Jernigan v. Richard

• Decision Date: 11 January 2012
• Docket Number: No. CV–08–2332–PHX–GMS.,CV–08–2332–PHX–GMS.
• Citation: 907 F.Supp.2d 998
• Parties: Rachel JERNIGAN, Plaintiff, v. Kyle RICHARD, et al., Defendants.
• Court: U.S. District Court — District of Arizona

907 F.Supp.2d 998

Rachel JERNIGAN, Plaintiff,

v.Kyle RICHARD, et al., Defendants.

No. CV–08–2332–PHX–GMS.

United States District Court,

D. Arizona.

Jan. 11, 2012.

Alan M. Simpson, Alan M. Simpson PC, Carefree, AZ, E. Thomas Barham, Jr., Barham & Ostrow, Los Alamitos, CA, for Plaintiff.

Julie Zatz, U.S. Dept. of Justice, David A. Dejute, U.S. Attorneys Office, Los Angeles, CA, Kim Seibert Alvarado, Robert Grasso, Jr., Grasso Law Firm PC, Chandler, AZ, for Defendants.

AMENDED NUNC PRO TUNC ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court are: (1) Motion for Summary Judgment by Pamela Elliott, the Town of Gilbert, David Landgraf and Randy McLaws, collectively “the Gilbert Defendants” (Doc. 96), (2) Motion for Summary Judgment and Memorandum of Points and Authorities in Support Thereof by Kyle Richard (“SA Richard”) (Doc. 145), (3) Motion for Partial Summary Judgment by Rachel Jernigan (Doc. 152), and (4) Plaintiff's Request to Disregard the Town Defendants' Response to Plaintiff's Statement of Additional Facts (Doc. 172). For the reasons stated below, the Court grants the Gilbert Defendants' Motion for Summary Judgment on any state or federal claims for malicious prosecution. It also grants the motion to the extent it seeks summary judgment on behalf of Defendant David Landgraf. The motion is otherwise denied. The Court grants Defendant Kyle Richard's Motion for Summary Judgment to the extent that Plaintiffs assert a Bivens claim against Richard arising from Plaintiff's initial arrest, detention and prosecution for the September 20, 2000 bank robbery, or the October 25, 2000 bank robbery. The Court denies the Motion as it relates to all other claims asserted by Plaintiff. The Court grants the Motion for Partial Summary Judgment by Rachel Jernigan only to the extent that it determines that Defendant Kyle Richard is not entitled to qualified immunity. It denies the motion in all other aspects. The Court grants Plaintiff's request to Disregard the Town Defendant's Response.

BACKGROUND

In the year 2000, five robberies of East Valley banks were committed by an Hispanic ¹ or Asian female or females with similar physical characteristics, similar dress, and using similar modus operandi. The robberies were committed on September 20 in the Town of Gilbert (robbery one), October 11 in Tempe (robbery two), October 25 in Chandler (robbery three), November 28 in Gilbert (robbery four), and November 30 in Mesa (robbery five).

Pursuant to an understanding between federal and local authorities, the perpetrator of each of the five robberies was subject to federal charges. Special Agent Richard (“SA Richard”) had been the agent on call for robberies one and four, and thus was the first FBI agent to investigate the suspect or suspects in these two robberies. Because robberies two, three and five were deemed by the FBI to have been perpetrated by the same suspect or suspects, the FBI's investigation of all five of the robberies was assigned to SA Richard.

The police departments of the respective municipalities investigated each of these robberies in conjunction with the FBI. According to SA Richard, it is the common practice, when the FBI is involved in such cases, that the FBI agent, along with the case detective from the municipality, interview the victim teller. The responding police department usually handles the other interviews which are then made available to the FBI. (Doc. 130, Ex. 7B at 23).

SA Richard interviewed the victim/teller of the first robbery, Elizabeth Chlupsa, with Detective Pamela Brock ² of the Gilbert Police Department. Detective Brock is also a Defendant in this action. Gilbert Police interviewed other witnesses to the bank robbery and Detective Brock eventually completed a report. As the officer in charge for the FBI, SA Richard received copies of the witness statements and the other reports prepared by Detective Brock.

A surveillance video tape of poor quality provided some depiction of the robbery suspect. A postal inspector with whom SA Richard consulted believed that the suspect depicted in the video resembled Rachel Jernigan, with whom the postal inspector was familiar due to other investigations. With the assistance of David Landgraf running the software,³ SA Richard and Detective Brock prepared a six-pack photo line-up that included a booking photo of Ms. Jernigan and five other persons. These persons were among those selected by a computer program used by Gilbert police as having some similar physical characteristics to Ms. Jernigan. From the photographs generated by the computer program, Brock and Richard selected the five additional candidates for the photo array.

SA Richard showed the lineup to Ms. Chlupsa. After having received an admonition regarding eyewitness identification, and observing the card for between twenty and forty-five seconds, Ms. Chlupsa picked out Ms. Jernigan's picture in the line-up. In doing so Ms. Chlupsa indicated that she “really [felt] like it's her.” When asked how strongly she felt about it, she responded “I really feel confident.” (Doc. 97, Ex. A at TOG000147; Id., Ex. D at S–B–O 000161).

Based on Ms. Chlupsa's identification, SA Richard and an Assistant United States Attorney obtained a federal indictment against Ms. Jernigan for the Gilbert robbery that was issued on October 11. (Doc. 97, Ex. M). On that same date, a second similar robbery occurred in Tempe. Although the suspect was not described as wearing a baseball cap, otherwise the general description of the suspect, the clothes that she was wearing, and the method used to rob the bank were similar to the Gilbert robbery. The FBI quickly determined that both robberies were likely committed by the same person and followed its usual practice of reassigning the Tempe bank robbery from Special Agent Mesick to SA Richard. This reassignment took place on the same date that the second robbery occurred. (Doc. 97, Ex. L at KR–645). SA Richard thereafter took over the case, and conducted, among other things, follow-up interviews with Ms. Ward the victim/teller.

Despite the FBI's determination that the robbery was likely committed by the same suspect, when Special Agent Mesick showed Ms. Ward the same photo line-up that had been shown to Ms. Chlupsa, she did not recognize anyone depicted in the photos as the woman who robbed her. ( Id. at KR–395). A few days later, when a Gilbert police officer showed Ms. Ward the surveillance photo taken of the robbery suspect in the Gilbert robbery, she indicated to SA Richard that she was “pretty sure” she had been robbed by the same person. (Doc. 130–3, Ex. 22 at S–B–O 002390–91). She indicated that the person depicted in the surveillance video and the person who robbed her were the same height, they both had a full face, and they both had short dark hair. ( Id., see also Id. at 00473).

Two weeks later, on October 25, a third similar bank robbery occurred in Chandler. The descriptions of the suspect given by the witnesses again generally matched the descriptions given of the suspect in the Gilbert and Tempe robberies. In light of the distinct similarities, when the case was opened it was officially assigned to SA Richard. (Doc. 130, Ex. 7B at 16). Once assigned to the case, SA Richard traveled to Ms. Etherington's home on the day of the robbery and showed her the same photo six-pack containing Ms. Jernigan that had been show to Ms. Chlupsa and Ms. Ward. After studying the line-up card for about twelve minutes, Ms. Etherington selected Ms. Jernigan as being the person who robbed her. She thought “[t]he shape of her face is right, kind of rounded, and came to a point. The eyes look very similar.” (Doc. 97–2, Ex. D at S–B–O 000156; Doc. 97–4, Ex. L at KR–453).

On November 10, 2000 Ms. Jernigan was arrested and taken into custody. (Doc. 97–4, Ex. L at KR–574–79). She was detained and was thus in custody when two distinctly similar additional robberies occurred in quick succession.

On November 28, a fourth similar robbery of another bank in Gilbert occurred directly across the intersection from the location of robbery one. SA Richard was the agent on call for the FBI. Detective Brock was not assigned to this investigation. Instead, Detective Ross Estavillo, also a detective with the Gilbert Investigations–Persons Crimes Unit was assigned. Witnesses again gave the same general description and MO of the suspect that had been given for the first three robberies.

Two days later, on November 30, a fifth similar robbery occurred in Mesa. Again, the physical description of the robber was indistinct in general terms from the physical description of the robber given for robbery numbers one through four. The description of the modus operandi was similar to certain aspects of those robberies. The suspect was described as fleeing the scene in a dark Toyota 4Runner with gold trim—the same description given of the getaway car in robbery two. The FBI reassigned SA Richard to the file after having determined that the November 30 robber was committed by a serial robber. (Doc 165–1, Ex. B at 289).

Witnesses to all of the robberies generally described a short woman in her late twenties or early thirties who was either Hispanic or Asian, with pulled back black hair,⁴ indicating, at best, a statistically uncommon bank robber.⁵ The perpetrator dressed in jeans and a blue jacket, sweatshirt or long sleeved shirt, often with a shirt underneath.⁶ The witnesses from the first five robberies described the robber as waiting her turn in the teller line and then, when arriving at the teller, presenting her demand in a note that she gave to, but did not leave with, the teller. Witnesses described the notes as having been written on white lined paper that was folded or crumpled.

Multiple witnesses to robbery two and a witness to robbery five independently described the vehicle in which the robber fled the scene as a dark or black Toyota 4Runner with gold trim.⁷ Witnesses to robberies...