United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANTS' MOTION TO
N. PARRISH UNITED STATES DISTRICT COURT JUDGE
Plaintiff Michael Roy Parkinson, proceeding in forma
pauperis, initiated this action in December 2015. (ECF No.
3). The operative Second Amended Complaint
(“SAC”) alleges several counts under § 1983
for constitutional violations by Murray City police
officers-Steven Sanderson, Alex Huggard and Trent
Pearson-arising out of a traffic stop on February 26, 2015
and a subsequent search of Mr. Parkinson's apartment on
March 2, 2015. (ECF No. 20). Specifically, Mr. Parkinson
alleges that (1) Officers Sanderson and Huggard violated the
Fourth Amendment through their “illegal search and
seizure” of him and his vehicle on February 26, (SAC at
5-23); (2) Officers Sanderson and Huggard used “illegal
and excessive force” during the February 26 traffic
stop in violation of his Eighth Amendment rights, (SAC at
24); (3) Officers Sanderson and Huggard's “illegal
search and assault” on February 26 violated his
Fourteenth Amendment due process and equal protection rights,
(SAC at 25); (4) the defendants violated the Fourth Amendment
“through their illegal search and seizure” of his
basement apartment on March 2, (SAC at 26-34); and (5) the
defendants violated his Fifth and Fourteenth Amendment rights
by “entrapping him” and “depriv[ing]”
him of his “right to liberty.” (SAC at 35).
November 9, 2017, the defendants moved to dismiss all of Mr.
Parkinson's claims. (ECF No. 34). First, they argue that
the conduct at issue in this case-alleged illegal searches
and use of excessive force-is properly evaluated under the
Fourth Amendment, necessitating dismissal of his Eighth
Amendment excessive force claim (Count II), Fourteenth
Amendment illegal search and excessive force claim (Count
III), and Fifth and Fourteenth Amendment entrapment and
deprivation of liberty claim (Count V). As to Mr.
Parkinson's Fourth Amendment claims, the defendants
assert that they are entitled to qualified immunity. The
defendants further argue that Heck v. Humphrey, 512
U.S. 477 (1994), also bars those claims because success in
this case would necessarily imply the invalidity of Mr.
Parkinson's state court convictions. See State
v. Parkinson, No. 151902837 (Utah 3d Dist. Ct.). Finally,
defendants argue that the remaining “fragments”
of Mr. Parkinson's SAC fail to state a plausible claim
for relief under Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007).
opposition, Mr. Parkinson withdrew his Eighth Amendment
excessive force claim as well as the entrapment and
deprivation of liberty claims he had asserted under the Fifth
and Fourteenth Amendments. (ECF No. 41 at 12). In his
supplemental memorandum, Mr. Parkinson additionally conceded
his Fourteenth Amendment illegal search and excessive force
claim. (ECF No. 65 at 1 n.1). As a result, defendants are
entitled to have those claims dismissed. Mr. Parkinson has
not requested leave to amend these claims, and because the
parties agree that the conduct of which Mr. Parkinson
complains may be analyzed under the appropriate Fourth
Amendment framework,  these dismissals are with prejudice.
22, 2018, Magistrate Judge Furse appointed pro bono counsel
to assist Mr. Parkinson. (ECF No. 54). Mr. Parkinson
subsequently sought and was granted leave to file a
supplemental memorandum in opposition to the defendants'
Motion to Dismiss, which he filed on September 5, 2018. (ECF
No. 64). Defendants replied on September 12, 2018. (ECF No.
result of the initial and supplemental briefing is that three
of Mr. Parkinson's claims remain pending, each of which
alleges a violation of the Fourth Amendment: (1) a
search-and-seizure claim premised on the February 26, 2016
traffic stop; (2) an excessive-force claim related to the
February 26, 2015 traffic stop; and (3) an unlawful search
claim premised on the March 2, 2015 search of Mr.
ALLEGATIONS IN THE SAC
February 26, 2015 Traffic Stop
Parkinson alleges that on February 26, 2015, a Jeep with
“flashing lights” pulled him over. (SAC,
¶¶ 5-8, 13). Mr. Parkinson initially believed the
flashing lights belonged to an emergency vehicle headed for
the nearby hospital because he had “consciously and
properly used all turn signal[s] and obeyed all traffic
laws” as he drove. (SAC, ¶¶ 7, 12). Mr.
Parkinson pulled over to let the vehicle pass, but then
realized that the Jeep stopped behind him. (SAC, ¶¶
9-10). He claims that he did not turn off the car and
“left” the automatic transmission in neutral
because it was a cold and snowy day and he had the heat
running on high. (SAC, ¶¶ 10-11). Mr. Parkinson
alleges that the driver of the Jeep, later identified as
Office Sanderson, came up to his window and asked Mr.
Parkinson if he knew why he pulled him over. (SAC,
¶¶ 14, 16). Mr. Parkinson replied that he did not
know, and Officer Sanderson replied that he had not used his
turn signal. (SAC, ¶¶ 17-18). Mr. Parkinson
“asserts there never was a traffic violation because he
used his turn signal properly at all relevant times.”
(SAC, ¶ 21).
Parkinson alleges that Officer Sanderson
“demanded” his personal information and that he
complied with the request. (SAC, ¶¶ 23-24). Mr.
Parkinson claims that Officer Sanderson then
“disappeared” for twenty minutes, and during that
time he “became concerned” about who pulled him
over. (SAC, ¶¶ 25-27). During this period, Mr.
Parkinson claims to have seen a second man, later identified
as Detective Pearson, through the passenger window. (SAC,
¶ 26). He claims that he then looked over his shoulder
and saw a third man, later identified as Officer Huggard.
(SAC, ¶ 28). Mr. Parkinson became even more concerned in
part because each man was wearing civilian clothing. (SAC,
¶¶ 28-29). He alleges that Officers Sanderson and
Huggard then approached the driver's side door. (SAC,
¶ 30). Officer Huggard told Mr. Parkinson that he just
got off the phone with his parole officer who is on the way,
and told him that he needed to step out of the vehicle. (SAC,
¶ 31). Mr. Parkinson told Officer Huggard that he would
wait for his parole officer. (SAC, ¶ 32). Mr. Parkinson
alleges that Officer Huggard then told him: “You're
gonna get out of the car or I'm going to  yank you
out!” (SAC, ¶ 44). Mr. Parkinson reiterated that
he was going to wait for his parole officer because he did
not know who the men were. (SAC, ¶ 45). Mr. Parkinson
claims that his parole officer was not contacted. (SAC,
¶¶ 33- 34).
indicating he would wait for his parole officer, Mr.
Parkinson claims that Officer Huggard said he worked for
Murray city and told him to get out of the car. (SAC, ¶
46). Mr. Parkinson alleges that at as Officer Huggard gave
this command, he grabbed the driver's side door handle,
and when he discovered the door was locked, unlocked it
through the open window. (SAC, ¶¶ 47, 49). Mr.
Parkinson asserts that he did not give Officer Huggard
permission to open the door, and that Officer Huggard then
entered his vehicle without consent. (SAC, ¶ 48, 50).
Mr. Parkinson claims that Officer Huggard then
“attacked” him by grabbing his left wrist and arm
and “twisting” it “at a painfully sharp
angle, ” which injured his left shoulder. (SAC,
¶¶ 51-53). He asserts that during this incident he
put his hand on the gear shifter to avoid being dragged from
the vehicle and that as Officer Huggard continued to yank on
his shoulder, the shifter was pulled from neutral into drive.
(SAC, ¶¶ 58-59). The vehicle did not move at that
time since his foot was on the brake. (SAC, ¶ 60). He
claims that Office Sanderson then “drove [sic] head
first” into his vehicle, landing on Mr. Parkinson's
legs, and forcefully tried to remove his hand from the gear
shifter. (SAC, ¶¶ 61-62). Mr. Parkinson states that
his right knee buckled and his foot slipped off the brake
pedal, causing the vehicle to roll forward. (SAC,
¶¶ 63-64). He claims he could not do anything to
stop the vehicle because of how Officers Huggard and
Sanderson “attacked him” and held him down. (SAC,
¶ 66). According to Parkinson, Officer Sanderson then
grabbed the steering wheel and began turning it, and the car
ultimately crashed against the curb on the opposite side of
the road, damaging the car and injuring his neck and lower
back. (SAC, ¶¶ 68-69, 73-75).
the vehicle hit the curb, Officers Huggard and Sanderson let
go of the steering wheel and Mr. Parkinson's arm, and Mr.
Parkinson regained control of the vehicle and ultimately
parked the car about fifteen yards away in the first vacant
parking stall. (SAC, ¶¶ 82-85). He claims he then
entered the hospital to be around other people since he
feared for his life. (SAC, ¶ 86-87). Mr. Parkinson
further alleges that after he entered the hospital, Officers
Huggard and Sanderson “searched and seized his vehicle
without his permission” or the permission of his
mother, who owned the car. (SAC, ¶¶ 94.5, 94.6).
Parkinson claims that as a result of the “search and
assault” on February 26, 2015, he “sustained
lasting physical injuries and ongoing pain and suffering,
” he was “illegally arrested” on March 2,
2015, he was subsequently charged and convicted of two counts
of aggravated assault on an officer in violation of Utah Code
§ 76-5-102.4(4), and one count of not stopping on the
command of an officer in violation of Utah Code §
41-6a-210, his vehicle suffered severe damage, he lost his
$60, 000 a year job, he has now been wrongfully incarcerated
for years, and he suffered and continues to suffer from
emotional distress. (SAC, ¶¶ 88-94).
March 2, 2015 Apartment Search
Parkinson rented the basement apartment in his mother's
home. (SAC, ¶¶ 99-100). The basement apartment had
a separate entrance at the rear of the house and a separate
door connecting it to the upstairs kitchen. (SAC,
¶¶ 101-02). He claims that the door to the kitchen
had a lock which remained locked at all times unless he
opened it “for a specific reason, ” and that his
mother “did not have permission or the authority”
to go into the apartment without his express consent. (SAC,
Parkinson alleges that he arrived at his home on March 2,
2015 at approximately 8:30 a.m. and spoke to his mother who
informed him that a Murray City police officer, later
identified as Detective Pearson, was “there at the
house over the weekend looking for [him], and aggressively
harassing her, ” and conveyed that she “was very
concerned and scared.” (SAC, ¶¶ 98, 105-07).
Mr. Parkinson decided that he needed to go speak to his
parole officer about the matter, and claims that as he was
leaving, a uniformed officer “confronted” him,
handcuffed him, and placed him in a police vehicle. (SAC,
¶¶ 108-11). The police officers searched Mr.
Parkinson before placing him in the police vehicle, and
confiscated his wallet and cell phone. (SAC, ¶¶
112-13). Mr. Parkinson claims that he watched as the officers
counted the money from his wallet and overheard an officer
say “We need some drugs to go with this money, go
search his basement apartment.” (SAC, ¶ 115). Mr.
Parkinson asserts that Officer Huggard ordered Detective
Pearson to search his basement apartment. (SAC, ¶¶
118-19). Mr. Parkinson states that he did not give consent to
Detective Pearson to enter his apartment, and that Detective
Pearson did not have probable cause to enter the apartment.
(SAC, ¶¶ 119-21).
Parkinson asserts that Detective Pearson entered his basement
apartment alone, entered the bathroom alone, and exited the
bathroom alone several minutes later with evidence allegedly
discovered in the bathroom. (SAC, ¶¶ 125-27). Mr.
Parkinson further asserts that, on information and belief,
Detective Pearson “planted the alleged evidence he
found” in the bathroom in an attempt to build a case
against Mr. Parkinson to justify the defendants' actions
on February 26, 2015. (SAC, ¶ 127).
survive a motion to dismiss under Rule 12(b)(6), a complaint
must allege “enough facts to state a claim to relief
that is plausible on its face.” Hogan v.
Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting
Twombly, 550 U.S. at 547). “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.”
Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). In reviewing a 12(b)(6) motion to dismiss, the court
accepts as true all well-pleaded factual allegations and
views the allegations in the light most favorable to the
plaintiff. Garling, 849 F.3d 1289, 1292 (10th Cir.
2017). However, the court need not accept the plaintiff's
conclusory allegations as true. Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). “[A] plaintiff must
offer specific factual allegations to support each
claim.” Kan. Penn Gaming, LLC v. Collins, 656
F.3d 1210, 1214 (10th Cir. 2011) (citing Twombly,
550 U.S. at 555). A complaint survives only if it
“‘states a plausible claim for relief,
'” though courts recognize that “[t]he nature
and specificity of the allegations required to state a
plausible claim will vary based on context.” SAC at
1214-15 (quoting Iqbal, 556 U.S. at 679).
court must construe the filings of a pro se plaintiff
“liberally” and hold them “to a less
stringent standard than formal pleadings drafted by lawyers,
” Hall, 935 F.2d at 1110, a pro se plaintiff
still must “‘follow the same rules of procedure
that govern other litigants.'” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005) (quoting Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994)). Thus, a pro se “plaintiff still has
‘the burden of alleging sufficient facts on which a
recognized legal claim could be based.'”
Jenkins v. Currier, 514 F.3d 1030, 1032 (10th Cir.
2008) (quoting Hall, 935 F.2d at 1110). While the
court must make some allowances for “the [pro se]
plaintiff's failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements[, ]” Hall, 935 F.2d at 1110,
“the court cannot take on the responsibility of serving