Barham v. Greybull WY et al

Filing 35

ORDER by the Honorable Judge Scott W Skavdahl Granting Defendants' Motions for Judgment on the Pleadings Pursuant to Rule 12(c) 20 and Defendants Town of Greybull, Wyoming and Greybull Police Department. 22 (Skavdahl, Scott)

United States District Court
For The District of Wyoming
PHILLIP CHARLES BARHAM,
Plaintiff,
vs.
TOWN OF GREYBULL WYOMING,
GREYBULL POLICE DEPARTMENT,
POLICE CHIEF BILL BRENNER
individually, POLICE OFFICER MATT
MILLER individually, AND POLICE
OFFICER BEN MAYLAND, individually,
Defendants.

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Civil No. 10–CV–261–D

ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

The above-entitled matter comes before the Court on two related motions: (1) Peace Officer
Defendants’ Motion for Judgment on the Pleadings, Doc. 20; and (2) Motion for Judgment on the
Pleadings Pursuant to Rule 12(c), Fed.R.Civ.P. by Defendants Town of Greybull, Wyoming and
Greybull Police Department, Doc. 22. On May 11, 2011, the Court held a hearing on the motions.
James P. Castberg of Sheridan, Wyoming appeared on behalf of Plaintiff. Larry B. Jones and Tenille
L. Castle of Cody, Wyoming appeared on behalf of Defendants, Town of Greybull, Wyoming and
the Greybull Police Department. Theodore R. Racines of Cheyenne, Wyoming appeared on behalf
of Defendants Police Chief Bill Brenner, Police Officer Matt Miller, and Police Officer Ben

1

Mayland. The Court, having carefully considered the motions, response, and exhibits thereto,
including Plaintiff’s supplement of the record, and arguments made by the parties at the hearing, and
being fully advised in the premises, FINDS and ORDERS:
I.

BACKGROUND

On July 27, 2009, the mother of a Greybull, Wyoming girl, T.S., contacted Deputy Elder1
with the Big Horn County Sheriff’s Office and reported that her daughter, D.S., who is thirteen years
old, had made a disclosure during a therapy session at the Wyoming Behavioral Institute (“WBI”),
that she had been sexually assaulted by a man named Charlie, later determined to be Phillip Charles
Barham. (Doc. 21-1). Thereafter, Deputy Elder and Sergeant Miller, with the Greybull Police
Department, with permission from T.S., interviewed D.S. at WBI in Casper, Wyoming. During the
interview, D.S. verified that the man she referred to as Charlie was in fact Phillip C. Barham, and
she accused Phillip Barham of having sex with her on multiple occasions some of which were at his
home. D.S. drew a map of where Barham lived and described his house, including the interior.
Sergeant Miller was familiar with Barham’s house and noted that the description as given by D.S.
was accurate. Based on the information given by D.S. in her interview, on July 29, 2009, officers
with the Greybull Police Department arrested Plaintiff pursuant to an arrest warrant issued by the
Circuit Court of Big Horn County, Wyoming. The Information accompanying the warrant charged

1

Deputy “Edeler” is referred to in the affidavits (Doc. 21-1, 21-2, 21-9) however, Defendants’
Memorandum refers to him as “Elder.” (Doc. 21). It is unclear which spelling is correct so to avoid
confusion this Court will use the spelling of “Edeler”.
2

Plaintiff with eight counts of sexual assault of a minor.
In investigating the charges related to D.S., officers obtained information indicating that
Plaintiff may have sexually assaulted two other adult women, a woman named D.J. and D.S.’s
mother, T.S. Based on the separate statements given by these two women, on August 7, 2009,
Plaintiff was further charged with committing additional sexual assaults. In total, a total of twenty
counts were brought, by criminal information, against Plaintiff.
Based on the statements given by each of the alleged victims, Defendant Police Sergeant Matt
Miller swore out the affidavits for the three arrest warrants, as well as the search warrants for
Plaintiff’s person, residence, and vehicle. All of the warrants were issued by Wyoming Circuit Court
Judge Thomas W. Harrington. Nineteen of the twenty charges were bound over to the District Court
after the Circuit Court held preliminary hearings in August of 2009. Plaintiff was detained in the
Big Horn County Detention Center for 224 days while his case was investigated.2 Ultimately, in
March, 2010, the County Attorney dismissed the charges, without prejudice.
Plaintiff filed his Complaint in this matter on December 2, 2010, bringing claims against
Defendants for (1) unlawful arrest and unlawful detention in violation of his civil rights, pursuant
to 42 U.S.C. § 1983; (2) unlawful search and seizure; (3) excessive force causing physical injury
during arrest; and (4) public embarrassment, ridicule, and loss of enjoyment of life.

2

Plaintiff stresses that for his own personal safety reasons, most of his incarceration in the
Big Horn County Detention Center was spent in solitary confinement.
3

II.

PROCEDURAL STANDARD

Defendants filed the motions for judgment on the pleadings, based on Federal Rule of Civil
Procedure 12(c), on April 11, 2011. Docs. 20 and 22. Plaintiff timely filed his responses on April
26, 2011. Docs. 28 and 29. Because the parties submitted multiple exhibits, the Court finds the
procedural posture in determining this matter renders it impossible for the Court to consider it as a
Rule 12(c) dismissal. In their motions, Defendants ask the Court to consider several attached
documents, including:3 (1) Arrest Affidavit for Plaintiff, Case No. 09G–04, dated July 29, 2007
(Doc. 21–1, Exhibit A and Doc. 30–1, Exhibit No. 2); (2) Affidavit for Search Warrant of Plaintiff’s
Premises and Warrant for Search and Seizure, Criminal No. SW–2009–0004B, dated July 29, 2009
(Doc. 21-2, Exhibit B); (3) Information, Criminal No. CR–2009–0035B, dated July 29, 2009 (Doc.
21–3, Exhibit C and Doc. 30–1, Exhibit No. 2); (4) Warrant for Plaintiff’s Arrest, Criminal No.
CR–2009–0035B, dated July 29, 2009 (Doc. 21–4, Exhibit D and Doc. 30–1, Exhibit No. 4); (5)
Affidavit for Search Warrant of Plaintiff’s premises and Warrant for Search and Seizure, Criminal
No. SW–2009–0003B, dated July 30, 2009 (Doc. 21–5, Exhibit E); (6) Arrest Affidavit for Plaintiff,
Case No. 09G–104, dated August 4th, 2009 (Doc. 21–6, Exhibit F and Doc. 30–1, Exhibit No. 4);
(7) Information, Criminal No. CR–2009–0036B, dated August 7, 2009 (Doc. 21–7, Exhibit G and
Doc. 30–1, Exhibit No. 4); (8) Warrant for Plaintiff’s arrest, CR–2009–0036B, dated August 7, 2009
(Doc. 21–8, Exhibit H); (9) Affidavit for Search Warrant of Plaintiff’s Premises and Vehicle and

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Most of the exhibits submitted by the parties are identical documents and have been cited
accordingly.
4

Warrant for Search and Seizure, Criminal No. SW–2009–0005B, dated August 2, 2009 (Doc. 21–9,
Exhibit I); (10) Arrest Affidavit for Plaintiff, Case No. 09G–104, dated August 5, 2009 (Doc. 21–10,
Exhibit J); (11) Affidavit of David R. Chavez, M.D., dated November 30, 2009 (Doc. 21–11, Exhibit
K and Doc. 30–1, Exhibit No. 3); (12) Motion for Order to Show Cause, filed by Plaintiff on August
9, 2010 in the Fifth Judicial District, Big Horn County, Wyoming (Doc. 21–12, Exhibit L); (13)
Arraignment, Docket Entry, and Judgment for Plaintiff, Case No. CR–2009–0035B, dated August
10, 2009 (Doc. 21–13, Exhibit M); (14) Arraignment, Docket Entry, and Judgment for Plaintiff, Case
No. CR–2009–0036B, dated August 19, 2009 (Doc. 21–14, Exhibit N); (15) Wyoming Attorney
General Division of Criminal Investigation, Laboratory Examination Report, dated March 1, 2010
(Doc. 30–1, Exhibit No. 5); and (16) Wyoming Attorney General Division of Criminal Investigation,
Laboratory Examination Report, dated March 4, 2010 (Doc. 30–1, Exhibit No. 6).
Rule 12(c) provides that “after the pleadings are closed — but early enough not to delay trial
— a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). A motion for judgment
on the pleadings implicates essentially the same legal principles as a Rule 12(b) motion to dismiss.
See generally Continental Coal, Inc. v. Cunningham, 511 F.Supp.2d 1065, 1070 (D. Kan. 2007).
Except in very limited circumstances, in determining a motion for judgment on the pleadings, the
Court is limited to the allegations pled within the four corners of the Complaint. See e.g. Mobley
v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Burnham v. Humphrey Hospitality Reit Trust Inc.,
403 F.3d 709, 713 (10th Cir. 2005) (stating that on a Rule 12(b)(6) motion, a court’s factual inquiry
is limited to the well-pleaded facts contained in the complaint). Thus, the Court may grant a motion
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for judgment on the pleadings if all material issues can be resolved solely on the pleadings.
However, the Court finds it necessary to also consider the exhibits attached by parties in making a
determination.
“If, on a motion under Rule 12(b)(6) or 12(c) matters outside the pleadings are presented to
and not excluded by the court, the motion must be treated as one for summary judgment under Rule
56.” Fed.R.Civ.P. 12(d). Consequently, when a party attaches exhibits to a Rule 12(c) motion, the
Court generally must convert the motion into a motion for summary judgment because exhibits, such
as those filed here, are not considered pleadings under the Federal Rules.4 See Fed.R.Civ.P. 12(c)
and Fed.R.Civ.P. 7 (delineating between pleadings, motions, and other papers). Tal v. Hogan, 453
F.3d 1244, 1265 (10th Cir. 2006) (“Ordinarily, consideration of material attached to a defendant’s
answer or motion to dismiss requires the court to convert the motion into one for summary judgment
and afford the parties notice and an opportunity to present relevant evidence.”). Therefore, the Court
finds it necessary to convert Defendants’ motions to summary judgment.5
The Court is mindful that in converting a motion to dismiss to a motion for summary
4

The Court notes that qualified immunity is normally raised on a motion for summary
judgment. See Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir.
1988).
5

The Court understands it may consider documents that are attached to the complaint,
incorporated by reference, or referred to in the complaint and that are central to the plaintiff’s
allegations. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941-42 (10th Cir. 2002). However,
Plaintiff has not attached, nor incorporated any of the exhibits into his Complaint. And, although
much of his Complaint is a recital of the information contained in the exhibits, Plaintiff only
generally mentioned the affidavits in his pleading. Thus, to err on the side of caution, the Court,
after notice to the parties, converted Defendants’ Rule 12(c) motions to motions summary judgment.
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judgment, it must provide the parties “a reasonable opportunity to present all the material that is
pertinent to the motion.” Fed.R.Civ.P. 12(d). The Court notified the parties of its decision to
convert the motions at the May 11, 2011 hearing and provided them ten (10) days to submit any
additional exhibits they wished the Court to consider. Doc. 34. On May 23, 2011, Plaintiff
supplemented the record with the following: (1) an audio recording of Plaintiff’s Preliminary
Hearing, dated August 19, 20096; (2) a transcript of Plaintiff’s Arraignment Proceedings, dated
October 6, 2009; and (3) a transcript of Plaintiff’s Motion for Bond Reduction Proceedings, dated
February 2, 2010.
III.

LEGAL ANALYSIS

(a)

SUMMARY JUDGMENT STANDARD

Summary judgment is proper when there is no genuine issue of material fact to be resolved
at trial. Fed. R. Civ. P. 56(c); Nebraska v. Wyoming, 507 U.S. 584, 590 (1993). Thus, the Court
may grant summary judgment “if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue of material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2); Nelson v. Geringer, 295 F.3d 1082, 1086
(10th Cir. 2002). “An issue of material fact is genuine where a reasonable jury could return a verdict
for the party opposing summary judgment.” Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 797

6

Plaintiff submitted two audio discs with his supplement, one dated August 10, 2009 and one
dated August 19, 2009. This Court, in review of the audio recordings, notes that both audio
recordings submitted are from the same hearing, Plaintiff’s August 19, 2009 preliminary hearing,
not two separate dates as marked on the audio disks.
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(10th Cir. 1997).
In applying these standards, the Court must view the evidence in the light most favorable to
the party opposing summary judgment. Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996). The
moving party bears the initial burden of demonstrating “the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has
supported its motion for summary judgment, the burden then shifts to the non-moving party to
demonstrate the existence of a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251 (1986). To do so, the non-moving party must go beyond the pleadings and
designate specific facts to show there is a genuine issue. Id.; Ford v. West, 222 F.3d 767, 774 (10th
Cir. 2000). The mere existence of a scintilla of evidence in support of the non-moving party’s
position is insufficient to create a “genuine” issue of disputed fact. Lawmaster v. Ward, 125 F.3d
1341, 1347 (10th Cir. 1997). However, where summary judgment is sought based upon qualified
immunity, the summary judgment standards are subject to a somewhat different analysis from other
summary judgment rulings. Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir.2006).
(b)

QUALIFIED IMMUNITY & DEFENDANTS POLICE CHIEF BILL
BRENNER, POLICE OFFICER MATTER MILLER and POLICE OFFICER
BEN MAYLAND

Qualified immunity shields public officials from civil damages liability “as long as their
actions could reasonably have been thought consistent with the rights they are alleged to have
violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987); Mitchell v. Forsyth, 472 U.S. 511, 526
8

(1985). Consequently, the qualified immunity defense must be resolved at the earliest possible stage
of litigation. See Saucier v. Katz, 533 U.S. 194 (2001). The doctrine of qualified immunity
“operates to ensure that before they are subjected to suit, officers are on notice that their conduct is
unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks omitted). As
governmental officials, Defendants are entitled to assert a defense of qualified immunity because:
[g]overnment officials performing discretionary functions generally are shielded 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.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Rozek v. Topolnicki, 865 F.2d 1154, 1157
(10th Cir. 1989). “The contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Anderson, 483 U.S. at 639.
Qualified immunity is an affirmative defense that the defendant has the burden of pleading.
Gomez v. Toledo, 446 U.S. 635, 640 (1980). Once qualified immunity is properly raised, the burden
shifts to the plaintiff to show that the defendant violated a specific statutory or constitutional right
and that the constitutional or statutory rights the defendant allegedly violated were clearly established
at the time of the conduct at issue. See e.g., Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir.2006);
Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815–16, 172 L.Ed.2d 565 (2009). Because
Defendants have raised the qualified immunity defense, the Court will focus on whether Plaintiff has
met his burden of showing that Defendants violated a clearly established constitutional right. To
carry his burden of convincing the Court that the law was clearly established, Plaintiff “must do more
than identify, in the abstract, a clearly established right and allege that the defendant has violated it.”
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Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir. 1988) (citing
Anderson, 483 U.S. at 639). This means Plaintiff must show that a reasonable official would
understand that what he was doing violated Plaintiff’s right. See Pindell v. Wilson-McKee, 60
F.Supp. 2d 1244, 1252 (D. Wyo. 1999).
i.

Warrant Affidavits

The first arrest affidavit and search warrant affidavit were both sworn to by Defendant Miller
on July 29, 2009. Doc. 21, Peace Officer Exhibit A, Arrest Affidavit. These affidavits outline the
sexual assault allegations brought by a thirteen year old girl, D.S. The affidavits, which read
essentially the same, establish that on July 27, 2009, Defendant Miller was assigned to follow up on
a report of sexual assault given to Defendant Police Chief Brenner. Id., ¶ 2-3. D.S.’s mother had
reported to Deputy Elder of the Big Horn County Sheriff’s Department that D.S. had disclosed to
her therapist that she had been sexually assaulted by a man named “Charlie,” later discovered to be
Plaintiff. Id., ¶ 4. At the time, D.S. was at the Wyoming Behavioral Institute in Casper, Wyoming.
Id. After seeking permission from D.S.’s mother, Deputy Elder interviewed D.S. at the Wyoming
Behavioral Institute, at which time D.S. informed Deputy Elder that her Great Uncle, Craig
Winstead, had been performing sexual acts on her since she was about eight years old.7 Id., ¶ 9.
D.S. told Deputy Elder that Winstead had introduced Plaintiff to her and told him “that is was okay
7

Craig Winstead was convicted for sexually assaulting D.S in 2007, along with two other
children, and is currently serving consecutive sentences of 10 to 15 years on two counts of third
degree sexual assault and a concurrent sentence of 10 to 15 on a third count third degree sexual
assault, at the Wyoming State Penitentiary in Rawlins, Wyoming. See Winstead v. State, Supreme
Court Case No. S-11-0069.
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to have sexual intercourse with D.S. because Winstead already did so on a regular basis.” Id., ¶ 8.
D.S. also told Deputy Elder that Winstead and Plaintiff would take turns having sexual intercourse
with her and that when Winstead went to prison, Plaintiff continued to molest and have sex with her.
Id., ¶¶ 10-14. D.S. was very specific and graphic in recounting the details of the sexual assaults she
alleged Plaintiff had performed on her. D.S. was also very specific in describing Plaintiff’s
residence, where the acts allegedly occurred, and even drew an accurate map of Plaintiff’s property.
Id., ¶ 15. Based on D.S.’s statements, Defendant Miller believed that probable cause existed to
obtain the warrants. Id., ¶ 16. The circuit court judge agreed and issued the warrants for Plaintiff’s
arrest, search and seizure. See Doc. 21, Peace Officer Exhibit B, Warrant for Search and Seizure,
at 4.
The second set of affidavits relate to the sexual assault allegations brought by D.J.8
According to the D.J. Arrest Affidavit, while executing the search warrant in the D.S. matter,
Defendant Miller discovered videos on one of Plaintiff’s cell phones, wherein Plaintiff had asked
a woman “to expose her breasts and vagina.” Doc. 21, Peace Officer Exhibit F, Arrest Affidavit, ¶
2-3. The cell phone also contained compromising pictures of the woman. Id. That woman was later
recognized to be D.J. Id. Defendant Miller then went to D.J.’s house to inquire about Plaintiff. Id.,
¶ 6. As soon as Defendant Miller asked D.J. if she would talk to him about Plaintiff, she
immediately began to cry and expressed fear of Plaintiff. Id. Only after Defendant Miller made clear
8

The search warrant affidavit was sworn by Defendant Miller on July 30, 2009. The arrest
warrant affidavit was sworn by Defendant Miller on August 4, 2009. The Affidavit for Search
Warrant, Exhibit E, and the Arrest Affidavit, Exhibit F, contain substantially the same language.
11

that Plaintiff was in jail and would not be able to hurt her did D.J. agree to be interviewed. Id. D.J.
told Defendant Miller that the day before she and a man named James Housler had gone to Plaintiff’s
house in order to earn some extra money cleaning out Plaintiff’s shed. Id. After Housler left, D.J.
set forth that Plaintiff told her to take some items from the shed and put them into the cellar of the
empty house next door. Id. She claimed that Plaintiff followed her into the cellar, where he sexually
assaulted her and then made her pose for him and touch herself while he videoed her with his cell
phone. Id. ¶ 9. D.J. declared Plaintiff threatened to harm her if she told anyone about what
happened in the cellar, saying “listen little girl, I have nine felonies and I won’t hesitate to get one
more.” Doc. 1, ¶ 100.
Next, D.J. stated that Plaintiff told her to grab some paint cans from the cellar and take them
over to his house. Id. She said that she did as she was told and that Plaintiff followed her. Id. She
explained that she would have run, but she was afraid that Plaintiff would have caught her and hurt
her. Id. D.J. told Defendant Miller that once inside Plaintiff’s house, Plaintiff again sexually
assaulted her. Id. D.J. insisted when she tried to fight Plaintiff off, he simply drug her to his bed in
the living room where he tried to rape her. Id. Defendant Miller observed bruises on D.J.’s arms
and legs that were consistent with her story. Id., ¶ 10. See also Audio Recording of Plaintiff’s
Preliminary Hearing, dated August 19, 2009 at approximately 29:00 (testimony of Defendant Miller
describing the bruising on D.J.’s arms, wherein he explained she had three small finger-sized bruises
that were consistent with someone grabbing her arm). D.J. stated Plaintiff was unable to rape her
because she fought him off, so he forced her to perform oral sex on him instead. Id., ¶ 9. D.J. told
12

Defendant Miller that Plaintiff eventually ejaculated into her mouth and that his semen came out the
side of her mouth, spilling onto either her shirt, Plaintiff’s bed sheet, or Plaintiff. Id. D.J. relayed
to Defendant Miller that after the assault, Plaintiff drove her home in his pickup truck. Id. Based
on D.J.’s statements, Defendant Miller believed that probable cause existed to obtain the second set
of warrants. Id., ¶ 12. The circuit court judge again agreed and issued the warrants for the search
and seizure of Plaintiff’s person, residence, and vehicle. See Doc. 21, Peace Officer Exhibit E,
Warrant for Search and Seizure, at 4.
The third set of affidavits related to sexual assault allegations brought by D.S.’s mother, T.S.9
According to the arrest affidavit, during Defendant Miller’s July 27, 2009 interview with T.S.
concerning the allegations brought by D.S., T.S. informed him that Plaintiff had also sexually
assaulted her the previous summer “sometime during the gardening season.” Doc. 21, Peace Officer
Exhibit J, Arrest Affidavit, ¶¶ 2-9. T.S. set forth that she had gone to Plaintiff’s house to get some
vegetables and when she arrived, Plaintiff invited her inside, at which time he sexually assaulted her.
Id., ¶¶ 10-20. T.S. claimed Plaintiff forced her to perform oral sex on him and that after he
ejaculated into her mouth, she vomited. Id. T.S. further advanced that afterward Plaintiff began to
masturbate in front of her using Vaseline and ordered her to take her clothes off. Id. T.S. stated that
at that point, Plaintiff forced her to have sex with him. Id. T.S. insisted Plaintiff held a handgun

9

The search warrant affidavit was sworn by Defendant Miller on August 2, 2009. The arrest
affidavit was sworn by Defendant Miller on August 5, 2009. The Court notes that the Affidavit for
Search Warrant, Exhibit I, and the Arrest Affidavit, Exhibit J, contain substantially the same
language.
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throughout the entire incident, which is why she complied with his demands. Id. T.S. fastidiously
explained the gun to Defendant Miller, stating it was a revolver style with a four-inch barrel and
probably silver in color. Id., ¶ 21. T.S. also described a brown couch in Plaintiff’s living room. T.S.
also insisted that since the assault, Plaintiff frequently threatened her with physical harm so she
would not tell anyone about the incident. Id. Based on T.S.’s statements, Defendant Miller believed
that probable cause existed to obtain the third set of warrants. Id., ¶ 24. The circuit court judge
agreed and issued the warrant for the search and seizure of Plaintiff’s residence and vehicle. See
Doc. 21, Peace Officer Exhibit I, Warrant for Search and Seizure, at 4.
ii.

Plaintiff’s Fourth Amendment Claims for Unlawful Arrest, Unlawful Detention,
and Unlawful Search and Seizure

Plaintiff claims his arrest, detention, and the search and seizure of his residence and property
violated his Fourth Amendment rights because there was insufficient probable cause to support
Defendant Miller’s affidavits, the issuance of the warrants, and to support the charges against him.
Plaintiff asserts Defendants’ handling of the case amount to “such a degree of incompetence that they
are not, and should not, be entitled to qualified immunity.” Doc. 30, at 24.
Police Officer Defendants, on the other hand, assert the three arrest affidavits, along with the
three search warrants, each establish probable cause to believe that Plaintiff committed the assaults
against the three alleged victims. Doc. 21, at 9–13. These Defendants point out that the affidavits
describe what the alleged victims told police officers during their interviews and that there are no
allegations that Defendant Miller included any false information in any of them. Id. at 15. At the

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hearing, Police Officer Defendants argued Plaintiff’s allegations create reasonable doubt, which
would be appropriate if this were a criminal trial and he were trying to convince a jury of his
innocence. However, because this is a civil matter, Plaintiff must prove that Defendant Miller acted
without probable cause at the time of Plaintiff’s arrest and that he has not met his burden. The Court
agrees.
With respect to search warrants, the Fourth Amendment demands “[n]o Warrants shall issue,
but upon probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV. The Fourth
Amendment protects a person’s pretrial liberty interest “by ensuring that any arrest or physical
incarceration attendant to a criminal prosecutions is reasonable.” Becker v. Kroll, 494 F.3d 904, 919
(10th Cir. 2007). Probable cause requires “reasonably trustworthy information” as “to warrant a
prudent man in believing that the [arrestee has] committed or [is] committing an offense.” Beck v.
Ohio, 379 U.S. 89, 91 (1964). Probable cause, however, does not require “an actual showing of such
activity.” Illinois v. Gates, 462 U.S. 213, 245 (1983).

It is irrelevant to the determination of

probable cause whether a person is later acquitted of the crime for which he is arrested. Michigan
v. DeFillippino, 443 U.S. 31, 36 (1979).
A police officer may be entitled to qualified immunity if probable cause exists to effect a
search or arrest and absent a showing that a reasonable police officer in the same position would
have known that he had failed to establish probable cause. Malley v. Briggs, 475 U.S. 335 (1986).
The standard as articulated by Wood v. Strickland is whether a police officer “knew or reasonably
should have known that the action he took within his sphere of official responsibility would violate
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[the person’s] constitutional rights[.]”10 420 U.S. 308, 322 (1975). Thus, if an officer acts with
probable cause, he is protected by qualified immunity even if it is later discovered that the citizen
is innocent. Henry v. United States, 361 U.S. 98, 102 (1959).
The critical issue in this case is whether Defendant Miller had probable cause to obtain the
warrants. Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004). To make this probable cause
determination, the Court must inquire into what a “reasonable police officer” would have thought
based on the facts presented to him, and then decide whether a reasonable officer in the same
position would have reasonably believed probable cause existed. Accordingly, the Court must
consider the “totality of the circumstances” to determine whether a warrant is supported by probable
cause. Illinois, 462 U.S. 213.
Plaintiff maintains Defendants failed to properly investigate and corroborate the accusations
made by the three women before arresting Plaintiff. Plaintiff contends that there were several
inconsistences in the victims’ statements that should have alerted Defendants to Plaintiff’s
innocence. Plaintiff concludes the Police Officer Defendants’ failure to realize the inconsistencies
and, ultimately his innocence, results in a violation of his constitutional rights.

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A person’s Fourth Amendment rights are violated if in an arrest warrant affiant
“knowingly, or with reckless disregard for the truth,” includes false statements in the affidavit.
Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996) (quoting Franks v. Delaware, 438 U.S. 154,
155-56 (1978)). Plaintiff does not charge Defendant Miller with knowingly or recklessly including
false statements in the affidavits for the arrest or the search warrants. Furthermore, there is no
evidence, nor does Plaintiff allege that Defendant Miller included false statements in any of the arrest
or search and seizure affidavits.
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1. Plaintiff’s Prostate Surgery
Plaintiff begins by explaining that on April 21, 2006 he had undergone a radical retropubic
prostatectomy. According to an affidavit provided by Plaintiff’s doctor, “[a] man, after having said
procedure, is capable of having an erection” but “[i]t is impossible to an absolute degree of medical
certainty . . . to ejaculate semen[.]” Doc. 21–1, Affidavit of David R. Chavez, M.D. The only fluid
a man who has had this type prostate surgery “could potentially ejaculate during a dry orgasm would
be urine.” Id. Plaintiff relates to the Court that shortly after his prostate surgery, Defendant Miller
and Deputy Elder were sent out to conduct a welfare check on Plaintiff at his residence. Plaintiff
emphasizes that at that time he informed the officers that he recently had undergone the prostate
surgery. Plaintiff believes this information is important to the issue of probable cause because his
inability to ejaculate undermines each of the three alleged victims’ allegations of sexual assault.
During her interview at the Wyoming Behavioral Institute, D.S. told Deputy Elder that
Plaintiff had ejaculated a white fluid during the sexual encounters he had with her. D.J. had also told
Defendant Miller that Plaintiff had ejaculated semen in her mouth and that some of the semen fell
on her shirt, the bed sheet, or Plaintiff.11 Finally, T.S. had claimed Plaintiff ejaculated something
warm and salty with lumps into her mouth, which caused her to vomit all over his living room floor.

11

Plaintiff points out that his bed clothes were seized during the search warrant executed on
August 4, 2009. Cutouts from D.J.’s shirt, jeans, and bra were also taken and submitted to the
Wyoming Attorney General, Division of Criminal Investigation (DCI) for DNA testing. In March
2010, approximately six months after Plaintiff’s arrest, the DCI issued a report indicating the
presence of spermatozoa on the cutout of D.J.’s bra and excluded Plaintiff as a contributor. Doc. 31,
Exhibit No. 6, DCI Laboratory Examination Reports dated March 1, 2010 and March 4, 2010.
17

Doc. 1, at 16, ¶¶ 82-83. Plaintiff believes Defendant Miller should have known that the victims had
been untruthful since Plaintiff informed him of his prostate surgery during the welfare check.
Plaintiff infers that because of the welfare check, conducted sometime in the spring of 2006,
Defendant Miller had known, or should have known, that Plaintiff is unable to ejaculate semen.
According to this reasoning, the victims’ descriptions of his ejaculations of semen should have
caused Defendant Miller to be suspicious and investigate further into the claims. The Court is not
persuaded.
First, the welfare check on Plaintiff occurred over three years prior to the allegations brought
by D.S. Plaintiff does not suggest there was anything notable about the 2006 welfare check that
would suggest Defendant Miller should have remembered the encounter. Second, assuming
Defendant Miller did remember the 2006 welfare check on Plaintiff, there is no indication that
Plaintiff informed Defendant Miller at that time that his prostate surgery made it impossible to
ejaculate semen. As the Police Officer Defendants point out, Defendant Miller was not obliged to
fully investigate into Plaintiff’s sexual limitations, nor should he “be charged with the expertise of
surgeons.” Doc. 21 at 20. Police officers cannot be expected to know, nor is it common knowledge,
that a man who has undergone prostrate surgery or even a radical retropubic prostatectomy is unable
to ejaculate semen. This knowledge limitation is precisely why Plaintiff’s doctor was required to
provided the affidavit explaining that it is impossible for Plaintiff to ejaculate semen. Consequently,
there is no reasonably identifiable nexus between Plaintiff’s prostate surgery, making it impossible
for him to ejaculate semen, and Defendant Miller’s knowledge of Plaintiff’s sexual limitations.
18

“Once a police officer has a reasonable basis for believing there is probable cause, he is not required
to explore and eliminate every theoretically plausible claim of innocence before making an arrest.”
Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 128 (2nd Cir. 1997) (citing Baker v. McCollan,
443 U.S. 137, 145-46 (1979)).
The Court finds that regardless of Plaintiff’s prostate surgery, given the statements provided
by three separate victims, a reasonable police officer could believe probable cause existed to support
charging and arresting Plaintiff for the alleged sexual assaults. Besides, “[t]he concept of probable
cause [itself] leaves room for mistakes, provided always that they are mistakes that could have been
made by a reasonable officer.” Anderson v. Creighton, 483 U.S. 635 (1987).
2. Items Not Found in the Search of Plaintiff’s Property
Plaintiff next presents arguments against the validity of the search warrants. Plaintiff argues
that because certain items that would have corroborated D.S. and T.S.’s statements were not found
during the execution of the search warrants, Defendants should have known that the search warrants
were based on false information and should have been able to further deduce his innocence. For this
reason, Defendant believes probable cause was lacking.
D.S. told Deputy Elder that Plaintiff forced her to pose nude for him, watch pornographic
videos, and look at magazines depicting other nude children. Doc. 1, ¶ 27. Yet, during the execution
of the search warrant, although the police seized multiple cameras, cell phones, and video tapes, they
did not find any physical evidence that would support D.S.’s claims. See State of Wyoming v. Phillip
Barham, August 19, 2009 before Preliminary Hearing Audio Recording at approximately 27:30.
19

Additionally, T.S. had unequivocally indicated that Plaintiff had used a handgun during the sexual
assault on her. Despite her allegation, no gun or other firearm was found during the execution of any
of the searches of Plaintiff’s property. Doc. 1, ¶ 170. State of Wyoming v. Phillip Barham, August
19, 2009 before Preliminary Hearing Audio Recording at approximately 32:00.
The Court finds that because all of the items described by D.S. and T.S. were not found
during execution of the search warrant, this in and of itself, does not vitiate probable cause.
Warrants for search and seizure of property must be supported by probable cause. U.S. Const.
amend IV. Notwithstanding the need for probable cause, there is no requirement that every item
described in the warrant be found in order to establish probable cause. Just as the Supreme Court
held with regard to an arrest warrant:
if, on an objective basis, it is obvious that no reasonably competent officer would
have concluded that a warrant should issue; but if the officers of reasonable
competence could disagree on this issue, immunity should be recognized . . . Only
where the warrant application is so lacking in indicia of probable cause as to render
official belief in its existence unreasonable . . . will the shield of immunity be lost....
[The question] is whether a reasonably well-trained officer [] would have known
that his affidavit failed to establish probable cause and that he should not have
applied for the warrant.
Malley v. Briggs, 475 U.S. 335, 341, 344 (1985).
Thus, the issue is not whether the Police Officer Defendants were able to locate all of the
items listed in the search warrant, but whether probable cause existed to conduct each search.
Probable cause is dependant upon what the Police Officer Defendants knew or reasonably believed
at the time the searches were commenced. The Court has already found that in obtaining the

20

warrants Defendant Miller reasonably relied on the statements provided by the three victims. Thus,
based on these statements alone, probable cause was established at the commencement of the search.
Infra Alleged Victims’ Credibility at 22–23. Additionally, in reviewing Defendant Miller’s
testimony given at Plaintiff’s August 19, 2009 preliminary hearing, the Court is au courant that
further corroboration existed to back the alleged victims statements.12 State of Wyoming v. Phillip
Barham, August 19, 2009 before Preliminary Hearing Audio Recording at approximately 27:00 –
33:00.
3. Alleged Victims’ Credibility
Plaintiff also attempts to call into question the three victims’ credibility. Plaintiff reasons
certain false and inconsistent statements given by the three alleged victims would have caused a
reasonable person to question whether Plaintiff had actually committed the offenses for which he
was accused.
As to D.S., Plaintiff stresses that she received counseling, wherein she had identified eight
people who had allegedly sexually abused her. Doc. 1, ¶¶ 41–44. Yet, during these counseling
sessions, she never mentioned Plaintiff. Id., ¶¶ 45–46.

12

At Plaintiff’s August 19, 2009 preliminary hearing, Defendant Miller testified that during
the execution of the search warrant of Plaintiff’s residence, police officers confirmed that the video
and photos of D.J. found on Plaintiff’s phone were consistent with the cellar of Plaintiff’s house.
Id. at approximately 27:00. Moreover, D.J. voluntarily provided the clothing that she claimed
Plaintiff’s semen spilled on for DNA testing. Id. The officers also found bed sheets and a jar of
Vaseline as described by D.J. or T.S. Id. at approximately 31:30. The Court notes that Plaintiff’s
counsel specifically inquired at the hearing, and Defendant Miller admitted, that the brown couch
and handgun described by T.S. were not found in the search. Id.
21

Plaintiff further sets forth that he lost his lower left leg in an accident “at a youthful age” and,
as a result, wears a prosthetic limb. Id., ¶¶ 35–36. During D.S.’s initial interview with Deputy
Elder, when asked if she had ever seen Plaintiff’s legs, D.S. stated that she had and that Plaintiff had
hairy calves. Id., ¶ 37. During a later interview with D.S., on November 18, 2009, she was asked
if she had seen Plaintiff nude. Id., ¶ 38. D.S. answered that she had and described Plaintiff’s body
as being “wrinkled” with “lots of scars.” Id., ¶ 39. Yet, D.S. failed to mention a prosthetic limb.
Plaintiff insists the Police Officer Defendants were aware of his prosthetic limb during both
interviews. Id., ¶¶ 36, 40. Since a prosthetic limb is anomalous, Plaintiff believes the lack of its
mention during the interviews should have stood out to the Police Officer Defendants. Plaintiff
concludes that because D.S.’s descriptions of Plaintiff were wrong, this should have raised red flags
with the Police Officer Defendants, and from this they should have surmised Plaintiff’s innocence.
Plaintiff further insists D.J.’s credibility was “highly questionable” because of the time frame
she provided for being at his house. See Doc. 1, ¶¶ 122–137. Plaintiff explains that D.J. was at his
house for less than one hour, and alone with Plaintiff for less than half of that time. According to
evidence gathered by Plaintiff’s private investigator and attorney, most of D.J.’s time at his house
can be accounted for, leaving little to no time for the alleged sexual assault.13 During the time the
sexual assault allegedly occurred, a neighbor saw D.J. out in Plaintiff’s yard walking around or
standing on the curb while Plaintiff was driving his tractor down the alley in the opposite direction.14
13

14

The Court notes this evidence was gather after Plaintiff’s arrest.
Again this is evidence gathered after Plaintiff’s arrest.
22

Id., ¶¶ 130–132. Additionally, cell phone records establish that D.J. spent approximately fourteen
(14) minutes on her cell phone, at which time she sent two semi-nude photographs of herself to
Plaintiff. Id., ¶¶ 126–129. Based on this information, Plaintiff concludes there was no time for the
sexual assault to occur.
As to T.S.’s statements, Plaintiff simply alleges the police “failed to make an adequate and
complete investigation of the unsubstantiated and un-corroborated accusations of T.S., all of which
were false as to any alleged criminal act committed by Plaintiff.” Doc. 1, ¶ 89.
The Court finds Plaintiff’s reasoning to be flawed. To begin with, Plaintiff has not cited a
single case, nor is the Court aware of one, holding that a police officer cannot rely on the statements
of alleged victims obtained during personal interviews to establish probable cause. To the contrary,
the Tenth Circuit has held that the uncorroborated statements of a victim are sufficient to establish
probable cause. Munday v. Johnson, 257 Fed.Appx. 126, 131 (10th Cir. 2007). See also Easton v.
City of Boulder, 776 F.2d 1441, 1449-50 (10th Cir. 1985) (holding statements of an alleged victim
or witness, even a minor child, can be sufficient to establish probable cause to support the issuance
of a warrant); Guzell v. Hiller, 223 F.3d 518, 519-20 (7th Cir. 2000) (“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.”).
The Court finds the alleged victims’ descriptions of Plaintiff’s residence and property, both
inside and out, were corroborated by Defendant Miller and other police officer’s investigations of
the claims against Plaintiff. During the execution of the search warrants, the police officers
23

determined that the descriptions were substantially accurate. State of Wyoming v. Phillip Barham,
August 19, 2009 before Preliminary Hearing Audio Recording at 42:20. Moreover, the affidavits
include sufficient and specific facts that demonstrated a substantial probability that Plaintiff sexually
assaulted the women. There are additional indications that would have led a reasonable police
officer to believe he had probable cause at the time the warrants were swore out, including the video
and photos of D.J. found on one of Plaintiff’s cell phones and Defendant Miller’s personal
observation of the bruises on D.J. that were consistent with her statements. At Plaintiff’s preliminary
hearing, after listening to the testimony of Defendant Miller regarding the statements of the victims
and the returns on the search warrants, the circuit court judge also found probable cause existed and
bound Plaintiff over to the district court. Id. at 42:20. This independent determination by a neutral
and detached judge further substantiates the probable cause determination. Illinois v. Gates, 462
U.S. at 236 (“A search warrant comports with the Fourth Amendment if it was issued by a
“magistrate [who] had a ‘substantial basis for ... conclud[ing]’ that a search would uncover evidence
of wrongdoing . . .”) (citation omitted).
To that end, based on statements provided by three independent women, Police Officer
Defendants reasonably believed they had probable cause to arrest Plaintiff and search his property.
Accordingly, the Court finds, even viewing the evidence in the light most favorable to Plaintiff, he
has failed to present specific facts creating a genuine issue as the whether the Police Officer
Defendants’ reliance of the three victims states and belief in the truth of these were not reasonable
to establish probable cause.
24

4. Interview with Winstead
Plaintiff also advances that Defendant Miller interviewed D.S.’s great uncle, Winstead, at
the Wyoming State Penitentiary on August 12, 2009. Doc. 1 at 10, ¶¶ 47 - 48. During the interview,
Winstead allegedly told Defendant Miller that although he had taken D.S. to Plaintiff’s house to pick
tomatoes from Plaintiff’s garden, he never introduced D.S. to Plaintiff. Id. Later, on November 3,
2009, Plaintiff’s private investigator again interviewed Winstead. During this interview, Winstead
stated “[h]e never told the minor that it was alright to have sexual intercourse with [Plaintiff, nor]
did he ever observe [Plaintiff] having sexual intercourse with a minor.” Doc. 1, at 11, ¶ 50. Plaintiff
argues that this information was available to Defendant Miller and provided reasonable doubt as to
Plaintiff’s guilt.
The Court finds that at the time of Plaintiff’s arrest, there is no indication that the Defendant
Police Officers acted without probable cause. Although Winstead’s statements may provide
reasonable doubt as to Plaintiff’s guilt, it does not vitiate probable cause. Moreover, Winstead’s
interviews did not occur until after Plaintiff’s arrest. In Baker v. McCollan, 443 U.S. 137, (1979),
the Court held that a sheriff who held a prisoner in custody pursuant to a valid arrest warrant was
under no duty to investigate the prisoner’s claim of innocence. See also Ricciuti v. N.Y.C. Transit
Authority, 124 F.3d 123 (2nd Cir. 1997) (noting that once an officer has a reasonable basis for
believing there is probable cause, he is not required to explore and eliminate every theoretically
plausible claim of innocence). Consequently, once the Police Officer Defendants had sufficient facts
to establish probable cause, there was no obligation to conduct further investigation to find
25

potentially exculpatory evidence. See e.g. Romero v. Fay, 45 F.3d 1472, 1476-78 (10th Cir. 1995)
(officer entitled to qualified immunity even though he did not investigate alibi because no evidence
of deliberate or reckless intent). Therefore, the Court finds Defendant Miller’s post-arrest interview
with Winstead does not affect the Court’s determination of qualified immunity.
5. The Court’s Findings on Plaintiff’s Fourth Amendment Claims
Remaining mindful that the fundamental issue here is what Defendant Miller and the other
Greybull police officers knew at the time they arrested Plaintiff, the Court finds Defendant Miller’s
affidavits establish probable cause to believe that Plaintiff committed sexual assaults against the
three separate victims. Here, the inconsistencies cited by Plaintiff do not undermine the statements
of three separate alleged victims. “In dealing with probable cause, . . . as the very name implies, we
deal with probabilities. These are not technical; they are the factual and practical considerations of
every day life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United
States, 338 U.S. 160, 175 (1949).
The exculpatory facts cited by Plaintiff may provide reasonable doubt as to Plaintiff’s guilt,
but they do not vitiate probable cause for the warrants at the time of his arrest. Proof beyond a
reasonable doubt is required for a conviction but, as is the case here, only the lesser standard of
probable cause is required for an arrest. In Illinois v. Gates, the Supreme Court explained:
As early as Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364 (1813), Chief
Justice Marshall observed, in a closely related context: ‘[T]he term “probable cause,”
according to its usual acceptation, means less than evidence which would justify
condemnation . . . It imports a seizure made under circumstances which warrant
suspicion.’ ‘[T]he quanta ... of proof’ appropriate in ordinary judicial proceedings
26

are inapplicable to the decision to issue a warrant [meaning] [f]inely tuned standards
such as proof beyond a reasonable doubt or by a preponderance of the evidence,
useful in formal trials, have no place in the [probable-cause] decision.”
Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting Illinois v. Gates, 462 U.S. 213, 235 (1983))
(internal citations omitted). This is because twenty-twenty hindsight giving rise to evidence of
Plaintiff’s innocence does not also give rise to a § 1983 action.15
Assuming, arguendo, that Plaintiff was arrested without probable cause, Defendants may be
entitled to qualified immunity if their conduct “‘[did] not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Person v. Callahan, 129 S.
Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982)). The Court finds the
Officer Defendants are entitled to qualified immunity because reasonable officers in their position
could have believed that the victims’ statements established probable cause. Meaning, if Defendant
Miller was mistaken in his belief that probable cause had been established, the mistake was
reasonable.
For the reasons set forth above, the Court finds Plaintiff has not met his burden showing
Police Officers Defendants violated his constitutional rights. Accordingly, the Police Officer
Defendants are entitled to qualified immunity with regard to Plaintiff’s Fourth Amendment claims
15

Plaintiff makes an argument that because the Wyoming Attorney General’s Division of
Criminal Investigation determined that the spermatozoa found on D.J.’s bra did not be did not match
Plaintiff’s DNA, probable cause could not have been established. Doc 30-1, Exhibit No. 6. These
laboratory results are dated March 1, 2010 and March 4, 2010. The District Court Judge released
Plaintiff five days afterwards and dismissed any remaining charges against Plaintiff, presumably
because of the test results. However, this fact in no way alters what was known at the time of the
warrant, which evidenced probable cause. Thus, it does not affect the Court’s determination here.
27

for unlawful arrest, unlawful detention, and unlawful search and seizure.
(c)

CONVERSION OF PLAINTIFF’S PROPERTY

Plaintiff’s claim for unlawful search and seizure also include allegations that Police Officer
Defendants have failed to return all of his property. In executing the search warrants on Plaintiff’s
property, the police officers seized numerous articles of Plaintiff’s personal property. Doc. 1, ¶¶
159–169.16 When Plaintiff was released, Police Officer Defendants returned the seized property and
indicated it was all of the property they had seized. Id., ¶ 171. Plaintiff asserts he later discovered
that Defendants failed to return all of his property. Id., ¶ 173. Plaintiff’s attorney has written letters
to the Greybull Police Department seeking the return of Plaintiff’s property, to no apparent avail.
Doc. 21–12, Exhibit L, at pp. 6–9. Additionally, the state district court entered an order to show
cause as to why Police Officer Defendants “should not be held in contempt of this court for [their]
failure to comply with the Court’s Order entered March 9, 2010, ordering that any property seized
from the defendant during the investigation of this matter be returned[.]” Id., at 10. Plaintiff insists
that Defendants are unable to return his personal property because it was not properly marked or
identified. Id., ¶¶ 160, 165, and 172.
As far as the Court is able to determine, this is a claim for conversion and damage to personal
property, which falls under state law. Under Wyoming state law, “‘[c]onversion occurs when a
person treats another’s property as his own denying the true owner the benefits and rights of

16

The Police Officers also allegedly destroyed a Barbie doll belonging to Plaintiff’s daughter.
Id., ¶ 158.
28

ownership.’” Alcaraz v. State, 44 P.3d 68, 71 (Wyo. 2002) (quoting Cross v. Berg Lumber Company,
7 P.3d 922, 929 (Wyo. 2000)). Pursuant to 28 U.S.C. § 1367, the Court declines to exercise
supplemental jurisdiction over this claim since “the claim substantially predominates over the claim
. . . over which the [] court has original jurisdiction.” 28.U.S.C. § 1367(c). The Court finds this
issue is better adjudicated by the state court since that court is fully advised of the issue and has
already issued an order to show cause. Therefore, any claim for conversion is dismissed, without
prejudice.17
(d)

PUBLIC EMBARRASSMENT, RIDICULE, & LOSS OF ENJOYMENT OF
LIFE

Plaintiff also alleges Defendants violated his civil rights by destroying his reputation.
Plaintiff explains that because of the charges filed against him, he “has been branded as a child
molester, a rapist, and a sexual pedophile” and that he has received threats, including death threats,
to such a degree that he has been forced to relocate from Greybull, Wyoming. Doc. 1, ¶¶ 198, 201
Plaintiff further explains that, for his own safety, he was forced to spend most of his 224 days of
incarceration in solitary confinement. Id., ¶ 199. Further, while incarcerated, Plaintiff became
delinquent in his financial obligations. Since his release, he has been forced to sell real estate and
mortgage his house in order to pay his legal fees and other bills. Id., ¶¶ 202-204. Plaintiff’s
vegetable garden, a source of “great pride,” has been left to ruin. Id., ¶¶ 205-208. Because of the
17

During the May 11, 2011 hearing, Plaintiff’s counsel stated that the claim of conversion
was included in his Complaint simply to support and illustrate his allegations that Defendant Police
Officers were incompetent, in support of his Fourth Amendment claims, in as much as they could
not even keep track of the evidence gathered under the search warrants.
29

stigma associated with the charges, Plaintiff has lost the esteem of friends and colleagues, his fiancé
left him, and his three dogs have disappeared. Id., ¶¶ 209-215.
The Court finds Defendants’ are not liable for Plaintiff’s unfortunate losses. A finding of an
underlying constitutional violation is necessary before a plaintiff can recover damages for public
embarrassment, ridicule, or loss of enjoyment of life. This is because actual injuries must be shown.
See generally Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986); Farrar v. Hobby,
506 U.S. 103 (1992); Jolivet v. Deland, 966 F.2d 573 (10th Cir. 1992); Jensen v. Redevelopment
Agency of Sandy City, 998 F.2d 1550, 1558 (10th Cir. 1993) (“Damage to one’s reputation alone .
. . is not enough to implicate due process protections.”). Because the Court has found that the Police
Officer Defendants are entitled to qualified immunity, based on a showing of probable cause, there
is no underlying constitutional violation upon which Plaintiff can support his claim for public
embarrassment, ridicule, or loss of enjoyment of life. Consequently, there is no genuine issue of
material fact and as a matter of law, Defendants are entitled to judgment in their favor under Count
IV of Plaintiff’s Complaint.
(e)

PLAINTIFF’S CLAIM FOR EXCESSIVE FORCE18

Plaintiff claims that the Police Officer Defendants used excessive force on him at the time
of his arrest, in violation of his § 1983 civil rights. During his arrest, Defendant Mayland handcuffed
Plaintiff’s hands behind his back. Doc. 1, ¶ 186. Very shortly thereafter, Defendant Miller “re18

Defendant Miller has not moved for summary judgment on Plaintiff’s claim for excessive
force. Nonetheless, a police officer accused of using excessive force may be entitled to qualified
immunity if his conduct was objectively reasonable. Graham v. Connor, 490 U.S. 1865 (1989).
30

cuffed [his] hands behind his back and forcefully jerked [his] cuffed hands and arms upward with
such force that Plaintiff immediately experienced severe pain in his left shoulder.” Id. Defendant
Miller also shackled Plaintiff’s ankles, using enough force that Plaintiff’s left leg prosthesis came
off. Id., ¶ 187. Plaintiff states that because of this incident, he has continually experienced severe
pain in his left shoulder. Id., ¶¶ 188–191. Upon his release from the Big Horn County Detention
Center, Plaintiff was diagnosed as having a “full-thickness rotator cuff tear” in his shoulder that will
require surgery to repair. Id., ¶¶ 189–190.
Individuals have a right under the Fourth Amendment to be free from excessive force when
police make an arrest or seizure. See Graham v. Connor, 490 U.S. 386, 394-95 (1989). However,
as pointed out by the Police Officer Defendants, Plaintiff has not alleged that Defendant Brenner or
Defendant Mayland used excessive force against him during his arrest or facilitated the use of
excessive force against him. Viewed in a light most favorable to Plaintiff, there is no evidence that
either Defendant Brenner or Defendant Mayland touched Plaintiff beyond Defendant Mayland
initially handcuffing him, or that either were present at the time Plaintiff was injured. Accordingly,
the Court finds there is no genuine issue of material fact. Consequently, there is no viable excessive
force claim against Defendant Brenner or Defendant Mayland. Nonetheless, Plaintiff’s claim for
excessive force against Defendant Miller shall remain, as it is not part of Police Officer Defendants’
motion.

31

(f)

LIABILITY OF DEFENDANTS TOWN OF GREYBULL, WYOMING and
GREYBULL POLICE DEPARTMENT

The Court next turns to Plaintiff’s claims against the Town of Greybull, Wyoming and the
Greybull Police Department. Only one paragraph of the Complaint is directed at these Defendants:
“The Town, the Police, and Brenner as Chief of Police, failed to provide adequate supervision,
training, discipline over the law enforcement officers under their command which resulted in the
violation of Plaintiff’s civil rights.” Doc. 1, ¶ 147.
Plaintiff fails to allege any facts supporting his claim of inadequate supervision, training, or
discipline over Defendant Police Officers. To survive a motion to dismiss a plaintiff must allege
enough facts to state a claim to relief that is plausible on its fact. See Bell Atlantic Corp. V. Twombly,
550 U.S. 544, 570 (2007) (at motion to dismiss stage complaint need not provide detailed factual
allegations, however plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and formulaic recitation of the elements of a cause of action will
not do). As set forth in Monell v. Dep’t of Soc. Servs. of City of New York, the Court held “that a
municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a
municipality cannot be held liable under § 1983 on a respondeat superior theory.” 436 U.S. 658,
691 (1978) (emphasis in original). As a consequence, a plaintiff seeking to impose liability against
a government entity under § 1983 must show that a policy or custom caused the plaintiff’s injury.
See Bd. of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (1997). Because
Plaintiff did not allege that a policy or custom caused his injury, the Court is not able to find a

32

genuine issue of material fact exists.
Regardless, because there is no underlying violation, the Court finds these Defendants are
not liable for any of Plaintiff’s claims. The Tenth Circuit has specifically held that a county cannot
be held liable for constitutional violations if there is no underlying constitutional violation by any
of its officers. Martinez v. Beggs, 563 F.3d 1082, 1091 (10th Cir. 2009) (quoting Olsen v. Layton
Hills Mall, 312 F.3d 1304, 1317-18 (10th Cir. 2002)). In Martinez, the plaintiff, suing on behalf of
her father’s estate, brought 42 U.S.C. § 1983 claims against the Board of County Commissioners of
Cleveland County Oklahoma, certain police officers, and the county sheriff after her father died in
the county jail a few hours after his arrest for public intoxication. Id. at 1084. The plaintiff argued
her father died because of the defendants’ deliberate indifference to his medical needs. Id. The
district court granted summary judgment on behalf of the defendants on qualified immunity grounds,
which was upheld by the Tenth Circuit. Id. As for the claims against the sheriff and the county, the
Tenth Circuit specifically held that since it “concluded the individual [officers] did not violate
Ginns’ constitutional rights, [the sheriff] and the county cannot be held liable in this matter.” Id. at
1092.
The Court finds that the Martinez holding is material to Plaintiff’s claims against the Town
of Greybull, Wyoming and the Greybull Police Department in this case. Because the Court finds the
Police Officer Defendants had probable cause to arrest Plaintiff and search his property, therefore
Plaintiff’s constitutional rights were not violated. It follows that the Town of Greybull, Wyoming
or the Greybull Police Department cannot be held liable where a constitutional violation was not
33

committed. Moreover, Plaintiff fails to point to any policy or custom espoused by either of these
Defendants that was violative of his rights. Therefore, because Plaintiff has created no genuine issue
of material fact as to the these Defendants’ policies, practices, or customs, the Court finds that
summary judgment is appropriate.
(g)

PUNITIVE DAMAGES

Plaintiff finally seeks an award of punitive damages. Doc. 1, ¶¶ 218–220. Pursuant to
Wyoming state law, “[p]unitive damages are not intended to compensate the plaintiff; instead,
punitive damages are awarded to punish the defendant and deter others from such conduct in the
future.” Alexander v. Meduna, 47 P.3d 206, 217 (Wyo. 2002). A claims for punitive damages is
an element of a cause of action, not a separate cause of action. Errington v. Zolessi, 9 P.3d 966, 969
(Wyo. 2000). Therefore, a claim for punitive damages in this case cannot stand without an
underlying constitutional violation.
The Court finds that based on Wyoming’s public policy of awarding punitive damages, and
because the Court finds there to be no underlying constitutional violations for which ta genuine issue
of material fact exists, it appropriate to dismiss Plaintiff’s claim for punitive damages against
Defendants Town of Greybull, Wyoming, the Greybull Police Department, Police Chief Bill
Brenner, and Officer Ben Mayland, as there is no sufficient bases to warrant an award of such.
Accord Cook v. Shoshone First Bank, 126 P.3d 886, 897 (Wyo. 2006) (holding “[s]ummary
judgment on the underlying claims effectively disposed of the punitive damages claim and no further
discussion is necessary.”).
34

Because Plaintiff’s claim of excessive force against Defendant Miller remains, the Court is
unable to find that Plaintiff is not entitled to punitive damages on that claim. Since an issue of
material fact exists as to whether Defendant Miller’s conduct rises to the level to support punitive
damages, the Court finds summary judgment for Defendant Miller is not appropriate.
IV.

CONCLUSION

With the exception noted below, the Court concludes that Plaintiff has not met his burden
to establish Defendant Police Officers violated his constitutional rights. Consequently, there are no
genuine issues of material fact and Defendants are entitled, based upon qualified immunity, to
judgment on Plaintiff’s claims for: (1) unlawful arrest and unlawful detention in violation of his civil
rights, pursuant to 42 U.S.C. § 1983; (2) unlawful search and seizure; (3) excessive force causing
physical injury during arrest against Defendants Brenner and Mayland; and (4) public
embarrassment, ridicule, and loss of enjoyment of life. The Court also concludes it is appropriate
to dismiss Plaintiff’s claim for punitive damages against Defendants Town of Greybull, Wyoming,
the Greybull Police Department, Police Chief Bill Brenner, and Officer Ben Mayland. Having
disposed of Defendants’ motions for summary judgment, only Plaintiff’s claim for excessive force,
including his claim for punitive damages, against Defendant Miller remains for trial. Counsel shall
request a scheduling conference to place this matter back on the trial calendar.
NOW, THEREFORE, IT IS ORDERED that Peace Officer Defendants’ Motion for Judgment
on the Pleadings be, and the same is hereby GRANTED as set forth herein. It is
FURTHER ORDERED that Motion for Judgment on the Pleadings Pursuant to Rule 12(c),
35

Fed.R.Civ.P. by Defendants Town of Greybull, Wyoming and Greybull Police Department be, and
the same is hereby GRANTED as set forth herein.
Dated this 11th

day of July, 2011.

Scott W. Skavdahl
UNITED STATES MAGISTRATE JUDGE

36