Spooner v. Phoenix, City of et al

Filing 43

ORDER granting 27 Defendants' Motion for Summary Judgment and denying as moot 29 Plaintiff's Motion in Limine. The Clerk is directed to remand this action to state court. Signed by Judge David G Campbell on 2/13/14. (Attachments: # 1 Remand Letter). (LSP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Evelyn Lee Spooner,
Plaintiff,

10
11
12

No. CV-12-02612-PHX-DGC
ORDER

v.
City of Phoenix, et al.,
Defendants.

13
14
15

Defendants City of Phoenix (the “City”), Phoenix Police Department, and

16

Detective Tori Brown have filed a motion for summary judgment. Doc. 27. The motion

17

is fully briefed. For the reasons that follow, the Court will grant the motion.1

18

I.

Background.

19

Plaintiff Evelyn Spooner’s claims arise out of criminal charges that were filed

20

against her in October 2011.2 Doc. 27 at 4. Plaintiff was charged with three counts of

21

theft pursuant to A.R.S. § 13-1802(B) (theft from a vulnerable adult), and A.R.S. § 13-

22

1815 (unlawful use of power of attorney). Doc. 37 at 4. These charges stemmed from a

23

missing persons report that was filed by the stepdaughter of Mary Bossone, a 95-year-old

24

Florida resident. Doc. 27 at 2. The report alleged that Mrs. Bossone had come to

25

Phoenix with Plaintiff for a one-week vacation, and had never returned. Id. The police

26
1

27
28

The request for oral argument is denied because the issues have been fully
briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).
2

Plaintiff is also known as Lee DuBelle and E.L. Dubel, among other names.

1

determined that Mrs. Bossone was living in Phoenix at Magda Family Home Care. Id.

2

at 3.

3

Bossone’s competence and susceptibility to undue influence. Id. Detective Brown

4

notified Maricopa County’s Office of the Public Fiduciary of her investigation and that

5

office elected to file a petition for temporary appointment of a conservator. Id. A

6

conservator was appointed on November 14, 2009, and Mrs. Bossone passed away three

7

months later on February 7, 2010. Id. After Mrs. Bossone’s death, the Public Fiduciary

8

elected to move forward with an investigation of Plaintiff on Mrs. Bossone’s behalf. Id.

9

After serving search warrants at Plaintiff’s home and rental properties and employing a

10

forensic accountant to examine Mrs. Bossone’s bank accounts, Detective Brown

11

submitted the case to the prosecutor’s office and recommended that Plaintiff be charged

12

with the three counts of theft mentioned above. Id. at 4. Detective Brown was the sole

13

witness before a grand jury convened on October 25, 2011, and the grand jury returned

14

an indictment the same day.

15

although Detective Brown asserts that she did not recommend that Plaintiff be arrested.

16

Id. The criminal charges against Plaintiff were later dismissed. Doc. 1-1, ¶ 40.

An investigation conducted by Detective Brown revealed concerns over Mrs.

Id.

Plaintiff was subsequently arrested and booked,

17

Plaintiff contends that Detective Brown was negligent in her investigation and lied

18

to the grand jury. Doc. 1-1, ¶ 17. Plaintiff maintains that, despite a large age difference,

19

she and Mrs. Bossone had been friends for more than 30 years and had visited each other

20

on numerous occasions. Id., ¶¶ 9-11. She denies any wrongdoing and asserts that Mrs.

21

Bossone was competent and participated in all financial decision-making, including

22

granting Plaintiff her power of attorney, purchasing and remodeling a home in Phoenix,

23

and loaning Plaintiff $50,000 for the purchase of a $66,000 Cadillac. Doc. 37 at 5-7.

24

Plaintiff asserts claims under 42 U.S.C. § 1983 (Count One), violation of the Arizona

25

Constitution’s Due Process clause (Count Two), violation of the Arizona Constitution’s

26

privacy clause (Count Three), abuse of process (Count Four), negligence (Count Five),

27

intentional infliction of emotional distress (Count Six), malicious arrest (Count Seven),

28

and false imprisonment (Count Eight). Doc. 1-1, ¶¶ 43-78.

-2-

1

II.

Legal Standard.

2

A party seeking summary judgment “bears the initial responsibility of informing

3

the district court of the basis for its motion, and identifying those portions of [the record]

4

which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

5

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the

6

evidence, viewed in the light most favorable to the nonmoving party, shows “that there is

7

no genuine dispute as to any material fact and the movant is entitled to judgment as a

8

matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a

9

party who “fails to make a showing sufficient to establish the existence of an element

10

essential to that party’s case, and on which that party will bear the burden of proof at

11

trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome

12

of the suit will preclude the entry of summary judgment, and the disputed evidence must

13

be “such that a reasonable jury could return a verdict for the nonmoving party.”

14

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

15

III.

Analysis.

16

As a preliminary matter, Plaintiff concedes that her claims for abuse of process

17

(Count Four) and false imprisonment (Count Eight) cannot withstand summary judgment

18

and that the Phoenix Police Department is a non-jural entity. Doc. 37 at 13-14. The

19

Court will therefore grant summary judgment on Counts Four and Eight and in favor of

20

Defendant Phoenix Police Department.

21

A.

Count One – Section 1983.
1.

22

Claim Against Detective Brown.

23

Defendants assert that Plaintiff’s claims are “based largely on Detective Tori

24

Brown’s allegedly false or misleading grand jury testimony,” and that Detective Brown

25

“is absolutely immune from liability for any allegations stemming from her grand jury

26

testimony.”

27

(emphasis original). In Rehberg, the Supreme Court unequivocally held that “a grand

28

jury witness has absolute immunity from any § 1983 claim based on the witness’

Doc. 27 at 6 (citing Rehberg v. Paulk, 132 S.Ct. 1497, 1506 (2012))

-3-

1

testimony.” 132 S.Ct. at 1506. The immunity recognized in Rehberg is broad: “this rule

2

may not be circumvented by claiming that a grand jury witness conspired to present false

3

testimony or by using evidence of the witness’ testimony to support any other § 1983

4

claim concerning the initiation or maintenance of a prosecution.” Id. Thus, any § 1983

5

claim against Detective Brown based on her testimony before the grand jury cannot

6

survive.

7

Plaintiff argues that because criminal defendants in Arizona “routinely obtain [ ]

8

grand jury transcripts . . . the fears of testifying truthfully and retribution . . . already

9

exists (sic) in Arizona.” Doc. 37 at 10. This and related arguments are not persuasive.

10

Rehberg was based on more than fear of retribution from targets of a witness’ testimony.

11

The Supreme Court also noted the time law enforcement officers would be required to

12

spend defending against civil claims if § 1983 actions were available, and the evidence

13

that could be lost if witnesses refused to testify or shaded their testimony out of fear of

14

civil liability. Rehberg, 132 S.Ct. at 1506, 1509. In addition, Plaintiff cites no authority

15

for her assertion that Rehberg should not apply to state grand jury testimony.

16

Most of Plaintiffs arguments are based squarely on alleged falsehoods in Detective

17

Brown’s grand jury testimony. Doc. 37 at 3-7. Plaintiff does make some assertions

18

concerning alleged defects in Detective Brown’s investigation, but these allegations, if

19

true, lead only to the conclusion that Detective Brown lacked the probable cause she

20

asserted before the grand jury. Because the Supreme Court has made clear that Detective

21

Brown’s grand jury testimony cannot be used “to support any other § 1983 claim

22

concerning the initiation or maintenance of a prosecution,” 132 S.Ct. at 1506 (emphasis

23

added), the Court concludes that Plaintiff’s other arguments, which all lead ultimately to

24

Detective Brown’s grand jury testimony, also fail.

25

2.

Claim Against City of Phoenix.

26

In Monell v. Department of Social Services, 436 U.S. 658, 692 (1978), the

27

Supreme Court held that 42 U.S.C. § 1983 “imposes liability on a government that, under

28

color of some official policy, ‘causes’ an employee to violate another’s constitutional

-4-

1

rights.” The execution of a government policy or custom must be the “moving force”

2

behind the constitutional violation. Id. at 694.

3

Defendants argue that “plaintiff has not even alleged an actionable policy or

4

custom” of the City which was the moving force behind any constitutional violation.

5

Doc. 27 at 9. Plaintiff responds that “the City has tolerated Det. Brown’s practice or

6

custom since at least 2009,” and points to Detective Brown’s alleged conduct in other

7

cases. Doc. 37 at 9. In fact, Plaintiff has provided no evidence of a policy or custom of

8

the City, let alone evidence of a constitutional violation. This is not sufficient to support

9

a Monell claim against the City.

10

Although Plaintiff has not made such an argument, a municipality may be found to

11

be deliberately indifferent to the constitutional rights of its citizens and thus liable under

12

§ 1983 where “city policymakers are on actual or constructive notice that a particular

13

omission in their training program causes city employees to violate citizens’

14

constitutional rights[.]” Connick v. Thompson, 131 S.Ct. 1350, 1360 (2011) (citing Bd. of

15

Cnty. Comm’rs of Bryan Cnty, Okla. v. Brown, 520 U.S. 397, 407 (1997)). “[D]eliberate

16

indifference is a stringent standard of fault, requiring proof that a municipal actor

17

disregarded a known or obvious consequence of his action.” Bryan Cnty, 520 U.S. at 410

18

(internal quotation marks omitted). In order to demonstrate deliberate indifference, it is

19

“ordinarily necessary” to show “[a] pattern of similar constitutional violations by

20

untrained employees[.]” Connick, 131 S.Ct. at 1360 (citing Bryan Cnty, 520 U.S. at 409).

21

Plaintiff has failed to offer evidence to establish that the City was deliberately

22

indifferent to Detective Brown’s alleged constitutional violations.

23

Maricopa County Superior Court cases purportedly involving misconduct by Detective

24

Brown, but she fails to provide the Court with any documentation from those cases. See

25

Doc. 37 at 2-3. Plaintiff does provide a minute entry from State v. Borsenik (Doc. 36-2 at

26

1), showing that the court remanded the case to the grand jury based on concerns about

27

Detective Brown’s grand jury testimony. That minute entry, however, was entered on

28

October 3, 2012, nearly one year after the events in this case took place. Accordingly,

-5-

She cites several

1

the Borsenik case is not evidence that the City had actual or constructive notice of any

2

potential constitutional violations by Detective Brown at the time of her October 25, 2011

3

grand jury testimony. The Court will grant summary judgment for the City on this count.

4

B.

Remaining State Law Claims.

5

The Court may decline to exercise supplemental jurisdiction over state-law claims

6

if it has “dismissed all claims over which it has original jurisdiction.”

28 U.S.C.

7

§ 1367(c); see also Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en

8

banc) (district court has discretion to keep, or decline to keep, state law claims under

9

conditions set forth in § 1367(c)). With the elimination of Plaintiff’s federal claim, the

10

basis for the Court’s jurisdiction no longer exists. The Supreme Court has instructed that

11

“in the usual case in which all federal-law claims are eliminated before trial, the balance

12

of factors . . . will point toward declining to exercise jurisdiction over the remaining state-

13

law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (citing

14

United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966)).

15

Because only state law claims remain, the Court concludes that this action should

16

be remanded. Arizona state courts have greater interest and expertise in resolving state

17

law claims. Further, remand will benefit the federal system by allowing this Court to

18

devote its scarce resources to resolving federal issues. The Court will therefore remand

19

Plaintiff’s remaining claims to state court.

20

C.

Other Pending Motions.

21

Also pending before the Court is Plaintiff’s motion in limine seeking a

22

determination that Detective Brown’s police report is admissible. Doc. 29. The Court

23

will deny this motion as moot.

24
25
26
27
28

-6-

1

IT IS ORDERED that Defendants’ motion for summary judgment (Doc. 27) is

2

granted. Plaintiff’s motion in limine (Doc. 29) is denied as moot. The Clerk is directed

3

to remand this action to state court.

4

Dated this 13th day of February, 2014.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-7-