Hunt v. Davis

• Court: District Court, D. Arizona
• Decided: April 27, 2020
• Docket: 3:16-cv-08280
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Timothy Hunt, et al., No. CV-16-08280-PCT-GMS 11 Plaintiffs, 12 v. ORDER 13 Asher Davis, et al., 14 Defendants.

17 Pending before the Court is Defendants Asher Davis and Navajo County’s 18 (collectively “Defendants”) Motion for Summary Judgment. (Doc. 91.) For the following 19 reasons, the Motion is granted.1 20 BACKGROUND 21 I. Procedural History 22 On November 26, 2016, Plaintiff Timothy Hunt filed his complaint pursuant to 42 23 U.S.C. § 1983 alleging a claim of Fourth Amendment-based judicial deception in obtaining 24 a warrant to search for physical characteristics. The original complaint named, as 25 26

27 1 The parties have requested oral argument. Those requests are denied because the parties have had an adequate opportunity to discuss the law and evidence and oral argument will 28 not aid the Court’s decision. See Lake at Las Vegas Investors Group, Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th Cir. 1991). 1 defendants, former Sheriff Detective Asher Davis (“Davis”), Sheriff Commander Nathan 2 Christensen, Navajo County Sheriff Kelly Clark, and Navajo County. 3 In response to Defendants’ first motion to dismiss, the Court’s May 15, 2017 Order 4 declined to conclude Detective Davis was entitled to qualified immunity based on the 5 allegations in the complaint, but dismissed the claims against Navajo County, Christensen 6 and Clark because Hunt failed to allege a plausible Monell claim against the County and 7 Defendants Christensen and Clark were entitled to qualified immunity. Hunt was granted 8 leave to file an amended complaint. 9 Hunt’s First Amended Complaint continued to allege a Fourth Amendment-based 10 claim of judicial deception in obtaining a warrant but excluded the Christensens as 11 defendants. In its August 16, 2017 Order, responding to a subsequent motion to dismiss, 12 the Court determined the amended complaint plausibly pleaded that Sheriff Kelly Clark 13 ratified the allegedly unconstitutional conduct of Davis. As a result, the Court denied 14 Sheriff Clark qualified immunity and found the amended complaint stated a plausible claim against Navajo County. The Clarks and the County appealed to the Ninth Circuit Court of 15 Appeals, which reversed as to the Clarks individually, granting Sheriff Clark qualified 16 immunity in his individual capacity, and dismissed as to the County (or any person sued in 17 their official capacity) for lack of pendent jurisdiction. 18 II. Factual Background 19 From 2012 to 2014, Hunt was a Navajo County detention officer in the Navajo 20 County Jail. On April 22, 2014 a confidential informant, K.L., informed Navajo Country 21 Sheriff’s Deputies that Hunt received oral sex from “S.W.,” a female inmate, in exchange 22 for supplying her with contraband. In July 2014, after an internal investigation had been 23 completed, Davis was assigned to conduct a criminal investigation into the allegations. 24 Davis was instructed not to rely on any information obtained in the internal investigation. 25 As part of his investigation, Davis interviewed numerous witnesses and detention 26 officers. With some variation, six witnesses reported that Hunt took S.W. from her pod to 27 clean mop buckets around 3:00 a.m. on or about January 5, 2014. When S.W. returned, she 28 1 reported to numerous inmates that she had performed oral sex on an uncircumcised Hunt 2 in a room adjacent to the jail shower and had spit out Hunt’s ejaculate. Several witnesses 3 reported that soon after S.W. returned to the pod, Hunt delivered two menthol cigarettes in 4 a sandwich bag to the pod. After attending a DNA evidence collection training seminar, 5 Davis found and collected semen samples from a location matching the description of 6 where S.W. told her fellow inmates she performed oral sex on Hunt. This collection was 7 conducted nearly eight months after the alleged incident. 8 In November 2014, Davis incorporated the information learned from his 9 investigation into an affidavit used to obtain a physical characteristics search warrant. The 10 search warrant authorized the collection of DNA swabs, and blood for DNA testing to 11 compare Hunt’s DNA to the DNA contained in the samples collected by Davis. It further 12 authorized photographs of Hunt’s genitals to determine whether Hunt was circumcised. 13 Hunt claims Davis’ search warrant was unconstitutionally obtained by judicial 14 deception because his affidavit included material falsehoods and omissions. Hunt also 15 asserts the search warrant was facially invalid due to the significant time and intervening 16 events that occurred between the alleged sexual encounter with S.W. and Davis’ collection 17 of semen samples. As a result of Davis’ alleged violations of Hunt’s Fourth Amendment 18 rights, Hunt claims Davis is not entitled to qualified immunity in this action. Hunt further 19 contends that Navajo County should also be liable for the alleged Fourth Amendment 20 violations because its final policy maker ratified Davis’ allegedly unconstitutional conduct. 21 DISCUSSION 22 I. Legal Standard 23 The purpose of summary judgment is “to isolate and dispose of factually 24 unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary 25 judgment is appropriate if the evidence, viewed in the light most favorable to the 26 nonmoving party, shows “that there is no genuine issue as to any material fact and that the 27 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Only disputes 28 over facts that might affect the outcome of the suit will preclude the entry of summary 1 judgment, and the disputed evidence must be “such that a reasonable jury could return a 2 verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 3 (1986). 4 “[A] party seeking summary judgment always bears the initial responsibility of 5 informing the district court of the basis for its motion and identifying those portions of [the 6 record] which it believes demonstrate the absence of a genuine issue of material fact.” 7 Celotex, 477 U.S. at 323. Parties opposing summary judgment are required to “cit[e] to 8 particular parts of materials in the record” establishing a genuine dispute or “show[ ] that 9 the materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 10 56(c)(1). A district court has no independent duty “to scour the record in search of a 11 genuine issue of triable fact[.]” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). 12 II. Analysis 13 A. Davis – Qualified Immunity 14 “Qualified immunity shields federal and state officials from money damages unless 15 a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional 16 right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” 17 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). Hunt argues that Davis is not entitled to 18 qualified immunity because Davis violated Hunt’s clearly established Fourth Amendment 19 rights by (1) obtaining a search warrant through judicial deception; and (2) executing a 20 warrant that was facially invalid. 21 1. Judicial Deception 22 “It is clearly established that judicial deception may not be employed to obtain a 23 search warrant.” KRL v. Moore, 384 F.3d 1105, 1117 (9th Cir. 2004) (citing Franks v. 24 Delaware, 438 U.S. 154, 155–56 (1978)). “To support a § 1983 claim of judicial deception, 25 a plaintiff must show [(1)] that the defendant deliberately or recklessly made false 26 statements or omissions [(2)] that were material to the finding of probable cause.” Id. If 27 such a showing is made, qualified immunity is lost. Hervey v. Estes, 65 F.3d 784, 789 (9th 28 Cir. 1995). To reach a jury, the showing of deliberate falsity or reckless disregard must be 1 substantial. Id. at 788 (explaining that in a judicial deception case “the plaintiff must satisfy 2 a still higher standard to survive summary judgment”; he or she must make a “substantial 3 showing of deliberate falsehood or reckless disregard for truth”). The materiality question, 4 however, is reserved for the court. Id. at 789; see also KRL v. Moore, 384 F.3d 1105, 1117 5 (9th Cir. 2004) (“The court determines the materiality of alleged false statements or 6 omissions.”). To establish a falsehood or omission was material, the plaintiff must show 7 that the magistrate would not have issued the warrant without the dishonestly included or 8 omitted information. Hervey, 65 F.3d at 789. “The effect of the misrepresentations and 9 omissions on the existence of probable cause is considered cumulatively.” United States v. 10 Stanert, 762 F.2d 775, 782 (9th Cir. 1985), amended, 769 F.2d 1410 (9th Cir. 1985). 11 Hunt claims Davis’ affidavit falsely stated that the victim, S.W., “is not to leave the 12 pod.” (Doc. 92-43 at 3.) Hunt further asserts that the accusation Hunt provided another 13 inmate with Zanyx was based on unreliable information and was improperly included to 14 show a false pattern of conduct. In addition to these alleged falsities, Hunt claims Davis 15 omitted material information regarding the credibility of the witnesses. Specifically, Hunt 16 contends Davis omitted information regarding three of the witness’ criminal histories 17 involving dishonesty and one witness’s statements demonstrating bias. 18 However, even assuming Hunt can demonstrate a disputed question of fact that the 19 alleged misstatements and omissions were intentionally or recklessly incorporated into the 20 affidavit, they were immaterial. Stated differently, once the affidavit is corrected and 21 supplemented it still provided the magistrate with a substantial basis for concluding that 22 probable cause existed—entitling Davis to qualified immunity. See Advanced Building & 23 Fabrication, Inc. v. Cal. Highway Patrol, 781 Fed. Appx. 608, 610 (9th Cir. 2019) (holding 24 that the district court erred in denying a defendant qualified immunity where the alleged 25 misrepresentation in the affidavit was immaterial). 26 Taking the facts in the light most favorable to Hunt, a truthful version of Davis’s 27 affidavit would have illustrated a single event in which S.W. was removed from her pod to 28 prepare mop buckets in accordance with typical procedure. A supplemented affidavit 1 would further reveal that three of the six witness that corroborated S.W.’s story had a 2 criminal history including crimes of dishonesty,2 and that one of these three witnesses had 3 inquired during her interview how talking to Davis would “help her cause” and requested 4 that her friend, S.W., be given time off in exchange for the witness’s cooperation in the 5 investigation. The affidavit, however, would also have reflected that six witnesses 6 independently recounted that S.W. had prior flirtations with Hunt, that she had left the pod, 7 that she had claimed to have performed oral sex on Hunt during her absence, and that not 8 long after S.W.’s return Hunt delivered two cigarettes hidden in a sandwich bag. 9 “While there is no ‘numerically precise degree of certainty corresponding to 10 probable cause, . . . it is clear that only the probability, and not a prima facie showing, of 11 criminal activity is the standard of probable cause.’” Chism v. Washington State, 661 F.3d 12 380, 389 (9th Cir. 2011) (quoting Illinois v. Gates, 462 U.S. 213, 235 (1983)); see also 13 U.S. v. Henderson, 241 F.3d 638, 648 (9th Cir. 2000) (“Officers have probable cause for a 14 search when the known facts and circumstances are sufficient to warrant a man of 15 reasonable prudence in the belief that contraband or evidence of a crime will be found.”) 16 (internal quotations omitted). Witness credibility is highly relevant to the probable cause 17 inquiry. United States v. Martinez-Garcia, 397 F.3d 1205, 1216 (9th Cir. 2005) (“In 18 making [the probable cause] evaluation, we consider the credibility of the informant, 19 including his history of providing reliable information in previous investigations and any 20 prior criminal convictions for crimes of dishonesty.”). As a result, when a witness has a 21 history of dishonesty or a personal bias there must be additional evidence in the affidavit 22 to bolster the witness’s credibility or the reliability of the information. United States v. 23 Elliott, 322 F.3d 710, 716 (9th Cir. 2003). Detailed statements and corroboration are such 24 evidence. See Martinez-Garcia, 397 F.3d at 1216 (explaining that the court must also 25 “examine whether the informant’s information was bolstered by independent police 26 investigation of the tip or corroboration by other confidential informants” to determine if

27 2 Ms. Terri Hill had twice been convicted of false reporting at the time Davis wrote his affidavit; Ms. Sarah Means had been arrested and charged for a drug offense in which she 28 supplied a police officer with a fake name during her arrest; and J.P. had been arrested for stealing drugs from her place of employment. 1 the affidavit demonstrated probable cause); see also KRL, 384 F.3d at 1118 (holding that 2 omitted information regarding a witness’s criminal history, grudge against the suspects, 3 and lack of corroboration by a supposed eye witness did not materially affect a finding of 4 probable cause to support issuing a search warrant where many of the witness’s statements 5 were investigated and corroborated by other witnesses whose credibility was not 6 challenged); Lombardi, 117 F.3d at 1126–27 (holding that omitted indicia of hostility was 7 not material where the allegedly hostile witnesses’ statements were detailed, given 8 independently, corroborated by each other, and against one witness’s penal interest). 9 Any credibility concerns omitted from the affidavit are overcome by the level of 10 detail provided in the independently given statements and the extensive corroboration of 11 the statements by the jail logs and multiple other witnesses—many of whose credibility is 12 not challenged. Any false suggestion that S.W. was not to leave the pod or that there were 13 other instances of Hunt providing inmates with contraband does not vitiate the six 14 independent accounts of Hunt’s alleged misconduct with S.W. When the totality of the 15 circumstances are considered, the corrected affidavit would have provided the magistrate 16 with a substantial basis to conclude that a crime had been committed, that Hunt had 17 committed that crime, and that there was a fair probability evidence of the crime would be 18 found by the requested search. The alleged falsehoods or omissions are immaterial as a 19 matter of law; Davis is entitled to qualified immunity for his statements in the affidavit. 20 2. Execution of Warrant 21 Hunt claims Davis’ execution of the warrant violated Hunt’s Fourth Amendment 22 rights because no reasonable officer (1) “could have expected to compare Mr. Hunt’s DNA 23 profile” to any biological material collected over eight months after the alleged incident 24 from an area that had been used and cleaned a number of times since the incident; (2) 25 “would have drawn Mr. Hunt’s blood when there was so little chance of producing a 26 match”; or (3) would have taken photos of Mr. Hunt’s genitals rather than requesting a 27 declaration from Mr. Hunt with respect to whether he was circumcised. 28 / / / 1 Even if Hunt’s contentions amount to constitutional violations, Davis is entitled to 2 qualified immunity unless Hunt can demonstrate that his allegedly violated rights were 3 clearly established at the time Davis acted.3 A right is clearly established when “‘[t]he 4 contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would [have 5 understood] that what he is doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 6 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (alterations in 7 original). “Plaintiffs must point to prior case law that articulates a constitutional rule 8 specific enough to alert these deputies in this case that their particular conduct was 9 unlawful. To achieve that kind of notice, the prior precedent must be ‘controlling’—from 10 the Ninth Circuit or Supreme Court—or otherwise be embraced by a ‘consensus’ of courts 11 outside the relevant jurisdiction.” Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 12 2017). 13 Here, Hunt failed to offer a case that meets this standard. Instead, Hunt provides the 14 Court with the general principle that the Fourth Amendment prohibits unreasonable 15 searches and reasonableness is determined “by assessing, on the one hand, the degree to 16 which it intrudes upon an individual’s privacy and, on the other, the degree to which it is 17 needed for the promotion of legitimate governmental interests.” (Doc. 93 at 12) (quoting 18 United States v. Knights, 534 U.S. 112, 118–19 (2001)). However, application of general 19 principles is not sufficient to deny qualified immunity. Sharp, 871 F.3d at 910 (“The 20 Supreme Court has repeatedly instructed that we examine whether the violative nature 21 of particular conduct is clearly established by controlling precedent, not whether the 22 conduct violates a general principle of law.”) (internal quotations omitted). The only other 23 authorities provided by Hunt are two non-controlling cases suggesting that blood draws 24 and strip-like searches are more invasive than other types of searches that were available 25 to Davis at the time the warrant was executed. Notably, the cases do not hold that a search 26 3 Lower courts have discretion to choose which prong of the qualified immunity analysis 27 to address first. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). The Supreme Court cautioned lower courts to “think carefully before expending ‘scarce judicial resources’ to 28 resolve difficult and novel questions of constitutional or statutory interpretation that will ‘have no effect on the outcome of the case.’” Id. 1 must be conducted in the least invasive manner or that blood draws or strip-like searches 2 are per se unreasonable under like circumstances. Thus, not only are Hunt’s cases non- 3 controlling, but they also provide little more than general principles of law. Hunt failed to 4 provide any authority that would have informed Davis that his particular conduct executing 5 the warrant in this case was unlawful. Because Hunt has not met his burden to establish his 6 allegedly violated rights were clearly established at the time of the alleged misconduct, 7 Davis is entitled to qualified immunity and summary judgment. 8 B. Navajo County 9 A municipality may be liable for constitutional violations under § 1983 if a final 10 policy maker ratifies unconstitutional conduct. Clouthier v. Cty. of Contra Costa, 591 F.3d 11 1232, 1249–50 (9th Cir. 2010) (quoting Monell v. New York City Dept. of Soc. Servs., 436 12 U.S. 658, 708 (1978)), overruled on other grounds, Castro v. Cty. of Los Angeles, 833 F.3d 13 1060 (9th Cir. 2016). Hunt argues that the Navajo County should be liable for Davis’ 14 allegedly unconstitutional conduct because the County’s final policy maker, Sheriff Kelly 15 Clark,4 “ratified the acts of Defendant Davis in procuring and executing the search 16 warrant.” (Doc. 93 at 13.) With respect to Davis’ procurement of the search warrant, Hunt’s 17 ratification claim is based on Sheriff Clark’s alleged statements approving of the warrant 18 application and the facts alleged therein. However, because the Court has concluded the 19 falsehoods and omissions in the affidavit were not material, there is no constitutional 20 violation upon which a ratification claim can be based. 21 To the extent Hunt asserts Sheriff Clark ratified Davis’ allegedly unconstitutional 22 execution of the warrant, Hunt has not pointed to any evidence in the record to support 23 such a claim. To demonstrate ratification, Hunt must provide some evidence of a conscious, 24 affirmative choice by the policymaker to approve Davis’ decision and the basis for it. 25 Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992). Hunt has provided a recording 26 of Davis saying “the Sheriff is going to say this is a golden case” after Davis executed the 27 search warrant and learned Hunt was uncircumcised. A statement from Davis speculating

28 4 It is undisputed that Sheriff Clark was the final policy maker for Defendant Navajo County at all relevant times. 1 || about what the Sheriff may think of the evidence is not evidence of affirmative or deliberate 2|| conduct by Sheriff Clark. Sheriff Clark’s failure to discipline Davis for his conduct 3 || similarly fails to demonstrate ratification. /d. (finding no ratification where the policymaker 4|| failed to overrule or object to the subordinate’s conduct because some evidence of 5 || affirmative or deliberate conduct is required). Because Hunt has not demonstrated that a 6|| genuine issue of fact exists with respect to Sheriff Clark’s ratification of any alleged 7\| unconstitutional conduct, Defendant Navajo County is entitled to summary judgment. 8 CONCLUSION 9 Davis is entitled to qualified immunity for procuring and executing the warrant, and Hunt has failed to demonstrate a disputed issue of material fact exists with respect to 11 |) Navajo County’s ratification of Davis’ alleged misconduct. 12 IT IS HEREBY ORDERED that Defendants Asher Davis and Navajo County’s 13} Motion for Summary Judgment (Doc. 91) is GRANTED. 14 IT IS FURTHERED ORDERED directing the Clerk of Court to enter judgment 15} accordingly and terminate this action. 16 Dated this 27th day of April, 2020. 17 Wi, 18 A Whacrsay Fotos 19 Chief United States District Judge 20 21 22 23 24 25 26 27 28

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