Norton v. Arpaio

          ORDER

          HONORABLE STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE.

         Before the Court is Plaintiffs' Motion for Summary Judgment (Docs. 196, 197, ^[1]198, ^[2] 199^[3]), Defendant Maricopa County's Opposition (Docs. 200, 202^[4]), Defendants Arpaio and Henderson's Opposition (Docs. 201, 203^[5]), and Plaintiffs' Reply (Docs. 204, 205^[6]). For the reasons stated below, Plaintiffs' motion is denied in its entirety.

         I. Background^[7]

         A. Factual Background

         Plaintiff Bret Frimmel owns and operates Uncle Sam's restaurants through Plaintiff Pishka, Inc. (Doc. 197 ¶¶ 1, 2; Doc. 202 ¶¶ 1, 2; Doc. 203 ¶¶ 1, 2.) At all times relevant to this action, Defendant Arpaio was the Sheriff of Maricopa County, Arizona. (Doc. 197 ¶ 4; Doc. 202 ¶ 4; Doc. 203 ¶ 4.) At all times relevant to this action, Defendant Henderson was a Maricopa County Sheriffs Office (“MCSO”) deputy employed by Maricopa County. (Doc. 197 ¶ 7; Doc. 202 ¶ 7; Doc. 203 ¶ 7.) At all times relevant to this action, Henderson was assigned to the MCSO Criminal Employment Unit (“CEU”). (Doc. 197 ¶ 8; Doc. 202 ¶ 8; Doc. 203 ¶ 8.) Henderson was assigned as the lead investigator of the alleged identity theft at the Uncle Sam's restaurants. (Doc. 197 ¶ 13; Doc. 202 ¶ 13; Doc. 203 ¶ 13.) Prior to working on the Uncle Sam's case, Henderson had never drafted a search warrant probable cause statement. (Doc. 197 ¶ 14; Doc. 202 ¶ 14; Doc. 203 ¶ 14.) On July 16, 2013, Henderson applied for and obtained three search warrants for two Uncle Sam's restaurants and Frimmel's personal residence. (Doc. 197 ¶ 18; Doc. 202 ¶ 18; Doc. 203 ¶ 18.) Henderson provided probable cause affidavits to support those applications. (Doc. 197 ¶ 19; Doc. 202 ¶ 19; Doc. 203 ¶ 19.)

         On July 17, 2013, Henderson and other MCSO deputies executed the search warrants at two Uncle Sam's restaurants and Frimmel's personal residence. (Doc. 197 ¶ 31; Doc. 202 ¶ 31; Doc. 203 ¶ 31.) Following the raids, they took nine subjects into custody on suspected identity theft and forgery charges. (Doc. 197 ¶ 31; Doc. 202 ¶ 31; Doc. 203 ¶ 31.) Henderson subsequently conducted interviews with four cooperating witnesses. (Doc. 197 ¶ 33; Doc. 202 ¶ 33; Doc. 203 ¶ 33.)

         On January 22, 2014, ^[8] Henderson and other MCSO deputies arrested Frimmel on charges related to trafficking in identify theft, identify theft, conspiracy, and forgery. (Doc. 197 ¶ 47; Doc. 202 ¶ 47; Doc. 203 ¶ 47.) When Frimmel was arrested, Henderson placed Frimmel in handcuffs with his arms behind his back in an unnecessarily rough manner that caused discomfort and injury in Frimmel's right arm and shoulder. (Doc. 197 ¶¶ 48, 52; Doc. 203 ¶¶ 48, 52.) Frimmel did not display any hesitancy to follow Henderson's instructions nor did he resist the arrest. (Doc. 197 ¶ 49; Doc. 203 ¶ 49.) Frimmel told Henderson that the handcuffs were causing him discomfort, were too tight, and asked him to loosen the cuffs. (Doc. 197 ¶ 49; Doc. 203 ¶ 49.) Henderson ignored his complaints. (Doc. 197 ¶ 50; Doc. 203 ¶ 50.) Frimmel was in handcuffs for more than an hour and leaned forward in the police car to try to ease his discomfort. (Doc. 197 ¶¶ 51, 53; Doc. 203 ¶¶ 51, 53.) While he was restrained in the handcuffs, Frimmel's right hand swelled and went numb. (Doc. 197 ¶ 54; Doc. 203 ¶ 54.) Henderson remembers arresting Frimmel but does not remember whether he handcuffed Frimmel or if Frimmel complained of his discomfort. (Doc. 197 ¶¶ 55, 57; Doc. 203 ¶¶ 55, 57.)

         On January 22, 2014, MCSO released a press release stating that Frimmel was arrested on charges related to identity theft and forgery. (Doc. 197 ¶ 68; Doc. 203 ¶ 68.) The press release also stated that “detectives have questioned several witnesses who claimed to have first-hand knowledge that Norton and Frimmel colluded together to acquire false identification documents in order to provide those IDs to undocumented workers.” (Doc. 197 ¶ 69; Doc. 203 ¶ 69.) Also on January 22, 2014, Arpaio stated in an interview with Channel 10 news that Frimmel “was knowingly hiring employees with fake social security numbers.” (Doc. 197 ¶ 71; Doc. 203 ¶ 71.) In another interview that day with Channel 3 news, Arpaio stated that Frimmel “was arrested for providing stolen ID's, mainly social security cards, to his workers.” (Doc. 197 ¶ 73; Doc. 203 ¶ 73.)

         On February 7, 2014, a grand jury indicted Frimmel based on Henderson's testimony. (Doc. 197 ¶ 78; Doc. 202 ¶ 78; Doc. 203 ¶ 78.) On May 16, 2014, Frimmel filed a motion for a Franks hearing in Maricopa County Superior Court. (Doc. 197 ¶ 80; Doc. 202 ¶ 80; Doc. 203 ¶ 80.) On April 15, 2015, the Superior Court found that, based on numerous errors in the affidavits, there was no probable cause to issue the search warrants and voided them. (Doc. 197 ¶¶ 81-83; Doc. 202 ¶¶ 81-83; Doc. 203 ¶¶ 81-83.) On April 23, 2015, all remaining charges against Frimmel were dismissed. (Doc. 197 ¶ 85; Doc. 202 ¶ 85; Doc. 203 ¶ 85.)

         B. Procedural History

         On January 20, 2015, Plaintiffs filed complaints in federal court. (Doc. 1 of 2:15-cv-00087-SPL; Doc. 1 of 2:15-cv-00088-SRB.) On June 5, 2015, those cases were consolidated under this Case No. 2:15-cv-00087-SPL. On June 19, 2015, Plaintiffs filed a Second Amended Complaint (the “Complaint.”) (Doc. 25-1.) On January 19 and 20, 2017, the parties filed motions for full and partial summary judgment. (Docs. 170, 173, 175.) On September 29, 2017, the Court denied those motions with leave to re-file. (Doc. 195.) On October 30, 2017, Plaintiffs filed their renewed motion for summary judgment against Maricopa County, Arpaio, and Henderson. (Doc. 196.) On November 29, 2017, Maricopa County filed its response. (Doc. 200.) Also on November 29, 2017, Arpaio and Henderson filed their response. (Doc. 201.) On December 12, 2017, Plaintiffs filed their reply. (Doc. 204.)

         II. Standard of Review

          A court must grant summary judgment “if the movant shows that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Material facts are those facts “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact arises if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         The party moving for summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the movant is able to do so, the burden then shifts to the non-movant who “must do more than simply show that there is some metaphysical doubt as to the material facts, ” and, instead, must “come 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).

         III. Discussion

         Plaintiffs moved for summary judgment on the following claims: (1) judicial deception violations pursuant to 42 U.S.C. § 1983 against Defendants Maricopa County, Arpaio, and Henderson (Claims I, IV, V); (2) defamation against Maricopa County and Arpaio (Claim IX); (3) grossly negligent restraint against Henderson (Claim X); and (4) intentional infliction of emotional distress (“IIED”) against Arpaio and Henderson (Claim XI). (Doc. 196.)

         A. 42 U.S.C. § 1983 (Claims I, IV, and V)

         1. Judicial Deception/Illegal Search and Seizure/Malicious Prosecution

         The Court cannot determine which bases Plaintiffs are relying upon in regard to Claims I, IV, and V.^[9] It appears that Plaintiffs attempt to argue judicial deception under Claims IV and V for their labeled “illegal search and seizure claims” and malicious prosecution as to Claim I. However, the separate causes of action under Section 1983, the basis for those separate actions, and their elements are lacking. (See Doc. 196 at 8.) These claims are intertwined in Plaintiffs' motion, and the Court cannot determine the appropriate standards and the requisite elements in order to match the appropriate analysis and argument. As such, the Court denies Plaintiffs' request for summary judgment as to Claims I, IV, and V as to Henderson, Arpaio, and Maricopa County. However, the Court will address the narrow issue of whether Arpaio is the final policymaker in the area of criminal law enforcement, which includes the constitutional violations here.

         2. Municipal Liability

         Plaintiffs argue that Maricopa County is jointly liable for Arpaio's share in liability under Monell on its Section 1983 claims. (Doc. 196 at 15.) Plaintiffs argue that Arpaio is the final policymaker of Maricopa County in the context of criminal law enforcement, which would encompass the alleged violations in this action. (Doc. 196 at 15.) Maricopa County argues that Arpaio is the final policymaker for the State and not for Maricopa County. (Doc. 200 at 10.) Because the Court is not determining liability as to Arpaio or Maricopa County in this motion, see supra, this analysis is limited to the determination of whether Arpaio is the final policymaker for Maricopa County in the area of criminal law enforcement, to include the areas of obtaining and executing search and ...