Cronin v. Peterson

288 F.Supp.3d 970

Timothy CRONIN and Joshua Fullerton, Plaintiffs,

v.Chris PETERSON, in his individual and official capacity, James Peschong, in his individual and official capacity, Brian Jackson, in his individual and official capacity, Tonya Peters, in her individual and official capacity, William Koepke, in his individual and official capacity, Daren Reynolds, in his individual and official capacity, and City of Lincoln, Defendants.

4:17CV3079

United States District Court, D. Nebraska.

Signed January 24, 2018

Douglas L. Phillips, Klass Law Firm, Sioux City, IA, Elizabeth D. Elliott, City Attorney's Office, Lincoln, NE, for Defendants.

MEMORANDUM AND ORDER

Richard G. Kopf, Senior United States District Judge

Plaintiffs Timothy Cronin and Joshua Fullerton, who are both City of Lincoln police officers, bring this 42 U.S.C. § 1983 action against the City of Lincoln, several members of the Lincoln Police Department, and an assistant city attorney who is assigned to advise the police department. Plaintiffs seek to bring section 1983 claims against Defendants in their individual and official capacities under the Fourth, Fifth, and Sixth Amendments, as well as a retaliation claim stemming from Plaintiff Cronin's exercise of his First Amendment rights. (Filing No. 19, Amended Complaint.)

Defendants have filed a Motion to Dismiss Plaintiffs' Amended Complaint (Filing No. 20) pursuant to Fed. R. Civ. P. 12(b)(6).¹ Defendants argue that Plaintiffs' claims against the City and the Defendants in their official capacities must be dismissed for failure to allege that a policy or custom caused violations of Plaintiffs' constitutional rights (Filing No. 21 at CM/ECF pp. 3–6, 11–12); that Plaintiffs' allegations do not state any constitutional claims (Filing No. 21 at CM/ECF pp. 6–9); that the Defendants in their individual capacities are entitled to qualified immunity from suit (Filing No. 21 at CM/ECF pp. 9–11, 12–14); and that Defendant Assistant City Attorney Tonya Peters is entitled to either absolute or qualified immunity (Filing No. 21 at CM/ECF pp. 14–15).

I. FACTUAL ALLEGATIONS

Plaintiffs Timothy Cronin and Joshua Fullerton are police officers with the City of Lincoln Police Department ("LPD"). Defendant Chris Peterson is a LPD captain; James Peschong is the chief of the LPD; Brian Jackson is the assistant chief of the LPD; Tonya Peters is a City of Lincoln assistant city attorney who is assigned to the LPD as the police legal advisor; and William Koepke and Daren Reynolds are LPD sergeants. Plaintiffs allege that all of the Defendants are "vested by virtue of [their] position[s] with the City with the power and authority to formulate and enforce the custom and practices which resulted in violations of [P]laintiffs' constitutional rights...." (Filing No. 19, Amended Complaint ¶¶ 3–19.)

After having worked under Defendant Peterson's supervision in the LPD narcotics unit, Plaintiff Cronin moved to uniform patrol, where he continued to perform narcotics investigations. When Cronin began to "have success" with narcotics arrests and seizures, Peterson "began a pattern and practice of interference and harassment" against Cronin, including contacting his supervisors and attempting to stop his investigations. (Filing No. 19 ¶¶ 21–24.)

Cronin first alleges that in July 2014, Peterson attempted to interfere with Cronin's application to attend specialized training called "Desert Snow" by privately contacting Defendant Peschong, chief of the LPD, and lobbying against Cronin attending the training after the selection committee had already informed Cronin that he had been selected to attend. (Filing No. 19 ¶¶ 25–31.)

In August 2014, Cronin filed a complaint against Peterson with LPD's personnel sergeant based on Peterson's alleged discrimination, harassment, and creation of a hostile work environment, and the complaint was forwarded to the Lincoln Commission on Human Rights for investigation. Cronin claims that the City of Lincoln did not throughly investigate his claim against Peterson. (Filing No. 19 ¶¶ 32–33.)

More than a year later—in September 2015—Defendant Jackson, assistant chief of the LPD, told Cronin he had received a complaint alleging that Cronin had interfered with an Ohio illegal-steroid investigation. Cronin had a friend from Powell, Ohio, who owned a nutrition and supplement store, and from whom Cronin had previously purchased nutritional supplements"in conjunction with lifting weights, working out, and overall fitness." (Filing No. 19 ¶ 37.) Cronin's friend had been accused of selling illegal steroids, and Cronin had corresponded with him via text messages regarding the investigation and "reminding him of his rights in dealing with the police." (Filing No. 19 ¶ 38.) As a result of these text messages, a member of the Powell, Ohio, police department told Jackson that Cronin was interfering with their investigation.

Also in September 2015, Peschong "and/or" Jackson turned over the text messages to Peterson, who then used the texts to again harass, discriminate, and retaliate against Cronin for the complaint Cronin had filed against Peterson with the LPD personnel sergeant. Cronin claims that Peterson's actions based on "mere text messages were contrary to the past practice and usual and ordinary actions taken by the Lincoln Police Department based upon similar information." (Filing No. 19 ¶ 44.) For example, Peterson failed to contact the DEA, conduct internet searches, or otherwise investigate whether the supplements at issue in Ohio were legal.

In investigating Cronin, Peterson allegedly obtained the assistance of Defendants Peters, Koepke, and Reynolds. On September 28, 2015, Defendant Koepke detained Cronin in a conference room at the LPD's Center Team Station, where Koepke told Cronin he was being criminally investigated, but the interview was not recorded by audio or video, contrary to LPD policy. Cronin alleges that Koepke advised him that "he was not under arrest but he was not free to leave"; did not advise him of his Miranda rights; allowed Cronin to call his legal counsel, but refused to leave the room so Cronin could consult with counsel privately; and when Cronin's counsel arrived, he was not allowed to meet with Cronin. (Filing No. 19 ¶¶ 47–54.)

Using statements obtained from Koepke's interview with Cronin, Peterson applied for search warrants for Cronin's home, vehicle, blood, urine, and cellular phone with "critical information omitted," such as Koepke's opinion that the substances referenced in the text messages were legal and Cronin's statement that he did not have any of the substances at issue at his house. Defendant Assistant City Attorney Peters, who allegedly knew or should have known that the information used in the search-warrant applications was obtained in violation of Miranda , assisted with the preparation of the search warrants. (Filing No. 19 ¶¶ 55–57.)

Cronin alleges that several searches supported by warrants then occurred. First, as part of Koepke's six-hour detention of Cronin, Koepke transported him to a hospital for a test of his blood and urine, the latter of which was obtained by threatening Cronin with the insertion of a catheter into his penis if he did not comply. Next, without seeing a search warrant, Defendant Reynolds and "other officers" searched Cronin's house "with nothing illegal located." Likewise, Reynolds executed a search warrant for Cronin's 2015 Toyota 4 Runner on a completely different vehicle—Cronin's 2009 Ford Escape—for which Reynolds had no probable cause or consent to search, and in which Reynolds found nothing. Officers also allegedly searched Cronin's police vehicle and locker, neither of which contained illegal substances. (Filing No. 19 ¶¶ 58–70.)

On September 28, 2015 (the same day as Cronin's detention), Plaintiff "Fullerton was contacted at his home and voluntarily turned over the substances he had obtained through Cronin." (Filing No. 19 ¶ 71.) The next day, Peterson contacted Fullerton to request an interview, during which Fullerton was not read his Miranda or Garrity² rights, was allowed to call counsel upon request, but was manipulated into talking to Peterson outside the presence of counsel.

Plaintiffs allege that search warrants or subpoenas were also obtained for Cronin's and Fullerton's cellular phone records, Cronin's personnel records, and Cronin's personal financial information, and that Cronin's cellular phone was seized on September 28, 2015.

On October 6, 2015, Cronin's blood and urine tests came back negative for illegal substances, and on October 8, 2015, the substances seized from Fullerton were determined to contain nothing illegal. On October 9, 2015—and without evidence that any of Cronin's text messages referred to illegal substances—members of the LPD "destroyed Cronin's phone in an alleged effort to extract any information card or chip within the device," thereby destroying Cronin's personal family photographs, including his newborn daughter, and other sensitive personal information. The phone chip was sent to an outside source for "potential extraction," but "no evidence was able to be obtained or extracted." (Filing No. 19 ¶¶ 78–88.)

Despite the fact that Peterson was unable to link Cronin to any illegal activities, he continued his investigation for the next several months, including a December 2015 trip to Powell, Ohio, to conduct a follow-up investigation which yielded no evidence of Cronin's involvement with illegal steroids. In January 2016, Peterson requested and received "items" that had been seized by the Powell, Ohio, police department and took them to the Nebraska State Laboratory to be tested for the presence of illegal substances. (Filing No. 19 ¶¶ 89–93.)

For several months thereafter, Peterson asked unidentified prosecutors to bring charges against Cronin, but "[a]ll prosecutors declined to pursue charges because of a lack of evidence Cronin violated any laws or was ever involved in illegal steroids." (Filing No. 19 ¶¶ 94–95....