United States District Court, D. Utah
TIMOTHY J. PETERSON, Plaintiff,
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.
J. Shelby District Judge.
REPORT AND RECOMMENDATION
M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE.
Judge Robert J. Shelby referred this case to Chief Magistrate
Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(B). 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) Salt Lake County (the
“County”) and James Winder's (“Sherriff
Winder”) (collectively, the “County
Defendants”) motion for summary judgment; and, (3) Ian
Adams' (“Officer Adams”) motion for summary
judgment. 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
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, 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. 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.
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
Order and Warrants.
Based upon repeated instances of domestic violence,
Peterson's spouse (Stacie Peterson) sought and was
granted a protective order in February 2014.
or about July 5, 2014, Peterson repeatedly called Stacie
Peterson demanding that she meet him, in violation of the
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.
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.
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.
and Anonymous Tipster.
the months leading up to July 2014, Peterson maintained a
Facebook social media account.
July 7, 2014, an anonymous tipster 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.
tipster emailed screenshots of three of Peterson's
Facebook posts, along with his Facebook profile picture, to
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.”
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 . . . .”
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.”
Peterson admits that he threatened to kill police officers in
his social media posts.
to Locate and Briefings.
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,
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 as well as the new information that he
could possibly be armed.
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.”
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
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.”
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.
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
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.”
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.
Officer Adams and the West Jordan Police Department had
probable cause to arrest Peterson on the outstanding
Actions on July 9, 2014.
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.
Immediately following their drug use, Tippie and Peterson
then drove to Peterson's father's house.
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.
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
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.
Peterson was carrying the knife and scissors admittedly as
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.
Adams' Interactions with Peterson on July 10,
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
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.
Officer Adams approached Peterson and the other individual,
Officer Adams was aware of the prior threats made by
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.
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.
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.
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.
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.
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
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
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
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.
After throwing the knife, Peterson recalls Officer Adams
stating “he threw a gun” and continued running.
explaining why he ran, Peterson testified that he expected
the officer to “go over and grab my friend.”
of body camera video with ...