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Willett v. Plumb

United States District Court, D. Arizona

April 25, 2016

Dave Willett, Plaintiff,
Arizona Department of Safety Officer Curtis Plumb, #PS5899, et al., Defendants.


Paul G. Rosenblatt, United States District Judge

Pending before the Court is defendants’ Motion to Dismiss (Doc.7)[1], wherein the defendants seek the dismissal of the federal claims against them on the basis of qualified immunity and the state law claim against them on the basis that the plaintiff failed to file the required notice of claim. Having reviewed the parties’ memoranda, the Court finds that the motion should be granted.


According to the complaint, the plaintiff was driving a rental car on business on I-40 in Arizona on July 27, 2014 when he was pulled over for speeding by defendant Curtis Plumb, an Arizona Department of Public Safety officer. Plumb, after informing the plaintiff that many drug smugglers drive rental cars, asked the plaintiff for consent to search his car, which the plaintiff denied. Plumb then forced the plaintiff to get out of the car and remain at the scene while waiting for a drug sniffing dog to arrive. The canine unit took seventeen minutes to arrive. The dog circled the car twice before alerting on something. Plumb and co-defendant Gunnar Hancock, another Arizona Department of Public Safety officer, then searched the plaintiff’s car and found nothing illegal in it. Only then did Plumb and Hancock allow the plaintiff to leave the scene of the traffic stop. Although it is not absolutely clear from the complaint, the plaintiff was apparently issued a citation for speeding, presumably by Plumb, but no facts are alleged in the complaint establishing at what point during the plaintiff’s detention the citation was issued, or what Plumb was doing during the wait for the arrival of the dog, or how long the entire stop took. While the complaint also fails to allege when Hancock appeared at the scene of the traffic stop, the Court presumes for purposes of the motion to dismiss that he was the officer who brought the drug dog to the scene.

The complaint alleges three claims against both defendants: a federal claim pursuant to 42 U.S.C. § 1983 for violating the plaintiff’s civil rights under color of state law and subjecting him to unreasonable searches and seizures (Count One); a federal claim alleging a violation of the plaintiff’s right under the Fourth and Fourteenth Amendments to be free from searches and seizures without a warrant (Count Two); and a state law claim for false imprisonment (Count Three).[2] The complaint seeks general and punitive damages for the plaintiff’s mental injury, mental anguish and emotional losses.


A. Count Three

The defendants have moved to dismiss Count Three, the state law false imprisonment claim, on the ground that the plaintiff failed to comply with the notice of claim requirement of A.R.S. § 12-821.01(A). See Salerno v. Espinoza, 115 P.3d 626, 628 (Ariz.App.2005) (“Compliance with the notice provision of § 12-821.01(A) is a ‘mandatory’ and ‘essential’ prerequisite to such an action, . . . and a plaintiff’s failure to comply ‘bars any claim.’”) (emphasis in original). The Court concludes that Count Three must be dismissed because the complaint fails to allege that the plaintiff filed and served a notice of claim as to either defendant, and because the plaintiff is deemed to have consented to the dismissal of this claim inasmuch as his response to the motion to dismiss totally ignores this issue.[3]

B. Counts One and Two

The defendants have moved to dismiss Counts One and Two, the federal claims, on the ground that both defendants are entitled to qualified immunity. Public officials, such as the defendants, who are sued pursuant to 42 U.S.C. § 1983 are entitled to qualified immunity unless it is shown that they have “violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Reichle v. Howards, __U.S. __, 132 S.Ct. 2088, 2094 (2012). The purpose of qualified immunity is to give “government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects all but the plainly incompetent or those who knowingly violated the law.” Ashcroft v. al-Kidd, __U.S. __, 131 S.Ct. 2074, 2085 (2011). A two-part test is used to determine whether a public official is entitled to qualified immunity: first, do the facts alleged by the plaintiff show a violation of a constitutional right, and second, was the right clearly established at the time of the alleged misconduct. Carillo v. County of Los Angeles, 798 F.3d 1210, 1218 (9th Cir.2015).

1. Violation of a constitutional right

The first prong of the qualified immunity test is met if the facts alleged in the complaint, taken in the light most favorable to the plaintiff, show that the official’s conduct violated a constitutional right. Brosseau v. Haugen, 543 U.S. 194, 197 (2004). The Court concludes that the plaintiff has sufficiently met this first prong as to Plumb, albeit fairly marginally so given the relatively spare factual allegations in the complaint, and the defendants do not appear to seriously argue otherwise. While the defendants argue that the complaint’s allegations that the continued detention of the plaintiff while waiting for the drug dog to arrive violated internal regulations of the Arizona Department of Public Safety are irrelevant to the qualified immunity analysis, the relevant issue is whether the plaintiff has sufficiently pleaded that his continued detention to facilitate a dog sniff violated the Fourth Amendment, and the Court believes that he has as to Plumb. See Rodriguez v. United States, U.S., 135 S.Ct. 1609 (2015) (Court held that prolonging a police stop exceeding the time needed to handle the matter for which the traffic stop was made in order to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures unless the additional time is supported by independent reasonable suspicion of wrongdoing.)

The Court cannot reach the same conclusion as to Hancock because the plaintiff’s response in effect focuses solely on his argument that Plumb is not entitled to qualified immunity; Hancock is never so much as mentioned by name in the response, nor do the factual allegations of the complaint sufficiently show that Hancock, who presumably brought the dog to the scene after the alleged 17 minute delay following Plumb’s traffic stop of the plaintiff, violated any of the plaintiff’s constitutional rights. All the complaint cursorily alleges as to Hancock is that he and Plumb searched the plaintiff’s car after the dog alerted on something and, after finding nothing illegal, sent the plaintiff on his way. The complaint alleges no facts showing any involvement by Hancock in the decision to stop the plaintiff or to detain him pending the arrival of the dog, nor any facts showing how long Hancock detained ...

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