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Robbins v. Merrell

United States District Court, D. Utah, Central Division

May 1, 2017

GALE ROBBINS, Plaintiff,
JEFF MERRELL, a Uintah County Sheriff, in his individual and official capacities; JOE McKEA, in his individual an official capacities; DAVID FAIREY, a Uintah Country Deputy Sheriff, in his individual and official capacities; UINTAH COUNTRY and JOHN DOES 1-5; Defendants.


          Dustin B. Pead Magistrate Judge.


         The parties consented to this Court's jurisdiction under 28 U.S.C. § 636(c). (ECF No. 16.) Plaintiff Gale Robbins (“Plaintiff”) brings this suit seeking damages under § 1983. Plaintiff claims he was deprived of federal due process, that he was harmed by Uintah County and Sherriff Jeff Merrell's (“Merrell”) failure to train Deputy David Fairey (“Fairey”), and that he was deprived of his state due process rights. (See ECF No. 2.) The case is presently before the court on Defendants' Motion for Summary Judgment. (ECF No. 28.) The motion is fully briefed and the court heard oral argument on April 25, 2017. (ECF Nos. 29, 36, 39.)


         The parties' briefing reveals the following facts are undisputed, unless otherwise noted. Plaintiff has been employed with the Uintah Country Sheriff's Department for nineteen years. He is presently a corporal.

         August 1, 2013, Incident

         On August 1, 2013 an incident took place for which Plaintiff was later disciplined. At the time, Plaintiff was a sergeant and a supervisor at the Uintah County Courthouse with six years of experience in that role. On August 1, 2013, Plaintiff was supervising Deputy Tina Menuey, Deputy Brad Draper, and Defendant Fairey. Plaintiff and Deputy Draper were working together in a jury trial proceeding on the second floor of the courthouse. Plaintiff assigned Fairey to work security at the entrance of the courthouse.

         Deputy Menuey was assigned to work as the bailiff for Juvenile Court Judge Larry Steele. At approximately 2:10 p.m., Judge Steele ordered 16-year-old female S.K. into custody. Deputy Menuey locked S.K in the holding cell adjacent to Judge Steel's courtroom. The holding cell is monitored by video from a security office the deputies use. Deputy Menuey was responsible to ensure S.K. was taken to a juvenile detention center before court closed that day. Deputy Menuey did not do so. (See ECF No. 36 at 2-3.) Instead, when Judge Steele finished his last hearing at 5:30 p.m., Deputy Menuey radioed to Plaintiff asking if she could go home. Plaintiff did not speak with Deputy Menuey, but “clicked” his radio to indicate Deputy Menuey could go home. She left at 6:00 p.m. The parties dispute whether Fairey shared responsibility with Deputy Menuey to transport S.K. (ECF No. 36 at 2-3.)

         Around 6:30 pm., the jury on the second floor returned its verdict. Plaintiff and Deputy Draper escorted various individuals to their cars, cleaned up the courtroom, and then met Fairey downstairs by the front door. Plaintiff asked Fairey if everybody was out of the court so the deputies could go home. Fairey answered the court was clear. Plaintiff then entered the security office and shut down the monitors that display video feeds from cameras all over the courthouse. While these monitors are capable of displaying video feed from the holding cell where S.K. was held, they were not displaying that particular video feed at the time. Plaintiff did not switch the monitors to the holding-cell feed as he ordinarily did. Plaintiff did not physically check the holding cell or instruct anyone else to check it. Plaintiff said to Fairey and Deputy Draper, “Let's get the hell out of here.” (ECF No. 28 at 9.) Plaintiff, Fairey, and Deputy Draper locked the courthouse and left for the day.

         Around 10:40 p.m. a member of the court's cleaning staff heard pounding and yelling from the juvenile court holding cell. This individual discovered S.K. who was finally transported to the juvenile detention center. Shortly thereafter, when Deputy Menuey learned S.K. had been left in the courthouse, Deputy Menuey notified Plaintiff and confessed that she must have “spaced it off.” (ECF No. 28 at 10.) Plaintiff expected that he and Deputy Menuey would probably be disciplined. Plaintiff said they needed to write statements documenting the incident. Deputy Menuey also notified Jail Commander Irene Brown of the incident with S.K.

         The parties disagree about whether Plaintiff asked Fairey to draft a report the morning after the incident. (ECF No. 36, Ex. 1.) Fairey claims he wrote a memorandum only on August 10, 2013, but did not show it to Plaintiff. Plaintiff claims he reviewed a report Fairey drafted on August 2, 2013, that contained misrepresentations about Fairey's actions. (ECF No. 29, Ex. 1.)

         Process culminating in Plaintiff's discipline

         On August 7, 2013, Chief Deputy John Laursen informed Plaintiff via letter that he would be placed on administrative leave pending an investigation of the S.K. incident. The investigation proceeded according to County policy. Sergeant Rocky Samuels interviewed Plaintiff on August 9, 2013. Sergeant Samuels submitted a report of his investigation to Commander Brown. The report indicates that Samuels interviewed the four deputies involved, interviewed the member of the cleaning staff who found S.K, and reviewed surveillance video from the courthouse.

         On August 21, 2013, Commander Brown met with Plaintiff to provide him with a Notice of Pre-Disciplinary Hearing, which she also read to him. The Notice advised Plaintiff of the policies and procedures he may have violated and instructed him that he could bring evidence and witnesses to the pre-disciplinary hearing.

         On August 26, 2013, Plaintiff, Deputy Menuey, Deputy Draper, and Fairey attended a joint pre-discipline hearing conducted by Commander Brown. Commander Brown heard testimony from all of the deputies. Defendants claim the deputies were “given the opportunity to present whatever evidence” they desired. (ECF No. 28 at 14.) Plaintiff's declaration submitted with his opposition to the summary judgment motion states “no video evidence from the incident at issue or reports were allowed to be presented at the hearing.” (ECF No. 29, Ex. 1.) The transcript of the hearing does not suggest Commander Brown denied any request from Plaintiff or any other officer to submit video evidence or any report. (ECF No. 28, Ex. 6.) Rather, the transcript is devoid of any request to submit further evidence. See infra Part II.b.2.B.

         Following the hearing, Commander Brown prepared a memorandum recommending discipline. She recommended Plaintiff be placed on probation for six months, reassigned from the courts to the jail, and demoted one rank to Corporal, including a pay reduction.

         Chief Deputy Laursen reviewed Commander Brown's memorandum and listened to the audio recording of the August 26, 2013, hearing. Chief Deputy Laursen concurred in Commander Brown's recommendations and recommended extending the period of probation to one year. Plaintiff concedes that there is no affirmative evidence that either of these decision makers was biased against him. On September 3, 2013, Merrell met with Plaintiff and imposed the discipline recommended by Chief Deputy Laursen. Plaintiff claims Merrell told him later that day “that the discipline was in retaliation for [Plaintiff's] efforts to campaign against [Merrell] during the election.” (ECF No. 29, Ex. 1.) Defendants dispute this claim. (ECF No. 36, Ex. 2.)

         Post-discipline process

         Also on September 3, 2013, Plaintiff submitted a grievance to H.R. Director Joe McKea (“McKea”) claiming the discipline was excessive and based on “ulterior motive or retaliation.” (ECF No. 28 at 15.) Plaintiff also requested that McKea disqualify himself from reviewing the grievance based on McKea's involvement in the discipline. McKea agreed to step aside. Uintah Roads Department Head Bryan Meier reviewed Plaintiff's grievance and conducted a review hearing with Plaintiff on September 12, 2013. Plaintiff admitted that he was responsible and deserved discipline for the incident on August 1, 2013. Plaintiff's declaration again claims that he “was not allowed to use any evidence other than testimony at the hearing with Bryan Meier.” (ECF No. 29, Ex. 1.) Plaintiff does not claim he attempted to introduce any evidence and the transcript of the hearing does not reveal any such request. (See ECF No. 28, Ex. 4.) Bryan Meier upheld the discipline imposed on Plaintiff via letter dated September 16, 2013. Bryan Meier specifically stated he did not believe Merrell retaliated against Plaintiff.

         On September 20, 2013, Plaintiff appealed to the Uintah County Commission. After reviewing the material in the file, the Commission (via letter dated September 24, 2013) supported the discipline imposed on Plaintiff.

         On September 26, 2013, Plaintiff submitted a grievance appeal to the Uintah County Career Service Review Board (“CSRB” or “the Board”). The Board met informally with Plaintiff for over two hours on October 9, 2013, to discuss his grievance. Plaintiff was allowed to present any information, evidence, and argument he wished, though he claims he lacked access to unspecified recordings and reports he believes he needed. On November 12, 2013, McKea delivered a letter to Plaintiff from the Board that contained its conclusions after meeting with Plaintiff. The Board notes in its letter that there was no dispute of material fact surrounding the August 1, 2013, incident. The Board's letter stated it found no indication the discipline imposed on Plaintiff was excessive or retaliatory. The Board's letter indicated Plaintiff could request a formal hearing if Plaintiff desired, but noted that the material facts were not in dispute and Plaintiff's character was not in question. The letter indicated that if Plaintiff desired a formal hearing before the Board, he must contact McKea no later than 4:00 p.m. on November 27, 2013. The parties dispute whether Plaintiff asked McKea for a formal hearing at the time McKea delivered the Board's letter. In any event, no other hearing was conducted before the Board.

         On January 30, 2014, Plaintiff filed a lawsuit in Utah's Eighth District Court against Merrell and McKea. The suit was dismissed without prejudice on Defendants' motion. On September 8, 2014, Plaintiff filed a notice of claim pursuant to Utah's Governmental Immunity Act (“UGIA”). Plaintiff did not file the bond required by UGIA. On March 13, 2015, Plaintiff filed this lawsuit.


         A “court shall grant summary judgment if the movant shows that there is 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). “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.” Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).


         “When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff, who must clear two hurdles in order to defeat the defendant's motion.” Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). To pierce qualified immunity, a plaintiff must demonstrate a defendant violated the plaintiff's constitutional right and that the right was clearly established. Gomes v. Wood, 451 F.3d 1122, 1134 (10th Cir. 2006). While the Supreme Court formerly required trial courts to conduct this inquiry in a particular order, courts may now choose which prong to address first. Riggins at 1107 (citing Pearson v. Callahan, 555 U.S. 223 (2009)). Here, the court will first examine whether Plaintiff set forth a clearly-established right.

         I. Defendants are Entitled to Qualified Immunity

         a. Parties' arguments

         Defendants argue Plaintiff cannot identify any clearly-established right that Defendants violated. (ECF No. at 32-33.) Plaintiff argues Merrell violated his clearly-established rights by disciplining Plaintiff “in retaliation for exercising his First Amendment rights . . . .” (ECF No. 29 at 20-21.) Plaintiff alleges that McKea violated his clearly-established rights by refusing to provide evidence to Plaintiff and refusing to afford Plaintiff a hearing before the CSRB. Finally, Plaintiff argues Fairey violated his clearly-established rights by lying in his written report “in an effort to help Defendants conceal it from [Plaintiff].” (Id. at 21.)

         b. Plaintiff has not identified any clearly-established right

         The clearly-established-right inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Price-Cornelison v. Brooks, 524 F.3d 1103, 1108 (10th Cir. 2008). In the Tenth Circuit, “for a right to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Id. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation.”

         Plaintiff offers no authority to support his claim that a clearly-established right is implicated here. Plaintiff cites Rossi v. University of Utah, Civ. No. 2:15-767, 2016 WL 3570620 (D. Utah June 24, 2016), [1] for the standard applicable to clearly-established law, but he makes no attempt to define any clearly-established right using cases from the Tenth Circuit or Supreme Court. Plaintiff's failure to set forth a clearly-established right is fatal here.

         Plaintiff asserts McKea violated his clearly-established rights by refusing to provide documents to Plaintiff. Yet, Plaintiff offers no case to establish he had a right to any documents. (Nor has Plaintiff offered any explanation of the utility of additional documents ...

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