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Fontana v. City of Auburn

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

August 21, 2014

CITY OF AUBURN, et al., Defendants.


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]


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.


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 ...

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