Opinion
No. 3:04-CV-00309 GTE.
December 1, 2005
ORDER DENYING SUMMARY JUDGMENT
Before the Court is a Motion for Summary Judgment filed by Defendants Vincent Bazile, J.B. Hauer, and Union Pacific Railroad Company ("UP"), to which Plaintiff has responded. For the reasons stated below, the Court concludes that the motion will be denied.
OVERVIEW OF COMPLAINT
Plaintiff contends in his Complaint that the individual Defendants, acting as employees and agents of UP and under color of law "unlawfully procured the arrest and detention of Plaintiff when the facts known to them would have caused any reasonable law enforcement officer not to seek his arrest." (Complaint at ¶ 6). Plaintiff further alleges that the individual Defendants "conducted a search of Plaintiff's home in Wynne, Arkansas, in excess of that authorized by the warrant and that they caused Plaintiff to be detained and without his liberty for approximately four hours." ( Id.) Finally, Plaintiff contends that the Defendants "knew or should have known that Plaintiff had committed no crime but they pursued his arrest and detention for the purpose of promoting the economic interests of the UP." (Complaint at ¶ 7).
Plaintiff was accused of theft and hired lawyers to provide a defense to the charge. The prosecution ultimately dismissed the charges and the time for refiling them passed on July 18, 2003.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and alleges violations of the First, Fourth, Fifth, Sixth, Seventh, Eighth and Fourteenth Amendments of the United States Constitution. He also claims that UP was negligent in the hiring and supervision of the individual Defendants. Plaintiff seeks damages for, among other things, the loss of his job, loss of income, mental anguish, and legal fees for defending the false charges. Plaintiff also seeks an award of punitive damages.
SUMMARY JUDGMENT FACTUAL RECORD
The Court notes that the Motion for Summary Judgment fails to include a separate Statement of Undisputed Material Facts, as required by Local Rule 56.1(a). The Court elects to resolve the motion on the merits, but in the future requests that counsel comply with the Local Rule.
Defendants Vincent Bazile and J.B. Hauer are Union Pacific Special Agents. A Union Pacific Special Agent is a certified law enforcement officer who is employed by the UP and who has authority over crimes which occur on Union Pacific property. On December 4, 2001, some television sets were taken from a railroad boxcar. On February 11, 2002, a Marion Police Court Judge issued a warrant for Plaintiff's arrest, charging him with theft of property (the television sets), a Class A Misdemeanor. The Arrest Record, dated February 12, 2002, lists the Complainant's Name as "Vincent Bazile dba Union Pacific Railroad" and the witness to the arrest as John Hauer. (Exhs. 1 3 to Def.'s Motion).
Defendant Special Agent Bazile states in his Affidavit that on December 4, 2001, after learning that a load of televisions was parked on the side of the HM Contractors' building in Marion, Arkansas, he investigated and upon his arrival found a railroad car parked with its doors wide open. Five or ten television sets appeared to be missing. Further investigation revealed that HM employees Joseph Clark and Tyson Massengill had been involved in the theft of at least some of the television sets. In an effort to confirm this information, Defendants Bazile and Hauer went to Joseph Clark's home on or around January 26, 2002, where Erica Clark, Mr. Clark's wife, granted them permission to search the home. The search revealed a 27" television set with a serial number matching one of the missing televisions. (Bazile Affidavit, Def.'s Exh. 2 at ¶¶ 3-4).
On January 29, 2002, Mr. Bazile contends that he continued the investigation by interviewing Tyson Massengill's girlfriend, Jennifer Shipp. Ms. Shipp's statement, which was attached to the arrest warrant, indicates the following: Ms. Shipp reported that she drove her boyfriend's truck to the rail yard to take him lunch. She then rode in the truck with Mr. Massengill and "Joey" out to the Receiving Yard where they picked up three television sets that had been placed in the grass. Ms. Shipp understood the televisions had been removed from a rail container. Ms. Shipp then drove Mr. Massengill's truck back to the apartment they shared, unloaded the television sets and took them inside. Ms. Shipp stated Mr. Massengill and "Joey" came over to the house together after work, while she was asleep, and that when she woke up two of the three television sets were gone. She further testified that her boyfriend got rid of the remaining television set later, after hearing rumors about the UP agents going to people's houses. Ms. Shipp doesn't mention the Plaintiff until the end of her statement, at which point she brings up his name. The pertinent portion of her statement, in its entirety, reads:
Presumably, Ms. Shipp is referring to Joseph Clark, although she stated that she did not know his last name.
Q: When you got home, you took the three televisions. There were three?
A: Right.
Q: You took those into the apartment and then you went to bed. Is that correct?
A: But see, I'm pretty sure that Larry, which was also on his crew, he got one.
Q: What is Larry? What does he do?
A: He's the engineer.
Q: Why do you think he got one of the televisions?
A: I'm pretty sure that I remember Tyson saying that Larry got one, and Joey got one, and we had one.
Q: Did you get Larry's full name?
A: Larry Thomas. I think. He lives in Wynne.
(Shipp Statement, attached as part of Exhibit A to Affidavit for Arrest Warrant, Exh. 3 to Def.'s motion).
Defendants also support their motion with the Affidavit of Gerald Boyd Martin, a Detective Sergeant with the Marion Police Department, who presented the arrest warrant to Marion District Court Judge Fred Thorn. Mr. Martin indicates that the information received from Union Pacific's Special Agents caused the Marion Police Department to determine that the Plaintiff, along with Tyson Messengill, Jennifer Shipp, and Joseph Clark were all suspected of stealing the television sets.
On February 1, 2002, in a written statement given to Detective Martin, Mr. Clark also implicated Plaintiff by stating he and Mr. Massengill removed the televisions with the "specific intent of giving one of the stolen televisions to the Plaintiff" and that the Plaintiff later drove to Mr. Massengill's apartment to pick up one of the stolen television sets. (Martin Affidavit, Exhibit 4 to Def.'s motion).
On February 12, 2002, Plaintiff was placed under arrest for theft. The charges against the Plaintiff were ultimately dropped, apparently after several scheduled trial dates at each of which the Plaintiff appeared, with witnesses, to defend himself, but his co-defendants failed to appear. The record is not clear as to the outcome of the charges against the other two defendants.
Plaintiff has attached his own Affidavit, which questions why the Defendants failed to advise the Marion Police Department that he was with Pat Kelly, a ramp manager, the entire night the thefts occurred and why no effort was make to conduct any investigation beyond obtaining the statements of Shipp and Clark. Plaintiff states that following the theft but before his arrest, he had been asked by ramp manager, Joann Whitehead, to conduct a performance evaluation of Mr. Clark. Plaintiff reported that Mr. Clark's "performance was unsatisfactory, because he was a danger to himself and his conductor." Following Plaintiff's evaluation, Mr. Clark vowed in front of ramp manger, Pat Kelly, to get revenge. (Plaintiff's Affidavit, attached to Plaintiff's response).
As a result of being arrested for theft, Plaintiff has been prohibited by UP from returning to its premises, the effect of which is that Plaintiff can no longer work at the UP Intermodal Facility for H M. Thus, Plaintiff contends, the theft charge in question resulted in his losing his job with HM as Head Engineer, despite the fact that he was never convicted of a crime.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only when, in reviewing the evidence in the light most favorable to the non-moving party, there is no genuine issue as to any material fact, so that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed.R.Civ.P. 56. The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:
The inquiry performed is the threshold inquiry of determining whether there is a need for trial — whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The Eighth Circuit set out the burdens of the parties in connection with a summary judgment motion in Counts v. M.K. Ferguson Co., 862 F.2d 1338 (8th Cir. 1988):
[T]he burden on the party moving for summary judgment is only to demonstrate, i.e., `[to] point out to the District Court,' that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails to carry that burden, summary judgment should be granted.Id. at 1339 (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-74 (8th Cir. 1988) (citations omitted) (brackets in original)).
"A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Id.
DISCUSSION
In their motion papers, both parties focus on whether the proof is sufficient with respect to two of the five elements of a malicious prosecution claim: the probable cause and malice elements. Neither party mentions any of the constitutional claims raised by Plaintiff. The Court does not know whether Plaintiff has abandoned some or all of those claims or still intends to pursue them. The Court directs Plaintiff to so advise it when he files his trial brief in this case.To prevail on a malicious prosecution claim, Plaintiff must prove: (1) a proceeding instituted or continued by the Defendant against the Plaintiff; (2) the termination of the proceeding in favor of the Plaintiff; (3) the absence of probable cause for the proceeding; (4) malice on the part of the Defendant and (5) damages. See Hollingsworth v. First National Bank Trust Co., 311 Ark. 637, 640 (1993). Defendants argue that Plaintiff's Complaint should be dismissed because there was probable cause for Plaintiff's arrest and because there is no indication Defendants acted with malice or otherwise inappropriately with regard to Plaintiff's arrest. The Court disagrees. On this summary judgment record, the Court cannot conclude that these two elements are lacking as a matter of law.
Plaintiff also contends that even if probable cause existed for the initiation of the criminal prosecution, probable cause was lacking to continue the prosecution. Arkansas law permits a malicious prosecution claim for either the initiation or continuation of proceedings against a plaintiff. See Kellerman v. Zeno, 64 Ark. App. 79, 983 S.W.2d 136 (1998).
Ordinarily, whether probable cause existed for an arrest and to seek a prosecution is a fact question. Arkansas defines the term "probable cause" "as a state of facts or credible information which would induce an ordinarily cautious person to believe that the accused is guilty of the crimes charged." Wal-Mart Stores, Inc. v. Thomas, 76 Ark. App. 33, 38, 61 S.W.3d 844 (2001). Further, "ordinary caution is a standard of reasonableness that presents an issue for the trier of fact when the proof is in dispute or subject to different interpretations." Id.
The initial proof linking Plaintiff to the crime was shaky at best. Neither Ms. Shipp nor Mr. Clark implicated Plaintiff in the actual theft. Ms. Shipp's testimony was less than absolute, indicating that "she thought she remembered" her boyfriend telling her Plaintiff was getting one of the televisions. Arguably, her hearsay testimony, without more, would not induce a person of ordinary caution to believe Plaintiff guilty of theft. Finally, as noted, Mr. Clark's testimony does not directly implicate Plaintiff in the actual theft. Mr. Clark recounted that he stole the televisions with the specific intent of "giving one" to Plaintiff and that Plaintiff drove to Mr. Massengill's apartment to pick up the television. The record is devoid of any mention of the circumstances which motivated Mr. Clark to give Plaintiff a television or whether Plaintiff knew the television had been stolen. That Mr. Clark may have stolen the televisions with the specific intent to benefit Plaintiff does not make the Plaintiff guilty of theft. In sum, no witness implicated Plaintiff in the actual theft. Plaintiff fully cooperated with the investigation, permitted a search of his residence, and no television was found. Thus, only the testimony of Ms. Shipps and Mr. Clark supported the probable cause for his arrest.
Even assuming that probable cause existed for the initial arrest, at a minimum an issue of fact exists as to whether probable cause existed for the Defendants' continued pursuit of criminal charges against Plaintiff, charges which resulted in Plaintiff being forever barred from UP's facilities and the loss of his job, for no apparent reason other than the fact that he was charged with theft.
Plaintiff contends that the Defendants failed and refused to investigate either his alibi or Mr. Clark's incentive to name him as a recipient of one of the stolen television sets. Indeed, the record does not indicate whether the Defendants ever attempted to speak with Plaintiff's witness Pat Kelly, who purportedly would have testified that Mr. Clark threatened to get even with Plaintiff following Plaintiff's giving him a bad performance review. Such evidence bears heavily on whether probable cause existed to continue to pursue the criminal charges.
Finally, the record is tainted with what, arguably, may be fabricated evidence by Defendant Brazile. At a minimum, there exists a question of fact regarding whether Defendant Brazile testified truthfully in his affidavit that he found a remote control matching a stolen television set in the search of Plaintiff's home. This testimony is controverted by the affidavit of Cross County Deputy Tommy Wright, submitted by Plaintiff. Therein, Mr. Wright states that he accompanied Defendants Brazile and Hauer during the search of Plaintiff's residence, that Plaintiff consented to and cooperated fully with the search, and that nothing was found during the search to link Plaintiff to the theft of the televisions from UP. Mr. Wright specifically states that to the best of his knowledge, Mr. Bazille's statement that he found a remote control to one of the missing TV's is untrue. Mr. Wright further opines that he never observed Mr. Bazille or Mr. Hauer make any effort to clear Mr. Thomas as a suspect.
The situation here is unusual in that the Defendant UP was not only the victim of the crime but also responsible for investigating it. UP had its own agents, Defendants Mr. Bazile and Mr. Hauer, who possessed police powers to investigate crimes occurring on UP property. Even though the Defendants ultimately turned information over to the Marion Police Department, it was the individual Defendants who were instrumental in determining the information that was (or was not) presented to the Department and to the state court judge responsible for issuing the arrest warrant. If the individual Defendants fabricated or misrepresented the evidence or if they turned a blind eye to evidence which would have exonerated Plaintiff or cast serious doubt on his involvement in the theft, then such evidence is relevant to both the issue of probable cause and the issue of malice.
If Mr. Bazille fabricated evidence to justify the continued pursuit of criminal charges against Plaintiff, it certainly would be sufficient to permit a jury finding of malice. Malice may be inferred from the reckless disregard of predictable harmful consequences. See AMI 2218, Punitive Damages.
CONCLUSION
The Court concludes that it would benefit from a full development of the factual record at trial, and therefore, it declines to make any rulings as a matter of law at this juncture.
IT IS THEREFORE ORDERED THAT Defendants' Motion for Summary Judgment (Docket No. 10) be, and it is hereby, DENIED.
IT IS SO ORDERED.