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Phillip Charles Barham v. Town of Greybull Wyoming

July 11, 2011

PHILLIP CHARLES BARHAM, PLAINTIFF,
v.
TOWN OF GREYBULL WYOMING, GREYBULL POLICE DEPARTMENT, POLICE CHIEF BILL BRENNER ) INDIVIDUALLY, POLICE OFFICER MATT MILLER INDIVIDUALLY, AND POLICE OFFICER BEN MAYLAND, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Scott W. Skavdahl United States Magistrate Judge

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

The above-entitled matter comes before the Court on two related motions: (1) Peace Officer Defendants' Motion for Judgment on the Pleadings, Doc. 20; and (2) Motion for Judgment on the Pleadings Pursuant to Rule 12(c), Fed.R.Civ.P. by Defendants Town of Greybull, Wyoming and Greybull Police Department, Doc. 22. On May 11, 2011, the Court held a hearing on the motions. James P. Castberg of Sheridan, Wyoming appeared on behalf of Plaintiff. Larry B. Jones and Tenille L. Castle of Cody, Wyoming appeared on behalf of Defendants, Town of Greybull, Wyoming and the Greybull Police Department. Theodore R. Racines of Cheyenne, Wyoming appeared on behalf of Defendants Police Chief Bill Brenner, Police Officer Matt Miller, and Police Officer Ben Mayland. The Court, having carefully considered the motions, response, and exhibits thereto, including Plaintiff's supplement of the record, and arguments made by the parties at the hearing, and being fully advised in the premises, FINDS and ORDERS:

I. BACKGROUND

On July 27, 2009, the mother of a Greybull, Wyoming girl, T.S., contacted Deputy Elder*fn1 with the Big Horn County Sheriff's Office and reported that her daughter, D.S., who is thirteen years old, had made a disclosure during a therapy session at the Wyoming Behavioral Institute ("WBI"), that she had been sexually assaulted by a man named Charlie, later determined to be Phillip Charles Barham. (Doc. 21-1). Thereafter, Deputy Elder and Sergeant Miller, with the Greybull Police Department, with permission from T.S., interviewed D.S. at WBI in Casper, Wyoming. During the interview, D.S. verified that the man she referred to as Charlie was in fact Phillip C. Barham, and she accused Phillip Barham of having sex with her on multiple occasions some of which were at his home. D.S. drew a map of where Barham lived and described his house, including the interior. Sergeant Miller was familiar with Barham's house and noted that the description as given by D.S. was accurate. Based on the information given by D.S. in her interview, on July 29, 2009, officers with the Greybull Police Department arrested Plaintiff pursuant to an arrest warrant issued by the Circuit Court of Big Horn County, Wyoming. The Information accompanying the warrant charged Plaintiff with eight counts of sexual assault of a minor.

In investigating the charges related to D.S., officers obtained information indicating that Plaintiff may have sexually assaulted two other adult women, a woman named D.J. and D.S.'s mother, T.S. Based on the separate statements given by these two women, on August 7, 2009, Plaintiff was further charged with committing additional sexual assaults. In total, a total of twenty counts were brought, by criminal information, against Plaintiff.

Based on the statements given by each of the alleged victims, Defendant Police Sergeant Matt Miller swore out the affidavits for the three arrest warrants, as well as the search warrants for Plaintiff's person, residence, and vehicle. All of the warrants were issued by Wyoming Circuit Court Judge Thomas W. Harrington. Nineteen of the twenty charges were bound over to the District Court after the Circuit Court held preliminary hearings in August of 2009. Plaintiff was detained in the Big Horn County Detention Center for 224 days while his case was investigated.*fn2 Ultimately, in March, 2010, the County Attorney dismissed the charges, without prejudice.

Plaintiff filed his Complaint in this matter on December 2, 2010, bringing claims against Defendants for (1) unlawful arrest and unlawful detention in violation of his civil rights, pursuant to 42 U.S.C. § 1983; (2) unlawful search and seizure; (3) excessive force causing physical injury during arrest; and (4) public embarrassment, ridicule, and loss of enjoyment of life.

II. PROCEDURAL STANDARD

Defendants filed the motions for judgment on the pleadings, based on Federal Rule of Civil Procedure 12(c), on April 11, 2011. Docs. 20 and 22. Plaintiff timely filed his responses on April 26, 2011. Docs. 28 and 29. Because the parties submitted multiple exhibits, the Court finds the procedural posture in determining this matter renders it impossible for the Court to consider it as a Rule 12(c) dismissal. In their motions, Defendants ask the Court to consider several attached documents, including:*fn3 (1) Arrest Affidavit for Plaintiff, Case No. 09G--04, dated July 29, 2007 (Doc. 21--1, Exhibit A and Doc. 30--1, Exhibit No. 2); (2) Affidavit for Search Warrant of Plaintiff's Premises and Warrant for Search and Seizure, Criminal No. SW--2009--0004B, dated July 29, 2009 (Doc. 21-2, Exhibit B); (3) Information, Criminal No. CR--2009--0035B, dated July 29, 2009 (Doc. 21--3, Exhibit C and Doc. 30--1, Exhibit No. 2); (4) Warrant for Plaintiff's Arrest, Criminal No. CR--2009--0035B, dated July 29, 2009 (Doc. 21--4, Exhibit D and Doc. 30--1, Exhibit No. 4); (5) Affidavit for Search Warrant of Plaintiff's premises and Warrant for Search and Seizure, Criminal No. SW--2009--0003B, dated July 30, 2009 (Doc. 21--5, Exhibit E); (6) Arrest Affidavit for Plaintiff, Case No. 09G--104, dated August 4th, 2009 (Doc. 21--6, Exhibit F and Doc. 30--1, Exhibit No. 4); (7) Information, Criminal No. CR--2009--0036B, dated August 7, 2009 (Doc. 21--7, Exhibit G and Doc. 30--1, Exhibit No. 4); (8) Warrant for Plaintiff's arrest, CR--2009--0036B, dated August 7, 2009 (Doc. 21--8, Exhibit H); (9) Affidavit for Search Warrant of Plaintiff's Premises and Vehicle and Warrant for Search and Seizure, Criminal No. SW--2009--0005B, dated August 2, 2009 (Doc. 21--9, Exhibit I); (10)Arrest Affidavit for Plaintiff, Case No. 09G--104, dated August 5, 2009 (Doc. 21--10, Exhibit J); (11) Affidavit of David R. Chavez, M.D., dated November 30, 2009 (Doc. 21--11, Exhibit K and Doc. 30--1, Exhibit No. 3); (12) Motion for Order to Show Cause, filed by Plaintiff on August 9, 2010 in the Fifth Judicial District, Big Horn County, Wyoming (Doc. 21--12, Exhibit L); (13) Arraignment, Docket Entry, and Judgment for Plaintiff, Case No. CR--2009--0035B, dated August 10, 2009 (Doc. 21--13, Exhibit M); (14) Arraignment, Docket Entry, and Judgment for Plaintiff, Case No. CR--2009--0036B, dated August 19, 2009 (Doc. 21--14, Exhibit N); (15) Wyoming Attorney General Division of Criminal Investigation, Laboratory Examination Report, dated March 1, 2010 (Doc. 30--1, Exhibit No. 5); and (16) Wyoming Attorney General Division of Criminal Investigation, Laboratory Examination Report, dated March 4, 2010 (Doc. 30--1, Exhibit No. 6).

Rule 12(c) provides that "after the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). A motion for judgment on the pleadings implicates essentially the same legal principles as a Rule 12(b) motion to dismiss. See generally Continental Coal, Inc. v. Cunningham, 511 F.Supp.2d 1065, 1070 (D. Kan. 2007). Except in very limited circumstances, in determining a motion for judgment on the pleadings, the Court is limited to the allegations pled within the four corners of the Complaint. See e.g. Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Burnham v. Humphrey Hospitality Reit Trust Inc., 403 F.3d 709, 713 (10th Cir. 2005) (stating that on a Rule 12(b)(6) motion, a court's factual inquiry is limited to the well-pleaded facts contained in the complaint). Thus, the Court may grant a motion for judgment on the pleadings if all material issues can be resolved solely on the pleadings. However, the Court finds it necessary to also consider the exhibits attached by parties in making a determination.

"If, on a motion under Rule 12(b)(6) or 12(c) matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d). Consequently, when a party attaches exhibits to a Rule 12(c) motion, the Court generally must convert the motion into a motion for summary judgment because exhibits, such as those filed here, are not considered pleadings under the Federal Rules.*fn4 See Fed.R.Civ.P. 12(c) and Fed.R.Civ.P. 7 (delineating between pleadings, motions, and other papers). Tal v. Hogan, 453 F.3d 1244, 1265 (10th Cir. 2006) ("Ordinarily, consideration of material attached to a defendant's answer or motion to dismiss requires the court to convert the motion into one for summary judgment and afford the parties notice and an opportunity to present relevant evidence."). Therefore, the Court finds it necessary to convert Defendants' motions to summary judgment.*fn5

The Court is mindful that in converting a motion to dismiss to a motion for summary judgment, it must provide the parties "a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). The Court notified the parties of its decision to convert the motions at the May 11, 2011 hearing and provided them ten (10) days to submit any additional exhibits they wished the Court to consider. Doc. 34. On May 23, 2011, Plaintiff supplemented the record with the following: (1) an audio recording of Plaintiff's Preliminary Hearing, dated August 19, 2009*fn6 ; (2) a transcript of Plaintiff's Arraignment Proceedings, dated October 6, 2009; and (3) a transcript of Plaintiff's Motion for Bond Reduction Proceedings, dated February 2, 2010.

III. LEGAL ANALYSIS

(a) SUMMARY JUDGMENT STANDARD

Summary judgment is proper when there is no genuine issue of material fact to be resolved at trial. Fed. R. Civ. P. 56(c); Nebraska v. Wyoming, 507 U.S. 584, 590 (1993). Thus, the Court may grant summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); Nelson v. Geringer, 295 F.3d 1082, 1086 (10th Cir. 2002). "An issue of material fact is genuine where a reasonable jury could return a verdict for the party opposing summary judgment." Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 797 (10th Cir. 1997).

In applying these standards, the Court must view the evidence in the light most favorable to the party opposing summary judgment. Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996). The moving party bears the initial burden of demonstrating "the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has supported its motion for summary judgment, the burden then shifts to the non-moving party to demonstrate the existence of a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). To do so, the non-moving party must go beyond the pleadings and designate specific facts to show there is a genuine issue. Id.; Ford v. West, 222 F.3d 767, 774 (10th Cir. 2000). The mere existence of a scintilla of evidence in support of the non-moving party's position is insufficient to create a "genuine" issue of disputed fact. Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997). However, where summary judgment is sought based upon qualified immunity, the summary judgment standards are subject to a somewhat different analysis from other summary judgment rulings. Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir.2006).

(b) QUALIFIED IMMUNITY & DEFENDANTS POLICE CHIEF BILL BRENNER, POLICE OFFICER MATTER MILLER and POLICE OFFICER BEN MAYLAND

Qualified immunity shields public officials from civil damages liability "as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638 (1987); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Consequently, the qualified immunity defense must be resolved at the earliest possible stage of litigation. See Saucier v. Katz, 533 U.S. 194 (2001). The doctrine of qualified immunity "operates to ensure that before they are subjected to suit, officers are on notice that their conduct is unlawful." Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks omitted). As governmental officials, Defendants are entitled to assert a defense of qualified immunity because:

[g]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Rozek v. Topolnicki, 865 F.2d 1154, 1157 (10th Cir. 1989). "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 639.

Qualified immunity is an affirmative defense that the defendant has the burden of pleading. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Once qualified immunity is properly raised, the burden shifts to the plaintiff to show that the defendant violated a specific statutory or constitutional right and that the constitutional or statutory rights the defendant allegedly violated were clearly established at the time of the conduct at issue. See e.g., Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir.2006); Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815--16, 172 L.Ed.2d 565 (2009). Because Defendants have raised the qualified immunity defense, the Court will focus on whether Plaintiff has met his burden of showing that Defendants violated a clearly established constitutional right. To carry his burden of convincing the Court that the law was clearly established, Plaintiff "must do more than identify, in the abstract, a clearly established right and allege that the defendant has violated it."

Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir. 1988) (citing Anderson, 483 U.S. at 639). This means Plaintiff must show that a reasonable official would understand that what he was doing violated Plaintiff's right. See Pindell v. Wilson-McKee, 60 F.Supp. 2d 1244, 1252 (D. Wyo. 1999).

i. Warrant Affidavits

The first arrest affidavit and search warrant affidavit were both sworn to by Defendant Miller on July 29, 2009. Doc. 21, Peace Officer Exhibit A, Arrest Affidavit. These affidavits outline the sexual assault allegations brought by a thirteen year old girl, D.S. The affidavits, which read essentially the same, establish that on July 27, 2009, Defendant Miller was assigned to follow up on a report of sexual assault given to Defendant Police Chief Brenner. Id., ¶ 2-3. D.S.'s mother had reported to Deputy Elder of the Big Horn County Sheriff's Department that D.S. had disclosed to her therapist that she had been sexually assaulted by a man named "Charlie," later discovered to be Plaintiff. Id., ¶ 4. At the time, D.S. was at the Wyoming Behavioral Institute in Casper, Wyoming. Id. After seeking permission from D.S.'s mother, Deputy Elder interviewed D.S. at the Wyoming Behavioral Institute, at which time D.S. informed Deputy Elder that her Great Uncle, Craig Winstead, had been performing sexual acts on her since she was about eight years old.*fn7 Id., ¶ 9. D.S. told Deputy Elder that Winstead had introduced Plaintiff to her and told him "that is was okay to have sexual intercourse with D.S. because Winstead already did so on a regular basis." Id., ¶ 8. D.S. also told Deputy Elder that Winstead and Plaintiff would take turns having sexual intercourse with her and that when Winstead went to prison, Plaintiff continued to molest and have sex with her. Id., ¶¶ 10-14. D.S. was very specific and graphic in recounting the details of the sexual assaults she alleged Plaintiff had performed on her. D.S. was also very specific in describing Plaintiff's residence, where the acts allegedly occurred, and even drew an accurate map of Plaintiff's property. Id., ¶ 15. Based on D.S.'s statements, Defendant Miller believed that probable cause existed to obtain the warrants. Id., ¶ 16. The circuit court judge agreed and issued the warrants for Plaintiff's arrest, search and seizure. See Doc. 21, Peace Officer Exhibit B, Warrant for Search and Seizure, at 4.

The second set of affidavits relate to the sexual assault allegations brought by D.J.*fn8

According to the D.J. Arrest Affidavit, while executing the search warrant in the D.S. matter, Defendant Miller discovered videos on one of Plaintiff's cell phones, wherein Plaintiff had asked a woman "to expose her breasts and vagina." Doc. 21, Peace Officer Exhibit F, Arrest Affidavit, ¶ 2-3. The cell phone also contained compromising pictures of the woman. Id. That woman was later recognized to be D.J. Id. Defendant Miller then went to D.J.'s house to inquire about Plaintiff. Id., ¶ 6. As soon as Defendant Miller asked D.J. if she would talk to him about Plaintiff, she immediately began to cry and expressed fear of Plaintiff. Id. Only after Defendant Miller made clear that Plaintiff was in jail and would not be able to hurt her did D.J. agree to be interviewed. Id. D.J. told Defendant Miller that the day before she and a man named James Housler had gone to Plaintiff's house in order to earn some extra money cleaning out Plaintiff's shed. Id. After Housler left, D.J. set forth that Plaintiff told her to take some items from the shed and put them into the cellar of the empty house next door. Id. She claimed that Plaintiff followed her into the cellar, where he sexually assaulted her and then made her pose for him and touch herself while he videoed her with his cell phone. Id. ¶ 9. D.J. declared Plaintiff threatened to harm her if she told anyone about what happened in the cellar, saying "listen little girl, I have nine felonies and I won't hesitate to get one more." Doc. 1, ¶ 100.

Next, D.J. stated that Plaintiff told her to grab some paint cans from the cellar and take them over to his house. Id. She said that she did as she was told and that Plaintiff followed her. Id. She explained that she would have run, but she was afraid that Plaintiff would have caught her and hurt her. Id. D.J. told Defendant Miller that once inside Plaintiff's house, Plaintiff again sexually assaulted her. Id. D.J. insisted when she tried to fight Plaintiff off, he simply drug her to his bed in the living room where he tried to rape her. Id. Defendant Miller observed bruises on D.J.'s arms and legs that were consistent with her story. Id., ¶ 10. See also Audio Recording of Plaintiff's Preliminary Hearing, dated August 19, 2009 at approximately 29:00 (testimony of Defendant Miller describing the bruising on D.J.'s arms, wherein he explained she had three small finger-sized bruises that were consistent with someone grabbing her arm). D.J. stated Plaintiff was unable to rape her because she fought him off, so he forced her to perform oral sex on him instead. Id., ¶ 9. D.J. told Defendant Miller that Plaintiff eventually ejaculated into her mouth and that his semen came out the side of her mouth, spilling onto either her shirt, Plaintiff's bed sheet, or Plaintiff. Id. D.J. relayed to Defendant Miller that after the assault, Plaintiff drove her home in his pickup truck. ...


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