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Vladamir Martushev, et al v. City of Kenai

September 8, 2011

VLADAMIR MARTUSHEV, ET AL., PLAINTIFFS,
v.
CITY OF KENAI, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John W. Sedwick United States District Judge

ORDER AND OPINION

[Re: Motion at Docket 32]

I. MOTION PRESENTED

At docket 32, defendants the City of Kenai, Trish Gordon, Kelly Holt, James Johnson, Ben Lagham, Mitch Langseth, Scott McBride, David Ross, Gustaf Sandahl, Jay Sjogren, and Jeff Wannell (collectively "defendants") move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint for failure to state a claim. Plaintiffs Vladamir Martushev ("Martushev"), Richard Miller ("Miller"), Bo Armknecht, Greg Armknecht, and Michael McNab ("McNab"; collectively "plaintiffs") oppose the motion at docket 54. Defendants' reply is at docket 55. Oral argument was not requested and would not assist the court.

II. BACKGROUND

This lawsuit arises out of the Kenai Police Department's investigation of allegations of child pornography possession and sexual abuse of minor children. Ashley Armknecht told police that Richard Miller was sexually abusing her brothers, 15-year-old Gregory Armknecht and 18-year-old Bo Armknecht, and a third individual, McNab.

According to the complaint, on September 28, 2007, police officers went to Gregory Armknecht's school, waited for him to report to the principal's office, handcuffed him, put him in a police car, and drove him to the police station for questioning. Officers told him that they had sexually explicit photos of him. Gregory Armknecht denied that Miller abused him or took photos of him.

On the same day, officers searched Miller's office. The complaint alleges that the officers refused to show anyone a search warrant. Bo Armknecht and McNab were present and ultimately taken to the police station where they were questioned. Police officers told both boys that they had sexually explicit photos of them. The complaint also alleges that Martushev was present, "visiting" Richard Miller and that his personal property was seized.*fn1

Although the search of Miller's home produced child pornography, it does not appear that any pictures of the alleged victims were recovered. Criminal charges against Miller are pending in state court.

III. STANDARD OF REVIEW

A motion to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), tests the legal sufficiency of a plaintiffs' claims. In reviewing such a motion, "[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party."*fn2 Dismissal for failure to state a claim can be based on either "the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."*fn3 "Conclusory allegations of law . . . are insufficient to defeat a motion to dismiss."*fn4 To avoid dismissal, a plaintiff must plead facts sufficient to "state a claim to relief that is plausible on its face."*fn5 "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."*fn6 "The plausibility standard is not akin to a 'probability requirement' but it asks for more than a sheer possibility that a defendant has acted unlawfully."*fn7

"Where a complaint pleads facts that are 'merely consistent' with a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'"*fn8 "In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief."*fn9

IV. DISCUSSION

The sections of plaintiffs' complaint labeled "causes of action" contain multiple claims. The court will ...


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