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Barrow v. State ex rel. Department of Public Safety

United States District Court, N.D. Oklahoma

July 17, 2017

JEREMIAH L. BARROW, Plaintiff,
v.
STATE OF OKLAHOMA ex rel. Department of Public Safety and JONATHON YSBRAND, Defendants.

          OPINION AND ORDER

          CLAIRE V. EAGAN UNITED STATES DISTRICT JUDGE

         Now before the Court is Defendants' Motion for Summary Judgment (Dkt. # 17). Defendant Jonathon Ysbrand argues that he is entitled to qualified immunity from plaintiff's claim under 42 U.S.C. § 1983, because plaintiff cannot show that his constitutional rights were violated during a traffic stop. Defendant State of Oklahoma ex rel. Department of Public Safety (the State) asserts that it cannot be held liable for false arrest, because Ysbrand had probable cause to arrest plaintiff for driving under the influence of drugs and alcohol.

         I.

         Ysbrand is a trooper with the Oklahoma Highway Patrol and, on February 15, 2016, he initiated a traffic stop of Jeremiah Barrow's vehicle after observing that Barrow's vehicle was pulling a trailer with an unsecured load and with no functional lights. Dkt. # 17-1, at 2. Barrow approached the vehicle from the driver's side and noticed that there was a male passenger in the vehicle. Dkt. # 17-2; Dkt. # 21-1, at 3. Ysbrand claims that he immediately detected the smell of alcohol when he made contact with the driver of the vehicle. Dkt. # 17-1, at 2; Dkt. # 21-1, at 3-4. Barrow gave his driver's license and insurance information to Ysbrand, and Ysbrand asked Barrow to sit in his patrol car while he completed a traffic citation. Dkt. # 17-1, at 2. While seated next to Barrow, Ysbrand noticed the odor of alcohol coming from Barrow's breath. Id. Ysbrand believed that Barrow's speech seemed to be slurred and that Barrow was overly talkative. Id. Ysbrand checked Barrow's criminal history and learned that he had several prior convictions for driving under the influence of alcohol. Id.

         Ysbrand believed that the odor of alcohol from Barrow's vehicle and his person, Barrow's criminal history, and his slurred speech and behavior indicated that Barrow could be under the influence of drugs or alcohol, and he determined that he had a sufficient basis to extend the traffic stop for further investigation. Id. at 3. Ysbrand asked Barrow to step out of the patrol car and stand in front of the patrol car, and Ysbrand asked Barrow if he had consumed any alcohol or if alcohol had been spilled on him. Id. at 3. Barrow denied that he had consumed any alcohol and he indicated that the passenger in his vehicle had spilled alcohol on him. Id. Ysbrand is a certified drug recognition instructor and he asked Barrow to perform standardized and non-standardized field sobriety tests. Id. Ysbrand asked Barrow if he had any vision or blindness problems, and Barrow claimed that he had a head injury from an automobile accident that affected his equilibrium. Id. at 4. Ysbrand conducted a horizontal gaze nystagmus test and observed a lack of smooth pursuit of both eyes and a sustained and distinct nystagmus in both eyes, and these are indicators that a person could be under the influence of drugs or alcohol. Id.; Dkt. # 17-3, at 4. Ysbrand next asked Barrow to perform a walk and turn test, and he observed five out of a possible eight “clues” that Barrow was intoxicated. Dkt. # 17-1, at 4; Dkt. # 17-3, at 5. Ysbrand administered a one leg stand test and Barrow stated that he had trouble with balance due to his head injury. Dkt. # 17-1, at 4. Ysbrand observed that Barrow noticeably swayed while on one foot and had body tremors, and these were clues that Barrow could be under the influence of certain drugs. Id. at 17-1, at 4; Dkt. # 17-3, at 5. Finally, Ysbrand directed Barrow to perform a modified Romberg balance test. Dkt. # 17-1, at 4. Barrow's estimate of the amount of time that had passed was within the normal range, but Ysbrand observed eyelid and body tremors and Barrow noticeably swayed during the test. Id. at 5. Ysbrand asked Barrow to return to the patrol car after completing the sobriety tests. Ysbrand took Barrow's pulse, and Barrow had a very high pulse that could be an indication of drug use. Id. Ysbrand directed Barrow to blow into a handheld device to test for the presence of alcohol. Id. The handheld device is not the official test for determining a person's level of alcohol intoxication, but Ysbrand uses the device to rule out alcohol as a cause of intoxication when he suspects drug use. Id. The breath sample showed that Barrow had a blood alcohol level of .03, which is below the statutory level of .08 for presumptive intoxication for driving under the influence of alcohol. Dkt. # 17-3, at 6. However, based on the totality of the circumstances, Ysbrand placed Barrow under arrest for driving under the influence of drugs and alcohol, and the time elapsed from the initial stop to the arrest was 25 minutes. Dkt. # 17-3.

         Ysbrand read Barrow the State's implied consent card for blood testing following an arrest for driving under the influence, and Barrow agreed to submit to a blood test. Dkt. # 17-1, at 6. Dkt. # 17-2. Ysbrand decided to obtain a blood test, rather than a breath test using an Intoxilyzer, because Ysbrand believed that Barrow could be under the influence of a substance other than alcohol. Dkt. # 17-1, at 6. Ysbrand took Barrow to a hospital and Barrow's blood was drawn, and the blood was placed in a kit and mailed to the Oklahoma State Bureau of Investigation (OSBI). Id. at 6-7; Dkt. # 21-3. Ysbrand took Barrow to the Rogers County Jail and Barrow was booked into jail on a charge of driving under the influence of drugs and alcohol. Dkt. # 17-1, at 7; Dkt. # 17-3, at 1. Ysbrand also prepared an arrest report for review by the Rogers County District Attorney. Dkt. # 17-1, at 7; Dkt. # 17-3. Ysbrand states that he had no role in determining whether criminal charges would be filed against Barrow, and the Rogers County District Attorney was responsible for making the final decision as to the filing of criminal charges. Dkt. # 17-1, at 7. On March 1, 2016, the Rogers County District Attorney filed an information charging Barrow with one count of driving under the influence of alcohol or drugs in violation of Okla. stat. tit. 47, § 11-902(A)(5). Dkt. # 17-7. OSBI tested Barrow's blood sample on March 8, 2016 and the alcohol content in Barrow's blood was .017 and no other illegal substances were detected. Dkt. # 21-5. The Rogers County District Attorney filed a motion to dismiss the charge against Barrow, and the charge of driving under the influence was dismissed without prejudice to refiling. Dkt. # 21-6; Dkt. # 17-8.

         On October 7, 2016, Barrow filed this case in Rogers County District Court alleging claims against Ysbrand and the State. Barrow alleges that Ysbrand violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution, and he has alleged a claim against Ysbrand in his individual capacity under 42 U.S.C. § 1983 (Count I). Barrow also alleges a state law claim of malicious prosecution (Count II) against Ysbrand, and a false arrest claim under state law against the State (Count III). Ysbrand removed the case to this Court and the State consented to the removal. Dkt. # 2.

         II.

         Summary judgment pursuant to Fed.R.Civ.P. 56 is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 317. “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.'” Id. at 327.

         “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the [trier of fact] could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 250. In its review, the Court construes the record in the light most favorable to the party opposing summary judgment. Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).

         III.

         Ysbrand argues that he had probable cause to arrest plaintiff for driving under the influence of alcohol or drugs, and he asserts that he is entitled to qualified immunity from plaintiff's claim against him under § 1983. Ysbrand also argues that he cannot be held liable for malicious prosecution, because he had probable cause to arrest plaintiff and he was not responsible for making the decision to file a criminal charge against plaintiff. The State argues that plaintiff cannot prevail on a false arrest claim under state law, because Ysbrand had probable cause to arrest plaintiff for driving under the influence of drugs or alcohol and other traffic violations. Plaintiff argues that the traffic stop was unreasonably lengthy and he claims that Ysbrand was “legally obligated” to issue a traffic citation, give him a warning, and release him once it was determined that there were no outstanding warrants for plaintiff's arrest. Dkt. # 21, at 10. Plaintiff claims that he was detained based solely on prior convictions for drivng under the influence. Plaintiff also claims that he “passed” a breathalizer test and that he had not committed any other crime, and he argues that Ysbrand has a history of arresting people for driving under the influence who have “passed” a breathalizer test. Id. at 3-5.

         A.

         Plaintiff has alleged a § 1983 claim against Ysbrand in his individual capacity. Section 1983 provides a cause of action against any “person who, under color of statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and law” of the United States. “The purpose of § 1983 is to deter state actors from using the badge of authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992). The Supreme Court has held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity shields public officials from facing the burdens of litigation and is an immunity from suit, not simply a defense to a plaintiff's claims. Serna v. Colorado Dept. of Corrections, 455 F.3d 1146, 1150 (10th Cir. 2006). The Tenth Circuit applies a two-step analysis to determine if a defendant is entitled to qualified immunity. A plaintiff must prove that the defendant's actions violated a specific constitutional right and, if the plaintiff has shown that a constitutional violation occurred, the plaintiff must show that the constitutional right was clearly established when the conduct occurred. Toevs. v. Reid, 685 F.3d 903, 909 (10th Cir. 2012). A court ...


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