United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY
J. FURSE UNITED STATES MAGISTRATE JUDGE
Jared Angell (Officer Angell), Kevin S. Barrett (Officer
Barrett),  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. (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
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.
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.
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.
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
STANDARD OF REVIEW
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).
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.
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.)
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
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.) 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.)
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
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.
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.)
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. (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.)
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.)
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.)
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