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Bowles v. Rossetti

United States District Court, D. Utah

June 12, 2018




         This matter is before the Court on Defendant Salt Lake City Police Officer Rossetti's (“Officer Rossetti”) Motion to Dismiss Plaintiff's Amended Complaint for Failure to State a Claim and Plaintiff Taylor Bowles' (“Bowles”) Request for Permission to File Surreply in Opposition to Motion to Dismiss. For the following reasons, the Court will grant the Motion to Dismiss and deny the Request to File Surreply.

         I. BACKGROUND

         On Saturday, November 12, 2016, at 1:37 a.m., Officer Rossetti observed Bowles driving northbound on 200 East in Salt Lake City when she came to a complete stop at a green light. Officer Rossetti also observed that Bowles' center brake light was not working and initiated a traffic stop.

         Once stopped, Officer Rossetti asked Bowles whether she consumed any alcohol that night, and Bowles said that she had one beer around 5 p.m. In his report, Officer Rossetti noted that Bowles' speech was quiet and soft, her eyes were red, bloodshot, and glossy, and during the conversation he detected the odor of alcohol coming from the vehicle. For these reasons, he asked Bowles to step out of the car to perform field sobriety tests. Bowles failed two of the three sobriety tests, and Officer Rossetti detected the odor of alcohol on Bowles during the tests. He then administered a portable breath test (“PBT”), which registered Bowles' blood alcohol content (“BAC”) at .095. After the test, Officer Rossetti arrested Bowles and called for a second officer to bring an Intoxilyzer 8000 so he could perform another BAC test.

         At 1:55 a.m., Bowles submitted a breath test on the Intoxilyzer 8000 which registered a BAC of .077. At 2:00 a.m., she submitted a second breath sample on the same machine, and the second test registered a BAC of .076. Officer Rossetti then issued Bowles a DUI citation and Salt Lake City charged Bowles with DUI on November 18, 2016.

         On December 9, 2016, Bowles' driver's license hearing was held before an administrative hearing officer with the Salt Lake City Justice Court. At the hearing, the administrative hearing officer found that Officer Rossetti “had reason to believe [Bowles] had violated [state DUI laws], ”[1] but concluded that no action should be taken regarding Bowles' driving privileges. On December 14, 2016, Salt Lake City amended the information and dismissed the DUI. Bowles then filed this action asserting an unlawful arrest claim against Officer Rossetti and a malicious prosecution claim against Salt Lake City under 42 U.S.C. § 1983. In an Amended Complaint, Bowles removed Salt Lake City and asserted both claims against Officer Rossetti.

         Officer Rossetti has now filed a Motion to Dismiss for Failure to State a Claim, arguing that Bowles cannot state a claim for relief because Bowles claimed that Salt Lake City initiated the prosecution, and Officer Rossetti had probable cause to arrest her for DUI. Bowles stipulated to dismissal of the unlawful arrest claim.[2] The § 1983 malicious prosecution claim is the only remaining claim.


         When considering a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), all well-pleaded factual allegations, as distinguished from conclusory allegations, are accepted as true and viewed in the light most favorable to Plaintiff as the nonmoving party.[3] Plaintiff must provide “enough facts to state a claim to relief that is plausible on its face, ”[4] which requires “more than an unadorned, the-defendant-unlawfully harmed-me accusation.”[5] “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'”[6]

         “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.”[7] As the Court in Iqbal stated,

only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.[8]

         Finally, in considering a motion to dismiss, a district court not only considers the complaint, “but also the attached exhibits, ”[9] “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.”[10] The Court “may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.”[11]


         “42 U.S.C. § 1983 allows an injured person to seek damages against an individual who has violated his or her federal rights while acting under color of state law.”[12] “Individual defendants named in a § 1983 action may raise a defense of qualified immunity, which shields public officials from damages actions unless their conduct was unreasonable in light of clearly established law.”[13] “Generally, when a defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct.”[14] Courts are permitted to “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”[15]

         Officer Rossetti argues that he is protected by qualified immunity and the case should be dismissed because he had probable cause to arrest Bowles and issue her a citation, and thus, Bowles' Fourth Amendment rights were not violated. Bowles, however, argues that Officer Rossetti should not be protected by qualified immunity because he violated the Fourth Amendment when he engaged in malicious prosecution by “cit[ing] Bowles with a DUI despite no evidence to establish probable cause of a violation for either (1) operating over the legal limit of .08 or (2) being incapable of operating a vehicle safely.”[16]

         “[W]hen addressing § 1983 malicious prosecution claims, we use the common law elements of malicious prosecution as the ‘starting point' of our analysis; however, the ultimate question is whether the plaintiff has proven the deprivation of a constitutional right.”[17]

The elements of the common law tort of malicious prosecution, as applicable in a § 1983 claim, are: (1) the defendant caused the plaintiff's continued confinement or prosecution; (2) the original action terminated in favor of the plaintiff; (3) there was no probable cause to support the original arrest, continued confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages.[18]

         The original action terminated in favor of Bowles, but Officer Rossetti argues that Bowles failed to adequately plead the first and third prongs because “Bowles has not alleged [that he] initiated the prosecution nor can she show he lacked probable cause to issue a citation . . . .”[19]

         The Court agrees that Plaintiff cannot demonstrate that Officer Rossetti lacked probable cause. Therefore, the Court need not address Officer Rossetti's argument that he did not initiate the prosecution. Further, as to the fourth prong, the Complaint does not contain allegations that Officer Rossetti acted with malice.

         A. Probable Cause

         “Probable cause to arrest exists if, the facts and circumstances within the officer's knowledge are sufficient to justify a prudent officer in believing the defendant committed or is committing an offense.”[20] “Probable cause only requires a probability of criminal activity, not a prima facie showing of such activity.”[21] The Court “determine[s] probable cause from the totality of the circumstances taking into account both inculpatory as well as exculpatory evidence.”[22]

         Officer Rossetti argues that he had probable cause to make the arrest and issue the citation because a .08 BAC is not the only reason a person can be issued a DUI citation. Under Utah Code Ann. § 41-6a-502,

(1) A person may not operate or be in actual physical control of a vehicle within this ...

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