Abeloe v. Russo et al

Filing 49

MEMORANDUM DECISION AND ORDER granting 42 Defendants' Motion for Summary Judgment. The Clerk of Court is directed to enter judgment in favor of Defendants and close the case. Signed by Judge Dale A. Kimball on 6/18/2015. (jds)

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

DOUGLAS A. ABELOE,
Plaintiff,

MEMORANDUM DECISION
AND ORDER

vs.
Case No. 2:12CV839DAK
E. ROBBY RUSSO, MARK
ASKERLUND, DAN BARTLETT, and
RANDY MAUER,

Judge Dale A. Kimball

Defendants.

This matter is before the court on Defendants E. Robby Russo, Mark Askerlund, Dan
Bartlett, and Randy Mauer’s Motion for Summary Judgment based on qualified immunity. On
May 13, 2015, the court held a hearing on the motion. At the hearing, Plaintiff was represented
by David W. Brown, and Defendants were represented by Michael Hansen. The court took the
matter under advisement. The court has considered carefully the memoranda submitted by the
parties, as well as the law and facts relating to the motion. Now being fully advised, the court
issues the following Memorandum Decision and Order.
BACKGROUND
Plaintiff Douglas Abeloe seeks relief for alleged violations of 42 U.S.C. § 1983 and the
Fourth Amendment against several Cottonwood Heights police officers arising out of Plaintiff’s
arrest on charges of Felony Child Abuse and Custodial Interference. Abeloe and his ex-wife

Kelli Mease were divorced in June, 2009. In connection with their divorce, they had a prolonged
custody dispute regarding their two minor children. Defendants are current or former officers of
the Cottonwood Heights Police Department. The officers were aware of Abeloe and Mease
because of their numerous contacts with the police department.
On January 28, 2010, Abeloe and Mease met with Dr. David Dodgion, Ph.D, a licensed
psychologist, and agreed to a visitation schedule. After subsequent communications with the
parties to clarify certain issues, sometime in February 2010, Dr. Dodgion memorialized the
agreement in a document entitled “Parent Time Agreement.”
The Parent Time Agreement states that “every other week Mr. Abeloe will have Sydney
and Erik for an extended weekend with Thursday overnights on alternate weeks.” The agreement
then has sections explaining the schedules for “Extended weekend visitation,” “Standard
weekend visitation,” and “Thursday midweek overnight.” The agreement then lists specific dates
for extended weekend and standard weekend visitations for the ensuing six months. The last
visitation provided for in the agreement was an extended weekend visit for July 28 to August 1,
2010.
A few months later, on June 14, 2010, the divorce court issued an Order Modifying
Decree of Divorce and Enforcing Settlement Agreement. The June 2010 court order states that
the custody provisions of the original degree remained in effect, with specified exceptions for
Abeloe’s parent time. The order provides for parent time after Abeloe’s start of therapy with Dr.
Dodgion as follows: “The parties agree that they shall each follow the recommendation of Dr.
Dodgion as to: (a) the need for therapy by each of the parties to this Settlement Agreement . . .
(b) on-going parent-time by Doug Abeloe and whether that parent-time should continue to be
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supervised by his parents; (c) make-up parent-time to be exercised by Doug Abeloe; and (d)
when Doug Abeloe should be permitted to exercise his first right of refusal to provide child care
for the two above-named minor children.”
The specified six-month visitations in the Parent Time Agreement with Dr. Dodgion
ended on August 1, 2010. There was some question as to whether the Parent Time Agreement
remained in effect after that date. On August 3, 2010, Mease emailed Dr. Dodgion stating, “I
realize that we are not under contract with you, but I would appreciate your help in clarifying
where we stand regarding our arrangement.” She then provided Dr. Dodgion with the language
from the June 14, 2010 Court Order regarding parent-time after the start of therapy with Dr.
Dodgion. She then stated, “It is my understanding that you are not responsible for determining
our custody agreement. You did coordinate the makeup parent time and schedule for the first 6
months (thank you for doing that with us) but that agreement ended the end of July. I believe, at
this point, we are to go back to our original custody agreement in the divorce. Am I correct in
believing that? Please let me know!”
On August 4, 2010, Dr. Dodgion responded by sending an email to both Abeloe and
Mease. The email states: “Although it is not my role to determine custody, the settlement
agreement specified that I am to determine on-going parent time by Doug. When we worked out
the parent time agreement, I intended that the standard visitation schedule established in that
agreement was to be ongoing. The reason that the agreement only covered a 6 month period was
because Doug had additional make-up time that was to be completed during that period. This
changed the standard schedule and was complicated, hence the need for the specificity of the
agreement. After that 6 months parent time was to return to the standard schedule as identified in
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the parent time agreement, not minimum standard.”
On August 5, 2010, Abeloe responded to Dr. Dodgion’s email by stating that after the
six-month period of visitation, the Parent Time Agreement would revert to extended visitation
schedule instead of the standard visitation based on the first sentence of the agreement, which
stated: “Every other week Mr. Abeloe will have Sydney and Erik for an extended weekend with
Thursday overnights on alternate weeks.” He provided further explanation for what he believed
to be the on-going Parent Time Agreement and asked Dr. Dodgion if that was a correct
interpretation.
On August 5, 2010, at 10:26 a.m., Dr. Dodgion responded that his use of the phrase
“standard visitation schedule” referred to the “extended weekend visitation schedule which is
Doug’s standard visitation.” In essence, Dr. Dodgion’s response agreed with Abeloe.
Approximately an hour and a half later, at 11:54 a.m., Abeloe emailed Chief Russo of the
Cottonwood Heights Police. Abeloe asked Chief Russo to read, and have his other officers read,
the June 14, 2010 Court Order. He stated that the order “makes clear what the terms of the
custody agreement is. The document supercedes the original divorce decree as it is the most
recent order. Regardless of any perceived disagreements from Kelli Mease, the language of the
modified court order is clear and binding. There are no provisions or language in the current
agreement for Kelli to change the parent time schedule set forth by Dr. Dodgion, PHD.” After
stating that he would request a case number for each violation of the Parent Time Agreement by
Mease, he states: “What I am asking for is this......1. Please review the most recent court order
dated 06-14-2010. See attached. 2. Please review the Parent Time agreement set forth by Dr.
Dodgion dated 02-10-10. See attached. 3. Briefly discuss this with the officers and Sargent’s so
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that we all have the same understanding of the provisions regarding visitation in the most recent
court order and parent time agreement.” Finally, he stated that he would be happy to meet with
Chief Russo or anyone he chose or have his attorney contact him. Despite the emails that had
been going back and forth between Abeloe, Mease, and Dodgion regarding the ongoing effect of
the Parent Time Agreement, Abeloe did not attach any of the emails.
During the first week of August, 2010, Abeloe went to the police department several
times to speak with the officers about the custody situation. On August 3, 2010, Abeloe met with
Sergeant Askerlund regarding the custody dispute. Abeloe asked Askerlund several “what if”
questions relating to what the officers would do if he kept his children past the time allowed in
the custody orders. On August 4, 2010, Officer Mauer met separately with both Mease and
Abeloe about the custody dispute. He does not recall reviewing any court orders. After meeting
with Mauer, Abeloe went to the courthouse to obtain a certified copy of the modified divorce
decree. When he returned to the police department, Officer Mauer was unavailable and he left
the order with the receptionist. Officer Mauer informed Sergeant Askerlund of his contact with
Abeloe and Mease.
Abeloe’s visitation rights were further complicated by vacation time disputes. Mease
took the children on vacation at the end of July, returning home on the night of Saturday, July 31,
2010. Prior to the vacation, Mease had emailed Abeloe, stating: “As this would cut into your
weekend–I would like to propose that you take the kids from Saturday morning until Wednesday
morning [August 1-4, 2010]. That way you still have the same number of dates. Will that work
for you? We are flexible on this–let us know what works best for you.” Abeloe responded:
“let’s exchange this weekend for the weekend of August 5th thru the 9th. The regular schedule
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then continues August 12 thru the 16th.” Mease never responded to Abeloe’s counteroffer.
On August 2, 2010, Abeloe emailed Mease: “I was scheduled to exercise my parent time
on Thursday July 22nd however you took the children to Ca. Your email clearly states that you
would be taking them the last week of July and I agreed to exchange my scheduled weekend July
29th thru 8-2 with your weekend.” Mease responded by apologizing that she had not been clear
on when they were leaving on vacation but explaining that she believed it was only because she
was primarily concerned with taking Abeloe’s weekend. She then stated: “I will agree to let you
have the kids on Wednesday August 4th to make up for the Thursday that we left town. However,
I do propose that it be from 10 am until 7 pm.” She also agreed that Abeloe should have the
children for a vacation as well. She stated: “So yes, I do agree that you may have the kids
Monday August 16th until Saturday August 21st.” Mease claims that Abeloe replied and accepted
Mease’s proposal that the parties exchange Abeloe’s parent time over the last weekend in July
for Mease’s parent time from August 16-21, 2010. However, in his deposition, Abeloe denied
that he accepted Mease’s vacation proposal.
On August 3, 2010, the parties exchanged emails disputing the makeup parent time.
Mease wrote: “We agreed to ONE make up day. Your request for the extended weekend is not
acceptable to me. I do not agree with your proposed make up time, therefore, we will go with the
standard state mandated visitation weekend time: Friday August 6 @ 9:00 am until Sunday
August 8th, 7:00 pm. It is apparent that we are not in agreement and need to go back to mediation
to resolve this as well as other issues.”
On the evening of August 5, 2010, Mease called the Cottonwood Heights to report that
Abeloe was in violation of their custody orders. Sergeant Askerlund spoke with Mease regarding
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her complaint and then went to her home. Mease provided Sergeant Askerlund with the parties’
original Divorce Decree, the Modified Divorce Decree, and the Parent Time Agreement. Mease
also informed Askerlund that Abeloe was to return the children, that Abeloe had a shotgun in his
house, and that Abeloe had been acting very strange recently. Mease did not provide Askerlund
with the emails between herself and Abeloe and Dr. Dodgion.
Sergeant Askerlund and Officer Bartlett called Michaela Andruzzi, an Assistant Salt Lake
County District Attorney, regarding the case. The officers spoke to her about custodial
interference and child abuse charges. At the conclusion of the call, Ms. Andruzzi said that she
thought they had enough to make an arrest.
Sergeant Askerlund and Officer Bartlett then drove to Abeloe’s residence. The children
were at Abeloe’s home when the officers arrived. There is a dispute as to what was said between
the officers and Abeloe. However, it is undisputed that Abeloe stated that he was entitled to
parent time from August 5 to 9, 2010. When Abeloe refused to turn over his children, Sergeant
Askerlund placed Abeloe under arrest for custodial interference and child abuse. Abeloe was
released from jail on August 10, 2010, and no criminal charges were subsequently filed.
DISCUSSION
Defendants move for summary judgment, asserting that Abeloe’s claims are barred by the
doctrine of qualified immunity. Abeloe’s Complaint alleges a single cause of action entitled
“Violation of 42 U.S.C. § 1983 and the Fourth Amendment.” Specifically, Abeloe alleges that
Defendants unlawfully arrested him. Abeloe also alleges that Defendants violated his right to be
free from unreasonable searches and seizures when they removed his children. However, during
the briefing of the motion for summary judgment, Abeloe agreed to withdraw the search and
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seizure claim. Therefore, the only claim is one for unlawful arrest.
First, as an initial matter, Abeloe asks the court to exclude the police report, which is
attached to Defendants’ Motion for Summary Judgment as “Exhibit P,” because the report is
hearsay. However, the court can consider the police report in determining whether Askerlund
had probable cause to arrest Abeloe because the report is not being submitted to demonstrate the
truth of the matters asserted in the report. Rather, Defendants assert that the report is being
submitted to demonstrate the effect that the information set forth in the report had on Sergeant
Askerlund. The police report is admissible to show the facts and circumstances communicated to
the arresting officer and whether those facts and circumstances would lead a reasonable officer to
believe that there was probable cause that a crime had been committed. Accordingly, the hearsay
rule does not bar the court’s consideration of the police report.
“After a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff”
who must satisfy a “heavy two-part burden.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.
2001). Under the two-part burden, “a court must consider whether the facts that a plaintiff has
alleged make out a violation of a constitutional right, and whether the right at issue was clearly
established at the time of defendant’s alleged misconduct.” Brown v. Montoya, 662 F.3d 1152,
1164 (10th Cir. 2011).
Abeloe alleges that Defendants violated his constitutional rights when they arrested him
without probable cause. “A police officer violates an arrestee’s clearly established Fourth
Amendment right to be free of unreasonable seizure if the officer makes a warrantless arrest
without probable cause.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002).
However, qualified immunity shields defendants from suit if “a reasonable officer could have
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believed the [plaintiff’s arrest] to be lawful, in light of clearly established law and the
information the arresting officers possessed.” Hunter v. Bryant, 112 S. Ct. 534, 536 (1991).
“Under settled law, [officers] are entitled to immunity if a reasonable officer could have believed
that probable cause existed.” Id. “Probable cause existed if ‘at the moment the arrest was made .
. . the facts and circumstances within their knowledge and of which they had reasonable
trustworthy information were sufficient to warrant a prudent man in believing that [the plaintiff]
had violated the law.” Id.
Based on Utah’s custodial interference statute, visitation is “court-ordered parent-time or
visitation entered by a court of competent jurisdiction.” Utah Code Ann. 76-5-303(1). Abeloe
asserts that the question before the court, therefore, becomes: at the time of Abeloe’s arrest,
would a prudent officer believe (1) that Abeloe was not entitled to parent time under the parties’
court order; (2) that he took, enticed, concealed, detained, or withheld the children from Mease;
(3) that he had the intent to interfere with the custody of the children; and (4) that Mease had not
consented to Abeloe’s conduct? Abeloe contends that all of these factors must be present for
Defendants to have probable cause to arrest him for custodial interference under Utah Code Ann.
§ 76-5-303(2)(b).
However, “[e]ven law enforcement officials who ‘reasonably but mistakenly conclude
that probable cause is present’ are entitled to immunity.” Id. “Qualified immunity shields an
officer from suit when she makes a decision that, even if constitutionally deficient, reasonably
misapprehends the law governing the circumstances she confronted.” Brosseau v. Haugen, 543
U.S. 194, 125 S. Ct. 596, 599 (2004).
Defendants contend that Askerlund had far more than is legally necessary to establish

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probable cause to arrest Abeloe. Standing alone, Mease’s report of custodial interference was
sufficient to establish probable cause. Untied States v. Flowers, 203 Fed. Appx. 221, 224 (10th
Cir. 2006) (“[O]nce the officers received further information from Ms. Harring as to Mr.
Flowers’s threatening conduct, they had probable cause to arrest him.”); Untied States v. Patane,
304 F.3d 1013, 1017 (10th Cir. 2002) (“Police are entitled to base an arrest on a citizen complaint
. . . of a victim . . . without investigating the truthfulness of the complaint, unless . . . they have
reason to believe it’s fishy.”).
Moreover, once a reasonably credible complaint has been made, the existence of probable
cause to arrest does not depend on whether the complainant was right. “Probable cause does not
depend on the witness turning out to have been right; it’s what the police know, not whether they
know the truth of the matters.” Kelley v. Myler, 149 F.3d 641, 647 (7th Cir. 1998).
Abeloe argues that it cannot be established that probable cause existed because it is
disputed whether the officers reviewed the court order prior to making the arrest. In Kyllingstad
v. Town of Camp Verde, 243 Fed. Appx. 226 (9th Cir. 2007), the arresting officer failed to read
the relevant provisions of the temporary custody order before arresting Kyllingstad for custodial
interference. Id. at 228. A jury and the Ninth Circuit both agreed that such conduct was
objectively unreasonable. Id.
In this case, Abeloe testified that he attempted to give Askerlund the Parent Time
Agreement at the police station on August 3, 2010, and at his home on August 5, 2010, prior to
the arrest. Both times Askerlund refused to take the agreement and read it. Abeloe also claims
that when Askerlund was arresting him, Askerlund stated, “We don’t give a damn about your
court orders.” However, Askerlund testified that he reviewed the divorce decree, the modified

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divorce decree, and the Parent Time Agreement before arresting Abeloe. This evidence remains
undisputed. Although Abeloe questions whether Askerlund read the materials or cared about the
materials, Abeloe could only testify that he did not know if Askerlund had read the documents.
Therefore, this case is in stark contrast with Kyllingstad.
Defendants contend that Sergeant Askerlund’s decision to arrest Abeloe was objectively
legally reasonable because the court order and Parent Time Agreement do not demonstrate that
Abeloe was entitled to parent time as he alleges. The court recognizes that Abeloe and Mease
had made the issue a convoluted mess for the police officers to try to sort out. Without the
emails between Abeloe, Mease, and Dr. Dodgion, it was unclear whether the Parent Time
Agreement was in effect after the specified dates on the agreement. It was also reasonable for
Askerlund to believe that the extended weekend schedule that was specifically dated on the
Parent Time Agreement ended on August 1. The Parent Time Agreement shows the standard
weekend schedule ending June 20, the Thursday midweek schedule ending July 29, and the
extended weekend schedule ending August 1.
Even if the Parent Time Agreement had not expired, extrapolating from its terms,
Askerlund would not have thought that Abeloe was entitled to parent time on the weekend of the
arrest. Even if the Parent Time Agreement continued in effect after August 1, 2010, extrapolating
from the specific dates listing in the agreement would not give Abeloe parent time of the children
from August 5-9, 2010. And, contrary to Abeloe’s assertions, the emails back and forth do not
clarify that Abeloe was entitled to parent time from August 5-9, 2010. There is no clear
agreement regarding August 5-9, 2010, between the parties. The emails discuss August 5-9,
2010, and August 16-21, 2010, as potential parent time for Abeloe without identifying which was

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ultimately agreed upon.
Even if Askerlund was mistaken regarding the application of the Parent Time Agreement,
the mistake was reasonable in light of the fact that Mease reported custodial interference.
Therefore, Askerlund had a report of custodial interference from Mease and a Parent Time
Agreement that did not give Abeloe parent time on August 5-9, 2010. Furthermore, even the
emails between the parties were unclear as to whether Abeloe was to receive parent time from
August 5-9, 2010, or August 16-21, 2010.
The basis of Abeloe’s complaint appears to be that Askerlund did not take the time on
August 5, 2010, to review the various emails between Abeloe and Mease, the two emails from
Dr. Dodgion, and telephone Abeloe’s attorney prior to arresting him. The Constitution, however,
does not require Askerlund to take such steps. Police “have no constitutional duty to keep
investigating a crime once probable cause has been established.” Kompare v. Stein, 801 F.2d
883, 890 (7th Cir. 1986). “The question is whether [the police] have reasonable grounds on
which to act, not whether it was reasonable to conduct a further investigation.” Gramenos v.
Jewel Companies, Inc., 797 F.2d 432, 439 (7th Cir. 1986); see also Romero v. Fay, 45 F.3d 1472,
1478 (10th Cir. 1995) (once probable cause determined to exist, officer’s failure to question alibi
witnesses prior to arrest did not negate probable cause).
It was not up to Defendants to determine whether Abeloe was guilty of custodial
interference. Askerlund’s only duty was to determine whether there was probable cause to arrest
Abeloe. Abeloe conflates the type of evidence necessary to show probable cause with the
evidence necessary to prove guilt. Probable cause is a practical compromise. “Probable cause is
only a probability or substantial chance of criminal activity, not a certainty that a crime was

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committed.” Beauchamp v. City of Noblesville, 320 F.3d 733, 743 (7th Cir. 2003). Based upon
his interactions with Abeloe in the days prior to August 5, Officer Mauer’s report to him,
Mease’s complaint of custodial interference, his review of the court orders and Parent Time
Agreement, his telephone conference with the District Attorney’s office, and Abeloe’s refusal to
give up his children, Askerlund reasonably believed that he had probable cause to arrest Abeloe.
Even if Askerlund was mistaken, the court concludes that Askerlund acted reasonably.
Therefore, the court concludes that Askerlund is entitled to qualified immunity.
In addition, Defendants argue that none of the other Defendants can be liable for unlawful
arrest because none of those officers arrested Abeloe. Abeloe argues that each of the Defendants
are liable for Abeloe’s constitutional deprivations because each Defendant either participated
directly in the arrest or were involved in a supervisory role. “A supervisor is not liable under
1983 unless an ‘affirmative link’ exists between the constitutional deprivation and either the
supervisor’s personal participation, his exercise of control or direction, or his failure to
supervise.” Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993). Abeloe has not
established an affirmative link between the other officers’ actions and Abeloe’s arrest. None of
the other officers were assigned to the matter or investigated whether a crime had been
committed. Consequently, none of the other Defendants can be said to have wrongfully arrested
Abeloe. However, even if there was an affirmative link, the other officers would be entitled to
qualified immunity for the same reasons as Askerlund.
Finally, Abeloe argues that Defendants are liable for other violations of his Fourth
Amendment rights. However, Abeloe has not demonstrated that any of his remaining claimed
injuries are cognizable under the Fourth Amendment. The failure to perform a reasonable

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investigation would be part of a wrongful arrest claim. The alleged filing of a false and
misleading police report did not result in any harm to Abeloe as he was not criminally charged
based on the police report. In addition, providing erroneous, false, illegal, and misleading advice
to an independent third party does not clearly implicate constitutional interests. Accordingly,
Defendants are entitled to qualified immunity on these claims.
CONCLUSION
Based on the above reasoning, Defendants’ Motion for Summary Judgment is
GRANTED. The Clerk of Court is directed to enter judgment in favor of Defendants and close
the case.
Dated this 18th day of June, 2015.
BY THE COURT:

____________________________________
Dale A. Kimball,
United States District Judge

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