United States District Court, D. Arizona
V. Wake, Senior United States District Judge.
the court are Defendant's Motion for Summary Judgment
(Doc. 107), Plaintiffs' Response and Cross-Motion for
Summary Judgment (actually a cross-motion for partial summary
judgment) (Doc. 114), and the parties' accompanying
where noted, the following facts are not in dispute. In 2014,
plaintiffs Austin Flake (“Austin”) and Logan
Brown (“Logan”) (collectively “the
Flakes”) were married and living together in Provo,
Utah. (Doc. 113, ¶ 31; Doc. 121, ¶
31.) Austin is the son of United States Senator Jeff Flake.
(Doc. 113, ¶ 33; Doc. 121, ¶ 33.) In 2014,
Logan's parents, Jesse and MaLeisa Hughes (“the
Hugheses”) ran a dog kennel business out of their
Gilbert, Arizona home. (Doc. 113, ¶¶ 34-35; Doc.
121, ¶¶ 34-35.) The kennel consisted of a small,
air-conditioned room attached to the house where the Hugheses
would board anywhere from fifteen to thirty dogs at a time.
(Doc. 113, ¶ 36; Doc. 121, ¶ 36.) The room was
roughly nine feet by twelve feet in size. See Doc.
108-3 at 6.
14, 2014, the Flakes arrived in Gilbert to take care of the
property, including the kennel, while the Hugheses went out
of town. (Id.) The first five days passed without
incident. (Doc. 113, ¶¶ 37, 48; Doc. 121,
¶¶ 37, 48.) The Flakes stayed in the main part of
the house, which was separate from the kennel space and had
its own independent air conditioning unit that functioned
properly throughout their stay. (Doc. 113, ¶ 50; Doc.
121, ¶ 50.) However, at approximately 5:30 AM on Friday,
June 20, Austin went to check on the kennel and found the
room so hot that the twenty-one dogs had either died or grown
seriously ill. (Doc. 113, ¶ 46; Doc. 121, ¶ 46.)
(Some of the dogs still living died shortly thereafter,
though some may have survived. See Doc. 108-1 at
170.) The Flakes maintain that the air conditioning unit
inside the kennel room malfunctioned sometime after 11:00 PM
the night before when Logan last checked on the dogs. (Doc.
113, ¶¶ 38, 45.) Defendants say the air
conditioning was functioning normally but was simply
inadequate to accommodate that many dogs in such a small
space with insufficient ventilation. (Doc. 121, ¶ 39.)
The parties also disagree as to whether a window in the room
was left slightly open. (Doc. 113, ¶ 77; Doc. 121,
¶ 77.) The Flakes did not provide water for the dogs
throughout the night. (Doc. 108, ¶ 4; Doc. 113, ¶
next day, deputies from the Maricopa County Sheriff's
Office (“the Sheriff's Office”), then headed
by defendant Sheriff Joseph Arpaio, came to the Hugheses'
home to investigate. (Doc. 113, ¶ 41; Doc. 121, ¶
41.) In a statement issued to the media shortly after, the
Sheriff's Office referred to the incident as a
“tragic accident.” (Doc. 113, ¶ 53; Doc.
121, ¶ 53.) Eight days later, on June 23, 2014, the
Sheriff's Office issued a press release headlined
“Sheriff Arpaio Promises Full Investigation into Deaths
of 20 Dogs in Gilbert, AZ Boarding Facility, ” portions
of which read as follows:
“No Stone Will Go Unturned”
(Phoenix, AZ) Maricopa County Sheriff Joe Arpaio, known for
his aggressive stance on animal abuse and neglect, held a
press conference today shortly after meeting with several
owners whose dogs died over the weekend at a Gilbert, AZ
kennel. In the press conference, the Sheriff reiterated his
promise to fully investigate why so many dogs died a needless
and horrible death.
Sheriff Arpaio's deputies responded to a call on Saturday
morning, June 21, 2014 at the Green Acres Dog Boarding
Facility at 15723 East Appleby Road and found 20 dead dogs -
all different breeds, sizes and ages, piled into a shed on
. . . .
“Owners claim the air conditioning was cut off after a
dog chewed through some electrical wiring, ” Arpaio
says. “But it seems unreasonable that dogs could be
healthy at 11PM at night and dead by 5:30am the next morning
as the owners suggest. Even the veterinarian I met with today
agrees that the timeline given by the owners and caretakers
is highly suspect.”
. . . .
“Clearly this is a situation that demands immediate and
thorough investigation and I promise that my office will
deliver just that, ” Arpaio says.
Jesse and Malesia Hughes who have operated the pet boarding
business for two years were out of the state when the dogs
died. The animals were being overseen by their relatives,
Logan and Austin Flake.
. . . .
(Doc. 113-6 at 87-88.)
Sheriff's Office then initiated an investigation. (Doc.
108, ¶ 6; Doc. 113, ¶ 6.) Two experts, veterinarian
Bernard Mangone and electrical engineer George Hogge,
supplied the Sheriff's Office with reports that were used
in the Sheriff's investigative report. (Doc. 108, ¶
9; Doc. 113, ¶ 9.) Hogge concluded that the air
conditioning system in the kennel was “inadequate and
improperly configured” for the room, but he also said
the air conditioner operated all night. (Doc. 108, ¶ 10;
Doc. 113, ¶ 10.) Mangone concluded that the dogs would
not have had adequate space or water in the room. (Doc. 108-5
at 5-6.) Defendant Marie Trombi, a deputy sheriff, was
appointed to investigate the case. (Doc. 108-4 at 15.) She
“repeatedly briefed Arpaio” on the ongoing
investigation. (Doc, 113, ¶ 89; Doc. 121, ¶ 89.)
September 9, 2014, Arpaio held a twenty-two minute press
conference announcing that he was recommending to the
Maricopa County Attorney that the Flakes and the Hugheses be
charged with twenty-one felony counts and six misdemeanor
counts of animal cruelty. (Doc. 113, ¶ 56; Doc. 121, ¶
56.) In the course of the press conference, Arpaio stated,
“I'm very confident we have the proper
evidence” and that “we act on facts” in
investigating cases. (Doc. 61-1 at 5; Doc. 113, ¶ 57;
Doc. 121, ¶ 57.) Arpaio further stated, “I always
said it doesn't meet the smell test when you put 28 dogs
in a 9-by-12 room.” (Doc. 113-7 at 12.)
October 10, 2014, prosecutors took the matter before a grand
jury for indictment of the Flakes and the Hugheses. (Doc.
113, ¶ 62; Doc. 121, ¶ 62.) Defendant Marie Trombi,
a deputy sheriff, testified during that proceeding to what
the Flakes call “material misrepresentations and
omissions” regarding the kennel. See Doc. 113,
¶¶ 63 65; Doc. 121, ¶¶ 63-65. Trombi
testified that the building's electric records show the
air conditioning was on and working all night until 5:30 AM
the morning of Friday, June 20. (Doc. 113, ¶ 66; Doc.
121, ¶ 66.) Hogge's expert report, which was
accessible to Trombi at the time, concluded that the air
conditioning unit was “inadequate and improperly
configured” for the room, in addition to being poorly
maintained. (Doc. 108-3 at 4.) Hogge also concluded that
there was “no evidence of any electrical or mechanical
failure of the HVAC system.” (Doc. 108-3 at 24.) Grand
jurors specifically questioned Trombi about whether the air
conditioner was on. She answered that, according to the
Flakes' electrical records, it was on all night. (Doc.
113, ¶ 66; Doc. 121, ¶ 5.) In any event, the grand
jury indicted the Flakes on twenty-one felony counts and six
misdemeanor counts of animal cruelty. (Doc. 113, ¶ 78;
Doc. 121, ¶ 78). The Flakes were never arrested. (Doc.
108, ¶ 19; Doc. 113, ¶ 19.) They were, however,
restricted from leaving the state of Arizona and from having
“custody or control over another person's
animal/pet.” (Doc. 113-7 at 64.)
months later on December 2, 2014, the Flakes filed a motion
to return the case to the grand jury in light of
“material misrepresentations and omissions” in
Trombi's testimony. (Doc. 113, ¶ 80; Doc. 121,
¶ 80.) Three weeks later, prosecutors from the County
Attorney's Office voluntarily dismissed the case. (Doc.
113, ¶¶ 81, 83; Doc. 121, ¶¶ 81, 83.)
Maricopa County Attorney Bill Montgomery told the press that
“the theory of the case as initially presented to the
Grand Jury did not take into account the possibility that
there were issues with an air conditioning unit.” (Doc.
113, ¶ 82; Doc. 121, ¶ 82.) Montgomery said that
the dismissal “reflects our ethical and professional
duty as prosecutors to review information presented to us by
the defense and to assess what impact, if any, it has on our
case.” (Id.) It turned out that the electric
company records did show the air conditioner may have failed.
the charges were dismissed, Arpaio issued another press
release and posted a video statement online. (Doc. 113,
¶ 84; Doc. 121, ¶ 84.) In the video message Arpaio
stated, “I anticipate the charges will be re-filed
regarding the facts that we obtained doing our
investigation” and that the “criminal justice
system, I feel, will prevail and justice will be done.”
(Doc. 113, ¶ 84; Doc. 121, ¶ 84.) In accordance
with the County Attorney's explanation of why he
dismissed the charges, no further charges have been brought
against the Flakes. Trombi has since stated in deposition
testimony that she believes Austin and Logan did not
purposely or intentionally harm any of the dogs and that they
were not responsible for the kennel's poor ventilation.
(Doc. 113, ¶¶ 85, 87; Doc. 121, ¶¶ 85,
Flakes filed this action on June 19, 2015, naming Arpaio,
Trombi, and Maricopa County as defendants. (Doc. 1.) The
third amended complaint raises claims of malicious
prosecution, defamation, false light invasion of privacy, and
First Amendment retaliation. (Doc. 101.) Defendants move for
summary judgment on all counts. The Flakes themselves seek
summary judgment against the defense of qualified immunity
and on lack of probable cause.
motion for summary judgment tests whether the opposing party
has sufficient evidence to merit a trial. Summary judgment
should be granted if the evidence reveals no genuine dispute
about any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). A material
fact is one that might affect the outcome of the action under
the governing law, and a factual dispute is genuine “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
movant has the burden of showing the absence of genuine
disputes of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). However, once the movant shows an
absence of evidence to support the nonmoving party's
case, the burden shifts to the party resisting the motion.
The party opposing summary judgment must then “set
forth specific facts showing that there is a genuine issue
for trial” and may not rest upon the pleadings.
Anderson, 477 U.S. at 256. If a party fails to
properly support an assertion of fact or fails to properly
address another party's assertion of fact, the court may
consider the fact undisputed for purposes of the motion.
Fed.R.Civ.P. 56(e)(2). The Court must view the evidence in
the light most favorable to the nonmoving party, must not
weigh the evidence or assess its credibility, and must draw
all justifiable inferences in favor of the nonmoving party.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000); Anderson, 477 U.S. at 255.
first seek summary judgment on the Flakes' claims of
malicious prosecution, which the Flakes bring against Arpaio
under both federal and state law and against Trombi under
federal law only. (Doc. 101 at 9.)
Arizona law, the tort of malicious prosecution requires proof
of “(1) a criminal prosecution, (2) that terminates in
favor of the plaintiff, (3) with the defendants as
prosecutors, (4) actuated by malice, (5) without probable
cause, and (6) causing damages.” Slade v. City of
Phoenix, 112 Ariz. 298, 300, 541 P.2d 550, 552 (1975). A
plaintiff may also bring a malicious prosecution action under
42 U.S.C. § 1983. Under that federal provision, the
plaintiff must make out all elements of the state law cause
of action and also show that the defendant pursued the
prosecution “‘for the purpose of denying [the
plaintiff] equal protection or another specific
constitutional right.'” Awabdy v. City of
Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (quoting
Freeman v. City of Santa Ana, 68 F.3d 1180, 1189
(9th Cir. 1995)).
Independent Judgment Presumption
first argue that summary judgment should be granted because
the Flakes have not overcome the “independent judgment
presumption.” In malicious prosecution cases, federal
law recognizes a rebuttable presumption that “the
prosecutor filing the complaint exercised independent
judgment in determining that probable cause for an
accused's arrest exists at that time, ” thereby
absolving from liability any law enforcement officers who may
have aided pre-indictment. Newman v. Cty. of Orange,
457 F.3d 991, 993 (9th Cir. 2006) (citing S ...