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Wolf v. Vista

United States District Court, D. Arizona

June 25, 2014

Jerold Wolf, Plaintiff,
Sierra Vista, et al., Defendants.


JENNIFER G. ZIPPS, District Judge.

Pending before the Court is a Motion for Summary Judgment filed by Defendants City of Sierra Vista, Sierra Vista City Manager Charles P. Potucek and Sierra Vista Chief of Police Ken Kimmel ("Defendants") on January 31, 2014.[1] (Doc. 19.) Plaintiff Jerold Wolf ("Wolf") filed a response to the Motion on March 17, 2013. (Doc. 23.) Defendants filed a reply on April 4, 2014. (Doc. 25.) Defendants seek summary judgment on Plaintiff's claims of libel, slander, false light, defamation, arbitrary demotion in violation of Arizona law, unreasonable discipline in violation of A.R.S. § 38-1104 and violation of due process under Arizona and federal law. For the reasons stated herein, the Court will grant the Motion in part and remand this case to the Cochise County Superior Court.[2]


Plaintiff worked as an officer with the City of Sierra Vista Police Department ("SVPD") for 15 years. (DSOF 1; PSOF 1.)[3] On July 5, 2010, Plaintiff was promoted to Corporal on a six-month probationary basis. (DSOF 2-3; PSOF 2-3.)

In October 2010, Plaintiff received an unfavorable performance evaluation.[4] (Doc. 20-2, pgs. 2-16.) On October 28, 2010, Chief Kimmel wrote a "Memorandum of Record" to Plaintiff stating that the evaluation was unacceptable and that if Plaintiff did not immediately improve, Chief Kimmel would recommend that his probationary period be extended. (Doc. 20-2, pg. 2.)

On January 2, 2011, Plaintiff received another evaluation of his performance following the October 2010 assessment. (DSOF 8; PSOF 8; Doc. 20-2, pgs. 18-32.) The evaluation stated that Plaintiff was not performing to expectation. ( Id. ) Plaintiff refused to sign the evaluation and wrote in the "employee comments" section of the evaluation that the evaluation did not reflect his performance. (Doc. 20-1, pg. 9; Doc. 20-2, pg. 18.) On January 10, 2011, Plaintiff's probationary status was extended for an additional six months. (DSOF 15; PSOF 15.)

On September 26, 2011, Donna Hilton of the City of Sierra Vista Human Resources Department sent a letter to Plaintiff informing him that Chief Kimmel had recommended that Plaintiff be demoted from Corporal to his former position as a police officer. (Doc. 20-2, pg. 39.) The letter advised Plaintiff that he would have an opportunity to address the grounds for the demotion at an internal administrative hearing on October 6, 2011. ( Id. ) On that date, Plaintiff attended a hearing with City Manager Potucek. (Doc. 20-1, pg. 17.) Ms. Hilton and a representative of the police officer's association also attended the meeting. ( Id. ) Plaintiff explained why he disagreed with the recommendation that he be demoted. ( Id. ) Following the October 6, 2011 hearing, the City adopted the Chief's recommendation and demoted Plaintiff effective October 13, 2011. (DSOF 19; PSOF 19.)

Plaintiff appealed the City's decision and, pursuant to the City's policies, was afforded the opportunity to present his appeal to a hearing officer in the form of an evidentiary hearing. At the November 8, 2011 hearing, Plaintiff was represented by counsel, testified and cross-examined witnesses. (DSOF 20-21; PSOF 20-21.) On November 28, 2011, the hearing officer recommended that the City Manager rescind the discipline and reinstate Plaintiff as a Corporal in the SVPD. (DSOF 22; PSOF 22.)

The parties dispute what happened next. According to Defendants, their attorney sent an email to Plaintiff's attorney on December 5, 2011, stating that City Manager Potucek was not inclined to adopt the hearing officer's recommendation and that it was within City Manager Potucek's authority to demote Plaintiff back to the job of regular line officer. (DSOF 23-24.) Defendants' counsel indicated that, as a compromise, City Manager Potucek was willing to allow Plaintiff to choose an assignment as either the School Resource Officer or as an officer in the property crimes unit following his demotion. (DSOF 26; Doc. 20-3, pg. 16.) On that same date, Plaintiff's counsel emailed Defendants' counsel and stated that Plaintiff had agreed to accept the position in the property crimes unit. (DSOF 26; Doc. 20-3, pg. 18.) On December 7, 2011, City Manager Potucek issued a Memorandum to Plaintiff stating: "On October 14, 2011, you submitted an appeal to your demotion from the position of Police Corporal to Police Officer. During the process an agreement was reached that you would be assigned to the Property Crimes Unit effective December 7, 2011." (DSOF 29; Doc. 20-3, pg. 20.)

Plaintiff objects to the admissibility of the emails between his counsel and Defendants' counsel on the grounds that the emails have not been authenticated, contain hearsay and lack foundation. (Doc. 24, pgs. 15-19.) Plaintiff acknowledges that he received the December 7, 2011 Memorandum from City Manager Potucek, but denies that he reached an agreement with Defendants to forego his appeal of his demotion in exchange for assignment in the property crimes unit. (Doc. 24, pg. 20.) According to Plaintiff, the property crimes position was offered to him as an "olive branch, " but was not intended to end his appeal. (Doc. 20-1, pg. 23.)

It is undisputed that Officer Mary Chatham had been slated to fill the open property crimes position. (DSOF 30; PSOF 30.) Officer Chatham stated in an affidavit that Plaintiff told her he had accepted the property crimes position as part of a compromise with the City to resolve his appeal of his demotion from Corporal. (Doc. 20-3, pg. 22.)

On June 2, 2012, Plaintiff filed a Notice of Claim pursuant to A.R.S. § 12-821.01. (DSOF 38; PSOF 38.) Plaintiff filed the instant action on November 6, 2012 in Cochise County Superior Court. (Doc. 1.) Plaintiff's Complaint alleges eight counts against Defendants: (1) libel and slander per quod in violation of Arizona law; (2) libel and slander per se in violation of Arizona law; (3) libel and slander (false light) in violation of Arizona law; (4) defamation in violation of Arizona law; (5) arbitrary demotion in violation of Arizona law; (6) unreasonable discipline of a law enforcement officer in violation of A.R.S. § 38-1104[5]; (7) violation of Arizona's Due Process clause, Ariz. Const. Art. II.4; and (8) violation of the due process rights guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution.

Defendants removed the action to this Court on February 25, 2013. ( Id. ) Review of the docket indicates that while Defendants served Plaintiff with disclosure and discovery requests and deposed Plaintiff, Plaintiff did not provide Defendants with any disclosure and did not engage in any discovery in this matter.[6] Defendants filed the instant Motion following the close of discovery.


In deciding a motion for summary judgment, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the party opposing the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987).

Summary judgment is appropriate if the pleadings and supporting documents "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

A party moving for summary judgment initially must demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 325. The moving party merely needs to point out to the Court the absence of evidence supporting its opponent's claim; it does not need to disprove its opponent's claim. Id. ; see also Fed.R.Civ.P. 56(c).

If a moving party has made this showing, the nonmoving party "may not rest upon the mere allegations or denials of the adverse party's pleading, but... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See also Anderson, 477 U.S. at 256; Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). The nonmoving party may not "replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit." Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990).


Defendants move for summary judgment on six grounds: (1) Plaintiff's claims for libel, slander, defamation and violation of due process under Arizona law are untimely; (2) Plaintiff's claims for libel, slander and defamation fail as a matter of law; (3) Plaintiff's claims that he was arbitrarily demoted and unreasonably disciplined are barred by his agreement to accept the demotion in exchange for the opportunity to choose his assignment; (4) Plaintiff's claims that he was arbitrarily demoted and unreasonably disciplined are time-barred; (5) Plaintiff's claims that he was arbitrarily demoted and unreasonably disciplined fail as a matter of law; and (6) Plaintiff's due process claims fail as a matter of law. Because the Court concludes that Plaintiff's only federal claim is without merit, the Court declines to reach the merits of Defendants' other arguments and remands this case to the Cochise County Superior Court.

1. Plaintiff's due process claims fail as a matter of law.

Seven of the eight counts in Plaintiff's Complaint arise under state law. The only federal claim alleged by Plaintiff is Count 8, in which Plaintiff alleges a § 1983 claim for violation of his procedural due process rights. (Doc. 1-3, pg. 11.) Plaintiff's sole federal claim is without merit as to both the City of Sierra Vista and the individual Defendants sued in their official capacity. In order for a municipality to be liable for a section 1983 violation, the action alleged to be unconstitutional must implement a policy officially adopted by the municipality. See Miranda v. City of Cornelius, 429 F.3d 858, 869 (9th Cir. 2005). Plaintiff has failed to allege that the City of Sierra Vista adopted a formal policy of depriving employees' of their due process rights.[7] Similarly, an action against a municipal officer in his official capacity is the functional equivalent of a direct action against a municipality. See Newman v. City of Phoenix, 2013 WL 1947412, *2 (D. Ariz. 2013). Because Plaintiff has failed to state a claim against the City of Sierra Vista, he has also failed to state a claim against Defendants Kimmel and Potucek, sued in their official capacities. Although Plaintiff makes a cursory allegation that Defendants Kimmel and Potucek were policymakers who ratified the violation of his due process rights (Doc. 24, pg. 29), that allegation is not supported by any admissible evidence.[8] Accordingly, Plaintiff's Complaint does not include a viable federal claim.

Because Defendants are entitled to summary judgment on Plaintiff's only federal claim, the Court declines to exercise jurisdiction over the remaining state law claims. A district court may decline supplemental jurisdiction over state law claims if any of four factors are met: (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. See 28 U.S.C. § 1367(c); Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (in the usual case in which all federal-law claims are eliminated before trial, the balance of factors will point toward declining to exercise jurisdiction over the remaining state-law claims).

Defendants present numerous arguments in support of their Motion for Summary Judgment on Plaintiff's state law claims. Because these arguments arise solely under Arizona law and concern the merits of Plaintiff's surviving state law claims, this Court would defer to the state court's consideration of these issues-should Defendant raise them-following remand of this case.[9]


For the foregoing reasons, IT IS ORDERED THAT Defendants' Motion for Summary Judgment filed on January 31, 2014 (Doc. 19) is GRANTED IN PART;

IT IS FURTHER ORDERED that this matter is REMANDED to the Superior Court of the State of Arizona, in and for the County of Cochise.

IT IS FURTHER ORDERED THAT the Clerk of the Court shall enter judgment in favor of Defendants as to Count 8 only and close the file in this matter.

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