Green, Plaintiff does not point to any legal authority which clearly establishes that an arrest under the particular circumstances of this case is inconsistent with the Fourth Amendment. See also Ryno v. City of Waynesville, 58 F.4th 995, 1004 (8th Cir. 2023) (holding officers entitled to qualified
immunity where "[e]ven if the officers did not have probable cause to arrest [plaintiff], [plaintiff]'s right to be free from unreasonable seizure was not clearly established under these facts"). Even if the Court were to agree that the detectives lacked probable cause to arrest Plaintiff when he arrived at the parcel pick-room, the Court nonetheless finds that the detectives are entitled to qualified immunity because they had arguable probable cause to do so. In other words, even if they were mistaken in their belief that they had probable cause to arrest Plaintiff, such mistaken belief was objectively reasonable given that they had intercepted five pounds of marijuana addressed to "Nully" and in transit to Plaintiff's address at One Light where Plaintiff responded to a notification of a package delivery, such that it was not clearly established that arresting Plaintiff under these circumstances violates the Fourth Amendment.
Counts 4 and 8 are therefore DISMISSED with prejudice as to Detective Garcia and Detective Wells based on qualified immunity grounds.
F. Count 6 (§ 1983 Fifth and Fourteenth Amendment claim — unlawful questioning)
In Count 6, Plaintiff asserts a § 1983 claim against Detective Garcia and Detective Wells, alleging that the detectives violated his Fifth Amendment rights when they continued to question him after he requested an attorney. The Eighth Circuit has held that no § 1983 action can be maintained "based on a violation of the Miranda safeguards." Hannon v. Sanner, 441 F.3d 635, 636 (8th Cir. 2006); see Winslow v. Smith, 696 F.3d 716, 731 n.4 (8th Cir. 2012). Instead, "[t]he remedy for any such violation is suppression of evidence" in any subsequent criminal case. Hannon, 441 F.3d at 638. In his response, Plaintiff attempts to re-cast Count 6 as asserting a substantive due process claim under the Fourteenth Amendment based on "Defendants' overall chain of conduct." (Doc. 35 at 11.) In Count 6, though, Plaintiff asserts a § 1983 claim based on the alleged violation of his Fifth Amendment right to be silent when Detective Garcia and Detective Wells continued to question him after he requested an attorney, having been detained or arrested. Plaintiff does not assert in the complaint any Fourteenth Amendment substantive due process claim based on "Defendants' overall chain of conduct."
Count 6 is therefore DISMISSED without prejudice for failure to state a claim.
G. Count 7 (§ 1983 Fourth Amendment claim — unlawful seizure of cell phone and key fob)
In Count 7, Plaintiff asserts a § 1983 claim against Detective Garcia and Detective Wells under the Fourth Amendment alleging that his cell phone and apartment keys were unlawfully seized when Plaintiff was detained or arrested at the One Light package pick-up room. Detective Garcia and Detective Wells argue that they are entitled to qualified immunity, relying on the "search incident to a lawful arrest" exception to the Fourth Amendment warrant/probable cause requirement. (Doc. 22 at 15 (citing Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009)).) "When officers have at least arguable probable cause to perform an arrest, they cannot be held liable for performing a search incident to arrest." Schaffer v. Beringer, 842 F.3d 585, 593 (8th Cir. 2016) (citation and quotation marks omitted). As set out above, the Court finds that Detective Garcia and Detective Wells had arguable probable cause to arrest Plaintiff and are therefore entitled to qualified immunity. Accordingly, the detectives are similarly entitled to qualified immunity as to Plaintiff's claim
regarding the seizure of his cell phone and key fob at the time of that arrest.
In his responsive briefing, Plaintiff relies on Riley v. California, 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), establishing that the Fourth Amendment exception for a search incident to a lawful arrest does not extend to allow a warrantless search of the content (or data) on a cell phone otherwise seized incident to a lawful arrest. Id. at 401-02, 134 S.Ct. 2473. Plaintiff states in his brief: "In the instant case, the officers at a minimum took photographs of incoming calls to the confiscated cell phone without a warrant in violation of Plaintiff's [F]ourth [A]mendment rights." (Doc. 35 at 11-12.) At the same time, as Plaintiff acknowledges, the complaint does not allege any such facts. (Id. at 12 n.4.) Instead, Count 7 only alleges that the "seizure of Plaintiff Null's cell phone and apartment keys without a warrant" violated his Fourth Amendment rights. The Court does not further address or consider these unpleaded facts or un-stated Fourth Amendment claim.
Count 7 is therefore DISMISSED with prejudice as to Detective Garcia and Detective Wells on qualified immunity grounds.
H. Count 9 (§ 1983 Fourth Amendment claim — unlawful search)
In Count 9, Plaintiff asserts a § 1983 claim against Detective Garcia and Detective Wells under the Fourth Amendment alleging that K-9 Zina's hallway search on the seventh floor without a warrant violated his constitutional rights.
In Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), the Supreme Court held that "[t]he government's use of trained police dogs to investigate the home and its immediate surroundings [i.e., the "curtilage"] is a 'search' within the meaning of the Fourth Amendment." Id. at 11-12, 133 S.Ct. 1409. Plaintiff relies on the Eight Circuit's post-Jardines opinion in United States v. Burston, 806 F.3d 1123 (8th Cir. 2015), in which the Court held that police officers violated the Fourth Amendment under Jardines by impermissibly searching the curtilage of the defendant's apartment by conducting a K-9 sniff search six to ten inches from his apartment door. Id. at 1127-28. Burston did not involve the kind of interior apartment hallway that is present in this case, however. Instead, that case involved an apartment with exterior apartment doors, a sidewalk, and a concrete walkway leading from the sidewalk to the apartment door. Plaintiff does not point to any binding authority, and the Court is not aware of any, which clearly establishes that a K-9 sniff search in a shared apartment hallway, and for which the officers received consent by the apartment manager to do so, is unconstitutional even in light of Jardines. Accordingly, the Court concludes that the detectives are entitled to qualified immunity.
Count 9 is therefore DISMISSED with prejudice as to Detective Garcia and Detective Wells on qualified immunity grounds.
I. Count 10 (§ 1983 Fourth Amendment claim — unlawful search warrant)
In Count 10, Plaintiff asserts a § 1983 claim against Detective Garcia and Detective Wells, alleging that the search warrant to search issued for his apartment was facially invalid and thus violated his Fourth Amendment rights. Specifically, Plaintiff alleges that the search warrant "failed the particularity requirement" in that it "failed to identify the crime or provide any guidance on the search." (Doc. 35 at 14, 15.) The Eighth Circuit, however, has specifically rejected the argument that to satisfy the Fourth Amendment's particularity requirement a warrant must "state the crime of which [the individual] is suspected," holding that "neither the [F]ourth [A]mendment nor our [caselaw] require particularity with respect to the criminal activity suspected." United States v. Horn,
187 F.3d 781, 787 (8th Cir. 1999); see also United States v. James, 3 F.4th 1102, 1106 (8th Cir. 2021) (recognizing that "the Fourth Amendment requires warrants to particularly describe the place to be searched and the persons or things to be seized") (citation and quotation marks omitted). The search warrant obtained to search Plaintiff's apartment authorized a search of the apartment for marijuana, cocaine, methamphetamine, and heroin. Plaintiff has not stated a claim that the warrant is facially invalid in a way that violates his constitutional rights.
Count 10 is therefore DISMISSED without prejudice for failure to state a claim.
J. Count 11 (§ 1983 Fourth Amendment claim — unlawful search by exceeding the search warrant) and Count 13 (§ 1983 Fourth and Fourteenth Amendment claim — unlawful seizure of firearm)
In Count 11, Plaintiff asserts a § 1983 claim against Detective Garcia, Detective Wells, and Officer Atkins, alleging that they violated his Fourth Amendment rights by seizing property outside the scope of the initial search warrant, including more than $10,000 in cash, jewelry, and a firearm. In Count 13, Plaintiff asserts a virtually indistinguishable claim against Detective Garcia and Detective Wells as to the seizure of the firearm without a valid warrant to do so.
In Stepnes v. Ritschel, 663 F.3d 952 (8th Cir. 2011), the Eighth Circuit held that "[i]tems not mentioned in a [search] warrant may be seized so long as they are reasonably related to the crime for which the warrant issued." Id. at 962. Here, Plaintiff has failed to show that "officers who act as [Detective Garcia, Detective Wells, and Officer Atkins] did in the circumstances involved in this case violate clearly established law." Thiel v. Korte, 954 F.3d 1125, 1128 (8th Cir. 2020). A reasonable officer could believe that the firearm, large amount of cash, and jewelry were reasonably related to the suspected crime, i.e., drug trafficking, in light of the recovery of more than five pounds of marijuana in transit to Plaintiff's address and which package was addressed to "Nully," in addition to the 28 grams of marijuana found in Plaintiff's apartment. Accordingly, Detective Garcia, Detective Wells, and Officer Atkins are entitled to qualified immunity.
Counts 11 and 13 are therefore DISMISSED with prejudice as to Detective Garcia, Detective Wells, and Officer Atkins on qualified immunity grounds.
K. Count 12 (§ 1983 Fourth Amendment claim — providing false information in search warrant application)
In Count 12, Plaintiff asserts a § 1983 claim against Detective Garcia under the Fourth Amendment to the extent Plaintiff alleges that extent Detective Garcia (1) included false information in a subsequent search warrant application and (2) omitted certain other material information from the search warrant application. Detective Garcia argues that he is entitled to qualified immunity on this claim.
In his response, Plaintiff only addresses a claim that Detective Garcia "drafted and signed a probable cause statement that falsely reported that Plaintiff Null had two expunged felony convictions in the state of Kansas ... which [was] blatantly false." (Doc. 35 at 17.) Plaintiff alleges Detective
Plaintiff also states in his brief that Detective Garcia further Included false information that "the firearm the officers seized had twenty (20) armor piercing rounds in the chamber." (Doc. 35 at 17.) This factual allegation is nowhere to be found in the complaint, however, and the Court therefore does not consider it further.
Garcia made this false statement in a March 19, 2020 probable cause statement, well after the search warrants were sought and executed concerning the package and Plaintiff's apartment. (See Doc. 1 at ¶ 65.) Plaintiff alleges this probable cause statement was made to support the civil forfeiture action (and later criminal action). (Id.) Rather than relating to a search warrant, this claim is more akin to a Fourth Amendment claim for malicious prosecution rather than a Fourth Amendment false-warrant claim, the latter which Plaintiff asserts in Count 12 of the complaint. See, e.g., Johnson v. Moseley, 790 F.3d 649, 654 (6th Cir. 2015); see also Klein v. Steinkamp, 44 F.4th 1111, 1115 (8th Cir. 2022) (recognizing that in Thompson v. Clark, 596 U.S. 36, 142 S.Ct. 1332, 212 L.Ed.2d 382 (2022), "the Supreme Court... declared that malicious prosecution is actionable under the Fourth Amendment").
Instead, Count 12 asserts a Fourth Amendment claim based on allegations that Detective Garcia included false information or omitted material information in a prior search warrant application, not a probable cause statement. Plaintiff does not attempt to address Detective Garcia's argument that he is entitled to the defense of qualified immunity as to a claim that he included false information (or omitted certain other material information) in a warrant application for any of the March 13, 2020 search warrants. Plaintiff has therefore waived opposition to this argument. See Boles v. Noll, 4:19-CV-00525-BCW, 2019 WL 13280213, at *3 (W.D. Mo. Dec. 4, 2019) ("A party's failure to oppose specific arguments in a motion to dismiss results in waiver of those issues.") (citation omitted).
Even if he did not waive opposition, the Court alternatively finds that Plaintiff fails to state a claim under the Fourth Amendment regarding the alleged false and omitted information in any search warrant application by Detective Garcia. To establish lack of probable cause for a warrant involving a deliberate or reckless false statement, "the plaintiff must prove (1) that a false statement knowingly and intentionally, or with reckless disregard to the truth, was included in the affidavit, and (2) that the affidavit's remaining content is insufficient to establish probable cause." Williams v. City of Alexander, 772 F.3d 1307, 1311 (8th Cir. 2014) (citation and quotation marks omitted). Plaintiff alleges no facts that the remaining content was otherwise insufficient to establish probable cause to issue the challenge search warrants. In fact, Plaintiff alleges nothing more than that the search warrant application included false information or omitted certain other information. (Doc. 1 at ¶¶ 128-30.) Even if Plaintiff had not waived argument as to qualified immunity, Plaintiff otherwise fails to state a claim in Count 12 where he does not allege any facts plausibly showing the warrant application otherwise lacked probable cause.
Count 12 is therefore DISMISSED with prejudice as to Detective Garcia on qualified immunity grounds.
L. Count 14 (§ 1983 First Amendment retaliation claim) and 42 U.S.C. § 1985 (conspiracy claim)
In Count 14, Plaintiff asserts a § 1983 First Amendment retaliation claim and conspiracy claim under 42 U.S.C. § 1985 against Detective Garcia, Detective Wells, Ms. Aurich, Block 110 Residential, and The Cordish Companies. Plaintiff alleges that after he had been arrested at the package room he "informed the detectives that he intended to file an action for violating his fourth amendment constitutional rights o[.]" (Doc. 1 at ¶ 54.) In Count 14, Plaintiff alleges that after he did so, "[t]he Defendants engaged in a pattern of harassment and intimidation against Plaintiff Null." (See id. at ¶¶ 138, 139.) The "pattern of harassment and intimidation" Plaintiff alleges in the complaint includes: (1) Detective Garcia including false information or omitting material information in
applying for search warrants, and (2) unlawfully seizing property from Plaintiff's apartment without a warrant.
Plaintiff also alleges retaliation by "repeated physical harassment" by Mr. Sosa (and thus his employer, Semper Blue Professional Services) "in the Kansas City Live entertainment district, where they provided security." (Doc. 1 at ¶ 139.) Plaintiff did not assert Count 14 against Mr. Sosa or Semper Blue Professional Services, however, or otherwise allege any facts connecting this allegation with any of the named defendants in this count.
To state a claim for First Amendment retaliation in this context, Plaintiff must allege facts showing that (1) he engaged in a protected activity, (2) the defendants took adverse action against him that would chill a person of ordinary firmness from continuing the activity, (3) the adverse action was motivated by Plaintiff's exercise of the protected activity, and (4) lack of probable cause or arguable probable cause. See Thurairajah v. City of Fort Smith, 925 F.3d 979, 984-85 (8th Cir. 2019).
As set out above, Plaintiff alleges that Detective Garcia retaliated against him in violation of the First Amendment by providing false information in a search warrant application or by omitting material information. To establish lack of probable cause for a warrant involving a deliberate or reckless false statement, as set out in note 13 above, "the plaintiff must prove (1) that a false statement knowingly and intentionally, or with reckless disregard to the truth, was included in the affidavit, and (2) that the affidavit's remaining content is insufficient to establish probable cause." Williams, 772 F.3d at 1311 (citation and quotation marks omitted). This is otherwise known as a Franks violation. See id. Plaintiff does not allege any facts that any of the search warrants are otherwise insufficient to provide probable cause notwithstanding the alleged false (or omitted) information included (or not included) in the warrant application by Detective Garcia, however. In addition, as set out above, the Court does not find that the officers violated Plaintiff's constitutional rights by seizing the firearm, cash money, and jewelry during the search (itself pursuant to a search warrant). Accordingly, Plaintiff fails to state a claim for retaliation under the First Amendment.
Next, to state a conspiracy claim under § 1985, Plaintiff "must allege with particularity and specifically demonstrate with material facts that the defendants reached an agreement"; that is, "allegations of a conspiracy [must] be pleaded with sufficient specificity and factual support to suggest a meeting of the minds directed toward an unconstitutional action." Kelly v. City of Omaha, 813 F.3d 1070, 1077-78 (8th Cir. 2016) (citations and quotation marks omitted). Plaintiff must allege facts plausibly demonstrating "that defendants reached a 'meeting of the minds' directed towards violating [his] constitutional rights." Id. at 1078. Plaintiff does not allege any such specific facts here plausibly demonstrating that the defendants reached a meeting of the minds to retaliate against Plaintiff for exercising his First Amendment rights, let alone a meeting of the minds to engage in any other single alleged unconstitutional act, for the same reasons set out in the first section considering One Light Defendants as private parties.
Count 14 is therefore DISMISSED without prejudice for failure to state a claim. M. Count 15 (§ 1983 failure to train/supervise claim against Supervising Officer Lamport) and Count 18 (§ 1983 failure to train/supervise claim against Prosecutor Portnoy and Prosecutor Peters Baker)
In Count 15 and Count 18, Plaintiff asserts § 1983 claims against Supervising Officer Lamport and Prosecutor Peters Baker and Prosecutor Portnoy in both their individual and official capacities. The Court considers Plaintiff's § 1983 failure to train/supervise claims as asserted against these defendants in their individual capacities here, and the official-capacity claims in § I.N., below.
In Count 15, Plaintiff asserts a § 1983 claim against Supervising Officer Lamport in his individual capacity for failure to train/supervise based on all of Detective Garcia's alleged unconstitutional acts. "Section 1983 liability cannot attach to a supervisor merely because a subordinate violated someone's constitutional rights." Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997) (citation omitted). Instead, an individual-capacity failure to train/supervise claim under § 1983 exists where the supervisor was deliberately indifferent to or tacitly authorized the unconstitutional acts. Id. This means that the supervisor had notice of a pattern of unconstitutional acts by subordinates and failed to take remedial action, which failure proximately caused the constitutional injury. Id. Plaintiff does not allege any facts that Supervising Officer Lamport had notice of a pattern of unconstitutional acts by Detective Garcia or anyone else, however.
At most, in his brief, Plaintiff points to United States v. Green , as demonstrating that Detective Garcia has long engaged in a practice of, as Plaintiff asserts, "unconstitutional seizures from other jurisdictions," thereby plausibly supporting the notice requirement for this failure to train/supervise claim. As the Court has explained above, however, extra-jurisdictional seizures do not raise a constitutional issue. Plaintiff therefore fails to adequately plead an individual capacity failure to train/supervise claim against Supervising Officer Lamport.
Similarly, in Count 18, Plaintiff alleges that Prosecutors Peters Baker and Portnoy "failed to properly train and supervise" the prosecutors in relation to the civil forfeiture action, as to which Plaintiff also asserts a malicious prosecution claim under Missouri state law (Count 16). (Doc. 1 at ¶ 163 (Prosecutors Peters Baker and Portnoy "failed to properly train and supervise [Prosecutor] Kennedy and [Prosecutor] Brock in the handling of a CAFA action"). Ultimately, the Court finds that Plaintiff similarly fails to plead a failure to train/supervise claim against Prosecutors Peters Baker and Portnoy as Supervising Officer Lamport. Plaintiff does not allege any facts that Prosecutors Peters Baker or Portnoy had any notice of a pattern of unconstitutional acts by their subordinates. Moreover, to the extent Plaintiff's claim rests on the theory that the civil forfeiture action was not properly pursued under Missouri state law or that prosecutors offered an unlawful plea agreement, a state-law violation does not a constitutional violation make. See also Marksmeier, 622 F.3d at 901. Indeed, Plaintiff does not allege that the civil forfeiture action was initiated without probable cause. At most, Plaintiff alleges that the civil forfeiture action "was based on false and misleading statements by Defendant Garcia which were not independently investigated by" Prosecutor Kennedy and Prosecutor Peters Baker. (Doc. 1 at ¶ 149.)
In his brief, Plaintiff argues that the prolonged detention of the firearm during the pendency of the civil forfeiture action violated the Fourth Amendment because,
under Missouri law, the civil forfeiture action could not proceed without accompanying criminal charges. (Doc. 13 at 20.) Even if this were so, Plaintiff does not allege a Fourth Amendment claim against the individual prosecutors involved in pursuing the civil forfeiture action. Instead, Plaintiff seeks relief under § 1983 under a failure to train/supervise theory of liability, which requires something more—i.e., notice of the likelihood of unconstitutional acts absent supervision or training, for example. See Parrish v. Ball, 594 F.3d 993, 1002 (8th Cir. 2010). Plaintiff alleges no such facts here.
Counts 15 and 18 are therefore DISMISSED without prejudice for failure to state a claim.
The Court addresses the official-capacity claims asserted against Supervising Officer Lamport and Prosecutor Defendants in Count 14, as well as the other official-capacity § 1983 claims asserted in this case in the next section below.
N. Official § 1983 Capacity Claims
Plaintiff asserts § 1983 claims against KCPD Defendants and Prosecutor Defendants in both their individual and official capacities. The Court has addressed Plaintiff's individual-capacity claims above. An official capacity § 1983 action is really a claim against the state or government entity employer under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 905 (8th Cir. 1999). Monell liability under § 1983 is different from individual liability. To state an official capacity claim against a municipality under § 1983, a plaintiff must allege facts plausibly stating a claim that the constitutional violation "resulted from (1) an official municipal policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train or supervise." Corwin v. City of Indep., 829 F.3d 695, 699 (8th Cir. 2016) (citations and quotation marks omitted).
In this context, a "policy" means "a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters." Id. at 700 (citation and quotation marks omitted). In turn, a custom for § 1983 Monell liability purposes means:
(1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees; (2) deliberate indifference to or tacit authorization of such conduct by the governmental entity's policymaking officials after notice to the officials of that misconduct; and (3) that plaintiff was injured by acts pursuant to the governmental entity's custom, i.e., that the custom was the moving force behind the constitutional violation
Id. (citation and quotation marks omitted). Finally, as the Eighth Circuit has explained, "[o]nly where a municipality's failure to train its employees in a relevant respect evidences a deliberate indifference to the rights of its inhabitants can such a shortcoming be properly thought of as a city policy or custom that is actionable under § 1983." Marsh v. Phelps Cnty., 902 F.3d 745, 751 n. 5 (8th Cir. 2018) (quoting City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). The deliberate indifference prong for purposes of Monell liability, then, is best understood as an "extension" of the policy or custom rubric. Id. at 751.
Ultimately, official-capacity liability under § 1983 requires that "the municipality itself caused the constitutional violation at issue" and not merely that it employed a tortfeasor who violated a plaintiff's constitutional rights. Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir.
2006) (citation and quotation marks omitted).
To start, the Court notes that in response to Prosecutor Defendants' motion to dismiss, Plaintiff voluntarily dismissed official capacity claims against as to Prosecutors Kennedy, Brock, Portnoy, and Peters Baker, as well as Officer Atkins. (Doc. 43 at 6.)
Plaintiff dismissed all official capacity claims asserted against Prosecutor Defendants and Officer Atkins, whether asserted under federal (§ 1983) or state law claims.
As to Supervising Officer Lamport, there can be no municipal liability or liability under a failure to train (supervisory liability) theory without an underlying constitutional violation. Moore v. City of Desloge, 647 F.3d 841, 849 (8th Cir. 2011). Thus, to the extent the Court finds that Plaintiff does not allege a § 1983 claim as to Detective Garcia or Supervising Officer Lamport, Plaintiff's Monell claim against Supervising Officer Lamport similarly fails to state a claim.
Moreover, as to the official capacity claims against KCPD Defendants in general, Plaintiff alleges—at most—that "[u]pon information and belief," Supervising Officer Lamport "had previously received notice of a pattern of unconstitutional act committed by Defendant Garcia." (Doc. 1 at ¶ 143.) Plaintiff alleges no facts, however, plausibly showing that Supervising Officer Lamport is a final policymaker for purposes of Monell liability. See Edwards v. City of Florissant, 58 F.4th 372, 378 (8th Cir. 2023) (affirming dismissal of official capacity claim for failure to state a claim, in part, because plaintiff "did not plausibly allege that a policymaking official had notice of and tacitly authorized the alleged unconstitutional conduct").
For these reasons, the official-capacity claims asserted against KCPD Defendants and Prosecutor Defendants are therefore DISMISSED without prejudice for failure to state a claim.
As to KCPD Defendants Detective Garcia and Detective Wells, the Court only dismisses the official-capacity claims arising under federal law (§ 1983). The Court does not address the state-law claims asserted against these defendants.
II. State-Law claims
In Counts 16, 17, 19, 20, and 21, Plaintiff asserts various state-law claims against Detective Garcia, Prosecutor Defendants, Ms. Aurich, Mr. Robinson, and Semper Blue Professional Services, including malicious prosecution, invasion of privacy, intentional infliction of emotional distress, and abuse of process. Pursuant to 28 U.S.C. § 1367(c), the Court declines to exercise supplemental jurisdiction over these remaining state law claims, having dismissed the § 1983 claims as to which the Court had original jurisdiction in this action. See Mountain Home Flight Serv., Inc. v. Baxter Cnty., 758 F.3d 1038, 1045 (8th Cir. 2014); Gibson v. Weber, 431 F.3d 339, 342 (8th Cir. 2005). Counts 16, 17, 19, 20, and 21 are therefore DISMISSED without prejudice.
Conclusion
Therefore, after careful consideration and for the reasons explained above, the Court ORDERS as follows:
First, the motions to dismiss and motion for judgment on the pleadings (Docs. 17, 21, 28, 39) are GRANTED as to Counts 1-15 and 18 as follows: One Light Defendants are DISMISSED without prejudice for failure to state a claim against them as private parties. As to Detective Garcia, Detective Wells, and Officer Atkins, as applicable: (1) Counts 1-3, 5, 6, 10, and 14 are DISMISSED without prejudice for
failure to state a claim, and (2) Counts 4, 7-9, and 11-13 are DISMISSED with prejudice on qualified immunity grounds. As to Supervising Officer Lamport, Prosecutor Portnoy, and Prosecutor Peters Baker, Counts 15 and 18, respectively, are DISMISSED without prejudice for failure to state claim. And finally, Plaintiff's official capacity claims as to KCPD Defendants and Prosecutor Defendants are DISMISSED without prejudice.
Second, pursuant to 28 U.S.C. § 1367(c), Counts 16, 17 and 19-21 are DISMISSED without prejudice.
IT IS SO ORDERED.