Charron v. City of Neb., 4:18-CV-3090

Decision Date31 October 2018
Docket Number4:18-CV-3090
PartiesMARK CHARRON, Plaintiff, v. CITY OF NORTH PLATTE, a Nebraska Political Subdivision, et al., Defendants.
CourtU.S. District Court — District of Nebraska

MEMORANDUM AND ORDER NUNC PRO TUNC

Mark Charron is a Minnesota resident who was investigated by North Platte, Nebraska law enforcement while he was staying at a Super 8 motel in North Platte. He's suing the City of North Platte, a number of North Platte police officers, and the motel and its employees whom he alleges conspired with law enforcement to draw police attention to him.

North Platte and its officers (collectively, the North Platte defendants) and the motel owners and employees (collectively, the Super 8 defendants) each move to dismiss Charron's complaint. Filing 19; filing 21. The Court will grant the Super 8 defendants' motion (filing 19) in its entirety, and will grant the North Platte defendants' motion (filing 21) in part, but deny it in part.

I. STANDARD OF REVIEW

A complaint must set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). This standard does not require detailed factual allegations, but it demands more than an unadorned accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint need not contain detailed factual allegations, but must provide more than labels and conclusions; and a formulaic recitation of the elements of a cause of action will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). For the purposes of a motion to dismiss a court must take all of the factual allegations in the complaint as true, but is not bound to accept as true a legal conclusion couched as a factual allegation. Id.

And to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must also contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 678. 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. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but has not shown—that the pleader is entitled to relief. Id. at 679.

Determining whether a complaint states a plausible claim for relief will require the reviewing court to draw on its judicial experience and common sense. Id. The facts alleged must raise a reasonable expectation that discovery will reveal evidence to substantiate the necessary elements of the plaintiff's claim. See Twombly, 550 U.S. at 545. The court must assume the truth of the plaintiff's factual allegations, and a well-pleaded complaint may proceed, even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely. Id. at 556.

II. BACKGROUND

Charron checked into the North Platte Super 8 on March 17, 2017. Filing 1 at 6. Jon Berryman, the front desk employee, apparently thought at some point during the evening that he smelled something that might be marijuana. Filing 1 at 7. He called the North Platte Police Department. Filing 1 at 7. Police arrived at the motel, and asked for information from the motel registry about Charron and other guests. Filing 1 at 7. The guest information they were givenincluded names, vehicle registrations, and home addresses. Filing 1 at 7. The police found Charron's truck in the parking lot and ran the license plate. Filing 1 at 8.

Sometime between 10:00-10:30 p.m., police knocked loudly on Charron's motel room door. Filing 1 at 8. Charron alleges that officers "demanded Charron open his motel door and permit the officers to come into his room." Filing 1 at 8. He also alleges that they "yelled through the door" that they knew he was smoking marijuana. Filing 1 at 8. Charron denied the charge, but officers continued to yell and demand entry. Filing 1 at 8.

Charron opened the door, and one of the officers "shoved his foot in the door to prevent the door from closing." Filing 1 at 9. Charron stepped away from the door to use the room's telephone, but the officer continued to hold the door open. Filing 1 at 9. Charron asked the officer to leave, but according to Charron, the officer replied to the effect of "I have a right to contain the room and preserve the room and control the room." Filing 1 at 9. Charron asserted his "constitutional right to have the police officers not invade his privacy," and told the officers to get a search warrant if they wanted to search the room. Filing 1 at 9. Eventually, they left.

The police asked Berryman whether he wanted them to evict Charron from the premises. Filing 1 at 10. The answer was presumably no, because officers instead knocked on the doors of adjacent rooms before leaving. Charron alleges that

upon investigation and belief, it has been learned that individual employees of the North Platte Police Department, individually and in their official capacity as police officers with the North Platte Police Department, routinely perform similar illegal searches andseizures in several hotels located in North Platte, Nebraska, and the illegal acts have gone on for several years.

Filing 1 at 10. And, he alleges, "[t]he owners and employees of Super 8 were well aware that the North Platte Police Department was using the private guest registry information to identify and single out guests based upon national origin, including guests who had out-of-state addresses." Filing 1 at 3. This, he says, amounts to "conspiring with individual employees of the North Platte Police Department to violate the constitutional rights of hotel guests." Filing 1 at 10.

So, he sued the City of North Platte and Peterson Lodging, Inc., the owner of the North Platte Super 8. Filing 1 at 5. He also sued Berryman and Jennifer Priest, the Super 8's general manager. Filing 1 at 5. And he sued North Platte police officers Dale Matuszczak, Chris McColley, Adam Charter, and several John and Jane Does (the officers who were allegedly on the scene) and North Platte police chief Mike Swain. Filing 1 at 5-6. All the individual defendants were sued in their official and individual capacities. Filing 1 at 1. The defendants move to dismiss the complaint. Filing 19; filing 21.

III. DISCUSSION

Charron's complaint asserts several purported claims for relief:

A Fourth Amendment claim asserted pursuant to 42 U.S.C. § 1983 (filing 1 at 11-12);
• A claim captioned "Implemeting [sic] a Policy in Which Employees Give Private Information to Law Enforcement" (filing 1 at 12-13), directed at Berryman and Priest; and a separate claim asserting a similar policy-or-custom claim against Peterson Lodging (filing 1 at 13-14);• A claim for violation of the Commerce Clause (filing 1 at 14-15); and
• A claim pursuant to the Nebraska Consumer Protection Act, Neb. Rev. Stat. § 59-1602 et seq. (filing 1 at 15).
1. SECTION 1983—FOURTH AMENDMENT

To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48-49 (1988). "Acting under color of state law requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Id.

Charron's Fourth Amendment claim is directed at North Platte itself, the North Platte police officers in their official and individual capacities, and Berryman "as an agent of Chief Swain or Officers of the North Platte Police Department." Filing 1 at 11-12. A number of different issues arise with respect to each defendant. But they will be most clearly addressed by beginning with the actual events of March 17, 2017, before broadening the scope to discuss Charron's policy-or-custom allegations.

(a) Motel Room Knock and Talk

Charron's Fourth Amendment claim comprises several alleged constitutional violations. But only one—the encounter at Charron's motel room door—actually rises to the level of actionable constitutional infringement. The others are nonstarters.

It is, for instance, not unconstitutional for a hotel operator to voluntarily provide registry information to law enforcement. City of Los Angeles, Calif. v.Patel, 135 S. Ct. 2443, 2454 (2015); see United States v. Cormier, 220 F.3d 1103, 1108 (9th Cir. 2000); United States v. Willis, 759 F.2d 1486, 1498 (11th Cir. 1985). The Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities. United States v. McIntyre, 646 F.3d 1107, 1111 (8th Cir. 2011).1 Nor was that information—name, address, and vehicle information—anything in which Charron had a reasonable expectation of privacy. See United States v. Wheelock, 772 F.3d 825, 828-29 (8th Cir. 2014); United States v. Cowan, 674 F.3d 947, 955 (8th Cir. 2012); McIntyre, 646 F.3d at 1111-13; Kennedy v. City of Braham, 67 F. Supp. 3d 1020, 1032 (D. Minn. 2014); see also United States v. Thomas, 703 F. App'x 72, 78 (3d Cir. 2017), cert. denied, 138 S. Ct. 646 (2018); United States v. De L'Isle, 825 F.3d 426, 432 (8th Cir. 2016); United States v. Dasinger, 650 F. App'x 664, 672 (11th Cir. 2016).

So, Charron hasn't stated a claim against anyone—particularly, the Super 8 defendants—based on alleged information sharing. Charron's motel room, however, is another matter: the Fourth Amendment's protection against unreasonable searches and seizures extends to a person's privacy in temporary dwelling places such as hotel or motel rooms. United States v. Peoples, 854 F.3d 993, 996 (8th Cir. 2017).2 The encounter at the door of Charron's room is best understood by reference to a so-called "knock and talk" citizen-police encounter. It does not violate...

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