Gollaher v. Morgan County et al

Filing 104

Memorandum Decision & Order: It is order that Defendant's Objection no 91 is AFFIRMED. It is further Ordered that the Report and Recommendation no. is Rejected 89 Report and Recommendations. It is further ordered that Defendant's Motion for Judgment on the Pleadings is granted 73 Motion for Judgment on the Pleadings. Signed by Judge Ted Stewart on 10/29/2020. (kpf)

Case 2:15-cv-00133-TS Document 104 Filed 10/29/20 PageID.1039 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
SCOTT LOGAN GOLLAHER,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
WILLIAM Z. WENTLAND,

Case No. 2:15-CV-133 TS-CMR

Defendant.

District Judge Ted Stewart

This matter is before the Court on a Report and Recommendation from the Magistrate
Judge and Defendant’s Objection thereto. The Magistrate Judge recommends the Court deny
Defendant’s Motion for Judgment on the Pleadings without prejudice. Defendant objects,
arguing that the Motion should be granted. For the reasons discussed below, the Court will
affirm the Objection, reject the Report and Recommendation, and grant Defendant’s Motion for
Judgment on the Pleadings.
I. BACKGROUND
The following facts are taken from Plaintiff’s Third Amended Complaint and are
assumed to be true for purposes of Defendant’s Motion for Judgment on the Pleadings.
Plaintiff is currently an inmate at the Utah State Prison. Defendant was at all relevant
times a detective with the Morgan County Sherriff’s Office. Plaintiff brings suit against
Defendant based on his participation in obtaining and executing search warrants on Plaintiff’s
residence in Salt Lake City and property located in Morgan County, Utah (the “Morgan
Property”), and Plaintiff’s eventual arrest.

1

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Defendant prepared an affidavit in support of the search warrants that were ultimately
issued. The affidavit is attached to Plaintiff’s Third Amended Complaint and has been
considered by the Court. 1 In the affidavit, Defendant stated that Plaintiff was a convicted sex
offender who failed to report a secondary address—the Morgan Property—where the crimes
allegedly occurred. Defendant went on to state that an eleven-year-old female victim disclosed
that Plaintiff had taken pictures of her with his cell phone while she was clad in her underwear.
Defendant stated that Plaintiff’s cell phone and related electronic devices needed to be secured
and examined to determine whether evidence existed to corroborate the victim’s statements.
Defendant stated that Plaintiff’s primary residence was in Salt Lake City but that he used the
Morgan Property for recreation on the weekends. State Court Judge Noel S. Hyde authorized
search warrants for Plaintiff’s residence and the Morgan Property to search for and seize various
electronic devices.
Plaintiff alleges that Defendant omitted material facts from the affidavit. Specifically,
Defendant failed to disclose “the circumstances under which Mr. Gollaher allegedly took
pictures of the 11-year-old female, the non-sexually explicit nature of the pictures that were
allegedly taken, and the initial investigative report that did not include any allegations that Mr.
Gollaher had taken pictures.” 2
While Plaintiff denies he took any pictures, his Third Amended Complaint asserts that the
pictures referenced in the affidavit were allegedly taken when four youths accompanied Plaintiff
to a reservoir near the Morgan Property. While at the reservoir, some of the youths removed

1

Docket No. 65-2.

2

Docket No. 65 ¶ 11.

2

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portions of their clothing. The Third Amended Complaint alleges that “the boy removed his
shirt, one girl took off her shirt, and a second girl took off her shirt and shorts to swim in the
reservoir. The third girl did not swim in the reservoir or remove any of her clothing.” 3 The
Complaint goes on to allege that “according to one of the girls, Mr. Gollaher allegedly took a
picture of one of the girls with his cell phone while the youths were wading and swimming in the
reservoir. A second girl alleged that Mr. Gollaher took pictures with his cell phone while two of
the girls were swimming.” 4
Plaintiff alleges that the initial report of the incident did not include reference to him
taking pictures. “Rather, the report stated that Mr. Gollaher ‘just stood there and watched’ while
the youths swam in the reservoir.” 5 Plaintiff asserts that the allegations of him taking pictures
arose only after Defendant suggested it to one of the youths’ aunts. This resulted in two of the
youths alleging that Plaintiff had taken pictures of them while wading and swimming in the
reservoir. 6 Plaintiff further alleges that the pictures allegedly taken were not sexually explicit.
Plaintiff asserts that this information was omitted from the affidavit because Defendant believed
including it would have vitiated probable cause for the search warrants.
In addition, Plaintiff alleges that Defendant made false representations in his affidavit.
Specifically, Plaintiff alleges that Defendant knowingly misrepresented that Plaintiff owned the
Morgan Property and failed to report his ownership as a convicted sex offender. Plaintiff alleges

3

Id. ¶ 12.

4

Id.

5

Id. ¶ 14.

6

Id. ¶ 17.

3

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that Defendant knew that Plaintiff was the registered agent for the entity that owned the Morgan
Property but that he did not have an ownership interest in it. Plaintiff asserts that Defendant
misrepresented Plaintiff’s ownership of the Morgan property to bolster probable cause.
As stated, Judge Hyde issued the search warrants based on the information contained in
Defendant’s affidavit. Defendant, along with the Salt Lake City Police Department and the FBI,
executed the search warrant of Plaintiff’s residence. They seized several computers and other
digital media. After searching the electronic media at the residence, Plaintiff was arrested on 10
counts of child pornography and one count of sodomy on a child. Plaintiff alleges that no
evidence had been found to support those charges.
Plaintiff brought suit in this Court in 2015. Plaintiff was eventually appointed counsel to
assist in drafting his Third Amended Complaint. Plaintiff’s Third Amended Complaint asserts
claims for unlawful search and seizure and unlawful arrest. This matter was subsequently
referred to the Magistrate Judge under 28 U.S.C. § 636(b)(1)(B). Thereafter, Defendant filed a
Motion for Judgment on the Pleadings, seeking dismissal on qualified immunity grounds. The
Magistrate Judge issued a Report and Recommendation, recommending the Motion be denied
without prejudice. Defendant objects.
II. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b), a party has 14 days after being served with a copy of the
Report and Recommendation to file an objection. As Defendant has objected, the Court reviews
the Report and Recommendation de novo. 7

7

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

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In order to conduct a de novo review a court “should make an independent
determination of the issues . . . ; [it] ‘is not to give any special weight to the [prior]
determination’ . . . .” “The district judge is free to follow [a magistrate judge’s
recommendation] or wholly to ignore it, or, if he is not satisfied, he may conduct
the review in whole or in part anew.” 8
Defendant seeks judgment on the pleadings under Rule 12(c). The Court applies the
same standards in evaluating motions under Rule 12(b)(6) and Rule 12(c). 9
In considering a motion to dismiss for failure to state a claim upon which relief can be
granted under Rule 12(b)(6), all well-pleaded factual allegations, as distinguished from
conclusory allegations, are accepted as true and viewed in the light most favorable to Plaintiff as
the nonmoving party. 10 Plaintiff must provide “enough facts to state a claim to relief that is
plausible on its face,” 11 which requires “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” 12 “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” 13

8

Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting
United States v. First City Nat’l Bank, 386 U.S. 361, 368, (1967); Mathews v. Weber, 423 U.S.
261, 271 (1976)) (alterations in original).
9

See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002).

10

GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.

11

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

12

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

13

Id. (quoting Twombly, 550 U.S. at 555, 557) (alteration in original).

1997).

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“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that
the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” 14 As the Court in Iqbal stated,
only a complaint that states a plausible claim for relief survives a motion to dismiss.
Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not shown—that the pleader is entitled to relief. 15
In considering a motion to dismiss, a district court not only considers the complaint “but
also the attached exhibits,” 16 the “documents incorporated into the complaint by reference, and
matters of which a court may take judicial notice.” 17 The Court “may consider documents
referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do
not dispute the documents’ authenticity.” 18
Defendant’s Motion attaches exhibits to which Plaintiff objects. Because Defendant’s
Motion can be decided without reference to the attachments, they have not been considered.
Instead, the Court has only considered Plaintiff’s Third Amended Complaint and the attachments
appended thereto in deciding the Motion for Judgment on the Pleadings.

14

Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

15

Iqbal, 556 U.S. at 679 (internal citations and quotation marks omitted).

16

Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d
1194, 1201 (10th Cir. 2011).
17

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

18

Jacobsen, 287 F.3d at 941.

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III. DISCUSSION
Defendant seeks dismissal on qualified immunity grounds. “Qualified immunity exists to
protect government officials ‘from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.’” 19 Once a defendant invokes qualified immunity, the plaintiff bears the burden of
demonstrating: “(1) the defendant violated a constitutional right and (2) the constitutional right
was clearly established.” 20 “This is a heavy burden. If the plaintiff fails to satisfy either part of
the inquiry, the court must grant qualified immunity.” 21
A.

SEARCH
Plaintiff asserts that Defendant omitted material information and made false

representations in his affidavit for the search warrants. It is a violation of the Fourth Amendment
to “knowingly, or with reckless disregard for the truth, include false statements in the affidavit,
or to knowingly or recklessly omit from the affidavit information which, if included, would have
vitiated probable cause.” 22 To prove such a claim, Plaintiff must show that, after setting aside all
false information and including all omitted exculpatory evidence, probable cause was lacking. 23
Here, Plaintiff has not plausibly alleged that, after setting aside all allegedly false
information and including all omitted exculpatory evidence, the warrants lacked probable cause.

19

Estate of Reat v. Rodriguez, 824 F.3d 960, 964 (10th Cir. 2016) (quoting Dodds v.
Richardson, 614 F.3d 1185, 1191 (10th Cir. 2010)).
20

Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).

21

Carabajal v. City of Cheyenne, Wyo., 847 F.3d 1203, 1208 (10th Cir. 2017).

22

Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996) (internal quotation marks and
citations omitted).
23

Pierce v. Gilchrist, 359 F.3d 1279, 1293 (10th Cir. 2004).

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Even when the additional information is added and the allegedly false statements are omitted, the
salient assertion remains the same: Plaintiff allegedly took pictures with his cell phone of minors
in various states of undress. This provides sufficient probable cause that Plaintiff’s cell phone
and other electronic devices may have contained evidence of sexual exploitation of a minor.
Under Utah law, “[a] person is guilty of sexual exploitation of a minor . . . when the
person . . . knowingly produces, possesses, or possesses with intent to distribute child
pornography.” 24
“Child pornography” means any visual depiction, including any live performance,
photograph, film, video, picture, or computer or computer-generated image or
picture, whether made or produced by electronic, mechanical, or other means, of
sexually explicit conduct, where: (a) the production of the visual depiction involves
the use of a minor engaging in sexually explicit conduct; (b) the visual depiction is
of a minor engaging in sexually explicit conduct; or (c) the visual depiction has
been created, adapted, or modified to appear that an identifiable minor is engaging
in sexually explicit conduct. 25
“‘Sexually explicit conduct’ means . . . the visual depiction of nudity or partial nudity for the
purpose of causing sexual arousal of any person.” 26 “‘Nudity or partial nudity’ means any state
of dress or undress in which the human genitals, pubic region, buttocks, or the female breast, at a
point below the top of the areola, is less than completely and opaquely covered.” 27
Nothing about the context in which the pictures were taken or the fact that the initial
report did not mention Plaintiff taking pictures detracts from a finding of probable cause.
Similarly, even assuming Defendant was the first to suggest that pictures were taken, this

24

See Utah Code Ann. § 76-5b-201(1)(a)(i).

25

Id. § 76-5b-103(1).

26

Id. § 76-5b-103(10)(f).

27

Id. § 76-5b-103(8).

8

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suggestion was then corroborated by the statements from two of the minors present. Plaintiff’s
contention that the pictures were not sexually explicit is completely conclusory and does not
address the definition under Utah law. Plaintiff’s own allegations state that one girl took off her
shirt and a second took off her shirt and shorts to swim in the reservoir. Plaintiff also alleges that
two girls alleged that Plaintiff took pictures of them while they were swimming. Under the
definition set forth above, pictures of youths wading and swimming in a reservoir could be
considered sexually explicit, depending on the circumstances. Thus, nothing about this
additional information contradicts Defendant’s statement in the affidavit that “an eleven year old
female victim disclosed that Gollaher had taken pictures of her while she was clad in her
underwear.” 28 In sum, the additional information Plaintiff asserts should have been included in
the affidavit does not vitiate probable cause.
Further, the ownership of the Morgan Property is not relevant to the issue of probable
cause. Plaintiff does not contest the assertion in the affidavit that he used the Morgan Property
for recreation and that it was located near where the crimes allegedly occurred. Indeed, his Third
Amended Complaint alleges that the alleged incident occurred at a reservoir near the Morgan
Property. Even assuming Plaintiff did not have an ownership interest in the Morgan property,
probable cause would remain to search the Morgan Property. While Plaintiff argues that his
alleged failure to report the Morgan Property as a secondary address was meant to bolster
probable cause, probable cause would still exist without these allegations. The allegations of
ownership might support a finding of probable cause for another crime—the failure to properly

28

Docket No. 65-2.

9

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report—but probable cause of sexual exploitation of a minor would remain if the allegations
regarding ownership of the Morgan property were excluded.
B.

SEIZURE
Plaintiff next brings a claim related to his warrantless arrest. “[A] government official

must have probable cause to arrest an individual.” 29 “A warrantless arrest is permissible when
an officer has probable cause to believe that a person committed a crime.” 30 “Probable cause to
arrest exists only when the facts and circumstances within the officers’ knowledge, and of which
they have reasonably trustworthy information, are sufficient in themselves to warrant a man of
reasonable caution in the belief that an offense has been or is being committed.” 31
Plaintiff asserts that he was arrested without probable cause. The only allegation to
support this assertion is that, on information and belief, “no evidence had been found at Mr.
Gollaher’s residence or the Morgan Property that would have provided probable cause to believe
Mr. Gollaher had committed acts of sodomy on a child or sexual exploitation of a minor.” 32
The Court finds this allegation insufficient. “The mere fact that a plaintiff uses the
language ‘information and belief’ does not make an allegation conclusory but, instead, the Court
must consider the content of the allegation itself.” 33 In considering the content, the Court finds

29

Cortez v. McCauley, 478 F.3d 1108, 1117 (10th Cir. 2007).

30

Id. at 1115 (internal citation and quotation marks omitted).

31

United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004) (internal citation and
quotation marks omitted).
32

Docket No. 65 ¶ 30.

33

ArCzar, Inc. v. Navico, Inc., No. 11-CV-805-PJC, 2012 WL 3150815, at *2 (N.D.
Okla. Aug. 2, 2012) (citing Dorf v. City of Evansville, No. 11-CV-351-S, 2012 WL 1440343, at
*4 n.2 (D. Wyo. Apr. 22, 2012)).

10

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that the allegation is totally conclusory because it completely lacks factual support. Plaintiff
merely asserts that no evidence had been found to support a finding of probable cause but
provides no factual assertions to shore up this conclusory statement. It seems implausible that
Plaintiff would be arrested and subjected to an ongoing criminal proceeding if “no evidence” had
truly been found. Without more, this claim is subject to dismissal.
IV. CONCLUSION
It is therefore
ORDERED that Defendant’s Objection (Docket No. 91) is AFFIRMED. It is further
ORDERED that the Report and Recommendation (Docket NO. 89) is REJECTED. It is
further
ORDERED that Defendant’s Motion for Judgment on the Pleadings (Docket No. 73) is
GRANTED.
DATED this 29th day of October, 2020.
BY THE COURT:

Ted Stewart
United States District Judge

11