United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
before the Court is Defendant's Motion for Summary
Judgment on Qualified Immunity Grounds (Doc. 375). The Court
now rules on the motion.
March 14, 2014, the Court issued an Order on Defendants'
motion to dismiss and the parties' cross motions for
Summary Judgment. (Doc. 329). On July 15, 2016, this Court
received the decision of the U.S. Court of Appeals for the
Ninth Circuit affirming this Court's decision in part,
and reversing and remanding in part. (Doc 351-2). Following
the Court of Appeals' decision, this Court issued an
Order to clarify the procedural posture of this case. (Doc.
352). Plaintiffs maintain three counts against Defendant
Hinchey under the Civil Rights Act of 1871, 42 U.S.C. §
1983. (Id.). No other defendants or claims remain in
this case. (Id.).
responded to those counts by filing a Motion to Dismiss (Doc.
355), which was denied by this Court (Doc. 368). Defendant
later filed a Motion for Summary Judgment on Qualified
Immunity Grounds on February 2, 2017 (Doc. 375). Plaintiffs
filed a Response on March 6, 2017 (Doc. 379). Defendant then
filed a Reply on March 21, 2017 (Doc. 386).
I, Intentional Presentation of False Evidence to Support
Criminal, Count II, Presentation of False Evidence to Support
Criminal Charges with a Reckless Disregard for the Truth, and
Count III, Malicious Prosecution, are discussed
Undisputed Material Facts
Peck, Benjamin Sywarungsymun, Aaron Lentz, and Shannon Lentz
(hereinafter “Plaintiffs”) filed a complaint in
June 2012 against several defendants, including Margaret
Hinchey (hereinafter “Defendant”). (See
Doc. 1, as am. Doc. 180). Plaintiffs-except for
Shannon Lentz-are officers in the Phoenix Police
Department (“PPD”) who were investigated for
falsely reporting their hours worked at a uniformed, off-duty
security job coordinated by former PPD Officer George
Contreras at Cotton Center Townhomes (the “Job”).
(Doc. 380 at 2). Defendant was a Special Agent with the
Arizona Attorney General's Office during the course of
the investigation. (Doc. 380 at 3).
Court went through the background facts regarding
Defendant's investigation of Plaintiffs' conduct at
the Job in its previous Summary Judgment Order, so the Court
will not repeat them all here (Doc. 329 at 2-5). Facts most
relevant to this Order are discussed below and the Court will
discuss other relevant facts as necessary:
Contreras selected more than fifty PPD officers to work this
off-duty job, including Plaintiffs Steven Peck, Aaron Lentz,
and Benjamin Sywarungsymun (“Plaintiffs”). (PSOF
¶ 1). The Townhomes officers worked in two-man shifts
and used a patrol car that was picked-up and dropped-off at
the PPD South Mountain Precinct. (PSOF ¶¶ 21-27).
Contreras kept a handwritten logbook at the South Mountain
Precinct to allow officers to log their activities and
communicate relevant information to subsequent shifts. (PSOF
Contreras did not monitor or verify the times that the
officers began and ended their shifts. However, the patrol
cars used by the officers included an on-board computer
(“MDT”) that recorded officers'
sign-in/sign-off times. (PSOF ¶ 47; Controverting
Statement of Facts to Defendants City of Phoenix and Paula
Veach's Separate Statement of Facts in Support of Her
Motion for Summary Judgment on Immunity Grounds
(“PCSOF”), Doc. 297 ¶ 5). Although the
MDT's sign-in/sign-off system could be unreliable, the
officers often used the MDT. (PSOF ¶ 55-59; see PCSOF
¶ 5). Additionally, the officers used radios that
recorded on/off times. (PSOF ¶ 52; see PCSOF ¶ 5).
PPD off-duty policies, however, did not require the officers
to sign-in with the MDT at the beginning of their shifts, or
to sign-off the MDT or the radio at the end of their shifts.
(PSOF ¶¶ 48-52).
In October, 2006, the Townhomes job ended. (PSOF ¶ 68).
On December 7, 2006, in response to a citizen complaint that
the Townhomes officers had been paid for services not
actually performed, PPD assigned two detectives from its
Professional Standards Bureau to audit the Townhomes job.
(Defendants City of Phoenix, Paula Veach and Jack
Harris's Statement of Facts in Support of Motion for
Summary Judgment Regarding Immunity (“DSOF”),
Doc. 258 ¶¶ 1-4; PCSOF ¶¶ 1-4). The
detectives gathered documentation including pay slips,
department reports from arrests made at the Townhomes,
sign-in/sign-off data from the MDTs, radio on/off times, and
various written logs. (PCSOF ¶ 5). The detectives
organized this information into an Excel spreadsheet (the
“PSB spreadsheet”) and the preliminary data
indicated discrepancies between the hours officers worked and
the hours they were paid. (PCSOF ¶¶ 6-7).
PPD transferred the matter to Sergeant Paula Veach to conduct
an administrative investigation to determine if any PPD
policies had been violated. (PCSOF ¶¶ 8-10). Veach
received the PSB spreadsheet, requested additional materials,
and added additional information to the PSB spreadsheet.
(PCSOF ¶¶ 11-12). Veach also conducted seven
Garrity-protected officer interviews, including of Contreras
and Plaintiff Sywarungsymun. (PCSOF ¶¶ 14-16).
After two of the interviewed officers admitted to leaving the
Townhomes job early, Veach was ordered to create a PowerPoint
presentation to show the current status of her ongoing
administrative investigation to her chain of command. (PCSOF
¶¶ 17-18). Following the presentation, Veach was
ordered to halt her administrative investigation and PPD
referred the matter to the Arizona Attorney General's
Office (“AGO”) for an independent criminal
investigation. (PCSOF ¶¶ 19-20). Veach was ordered
to provide her records to the AGO and serve as PPD's
liaison for the purposes of the AGO's criminal
investigation. (PCSOF ¶ 20).
In November 2008, the AGO appointed Special Agent Margaret
Hinchey to conduct a criminal investigation into the matter
and Hinchey contacted Veach. (PCSOF ¶ 21). Veach met
with Hinchey to discuss the PSB spreadsheet and its
underlying data. (DCSOF ¶ 21). Veach informed Hinchey
that Veach's administrative investigation was incomplete
and that the PSB spreadsheet was incomplete and inaccurate.
(PCSOF ¶¶ 22, 99-100). During the course of
Hinchey's investigation, Veach, as the PPD liaison,
answered Hinchey's questions related to PPD policies and
procedures and directed Hinchey to sources of data relevant
to Hinchey's investigation. (PCSOF ¶ 34). In
December 2009, Veach was transferred out of the PSB unit and
her role as PPD liaison to Hinchey ended. (PCSOF ¶ 23).
During Hinchey's investigation, Hinchey “asked PPD
for all supporting data used to calculate times in the PSB
spreadsheet” (PSOF ¶ 108), determined shift start
and end times using “MDT, radio log off, PACE time,
[and] report entry times” (PSOF at Ex. 18 pp. 55-57),
reinterviewed a Townhomes witness (PSOF ¶ 112, Ex. 44),
and interviewed at least 21 Townhomes officers (PSOF at Exs.
19-20, 23-41). As part of her investigation, Hinchey heavily
modified the PSB spreadsheet. (Id.; see also SSOF at
Exs. 17, 58-60). During her investigation, Hinchey authored
numerous investigative reports (DSOF at Ex. 12) and informed
her supervisors of the status of her investigation.
Plaintiffs allege that Hinchey's reports failed to
include exculpatory evidence and included false or fabricated
evidence intended to mislead the prosecutor into pursuing
criminal charges against Plaintiffs. (SAC ¶¶
Plaintiffs allege that the decision to indict Plaintiffs was
made in the fall of 2010. (SAC ¶ 241). Specifically,
Plaintiffs allege that, in order to achieve political gain,
Attorney General Terry Goddard directed that Hinchey's
investigation conclude and the prosecutor procure indictments
prior to Election Day on November 2. (SAC ¶¶
244-47). Plaintiffs further allege that in response, Hinchey
presented false, misleading, and fabricated results from her
investigation to the prosecutor, Todd Lawson, for the
purposes of supporting criminal charges against Plaintiffs.
(SAC ¶¶ 251-54, 260-61). Plaintiffs allege that
Lawson convened a grand jury and Hinchey, as the sole witness
to the grand jury, perjuriously presented false evidence to
secure an indictment against Plaintiffs. (SAC ¶¶
255-57). The grand jury returned an indictment of Plaintiffs
on November 17, 2010. (SAC ¶ 258). Plaintiffs allege
that there was no probable cause for the indictment. (SAC
¶ 259). Plaintiffs further allege that Hinchey continued
the investigation and continued to submit false, fabricated,
and misleading reports to her supervisors and Lawson. (SAC
During the course of criminal discovery, Plaintiffs'
attorneys reviewed Hinchey's investigation, discovered
falsities, and moved for remand of Plaintiffs'
indictment. (SAC ¶¶ 278- 80). Remand was granted
and a second grand jury was empaneled, but the second grand
jury failed to return an indictment of Plaintiffs. (SAC
¶ 281-84). Plaintiffs allege that without the false
evidence, the second grand jury could not find probable
cause. (SAC ¶ 283). On November 23, 2011, all criminal
charges against Plaintiffs were dropped. (SAC ¶ 286).
(Doc. 329 at 2-5).
Summary Judgement Standard
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“A party asserting that a fact cannot be or is
genuinely disputed must support that assertion by . . .
citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits, or declarations, stipulations . . .
admissions, interrogatory answers, or other materials,
” or by “showing that materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Id. 56(c)(1)(A), (B). Thus,
summary judgment is mandated “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.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
the movant bears the burden of pointing out to the Court the
basis for the motion and the elements of the causes of action
upon which the non-movant will be unable to establish a
genuine issue of material fact. Id. at 323. The
burden then shifts to the non-movant to establish the
existence of material fact. Id. A material fact is
any factual issue that may affect the outcome of the case
under the governing substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant
“must do more than simply show that there is some
metaphysical doubt as to the material facts” by
“com[ing] forward with ‘specific facts showing
that there is a genuine issue for trial.'”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)). A
dispute about a fact is “genuine” if the evidence
is such that a reasonable jury could return a verdict for the
non-moving party. Liberty Lobby, Inc., 477 U.S. at
248 (1986). The non-movant's bare assertions, standing
alone, are ...