United States District Court, D. Utah, Central Division
B. Pead Magistrate Judge.
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.)
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.
1, 2013, Incident
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.
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.)
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.
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.
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.)
culminating in Plaintiff's discipline
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.
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
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
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
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.)
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.
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.
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
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.
“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).
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
Defendants are Entitled to Qualified Immunity
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.)
Plaintiff has not identified any clearly-established right
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
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),  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.
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 ...