Tveraas v. Coffey, File No. 2:91-CV-260.

• Decision Date: 05 March 1993
• Docket Number: File No. 2:91-CV-260.
• Citation: 818 F. Supp. 75
• Parties: Michael TVERAAS, Plaintiff, v. Donald COFFEY and Gordon Marcelle, in their individual capacities, and Timothy Van Zandt, Commissioner, Vermont Department of Fish and Wildlife, in his official capacity, Defendants.
• Court: U.S. District Court — District of Vermont

818 F. Supp. 75

Michael TVERAAS, Plaintiff, v. Donald COFFEY and Gordon Marcelle, in their individual capacities, and Timothy Van Zandt, Commissioner, Vermont Department of Fish and Wildlife, in his official capacity, Defendants.

File No. 2:91-CV-260.

United States District Court, D. Vermont.

March 5, 1993.

David S. Putter, Saxer, Anderson, Wolinsky & Sunshine, Burlington, VT, for plaintiff.

Ritchie E. Berger, Dinse, Erdmann & Clapp, Burlington, VT, for defendant Coffey.

Oreste V. Valsangiacomo, Jr., Valsangiacomo, Detora & McQuesten, Barre, VT, for defendant Marcelle.

Robert W. Gagnon, Asst. Atty. Gen., Vermont Atty. General's Office, Montpelier, VT, for defendant Van Zandt.

OPINION AND ORDER

PARKER, Chief Judge.

Plaintiff, Michael Tveraas, has sued defendant, Donald Coffey, among others, in his individual capacity under 42 U.S.C. § 1983. He alleges first a violation of his right to due process by the initiation and prolongation of a malicious prosecution. Second, he claims that the defendant's seizure and detention of four fisher cat pelts in relation to this prosecution was unreasonable. This action was filed on September 24, 1991. Earlier that year, the State dismissed the Vermont State Fish and Game case which had been initiated by the defendant, a state game warden, against the plaintiff. On July 2, 1992, the defendant filed a motion for summary judgment claiming entitlement to immunity from suit under the doctrine of qualified immunity. Alternatively, defendant argued that the plaintiff has failed to establish all of the elements of a claim of malicious prosecution and thus summary judgment is warranted.

On November 4, 1992, Magistrate Judge Jerome J. Niedermeier issued a Report and Recommendation in this matter, recommending that this Court deny the defendant's motion. Timely objections to the Report and Recommendation were filed, and the defendant requested de novo review pursuant to 28 U.S.C. § 636(b)(1).¹

In his Objections, the defendant argues that Magistrate Judge Niedermeier erroneously concluded the summary judgment was not warranted in this instance because he relied upon inadmissible evidence in reaching that conclusion. The defendant has three principal objections: (1) the Magistrate Judge should not have relied upon the notes of a state official who was involved in an internal investigation of the actions which serve as the basis of this lawsuit; (2) the documents generated by the State's internal investigation would be inadmissible at trial and thus should not have been considered by the Magistrate Judge when he decided the summary judgment motion; and (3) the Magistrate Judge's findings of fact improperly included references to the internal investigation as the investigation is irrelevant to the plaintiff's claims and the defendant's affirmative defense of qualified immunity.²

This Court agrees that some of the documents submitted in support of the plaintiff's opposition to summary judgment might not be admissible at trial, at least not without proper authentication. Nonetheless, the record contains sufficient admissible evidence which fully supports Magistrate Judge Niedermeier's recommendation to deny summary judgment. For the reasons stated below, I adopt Magistrate Judge Niedermeier's finding that the defendant has not shown that there is no material issue of fact concerning the issue of qualified immunity. Furthermore, the claims for both unreasonable seizure and malicious prosecution are amply supported at this juncture. Since plaintiff has pointed to material factual disputes which create issues for trial, I also adopt the Magistrate Judge's recommendation that this defendant's motion for summary judgment be denied.

I. FACTUAL BACKGROUND

The Court adopts a substantial portion of the factual recitation in the Report and Recommendation submitted by Magistrate Judge Niedermeier. (See Paper 47 at 1-4). It is amended as follows: (1) the finding in the last sentence of paragraph five referring to lost pelts is changed from "pelts had been lost from the storage freezer" to "carcasses had been lost from the storage freezer" (Paper 47 at 3); and (2) the final paragraph in the factual recitation is deleted (Paper 47 at 4). As explained below, this deleted portion of the factual background in the Magistrate Judge's report contains references to evidentiary materials which are not properly before the Court for purposes of summary judgment.

II. STANDARD FOR SUMMARY JUDGMENT

The Magistrate Judge's discussion of the standard for summary judgment is adopted in toto. (See Paper 47 at 4-5). However, responding to defendant's objections regarding the admissibility of the exhibits offered by the plaintiff, further discussion of the requirements of Rule 56(e) is necessary. Rule 56(e) provides, in pertinent part,

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.

Fed.R.Civ.P. 56(e). As the Advisory Committee Notes to the rule suggest, the purpose of summary judgment is to "pierce the pleadings and to assess the proof" to determine whether there is a genuine need for trial. Id. 1963 advisory committee's note; Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The permissible forms of proof, other than affidavits, are those listed in Rule 56(c): depositions, answers to interrogatories, and admissions. Fed.R.Civ.P. 56(c) and (e). If presented by a nonmoving party to oppose summary judgment, this evidence need not be in a form admissible at trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

In the instant case, Defendant Coffey argues that the plaintiff's evidence, which consists of much more than these several types of discovery responses, is insufficient to overcome defendant's motion and exhibits in support of summary judgment. He contends that plaintiff's proof is insufficient because most of the exhibits attached to plaintiff's opposing motion would be inadmissible at trial in the form in which they have been presented here. Specifically, he notes a lack of authentication and personal knowledge regarding some exhibits, and the existence of hearsay and impermissible opinions throughout almost all of the challenged documents. The numerous challenged documents relate to the internal investigation initiated by the Department of Fish and Wildlife in response to a complaint filed with the agency by the plaintiff in this case.

With regard to the handwritten notes, which have been referred to as Major Whitcomb's notes from an interview during the internal investigation, the Court agrees with the defendant that those notes as presented in the record bear no indicia of reliability. Any admissions gleaned from these notes must be disregarded for the purpose of deciding a motion for summary judgment.

On the other hand, objections to the official documents from the internal investigation on the basis of hearsay are inconsequential. Defendant has admitted that an internal investigation occurred. (Paper 15 at ¶¶ 98 and 102) Federal Rule of Evidence 803(8)(C) creates an exception to the hearsay rules for statements, in any form, of public offices or agencies, which set forth "factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of truthworthiness." Fed.R.Evid. 803(8)(C). The official letter of reprimand written to the defendant at the close of the agency's internal investigation, which includes statements of both fact and opinion, thus qualifies as a hearsay exception under Rule 803(8)(C). Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170, 109 S.Ct. 439, 450, 102 L.Ed.2d 445 (1988).

Finally, regarding defendant's objection to the internal investigation documents based on relevancy issues, the Court finds the factual findings and opinions in the internal investigation documents are directly relevant to the integrity and reasonableness of the defendant's actions, which is the central question in this lawsuit. Nonetheless, the documents as presented lack authentication and thus have not been considered for our purposes at this juncture.

Having removed all of the exhibits to which defendant has objected, plaintiff's proof is comprised of five key items: (1) the Affidavit of Richard Becker (the "Becker Affidavit"); (2) excerpts from the deposition of James Distephano; (3) excerpts from the deposition of James A. Hughes; (4) excerpts from the plaintiff's deposition; and (5) a copy of the State's Notice of Dismissal. (See Paper 45, Exhibits A, R, S, U and X). These documents alone are sufficient to convince this Court that with regard to whether a qualified immunity applies in this case, genuine issues of material fact and credibility remain unresolved. To determine whether material facts remain in dispute, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

III. QUALIFIED IMMUNITY

The doctrine of qualified immunity provides immunity from civil suits to government officials performing discretionary functions. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1981). To establish entitlement to such protection, a defendant must show that he has not violated any clearly established constitutional or statutory rights of which a reasonable person would have known. Id. In a case such as this one, where the plaintiff has...