United States District Court, N.D. Iowa, Cedar Rapids Division
DALE A. SMERUD, Plaintiff,
DAVE SMUTZLER, Assistant Chief of Police of Decorah, Iowa, and MIKE ASHBACHER, Fire Chief of Decorah, Iowa, Defendants.
LINDA R. READE, District Judge.
This matter is before the court pursuant to the motion to dismiss (docket no. 8) that Mike Ashbacher filed on May 20, 2014, the motion to dismiss (docket no. 9) that Dave Smutzler filed on May 21, 2014, the amended complaint (docket no. 15) that the plaintiff filed on September 15, 2014, the additional document (docket no. 17) that Mike Ashbacher filed on October 3, 2014, the additional documents (docket no. 18) that the plaintiff filed on October 6, 2014 and the additional documents (docket no. 19) that Dave Smutzler filed on October 7, 2014.
In a prior order, the court set forth the applicable standard for a motion filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Moreover, where a plaintiff is granted in forma pauperis status, dismissal of the action is required if the court determines at any time that the complaint is frivolous, malicious, fails to state a claim on which relief may be granted or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b)(1). In light of the record,  the court is convinced that dismissal is warranted because the plaintiff's action is frivolous or fails to state a claim upon which relief can be granted.
The facts are as follows:
Around approximately 1:30 a.m. on February 22, 2013, a search warrant was executed at 2705 College Drive by the Winneshiek County Sheriff's Office and the Decorah Police Department. A strong chemical odor consistent with that of an active methamphetamine laboratory could be detected outside the residence. Only one set of footprints leading to the residence was visible in the fresh snow. Six individuals were at the residence. All of them were under the influence of controlled substances.
Jessica Lynn Kipp, Justin James Bradley, Stanley George Colsch, Carrie Connie Crawford and Keith Allan Munson were all on the main floor of the residence. The plaintiff was in the basement of the residence, which was accessed through an outside doorway and stairs. The plaintiff had been in the basement for most of the evening.
During the search, the plaintiff, who was wearing blue jeans and a grey sweatshirt, fled the basement and jumped over a fence. An officer pursued the plaintiff, directed him to stop and tased him because he did not comply with the officer's directive. The plaintiff dropped into the snow, rolled around, screamed that he was giving up, laid on his stomach and put his arms out to the side. After the plaintiff was apprehended, officers handcuffed him. When asked if he was okay and if he had been injured by the taser, the plaintiff indicated that he was okay and thought the taser missed him. Officers escorted the plaintiff back to the residence.
Because a visible cloud or gassing could be seen coming from several containers that were inside the basement while standing on the basement stairs and a strong chemical odor was present, officers decided to abort the tactical clearing of the basement due to their safety. A clandestine methamphetamine laboratory was in the basement, and the plaintiff was actively attending to it before the search.
The plaintiff indicated that the type of laboratory that was in the basement was a "shake and bake" style laboratory utilizing the fertilizer stick (ammonium sulfate) method, that he was at the "gassing" stage and that there was no pressure that needed to be relieved from any containers. Officers suited up in protective gear and donned self contained breathing apparatus in order to remove items from the laboratory in the basement. Officers checked all of the containers with PH strips and neutralized several items.
Because an active methamphetamine laboratory was located in the basement of the residence and there were several containers of various unknown liquids in the basement and near the kitchen, everyone was evacuated from the residence and transportation was arranged so that the six suspects could be placed in jail. Jessica Lynn Kipp, Justin James Bradley, Stanley George Colsch, Carrie Connie Crawford and Keith Allan Munson all denied having been in the basement and were taken to the driveway area to stage for transport to the Winneshiek County Jail. After being transported to such jail, they were directed to shower after removing their clothes, which were neutralized, bagged and disposed of in the appropriate manner. None of the individuals located on the main level of the residence were decontaminated at the scene because they denied being in the laboratory, did not admit that they were involved with the manufacturing of methamphetamine and nobody could place them in the basement.
The plaintiff was escorted down the driveway to meet with members of the Decorah Fire Department for decontamination and medical personnel so that they could remove a taser prong. The taser prong was removed. Smutzler explained to the plaintiff that he had to be decontaminated because he had just excited the laboratory and that he could not be placed in the ambulance to be examined by medical personnel until he was properly decontaminated. Smutzler also explained to the plaintiff that he would need to stand on a plastic grate, he would be showered, his clothes would be removed and he would be showered again. The plastic grate was placed by a large fire truck and an ambulance on College Drive, a county highway. The plaintiff stood on the plastic grate, the plaintiff was sprayed off with the hose from the fire truck by a fireman, the plaintiff's clothes, some of which were cut off because he was handcuffed, were removed and the plaintiff was sprayed off again with the hose from the fire truck. A sheet was held up on one side of the plaintiff to shield him from others, including the suspects from the main floor of the residence that were being taken to jail. After being showered off the second time, the plaintiff was immediately covered up in blankets and sheets from the ambulance and placed in the ambulance. While the plaintiff was in the ambulance, the plaintiff's lower lateral left calf was examined. A small puncture mark was visible, but it was not bleeding or inflamed.
The plaintiff reported no injuries; he was checked by medical personnel and declined any additional treatment after being stopped by a taser. Officers spoke to the plaintiff before he was taken to the Winneshiek County Jail. The plaintiff indicated that nothing in the basement was going to hurt anyone who was trying to clean things up. At some point during their conversation with the plaintiff, officers took a break so that the plaintiff could get warmer clothes on. While speaking to the plaintiff, an officer noticed what he believed to be a chemical burn on the left side of the plaintiff's face.
Based on those facts, the court finds that: (1) no constitutional violation occurred; (2) the defendants are entitled to qualified immunity; (3) the defendants cannot be held liable for acting in their official capacities; and (4) neither compensatory damages nor punitive damages are available to the plaintiff.
It is clear that the decision to decontaminate the plaintiff was reasonable because the plaintiff was the only individual who was in the basement and actively manufacturing methamphetamine. The five other individuals were discovered on the main level of the residence, and, consequently, were not similarly situated to the plaintiff. See Glover v. Eight Unknown D.E.A. Agents , 225 F.Appx. 781, 783-87 (11th Cir. 2007) (concluding that the claims based on the Fifth Amendment, Eighth Amendment and Fourteenth Amendment lacked merit and the claims based on the Fourth Amendment did not survive because the entry and seizure were lawful and the decontamination process was not excessive); Schnebelen v. Porter , No. 1:07-CV-125 TC, 2010 U.S. Dist. LEXIS 99394 *14-32, 2010 WL 3791622 (D. Utah Sept. 21, 2010) (deciding that no right under the Fourth Amendment, Fifth Amendment, Eighth Amendment or Fourteenth Amendment was violated); Minton v. Shultz , No. 3:06-CV-320, 2008 U.S. Dist. LEXIS 72471 *13-19, 2008 WL 4380440 (E.D. Tenn. Sept. 23, 2008) (deciding that there was no Fourth Amendment violation where the officer had reason to believe that decontamination was required before plaintiff could be transported); see also Cnty. of Sacramento v. Lewis , 523 U.S. 833, 846-47 (1998) (stating that a violation of the Fifth Amendment may occur only if it can be said that the conduct is so egregious that it shocks the conscience). But see Ames v. Brown , No. 05-6389, 2006 U.S.App. LEXIS 17092 *15-19, 2006 WL 1875374 (10th Cir. 2006) (concluding that sufficient evidence of a Fourth Amendment violation existed because a jury could conclude that defendant's decision to remove plaintiff's pants was objectively unreasonable and defendant acted with an evil intent or callous indifference). It is also clear that the manner in which the plaintiff was decontaminated did not violate any constitutionally protected right. Although the plaintiff was naked on a residential street, the plaintiff speculates that someone other than those individuals who were involved in the decontamination process saw him naked. And, even if someone saw the plaintiff when he was naked and being sprayed off with a hose, it is evident that any viewing of the plaintiff during the decontamination process occurred as a result of the inadvertent actions of those individuals who took part in such process because they took reasonable steps to protect the plaintiff's privacy. See Glover , 225 F.Appx. at 786-87 (finding that no constitutional violation occurred because the agents reasonably, even if mistakenly, believed that a decontamination procedure of the duration imposed was necessary); Schnebelen , 2010 U.S. Dist. LEXIS 99394 *20-24 (determining that defendants had ample justification to decontaminate plaintiffs and the nature and scope of the ...