Johnson v. Wichita Cnty.

DONNA L. JOHNSON, Plaintiff, v. WICHITA COUNTY, TEXAS SHERIFF'S OFFICE, et al., Defendants.

No. 1:12-CV-394

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at CHATTANOOGA

July 29, 2014

Judge Curtis L. Collier

MEMORANDUM

Before the Court are motions for summary judgment filed by Defendants Wichita County, Texas Sheriff's Office ("WCSO"), David Duke ("Duke"), and Alan Boyd ("Boyd"), in their individual and official capacities (collectively the "WCSO Defendants"), as well as Defendants Rochester, New York Police Department ("RPD") and Nasar Zenelovic ("Zenelovic"), in his individual and official capacity (collectively the "RPD Defendants") (Court File Nos. 104 and 106, respectively). Plaintiff Donna L. Johnson ("Plaintiff") responded in opposition (Court File No. 113) and the WCSO Defendants filed a reply (Court File No. 117). For the following reasons, the Court will GRANT the RPD Defendants' summary judgment motion and will GRANT IN PART and DENY IN PART the WCSO Defendants' summary judgment motion. As described below, the remaining claims in this case will be (1) the 42 U.S.C. § 1983 claim against Boyd, in his individual capacity, for arrest without probable cause and (2) the state law claims against Boyd and Duke, in their individual capacities, for abuse of process.

At the relevant times, Plaintiff operated Cherokee Studios, a photography company specializing in portraits of law enforcement and other government personnel. She ran the business out of her Chattanooga, Tennessee studio. Plaintiff has been in the professional portraiture field for over twenty years. In early 2011, Plaintiff attended a law enforcement trade show in Texas and signed up several agencies as customers. In July 2011, she traveled to Texas to photograph personnel from the various agencies, one of which was WCSO, whose elected sheriff was Duke. After photographing WCSO's and other agencies' employees, she returned to Chattanooga at the end of July to produce the photographs. Before departing Texas, she received payment from some 200 WCSO personnel who ordered packages. The WCSO Defendants and Plaintiff disagree about the total amount, but it was several thousand dollars. As part of the arrangement, Plaintiff agreed to provide free of charge to WCSO digital images of the portraits as well as composite prints of the entire office. She agreed to ship everything within six to eight weeks from departing Texas at the end of July.

According to her affidavit, by September 25, 2011, Plaintiff had timely fulfilled 86% of the orders from other Texas law enforcement agencies whose portraits she took during her July trip, a a statistic the WCSO Defendants do not dispute (Court File No. 113-1, ¶ 109). However, she was delayed in finishing her portraits for WCSO. The parties dispute what communications occurred regarding the delay. Duke states in his affidavit that "during fall 2011 Donna Johnson cut off contact with my office and failed to respond to any communication efforts" (Court File No. 105-4, ¶ 6). However, in response to Plaintiff's request for admissions, the WCSO Defendants admit that "Sheriff Duke text messaged Donna Johnson between the end of August, 2011, and November 30, 2011" (Court File No. 113-20, Response 1).

Plaintiff also says she communicated with Duke over text for a number of months. She states in her affidavit that during a September 16, 2011 text exchange Duke granted her until mid-December 2011 to finish producing and shipping the materials to WCSO (Court File No. 113-1, ¶¶ 134-37). She also says that on September 23 Duke sent her a text message asking, "Will you have all paid portraits to us by the end of the year? If not let me know so I can manage this. All good if done by then," to which she responded, "yes Sir, I will! Thank you very much for letting everyone know" (id. at ¶¶ 138-39). In addition, she also states that in response to an October 18 text from Plaintiff apologizing for the delay, Duke texted back, "I know. are you still going to have everything to us by the end of the year? I can handle it til then. will photos be here by thanksgiving?" (id. at ¶¶ 140-41).¹ She replied, "it will be close. I believe the first week of December is very realistic," to which he responded, "ok" (id. at ¶¶ 142-43). Plaintiff further states that on November 12 she informed Duke by text that the materials would ship the first week of December and he replied, "I look forward to getting them there is grumbling in the troops but they will be fine when they actually have them. I have been telling them to hold on and you have assured me they will get them. No problems here. Send me tracking when you can" (id. at ¶¶ 144-45). That same day, Duke also informed her to wait and ship all of the items together instead of sending a partial shipment, which she had offered to do (id. at ¶¶ 146-47).

Plaintiff notes in her affidavit that at 8:00 p.m. on November 15 Duke called her cell phone and they had a twenty minute conversation about the portraits (id. at ¶¶ 149-50). Plaintiff's phone records submitted to the Court show a twenty-one minute incoming call at 8:00 p.m. on that date (Court File No. 113-6, p. 28). Duke asked whether she needed into January to ship the packages.She said she was still on track for early December (id. at ¶¶ 151). She also told Duke she could ship all of the individual portrait packages the next day, if he would like, but that the composites were not finished. He said to wait until everything was complete before shipping.

The next morning, Duke sent an email to all WCSO personnel asking them to report how much money they gave Plaintiff and noting that "[w]e may have an issue with her and [the Criminal Investigation Division] is star[t]ing an investigation" (Court File No. 20). Duke then appointed Boyd to conduct the investigation. The following day, November 17, Boyd swore an arrest affidavit, which read as follows:

On 25-27 July 2011 affiant, Deputy Alan Boyd along with other employees of the Wichita County Sheriff's Office (WCSO) participated in the production of a historical department composite photograph conducted by Donna Johnson doing business as (DBA) Cherokee Studios, Inc. (CSI) P.O. Box 579 Ooltewah TN 37363. During this time both sworn and civilian employees posed for individual as well as group photo's which would be available for the employees to purchase. The employees who purchased the photographs were required to pay for the service at this time and were given a receipt/invoice for each individual purchase. Johnson advised the photographs would be available in 6-8 weeks. On 16 November 2011 affiant, initiated this case for investigation due to the photographs not being received/delivered and after numerous attempts to contact Johnson by her listed telephone number and e-mail address have gone unanswered. Furthermore it was learned that recently several other Texas law enforcement agencies have had similar results when dealing with Johnson and Cherokee Studios Inc. Approximately two hundred (200) WCSO employees participated in this event with a minimum purchase of $39.00 dollars per employee totaling $7,800.00 dollars. Many employees purchased additional photo's for an additional fee. As of17 November 2011 affiant, has received copies of the invoices from twenty six (26) WCSO employees in the amount of $1,656.00 dollars. Based on the above facts affiant believes Johnson committed the offense of theft O/$1,500 /U $20,000 a violation of Section 31.03 Texas Penal Code a state jail felony.

(Court File No. 105-1) (emphasis added) (typos in original).

Based on the above affidavit, a Texas arrest warrant was issued by a Wichita County judge on November 17. Plaintiff's affidavit states that on November 21 she sent Duke a text to let himknow everything would be shipped in late November or the beginning of December. He responded: "Donna it is all good here and no problems. I hope you and your family have a happy thanksgiving" (Court File No. 113-1, ¶¶ 160-61). They had another text exchange on November 28, Plaintiff says, where she told Duke she did not want to go into the details of her difficulties but reiterated she was in the process of getting the shipment out and noted they had agreed to the end-of-the-year deadline; Duke responded, " Not necessary Donna. Send me tracking number when you ship. All good here" (id. at ¶¶ 165-66).

On November 30, Deputy Jimmy Clift of the Hamilton County, Tennessee Sheriff's Office executed a Tennessee fugitive arrest warrant issued on Plaintiff. Deputy Clift filed an affidavit and obtained a search and seizure warrant for photography equipment he found when arresting Plaintiff at her Chattanooga, Tennessee hotel room. Deputy Clift logged the evidence and shipped it to WCSO. Plaintiff was transferred to Corrections Corporation of America's ("CCA") Silverdale facility near Chattanooga. She claimed that CCA staff beat and threatened her as retribution for her alleged crime. Judge Clarence Shattuck of the Hamilton County General Sessions Court entered an Agreed Order dismissing with prejudice the fugitive warrant on January 18, 2012. The order required that Plaintiff "complete the remainder of the project for the Wichita County Sheriff's Office" in exchange for the case being dismissed and her equipment being returned (Court File No. 105-3). The underlying case in Wichita County was subsequently dismissed with prejudice upon WCSO's request (Court File No. 113-19).

In her complaint, Plaintiff alleged that before the warrant was issued and Plaintiff was arrested, the RPD, through Zenelovic, contacted other customers of Plaintiff, including WCSO. Plaintiff avers that during these communications Zenelovic falsely accused Plaintiff of engaging incriminal activity and conspired with Duke and Boyd to illegally have her arrested and her photography equipment seized. Plaintiff has not, however, pointed to any evidence on summary judgment to show that the RPD Defendants had...