DAVID L. RUSSELL, District Judge.
Before this Court are the Motions to Dismiss of Defendants Dennis Layden, Adam Roll, Matthew Strayer, and William Sharpe (collectively, "Defendants"), Docs. 7, 13. Plaintiff Bobby Allan Green filed this suit on January 9, 2018. See Doc. 1. Plaintiff failed to timely serve Defendants. On June 19, 2018, this Court ordered Plaintiff to show cause by June 29, 2018, why service had not been timely made. See Order, Doc. 4. Plaintiff, in lieu of showing cause, requested issuance of summonses on June 26, 2018. See Doc. 5. The summonses were returned executed as to Defendants. See Doc. 8-9, 11-12. Defendants Layden and Roll moved to dismiss this suit on August 1, 2018, Doc. 7, and Defendants Strayer and Sharpe moved to dismiss on September 10, 2018. Doc. 13. Though Plaintiff has not responded to either motion, the Court's duty to consider these motions persists. See Issa v. Comp USA, 354 F.3d 1174, 1177-78 (10th Cir. 2003) ("A district court may not grant a motion to dismiss for failure to state a claim merely because a party failed to file a response. . . . Consequently, even if a plaintiff does not file a response to a motion to dismiss . . ., the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted." (internal quotation marks, citations, and brackets omitted)).
While Defendants move to dismiss for untimely service under Fed. R. Civ. P. 4(m) and Fed. R. Civ. P. 12(b)(5), they also move to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. As all Defendants have ultimately received service, though untimely, the Court bypasses Defendants' procedural arguments and DISMISSES without prejudice Plaintiff's complaint under Rule 12(b)(6).
In considering a motion to dismiss, the Court treats Plaintiff's well-pleaded facts as true and views them in the light most favorable to Plaintiff. Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). Moreover, as Plaintiff is pro se, the Court "liberally construe[s] [his] pleadings." Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016). Plaintiff brings numerous claims against Defendants under 42 U.S.C. § 1983 stemming from two incidents in January 2016. The Court will consider each alleged incident in turn.
January 9-10, 2016
According to the complaint, Plaintiff pulled into a Lowe's Home Improvement parking lot in Oklahoma City, Oklahoma, at around 10:40 p.m. on January 9, 2016, because "[he] was getting t[ir]ed behind the wheel." Doc. 1, at 2. Plaintiff "passed out" in the parking lot; despite the night being "so cold," Plaintiff turned off his vehicle because the windows were rolled up and "[he] had [his] trench coat on." Id. Around 3:40 a.m. the next morning (January 10, 2016), Dennis Layden and Adam Roll, Oklahoma City police officers, knocked on Plaintiff's car window ("for no reason," says Plaintiff) and "shout[ed] at [him]." Id. Plaintiff's narrative deteriorates after these allegations, but, liberally construing the complaint, Plaintiff alleges that Officers Layden and Roll forced him out of his vehicle—presumably through their knocking and shouting. Id. at 2-3. The officers searched Plaintiff's vehicle without consent—Plaintiff surmises that this search was "illegal," a legal conclusion the Court may disregard—and, at some point, observed a "clear baggie containing marijuana" in plain view. Id.
Plaintiff then describes a colloquy in a state court preliminary hearing on August 18, 2016. Id. at 3.
Plaintiff alleges the following counts against Officers Layden and Roll under Section 1983: the officers (1) unlawfully seized Plaintiff and searched his car in violation of his Fourth Amendment rights; (2) falsely imprisoned Plaintiff in violation of his Fourth and Fourteenth Amendment rights; and (3) subjected Plaintiff to excessive force in violation of his Fourth and Fourteenth Amendment rights.
January 30, 2016
At around 2:45 a.m., Plaintiff was driving in Oklahoma City, Oklahoma, when he was pulled over by police. Id. Plaintiff was not ticketed for a traffic violation, but the police did administer a field sobriety test, which Plaintiff passed. Id. Plaintiff then declined a blood test and breathalyzer. Id. at 3-4. Again, Plaintiff's narrative becomes less clear, but somehow Plaintiff eventually found himself in the back of a police car. Id. at 4. At some point after this, Officer Matthew Strayer, employed by the Oklahoma County Sheriff's Department, arrived, placed Plaintiff in the back of his car, and transported him to Oklahoma County jail. Id. Officer Strayer later testified at Plaintiff's preliminary hearing as to what the officers at the scene had told him. Id. Plaintiff was bound over for trial, but, as with the first incident, the state dismissed the charges.
Plaintiff alleges the following counts against Officers Strayer and Sharpe under Section 1983: the officers (1) subjected Plaintiff to excessive force in violation of his Fourth and Fourteenth Amendment rights and (2) falsely imprisoned Plaintiff in violation of his Fourth and Fourteenth Amendment rights.
A plaintiff's complaint need only include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a).
In considering a Rule 12 motion to dismiss, the Court "accept[s] as true all wellpleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff." Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). And though the Court liberally construes Plaintiff's pro se complaint, it "will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues." Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991); see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) ("A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. . . . At the same time, we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant." (citations omitted)); Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) ("Although we must liberally construe plaintiff's factual allegations, we will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded." (citations omitted)).
Plaintiff brings his claims under 42 U.S.C. § 1983.
Additionally, "qualified immunity questions should be resolved at the earliest possible stage of a litigation," so as "to protect public officials from the broad-ranging discovery that can be peculiarly disruptive of effective government." Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987) (internal quotation marks and citation omitted). So, while the general motion-to-dismiss standard outlined above still applies to dismissals premised on qualified immunity, this standard "may have greater bite" here in light of the "special interest" in resolving qualified immunity issues quickly and efficiently. Robbins, 519 F.3d at 1249.
With these principles in mind, the Court analyzes each of Plaintiff's claims, beginning with those asserted against Defendants Layden and Roll, and proceeding to those asserted against Defendants Strayer and Sharpe.
Claims against Defendants Layden and Roll
Plaintiff alleges that Defendants Layden and Roll (1) illegally seized Plaintiff and searched his vehicle in violation of his Fourth Amendment rights; (2) falsely imprisoned Plaintiff in violation of his Fourth and Fourteenth Amendment rights; and (3) used excessive force against Plaintiff in violation of his Fourth and Fourteenth Amendment rights. The Court finds that Plaintiff's allegations fail to state any constitutional violation by Defendants Layden and Roll and, accordingly, DISMISSES all claims against them.
Search and Seizure Claim
The Fourth Amendment guarantees citizens the right "to be secure in their persons . . . against unreasonable searches and seizures. . . ." U.S. Const. amend. IV. "`[T]he ultimate touchstone of the Fourth Amendment is "reasonableness,"'" Heien v. North Carolina, 135 S.Ct. 530, 536 (2014) (quoting Riley v. California, 134 S.Ct. 2473, 2482 (2014)), meaning that the Fourth Amendment protects citizens only against unreasonable actions by police. See United States v. King, 990 F.2d 1552, 1556-57 (10th Cir. 1993). "Reasonableness under the Fourth Amendment `depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.'" Id. at 1559 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)). Thus, assuming that Plaintiff was seized and his vehicle searched
Encounters may be initiated by the police "for a wide variety of purposes, some of which are wholly unrelated to the desire to prosecute for crime." United States v. Garner, 416 F.3d 1208, 1212 (10th Cir. 2005) (internal quotation marks and citation omitted). At one end of the spectrum is an arrest—"the quintessential seizure of the person," California v. Hodari D., 499 U.S. 621, 624 (1991)—which is reasonable only if supported by probable cause. Novitsky v. City of Aurora, 491 F.3d 1244, 1253 (10th Cir. 2007). At the other end (apart from fully consensual encounters) are brief detentions, either investigatory or noninvestigatory. Id. Salient here are "brief non-investigatory detention[s] in the exercise of [the police's] community caretaking functions." Id. The police's community caretaking functions are "`totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'" Garner, 416 F.3d at 1212 (quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). "[R]egardless of suspected criminal activity, when articulable facts indicate the need `to assure the safety of the public and/or the individual,'" the police may seize a person for a brief, non-investigatory stop limited in scope and duration. Novitsky, 491 F.3d at 1253 (quoting King, 990 F.2d at 1560). As with investigatory detentions (i.e. Terry stops), a non-investigatory detention based on the police's community caretaking functions must "satisf[y] the two-part test set forth in Terry v. Ohio: (1) the detention must be justified at its inception, and (2) reasonably related in scope to the circumstances which justified the interference in the first place." Id. (internal quotation marks and citation omitted); see also Storey v. Taylor, 696 F.3d 987, 993 (10th Cir. 2012) ("A detention under the community-caretaking exception must be based upon specific and articulable facts which reasonably warrant an intrusion into the individual's liberty[,] the government's interest must outweigh the individual's interest in being free from arbitrary governmental interference[, and] the detention must last no longer than is necessary to effectuate its purpose, and its scope must be carefully tailored to its underlying justification." (internal quotation marks and citation omitted)).
Here, Officers Layden and Roll reasonably exercised their community caretaking functions in approaching Plaintiff's vehicle and ordering Plaintiff to exit it. Plaintiff acknowledges in his complaint that January 9, 2016, was "so cold," which is why he wore his trench coat and rolled up the car's windows when he turned off his car. See Doc. 1, at 2. Plaintiff also admits that he "passed out" after parking his car. Id. Officers Layden and Roll approached Plaintiff's vehicle at around 3:40 a.m.; according to Plaintiff, they knocked on the car window and shouted at him. Id. Assuming Plaintiff was seized during these events, Defendants acted reasonably to ensure Plaintiff's safety and well-being on an admittedly cold early morning.
The facts here are analogous to a similar case from the Northern District of Oklahoma, United States v. Peoples. In Peoples, Tulsa Police Department officers, addressing a traffic violation near a Quik Trip convenience store at around 3:00 a.m., observed a vehicle parked in the Quik Trip's lot that was partially blocking traffic and far from the gas pumps. No. 13-CR-0141-CVE, 2013 WL 4521174, at *1 (N.D. Okla. Aug. 26, 2013). Seeing that the vehicle had not moved over the course of the traffic stop, the officers approached the vehicle, which was parked facing the store with the engine running; inside, they found a person who appeared to be sleeping in the driver's seat. Id. "[C]oncerned for the welfare of the occupant of the vehicle and for harm that could be caused by the vehicle," the officers "knock[ed] on the driver's side window" and "announced the[ir] presence," but the occupant did not awaken. Id. Eventually, the officers removed the occupant from the vehicle and, once the occupant awakened from this more vigorous action, noted that the occupant's breath smelled of alcohol, that he slurred his words, and that he appeared disoriented. Id. at *1-2. The occupant, arrested for being a felon in possession of a firearm, moved to suppress evidence found by the officers, arguing that the encounter constituted an unreasonable seizure. Id.
The district court denied the occupant's suppression motion, finding the officers' conduct to be reasonable as community caretaking functions. Id. at *2-3. The court held that the "circumstances [as] described by [the officers] could have led a reasonable police officer to believe that a limited inquiry was necessary to ensure the safety of any occupants of the vehicle and the public." Id. at *3.
As with the officers in Peoples, Officers Layden and Roll acted reasonably and did not violate Plaintiff's Fourth Amendment rights. Taking Plaintiff's allegations as true, reasonable officers in Layden and Roll's positions may have been concerned for Plaintiff's safety and well-being, given the circumstances contextualizing the encounter. At 3:40 a.m. on a cold morning in the parking lot of a closed hardware store, the officers were free to approach the vehicle out of concern for any potential occupants. When the officers saw that Plaintiff was inside the car, they reasonably exercised their community caretaking functions by knocking on the window and attempting to rouse Plaintiff. And asking Plaintiff to step out of the vehicle—if they even did this
Plaintiff also complains of an illegal search of his vehicle, but viewing his allegations as true, everything that ensued after he exited the vehicle was reasonable under the Fourth Amendment. Plaintiff notes, and does not challenge, Officers Layden and Roll's assertion that "they saw a clear baggie containing marijuana" in plain view in the vehicle. See Doc. 1, at 2-3. Moreover, when Plaintiff awoke, the officers testified that "[his] taste buds were raised and [he] had a green tint to [his] tongue"—indicia of recent marijuana usage, in light of the officers' experience. Id. at 3; see also Foote v. Spiegel, 118 F.3d 1416 (10th Cir. 1997) (affirming summary judgment on qualified immunity grounds for officer in action regarding a drug-related arrest premised, in part, on officer's observation of green tint to defendant's tongue). Upon these specific and articulable facts, the officers would have had probable cause
False Imprisonment Claims
Plaintiff also asserts claims for false imprisonment under the Fourth and Fourteenth Amendments. However, any such claims fail Rule 12(b)(6)'s standard and are, therefore, dismissed.
The Tenth Circuit, in Mondragon v. Thompson, summarized the varying avenues by which a plaintiff may bring a claim of unconstitutional imprisonment:
519 F.3d 1078, 1082 (10th Cir. 2008). Under Oklahoma law, "[t]he tort of false imprisonment is the unlawful detention of a person against his will." Duran v. Muse, No. 16-CV-717-TCK-JFJ, 2017 WL 5985568, at *6 (N.D. Okla. Dec. 1, 2017) (citing Walters v. J.C. Penney Co., Inc., 2003 OK 100, ¶ 9, 82 P.3d 578, 583). As the Court has stated above, Plaintiff fails to state a claim that he was unlawfully arrested or detained. Accordingly, any claim for false imprisonment under the Fourth Amendment is dismissed.
As to any claim arising after Plaintiff was bound over for trial—that is, a claim for malicious prosecution under the Fourteenth Amendment—this, too, would fail. "[A] § 1983 malicious prosecution claim includes the following elements: (1) the defendant caused the plaintiff's continued confinement or prosecution; (2) the original action terminated in favor of the plaintiff; (3) no probable cause supported the original arrest, continued confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages." Sanchez v. Hartley, 810 F.3d 750, 754 n.1 (10th Cir. 2016) (internal quotation marks omitted) (quoting Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008)). While Plaintiff arguably shows none of these elements, fatal to his claims is Plaintiff's failure to demonstrate lack of probable cause. The Court has found that Plaintiff's original arrest was supported by probable cause—as was the remainder of Plaintiff's confinement and prosecution. Because Plaintiff has failed to plead sufficient facts to make out claims for malicious prosecution or false imprisonment, the Court dismisses these claims.
Excessive Force Claim
Plaintiff also brings an excessive force claim, appropriately analyzed as a Fourth Amendment claim (notwithstanding any assertions by Plaintiff to the contrary).
Plaintiff's excessive force claim substantively consists of the following allegation: because Officers Layden and Roll had no probable cause (or reason at all) to approach Plaintiff's vehicle, their actions in awakening Plaintiff and "forc[ing]" him to get out of his vehicle constitute excessive force. Aside from being, if not primarily, then wholly, a legal conclusion, Plaintiff alleges no force at all.
Claims against Defendants Strayer and Sharpe
Plaintiff asserts excessive force and false imprisonment claims under the Fourth and Fourteenth Amendments against Defendants Strayer and Sharpe. As with Defendants Layden and Roll, the Court finds that Plaintiff fails to establish that Defendants Strayer and Sharpe violated any of Plaintiff's constitutional rights. Accordingly, the Court DISMISSES all claims against them.
Claims against Officer Sharpe are easily dispensed with. Plaintiff alleges no facts linking Officer Sharpe to any potential constitutional violations. Indeed, Plaintiff's allegations pertaining to Officer Sharpe consist entirely of the following: "Plaintiff was subjected to excessive use of force by . . . William Sharpe" and "Plaintiff was subjected to false imprisonment by . . . William Sharpe." Doc. 1, at 7. Along with being legal conclusions the Court may rightly disregard, Plaintiff's allegations naming Officer Sharpe fail to show "an affirmative link between the defendant's conduct and any constitutional violation." Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1156 (10th Cir. 2001) (internal quotation marks and citations omitted); see also Robertson v. Las Animas Cty. Sheriff's Dep't, 500 F.3d 1185, 1193 (10th Cir. 2007) ("It is axiomatic that, to prevail on a damages claim for a constitutional violation pursuant to § 1983, the plaintiff must show that the defendant, acting under color of state law, personally participated in the alleged violation." (internal quotation marks and citation omitted)); Foote, 118 F.3d at 1423-24 ("Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation."). As Officer Sharpe appears nowhere in Plaintiff's factual narrative purportedly forming the substance of his claims, see Doc. 1, at 2-4, Plaintiff's claims against Officer Sharpe are dismissed.
Officer Strayer is not quite the supernumerary that Officer Sharpe is, but he, too, is a bit player in Plaintiff's overall narrative. According to the complaint, Officer Strayer appears after the main events of January 30, 2016, undergirding Plaintiff's excessive force and false imprisonment claims. Specifically, Plaintiff notes that "Matthew Strayer . . . was not . . . the arresting officer," but rather arrived on scene after Plaintiff was already detained in the back of another vehicle (presumably, another squad car). Doc. 1, at 4. Officer Strayer then "transport[ed] [Plaintiff] to the county jail" and later testified at Plaintiff's preliminary hearing on November 21, 2016. Id.; Doc. 13-1, at 2; Doc. 13-2.
As to Plaintiff's excessive force claim, these scant allegations—supplemented only by legal conclusions—are insufficient to state a claim against Officer Strayer. Critically, Plaintiff says nothing about what force, if any, Officer Strayer utilized. Instead, as with his claims against Officers Layden and Roll, Plaintiff argues that Officer Strayer (along with other officers) subjected him to excessive force by pulling over his car without probable cause. Doc. 1, at 7. Aside from this theory constituting a legal conclusion the Court need not credit, Officer Strayer, by Plaintiff's own allegations, was not involved in Plaintiff being pulled over. See id. at 3-4. Officer Strayer does not enter the scene, in fact, until after Plaintiff has been pulled over, questioned, and detained. See id. Thus, Plaintiff's excessive force claim against Officer Strayer is without merit, as he alleges no personal involvement by Officer Strayer in any alleged unconstitutional actions.
This leaves Plaintiff's false imprisonment claim against Officer Strayer. While Plaintiff titles this claim as "false imprisonment," he also seems to assert a claim for malicious prosecution. See Doc. 1, at 4 (citing malicious prosecution case law). Regardless of which specific claim Plaintiff brings, though, he fails to show a lack of probable cause or an unlawful detention—just as he failed to do with Officers Layden and Roll. Plaintiff asserts a lack of probable cause, to be sure—but naked assertions are neither well-pled facts nor legal arguments that this Court may credit in the face of a motion to dismiss.
Plaintiff's complaint offers a plethora of legal conclusions only marginally supplemented by well-pled factual content. But "naked assertions devoid of further factual enhancement" are insufficient to survive the Defendants' motions to dismiss. Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted); see also id. at 678-79 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions."); Papasan v. Allain, 478 U.S. 265, 286 (1986), quoted in Twombly, 550 U.S. at 555 ("[W]e are not bound to accept as true a legal conclusion couched as a factual allegation."); Erickson v. Pawnee Cty. Bd. of Cty. Comm'rs, 263 F.3d 1151, 1154 (10th Cir. 2001) ("Plaintiff's conclusory allegation is insufficient to survive defendants' motions to dismiss."); Bellmon, 935 F.3d at 1110 ("[C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based."). Accordingly, the Court DISMISSES Plaintiff's complaint in its entirety.
Doc. 13, at 2-4 (citing Doc. 13-1-13-2).
Second, Plaintiff's Fourteenth Amendment malicious prosecution claim likely also fails because Oklahoma law offers an adequate state remedy. See Koopman, 738 F.3d at 1193 ("If a state actor's harmful conduct is unauthorized and thus could not be anticipated pre-deprivation, then an adequate postdeprivation remedy—such as a state tort claim—will satisfy due process."); Barrow v. Oklahoma ex rel. Dep't of Pub. Safety, No. 16-CV-0667-CVE-TLW, 2017 WL 3033128, at *5 (N.D. Okla. July 17, 2017) ("To prevail on a [state law] claim of malicious prosecution, plaintiff must prove the following five elements: `(1) the defendant's institution of the former action; (2) its termination in the plaintiff's favor; (3) the defendant's want of probable cause for pressing the former suit against the plaintiff; (4) the presence of malice in the defendant's conduct; and (5) damages.'" (quoting Reeves v. Agee, 769 P.2d 745, 752 (Okla. 1989))). However, no parties have raised this argument, and the Court dismisses Plaintiff's Fourteenth Amendment theory, to the extent he offers one, based on the existence of probable cause. See Williams v. City of Tulsa, No. 11-CV-469-TCK-FHM, 2016 WL 1572957, at *7 n.3 (N.D. Okla. Apr. 19, 2016).
Estate of Booker v. Gomez, 745 F.3d 405, 418-19 (10th Cir. 2014) (internal quotation marks, citations, alterations, and emphases omitted). As all of Plaintiff's allegations regarding excessive force concern actions "leading up to and including an arrest," the Fourth Amendment governs. Id.