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Cowley v. West Valley City

United States District Court, D. Utah, Central Division

March 12, 2018

SHAUN COWLEY, Plaintiff,
v.
WEST VALLEY CITY, WVC MANAGER WAYNE PYLE, FORMER POLICE CHIEF BUZZ NIELSEN, CURRENT POLICE CHIEF LEE RUSSO, WVC DETECTIVE DAVID GRECO, DEPUTY CHIEF PHILIP QUINLAN, DEPUTY CHIEF MICHAEL POWELL, LIEUTENANT JOHN COYLE, FORMER CHIEF ANITA SCHWEMMER, Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING WEST VALLEY CITY DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

          Bruce S. Jenkins, United States Distort Judge

         Defendants West Valley City (the "City"), Wayne Pyle ("Pyle"), Buzz Nielsen ('Nielsen"), Lee Russo ("Russo"), David Greco ("Greco"), Philip Quinlan ("Quinlan"), Michael Powell ("Powell"), John Coyle ("Coyle"), and Anita Schwemmer ("Schwemmer") (collectively "Defendants")[1] move the Court for partial summary judgment on the following claims brought by Plaintiff Shaun Cowley ("Plaintiff): (1) each of Plaintiff s three remaining claims against the Individual Defendants in their official capacity; (2) Plaintiffs Second Cause of Action under 42 U.S.C. § 1983 for violation of Plaintiffs right to procedural due process; and (3) Plaintiff s Fifth Cause of Action under 42 U.S.C. § 1983 for retaliatory prosecution.[2] After considering the parties' briefing and oral argument, the Court GRANTS Defendants' Motion for Partial Summary Judgment.

         As a preliminary matter, in his memorandum opposing summary judgment, Plaintiff agreed to limit his Second and Fifth Causes of action as follows:

         First, Plaintiff consented that summary judgment should be granted in favor of Defendants Nielsen, Russo, Greco, Quinlan, Powell, Coyle, and Schwemmer as to Plaintiffs Second Cause of Action under 42 U.S.C. § 1983 for violation of Plaintiffs right to procedural due process.

         Second, Plaintiff consented that summary judgment should be granted in favor of Defendants Nielsen, Schwemmer, Russo, and Quinlan on Plaintiffs Fifth Cause of Action under 42 U.S.C. § 1983 for retaliatory prosecution.

         Third, Plaintiff limited his procedural due process claim to the City and Pyle, and agreed that the sole basis for this claim is that "Pyle, as City Manager for WVC, determined prior to [Plaintiffs] pre-termination hearing that [Plaintiff] would be terminated and enforced his decision by ordering [acting Police] Chief Marx to alter his recommendation on Plaintiffs discipline." As a result, Plaintiff consented that summary judgment should be granted in favor of the City and Pyle as to all other grounds on which this claim was originally brought.

         Fourth, Plaintiff limited his retaliatory prosecution to the City and Greco, and agreed that the sole basis for this claim is that the City and Greco "induced the Salt Lake County District Attorney's Office to file criminal charges against [Plaintiff] by offering its own detective, David Greco, to sign the Information ... even though Greco did not believe there was probable cause for the prosecution." As a result, Plaintiff consented that summary judgment should be granted in favor of the City and Greco as to all other grounds on which this claim was originally brought.

         Because Plaintiff narrowed his Second and Fifth Causes of Action, Nielsen, Russo, Quinlan, Powell, and Schwemmer are dismissed from this case as Plaintiff has no remaining claims against them.

         SUMMARY JUDGMENT STANDARD

         Under Federal Rule of Civil Procedure 56(a), courts grant summary judgment if the movant shows no genuine dispute as to any material fact exists, and "the movant is entitled to judgment as a matter of law." "A fact is 'material' if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is 'genuine' if a rational jury could find in favor of the nonmoving party on the evidence presented." Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013) (quoting E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000)). In evaluating a motion for summary judgment, the Court reviews "the facts in the light most favorable to the nonmovant and draw[s] all reasonable inferences in the nonmovant's favor." Jones v. Norton, 809 F.3d 564, 573 (10th Cir. 2015).

         "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. Moreover, an issue of fact is genuine only if "a reasonable jury could return a verdict for the non-movant." Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996) (citation omitted). If there is no genuine issue of material fact in dispute, the Court grants summary judgment according to the substantive law. See Id. at 990.

         A party seeking summary judgment always has the initial burden of "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believe demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Furthermore, "where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324. In such instances, the moving party has no obligation to present extrinsic evidence or supporting affidavits to sustain its assertion that no genuine disputes of material fact exist. Id.

         Once a moving party satisfies its initial summary judgment burden by pointing to a lack of evidence in the record, the burden of production shifts to a non-moving party to come forward with admissible evidence to demonstrate the existence of a genuine dispute of material fact. See Celotex Corp., 477 U.S. at 330 (Brennan, J, dissenting) (the burden of production shifts to the non-moving party once the moving party "demonstrate[s] to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim"); 1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) ("Once the moving party has [met its initial burden], the burden shifts to the nonmoving party to go beyond the pleadings and set forth specific facts showing that there is a genuine issue for trial.") (citation omitted). The non-moving party "may not rely on mere allegations, or denials, contained in its pleadings or briefs" to defeat summary judgment. See Trainorv. Apollo Metal Specialties, Inc., 318 F.3d 976, 982 (10th Cir. 2002). And when a jury would be required to speculate to find in favor of the non-moving party, summary judgment is appropriate. See Bones v. Honeywell Int % Inc., 366 F.3d 869, 875 (10th Cir. 2004) ("Unsubstantiated allegations carry no probative weight in summary judgment proceedings.... To defeat a motion for summary judgment, evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise.") (citations omitted). Cf. Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 511, 521 (10th Cir. 1987) (reversing jury verdict where essential elements of plaintiffs claim were "supported only by speculation and conjecture" rather than admissible evidence).

         FACTUAL BACKGROUND

         Examining the evidence in a light most favorable to Plaintiff, the following facts guide the Court's decision.

         Procedural Due Process

         On November 2, 2012, two City police officers, Plaintiff and Officer Kevin Salmon (Salmon) were involved in the shooting of Danielle Willard (Willard), which resulted in Willard's death. (West Valley City Defs.' Mot. For Summ. J. (Mot.), Statement of Elements and Undisputed Material Facts (Facts) ¶ 63, ECF No. 86.) Immediately following the shooting, protocol was invoked to create a joint investigation between the City and the Salt Lake County District Attorney's Office (DA's Office). (Id. ¶ 64.) As part of the investigation, investigators inspected Plaintiffs vehicle and discovered unbooked evidence. (Pl's Opp'n to Defs.' Mot for Partial Summ. J. (Opp'n), Pl's Statement of Facts (Pl's Facts) ¶ 10, ECF No. 104.) As a result, the City opened an Internal Affairs (IA) investigation into the unbooked evidence in Plaintiffs vehicle. (Id. ¶ 11.) On March 4, 2013, the City had a follow-up interview with Plaintiff where Plaintiff disclosed systematic misconduct within the Neighborhood Narcotics Unit (NNU).[3] (Id. ¶¶ 13-14.)

         On or about March 26, 2013, Plaintiff was provided with notice of a meeting with Quinlan to discuss a pending IA investigation into Plaintiffs conduct. (Id. ¶ 26; Facts ¶ 1.) On April 4, 2013, Plaintiff and his counsel met with Quinlan and were given an explanation of the City's evidence, and an opportunity to present Plaintiffs side of the story. (Facts ¶ 2.)

         On August 15, 2013, the City's Command Group, which included City Manager Pyle, decided that for Plaintiffs discipline "anything less than termination sends the wrong message to the department and the citizens." (Pl's Facts ¶ 33.) On August 19, 2013, Plaintiff was provided notice of a predisciplinary meeting with Larry Marx (Marx), who was given the chiefs role for discipline in Plaintiffs case.[4] (Id. ¶ 32; Facts ¶¶ 3, 36.) The notice set forth the City's evidence and Plaintiffs potential policy violations. (Id. ¶ 3.) On August 30, 2013, Plaintiff and his counsel met with Marx and Plaintiff was allowed to explain his side of the story. (Id. ¶ 4; Pl's Facts ¶ 34.) Subsequently, Marx provided Pyle with drafts of two disciplinary letters, both of which sustained the charges against Plaintiff, as follows: one letter provided for 240 hours of administrative leave and the other letter provided for termination of Plaintiff s employment. (Facts ¶ 37; Opp'n, Response to Defs.' Statement of Facts (Resp. to Facts) ¶ 37; Pl's Facts ¶ 35.) In both of these letters, Marx sustained the following policy violations by Plaintiff:

(1) 804.3 Property Handling;
(2) 804.3.1 Property Booking Procedure;
(3) 804.2.2 Packaging Narcotics;
(4) 340.3.5 Performance;
(5) 900.7 Handling of Prisoner's Property; and
(6) 340.3.5(e) Insubordination

         (Disciplinary Letter, ECF No. 86-6; Draft Disciplinary Letter, ECF No. 109-4.) Moreover, in both of the disciplinary letters provided by Marx to Pyle, Marx included language stating, "I find your conduct completely unacceptable. You have brought dishonor to the Police Department and the City which has undermined the public's trust of the Police Department." (Disciplinary Letter, ECF No. 86-6, at 7; Draft Disciplinary Letter, ECF No. 109-4, at 7.) Marx felt that administrative leave was the appropriate level of discipline, however, city administration, including Pyle, elected to terminate Plaintiffs employment. (Facts ¶¶ 37-38; Resp. to Facts ¶37.)[5]

         Plaintiff was given two pre-termination hearings where he was given an opportunity "to present his side of the story." (Facts ¶¶ 1-4.) These were the April 4, 2013 hearing with Quinlan, and the August 30, 2013 hearing with Marx. (Id.) The copies of the transcripts of these two hearings (which Plaintiff submitted in his opposition to Defendants' summary judgment motion) are 40 and 74 pages in length, respectively, and they also show that Plaintiff was represented by an attorney at each of these hearings. (ECF Nos. 104-9, 104-11.)

         On or about September 12, 2013, Plaintiff was informed that his employment was being terminated and that he had the right to appeal his termination. (Facts ¶ 5; Pl's Facts ¶ 37.) Plaintiff appealed his termination to the CSC, which was later replaced by Administrative Law Judge Melinda Hibbert. (Facts ¶ 6.) In June 2015, Plaintiff prevailed on his post termination appeal by means of an order by Administrative Law Judge Hibbert wherein Plaintiffs termination appeal was dismissed and Plaintiff was reinstated as a police officer with the City. (Id. ¶ 7.) Subsequently, after negotiations between the parties, the City and Plaintiff stipulated to a final judgment pursuant to Utah Code Ann. § 10-3-1 lO6(5)(b) dated June 8, 2015, whereby Plaintiff received $88, 190.54 in lost salary[6] and a contribution of $32, 832.82 to his retirement account, and Plaintiff voluntarily resigned his employment with the City. (Id., ¶ 8.) Plaintiff never appealed the result of his termination appeal process to the courts. (Id. ¶ 14.)

         Retaliatory ...


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