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Dortch v. Shada

United States District Court, D. Nebraska

March 30, 2018

JOSHUA DORTCH, Plaintiff,
v.
OFFICER SHADA, J#1358, OFFICER TURNER, J#1961, and OFFICER WORLEY, L#1478, Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge

         This matter is before the Court on the Motion to Dismiss, ECF No. 27, filed by the Defendants, Officer Shada, Officer Turner, and Officer Worley. Also before the Court are the various motions filed by Plaintiff Joshua Dortch, ECF Nos. 18, 20, 23-6, and 31. For the reasons stated below, the foregoing motions will be denied.

         BACKGROUND

         The following facts are those alleged in the Amended Complaint, ECF No. 7, which are assumed true for purposes of the Motion to Dismiss.

         Dortch was leaving his place of employment, Reinhart Food in Omaha, Nebraska, when Defendants approached him and arrested him. The Amended Complaint did not state the date or reason for Dortch's arrest nor did it claim or allege he was arrested unlawfully. It simply alleged Defendants “did seize us bodily shackling - manacling us and putting us in cruiser while they illegally searched our vehicle and seized said our [$]5, 512.00. We subsequently to [sic] police Defendants ‘we need the [$]5, 512.00 in middle console.'” Am. Comp., ECF No. 7, Page ID 20. Dortch filed this action, pro se, seeking the return of the $5, 512.00 that was seized during his arrest and $10 million in damages. Defendants have moved to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

         STANDARD OF REVIEW

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy this requirement, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678), cert. denied, 135 S.Ct. 2941 (2015). The complaint's factual allegations must be “sufficient to ‘raise a right to relief above the speculative level.'” McDonough v. Anoka Cty., 799 F.3d 931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S. at 555). The Court must accept factual allegations as true, but it is not required to accept any “legal conclusion couched as a factual allegation.” Brown v. Green Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016) (quoting Iqbal, 556 U.S. at 678). Thus, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678), cert. denied, 136 S.Ct. 804 (2016).

         On a motion to dismiss, courts must rule “on the assumption that all the allegations in the complaint are true, ” and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.'” Twombly, 550 U.S. at 555-56 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). “Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Mickelson v. Cty. of Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alternation in original) (quoting Iqbal, 556 U.S. at 679).

         DISCUSSION

         After an initial review of the Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), [1] the Court concluded that Dortch may proceed against Defendants in their individual capacities on two claims under 42 U.S.C. § 1983: (1) a “Fourth Amendment unreasonable search-and-seizure claim, ” and (2) a “Fourteenth Amendment pre-deprivation procedural-due-process claim.” ECF No. 8, Page ID 28.

         I. Fourth Amendment

         Defendants argue Dortch's Fourth Amendment claim for an unreasonable search of his vehicle and seizure of his $5, 512.00 must be dismissed because he voluntarily asked Defendants to retrieve the money from the center console of his vehicle after he was arrested.[2] Thus, Defendants contend Dortch consented to the search and seizure. Based on the allegations in the Amended Complaint, however, Dortch did not consent to the search and seizure.

         The Fourth Amendment, “by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers.” New Jersey v. T.L.O., 469 U.S. 325, 334 (1985) (citing Elkins v. United States, 364 U.S. 206, 213 (1960)). Generally, a warrantless search or seizure of personal property is unreasonable unless it falls within one of the established exceptions to the warrant requirement. United States v. Sanders, 424 F.3d 768, 773 (8th Cir. 2005) (“[S]earches conducted without a warrant . . . are presumptively unreasonable, subject to a few specifically established exceptions.”); United States v. Lewis, 864 F.3d 937, 943 (8th Cir. 2017) (“A warrantless seizure ‘is per se unreasonable, unless the police can show that if falls within one of a carefully defined set of exceptions.”) (quoting Coolidge v. New Hampshire, 403 U.S. 443 (1971)). Voluntary consent is one such exception. Sanders, 424 F.3d at 773 (consent to search); PPS, Inc. v. Faulkner Cty., Ark., 630 F.3d 1098, 1102 (8th Cir. 2011) (consent to a seizure of personal property).

         To be voluntary, consent must be “the product of an essentially free and unconstrained choice by its maker . . . rather than the product of duress or coercion, express or implied.” United States v. Siwek, 453 F.3d 1079, 1084 (8th Cir. 2006). Whether consent is voluntarily given ...


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