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Peterson v. Adams

United States District Court, D. Utah

September 7, 2018

TIMOTHY J. PETERSON, Plaintiff,
v.
IAN ADAMS, in an individual and official capacity; DOUG DIAMOND, in an official capacity; WEST JORDAN CITY; SALT LAKE COUNTY; JAMES “JIM” WINDER, in an individual and official capacity; and JOHN AND/OR JANE DOES 1-20, Defendants.

          Robert J. Shelby District Judge.

          REPORT AND RECOMMENDATION

          PAUL M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE.

         District Judge Robert J. Shelby referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B).[1] Before the court are (1) defendants Doug Diamond (“Chief Diamond”) and West Jordan City's (the “City”) (collectively, the “West Jordan Defendants”) motion for summary judgment;[2] (2) Salt Lake County (the “County”) and James Winder's (“Sherriff Winder”) (collectively, the “County Defendants”) motion for summary judgment;[3] and, (3) Ian Adams' (“Officer Adams”) motion for summary judgment.[4] Plaintiff Timothy J. Peterson (“Plaintiff” or “Peterson”) has not responded to any of the three motions for summary judgment. The court has carefully reviewed the written memoranda submitted by the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the United States District Court for the District of Utah, the court has concluded that oral argument is not necessary and will determine the motions on the basis of the written memoranda. See DUCivR 7-1(f).

         RELEVANT BACKGROUND

         This case arises out of Peterson's arrest in July 2014, and medical treatment following arrest. In the early morning hours of July 10, 2014, Peterson was involved in an altercation with Officer Adams which resulted in Peterson being shot twice in the buttocks and hip (the “Shooting Incident”). Peterson was treated on the scene by Emergency Medical Services and transported under police guard to the Intermountain Medical Center (“IMC”) emergency where he was treated for non-life-threatening gunshot wounds. Peterson was arrested and charged by the Salt Lake County District Attorney's Office (the “District Attorney's Office”) with assault against a police officer; purchase, transfer, possession or use of a dangerous weapon by restricted person; and failure to stop at command of law officer. After he spent four days at IMC, he was transported to the Salt Lake County Adult Detention Center (“Jail”) under police guard. Peterson was placed in the Jail's Acute Medical Unit, where he spent an additional ten days recovering. Once Peterson was discharged into the Jail's general population, Peterson submitted several sick call requests during his incarceration, all of which received response. The District Attorney's Office prosecuted Peterson for assault against a police officer, and successfully established probable cause for the charge at a preliminary hearing. Peterson was eventually tried on the charge of assault against a police officer and acquitted by a jury. Peterson spent approximately nineteen months in Jail before his acquittal.

         Following his acquittal, Plaintiff filed the complaint in the instant case. Peterson's amended complaint (“Complaint”) alleges several causes of action against the various defendants for alleged deprivation of his constitutional rights in violation of 42 U.S.C. § 1983. First, against Officer Adams, Plaintiff brings claims for (1) excessive force, (2) malicious prosecution, and (3) false arrest.[5] Plaintiff brings claims against the West Jordan Defendants for (1) excessive force, (2) policy and custom, (3) malicious prosecution, and (4) false arrest. Finally, Plaintiff brings claims against the County Defendants for (1) failure to provide adequate medical care, (2) failure to provide adequate medical care - policy and custom, and (3) malicious prosecution.

         RELEVANT UNDISPUTED FACTS

         Because Plaintiff did not respond to any of the motions for summary judgment, the court treats all of the facts set forth in the motions as undisputed for purposes of the motions. See Fed. R. Civ. P. 56(e) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion[.]”). The following undisputed facts are taken from defendants' motions for summary judgment, and are supported by evidence as cited in the motions.[6]

         Protective Order and Warrants.

         1. Based upon repeated instances of domestic violence, Peterson's spouse (Stacie Peterson) sought and was granted a protective order in February 2014.

         2. On or about July 5, 2014, Peterson repeatedly called Stacie Peterson demanding that she meet him, in violation of the protective order.

         3. After Stacie Peterson refused to meet Peterson, he continued to make disturbing and harassing visits to Stacie Peterson's home, including ringing the doorbell after midnight, prompting Stacie Peterson to report Peterson's actions to the police.

         4. In early July 2014, at the time of the subject incident, Plaintiff had multiple warrants for his arrest for DUI, disorderly conduct, use or possession of drug paraphernalia and traffic control violations.

         5. On the night of July 9, 2014, Peterson was aware that if a police officer stopped him that they had the right to arrest Peterson because of the outstanding warrants.

         Facebook and Anonymous Tipster.

         6. In the months leading up to July 2014, Peterson maintained a Facebook social media account.

         7. On July 7, 2014, an anonymous tipster[7] contacted the West Jordan Police Department, stating that Peterson was posting messages on Facebook that he was upset with Stacie for calling the police and was going to shoot at cops if they come to his location. The tipster was also concerned that Stacie Peterson might also be in trouble because Peterson posted a message on Facebook that he was possibly in the Jordan Landing area, near a Walmart and had a pistol on him.

         8. The tipster emailed screenshots of three of Peterson's Facebook posts, along with his Facebook profile picture, to Officer Kiesel.

         9. In July 2014, prior to the subject incident, Plaintiff posted the following on Facebook, a screenshot of which was sent to Officer Kiesel, “Read my things at least why I'm going to shoot the cops if they come honest truth ill pay for a lie detector test right now i swear to god i will.”

         10. In July 2014, prior to the subject incident, Peterson posted the following on Facebook, a screenshot of which was sent to Officer Kiesel, “i mean shit i told her tell the cops i got a pistol were fucking getting it on when they try to roke me. i have nothing to loose anymore i went out last night hoping for them to pull ilon me. and i will today again to cause I'm done with this not a single person i know has a heart like they should and that's fine atleast i know i died with dignity and knew i was a gold person a lot of you think you are but your not . . . don't matter when i get shot by tbe cops it dobt matter cause i love her and I'll never give up her . . . .”

         11. In July 2014, prior to the subject incident, Peterson posted the following on Facebook, a screenshot of which was sent to Officer Kiesel, “. . . stacies dumb littke finger she loves to use so much to call the cops with finally got reall fuckung old anyone else id fuckun kill them but she gets a pass cause she my girl i don't hate ya sweetheart still live ya but you know this one is your fault yours.”

         12. Peterson admits that he threatened to kill police officers in his social media posts.

         Attempt to Locate and Briefings.

         13. On July 8, 2014, officers at West Jordan Police Department ran a search for all outstanding warrants for Timothy J. Peterson and found outstanding warrants for DUI and Use or Possession of Drug Paraphernalia, warrant #1793401, issued July 8, 2014; Use or Possession of Drug Paraphernalia and Disorderly Conduct, warrant #1791271, issued July 8, 2014; and Traffic Control Signal Violations, warrant #1380741, issued April 10, 2014.

         14. As a result of the information provided to Officer Kiesel by the tipster, an ATL (Attempt to Locate) was placed out for Timothy Peterson in reference to the existing incident report[8] as well as the new information that he could possibly be armed.

         15. At the time the ATL was issued, the profile picture of Peterson, along with his Facebook posts were displayed in the briefing rooms at the West Jordan Police Department as “a warning for the officers on - or patrolling West Jordan to be on - to be vigilant or look out.”

         16. On July 8 and 9, 2014, officers coming on shift discussed Peterson in their pre-shift briefings, where Peterson's Facebook posts and profile picture were discussed and presented.

         17. On July 9, 2014, at the beginning of their shift, Officer Adams “mentioned to the rest of the team that if we didn't have anything going on - because I think Hercules had said his interactions occurred pretty late at night, like 11:00 to 1:00 . . . . And I had mentioned that if we had a slow shift that we ought to kind of flood that area with our available manpower and see if we could pick him up.”

         18. On July 8 or 9, 2014, Officer Vargas of the West Jordan Police Department informed West Jordan police officers, including Officer Adams, of Plaintiff's threats to kill officers, that Peterson was wanted pursuant to an open West Jordan Police file, that Peterson had violated a protective order, and that Peterson had several outstanding warrants.

         19. During those pre-shift briefings, Officer Adams also learned that Peterson was posting on social media that Peterson had a gun in the Jordan Landing area and that Peterson remained at-large.

         20. Officer Adams also learned that Peterson “was threatening to kill police and that he was in the possession of a gun and that he was serious, didn't want to go to jail or something.”

         21. Based on the information from the pre-shift briefings, Officer Adams suggested that if it was a slow shift that the officers should go to the Jordan Landing area around 11:00 p.m. to 2:00 a.m., which was the time discussed as when prior interactions with Peterson occurred, to try to pick up Peterson on the outstanding warrants.

         22. Officer Adams and the West Jordan Police Department had probable cause to arrest Peterson on the outstanding warrants.

         Peterson's Actions on July 9, 2014.

         23. Earlier in the day on July 9, 2014, Peterson and a friend, Dustin Tippie, purchased heroin and cocaine, of which Peterson took “two hits of heroin” and “one hit of the coke” around noon. Peterson states that the effects of these drugs only lasts 20 minutes.

         24. Immediately following their drug use, Tippie and Peterson then drove to Peterson's father's house.

         25. Later that evening, around 5:30 or 6:00 p.m., Tippie and Peterson purchase a six-pack of 16-ounce cans of beer, of which Peterson drank 2-3 beers.

         26. After drinking, Peterson and Tippie went to the Walmart at Jordan's Landing, where Peterson goes every night to “buy me a couple tall cans and go sit and watch cars go by.”

         27. Peterson took with him, and carried in his pocket a “big old butcher knife” in a red sheath in his front pocket, a sharpened letter opener that has the appearance of a knife in his left pocket, a bent piece of metal in the shape of a pistol with the laser pointer attached also in his left pocket, and a pair of scissors.

         28. Peterson was carrying the knife and scissors admittedly as weapons.

         29. Before going into Walmart, Peterson removed the butcher knife from his pocket and hid it in a bush, but kept the sharpened letter opener and bent piece of metal on his person. Peterson was concerned the butcher knife would fall out in the store.

         Officer Adams' Interactions with Peterson on July 10, 2014.

         30. During the early morning hours of July 10, 2014, Officer Adams saw Peterson and another individual Tippie walking in the Jordan Landing area of West Jordan, Utah. Officer Adams recognized Peterson from the photograph in the West Jordan Police Department.

         31. After turning around, Officer Adams pulled his vehicle up to Peterson and the other individual and stopped six to eight feet away. Peterson stopped as Officer Adams pulled up beside Peterson. From the inside of the police vehicle, Officer Adams visually confirms Peterson's identity and says, “Hey, Tim.” 32. Peterson recognized the individual and vehicle as a West Jordan City police officer.

         33. As Officer Adams approached Peterson and the other individual, Officer Adams was aware of the prior threats made by Peterson.

         34. Peterson did not immediately turn to face Officer Adams. Upon being asked “Hey, Tim, ” Peterson turned and responded “I'm not Tim.” The other individual did not respond although Officer Adams had addressed both individuals. Peterson then said his name was “Mike” in a manner that illustrated to Officer Adams that Peterson was lying.

         35. After lying to Officer Adams and providing the wrong name, Peterson and the other individual began slowly walking away from the vehicle as Officer Adams says, “Okay, well, let me talk to you, ” and the individuals continued to walk. Officer Adams pulled ahead of them and put his patrol vehicle in Park.

         36. During this time, Officer Adams was uncomfortable as he was speaking to Peterson while seated in his patrol vehicle through the passenger side window, where Peterson could have presented a threat.

         37. Based on prior information from the pre-shift briefing, Officer Adams was aware that Peterson had said he had a pistol and had made threats to harm police officers.

         38. As Officer Adams exited his patrol vehicle and began to approach Peterson, Peterson began running in the direction away from Officer Adams with his left shoulder facing Officer Adams.

         39. Peterson admits that after lying to Officer Adams, he began to walk faster in the direction away from Officer Adams and “bolted” when he saw Adams exit his patrol vehicle.

         40. Prior to beginning to run, Officer Adams observed Peterson making threatening moves with his hands by “digging into his waistband or pocket” and Officer Adams observed Peterson's “elbow pumping up and down like he's trying to grab -- get a hold of something in that area.”

         41. Officer Adams identified several indicators that concerned him as the interaction with Peterson began:

[Peterson pumping his arm]'s happening just prior to him beginning his flight or his run. So it's happening as I'm getting out of the car. You can't see it on the video. Well, you can kind of see the end -- I think you can see the bare end of it as his elbow comes down.
But that's the first, like, clue on scene that he is, in fact, going to pose a threat as opposed to [reports from another officer] --because I had them both in my head. I had here's a guy I'm begin told that is making threats towards cops, carrying a gun up in Jordan Landing. I'm also begin told that, you know, he's a pretty decent dude, didn't pose, you know, any kind of problems the couple times [another officer] ran into him.
So now here I am coming into this situation. He's lying to me and he's not stopping and now he's digging into his waistband. That's leaning back towards the, okay, we're in -- you know, about to get into a lethal threat territory here. So that's what - how I would describe the arm pumping.

         42. Peterson testified that as he began running, he dropped the beer that he was carrying and, when the cardboard sheath over the butcher knife he was carrying began to poke him in the leg, he reached into this pocket, removed the knife, and threw it over the fence.

         43. After throwing the knife, Peterson recalls Officer Adams stating “he threw a gun” and continued running.

         44. In explaining why he ran, Peterson testified that he expected the officer to “go over and grab my friend.”

         Review of body camera video with ...


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