Wolf v. Sierra Vista, City of et al

Filing 26

ORDER granting in part 19 Motion for Summary Judgment. This matter is REMANDED to the Superior Court of the State of Arizona, in and for the County of Cochise. It is further ORDERED that the Clerk of the Court shall enter judgment in favor of Defendants as to Count 8 only and close the file in this matter. Signed by Judge Jennifer G Zipps on 6/25/14. (See attached PDF for complete information.) (KAH)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jerold Wolf, No. CV-13-00114-TUC-JGZ Plaintiff, 10 11 v. 12 ORDER Sierra Vista, et al., 13 Defendants. 14 Pending before the Court is a Motion for Summary Judgment filed by Defendants 15 City of Sierra Vista, Sierra Vista City Manager Charles P. Potucek and Sierra Vista Chief 16 of Police Ken Kimmel (“Defendants”) on January 31, 2014.1 (Doc. 19.) Plaintiff Jerold 17 Wolf (“Wolf”) filed a response to the Motion on March 17, 2013. (Doc. 23.) Defendants 18 filed a reply on April 4, 2014. (Doc. 25.) Defendants seek summary judgment on 19 Plaintiff’s claims of libel, slander, false light, defamation, arbitrary demotion in violation 20 of Arizona law, unreasonable discipline in violation of A.R.S. § 38-1104 and violation of 21 due process under Arizona and federal law. For the reasons stated herein, the Court will 22 grant the Motion in part and remand this case to the Cochise County Superior Court.2 23 24 FACTUAL / PROCEDURAL BACKGROUND Plaintiff worked as an officer with the City of Sierra Vista Police Department 25 26 1 27 28 Defendants Charles Potucek and Ken Kimmel were never served in their individual capacities and are therefore sued only in their official capacities. (Doc. 1-2, pg. 2; Doc. 10, pg. 18.) 2 This case is suitable for decision without oral argument. See L.R. Civ. 7.2(f). 1 (“SVPD”) for 15 years. (DSOF 1; PSOF 1.)3 On July 5, 2010, Plaintiff was promoted to 2 Corporal on a six-month probationary basis. (DSOF 2-3; PSOF 2-3.) 3 In October 2010, Plaintiff received an unfavorable performance evaluation.4 (Doc. 4 20-2, pgs. 2-16.) On October 28, 2010, Chief Kimmel wrote a “Memorandum of Record” 5 to Plaintiff stating that the evaluation was unacceptable and that if Plaintiff did not 6 immediately improve, Chief Kimmel would recommend that his probationary period be 7 extended. (Doc. 20-2, pg. 2.) 8 On January 2, 2011, Plaintiff received another evaluation of his performance 9 following the October 2010 assessment. (DSOF 8; PSOF 8; Doc. 20-2, pgs. 18-32.) The 10 evaluation stated that Plaintiff was not performing to expectation. (Id.) Plaintiff refused 11 to sign the evaluation and wrote in the “employee comments” section of the evaluation 12 that the evaluation did not reflect his performance. (Doc. 20-1, pg. 9; Doc. 20-2, pg. 18.) 13 On January 10, 2011, Plaintiff’s probationary status was extended for an additional six 14 months. (DSOF 15; PSOF 15.) 15 On September 26, 2011, Donna Hilton of the City of Sierra Vista Human 16 Resources Department sent a letter to Plaintiff informing him that Chief Kimmel had 17 recommended that Plaintiff be demoted from Corporal to his former position as a police 18 officer. (Doc. 20-2, pg. 39.) The letter advised Plaintiff that he would have an 19 20 21 22 3 Defendants’ Statement of Facts in Support of Defendants’ Motion for Summary Judgment (Doc. 20) is abbreviated herein as “DSOF.” Plaintiff’s Controverting Statement of Facts (Doc. 24, pgs. 1-27) is abbreviated herein as “PSOF.” Plaintiff’s Additional Statements of Fact (Doc. 24, pgs. 27-30) is abbreviated herein as “PPSOF.” 4 23 24 25 26 27 28 Plaintiff objects to the admissibility of nearly every exhibit attached to DSOF on the grounds that the exhibits are unauthenticated, lack foundation and contain hearsay. Because the Court does not rely on the exhibits in reaching its decision in this matter, it need not address Plaintiff’s objections. However, the Court notes that Plaintiff established a foundation for most of Defendant’s exhibits during his deposition. In addition, the evaluations and the internal memoranda related to Plaintiff’s employment are admissible under the business records hearsay exception. See Fed. R. Evid. 803(6). Plaintiff’s statements contained in the affidavit of Mary Chatham are admissible as party admissions. See Fed. R. Evid. 801(d)(2). The Court also notes that Plaintiff relies on statements contained in his evaluation in his PSOF. (Doc. 24, pgs. 2-5.) Finally, Rule 56(c)(2), Fed. R. Civ. P., permits a party to object to material cited to support a fact only if that material cannot be presented in a form that would be admissible in evidence. Plaintiff fails to demonstrate that Defendants would be unable to properly authenticate, lay foundation for, or overcome hearsay issues related to the documents attached to DSOF. -2- 1 opportunity to address the grounds for the demotion at an internal administrative hearing 2 on October 6, 2011. (Id.) On that date, Plaintiff attended a hearing with City Manager 3 Potucek. (Doc. 20-1, pg. 17.) Ms. Hilton and a representative of the police officer’s 4 association also attended the meeting. (Id.) Plaintiff explained why he disagreed with 5 the recommendation that he be demoted. (Id.) Following the October 6, 2011 hearing, 6 the City adopted the Chief’s recommendation and demoted Plaintiff effective October 13, 7 2011. (DSOF 19; PSOF 19.) 8 Plaintiff appealed the City’s decision and, pursuant to the City’s policies, was 9 afforded the opportunity to present his appeal to a hearing officer in the form of an 10 evidentiary hearing. At the November 8, 2011 hearing, Plaintiff was represented by 11 counsel, testified and cross-examined witnesses. 12 November 28, 2011, the hearing officer recommended that the City Manager rescind the 13 discipline and reinstate Plaintiff as a Corporal in the SVPD. (DSOF 22; PSOF 22.) (DSOF 20-21; PSOF 20-21.) On 14 The parties dispute what happened next. According to Defendants, their attorney 15 sent an email to Plaintiff’s attorney on December 5, 2011, stating that City Manager 16 Potucek was not inclined to adopt the hearing officer’s recommendation and that it was 17 within City Manager Potucek’s authority to demote Plaintiff back to the job of regular 18 line officer. (DSOF 23-24.) Defendants’ counsel indicated that, as a compromise, City 19 Manager Potucek was willing to allow Plaintiff to choose an assignment as either the 20 School Resource Officer or as an officer in the property crimes unit following his 21 demotion. (DSOF 26; Doc. 20-3, pg. 16.) On that same date, Plaintiff’s counsel emailed 22 Defendants’ counsel and stated that Plaintiff had agreed to accept the position in the 23 property crimes unit. (DSOF 26; Doc. 20-3, pg. 18.) On December 7, 2011, City 24 Manager Potucek issued a Memorandum to Plaintiff stating: “On October 14, 2011, you 25 submitted an appeal to your demotion from the position of Police Corporal to Police 26 Officer. During the process an agreement was reached that you would be assigned to the 27 Property Crimes Unit effective December 7, 2011.” (DSOF 29; Doc. 20-3, pg. 20.) 28 Plaintiff objects to the admissibility of the emails between his counsel and -3- 1 Defendants’ counsel on the grounds that the emails have not been authenticated, contain 2 hearsay and lack foundation. (Doc. 24, pgs. 15-19.) Plaintiff acknowledges that he 3 received the December 7, 2011 Memorandum from City Manager Potucek, but denies 4 that he reached an agreement with Defendants to forego his appeal of his demotion in 5 exchange for assignment in the property crimes unit. (Doc. 24, pg. 20.) According to 6 Plaintiff, the property crimes position was offered to him as an “olive branch,” but was 7 not intended to end his appeal. (Doc. 20-1, pg. 23.) 8 It is undisputed that Officer Mary Chatham had been slated to fill the open 9 property crimes position. (DSOF 30; PSOF 30.) Officer Chatham stated in an affidavit 10 that Plaintiff told her he had accepted the property crimes position as part of a 11 compromise with the City to resolve his appeal of his demotion from Corporal. (Doc. 20- 12 3, pg. 22.) 13 On June 2, 2012, Plaintiff filed a Notice of Claim pursuant to A.R.S. § 12-821.01. 14 (DSOF 38; PSOF 38.) Plaintiff filed the instant action on November 6, 2012 in Cochise 15 County Superior Court. (Doc. 1.) Plaintiff’s Complaint alleges eight counts against 16 Defendants: (1) libel and slander per quod in violation of Arizona law; (2) libel and 17 slander per se in violation of Arizona law; (3) libel and slander (false light) in violation of 18 Arizona law; (4) defamation in violation of Arizona law; (5) arbitrary demotion in 19 violation of Arizona law; (6) unreasonable discipline of a law enforcement officer in 20 violation of A.R.S. § 38-11045; (7) violation of Arizona’s Due Process clause, Ariz. 21 Const. Art. II.4; and (8) violation of the due process rights guaranteed by the Fifth and 22 Fourteenth Amendments of the United States Constitution. 23 Defendants removed the action to this Court on February 25, 2013. (Id.) Review 24 of the docket indicates that while Defendants served Plaintiff with disclosure and 25 discovery requests and deposed Plaintiff, Plaintiff did not provide Defendants with any 26 27 28 5 On April 25, 2014, portions of Title 38 of the Arizona Revised Statutes were repealed and the statutes were renumbered. See 2014 Arizona House Bill No. 2562, Arizona Fifty-First Legislature - Second Regular Session (Apr 25, 2014). Accordingly, Plaintiff’s claim for unreasonable discipline of a law enforcement officer now arises under A.R.S. § 38-1103. -4- 1 disclosure and did not engage in any discovery in this matter.6 Defendants filed the 2 instant Motion following the close of discovery. STANDARD OF REVIEW 3 4 In deciding a motion for summary judgment, the Court views the evidence and all 5 reasonable inferences therefrom in the light most favorable to the party opposing the 6 motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Eisenberg v. 7 Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987). 8 Summary judgment is appropriate if the pleadings and supporting documents 9 "show that there is no genuine issue as to any material fact and that the moving party is 10 entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 11 477 U.S. 317, 322 (1986). Material facts are those "that might affect the outcome of the 12 suit under the governing law." Anderson, 477 U.S. at 248. A genuine issue exists if "the 13 evidence is such that a reasonable jury could return a verdict for the nonmoving party." 14 Id. 15 A party moving for summary judgment initially must demonstrate the absence of a 16 genuine issue of material fact. Celotex, 477 U.S. at 325. The moving party merely needs 17 to point out to the Court the absence of evidence supporting its opponent's claim; it does 18 not need to disprove its opponent's claim. Id.; see also Fed. R. Civ. P. 56(c). 19 If a moving party has made this showing, the nonmoving party "may not rest upon 20 the mere allegations or denials of the adverse party's pleading, but . . . must set forth 21 specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). See 22 also Anderson, 477 U.S. at 256; Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 23 (9th Cir. 1995). The nonmoving party may not "replace conclusory allegations of the 24 complaint or answer with conclusory allegations of an affidavit." Lujan v. National 25 Wildlife Federation, 497 U.S. 871, 888 (1990). 26 27 28 6 Some of the documents attached to Defendants’ Statement of Facts contain Bates numbers which suggest that Plaintiff provided some disclosure to Defendants (see, e.g., Doc. 202, pgs. 39-42), but Plaintiff did not file any notice of service of disclosure as required by LRCiv 5.2. -5- ANALYSIS 1 2 Defendants move for summary judgment on six grounds: (1) Plaintiff’s claims for 3 libel, slander, defamation and violation of due process under Arizona law are untimely; 4 (2) Plaintiff’s claims for libel, slander and defamation fail as a matter of law; (3) 5 Plaintiff’s claims that he was arbitrarily demoted and unreasonably disciplined are barred 6 by his agreement to accept the demotion in exchange for the opportunity to choose his 7 assignment; (4) Plaintiff’s claims that he was arbitrarily demoted and unreasonably 8 disciplined are time-barred; (5) Plaintiff’s claims that he was arbitrarily demoted and 9 unreasonably disciplined fail as a matter of law; and (6) Plaintiff’s due process claims fail 10 as a matter of law. Because the Court concludes that Plaintiff’s only federal claim is 11 without merit, the Court declines to reach the merits of Defendants’ other arguments and 12 remands this case to the Cochise County Superior Court. 13 1. Plaintiff’s due process claims fail as a matter of law. 14 Seven of the eight counts in Plaintiff’s Complaint arise under state law. The only 15 federal claim alleged by Plaintiff is Count 8, in which Plaintiff alleges a § 1983 claim for 16 violation of his procedural due process rights. (Doc. 1-3, pg. 11.) Plaintiff’s sole federal 17 claim is without merit as to both the City of Sierra Vista and the individual Defendants 18 sued in their official capacity. In order for a municipality to be liable for a section 1983 19 violation, the action alleged to be unconstitutional must implement a policy officially 20 adopted by the municipality. See Miranda v. City of Cornelius, 429 F.3d 858, 869 (9th 21 Cir. 2005). Plaintiff has failed to allege that the City of Sierra Vista adopted a formal 22 policy of depriving employees’ of their due process rights.7 Similarly, an action against a 23 municipal officer in his official capacity is the functional equivalent of a direct action 24 against a municipality. See Newman v. City of Phoenix, 2013 WL 1947412, *2 (D. Ariz. 25 2013). Because Plaintiff has failed to state a claim against the City of Sierra Vista, he has 26 also failed to state a claim against Defendants Kimmel and Potucek, sued in their official 27 28 7 Plaintiff did not respond to Defendants’ argument that Plaintiff had not alleged a formal policy adopted by the City of Sierra Vista (Doc. 19, pg. 13), and apparently concedes this point. -6- 1 capacities. Although Plaintiff makes a cursory allegation that Defendants Kimmel and 2 Potucek were policymakers who ratified the violation of his due process rights (Doc. 24, 3 pg. 29), that allegation is not supported by any admissible evidence.8 Accordingly, 4 Plaintiff’s Complaint does not include a viable federal claim. 5 Because Defendants are entitled to summary judgment on Plaintiff’s only federal 6 claim, the Court declines to exercise jurisdiction over the remaining state law claims. A 7 district court may decline supplemental jurisdiction over state law claims if any of four 8 factors are met: (1) the claim raises a novel or complex issue of State law, (2) the claim 9 substantially predominates over the claim or claims over which the district court has 10 original jurisdiction, (3) the district court has dismissed all claims over which it has 11 original jurisdiction, or (4) in exceptional circumstances, there are other compelling 12 reasons for declining jurisdiction. See 28 U.S.C. § 1367(c); Acri v. Varian Associates, 13 Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (in the usual case in which all federal-law claims 14 are eliminated before trial, the balance of factors will point toward declining to exercise 15 jurisdiction over the remaining state-law claims). 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 8 26 27 28 Pursuant to Monell v. Dept. of Soc. Services, 436 U.S. 658, 694 (1978), a plaintiff may establish municipal liability by proving that the alleged constitutional deprivation was ratified by an official with final policymaking authority. Plaintiff elected not to conduct any discovery on this issue (or any other issue in this case). Instead, in support of his claim that Defendants Kimmel and Potucek were policymakers, Plaintiff cites to his deposition testimony. However, nothing in his deposition relates to Defendant Kimmel’s or Defendant Potucek’s final policymaking authority. (Doc. 20-21, pg. 20.) -7- 1 Defendants present numerous arguments in support of their Motion for Summary 2 Judgment on Plaintiff’s state law claims. Because these arguments arise solely under 3 Arizona law and concern the merits of Plaintiff's surviving state law claims, this Court 4 would defer to the state court's consideration of these issues—should Defendant raise 5 them—following remand of this case.9 6 // 7 // 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 The Court notes that it appears that Counts 1-4 of Plaintiff’s Complaint are without merit. Under Arizona's notice of claim statute, a plaintiff with a claim against a public entity or employee must first file a notice of claim with the person authorized to accept service on behalf of that entity or employee within 180 days after the cause of action accrues. A.R. S. § 12– 821.01(A). Compliance with the notice provision is a “mandatory and essential prerequisite,” Martineau v. Maricopa County, 86 P.3d 912, 914 (Ariz. App. 2004), and a plaintiff's failure to comply bars any claim. Falcon v. Maricopa County, 144 P.3d 1254, 1256 (2006). In addition, Arizona law imposes a one-year statute of limitations for all state law claims against a municipality. See A.R.S. § 12-821. A claim accrues when the plaintiff realizes he has been damaged and knows or should know the cause of the damage. See A.R.S. § 12-821.01 (B). At his deposition, Plaintiff identified two letters that he believed defamed his reputation: (1) a September 23, 2011 memorandum from Chief Kimmel to City Manager Potucek in which Chief Kimmel states that Plaintiff “fails to recognize [his] shortcomings when presented to him by his supervisors”; and (2) an October 11, 2011 memorandum from City Manager Potucek to Plaintiff stating “I cannot overlook your lack of acknowledgement of the errors in judgment.” (Doc. 201, pgs. 26-27; Doc. 20-2, pg. 41, 42.) Plaintiff’s June 2, 2012 notice of claim was not served within 180 days of the date these allegedly defamatory statements were made. In addition, Plaintiff’s November 6, 2012 lawsuit was filed more than one year after the statements were made. Accordingly, Plaintiff’s libel, slander and defamation claims would be barred by A.R.S. § 12-821.01(A) and A.R.S. § 12-821. Plaintiff’s defamation claims suffer from a number of other deficits. Arizona law applies a one-year statute of limitations to defamation, libel and slander claims. See A.R.S. § 12-541; Gulley v. Southwestern Eye Center, 2008 WL 2115299 (D. Ariz. 2008). Plaintiff’s claims would be time-barred under this statute. In addition, in a defamation case, qualified immunity will protect a public official if the facts establish that a reasonable person, with the information available to the official, “could have formed a reasonable belief that the defamatory statement in question was true and that the publication was an appropriate means for serving the interests which justified the privilege.” Chamberlain v. Mathis, 729 P.2d 905, 913 (Ariz. 1986). As for Plaintiff’s 11th hour claim that Defendants defamed him by disregarding the recommendations of the hearing officer and move forward with demoting Plaintiff, (Doc. 23, pg. 6), Plaintiff has not presented any admissible evidence in support of this assertion and it is directly contradicted by his deposition testimony. Plaintiff has also failed to demonstrate that Defendants’ continued efforts to demote him despite the hearing officer’s recommendation somehow constitute a “false statement.” Defendants were not under a legal obligation to adopt the findings of the hearing officer. See A.R.S. § 38-1107(A). Finally, Plaintiff’s claim that the applicable statutes of limitations for his defamation claims were tolled by the “continuing tort” doctrine is without merit; the continuing tort doctrine does not apply to defamation actions arising from a single, identifiable incident. See Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2002). -8- 1 2 3 4 5 6 7 8 CONCLUSION For the foregoing reasons, IT IS ORDERED THAT Defendants’ Motion for Summary Judgment filed on January 31, 2014 (Doc. 19) is GRANTED IN PART; IT IS FURTHER ORDERED that this matter is REMANDED to the Superior Court of the State of Arizona, in and for the County of Cochise. IT IS FURTHER ORDERED THAT the Clerk of the Court shall enter judgment in favor of Defendants as to Count 8 only and close the file in this matter. Dated this 25th day of June, 2014. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-

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