United States District Court, D. Arizona
MEMORANDUM OF DECISION AND ORDER
STEPHEN M. McNAMEE, District Judge.
Pending before the Court is Defendants John Collins, Steve Garcia, Jack Harris, James Holmes, Jeff Kornegay, Lana Laker and the City of Phoenix's (collectively, unless otherwise specified "City Defendants") motion for summary judgment and accompanying statement of facts, which is fully briefed. (Docs. 148-49, 158-60, 174-75.) Also pending is Defendants Assistant Attorney General Ted Campagnolo and the State of Arizona's (collectively, unless otherwise specified "Campagnolo") motion for summary judgment and accompanying statement of facts, which is also fully briefed. (Docs. 151-52, 161-63, 173.) Finally pending is Plaintiffs' Mario De La Fuente Manriquez and Cecelia De La Fuente (collectively, unless otherwise specified "Manriquez") fully briefed motion for partial summary judgment and their accompanying statement of facts. (Docs. 154-55, 164-72.)
After considering the parties' extensive briefing and having determined that oral argument is unnecessary,  the Court will grant in part and deny in part the City Defendants' motion for summary judgment. The Court will grant Campagnolo's motion for summary judgment and deny Manriquez's motion for partial summary judgment.
The Court will provide a brief factual overview of this case and discuss the relevant facts more fully as they are necessary and pertinent to the issues presented by each parties' motion for summary judgment.
On February 2, 2008, Phoenix Police Detectives Jeff Kornegay and Karen Hughes conducted a routine liquor inspection at the Scorch Bar in North Phoenix. (Doc. 149-1 at 10.) After learning that a bar employee purchased liquor from an unauthorized vendor in violation of state law, the detectives conducted a more thorough inspection. (Doc. 149-1 at 10-11.) Detectives learned that persons other than the liquor license holder, Katie Peters, owned an interest in the bar. (Doc. 149-1 at 10-11.) Detective Kornegay found documents that listed a Nazreth Derboghossian as the owner. (Doc. 149-1 at 10-11.) Further investigation into bank and other records revealed that Manriquez, over several years funded the establishment through the control of Derboghossian. (Doc. 149-1 at 11; Doc. 54 at 5.)
On November 23, 2009 and again on November 30, 2009, Assistant Attorney General Campagnolo presented evidence to the state grand jury. (Doc. 155-2 at 16-17.) Detective Kornegay was the sole witness to testify before the grand jury. (Doc. 155-2 at 16-17.) On November 30, 2010, the grand jury indicted Nazreth Derboghossian, Manriquez and his son, Jodi Upton, Katey Peters, Douglas Allen, Ara Derboghossian, and Nadia Zulema Lopez de Morales. (Doc. 155-1 at 60-124.) The indictment covered various felony offenses including conspiracy, fraudulent schemes, participation in a criminal syndicate, illegal control of an enterprise, and money laundering. (Doc. 54 at 8-9; Doc. 155-1 at 60-124.)
After securing the indictment, Phoenix Police Detectives Garcia and Borquez, presented a sworn affidavit to the Maricopa County Superior Court seeking authority to arrest suspects, as well as search and seize evidence from six persons, nine locations and thirty-three vehicles. (Doc. 149-1 at 4, 61-68.). After judicial review, the Maricopa County Superior Court found probable cause and authorized the arrest and search warrants. (Doc. 149-1 at 74.) The Phoenix Police Department lacked sufficient manpower to execute the warrants in the various Phoenix, Tucson, and Nogales locations; therefore, it asked the Arizona Department of Public Safety and the Pima County Sheriff's Office to assist them. (Doc. 149-2 at 2-7.) Manriquez was arrested at his home in Tucson on January 20, 2010. (Doc. 54 at 11.)
During the pretrial phase of the criminal proceedings, Manriquez filed a motion to remand or in the alternative to dismiss the grand jury indictment on the ground that the State's grand jury presentation denied him his due process rights. (Doc. 54 at 8.) That motion was granted on November 8, 2010, and the State did not appeal. (Id.) Ultimately, the State did not seek reindictment of Manriquez due to the death of a critical witness.
Manriquez filed his original complaint in this action on September 20, 2011, in Maricopa County Superior Court. (Doc. 1-2, at 4.) Defendants removed the case to this Court on October 11, 2011. (Doc. 1.) Manriquez filed his first amended complaint on December 16, 2011. (Doc. 25.) On April 12, 2012, Manriquez filed his second amended complaint against the City of Phoenix, Kornegay (a City detective), Harris (the City's chief of police), Collins (a City police lieutenant), Holmes (a City police department media relations employee), Garcia (a City detective), Laker (a City police department media relations employee), the State of Arizona, and Campagnolo (a State Assistant Attorney General). (Doc. 54.) These Defendants are unchanged from the original and first amended complaints, with the exception of Laker, who is named for the first time in the second amended complaint. (See Docs. 1-2, 25.) The second amended complaint alleges both federal civil rights and state tort law violations. Manriquez's federal civil rights claims were (1) malicious prosecution, (2) false arrest, (3) defamation relating to a press conference, (4) defamation relating to a website posting, (5) excessive force, and (6) destruction of property. Doc. 54, at 18-26. Manriquez's state tort claims included (7) malicious prosecution, (8) defamation relating to a website posting, (9) false light invasion of privacy, (10) negligence, (11) intentional infliction of emotional distress, (12) a federal civil rights claim of defamation relating to a YouTube video entitled "The Last 24, " wherein Laker describes the City Defendants' investigation of Manriquez, and (13) a state tort claim of defamation relating to "The Last 24" video. (Doc. 54 at 26-36.)
Previously, this Court dismissed Count 2 (Doc. 110), Count 7 as to Defendants Collins, Holmes and Garcia (Doc. 18), Count 8 (Doc. 18), Count 9 (Doc. 18), Count 10 (Doc. 18), Count 11 (Doc. 148), and Counts 12 and 13 as to Defendants Kornegay, Collins, Holmes, Garcia, the State of Arizona, and Campagnolo (Doc. 89).
STANDARD OF REVIEW
A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986); Jesinger v. Nevada Fed. Credit Union , 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines which facts are material. See Anderson v. Liberty Lobby , 477 U.S. 242, 248 (1986); see also Jesinger , 24 F.3d at 1130. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson , 477 U.S. at 248. The dispute must also be genuine, that is, the evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Id .; see Jesinger , 24 F.3d at 1130.
A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex , 477 U.S. at 323-24. Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id . at 322; see also Citadel Holding Corp. v. Roven , 26 F.3d 960, 964 (9th Cir. 1994). The moving party need not disprove matters on which the opponent has the burden of proof at trial. See Celotex , 477 U.S. at 323-24. The party opposing summary judgment need not produce evidence "in a form that would be admissible at trial in order to avoid summary judgment." Id . at 324. However, the nonmovant may not rest upon the mere allegations or denials of the party's pleadings, but must set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 585-88 (1986); Brinson v. Linda Rose Joint Venture , 53 F.3d 1044, 1049 (9th Cir. 1995).
I. Malicious Prosecution
In Counts 1 and 7, Manriquez moves for partial summary judgment for his malicious prosecution claims against Prosecutor Campagnolo and the City of Phoenix, Phoenix Chief of Police Harris and Detective Kornegay ("City Defendants") arguing that these Defendants lacked probable cause to pursue a grand jury indictment that resulted in his unconstitutional arrest. (Doc. 154 at 6-17.)
In Campagnolo's response and in his cross-motion for summary judgment, he contends that he is absolutely immune due to his prosecutorial duties that culminated in his decision that probable cause existed for charging Manriquez before the grand jury. (Doc. 164; Doc. 151.) In the City Defendants' response and in their cross-motion for summary judgment, they likewise contend that they are entitled to immunity for the police report they prepared and submitted because it is presumed that Prosecutor Campagnolo exercised independent judgment in his subsequent determination that probable cause existed for pursuing an indictment of Manriquez before the grand jury. (Doc. 166; Doc. 148.)
The issue of whether any immunity prevents liability against either Campagnolo or the City Defendants at this stage of the litigation is centrally important and will be resolved here as a threshold issue.
A. Prosecutor's Absolute Immunity
Campagnolo contends that he is entitled to absolute immunity because his overall actions in this case were intimately associated with the judicial phase of the criminal process. (Doc. 151 at 10-14.) According to Campagnolo, he only functioned in his official capacity as a prosecutor in evaluating the evidence in the case and making the determination that probable cause existed to bring the matter before the grand jury for a criminal indictment naming Manriquez, among others. (Id.)
Factually, Campagnolo stated that initially he met with Detective Kornegay to approve and/or issue grand jury subpoenas. (Doc. 152-1 at 16, 51.) Campagnolo was the prosecutor that Kornegay presented the case to and from which Kornegay obtained grand jury investigative subpoenas. ( Id. at 18.) Campagnolo testified that he did not advise Kornegay regarding any investigative tasks. ( Id. at 76, see also 152-1 at 18, 52, 56.) Campagnolo himself testified that he did not perform any investigation. ( Id. at 52, 55.) Kornegay explained his theory of Manriquez's culpability to Campagnolo. ( Id. at 19-22, 31-32, 37-39, 53, 62-63.) Based upon the evidence provided to him by the police, Campagnolo decided that there was both probable cause to believe Manriquez committed the offenses alleged and a reasonable likelihood of conviction. ( Id. at 53, 62, 76.) Campagnolo's decision to pursue an indictment was approved by the Arizona Attorney General and Chief Counsel of the Criminal Division. ( Id. at 56.) On November 23 and 30, 2009, Campagnolo presented evidence to a grand jury, during which Detective Kornegay was the only witness to testify. (Doc. 54 at 6.) The grand jury indicted Manriquez. ( Id. at 8.) Following indictment, Campagnolo provided no input into the applications for search warrants and the supporting affidavits, prior to judicial approval. (Doc. 152-1 at 27, 54, 72.)
Manriquez contends that Campagnolo is not entitled to absolute immunity. (Doc. 161 at 3-9.) Based on Campagnolo's longstanding involvement in the investigation, which began as early as February 2008, Manriquez argues that Kornegay and Campagnolo worked hand-in-hand resulting in a joint investigation that tainted Campagnolo's independent judgment that probable cause existed to seek an indictment. ( Id., citing Harper v. City of Los Angeles , 533 F.3d 1010, 1027-28 (9th Cir. 2008.) In support, Manriquez cites pre-indictment and post-indictment facts showing the amount of cooperation between the Attorney General's office and the City Defendants. (Doc. 162-1 at 5-13, 36, 39-47, 49-52, 54-56.)
In Imbler v. Pachtman , 424 U.S. 409, 423-24 (1976), the Supreme Court established absolute immunity for the liability of prosecutors under 42 U.S.C. § 1983 who are engaged in activities intimately associated with the judicial phase of the criminal process. The principle of absolute immunity established in Imbler was based on the need to ensure sound decisionmaking by the prosecutor by protecting from fear of retaliatory suits due to vigorous law enforcement. Id . at 438 (stating that the judicial process would suffer from a rule permitting malicious prosecution suits against prosecutors because if suits for malicious prosecution were permitted, the prosecutor's incentive would always be not to bring charges). When determining whether a prosecutor is absolutely immune from suit for his conduct, the nature of the function performed is the standard for the analysis. See Kalina v. Fletcher , 522 U.S. 118, 127 (1997) (noting that prosecutorial immunity depends on "the nature of the function performed, not the identity of the actor who performed it"). The protections of absolute immunity extend only to advocative, prosecutorial functions, not to actions better described as administrative or investigative. See Botello v. Gammick , 413 F.3d 971, 976 (9th Cir. 2005) (citing Buckley v. Fitzsimmons , 509 U.S. 259, 273 (1993).
It is well-established that certain prosecutorial functions, such as the decision to initiate a prosecution or appear in court to present evidence in support of a search warrant application, are intimately associated with the judicial phase of the criminal process and thus entitled to absolute immunity. See Van de Kamp, 555 U.S. at 343-44. Further, absolute immunity attaches to "the types of activities... which... necessarily require legal knowledge and the exercise of related discretion." Id . at 344. Where a prosecutor is not acting as "an officer of the court, ' but is instead engag[ing] in other... investigative or administrative tasks, " he has no absolute immunity. Id . at 342 (quoting Imbler , 424 U.S. at 431).
Absolute immunity for prosecutorial functions also exists for claims brought pursuant to Arizona law. See, e.g., State v. Superior Court , 186 Ariz. 294, 297, 921 P.2d 697, 700 (App. 1996); Mulligan v. ...