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Swasey v. West Valley City

United States District Court, D. Utah, Central Division

April 6, 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 DENYING MOTION FOR RECONSIDERATION

          David Nuffer United States District Judge

         Plaintiffs Danielle Swasey; D.S., by and through her Guardian ad Litem, Danielle Swasey; Dante Ketchens; and D.K., by and through his Guardian ad Litem, Dante Ketchens, (collectively “Plaintiffs”) move for reconsideration (“Motion for Reconsideration”)[1]of a memorandum decision and order entered on January 11, 2017 which granted West Valley City's and Thayle Nielsen's (collectively, “Municipal Defendants”) motion for summary judgment as to the second cause of action (“Order”).[2] The Municipal Defendants oppose the Motion for Reconsideration (“Opposition”).[3] Plaintiffs did not file a reply in support of the Motion for Reconsideration.

         BACKGROUND

         Plaintiffs filed an Amended Complaint containing five causes of action.[4] The second cause of action was asserted against West Valley City for “Violation of Civil Rights 42 U.S.C. § 1983 - Monell[.]”[5] The Municipal Defendants moved for summary judgment on the second cause of action (“Motion for Summary Judgment”).[6] Plaintiffs opposed the Motion for Summary Judgment, [7] and the Municipal Defendants filed a reply in support (“Reply Memorandum”).[8]

         Part I A of the Reply Memorandum argued that “[t]he case at bar is not about-and has never been about-falsified probable cause” because “probable cause was validly obtained when a confidential informant told Detective Salmon that Ketchens transported marijuana from his house to his barbershop on a regular basis.”[9] The Reply Memorandum asserted that “[t]hese facts have never been disputed.”[10]

         Part I A of the Reply Memorandum also explained that when Ketchens was stopped, he “immediately told the Officer Defendants that he had marijuana in his car and told them ‘exactly' where it was.'”[11] Part I A of the Reply Memorandum continued: “The tip from a confidential informant, combined with the Plaintiff's own admission of criminal possession, established valid probable cause to search Ketchens' person, vehicle and home.”[12] Part I A of the Reply Memorandum further asserted that “Plaintiffs have never disputed the validity of the Officer Defendants' probable cause to search the Plaintiffs' vehicles, home and persons.”[13]

         Because the Reply Memorandum made assertions that Plaintiffs had “never disputed” probable cause, the Plaintiffs were asked to file a sur-reply “responding to Part I A of the Reply Memorandum, including the facts and legal issues raised in that section.”[14] The Plaintiffs were specifically directed that “[t]he sur reply should contain any dispute to factual content contained in docket no. 108-5.[15] Docket no. 108-5 includes incident reports from police officers who were involved in the events at issue on August 15, 2012.[16]

         Plaintiffs' sur-reply did not specifically refute the factual content contained in the incident reports from police officers in docket no. 108-5. The Plaintiffs did not challenge the Municipal Defendants' assertion that probable cause with respect to Ketchens was “never disputed.” The Plaintiffs failed to dispute the facts underlying the probable cause arguments in Part I A of the Reply Memorandum, such as the admission by Ketchens that he was in possession of marijuana. Instead, the Plaintiffs' sur-reply largely restated the positions taken in the Opposition to the Motion for Summary Judgment that had already been filed.[17]

         After considering all the materials submitted, the Motion for Summary Judgment was granted. The Order concluded that:

It is undisputed that there was probable cause to conduct a search based on statements Plaintiff Ketchens made to the police. . . . Plaintiffs have not argued that the arrest was made without probable cause. Indeed, a review of the record shows that there can be no genuine dispute about whether Ketchens was validly arrested with probable cause. A confidential informant had indicated that Ketchens was in possession of illegal drugs and a handgun, Ketchens committed at least one moving traffic violation, initially refused to pull over during officers' attempts to stop him, openly admitted to possession of marijuana and also to possession of a weapon despite knowing this was impermissible because he was a convicted felon. Accordingly, there was probable cause to arrest Ketchens, and then to conduct searches pursuant to that arrest. . . .
In addition, Ketchens gave consent to search his vehicle and the house. Plaintiffs' Sur-Reply does not dispute any of the facts involving consent. Ketchens said that the officers were welcome to go back to the house and check for drugs when Officer Salmon asked Ketchens if he had any more drugs back at the house. Ketchens's invitation for officers to return to the house allowed the police the opportunity to accompany him back to the home, where he opened the door for them to enter. . . .[18]

         DISCUSSION

         The Plaintiffs move for reconsideration of the Order. To the extent that motions to reconsider are recognized, they are disfavored.[19] “Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.”[20]

         Plaintiffs base their Motion for Reconsideration on two arguments. First, they argue that the Order is based on arguments that the Municipal Defendants did not make.[21] Second, they argue that the Order is erroneous because it concludes that “the officers did not conduct the search under the purported authority of the forged consent-to-search form, but rather as a search incident to a lawful arrest for drug possession and based on verbal consent.”[22] Both of these arguments are incorrect.

         The Municipal Defendants Raised Arguments Regarding Causation

         The Plaintiffs argue that the “Municipal Defendants did not argue that Plaintiffs' Monell claim should be dismissed for lack of causation because (1) there was not a triable issue as to whether the NNU [Neighborhood Narcotics Unit of West Valley City Police Department] had probable cause to search, or (2) Mr. Ketchens verbally consented to the search of his home.”[23]

         Part I A of the Reply Memorandum directly asserted that “[t]he case at bar is not about- and has never been about-falsified probable cause” because “probable cause was validly obtained when a confidential informant told Detective Salmon that Ketchens transported marijuana from his house to his barbershop on a regular basis.”[24] The Reply Memorandum asserted that “[t]hese facts have never been disputed.”[25] Thus, the Plaintiffs are incorrect that the Municipal Defendants did not raise the argument that “(1) there was not a triable issue as to whether the NNU had probable cause to search[.]”[26] The Plaintiffs were expressly given an opportunity to file a sur-reply on these very arguments and to challenge the underlying facts.

         The Plaintiffs are also incorrect that the Municipal Defendants did not raise the argument that “(2) Mr. Ketchens verbally consented to the search of his home.”[27] Part I A of the Reply Memorandum directly asserted that there was “probable cause to search Ketchens' person, vehicle and home” based on statements made to the police.[28] Those statements are outlined in the incident reports at docket no. 108-5, in which it is reported that Mr. Ketchens told the police that they “could go back [to the house] and check” for drugs.[29] Docket no. 108-5 also reports that Ketchens led police to the door and “opened the door and invited us [the police] in.”[30] Thus, the argument was raised that Mr. Ketchens consented to search of the home.

         The Plaintiffs present evidence-although not “new” evidence-that Mr. Ketchens stated he did not open the front door, but he did “lead the officer to the front door[.]”[31] This does not change the conclusion that Mr. Ketchens consented to the search. Even if there is a dispute about who physically opened the front door, the Plaintiffs do not dispute that Mr. Ketchens told officers they could go check for drugs at the house and led officers to the front door. Thus, even if the Plaintiffs are correct that there is a dispute about who opened the front door, it is not a dispute that requires reconsideration of the Order. There was probable cause to search the home. Additionally, Mr. Ketchens verbally consented to search of the home.

         The Municipal Defendants Asserted Facts to ...


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