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Swasey v. West Valley City

United States District Court, D. Utah, Central Division

January 11, 2017

DANIELLE SWASEY; D. S., BY AND THROUGH HER GUARDIAN AD LITEM, DANIELLE SWASEY; DANTE KETCHENS, D. K., BY AND THROUGH HIS GUARDIAN AD LITEM, DANTE KETCHENS, Plaintiffs,
v.
WEST VALLEY CITY; SHAUN COWLEY; KEVIN SALMON; SEAN MCCARTHY; JOHN COYLE; THAYLE “BUZZ” NIELSEN; and DOES 1-10, Defendants.

          Brooke C. Wells Magistrate Judge.

          MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          David Nuffer United States District Judge.

         Plaintiffs' Amended Complaint contains five causes of action.[1] Plaintiffs' Second Cause of Action arises under 42 U.S.C. § 1983 and Monell v. Department of Social Services.[2] Plaintiffs allege in support of their Second Cause of Action that “Defendant West Valley City maintained official policies and customs that violated citizens' constitutional rights, including those of Plaintiffs.”[3]

         Defendants West Valley City and Thayle Nielsen (“Defendants”) move for summary judgment on Plaintiffs' Second Cause of Action (“Motion”).[4] Plaintiffs oppose the Motion (“Opposition”)[5] and Defendants filed a reply in support of their Motion (“Reply”).[6] Plaintiffs were granted leave to file a sur-reply (“Sur-Reply”), which they filed on January 10, 2017.[7] For the reasons below, the Motion is GRANTED.

         SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[8] A factual dispute is genuine when “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.”[9] In determining whether there is a genuine dispute as to material fact, the court should “view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant.”[10] Here, all factual inferences will be drawn most favorably to Plaintiffs.

         The moving party-here, the Defendants-“bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.”[11] If the Defendants make a prima facie demonstration, Plaintiffs must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the [Plaintiffs].”[12] “To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”[13]

         RELEVANT UNDISPUTED FACTS[14]

         Factual Background[15]

         On August 15, 2015, officers in the West Valley City Police Department received information from a confidential informant that a person by the name of Dante Ketchens was in possession of drugs and a gun. The officers set up surveillance in the area around the residence of Ketchens's girlfriend, Danielle Swasey, where they believed Ketchens was located. When Ketchens left the residence in a vehicle, they followed him. When Ketchens committed a moving traffic violation, officers stopped him and asked for his driver's license. Ketchens said it was in the back in a bag, and said that one of the officers could retrieve it. While retrieving it, the office observed baggies of marijuana in Ketchens's vehicle. The officer asked Ketchens what was in the baggies, and Ketchens admitted it was marijuana.[16]

         The officers then asked Ketchens if he had any more drugs back at the house. Ketchens said no, but that the officers were welcome to go back to his house and check. The officers prepared a consent-to-search form and had Ketchens sign it, although Ketchens claims he never signed any consent to search form.[17] Ketchens escorted officers to the house, and while still in handcuffs from the traffic stop, opened the front door and let the officers in the house.[18]

         Official Policy Facts

         1. Plaintiffs Amended Complaint alleges the Neighborhood Narcotics Unit (“NNU”), a subdivision of the West Valley Police Department, maintained policies and customs resulting in widespread, pervasive wrongdoing and illegal activity, including “[f]orging signatures on consent-to-search forms.”[19]

         2. Plaintiffs Amended Complaint also alleges “the same officers, comprising the NNU, engaged in the identical illegal conduct of using forgeries and making false representations against Plaintiffs as had occurred in other dismissed cases involving similarly-situated individuals whose constitutional rights were violated.” 3. During discovery Plaintiffs provided no evidence of the Municipal Defendants' use of forged documents in other cases.

         4. Plaintiffs Amended Complaint alleges that West Valley City admits to rampant corruption and systemic constitutional violations by its officers, including the forging of consent-to-search forms, etc.

         5. In support of this allegation, Plaintiffs cite to the July 2, 2014 deposition of Wayne Pyle, the CEO and City Manager of West Valley City.

         6. Nowhere in Mr. Pyle's deposition testimony did he admit to knowledge of the use of forged documents or forged consent-to-search forms.

         7. Mr. Pyle was not aware of any alleged wrongdoing with the West Valley City Police Department until the first quarter of 2013, months after the August 15, 2012 search of Plaintiffs' residence.

         8. Plaintiffs have provided no evidence that West Valley City admitted to knowledge of the use of forged “consent to search” forms during discovery in this case or other cases.

         9. West Valley City has also produced logs of all complaints lodged against the officers involved in this case.

         10. Plaintiffs allege that the Municipal Defendants failed to train and supervise their officers.

         11. The Municipal Defendants have provided Plaintiffs detailed training records.

         Causation Facts

         1. Plaintiffs allege Defendants conducted an unlawful and illegal search of Plaintiff Danielle Swasey's home on August 15, 2015.

         2. Plaintiffs contend that the search was unconstitutional because Defendants forged the “consent-to-search” form and conducted an unlawful search of the Swasey home prior to obtaining a search warrant.

         3. The officers who entered the home of Danielle Swasey on August 15, 2012 located a gun in plain sight in Danielle Swasey's bedroom.

         4. The other evidence seized in the home was in plain sight.

         5. The officers then obtained a search warrant for the home.

         6. Seizing firearms and obtaining a search warrant is typical of police work when entering an unsecured location.

         7. Plaintiffs never asked the Defendants to leave the home on August 15, 2002.

         8. Plaintiffs did not see the officers handling or signing any paperwork at the site of the traffic stop or at Danielle Swasey's home.

         9. The complaint logs of the Defendants in this case that were provided to Plaintiffs do not contain any complaints with regard to forged documents.

         State of Mind Facts

         1. Plaintiffs contend that four West Valley City policymakers, including Wayne Pyle, Paul Isaac, Thayle “Buzz” Nielsen and John Coyle, knew of the unlawful activities, including the unlawful activities directed towards the Plaintiffs.

         DISCUSSION

         Municipalities are liable for civil rights violations if the municipality has adopted a policy or custom that violated the plaintiff's constitutional rights.[20] But “[a] municipality is liable only when the official policy [or unofficial custom] is the ‘moving force behind the injury alleged.'”[21]The plaintiff must show that “the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.”[22] Thus, three elements are required to impose liability on a municipality for alleged civil rights violation (“Monell claim”): (1) an official policy or custom; (2) causation (“moving force”); and (3) state of mind (“deliberate indifference”).[23]

         Because Defendants are the movants, it is their burden to make “a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.”[24] Therefore, Defendants must show that the Plaintiffs do not have sufficient evidence to support their claim that West Valley City had an official policy or custom that was the moving force behind their alleged injury, which was enacted with deliberate indifference.[25] If Plaintiffs are able to identify evidence in support of their Monell claim, Defendants' Motion must be denied.

         Official Policy

         “The ‘official policy' requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to actions for which the municipality is actually responsible.”[26] An official policy or custom may take the form of:

(1) a formal regulation or policy statement;
(2) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law;
(3) the decisions of employees with final policymaking authority;
(4) the ratification by such final policymakers of the decisions-and the basis for them-of subordinates to whom authority was delegated subject to these policymakers' review and approval; or
(5) the failure to adequately train or supervise employees, so long as that failure results from “deliberate indifference” to the injuries that may be caused.[27]

         Defendants argue that Plaintiffs “have failed to provide any evidence of an official West Valley City policy, custom or lack of training permitting or acquiescing in the use of forged consent-to-search forms.”[28] Defendants argue that Plaintiffs “base their Monell claims on a well-settled custom or practice [#2], a final decision by a municipal policymaker [#3 and #4], and/or deliberately indifferent training or supervision [#5].”[29]

         Plaintiffs oppose Defendants arguments, but do not specifically state whether they base their “official policy” argument on a formal regulation, an informal custom, decisions of policymakers, ratification of employees' actions by policymakers, or failure to train. Instead, Plaintiffs seem to vaguely suggest that all of the factors apply and that they have generally “produced evidence sufficient to create a triable issue of material fact over whether a policy of fabricating probable cause existed at the NNU.”[30] The unspecific briefing is challenging to decipher as it forces the court to determine on its own whether any of the bases enumerated above apply. This analysis will be performed below, addressing each of the bases under a separate heading.

         Plaintiffs must show what the official policy is-whether the municipality established an official policy (whether adopted formally or through widespread practice) of conducting illegal searches, for example. Defendants attempt to confine Plaintiffs' argument to “[f]orging signatures on consent-to-search forms” as a basis for the Monell claim.[31] Defendants argue that “there is no official West Valley City policy allowing the use of forged consent-to-search forms.”[32] But this focus only on consent-to-search forms is too narrow.

         Defendants are correct that Plaintiffs included “forgery of consent-to-search forms” as a basis for their Monell claim, but Plaintiffs also allege other wrongdoing, including “[p]reparation of false reports to support unconstitutional searches, seizures, deprivations, and arrests.”[33] Thus, Defendants incorrectly attempt to limit Plaintiffs' allegations to just “forgery of consent-to-search forms” when Plaintiffs clearly allege additional wrongdoing. For Defendants' Motion to be successful, Defendants must show that the Plaintiffs do not have sufficient evidence to support their Monell claim under any of the alleged wrongdoing-including “preparation of false reports . . . [, ]” not just “forgery of consent-to-search forms.”

         Also, while Defendants are correct that a prior court order stated that “only the forging of the consent to search form allegation is a mistreatment that is similar to the mistreatment Plaintiffs allegedly received[, ]”[34] this conclusion was reached when analyzing the original Complaint, which has since been amended.[35] The Amended Complaint includes new allegations of wrongful conduct, including the “preparation of false reports to support unconstitutional searches . . . .”[36] If Plaintiffs can identify evidence supporting their claim that West Valley City established an official policy of preparing false reports, forging consent-to-search forms, or any other wrongdoing alleged in the Amended Complaint, and can show that the official policy was enacted with deliberate indifference and was the moving force behind Plaintiffs alleged injuries, Plaintiffs will have successfully defeated Defendants' Motion.

         Thus, the first question is whether West Valley City established an official policy of wrongdoing, such as preparing false reports or forging consent-to-search forms, through a formal regulation, a well-settled informal custom, a final decision by a policymaker, ratification of subordinates' actions by a policymaker, or failure to adequately train or supervise.

         (1) Plaintiffs Do Not Identify Evidence of a Formal Regulation or Policy

         A formal regulation or policy is “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [a municipality's] officers.”[37] Plaintiffs' Amended Complaint does not allege that a formal regulation or policy was enacted by West Valley City that violated their constitutional rights. In fact, the Amended Complaint only alleges that “West Valley City's unconstitutional policies were informal customs that were so widespread and permanent they took the force of law.”[38] The briefing contains no argument regarding formal regulation or policy. Thus, Plaintiffs cannot show the enactment of an “official policy” through formal regulation or policy.

         (2) Plaintiffs Have Identified Evidence of a Well-Settled Informal Custom

         Defendants argue that the only evidence Plaintiffs cite with regard to the establishment of an informal custom is the “deposition of Wayne Pyle, CEO and City Manager of West Valley City.”[39] This is incorrect. Plaintiffs also rely on the testimony of Shaun Cowley to argue that there was widespread tolerance of prevalence of misbehavior within the West Valley Police Department. Cowley described two separate incidents where false search reports were prepared.[40] Accordingly to Cowley, during one incident, Officer Coyle claimed to smell marijuana as a basis for probable cause to conduct a search, but Cowley himself did not smell any marijuana. A search warrant was nevertheless executed. No marijuana was found.[41] During another incident, an officer claimed to have found cash in “plain view” when in fact he had discovered it after opening a closed drawer.[42] Cowley stated there were “multiple occasions” where West Valley Police Department engaged in this type of behavior and fabricated probable cause or generated false reports.[43]

         Defendants reply that the acts described by Cowley “are not similar to the violation allegedly suffered by the Plaintiffs-the forgery of a consent to search form-and they cannot establish a ‘custom' under Monell.”[44] But Defendants' analysis is flawed. Similarity of the alleged acts is a causation question, not an official policy question. Defendants are correct that Plaintiffs must establish causation to have a valid Monell claim, but Defendants are incorrect that to establish a “custom, ” the acts described by Cowley must be similar to the violation allegedly suffered by Plaintiffs. The determination of whether a municipality has established an “official policy” by informal custom is dependent on whether a municipality has “an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law[.]”[45]

         Defendants do not argue that the events described by Cowley did not happen or that there were not “multiple occasions” where West Valley Police Department fabricated probable cause, as Cowley described.[46] Thus, it must be presumed for this motion that the acts described by Cowley are true. That means there were “multiple occurrences” where the West Valley City Policy Department fabricated probable cause or generated false reports to substantiate searches. On the facts of this motion, this behavior was adopted and sanctioned by at least Coyle, who was in a position of authority within the Department.[47] For purposes of this motion, and viewing the factual record in the light most favorable to the Plaintiffs, this shows a “widespread practice” that is “permanent and well settled” ...


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