Flake v. Arpaio

          ORDER

          NEIL V. WAKE SENIOR UNITED STATES DISTRICT JUDGE.

         Before the Court are the parties' responses to its order to show cause pursuant to Federal Rule of Civil Procedure 56(f). (Docs. 305, 309, 311.) For the reasons below, summary judgment will be granted in favor of Defendant Marie Trombi.

         I. BACKGROUND

         A. Factual Background

         Plaintiffs Austin Flake and Logan Brown (collectively, the “Flakes”) sued Defendants Joseph Michael Arpaio (“Arpaio”), Maricopa County (the “County”), and Marie Trombi (“Trombi”) under 42 U.S.C. § 1983 and Arizona state tort law. (Doc. 101.)

         Logan's parents, Jesse and MaLeisa Hughes, ran a dog kenneling business. (Doc. 134 at 1.) The kennel was a small, air-conditioned room, roughly nine by twelve feet in size, attached to the Hugheses' home. (Id. at 2.)

         When the Hugheses went out of town in June of 2014, the Flakes watched the dogs. (Id. at 1-2.) The Flakes stayed in the main house, which had its own air conditioning system. (Id. at 2.) Although the “first five days passed without incident, ” at around 5:30 a.m. on June 20, 2017, Austin went to the kennel and “found the room so hot that the twenty-one dogs had either died or grown seriously ill.” (Id.)

         The Maricopa County Sheriff's Office, then led by Arpaio, promised a full investigation of the incident. (Id. at 2.) Trombi, a deputy sheriff, was the appointed investigator. (Id. at 4.) She repeatedly briefed Arpaio on the investigation's status. (Id.) As part of the investigation, an electrical engineer prepared a report concluding the air conditioning unit was “inadequate and improperly configured” but had been operating all night. (Id. at 3-4.)

         The investigation progressed for several months. On September 9, 2014, Arpaio held a twenty-two minute press conference where he announced he was recommending the Hugheses and Flakes be charged with twenty-one felony counts and six misdemeanor counts of animal cruelty. (Id.)

         On October 10, 2014, a grand jury indicted the Hugheses and the Flakes on those charges. (Id. at 4-5.) Trombi had testified before the grand jury. (Id. at 5.) She was specifically questioned about whether the air conditioning was on and answered that, according to the electrical records, it was on all night. (Id.) The Flakes were not arrested, but they were prevented from leaving the State of Arizona without permission, which was granted when requested. (Id.; Doc. 309-2, Ex. B at 69, 76.) They were also prohibited from having “custody or control over another person's animal/pet.” (Doc. 134 at 5.)

         On December 2, 2014, the Flakes moved to “return the case to the grand jury in light of ‘material misrepresentations and omissions' in Trombi's testimony.” (Id.) “It turned out that the electric company records did show the air conditioner may have failed.” (Id.) Three weeks later, the County Attorney's Office voluntarily dismissed the case against the Flakes. (Id.) The County Attorney told the press that the original theory of the case, as presented to the grand jury, did not take into account possible problems with the air conditioning unit. (Id.)

         B. This Lawsuit Through Trial

         On June 19, 2015, the Flakes filed this lawsuit, alleging malicious prosecution under state and federal law, defamation, false light invasion of privacy, and First Amendment retaliation. (Id. at 6.) After discovery closed, Defendants moved for summary judgment. (Doc. 107.) The Flakes moved for partial summary judgment. (Doc. 114.) The Court granted summary judgment to Defendants on the defamation, false light invasion of privacy, and First Amendment retaliation claims. (Doc. 134 at 19-20.)

         The only other claim was malicious prosecution. The Flakes had pleaded malicious prosecution against Arpaio under state law and under federal law, 42 U.S.C. § 1983. They failed to meet Arizona's notice-of-claims deadline against Trombi, ...