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Flake v. Arpaio

United States District Court, D. Arizona

August 31, 2017

Austin Flake and Logan Flake, Plaintiffs,
Joseph M Arpaio, Ava J Arpaio, County of Maricopa, Maricopa County Board of Supervisors, Marie Trombi, and John Doe Trombi, Defendants.


          Neil V. Wake, Senior United States District Judge.

         Before 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 briefs.


         Except 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.[1] (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.

         On June 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, ¶ 4.)

         The 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 the property.
. . . .
“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.)

         The 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.)

         On 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.[2] (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.)[3]

         On 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.)

         Two 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.

         After 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, 87.)

         The 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.


         A 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).

         The 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.

         III. ANALYSIS

         A. Malicious Prosecution

         Defendants 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.)

         Under 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)).

         1. Independent Judgment Presumption

         Defendants 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 ...

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