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Fontana v. City of Auburn

United States District Court, W.D. Washington, Seattle

August 21, 2014

RANDALL FONTANA, Plaintiff,
v.
CITY OF AUBURN, et al., Defendants.

ORDER

JOHN C. COUGHENOUR, District Judge.

This matter comes before the Court on Defendants' motion for summary judgment (Dkt. No. 25) and the parties' stipulated motion to dispense with the admitted facts portion of the pretrial order (Dkt. No. 33). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS Defendants' summary judgment motion and DENIES the parties' motion to dispense with the admitted facts portion of the pretrial order as moot.[1]

I. BACKGROUND

This case arises out of the allegedly unlawful arrest and prosecution of Mr. Randall Fontana, who was arrested and charged with misdemeanor Harassment after allegedly making statements to an Alaska USA Credit Union ("AKUSA") employee that were threatening to police officers. On December 4, 2009, an AKUSA employee called the Auburn Police Department to report an incident that occurred earlier in the day at the Credit Union's Auburn, Washington branch. An Auburn police officer responded to the scene and interviewed Ms. Nicole Firth, the AKUSA employee who had the alleged interaction with Mr. Fontana that day. She provided a typed statement that read as follows:

During my lunch break today (12:20ish), a gentleman who frequents our branch came over to stand next to me while I was eating my lunch at the Starbuck's back bar. This is not unusual as he often stops by to chat and whatnot with whoever on most days he comes into the branch. He was holding a newspaper and talking to me while I was eating, asking if I read the newspaper... I told him that I did not as I do not have cable and I just look up my news online. He then made the comment that I need to watch the news "in the near future." I asked him why? If anything special was going on, and he said to "just watch the news, you may see me and think Hey I know that guy. I recognize that mug shot'" He is sometimes very strange and off the wall comments from this man are ordinary, so I really didn't think much about it. Several hours later, he came to make a withdrawal from his account with AKUSA (withdrawal receipt reads 3:37p.m. Washington time). He then told me again to tune in to the news so I "can see someone I know on the news." I asked him pointedly "Are you doing anything special or going to have a story on the news?" He told me "Its going to be big, bigger than what happened with the Lakewood police officers thing." He didn't say anything else, I told him to have a good night and logged off my terminal to immediately report the strange commentary to my supervisor.

(Dkt. No. 27, Ex. B) (emphasis added).[2] The Auburn police officer completed a suspicious circumstances report, and Sgt. James Nordenger, an Auburn detective, ultimately received the report and began an investigation. ( Id. Ex. A, at 1.) As the parties indicate, it is undisputed that less than one week before Mr. Fontana allegedly made these statements, four City of Lakewood police officers were publically murdered. Mr. Fontana's alleged reference to his unidentified action being bigger than the "Lakewood police officers thing" is accordingly an undisputed reference to his action being bigger than the recent murder of four police officers.

After Sgt. Nordenger received the report of Mr. Fontana's alleged statements, he and another officer contacted Mr. Fontana on Monday December 7, 2009 as he was leaving his place of employment, the "Grocery Outlet." (Dkt. No. 27, Ex. A at 2; Ex. C at 28-29.) The exact substance of this exchange is disputed, but all parties agree that at a minimum, Sergeant Nordenger told Mr. Fontana "Don't fuck with us" to make clear that Mr. Fontana should not assault or kill police officers.[3] ( Id., Ex. C at 52.) It is also undisputed that Sgt. Nordenger asked Mr. Fontana if he was in fact Randall Fontana and whether he had been at AKUSA's Auburn branch on certain dates and at certain times. According to Mr. Fontana, Sgt. Nordenger was confrontational during this exchange and asked questions that did not make sense to him; specifically, Mr. Fontana states that when asked whether he liked or disliked police, he "never indicated that he disliked police." (Dkt. No. 29 at ¶ 15.) Finally, it is undisputed that Mr. Fontana ended the exchange by walking away to catch his bus. He was not arrested at that time.

After contacting Mr. Fontana on December 7, 2009, Sgt. Nordenger created an "Officer Safety Bulletin" that was distributed to various regional law enforcement agencies. That bulletin stated that Mr. Fontana spoke with an AKUSA employee and made statements like "Watch the news in the near future, Just watch the news, you may see me and think Hey, I know that guy. I recognize that mug shot, " and "It's going to be big, bigger than what happened with the Lakewood Police Officers thing, " and that the employee called 911. (Dkt. No. 27, Ex. D.) The bulletin also stated that Mr. Fontana had several previous contacts with the Auburn Police, which included Verbal Domestics, Civil Issues, and Traffic Infractions; that he was named as an "other" in a Federal Way homicide investigation in 2008; that Mr. Fontana "may" suffer from mental illness but that no diagnosis had been confirmed; and that "[t]here is no PC for Fontana at this time." ( Id. )

Sgt. Nordenger continued his investigation after issuing the Officer Safety Bulletin and received responses from various law enforcement officials in the region over the course of a one week period. In a December 8, 2009, e-mail from a Federal Way detective, Sgt. Nordenger was informed that Mr. Fontana had been a person of interest in a homicide investigation several years earlier. Mr. Fontana was cleared in that investigation by DNA, but Sgt. Nordenger states that "it was learned that [Mr. Fontana] had been conducting surveillance on the homicide location and had been writing down license plate numbers there." (Dkt. No. 24 at ¶ 11.) Additionally, both Bellevue PD and Kirkland PD responded to the bulletin early on December 11, 2009, advising that their agencies had worked security detail at the Lakewood Officers' memorial at the Tacoma Dome. ( Id. at ¶ 13, Ex. B.) They informed the Auburn PD that Mr. Fontana had shown up to the event intoxicated and was denied entry.[4] ( Id. ) Sgt. Nordenger also received notice from a Department of Social and Health Services ("DSHS") employee that Mr. Fontana had expressed "growing anger" about his welfare benefits being cut and that DSHS had concerns about the safety of its employees, but noted that Mr. Fontana had not made any express threats. (Dkt. No. 27, Ex. A at 4.) Finally, in the days following Mr. Fontana's alleged statements, Sgt. Nordenger visited Ms. Firth at AKUSA and obtained a positive photo montage identification; Mr. Firth confirmed that Mr. Fontana was the individual who had made the statements to her on December 7, 2009. ( Id. at 1.)

On December 11, 2009, after receiving notifications that Mr. Fontana had attempted to attend the Lakewood Officers' funeral at the Tacoma Dome, Sgt. Nordenger asked a King County deputy prosecutor to file felony charges against Mr. Fontana. (Dkt. No. 27, Ex. A, at 3.) The King County prosecutor verbally declined to do so. ( Id. ) Sgt. Nordenger then contacted an Auburn deputy prosecutor in person and provided the deputy prosecutor with the case file. ( Id.; Ex. C, at 77.) According to Sgt. Nordenger, the two discussed Mr. Fontana's statements, their proximity to the Lakewood murders, Mr. Fontana's "strange behavior in the Grocery Outlet parking lot, " and information received from other agencies. (Dkt. No. 24 at ¶ 17.) In this conversation, Sgt. Nordenger said to the prosecutor "Well, I want to go arrest him if you're gonna file it." (Dkt. No. 27, Ex. C at 77.) The prosecutor said "OK, " and according to Sgt. Nordenger, the two agreed that probable cause existed to arrest Mr. Fontana.[5]

Sgt. Nordenger disseminated a probable cause bulletin later that day. (Dkt. No. 27, Ex. F.) That bulletin noted, like the Officer Safety bulletin, the statements made to the AKUSA bank teller that referenced the Lakewood police murders. The bulletin also noted that Mr. Fontana was a suspect in a Federal Way homicide investigation but that he had been cleared; that he attempted to attend the Lakewood Officers' funeral on December 9, 2009, but had been turned away; that he had been "argumentative" and showed a "dislike for police" when contact was made with him at his place of employment; and that Mr. Fontana may have a mental illness but that it could not be confirmed. ( Id. ) The bulletin stated that probable cause existed to arrest Mr. Fontana for misdemeanor Harassment. ( Id. )

The next day, on December 12, 2009, Officers Mast, Christen, Glenn, Person, Bernard, and Feero of the Auburn Police Department went to the Auburn Grocery Outlet to arrest Mr. Fontana. ( Id., Ex. A at 4.) After locating Mr. Fontana in the store, Officer Feero, who is not named as a defendant in this lawsuit, handcuffed Mr. Fontana and Officer Mast read him his Miranda rights. (Dkt. No. 24 at ¶ 19.) Sgt. Nordenger visited Mr. Fontana at the jail once he had arrived and cited him for Harassment and Possessing a Legend Drug Without a Prescription.[6] (Dkt. No. 27, Ex. A at 5.) In his police report, Sgt. Nordenger indicated that "based upon Fontana's statements made to the witness, him being argumentative when being contacted, attempting to show up at the Tacoma Dome during a police funeral, and being a suspect in a Federal Way homicide, I am fearful that Fontana will attempt to injure or kill an officer when given a chance." ( Id. )

The City of Auburn charged Mr. Fontana with Harassment, but subsequently filed the charge of "Threats to do Harm" pursuant to Auburn City Code 9.14.010 and dismissed the Harassment charge. (Dkt. No. 28 at ¶ 2.) Mr. Fontana was arraigned and then obtained private defense counsel. The Court docket indicates that on December 24, 2009, the Court found that probable cause existed to bind Mr. Fontana over on the Harassment and Threats to do Harm charges. (Dkt. No. 28, Ex. A at 1, 6.) After his attempts to have the prosecutor dismiss the charge proved unsuccessful, Mr. Fontana filed (through counsel) a motion to dismiss pursuant to State v. Knapstad. ( Id. at ¶ 6.) On June 28, 2010, the Court concluded that the charge could not be supported beyond a reasonable doubt and dismissed the Threats to do Harm charge against Mr. Fontana. ( Id., Ex. A at 7.)

Mr. Fontana filed this suit on February 11, 2013. His Complaint includes claims for "malicious prosecution, " "knowing and wrongful denial of his civil rights to privacy, liberty, jeopardy of his liberty, and threats to deprive him of his liberty without cause"; "violation of its own policies regarding access to its services and premises"; "violation of plaintiff's Constitutional rights and/or plaintiff's civil rights under 42 U.S.C. § 1983"; and "[n]egligent supervision of employees who used the authority of their official positions and/or acted in their official capacities to violate his rights and to maliciously prosecute him." (Dkt. No. 1 at 5.) As the quoted language indicates, the actual claims raised and sources of law relied upon are not clearly delineated, but based on the parties' briefing, the Court considers the following claims to be at issue: (1) a Fourth Amendment claim for unlawful arrest under 42 U.S.C. § 1983; (2) a Monell policy or custom claim under 42 U.S.C. § 1983; (3) a malicious prosecution claim under state and federal law; and (4) a negligent supervision claim under Washington law.

Defendants now move for summary judgment. Defendants argue that collateral estoppel precludes Mr. Fontana from re-litigating the existence of probable cause; that even if the Court finds it necessary to engage in that inquiry, probable cause existed to support Mr. Fontana's arrest, thereby precluding Plaintiff's unlawful arrest and malicious prosecution claims; and that even if the Court disagrees, Sgt. Nordenger is entitled to qualified immunity and the remaining individual defendants did not sufficiently participate in the alleged constitutional deprivation so as to render them liable. Defendants also request summary judgment as to Plaintiff's malicious prosecution claim on the ground that there exists no evidence that Sgt. Nordenger acted with malice and that he is entitled to qualified immunity because he conferred with the prosecutor before posting the probable cause bulletin. And finally, as to Plaintiff's negligent supervision and Monell claims, Defendants argue that Plaintiff has no evidence to support these claims.

II. DISCUSSION

Before turning to the merits of Defendants' motion for summary judgment, the Court first addresses a number of threshold issues that arose during the parties' briefing. These issues include Defendants' failure to file an Answer to Plaintiff's Complaint, as well as the parties' expert witness declarations and accompanying motions to strike.

A. Defendants' Failure to File an Answer

The Court first addresses Defendants' inexplicable failure to file an Answer. Defendants assert in their summary judgment motion that (i) Plaintiff cannot state a claim in light of the undisputed evidence; and (ii) that they are entitled to qualified immunity. Each argument is an affirmative defense that must be raised in a responsive pleading or by motion under Rule 12 before a responsive pleading is filed; if not appropriately raised, Rule 12 only permits a "failure to state a claim" defense at trial or by a Rule 12(c) motion for judgment on the pleadings. See Homez v. Toledo, 446 U.S. 635, 640 (1980) (qualified immunity is an affirmative defense that must be pleaded by defendant); Fed.R.Civ.P. 8(b)-(c) (defendant must include defenses in responsive pleading and admit or deny allegations contained in complaint); Fed.R.Civ.P. 12(b) (requiring defenses to be asserted in responsive pleading within 21 days of complaint or by motion made before pleading is due); Fed.R.Civ.P. 12(h)(2) (failure to state a claim defense may be raised in any opening pleading, a motion for judgment on the pleadings under Rule 12(c), or at trial). Here, Plaintiff filed his complaint on February 11, 2013. Defendants did not file any Rule 12 motions to dismiss, and as of the date of this Order, they have still not filed an Answer.

The defenses asserted in Defendants' summary judgment motion would normally be waived or, at a minimum, available only at trial or through a motion for judgment on the pleadings. But as other district courts have noted, the Ninth Circuit has "liberalized the rules regarding waiver of affirmative defenses such that district courts have discretion to permit the assertion of an affirmative defense for the first time on summary judgment, provided that there is no prejudice to the nonmoving party and the nonmoving party is given an opportunity to respond." Alcarmen v. J.P. Morgan Chase Bank, No. C13-1575, 2014 WL 3368647, at *5 (N.D. Cal. July 8, 2014); see Simmons v. Navajo Cnty., 609 F.3d 1011, 1022 (9th Cir. 2010). A defense, including qualified immunity, may be raised in the summary judgment motion even if it was not listed in the answer or if no answer was ever filed. See, e.g., Ledo Fin. Corp. v. Summers, 122 F.3d 825, 827 (9th Cir. 1997) (affirmative defense properly raised for the first time on summary judgment even where defendant failed to file an answer); Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993) (qualified immunity properly raised in summary judgment motion even where it was not included as an affirmative defense in defendant's answer).

Mr. Fontana has had an opportunity to respond to Defendants' arguments by briefing the issues and presenting evidence to the Court. He has also had roughly one year to seek the entry of default and default judgment against Defendants based on their failure to answer the complaint, which would have been the appropriate response. See Ledo, 122 F.3d at 827. He did not do so, and in the course of this case, he has not taken issue with Defendants' failure to file an Answer. He appears to have had notice of the defenses (which are common in this type of case) and has proceeded to litigate the case as if those defenses had been properly preserved. The Court accordingly proceeds to address Defendants' motion.

B. The Parties' Expert Witnesses

The Court next addresses the parties' expert witness declarations. Defendants supported their motion for summary judgment with the declarations of Ms. Lori Sutter and Mr. John Landenburg, among others. Ms. Sutter is a "retired law enforcement officer with over 30 years of commissioned law enforcement officer experience" (Dkt. No. 21 at ¶ 2), and Mr. Landenburg is a former prosecutor and defense attorney with approximately 40 years of legal experience. (Dkt. No. 22 at ¶ 2.) Similarly, Plaintiff offered the declaration of Dr. Robert Keppel, who has 40 years experience in the law enforcement and criminal justice fields. (Dkt. No. 30 at ¶ 3.) Plaintiff also offered the declaration of Mr. James Bible, Plaintiff's criminal defense attorney in the underlying prosecution, but did not disclose Mr. Bible as an expert witness. (Dkt. No. 28).

Defendants move to strike the declaration of Mr. Bible on the ground that he is "offering improper expert opinion apparently based on his training and experience" even though he was not disclosed as an expert witness. (Dkt. No. 31 at 2.) The Court denies the request. Mr. Bible's declaration recounts facts of which he has personal knowledge-namely, the occurrences involved in Plaintiff's underlying prosecution. In large part, he has not offered impermissible expert testimony. He does offer one single opinion that in his experience, this prosecution was "meritless, " but the Court does not find that single statement to be a basis for striking the entire declaration. To the extent Mr. Bible believes the prosecution to have been meritless, the Court declines to consider that opinion in addressing Defendants' summary judgment motion.

The Court strikes, sua sponte, the portions of Ms. Sutter's, Mr. Landenberg's, and Dr. Keppel's declarations that offer legal conclusions veiled in the guise of expert testimony. While experts may permissibly opine as to standard law enforcement practices and whether defendants' conduct is in accord with those practices, they may not offer legal conclusions that are solely within the Court's or the fact-finder's province. See Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (explaining that while "ultimate issue" testimony is not per se impermissible, "an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law."). Such an opinion does not aid the jury in making its decision; it merely attempts to substitute the expert's judgment for that of the jury, or in this case, the Court. Mukhtar v. California State University, Hayward, 299 F.3d 1053, 1066 n.10 (9th Cir. 2002); see also WEINSTEIN'S FEDERAL EVIDENCE § 704.04[2][a] (2d ed. 2008) (explaining that opinion testimony should be excluded for lack of helpfulness where it "supplies the jury with no information other than the witness's view of how the verdict should read"). In the specific context of probable cause, this means that expert testimony is impermissible insofar as it attempts to explain the legal requirements of probable cause or discusses whether probable cause did or did not in fact exist in this case. See Torres v. City of Los Angeles, 548 F.3d 1197, 1214 n.11 (9th Cir. 2008); Stuart v. United States, 23 F.3d 1483, 1487 (9th Cir.1994). Accordingly, the Court will not rely upon the parties' expert declarations to the extent that they purport to opine on the legal requirements of probable cause or whether probable existed to support Mr. Fontana's arrest. ( See Dkt. Nos. 21 at ¶ 14; 22 at ¶ 10; 30 at ¶ 12.)

C. Defendant's Summary Judgment Motion

1. Legal Standard

The Court next turns to Defendants' summary judgment motion. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In making such a determination, the Court must view the facts and inferences to be drawn therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986). Once a motion for summary judgment is properly made and supported, the opposing party "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Material facts are those that may affect the outcome of the case, and a dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248-49. Ultimately, summary judgment is appropriate only against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

2. Collateral Estoppel

Defendants argue from the outset that Plaintiff is collaterally estopped from re-litigating whether probable cause existed to support his arrest and prosecution. Because the Auburn municipal court judge found that probable cause existed to bind Mr. Fontana over for trial on the charges, Defendants argue, Plaintiff's unlawful arrest and malicious prosecution claims necessarily fail because each of them depends on Plaintiff proving the absence of probable cause. The Court agrees with Defendants that Plaintiff's claims are barred on this basis.

In Washington, a litigant is estopped from raising an issue in a subsequent proceeding if "(1) the issue decided in the prior adjudication is identical with the one presented in the second action; (2) the prior adjudication [] ended in a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with the party to the prior adjudication; and (4) application of the doctrine does not work an injustice." Thompson v. Dep't of Licensing, 138 Wn.2d 783, 790 (Wash. 1999); Shuman v. Dep't of Licensing, 108 Wn.App. 673, 677-78 (Wash. 2001). Significantly, the Ninth Circuit has repeatedly held that when an individual has the opportunity to challenge a probable cause determination in the course of prior state court proceedings, such as in a preliminary hearing as to whether the defendant may be bound over on the charges, he may be barred from re-litigating the issue in a subsequent § 1983 action. Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 2004); see Haupt v. Dillard, 17 F.3d 285, 289 (9th Cir. 1994) (holding that state judge's finding that probable cause existed to bind a defendant over for trial barred the individual's subsequent re-litigation as to whether probable cause existed to support claims under § 1983). Collateral estoppel will not bar re-litigation, however, "when the decision to hold the defendant to answer was made on the basis of fabricated evidence presented at the preliminary hearing or as the result of other wrongful conduct by state or local officials." Awabdy, 368 F.3d at 1068 (citing Haupt, 17 F.3d at 289.)) Collateral estoppel may also be inapplicable in an unlawful arrest case if the state judge's probable cause determination was based on evidence obtained after the arrest, since the issues would not be identical. Id.

Mr. Fontana is barred from re-litigating probable cause in this matter. Based on the court records provided by Mr. Bible, Plaintiff's previous attorney, it is undisputed that Judge Burns of the Auburn municipal court arraigned Mr. Fontana, affirmatively finding that probable cause existed to bind Mr. Fontana over for trial on the Threats to do Harm charge. ( See Dkt. No. 28, Ex. A at 5 ("DETERMINATION OF PROBABLE CAUSE ESTABLISHED" on December 24, 2009 at Mr. Fontana's arraignment).) Mr. Fontana was represented by counsel at that hearing. ( Id. ) Because this fact is undisputed, the Court has no trouble concluding that the elements of collateral apply under the circumstances. The issue litigated is identical, namely, whether probable cause supported Mr. Fontana's arrest and detention. And of course, Mr. Fontana was the subject of that proceeding as well. While a preliminary hearing probable cause determination itself is not technically a "final judgment on the merits" as one would normally use that term, the Ninth Circuit and other courts have, as explained below, held that a probable cause determination made at a preliminary hearing is sufficiently firm to satisfy the requirements of the "final judgment" collateral estoppel requirement. Further, the Court notes that Mr. Fontana's previous case did in fact end with a final adjudication-the claim against him was dismissed. While he ultimately prevailed, the preliminary hearing determination of probable cause was a part of that proceeding, which ended in a final judgment. See, e.g., Wakgira v. City of Seattle, Case No. C08-1108, 2009 WL 2406330, at *14 (W.D. Wash. Aug. 3, 2009) (applying Washington law and holding that collateral estoppel barred re-litigation of probable cause where state judge found probable cause at preliminary hearing).

Plaintiff offers two arguments to avoid this conclusion. First, he argues that collateral estoppel cannot apply because "there was no conviction" in this case by way of trial or guilty plea. (Dkt. No. 26 at 11.) The Court disagrees, and the absence of a conviction is not fatal to Defendants' collateral estoppel argument. The Ninth Circuit, this court, and others have repeatedly recognized that a probable cause determination at a preliminary hearing can bar re-litigation of the issue in an unlawful arrest or malicious prosecution case even where the individual was not convicted. See, e.g., Haupt, 17 F.3d at 288-89 (plaintiff precluded from asserting the lack of probable cause, as required to support unlawful arrest and malicious prosecution claims, where probable cause was established at preliminary hearing even though he was later acquitted); Tompkins v. Spokane Cnty., Case No. C07-0195, 2009 WL 269386 (E.D. Wash. Jan. 30, 2009) (collateral estoppel barred unlawful arrest claim where probable cause necessarily determined by Washington state judge even though claims were later dismissed); Wakgira, 2009 WL 2406330, at *14 (plaintiff barred from re-litigating probable cause even though underlying charges were subsequently dismissed).[7] This makes perfect sense given the significant difference between probable cause to arrest, which is an extremely low standard, and the need to prove guilt "beyond a reasonable doubt" to obtain a conviction-the inability to prove the latter has no bearing on the existence probable cause. In light of the ample authority demonstrating that a conviction by way of guilty plea or trial is not necessary in order for collateral estoppel to bar re-litigation of a state-court probable cause determination, and Plaintiff's failure to either address this authority or provide any persuasive case law to the contrary, the Court rejects Plaintiff's argument.[8]

Second, Plaintiff reasons that "if the issue of probable cause was deemed fully and fairly litigated, then the defense would be precluded from asserting that probable cause existed." (Dkt. No. 26 at 11.) The Court is not persuaded. Such an argument is merely an undeveloped reference to the offensive use of collateral estoppel, which may have had some force if the Auburn municipal judge had determined that probable cause was absent. See, e.g., Wiley v. Washington Patrol, C05-1948, 2007 WL 1655273, at *4 (W.D. Wash. June 7, 2007) (officer defendants precluded from asserting the existence of probable cause as a defense to unlawful arrest claim where state court had determined that plaintiff's arrest was not supported by probable cause). However, the municipal judge here undisputedly concluded that probable cause existed. And to the extent that Plaintiff's argument is construed as an assertion that an offensive use of probable cause would be appropriate because the case was subsequently dismissed on a Knapstad motion, the Court would disagree for the same reason it rejected Plaintiff's first argument. As another judge in this district has concluded, a subsequent dismissal on a Knapstad motion-which requires dismissal where no reasonable trier of fact could find the elements of the crime beyond a reasonable doubt-"does not establish in that case or any other that the prosecution lacked probable cause in filing the charge.... [ Knapstad ] references the highest standard of proof in American jurisprudence. In stark contrast is the lowest, probable cause." Lassiter v. City of Bremerton, C05-5320, 2006 WL 2009328, at *2 (W.D. Wash. July 17, 2006). Under the circumstances of this case, it is Mr. Fontana, not Defendants, who are on the losing end of the collateral estoppel argument.

In sum, Plaintiff's unlawful arrest and malicious prosecution claims, each of which requires Plaintiff to prove the absence of probable cause for his arrest, are barred as a matter of law. Even if the Court were to consider the claims further, however, the Court would conclude that Sgt. Nordenger is entitled to qualified immunity because the legality of Plaintiff's arrest was at least arguable and he conferred with an Auburn prosecutor, who determined that charges should be filed and subsequently filed the charges.

3. Plaintiff's § 1983 Claims and Defendants' Qualified Immunity

"Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Acosta v. City of Costa Mesa, 718 F.3d 800, 824 (9th Cir. 2013) (citing Reichle v. Howards, ___ U.S. ____, 132 S.Ct. 2088, 2093 (2012)). "Assessing whether an official is entitled to immunity is a two prong inquiry[, ]" and the Court may address the prongs in whichever order it deems appropriate under the circumstances. Id. Under the first prong, the Court determines whether, "[t]aken in the light most favorable to the party asserting the injury, [] the facts alleged show [that] the officer's conduct violated a constitutional right[.]" Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Under the second prong, the Court determines whether the right allegedly violated was "clearly established." To be clearly established, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). Ultimately, the Supreme Court has explained, qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Here, the Officer Defendants also move for summary judgment on the grounds that no constitutional violations were committed, and that even if the Court finds that violations occurred under Plaintiff's version of the facts, Defendants are each entitled to qualified immunity.

i. Plaintiff's Unlawful Arrest Claim Under § 1983

The Court begins with Mr. Fontana's § 1983 claim that his arrest was unsupported by probable cause. The Fourth Amendment protects individuals against "unreasonable searches and seizures." U.S. Const. amend. IV. A warrantless arrest, which constitutes a "seizure, " is "unreasonable" and thus unconstitutional if it is not supported by probable cause- i.e., if "the facts and circumstances within [the arresting officer's] knowledge are [not] sufficient for a reasonably prudent person to believe that the suspect has committed a crime." Rosenbaum v. Washoe County, 663 F.3d 1071, 1076 (9th Cir. 2011); see United States v. Alaimalo, 313 F.3d 1188, 1193 (9th Cir. 2002) ("Probable cause requires only a fair probability or substantial chance of criminal activity[.]"). To prevail on a § 1983 false arrest claim, a plaintiff must demonstrate that there was no probable cause to arrest him based on the facts known to the officer at the time of the arrest. Norse v. City of Santa Cruz, 629 F.3d 966, 978 (9th Cir. 2010) (en banc).

The Ninth Circuit has summarized the requisite qualified immunity analysis in the context of a false arrest claim. The Court first determines whether there was probable cause for the arrest, without which the arrest is unconstitutional. Rosenbaum, 663 F.3d at 1076. Even if an unconstitutional arrest occurred, however, an officer may still be entitled to qualified immunity if "it is reasonably arguable that there was probable cause for arrest-that is, whether reasonable officers could disagree as to the legality of the arrest such that the arresting officer is entitled to qualified immunity." Rosenbaum, 663 F.3d at 1076 (emphasis in original); see Norse, 629 F.3d at 978 ("a government official is entitled to qualified immunity on a false arrest claim if a reasonable officer in his position could have believed that probable cause existed"). Ultimately, the "linchpin of qualified immunity analysis is the reasonableness of the officer's conduct." Rosenbaum, 663 F.3d at 1076.

Defendants assert that the arresting officer had probable cause to arrest Mr. Fontana for "Threats to Do Harm."[9] Under Auburn City Code § 9.14.010, "it is unlawful for any person to communicate, directly or indirectly, the intent to cause bodily injury to another person or the intent to cause physical damage to the property of another." (Dkt. No. 22 at ¶ 8.) Defendants argue that probable cause existed to arrest Mr. Fontana for Threats to do Harm based on the following information that was communicated to Sgt. Nordenger (and subsequently made known to the arresting officers via Sergeant Nordenger's probable cause bulletin): (1) the report that Mr. Fontana stated to the AKUSA bank teller, Nicole Firth, that she should look out for him on the news "in the near future, " that she would recognize his "mug shot, " and that "its going to be big, bigger than what happened with the Lakewood police officers thing"; (2) the fact that Mr. Fontana was previously a suspect in a homicide investigation, but ultimately cleared via DNA; (3) that Mr. Fontana attempted to enter the Tacoma Dome for the Lakewood Officer's Funeral only two days after making the statements at issue, but was turned away at the door after being spotted by a marksman team; and (4) that Mr. Fontana suffered from an unidentified mental illness, though this could not be confirmed. Defendants also argue that it was reasonable to believe that probable cause existed because Officer Nordenger conferred with an Auburn prosecutor who agreed that probable cause existed before posting the probable cause bulletin.

In light of the collateral estoppel analysis herein, Plaintiff's unlawful arrest claim necessarily fails. But regardless of whether probable cause existed to arrest Mr. Fontana, "reasonable officers could disagree as to the legality of the arrest[, ]" thereby entitling Sgt. Nordenger to qualified immunity. The Court believes that a reasonable police officer could arguably construe Mr. Fontana's alleged statements as an "indirect[] communication [of] the intent to cause bodily injury to another person"-to wit, police officers. It is irrelevant that Mr. Fontana now claims that he did not make the statements, as neither party disputes that the AKUSA bank teller reported the comments on December 7, 2009, provided a typed statement to the Auburn PD which Sgt. Nordenger received, and identified Plaintiff in a photo montage as the individual who made the statements. See Ewing v. City of Stockton, 588 F.3d 1218, 1225 (9th Cir. 2009) (identified citizen witnesses are generally presumed reliable). Even further, a reasonable police officer could arguably construe Mr. Fontana's attempt to enter the Lakewood Officers' funeral two days after stating that he was going to do something "bigger than Lakewood" as additional support for viewing his previous statements as a communication of an "intent" to harm police officers.[10]

This conclusion is supported by the Auburn judge's probable cause determination the fact that Sgt. Nordenger conferred with the Auburn prosecutor, who agreed that probable cause existed, before disseminating the probable cause bulletin. Sgt. Nordenger's conference with the Auburn deputy prosecutor does not automatically insulate him from liability, id. at 1231, but "it goes far to establish qualified immunity" because it demonstrates that he acted reasonably and in good faith by seeking a second opinion from a qualified attorney. Id. (noting that even where evidence was slim to make an arrest, officers' conference with prosecutor before doing so "tipped the scale in favor of qualified immunity"). It is undisputed that Sgt. Nordenger found the Auburn prosecutor while in the Courthouse and had a short conversation with him-on this basis, Plaintiff argues that there exists a genuine issue of material fact as to what the two men discussed and whether Sgt. Nordenger made a full presentation of the facts. But the Court is not persuaded. It is undisputed that Sgt. Nordenger provided the prosecutor with the case file, and Sgt. Nordenger testified that the two discussed Mr. Fontana's statements, their proximity to the Lakewood murders, Mr. Fontana's "strange behavior in the Grocery Outlet parking lot, " and information received from other agencies. (Dkt. No. 24 at ¶ 17.) Plaintiff offers nothing that would dispute the actual substance of this conversation. While the conversation may have been short and Sgt. Nordenger admittedly expressed his desire to arrest Mr. Fontana, that alone does not undermine the undisputed fact that Sgt. Nordenger did communicate the known facts as contained in the police report and confer as to whether probable cause existed to arrest Mr. Fontana before going out and arresting him. While not dispositive, this act supports the Court's conclusion that Sgt. Nordenger is entitled to qualified immunity based on the reasonableness of his decision to post the probable cause bulletin and the conclusion that, at a minimum, reasonable officers could disagree as to the legality of Mr. Fontana's arrest.[11]

ii. Plaintiff's Malicious Prosecution Claim

The Court also concludes that Sgt. Nordenger is entitled to qualified immunity on Plaintiff's malicious prosecution claim. A claim of malicious prosecution is generally not cognizable under § 1983 if process is available within the state judicial system to provide a remedy. Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1983) (en banc). However, the Ninth Circuit has enunciated an important exception to this general rule. Lacey v. Maricopa Cnty., 649 F.3d 1118, 1133 (9th Cir. 2011). A plaintiff can prevail on a federal malicious prosecution claim if she shows "that the defendants prosecuted [her] with malice and without probable cause, and that they did so for the purpose of denying [her] equal protection or another specific constitutional right." Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)). To make out a federal malicious prosecution claim, a plaintiff must prove, in addition to the elements above, the elements of a state-law malicious prosecution claim. Under Washington law, a plaintiff must prove: "(1) that the prosecution claimed to have been malicious was instituted or continued by the defendant; (2) that there was want of probable cause for the institution or continuation of the prosecution; (3) that the proceedings were instituted or continued through malice; (4) that the proceedings terminated on the merits in favor of the plaintiff, or were abandoned; and (5) that the plaintiff suffered injury or damage as a result of the prosecution." Hanson v. City of Snohomish, 121 Wash.2d 552, 558 (Wash. 1993).

There exists a rebuttable presumption that a prosecutor exercises independent judgment in deciding to file criminal charges, thus immunizing the investigating officers from liability for injuries suffered after the charging decision. Id. at 1067. This presumption may be rebutted with evidence that the officers "improperly exerted pressure on the prosecutor, knowingly provided misinformation to him, concealed exculpatory evidence, or otherwise engaged in wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings." Id. "A plaintiff's account of the incident in question, by itself, does not overcome the presumption of independent judgment." Newman v. County of Orange, 457 F.3d 991, 994 (9th Cir. 2006). Rather, "a plaintiff must present information in addition to his own account that contradicts the police report" in order to show that the prosecutor relied on the police investigation and arrest. Beck v. City of Upland, 527 F.3d 853, 863 n.9 (9th Cir. 2008) (citing Newman, 457 F.3d at 994-95). "A police officer who maliciously or recklessly makes false reports to the prosecutor may be held liable for damages incurred as a proximate result of those reports." Blankenhorn v. City of Orange, 485 F.3d 463, 482 (9th Cir. 2007).

Sgt. Nordenger is entitled to qualified immunity on this claim. There is no genuine dispute as to whether Sgt. Nordenger provided the Auburn prosecutor with the case file and discussed the minimal facts involved in this case. Under these circumstances, the Court sees no basis upon which Plaintiff can overcome the presumption that the Auburn prosecutor's decision to file the charges was in fact his own decision, which in turn immunizes Sgt. Nordenger from liability for damages caused as a result of the prosecution.

Plaintiff argues that there is a question of fact as to whether Sgt. Nordenger fully and truthfully communicated to the prosecuting attorney the facts and circumstances within his knowledge (all of which was contained in the probable cause bulletin), stating that the information provided was "all false or misleading." But the Court disagrees. Sgt. Nordenger's knowledge that Plaintiff attempted to attend the Lakewood Officers' funeral at the Tacoma Dome was based on the reports of other law enforcement officers-whether Mr. Fontana did or not attend the funeral does not undermine the fact that Sgt. Nordenger has received reports from fellow officers to this effect. The case file clearly demonstrates that this statement was based on the reports of other officers, and Plaintiff offers no evidence that Sgt. Nordenger told the prosecuting attorney that he personally witnessed Mr. Fontana at the Tacoma Dome.

Insofar as Plaintiff argues that the remaining information was false or misleading, the Court disagrees for the same reason: Sgt. Nordenger did not tell the prosecutor (and the case file does not state) that Mr. Fontana definitely had a mental illness; he said he "might" but noted the fact could not be confirmed. Finally, insofar as Sgt. Nordenger had believed that Mr. Fontana disliked police and was a suspect in a Federal Way homicide investigation, the Court disagrees that these representations were "false and misleading" or otherwise relevant to the probable cause determination. The bulletin clearly indicates that Mr. Fontana was cleared in the Federal Way investigation and there is no suggestion that Sgt. Nordenger stated otherwise to the prosecuting attorney. As for Sgt. Nordenger's subjective belief that Mr. Fontana disliked police, that belief was reasonable given the evidence that Sgt. Nordenger had at the time. There is no evidence that he improperly forced the prosecutor to file charges based only on that statement. Because Mr. Fontana has not provided evidence that Sgt. Nordenger actually fabricated police reports, provided false facts, or improperly pressured the prosecuting attorney into filing the charges, he is entitled to qualified immunity as to Plaintiff's malicious prosecution claim.[12]

iii. Plaintiff's Claims Against the Other Officer Defendants

Plaintiff named as defendants, in addition to the City of Auburn and Sgt. Nordenger, Sgt. Brian Williams, Officer Weller, Officer Mast, Officer Tyler Christian, Officer Glen, Officer Person, Officer Bernard, and John/Jane Does Officers.[13] (Dkt. No. 1.) Plaintiff also requests that the Court issue a liability ruling as to a non-defendant, Officer Feero, and implies that if it will not do so, Plaintiff should be granted leave to add Officer Feero as a defendant. The Court concludes that Plaintiff's claims against the other individual Defendants also fail as a matter of law and declines to either issue a ruling as to Officer Feero or permit Plaintiff to add him as a defendant.

The Ninth Circuit has explained that "Section 1983 has a causation requirement, with liability extending to those state officials who subject, or cause to be subjected, an individual to a deprivation of his federal rights." Lacey, 693 F.3d at 915-16. Under the "integral participation" rule, an officer must have "some fundamental involvement in the conduct that allegedly caused the violation." Blankenhorn, 485 F.3d at 492 n.12. In the context of a false arrest claim-the only claim pursued here against the remaining individuals-a plaintiff must prove that the individual officer either arrested him or otherwise ordered or procured the arrests without probable cause. Larez v. City of L.A., 946 F.2d 630, 645 (9th Cir. 1991).

There is no evidence in the record that any of the additional individual actually arrested Plaintiff or otherwise caused him to be arrested through any significant conduct. Officer Mast, who read Mr. Fontana his rights, did not arrest Plaintiff; he merely explained to Mr. Fontana his rights after he had been arrested. As for the other individuals, Plaintiff does not even attempt to delineate their actual participation in this matter. ( See Dkt. No. 26 at 24.) The claims against all individual defendants other than Sgt. Nordenger accordingly fail for lack of integral participation in the alleged constitutional deprivations. See, e.g., Torres, 548 F.3d at 1206 (affirming summary judgment for detective defendant where undisputed evidence showed that the detective "was not present when [the plaintiff] was arrested, and there [existed] no evidence that [the detective] instructed the other detectives to arrest [the plaintiff] or that any of those detectives consulted with [the defendant] before making the arrest]); Dunn v. Hyra, 676 F.Supp.2d 1172, 1187 (W.D. Wash. 2009) ("Because Officer Hyra did not arrest [the plaintiff], he cannot be liable for unlawfully arresting him.) (emphasis in original).

The Court also denies Plaintiff's request for (i) a liability ruling as to Officer Feero or (ii) leave to add Officer Feero as a defendant at this late stage of the case. Plaintiff explains that even though this case has been pending since February 2013, "it was uncovered after the case was filed that Officer Feero handcuffed Mr. Fontana." (Dkt. No. 26 at 24.) This argument ignores that Mr. Fontana has had the police reports in this case since his previous criminal case was brought in Auburn Municipal Court (in 2009), that Plaintiff produced those same reports to Defendants in this case in August 2013 during discovery, and that Defendants' counsel directed Plaintiff's counsel to the language in those reports that plainly indicated Officer Feero's role as the arresting officer on November 6, 2013, the deadline to add parties in this matter. Because Plaintiff has offered no explanation as to why a motion to add Officer Feero was not filed within the deadline previously set by this Court to do so, much less before filing his opposition to Defendants' summary judgment motion, the Court cannot say that good cause exists to justify leave to add Officer Feero. Even if the Court was inclined to do so, such an amendment would be futile in light of the Court's holding herein. And finally, to the extent that Plaintiff requests that this Court issue a liability ruling as to an individual who has not been properly named as a defendant and served with the Complaint, the Court has no jurisdiction to do so.

4. Plaintiff's Monell Claims Against the City of Auburn

Finally, Defendants move for summary judgment on Plaintiff's negligent supervision and Monell claims. (Dkt. No. 25 at 15-17, 19.) Plaintiff did not respond to Defendants' argument on these claims, and affirmatively stated in his opposition that he is pursuing his § 1983 claims against the individual officers and a malicious prosecution claim against Sgt. Nordenger. (Dkt. No. 26 at 1.) Because Plaintiff did not respond to or oppose summary judgment on the negligent supervision or Monell claims, the Court grants Defendants' motion as to those causes of action.

III. CONCLUSION

For the foregoing reasons, Defendants' motion for summary judgment (Dkt. No. 25) is GRANTED. In light of this ruling, the parties' joint motion to dispense with the admitted facts portion of their pretrial order (Dkt. No. 33) is DENIED as moot. The Court will enter judgment in accordance with this Order, and the Clerk is respectfully directed to CLOSE this case.


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