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Neves Brewer v. Ross

United States District Court, D. Utah, Northern Division

June 26, 2018

JORDAN ALAN NEVES BREWER, Plaintiff,
v.
JEFFREY ROSS and TREVOR PETERSEN, Defendants.

          AMENDED ORDER [1] AND MEMORANDUM DECISION

          Tena Campbell, United States District Judge.

         Pro Se Plaintiff Jordan Alan Neves Brewer brings this civil rights lawsuit under 42 U.S.C. § 1983 against Defendants Special Agent Jeffrey Ross of the F.B.I. and Detective Trevor Petersen of the Weber County Sheriff's Office. Mr. Brewer claims that Defendants violated his Fourth Amendment rights when they arrested him without a warrant, searched him and his car without probable cause, and then drove him, handcuffed, to his home. He also claims that Defendants used excessive force when they placed handcuffs too tightly on his wrists.

         In addition, Mr. Brewer, in his opposition to the Defendants' motions, asserted a new claim for First Amendment retaliation. Specifically, he asserts that the Defendants arrested him and used excessive force in retaliation for his request for counsel during their encounter. Although he did not assert the retaliation claim in his complaint, he has filed a motion for leave to amend his complaint to add it now.[2]

         Both Defendants have filed motions for summary judgment, [3] in which they assert qualified immunity. They also oppose Mr. Brewer's motion to amend as futile and procedurally improper.

         For the reasons set forth below, the court grants the motions for summary judgment because both Defendants are entitled to qualified immunity, and denies the motion to amend because adding the retaliation claim would be futile.

         FACTUAL BACKGROUND

         Information Gathered for the Search Warrant

         The day before Special Agent Ross arrested Mr. Brewer, a federal magistrate judge issued a warrant authorizing a search of Mr. Brewer's home. Special Agent Ross was the affiant for the affidavit supporting the warrant. In his affidavit, he detailed evidence that, in the view of the federal magistrate judge who issued the warrant, established probable cause to search Mr. Brewer's home for evidence of various child pornography crimes. (See Search Warrant & Aff. of Jeffrey Ross, ECF No. 34-1 (attached as Ex. A to Ross Mot. Summ. J. (hereinafter “Ross Aff.”)).

         Special Agent Ross recounted an interview he had on August 31, 2011, with “a concerned citizen (hereinafter referred to as C.C.).” (Ross Aff. ¶ 21.) C.C. told Special Agent Ross that he had known Mr. Brewer for many years and had spent a great deal of time with him. C.C. described Mr. Brewer as being “very secretive” with his computer. But C.C. did see images of child pornography on the computer on August 13, 2011, when Mr. Brewer left his bedroom without logging off.

         C.C. also told Special Agent Ross that he had seen a folder called “pr0n” on Mr. Brewer's computer. Special Agent Ross knew from previous experience that this term was slang for pornography. In the folder, C.C. saw videos and still photos of child pornography. C.C. described one of the photos in detail. (See Id. ¶ 23.)

         In his affidavit, Special Agent Ross also stated that in February 2007 he knew that agents of the Utah Internet Crimes Against Children Task Force had found images of child pornography on Mr. Brewer's computer during a search of Mr. Brewer's home. Special Agent Ross testified that Mr. Brewer had confessed to possession of child pornography.

         At the time Special Agent Ross wrote his affidavit, Mr. Brewer was free on bail and awaiting trial on state charges of Sexual Exploitation of a Minor.

         On July 6, 2011, United States Magistrate Judge Paul Warner signed the warrant authorizing a search of Mr. Brewer's residence.[4]

         In addition to the information in his affidavit submitted to the magistrate judge, Special Agent Ross, as support for his motion here, filed a declaration giving more details of his interview with C.C. (See Decl. of Special Agent Jeffrey Ross, ECF No. 34-2.) Detective Petersen, who was present during Special Agent Ross' interview of C.C., also filed a declaration in which he described the interview with C.C. (See Decl. of Trevor Petersen, ECF No. 44-1.)

         Detective Petersen identified C.C. as Almon Jonathan Paul Bates, Mr. Brewer's former roommate. Both Special Agent Ross and Detective Petersen testified in their declarations that Mr. Bates told them Mr. Brewer regularly carried a .9 mm Taurus handgun and a Millenium .45 caliber handgun concealed under his trench coat in shoulder holsters. (Ross Decl. ¶ 5; Petersen Decl. ¶ 9.) Usually the firearms were loaded. According to Mr. Bates, Mr. Brewer had a “hostile attitude toward law enforcement” and said numerous times that if officers entered his residence without legal authority, he “would ‘draw down' on law enforcement officers if they ‘drew down' on him.” (Ross Decl. ¶ 7; Petersen Decl. ¶ 11.)

         Arrest, Search, and Handcuffing of Mr. Brewer

         In the afternoon of September 7, 2011, Special Agent Ross was in Ogden waiting in his car for Detective Petersen. He saw a man who matched Mr. Brewer's description getting into a nearby car. The man was wearing a black trench coat even though the temperature was at least eighty degrees. Special Agent Ross walked up to the car and asked the man if he was Jordan Brewer. Mr. Brewer confirmed his identity. At that point, Special Agent Ross asked Mr. Brewer to step out of the car. He searched Mr. Brewer for weapons (found none) and handcuffed him for officer safety. (See Second Decl. of Special Agent Ross ¶ 7, ECF No. 84-1; Brewer Supplement & Mem. in Opp'n to Ross' Mot. Summ. J. at 16, ECF No. 83.) Then he placed him on the curb near the car's back bumper. Following that, at least according to Mr. Brewer, Special Agent Ross searched Mr. Brewer's car for weapons.[5] No. weapons were recovered at the scene.

         Following the search of Mr. Brewer's car, Detective Petersen drove Mr. Brewer to his home where they met Special Agent Ross and other law enforcement officials who joined them to search the home. Mr. Brewer alleges that he was forced to remain outside while they searched his home, although his handcuffs were removed during the search.

         At the end of the search, Special Agent Ross took a photograph of Mr. Brewer which did not show any marks on Mr. Brewer's wrists. (See Photo, attached as Ex. 2 to Ross Decl.; see also Petersen Decl. ¶ 23.) Detective Petersen saw no marks on Mr. Brewer's wrists. (Petersen Decl. ¶ 24.)

         All law enforcement officers left and Mr. Brewer was not taken back into custody. But later, based on the evidence found in the search, a federal grand jury indicted Mr. Brewer on charges of possession of child pornography and receipt of a firearm while under indictment. Mr. Brewer pleaded guilty to the charges.

         ANALYSIS[6]

         Mr. Brewer brings five claims in his complaint, all of which are based on the Fourth Amendment: (1) unlawful arrest; (2) unlawful detention and transportation; (3) unlawful search of Mr. Brewer (only asserted against Special Agent Ross); (4) unlawful search of Mr. Brewer's car; and (5) excessive force in handcuffing Mr. Brewer.[7]

         Motions for Summary Judgment

         “Summary judgment should be granted if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011) (citing Fed.R.Civ.P. 56(a)). The court must draw all reasonable inferences in a light most favorable to Mr. Brewer, the non-moving party. Id.

         “When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established.” Id. (quoting Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009)). Only if Mr. Brewer meets that burden will the court review whether the Defendants have met the traditional summary judgment burden (i.e., showing that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law). Id.

         For the reasons set forth below, the court finds that Mr. Brewer has not established that the Defendants ...


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