Fernandes v. City of Broken Arrow

ELTON FERNANDES, Plaintiff, v. CITY OF BROKEN ARROW, OKLAHOMA, andCRAIG BROWN, individually and inhis official capacity, and MIKE JACKSON,individually and in his official capacity, Defendants.

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

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

February 3, 2017

OPINION AND ORDER

Now before the Court is Defendants' Motion to Dismiss and Memorandum of Law in Support (Dkt. # 13). Defendants ask the Court to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted. Dkt. # 13, at 1. Plaintiff responds that he properly pled all claims, and, alternatively, asks the Court for leave to amend his complaint. Dkt. # 20.

I.

This case arises out of the alleged illegal search of plaintiff's automobile and home and his subsequent arrest and prosecution for knowingly and intentionally possessing with intent to distribute AB-FUBINACA and XLR11. Dkt. # 1, at 3-5. Plaintiff alleges that on the morning of October 7, 2014, six to eight officers were conducting surveillance of his residence. Plaintiff asserts that at approximately 11:11 a.m., defendant Mike Jackson notified defendant Craig Brown that plaintiff had carried a white plastic bag from his residence to his vehicle and was driving toward Brown. Id. at 3. Plaintiff asserts that Jackson and Brown were working in dual capacities on October 7, 2016, as officers of the Broken Arrow Police Department (BAPD) and as members of a Drug Enforcement Agency (DEA) task force. Id. at 2. Plaintiff alleges that Brown saw plaintiff fail to signal a turn and initiated a traffic stop. Id. at 3. Plaintiff asserts that, after providing his license and registration, Brown began questioning plaintiff and never told plaintiff he was free to leave. Id. During the questioning, plaintiff asserts that he was outside his vehicle, flanked by Brown and Jackson with two uniformed officers standing ten to twelve feet behind them, and that three law enforcement vehicles with their lights flashing were parked immediately behind him. Id. Plaintiff alleges that Brown asked him if there was anything illegal in the car, and that after plaintiff told him there was nothing illegal in the car, Brown searched the vehicle without consent. Id. Brown found a white bag containing approximately 100 foil packages labeled "King Kong" under the front passenger seat of plaintiff's vehicle. Id. Plaintiff asserts that Jackson searched plaintiff's person and retrieved $3,000 in cash. Id. at 3-4. Plaintiff alleges that he was released after the search because the officers did not have the equipment needed to test whether the packages contained contraband. Id. at 4.

Plaintiff further alleges that Brown and as many as four BAPD officers entered plaintiff's residence before obtaining a warrant and without the consent of plaintiff's wife, Vallery Soares, who was the only adult at the home. Id. Plaintiff asserts that the officers looked around the home, and when Soares asked them to leave, the officers responded that at least two of them had to stay in the home with her. Id. Plaintiff alleges that the officers stayed in the home until the warrant was issued. Id. Plaintiff alleges that after the search warrant for plaintiff's home was served and contraband was seized from the residence, Brown and Jackson arrested plaintiff. Id. A grand jury returned a two-count indictment against plaintiff, charging him with the knowing and intentional possession with intent to distribute of AB-FUBINACA and XLR-11, both Schedule I controlled substances, inviolation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). Id.; see also Indictment, United States v. Fernandes, No. 15-CR-0185-JED (N.D. Okla. Dec. 7, 2015).

On February 12, 2016, Judge John E. Dowdell granted plaintiff's motion to suppress the evidence seized as part of the search of plaintiff's vehicle and the search of plaintiff's home. Dkt. # 1, at 5; see also United States v. Fernandes, 161 F. Supp. 3d 1081 (N.D. Okla. 2016). The Court found (1) that although the traffic stop was initially justified, the officers did not have reasonable suspicion to continue detaining plaintiff after completing the traffic stop; (2) that the extension of the traffic stop was not consensual; and (3) that plaintiff did not consent to the search of his vehicle. Fernandes, 1090-93. Therefore, the Court granted plaintiff's motion to suppress evidence obtained during the traffic stop. Id. at 1093. Because the evidence acquired during the traffic stop would be suppressed, the Court also found there was not probable cause to obtain a warrant for the search of plaintiff's home. Id. Additionally, the Court found that the officers did not act in good faith reliance on a warrant because they entered the home before the search warrant was issued. Id. at 1093-94. Thus, the Court granted plaintiff's motion to suppress the evidence obtained from his home. Id. at 1094. After the Court's suppression ruling, the United States dismissed the case against plaintiff. Dkt. # 1, at 6.

On October 6, 2016, plaintiff brought this suit against the City of Broken Arrow; Brown, individually and in his official capacity; and Jackson, individually and in his official capacity. Id. Plaintiff asserts claims against Brown and Jackson under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and alleges that he is entitled to punitive damages from Brown and Jackson. Dkt. # 1, at 6-9. Plaintiff also asserts amunicipal liability claim against Broken Arrow under 42 U.S.C. § 1983. Id. at 9-11. Defendants now move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. # 13.

II.

In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is properly granted when a complaint provides no "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain enough "facts to state a claim to relief that is plausible on its face" and the factual allegations "must be enough to raise a right to relief above the speculative level." Id. (citations omitted). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 562. Although decided within an antitrust context, Twombly "expounded the pleading standard for all civil actions." Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009). For the purpose of making the dismissal determination, a court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to a claimant. Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not accept as true those allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. of Cnty. Comm'rs, 263 F.3d 1151, 1154-55 (10th Cir. 2001). "[C]onclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991).

III.

Defendants ask the Court to dismiss the complaint, arguing (1) that the § 1983 claims against Brown and Jackson should be dismissed because they were acting under color of federal, not state, law; (2) that the official capacity claims against Brown and Jackson should be dismissed because they are redundant; (3) that plaintiff's cause of action for punitive damages is impermissible; (4) that Brown and Jackson are entitled to qualified immunity because there are no actionable constitutional violations in this case; and (5) that plaintiff has failed to plead sufficient facts to support its municipal liability claim. Dkt. # 13. The Court will address each of defendants' arguments in turn.

A.

Defendants argue that the § 1983 claims against Brown and Jackson should be dismissed because they were acting under color of federal, not state law. Section 1983 provides a claim for relief against state actors for violation of a plaintiff's federal rights. Becker v. Kroll, 494 F.3d 904, 914 (10th Cir. 2007). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Anderson v. Suiters, 499 F.3d 1228, 1232-33 (10th Cir. 2007). In Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982), the Supreme Court held that if the conduct at issue constitutes "state action," then it is "also action under color of state law and will support a suit under § 1983." 457 U.S. at 935. "To constitute state action, 'the deprivation must be caused by the exercise of some right or privilege created by the State . . . or by a person for whom the State is responsible,'and 'the party charged with the deprivation must be a person who may fairly be said to be a state actor.'" West, 487 U.S. at 49 (quoting Lugar, 457 U.S. at 937) (alteration in original).

Plaintiff alleges that Brown and Jackson were acting in "dual capacities," as members of the DEA task force and the BAPD, and that they were therefore acting under color of state law and color of federal law. Dkt. # 1, at 2, 6; Dkt. # 20, at 8. However, plaintiff has cited no authority for his proposition that an individual can act under color of state and federal law simultaneously, and the Court has found no precedent to support plaintiff's position. To act under color of a government's law is to exercise power possessed by virtue of that law and made possible only because the actor is clothed with the government's...