Peck et al v. Hinchey et al

Filing 394

ORDER - IT IS ORDERED that Defendant Hinchey's Motion for Summary Judgment on Qualified Immunity Grounds on February 2, 2017 (Doc. 375 ) is GRANTED. Thus, Defendant Hinchey is granted immunity on Counts I, II, and III. Because these are the on ly claims remaining against the only remaining Defendant, the Clerk of Court shall enter judgment in favor of Defendant Hinchey and against Plaintiffs and shall close this case. (See document for further details). Signed by Senior Judge James A Teilborg on 7/7/17. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Steven Peck, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-12-01371-PHX-JAT

Margaret Hinchey, et al.,

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Defendants.

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Pending before the Court is Defendant’s Motion for Summary Judgment on

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Qualified Immunity Grounds (Doc. 375). The Court now rules on the motion. 1

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I.

Background

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On March 14, 2014, the Court issued an Order on Defendants’ motion to dismiss

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and the parties’ cross motions for Summary Judgment. (Doc. 329). On July 15, 2016, this

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Court received the decision of the U.S. Court of Appeals for the Ninth Circuit affirming

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this Court’s decision in part, and reversing and remanding in part. (Doc 351-2).

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Following the Court of Appeals’ decision, this Court issued an Order to clarify the

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At oral argument, Plaintiffs raised for the first time that Defendant improperly
filed a Response to Plaintiffs’ Additional Controverting Facts (“RSOF”) (Doc. 387),
which Defendant cited in her Reply brief (Doc. 386). Plaintiff did move for any formal
relief based on this issue (e.g., Plaintiff did not ask the Court to strike it). Plaintiff is
correct that District of Arizona Local Rule Civil 56.1 does not contemplate a RSOF. See
LRCiv 56.1(a), (b); see also GoDaddy.com, LLC v. RPost Commc'ns Ltd., No. CV-1400126-PHX-JAT, 2016 WL 3068638, at *1 (D. Ariz. June 1, 2016) (“Local Rule 56.1
does not provide for a reply statement of facts or a response to the non-moving party's
separate statement of facts”). The Court has reviewed the facts therein and finds that no
new, material facts were raised for the first time in Defendant’s RSOF. Therefore, the
Court will not take any action on this procedural issue.

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procedural posture of this case. (Doc. 352). Plaintiffs maintain three counts against

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Defendant Hinchey under the Civil Rights Act of 1871, 42 U.S.C. § 1983. (Id.). No other

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defendants or claims remain in this case. (Id.).

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Defendant responded to those counts by filing a Motion to Dismiss (Doc. 355),

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which was denied by this Court (Doc. 368). Defendant later filed a Motion for Summary

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Judgment on Qualified Immunity Grounds on February 2, 2017 (Doc. 375). Plaintiffs

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filed a Response on March 6, 2017 (Doc. 379). Defendant then filed a Reply on March

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21, 2017 (Doc. 386).

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Count I, Intentional Presentation of False Evidence to Support Criminal, Count II,

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Presentation of False Evidence to Support Criminal Charges with a Reckless Disregard

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for the Truth, and Count III, Malicious Prosecution, are discussed below. 2

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A.

Undisputed Material Facts

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Steven Peck, Benjamin Sywarungsymun, Aaron Lentz, and Shannon Lentz

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(hereinafter “Plaintiffs”) filed a complaint in June 2012 against several defendants,

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including Margaret Hinchey (hereinafter “Defendant”). (See Doc. 1, as am. Doc. 180).

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Plaintiffs—except for Shannon Lentz 3—are officers in the Phoenix Police Department

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(“PPD”) who were investigated for falsely reporting their hours worked at a uniformed,

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off-duty security job coordinated by former PPD Officer George Contreras at Cotton

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Center Townhomes (the “Job”). (Doc. 380 at 2). Defendant was a Special Agent with the

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Arizona Attorney General’s Office during the course of the investigation. (Doc. 380 at 3).

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The Court went through the background facts regarding Defendant’s investigation

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Count III initially included both a federal §1983 claim and an Arizona state law
claim for malicious prosecution, but the state law claim in Count III was dismissed, along
with Plaintiffs’ other state law claims, for failure to comply with Arizona’s Notice of
Claim Statute. (Doc. 329 at 24). The Court of Appeals’ mandate, reversing this Court’s
decision to grant summary judgment in favor of Defendant on Count III on absolute
immunity grounds, pertained only to the § 1983 claim. (Doc 351-2 at 4). The Court of
Appeals declined to reverse this Court’s decision on the dismissal of state law claims,
which stands. The claims in Plaintiffs’ Second Amended Complaint, that were remanded
by the Court of Appeals, represent the “totality of the claims” remaining in this case.
(Doc. 352 at 3).
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Shannon Lentz is the spouse of Aaron Lentz. (Doc. 380 at 2).
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of Plaintiffs’ conduct at the Job in its previous Summary Judgment Order, so the Court

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will not repeat them all here (Doc. 329 at 2-5). Facts most relevant to this Order are

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discussed below and the Court will discuss other relevant facts as necessary:

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Contreras selected more than fifty PPD officers to work this
off-duty job, including Plaintiffs Steven Peck, Aaron Lentz,
and Benjamin Sywarungsymun (“Plaintiffs”). (PSOF ¶ 1).
The Townhomes officers worked in two-man shifts and used
a patrol car that was picked-up and dropped-off at the PPD
South Mountain Precinct. (PSOF ¶¶ 21–27). Contreras kept a
handwritten logbook at the South Mountain Precinct to allow
officers to log their activities and communicate relevant
information to subsequent shifts. (PSOF ¶¶ 35–37).

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Contreras did not monitor or verify the times that the officers
began and ended their shifts. However, the patrol cars used by
the officers included an on-board computer (“MDT”) that
recorded officers’ sign-in/sign-off times. (PSOF ¶ 47;
Controverting Statement of Facts to Defendants City of
Phoenix and Paula Veach’s Separate Statement of Facts in
Support of Her Motion for Summary Judgment on Immunity
Grounds (“PCSOF”), Doc. 297 ¶ 5). Although the MDT’s
sign-in/sign-off system could be unreliable, the officers often
used the MDT. (PSOF ¶ 55–59; see PCSOF ¶ 5).
Additionally, the officers used radios that recorded on/off
times. (PSOF ¶ 52; see PCSOF ¶ 5). PPD off-duty policies,
however, did not require the officers to sign-in with the MDT
at the beginning of their shifts, or to sign-off the MDT or the
radio at the end of their shifts. (PSOF ¶¶ 48–52).
In October, 2006, the Townhomes job ended. (PSOF ¶ 68).
On December 7, 2006, in response to a citizen complaint that
the Townhomes officers had been paid for services not
actually performed, PPD assigned two detectives from its
Professional Standards Bureau to audit the Townhomes job.
(Defendants City of Phoenix, Paula Veach and Jack Harris’s
Statement of Facts in Support of Motion for Summary
Judgment Regarding Immunity (“DSOF”), Doc. 258 ¶¶ 1–4;
PCSOF ¶¶ 1–4). The detectives gathered documentation
including pay slips, department reports from arrests made at
the Townhomes, sign-in/sign-off data from the MDTs, radio
on/off times, and various written logs. (PCSOF ¶ 5). The
detectives organized this information into an Excel
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spreadsheet (the “PSB spreadsheet”) and the preliminary data
indicated discrepancies between the hours officers worked
and the hours they were paid. (PCSOF ¶¶ 6–7).
PPD transferred the matter to Sergeant Paula Veach to
conduct an administrative investigation to determine if any
PPD policies had been violated. (PCSOF ¶¶ 8–10). Veach
received the PSB spreadsheet, requested additional materials,
and added additional information to the PSB spreadsheet.
(PCSOF ¶¶ 11–12). Veach also conducted seven Garrityprotected officer interviews, including of Contreras and
Plaintiff Sywarungsymun. (PCSOF ¶¶ 14–16).
After two of the interviewed officers admitted to leaving the
Townhomes job early, Veach was ordered to create a
PowerPoint presentation to show the current status of her
ongoing administrative investigation to her chain of
command. (PCSOF ¶¶ 17–18). Following the presentation,
Veach was ordered to halt her administrative investigation
and PPD referred the matter to the Arizona Attorney
General’s Office (“AGO”) for an independent criminal
investigation. (PCSOF ¶¶ 19–20). Veach was ordered to
provide her records to the AGO and serve as PPD’s liaison
for the purposes of the AGO’s criminal investigation.
(PCSOF ¶ 20).
In November 2008, the AGO appointed Special Agent
Margaret Hinchey to conduct a criminal investigation into the
matter and Hinchey contacted Veach. (PCSOF ¶ 21). Veach
met with Hinchey to discuss the PSB spreadsheet and its
underlying data. (DCSOF ¶ 21). Veach informed Hinchey
that Veach’s administrative investigation was incomplete and
that the PSB spreadsheet was incomplete and inaccurate.
(PCSOF ¶¶ 22, 99–100). During the course of Hinchey’s
investigation, Veach, as the PPD liaison, answered Hinchey’s
questions related to PPD policies and procedures and directed
Hinchey to sources of data relevant to Hinchey’s
investigation. (PCSOF ¶ 34). In December 2009, Veach was
transferred out of the PSB unit and her role as PPD liaison to
Hinchey ended. (PCSOF ¶ 23).
During Hinchey’s investigation, Hinchey “asked PPD for all
supporting data used to calculate times in the PSB
spreadsheet” (PSOF ¶ 108), determined shift start and end
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times using “MDT, radio log off, PACE time, [and] report
entry times” (PSOF at Ex. 18 pp. 55–57), reinterviewed a
Townhomes witness (PSOF ¶ 112, Ex. 44), and interviewed
at least 21 Townhomes officers (PSOF at Exs. 19–20, 23–41).
As part of her investigation, Hinchey heavily modified the
PSB spreadsheet. (Id.; see also SSOF at Exs. 17, 58–60).
During her investigation, Hinchey authored numerous
investigative reports (DSOF at Ex. 12) and informed her
supervisors of the status of her investigation. Plaintiffs allege
that Hinchey’s reports failed to include exculpatory evidence
and included false or fabricated evidence intended to mislead
the prosecutor into pursuing criminal charges against
Plaintiffs. (SAC ¶¶ 232–37).
Plaintiffs allege that the decision to indict Plaintiffs was made
in the fall of 2010. (SAC ¶ 241). Specifically, Plaintiffs allege
that, in order to achieve political gain, Attorney General Terry
Goddard directed that Hinchey’s investigation conclude and
the prosecutor procure indictments prior to Election Day on
November 2. (SAC ¶¶ 244–47). Plaintiffs further allege that
in response, Hinchey presented false, misleading, and
fabricated results from her investigation to the prosecutor,
Todd Lawson, for the purposes of supporting criminal
charges against Plaintiffs. (SAC ¶¶ 251–54, 260–61).
Plaintiffs allege that Lawson convened a grand jury and
Hinchey, as the sole witness to the grand jury, perjuriously
presented false evidence to secure an indictment against
Plaintiffs. (SAC ¶¶ 255–57). The grand jury returned an
indictment of Plaintiffs on November 17, 2010. (SAC ¶ 258).
Plaintiffs allege that there was no probable cause for the
indictment. (SAC ¶ 259). Plaintiffs further allege that
Hinchey continued the investigation and continued to submit
false, fabricated, and misleading reports to her supervisors
and Lawson. (SAC ¶ 268).
During the course of criminal discovery, Plaintiffs’ attorneys
reviewed Hinchey’s investigation, discovered falsities, and
moved for remand of Plaintiffs’ indictment. (SAC ¶¶ 278–
80). Remand was granted and a second grand jury was
empaneled, but the second grand jury failed to return an
indictment of Plaintiffs. (SAC ¶ 281–84). Plaintiffs allege that
without the false evidence, the second grand jury could not
find probable cause. (SAC ¶ 283). On November 23, 2011, all

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criminal charges against Plaintiffs were dropped. (SAC ¶
286).

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(Doc. 329 at 2-5).

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II.

Summary Judgement Standard

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Summary judgment is appropriate when “there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

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56(a). “A party asserting that a fact cannot be or is genuinely disputed must support that

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assertion by . . . citing to particular parts of materials in the record, including depositions,

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documents, electronically stored information, affidavits, or declarations, stipulations . . .

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admissions, interrogatory answers, or other materials,” or by “showing that materials

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cited do not establish the absence or presence of a genuine dispute, or that an adverse

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party cannot produce admissible evidence to support the fact.” Id. 56(c)(1)(A), (B). Thus,

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summary judgment is mandated “against a party who fails to make a showing sufficient

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to establish the existence of an element essential to that party's case, and on which that

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party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

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(1986).

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Initially, the movant bears the burden of pointing out to the Court the basis for the

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motion and the elements of the causes of action upon which the non-movant will be

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unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to

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the non-movant to establish the existence of material fact. Id. A material fact is any

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factual issue that may affect the outcome of the case under the governing substantive law.

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant “must do

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more than simply show that there is some metaphysical doubt as to the material facts” by

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“com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.’”

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (quoting

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Fed. R. Civ. P. 56(e)). A dispute about a fact is “genuine” if the evidence is such that a

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reasonable jury could return a verdict for the non-moving party. Liberty Lobby, Inc., 477

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U.S. at 248 (1986). The non-movant's bare assertions, standing alone, are insufficient to

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create a material issue of fact and defeat a motion for summary judgment. Id. at 247–48.

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However, in the summary judgment context, the Court construes all disputed facts in the

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light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075

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(9th Cir.2004).

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At the summary judgment stage, the Court’s role is to determine whether there is a

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genuine issue available for trial. There is no genuine issue for trial unless there is

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sufficient evidence in favor of the non-moving party for a jury to return a verdict for the

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non-moving party. Liberty Lobby, Inc., 477 U.S. at 249-50. “If the evidence is merely

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colorable, or is not significantly probative, summary judgment may be granted. Id.

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(citations omitted).

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III.

Qualified Immunity

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Defendant argues that she is entitled to qualified immunity as a matter of law on

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all outstanding counts because she reasonably—even if erroneously—believed that her

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conduct in investigating Plaintiffs did not violate Plaintiffs’ constitutional rights. (Doc.

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375 at 14). The qualified immunity doctrine “provides ample protection to all but the

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plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.

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335, 341 (1986).

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A.

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Section 1983 provides a private right of action against individuals acting under

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color of state law who violate others’ constitutional or statutory rights. 42 U.S.C. § 1983.

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Qualified immunity, however, shields government officials from civil liability under §

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1983 when applicable. Qualified immunity “is an immunity from suit rather than a mere

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defense to liability; and like an absolute immunity, it is effectively lost if a case is

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erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)

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(emphasis in original). Defendant is entitled to qualified immunity if her conduct did not

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violate a clearly established constitutional right “of which a reasonable person would

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have known.” Harlow v. Fitzgerald, 457 U.S. 800, 801 (1982). “Courts should decide

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issues of qualified immunity as early in the proceedings as possible, but when the answer

Legal Standard

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depends on genuinely disputed issues of material fact, the court must submit the fact-

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related issues to the jury.” Bryant v. City of Goodyear, No. CV-12-00319-PHX-JAT,

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2014 WL 2048013, at *3 (D. Ariz. May 19, 2014) (quoting Ortega v. O’Connor, 146

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F.3d 1149, 1154 (9th Cir. 1998)).

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The United States Supreme Court has set forth a two-step test—comprised of the

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“constitutional inquiry” and the “qualified immunity inquiry”—to determine if a

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defendant is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001),

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overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). The

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“constitutional inquiry” examines whether the alleged facts, as viewed in the light most

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favorable to the non-moving party, demonstrate that a defendant’s conduct violated one

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of a plaintiff’s constitutional rights. Id. If the alleged facts show that a right was violated,

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the Court must then address the “qualified immunity inquiry” to determine whether the

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right was “clearly established.” Id. at 201–02. A government investigator is not entitled to

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qualified immunity for her conduct if “it would be clear to a reasonable [investigator] that

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the conduct was unlawful in the situation [s]he confronted.” Id. at 202 (citing Wilson v.

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Layne, 526 U.S. 603, 615 (1999)). The qualified immunity inquiry “must be undertaken

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in [the] light of the specific context of the case, not as a broad general proposition.” Id. at

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201.

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B.

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Counts I and II (the “Devereaux claims”) allege that Defendant violated Plaintiffs’

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right to be free from criminal charges based on “false evidence that was deliberately

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fabricated by the government.” (See Doc. 379 at 8-9). 4 “[T]here is a clearly established

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constitutional due process right not to be subjected to criminal charges on the basis of

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false evidence that was deliberately fabricated by the government.” Devereaux v. Abbey,

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263 F.3d 1070, 1074-75 (9th Cir. 2001). A claim that a government agent deliberately

Counts I and II: Devereaux Claims

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The Court discusses both the fabrication and reckless claims together because
both Parties comingle the claims in their briefs. (Doc. 375 at 14-20; Doc. 379 at 9-22).
Furthermore, deliberate fabrication is “equivalent” to recklessness for the purposes of the
instant qualified immunity inquiry. (Doc. 329 at 30 n.22).
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fabricated evidence must be supported by evidence that either: “(1) Defendants continued

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their investigation of [plaintiff] despite the fact that they knew or should have known that

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he was innocent; or (2) Defendants used investigative techniques that were so coercive

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and abusive that they knew or should have known that those techniques would yield false

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information.” Hall v. City of Los Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012) (quoting

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Devereaux, 263. F.3d at 1076).

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Plaintiffs argue that Defendant violated both of the Devereaux prongs. (See Doc.

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379 at 10). To support this argument, Plaintiffs allege that Defendant relied on

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incomplete or unreliable investigatory sources, failed to verify claims from those sources,

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failed to disclose potentially exculpatory evidence, generated false reports as to the extent

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of her investigation, and ignored or misunderstood pertinent information about Plaintiffs’

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timekeeping systems. (Id. at 10-11). Plaintiffs also point out that, at the motion to dismiss

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stage, this Court acknowledged that Plaintiffs’ complaint provided sufficient allegations

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to support those claims, if true. (See id. at 9; see also Doc. 368 at 7). 5 The facts of this

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case when construed in the light most favorable to Plaintiffs, however, do not validate

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Plaintiffs’ assertions.

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Officers Admitted to Leaving Shifts Early

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Defendant may have exaggerated theft claims based on misunderstandings of the

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evidence and failed to diligently pursue all possible leads that could have improved the

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quality of her investigatory findings, but a careless or inaccurate investigation does not

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necessarily reach the level of a constitutional violation. See Gausvik v. Perez, 345 F.3d

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813, 817 (9th Cir. 2003) (holding that an investigator’s carelessness or inaccuracy “does

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not satisfy Devereaux’s stringent test”). The record demonstrates that Defendant’s

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Plaintiffs misapply the “law of the case” doctrine by arguing that this Court’s
analysis under the motion to dismiss standard must result in the same outcomes at the
summary judgment stage (Doc. 379 at 10). The “denial of motions to dismiss do not
constitute law of the case for the purpose of summary judgment.” Moonin v. Nevada ex
rel. Dep't of Pub. Safety Highway Patrol, No. 3:12-CV-000353-LRH, 2015 WL 4113289,
at *6 (D. Nev. July 8, 2015) (citations omitted); see also Robbins v. Wilkie, 433 F.3d 755,
764 (10th Cir.2006) (“Law of the case does not apply because a motion to dismiss and a
motion for summary judgment do not raise the same issues.”).
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interviews with officers who worked the Job revealed that several officers did in fact

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admit to leaving the Job early. (Compare Doc. 379 at 16 n.120-21 (citing Doc. 380 at ¶¶

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31.2, 48, 53) with Doc. 375 at 15-16). 6 George Contreras, the Job’s coordinator, was

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among those who admitted to leaving early and working suspect shifts with Plaintiffs.

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(Compare Doc. 379 at 16 (citing Doc. 380 at ¶¶ 48.1, 53, 58, 76) with Doc. 375 at 15; see

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also Doc. 376-2 at 96). Defendant was told that the practice of leaving the Job early, but

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receiving full pay was “pretty common” among officers. (See Doc. 375 at 16 (citing Doc.

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376-2 at 238, 241)). While Defendant could have acted in a more diligent manner to

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investigate these witness statements, nothing in the statements would provide actual or

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constructive knowledge to Defendant that Plaintiffs were in fact innocent of the charges

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against them, and Defendant did not fabricate or coerce these witness statements.

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(Compare Doc. 379 at 16 with Doc. 375 at 16-17). These undisputed admissions instead

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provide evidence that Defendant reasonably relied upon in furtherance of her

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investigation into Plaintiffs.

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2.

Defendant’s Determination of Shift Start Times

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Plaintiffs take particular issue with Defendant’s methodology in estimating shift

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start times in constructing timelines of shifts worked by Plaintiffs. (See Doc. 379 at 11-

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12). However, Plaintiffs decided not to provide Defendant with potentially exculpatory

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evidence of their innocence relating to start times during Defendant’s investigation.

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(Compare Doc. 379 at 16 with Doc. 375 at 16). As a result, Defendant was left to rely on

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what proved to be unreliable data sources, such as MDT timestamps, to construct a

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timeline and narrative that tended to indicate that Plaintiffs were not innocent. (See Doc.

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379 at 13). In calculating the length of each officer’s shift, Plaintiffs allege that

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Defendant “deliberately fabricated evidence related to start time” by operating under the

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For Lieutenant Tortoricci, see Doc. 376-2 at 238-39; for Officer Hoenigman, see
Doc. 380-4 at 17-18; for Officer Reiff, see Doc. 376-2 at 104-05; for Officer Thompson,
see Doc. 380-5 at 80; for Officer Holton see 380-5 at 221-22, 226. While some of these
officers did provide explanations for their premature departures—often that they were
simply following orders from Contreras, the Job’s coordinator, when working alongside
him—those explanations do not negate their admissions, which provided credible
evidence of theft to Defendant. Defendant did not falsify statements to this effect.
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assumption that the Job’s client understood shifts to starts when officers were on the

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property, but “clearly the agreement was that the shift would start when the officers

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arrived at the South Mountain precinct.” (See Doc. 379 at 11; see also (Doc. 380-2 at 37,

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244:16-245:4) (Veach testified in her deposition that she did not tell Defendant whether

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officers started the Job for timekeeping purposes at the station or at the property)).

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While Defendant may have operated under a mistaken impression, this did not

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distort time calculations to the point where a reasonable investigator would have thought

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Plaintiffs to be innocent because Defendant did credit some travel time at the beginning

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and end of each shift and relied on multiple data sources to calculate shift times (See Doc.

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386 at 7 (citing Doc. 380-16 at 31, 27:24-28:25) for credit of travel time; see e.g., Doc.

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376 at 10-11 for use of multiple data sources). Plaintiffs concede that Defendant

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accounted for preparation time on some shifts, but question whether she did so all shifts.

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(See Doc. 379 at 12). But again, this goes to Defendant’s methodology in how she came

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to her conclusions and does not demonstrate that Defendant deliberately fabricated

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evidence. (Compare id. at 12-13 with Doc. 386 at 7). By alleging that the preparation

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time Defendant failed to account for “could be an additional 21 minutes” per shift,

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Plaintiffs cast doubt on whether Defendant misstated the amount of time for which

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Plaintiffs were paid while not working at the Job, but this correction would not provide

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Defendant notice that Plaintiffs were innocent; only that the amount of their theft was

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being exaggerated. (See Doc 379 at 12). In other words, the time discrepancies were well

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over 21 minutes per shift. (See Doc. 375 at 2 (citing Doc. 376 at ¶¶ 9); see also Doc. 376-

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3.

Defendant’s Reliance on MDT Timestamps

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Plaintiffs next allege that Defendant deliberately reported a false theft amount by

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“rel[ying] on unreliable and incomplete sources in her investigation” because Defendant

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used MDT timestamps as the primary data source in determining shift start and end

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times. (Id. at 12). Plaintiffs provide the same assertions to question the methodology in

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using this data source, but Defendant relied on multiple data sources during her

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investigation. (Compare Doc. 379 at 11-12 with Doc. 386 at 7). While the accuracy of

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Defendant’s findings may be in question, Defendant did not deliberately fabricate

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evidence by using an unreliable source without knowledge of its falsity. (Compare Doc.

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379 at 12-13 with Doc. 386 at 7-8).

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If anything, overreliance on MDT timestamps that did not capture work before and

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after MDT sign-in and sign-off contributed to an overestimation of the shorted shifts that

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exaggerated the amount of Plaintiffs’ alleged theft. (Compare Doc. 379 at 13 with Doc.

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386 at 9). Defendant could have exercised more diligence in determining whether MDT

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timestamps were the best data source upon which to base her findings because questions

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were raised about its reliability during Defendant’s investigation, but mere reliance on

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that data source did not provide Defendant with actual or constructive knowledge of

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Plaintiffs’ innocence. (Compare Doc. 379 at 14 with Doc. 386 at 7; see also (Doc. 380-2

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at 58, 326:15-327:11) (Veach testified that she thought MDT sign-in and sign-off time

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would not be reliable markers for calculating how long each officer actually worked, but

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did not recall sharing this opinion with Defendant)). The same is true with Plaintiff’s

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alleged failure to account for “flex time” in her reports based on her understanding of

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witness statements. (Compare Doc. 379 at 17-18 with Doc. 386 at 6-7).

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Investigators may “draw on their own inferences from and deductions about the

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cumulative information available to them,” as Defendant did here. John v. City of El

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Monte, 515 F.3d 936, 940 (9th Cir. 2008) (quoting United States v. Hernandez, 313 F.3d

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1206, 1210 (9th Cir.2002)). Defendant may be wrong in her inferences and deductions

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without violating a clearly established constitutional right. See Devereaux, 263 F.3d at

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1076-77 (Reasoning that an investigator cannot permissibly intentionally fabricate

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evidence, but need not “carry out an investigation in a manner that will ensure an error-

25

free result”). There is no constitutional due process right to “have the investigation

26

carried out in a particular way” or using a particular methodology. Broam v. Bogan, 320

27

F.3d 1023, 1032 (9th Cir. 2003). Defendant’s conclusions based on MDT timestamps

28

proved inaccurate, but inaccurate conclusions based even on a dubious methodology do

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1
2

not violate either Devereaux prong. See Gausvik, 345 F.3d at 817.
4.

Defendant did not Deliberately Fabricate Witness Statements

3

Next, Plaintiffs allege that Defendant deliberately fabricated false witness

4

statements with respect to the reliability of MDT data and admissions by officers that

5

they left early. (Doc. 379 at 15-16). Plaintiffs claim that Defendant said that MDT

6

timestamps would definitely measure officer shift start and stop times, but Lawson, the

7

prosecutor, was in fact responsible for promoting that misconception. (Doc. 386 at 9

8

(citing Doc. 380-16 at 57, 177:24-178:13)). That is not the only statement made by

9

Lawson that Plaintiffs mistakenly credit to Defendant in support of their Devereaux

10

claims. (See Doc. 379 at 13, but see Doc. 386 at 9 (asserting that Lawson’s statements

11

regarding PPD policy on the use of MDTs and that Officer Lentz was short on every shift

12

were deliberated fabricated by Defendant without providing any evidence that Lawson

13

relied on Defendant for those assertions)).

14

In its Notice of Supplemental Authority (Doc. 392), Plaintiffs call the Court’s

15

attention to Spencer v. Peters, which provides that Plaintiffs do not need to meet

16

Devereaux’s two-prong test if Plaintiffs provide “direct evidence of fabrication” by way

17

of deliberately fabricated witness statements (857 F.3d 789, 798-99 (9th Cir. 2017);

18

accord Costanich v. Dep't of Soc. & Health Servs., 627 F.3d 1101, 1111 (9th Cir. 2010)).

19

To this end, Plaintiffs allege that Defendant did just that by “deliberately falsely

20

report[ing]” that officers fully admitted leaving early, but Plaintiffs do acknowledge that

21

officers “admitted to leaving early.” (Doc. 379 at 15); see supra Part III.B.1. An

22

investigative report need not be perfect because the Ninth Circuit explained in Spencer

23

that “[t]o be sure, not all inaccuracies in an investigative report give rise to a

24

constitutional claim.” 857 F.3d at 789 (citations omitted).

25

Here, Defendant’s interpretation of officers’ statements is reasonable under the

26

circumstances and does not rise to the high standard of deliberately fabricated evidence.

27

Defendant did not manufacture any officer’s words, but understood them to be full

28

admissions of leaving early even though some officers provided excuses or potential

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1

justification for their conduct. (See Doc. 379 at 6 n.37-38). “Mere ‘careless[ness]’ is

2

insufficient, as are mistakes of ‘tone’” to prove direct fabrication by an investigator who

3

mischaracterizes a witness statement. Spencer, 857 F.3d at 798. Even if Defendant

4

mischaracterized officer’s statements by claiming that they “fully admitted” to leaving

5

early when most of those officers offered a caveat to their admission, this is, at worst,

6

akin to a mistake in tone. (See Doc. 379 at 6 n.37-38). The Court finds that there is no

7

direct evidence of fabrication herein, therefore, Plaintiffs must satisfy the Devereaux test

8

to advance their deliberate fabrication claims.

9

5.

Defendant’s Investigative Techniques

10

Plaintiffs further allege that Defendant disregarded or failed to ascertain

11

“potentially exculpatory evidence” provided by officers as to various timekeeping

12

processes. (Id. at 16). Even if true, “[a] police officer’s failure to preserve or collect

13

potential exculpatory evidence does not violate the Due Process Clause unless the officer

14

acted in bad faith.” Cunningham v. City of Wenatchee, 345 F.3d 802, 812 (9th Cir. 2003)

15

(holding that a police officer was entitled to qualified immunity even though he failed to

16

document multiple interrogations, did not keep a record of statements denying a criminal

17

suspect’s wrongdoing, and failed to gather physical evidence that could have exonerated

18

the suspect). Rather, a plaintiff must “put forward specific, nonconclusory factual

19

allegations that establish improper motive” to prove that an investigator acted in bad faith

20

by failing to pursue all potentially exculpatory evidence. Id. (citing Jeffers v. Gomez, 267

21

F.3d 895, 907 (9th Cir. 2001)). Plaintiffs do not offer such evidence here. For example,

22

Defendant failed to recall that she interviewed Officer Thiebaut because that interview

23

was not transcribed. (Compare Doc. 380 at 54 with Doc. 375 at 18). However, that failure

24

was clearly due to an administrative error by administrative staff and Plaintiffs offer no

25

evidence of bad faith. (See Doc. 375 at 18).

26

6.

Defendant did not Deliberately Fabricate Additional Evidence

27

Finally, Plaintiffs argue that Defendant fabricated additional evidence by

28

“rel[ying] on unreliable and incomplete sources in her investigation,” including the PSB

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1

spreadsheet. (Doc. 379 at 19). The PSB spreadsheet was a compilation of preliminary

2

data adduced by Veach in the PPD’s Professional Standard Bureau, which indicated that

3

there were discrepancies between the hours that officers worked and the hours for which

4

officers were paid at the Job. See supra Part I.A at 3-4. Veach provided the PSB

5

spreadsheet and a companion PowerPoint presentation regarding that status of the

6

investigation to Defendant when this investigation was referred to the AGO. See id. at 4.

7

These documents specifically identified Plaintiffs as being involved in potential theft by

8

getting paid for more hours than they worked at the Job and included an estimated dollar

9

amount of alleged theft. (See Doc. 376-2 at 29-91). Veach testified in her deposition that

10

her documentation was “incomplete … and that there was other data available.” (Doc.

11

380-2 at 35, 232:19-21). Plaintiffs allege that Defendant did not “verify the information

12

she received” from Veach, which led to her inaccurate conclusions. (Doc. 379 at 19).

13

While the extent to which Defendant relied on this incomplete documentation is in

14

dispute, Defendant did undisputedly review some additional sources of evidence during

15

the course of the investigation. Plaintiffs concede that “[Defendant] reviewed multiple

16

data sources and PPD policies” and that Defendant specifically “attempted to review and

17

analyze all data provided to her for every shift Plaintiff Officers worked at the Job” (Doc.

18

380 at 63-64, ¶¶ 74-75) (internal quotations omitted). For example, in analyzing Plaintiff

19

Officer Sywarungsymun’s shift on March 24, 2016, Defendant reviewed several

20

documents related to the shift in addition to MDT timestamps, including: the “log”

21

identifying when the shift was supposed to start and end, “The [PPD] Code Enforcement

22

Unit Off-Duty Query Results,” the “Off-Duty Officer Job Log,” the “[PPD]

23

Dispatched/Call Back Calls for Service Grid,” the handwritten “Daily Log,” the “Patrol

24

Recap Unit History Worksheet,” the “Off-Duty Vehicle Log,” and various financial

25

records and general practices in constructing a timeline of when Officer Sywarungsymun

26

actually worked at the Job during day. (Compare Doc. 376 at 10-11, ¶¶ 77 with Doc. 380

27

at 66, ¶¶ 77). 7

28
7

Plaintiffs dispute that Defendant reviewed arrest records for the Job, which she
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1

Plaintiffs contend that Defendant failed to gather or ignored other sources of

2

evidence to clarify Job timelines, which resulted in inaccurate findings. (Doc. 379 at 19).

3

For instance, Defendant reviewed portable radio deactivation data for some shifts, but did

4

not request that data for many more shifts. (See, e.g., Doc. 380 at 10, ¶¶ 18.4.1). To the

5

extent that Defendant did over-rely on the PSB spreadsheet from Veach, Defendant was

6

basing her investigation on a record that was known to be “flawed” and contained

7

“errors.” (Doc. 380-2 at 40-41, 257:2-13; 258:4-9). Veach, however, did not identify

8

what those errors might be, except that she had did not fix all the potential typos in the

9

document and the math within the spreadsheet was not entirely accurate. (Id. at 40-41,

10

257:2-13; 258:4-9; Id. at 44, 271:19-24). Veach did not share that any specific items or

11

data points in her spreadsheet were false; only that the dollar amounts of potential theft

12

per officer were estimates. (Id. at 98, 164:9-16).

13

Even so, Defendant is not constitutionally required to conduct a reasonably

14

thorough, diligent, or even competent investigation. See Malley, 475 U.S. at 341.

15

Defendant did rely on, or offer as true, any specific data points that she knew to be false

16

in the PSB spreadsheet because Veach did not point out any and had not yet reached any

17

conclusions about her data by the time she turned it over to Defendant. (See Doc. 380-2 at

18

25:3-15). Defendant undoubtedly could have exercised additional due diligence to

19

ascertain the validity of timestamps and other data she did rely on, but that is not the

20

standard under Devereaux. See Devereaux, 263 F.3d at 1076-77. When viewed in the

21

light most favorable to Plaintiffs, the evidence in the record cited by Plaintiffs only

22

demonstrates that Defendant relied on data from an incomplete administrative

23

investigation that was “flawed” and contained careless or inaccurate representations of

24

the facts. (See Doc. 329 at 31-32). A careless or inaccurate investigation that does not

25

ensure an error-free result does not rise to the level of a constitutional violation. See

26
27
28

claimed to have reviewed generally and specifically for this shift; nevertheless, Plaintiffs
concede that Defendant reviewed several different data sources during her investigation
and did not rely exclusively on the PSB spreadsheet and PowerPoint. (Doc. 380 at 66, ¶¶
77).
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1

Gausvik, 345 F.3d at 817.

2

7.

Conclusion as to the Devereaux Claims

3

While viewing all disputed facts in the light most favorable to the Plaintiffs, the

4

evidence fails to support a finding that Defendant’s conduct violated either of the

5

Devereaux prongs. Defendant seemingly relied on incomplete data at times and failed to

6

conduct a conclusively thorough investigation of Plaintiffs, which resulted in inaccurate

7

findings. (Doc. 379 at 7). However, this level of carelessness in conducting a less than

8

thorough investigation fails to meet the standard set by Devereaux to remove the

9

protection of qualified immunity for deliberately fabricating evidence. See Gausvik, 345

10

F.3d at 817. There is no disputed issue of fact that indicates Defendant knew or should

11

have known that Plaintiffs were innocent during her investigation. Defendant’s

12

investigative shortcomings are not “so coercive and abusive” that Defendant knew or

13

should have known that those techniques would yield false information, even though the

14

investigation was faulty. Devereaux, 263. F.3d at 1076. 8 Accordingly, Defendant is

15

entitled to qualified immunity on the Devereaux claims.

16

C.

17

Defendant also argues that she is entitled to qualified immunity on Count III,

18

malicious prosecution. A malicious prosecution claim brought under § 1983, requires

19

proof that defendant “prosecuted [Plaintiffs] with malice and without probable cause, for

20

the purpose of denying [them] equal protection” under the Constitution. Awabdy v. City

21

of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (quoting Freeman v. City of Santa Ana,

22

68 F.3d 1180, 1189 (9th Cir. 1995)).

Count III: Malicious Prosecution

23

Although Defendant is an investigator, not a prosecutor, actions for malicious

24

prosecution are not limited to prosecutors; such an action may be brought against those

25

who wrongfully caused charges to be filed. Galbraith v. County of Santa Clara, 307 F.3d

26

1119, 1126–27 (9th Cir. 2002) (holding that a malicious prosecution claim brought under

27
8

28

Additionally, Plaintiffs do not allege and point to no evidence that Defendant’s
interview techniques were abusive or coercive, so the Court need not address that issue.
(Doc. 379 at 21).
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1

§ 1983 could proceed against a coroner).

2

Ordinarily, the decision to file a criminal complaint is
presumed to result from an independent determination on the
part of the prosecutor, and thus, precludes liability for those
who participated in the investigation or filed a report that
resulted in the initiation of proceedings . . . However, the
presumption of prosecutorial independence does not bar a
subsequent § 1983 claim against state or local officials who
improperly exerted pressure on the prosecutor, knowingly
provided misinformation to him, concealed exculpatory
evidence, or otherwise engaged in wrongful or bad faith
conduct that was actively instrumental in causing the
initiation of legal proceedings. See Galbraith, 307 F.3d at
1126–27 (holding that plaintiff’s allegations that a coroner’s
knowingly or recklessly false statements led to his arrest and
prosecution were sufficient to state a § 1983 claim).

3
4
5
6
7
8
9
10
11

Awabdy, 368 F.3d at 1067 (citing Smiddy v. Varney, 665 F.2d 261, 266–68 (9th Cir.

12

1981), overruled on different grounds by Beck v. City of Upland, 527 F.3d 853, 865 (9th

13

Cir. 2008)).

14

Here, Plaintiffs have a malicious prosecution claim available against Defendant if

15

Defendant’s false reports induced Lawson to file criminal charges against Plaintiffs

16

without probable cause. (Doc. 379 at 22).

17

1.

Probable Cause

18

Plaintiffs argue that probable cause was lacking to prosecute Plaintiffs. See id.

19

Plaintiffs further allege that Defendant was “actively instrumental in causing the

20

initiation of legal proceedings” against Plaintiffs. (Doc. 379 at 21-22 (citing Lacy v. Cty.

21

of Maricopa, 631 F. Supp. 2d 1197, 1210 (D. Ariz. 2008) (citing Awabdy, 368 F.3d at

22

1066)). Plaintiffs were initially indicted after Defendant presented her investigatory

23

findings as the sole witness to the grand jury. See supra Part I.A at 5. After the errors in

24

Defendant’s investigation were brought to light during criminal discovery, a new grand

25

jury was empaneled and decided not to return an indictment against Plaintiffs. (See Doc.

26

379 at 22-23). Plaintiffs allege that this shows there was no probable cause to indict

27

Plaintiffs due to the removal of faulty information provided by Defendant from the legal

28

proceeding. See id. at 23. While viewing all disputed facts in the light most favorable to

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1

the Plaintiffs, the evidence can support a finding that Defendant caused Plaintiffs to be

2

prosecuted without probable cause.

3

Even if probable cause was lacking, Plaintiffs must show that Defendant

4

“reasonably believed in good faith that probable cause” did not exist. Smiddy, 665 F.2d at

5

266. By finding that Defendant did not deliberately fabricate evidence in violation of

6

Devereaux, this Court determined that Defendant did not continue her investigation

7

despite the fact that she knew or should have known that Plaintiffs were innocent. See

8

supra III.B.7 at 17. But Defendant’s reasonable belief that Plaintiffs were not innocent is

9

a lower standard than belief that there was probable cause. Even if Defendant should

10

have known that probable cause did not exist to prosecute Plaintiffs, Plaintiffs’ argument

11

fails to satisfy the additional elements for malicious prosecution addressed below.

12

2.

Malice

13

Defendant argues that there is no evidence of malice because Plaintiffs did not

14

allege that Defendant’s conduct was undertaken for the purpose of violating Plaintiffs’

15

constitutional rights. (Doc. 375 at 21). Plaintiffs argue that “a reasonable jury could also

16

infer malice and intent to deprive [Plaintiffs] of constitutional rights” if Plaintiff

17

deliberately fabricate false evidence. (Doc. 379 at 23 (citing Lacy, 631 F. Supp. 2d at

18

1211)). While this is true, the Court found that Defendant did not deliberately fabricate

19

false evidence. See supra III.B.7 at 17. Plaintiffs offer no evidence to support a finding

20

that Defendant’s otherwise careless reliance on incomplete evidence and failure to

21

conduct a more thorough investigation was motivated by bad faith or the purpose of

22

denying Plaintiffs equal protection. Awabdy, 368 F.3d at 1067. Accordingly, the Court

23

cannot infer malice and Defendant is entitled to qualified immunity on the malicious

24

prosecution claim.

25

///

26

///

27

///

28

///

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1

IV.

Conclusion

2

For the reasons outlined above,

3

IT IS ORDERED that Defendant Hinchey’s Motion for Summary Judgment on

4

Qualified Immunity Grounds on February 2, 2017 (Doc. 375) is GRANTED. Thus,

5

Defendant Hinchey is granted immunity on Counts I, II, and III. Because these are the

6

only claims remaining against the only remaining Defendant, the Clerk of Court shall

7

enter judgment in favor of Defendant Hinchey and against Plaintiffs and shall close this

8

case.

9

Dated this 7th day of July, 2017.

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