Cottrell v. Kaysville City, Utah, 92-4174

• Decision Date: 18 May 1993
• Docket Number: No. 92-4174,92-4174
• Citation: 994 F.2d 730
• Parties: Lisa Ann COTTRELL, Plaintiff-Appellant, v. KAYSVILLE CITY, UTAH, a political subdivision and municipal corporation of the State of Utah; Robert L. Nace, individually and as an employee of said municipality; Davis County, Utah, a political subdivision of the State of Utah; Mary Haddock Robb, and Lorine Ann Kemner, individually and as employees of Davis County, Utah, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 730

994 F.2d 730

Lisa Ann COTTRELL, Plaintiff-Appellant, v. KAYSVILLE CITY, UTAH, a political subdivision and municipal

corporation of the State of Utah; Robert L. Nace,

individually and as an employee of said municipality; Davis

County, Utah, a political subdivision of the State of Utah;

Mary Haddock Robb, and Lorine Ann Kemner, individually and

as employees of Davis County, Utah, Defendants-Appellees.

No. 92-4174.

United States Court of Appeals, Tenth Circuit.

May 18, 1993.

George K. Fadel, Bountiful, UT, for plaintiff-appellant.

Dale J. Lambert and Karra J. Porter, of Christensen, Jensen & Powell, Salt Lake City, UT, for defendants-appellees Kaysville City and Robert L. Nace.

Gerald E. Hess, Deputy Davis County Atty., Farmington, UT, for defendants-appellees Davis County and Mary Haddock Robb.

Before MOORE and BRORBY, Circuit Judges, and VAN BEBBER, ^* District Judge.

PER CURIAM.

Plaintiff Lisa Ann Cottrell brought this action pursuant to 42 U.S.C. § 1983 to recover damages for alleged constitutional violations which took place when she was arrested on driving under the influence charges and subsequently strip searched. The district court entered summary judgment on all claims in favor of defendants Kaysville City, Utah, Robert L. Nace, Davis County, Utah, Mary Haddock Robb, and Lorine Ann Kemner. Cottrell v. Kaysville City, 801 F.Supp. 572, 576 (D.Utah 1992). We reverse the district court and remand this matter for further proceedings. ¹

Background

On July 27, 1990, the Davis County dispatcher received a telephone complaint concerning a Chevrolet Blazer driving on Green Road in Fruit Heights, Utah. The complainant relayed concern that the driver was operating under the influence. The dispatcher communicated this information to Kaysville City police officers via radio. Officer David Quinley responded to the call and located the Blazer driving very slowly on Green Road. He followed the vehicle into a church parking lot, and parked right behind it. The time was approximately 10:30 p.m.

Officer Quinley approached the car. The driver was plaintiff Cottrell. The officer told Ms. Cottrell he suspected she was driving under the influence. She told him she had not had anything to drink. He also inquired whether she had taken any drugs. She told him she had a prescription for phenobarbital, but had not taken any that day. The police report which Officer Quinley submitted at the time states he thought her speech was "a little slurred." No other observations of her physical appearance are noted in the report. In the affidavit submitted in this litigation, however, Officer Quinley stated Ms. Cottrell's "eyes were very dilated", and "her speech pattern was erratic." Appellant's App. at 57.

Based on his observations, Quinley radioed in his assessment that she was driving under the influence. Shortly thereafter, he asked Ms. Cottrell to perform certain field sobriety tests. There is some dispute about Ms. Cottrell's ability to perform these tests. Officer Quinley stated in his affidavit that she was unable to accomplish the "walk and turn" test because she took more than the instructed number of steps and held her arms up when she walked heel to toe. He also concluded she failed the "one leg stand" because on her first try she touched her foot on the ground before counting to thirty.

Ms. Cottrell, on the other hand, stated in her affidavit that she performed the "walk and turn" test without any problem, and also was able to count to thirty while holding her leg up. She admitted she could not follow a pen light when requested to do so, but stated she has never been able to follow lights. The parties agree that she was able to reach out and touch a pen held in front of her. Ms. Cottrell also stated that throughout the time the testing took place, one of the officers was shining a large flashlight in her face, which made it difficult to see.

Defendant Kaysville City police officer Robert Nace arrived on the scene while Officer Quinley was administering the field sobriety tests. Officer Nace also asked Ms. Cottrell if she had been drinking or using drugs. Again, she stated she had not, and referred Officer Nace to her driver's license, which had a medical notation on it. Officer Nace asked Ms. Cottrell to look him straight in the eye, but she declined, stating she belonged to a group which taught it was disrespectful to do so. At his request, Ms. Cottrell breathed into Officer Nace's face. He did not detect any alcohol.

Ms. Cottrell was handcuffed and placed in the police squad car. Her vehicle was inventoried, but no weapons or contraband were found. At the Davis County jail, Ms. Cottrell allowed officers to take a blood sample to verify her innocence. She was booked, and female officers performed a thorough pat down search. All her jewelry, her belt, and her shoes were taken from her. At the time of her arrest, she was wearing light summer clothes. She made a request of Officer Nace to call her parents, but that request was denied.

According to Ms. Cottrell's complaint, Officer Nace then ordered a strip search. The female deputies on duty that night were defendants Mary Haddock Robb and Lorine Ann Kemner. ² According to the complaint, one of these defendants told Officer Nace the search was unnecessary, but he ordered them to do it anyway. Lisa Cottrell was taken to a separate room. She was required to take off all her clothes and bend over while the deputies inspected her. Officer Nace denies that he ordered the search, and disputes that the incident ever took place.

Ms. Cottrell ultimately called a friend who contacted her parents. They posted a $600.00 bond and she was released. The blood sample analysis ultimately revealed no alcohol or drugs, except for a trace of phenobarbital, which was within prescription limits. Notwithstanding this blood analysis, Officer Nace filed a report with the State Department of Public Safety seeking revocation of Ms. Cottrell's driver's license for driving under the influence. Following a hearing, that department determined it would not suspend or revoke her license.

In addition, on October 1, 1990, a criminal information was filed in Davis County circuit court charging Lisa Cottrell with driving under the influence of alcohol and/or drugs. After Ms. Cottrell supplied the county attorney with the results of the blood sample analysis, an amended information was filed charging her with failure to wear and secure a safety belt system. On March 18, 1991, Ms. Cottrell gave the defendants statutory notice of her injuries pursuant to Utah Code Ann. § 63-30-11. This lawsuit followed.

Discussion

The district court analyzed Ms. Cottrell's claims under Fed.R.Civ.P. 56(c), concluding the defendants were entitled to judgment as a matter of law. We review this determination de novo. Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir.1990). Thus, we may affirm only if we determine this case involves no genuine disputes over material facts. Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). In this regard, our review of the record is in a light most favorable to Ms. Cottrell. Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10th Cir.1992). It is with these standards in mind that we review the district court's decision.

The district court approached its analysis of all of Ms. Cottrell's claims from the singular question "whether or not the strip search of the plaintiff violated her Constitutional rights." 801 F.Supp. at 574. Ultimately, the court determined that because defendants' actions were reasonable as a matter of law, none of the claims, regardless of the legal theory on which they were based, could withstand the summary judgment challenge.

We disagree with the district court's approach on two levels. First, our review of the record reveals this case is rife with factual disputes which are both genuine and material. Second, we reject the district court's legal approach to the issues presented. Ms. Cottrell has stated several different claims under § 1983. It was error to consider them as one claim going only to the allegedly illegal search.

The amended complaint states numerous claims for relief. Under one section of the complaint identified specifically as a § 1983 claim, Ms. Cottrell states individual claims for wrongful arrest, wrongful search and seizure, and deliberate indifference to her constitutional rights by virtue of the city's failure to train and supervise Officer Nace. She alleges that as a result of the defendants' individual and collective actions, she suffered deprivation of her due process, Fourth Amendment, and equal protection rights. She also states separate claims for false imprisonment, assault and battery, malicious prosecution, abuse of process, intentional infliction of emotional distress, defamation, and invasion of privacy.

The district court's approach made it unnecessary to address Ms. Cottrell's claims on an independent basis. Implicit in the court's conclusions regarding the reasonableness of defendants' actions, however, is a rejection of two of the claims stated in the complaint. ³ Specifically, the district court rejected Ms. Cottrell's wrongful arrest and illegal search claims. Because the requirements for the claims are different, we address them separately here. We hold that both present factual issues which make summary judgment inappropriate.

Wrongful Arrest

A plaintiff may recover damages under § 1983 for wrongful arrest if she shows she was arrested without probable cause. See Lessman v. McCormick, 591 F.2d 605, 609-11 (10th Cir.1979); see also Franklin v. Thompson, 981 F.2d 1168, 1170 n. 3 (10th Cir.1992) ("A claim of false arrest is premised on a lack of probable cause, a constitutional right under the Fourth Amendment."). Probable cause, in turn, is present if "at the moment the arrest was made ... the facts and circumstances within [the arresting officers'] knowledge and of which they had...