Chatwin v. Draper City et al
MEMORANDUM DECISION AND ORDER granting in part and denying in part 17 Motion for Judgment on the Pleadings ; finding as moot 23 Plaintiffs Motion for Leave to File Second Amended Complaint; finding as moot 29 Defendantss Motion to Stay Briefing on Plaintiffs Motion for Leave to File Second Amended Complaint. Signed by Judge Dale A. Kimball on 11/6/2015. (jds)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
DRAPER CITY; DRAPER CITY
POLICE DEPARTMENT; POLICE
CHIEF MAC CONNOLE; OFFICER J.
PATTERSON; OFFICER DAVID
HARRIS; AND OFFICER HEATHER
Case No. 2:14cv375DAK
Judge Dale A. Kimball
This matter is before the court on Defendants Draper City, Draper City Police Department
(“DCPD”), Police Chief Mac Connole, Officer J. Patterson, Officer David Harris, and Officer
Heather Baugh’s Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. On October 20, 2015, the court held a hearing on the motion.1 At the
hearing, Plaintiff was represented by Lisa A. Marcy, and Defendants were represented by R.
Blake Hamilton. The parties stipulated to dismissal with prejudice of Plaintiff’s Third Cause of
Action against Chief Connole, Plaintiff’s Fourth Cause of Action to the extent that it is stated
Plaintiff filed a Motion for Leave to File Second Amended Complaint the day before the
court held a hearing on Defendants’s Motion for Judgment on the Pleadings. Because the motion
was not fully briefed, the court did not hear argument on the motion at the hearing. Defendants’s
have moved to stay briefing on the Motion to Amend until the court rules on the Motion for
Judgment on the Pleadings. The court addresses these motions at the conclusion of this Order.
against DCPD and the individual defendants in their individual capacities, Plaintiff’s Fifth Cause
of Action for Conspiracy, Plaintiff’s Sixth Cause of Action under the Utah Constitution, and
DCPD as a named defendant.2 The court took the remaining matters raised in the Motion for
Judgment on the Pleadings under advisement. The court has considered carefully the memoranda
submitted by the parties and the law and facts relating to the motion. Now being fully advised,
the court issues the following Memorandum Decision and Order.
On May 18, 2010, in a residential area of Draper, Utah, Draper City Police Officer David
Harris pulled over the car Plaintiff Joshua Chatwin was driving because he suspected that
Chatwin was driving under the influence of alcohol. Officer Harris had Chatwin perform field
sobriety tests and arrested him for driving under the influence of alcohol. Officer J. Patterson
and Officer Heather Baugh arrived in a second police vehicle. Officer Patterson performed a
search incident to arrest of Chatwin and his vehicle.
During Officer Patterson’s search of Chatwin, he allegedly threw Chatwin to the ground
while Chatwin was handcuffed behind his back. A witness, Kathy Ann Torrence, testified in
Chatwin’s criminal proceedings that she saw Chatwin say something to Officer Patterson before
Officer Patterson threw Chatwin to the ground but she did not see Chatwin physically provoke or
move toward Officer Patterson prior to being thrown to the ground. Torrence also testified that
Patterson appeared angry when he threw Chatwin to the ground and she did not see any of the
officers investigate whether Chatwin was injured.
The parties agree that the claims against the Draper City Police Department must be
dismissed because it is a sub-governmental entity of Draper City and, as such, is not capable of
suing or being sued. See McKell v. Utah, 2011 WL 1434583, *2 (D. Utah April 14, 2011).
Another witness, Jason Scott, observed the events that occurred after Chatwin was on the
ground. Scott gave a written statement to the Draper Police stating that the officers did not assist
Chatwin after he was on the ground and appeared unconscious. Two other witnesses gave
witness statements that Chatwin appeared to be unconscious.
Chatwin alleges that as a result of Officer Patterson throwing him to the ground, he
fractured his skull, suffered contusions and gashes, a concussion, bleeding in his brain, additional
head injuries, and a separated shoulder. Chatwin spent two days in the Intensive Care Unit at the
hospital. Chatwin further alleges that he lost noticeable hearing in his left ear, developed tinnitus
in his left ear, and has permanent scarring. His tinnitus cannot be fixed through surgery, prevents
him from sleeping well and doing quiet daily activities–like reading–and causes him depression
The officers charged Chatwin with disarming a peace officer, assault by a prisoner,
driving under the influence of alcohol, interfering with arresting officer, driving on a suspended
license, alcohol restricted driver, and operating or being in actual physical control without an
ignition interlock system. Within days of being released from the hospital, the Draper City
Police Department sent SWAT team members and their canine units to Chatwin’s house to arrest
him. Chatwin spent two months in jail on the charges and lost his job. Ultimately, Chatwin
pleaded guilty to driving under the influence of alcohol and ignition interlock, and the Salt Lake
County District Attorney’s Office dismissed the three remaining charges related to provoking a
Defendants’s Motion for Judgment on the Pleadings
1. Second Cause of Action – § 1983 Claim Against Officer Harris
Chatwin’s Second Cause of Action alleges two claims against Officer Harris. First,
Chatwin asserts a claim against Officer Harris for unlawful seizure under 42 U.S.C. § 1983.
However, Defendants argue that Chatwin has not alleged any facts that would establish that
Officer Harris unlawfully seized Chatwin. Officer Harris was the officer who pulled Chatwin
over for driving under the influence and he had probable cause to stop the car, administer the
sobriety tests, and arrest Chatwin for a DUI. “A warrantless arrest is permissible when an officer
has probable cause to believe that a person committed a crime.” Cortez v. McCauley, 478 F.3d
1108, 1115 (10th Cir. 2007).
Chatwin admits in his Amended Complaint that he pleaded guilty to the DUI and he does
not contest that Harris had probable cause to believe that Chatwin committed a crime. However,
Chatwin contends that any force leading up to and including arrest may be actionable under the
Fourth Amendment’s prohibition against unreasonable seizures. Estate of Booker, 754 F.3d at
419. But Chatwin does not allege that Harris used any force against him. The only allegations
relating to force relate to Officer Patterson, not Officer Harris. Therefore, there are no facts
supporting and no basis for an unlawful seizure claim against Harris. Accordingly, the court
dismisses that portion of the Section 1983 claim against Officer Harris.
Next, Chatwin’s Second Cause of Action alleges a Section 1983 claim against Officer
Harris for failing to seek immediate medical treatment for Chatwin. Defendants argue that this
claim is based entirely on conclusory statements and such a claim requires “both an objective and
a subjective component.” Estate of Booker v. Gomez, 745 F.3d 405, 429 (10th Cir. 2014). A
plaintiff must “produce objective evidence that the deprivation at issue” involved a medical need
that was “so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Id. at 430. Then, a plaintiff must “establish deliberate indifference to [the] serious
medical needs by presenting evidence” that the “officer acted or failed to act despite his
knowledge of substantial risk of serious harm.” Id.
Defendants contend that Chatwin has failed to show that both the objective and subjective
components are present. The court, however, concludes that the Complaint adequately meets the
objective component. Witnesses could tell that a serious injury had occurred and that Chatwin
needed medical assistance. With respect to the subjective component, Defendants claim that
Exhibit 3 to Plaintiff's Amended Complaint includes testimony that the officers called for
medical assistance for Chatwin right away. However, the issue is too fact specific to determine
at the motion to dismiss stage. While an exhibit contains testimony favorable to Defendants, it
does not provide conclusive evidence that would support a ruling as a matter of law. Chatwin
alleges and witnesses testified that the officers failed to provide any assistance while Chatwin
was on the ground and stood by their cars talking and laughing. In addition, even if the officers
contend that they called for medical assistance immediately, there is still the possibility that facts
could come to light contradicting that assertion. Therefore, dismissal of such a fact-intensive
claim at this initial stage of the litigation is improper.
4. Fourth Cause of Action – Deprivation of Constitutional Rights
The parties agree that Chatwin brings his Fourth Cause of Action as a § 1983 claim under
Monell v. Dept. of Social Servs., 436 U.S. 658 (1978), which can only be asserted against Draper
City. In Monell, the Supreme Court determined that municipalities can be held liable for civil
rights violations upon a showing that the “execution of a government’s policy or custom . . .
inflicts the injury.” 436 U.S. at 694. A Monell claim must plead three elements: (1) existence of
an official policy or custom, (2) causation, and (3) deliberate indifference to an almost inevitable
constitutional injury. Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 769 (10th
Defendants argue that Chatwin’s Amended Complaint is deficient because Chatwin only
states that there are policies and customs that caused his harm without any well-pleaded facts as
to what those policies and customs entail. The challenged policy or practice must be closely
related to the alleged violation and “the municipality must be the moving force behind the
alleged injury.” Id. at 770. However, “in the absence of an explicit policy or an entrenched
custom, ‘the inadequacy of police training may serve as a basis of § 1983 liability . . . where the
failure to train amounts to a deliberate indifference to the rights of persons with whom the police
come into contact.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1318 (10th Cir. 2002). Chatwin
alleges that Defendants have allowed similar acts to occur without the requisite discipline. Such
a practice could foster excessive force and be the moving force behind the alleged conduct in this
case. Whether or not Draper City had a specific policy, there is enough alleged regarding
practices and customs to allow a failure to train claim to move forward. The court finds that
Chatwin’s Monell claim adequately puts Draper City on notice of the alleged failures that
occurred which led to his harm. Moreover, Chatwin asserts and the court agrees that he cannot
identify specific policies that may have contributed to the alleged harm until Draper City turns
over the relevant information in discovery.
3. Seventh, Eighth, and Ninth Causes of Action – Governmental Immunity Act
Defendants argue that Chatwin’s tort claims for assault/battery and fraud against Officer
Patterson and intentional infliction of emotional distress against Officers Patterson, Harris, and
Baugh are barred by the Utah Governmental Immunity Act. The Governmental Immunity Act
gives immunity to “each governmental entity and each employee of a governmental entity” “for
any injury that results from the exercise of a governmental function.” Utah Code Ann. § 63G-7201(1). Even in situations involving negligent conduct, “immunity is not waived . . . if the injury
arises out of or in connection with, or results from . . . assault, battery, . . . infliction of mental
anguish, or violation of constitutional rights.” Id. § 63G-7-201(4)(b). To the extent that
Chatwin’s claims are based on negligence, they are barred.
To the extent that Chatwin’s tort claims are based on allegations of willful misconduct,
Chatwin must plead that the officers acted willfully and maliciously. The Governmental
Immunity Act defines willful misconduct as “the intentional doing of a wrongful act, or the
wrongful failure to act, without just cause or excuse, where the actor is aware that the actor’s
conduct will probably result in injury.” Utah Code Ann. § 63G-7-102(10). Chatwin alleges that
he was thrown to the ground while handcuffed behind his back, began bleeding profusely, and
lost consciousness, while the officers failed to check on him or provide any medical attention.
Witnesses testified that the officers did nothing to assist Chatwin and were leaning against a car
and laughing while Chatwin lay unconscious on the ground. These facts are sufficient to avoid
dismissal at the motion to dismiss stage. Giving all favorable inferences to Chatwin, the court
concludes that facts could be developed in discovery establishing willful and malicious conduct.
Therefore, the court declines to dismiss the tort causes of action against the individual officers
for assault/battery and intentional infliction of emotional distress.
Chatwin’s fraud cause of action against Officer Patterson is based on Officer Patterson’s
testimony at Chatwin’s preliminary hearing on the criminal charges and his police report.
Patterson claimed that Chatwin head butted him and tried to reach for his gun. However, other
witnesses do not corroborate his version. Under Rule 9 of the Federal Rules of Civil Procedure a
fraud claim must be pleaded with particularity and demonstrate the nine elements of fraud. Fed.
R. Civ. P. 9(b); Cardon v. Jean Brown Research, 2014 UT App. 35 ¶ 6, 327 P.3d 22, 24. The
fact that a witness testified differently than Officer Patterson does not demonstrate that Officer
Patterson’s testimony was false. Moreover, the party induced to act by the fraud has to rely on it,
be induced to act, and be injured. But the party induced to act by the alleged fraud in this case
was not Chatwin. Therefore, Chatwin cannot state a claim for fraud based on the conduct alleged
in the Complaint. Accordingly, the court grants Defendants’s motion to dismiss Chatwin’s fraud
Based on the above reasoning, Defendants’s Rule 12(c) Motion for Judgment on the
Pleadings [Docket No. 17] is GRANTED IN PART AND DENIED IN PART as discussed
above. The court considers Plaintiff’s Motion for Leave to File Second Amended Complaint
[Docket No. 23] to be largely mooted by the court’s ruling and, therefore, denies the motion
without prejudice to being re-filed. Plaintiff may re-file a new Motion for Leave to Amend
Complaint in light of the court’s ruling if he deems such a motion to be necessary. Accordingly,
Defendants’s Motion to Stay Briefing on Plaintiff’s Motion for Leave to File Second Amended
Complaint [Docket No. 29] is also MOOT.
DATED this 6th day of November, 2015.
BY THE COURT:
DALE A. KIMBALL,
United States District Judge
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