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Peck v. Hinchey

United States District Court, D. Arizona

July 7, 2017

Steven Peck, et al., Plaintiffs,
v.
Margaret Hinchey, et al., Defendants.

          ORDER

          James A. Teilborg Senior United States District Judge.

         Pending before the Court is Defendant's Motion for Summary Judgment on Qualified Immunity Grounds (Doc. 375). The Court now rules on the motion.[1]

         I. Background

         On 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.).

         Defendant 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).

         Count 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 below.[2]

         A. Undisputed Material Facts

         Steven 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[3]-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).

         The 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 ¶¶ 35-37).
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 ¶¶ 232-37).
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 ¶ 268).
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).

         II. Summary Judgement Standard

         Summary 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).

         Initially, 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 ...


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