Bryson v. Westerman et al

Filing 46

MEMORANDUM DECISION and Order- granting 28 Motion for Summary Judgment. See Order for details. Signed by Judge Dee Benson on 8/29/14. (jmr)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

LESLIE BRYSON
Plaintiff,

MEMORANDUM DECISION AND
ORDER

vs.

JEFFREY WESTERMAN, a Provo City Police
Officer, CRAIG GESLISON, former Chief of
Police for Provo City; PROVO CITY and
PROVO CITY POLICE DEPARTMENT; and,
JOHN or JANE DOES 1-10.
Defendants.

Case No. 2:12-cv-313
Judge Dee Benson

Plaintiff Leslie Bryson brought this suit under 42 U.S.C. § 1983 alleging that defendants
violated her rights under the Fourth and Fourteenth Amendments to the United States
Constitution.1 Defendants Provo City, Provo City Police Department, and former Chief of Provo
Police Craig Geslison have moved the court to dismiss all claims against them. (Dkt. No. 28).
On April 29, 2014, the court heard oral argument on the motion. Plaintiff was represented by
Peter Summerhill and defendants were represented by Gary Millward. Having considered the
parties’ briefs, orgal argument, and the relevant law, the court enters the following Memorandum
Decision and Order.

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Plaintiff has conceded her negligence claim. See Pl.’s Opp’n Mem., 4.

BACKGROUND
On July 23, 2010, plaintiff Bryson was involved in a traffic accident in Provo City, Utah.
Provo dispatched police officer Jeffrey Westerman to the scene. After completing his
investigation of the collision, Westerman directed the other driver to leave the premises and
required Bryson to undergo field sobriety tests. Westerman then told Bryson he was going to
arrest her for driving under the influence of drugs. After initially placing her in his patrol car, he
drove her car to the parking lot of a nearby business and then parked his own car in the same lot
in a way that blocked any view from the street. In the parking lot, Westerman again threatened
Bryson with arrest, but stated he might let her go if she exposed her breasts. Over the course of
forty to ninety minutes, Westerman interrogated Bryson and fondled her breasts twice. He then
released her from custody.
Bryson subsequently reported the incident to the Utah County Sheriff’s Department and
Westerman was arrested for forcible sexual abuse. After first denying the allegation, Westerman
later pled guilty when he learned there was surveillance video of the encounter. The Provo City
Police Department then terminated Westerman’s employment and the Utah Peace Officer
Standards and Training Commission revoked his law enforcement certification.
DISCUSSION
“The court shall grant summary judgment 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.”
Fed.R.Civ.P. 56(a). “A fact is material if, under the governing law, it could have an effect on the
outcome of the lawsuit. A dispute over a material fact is genuine if a rational jury could find in
favor of the nonmoving party on the evidence presented.” Tabor v. Hilti, Inc., 703 F.3d 1206,

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1215 (10th Cir. 2013) (internal quotation marks omitted). The material facts of this case are not
in dispute and judgment as a matter of law is therefore appropriate.
Relevant to this motion, Bryson is suing defendants under 42 U.S.C. § 1983 alleging the
violation of her rights under the United States Constitution. In her complaint, she alleges that
defendants inadequately hired, trained, and supervised Westerman, making them liable for the
crime that Westerman committed against her.
Below, the court will first address the standards for municipal liability under Section
1983 and then analyze each claim as they apply to defendants.
I.

MUNICIPAL LIABILITY
To show liability for a municipality under 42 U.S.C. § 1983, a plaintiff must show (1) a
constitutionally defective policy or custom, (2) that the policy or custom “directly caused” and
was the “moving force” behind an underlying constitutional violation that caused the
constitutional harm, and (3) that the final policymaker who implemented the policy or custom
acted with “deliberate indifference” to the constitutional rights of the plaintiff. See generally,
Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397 (1997).
a. Official Policy or Custom
The first element for municipal liability requires that the dispute relate to a municipality’s
official policy or custom as opposed to actions more appropriately attributable to its employees.
Regarding this distinction, the Supreme Court has noted that “Congress did not intend
municipalities to be held liable unless action pursuant to official municipal policy of some nature
caused a constitutional tort.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (U.S. 1978).
In other words, the “official policy” requirement distinguishes between acts of the municipality
and acts of its employees so as to make it “clear that municipal liability is limited to action for

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which the municipality is actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469,
479 (1982). A practice will be considered an official policy or custom when it is a “formally
promulgated policy, a well-settled custom or practice, a final decision by a municipal
policymaker, or deliberately indifferent training or supervision.” See Schneider v. City of Grand
Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir. 2013).
b. Causation
Next, to establish the causation element, the challenged policy or practice must be
“closely related to the violation of the plaintiff's federally protected right.” Id. This requirement
is satisfied if the plaintiff shows that “the municipality was the ‘moving force’ behind the injury
alleged.” Bd. of Cnty Comm’rs, 520 U.S. at 404. Plaintiffs must “demonstrate a direct causal
link between the municipal action and the deprivation of federal rights.” This causation element
“is applied with especial rigor when the municipal policy or practice is itself not
unconstitutional, for example, when the municipal liability claim is based upon inadequate
training, supervision, and deficiencies in hiring.” Schneider, 717 F.3d at 770.
c. State of Mind
Finally, “a plaintiff seeking to establish municipal liability on the theory that a facially
lawful municipal action has led an employee to violate a plaintiff's rights must demonstrate that
the municipal action was taken with ‘deliberate indifference’ as to its known or obvious
consequences.” Bd. of Cnty Comm’rs, 520 U.S. at 407.
The deliberate indifference standard may be satisfied when the municipality has
actual or constructive notice that its action or failure to act is substantially certain
to result in a constitutional violation, and it consciously or deliberately chooses to
disregard the risk of harm. In most instances, notice can be established by proving
the existence of a pattern of tortious conduct. In a narrow range of circumstances,
however, deliberate indifference may be found absent a pattern of

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unconstitutional behavior if a violation of federal rights is a highly predictable or
plainly obvious consequence of a municipality's action or inaction[.]
Barney, 143 F.3d at 1307 (citations and internal quotations omitted) (emphasis added).
BRYSON’S CLAIMS

II.

Bryson alleges inadequacies in the hiring and retention, training, and supervision of
Westerman. The court addresses each of these claims below.
a. Hiring and Retention
Bryson asserts that, given Westerman’s history, he was unsuitable to be hired or retained
as a police officer. She supports this claim with evidence of Westerman’s juvenile record, three
traffic accidents caused by Westerman while on duty, and some unsatisfactory scores on
performance evaluations.
Bryson’s claim fails under the “deliberate indifference” element of municipal liability,
however. Specific to the decision to hire and retain, “only where adequate scrutiny of an
applicant's background would lead a reasonable policymaker to conclude that the plainly obvious
consequence of the decision to hire the applicant would be the deprivation of a third party's
federally protected right can the official's failure to adequately scrutinize the applicant's
background constitute ‘deliberate indifference.’” Schneider, 717 F. 3d at 760. Here, the sexual
crime Westerman committed was not the “plainly obvious consequence” of the decision to hire
and retain him. Despite his juvenile history and any disciplinary problems during his time as a
Provo police officer, a background investigation revealed no evidence of prior sexual
indiscretion and nothing in Westerman’s past would indicate a propensity to commit such acts.2

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See Undisputed Fact No. 31: “Prior to Westerman’s hiring, he underwent a suitability
assessment conducted by a clinical professional. Among other conclusions, that document
addresses Westerman’s juvenile entanglements with the law, and says that with respect to
hostility and anger modulation, Westerman ‘does not reveal underlying resentment and does not
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Accordingly, Westerman’s crime was not the “plainly obvious consequence” of the decision to
hire and retain him.
b. Training
In support of her failure to train claim, Bryson has not identified a specific policy or
custom that is in itself unconstitutional, but instead alleges a failure in both the type and amount
of training that Provo gives its officers. As the Tenth Circuit in Schneider noted, “[t]he causation
element is applied with especial rigor when the municipal policy or practice is itself not
unconstitutional, for example, when the municipal liability claim is based upon inadequate
training, supervision, and deficiencies in hiring.” Id. In other words, where, as here, Bryson has
not identified an unconstitutional policy or custom, she bears a heightened burden to demonstrate
a direct causal link between the disputed action and the deprivation of federal rights. See Bd. of
Cnty. Comm’rs, 520 U.S. 404. In this case, “specific or extensive training hardly seems
necessary for [defendant] to know that sexually assaulting [plaintiff] . . . is inappropriate
behavior.” Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir. 1998). Even accepting as true
all the alleged inadequacies in the way Provo City trains its officers, Bryson cannot demonstrate
how such training “set in motion a series of events that the defendant[s] knew or reasonably
should have known would cause [Westerman] to deprive [Bryson] of her constitutional rights,”
specifically, her substantive due process right to bodily integrity. See Dodds, 614 F.3d at 1185.

show anger modulation problems. He is a low risk in this area.’ With respect to antisocial traits,
the assessment characterizes Westerman as having ‘had some acting-out in his youth. He is not
showing current antisocial traits or characteristics nor does he show potential for substance
abuse. He is a low risk in this area.’ Further, in response to a self-control question, the
assessment indicates that Westerman ‘is responsible, reliable, and socialized to the rules of
society. He is not showing a high potential for impulsivity. He is a low risk in this area.’ Also,
the assessment concludes with the statement, ‘[i]t is recommended this man be hired.’”
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Accordingly, the court finds that plaintiff cannot meet the heightened burden with respect to
causation and her failure to train claim fails.
c. Supervision
Bryson’s supervision claim fails for similar reasons as do her other claims. As a
preliminary matter, Bryson can point to no policy Chief Geslison promulgated, implemented, or
was responsible for that led to Westerman’s deplorable conduct.3 In fact, Bryson concedes that
Provo City expressly prohibits such conduct. See Mem. in Supp., Facts #1-4, 13-15.
Accordingly, Bryson necessarily must identify evidence of a Police Department custom, through
Chief Geslison, which allowed or condoned the violation of the constitutional right to bodily
integrity through forcible sexual abuse. As with her other claims, even if Bryson could
demonstrate sufficient evidence of such a custom, she cannot demonstrate either the requisite
causal connection or culpable state of mind. More specifically, she cannot show how
defendants’ method of supervision was the ‘moving force’ behind Westerman’s deplorable crime
or how such supervision presented either Chief Geslison or the City with evidence of an
“obvious risk of constitutional harm which [would] almost inevitably result in the constitutional
injury of the type experienced by plaintiff.” Hollingsworth v. Hill, 110 F. 3d 733, 745 (10th Cir.
1997).

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Bryson also relies on alleged evidence of an incident where Chief Geslison removed his son
from a crime scene. See Opp’n Mem., 21. Even when viewing this fact in the light most
favorable to Bryson, her claim fails for the reasons discussed above.
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CONCLUSION
The court is sympathetic to Ms. Bryson’s unfortunate experience and acknowledges that
she was the victim of a crime. However, based on the foregoing discussion, the court cannot find
among her legal claims any that would qualify to proceed to a trial. Accordingly, defendants’
motion for summary judgment is hereby GRANTED.
DATED this 29th day of August, 2014.

___________________________________
Dee Benson
United States District Judge

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