Swasey et al v. West Valley City et al

Filing 196

MEMORANDUM DECISION AND ORDER denying 192 Motion for Reconsideration re 191 Memorandum Decision on Motion for Summary Judgment. Signed by Judge David Nuffer on 4/6/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
DANIELLE SWASEY; D. S., BY AND
THROUGH HER GUARDIAN AD LITEM,
DANIELLE SWASEY; DANTE
KETCHENS, D. K., BY AND THROUGH
HIS GUARDIAN AD LITEM, DANTE
KETCHENS,

MEMORANDUM DECISION AND
ORDER DENYING MOTION FOR
RECONSIDERATION

Plaintiffs,
v.

Case No. 2:13-cv-00768-DN-BCW

WEST VALLEY CITY; SHAUN COWLEY;
KEVIN SALMON; SEAN MCCARTHY;
JOHN COYLE; THAYLE “BUZZ”
NIELSEN; and DOES 1-10,

District Judge David Nuffer
Magistrate Judge Brooke C. Wells

Defendants.

Plaintiffs Danielle Swasey; D.S., by and through her Guardian ad Litem, Danielle
Swasey; Dante Ketchens; and D.K., by and through his Guardian ad Litem, Dante
Ketchens, (collectively “Plaintiffs”) move for reconsideration (“Motion for Reconsideration”) 1
of a memorandum decision and order entered on January 11, 2017 which granted West Valley
City’s and Thayle Nielsen’s (collectively, “Municipal Defendants”) motion for summary
judgment as to the second cause of action (“Order”). 2 The Municipal Defendants oppose the
Motion for Reconsideration (“Opposition”). 3 Plaintiffs did not file a reply in support of the
Motion for Reconsideration.

1

Plaintiffs’ Motion for Reconsideration (“Motion for Reconsideration”), docket no. 192, filed Jan. 23, 2017.

2

Memorandum Decision and Order Granting Motion for Summary Judgment (“Order”), docket no. 191, entered
Jan. 11, 2017.
3

Opposition to Plaintiffs’ Motion for Reconsideration (“Opposition”), docket no. 195, filed Feb. 6, 2017.

BACKGROUND
Plaintiffs filed an Amended Complaint containing five causes of action. 4 The second
cause of action was asserted against West Valley City for “Violation of Civil Rights 42 U.S.C. §
1983 – Monell[.]” 5 The Municipal Defendants moved for summary judgment on the second
cause of action (“Motion for Summary Judgment”). 6 Plaintiffs opposed the Motion for Summary
Judgment, 7 and the Municipal Defendants filed a reply in support (“Reply Memorandum”). 8
Part I A of the Reply Memorandum argued that “[t]he case at bar is not about—and has
never been about—falsified probable cause” because “probable cause was validly obtained when
a confidential informant told Detective Salmon that Ketchens transported marijuana from his
house to his barbershop on a regular basis.” 9 The Reply Memorandum asserted that “[t]hese facts
have never been disputed.” 10
Part I A of the Reply Memorandum also explained that when Ketchens was stopped, he
“immediately told the Officer Defendants that he had marijuana in his car and told them
‘exactly’ where it was.’” 11 Part I A of the Reply Memorandum continued: “The tip from a
confidential informant, combined with the Plaintiff’s own admission of criminal possession,
established valid probable cause to search Ketchens’ person, vehicle and home.” 12 Part I A of the

4

Amended Complaint, docket no. 44, filed Feb. 26, 2015.

5

Id. at 9.

6

Defendant West Valley City and Thayle Nielsen’s Motion for Summary Judgment (“Motion for Summary
Judgment”), docket no. 108, filed Mar. 15, 2016.

7

Plaintiffs’ Opposition to Motion for Summary Judgment, docket no. 170, filed Sep. 30, 2016.

8

Reply in Support of WVC Defendants’ Motion for Summary Judgment (“Reply Memorandum”), docket no. 177,
filed Oct. 27, 2016.
9

Id. at 4.

10

Id.

11

Id. at 4-5.

12

Id. at 5.

2

Reply Memorandum further asserted that “Plaintiffs have never disputed the validity of the
Officer Defendants’ probable cause to search the Plaintiffs’ vehicles, home and persons.” 13
Because the Reply Memorandum made assertions that Plaintiffs had “never disputed”
probable cause, the Plaintiffs were asked to file a sur-reply “responding to Part I A of the Reply
Memorandum, including the facts and legal issues raised in that section.” 14 The Plaintiffs were
specifically directed that “[t]he sur reply should contain any dispute to factual content contained
in docket no. 108-5.” 15 Docket no. 108-5 includes incident reports from police officers who were
involved in the events at issue on August 15, 2012. 16
Plaintiffs’ sur-reply did not specifically refute the factual content contained in the
incident reports from police officers in docket no. 108-5. The Plaintiffs did not challenge the
Municipal Defendants’ assertion that probable cause with respect to Ketchens was “never
disputed.” The Plaintiffs failed to dispute the facts underlying the probable cause arguments in
Part I A of the Reply Memorandum, such as the admission by Ketchens that he was in possession
of marijuana. Instead, the Plaintiffs’ sur-reply largely restated the positions taken in the
Opposition to the Motion for Summary Judgment that had already been filed. 17
After considering all the materials submitted, the Motion for Summary Judgment was
granted. The Order concluded that:
It is undisputed that there was probable cause to conduct a search based on
statements Plaintiff Ketchens made to the police. . . . Plaintiffs have not argued
that the arrest was made without probable cause. Indeed, a review of the record
13

Id.

14

Docket Text Order, docket no. 184, entered Dec. 27, 2016.

15

Id.

16

Incident Reports, Ex. 5 to Motion for Summary Judgment, docket no. 108-5, filed Mar. 15, 2016.

17
See, e.g., Plaintiffs’ Sur-Reply to Defendants West Valley City and Thayle Nielsen’s Motion for Summary
Judgment at 2-6 (copying and pasting section entitled “Response to Statement of Elements and Undisputed Material
Facts”).

3

shows that there can be no genuine dispute about whether Ketchens was validly
arrested with probable cause. A confidential informant had indicated that
Ketchens was in possession of illegal drugs and a handgun, Ketchens committed
at least one moving traffic violation, initially refused to pull over during officers’
attempts to stop him, openly admitted to possession of marijuana and also to
possession of a weapon despite knowing this was impermissible because he was a
convicted felon. Accordingly, there was probable cause to arrest Ketchens, and
then to conduct searches pursuant to that arrest. . . .
In addition, Ketchens gave consent to search his vehicle and the house. Plaintiffs’
Sur-Reply does not dispute any of the facts involving consent. Ketchens said that
the officers were welcome to go back to the house and check for drugs when
Officer Salmon asked Ketchens if he had any more drugs back at the house.
Ketchens’s invitation for officers to return to the house allowed the police the
opportunity to accompany him back to the home, where he opened the door for
them to enter. . . . 18
DISCUSSION
The Plaintiffs move for reconsideration of the Order. To the extent that motions to
reconsider are recognized, they are disfavored. 19 “Grounds warranting a motion to reconsider
include (1) an intervening change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or prevent manifest injustice.” 20
Plaintiffs base their Motion for Reconsideration on two arguments. First, they argue that
the Order is based on arguments that the Municipal Defendants did not make. 21 Second, they
argue that the Order is erroneous because it concludes that “the officers did not conduct the
search under the purported authority of the forged consent-to-search form, but rather as a search

18

Order at 18-19 (footnotes omitted).

19

Whittington v. Taco Bell of Am., Inc., No. 10–1884, 2012 WL 3705046, at *2 (D. Colo. Aug.27, 2012) (citing
Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990)); see Warren v. Am.
Bankers Ins. Of Fl., 507 F.3d 1238, 1243 (10th Cir. 2007) (stating that for twenty years, the Tenth Circuit has
“admonished counsel that the Federal Rules of Civil Procedure do not recognize that creature known all too well as
the ‘motion to reconsider’ or ‘motion for reconsideration.’).
20

Brueningsen v. Resort Express Inc., No. 2:12-CV-843-DN, 2016 WL 1181683, at *2 (D. Utah Mar. 25, 2016)
(quoting Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)).
21

Motion for Reconsideration at 4.

4

incident to a lawful arrest for drug possession and based on verbal consent.” 22 Both of these
arguments are incorrect.
The Municipal Defendants Raised Arguments Regarding Causation
The Plaintiffs argue that the “Municipal Defendants did not argue that Plaintiffs’ Monell
claim should be dismissed for lack of causation because (1) there was not a triable issue as to
whether the NNU [Neighborhood Narcotics Unit of West Valley City Police Department] had
probable cause to search, or (2) Mr. Ketchens verbally consented to the search of his home.” 23
Part I A of the Reply Memorandum directly asserted that “[t]he case at bar is not about—
and has never been about—falsified probable cause” because “probable cause was validly
obtained when a confidential informant told Detective Salmon that Ketchens transported
marijuana from his house to his barbershop on a regular basis.” 24 The Reply Memorandum
asserted that “[t]hese facts have never been disputed.” 25 Thus, the Plaintiffs are incorrect that the
Municipal Defendants did not raise the argument that “(1) there was not a triable issue as to
whether the NNU had probable cause to search[.]” 26 The Plaintiffs were expressly given an
opportunity to file a sur-reply on these very arguments and to challenge the underlying facts.
The Plaintiffs are also incorrect that the Municipal Defendants did not raise the argument
that “(2) Mr. Ketchens verbally consented to the search of his home.” 27 Part I A of the Reply
Memorandum directly asserted that there was “probable cause to search Ketchens’ person,

22

Id.

23

Id.

24

Reply Memorandum at 4.

25

Id.

26

Motion for Reconsideration at 4.

27

Id.

5

vehicle and home” based on statements made to the police. 28 Those statements are outlined in the
incident reports at docket no. 108-5, in which it is reported that Mr. Ketchens told the police that
they “could go back [to the house] and check” for drugs. 29 Docket no. 108-5 also reports that
Ketchens led police to the door and “opened the door and invited us [the police] in.” 30 Thus, the
argument was raised that Mr. Ketchens consented to search of the home.
The Plaintiffs present evidence—although not “new” evidence—that Mr. Ketchens stated
he did not open the front door, but he did “lead the officer to the front door[.]” 31 This does not
change the conclusion that Mr. Ketchens consented to the search. Even if there is a dispute about
who physically opened the front door, the Plaintiffs do not dispute that Mr. Ketchens told
officers they could go check for drugs at the house and led officers to the front door. Thus, even
if the Plaintiffs are correct that there is a dispute about who opened the front door, it is not a
dispute that requires reconsideration of the Order. There was probable cause to search the home.
Additionally, Mr. Ketchens verbally consented to search of the home.
The Municipal Defendants Asserted Facts to Establish Probable Cause
The second argument the Plaintiffs raise is that the “Municipal Defendants do not assert .
. . as an undisputed fact anywhere in their briefings” the Order’s conclusion that “the officers did
not conduct the search under the purported authority of the forged consent-to-search form, but
rather as a search incident to a lawful arrest for drug possession and based on verbal consent.” 32

28

Reply Memorandum at 5.

29

Incident Report of Detective Salmon at 11 of 21, docket no. 108-5, filed Mar. 15, 2016.

30

Id.

31

Deposition of Dante Ketchens at 32:7-10, Ex. A to Motion for Reconsideration, docket no. 192-1, filed Jan. 23,
2017.
32

Motion for Reconsideration at 4.

6

This is precisely the issue the Plaintiffs were asked to brief in their sur-reply. The
Municipal Defendants argued in Part I A of their Reply Memorandum that “Plaintiffs have never
disputed the validity of the Officer Defendants’ probable cause to search the Plaintiffs’ vehicles,
home and persons.” 33 The Municipal Defendants stated that “[t]hese facts have never been
disputed[,]”34 referring to statements made to the police to establish probable cause. Therefore,
the Plaintiffs are incorrect that the Municipal Defendants failed to assert facts to establish
probable cause.
Plaintiffs argue that the order for a sur-reply was “improper and places an impossible
burden on Plaintiffs.” 35 They argue that the burden for establishing entitlement to summary
judgment rests with the movant, and since the Plaintiffs were not the movant, they should not be
required to assume this burden. But, as the Plaintiffs note, the “initial burden” is on the movant.
Once the movant makes a prima facie showing of the absence of a genuine dispute of material
fact and entitlement to judgment as a matter of law, the burden shifts to the non-movant to show
a dispute. This standard was explained in the Order. 36 After the Municipal Defendants made a
prima facie showing of the lack of a genuine dispute of material fact and entitlement to judgment
as a matter of law, Plaintiffs failed to show a genuine dispute about probable cause and verbal
consent to search. “Indeed, a review of the record shows that there can be no genuine dispute
about whether Ketchens was validly arrested with probable cause. . . . ” 37

33

Reply Memorandum at 5.

34

Id. at 4.

35

Motion for Reconsideration at 5.

36

Order at 6-7.

37

Id. at 18-19.

7

Plaintiffs also argue that their failure to dispute the facts underlying probable cause and
verbal consent should simply be viewed as “an honest and excusable mistake” and
reconsideration should be granted. 38 But Plaintiffs do not cite to any case law supporting this
proposition. Thus, reconsideration is not warranted.
CONCLUSION
Because Plaintiffs have failed to show “(1) an intervening change in the controlling law,
(2) new evidence previously unavailable, [or] (3) the need to correct clear error or prevent
manifest injustice[,]”39 the Motion for Reconsideration is denied. Plaintiffs were given an
specific opportunity to refute the factual assertions and arguments raised by the Municipal
Defendants regarding probable cause, Mr. Ketchens’s statements to the police, and consent, but
Plaintiffs did not adequately show that there was a genuine dispute of material fact on these
topics to preclude summary judgment on the Monell claim.
ORDER
IT IS HEREBY ORDERED that the Motion for Reconsideration 40 is DENIED.

Dated April 6, 2017.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

38

Motion for Reconsideration at 5.

39

Brueningsen, 2016 WL 1181683, at *2 (quoting Servants of Paraclete, 204 F.3d at 1012).

40

Plaintiffs’ Motion for Reconsideration (“Motion for Reconsideration”), docket no. 192, filed Jan. 23, 2017.

8