Creamer v. Raffety

• Decision Date: 27 December 1984
• Docket Number: No. 2,CA-CIV,2
• Citation: 699 P.2d 908,145 Ariz. 34
• Parties: Bill Ross CREAMER, Plaintiff/Appellant, v. Michael S. RAFFETY, Jean Raffety, Huey Lee Morris, Ruth Ann Morris and City of Willcox, Defendants/Appellees. 4981.
• Court: Arizona Court of Appeals

Page 908

699 P.2d 908

145 Ariz. 34

Bill Ross CREAMER, Plaintiff/Appellant, v. Michael S. RAFFETY, Jean Raffety, Huey Lee Morris, Ruth Ann Morris and City of Willcox, Defendants/Appellees.

No. 2 CA-CIV 4981.

Court of Appeals of Arizona Division 2.

Dec. 27, 1984.

Review Denied March 26, 1985.

Gentry, Desens & Behrens by Tony K. Behrens, Bisbee, for plaintiff/appellant

Mesch, Clark & Rosenthal, P.C. by Tom R. Clark, Tucson, for defendants/appellees Raffety and Morris.

Fish, Briney, Duffield, Miller, Young & Adamson, P.C. by K. Alexander Hobson, Tucson, for defendant/appellee City of Willcox.

HATHAWAY, Judge.

Plaintiff's lawsuit alleged his arrest to be in violation of his constitutional rights pursuant to 42 U.S.C. § 1983, and raised claims of false arrest, false imprisonment, and malicious prosecution. The court granted the defendants' motion for summary judgment on the plaintiff's claim for malicious prosecution, and plaintiff was granted leave to file an amended complaint. The amended complaint sought damages based on claims of false imprisonment (Count One), failure of defendants to inform plaintiff of the conditions for release or bail (Count Three), delay in bringing the plaintiff before a magistrate (Count Five), intentional infliction of emotional distress (Count Seven), and invasion of privacy resulting from a strip search (Count Nine). Each of these counts also alleged that the defendants' conduct was grossly negligent, in reckless disregard of plaintiff's rights, or intentional, and sought punitive as well as compensatory damages. The complaint further alleged as to each of these claims that the actions of the defendants deprived him of his constitutional rights, pursuant to 42 U.S.C. § 1983 (Counts Two, Four, Six, Eight and Ten). Plaintiff also sought, under 42 U.S.C. § 1983, to enjoin the City of Willcox from enforcing its strip search policy (Count Eleven). Plaintiff challenges on appeal defendants' entitlement to judgment as a matter of law on the malicious prosecution claim and the entry of a directed verdict for defendants on the other counts. We affirm in part and reverse in part.

Since on this appeal we are considering the propriety of the entry of summary judgment against the plaintiff, we consider the record in the view most favorable to the plaintiff, Livingston v. Citizens Utility, Inc., 107 Ariz. 62, 481 P.2d 855 (1971). Further, in connection with the granting of the directed verdict against the plaintiff, we are guided by the rule that if the evidence is of such a character that reasonable minds may differ on conclusions or inferences to be drawn therefrom, the motion for directed verdict must be denied. Bailey v. Montgomery Ward and Company, 6 Ariz.App. 213, 431 P.2d 108 (1967). Thus, viewing the record in the light most favorable to reversal, the following scenario evolves.

On January 28, 1980, the plaintiff, Bill Ross Creamer, and his friend, John Stoddard, met in the City of Willcox and proceeded in Stoddard's automobile to the Silver Bullet Bar, two miles east of town. En route to the bar, Creamer drank from a 12-oz. bottle of beer, but did not finish it. At the Silver Bullet Bar, he consumed five additional 12-ounce beers in about 3 1/2 hours.

At approximately 1:00 a.m., January 29, Creamer and Stoddard left the Silver Bullet After Stoddard's arrest, Sgt. Raffety approached the passenger side of the Stoddard vehicle where Creamer was seated and asked him to step out. Creamer did so without any objection and was directed by Raffety to stand at a certain point approximately six feet from the Stoddard vehicle, facing the passenger side door. The police officers had decided that the Stoddard vehicle would be impounded, inventory searched and towed. The police officers testified that this course was decided upon because Stoddard wanted his automobile, which was new, to be secured. Appellant takes issue with this version of the facts and argues that the evidence would support a finding that this decision was made without inquiring of Stoddard whether he would allow Creamer to drive his vehicle home or whether he wished other arrangements made for handling the vehicle. The evidence that counsel for appellant refers to is equivocal and weak, and indicates that Stoddard did not remember such a discussion with the officers, but concludes "there was no discussion." We therefore accept that statement as true.

Bar to return to Willcox. Stoddard drove. A police car driven by Officer Huey Lee Morris and carrying Sgt. Michael S. Raffety, police officers for the City of Willcox and defendants in this lawsuit, was heading out of town and encountered the Stoddard vehicle. The patrol car turned around and pulled the Stoddard vehicle over for crossing the center line. Morris approached the driver, Stoddard, determined that he was a DWI suspect, and had him step out of the automobile and go with Morris towards the patrol car, which was parked behind. Stoddard was given various field sobriety tests and was placed under arrest for driving while intoxicated.

Sgt. Raffety undertook to conduct an inventory search and entered the Stoddard vehicle from the passenger side door. Creamer, feeling that the search was inappropriate because he believed it went beyond a search incident to arrest according to information he had obtained in a course he had taken at a community college, voiced his objection to the search and moved forward two steps without "particular purpose." Sgt. Raffety stepped out of the Stoddard vehicle and escorted Creamer back to his original position.

Sgt. Raffety continued with the search and again Creamer voiced his objections based upon the lack of consent by Stoddard to the search and again took two steps forward. He was again escorted by Sgt. Raffety back to his original position and warned, "If you do it one more time, you are going to be arrested." At this point, Officer Morris, the other officer on the scene, was standing next to Creamer.

Sgt. Raffety again proceeded with the search, this time from the driver's side door. Creamer again objected and took two steps forward. Sgt. Raffety testified that on one of these occasions, Creamer touched or grabbed him. Creamer denies this, and we accept his denial as true for our purposes. Testimony given by Creamer on cross-examination describes the scene:

"Q. Okay. Now, at the time that you were coming up to Mr. Raffety, Sergeant Raffety, and telling him that he can't search the car, it was your intention to prevent him from doing that, was it not?

A. It was to prevent him from searching what I thought he was searching for, yes, sir.

Q. So it was your intention to prevent him from doing that when you took those two steps forward and told him not to do it?

A. To stop the search?

Q. Yes.

A. Yes, for what I thought the search was for, yes.

* * *

* * *

Q. And at that time it was your intent to stop him from whatever he was doing in the vehicle?

A. That is true."

On the third occasion of Creamer's attempt to prevent the search, Sgt. Raffety instructed Officer Morris to place him under arrest. He was thereupon handcuffed by Creamer was handcuffed with his hands at his back. When he was placed in the back of the patrol car, the pressure on the handcuffs by leaning back on the seat with his hands caused the handcuffs to tighten, since they were not "double-locked." Creamer asked if the handcuffs could be loosened a bit. His request was directed specifically to Sgt. Raffety, who ignored it. Creamer then directed an obscenity toward Sgt. Raffety. The handcuffs were not loosened until they were eventually removed at the police station. This resulted in the tightened handcuffs causing severe red marks and bruises upon Creamer's wrists.

[145 Ariz. 39] Morris and placed in the rear seat of the patrol car. The arrest was for violation of City of Willcox Ordinance No. 9.40.060, obstructing a police officer, a misdemeanor. No pat-down search incident to arrest was ever performed.

At the police station, while Creamer was still handcuffed with his hands at his back, Sgt. Raffety told him that he could make a telephone call, taking him into his office and by-passing the booking room, into which John Stoddard was taken. Creamer recited the number of his home phone, and Sgt. Raffety dialed the number and held the telephone receiver to Creamer's ear. Creamer's mother answered the telephone and Creamer told her to bring his younger brother, Tom, to the phone. After the passage of two to three minutes, Creamer's brother Tom was awakened and came to the telephone; however, the line was dead. Sgt. Raffety had taken the telephone receiver from Creamer's ear at a point about 15 to 30 seconds after Creamer had stopped conversing with his mother and listened for himself to hear that no one was on the other end. He hung up the phone and told Creamer, "You are staying the night."

Creamer's mother and brother became concerned and proceeded to drive around Willcox looking for him. They eventually stopped Stoddard, who had just been released into the custody of his employer, at the police station. Creamer's mother was given the impression that she could not get her son out of jail at that time, and she and Tom returned home.

The policy of the City of Willcox police station dictated that all in-coming prisoners to be placed in cells must be subjected to a strip search and visual body cavity inspection. The reason for the policy was that the jail facility was small, although plaintiff's exhibits 23 and 26 together indicate at least four cells. Thus, for security reasons, according to the police chief, all prisoners were subjected to this strip search. Creamer testified that the search was conducted on a cold cement floor and that the search caused him humiliation and anguish. After the strip search in a locker room, Creamer was escorted to a jail cell where he was incarcerated alone, apparently the only arrestee incarcerated at the time, since Mr....