Cowley v. West Valley City et al, No. 2:2016cv00143 - Document 118 (D. Utah 2018)
Court Description: MEMORANDUM DECISION AND ORDER granting 86 Motion for Partial Summary Judgment Signed by Judge Bruce S. Jenkins on 3/12/2018. (las)
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Cowley v. West Valley City et al Doc. 118 FILED 2018 MAR 12 PM 2:22 CLERK U.S. DISTRICT COURT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION SHAUN COWLEY, Plaintiff, vs. WEST VALLEY CITY, WVC MANAGER WAYNE PYLE, FORMER POLICE CHIEF BUZZ NIELSEN, CURRENT POLICE CHIEF LEE RUSSO, WVC DETECTIVE DAYID GRECO, DEPUTY CHIEF PHILIP QUINLAN, DEPUTY CHIEF MICHAEL POWELL, LIEUTENANT JOHN COYLE, FORMER CHIEF ANITA SCHWEMMER, MEMORANDUM DECISION AND ORDER GRANTING WEST VALLEY CITY DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT Case No: 2:16-cv-00143 Judge Brnce S. Jenkins Defendants. Defendants West Valley City (the "City"), Wayne Pyle ("Pyle"), Buzz Nielsen ("Nielsen"), Lee Russo ("Russo"), David Greco ("Greco"), Philip Quinlan ("Quinlan"), Michael Powell ("Powell"), John Coyle ("Coyle"), and Anita Schwemmer ("Schwemmer") (collectively "Defendants") 1 move the Court for partial summary judgment on the following claims brought by Plaintiff Shaun Cowley ("Plaintiff'): (1) each of Plaintiffs three remaining claims against the Individual Defendants in their official capacity; (2) Plaintiffs Second Cause of Action under 42 U.S.C. § 1983 for violation of Plaintiffs right to procedural due process; and (3) Plaintiffs Fifth Cause of Action under 42 U.S.C. § 1983 for retaliatory prosecution.2 After considering the 1 The individual defendants (Pyle, Nielsen, Russo, Greco, Quinlan, Powell, Coyle, and Schwemmer) are collectively referred to as the "Individual Defendants." 2 Defendants do not seek summary judgment on Plaintiffs First Cause of Action under 42 U.S.C. § 1983 against the Coyle in his individual capacity and the City. Dockets.Justia.com parties' briefing and oral argument, the Court GRANTS Defendants' Motion for Partial Summary Judgment. As a preliminary matter, in his memorandum opposing summary judgment, Plaintiff agreed to limit his Second and Fifth Causes of action as follows: First, Plaintiff consented that summary judgment should be granted in favor of Defendants Nielsen, Russo, Greco, Quinlan, Powell, Coyle, and Schwemmer as to Plaintiffs Second Cause of Action under 42 U.S.C. § 1983 for violation of Plaintiffs right to procedural due process. Second, Plaintiff consented that summary judgment should be granted in favor of Defendants Nielsen, Schwemmer, Russo, and Quinlan on Plaintiffs Fifth Cause of Action under 42 U.S.C. § 1983 for retaliatory prosecution. Third, Plaintiff limited his procedural due process claim to the City and Pyle, and agreed that the sole basis for this claim is that "Pyle, as City Manager for WVC, determined prior to [Plaintiffs] pre-termination hearing that [Plaintiff] would be tenninated and enforced his decision by ordering [acting Police] Chief Marx to alter his recommendation on Plaintiffs discipline." As a result, Plaintiff consented that summary judgment should be granted in favor of the City and Pyle as to all other grounds on which this claim was originally brought. Fourth, Plaintiff limited his retaliatory prosecution to the City and Greco, and agreed that the sole basis for this claim is that the City and Greco "induced the Salt Lake County District Attorney's Office to file criminal charges against [Plaintiff] by offering its own detective, David Greco, to sign the Information ... even though Greco did not believe there was probable cause 2 for the prosecution." As a result, Plaintiff consented that summary judgment should be granted in favor of the City and Greco as to all other grounds on which this claim was originally brought. Because Plaintiff narrowed his Second and Fifth Causes of Action, Nielsen, Russo, Quinlan, Powell, and Schwemmer are dismissed from this case as Plaintiff has no remaining claims against them. SUMMARY JUDGMENT STANDARD Under Federal Rule of Civil Procedure 56(a), courts grant summary judgment if the movant shows no genuine dispute as to any material fact exists, and "the movant is entitled to judgment as a matter oflaw." "A fact is 'material' if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is 'genuine' if a rational jury could find in favor of the nonmoving party on the evidence presented." Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013) (quotingE.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000)). In evaluating a motion for summary judgment, the Court reviews "the facts in the light most favorable to the nonmovant and draw[s] all reasonable inferences in the nonmovant's favor." Jones v. Norton, 809 F.3d 564, 573 (10th Cir. 2015). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. Moreover, an issue of fact is genuine only if "a reasonable jury could return a verdict for the non-movant." Jenldns v. Wood, 81F.3d988, 990 (10th Cir. 1996) (citation omitted). If there is 3 no genuine issue of material fact in dispute, the Court grants summary judgment according to the substantive law. See id. at 990. A party seeking summary judgment always has the initial burden of"informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believe demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Furthennore, "where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324. In such instances, the moving party has no obligation to present extrinsic evidence or supporting affidavits to sustain its assertion that no genuine disputes of material fact exist. Id. Once a moving party satisfies its initial summary judgment burden by pointing to a lack of evidence in the record, the burden of production shifts to a non-moving party to come forward with admissible evidence to demonstrate the existence of a genuine dispute of material fact. See Celotex Corp., 477 U.S. at 330 (Brennan, J, dissenting) (the burden of production shifts to the non-moving party once the moving party "demonstrate[ s] to the Court that the nomnoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim"); 1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) ("Once the moving party has [met its initial burden], the burden shifts to the nonmoving party to go beyond the pleadings and set forth specific facts showing that there is a genuine issue for trial.") (citation omitted). The non-moving party "may not rely on mere allegations, or denials, contained in its 4 pleadings or briefs" to defeat summary judgment. See Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 982 (10th Cir. 2002). And when a jury would be required to speculate to find in favor of the non-moving party, summary judgment is appropriate. See Bones v. Honeywell Int'!, Inc., 366 F.3d 869, 875 (10th Cir. 2004) ("Unsubstantiated allegations carry no probative weight in summary judgment proceedings .... To defeat a motion for summary judgment, evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise.") (citations omitted). Cf Simward Corp. v. Dun & Bradstreet, Inc., 811F.2d511, 521 (10th Cir. 1987) (reversing jury verdict where essential elements of plaintiffs claim were "supported only by speculation and conjecture" rather than admissible evidence). FACTUAL BACKGROUND Examining the evidence in a light most favorable to Plaintiff, the following facts guide the Court's decision. Procedural Due Process On November 2, 2012, two City police officers, Plaintiff and Officer Kevin Salmon (Salmon) were involved in the shooting of Danielle Willard (Willard), which resulted in Willard's death. (West Valley City Defs.' Mot. For Summ. J. (Mot.), Statement of Elements and Undisputed Material Facts (Facts) ii 63, ECF No. 86.) Immediately following the shooting, protocol was invoked to create a joint investigation between the City and the Salt Lalce County District Attorney's Office (DA's Office). (Id. ii 64.) As part of the investigation, investigators inspected Plaintiffs vehicle and discovered unbooked evidence. (Pl. 's Opp'n to Defs.' Mot for Partial Summ. J. (Opp'n), Pl.'s Statement of Facts (Pl.'s Facts) ii 10, ECF No. 104.) As a result, the City opened an Internal Affairs (IA) investigation into the unbooked evidence in Plaintiffs 5 vehicle. (Id. if 11.) On March 4, 2013, the City had a follow-up interview with Plaintiff where Plaintiff disclosed systematic misconduct within the Neighborhood Narcotics Unit (NNU). 3 (Id. irir 13-14.) On or about March 26, 2013, Plaintiff was provided with notice of a meeting with Quinlan to discuss a pending IA investigation into Plaintiffs conduct. (Id. if 26; Facts if 1.) On April 4, 2013, Plaintiff and his counsel met with Quinlan and were given an explanation of the City's evidence, and an opportunity to present Plaintiffs side of the story. (Facts if 2.) On August 15, 2013, the City's Command Group, which included City Manager Pyle, decided that for Plaintiffs discipline "anything less than tennination sends the wrong message to the department and the citizens." (Pl.'s Facts if 33.) On August 19, 2013, Plaintiff was provided notice of a predisciplinary meeting with Larry Marx (Marx), who was given the chiefs role for discipline in Plaintiffs case. 4 (Id. if 32; Facts iii! 3, 36.) and Plaintiffs potential policy violations. (Id. if 3.) The notice set forth the City's evidence On August 3 0, 2013, Plaintiff and his counsel met with Marx and Plaintiff was allowed to explain his side of the story. (Id. if 4; Pl.' s Facts if 34.) Subsequently, Marx provided Pyle with drafts of two disciplinary letters, both of which sustained the charges against Plaintiff, as follows: one letter provided for 240 hours of administrative leave and the other letter provided for termination of Plaintiffs employment. 3 Defendants dispute Plaintiffs assertion that there was systematic conduct, but do not dispute that Plaintiff believed there was. (Defs.' Reply to Mot for Partial Summ. J. (Reply), Response to Pl's Statement of Fact (Resp. to Pl.'s Facts) if 14, ECF No. 109.) The trnth or falsity of Plaintiffs misconduct allegations is not material to the Court's decision. 4 For the majority of Plaintiffs tennination process, Schwemmer was the acting police chief, however, she was recused from all disciplinary matters involving officers in the Plaintiffs unit as she had previously supervised the unit. (Facts iii! 35-36.) 6 (Facts if 37; Opp'n, Response to Defs.' Statement of Facts (Resp. to Facts) if 37; Pl.'s Facts if 35.) In both of these letters, Marx sustained the following policy violations by Plaintiff: (1) 804.3 Property Handling; (2) 804.3 .1 Property Booking Procedure; (3) 804.2.2 Packaging Narcotics; (4) 340.3.5 Performance; (5) 900.7 Handling of Prisoner's Property; and (6) 340.3.5(e) Insubordination (Disciplinary Letter, ECF No. 86-6; Draft Disciplinary Letter, ECF No. 109-4.) Moreover, in both of the disciplinary letters provided by Marx to Pyle, Marx included language stating, "I find your conduct completely unacceptable. You have brought dishonor to the Police Department and the City which has undennined the public's trust of the Police Department." (Disciplinary Letter, ECF No. 86-6, at 7; Draft Disciplinary Letter, ECF No. 109-4, at 7.) Marx felt that administrative leave was the appropriate level of discipline, however, city administration, including Pyle, elected to terminate Plaintiffs employment. (Facts iii! 37-38; Resp. to Facts ir 37.) 5 Plaintiff was given two pre-termination hearings where he was given an opportunity "to present his side of the story." (Facts iii! 1-4.) These were the April 4, 2013 hearing with Quinlan, and the August 30, 2013 hearing with Marx. (Id.) The copies of the transcripts of these 5 Significantly, Plaintiff admits that Pyle, as the City's chief executive officer, had authority to terminate employees, but Plaintiff maintained that Pyle's exercise of this authority was somehow wrongful and deprived Plaintiff of pre-termination procedural due process. See Opp'n at 34, 36. In addition, the tennination letter issued to Plaintiff expressly stated, "With the concurrence of City Manager, Wayne Pyle, I am terminating your employment effective immediately." (Disciplinary Letter, ECF No. 86-6, at 7.) 7 two hearings (which Plaintiff submitted in his opposition to Defendants' summary judgment motion) are 40 and 74 pages in length, respectively, and they also show that Plaintiff was represented by an attorney at each of these hearings. (ECF Nos. 104-9, 104-11.) On or about September 12, 2013, Plaintiff was infonned that his employment was being terminated and that he had the right to appeal his termination. (Facts ii 5; Pl.'s Facts ii 37.) Plaintiff appealed his termination to the CSC, which was later replaced by Administrative Law Judge Melinda Hibbert. (Facts ii 6.) In June 2015, Plaintiff prevailed on his post tennination appeal by means of an order by Administrative Law Judge Hibbert wherein Plaintiffs termination appeal was dismissed and Plaintiff was reinstated as a police officer with the City. (Id. ii 7.) Subsequently, after negotiations between the parties, the City and Plaintiff stipulated to a final judgment pursuant to Utah Code Ann. § 10-3-1106(5)(b) dated June 8, 2015, whereby Plaintiff received $88, 190.54 in lost salary6 and a contribution of $32,832.82 to his retirement account, and Plaintiff voluntarily resigned his employment with the City. (Id. ii 8.) Plaintiff never appealed the result of his termination appeal process to the courts. (Id. ii 14.) Retaliatory Prosecution On March 27-28, 2013, the investigators from the City presented the facts and evidence of the Willard Shooting to the DA's Office. (Id. ii 67.) In addition to the two-day presentation of evidence, the joint investigation team compiled a case report containing the entire evidence, which was provided to a separate prosecution team at the DA's Office. (Id. ii 69.) Following this presentation of evidence to the DA's Office, it was the DA's Office's responsibility to 6 The actual lost salary amount was $127,254.54, but it was offset by Plaintiffs other earnings during the relevant time period of $39,064.00. The lost salary award included $14,513.48 in lost personal time off; $7,748.47 for lost holiday pay; $3,027.31 for lost overtime pay. 8 ··-··---·-·- --··-------··---·--- determine whether the shooting was justified or unjustified. (Id. if 71.) On August 8, 2013, the DA's Office made the decision that the shooting was unjustified, and provided its conclusions to the City in a detailed 40-page letter. (Id. if 73; Unjustified Shooting Letter, ECF No. 86-29.) When asked about the decision to file charges against Plaintiff, several witnesses from the DA's Office unequivocally asserted that it was the DA's Office's decision. (See Watrous Deposition, ECF No. 86-25, at 60:4-6; Knighton Deposition, ECF No. 86-28, at 47:6-48:5; Nakamura Deposition, ECF No. 86-27, at 76:1-3.) Blake Nakamura (Nakamura), the lead prosecutor on Plaintiffs criminal case also testified that under law and applicable ethical rules, the DA's Office only brings charges when they believe charges are warranted. (Nakamura Deposition, ECF No. 86-27, at 75:7-21.) Subsequently, the DA's Office drafted the probable cause statement without any input from the City. (Facts if 81; Resp. to Facts if 81.) On June 17, 2014, Blake Nakamura (Nakamura), the lead prosecutor on Plaintiffs criminal case, emailed Mike Christenson (Christenson), the Sergeant over Investigations at the police department to have either Chris Dowland or Greco sign the Infonnation. (Facts iii! 82-83). Subsequently, Greco was identified as the declarant for the Information and signed the Information, even though Greco did not believe there was probable cause for the criminal charge. 7 (Id. if 84; Resp. to Facts if 84; Pl.'s Facts if 60.) The DA's Office could have had other individuals, including Detective Chris Kotrodimos (Kotrodimos) from the Salt Lake County Police Department, sign the Information. (Facts if 86.) Nakamura, as the lead prosecutor, also signed the Infonnation, indicating that it 7 Defendants dispute Plaintiff's characterization that Greco did not believe there was probable cause for the criminal charges as being a legal conclusion. (Resp. to Pl.'s Facts if 45.) Defendants' response is well-taken, however, such a distinction is not material to the Court's decision. 9 - ------·-------------------------------- was autho!ized for presentment and filing. (Id. 'if 88.) On Jtme 19, 2014, the DA's Office charged Plaintiff with a Count of Felony II Manslaughter. (Id. 'if 75; Pl.'s Facts 'if 65.) Only the DA's Office had the ability to file charges against Plaintiff (Resp. to Facts 'if 76.) On October 6-8, 2014, Judge Dever held a three-day preliminary hearing to determine whether there was probable cause for the Manslaughter charge. (Pl.'s Facts ir· 68.) At the preliminary hearing, David Greco testified that Shaun was in a pinch point when he discharged his weapon, and upon that basis, Judge Dever dismissed the case for lack of probable cause. (Id. 'if 69.) DISCUSSION I. SUMMARY JUDGMENT IS WARRANTED ON ALL CLAIMS BROUGHT AGAINST THE INDIVIDUAL DEFENDANTS IN THEIR OFFICIAL CAPA CITY. Plaintiff purported to bring all of his claims against the Individual Defendants in both their "personal and official capacities." See Amended Complaint at 'if'il 7-14. Defendants argued that all of Plaintiffs claims should be dismissed against the Individual Defendants in their official capacities because "state officials 'acting in their official capacities' are outside the class of 'persons' subject to liability under ... 42 U.S.C. § 1983." See, e.g., Hafer v. Melo, 502 U.S. 21,22-23 (1991); Willv. Michigan Dept. ofStatePolice,491U.S.58, 71 (1989). Accordingly, based on Plaintiffs acquiescence and the controlling law, summary judgment is granted on each of Plaintiffs claims against the Individual Defendants in their official capacities. II. SUMMARY JUDGMENT IS WARRANTED ON PLAINTIFF'S SECOND CAUSE OF ACTION FOR VIOLATION OF PLAINTIFF'S DUE PROCESS RIGHTS. The Court grants summary judgment in favor of the City and Pyle under 42 U.S.C. § 10 1983 for violation of Plaintiff's right to procedural due process, based on the following independent grounds. A. Plaintiff Prevailed on His Post-Termination Appeal. Following the alleged deprivation of Plaintiff's procedural due process preceding his termination, Plaintiff exercised his appeal rights and ultimately prevailed during his posttennination process. As a result, Plaintiff was reinstated, and then resigned his employment with the City after negotiating the City's a payment to him of $88,190.54 in lost salary, including $14,513.48 in lost personal time off; $7,748.47 for lost holiday pay; and $3,027.31 for lost overtime pay, as well as a contribution of $32,832.82 to Plaintiff's retirement account. This was a stipulated amount designed to make Plaintiff whole for the tennination of his employment. Although the parties included boilerplate language that they did not waive any rights, this did not give Plaintiff grounds to renegotiate the settlement of his termination appeal by seeking additional benefits. See Happy Camper Management, LLC v. Ament, 2016 WL 8259516, at *5 (D.N.M. Sept. 27, 2016) ("[N]or can the Court go back in time and rewrite the settlement tenns to include language that was not considered and agreed to by the parties."). Plaintiff has not cited any cases (and the Court is not aware of any) where a Plaintiff prevailed on his termination appeal, stipulated to an amount, and then still was able to recover additional damages for the alleged violation of his procedural due process rights based on the same events. Additionally, Plaintiff's allegations before this Court regarding his deprivation of procedural process due process are the same allegations that justified his appeal of his tennination. B. Plaintiff Has Not Been Deprived of His Procedural Due Process Rights. Given the manner in which Plaintiff narrowed his claim in response to Defendants' 11 summary judgment motion, he has limited his procedural due process claim to a claim that he was deprived of appropriate pre-termination due process based on Pyle's participation in the termination decision. Regardless of who tenninated Plaintiff, however, the undisputed facts establish that Plaintiff was not deprived of his procedural due process rights. The three essential elements of pre-termination process are "(1) 'oral or written notice [to the employee] of the charges against him;' (2) 'an explanation of the employer's evidence and [3] an opportunity [for the employee] to present his side of the story."' Montgomery v. City of Ardmore, 365 F.3d 926, 936 (10th Cir. 2004). Prior to being tenninated Plaintiff was given two pre-tennination hearings where he was given an opportunity "to present his side of the story." Montgomery v. City ofArdmore, 365 F.3d at 936. The transcripts of these hearings which are 40 and 74 pages in length, respectively, and show that Plaintiff was represented by an attorney at both hearings. See Hearing Transcripts (ECF Nos. 104-9, 104-11 ). Plaintiff did not argue that these hearings were inadequate and the Court finds from the undisputed facts that they were adequate. This is all that was required of procedural due process in this case. Plaintiffs sole complaint is that Pyle ordered Marx to tenninate Plaintiffs employment despite that Marx felt that administrative leave was the appropriate action. Significantly, there is no dispute that Marx adjudicated the facts of Plaintiffs IA and determined that Plaintiffs serious policy violations occurred and that they warranted discipline. 8 See Notice of Disciplinary 8 Marx sustained the following serious policy violations: (1) 804.3 Property Handling; (2) 804.3 .1 Property Booking Procedure; (3) 804.2.2 Packaging Narcotics; 12 Decision (ECF No. 86-6) at 7. In both of the disciplinary letters provided by Marx to Pyle, Marx included language stating, "I find your conduct completely tmacceptable. You have brought dishonor to the Police Department and the City which has undennined the public's trnst of the Police Department." See id.; Draft Disciplinary Letter (ECF No. 109-4) at 7. Plaintiff also admits that Pyle had authority to tenninate as the chief executive officer of the City. Opp'n at 34, 36; see also Utah Code Ann.§ 10-3-1224 (2007) (describing the City Manager as the "chief executive officer of the municipality."). Plaintiff has not cited any authority, and the Court is not aware of any, that precludes a City Manager, as the City's chief executive officer, from providing input into a disciplinary decision that affects his city. 9 The Court is also persuaded by Qualls v. City ofPiedmont, 2016 WL 6078356, at *4-6 (W.D. Okla. 2016) (unpublished), which considered a factually analogous case to this one. In Qualls, the plaintiff "received before termination all of the procedural protections that the Due Process Clause requires, namely, notice of the recommended decision and an opportunity to respond and present his side of the story. He was represented by counsel, and permitted to fully explain his actions." Id. at *5. In the words of the district court, the plaintiffs "only criticism of the pre-tennination hearing is that it lacked a neutral decision maker. Plaintiff argues that the (4) 340.3.5 Performance; (5) 900.7 Handling of Prisoner's Property; and (6) 340.3.5(e) Insubordination See Notice of Disciplinary Decision (ECF No. 86-6). 9 Plaintiff cites Lucas v. Murray City Civ. Serv. Comm 'n, 949 P .2d 746 (Utah Ct. App. 1997) and Kelly v. Salt Lake Civil Serv. Comm 'n, 8 P .3d 1048, 1054 (Utah Ct. App. 2000) regarding discretion given to the police chief to administer discipline. See Opp'n at 34. However, neither of these cases requires the Chief to be the only one to participate in the disciplinary process, and neither establishes that involvement of city administration constitutes a constitutional violation. See generally Lucas, 949 P.2d 746; Kelly, 8 P.3d 1048. \ 13 'hearing officer' ... had already prejudged his case." Id. In responding to this argument, the court stated that "Plaintiff presents no legal authority, however, for the proposition that a pretermination hearing must be conducted by a neutral person with no prior involvement in the case. In fact, this argument is contrary to Tenth Circuit case law . . . and, therefore, is rejected by the Court." ld. 10 Accordingly, it was not a deprivation of due process for Pyle to allegedly determine that Plaintiffs policy violations warranted termination of Plaintiffs employment with the City. As Plaintiff received all the due process to which he was entitled, summary judgment is warranted on Plaintiffs procedural due process claim. III. SUMMARY JUDGMENT IS WARRANTED ON PLAINTIFF'S FIFTH CAUSE OF ACTION FOR RETALIATORY PROSECUTION. A retaliatory prosecution claim requires Plaintiff to "plead and prove (1) that [he] was engaged in a constitutionally protected activity; (2) that a defendant's action caused [him] to suffer an injury that would chill a person of ordinary finnness from continuing to engage in that activity; and (3) that a defendant's action was substantially motivated as a response to [Plaintiffs] exercise of [his] First Amendment speech rights." Becker v. Kroll, 494 F.3d 904, 925 (10th Cir. 2007). 11 Because Defendants were not the prosecuting entity, Plaintiff has the additional burden to "show that the nonprosecuting official acted in retaliation, and must also show that he induced the prosecutor to bring charges that would not have been initiated without his urging." Hartman v. Moore, 547 U.S. 250, 262 (2006) (emphasis added). 10 Unlike Qualls, there is no dispute in the present case that Marx, who conducted Plaintiffs pretennination hearing, was a neutral adjudicator of the facts. 11 Plaintiff must also prove the absence of probable cause. However, Defendants concede that there are at least factual disputes as to this element. 14 As.an initial matter, the Court addresses Plaintiffs assertion that he can establish a retaliatory prosecution claim by "participation." There is no such thing as a claim of "participation" under a retaliatory prosecution claim. The case that Plaintiff cites to support the existence and elements of"participation" is Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004). Opp 'n at 37, 41. However, the claim in Pierce is not "participation," but malicious prosecution. 359 F.3d at 1291. Similariy, Plaintiff's reliance on Wolford v. Lasater, 78 F.3d 484 (10th Cir. 1996), is misplaced as that case also is for a claim for malicious prosecution, not retaliatory prosecution. See Opp'n at 40; Wolford, 78 F.3d at 489. Retaliatory prosecution and malicious prosecution are distinct and separate legal theories of liability. As established by Pierce, the tort of malicious prosecution tort has five elements: (1) initiating (or participating in) the action; (2) termination of the action in favor of the plaintiff; (3) no probable cause; (4) malice; and (5) damages. 359 F.3d at 1286, 1291-97. In contrast, the elements of a claim for retaliatory prosecution are "(1) that [he] was engaged in a constitutionally protected activity; (2) that a defendant's action caused [him] to suffer an injury that would chill a person of ordinary finnness from continuing to engage in that activity; and (3) that a defendant's action was substantially motivated as a response to [his] exercise of [his] First Amendment speech rights." Becker v. Kroll, 494 F.3d 904, 925 (10th Cir. 2007). 12 Plaintiff does not have a claim for malicious prosecution in this case. Plaintiff expressly filed the amended complaint alleging a "42 U.S.C. Violation due to Retaliatory Prosecution to Deter Cowley's First Amendment Rights." Am. Compl. (ECF No. 22) at 19 (emphasis added). 12 Additionally, where Defendants did not actually bring the charges, Plaintiff "must show that the nonprosecuting official acted in retaliation, and must also show that he induced the prosecutor to bring charges that would not have been initiated without his urging." Hartman v. Moore, 547 U.S. 250, 262 (2006). 15 Plaintiff previously had asserted a malicious prosecution claim in his original complaint, but expressly dropped it when he amended his Complaint. Allowing Plaintiff to pursue a malicious prosecution claim to attempt to defeat Defendants' summary judgment motion would be unjust and prejudicial to Defendants, and inconsistent with Plaintiff's claims in his amended complaint. Accordingly, the Court will only analyze Plaintiff's retaliatory prosecution claim as pled. The Court grants summary judgment in favor of the City and Pyle under 42 U.S.C. § 1983 for retaliatory prosecution, based on the following independent grounds. A. The DA's Office Determined that Charges Were Warranted. The criminal justice system provides the government "broad discretion as to whom to prosecute." Wayte v. US., 470 U.S. 598, 607 (1985). Furthennore, the "presumptibn that a prosecutor has legitimate grounds for the action he takes is one that we do not lightly discard, given our position that judicial intrnsion into executive discretion of such high order should be minimal." Hartman v. Moore, 547 U.S. 250, 262 (2006). Accordingly, to overcome this "presumption ofregularity," and hold a nonprosecuting official liable for the decisions of the prosecuting official, a plaintiff must "show that [the nonprosecuting official] induced the prosecutor to bring charges that would not have been initiated without his urging." Hartman v. Moore, 547 U.S. 250, 262 (2006). Plaintiff has failed to raise any issues of fact as to this necessary link between Defendants and the DA's Office's decision to press charges. The record shows that the DA's Office was involved in the case from the beginning. Immediately following the shooting on November 2, 2012, protocol was invoked to create a joint investigation between the City and the DA's Office. The investigators completed their investigation and presented their findings to the DA's Office 16 on March 27-28, 2013, including a case report, containing the entire evidence, which was provided to a separate prosecution team at the DA's Office. Months later, on August 8, 2013, the DA's Office made the decision that the shooting was unjustified, and provided its conclusions to the City in a detailed 40-page letter. This letter demonstrates that, at that point, the DA's Office was concerned about what appeared to be an unjustified shooting. Plaintiff has not asserted or provided any evidence that the City urged or induced the DA's Office to determine that the shooting was not justified. 13 At this point, the DA' s Office had the responsibility to detennine whether charges were warranted against Plaintiff. As discussed above, Plaintiff has narrowed his retaliatory prosecution claim to focus solely on Greco's signing of the Information. The record is clear that the DA's Office drafted the Information without any assistance from Greco or the City. Additionally, the record shows that at the time that Greco was asked to sign the Information, the DA's Office had already determined to file charges and had drafted the Information. On June 17, 2014, only two days before filing charges against Plaintiff, Nakamura, the lead prosecutor on Plaintiffs criminal case, emailed Christenson to have either Chris Dowland or Greco sign the Information. Greco ultimately was chosen to sign the Infonnation. There is no evidence in the record that he urged or otherwise induced the DA's Office to file charges. This is further evidenced by Nakamura's signature on the Information, indicating that it was authorized for presentment and filing. Only the DA's Office had the ability to file charges against Plaintiff. 13 Although not necessary to prove a retaliatory prosecution claim, the fact that the DA's Office independently detennined that the shooting was unjustified strongly suggests that the DA's Office's subsequent decision to file charges was also an independent decision based on the DA's Office's prior findings as to the unjustified nature of the shooting. 17 Plaintiff has asserted that Greco was part of a panel that considered bringing charges against Plaintiff, and that this alleged role establishes the necessary link between Defendants and the DA's Office's decision to file charges against Plaintiff. The record shows that on April 10, 2014, Nakamura invited Greco, Dowland and Christenson to attend a meeting to determine what and who to charge in the Willard shooting. However, prior to the scheduled meeting, the City determined that West Valley City would not participate in the meeting. 14 Plaintiff asserts that the City subsequently reversed its practice and a later meeting occurred where Greco participated in the final review and charging decision. Pl.'s Facts iJ 50. However, this fact is not borne out by I the record before the Court. Viewing the evidence in the light most favorable to Plaintiff, Greco was part of a panel of police officers who met with the DA's Office in October 2013, about six months before the April 15, 2014 meeting to determine what and who to charge in the Willard shooting and about eight months before the DA's Office filed charges against Plaintiff. See Nakamura Deposition (ECF No. 86-27) at 73:1-19. The panel, including Greco, recommended filing criminal charges. Nakamura Deposition (ECF No. 104-13) at 42:2-43:8. The Court finds this evidence to be too vague and remote in time for Plaintiffs claim of retaliatory prosecution to survive summary judgment. Even if Greco recommended in October 2013 that the DA's Office file criminal charges against Plaintiff, the record shows that as of April 2014, the DA's Office still had not determined what and who to charge, and held a meeting (without the City present) to 14 Plaintiff insinuates that Christenson may still have participated in the meeting as he was not specifically listed in the email regarding having the City's employees not attend the meeting. However, Plaintiff has provided no admissible evidence to establish or suggest this fact, and speculation about what could have happened is not sufficient to defeat summary judgment. See Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988) ("In a response to a motion for summary judgment, a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial."). 18 discuss this decision. Plaintiff has provided no other factual disputes that would show that Greco urged or induced the DA's Office to bring criminal charges against Plaintiff, and cam1ot survive summary judgment based on speculative assertions that Greco was more involved in the decision than the record suggests. See Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). To establish municipal liability against the City, Plaintiff also has the burden to show that the damage was caused by action taken pursuant to an official municipal policy or under a decision by a municipal policymaker. See Monell v. Dept. of Social Servs., 436 U.S. 658 (1978). However, Plaintiff admits that he "lacks direct evidence to establish this municipal practice." Opp'n at 47. "In a response to a motion for summary judgment, a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will tum up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Plaintiff argues that "the indirect evidence suggests involvement by WVC policy makers, either Pyle or Russo," but Plaintiff cites nothing to support such a claim and such speculation cannot defeat summary judgment. See id. B. The Alleged Retaliation Was Not Substantially Motivated as a Response to Plaintiff's Exercise of His First Amendment Rights. Even if Plaintiff could show that Greco urged or induced the DA's Office to file charges against Plaintiff, he has provided no evidence that Greco acted in retaliation for Plaintiff's exercise of his First Amendment rights. 15 On March 4, 2013, the City conducted an IA interview with Plaintiff where Plaintiff disclosed systematic misconduct within the NNU. Plaintiff asserts 15 In his amended complaint, Plaintiff asserted a First Amendment retaliation claim based on his alleged right to associate with the City and his right to free speech. However, Plaintiff did not address his right to associate as a basis for his retaliatory prosecution claim in his opposition memorandum or at the hearing, and the Court finds that that basis has been abandoned. 19 that Defendants retaliated against him because he disclosed this systematic misconduct, which brought negative publicity and hann to the City. In briefing, Plaintiff relied solely on the lack of probable cause for his prosecution to establish retaliatory intent on the part of the City. However, under Hartman v. Moore, 547 U.S. 250 (2006), lack of probable cause is not sufficient. As the Court stated: a retaliatory motive on the part of an official urging prosecution combined with an absence ofprobable cause supporting the prosecutor's decision to go forward are reasonable grounds to suspend the presumption of regularity behind the charging decision, and enough for a prima facie inference that the unconstitutionally motivated inducement infected the prosecutor's decision to bring the charge. Id. at 265 (emphasis added) (internal citation omitted). As Hartman makes clear, a plaintiff must show both "retaliatory motive on the part of the official urging prosecution" and lack of probable cause to infer retaliatory motive from the prosecutor. Hartman does not allow Plaintiff to bypass the retaliatory motive element of the official. Plaintiff has not established his burden to show sufficient evidence of retaliatory intent on the part of Defendants to survive summary judgment. Plaintiffs retaliatory prosecution is based on Greco' s actions in signing the Information when he believed the shooting was justified. Accordingly, Plaintiff must show that Greco had a retaliatory motive when he acted. Plaintiff concedes that he has no evidence that Greco was aware of Plaintiffs protected speech. See Opp'n 39-40. Plaintiff has also provided no evidence that Greco was not personally motivated by a desire to retaliate against Plaintiff for his speech. See id. Plaintiff tries to make the necessary link to retaliatory motive by arguing that Greco acted under the instructions of the City. Opp'n at 39-40. While other Circuits have recognized that retaliatory motive can come from a supervisor, the Plaintiff is still required to show that "the 20 superior intended to retaliate but only that the subordinate knowingly participated in the acts of the superior." King v. Zamiara, 680 F.3d 686, 696 (6th Cir. 2012) (emphasis added). Therefore, under Plaintiffs theory of the case, he would be required to show that the City intended to retaliate against Plaintiff when it offered Greco to sign the Information. The record is devoid of evidence that the City offered (or ordered) Greco to sign the Information in retaliation for Plaintiffs alleged protected speech and speculation as to potential retaliatory motive is not sufficient to defeat summary judgment. See Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). C. The District Attorney's Office Would Have Filed Criminal Charges Regardless of Any Urging by Defendants. Plaintiff has the burden to show that Defendants "induced the prosecutor to bring charges that would not have been initiated without his urging." Hartman v. Moore, 547 U.S. 250, 262 (2006). Plaintiff has provided no evidence that the DA's Office would not have filed charges even if Greco had not signed the Infonnation. Plaintiff has admitted that the DA's Office could have gotten Detective Kotrodimos from the Salt Lake County Police Department to sign the probable cause statement. 16 It was Kotrodimos' opinion, which figured prominently in the Information, that Plaintiffs "actions contradicted police use of force standards and that he was not in a justifiable position where the threat of death or serious bodily injury was imminent to himself or others," or in other words, that Plaintiff "acted recklessly when compared to typical training and perfonnance standards." 16 The record also suggests that Dowland could have signed the Information, as Nakamura asked for either Greco or Dowland to sign it. While the availability of Dowland would not necessarily absolve the City ofliability, it does absolve Greco ofliability as it cannot be disputed that charges still would have been brought without Greco's involvement. 21 Information (ECF No. 86-30) at 4. Beyond Kotrodimos, Plaintiff has failed to raise a fact issue that others could have signed the Infonnation. Plaintiff speculates that the DA was having issues finding someone to sign the Information, but the record shows only that others (principally Knighton) were not offered the chance to sign the Information, not that they refused to sign it. See Opp'n at 46. Assumption and speculation are insufficient to defeat summary judgment. See Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). CONCLUSION For the foregoing reasons, the Court GRANTS Defendants' Motion for Partial Summary Judgment. . 'LI..) DATED this _Li.Clay of March, 2018. BY THE COURT: 22
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