Perzynski v. Cerro Gordo County, Iowa et al
Filing
44
ORDER granting 6 Motion for Summary Judgment. The complaint is hereby dismissed. Judgment shall be entered against Perzynski and in favor of the defendants. Trial, which is scheduled to begin on 9/16/13, and the final pretrial conference, which is scheduled for 9/3/13, are hereby canceled. Signed by Magistrate Judge Leonard T Strand on 6/18/13. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
DEBRA PERZYNSKI,
Plaintiff,
No. C12-3003-LTS
CERRO GORDO COUNTY, IOWA, a
Municipal Corporation, and Kenneth
Kline and Heather Mathre, individually
and in their corporate capacities,
MEMORANDUM OPINION AND
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT
vs.
Defendants.
____________________
TABLE OF CONTENTS
I.
PROCEDURAL HISTORY ............................................................... 2
II.
RELEVANT FACTS ....................................................................... 2
III.
SUMMARY JUDGMENT STANDARDS .............................................. 7
IV.
ANALYSIS ................................................................................... 9
A.
Section 1983 ....................................................................... 10
1.
Probable Cause ........................................................... 10
2.
Kline’s and Mathre’s Liability ......................................... 15
3.
Cerro Gordo County’s Liability ........................................ 18
B.
Malicious Prosecution ........................................................... 21
1.
Probable Cause ........................................................... 21
2.
Instigation ................................................................. 21
3.
Malice ...................................................................... 24
C.
False Imprisonment .............................................................. 26
V.
Conclusion ................................................................................. 27
This case is before me on defendants’ motion (Doc. No. 6) for summary
judgment, filed December 27, 2012. Plaintiff filed her resistance (Doc. No. 13) on
February 20, 2013, and defendants filed their reply (Doc. No. 19) on March 7, 2013.
After resolving a dispute over the contents of plaintiff’s summary judgment appendix, I
heard oral arguments on May 24, 2013. Attorney Mark Sherinian appeared for the
plaintiff and attorney Jason Craig appeared for all defendants. The motion is fully
submitted.
I.
PROCEDURAL HISTORY
Plaintiff Debra Perzynski filed this action on January 13, 2012. Her complaint
(Doc. No. 1) includes a jury demand and names the following defendants: Cerro Gordo
County, Iowa, Kenneth Kline, both individually and in his corporate capacity as the
County Auditor for Cerro Gordo County, and Heather Mathre, both individually and in
her corporate capacity as the Budget Director for Cerro Gordo County. Perzynski’s
causes of action include a claim under 42 U.S.C. § 1983 against all defendants,
malicious prosecution against all defendants and false imprisonment against Cerro
Gordo County. She invokes the court’s federal question jurisdiction pursuant to 28
U.S.C. § 1331 and supplemental jurisdiction over the related state law claims pursuant
to 28 U.S.C. § 1367.
Defendants filed their answer and affirmative defenses on February 15, 2012
(Doc. No. 3). The parties subsequently consented to trial, disposition and judgment by
a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and the case was
assigned to me on April 23, 2013.
II.
RELEVANT FACTS
The following facts are presented in the light most favorable to Perzynski, the
nonmoving party:
2
Perzynski’s employment.
Perzynski worked in the Management Information
Systems (MIS) Department for Cerro Gordo County (County). In 2004, her payroll
status was changed from salaried to hourly due to changes by the United States
Department of Labor that classified her position as non-exempt. She originally kept
track of her time on weekly timesheets, which her supervisor reviewed and signed.
Beginning May 14, 2007, she was required to use a time clock, which meant she had to
punch in and out when she arrived at work, went to lunch, returned from lunch and left
work. While other hourly-wage County employees were also required to use the time
clock, Perzynski was the only hourly-wage MIS department employee.
Perzynski often had to work outside the office, assisting with computer support
in other County offices or picking up supplies for the department. She worked outside
the office approximately twenty-five percent of the time and would often start or end
her workday away from the time clock. The County had a procedure under which
hourly employees could request corrections to the hours recorded by the time clock
system. For example, if an employee forgot to punch in or punch out, the employee
could request a correction from his or her supervisor. If the supervisor approved the
proposed correction, the supervisor would submit it to the auditor’s office. According
to the defendants, two employees in the auditor’s office, Sandy Shonka and Denice
Knudson, were the only County employees authorized to make edits through the time
clock software. Thus, if an employee’s proposed correction was approved by his or her
supervisor, one of those two individuals (usually Shonka) would make the necessary
manual adjustment in the software system.
Perzynski’s supervisor during the relevant period of time was Scott Tepner.
Tepner gave Perzynski the user name and password to the time clock software so she
could reboot the system as necessary and generally keep it up and running, consistent
with her duties as an MIS employee. He showed her how the system worked and,
according to Perzynski, showed her how to edit timecard entries so she could edit her
3
own.1 Because Perzynski, unlike other hourly employees, often worked away from the
County courthouse, she needed to edit her time clock entries on a more-frequent basis.
She felt that employees in the auditor’s office were carefully scrutinizing her time and
were suspicious of her need for regular edits. Likewise, Tepner was aware that people
gossiped about Perzynski receiving too much overtime pay.
As such, Perzynski
contends that Tepner showed her how to edit timecard entries so she could make
necessary corrections to her own entries without repeatedly going through the regular
procedure.
Perzynski edited her own timecards from May 2007 to October 2009. Each
week, and in accordance with County policies, she printed her timecard for Tepner to
review and sign. The printed timecard did not show that any edits had been made but
instead reflected the modifications Perzynski had made herself. Tepner reviewed the
weekly timecards with Perzynski, asked if any changes needed to be made, and then
signed them and submitted them to Shonka in the auditor’s office.
Tepner has testified that he did not authorize Perzynski to edit her own time
entries through the time clock software and was not aware she was doing so. However,
he also testified that her weekly timecards never caused him to suspect that she was
being paid for more time than she actually worked. He believed Perzynski regularly
worked one to four hours of overtime every two weeks.
Events leading to discovery of edits. Perzynski’s edits to her timecards were
discovered in October 2009. An edit had been made for 12:00 a.m. (midnight) that,
apparently, should have been 12:00 p.m. (noon). This caused Perzynski’s timecard to
reflect 15 hours of overtime for a single day. Knudson, Shonka and Mathre (who also
worked in the auditor’s office) found the mistake. The County’s external auditor, Janis
Slater, was at the courthouse that day to conduct a regular annual, external audit.
1
Perzynski and Tepner had a romantic relationship prior to 2007, when he became her
supervisor. I point this out only because it could cause reasonable jurors to be more likely to
find that Tepner did, in fact, authorize Perzynski to edit her own time entries.
4
Knudson called Tepner to ask if this amount of overtime was correct and he said it was
not. Knudson discovered that the entry had been created through the computer rather
than with the time clock and that neither she nor Shonka had entered it into the system.
Knudson confronted Tepner who said he had not made the edit, but confirmed (based
on the IP address) it had been made using the computer in the MIS server room.
Knudson asked Tepner not to say anything to Perzynski so they could monitor the
situation and find out if further edits were made. However, Tepner told Perzynski that
her time cards were being investigated and she stopped making edits.
Further investigation revealed that a total of 595 edits were made to Perzynski’s
time entries from the computer in the MIS server room over a period of two years. No
such edits were found with regard to any other employee’s time records. Slater gave
notice of the situation to the Office of the Auditor for the State of Iowa and to the
County Auditor, Kenneth Kline. Kline met with Tepner, Mathre, Slater, personnel
manager Tom Drzycimski, County Supervisor Bob Amosson and the County Attorney
to discuss the situation on November 10, 2009.
This same group, except for Slater and the County Attorney, met with Perzynski
on November 12, 2009. When she was asked to explain the edits, she stated that she
had no explanation. Perzynski now explains that Tepner had warned her prior to the
meeting that she was going to be fired regardless of what she said. Based on that
information, and following the advice of her attorney, she declined to provide an
explanation during the meeting. Her employment was terminated the same day.
On December 11, 2009, a hearing was held on Perzynski’s claim for
unemployment benefits. At this hearing, Perzynski admitted to editing her time entries
and stated that her purpose for doing so was to reflect the time she actually worked for
the County.
Events leading to criminal charges. Kline and Mathre first met with Chief
Deputy David Hepperly on November 16, 2009. After explaining the situation, they
asked Hepperly to investigate for possible criminal charges. They explained that they
5
were still in the process of documenting information from the time clock software that
would be needed for a criminal investigation.2
Kline and Mathre met with Hepperly in December 2009 to discuss a report they
had prepared with calculations that were presented as unauthorized time clock
edits/adds. This report included a base amount of $1,644.04 that they were “firm” and
“solid” about as being unearned compensation based on the edits. Mathre explained
this figure was based on instances in which Perzynski had edited her time back or
forward from the time she actually clocked in or out. For example, if she clocked in at
8:30 a.m. and edited the time to 8:10 a.m., they calculated 20 minutes of unearned
compensation.
If she clocked out at 4:30 p.m. but edited it to 5:00 p.m., they
calculated 30 minutes of unearned compensation. The minimum number was based on
a strict reading of actual time clock punches.
The report also showed Perzynski could have received unearned compensation of
up to $7,131.84, but this was considered less quantifiable because it involved time
entries that had been added rather than simply changed. For example, if there were
time clock entries at noon and 3:00 p.m. one day, and Perzynski then added an entry of
12:30 p.m., Kline and Mathre treated this as 2.5 hours of unearned compensation
because the system showed she was not back at work until 3:00 p.m. but she created an
entry showing that she returned at 12:30 p.m.
Hepperly conducted an investigation that included interviews with ten individuals
who had knowledge of the case, in January and February 2010.
None of those
individuals were asked whether they had witnessed Perzynski not working when her
timecards, as edited, reflected that she was, and none of them offered such information.
Hepperly discussed whether to file criminal charges with Assistant Attorney
General Andrew Prosser. Kline was present at their final meeting before the criminal
charges were filed. Hepperly filed the complaint on February 22, 2010. He called
2
Kline and Mathre assert this information was compiled under the direction of the state
auditor’s office. Perzynski maintains that Kline and Mathre conducted their own investigation.
6
Perzynski that day and she voluntarily turned herself in.
She was arrested and
incarcerated in the Cerro Gordo County jail for a short time that day. Prosser then
filed the trial information on March 23, 2010, charging Perzynski with theft in the
second degree in violation of Iowa Criminal Code §§ 714.1 and 714.2(2). A district
court judge approved the trial information and minutes of evidence, thus allowing
Prosser to proceed with prosecution.
Dismissal of criminal charges. Perzynski filed a motion to dismiss the criminal
case on September 22, 2010. She argued that she could not face trial for theft because
the State could not prove that she did not actually work during the times reflected by
her edits to the time clock computer system. In other words, even if those edits were
not authorized, there was no evidence that she received compensation for time not
actually worked. Judge Stephen P. Carroll ultimately granted the motion, finding that
while the factual allegations established unauthorized use of a computer system to edit
time records, there were no factual allegations “providing a nexus between her
unauthorized use and her receiving any compensation in excess of that to which she was
entitled by virtue of the hours she actually worked for the County.” As such, the
criminal case was dismissed on February 4, 2011.
III.
SUMMARY JUDGMENT STANDARDS
Any party may move for summary judgment regarding all or any part of the
claims asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate
when “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine issue of material fact and
that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
A material fact is one that “‘might affect the outcome of the suit under the
governing law.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
7
“the substantive law will identify which facts are material.”
Id.
Facts that are
“critical” under the substantive law are material, while facts that are “irrelevant or
unnecessary” are not. Id.
An issue of material fact is genuine if it has a real basis in the record, Hartnagel
v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or when “‘a reasonable jury could
return a verdict for the nonmoving party’ on the question,” Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248).
Evidence that only provides “some metaphysical doubt as to the material facts,”
Matsushita, 475 U.S. at 586, or evidence that is “merely colorable” or “not
significantly probative,” Anderson, 477 U.S. at 249-50, does not make an issue of
material fact genuine.
As such, a genuine issue of material fact requires “sufficient evidence supporting
the claimed factual dispute” so as to “require a jury or judge to resolve the parties'
differing versions of the truth at trial.” Anderson, 477 U.S. at 248-49. Essentially, a
genuine issue of material fact determination, and thus the availability of summary
judgment, is a determination of “whether a proper jury question [is] presented.” Id. at
249. A proper jury question is present if “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.” Id.
The party moving for entry of summary judgment bears “the initial responsibility
of informing the court of the basis for its motion and identifying those portions of the
record which show a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing
Celotex, 477 U.S. at 323). Once the moving party has met this burden, the nonmoving
party must go beyond the pleadings and by depositions, affidavits, or otherwise,
designate specific facts showing that there is a genuine issue for trial. Mosley v. City of
Northwoods, 415 F.3d 910 (8th Cir. 2005). The nonmovant must show an alleged
issue of fact is genuine and material as it relates to the substantive law. If a party fails
to make a sufficient showing of an essential element of a claim or defense with respect
8
to which that party has the burden of proof, then the opposing party is entitled to
judgment as a matter of law. Celotex, 477 U.S. at 322.
In determining if a genuine issue of material fact is present, I must view the
evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at
587-88.
Further, I must give the nonmoving party the benefit of all reasonable
inferences that can be drawn from the facts. Id. However, “because we view the facts
in the light most favorable to the nonmoving party, we do not weigh the evidence or
attempt to determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo &
Co., 383 F.3d 779, 784 (8th Cir. 2004). Instead, “the court's function is to determine
whether a dispute about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90
F.3d 1372, 1376-77 (8th Cir. 1996).
IV.
ANALYSIS
Defendants seek summary judgment on all claims.
They argue Perzynski’s
Section 1983 claim must be dismissed because she cannot prove: (a) that the defendants
knowingly made any materially false, fictitious or fraudulent statements that led to the
criminal charges filed against her or (b) that there was an official governmental policy
that led to her being criminally charged. They also argue there was probable cause
supporting the decision to charge Perzynski with theft.
Defendants contend they are entitled to summary judgment on Perzynski’s
malicious prosecution claim because she cannot prove: (a) the defendants caused her
prosecution, (b) the defendants acted with malice or (c) that there was want of probable
cause.
Finally, they argue they are entitled to judgment on Perzynski’s false
imprisonment claim because Perzynski was not unlawfully detained. I will address
each claim separately below.
9
A.
Section 1983
In Count I of her complaint, Perzynski seeks damages from all three defendants
pursuant to 42 U.S.C. § 1983. To prevail on a Section 1983 claim, a plaintiff must
establish two essential elements: (1) the violation of a right secured by the Constitution
or laws of the United States and (2) the alleged deprivation of that right that was
committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48
(1988).
As for the first element, Perzynski claims that she was “denied her
constitutionally protected right not to be deprived of her liberty without due process of
law” when she was arrested for theft.3
“By virtue of its ‘incorporation’ into the
Fourteenth Amendment, the Fourth Amendment requires the States to provide a fair
and reliable determination of probable cause as a condition for any significant pretrial
restraint of liberty.” Baker v. McCollan, 443 U.S. 137, 142 (1979). Thus, to establish
the first element Perzynski must show that she was deprived of her liberty without
probable cause. The second element requires her to show that this occurred because
the named defendants, acting under color of state law, caused the deprivation. See,
e.g., Bagby v. Brondhaver, 98 F.3d 1096, 1098 (8th Cir. 1996) (“An official who
causes such a deprivation is subject to § 1983 liability.”).
1.
Probable Cause
The Eighth Circuit has stated that “when the issue of probable cause arises in a
damage suit and the facts are not disputed or are susceptible to only one reasonable
inference, the question is one of law for the court.” Fleming v. Harris, 39 F.3d 905,
907 (8th Cir. 1994) (citing Warren v. City of Lincoln, 864 F.2d 1436, 1439 (8th Cir.
Perzynski’s complaint is not exactly clear as to her specific constitutional claim. This
prompted defendants to point out that malicious prosecution is not actionable under Section
1983 because it is not a constitutional injury. See Kurtz v. City of Shrewsbury, 245 F.3d 753,
758 (8th Cir. 2001); see also Pace v. City of Des Moines, 201 F.3d 1050, 1055 (8th Cir.
2000). During the summary judgment hearing, Perzynski’s counsel stated that the alleged
constitutional violation at issue is arrest and imprisonment without probable cause under the
Fourth and Fourteenth Amendments.
3
10
1989) (en banc), cert. denied, 490 U.S. 1091 (1989)). Here, I will view evidence in a
light most favorable to Perzynski in analyzing the question of whether probable cause
existed at the time of her arrest.
Perzynski was charged with theft via a complaint filed by Hepperly in the Iowa
District Court for Cerro Gordo County on February 22, 2010. P. App. 94. The
complaint alleged that she made unauthorized entries into a computerized time keeping
system and, as a result, received payment of wages “that were not lawful.” Id. The
complaint further alleged that the amount of “fraudulent wages” was between $1,000
and $10,000. Id. The complaint included Hepperly’s sworn declaration that it was
based on facts known to Hepperly or told to him by other reliable persons. Id. Once
the complaint was filed, Perzynski turned herself in and was booked and incarcerated
for some period of time before being released on her own recognizance. P. App. 18.
There is no dispute that she was deprived of her liberty for at least a short period of
time because of the criminal complaint.
“Probable cause exists when a police officer has reasonably trustworthy
information that is sufficient to lead a person of reasonable caution to believe that the
suspect has committed or is committing a crime.” Veatch v. Bartels Lutheran Home,
627 F.3d 1254, 1257 (8th Cir. 2010). Iowa’s Civil Jury Instructions describe probable
cause as follows:
Probable cause for filing a criminal charge means having a
reasonable ground. Probable cause exists where the [arresting officer]
knew enough about the facts and circumstances and had reasonable
trustworthy information, including what someone else told [him] [her] so
that a reasonable person would believe that the plaintiff was guilty of the
crime charged.
Probable cause does not require absolute certainty or proof beyond
a reasonable doubt. It is to be determined by the factual and practical
considerations of everyday life on which reasonable and careful persons
[not legal experts] act.
11
Iowa Civil Jury Instruction 2200.3 (Malicious Prosecution – Probable Cause).
A
similar concept, reasonable belief for making an arrest, is explained this way:
A person's belief is reasonable if it is based on reasonably trustworthy
information about the facts and circumstances which would allow a
reasonably careful person to believe a crime had been committed.
Whether an arrest is based on a reasonable belief is determined by the
circumstances existing and known to the [arresting officer] when the
arrest was made, and not later investigation of the facts or the outcome of
later criminal charges.
Iowa Civil Jury Instruction 2800.4 (False Arrest – Reasonable Belief). All of these
descriptions share the same key, objective elements. If an officer has “reasonably
trustworthy information” that would lead a reasonable person to believe that the suspect
committed a crime, probable cause exists.
The Supreme Court has recognized that “[t]he probable-cause standard is
incapable of precise definition or quantification into percentages because it deals with
probabilities and depends on the totality of the circumstances.” Maryland v. Pringle,
540 U.S. 366, 371 (2003). As such, “[f]inely tuned standards such as proof beyond a
reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no
place in the [probable-cause] decision.” Illinois v. Gates, 462 U.S. 213, 235 (1983).
Instead:
To determine whether an officer had probable cause to arrest an
individual, we examine the events leading up to the arrest, and then
decide “whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to” probable cause.
Pringle, 540 U.S. at 371. This means that I must consider the information that was
available to Hepperly as of February 22, 2010, to determine if there was probable cause
to charge and arrest Perzynski on that date.
As discussed above, Hepperly conducted an investigation that included
interviews of ten witnesses.
He had information that Perzynski used the County’s
12
computer software system to make 595 edits to her own time entries over a period of
approximately two years.
He had information from Tepner that Perzynski denied
making the edits when Tepner confronted her, but that the edits then stopped
immediately. P. App. 129. Tepner told him that Perzynski was not authorized to make
edits. P. App. 131. Indeed, Tepner stated that no one in the MIS department, or at the
courthouse in general, should have been logging into the system with that password to
adjust Perzynski’s time entries. Id. Tepner also stated that he had been unaware that
Perzynski was making her own edits. P. App. 132.
Other witnesses likewise advised Hepperly that Perzynski was not authorized to
log into the system and edit her own time entries. Hepperly also learned Perzynski’s
practice of making secret edits was discovered only because she made an error that
resulted in the appearance that she worked 15 hours of overtime in a single day. Of
course, and as discussed above, Hepperly also had a report from Kline and Mathre with
calculations that were presented as being the dollar value of the unauthorized time clock
edits/adds.
According to Kline and Mathre, they were “firm” and “solid” on a
minimum figure of $1,644.04 as the minimum amount of unearned compensation based
on Perzynski’s edits. While that information turned out to be either incorrect or, at
least, impossible to prove, there is no evidence that Hepperly knew that at the time he
filed the complaint. Indeed, it was reasonable for him to believe that Perzynski, having
made hundreds of unauthorized secret edits to her time entries over a period of two
years, received some amount of unearned compensation.
Even when the evidence is viewed in a light most favorable to Perzynski, no
reasonable juror could find that Hepperly lacked probable cause to charge her with theft
on February 22, 2010. As of that date, he had “reasonably trustworthy information”
that would lead a reasonable person to believe that Perzynski committed that crime. He
did not have to have enough information to prove each element of that crime beyond a
reasonable doubt. See, e.g., Gates, 462 U.S. at 235. He was entitled to trust that his
13
sources, who included the County Auditor, the County Budget Director and an outside
auditor, were providing accurate information.
My conclusion that probable cause existed as a matter of law is bolstered by the
Iowa District Court’s approval of the trial information and minutes of evidence on
March 23, 2010. P. App. 117. By that date, Prosser had taken over Perzynski’s
prosecution and had prepared minutes of evidence which summarized each witness’s
expected testimony. P. App. 118-23. In all material respects, the minutes of evidence
describe the information that was available to Hepperly one month earlier, when he
filed the complaint.
An Iowa District Court judge reviewed the minutes and found that the evidence,
if unexplained, “would warrant a conviction by the trial jury.” P. App. 117. The
minutes stated Mathre would testify that the “value in dollars of the edits” was at least
$1,644.04.
P. App. 120.
However, the minutes made no representation that any
witness would testify that Perzynski did not work the hours reflected by her edited time
records. P. App. 118-23. While this lack of evidence later proved to be fatal to the
criminal charge against Perzynski, it did not prevent the reviewing judge from finding
that there was probable cause to proceed with the case.
In short, in hindsight it is easy (and, frankly, perfectly fair) to be critical of the
decision to charge Perzynski with theft.
However, in considering the information
known to Hepperly on February 22, 2010, no reasonable juror could find that probable
cause was lacking.
As such, Perzynski cannot demonstrate that she suffered an
unconstitutional deprivation of her liberty due to the arrest and period of incarceration
that resulted from that charge.
Defendants are entitled to summary judgment on
Perzynski’s claim under Section 1983.
14
2.
Kline’s and Mathre’s Liability
Even if a jury could find that probable cause was lacking, Perzynski would have
to make an additional showing in order to recover against Kline and Mathre. To hold a
public official liable under Section 1983 for causing a false arrest or imprisonment, a
plaintiff must show that the official “instigated” the arrest. See, e.g., Busch v. City of
Anthon, Iowa, 173 F. Supp. 2d 876, 895 (N.D. Iowa 2001). This means much more
than simply reporting information to law enforcement. Indeed: “[t]here is no liability
for merely giving information to legal authorities, who are left entirely free to use their
own judgment, or for identifying the plaintiff as the person wanted.” Id. (quoting
Dixon v. Hy-Vee, Inc., No. 00-1234, 2001 WL 912738 (Iowa Ct. App. Aug. 15,
2001)). Instead, the official must have knowingly supplied false information, which
means “supplying information the supplier knows is false, and does not mean the mere
good faith supplying of mistaken information.” Id. (citing Powers v. Carvalho, 117
R.I. 519, 368 A.2d 1242, 1248 (1977)).
Viewing the facts in the light most favorable to Perzynski, Kline and Mathre told
Hepperly that Perzynski had been paid a minimum of $1,644.04 in unearned
compensation and that they were “firm” and “solid” on this number. Hepperly relied
on this information in making his arrest because he needed proof of value for a theft
charge.
The real issue is whether Perzynski can demonstrate a genuine issue of
material fact as to whether this information was knowingly false when it was provided
to Hepperly.
Perzynski argues this was a knowingly and intentionally false statement because
Kline and Mathre knew they could not prove she did not work the hours that were
reflected in her edited time cards. Perzynski relies on deposition testimony during
Perzynski’s criminal case in which Mathre stated she did not know whether Perzynski
worked the time she had claimed on her edited timecards. P. App. 38. Perzynski also
relies on a statement Kline made to Hepperly in his interview in response to a question
15
on the difference between the minimum and maximum numbers Kline and Mathre had
calculated for unearned compensation. Kline stated:
There are things that, you know, these, this figure
incorporates everything by which we had some information
to judge. Was it reliable or not? You could read it different
ways. The answer is, we don’t know but we have some
information we can quantify, that’s what this constitutes.
There’s a lot, you know, who the hell knows. She creates
four punches, two days later, I mean she didn’t punch a
single time, she creates four punches, how do you quantify
that? I don’t even know if she was here that day. I have no
information that she was here that day, other than this
calendar, but, you know, it doesn’t tell us when she was
here.
P. App. 177. Evidence as to whether a person knows he or she cannot prove an
assertion is not evidence that person knows the assertion is false. This evidence fails to
demonstrate a genuine issue of material fact on whether Kline and Mathre knew their
statements were factually false when they made the statements.
Mathre testified she did not know whether Perzynski had worked the hours
reflected in her edited time cards:
Q:
Okay. So you really – Are you telling me that you
know she didn’t work for the $8,700 that you claim
that she got paid for two and a half years?
A:
Do I know she didn’t work?
Q:
That she didn’t work that time.
A:
No.
P. App. 38. To allow a jury to find in her favor, Perzynski would need to present
evidence that when Mathre made the relevant statements to Hepperly, Mathre did know
that Perzynski actually had worked the hours reflected in her edited timecards. In other
words, Mathre had actual knowledge that Perzynski had worked those hours yet chose
to deceive Hepperly by telling him that she had not done so.
16
This is where the uncertainty caused by Perzynski’s edits comes back to bite her.
That uncertainty led to the dismissal of criminal charges against her, as Judge Carroll
determined that a theft charge could not proceed to trial without proof that Perzynski
received pay for hours she did not work. Now, however, Perzynski is the plaintiff in a
civil case and bears the burden of proof. She must show not only that she actually
worked all of the claimed hours, but also that Mathre knew this but provided contrary,
false information to the authorities.
There is no evidence that could support such a finding. Even if Mathre was
wrong in believing that Perzynski’s edits resulted in overpayments, being wrong is far
removed from knowingly providing false information. Or, as I stated above, being
unable to prove an allegation is distinct from knowing that the allegation is false. As
such, even when the evidence is viewed in a light most favorable to Perzynski, the
record does not allow a reasonable juror to find that Mathre acted with the required,
culpable state of mind when she told Hepperly she was “firm” or “solid” on $1,644.04
being the minimum amount of unearned compensation paid to Perzynski. There is no
evidence that Mathre knew this statement was false when it was made.
The same analysis applies to Kline.
Kline’s interview with Hepperly
demonstrates only Kline’s knowledge of how the dollar amounts were calculated and
why the larger number was harder to quantify. It does not generate a fact issue as to
whether Kline knew Perzynski was entitled to compensation for the edited hours but
still chose to tell Hepperly she was not. If anything, Kline’s statement is like Mathre’s
in that it demonstrates he did not know whether Perzynski had actually worked the
hours she reported.
Perzynski’s evidence only demonstrates that Kline and Mathre made an
accusation based on an assumption that an employee making hundreds of secret edits to
her own time entries received unearned compensation. That assumption could not be
proved true but also cannot be proved false. Mathre and Kline may have been careless
in providing information to Hepperly. However, this does not demonstrate that they
17
knowingly made false statements that instigated a false arrest. Because Perzynski has
failed to produce any evidence that would allow the jury to find that Kline and Mathre
knowingly made false statements, summary judgment is appropriate on the Section
1983 claim against them even if probable cause to support the charge of theft against
Perzynski was lacking.
3.
Cerro Gordo County’s Liability
The third defendant, Cerro Gordo County, likewise has an alternative argument
for summary judgment on the Section 1983 claim. The County contends it is entitled to
summary judgment because Perzynski cannot prove there was an official governmental
policy that led to her being criminally charged. Municipalities may not be held liable
under Section 1983 “unless action pursuant to official municipal policy of some nature
caused a constitutional tort.” Stepnes v. Ritschel, 663 F.3d 952, 963 (8th Cir. 2011)
(quoting Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978)).
“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable
to the municipality. The plaintiff must also demonstrate that, through its deliberate
conduct, the municipality was the ‘moving force’ behind the injury alleged.” Bd. of
Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 404 (1997) (emphasis in
original). “A ‘policy’ is an ‘official policy, a deliberate choice of a guiding principle
or procedure made by the municipal official who has final authority regarding such
matters.’” Cline v. Union Cnty., Iowa, 182 F. Supp. 2d 791, 802 (S.D. Iowa 2001)
(quoting Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999)). “A policy can be
inferred from a single decision taken by the highest officials responsible for setting
policy in that area of the government’s business.” Dahl v. Rice Cnty., Minn., 621 F.3d
740, 743 (8th Cir. 2010).
Perzynski argues the County is liable because a policy can be inferred from
Kline’s decision to report Perzynski to the sheriff’s department for investigation. She
18
argues Kline had decision-making authority and his decision to report Perzynski and
make false representations to Hepperly ultimately led to her arrest. The County argues
this is insufficient to demonstrate an official policy or custom in this case or that it was
the “moving force” behind Perzynski’s arrest.
I agree with the County that Perzynski has failed to produce any evidence that
demonstrates the alleged constitutional violation was the result of any official
governmental policy. Even assuming that Kline and Mathre made false representations
that led to her arrest, there is no evidence that they made the representations based on
an official governmental policy or custom rather than their own free will.
“[A]
municipality cannot be held liable solely because it employs a tortfeasor—or, in other
words, a municipality cannot be held liable under § 1983 on a respondeat superior
theory.” Monell, 436 U.S. at 691 (emphasis in original). A governmental policy also
cannot be inferred simply from pointing out that Kline had decision-making authority
and he decided to make false representations to law enforcement.
Perzynski has
presented no evidence that this single incident represented a policy of either Kline’s or
the County’s. See Dahl, 621 F.3d at 743 (acknowledging that although a policy can be
inferred from a single decision, a single incident where a sheriff lost his temper did not
constitute deliberative action representing a policy).
Perzynski’s second theory of the County’s liability is based on the “cat’s paw”
concept. In the employment discrimination context, the Eighth Circuit has applied the
cat’s paw rule to mean “an employer cannot shield itself from liability for unlawful
termination by using a purportedly independent person or committee as the
decisionmaker where the decisionmaker merely serves as the conduit, vehicle, or
rubber stamp by which another achieves his or her unlawful design.” Qamhiyah v.
Iowa State Univ. of Science and Tech., 566 F.3d 733, 742 (8th Cir. 2009) (quoting
Richardson v. Sugg, 448 F.3d 1046, 1060 (8th Cir. 2006)). She relies on Smith v.
Bray, 681 F.3d 888, 897 (7th Cir. 2012), to suggest the cat’s paw theory can be used to
19
hold the employer vicariously liable under Section 1983.4
Perzynski’s counsel
acknowledged during the hearing that no Eighth Circuit case supports the cat’s paw
theory in this context.
Perzynski suggests that Hepperly was used as the “cat’s paw” and that Kline
improperly influenced Hepperly in order to have Perzynski arrested and criminally
prosecuted. Even if this theory was legally viable, and it is not, there is no evidence to
support it. Perzynski relies on evidence that Kline was “very upset” about the situation
and wanted someone held accountable, that he took over the investigation from the state
auditor’s office and conducted his own investigation, and that he attended the final
meeting between Prosser and Hepperly before the charges were filed. This evidence
would not permit a reasonable jury to find for Perzynski on a cat’s paw theory. In any
event, that theory cannot be used to hold the County liable because it essentially would
employ a respondeat superior theory with Kline as the tortfeasor. The law is clear that
“a municipality cannot be held liable solely because it employs a tortfeasor . . . .”
Monell, 436 U.S. at 691.
Perzynski has failed to set forth sufficient evidence demonstrating a genuine
issue of material fact as to whether the County could be held liable because she has
failed to demonstrate that an official governmental policy or custom caused the alleged
violation of her constitutional rights.
As such, the County would be entitled to
summary judgment on the Section 1983 claim even if probable cause to support the
charge of theft against Perzynski was lacking.
4
Smith v. Bray is not persuasive authority for this argument. It is a Section 1981 case
involving race discrimination and retaliation in the private sector and acknowledges that in
Waters v. City of Chicago, 580 F.3d 575, 586 n.2 (7th Cir. 2009), the court had questioned
whether the cat’s paw theory could be used to establish municipal liability under Section 1983
where the biased subordinate was not a policy-maker.
20
B.
Malicious Prosecution
Count II asserts a claim of malicious prosecution against all three defendants.
To succeed on this claim under Iowa law, a plaintiff must prove: (1) a previous
prosecution, (2) instigation of that prosecution by the defendant, (3) termination of that
prosecution by acquittal or discharge of the plaintiff, (4) want of probable cause, (5)
malice on the part of the defendant for bringing the prosecution, and (6) damage to the
plaintiff.
Whalen v. Connelly, 621 N.W.2d 681, 687-88 (Iowa 2000) (en banc).
Defendants argue Perzynski’s malicious prosecution claim must be dismissed as a
matter of law because she cannot prove that (1) defendants instigated her prosecution,
(2) defendants acted with malice or (3) there was want of probable cause.
1.
Probable Cause
As discussed in Section IV(A)(1), supra, I find as a matter of law that probable
cause existed to support a charge of theft against Perzynski when that prosecution was
commenced. As such, the defendants are entitled to summary judgment on Perzynski’s
malicious prosecution claim. Nonetheless, I will address the defendants’ alternative
arguments for summary judgment.
2.
Instigation
Defendants argue they did not instigate Perzynski’s prosecution because they did
not initiate, request, demand or direct that this incident be investigated for possible
criminal charges. They contend that they simply compiled information as instructed by
the state auditor and the decision to prosecute was made by Assistant Attorney General
Andrew Prosser. Prosser relied on the report prepared by Kline and Mathre, as well as
other evidence gathered by Hepperly, in deciding whether to prosecute.
According to the Restatement,
A person who does not himself initiate criminal proceedings
may procure their institution in one of two ways: (1) by
21
inducing a third person, either a private person or a public
prosecutor to initiate them, or (2) by prevailing upon a
public official to institute them by filing an information. It
is, however, not enough that some act of his should have
caused the third person to initiate the proceedings. One who
gives to a third person, whether public official or private
person, information of another’s supposed criminal conduct
or even accuses the other person of the crime, causes the
institution of such proceedings as are brought by the third
person. The giving of the information or the making of the
accusation, however, does not constitute a procurement of
the proceedings which the third person initiates thereon if it
is left to the uncontrolled choice of the third person to bring
the proceedings or not as he may see fit.
Restatement (Second) of Torts § 653, comment d. A private person may be responsible
for the initiation of proceedings by a public official if he gave that official information
he knew was false and the official acted on that information. Restatement (Second) of
Torts § 653, comment g (adopted in Rasmussen Buick-GMC v. Roach, 314 N.W.2d
374, 376 (Iowa 1982)).
In order to charge a private person with responsibility for
the initiation of proceedings by a public official, it must
therefore appear that his desire to have the proceedings
initiated, expressed by direction, request or pressure of any
kind, was the determining factor in the official’s decision to
commence the prosecution, or that the information furnished
by him upon which the official acted was known to be false.
Restatement (Second) of Torts § 653, comment g.
Perzynski relies on several facts to demonstrate that defendants instigated the
prosecution. Viewing these facts in the light most favorable to Perzynski, she first
points out that Kline and Mathre met with Hepperly in December 2009 and presented
Hepperly with amounts they claimed were unauthorized payments of wages that
Perzynski was not entitled to.
Kline and Mathre were “firm” and “solid” on the
minimum amount of $1,644.04. Hepperly did not understand how these amounts were
calculated and was not given the itemization.
22
Hepperly understood that Kline and
Mathre desired that criminal charges be filed and Hepperly noticed that Kline was
“very upset” about the situation and wanted someone held accountable. Hepperly told
another employee in the auditor’s office that Kline was “very adamant” that the
situation with Perzynski got “taken care of.”
I find that this evidence is insufficient to demonstrate a genuine issue of material
fact as to whether the defendants instigated the criminal prosecution either by
pressuring Hepperly or knowingly providing false information. Perzynski does not
offer any evidence as to whether Prosser was improperly influenced or relied on
knowingly false information in deciding whether to prosecute.
Her evidence only
involves Hepperly. Perzynski admitted that the decision to file formal charges was
made by Hepperly and Prosser. See Plaintiff’s Response to Defendants’ Statement of
Undisputed Material Facts ¶¶ 36, 37, Doc. No. 13-1 at 6. Hepperly investigated the
case and filed the complaint which led to Perzynski’s arrest, but it was Prosser who
filed the trial information and minutes of evidence. Perzynski offers no evidence that
could lead a jury to find that Prosser was in any way influenced by Kline and Mathre,
alone or through Hepperly, when he and Hepperly decided to prosecute Perzynski.
As to Hepperly, the evidence does not demonstrate a fact issue as to whether the
defendants instigated the prosecution by knowingly providing false statements or
pressuring him to the extent their motivation was the determining factor in whether to
prosecute. As discussed in Section IV(A)(2), supra, the evidence only demonstrates
they provided information and – at most – made an accusation, which “does not
constitute a procurement of the proceedings” when the third person is left with the
uncontrolled choice whether to file charges. See Restatement (Second) of Torts § 653,
comment d. There is no evidence to suggest that Hepperly and Prosser were influenced
by Kline or Mathre in making the choice whether to file charges beyond merely
considering the evidence they had provided.
Even if Kline and Mathre were upset about the situation, wanted someone held
accountable and shared these feelings with Hepperly, this evidence does not create a
23
genuine issue of material fact as to whether they instigated the prosecution. To survive
the motion for summary judgment, Perzynski must produce evidence that would allow
the jury to find either (1) that Kline and Mathre knowingly provided false information
to Hepperly or Prosser that they relied on in filing the charge or (2) that Kline and
Mathre otherwise induced Hepperly and Prosser into filing the charge by taking actions
that went beyond merely supplying information from which Hepperly and Prosser made
an independent decision. She has not done so. As such, she has failed to demonstrate
a genuine issue of material fact as to this element of her malicious prosecution claim.
3.
Malice
In an action against a public official, the plaintiff must prove that the defendant
acted with “actual malice.” Small v. McCrystal, 708 F.3d 997, 1010 (8th Cir. 2013).
Actual malice “cannot simply be inferred from a lack of probable cause, but must be
the subject of an affirmative showing defendant’s instigation of criminal proceedings
against plaintiff was primarily inspired by ill-will, hatred or other wrongful motives.”
Moser v. Black Hawk Cnty., 300 N.W.2d 150, 152-53 (Iowa 1981) (quoting Vander
Linden v. Crews, 231 N.W.2d 904, 906 (Iowa 1975)). “If the defendant’s purpose in
instigating proceedings was otherwise proper, the fact he felt indignation or resentment
toward the plaintiff will not subject him to liability.” Id.
Perzynski argues there is sufficient evidence of malice by Kline and Mathre.
She contends that Kline exhibited a “vitriolic demeanor and mannerism” after
Perzynski’s edits were discovered. For example, she references Tepner’s deposition
testimony in which he stated that Kline was “very animated” when he told Tepner that
Perzynski was making changes to her timecard. P. App. 89. Kline told Tepner that he
thought law enforcement should be present for their meeting when they confronted
Perzynski about the edits. Id. Tepner testified that Kline pounded the table with his
fist during that meeting, stating “this is fraud.” P. App. 91. Tepner also testified that
24
when he heard Perzynski’s case had been dismissed, he called the auditor’s office to
confirm the information. Within three minutes, Kline was in his office screaming at
him not to talk to anyone about Perzynski’s case. P. App. 88. Tepner had never seen
Kline angry like this before. Id.
Perzynski also argues that Kline was deceptive. For support, she references
Tepner’s deposition testimony in which he testified that Kline stated before the meeting
with Perzynski that Perzynski was going to be given two options. She could resign and
pay back the money owed or she would be terminated and prosecuted. P. App. 89.
However, during the meeting when Perzynski was confronted about the edits, he told
her the County did not know whether charges would be filed. P. App. 93.
Finally, Perzynski argues that Kline had an improper motive for having
Perzynski charged. She offers evidence that Kline’s son has a background in computers
and in early 2009, Kline approached Tepner about the possibility of his son working in
the MIS department.
P. App. 25, 86.
Kline’s son was later hired by the MIS
department to do part-time work. P. App. 31, 86. Kline’s son spoke with Tepner
about a full-time position in March, May, and June of 2010.
P. App. 26.
Tom
Drzycimski testified in his deposition that Kline’s son applied for Perzynski’s position
in October 2011. P. App. 6. Perzynski believes that Kline’s son no longer pursued
this position and withdrew his name from consideration when he was listed as a
potential witness by Perzynski’s lawyer. P. App. 63.
As to Mathre, Perzynski’s evidence of malice comes from Perzynski’s
observations of Mathre on two different occasions. Perzynski was acquainted with
Mathre’s husband from her former job with the Department of Health in Mason City.
When Perzynski left that job to take a position with the County MIS Department,
Mathre’s husband said he was sorry to see her go because she was one of the few
people he liked in the department.
When this comment was repeated in front of
Mathre, Perzynski observed that Mathre appeared upset. P. App. 124-25. Mathre was
also “extremely hostile and defensive throughout her deposition” for the criminal
25
proceeding which Perzynski attended, particularly when Mathre was asked to explain
her calculations. Id.
Even viewing these facts in the light most favorable to Perzynski, I cannot find
that they present a genuine issue of material fact as to whether Kline or Mathre acted
with malice during the investigation of Perzynski’s edits. While the evidence may
demonstrate Kline’s and Mathre’s frustration with the situation, it is insufficient to
allow the jury to find that they were motivated by personal ill will or hatred toward
Perzynski. Kline, as the County Auditor, would understandably take an interest in, and
be upset by, the discovery of information that a County employee had been making
hundreds of secret, unauthorized edits to his or her time entries. There is no evidence
that his desire to investigate the situation and discuss possible criminal charges was
motivated by ill will or hatred toward Perzynski.
The evidence of alleged malice on the part of Mathre is even weaker. Perzynski
has failed to show that there is a genuine issue of material fact as to whether any
alleged instigation of criminal proceedings by the defendants against Perzynski was
“primarily inspired by ill-will, hatred or other wrongful motives.” Moser, 300 N.W.2d
at 152-53 (quoting Vander Linden, 231 N.W.2d at 906).
C.
False Imprisonment
Count III asserts a claim of false imprisonment against only the County. “The
essential elements of a claim for false arrest are: (1) detention or restraint against one’s
will, and (2) unlawfulness of the detention or restraint.” Kraft v. City of Bettendorf,
359 N.W.2d 466, 469 (Iowa 1984).
“False arrest is indistinguishable from false
imprisonment.” Id. An arrest and imprisonment is not unlawful if the actor “has
reasonable ground for believing that an indictable public offense has been committed
and has reasonable ground for believing that the person to be arrested has committed
it.”
Id. (citing Iowa Code § 804.7(3)(1983)).
26
The term “reasonable ground” is
equivalent to “probable cause.” Id. (citing Children v. Burton, 331 N.W.2d 673, 679
(Iowa), cert. denied, 464 U.S. 848 (1983)).
I have already found that there was probable cause to charge Perzynski with theft
on February 22, 2010. See Section IV(A)(1), supra. Thus, the arrest and brief period
of incarceration that resulted from the charge was not unlawful. As a matter of law,
the County is entitled to summary judgment on Perzynski’s false imprisonment claim.
V.
CONCLUSION
For the reasons set forth herein, defendants’ motion for summary judgment
(Doc. No. 6) is granted as to all claims asserted by Perzynski in this case.
The
complaint is hereby dismissed. Judgment shall be entered against Perzynski and in
favor of the defendants. Trial, which is scheduled to begin on September 16, 2013,
and the final pretrial conference, which is scheduled for September 3, 2013, are hereby
canceled.
IT IS SO ORDERED.
DATED this 18th day of June, 2013.
________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
27
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