Johari v. City of Tempe

          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 ...