Opinion
Case No. 2:03-CV-508 TC, Consolidated with 2:03-CV-707-PGC and, No. 2:03-CV-708-PGC.
February 8, 2005
ORDER
This lawsuit arises out of an arson investigation of a fire that destroyed the home of Plaintiff Charles Schultz. Mr. Schultz and the other Plaintiff in this case, Robert J. Pett, were charged with aggravated arson. The charges were later dismissed. Plaintiffs brought this action primarily under 42 U.S.C. § 1983 against Defendant James Dudzinski, an investigator for the Utah State Fire Marshall, and Defendant Steve Ivie, the Wasatch County Fire Marshall. Plaintiffs claim that Defendants violated their constitutional rights by causing them to be charged and arrested on the basis of an affidavit that did not establish probable cause and by causing Mr. Pett to be interrogated without counsel.
This matter was consolidated from three separate cases: Pett v. Dudzinski, 2:03-CV-508-TC, Pett v. Ivie, 2:03-CV-707-PGC, and Schultz v. Dudzinski, et al., 2:03-CV-708-PGC. (See Mar. 9, 2004 Order, Docket No. 11, 2:03-CV-508-TC.)
Plaintiffs also bring state law claims of libel and slander.
Although the Plaintiffs allege that the actions of the Defendants violated the Fourteenth Amendment, along with the Fourth and Sixth Amendments, the court will analyze the motions under the Fourth and Sixth Amendments, which provide the specific Constitutional guarantee at issue.
The matter is now before the court on the Defendants' motions for summary judgment and their motions for judgment on the pleadings. Among other things, the Defendants raise the defense of qualified immunity. For the reasons set forth below, the court grants Defendants' motions.
The Defendants also filed motions to strike parts of the affidavits and certain exhibits submitted by the Plaintiffs in opposition to Defendants' motions. The court agrees with Defendants that some of the challenged material is inadmissible, primarily because it is hearsay. Much of the challenged evidence was not relevant to the issues and the court did not consider it. For the evidence that was relevant, the court has noted in the body of this Order whether the evidence is admissible and whether it was considered.
FACTUAL BACKGROUND
On May 1, 2002, Mr. Schultz's home, located in Cedar City, Utah, was destroyed by fire. Steve Ivie, the Wasatch County Fire Marshall, went to the fire scene at about 2:00 a.m. that morning. After his arrival, Mr. Ivie reported the fire to the State Fire Marshall's Office. James Dudzinski, an investigator with the State Fire Marshall's Office, came to the fire scene later that morning and began an investigation. Although Mr. Ivie assisted Mr. Dudzinski in the investigation, he conducted no separate, independent investigation. He prepared no written reports or affidavits in connection with the investigation.
Mr. Dudzinski concluded that Robert Pett had set the fire at the direction of Mr. Schultz. On July 12, 2002, Mr. Dudzinski submitted an affidavit in support of complaints charging Mr. Schultz and Mr. Pett with arson and seeking warrants for their arrests. Pursuant to those warrants, Mr. Pett and Mr. Schultz were arrested on August 15, 2002.
Following Mr. Pett's arrest, Lynn Borg, Mr. Dudzinski's supervisor, questioned Mr. Pett. Mr. Dudzinski was in an adjoining room, watching the interrogation. Mr. Ivie was not present. Mr. Pett refused to answer Mr. Borg's questions. According to Mr. Pett, before the questioning began, he was not advised of his rights as required by Miranda v. Arizona, 384 U.S. 436 (1966).
The charges against the two men were later dismissed.
DISCUSSION
Standard of Review
When a claim of qualified immunity is raised in the context of a motion for summary judgment, the court must first determine whether the plaintiff has sufficiently asserted the violation of a constitutional right in his complaint. Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995). Then, if the plaintiff has done so, the court must determine whether the asserted right was clearly established at the time the defendant acted. Id. Deciding this "purely legal question permits courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive, and time consuming preparation to defend the suit on its merits." Id. (quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)) (internal quotation marks omitted).
Fourth Amendment Claim
Plaintiffs contend that the Defendants violated their Fourth Amendment right to be free from illegal seizure. Specifically, Plaintiffs maintain that the affidavit Mr. Dudzinski signed and submitted in support of their arrests ("probable cause affidavit") did not establish probable cause and contained false information.
As an initial matter, it is clear that Mr. Ivie is entitled to qualified immunity and summary judgment on this claim. All of the admissible evidence in the record shows that Mr. Ivie did not take part in any way in preparing the probable cause affidavit. He was not involved in the actual drafting of the probable cause affidavit nor did he provide information used in the drafting of the document. (Aff. of Steve Ivie, ¶¶ 19-23, Docket No. 42.) There is simply no evidence of an affirmative link between Mr. Ivie's conduct and any constitutional violation based on the probable cause affidavit. See Stidham v. Peace Officer Standards Training, 265 F.3d 1144, 1156-57 (10th Cir. 2001) (affirmative link between defendant's conduct and the alleged constitutional violation must be alleged in the complaint and proved later through evidence);Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) ("A causal connection, or an affirmative link, between the misconduct complained of and the official sued is necessary" to establish personal liability under § 1983) (citing Rizzo v. Goode, 423 U.S. 362, 371 (1976)).
The probable cause affidavit reads as follows:
The undersigned affiant, Arson Investigator Jim Dudzinski, being first duly sworn, states and deposes under oath as follows:
1. I am employed by the Utah Department of Public Safety, Office of the State Fire Marshall, and am assigned to arson investigations throughout the State of Utah.
2. During the evening hours of April 30, 2002, and the morning hours of May 1, 2002, a residence located at 815 West 3000 South, Heber, completely burned. The firefighters reported that the fire was suspicious in origin. I was assigned to investigate.
3. My investigation has revealed that the fire was started around 9:00 p.m. on April 30th, that it smoldered in the home until around 2:00 a.m., May 1st, and then the entire home was completely engulfed in flames and consumed within twenty minutes.
4. This burn pattern indicates that the house was set afire by the use of an ignitable liquid which was placed in several places throughout the house.
5. An accelerant detection canine brought to the scene after the burn alerted to several places throughout the house indicating that it detected the presence of an ignitable fluid.
6. Samples from the basement floor were sent to the Utah State Crime Lab and an independent laboratory. The samples sent to the independent laboratory came back positive for ignitable liquid. The sample sent to the State Crime Lab came back negative for ignitable liquid. The personnel from the State Crime Lab indicated to me that it was probable that in the month it took for them to test the material, any ignitable fluid could have evaporated.
7. I personally smelled a portion of carpet pad that remained in the basement of the burned residence and detected an odor of ignitable liquid that smelled like gasoline.
8. The home that burned belonged to a Charles A. Schultz. His friend, Robert Jensen Pett, lived from time to time with him in the home.
9. Robert Jensen Pett was the last individual in the residence, he having left for the last time around 9:00 p.m., on April 30th.
10. The owner, Charles Schultz, left the home at around 8:00 p.m. for a four-day trip to Bicknell, Utah.
11. According to Charles Schultz's ex-girlfriend, who had also lived in the house until the Spring of 2001, Mr. Schultz was not gainfully employed, and was living off of her employment. Mr. Schultz was, and is, an attorney admitted to practice in the State of Utah, but he was not practicing law very actively.
12. When Mr. Schultz and his girlfriend separated, they agreed that she was owed $75,000 equity in the home, because they used the proceeds from her home to live off of for a period of time and then to purchase the Heber home.
13. The Heber home was originally purchased by Mr. Schultz in May of 1999 for $240,000, when the home was appraised for $286,114.
14. Mr. Schultz refinanced the home in October of 2000 for approximately $300,000.
15. Mr. Schultz refinanced the home again in January of 2002 for $450,000. He obtained an appraisal at the time for $444,100 from a client he was doing legal work for. He used the proceeds from this refinance to pay his ex-girlfriend her $75,000, and the remainder he kept for himself to live off of.
16. His mortgage on this last loan was $3,866.19 per month for the first twenty-four months, after which the interest rate would be adjusted.
17. Mr. Schultz made the March 1, 2002, payment on this mortgage. That was the only payment he made.
18. Mr. Schultz's insurance policy on his home with Bear River Insurance Company, was cancelled on July 19, 2001, for non-payment. He was without insurance from July, 2001, to January 11, 2002. On January 11, 2002, he obtained a policy from United Underwriters in the amount of $450,000. This policy is cancelled on February 8, 2002, for failure to respond to their request for information relating to the home.
19. On February 8, 2002, Mr. Schultz obtained a policy from Chubb Insurance Company in the amount of $700,000 for the dwelling and $350,000 for the contents.
20. Chubb required a home visit by an inspection company to do a "Dwelling Evaluation." This evaluation is meant to justify the amount of insurance on the home and is to be done within the first 30 days of the policy.
21. Castle Inspection service attempted to perform an evaluation but did not get the required confirmation from Mr. Schultz. On April 17, 2002, Mr. Schultz finally called Castle Inspection and informed them that he would be available of [sic] May 2, 2002, for them to come to the residence for the evaluation.
22. On April 30, 2002, Mr. Schultz left the home for a four-day trip to Bicknell, Utah, despite his appointment with Castle Inspection Service that had been set for May 2nd.
23. In my inspection of the home, although the home was reported to have once contained several bedroom sets and substantial furniture, virtually no remnants of his property were found in the home. Particularly, his guns, gun safe, four computers, jewelry, expensive cowboy boots, etc., were all absent from the remains. I was able to find only one mattress bed-spring, one computer hard drive, and some exercise equipment. This indicates that he had moved a substantial amount of his property out of the home prior to the fire. He also told a friend that his gun collection was okay because [the guns] had been moved.
24. From this evidence, it appears that (1) the house was intentionally set afire, (2) the house was set afire by Robert Pett, and (3) Robert Pett set the house afire at the request of Charles Schultz.
25. I would ask for a warrant for the arrest of Charles Schultz and Robert Pett for Aggravated Arson, a First Degree Felony.
(Probable cause aff., attached as Ex. B to Def. Dudzinski's Mem. in Supp. of Mot. for Partial Summ. J.)
The information in the probable cause affidavit relates to three general areas: (1) Mr. Schultz's motives for causing the fire; (2) the basis for Mr. Dudzinski's belief that the fire was the result of arson; and (3) the actions of Mr. Schultz and Mr. Pett before the fire began. Plaintiffs contend that the following information was false:
The court will address only that information that was material and relevant to a finding of probable cause.
1. Mr. Schultz's Alleged Motive for Causing the Fire (Probable cause aff. ¶¶ 11-19)
a. Mr. Schultz's Mortgage Payments
Plaintiffs contend that Mr. Dudzinski had no evidence to support his allegation that Mr. Schultz was behind in making his mortgage payments (an allegation which Mr. Dudzinski now admits was not accurate). (Decl. of James Dudzinski at ¶ 7, attached as Ex. C to Def. Dudzinski's Mem. In Supp. of Mot. For Summ. J.) Mr. Dudzinski has provided evidence that he based this statement on a conversation he had with a representative of the mortgage company, Nova Star. (Id. at ¶ 6;see also interview notes, attached as Ex. D to Def. Dudzinski's Mem. In Supp. of Mot. For Summ. J.)
In response to Mr. Dudzinski's argument that he had a reasonable basis for his statement, Plaintiffs have submitted evidence that Mr. Dudzinski requested that a subpoena be issued for Mr. Schultz's bank records. (Aff. of James Dudzinski and Statement of Good Cause, ¶¶ 7 9, attached as Ex. 3 to Pls.' Am. Mem. in Opp'n to Def. Dudzinski's Mot. for Partial Summ. J. [hereinafter Pls.' Am. Opp'n Mem.].) But there is nothing in the record showing what records, if any, Mr. Dudzinski actually received.
b. Insurance Coverage
Plaintiffs argue that Mr. Dudzinski gave false information concerning the insurance coverage on the home. Examination of Plaintiffs' arguments show that Mr. Dudzinski was correct when he stated that Mr. Schultz had "obtained a policy from Chubb Insurance Company in the amount of $700,000 for the dwelling and $350,00 for the contents." (Probable cause aff. ¶ 19; Pls.' Am. Opp'n Mem. at xiii-xiv, ¶ 6.)
Although Plaintiffs are correct that the record supports Mr. Schultz's claim that he allowed his policy from United Underwriters to lapse on February 8, 2002, because he had obtained another policy from Chubb Insurance Company, Mr. Dudzinski includes that information in the probable cause affidavit. (Probable cause aff. ¶¶ 18-19.)
2. The Basis for Mr. Dudzinski's Belief that the Fire was the Result of Arson (Probable cause aff. ¶¶ 4-7)
Plaintiffs contest Mr. Dudzinski's statement that analysis done by an independent laboratory showed that one of three samples of the carpet showed the presence of an accelerant. Plaintiffs rely on the declaration of Jason Jensen in which he claimed to recount statements made to him by personnel of both the state crime laboratory and the independent laboratory as proof that no accelerant was found in the samples. (Decl. of Jason Jensen, attached as Ex. 11 to Pls.' Am. Opp'n Mem.) But this evidence is inadmissible hearsay and cannot be considered for the truth of the matter asserted. Moreover, Plaintiff submitted a report from an investigator for Chubb Insurance Company. This report, however, confirms Mr. Dudzinski's statement. The investigator wrote, "Also, a `control' sample of unburned carpet pad was taken from the west/center section of the basement. . . . These were sent for laboratory analysis. Subsequent findings indicated the `control' sample tested positive for the presence of a medium petroleum distillate. . . . The fact that a hydrocarbon was found in the control confirms the the [sic] presence of an accelerant." (May 30, 2002 Chubb Ins. Co. Prelim. Report at 5, attached as Ex. 12 to Pls.' Am. Opp'n Mem.)
Plaintiffs claim that Mr. Dudzinski's statement that he smelled gasoline on the carpet pad "has to be a lie." (Pls.' Am. Opp'n Mem. at xv ¶ 9.) They offer no admissible evidence in support of their contention, relying only on Mr. Jensen's inadmissible hearsay statements and other conclusory arguments.
Plaintiffs' challenge to Mr. Dudzinski's statement that a dog "alerted to several places" at the scene (see probable cause aff. ¶ 5) is also unsupported by the evidence. (See Pls.' Am. Opp'n Mem. at 3-4.) The report of the investigator from the Chubb Insurance Company, submitted by the Plaintiffs themselves, confirms that the dog "made several indications of `positive hits.' A positive hit was described by the dog's owner as an area(s) in which the dog may have detected a hydrocarbon based accelerant." (Chubb Ins. Co. Prelim. Report at 5.)
3. The Actions of Mr. Schultz and Mr. Pett Before the Fire Began (Probable cause aff. ¶¶ 8-10, 21-23)
Plaintiffs have produced evidence that although Mr. Schultz did, in fact, leave on April 30, 2002, on a trip to Bicknell, Utah, he planned to return to meet the representative from Castle Inspection Service on May 1 or 2, 2002. (See Aff. of Robert Pett ¶ 7, attached as Ex. 1 to Pls.' Am. Opp'n Mem.) But that dispute is not material. The information that was important to a finding of probable cause is undisputed: the inspection of Mr. Schultz's home was scheduled to occur shortly before the fire.
Similarly, although Plaintiffs contest Mr. Dudzinski's statement that Mr. Pett left Mr. Schultz's home "around 9 p.m. on April 30th," (Probable cause aff. ¶ 9), Mr. Pett's own statement supports Dudzinski's statement. Mr. Pett described how he initially left the home with Mr. Schultz at about 8:15 p.m. Then shortly thereafter, Mr. Pett returned for a bag that he had forgotten, and, finally, after leaving the home, went to a local market at about 9:30 p.m. (See Pls.' Am. Opp'n Mem. at xxiv, ¶ 8.)
Plaintiffs argue that Mr. Dudzinski's statement that the fire began "around 9 p.m." (Probable cause aff. ¶ 3) was unsupported by any evidence. But Mr. Dudzinski has submitted the witness statements of Alexandrea, Bunny and Lisa Pressgrove as evidence that he had a basis for his statement. (See Ex. 15 to Dudzinski Dep., attached as Ex. H to Def. Dudzinski's Mem. in Supp. of Mot. For Partial Summ. J.) Although Plaintiffs contend that these witnesses are not reliable, they do not dispute that these witnesses told Mr. Dudzinski that the fire began around 9 p.m.
Plaintiffs challenge Mr. Dudzinski's allegation that Mr. Schultz had moved much of his property, including a gun collection, from his home before the fire. (See Probable cause aff. ¶ 23.) In support of the allegations, Mr. Dudzinski submitted notes that appear to be made during his investigation. These notes indicate that various witnesses described property that Mr. Schultz had in his home before the fire. (See Ex. O attached to Def. Dudzinski's Mem. in Supp. of Mot. for Partial Summ. J.) The Plaintiffs have provided no evidence to contradict Mr. Dudzinski's evidence. And they apparently agree that Mr. Schultz had moved his gun safe out of the house six months before the fire. (See Pls' Am. Opp'n Mem. at xvi, ¶ 12.)
Much of the evidence submitted by the parties, including these notes, were not authenticated as required by Federal Rule of Evidence 901. But Plaintiffs did not object to the notes on that ground. In addition, the court considers this evidence not for the truth of the matter asserted, but only for the fact that the statements were made. See 5 Jack B. Weinstein Margaret A. Berger, Weinstein's Federal Evidence ¶ 801.11[5][a] (Joseph M. McLaughlin 2d ed. 2004).
Plaintiffs also contend that Mr. Dudzinski's statement was false because, according to Plaintiffs, Mr. Dudzinski could not have investigated the debris at the fire scene. But Plaintiffs rely simply on conclusory statements and photographs showing piles of debris stacked around the house. (See Pls.' Am. Opp'n Mem. at xvi, ¶¶ 11-12.) This evidence does not show that Mr. Dudzinski did not examine the fire debris.
Although Plaintiffs spend much time and effort in denouncing Mr. Dudzinski for his statement that Mr. Pett "lived from time to time" with Mr. Schultz (Probable cause aff. ¶ 8), Mr. Pett testified in his affidavit that he "would stay overnight on occasion when I was helping Charles [Schultz] work on the home and when Lisa Spivey asked me to stay there when Charles was out of town, but I never lived there." (Pett Aff., attached as Ex. 1 to Pls.' Am. Opp'n Mem., at ¶ 6.) It appears that the dispute between the parties is one of semantics and is not material.
With these facts in mind, the court must consider that the Tenth Circuit has instructed that "[t]o impeach an otherwise valid warrant on the ground that it was issued on specified information that was false and critical to the finding of probable cause requires proof that the affiant seeking the warrant knew that the challenged information was false or that he had a reckless disregard for its truthfulness." Beard v. City of Northglenn, Colorado, 24 F.3d 110, 114 (10th Cir. 1994) (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)).
In Beard, following the dismissal of criminal charges against him, the plaintiff brought an action under 42 U.S.C. § 1983 against the defendants, who were detectives with the City of Northglenn and who conducted an investigation of plaintiff. At the conclusion of their investigation, the defendants were convinced that plaintiff had committed fraud. They prepared an affidavit and application for a warrant to arrest the plaintiff. Five months later, defendants discovered that plaintiff was innocent and the charges were dismissed.
The plaintiff in Beard claimed that the defendants violated his Fourth Amendment right to be free from unlawful seizure. In particular, as proof that his Fourth Amendment right was violated, the plaintiff pointed to defendant Neal's handling of handwriting samples plaintiff submitted for analysis. The handwriting samples included a number of documents signed by the true perpetrator of the fraud (whose identity was never discovered) and one document that the plaintiff had actually signed. Neal mistakenly told the handwriting expert that many of the documents had been signed by plaintiff. The handwriting expert, apparently relying on Neal's erroneous statement, told Neal that all of the documents had been signed by one person. This information was included in the application for the warrant. (Beard, 24 F.3d at 116.) According to the plaintiff, this and other errors in the affidavit caused the warrant to be misleading and violative of his Fourth Amendment rights.
The district court in Beard held that the defendants were entitled to qualified immunity and granted their motions for summary judgment. The Tenth Circuit Court of Appeals affirmed. Although the court recognized that there were errors in the affidavit, it pointed out that "[u]nder the Fourth Amendment our inquiry is focused neither on the existence nor the consequence of Neal's error but on the intention behind it." Id. at 116. The court held that for the plaintiff to recover, he must show that the defendants knew that the information in the warrant was wrong or entertained serious doubts concerning the truth of the information. Id. Claims of negligence are insufficient to prove a constitutional violation. Id. at 115.
When the record in the present case is compared to the facts in Beard, it is clear that Mr. Dudzinski is entitled to qualified immunity on Plaintiffs' claims based on the probable cause affidavit. Mr. Dudzinski has shown that he had evidence supporting the statements he swore to in the probable cause affidavit. Although Plaintiffs have challenged this evidence, they have not produced sufficient evidence to establish that Mr. Dudzinski had any doubts about the accuracy of the evidence or the veracity of the statements he made. Certainly, Plaintiffs have failed to prove that Mr. Dudzinski knowingly made false statements or acted with reckless disregard for the truth. See id. at 114.
Sixth Amendment Claim
Mr. Pett contends that his Sixth Amendment right was violated when he was interviewed without first being advised of his rights pursuant toMiranda v. Arizona, 384 U.S. 436 (1966), and when he was denied the right to counsel during the interrogation. It is undisputed that during the questioning, Mr. Pett made no statement and neither Mr. Pett nor Mr. Schultz went to trial on the charges (the charges were dismissed). Further, it is undisputed that neither Defendant was in the interrogation room or conducted the questioning of Mr. Pett.
Defendants attack this claim on two grounds. First, they argue that because Mr. Pett made no incriminating statements that were used against him at a criminal trial, he has suffered no injury and his § 1983 claim fails. Second, they contend that even if Mr. Pett could raise a claim under § 1983, the questioning was conducted by Mr. Borg and there is no admissible evidence of their involvement.
The court agrees with the Defendants that Plaintiffs have submitted no admissible evidence that Defendants participated with Mr. Borg in the questioning. Mr. Ivie stated in his affidavit that "I never interrogated Plaintiffs in any manner. Specifically, I never asked Mr. Pett any questions at any time related to the arson investigation as referenced in his amended complaint." (Aff. of Steve Ivie (Docket No. 42) ¶ 24.) Similarly, Mr. Dudzinski stated in his declaration that his supervisor Lynn Borg, an investigator with the Utah State Fire Marshall's Office, questioned Mr. Pett. Mr. Dudzinski watched the questioning through a two-way mirror. (Dudzinski Decl. ¶¶ 9-10, attached as Ex. C to Def. Dudzinski's Mem. in Supp. of Mot. for Partial Summ. J.) Mr. Dudzinski swore that "I did not participate in the questioning of Mr. Pett. Nor did I instruct Mr. Borg with regard to any aspect of the questioning." (Id. at ¶ 11.)
To contest Mr. Dudzinski's statements, Plaintiffs submitted the statement of Mr. Pett who recounted certain statements that Mr. Borg allegedly made to him to the effect that he was conducting the questioning at the direction of the Defendants. (Aff. of Robert Pett ¶¶ 10-12, attached as Ex. 19 to Pls.' Am. Opp'n Mem.) These statements are inadmissible hearsay and therefore, the court will not consider them.
Accordingly, the evidence submitted by the Defendants that they were not participants in the alleged unconstitutional questioning of Mr. Pett is uncontroverted, and they are entitled to summary judgment on this claim. "Section § 1983 creates a cause of action based upon personal liability and predicated upon fault. An individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged constitutional deprivation." Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) (internal citations omitted) (emphasis in original).
Because of the court's decision on this claim, the court need not reach Defendants' other argument.
Libel and Slander Claim
Plaintiffs assert that Defendants' actions constitute libel and slander. Although these theories appear to be brought under 42 U.S.C. § 1983, Plaintiffs argued in their responsive pleading that they are bringing this claim as a state law claim. (See Pls.' Mem. in Opp'n to Ivie's Mot. for Summ. J. at 18.) Accordingly, the court declines to exercise supplemental jurisdiction over this claim. See 28 U.S.C. § 1367(c)(3).
ORDER
The court grants the Defendants' Motions for Summary Judgment and Motions for Judgment on the Pleadings. The court dismisses without prejudice Plaintiffs' state law claim of libel and slander.