Oliver v. Nielson et al

Filing 64

MEMORANDUM DECISION AND ORDER granting 49 Defendants' Motion for Summary Judgment. The court ORDERS that judgment in the case be entered in favor of Defendants, that Olivers claims be dismissed with prejudice, and that the clerk of court close the case. Signed by Judge Jill N. Parrish on 3/26/2019. (jds)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
D. BRUCE OLIVER,

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

Plaintiff,
v.
DEPUTY LARRY G. NIELSEN, DEPUTY
BRENT E. PETERS, DEPUTY KEVIN P.
FIELDING, DEPUTY M. DAVIS, DEPUTY
ALAN BLACK, JOHN DOES 1-10, JANE
DOES 1-10, BLACK CORPORATIONS
AND/OR ENTITIES 1-10,

Case No. 1:16cv00155-JNP-BCW
Judge Jill N. Parrish
Magistrate Judge Brooke Wells

Defendants.

This matter is before the court on the Motion for Summary Judgment (ECF No. 49) filed
by Deputy Larry G. Nielson, Deputy Brent E. Peters, Deputy Kevin P. Fielding, Deputy M. Davis
and Deputy Alan Black (collectively “Defendants”) against Plaintiff D. Bruce Oliver (“Oliver”)
on the two claims asserted in his Third Amended Complaint for unlawful arrest and unlawful
seizure of property in violation of 42 U.S.C. §§ 1983 and 1988. Pursuant to DUCivR 7-1(f), the
court determined oral argument is not necessary. Having reviewed the pleadings and memoranda
on file, the court now finds that Defendants are entitled to qualified immunity on both of Oliver’s
claims. Accordingly, the court GRANTS Defendants’ motion for summary judgment.
FACTUAL BACKGROUND
A. Disputed Material Facts
As a preliminary matter, the court expresses concern regarding the briefing in this case.
Defendants cited 107 facts in their “Statement of Undisputed Material Facts,” even though “[o]nly

those facts necessary to decide the motion should be included in this section.” 1 Oliver’s response
to Defendants’ statement of facts likewise did not comport with the requirements set forth in the
local rules. The court’s local rule requires non-moving parties to address the statement of facts as
follows:
A restatement of each fact the opposing party contends is genuinely
disputed or immaterial, a concise statement explaining why the fact
is disputed or immaterial, and a citation with particularity to the
evidence upon which the non-moving party relies to refute any fact
. . . . The non-moving party should not restate all of the moving
party’s statement of facts and should only respond to those facts for
which there is a genuine dispute of material fact. 2
Here, Oliver restated and responded to all 107 of Defendants’ facts rather than only addressing
those facts he genuinely disputes. Oliver admitted 17 of Defendants’ facts, responded “irrelevant”
to 64 facts (without providing any explanation why those facts are immaterial), 3 and provided
commentary and/or argument to 22 facts without expressly disputing any of them. 4 At most, Oliver
only actually disputed the following facts: ¶¶ 61, 78, 91, and 100. Upon reviewing the citations to
the record provided by Oliver to refute these facts, the court did not find any support for a genuine
dispute. Although Oliver argues “every material and genuine issue is disputed,” 5 the court
concludes there are no genuine disputes as to any material fact.

1

DUCivR 56-1(b)(3).

2

DUCivR 56-1(c)(3).

3

See e.g. Opp’n Mot. S.J., Responses to Statements of Facts ¶¶71-75, and 102-107, ECF No. 57.

4

An example of facts that Oliver objects to and deems “irrelevant” are facts ¶¶ 17-20, 24-27, and
29–30. These facts describe the “altercation” that took place outside the courtroom and formed the
basis for Oliver’s arrest. Oliver objects on the grounds that there was “no altercation,” but this is
clearly contradicted by the surveillance video. See ECF No. 50-4, filed conventionally.
5

See e.g. Opp’n Mot. S.J. at 21.

2

B. Relevant Facts
1. Oliver’s Arrest for Disorderly Conduct.
On June 25, 2012, Oliver attended a Department of Child & Family Service (DCFS)
hearing with his son Davis Oliver and his daughter-in-law DeAnn Oliver at the Farmington District
Courthouse. 6 After the hearing, Oliver followed a DCFS employee, Collen Tasker (Tasker) to the
parking lot of the courthouse and asked Tasker to let him take his granddaughter, a minor in DCFS
custody. 7 When Tasker declined to let Oliver take the minor, Oliver initiated a verbal altercation
that lasted over five minutes. 8 According to Tasker, Oliver raised his voice, and the situation was
“intense” and “uncomfortable.” 9 Oliver continued talking to Tasker for almost three minutes after
officers arrived at the scene. Notably, when Oliver first saw the officers, he turned around and
started to walk away, but then turned around and continued the heated discussion with Tasker. 10
One of the officers who assisted in the arrest testified that the situation was “chaotic” and when he
arrived at the scene he could hear Oliver yelling at a distance of fifteen feet. 11 Tasker also testified
that the situation “became very chaotic” and the child in DCFS custody was “upset and crying.” 12
The arresting officer testified that Oliver was “loud and obnoxious” towards the officers at the
scene. 13 Eventually, Oliver was arrested for disorderly conduct. 14

6

ECF No. 50-1.

7

ECF No. 50-5 at 4-5.

8

There is video surveillance footage that shows Plaintiff agitated, pacing and waiving his arms, as
Tasker is trying to respond to him. See ECF No. 50-4, filed conventionally.
9

ECF No. 50-5 at 5.

10

ECF No. 50-4.

11

ECF No. 50-3 at 6, 18.

12

ECF No. 50-5 at 6-7.

13

ECF No. 50-3 at 17.

14

ECF 50-3 at 6.

3

2. Inventory of Oliver’s Property
When Oliver was booked into jail he had in his possession a wallet containing cash and
other items. 15 Oliver signed a Property Sheet that accurately listed all of the items except for the
cash Oliver testified he had in his wallet at the time of the arrest. 16 Oliver testified the cash was
not listed on the Property Sheet and that he reported that fact to an officer. 17 Oliver also testified
he was not present when the cash was removed from his wallet. 18 Oliver testified that all the
property listed on the Property Sheet was returned to him when he was released from jail. 19 He
also signed an Inmate Release Sheet acknowledging he received $171.90 that had been placed on
a debit card and that this was the amount held for him by the Davis County Correctional Facility
during his incarceration. 20 Oliver also testified that three or four bills of special interest were all
returned upon his request. 21 Finally, Oliver acknowledged he has never used the debit card because
he does not use debit cards “of any sort at any time.” 22
LEGAL STANDARD
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” 23 In reviewing a
motion for summary judgment, the court is required to construe all facts and reasonable inferences

15

ECF No. 50-2 at 32.

16

ECF No. 50-9.

17

ECF No. 50-2 at 32.

18

Id. at 36.

19

Id. at 33.

20

ECF No. 50-10.

21

ECF No. 50-2 at 34 (the bills included one stamped “White Power” and one stamped “Reich”
and “Yen Obama”).
22

ECF No. 50-2 at 38.

23

Fed. R. Civ. P. 56(a).

4

in the light most favorable to the nonmoving party. 24 But, when Defendants raise the defense of
qualified immunity, the summary judgment analysis proceeds differently. 25
“[W]hen a defendant raises [a] qualified immunity defense on summary judgment, the
burden shifts to the plaintiff to meet a strict two-part test.” 26 The plaintiff must show: “(1) the
defendant’s violation of a constitutional right; and (2) the ‘infringed right at issue was clearly
established at the time of the allegedly unlawful activity such that a reasonable law enforcement
officer would have known that his or her challenged conduct was illegal.’” 27 “If, and only if, the
plaintiff meets this two-part test does a defendant then bear the traditional burden of the movant
for summary judgment—showing ‘that there are no genuine issues of material fact and that he or
she is entitled to judgment as a matter of law.’” 28 Because Oliver has failed to meet this burden on
either of his claims, the court concludes that Defendants are entitled to qualified immunity and
grants summary judgment in their favor.
ANALYSIS
A. Defendants are Entitled to Qualified Immunity on the First Cause of Action
In his first cause of action, Oliver alleges that the “unlawful search and seizure of [Oliver]
and his property committed under color of law” by Deputies Nielson, Davis, and Black (“Arresting

24

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962).
25

See Nelson v. McMullen, 207 F.3d 1202, 1205–06 (10th Cir. 2000); see also Albright v.
Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (quoting Hunter v. Bryant, 502 U.S. 224, 227
(1991)) (Because “[q]ualified immunity is designed to shield public officials from liability,” the
issue must be resolved at “the earliest possible stage in litigation.”).
26

Nelson, 207 F.3d at 1206.

27

Aragon v. City of Albuquerque, 423 F. App’x 790, 792 (10th Cir. 2011) (quoting Martinez v.
Carr, 479 F.3d 1292, 1295 (10th Cir. 2007)).

28

Nelson, 207 F.3d at 1206 (quoting Albright, 51 F.3d at 1535); see also Aragon, 423 F. App’x at
792 (“Failure on either element, taken in whatever order, is fatal to the plaintiff’s cause.”).

5

Deputies”) 29 deprived him of “his right to be secure in his person against unreasonable seizure of
his person, in violation of the Fourth and Fourteenth Amendments to the Constitution of the United
States.” 30 Although not entirely clear from the language in his Third Amended Complaint, Oliver
appears to be challenging the legality of his arrest on the grounds that the Arresting Deputies lacked
probable cause, arrested him under the wrong statute, and placed him under custodial arrest for a
crime without a jail sentence. For the reasons articulated below, Oliver’s three theories all fail to
meet his burden of establishing that the Arresting Deputies violated a constitutional right, and they
are therefore entitled to qualified immunity on his first cause of action.
1. Defendants Had Probable Cause
The Arresting Deputies had probable cause to arrest Oliver if “under the totality of the
circumstances, a reasonable person would believe that an offense has been committed by the
person arrested.” 31 Oliver was arrested for Disorderly Conduct under Utah Code Annotated section
76-9-102. 32 The statute is comprised of two subsections that set forth different types of conduct
constituting disorderly conduct. Subsection (a) provides, in relevant part, that “[a] person is guilty
of disorderly conduct if: (a) the person refuses to comply with the lawful order of a law

29

It is undisputed that Deputies Nielson, Davis, and Black all assisted in Oliver’s arrest and
detained Oliver prior to transferring him to the Davis County Jail. Although Oliver does not specify
against which Defendants he asserts his First Cause of Action, in the heading to his Third Amended
Complaint, Oliver makes clear that Deputies Fielding and Peters are joined as to the second cause
of action only. See Third Am. Compl. at 1.
30

Third Am. Compl. at ¶ 24.

31

Morris v. Noe, 672 F.3d 1185, 1192 (10th Cir. 2012) (quoting United States v. Martin, 613 F.3d
1295, 1302 (10th Cir.2010)).
32

See ECF 50-1, Deputy Incident Report at 3, 6, 9–10, 12, 14. The Deputy Incident Report
consistently states that Oliver was arrested on June 25, 2012 for “Disorderly Conduct;” however,
the specific statute listed varies between Utah Code Ann. § 76-9-102 and § 76-10-1505. See e.g.
ECF 50-1 at 3, 9, and 14. Disorderly Conduct is a class C misdemeanor under both statutes, but
under § 76-10-1505, the conduct must occur on a public bus. Because no bus was involved, it is
clear that the officer intended to book Oliver under § 76-9-102.

6

enforcement officer to move from a public place[.]” 33 Subsection (b) provides, in relevant part,
that a person is guilty if “(b) intending to cause public inconvenience, annoyance, or alarm, or
recklessly creating a risk thereof, the person: (i) engages in fighting or in violent, tumultuous, or
threatening behavior” or “(ii) makes unreasonable noises in a public place[.]” 34 A “public place”
is defined, in relevant part, as “any place to which the public or a substantial group of the public
has access and includes but is not limited to streets, highways, and the common areas of . . . public
buildings and facilities[.]” 35
Here, the record shows Oliver was involved in an “intense” verbal altercation with a DCFS
employee, 36 asked to take a minor who was in DCFS custody, 37 raised his voice at the DCFS
employee, 38 and was “loud” and “obnoxious” to the deputies when they responded to the scene.39
Oliver additionally refused to comply with the deputies’ orders 40 and this behavior occurred in the
parking lot outside of the courthouse in the presence of several people. 41 This evidence is
sufficient to constitute Disorderly Conduct as set forth in Utah Code Annotated section 76-9-102.
The facts here establish that Oliver created a situation that caused alarm (Oliver attempting
to take a minor in DCFS custody), Oliver engaged in threatening behavior (Oliver was visibly
upset, raised his voice at a DCFS employee and was obnoxious to the responding officers), and

33

Utah Code Ann. § 76-9-102(1)(a).

34

Id. § 76-9-102(1)(b).

35

Id. § 76-9-102(2).

36

ECF No. 50-5 at 5.

37

Id.

38

Id.

39

ECF No. 50-3 at 7, 17.

40

Id. at 6-7; see also ECF No. 50-1.

41

ECF No. 50-5 at 4–5.

7

that Oliver made unreasonable noise in a public place (the confrontation occurred in the parking
lot of the courthouse). Utah courts have consistently held that loud yelling constitutes
“unreasonable noises” for purposes of the disorderly conduct statute. 42 Likewise, Utah courts have
upheld convictions for disorderly conduct where the defendant, in addition to yelling, either fails
to comply with orders or “grudgingly” complies. 43 Based on the undisputed facts, the record shows
that the Arresting Deputies had probable cause to arrest Oliver for Disorderly Conduct.
2. Officer’s Mistaken Reference to the Incorrect Statute Did Not Invalidate the Arrest
Oliver next argues that his arrest violated the Fourth Amendment because the arresting
officer identified the incorrect statute on his citation. The court disagrees. While it is true that
section 76-10-1506 of the Utah Code (Bus Passenger Safety Act) was erroneously cited in Oliver’s
arrest report alongside section 76-9-102, 44 the error is a non-issue. First, the Deputy Incident
Report clearly lists Utah Code section 76-9-102 as the basis for the arrest. 45 Second, “‘[a]n arrest
is not invalid under the Fourth Amendment simply because the police officer[s] subjectively

42

See Layton City v. Tatton, 264 P.3d 228 (Utah Ct. App. 2011) (“The record was replete with
evidence that Defendant was not just using expletives, harsh language, and vulgarities but that she
was also doing so at high volume . . . . This readily qualifies as unreasonable noise[] in a public
place.” (internal quotations omitted)); see also State v. Lambeth, 2005 UT App 289, 2005 WL
1476893, at *2 (unpublished) (finding probable cause to arrest appellant for disorderly conduct
under Utah Code Ann. § 76-9-192 where defendant was loudly yelling profanities).
43

See Orem City v. Bovo, 76 P.3d 1170, 1171 (Utah Ct App. 2003) (finding probable cause to
arrest for disorderly conduct where “Defendant’s behavior was belligerent and aggressive,” and
“he grudgingly complied with the officers’ requests”); see also State v. Griego, 933 P.2d 1003,
1005, 1008–09 (Utah Ct. App. 1997) (finding probable cause for disorderly conduct where
defendant “refused [an officer’s] request in vulgar and obscene terms” and “[d]espite the officers’
continued requests to defendant to ‘calm down’. . . , defendant continued to struggle and yell
obscenities, drawing the attention of several neighbors.”).
44

The Deputy Report cites to Utah Code Ann. §§ 76-9-102 and 76-10-1506. ECF No. 50-1.
Meanwhile, the Citation and Probable Cause Affidavit in Plaintiff’s underlying criminal case cites
to section 76-10-1506. ECF Nos. 50-7 and 50-8. Deputy Nielsen testified that he identified this
statute because it was the one listed in his Utah Highway Patrol Handbook. ECF No. 50-3 at 9.
45

See supra note 32.

8

intended to base the arrest on an offense for which probable cause is lacking, so long as the
circumstances, viewed objectively,’ warrant arrest for some offense.” 46 In fact, the Supreme Court
has “rejected a reading of the Fourth Amendment that would require a connection between the
offense establishing probable cause and the offense identified [by the arresting officer] at the time
of the arrest.” 47 Because Defendants had probable cause to arrest Oliver for Disorderly Conduct
under section 76-9-102, his arrest did not violate the Fourth Amendment.
3. Custodial Arrest was not Unlawful
Plaintiff also claims his arrest was unlawful because he was arrested for an infraction which
does not carry a jail sentence. This argument fails because “when police officers have probable
cause to believe a person has committed a crime in their presence, the Fourth Amendment permits
a warrantless arrest . . . regardless of whether the crime qualifies as an arrestable offense under
applicable state law.” 48 The Supreme Court has specifically rejected the argument that the Fourth
Amendment would forbid “custodial arrest, even upon probable cause, when conviction could not
ultimately carry any jail time.” 49 Because the Arresting Deputies had probable cause for Oliver’s
warrantless, custodial arrest, they are entitled to qualified immunity on Plaintiff’s first claim. 50

46

United States v. Petersen, 525 F. App'x 808, 810 (10th Cir. May 22, 2013) (alteration and
emphasis in original) (quoting Morris, 672 F.3d at 1192–93).
47

United States v. Turner, 553 F.3d 1337, 1344 (10th Cir. 2009) (citing Devenpeck v. Alford, 543
U.S. 146, 152–53 (2004)).
48

Id. at 1345 (citing Virginia v. Moore, 553 U.S. 164, 176 (2008)).

49

Atwater v. City of Lago Vista, 532 U.S. 318, 346 (2001).

50

Because the court concludes that Defendants had probable cause, it follows that a reasonable
officer would have believed that he had probable cause. Thus, Oliver’s claim fails on both prongs
of the “two-part test.” See Morris, 672 F.3d at 1194 (“When a warrantless arrest is the subject of
a § 1983 action, the arresting officer is entitled to qualified immunity if a reasonable officer could
have believed that probable cause existed to make the arrest.”); see also Aragon, 423 F. App’x at
792–93 (reaching the second prong but not the first).

9

B. Defendants are Entitled to Qualified Immunity on the Second Cause of Action
Next, Oliver alleges that his Fourth Amendment right to be free from unreasonable search
and seizure was violated by the search and seizure of his property during booking and by the fact
that his property was not returned to him upon his release. 51 But these claims also fail for the
reasons articulated below. As Oliver has failed to assert that Deputies Peters and Fielding violated
a constitutional right, they are therefore entitled to qualified immunity on his second claim.
1. Oliver Fails to Allege that the Identified Defendants Were Personally Involved
Oliver asserts his second cause of action against Deputy Peters and Deputy Fielding. But
“liability under § 1983 must be based on [a] defendant’s personal involvement in the alleged
constitutional violation.” 52 Thus, “a complaint must allege that each defendant, through his own
actions, violated the constitution.” 53 In his Third Amended Complaint, Plaintiff alleges as follows:
[W]hen [Oliver] was in jail, the Deputies there, took his property
from him in preparation for booking him into jail, which included
an amount of money of about $200.00. . . . That when [Oliver] bailed
out, some of his property was returned to him; however, the Davis
County Jail and Davis County Sheriff’s Office has never returned,
almost all of the money seized from him. 54
During his deposition, Oliver testified that he notified the officers who booked him that property
was missing on the property sheet. 55 When asked “Who did you tell?” Oliver responded “Whoever
was booking me. I don’t know their name.” 56 Oliver later testified he was not present when the

51

Third Am. Compl. at ¶¶ 28–30.

52

Mayfield v. Harvey Cty. Sheriff's Dep’t, 732 F. App'x 685, 688 (10th Cir. 2018), cert. denied,
No. 18-7163, 2019 WL 660076 (U.S. Feb. 19, 2019) (quoting Schneider v. City of Grand Junction
Police Dep’t, 717 F.3d 760, 768 (10th Cir. 2013)).
53

Id.

54

Third Am. Compl. at ¶¶ 18-20.

55

ECF No. 50-2 at 32–33.

56

Id. at 33.

10

property was taken out of his wallet. 57 Based on Oliver’s pleading and own testimony, there is no
evidence on the record that Deputies Peters and Fielding were personally involved with the seizure
of Oliver’s property.
2. The Search Incident to Arrest was Lawful
In addition to Oliver’s failure to properly plead the facts to establish Deputies Peters and
Fielding’s involvement, his claim also fails to defeat the Deputies’ defense of qualified immunity
because the search and seizure of Oliver’s property incident to his arrest was not unlawful. As
discussed above, the arrest for Disorderly Conduct was supported by probable cause and thus was
lawful. Therefore, Defendants were entitled to perform a search incident to the arrest. “[I]n the
case of a lawful custodial arrest a full search of the person is not only an exception to the warrant
requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.”58
3. The Seizure of Oliver’s Property was Temporary and Lawful
Oliver’s only remaining challenge to the constitutionality of the search and seizure of his
property is that Defendants improperly seized his property by failing to return it upon his release.
But contrary to Oliver’s allegation, 59 his property was not permanently seized, nor did the
temporary seizure violate the Fourth or Fourteenth Amendments. The undisputed evidence in the
record establishes Oliver’s property was inventoried when he was booked into jail and returned to
him upon his release. 60 It is undisputed Oliver received all of the property listed on the Property
Sheet, three bills with significant value to him, and a debit card with available funds in the amount

57

Id. at 36.

58

See United States v. Robinson, 414 U.S. 218, 235 (1973).

59

Third Am. Compl. at ¶ 30.

60

ECF No. 50-9.
11

of $171.90. 61 Oliver does not challenge the fact that he received a debit card or the amount on that
debit card, 62 but he continues to assert that Deputies Peters and Fielding improperly failed to return
his money because he received a debit card rather than cash. But Oliver cites no authority for the
proposition that returning his money in the form of a debit-card violates clearly established
constitutional rights. 63 Under these facts, Oliver has failed to show he was deprived of any
property, and Deputies Peters and Fielding are therefore entitled to qualified immunity on Oliver’s
second cause of action.
CONCLUSION
The court concludes that Deputies Nielson, Peters, Fielding, Davis, and Black are entitled
to qualified immunity on both counts and thus Oliver’s claims fail as a matter of law. Accordingly,
the court GRANTS Defendants’ motion for summary judgment (ECF No. 49) and ORDERS that
judgment in the case be entered in favor of Defendants, that Oliver’s claims be dismissed with
prejudice, and that the clerk of court close the case. 64

DATED March 26, 2019.
BY THE COURT
___________________________
Jill N. Parrish
United States District Court Judge
61

ECF No. 50-2 at 34; and 50-10.

62

Id. at 35 (“I don’t recall the amount but [$171.90] sounds close.”).

63

In fact, when faced with this issue, the Court of Appeals for the Eighth Circuit held that returning
money that was seized as cash in the form of a debit card does not “trigger due process protections”
because “the distinctions between cash and the cards are not constitutionally significant.”
Mickelson v. Cty. of Ramsey, 823 F.3d 918, 931 (8th Cir. 2016).
64

Although Oliver asserts his First Cause of Action against all listed defendants including “John
Does,” “Jane Does,” and “Black Corporations,” the same analysis that applies to the Arresting
Deputies would apply to any other defendant. The court may therefore dismiss the claim entirely.
12