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Katterman v. Salt Lake County

United States District Court, D. Utah, Central Division

March 31, 2017





         Defendants Jared Angell (Officer Angell), Kevin S. Barrett (Officer Barrett), [1] Kyle Gleue (Officer Gleue), Salt Lake County, Unified Police Department of Greater Salt Lake (UPD), and James D. Winder (Chief Winder) move for Summary Judgment.[2] (Defs.' Mot. for Summ. J. & Supp. Mem. (Mot.), ECF No. 55.) Mr. Katterman's original Complaint contains twenty causes of action, including 42 U.S.C. § 1983 constitutional claims, common law claims, statutory claims, and claims based upon the Utah Constitution. (Compl. 2, ECF No. 2.) The parties agreed to dismiss the Sixth, Ninth, Tenth, Twelfth, Fourteenth, Fifteenth, Sixteenth, and Seventeenth Causes of Action. (Order Granting Stipulated Mot. to Dismiss Certain Claims, ECF No. 72.) The parties also agree that no common law claim for negligent failure to investigate exists. (Pl.s' Mem. in Opp'n to Defs.' Mot. for Summ. J. (Opp'n) xlvi-xlvii, ECF No. 57), therefore, the Court dismisses the Eighth Cause of Action with prejudice. Mr. Katterman abandoned his failure to train claim against UPD by not putting forth any argument in defense of it in his Opposition to Summary Judgment. Additionally, Mr. Katterman's counsel, at oral argument, agreed the Eleventh Cause of Action should merge into the Eighteenth Cause of Action for vicarious liability under § 1983. Thus, the Court DISMISSES Mr. Katterman's Eleventh and Twentieth Causes of Action.

         Additionally, during oral argument Mr. Katterman agreed to dismiss Chief Winder from all causes of action. (See also Opp'n 9-10, ECF No. 57 (conceding that discovery has not produced facts necessary to establish supervisory liability claim against Chief Winder).) As a result, the Court DISMISSES Chief Winder. Similarly, Mr. Katterman consented to dismissal of Salt Lake County and Salt Lake County Sheriff from the case because no evidence suggests any involvement of Salt Lake County. (Id. at 11.) Therefore, the Court also DISMISSES Salt Lake County and the Salt Lake County Sheriff. At oral argument, Mr. Katterman's counsel also agreed that the Court may dismiss Officers Gleue and Angell. Therefore, the Court DISMISSES all claims against Officers Gleue and Angell. Furthermore, Mr. Katterman makes no claims regarding any unidentified individuals, that is the John Does 1-15, and the Court DISMISSES claims against them.

         Given these dismissals, only Officer Barrett and UPD remain as Defendants. Officer Barrett and UPD argue none of the remaining claims withstands summary judgment, and even presuming all disputed facts in favor of Mr. Katterman they are entitled to judgment as a matter of law.

         Mr. Katterman makes essentially three claims. First, Mr. Katterman accuses Officer Barrett of violating his Fourth Amendment protection against excessive force when Officer Barrett deployed his police dog, Vortex, to find and seize Mr. Katterman. (Opp'n 4-9, ECF No. 57.) Mr. Katterman seeks damages from Officer Barrett for this violation pursuant to 18 U.S.C. § 1983. (Compl. 22, ECF No. 2.) Mr. Katterman agreed at oral argument that his First, Second, Third, and Fourth Causes of Action merge into this single claim. Second, Mr. Katterman seeks to hold UPD liable for damages, pursuant to 18 U.S.C. § 1983, because it adopted a police dog deployment policy that permitted the unconstitutional seizure of Mr. Katterman. (Opp'n 10-11, ECF No. 57.) Mr. Katterman proceeds under two theories: supervisory and final policy maker liability. (Compl. 42-44, ECF No. 2.) Third, Mr. Katterman argues Officer Barrett and UPD have negligence liability authorized by Utah Code section 18-1-1 for negligently deploying Vortex. (See Opp'n 12-15, ECF No. 57.) As clarified at oral argument, this claim encompasses Mr. Katterman's Fifth, Seventh, and Thirteenth Causes of Action.

         Having carefully considered the parties' memoranda, the record in this case, oral argument, and the law, viewing all facts in the light most favorable to Mr. Katterman, the Court GRANTS Officer Barrett summary judgment on the § 1983 claims against him. The Court will certify the question about Utah Code section 18-1-1 claims against Officer Barrett and UPD to the Utah Supreme Court and thus declines to rule on summary judgment at this time. The Court further GRANTS summary judgment for UPD on the supervisory liability claim and DENIES summary judgment for UPD on the municipal liability claim.


         Courts grant summary judgment when the pleadings, the discovery materials on file, and any affidavits demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Only facts “essential to the proper disposition of a claim” qualify as material. Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011). “‘[W]here the non moving party will bear the burden of proof at trial on a dispositive issue' that party must ‘go beyond the pleadings' and ‘designate specific facts' so as to ‘make a showing sufficient to establish the existence of an element essential to that party's case' in order to survive summary judgment.” McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). When applying the summary judgment standard, “[t]he factual record and reasonable inferences therefrom are viewed in the light most favorable to the [nonmoving] party.” Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998).


         The Court considers the following facts in determining the Motion for Summary Judgment. All facts come from parties' briefings and accompanying exhibits. The undersigned resolves all disputed issues of material fact in favor of Mr. Katterman.

         On May 19, 2012, James Katterman went to a bar in Magna, Utah, had a few drinks, and returned home. (Reply Mem. in Supp. of Defs.' Mot. for Summ. J. (Reply) Undisputed Fact No. 4, ECF No. 63.) Sometime between midnight and 1:00 a.m., then May 20th, Mr. Katterman began arguing with his significant other, Cindy Singley, with whom he lives. (Id. No. 8.) The argument took on some physical dimension. (Id.) Ms. Singley hand-wrote in the Police Report that night, “We had an argument and he put his hands on me and pushed me and tore my shirt and I just wanted the abusive relationship to stop so I called the police.” (Police Report, Exh. 5, ECF No. 56-6; see Reply Undisputed Facts No. 8, ECF No. 63.) At oral argument, counsel for Officer Barrett and UPD acknowledged that no one remembers whether Ms. Singley gave this statement to the Officers before or after the search for Mr. Katterman began. When asked about the statement during her deposition, Ms. Singley stated, “[y]eah, I wrote it, and I don't know why I - I have no idea why I worded it that way because this is the first argument me and James have ever been in, so I have never had an abusive relationship with him, so I don't know why I worded it like that.” (Reply Undisputed Facts No. 8 (quoting Singley Dep. 33-34, Exh. 4, ECF No. 56-5), ECF No. 63.)

         Sometime after the argument began, Ms. Singley left the house and went to the neighbor's house across the street where she called the police. (Id. No. 9.) UPD learned of Ms. Singley's 911 call at approximately 12:47 a.m. (Id. No. 10.) The Officers knew Mr. Katterman did not know Ms. Singley had called the police. (Computer Aided Dispatch Log, Exh. 8, ECF No. 56-9.) Officer Kyle Gleue arrived first and spoke with Ms. Singley. According to Officer Gleue's Declaration, he recalls,

5. When I arrived on scene, I met with Cindy at a neighbor's house. She was in the neighbor's living room and was in tears. I noticed that the neck of her shirt was stretched out and ripped and her neck had some redness on it… .
6. Cindy told me that she and her live-in boyfriend James had gone to a bar. … At home, they started arguing in the living room. Cindy told James she didn't want to deal with this anymore and went into the bedroom where she laid down on the bed. James followed her into the bedroom and climbed on top of her. He with his leg to the side of her and his arm across her neck… .
7. Cindy gave me permission to enter her home … and gave me a set of keys to the house.

(Kyle Gleue Decl., Exh. 6, ECF No. 56-7); see also Reply Undisputed Facts Nos. 8, 11 & Defs.' Resp. to Pl.'s Add'l Undisputed Facts No. 2., ECF No. 63; Singley Dep. 39-40, 43-48, Exh. 4, ECF No. 56-5.)[3] Photographs of Ms. Singley from the night in question show a tear near the collar of Ms. Singley's shirt created by Mr. Katterman and redness on her neck and arm. (Mot. Summ. J. 11-12, ECF No. 56; Reply Undisputed Facts No. 12, ECF No. 63.) UPD dispatched Officer Barrett, a canine officer on duty in Magna, Utah, to the scene. (Reply Undisputed Facts No. 14, ECF No. 63.)

         Officer Barrett became a canine handler in August of 1995 after graduating from the canine program at Utah's Peace Officer Standards and Training (POST). (Id. No. 15.) At POST, Officer Barrett and his dog, Vortex, went through extensive, continual training. (Id.) The pair had been deployed over 130 times, with approximately 10-15% of those deployments resulting in apprehension of a suspect by Vortex. (Id.)

         While en route Officer Barrett used his vehicle's computer, his Mobile Data Terminal (MDT), to identify the suspect as James Katterman. (Id. No. 16.) Officer Barrett's MDT identified Mr. Katterman as a 59-year-old, 260 pound, 6'03” male, with drug abuse problems and alcohol and/or drug addiction, who belongs to the Sundowners motorcycle club/gang, and had an “obstruction of justice court” arrest in 2010. (Id. No. 17 (citing Mot. Summ. J. 13-15, ECF No. 56).) While not shown in the screenshots, Officer Barrett recalls his computer additionally indicated Mr. Katterman had an outstanding warrant in Utah for felony driving under the influence (DUI). (Id. No. 18 (citing Barrett Dep. 155-56, Exh. 7, ECF No. 56-8).) Officer Barrett confirmed the outstanding warrant over the radio at 1:04 a.m. (Id. No. 19.) Officer Barrett also noted a non-extraditable burglary warrant for Mr. Katterman issued in Washington State. (Id. Nos. 18, 25.)

         Arriving at the scene Officer Barrett spoke with Officer Gleue. (Id. No. 21.) Officer Gleue indicated that he believed Mr. Katterman remained inside the home. (Id.) Officer Barrett went to Ms. Singley's house and saw an open back door and door to the freestanding garage nearby. (Id. No. 22.) Officer Barrett observed “quite a few beer bottles strewn about on the [patio] furniture.” (Id. (quoting Barrett Dep. 72, Exh. 7, ECF No. 56-8).) Based on the beer bottles Officer Barrett concluded he “might be dealing with people here who were under the influence of alcohol.” (Id.) Nothing indicated Mr. Katterman had a weapon. (Reply Defs.' Resps. to Pl.s' Add'l Undisputed Facts No. 18, ECF No. 63.)

         After discussing the situation with Officers Gleue and Angell, Officer Barrett then searched the home with Vortex. (Reply Undisputed Facts Nos. 25-26.) Officer Barrett did not find Mr. Katterman in the house and began to search the neighborhood.[4] (Id. Nos. 28, 34-35; Defs.' Resps. to Pl.'s Add'l Undisputed Facts No. 20, ECF No. 63.) While in Ms. Singley's backyard, Officer Barrett and Officer Gleue encountered Brian Tabor, a next-door neighbor. (Reply Undisputed Facts No. 36, ECF No. 63.) Mr. Tabor told the officers he had not seen anyone exit the back door. (Id.) The Officers instructed Mr. Tabor to reenter his home, and Mr. Tabor complied. (Id.) Officer Barrett left the backyard and began searching the neighboring yards and driveways. (Id. No. 37.)

         After circling the block, the Officers passed Mr. Tabor's residence. (Id. No. 38.) Vortex alerted at the foot of the driveway, indicating to the Officers that something further down the driveway interested him. (Id. No. 40.) The Officers saw a red vehicle parked in the driveway, several large bushes near the driveway, and a solid brick wall obstructing the view between Mr. Tabor's property and the adjoining residence to the north. (Id. No. 39.) Officer Barrett did not give any warning before sending Vortex down the driveway. (Id. No. 41.)

         Officer Barrett then let Vortex go down the driveway on leash between the vehicle and the bushes. (Id. Nos. 42-43.) Vortex passed a large bush, went into the bush, and began to pull on something. (Id. No. 44.) Officer Barrett announced, “Come out. Show me your hands. Show me your hands. Come out of the bushes. Show me your hands.” (Id. (quoting Barrett Dep. 89, Exh. 7, ECF No. 56-8).) Vortex apprehended Mr. Katterman by biting his leg; Officer Barrett began to assist Vortex by pulling on the leash. (Id. Nos. 44-45.) Vortex took Mr. Katterman by surprise, and Mr. Katterman tried to get away from the dog who “was chewing [his] leg off.” (Id. No. 47 (quoting Katterman Dep. 91, Exh. 2, ECF No. 56-3).) Once Vortex had Mr. Katterman completely out of the bushes, Officer Barrett saw Mr. Katterman's hands, informed Officer Gleue that Mr. Katterman was unarmed, and instructed Vortex to release. (Id. No. 44.) Vortex had hold of Mr. Katterman's leg for less than one-minute total. (Id. at No. 55.)

         Also relevant to Mr. Katterman's claims: in 2007, UPD expanded the scope of situations in which an officer may deploy a police dog to apprehend a suspect. (Reply Defs.' Resp. to Pl.s' Add'l Undisputed Facts No. 14, ECF No. 63.) Specifically, UPD changed its policy from only allowing dog deployment for violent felonies to all felonies and some Class A misdemeanors, including those that involved violence. (Id.) According to Officer Barrett, this expansion coincided with the switch from a bite and hold technique, where the officer instructs a police dog to find and bite a suspect, to a bark and hold technique, where the officer instructs a police dog to find and bark at a suspect. (Id. (citing Barrett Dep. 42-43, Exh. 2, ECF No. 57-2).) The bark and hold technique does not apply when the officer has a dog on leash. (Id. No. 8 (citing ...

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