United States District Court, D. Arizona
ORDER
Honorable Roslyn O. Silver Senior United States District
Judge
Plaintiff
Jay Johari, a managing member and operator of a bar in Tempe,
Arizona, was arrested in connection with two incidents: the
first involving allegations of sexual abuse and the second
involving a bar fight. Following Johari's arrests,
Plaintiffs brought claims against Defendants-the City of
Tempe and various officers of the Tempe Police Department-for
malicious prosecution, selective prosecution, abuse of
process, violation of the right to pursue an occupation,
conspiracy, Monell liability, negligence and gross
negligence, and tortious interference with business
relations. The parties cross-moved for summary judgment.
(Docs. 77, 87.) For the following reasons, summary judgment
is granted to Defendants.[1]
BACKGROUND
Plaintiffs
Jay Johari (“Johari”) and Christina P. Lamb
(“Lamb”) are husband and wife.[2] (Doc. 6 at 2.)
Plaintiff R.J.E., LLC is an Arizona limited liability company
doing business as Vintage Bar and Grill and, later, renamed
as BAC Lounge (collectively, the “Bar”). (Doc. 6
at 2.) Johari is a managing member and operator of the Bar.
(Doc. 6 at 2.) While operating the Bar, Johari has had
multiple encounters with the Tempe Police Department, and has
been arrested on two separate occasions: the LG matter and
the Sims matter.
I.
The LG Matter
On
October 16, 2012, at 3:29 A.M., Officer Daniel Reynolds was
dispatched to the Silver Mine Subs restaurant in Tempe,
Arizona, in response to a 911 call reporting that a woman was
held captive in a local bar. (Doc. 70-1 at 3.) Officer
Reynolds located Samuel Fleager (“Fleager”) and
Larissa Gossmann (“LG”), the complainants,
outside of Silver Mine Subs, and separately interviewed the
two. (Doc. 70-2 at 3.)
Fleager
told Officer Reynolds that one of his employees at Silver
Mine Subs informed him that LG had come to the restaurant
requesting help because she had been “held captive in
the bar above.” (Doc. 70-2 at 49.) Fleager called 911
and observed a male approach LG and talk to her. (Doc. 70-2
at 49.) Fleager told police that he assumed the male was the
person that had held her captive. (Doc. 70-2 at 49.)
Officer
Reynolds also interviewed LG, who was “clearly
intoxicated” and vomited on the sidewalk. (Doc. 70-2 at
49.) She submitted to a Preliminary Breath Test
(“PBT”) and registered a BrAC of 0.183. (Doc.
70-2 at 50.) LG told the police the following account, which
was recorded in the police report: LG responded to a
Craigslist advertisement for employment at a “new
bar” in Tempe. (Doc. 70-2 at 50.) LG then received an
email from someone named Jay, [3] who identified himself as the
manager of Vintage Bar, and requested her age and a photo.
(Doc. 70-2 at 50.) LG told Jay Johari she was twenty years
old and submitted a photo, and Johari asked LG to come to the
Bar and interview for a “promo girl” position on
October 15, 2012. (Doc. 70-2 at 50; Ex. 3.) At approximately
10 P.M. on October 15, 2012, LG arrived at the Bar for her
interview. (Doc. 70-2 at 50.) Johari brought LG to his office
and interviewed her for approximately 45 minutes. (Doc. 70-2
at 50.) During the interview, Johari made a copy of LG's
Arizona ID card showing that she was twenty years old. (Doc.
70-2 at 50.) Johari instructed LG to change into the swimsuit
that she was asked to bring, and left the office while she
did so. (Doc. 70-2 at 51.) After she changed, Johari returned
with a female employee and the three individuals stayed in
the office for approximately ten more minutes. (Doc. 70-2 at
51.) Johari asked LG to change into another outfit, a
strapless cocktail dress, and to “mingle” with
the guests at the Bar. (Doc. 70-2 at 51.)
Johari
and LG then went to the bar area and talked to some guests.
(Doc. 70-2 at 52.) Johari poured LG a “Mexican
Birthday” shot of hard alcohol and she drank it. (Doc.
70-2 at 52.) Johari told LG that she was hired as a promo
girl and asked her to stay at the Bar. (Doc. 70-2 at 52.) LG
stayed because “she did not feel the interview was
over” and felt that “if she left she may not get
the job.” (Doc. 70-2 at 52.) Johari continued to pour
shots for LG and she drank approximately four to five shots
of hard alcohol. (Doc. 70-2 at 52.) At some point in the
night, Johari, LG, and the female employee went back to the
office. (Doc. 70-2 at 52.) LG was not feeling well due to
drinking too much alcohol and laid down on the black leather
couch in the office and fell asleep. (Doc. 70-2 at 52.) At an
unknown time, LG woke up to someone “rubbing her on her
exposed side from her shoulder to her thigh, ” as well
as kissing her neck. (Doc. 70-2 at 53.) LG saw that it was
Johari, who was kneeling on the couch on his knees in front
of her and pulling on her waist. (Doc. 70-2 at 53.) LG told
Johari to “stop” and pushed his hand away. (Doc.
70-2 at 53.) Johari then lifted LG's dress at the bottom
and slid his hand under the dress to “grip[] her butt
cheek.” (Doc. 70-2 at 53.) Next, Johari “place[d]
his hand in between [LG's] butt cheeks rubbing against
her anus. . . . [Johari] touched [LG's] anus over her
thong underwear. [Johari] then slid his hand from [LG's]
anus to her vagina. [Johari] rubbed his hand against
[LG's] vagina over her thong underwear.” (Doc. 70-2
at 53.)
LG
again told Johari to stop and moved his hand away. (Doc. 70-2
at 53.) She got up from the couch and exited the office to
the bar area, which was deserted. (Doc. 70-2 at 53.) Johari
followed LG out of the office. (Doc. 70-2 at 53.) LG tried to
exit the bar but found that several of the doors were locked
and Johari refused to unlock them. (Doc. 70-2 at 53.)
Meanwhile, Johari tried to get LG to calm down and told her
that she was “crazy” and “drunk.”
(Doc. 70-2 at 53.) After trying three to four doors, LG
finally found an unlocked door and ran out. (Doc. 70-2 at
53.) She saw that an employee was still working at Silver
Mine Subs and asked him to call 911. (Doc. 70-2 at 53.)
Johari then arrived at Silver Mine Subs and tried to talk to
LG. (Doc. 70-2 at 53.) At the request of a Silver Mine Subs
employee, LG went inside to wait for the police. (Doc. 70-2
at 53.)
In a
photo lineup, LG positively identified Johari as the suspect
that gave her alcohol and touched her anus and vagina. (Doc.
70-2 at 54.) The police secured the front and rear entrances
of the Bar. (Doc. 70-2 at 54.) Detective Bradley Breckow was
assigned to the investigation. (Doc. 70-2 at 6.) On the
morning of October 16, Detective Breckow arranged for LG to
undergo a SANE[4] exam at the Scottsdale Family Advocacy
Center. (Doc. 70-2 at 8.) At around 8:50 A.M., Johari exited
the secured rear door of the Bar and asked police why they
were there. (Doc. 70-2 at 8.) Detective Breckow then
interviewed Johari. According to the interview summary,
Johari stated “he had just arrived at the bar and
wanted to know what was going on.” (Doc. 70-2 at 8.)
Detective Breckow questioned how Johari arrived without being
noticed by police, since both the front and rear doors of the
Bar were secured. (Doc. 70-2 at 8.) Johari stated he arrived
at the Bar after the property manager told him police
officers were there, and he came in through the front
entrance and did not see any police. (Doc. 70-2 at 8.)
Johari
told Detective Breckow that he was the owner of the Bar.
(Doc. 70-2 at 8.) When Detective Breckow told Johari that a
girl had called the police to report an incident, Johari
stated “there was no incident, however a girl had come
to the bar last night to apply for a job.” (Doc. 70-2
at 8.) Johari explained that he could not remember the
girl's name, but that she “and another promo girl
named Tejia had been drinking in the bar.” (Doc. 70-2
at 8.) Johari said he did not know how much the girl drank
because “he was not with her very much, as the girl was
drinking with Tejia.” (Doc. 70-2 at 9.) Johari insisted
that the girl was 21, “which he knew because he had
photocopied her ID.” (Doc. 70-2 at 9.) According to
Johari, “the girl got drunk and passed out on the couch
in the office.” (Doc. 70-2 at 8.) Johari then
“woke the girl up at approximately 0230 hours after she
had been sleeping for approximately 40 minutes” and
“told her she had to leave.” (Doc. 70-2 at 8.)
After she slept for 15 more minutes, she woke up,
“freak[ed] out, ” and left the bar. (Doc. 70-2 at
8.)
Johari
asked Detective Breckow what the girl had reported, and
Detective Breckow told him “she reported some touching
occurred in the bar's office after she fell
asleep.” (Doc. 70-2 at 9.) Johari insisted he had not
touched her except on her shoulder to wake her up, and
“stated specifically that he never touched her
underneath her dress.” (Doc. 70-2 at 9.) Johari also
stated, inconsistently, that he could not have touched her
because he “was never in [his] office.” (Doc. 88
at 16.) Johari informed Detective Breckow that there was a
camera inside the office. (Doc. 70-2 at 9.) According to
Johari, he told “the new girl, ” who had changed
in the office during her interview, that she was being filmed
“everywhere” in the Bar. (Doc. 70-2 at 10.)
Finally, Johari admitted that he had initially lied to the
police about his arrival in the morning. (Doc. 70-2 at 10.)
The police report noted: “He initially stated he did
not go into the office. He then reluctantly stated he went
into the office upon his arrival. After a little bit longer,
[Johari] admitted he was inside the bar all night, as he
never went home.” (Doc. 70-2 at 11.)
On
October 16, 2012, at 10:46 A.M., Detective Breckow served a
search warrant. (Doc. 70-2 at 11.) Detectives began to copy
the Bar's surveillance video from the computer on which
it was stored. (Doc. 70-2 at 11.) The police found LG's
purse outside the Bar's office, which contained LG's
Arizona ID card, as well as the Arizona ID cards of three
individuals over the age of 21. (Doc. 70-2 at 11.) Inside the
office, police found a copy of one of the over-21 IDs on the
photocopier. (Doc. 70-2 at 12.) In the office trash can,
police found two forms with LG's Arizona ID card
photocopied onto the bottom; one was ripped into pieces and
the other was crumpled. (Doc. 70-2 at 12.)
At
approximately noon, detectives noticed that the surveillance
computer was apparently being remotely accessed. (Doc. 70-2
at 12.) Although police did not touch the computer, the mouse
cursor was moving and closed the program that was copying the
surveillance video. (Doc. 70-2 at 12.) Detective Todd Bailey
observed “the portions of the surveillance video he had
been attempting to copy had been deleted, ” so he
immediately shut down the computer and seized it as evidence.
(Doc. 70-2 at 12.) Detectives were able to recover some, but
not all, portions of the deleted surveillance video. (Doc.
70-2 at 18.) After further analysis, Detective Bailey
determined that some video clips were deleted before the
remote access occurred, as the files were accessed from the
computer between 5:29 A.M. and 6:13 A.M. on October 16, 2012.
(Doc. 70-2 at 18.) According to the police report,
“[a]t that time, there had been no remote computer
access, so the files could only have been accessed by someone
sitting at the computer. [Johari] was the only person in the
bar at that time, as the bar had already been secured by
police.” (Doc. 70-2 at 18.)
Detective
Breckow reviewed the surveillance video, which the parties
provided to the Court. (Doc. 96.) The video evidence,
reviewed by the Court, shows that on October 15, at around
10:18 P.M., LG and Johari walked into the office and began
talking. Approximately half an hour later, Johari left the
office and LG changed into a bikini. LG did not look at the
camera as she changed. A few minutes later, Johari and
another woman entered the office. Johari made some
photocopies and left again with the other woman. LG, alone in
the office, changed for a second time without looking at the
camera. This time, her breast and nipple are visible on the
video. At around 11:10 P.M., LG left the office and went into
the bar area. For the next couple of hours, LG and Johari
socialized and appeared to drink alcohol continuously. At
times, they danced together on the dance floor. At 1:26 A.M.,
LG and Johari entered the office again. Both LG and Johari
sat down on the couch and Johari put his arm around LG.
Johari appeared to pull LG close such that she was lying
across his lap, but LG sat up almost immediately. Johari
grabbed LG's hand and moved it toward his leg and she
moved her hand away. Next, Johari attempted to uncross
LG's legs by putting his hand on the inside of her right
leg, picking it up, and putting it in between his own legs.
LG immediately pulled away and re-crossed her legs. The two
continued to talk and at 1:31 A.M., the video cut off.
According to the police report, the subsequent clip was not
recovered. (Doc. 70-2 at 20.)
The
video resumes at 2:01 A.M. but the camera angle is different,
as if the camera had been tilted. The video shows LG lying on
the couch, apparently asleep. For the next hour or so, the
video cuts off frequently as certain clips were not
recovered. (Doc. 70-2 at 21.) What was recovered shows LG
apparently falling in and out of sleep on the couch. On more
than one occasion, Johari touched LG while she attempted to
push him away. For example, at 2:03 A.M., Johari rubbed
LG's side and then put his hand under her dress to rub
her hip while she weakly tried to move his hand in what was
apparently a semiconscious state. About ten minutes later,
Johari rubbed LG's back, side, and thigh, and lifted up
her dress to expose her hip as LG quickly pulled her dress
back down. Just as Johari reached between LG's legs, the
video cuts off for the next five minutes. At approximately
3:22 AM, LG stood up and walked toward the door. Videos from
other cameras show her walking down the stairs and exiting
the Bar. Video evidence shows that after LG left, Johari
returned to the office and attempted to clean it, including
by rearranging the pillows on the couch and wiping down the
cushions with a towel.
On June
6, 2014, DNA results from LG's buccal and vaginal swabs
were produced. (Doc. 83-4 at 19.) The results indicated that
two sperm samples from LG's body did not match
Johari's DNA. (Doc. 83 at 63.) On July 2, 2014, police
arrested Johari. (Doc. 88-4 at 75.) The case was submitted to
the Maricopa County Attorney. (Doc. 70-2 at 35.) On July 11,
2014, a Maricopa County Grand Jury issued the following
indictments against Johari: two counts of sexual abuse, two
counts of voyeurism, one count of tampering with physical
evidence, and one count of providing alcohol to a minor.
(Doc. 70-6 at 1-3.) Johari's counsel “sent a
deviation request to prosecutor Brad Miller explaining why
the claims against Johari should be dismissed.” (Docs.
83 at 66; 83-5.) On May 19, 2016, Johari pled guilty to one
count of providing alcohol to a minor and the other counts
were dismissed. (Doc. 70-8.)
II.
The Sims Matter
On
October 11, 2015, at 1:53 A.M., Tempe police officers Kurt
Buczkowski, S. Neff and M. Momcilov were dispatched to
Johari's bar-renamed as BAC Lounge-after a call to police
reporting that two males were fighting on the back patio.
(Doc. 70-9 at 5.) Each officer authored a separate report in
connection with the incident. (70-9 at 5-12.)
According
to Officer Buczkowski, when he arrived at the bar, Johari
pointed at guest DJ Devin Sims[5] and yelled “he punched
me.” (Doc. 70-9 at 5.) The officers separated the two
men. (Doc. 70-9 at 5.) Officer Buczkowski interviewed Frank
Ramirez, a bouncer at the bar, who stated
“[Johari's] claims of assault were false and [Sims]
never punched him.” (Doc. 70-9 at 6.) Ramirez told
Officer Buczkowski that Johari was dissatisfied with
Sims' performance and ten minutes before the end of the
performance, Johari got on stage and attempted to kick out
Sims. (Doc. 70-9 at 6.) Ramirez also stated that Johari was
intoxicated while at work. (Doc. 70-9 at 6.) Next, Officer
Buczkowski talked to Odis Robinson, the resident DJ at the
Bar. (Doc. 70-9 at 6.) As Officer Buczkowski led Robinson
away, Johari yelled to Robinson: “tell him that guy
punched me in the face three times.” (Doc. 70-9 at 6.)
Robinson stated Johari was working that night and Robinson
“was with [Johari] in the DJ booth area when [Johari]
confronted [Sims] regarding his poor DJ performance.”
(Doc. 70-9 at 6.) According to Robinson, Johari “said
something” to Sims; Sims then replied “don't
talk to me like that” and punched Johari in the face
three times. (Doc. 70-9 at 6.) Officer Buczkowski also
interviewed Kevin Lewandowski, who was a managing partner
with Johari. (Doc. 70-9 at 7.) Lewandowski told Officer
Buczkowski that Johari was “operating the bar while
intoxicated.” (Doc. 70-9 at 7.) Lewandowski further
stated “that the fight that [Johari] started spilled
into a VIP booth.” (Doc. 70-9 at 7.)
Officer
Momcilov interviewed Johari, who told him the following:
Sims, who was hired as a DJ for the evening, was doing a
“horrible job” and Johari asked him to leave.
(Doc. 70-9 at 8.) Sims then “punched [Johari] with his
closed fist three times on the left side of the face and they
both fell on the ground of the DJ booth.” (Doc. 70-9 at
8.) Officer Momcilov wrote there were “[n]o marks or
bruises . . . observed on [Johari's] face during this
interview that would be consistent with his assault
allegations.” (Doc. 70-9 at 8.) Further, Johari had
“slurred speech, bloodshot watery eyes, and difficulty
articulating what had allegedly taken place prior to [police]
arriving to the scene.” (70-9 at 8.) Officer Momcilov
wrote that he was “able to smell the odor of
intoxicating beverage emanating from [Johari's] breath
while he was speaking.” (Doc. 70-9 at 8.) However,
Johari denied drinking alcohol “as he was
working.” (Doc. 70-9 at 8.) Police performed a PBT and
found Johari's BAC level was 0.089. (Doc. 70-9 at 8-9.)
Officer Momcilov also found a flask in Johari's pocket,
which tested positive for alcohol. (Doc. 70-9 at 9.) When
Officer Momcilov asked Johari “if there was any video
that may have captured the incident, ” Johari replied
there was a surveillance camera but “he was not sure if
it would have captured the incident as the camera may not
[have been] pointing in the direction of the DJ booth.”
(Doc. 70-9 at 8.)
Officer
Neff wrote that when he arrived on the scene, he removed Sims
from the back patio and escorted him down the stairs. (Doc.
70-9 at 10.) Officer Neff was approached by Ramirez, who
informed him that Sims had done nothing wrong while Johari
was drunk and “out of control.” (Doc. 70-9 at
10.) When Officer Neff asked Sims whether he had punched
Johari, Sims denied the allegations and Officer Neff observed
that “[Sims'] hands displayed no signs of physical
injury indicating that he had punched anyone or
anything.” (Doc. 70-9 at 11.) Officer Neff ...