McCarty v. City of Bartlesville

F I L E D
United States Court of Appeals
Tenth Circuit
MAR 13 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
MIKE McCARTY; PAT McCARTY,
Plaintiffs-Appellants, No. 99-5200
v. (N.D. Oklahoma)
THE CITY OF BARTLESVILLE; (D.C. No. 98-CIV-181-H)
STEVEN L. BROWN; ROBERT
NEWMAN; TIM SHIVELY,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY , HENRY , Circuit Judges and SHADUR , District Judge. **
Mike McCarty and Pat McCarty, brothers and members of the Bartlesville,
Oklahoma, Police Department, filed suit against the City of Bartlesville and three
members of the Bartlesville Police Department (the “Department”) pursuant to 42
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Milton I. Shadur, United States Senior District Judge for
the Northern District of Illinois, sitting by designation.
U.S.C. § 1983. The McCartys alleged that the termination of their employment as
police officers with the Department deprived them of their Fourteenth
Amendment right to procedural due process and violated their Fourth Amendment
right to be free from unreasonable searches and seizures. The McCartys also
brought a federal claim for malicious prosecution. The district court granted the
defendants’ motion to dismiss the City of Bartlesville. After the defendants
sought summary judgment, the McCartys sought to amend their complaint. The
district court granted summary judgment to the defendants and denied the
McCartys’ motion to amend as untimely. The McCartys appeal the grant of
summary judgment and the denial of the motion to amend. For the reasons set
forth below, we affirm.
I. BACKGROUND
A review of the district court’s order and the record reveals the following
material facts. These facts are either undisputed or, where disputed, are taken in
the light most favorable to the plaintiffs. See Simms v. Oklahoma ex rel. Dep’t of
Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir.), cert.
denied , 528 U.S. 815 (1999). Pat McCarty and Mike McCarty joined the
Department in 1990. Sometime in 1994, the Brookhaven Plaza Apartments
(“Brookhaven”) began to hire off-duty Bartlesville police offices to provide
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security at the complex. The officers were hired because the complex had only
one security officer, David Lea, and the complex had increasing security
problems, apparently related to drug trafficking. The McCartys, defendant Sgt.
Tim Shively, Officer Brian Helkenberg, and Officer Dan Woolery were among the
officers from the Department hired by Brookhaven. Originally, Bartlesville
police officers provided security around the clock, but management subsequently
reduced the security hours so that security would be provided by the officers from
6:00 p.m. to 6:00 a.m.
Initially, the officers signed up for the Brookhaven work at the Department.
After Brookhaven’s management scaled back hours, the procedures changed, and
the officers contacted Brookhaven management directly regarding scheduling.
Brookhaven’s management later reduced the security hours a second time
so that the shifts ended at 4:00 a.m. The McCartys were scheduled to work
security at Brookhaven on a shift that began at 10:00 p.m. and ended at either
2:00 a.m. or 4:00 a.m. Elaine Lea, spouse of Mr. Lea, the Brookhaven security
officer, and a Brookhaven employee herself, was responsible for keeping track of
the time officers worked security at the complex for payroll purposes.
In the spring of 1997, Diane Cunningham, the manager of Brookhaven,
contacted Pat McCarty to investigate whether Officer Helkenberg was being
compensated by Brookhaven as a security officer while not actually performing
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such work. During the investigation, Pat McCarty requested and received payroll
records of Officer Helkenberg from Ms. Cunningham. He reviewed these records
as well as Department records relating to Officer Helkenberg’s scheduled work
hours.
Pat McCarty concluded that Officer Helkenberg was charging Brookhaven
for work he did not perform. He reported this conclusion to his shift commander,
Lt. Robert Peugh, who turned the case over to defendant Capt. Robert Newman,
the acting Chief of Police in defendant Chief Steven L. Brown’s absence. Pat
McCarty objected to Lt. Peugh’s turning the case over to Capt. Newman, fearing
that it would lead to an investigation of his own conduct. See Aplts’ App. vol. II,
at 585 (deposition testimony of Pat McCarty).
Capt. Newman decided to conduct personally an investigation into Officer
Helkenberg’s conduct. He reviewed Officer Helkenberg’s records and
interviewed Ms. Cunningham and the Leas during his investigation. Capt.
Newman thereafter suspended Officer Helkenberg and prepared a report for Chief
Brown. Chief Brown directed Capt. Newman to assign the investigation to Sgt.
Shively.
Sgt. Shively interviewed Officer Helkenberg for information. Apparently,
the Leas told Officer Helkenberg that they sometimes paid Pat McCarty for time
that Pat McCarty did not work. Sgt. Shively then expanded the investigation to
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include other officers, including the McCartys. Capt. Newman knew that Sgt.
Shively had negative feelings toward the McCartys due to past professional
conflicts. Sgt. Shively acknowledged the presence of negative feelings during his
discovery deposition.
As part of the expanded investigation, Sgt. Shively contacted Paul Scruggs,
an owner of Oklahoma Property Management, Inc., the managing entity for
Brookhaven. Mr. Scruggs voluntarily delivered time records to Sgt. Shively. Sgt.
Shively also reviewed timesheets from the Department.
Sgt. Shively’s timesheet review indicated that, on twenty-one different
dates, Mike McCarty had double-billed a total of 42.75 hours of work over a two-
year time period and that, on nineteen different dates, Pat McCarty had double-
billed a total of 36.25 hours over a similar period. Sgt. Shively also concluded
that Officer Woolery had double-billed on three different dates.
On April 23, 1997, Sgt. Shively interviewed Officer Woolery about the
billing discrepancies. Officer Woolery was ultimately allowed the opportunity to
rectify the situation by making restitution to Brookhaven and writing a letter of
apology. Sgt. Shively did not interview either of the McCartys or give them a
chance to explain the billing discrepancies.
On or about April 24, 1997, the City served notices upon Mike and Pat
McCarty, requiring each to appear for disciplinary hearings on April 28 and April
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29, 1997, respectively. At those hearings, Mike and Pat McCarty explained that
the apartment complex often filled out the timesheets in advance and that all time
billed was later made up.
On April 29, Sgt. Shively, who had attended the disciplinary hearings,
conducted a follow-up interview of the Leas. Elaine Lea told Sgt. Shively that
she kept the timesheets for Brookhaven; that, on occasion, officers signed
partially completed timesheets; and that it was possible that officers signed blank
timesheets. She also informed Sgt. Shively that she worked with officers to help
them make up previously billed time and that she kept no record of made-up time.
Sgt. Shively sent Washington County District Attorney Rick Esser a copy
of the report of his investigation surrounding the alleged Brookhaven
overpayments. After reviewing the report, the district attorney determined there
was probable cause to support the charges suggested in Sgt. Shively’s report. On
May 12, 1997, D.A. Esser submitted Deferred Prosecution Agreements to the
McCartys, which they refused to sign. As a result, on May 15, 1997, the
McCartys were arrested and charged with obtaining money by false pretenses.
Chief Brown signed the termination letters that discharged the McCartys from
their positions as police officers, effective May 15, 1997.
On July 3, 1997, the Washington County Court held a preliminary hearing
as to the criminal charges and found there was probable cause for the McCartys to
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be bound over for trial. On September 17, 1997, the Washington County Court
held another hearing. The prosecution had been unable to authenticate the
Brookhaven timecards and the McCartys’ attorney moved to dismiss the charges
based on the court’s exclusion of various Brookhaven time records. The court
granted the motion, and the charges against the McCartys were dismissed. On or
about October 3, 1997, the City reinstated the McCartys with full backpay.
The McCartys filed this § 1983 action before the district court alleging (1)
deprivation of their liberty interests in violation of their due process rights, (2)
violation of their Fourth Amendment right to be free from unreasonable searches
and seizures, and (3) malicious prosecution. The district court granted the
defendants’ motion to dismiss the City. The McCartys do not appeal this ruling.
After the defendants sought summary judgment, the McCartys sought to add
another claim to their complaint. They now appeal the district court’s grant of
summary judgment to the defendants and the district court’s denial of their motion
to amend their complaint.
II. DISCUSSION
A. Standard of Review
“We review the district court’s legal conclusions de novo and its findings
of fact for clear error.” McClure v. Independent Sch. Dist. No. 16 , 228 F.3d
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1205, 1212 (10th Cir. 2000). We “apply[] the same legal standard used by the
district court under Fed. R. Civ. P. 56(c).” Simms , 165 F.3d at 1326. Summary
judgment is appropriate where “where there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c). When reviewing a grant of summary judgment, “we view the
evidence and draw reasonable inferences therefrom in the light most favorable to
the nonmoving party.” See Simms , 165 F.3d at 1326.
The individual defendants also raise qualified immunity as a defense.
Because we determine that no constitutional right was violated, we need not
discuss the qualified immunity issue. See Taylor v. Meacham , 82 F.3d 1556,
1564 (10th Cir. 1996) (“conclud[ing] that, [because] no constitutional right was
violated, . . . we proceed no further on the qualified immunity issue”) (citation
omitted).
B. Due Process Claims
The McCartys contend that the defendants deprived them of a liberty
interest through the filing of criminal charges against them and through the
publication of various false and damaging documents, specifically, the criminal
informations, a press release, and related media reports. We have held that
“[i]ndividual liability under § 1983 must be based on personal involvement in the
alleged constitutional violation.” Foote v. Spiegel , 118 F.3d 1416, 1423 (10th
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Cir. 1997). The McCartys’ amended complaint does not specifically allege the
personal involvement of each defendant, but it is not so vague so as to deserve
dismissal. The McCartys allege that each of the following persons contributed to
the constitutional violations:
1. Capt. Newman, filling in as Acting Chief, assigned the
initial investigation of Officer Helkenberg to Sgt. Shively;
2. Chief Brown and Capt. Newman were aware of the
negative feelings between Officer Shively and the
McCartys;
3. Chief Brown and Capt. Newman signed the McCartys’
notices of pre-termination hearings;
4. Chief Brown and Capt. Newman instructed Officer
Shively to interview the Leas on April 29, 1997, after the
pre-termination hearings;
5. Chief Brown and Capt. Newman knew about and
consented to the falsifications in Officer Shively’s report,
specifically, that the McCartys received money by false
pretenses;
6. Chief Brown, Capt. Newman, and Officer Shively met
with D.A. Esser and provided him with the falsified report;
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7. Chief Brown signed the McCartys’ termination letters;
and
8. At all times, Chief Brown was acting under the color of
state law.
In response, the defendants dispute that: (1) there were false statements
made during the course of the McCartys’ termination; and (2) the McCartys were
deprived of due process, for they received a name-clearing pre-termination
hearing. The defendants also argue that they are entitled to qualified immunity.
In order to prevail on a § 1983 claim, a plaintiff must establish that the
defendants acted under color of state law and that the defendants’ actions
deprived the plaintiff of some federal right. See Sutton v. Utah State Sch. for the
Deaf & Blind , 173 F.3d 1226, 1237 (10th Cir. 1999). We have clearly articulated
the four-part test a plaintiff must satisfy to demonstrate the deprivation of a
liberty interest in one’s good name and reputation:
First, to be actionable, the statements must impugn the
good name, reputation, honor, or integrity of the employee.
Second, the statements must be false. Third, the
statements must occur in the course of terminating the
employee or must foreclose other employment
opportunities. And fourth, the statements must be
published.
Workman v. Jordan , 32 F.3d 475, 481 (10th Cir. 1994) (citations omitted); see
also Melton v. City of Oklahoma City , 928 F.2d 920, 926-27 (10th Cir. 1991) (en
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banc) (emphasizing that elements are not disjunctive and all must be satisfied). If
all of the above elements are established, “the Due Process Clause requires an
adequate name-clearing hearing.” Tonkovich v. Kansas Bd. of Regents , 159 F.3d
504, 526 (10th Cir. 1998). For a variety of reasons, we hold that the McCartys
fail to demonstrate the deprivation of a liberty interest.
1. The statements were not made public and were not false .
The McCartys rely on Watson v. University of Utah Medical Center , 75
F.3d 569 (10th Cir. 1996), in support of their claim that the criminal informations
and/or media reports were made public by the defendants, specifically by Chief
Brown through discussions with D.A. Esser. In Watson , the plaintiff was
employed as a nurse at the University of Utah Medical Center. She “produced
evidence that her supervisors made public statements to the entire nursing staff
not only that she had ‘illegally’ delivered a baby but also that she lied about the
incident.” Id. at 579. The court did not consider whether these charge were
published, but did immediately conclude that the “public charges certainly
impugn[ed] [the plaintiff’s] honesty and integrity.” Id.a. The criminal informations
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As to the criminal informations, the McCartys analogize the Watson case’s
“public statements to the entire nursing staff” to Chief Brown’s discussion of the
case with the district attorney for Washington County. We have held that “such
intra-government dissemination, by itself, falls short of the Supreme Court’s
notion of publication: ‘to be made public.’” Asbill v. Housing Auth. of Choctaw
Nation of Okla. , 726 F.2d 1499, 1503 (10th Cir. 1984) (quoting Bishop v. Wood ,
426 U.S. 341, 348 (1976)); see also Harris v. Blake , 798 F.2d 419, 422 n.2 (10th
Cir. 1986) (relying on Asbill in concluding that letter not published where student
alleged § 1983 claim regarding his forced withdrawal from psychology program
based in part on dissemination of letter to some college instructors and
personnel ). In addition, the McCartys do not contest that the criminal
informations signed by D.A. Esser and supported by a statement signed by Officer
Shively were “absolutely privileged document[s]” because they were public court
documents. Primas v. City of Oklahoma City , 958 F.2d 1506, 1510 (10th Cir.
1992). The McCartys offer no other basis for finding publication of the criminal
informations.
b. The media reports
The McCartys’ proffer of evidence in support of its contention that the
defendants provided information to the media is similarly unsupported. The
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McCartys assert that, because D.A. Esser discussed and asked for Chief Brown’s
input regarding the contents of a press release regarding the investigation,
somehow the press release’s issuance can be traced to Chief Brown. Chief Brown
offered unrebutted testimony that, although his suggestions as to the contents of
the press release were solicited by D.A. Esser, he offered none. See Aplts’ App.
vol. IV, at 1170 (deposition testimony of Chief Brown).
In addition, the press release merely discussed the charging of the
McCartys with obtaining money by false pretenses, which was correct. Aplts’
App. vol. IV, at 1173 (press release dated May 15, 1997). The press release also
stated that the McCartys were being suspended with pay pending administrative
hearings and the outcome of legal proceedings, which was also accurate. See also
Primas , 958 F.2d at 1510 (stating that “criminal complaint was an absolutely
privileged document” and that any defamation stemmed from that public court
document, not from statements made to news reporter); cf. Codd v. Velger , 429
U.S. 624, 626-27 (1977) (holding that former police officer failed to affirmatively
assert “that the report of the apparent suicide attempt was substantially false” and,
as a result, failed to satisfy the final necessary element needed to make out a
claim of stigmatization); Fraternal Order of Police, Lodge No. 5 v. Tucker , 868
F.2d 74, 82 (3d Cir. 1989) (holding, “as in Codd , there is neither a finding nor
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evidence at trial to support a finding that the press release was false or even
misleading”).
In sum, Chief Brown had no connection with the issuance of the press
release and the press release contained only true statements. In addition, the
McCartys cannot establish that the press release was made in the course of
termination. In this regard, although the press release and subsequent media
reports may have been a motivating factor in the discharge of the McCartys,
“[t]he record contains no evidence from which a reasonable jury could conclude
that any allegedly false statements made in Sgt. Shively’s investigation report or
the criminal charges were made in the course of the termination of Plaintiffs.”
Aplts’ App. vol. IV, at 1187 (Dist. Ct. Order, filed Aug. 30, 1999); see also
Bishop , 426 U.S. at 348 (noting that statements made no “public disclosure of the
reasons for the discharge”) (emphasis added); Melton , 928 F.2d at 928-29 (noting
that city did not violate police officer’s liberty interest when spokesperson
accurately told the press that the department was investigating perjury allegations
against the officer and that the police department’s statements were not false).
2. The McCartys received due process .
Finally, the McCartys do not dispute that they received an adequate name-
clearing pre-termination hearing. Similarly, they do not contend that they were
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entitled to further name-clearing proceedings. See e.g. , Tonkovich , 159 F.3d at
526 (noting that accusations of rape may have infringed upon professor’s liberty
interest, but concluding that the defendant “University provided him with an
adequate name-clearing hearing”).
We note that in general the filing of charges likely inflicts some damage to
one’s reputation but that, in this case, no constitutionally protected property
interest was infringed. Although the McCartys may succeed on tort claims based
on violations of state law, there is no constitutional violation here. See Paul v.
Davis , 424 U.S. 693, 709 (1976) (stating that it is not “sufficient to establish a
claim under § 1983 and the Fourteenth Amendment that there simply be
defamation by a state official; the defamation had to occur in the course of the
termination of employment”); Tonkovich , 159 F.3d at 526-27 (noting that
plaintiff “may or may not have valid claims based on violations of state law” but
that he failed to demonstrate a federal procedural or substantive due process
claim); Lancaster v. Independent Sch. Dist. No. 5 , 149 F.3d 1228, 1235 (10th Cir.
1998) (“While the injury to reputation asserted by the plaintiff may be actionable
under state tort law, it falls far short of a constitutional violation.”) (footnote
omitted) .
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3. There was no deprivation of a liberty interest .
Lastly, the McCartys are unable to establish that an actual deprivation
occurred. The McCartys were discharged but subsequently rehired with full
backpay and benefits. We acknowledge that their rehire does not mean that they
will be welcomed without reservation by their colleagues and superiors, but the
loss of prospective job opportunities is too speculative to support a deprivation of
a liberty interest claim under § 1983. See Phelps v. Wichita Eagle-Beacon , 886
F.2d 1262, 1269 (10th Cir. 1989) (“[D]amage to ‘prospective employment
opportunities’ is too intangible to constitute a deprivation of a liberty or property
interest.”); see also Jensen v. Redevelopment Agency of Sandy City , 998 F.2d
1550, 1559 (10th Cir. 1993) (noting the same). The McCartys’ liberty interest
claim necessarily fails.
C. Fourth Amendment Claims
Next, the McCartys contend that the defendants unconstitutionally violated
their Fourth Amendment right to be free from unreasonable search and seizure
based on Sgt. Shively’s possession and examination of the employee time records
from Oklahoma Property Management Company and from the Department. It
appears that the McCartys contend that Capt. Brown, in his capacity as Acting
Chief of Police, assigned Officer Shively to the investigation and thus consented
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to the unlawful search and seizure. The district court concluded that the
McCartys lacked standing to assert this claim because they had no objectively
reasonable expectation of privacy in the items searched. We agree.
“Whether a defendant has standing to challenge a search is a legal question
subject to de novo review.” United States v. Shareef , 100 F.3d 1491, 1499 (10th
Cir. 1996). The Fourth Amendment guarantees “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” U.S. Const. amend. IV.
A person must have “a legitimate expectation of privacy in the invaded
place” to demonstrate Fourth Amendment protection in property. Rakas v.
Illinois , 439 U.S. 128, 143 (1978). “Determining whether a legitimate or
justifiable expectation of privacy exists . . . involves two inquiries.” United
States v. Leary , 846 F.2d 592, 595 (10th Cir. 1988). First, the person “must
show a subjective expectation of privacy in the area searched, and second, that
expectation must be one that ‘society is prepared to recognize as “reasonable.”’”
Id. (quoting Hudson v. Palmer , 468 U.S. 517, 525 (1984)).
1. Brookhaven timesheets
To assess the reasonableness of the McCartys’ expectations, we consider
ownership, lawful possession, and lawful control of the place searched. See
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United States v. Abreu , 935 F.2d 1130, 1133 (10th Cir. 1991). As to the
Brookhaven documents, the record does not contain any substantial evidence that
the McCartys had a reasonable expectation of privacy in these timesheets. The
McCartys claim Sgt. Shively examined the Department records without probable
cause and with, at best, a “hunch.” Aplts’ Br. at 42. The McCartys aver that, as
former employees of a company, they have “a reasonable expectation that their
payroll records [will not] be disseminated to strangers.” Id. at 42.
The McCartys do not address the obvious inconsistencies in their positions.
When Pat McCarty investigated Officer Helkenberg and his hours worked at
Brookhaven, he similarly requested and reviewed for discrepancies Officer
Helkenberg’s Brookhaven timesheets. In addition, Mr. Scruggs, who had access
to and control of Brookhaven’s business records, consented to disclose the
McCartys’ records to Sgt. Shively. The McCartys do not purport to control and in
fact had no ability to control the Brookhaven documents or exclude others from
gaining access to the documents. See Rakas , 439 U.S. at 143 n.12 (noting
retention of property concepts in Fourth Amendment jurisprudence and stating
that “[o]ne of the main rights attaching to property is the right to exclude others,
and one who owns or lawfully possesses or controls property will in all likelihood
have a legitimate expectation of privacy by virtue of this right to exclude”)
(citation omitted). Viewed objectively, the evidence is insufficient to establish a
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reasonable expectation of privacy in the Brookhaven timesheets, and, as such, we
conclude that the McCartys lack standing to challenge their search or seizure.
2. Department records
As to the McCartys’ ability to assert standing to challenge the seizure of the
Department records, they fare no better. The record indicates that all Department
employees may review any other employee’s time records during the two-week
time period in which the records are available for correction and verification.
After the timesheets are filed, “all officers of the rank of Sergeant or higher have
keys to the file cabinet in which the [employees’] Timesheets are kept.” Aplts’
App. vol. I, at 246 (Aff. of Theresa Hampton, Administrative Ass’t for the
Department, dated Dec. 10, 1998).
It is unquestioned that there is a “diminished expectation of privacy in the
workplace.” Medical Lab. Mgmt. Consultant v. American Broadcasting Cos. , 30
F. Supp. 2d 1182, 1188 (D. Ariz. 1998) (citing various cases); see also United
States v. Anderson , 154 F.3d 1225, 1230 (10th Cir. 1998) (recognizing difficulty
of establishing standing to challenge certain workplace searches). In addition, the
operational realities and practices of the Department augmented the McCartys’
diminished expectation of privacy in their payroll records, which were initially
available for inspection by all members of the Department. See National Treasury
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Employees Union v. Von Raab , 489 U.S. 656, 671 (1989) (noting that
“operational realities” may “diminish privacy expectations” in the workplace);
O’Connor v. Ortega , 480 U.S. 709, 717 (1987); American Federation of Gov’t
Employees, AFL-CIO v. Skinner , 885 F.2d 884, 893 (D.C. Cir. 1989) (relying on
O’Connor and holding that urinalysis testing of Department of Transportation
employees was reasonable ); National Fed’n of Fed. Employees v. Cheney , 884
F.2d 603, 613 (D.C. Cir. 1989) (concluding that operational realities of civilian
guards’ workplace made random urinalysis testing reasonable).
After the timesheets were verified, the Department’s procedures provided
that the records could be viewed by an officer of the rank of Sgt. or higher. Cf.
United States v. Simons , 206 F.3d 392, 399 (4th Cir. 2000) (noting that “the
operational realities of [defendant’s] workplace may have diminished his
legitimate privacy expectations,” but concluding that “there is no evidence in the
record of any workplace practices, procedures, or regulations that had such an
effect”); see also Cox v. Hatch , 761 P.2d 556, 563 (Utah 1988) (holding that there
was no reasonable expectation of privacy in a “common workplace where there
were a number of other people”); Hastings & Sons Publ’g Co. v. City Treasurer ,
375 N.E.2d 299, 303 (Mass. 1978) (holding that there was no breach of privacy in
disclosure of payroll records because information did not include “‘intimate
details’ of a ‘highly personal’ nature”).
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We have stated that “in determining whether an employee has standing to
challenge seizure of an item from the workplace, . . . we will consider all of the
relevant circumstances, including (1) the employee’s relationship to the item
seized; (2) whether the item was in the immediate control of the employee when it
was seized; and (3) whether the employee took actions to maintain his privacy in
the item.” Anderson , 154 F.3d at 1232. Quite simply, the McCartys cannot claim
ownership of the records; they did not immediately or indirectly control the areas
where the files were maintained; and they do not contend that they did or were
able to take any action to maintain their privacy in the records. 1
Thus, the
McCartys lack standing to challenge the search and seizure of the Department
records.
D. Malicious Prosecution
The McCartys next contend that the district court erred when it granted the
defendants summary judgment on their claim for malicious prosecution under 42
1
We note that the McCartys also claim state law, see Okla. Stat. Ann. tit.
40, § 61 and tit. 51, § 24A.7, somehow confers standing on them to challenge the
seizure of the Brookhaven and Department records. Without expending
unnecessary discussion on this argument, we note that we agree with the district
court that “nothing in the specific statutory language or statutory scheme of these
provisions suggests that these provisions would apply to the instant case or,
assuming their relevance, would support the expansive reading Plaintiffs would
urge the Court to adopt.” Aplts’ App. vol. IV, at 1190 (Dist. Ct. Order, filed Aug.
30, 1999).
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U.S.C. § 1983. See Taylor v. Meacham , 82 F.3d 1556, 1561 (10th Cir. 1996)
(concluding “that our circuit takes the common law elements of malicious
prosecution as the ‘starting point’ for the analysis of a § 1983 malicious
prosecution claim, but always reaches the ultimate question, which it must, of
whether the plaintiff has proven a constitutional violation”). In order to establish
a malicious prosecution claim under § 1983, the plaintiff must also prove a Fourth
Amendment constitutional violation. See id. The McCartys contend that there
was no probable cause to support the filing of criminal charges against them: Sgt.
Shively knew this when he presented D.A. Esser with his report and Chief Brown
knew this when he met with D.A. Esser to discuss the report.
Under Oklahoma state tort law, the elements of the tort of malicious
prosecution are: “(1) the bringing of the original action by the defendant; (2) its
successful termination in favor of the plaintiff; (3) want of probable cause to
bring the action; (4) malice; and (5) damages.” Parker v. City of Midwest City ,
850 P.2d 1065, 1067 (Okla. 1993). Failure to establish any one of those elements
defeats an action for malicious prosecution. See id.The district court determined that the McCartys could not establish that the
criminal charges filed against them in Washington County were brought without
probable cause. Specifically, the district court noted three separate instances in
which probable cause was demonstrated: (1) at the close of the preliminary
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hearing; (2) as a result of D.A. Esser’s independent review of the case; and (3) at
the September 17, 1997, hearing during which counsel for the McCartys admitted
there was probable cause to file the charges. We agree that the McCartys are
unable to show a want of probable cause and affirm the district court’s grant of
summary judgment on this issue.
The McCartys’ argument revolves around the report prepared by Sgt.
Shively. Sgt. Shively’s report chronicled and compared the McCartys’ timesheets
from the Department with those from Brookhaven. The Brookhaven timesheets
were deemed to be unreliable by the reviewing judge, in part because Ms. Lea,
who prepared the reports, could not vouch for their accuracy. The McCartys
argue that the unreliability of the Brookhaven reports undermines Sgt. Shively’s
determination of probable cause. Because the preliminary hearing judge and D.A.
Esser relied upon Sgt. Shively’s questionable report, the McCartys contend that
the determination of probable cause is erroneous.
In addition, the McCartys dispute the district court’s apparent reliance upon
D.A. Esser’s affidavit, which detailed his independent review of Sgt. Shively’s
report and the his decision to file criminal charges against the McCartys. See
Aplts’ Br. at 45-46 (citing Powell v. LeForce , 848 P.2d 17 (Okla. 1992); Page v.
Rose , 546 P.2d 617 (Okla. 1975)). They state that under Oklahoma law, where
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the evidence is conflicting regarding the finding of probable cause, the issue is
proper to place before a jury.
The defendants counter that the standard of proof needed for probable
cause is significantly lower than that needed for conviction. They contend that
D.A. Esser was justified when he filed the charges in part because the report
indicated there was “a substantial probability that a crime ha[d] been committed
and that a specific individual [had] committed the crime.” Taylor , 82 F.3d at
1562 (internal quotation marks omitted). They also argue that the preliminary
hearing judge’s finding of probable cause and the McCartys’ counsel’s admission
of probable cause defeats their argument.
We agree with the defendants. D.A. Esser’s determination that there was
probable cause is well supported. The conclusion that multiple inconsistencies
between Department and Brookhaven logs, in conjunction with the findings from
the interview of the Leas, were sufficient indicia of the commission of a crime
was not unreasonable.
At the preliminary hearing, the McCartys presented evidence and cross-
examined witnesses. As a result of the hearing, the judge made an independent
assessment of probable cause when it overruled the McCartys’ motion for a
demurrer. See Aplts’ App. vol. I, at 317 (Tr. of Prelim. Hr’g, dated July 3, 1997).
This conclusion is also evidence of probable cause.
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Finally, the McCartys are left with their counsel’s forthright and
unchallenged admission that there was probable cause to support the filing of the
charges. Specifically, counsel stated that, as to filing of the charges, the surmise
of probable cause based upon the comparison of the Department and Brookhaven
timesheets was “very reasonable.” Id. at 322 (Tr. of Mot. to Dismiss Hr’g, dated
Sept. 17, 1997). In addition, the McCartys’ counsel stated, “I find no fault in the
state attorney’s office . . . at any point in the litigation” as to their filing of the
charges. Id. at 322-23.
We note that Sgt. Shively separately interviewed Officer Woolery regarding
his timesheet discrepancies and that the McCartys were not given such an
opportunity. In the end, Officer Woolery was allowed to make restitution and
write a letter to Brookhaven apologizing for his alleged and apparent timesheet
oversights, which amounted to three discrete discrepancies. Sgt. Shively and
Chief Brown believed Officer Woolery’s explanation of the oversights and his
concomitant belief that he had already worked to make up for this time.
Upon review of the record, we cannot determine that the presence of
animosity between Sgt. Shively and the McCartys contributed to the divergent
investigations or to any manufacture of probable cause. In addition, we note that
Sgt. Shively’s report indicated that each of the McCartys had over a dozen alleged
infractions. The record indicates that the McCartys were aware that they had
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received money for hours that they had not worked, whether they intended to
make up the time or not. Given the apparent disparate treatment however, we are
reluctant to condone the Department’s assignment process where internal
investigations of colleagues are handed to potentially vindictive superior officers.
However, we also cannot say that any ill will tainted the investigative process that
would amount to a constitutional violation in this case. We hold that the district
court properly granted summary judgment on the malicious prosecution claim to
the defendants.
E. Motion to Amend the Complaint
Finally, the McCartys also contend that the district court abused its
discretion when it refused to allow them to amend their complaint, nearly nine
months after they filed their initial complaint, and after summary judgment
motions were pending before the district court. The district court noted it was
dismissing the amendment as untimely, “given the history of this case.” Aplts’
App. vol. IV, at 1184 (Dist. Ct. Order, filed Aug. 30, 1999). We review the
district court’s denial of a motion to amend a complaint for an abuse of
discretion. See Lambertsen v. Utah Dep’t of Corrections , 79 F.3d 1024, 1029
(10th Cir. 1996).
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Federal Rule of Civil Procedure 15(a) provides “leave [to amend] shall be
freely given when justice so requires.” Fed. R. Civ. P. 15(a). The McCartys
offered no new facts in their motion to amend but rather sought to allow the
inclusion of § 1983 claim pursuant to Garrity v. New Jersey , 385 U.S. 493, 500
(1967). In Garrity , the Supreme Court prohibited the “use in subsequent criminal
proceedings of statements obtained under threat of removal from office, and
[held] that it extends to all, whether they are policemen or other members of our
body politic.” Id. at 500. Garrity ’s protection, therefore, acts to immunize these
compelled statements, as it prohibits their subsequent use against the officer so as
not to offend the Fifth Amendment privilege.” In re Grand Jury Subpoenas v.
United States , 40 F.3d 1096, 1102-03 (10th Cir. 1994).
Specifically, the McCartys claim that Sgt. Shively, after attending the
disciplinary proceedings, was directed to follow up on his criminal investigation
using information derived from the McCartys at the hearings. Sgt. Shively’s
attendance and involvement throughout the criminal investigation has served as
the linchpin of the McCartys’ case, and for the McCartys to claim that they were
unaware of his activities until discovery was nearly complete appears insincere.
In addition, our independent review of the record shows that the district court’s
decision not to allow plaintiff to amend their complaint was well within its
discretion.
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III. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s grant of
summary judgment to defendants on all claims, and we AFFIRM the district
court’s decision denying the McCartys’ motion to amend their complaint.
Entered for the Court,
Robert H. Henry
Circuit Judge
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