United States District Court, D. Idaho
BRIAN H. OAK, Plaintiff,
KRISTEN MATTHEWS OAK, CLIFF KELLEY, TERRY FELSMAN, JAMES
MEMORANDUM DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
RONALD E. BUSH, Magistrate Judge.
Currently pending before the Court is the Motion for Summary Judgment filed by Defendants City of Pocatello, Terry Felsman, Cliff Kelley, James "J.R." Miller, and Kristen Matthews Oak (Dkt. 25) and Plaintiff Brian H. Oak's Motion for Partial Summary Judgment (Dkt. 26).
Contemporaneous to the events that led to this lawsuit, Plaintiff Brian Oak ("Oak") and Defendant Kristen Matthews Oak ("Matthews") were in the midst of marital difficulties that ultimately led to Matthews filing for divorce from Oak on December 30, 2009. Blake Hall Aff., Ex. 2 (Dkt. 25-7), Brian Oak Dep., 10:23-25. Matthews is an officer employed by the City of Pocatello Police Department. Oak brings claims of constitutional violations against all Defendants, and a claim for violation of the Fair Credit Reporting Act ("FCRA") against his ex-wife, Matthews. The Court will first address the constitutional claims and then address the FCRA claim.
On August 24, 2009, an altercation occurred between Oak and Matthews at their family home. Oak Dep. at 117-120. During this incident, Matthews had placed herself in front of the closed door on the inside of the couple's bedroom. Oak attempted to physically remove her from that position, first by picking her up underneath her armpits and then later by applying a technique he learned as a reserve deputy in which he applied force underneath her jaw in order to get her to move. Oak Dep. at 117:1-118:24. During the altercation, Matthews screamed and yelled at Oak not to touch her and fought back at him, which turned into a "wrestling match." Oak Dep. at 117:17-119:19. Following the altercation, Matthews' neck was red and scratched. She had their daughter, Amanda, take pictures of her neck. Oak Dep. at 120:23-25. At the time of the altercation, none of the couple's children were in the bedroom. Affidavit of Brian Oak I (Dkt. 31), ¶ 10.
Months later, on December 30, 2009, Matthews filed for divorce from Oak. Matthews says that in January 2010 she became fearful because Oak was acting erratically, she thought he might have placed surveillance items on her car and computer, and he was always carrying a gun. Affidavit of Kristen Matthews (Dkt. 25-6), ¶ 10. She feared he might harm her. Id.
Later in January 2010, Matthews decided to report the August 2009 incident to the Pocatello Police Department, where she was employed as an officer. Matthews Aff., ¶ 10. She first had a conversation with Captain Terry Felsman, telling him that she had been a victim of domestic violence and that she feared something might happen again. Id. Captain Felsman then spoke to Chief James "J.R" Miller, who told Felsman to assign the case to a detective to investigate. Wells Aff., Ex. D (Dkt. 33-9), Felsman Dep., 58:7-18; Wells Aff., Ex. C (Dkt. 33-8), Miller Dep., 24:10-17, 51:19-24. On January 28, 2010, Captain Felsman assigned Lieutenant Cliff Kelley to investigate the allegations. Matthews Aff. ¶ 11.
According to Chief Miller, when a complaining witness was a City of Pocatello police officer, as the chief of police he had discretion to determine whether or not his office would investigate the allegations. There was no policy that such an investigation had to be assigned to an outside agency. Miller Dep. at 42:9-15, 57:15-24. In addition, according to Chief Miller, Idaho law required that his officers investigate allegations of domestic violence regardless of when it occurred or who the complaining witness is. Id. at 72:22-73:3.
Lt. Kelley interviewed Matthews about the incident on January 28, 2010. The conversation was recorded. Wells Aff., Ex.B (Dkt. 33-2-7) Kelley Dep., 31:1-6. In the audio recording, Matthews described the August 2009 altercation. She said that Oak moved her by her jaw and put his knee against her ear, resulting in pain that lasted for nearly six weeks and left red marks and scratches on her face. She said she fought back and tried to kick him. Matthews told Lt. Kelley that all the children were home when this occurred, although they likely did not hear anything. After the altercation, she had her daughter, Amanda, take photos of her neck and face but did not tell her what happened. Matthews said that she and Oak did not typically have a physically violent relationship. She said that she was scared and frightened; that she "can't live like this" and needs "peace." Matthews said that she had recently found a gun in Oak's nightstand, and that she believed he had installed spyware on her computer and a GPS tracker on her vehicle. Matthews also said that she thought Oak was trying to make her look bad in the divorce proceedings, and that because of judges disqualifying themselves in the divorce proceedings, a hearing on her request in the divorce case to have Oak removed from the family home was being delayed.
During the interview, after Matthews has explained to Lt. Kelley that she is having trouble getting a hearing to have her husband removed from the home in the divorce proceeding and Lt. Kelley is discussing options, she whispers "get a no contact order" and then follows up with it "has to be in conjunction with a criminal charge." At the end of the interview, Lt. Kelley informed Matthews that he also would interview her daughter and Oak. Audio Recording of Kristen Oak and Lt. Kelley at approx. 2:30, 2:50, 3:23, 4:50, 8:17, 10:13, 10:40-11:00, 11:30, 14:25, 16:00, 18:10, 18:50, 19:43-55, 25:36. See Wells Aff, ¶ 18; Dkt. 34.
On January 29, 2010, Lt. Kelley interviewed the couple's daughter, Amanda Oak, whose interview was recorded. He also attempted to interview Oak, who declined to speak with Lt. Kelley without an attorney present. Kelley Dep., Ex. 1 (Dkt. 33-5) (Police report). On these last two occasions, Lt. Kelley was accompanied by Sgt. Nelson. Kelley Dep. at 32:13-33:3. Amanda told Lt. Kelley and Sgt. Nelson that she remembered taking pictures of her mother's face and neck after the altercation in question but that she did not know what happened, nor did she hear or see anything. She assumed her parents got into a fight. Audio Recording of Amanda Oak at approx. 3:10, 3:28. See Wells Aff., ¶ 19; Dkt. 34.
Lt. Kelley prepared an incident report around 1 p.m. on January 29, 2010. Kelley Dep., Ex. 1. Lt. Kelley later met with the prosecutor, Steven Herzog. Kelley Dep. at 34:3-8. Lt. Kelley testified that after he interviewed Matthews and Amanda Oak and had gathered all the information, he went to Mr. Herzog's office and "presented the facts... and deferred to him for charges." Id. at 31:1-9, Ex. 2 (Uniform Citation). Lt. Kelley and Mr. Herzog then sought a no contact order from Sixth District Magistrate Judge Carnaroli. Id. at 79:23-83:22, Ex. 6 (No Contact Order). Herzog testified that when he and Lt. Kelley went to Judge Carnaroli's chambers, the uniform citation form had been filled out by Lt. Kelley. Wells Aff., Ex. A (Dkt. 33-1), Herzog Dep. at 19:4-24. See also NCO Hearing at 22:13-16. (Herzog: "The defendant [Brian Oak] has been charged with domestic battery based upon what the witness told Sgt. Kelley. He [Kelley] believed there was probable cause and a charge was filed.")
Lt. Kelley served the uniform citation and no contact order on Oak at the family home at 5:35 p.m. on January 29, 2010. Kelley Dep. at 78:18-79:15. After being served with the citation and no contact order, Oak left the house. Oak Aff. II at ¶¶ 14-15.
Subsequently, Oak filed a motion to quash the no contact order. At the hearing on the motion on February 16, 2010, Matthews testified that Oak never threatened her with violence or a gun. NCO Hearing at 28:18-29:15. Sixth District Magistrate Judge Evans presided over the hearing and quashed the no contact order, finding it had been improperly issued, noting that the incident had occurred over six months earlier, the parties had been living together during the months that followed, and there had not been any further disputes or threats. Id. at 127-31.
An independent prosecutor, Randall Kline, was then assigned to the criminal case against Oak. On June 8, 2010, he moved to dismiss the domestic battery charge. Oak Aff. II at ¶¶ 30-31.
SUMMARY JUDGMENT STANDARD
One principal purpose of summary judgment "is to isolate and dispose of factually unsupported claims...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut, " but is instead the "principal tool [ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he 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).
The evidence, including all reasonable inferences which may be drawn therefrom, must be viewed in a light most favorable to the non-moving party and the Court must not make credibility findings. See id. at 255. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).
This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in his favor. See id. at 256-57. The non-moving party must go beyond the pleadings and show "by [his] affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324.
However, the Court is "not required to comb through the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quoting Forsberg v. P. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). Instead, the "party opposing summary judgment must direct [the Court's] attention to specific triable facts." Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003). Statements in a brief, unsupported by the record, cannot create an issue of fact. Barnes v. Independent Auto. Dealers, 64 F.3d 1389, 1396 n. 3 (9th Cir. 1995).
A. Defendants City of Pocatello, Chief Miller and Captain Felsman Cannot be Liable on These Facts.
Under Monell v. Dep't. of Soc. Serv. of City of New York, 436 U.S. 658 (1978), "local governing bodies [...] can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where [...] the action that is alleged to be unconstitutional implements or executes a policy, statement, ordinance, regulation, or decisions officially adopted and promulgated by that body's officers." Id. at 690. Significantly, "a municipality cannot be held liable solely because it employs a tortfeasor." Id. at 691 (emphasis in original).
1. There is No Causation Evidence Pointing to a Municipal Policy
In order to press his claim against the these Defendants, Oak must show evidence "that a constitutional deprivation was directly caused by a municipal policy." Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 1477 (9th Cir 1992). The burden is on Oak to show a relevant policy or custom on the part of the Pocatello Defendants. Gilette v. Delmore, 979 F.2d 1342, 1349 (9th Cir. 1992). The policy must be the "moving force" behind plaintiff's alleged ...