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Corey S. Gresham v. Jack Carson

September 7, 2012

COREY S. GRESHAM, PLAINTIFF,
v.
JACK CARSON, ET. AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sharon L. Gleason United States District Judge

ORDER RE ALL PENDING MOTIONS

Mr. Gresham, a prisoner representing himself, filed his Complaint in this action on January 17, 2012.*fn1 The defendants include (1) the Municipality of Anchorage, the Anchorage Police Department, and three police officers from the Anchorage Police Department, including Chief Mark Mew and officers Jack Carson and Eric Smith (hereinafter "the Municipal Defendants"); (2) Joseph Masters, the Commissioner of the Alaska Department of Public Safety; (3) two individual Alaska State Troopers, Michael Ingram and Kyle Young (hereinafter the "Trooper Defendants");*fn2 and (4) Matanuska Electric Association (hereinafter "MEA"). The Complaint asserts claims under 42 USC §§ 1983 and 1985 and alleges that the defendants entered a "chain conspiracy to deprive plaintiff of guaranteed constitutional rights" in the course of Mr. Gresham's arrest on November 30, 2010 and subsequent criminal prosecution in federal court. Mr. Gresham seeks monetary relief as well as declaratory or injunctive relief.*fn3

There are currently five motions pending before the court. On February 13, 2012, the Municipal Defendants filed a Motion to Dismiss Municipal Defendants.*fn4 On February 21, 2012, Joseph Masters filed a Motion to Dismiss and Alternative Motion for Summary Judgment.*fn5 On March 7, 2012, the Trooper Defendants filed a Motion for Summary Judgment.*fn6 And on May 18, 2012, MEA filed a Motion for Summary Judgment.*fn7 Mr. Gresham filed responses in opposition to each of these motions. All four motions have now been fully briefed. Oral argument was not requested on any of the motions and was not necessary to this court's determination of these motions.

On July 3, 2012, Mr. Gresham filed a Motion to Stay Proceedings, seeking to stay this action until August 3, 2012.*fn8 As that date has now elapsed, that motion is DENIED as moot.

FACTUAL BACKGROUND

The factual allegations in Mr. Gresham's complaint are as follows: On November 30, 2010, law enforcement officers entered a residence at 1100 West Fairview Loop in

Wasilla, Alaska pursuant to a search warrant issued by a U.S. Magistrate Judge.*fn9 Mr. Gresham alleges that the property was not his residence, but he was a visitor at that residence.*fn10 Among the officers who entered the Fairview Loop residence were four defendants named in this action: Alaska State Troopers Michael Ingram and Joseph Hazelaar and APD Officers Jack Carson and Eric Smith.*fn11 The officers searched the residence, arrested Mr. Gresham, and transported him first to the FBI building in Anchorage for questioning and then to the Anchorage Correctional Complex.*fn12

In his Complaint, Mr. Gresham describes the circumstances of his arrest as follows:

20. When plaintiff heard officers were looking for him, plaintiff slowly opened the bedroom door and was confronted by multiple officers and their tactical weapons aimed at him.

21. Plaintiff was ordered to get his hands up and to crawl to their location, which was about 25 feet away in the living room. There was a hallway that connected all of the bedrooms of the home. This hallway gave full access, and the only access available to the living room from any one of the bedrooms.

22. The officers commanded plaintiff to crawl to them from the rear bedroom to their position while plaintiff was only in his boxer shorts. Plaintiff did not understand why they were looking for him or having him crawl to them in his boxer as plaintiff posed no threat to the officers.

23. Once to the officers, plaintiff was placed in handcuffs behind his back while still only in his boxer shorts. Plaintiff and Malcolm Brooks were taken into the kitchen by search team members. Plaintiff was very upset at this point and wanted to know why he was being arrested and treated this way.

24. Jack Carson stated he had a warrant to search the house, and asked plaintiff how long had he been living at the 1100 W. Fairview Loop, and had been growing marijuana. Plaintiff stated that he did not live at the residence and doesn't grow marijuana, and was only visiting for the holidays. Plaintiff asserted his residency and home was in Georgia.

25. Plaintiff then asked Jack Carson to see a copy of the warrant and asked what the warrant was for. Jack Carson told plaintiff to hold on he will get to that in a minute. Officer Carson proceeded to the bedroom where plaintiff was prior to entry, and located his travel bags and some of his clothing with identification.

26. While in the rear bedroom Officer Carson noticed a handgun next to the bed where the travel bags were. There was also a handgun case inside of the luggage with an Alaska Airlines firearms declaration tag showing that the handgun had travel with plaintiff from Georgia.

27. When Officer Carson returned from the bedroom he took some cash out of plaintiff's pants pocket and placed it on the kitchen table and asked plaintiff how he got the cash. Carson also put plaintiff Georgia Driver's License on the kitchen table. Officer Carson then asked plaintiff who the firearms belong to and if there were anymore. Plaintiff told Officer Carson they belong to the plaintiff and that he travels with firearms for his personal safety and for recreational use. Officer Carson knew plaintiff wasn't a felon and his possession was lawful.

28. During the search of the residence Officer Carson was pacing back and forth from the kitchen to the back bedroom. Plaintiff was very cold and had complained to other search team members about being cold. Plaintiff was still in his boxer shorts sitting in a chair, while still handcuffed in the kitchen, right beside the front door that had been breached by search team members. Officer Carson finally brought plaintiff some clothing.

29. Plaintiff demanded to see the warrant that Officer Carson told him to wait on, while sitting only in his boxer shorts right by the front door, that had remained open during the entire search of the residence.

30. Plaintiff was handed an old bench warrant from an unrelated traffic incident for failure to appear. Plaintiff didn't see a search warrant for 1100 W. Fairview Loop when plaintiff requested. Officer Carson then stood plaintiff up while still handcuffed. Officer Carson then put a red shirt over plaintiff head, and shoulders, put a pair of jeans on plaintiff, shoes, and no coat. Plaintiff, and Malcolm Brooks where then transported to the FBI office in Anchorage for further questioning.

31. While being transported to the Anchorage FBI office plaintiff was placed in a civilian SUV, driven by Officer Carson. Michael Ingram sat in the backseat with plaintiff whose hands were cuffed behind his back during the transport. Ingram asked if plaintiff had any kids and about his faith.

32. Once there at the FBI building in Anchorage, plaintiff was taken to an interrogation room that had no windows, was extremely cold, and was handed a cup of water. Plaintiff was then un-cuffed from behind his back and had his right-hand handcuffed to an elevated metal railing alongside the wall.*fn13

Mr. Gresham was indicted in federal court on three counts: drug conspiracy, manufacture of a controlled substance, and possession of firearms in furtherance of a crime of drug trafficking.*fn14 Trial was set before a U.S. District Judge and continued several times. Mr. Gresham filed a motion seeking to suppress statements that he alleged were obtained in violation of his Miranda rights.*fn15 A Magistrate Judge held an evidentiary hearing on that motion and issued a 16-page Report & Recommendation.*fn16

Based on that Report & Recommendation, the assigned District Judge granted in part and denied in part Mr. Gresham's motion, allowing the use of certain statements Mr. Gresham had made after finding a waiver of his Miranda rights.*fn17 Mr. Gresham also filed a pretrial motion seeking to suppress all evidence obtained through the execution of the search warrant, asserting that the warrant was not supported by probable cause. A Magistrate Judge held a three-day hearing on that motion and issued a 48-page Report & Recommendation recommending the denial of the motion, which was subsequently adopted by the assigned District Judge.*fn18 On September 12, 2011, all pending criminal charges against Mr. Gresham were dismissed without prejudice due to Speedy Trial Act violations.*fn19

As noted above, Mr. Gresham filed this civil action on January 17, 2012. Three days later, on January 20, 2012, Mr. Gresham was reindicted by a federal Grand Jury on substantially the same charges as the original indictment.*fn20 On March 30, 2012, the parties stipulated in that second case to preserve and consolidate all of the pretrial motions and orders on the motions that had been entered in the dismissed case for purposes of appeal in the newly filed case.*fn21 That second criminal case has not yet been concluded.*fn22

Mr. Gresham's Complaint in this action asserts claims under 42 USC §§ 1983 and 1985 arising from the issuance of the search warrant for 1100 West Fairview Loop, his arrest, and the criminal charges brought against him. Liberally construed,*fn23 the Complaint asserts that law enforcement conducted a search and seizure pursuant to an unlawful warrant, used excessive force in his arrest, and violated his Miranda rights in contravention of the Fourth and Fifth Amendments and 42 USC ยง 1983. The Complaint ...


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