ORDER RE MOTION FOR SUMMARY JUDGMENT

SHARON L. GLEASON, District Judge.

Before the Court at Docket 108 is Defendants Jeffrey Gregg, Richard Youngblood, Michael Dahlstrom, Monique Doll, and Nathaniel Clementson's motion for summary judgment. Plaintiff Leonard Lawson opposed at Docket 118. Defendants replied in support of their motion at Docket 122. Oral argument was not requested and was not necessary to the Court's decision.

BACKGROUND

The underlying facts and procedural history in this case are set forth in the Court's October 20, 2015 order on Mr. Lawson's Motion for Summary Judgment and Defendants' Motion to Dismiss Based on Qualified Immunity.1 As explained in that order, Mr. Lawson initiated this action in 2011 by filing a Civil Rights Complaint alleging that Defendants engaged in misconduct while entering and securing his residence to retrieve a package containing cocaine.2 He filed a Second Amended Complaint ("SAC") on September 3, 2013.3 The SAC alleges two causes of action: (1) violation of Mr. Lawson's Fourth Amendment right "to not be subjected to unreasonable search and seizure," and (2) violation of Mr. Lawson's Fourteenth Amendment due process rights. The SAC alleges that on July 14, 2010, at approximately 3:45 p.m., Mr. Lawson was unlawfully arrested while standing on his back porch. The SAC alleges that law enforcement then conducted a "warrantless" search of Mr. Lawson's home and seized property within the home, including the shotgun that was used as evidence in Mr. Lawson's criminal case.4 The SAC alleges that prior to Mr. Lawson's arrest, he "was not a person of interest of any investigation," and law enforcement "did not even know [his] name."5 The SAC asserts that Mr. Lawson's arrest and the subsequent search of his home and seizure of evidence were unlawful. The SAC also asserts that Mr. Lawson's indictment was "a direct result of the unlawful arrest, search and seizure" and therefore violative of his due process rights. The SAC requests $100,000 in compensatory damages, $1,000,000 in punitive damages, "[a]n order requiring defendant(s) to possess a valid warrant to search and or seize people or property `before' they enter a home or arrest a non-suspect," and "[a] declaration that it won't happen again[.]"6

Mr. Lawson filed a Motion for Summary Judgment on June 1, 2015, and Defendants filed a Motion to Dismiss Based on Qualified Immunity on August 10, 2015.7 The Court addressed both motions in its October 20, 2015 order, and concluded that each Defendant was entitled to qualified immunity.8 The Court concluded that "even though Defendants violated Mr. Lawson's constitutional rights [by entering Mr. Lawson's home], Defendants are entitled to qualified immunity for their actions in entering the home because reasonable officials would not have realized they were violating the law."9 The Court further concluded that "Defendants are also entitled to qualified immunity for Mr. Lawson's warrantless arrest" because "Defendants had probable cause to make a warrantless arrest under the circumstances."10 Finally, the Court also "grant[ed] Defendants' Motion to Dismiss with respect to Mr. Lawson's Fourteenth Amendment Claims."11

Mr. Lawson filed a Notice of Appeal on November 19, 2015.12 On May 7, 2018, the Ninth Circuit issued a memorandum opinion addressing Mr. Lawson's appeal.13 The Ninth Circuit held that the Court did not err in concluding that the officers were entitled to qualified immunity as to their entry into Mr. Lawson's home and their warrantless arrest of Mr. Lawson.14 The Ninth Circuit also held, however, that the Court "did err in granting the officers qualified immunity with respect to the protective sweep:

Accordingly, the Ninth Circuit "reverse[d] the [Court's] grant of qualified immunity with regard to the protective sweep" and remanded for further proceedings consistent with that disposition.16

On August 23, 2018, Defendants filed a motion for summary judgment as to all claims, along with declarations describing "[D]efendants' individual actions with respect to the items the Ninth Circuit mentioned in its opinion."17 Defendants contend that the declarations show that none of the Defendants violated Mr. Lawson's constitutional rights.18

LEGAL STANDARD

I. Jurisdiction and Applicable Law

The Court has jurisdiction over Mr. Lawson's 42 U.S.C. § 1983 claim pursuant to its 28 U.S.C. § 1331 federal question jurisdiction.

II. Law of the Case Doctrine and Rule of Mandate

"The law of the case doctrine provides that `a court is generally precluded from reconsidering an issue previously decided by the same court, or a higher court in the identical case.'"19 "The rule of mandate is similar to, but broader than, the law of the case doctrine. A district court, upon receiving the mandate of an appellate court cannot vary it or examine it for any other purpose than execution. Thus, a district court could not refuse to dismiss a case when the mandate required it, and a district court could not revisit its already final determinations unless the mandate allowed it."20 "The `mandate rule,' under which a district court has no power or authority to deviate from a mandate of the Court of Appeals, is a more powerful version of the law-of-the-case doctrine, which prevents courts from reconsidering issues that have already been decided in the same case."21

III. Scope of Protective Sweep

"A `protective sweep' is a quick and limited search of premises . . . conducted to protect the safety of police officers or others."22 The Fourth Amendment permits protective sweeps, provided that searching officers "`possess[] a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[] the officer in believing that the area swept harbored an individual posing a danger to the officer or others."23 However, a protective sweep "is not a license to search every nook and cranny of a house, but is subject to two significant limitations: it `extend[s] only to a cursory inspection of those spaces where a person may be found' and lasts `no longer than it takes to complete the arrest and depart the premises.'"24

IV. Summary Judgment Standard

Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure.25 Rule 56(a) directs a court to "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." When considering a motion for summary judgment, a court must accept as true all evidence presented by the nonmoving party and draw "all justifiable inferences" in the non-moving party's favor.26 The burden of showing the absence of a genuine dispute of material fact initially lies with the moving party.27 If the moving party meets this burden, the non-moving party must present specific evidence demonstrating the existence of a genuine issue of fact.28 The nonmoving party may not rely on mere allegations or denials. To reach the level of a genuine dispute, the evidence must be such "that a reasonable jury could return a verdict for the non[-]moving party."29 If the evidence provided by the non-moving party is "merely colorable" or "not significantly probative," summary judgment to the moving party is appropriate.30

"Materials from a proceeding in another tribunal are appropriate for judicial notice."31 Here, the Court will take judicial notice of testimony from the evidentiary hearing held in January and February 2011 on the motions to suppress filed in Mr. Lawson's criminal case and the affidavit submitted in support of the search warrant for Mr. Lawson's residence.32

DISCUSSION

1. Officer Clementson

Officer Clementson's declaration is attached to Defendants' motion.33 It describes his conduct during the protective sweep. Officer Clementson states that while sweeping the music room in Mr. Lawson's residence, he saw "a fairly large, flat-screen computer monitor, and that [he] saw that it displayed a FedEx tracking screen."34 Officer Clementson asserts that he "[does] not remember touching the computer, desk or mouse."35 He also states that he "saw a black ceramic . . . candle holder. . . . on the shelf area behind the computer," which he "could see. . . without looking behind the computer."36 Finally, Officer Clementson states that he "saw luggage . . . . sitting in the middle of the room in plain view," and "noticed that the luggage tag indicated a connection with California."37 Defendants contend that Officer Clementson's declaration proves that "his sweep of the room was quick, and his discovery of the three objects was incidental."38 Defendants assert that Officer Clementson "swept for about a minute and did not touch any of the three objects to see them," that "[t]he objects were not hidden," and that Officer Clementson "never retrieved the [candle holder] during the sweep."39

Officer Clementson's declaration does not demonstrate the absence of genuine factual disputes. The Ninth Circuit concluded that Defendants violated the Fourth Amendment by "obtain[ing] luggage tag and computer information" and "recover[ing] a black container hidden behind the computer during the protective sweep."40 Officer Clementson acknowledges that he made observations about what was displayed on the computer screen and on the luggage tags during the sweep.41 This information was later included in Officer Gregg's "Affidavit in Support of Application for Search Warrant" for Mr. Lawson's residence.42 The additional details included in Officer Clementson's declaration do not foreclose the possibility that Officer Clementson violated the Fourth Amendment during the protective sweep. The Court also notes that the assertions in Officer Clementson's declaration and in Defendants' motion are at direct odds with the Magistrate Judge's findings in Mr. Lawson's criminal case.43 Based on the evidence presented at the suppression hearing, including Officer Clementson's testimony at that time, the Magistrate Judge noted that "the government does not explain by evidence how the computer screen could reveal the web page for FedEx tracking without the `mouse' being moved," and found that "[m]oving the mouse was beyond the scope of a lawful protective sweep."44 On that basis, these items were all suppressed in Mr. Lawson's criminal trial.45 Defendants nevertheless now assert that "Clementson saw all three objects without touching or moving them."46

Because undisputed facts do not establish that Officer Clementson is entitled to judgment as a matter of law, Defendants' motion for summary judgment as to the Fourth Amendment claims against Officer Clementson will be denied.

2. Officers Doll and Gregg

Officer Doll's declaration states that she "was only in the [music] room for approximately 8-10 seconds" and that she did not "see the luggage tags, a computer screen, or any items behind a computer screen" while in the room.47 She further states that following the sweep, she returned to the DEA office to assist Officer Gregg in writing an application for a search warrant and subsequently drove to the courthouse to apply for the warrant.48 Officer Doll's current declaration states that she "was not aware" that the items described in the Ninth Circuit opinion "had been observed prior to the second search warrant for the residence being obtained until [she] read" the Ninth Circuit's decision.49 Officer Gregg's declaration states that he "did not participate in the sweep," and that he left Mr. Lawson's residence shortly after arriving in order "to work on the affidavit for the search warrant."50 Defendants contend that these declarations show that Officers Doll and Gregg "deserve a grant of summary judgment on the sweep."51

Officer Doll and Officer Gregg's recent declarations do not show that summary judgment in their favor is warranted. The declarations suggest that both Officer Doll and Officer Gregg participated in applying for the second warrant for Mr. Lawson's residence.52 The officers' affidavit for the search warrant includes information about items found in the music room:

The Ninth Circuit held that this Court erred "in granting the officers qualified immunity with respect to the protective sweep."54 The Circuit Court based that ruling on its finding that "[a]ny reasonable officer in the Defendants-Appellees' position would have known he was violating clearly established Fourth Amendment jurisprudence because the Defendants-Appellees. . . obtained luggage tag and computer information, and recovered a black container hidden behind the computer during the protective sweep."55 In light of this language, Defendants have not established that the putting of this information in the warrant did not constitute a constitutional violation.56

Furthermore, Officer Doll and Officer Greggs' declarations are difficult to reconcile with one another and with the affidavit submitted in support of the warrant application. Officer Doll contends that she was "not aware" of the items described in the search warrant until she read the Ninth Circuit's decision.57 However, she also contends that she assisted Officer Gregg in drafting the application for a search warrant that described the items from the music room.58

Officer Doll and Officer Greggs' declarations also demonstrate genuine issues regarding Officer Gregg's potential liability for other officers' acts during the protective sweep. Officer Gregg does not address whether or not he ordered the protective sweep. However, Officer Doll contends that "[a]t no time did [she] make any decisions independent of TFO Gregg or GS Youngblood."59 Section 1983 suits do not allow for the imposition of vicarious liability.60 However, a supervisor can be held liable in his or her individual capacity under § 1983 where there is a "sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation."61 If Officer Gregg had actual supervisory authority over the officers who participated in the unconstitutional aspects of the protective sweep, Officer Gregg may be personally liable for constitutional violations that occurred during the sweep.62 On the current record — with all reasonable inferences drawn in Mr. Lawson's favor —triable issues of fact remain that bear on this question.

For the foregoing reasons, Defendants' motion for summary judgment as to the remaining Fourth Amendment claims against Officers Doll and Gregg will be denied.

3. Officer Youngblood

Officer Youngblood's declaration states that he arrived at Mr. Lawson's residence after the protective sweep had been conducted, and that he remained at the residence until the search warrant was issued.63 Defendants contend that the declaration shows that Officer Youngblood "deserve[s] a grant of summary judgment on the sweep."64

Officer Youngblood's declaration does not show that summary judgment in his favor is warranted. As noted above, while § 1983 suits do not allow for the imposition of vicarious liability, a supervisor may be held liable in individual capacity if there is a "sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation" and the supervisor has actual supervisory authority over the government actor who committed the alleged violations.65 Here, Officer Youngblood asserts that officers entered Mr. Lawson's residence "without [his] expressed authorization."66 However, Officer Doll contends that "[a]t no time did [she] make any decisions independent of TFO Gregg or GS Youngblood," and Officer Gregg does not indicate that he ordered the sweep.67 Furthermore, during the evidentiary hearing held on the motions to suppress filed in Mr. Lawson's criminal case, Officer Clementson testified that Officer Youngblood "made the decision that we were going to enter the residence and attempt to retrieve the parcel."68 Triable issues of fact preclude summary judgment as to Mr. Lawson's Fourth Amendment claims against Officer Youngblood.69 Accordingly, Defendants' motion for summary judgment as to those claims against Officer Youngblood will be denied.

3. Officer Dahlstrom

Officer Dahlstrom's declaration states that he "helped with the protective sweep for no more than 10 minutes," and that he "didn't conduct a protective sweep of the music room."70 Officer Dahlstrom further states that he participated in a brief interview of Mr. Lawson following the sweep, and that he left Mr. Lawson's house thereafter.71 Defendants contend that "[a]s Dahlstrom did not even go into the music room, he should not be found liable for civil damages."72

The Ninth Circuit held that Defendants violated the Fourth Amendment by taking photographs, obtaining luggage tag and computer information, and recovering a black container hidden behind the computer in Mr. Lawson's music room.73 Officer Dahlstrom's declaration indicates that he was not involved in taking any photographs, and that he never saw the items in question. There is also no indication that Officer Dahlstrom assisted with the application for a search warrant for Mr. Lawson's residence or supervised any of the other officers. The declaration is consistent with Officer Dahlstrom's testimony during the evidentiary hearing on the motions to suppress filed in Mr. Lawson's criminal case.74 Officer Dahlstrom's declaration is not disputed; Mr. Lawson contends only that Officer Dahlstrom "was in [his] home and participated in the search," but does not contradict Officer Dahlstrom's description of his actions during and after the sweep.75 Accordingly, Defendants' motion for summary judgment as to the claims against Officer Dahlstrom will be granted.

CONCLUSION

In light of the foregoing, IT IS ORDERED as follows:

Defendants' motion for summary judgment at Docket 108 is GRANTED as to Officer Dahlstrom. Defendants' motion for summary judgment is DENIED as to Officers Clementson, Doll, Gregg, and Youngblood.

IT IS FURTHER ORDERED that a status hearing to schedule further proceedings in this case will be held on March 26, 2019 at 10:30 AM in Anchorage Courtroom 2 before Judge Sharon L. Gleason.76