United States District Court, W.D. Washington
[Copyrighted Material Omitted]
For Clyde Ray Spencer, Matthew Ray Spencer, Kathryn E. Tetz, Plaintiffs: Douglas H Johnson, Kathleen T Zellner, LEAD ATTORNEYS, PRO HAC VICE, KATHLEEN T. ZELLNER & ASSOCIATES, Downers Grove, IL; Daniel Davies, DAVIS WRIGHT TREMAINE (SEA), SEATTLE, WA.
For Sharon Krause, Detective (Clark County), Defendant: Guy Bogdanovich, LEAD ATTORNEY, LAW LYMAN DANIEL KAMERRER & BOGDANOVICH, OLYMPIA, WA.
For Michael Davidson, Sergeant (Clark County), Defendant: Jeffrey A.O. Freimund, LEAD ATTORNEY, FREIMUND JACKSON TARDIFF & BENEDICT GARRETT, OLYMPIA, WA.
ORDER GRANTING IN PART AND DENYING IN PART KRAUSE'S MOTION FOR SUMMARY JUDGMENT
BENJAMIN H. SETTLE, United States District Judge.
This matter comes before the Court on Defendant Sharon Krause's (" Krause" ) second motion for summary judgment (Dkt. 139). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants in part and denies in part the motion for the reasons stated herein.
I. PROCEDURAL HISTORY
On June 2, 2012, Plaintiffs Clyde Ray Spencer (" Mr. Spencer" ) and his two children, Matthew Ray Spencer (" Matthew" ) and Kathryn E. Tetz (" Kathryn" ), filed a complaint against Krause, a former detective for the Clark County Sheriff's Office (" Sheriff's Office" ) and five other named Defendants, including John and Jane Does 1 through 10. Dkt. 1.
The lawsuit alleges state tort claims and violations of federal civil rights. Dkt. 1 at 45-67. Mr. Spencer alleges seven causes of action under 42 U.S.C. § 1983 (" § 1983" ), plus four state law claims. Id . at 45-65. His federal claims are for malicious prosecution, deprivation of due process, " destruction or concealment of exculpatory evidence," conspiracy, " failure to intervene, false arrest, and false imprisonment" and conspiracy. Id . at 45-58, 289-349. His state law claims are for malicious prosecution, intentional infliction of emotional distress (" IIED" ), conspiracy, and defamation. Id . at 59-65, 350-82. These federal and state claims are alleged against all Defendants except Shirley Spencer, who is a named Defendant only as to Mr. Spencer's § 1983 conspiracy claim and his state law claims for IIED and conspiracy. See id . Kathryn and Matthew allege state law claims for loss of consortium. Id . at 66-67, 383-9. Their claims are alleged against all Defendants, except Ms. Spencer. Id .
On May 23, 2012, Krause filed a motion for summary judgment. Dkt. 65. On June 18, 2012, Plaintiffs filed a response to Krause's motion and requested a continuance. Dkt. 72. On June 22, 2012, Krause
filed a reply. Dkt. 83. On July 2, 2012, Plaintiffs filed a surreply. Dkt. 87.
On October 16, 2012, the Court issued an order granting in part and denying in part Krause's motion for summary judgment and Spencer's motion to continue. Dkt. 93. In that order, the Court dismissed all state law claims against Krause, permitted Spencer to pursue further discovery on all § 1983 claims, consistent with the findings the Court had made, and denied without prejudice Krause's request for summary judgment based on qualified immunity. See id. at 27-28.
On January 16, 2013, Krause filed the instant motion for summary judgment. Dkt. 139. On March 21, 2013, Spencer filed a response in opposition to Krause's motion. Dkt. 166. On April 12, 2013, Krause filed a reply brief.  Dkt. 171.
II. FACTUAL BACKGROUND
As multiple Court orders reflect, this case has a rather extensive background involving allegations that take place over the span of almost thirty years. In 1985, by way of an Alford plea, Mr. Spencer was convicted of multiple counts of sexually abusing his children Matthew, then age nine, and Kathryn, then age six, and his step-son Matthew Hansen (" Hansen" ), then age five, and sentenced to life in prison. Dkt. 1 at 6; 63-8; & 63-9. Subsequently, Mr. Spencer filed numerous petitions with the state and federal courts challenging his arrest, conviction, and incarceration.
A. Initial Allegations
Mr. Spencer is a former police officer of the Vancouver Police Department (" VPD" ). Dkt. 63-3 at 2. In the summer of 1984, while he was employed by the VPD, Mr. Spencer and his now former wife, Shirley Spencer (" Shirley" ), and Hansen were visited by Kathryn and Matthew, children from his prior marriage to DeAnne Spencer (" DeAnne" ). Dkt. 1 at 6-7. Upon Mr. Spencer's return from a seminar, Shirley advised him that Kathryn made inconsistent allegations of sexual abuse, including ones against him. Id. at 7 & 63 at 2. The allegations were reported to Child Protective Services (" CPS" ) in Vancouver, Washington and to CPS in Sacramento, California, where the children resided with their biological mother, DeAnne. Id.
On August 29, 1984, Detective P. Flood (" Flood" ) of the Sacramento County Sheriff's Department, due to a referral from Sacramento CPS regarding allegations of abuse by Kathryn Spencer, made contact by phone with Mr. Spencer and Shirley. Dkt. 158 at 5-9. In his report, Flood records telephonic interviews with Mr. Spencer and Shirley. Id . In part, Flood indicates that Shirley reported to him that Kathyrn had disclosed allegations of sexual abuse by her father, including, for example, that " daddy wanted me to rub his pee pee and he rubbed [mine]" and that " she sat on her father's lap with her father's penis between her legs." Id . at 9. Shirley also told Flood that Kathryn reported that " [s]he put it in her mouth and he tried to put his penis into her pee pee but it hurt." Id . Additionally, Shirley reported that Kathryn told her about her " daddy kissing her on her pee pee" and that it happened " lots of times." Id . Shirley also told Flood that Kathryn had made allegations against her mother DeAnne, including that " her mom wanted her to rub her titties and pee
pee." Id . According to Flood's report, Shirley told him that Kathryn had made these allegations while they were lying on the floor watching television and Kathryn " kept moving my bathrobe ... to expose my breasts and one time she put her hand too far down toward the vaginal area," which Shirley told Kathryn was unacceptable. Id . Then, Kathryn said to Shirley " 'rub my pee pee'" because it " 'fe[els] good.'" Id . Flood's report indicates that he told Shirley and Mr. Spencer to contact their local law enforcement so that they could both be interviewed by those authorities. Id . at 10.
On that same day, Flood interviewed Kathryn, Matthew and DeAnne in person. Id . at 11-14. Flood's report indicates that Kathryn stated, among other things, that DeAnne only touches her " potty" when she is putting medicine on it. Id . at 11. Flood also indicates Kathryn reported that " she did tell Shirley everything that Shirley advised me of but then when asked to explain it or asked specific questions about it, [Kathryn] would say that she couldn't remember the words so she couldn't tell me." Id . Flood's report also states that he asked Kathryn " if someone told her not to tell about it and she indicated by shaking her head yes." Id . He further states that " [w]hen asked if someone had touched her pee pee she shook her head yes and when asked who, she would say daddy and then a few moments later she said not daddy, no one." Id . Finally, Flood's report states that Kathryn indicated that " her and her father played a game but she didn't want to talk about the game." Id .
Unlike Kathryn, Matthew indicated to Flood that he knew nothing about Kathryn's alleged abuse and denied his father or mother touched him inappropriately. Id . at 12. Among other information, Flood's report states that Matthew indicated that his sister told stories and changed her stories. Id .
When interviewing DeAnne, Flood's report indicates in part that she knew nothing of these allegations. Id . at 13. She denied inappropriately touching Kathryn. Id . at 14. DeAnne also indicated that her sister told her that she worried about Kathryn and Ray, stating to DeAnne that " something was not right but she couldn't elaborate what." Id . at 13. Flood's report also notes that DeAnne told him that she had not had a man stay in the house for a long time, and there had been a " man that was there and bothered the children so [she] would not let a man stay in the house any longer." Id . DeAnne indicated that she never left the children alone with a man. Id .
B. Additional Investigation, Initial Charges & Arrest
On August 30, 1984, Officer R. Stephenson (" Officer Stephenson" ) of the Clark County Sheriff's Office was dispatched to contact Mr. Spencer regarding Kathryn's allegations of child abuse. Dkt. 64-1. Officer Stephenson went to Mr. Spencer's home in Washington. Id . at 2. At that time, Shirley provided a six-page handwritten statement detailing the allegations that Kathryn relayed to her on August 24, 1984. Among the many details, Shirley writes that Kathryn wanted her to " rub her pee pee" which Kathryn said " felt good." Id . at 4-5. Shirley records that Kathryn told her she did this with her mother and Karen Stone, a former girlfriend of her father. Id . at 5-6. According to Shirley's statement, Kathryn described oral sex with her father and stated that he placed his penis between her legs and tried to insert it " in her little hole" but stopped when they realized " it was too big." Id . at 8-9. Shirley also stated that
Kathryn told her that her father told her " not to tell." Id . at 8.
After Shirley's report was referred to Sacramento, California CPS and law enforcement cleared DeAnne of sex abuse allegations, the investigation was referred back to Clark County, Washington. Dkt. 138-10 at 25. In October 1984, Krause, a detective was assigned to investigate the Spencer case. Id . at 6. Defendant Michael Davidson (" Davidson" ), also a detective with the Clark County Sheriff's Office, was Krause's supervisor and the sergeant of the unit. Id .
On October 16, 1984, five-year-old Kathryn was interviewed by Krause, who made a written report of Kathryn's allegations of sexual abuse by her father. Dkt. 138-11 & 12 at 1-5. In Krause's report of her interview with Kathryn, in which she used anatomically correct dolls, Kathryn described an incident very similar to what Shirley described Kathryn had engaged in on the night that Kathryn made the alleged disclosures to Shirley. See id . Krause records that Kathryn described how she touched Shirley on the breasts and stated the " pee pee got touched too," indicating that she touched Shirley's genitals. Id . at 33. According to Krause, Kathryn said Shirley indicated she didn't like it. Id. Krause also records that Kathryn said this happened when she told Shirley about " a secret about my daddy's wiener." Id . Among other details, Krause's report further states that Kathryn indicated that her father placed his penis in her mouth and engaged in oral sex with her. Dkt. 138-12 at 1. In Krause's report, she also indicates Kathryn stated that her father told her not to tell anybody, and she said she lied to Shirley about anyone else touching her. Id . at 3.
On October 18, 1984, Krause also interviewed DeAnne. Dkt. 138-12. In Krause's interview report, she states, among other information, that DeAnne described sexualized behaviors in which Kathryn engaged after returning from visits with her father in 1983 and 1984, including, for example, masturbation, touching her brother Matthew's penis in the bathtub, playing under the covers naked with her cousin Danny. Id . at 10-12. According to Krause's report, DeAnne also related that " during the meeting with Detective Flood and also with Katie's  therapist, Katie apparently was not indicating anymore than there had been something sexual between her and her father." Id . at 8.
On the same day, October 18, 1984, Krause interviewed Kathryn a second time. Dkt. 138-12 at 28-39. In addition to some of the same disclosures referenced in the above paragraph, Krause reports that Kathryn, using both anatomically correct dolls as well as verbal language, told Krause that her father " tried to sick his big wiener in my pee-pee, but he did that once; " that " I would have to kiss his wiener; " he " makes me touch his pee-pee; " and kisses her vagina. Id . at 36.
Arthur Curtis (" Curtis" ), the then-elected Clark County Prosecutor (Dkt. 138-4 at 3), assigned James M. Peters (" Peters" ) as the prosecutor in the Spencer case. Id . at 7. In late November 1984, the Clark County Prosecutor's office sent the Spencer file for review to King County Prosecutor, Rebecca Roe (" Roe" ). Dkt. 137 at 3 (January 15, 2013 Roe Declaration). The purpose of Roe's review was to provide an opinion concerning whether criminal charges of child rape should be filed against Mr. Spencer. Id . at 4. The Spencer file was sent to King County for review in part because Mr. Spencer was then employed as a police officer with the Vancouver,
Washington Police Department, which is located in Clark County. Id .
The file Roe reviewed contained the reports by Sacramento law enforcement officers and the Clark County Sheriff's Office reports concerning allegations of sexual abuse made by Kathryn to Shirley. Id . at 3. Also included in the file were narrative reports prepared by Krause, which documented her interviews with Kathryn on October 16 and 18, 1984, as well as the August 30, 1984 report which included the narrative written by Shirley after Kathryn disclosed the allegations of abuse to her. Id . at 3-4. On November 27, 1984, Roe concluded that the case was not " filable" due to problems with what Kathryn had said, may not be willing to say, or may not be competent to testify to at trial. Id . For example, inconsistencies in Kathryn's statements, her reluctance to talk about abuse, and Kathryn's statements about rubbing Shirley in combination with other statements created questions of " fact v. fantasy," which Roe indicated was " built in reasonable doubt," all factored into Roe's recommendation. Id . at 1-3. While Roe opined that the case was " unwinnable," she also stated " I believe the child was clearly abused and probably by the defendant...." Id . at 3.
On December 11, 1984, Peters interviewed Kathryn. Dkt. 138-17 (Videotape Transcript). The interview was videotaped. Id. & 96 (DVD of Interview). Peters has testified that this interview was performed at the direction of Curtis in Peters's function as a deputy prosecutor whose role " was to determine and relay back to the prosecuting attorney impressions as to whether she might be found competent should charges be brought" and whether she could relate the allegations back to him. Dkt. 138-6 at 4, 6 and 8. Although Curtis did not explicitly state that he directed Peters to interview Kathryn, Curtis was Peters's supervisor and in Curtis's deposition he did state " we definitely weren't going to make a filing decision until [Peters] had interviewed the child." Dkt. 138-4 at 17. Additionally, regarding Peters's interview of Kathryn, Curtis was asked and answered the following in deposition:
Q: ... Was the purpose of that interview to assist in making the decision whether or not to file charges?
A: Yes, because although we certainly respected what Ms. Roe had to say, she did not actually interview Katie in coming to a conclusion. She only reviewed the police report. So we felt it would be very important for Mr. Peters to actually interview her, see whether he agreed with Ms. Roe's assessment or whether he thought the case was prosecutable.
Dkt. 138-5 at 3-4. While Curtis does not recall viewing the video before filing charges, he relied in part on Peters's evaluation of Kathryn in making his charging decision. Dkt. 168-11 at 11.
During Peters's interview with Kathryn, DeAnne was present throughout. Dkts. 137-17 at 1-34. DeAnne maintains that in her presence there was " no discussion about what Katie was to say" during the sixty-six minute break in the interview, which is not recorded, and there is no indication that Kathryn was ever out of DeAnne's presence during the break. Dkt. 168-13 at 50. The interview itself reveals that the information about Spencer's alleged sexual conduct with Kathryn, which the child communicated largely through non-verbal means (e.g. nodding of the head and demonstration of events through the use of anatomically correct dolls) was cumulative of and consistent with what Krause and Shirley had already reported as Kathryn having alleged. See Dkt. 96 and 138-17.
Although Peters had " serious reservations" about filing charges against Spencer, Curtis has testified that it was " my call," and stated that " I felt like it was going to be a tough case and the buck ultimately stopped with me as the elected prosecutor, and I was willing to sign the information knowing that fact." Dkt. 138-5 at 1. When asked during his deposition why he filed the charges against Spencer, despite some of the problems with proof in the case, Curtis stated:
Well, I knew that it was a tough case. At the time I knew that Mr. Peters had some reservations about filing it, even after his interview with Katie Spencer. Obviously, Becky Roe had reservations, as well.... The thing that kept coming back to me was the part of her letter, Rebecca Roe's letter to us on page 3 where she says here: There are several problems. Although I believe [the] child was clearly abused and probably by the defendant, the case is unwinnable even assuming you can get the child to ... talk.
I did not come to the decision to file this case lightly. I felt like there were some problems with the case, but it was my policy as the elected prosecutor to take an aggressive stand in my county towards child abusers. And the fact that Becky Roe concluded the child was abused, allegations were against this specific defendant, I decided that that's what juries are for....
That's the posture I had on many of these sex abuse cases in Clark County over the years..... [I]f we could win or get convictions on these types of cases even 50 percent of the time, we were doing a service to the criminal justice system and our community.
Dkt. 138-4 at 39-40. Upon review of and reliance on all the police reports and allegations contained therein, his conversation with Krause as to her assessment of Kathyrn, Peters's assessment of Kathryn, and potentially the report of Roe itself or at least Peters's representation thereof, Curtis made his decision to charge Mr. Spencer. Dkt. 168-11 at 11 and 14. On January 2, 1985, Curtis charged Mr. Spencer with two counts of sexually abusing Kathryn; he was arrested and then released on his personal recognizance. Dkt. 138-5 at 29.
After Curtis filed the initial charges against Mr. Spencer, the record reflects that on January 9, 1985, Curtis sent a letter to the chief of police asking that a special prosecutor from King County be assigned the case, as he mistakenly thought that Mr. Spencer was still employed by VPD. Dkt. 138-4 at 31. Barbara Linde (" Linde" ), a prosecutor from King County was assigned to the case, and the King County Prosecutor's Office was involved in the case until around April 4, 1985. See Dkt. 138-4 at 5-7 & 138-5 at 22 and 26. However, Peters intermittently continued to be involved in the case as it developed until ...