Opinion
Civil Action No. 97-0133, SECTION "L" (2)
May 9, 2002
ORDER AND REASONS
Before the Court is the motion of defendant Kurt Vorhoff for partial summary judgment dismissing all claims against him. For the following reasons, the motion is DENIED IN PART AND GRANTED IN PART. Accordingly, plaintiffs' § 1985 claim against defendant Vorhoff is DISMISSED.
I. Background
Florentino and Elizabeth Martinez, brother and sister, were driving with Elizabeth's minor daughter in Ramiro Reyes's pickup truck on Interstate 12 in St. Tammany Parish, Louisiana, en route to Alabama. The truck had Texas a license plate.
When they passed a marked Louisiana State Police vehicle, Carl Sazan, a Louisiana State Trooper, pulled them over. At Sazan's request, Florentino got out of the truck, producing his driver's license and proof of registration. Sazan ordered Florentino to remain standing in the cold rain while he returned to his vehicle. Sazan issued a warning citation for following too closely. In response to questioning by Sazan, Florentino denied that there were any drugs or weapons in the truck but signed a consent-to-search form at Sazan's request.
Sazan then ordered Elizabeth to leave the pickup truck and stand in the rain with her child while he searched it. Sazan refused to allow Elizabeth to retrieve a jacket for her daughter. Another trooper, Kurt Vorhoff, subsequently arrived with a police dog. The dog searched inside and under the truck. According to plaintiffs, the dog exhibited no unusual reaction until Vorhoff pulled its chain and caused it to bark.
Although no drugs were found, Sazan ordered the Martinezes to follow him to Troop L Headquarters in Mandeville, Louisiana. Sazan, Vorhoff, and Richard Roe, searched the vehicle. In the course of the search, which lasted for three to four hours, the police removed the gas tank and placed the truck on a lift that slammed it to the ground. It cost $2,209.20 to repair the damage done to the truck by the search.
During the search at the station, Florentino, Elizabeth, and the minor were forced to stand under an outside porch cover exposed to the weather. No drugs were found, and no criminal charges were ever filed.
Plaintiffs sued Troopers Sazan and Vorhoff, as well as the supervisory officers Whittington, Ryan, and Armstrong under §§ 1983 and 1985 for denial of their constitutional rights. The thrust of plaintiffs' claims is their contention that "following too closely" was merely a pretext for the stop which was actually based on their Hispanic ethnicity. Further, plaintiffs contend that the dog was induced to bark by Vorhoff's pulling on the dog's chain, thereby fabricating evidence of illegal drugs to justify further search and seizure. Allegedly all of this was done pursuant to a conspiracy on the part of the Louisiana State Police to target persons of Hispanic descent who were driving vehicles with license plates of states bordering Mexico. In addition to their §§ 1983 and 1985 claims, plaintiffs also asserted claims under the Louisiana Constitution and the Louisiana Civil Code. The Martinezes claimed general and special damages of $55,000 each. Reyes sought $2,209.20 for the damage to his truck, plus $5,000 in punitive damages.
Defendant Kurt Vorhoff now moves to dismiss all claims made against him on the grounds that plaintiffs have failed to state any facts which would overcome his defense of qualified immunity. Further, Vorhoff argues that there are no factual allegations supporting plaintiffs' claim of a conspiracy to deprive plaintiffs of their constitutional rights.
II. Analysis
A court required to rule upon the qualified immunity issue must consider this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? Banton v. City of Dallas, 272 F.3d 730, 744 (5th Cir. 2001) (quoting Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001)). If no constitutional right would be violated, there is no necessity for further inquiries concerning qualified immunity. Saucier, 121 S.Ct. at 2156. But, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. Id. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id.
In this case, plaintiffs allege that Vorhoff fabricated evidence in that he forced the dog to alert in order to justify further search and seizure. Relying on the Ninth Circuit decision in Devaraux v. Abbey, 263 F.3d 1070 (9th Cir. 2001), plaintiffs argue that the fabrication of evidence to support probable cause for a search is inherently unlawful and unconstitutional.
In support of the motion to dismiss, defendant offers the affidavits of Sazan and Vorhoff. Trooper Sazan states that "the dog being handled by Kurt Vorhoff, searched the vehicle and gave a positive odor response on an area adjacent to the gas tank." However, in his affidavit Florentino Martinez states that he was watching the dog and did not see any unusual reactions except when Vorhoff pulled its chain causing it to bark. Vorhoff responds that the dog is trained to indicate a positive odor response by scratching or sitting and not barking so that whether the dog barked is irrelevant.
Vorhoff's response misses the mark. The question is not whether the dog barked, rather it is whether it did anything else but bark. The plaintiffs claim that it did nothing but bark and that Vorhoff caused the barking in order to fabricate evidence.
Viewing the evidence in the light most favorable to the plaintiffs, the Court finds that there are genuine issues of fact as to whether or not the dog alerted and whether or not Vorhoff forced the dog to bark in order to fabricate evidence. Such actions, if proved, would constitute a violation of a clearly established right, a right which the Devaraux court characterized as "virtually self-evident." Devaraux, 263 F.3d at 1074. For these reasons, summary judgment on the plaintiffs' § 1983 claim is denied.
Next, Vorhoff contends that summary judgment is appropriate as to the plaintiffs' § 1985 claim because there is no factual support for plaintiffs' allegations of a conspiracy to deprive plaintiffs of their constitutional rights. Conspiracy is an essential element of a cause of action for damages for conspiracy to interfere with civil rights. Simmons v. Zibilich, 542 F.2d 259 (5th Cir. 1976). To prove the existence of a conspiracy under this statute, the plaintiff must allege and establish facts showing a meeting of the minds. Taliaferro v. Voth, 774 F. Supp. 1326 (D.C.Kan. 1991). At the summary judgment phase, plaintiff may no longer rely on the allegations alone in opposing dismissal. In this case, although plaintiffs may have alleged facts sufficient to state a claim under § 1985 for conspiracy to deprive plaintiff of their constitutional rights, they have not offered evidence sufficient to create a genuine issue of fact regarding the conspiracy element. Accordingly, the Court grants the motion for partial summary judgment insofar as it seeks dismissal of the § 1985 claim against Vorhoff.
III. Conclusion
For the foregoing reasons, the defendant's Motion for Partial Summary Judgment is DENIED IN PART AND GRANTED IN PART. Accordingly, plaintiffs' § 1985 claim against Trooper Vorhoff is DISMISSED.