Jones v. Masiello
| Decision Date | 31 August 2021 |
| Docket Number | 3:19-CV-5954-JLR-DWC |
| Court | U.S. District Court — Western District of Washington |
| Parties | TERRELL EDWARD JONES, Plaintiff, v. PAUL MASIELLO, et al., Defendants. |
Noting Dated: September 17, 2021
REPORT AND RECOMMENDATION
The District Court referred this action, filed pursuant to 42 U.S.C. § 1983, to United States Magistrate Judge David W. Christel. Currently pending before the Court is the motion of defendants Paul Massiello, Jeffrey Schaap, Michael Mohr Jeffrey Humphrey and Lewis County for summary judgment. Dkt 51.
Plaintiff Terrell Jones, a former prisoner proceeding pro se and in forma pauperis, brought this action under 42 U.S.C. § 1983 alleging defendants violated his constitutional rights when he was prosecuted for violation of an order of protection (the “no-contact order prosecution”), of which he was ultimately acquitted. Dkt. 41. Defendants seek summary judgment, arguing certain defendants are entitled to absolute immunity, others to qualified immunity and plaintiff has not established the requisites for municipal liability against Lewis County. In addition, plaintiff has not established the requisites for municipal liability against Pierce County.
Because defendants Schaap and Masiello are entitled to absolute immunity, the Court recommends the claims for damages against them be dismissed with prejudice. Because plaintiff has not established the violation of a clearly established right, the Court recommends dismissal of the claims for damages against defendants Humphrey and Mohr on the ground of qualified immunity. Furthermore, plaintiff has failed to establish plaintiff's constitutional rights were violated due to an official custom or policy of defendants Lewis County and Pierce County, and therefore the Court recommends the claims against them be dismissed.[1] .
Plaintiff initiated this matter on October 7, 2019. Defendants Schaap, Masiello, Mohr, Humphrey and Lewis County filed their motion for summary judgment, together with a supporting declaration and a Rand notice, on December 17, 2020. Dkts. 51, 52, 53. In response to requests from plaintiff, the Court granted multiple extensions of the deadline for plaintiff to respond. Dkts. 58, 60, 63. The Court's most recent order granted a continuance to June 25, 2021 and warned no further continuances would be granted. Dkt. 63. Plaintiff has not filed any papers in response to defendants' motion; however, plaintiff's amended complaint is signed under penalty of perjury and constitutes evidence. Dkt. 41 at 60.[2]
Plaintiff, a former prisoner, brings claims arising out of the no-contact order prosecution, in which he was acquitted after a jury trial. Dkt. 41. Plaintiff's amended complaint brings claims against individual defendants Jeffrey Schaap (the Lewis County deputy prosecuting attorney who tried the case), Paul Masiello (a Lewis County deputy prosecutor who appeared as a witness at the trial), and Lewis County detectives Michael Mohr (who investigated the matter) and Jeffrey Humphrey (who was present during an interview of defendant Masiello by plaintiff's criminal defense counsel). Id. Plaintiff's amended complaint also adds claims against Lewis County (where plaintiff was tried for allegedly violating the no-contact order) and Pierce County (where the underlying no-contact order was issued). Id. Plaintiff contends defendants violated his Fourteenth, Sixth, Fifth and Fourth Amendment rights by: (1) failing to search for and to preserve video surveillance evidence plaintiff contends contradicts a witness statement by the party protected by the no-contact order; (2) tardily disclosing defendant Masiello as a witness and conspiring to present false testimony from him; and (3) failing to place defendant Masiello under oath when he was interviewed by plaintiff's criminal defense counsel. Id. at 11-15, 32, 46, 51-54, 56-57. Plaintiff further alleges the County defendants violated his rights when their employees failed to follow County policy. Id. at 33, 39, 42-43, 55.
Plaintiff's amended complaint alleges he was in a Lewis County courtroom on April 11, 2017 on an unrelated matter when Tara Hopgood, the subject of an order of protection against plaintiff, sat next to him and “stalked” him. Dkt. 41 at 5. Plaintiff first contends courthouse parking lot security video would establish he arrived separately from Ms. Hopgood and would contradict Ms. Hopgood's statement to defendant Mohr that, at plaintiff's request, she drove plaintiff to his court appearance. Id. at 5-11. Plaintiff contends defendants failed to consider the relevance of the video footage and failed to preserve it before it would be recorded over. Id. Second, plaintiff alleges that, as his scheduled bench trial was imminent, defendants tardily disclosed defendant Masiello would be a witness. Id. at 11-12; 46. Plaintiff further contends the testimony defendant Masiello presented at trial-that he had observed plaintiff sitting next to Ms. Hopgood in the courtroom and conversing with her-was false and contradicted an earlier statement to plaintiff's prior criminal defense counsel. Id. After the disclosure of defendant Masiello as a witness, plaintiff requested new defense counsel and a jury trial, both of which were granted. Id. at 12-13, 46-52; Dkt 52 at 29. Ultimately, the jury acquitted plaintiff of the charge he had violated the no-contact order. Id. at 59.
Defendants' unrebutted evidence shows the no-contact order prosecution arose after the Honorable R.W. Buzzard, who was presiding over plaintiff's April 11, 2017 hearing, observed plaintiff to be in contact with Tara Hopgood, who was the subject of an order of protection against plaintiff. Dkt. 52 at 10. Defendant Mohr was called to investigate the matter, spoke with Judge Buzzard and plaintiff, and interviewed Ms. Hopgood-who stated she had provided plaintiff a ride to court at his request. Id. at 35-37. Defendant Schaap quoted from Mohr's investigative report-which presented the information provided by both Judge Buzzard and Ms. Hopgood-in an affidavit supporting probable cause. Id. at 10-11. A Lewis County Superior Court judge found probable cause existed to detain plaintiff on the charge he had violated the order protecting Ms. Hopgood. Id. at 13.
Defendant Mohr states his investigation focused upon the presence of plaintiff with Ms. Hopgood in the courtroom-not on whether they had arrived together. Dkt. 47 at 22. Defendant Mohr therefore did not retrieve video footage as part of his investigation because “it did not cross my mind as being relevant or potentially exculpatory: the allegation was there were two people violating a protective order in the Lewis County District Court courtroom, ” Dkt. 47 at 22. Defendant Schaap was not informed of and never possessed any video footage, and states plaintiff's arrest was not based solely upon Ms. Hopgood's statement. Dkt. 47 at 13.
Shortly before the scheduled October 2, 2017 trial date, Defendant Masiello overheard Defendant Schaap discussing the matter and informed Schaap he had been in the courtroom on the day in question and had witnessed the alleged violation. Dkt. 47 at 15. Defendant Schaap, who had previously been unaware of Defendant Masiello's evidence, filed an updated witness list disclosing Defendant Masiello as a witness on September 19, 2017, thirteen days before the trial date and within the time prescribed for witness disclosure by the scheduling order in the case. Dkt. 52 at 15.
Prior to the disclosure of defendant Masiello as a witness in the no-contact order matter, plaintiff had been represented by five different appointed attorneys and the trial date had been reset and speedy trial waived several times. Dkt. 52 at 2-3. Plaintiff had initially waived his right to jury trial, but revoked the waiver and requested (and was provided) his sixth new counsel after defendant Masiello was disclosed as a witness. Dkt. 52 at 3, 27, 29. On January 10, 2018, plaintiff's new defense counsel conducted an interview of defendant Masiello, which was recorded by defendant Humphrey and attended by plaintiff's investigator and defendant Schaap. Dkt. 41 at 17-31. Defendant Masiello stated he had been in the courtroom on the day in question and had observed plaintiff sitting next to Ms. Hopgood and speaking with her before his case was called. Id. When asked why he had not told plaintiff's previous defense counsel he had seen plaintiff and Ms. Hopgood conversing, Massiello stated that prior counsel had indicated he was interested in whether plaintiff and Ms. Hopgood had arrived and/or departed together, not in what had taken place in court; Masiello denied he had deliberately withheld any information. Dkt. 41 at 25-26, 30.
The jury trial took place on January 18 and 19, 2018. Dkt. 52 at 49-56. The prosecution presented the testimony of Judge Buzzard, defendant Maseillo and defendant Mohr; the defense presented the testimony of plaintiff and two of his prior defense counsel. Id. Ms. Hopgood did not testify. Id. The jury acquitted plaintiff. Id at 56; Dkt. 41 at 59.
Summary judgment is proper only if the pleadings, discovery, and disclosure materials on file, and any affidavits, show there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Mere disagreement or bald assertion stating a genuine issue of material fact exists does not preclude summary judgment. ...
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