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January 17, 2002


The opinion of the court was delivered by: Marten, District Judge.


This matter comes before the court on the separate motion of each defendant for summary judgment. Plaintiff filed a single response addressing all four summary judgment motions. The City of Junction City ("City") and all defendants have replied. On that record, the court considers this matter fully briefed and ripe for determination. For the reasons set forth below, the court grants the motion of each defendant.

I. Statement of Uncontroverted Facts

Plaintiff, Pete Arceo (hereinafter "Arceo"), brings three causes of action: 1) a violation of 42 U.S.C. § 1983 by malicious prosecution and false arrest/imprisonment; 2) a violation of state law by false arrest/imprisonment; and 3) a violation of state law by malicious prosecution. Specifically, paragraph 14 of Arceo's complaint states, in pertinent part: "The defendants Clark, Warren and Lueker conspired together to violate the civil rights of Arceo and to charge, imprison, and convict him of a crime which he did not commit and which the defendants should have recognized he did not commit." With Arceo s claims as a backdrop, the court will set forth its findings of material fact. The court assumes that the parties made every effort to focus the pleadings in this case on the actual facts in controversy. Still, the record is extensive and frequently duplicitous. To draft a comprehensive and comprehensible order, the court sets out a single recitation of facts incorporating the positions of all parties. The court cites to the record only where necessary to clarify its findings as to facts allegedly in controversy.

The court's findings include facts taken from various defendants' grand jury testimony. Defendants object to the use of grand jury testimony as a basis for a summary judgment record. The court overrules those objections for the reasons set forth below.

A. Structure of City, JCPD, and Geary County Attorney's Office

The City of Junction City is organized as a City of the First Class pursuant to K.S.A. § 12-1036b et seq. Pursuant to K.S.A. § 12-1014, such cities are overseen by a City Manager who is generally responsible for ensuring that the City's laws and ordinances are enforced. The statutes do not directly state whether the City Manager has the authority to instigate, facilitate, or terminate a police investigation. The parties dispute whether the City Manager or the Chief of Police has final authority as to investigatory decisions. The City Commission, which the public elects, appoints the City Manager. City's Employee Handbook, City's Memorandum in Support, Exhibit 54A, Bates No. 1227. The Employee Handbook states that the City Manager's responsibilities include the "exercise and control over all departments and divisions that may be created by the City Commission." Id. at 1230. The Handbook further indicates that "[e]ach Department Head is responsible to the City Manager and the City Manager is, in turn, responsible to the City Commission for the efficient operation and maximum provision of service." Id.

Defendant Warren was the City's Chief of Police from October 7, 1996 through January 4, 2000. Warren testified that he was a department head, he was responsible to the City Manager, and the City Manager had the right to hire and fire him. Warren Deposition, City's Memorandum in Support, at 20. At Warren's deposition, be discussed section 1.3 of the City's Employee Handbook, which states:

The [Handbook] shall not be construed as limiting the power and authority of any Department Head to make, or cause to be made, any rules and regulations governing the conduct and performance of department employees. Depart mental rules and regulations shall not conflict with provisions of these rules and shall be approved by the City Manager. Such rules and regulations, when approved, published and distributed, shall have the force and effect of rules of the department and disciplinary action may be based upon breach of any such rules and regulations.

Employee Handbook, Exhibit 54A, Bates No. 1231. Section 1.4 of the Handbook provides that the City Manager is responsible for the "administration of these rules and regulations." Id. In considering these Handbook sections, Warren stated the following:

Q: Did the city manager reserve the right, from time to time, to look into the operations and effectiveness of any rules and regulations that you promulgated for your department?

A: Yes, sir, he did.

Q: In other words, would you say, then, that the city manager — insofar as the operation of your department, the city manager was the final authority, he could review anything that was done within your department?

A: That is correct.

Q: All right. So in that sense, since he had that power of review, he was the final authority?

A: That is correct.

Warren Deposition, at 23. Based on this deposition testimony, the City contends that "Warren did not have any control over investigations that was not subject. to change, modification, or reversal by the [City Manager]." City's Reply, at 21, ¶ 8 (see also ¶ 5). On the other side, Arceo relies on the testimony of Jeffrey Clark who stated that Warren had the authority to terminate investigations. Clark Deposition II, Arceo's Response, at 238-239.

Clark's testimony on this topic is not highly persuasive, but the court nonetheless finds the City's position to be unsupported by the record. The City's Handbook. sections 1.3 and 1.4, clearly outlines the authority structure relative to promulgated rules and regulations, specifically, personnel rules and regulations. Warren, during his deposition, discussed the City Manager's authority to review, set aside, etc.' such promulgated rules and regulations. Counsel then continued the questioning by discussing a broad or general "power of review" and the concept of "final authority." The context of the deposition, coupled with the text of the Handbook, reflects the logical premise that the City Manager could oversee the generation and application of personnel and policy rules and regulations. Now, the City argues that Warren's broad statements suggest that the City Manager likewise had the authority to terminate or otherwise control police investigations. The record instructs such a conclusion only if one takes Warren's deposition statements out of context. The City's position may very well be accurate, but on the basis of the record before the court, the possessor of final authority over police investigations within the City's power structure is a matter in controversy. The court does find, however, that the City Manager has the final authority to review and set aside any promulgated policies and procedures which the Chief of Police might generate.

The Junction City Police Department ("JCPD"), at all relevant times, was divided into three sections: 1) uniformed patrol, including K-9 units and animal control; 2) administrative services; and 3) investigation, including detectives, the Drug Task Force, and laboratory services. The Chief of Police is responsible for all three divisions. Captain Winter and Lieutenant Royce Rasmussen supervised the investigation division and were the immediate supervisors of all JCPD detectives. When the investigation division receives a call for service, the call is assigned a case number and where investigation is necessary, it is also assigned a detective. The officer s observations generally govern further activity.

The JCPD handles an average load of 20,000 cases per year. The City is authorized to have 55 sworn officers, but during the relevant periods, the department's average size was 45-50 officers. Due to the size of the department and caseload, the Chief of Police does not know the details of every case. Chief Warren is certain, however, that the JCPD does not expressly or impliedly authorize or permit an arrest without probable cause.

Chief Warren attended and graduated from the Kansas Law Enforcement Training Center ("KLETC") at Hutchinson, Kansas, thereby becoming certified by the State of Kansas as a law enforcement officer. All of the officers, including defendant Jeff Clark were certified by KLETC or by other states which had reciprocal agreements with Kansas. All JCPD officers had training in probable cause analysis, arrest procedures, reports to prosecutors, and working with prosecutors.

As required by state law, the JCPD also has a specific policy ("Geary County Domestic Violence Policy") instructing officers on appropriate ways in which to deal with domestic violence situations. The JCPL) regards domestic violence calls as dangerous investigations, with the danger extending to both responding officers and the parties involved. When a JCPD officer responds to a domestic violence call, the JCPD policy instructs the officer to listen to both sides of the dispute, to look for signs of abuse or physical damage to the surroundings, and to interview any witnesses who remained at the scene, including children and neighbors. The policy requires an arrest if probable cause exists based on information given by any single witness or a combination of several witnesses.

Police officers, through the division commander, forward investigations to the county or city attorney. The prosecutor then makes any prosecutorial decisions. Police officers do not make any decision as to which cases to prosecute. In this case, the Geary County Attorney's office made all relevant decisions pertaining to the prosecution of Arceo. That office refuses to prosecute approximately 20 percent of the reports it receives from the JCPD. Generally, the refusal to prosecute is due to insufficient evidence.

The Geary County Attorney's office also maintains a domestic violence policy. The office's domestic violence case load was such that one of the Geary County prosecutors, Thomas Alongi, was primarily responsible for such cases from late 1998 through March 2000. At all relevant times, Chris Biggs was the Geary County Attorney. Biggs handled the high profile and homicide cases, while three assistants handled the other cases on a rotating basis. The office handles between 450-600 cases per year and up to 2,000 cases per year if traffic cases are included.

B. Arceo/Lueker Connection and Events Giving Rise to Case No. 98-2050

The apparent impetus of the situation giving rise to this suit is a failed relationship between Arceo and defendant Suzanne Lueker. Lueker is currently a 23-year-old Kansas State University student. Arceo is a 30-year-old individual currently employed by the Central National Bank of Junction City as a file clerk. He is also a member of the Army Reserve. Lueker is not now and has never been an employee of the State of Kansas or any subdivision thereof. Arceo and Lueker entered a relationship in the fall of 1995 when Lueker was 17 years old and Arceo was 24. During the relationship, Lueker and Arceo lived together for approximately two years at a residence in Junction City. According to Arceo, the relationship officially ended on April 8, 1998, during a counseling session. Before the demise of their relationship, Arceo and Lueker had obtained a marriage license in anticipation of impending nuptials.

On February 16, 1998, Arceo and Lueker had an argument regarding the proper ownership of some personal property. The argument resulted in Arceo "spanking" Lueker in order to "put her in her place." Arceo Deposition. at 28. Arceo contends that Lueker initiated the physical contact, but fails to cite any portion of the record to support that contention. Arceo's Response to Lueker's Statement of Fact No. 12. The court has perused the relevant portions of Arceo's deposition and recognizes that a police officer asked him about some marks on his person. Arceo Deposition, at 33. However, this does not support a conclusion that Lueker initiated the violence. At any rate, after the "spanking," Arceo left the residence and contacted Officer Nimmo of the JCPD to report the incident. Arceo acknowledged to the officer that he had struck Lueker. Nimmo and several other officers investigated the incident and arrested Arceo for battery.

On February 17, 1998, Arceo was charged in the Municipal Court of Junction City, Kansas, with "striking in the neck and face with his hand and fist Suzanne Lueker," in violation of section 220.150 of the Code of the City, i.e., battery. Complaint, Case No. 98-2050, Exhibit 4, City's Memorandum in Support. The action was initiated on the basis of an affidavit from Officer Nimmo. On the same day, Arceo pled guilty to the battery charge. On February 19, 1998, the municipal court fined Arceo $200 and sentenced him to sixty days confinement but granted him parole for a period of one year. During his period of parole, Arceo was not to contact Lueker in any manner and was to obtain counseling at his own expense with written verification to the court within ten days and with counseling to continue until released by the counselor with a final report to the court.

As noted above, on April 8, 1998, during the course of a court-ordered counseling session with counselor James Smith (a licensed LMSW), Arceo determined to terminate his relationship with Lueker. At some point subsequent to that time, Arceo noticed an affidavit from Lueker on his sergeant's desk at his reserve unit at Fort Riley. The affidavit described three incidents where Arceo had physical contact with Lueker, occurring on March 21, 1998, March 27, 1998, and April 3, 1998. Lueker drafted the affidavit on April 9, 1998 after a discussion with the City Attorney on April 8, 1998. All three of the incidents occurred at Arceo's residence after Lueker had moved out. Arceo knew that Lueker retained a key to his residence and did not object to her visits. Arceo states that the Army "flagged" him, which means he could not obtain any career advancement, could not handle weapons, could not take part in combat training, and was restricted to the unit. Arceo could not testify, however, that the "flagging" was a direct result of the Lueker affidavit.

On April 22, 1998, the City Attorney issued to Arceo a notice to appear on a motion to revoke parole with a hearing date of May 7, 1998. The notice was based on Lueker's April 9, 1998 affidavit, indicating that Arceo had physically abused her on several occasions. On May 7, 1998, Arceo appeared with attorney Doug Thompson and the parole revocation hearing was reset for June 3, 1998. On June 3, the municipal court heard the motion, Arceo was found to have violated a term of his probation as set in Case No. 98-2050. The municipal court revoked his parole and committed Arceo to serve 60 days. Arceo served two days and was released on parole for a period of one year. Arceo was also fined and instructed to refrain from any further contact with Lueker.

C. Development and Disposition of Case Nos. 98-821/98-829

On June 8, 1998, upon application by Lueker, the Geary County District Court entered a Temporary Order of Protection against Arceo with a hearing date of June 22, 1998 with the restraining order effective until that date. No further action appears to have been taken on the Temporary Order of Protection. Temporary Order of Protection, Exhibit 6, City's Memorandum in Support. See also Complaint, 98-CR-821, Exhibit 7, City's Memorandum in Support.

Instead, on June 22, 1998, the date the restraining order expired, County Attorney Biggs filed a criminal complaint against Arceo in the Geary County District. Court, Case No. 98-CR-821, charging Arceo with criminal threats, violating the terms of a protective order, and aggravated intimidation of a witness. The complaint was based on a probable cause affidavit submitted by Officer Charles Leithoff. which set out that Arceo had threatened Lueker by phone and had "egged" her car. Specifically, Leithoff's affidavit described his conversation with Lueker wherein she asserted that Arceo had made a threatening phone call to her, stating among other things, "you better drop the restraining order against me or you will be a dead bitch." Jimmy Mullenaux, a friend of Lueker's, heard the phone call and relayed the information to Officer Leithoff. Mullenaux told Leithoff he recognized Arceo's voice because he had known Arceo for more than ten years. Arceo denied calling Lueker in regard to this incident. After being arrested, authorities released Arceo on a recognizance bond, the terms of which stated that Arceo was to refrain from any contact with Lueker. On July 21, 1998, the district court held a preliminary hearing in Case No. 98-821. Arceo waived preliminary examination and the court found probable cause to believe that Arceo had committed the charged offenses. Arceo was bound over for arraignment and trial. At this point, affidavits by both Lueker and Mullenaux supported the charges and Russell Roe was prosecuting the case.

On June 24, 1998, another criminal action was brought against Arceo in the Geary County District Court, Case No. 98-CR-829. The complaint reflected two charges: 1) violation of a protective order in violation of K.S.A. § 21-3843a(4) and 2) communication of a threat to commit violence with intent to terrorize another in violation of K.S.A. § 21-3419. An Officer Rains signed the probable cause affidavit in this case. He indicated that Lueker told him that, while she was working at a country club, Arceo approached her in a vehicle, flipped her off, and stated "you're a dead bitch" Lueker provided Rains with a copy of the conditions of release on bond ordered by the district court on June 22, 1998 in Case No. 98-CR-821. Additionally, Lueker's statement was verified by her boss, Jennifer Stegmeier. Arceo was again released on a recognizance bond with a "no contact with victim' provision. Written order of the district court confirmed the bond order on June 30, 1998. Attorney Steven Opat represented Arceo in the case. At the same July 21, 1998 preliminary hearing as in Case No. 98-821, Arceo waived preliminary examination in this case (98 829) as well and the court made a finding of probable cause to believe Arceo committed the crimes of criminal threat and aggravated intimidation of a witness in 98-821 and criminal threat as charged in 98-829. As noted above, Arceo was bound over for arraignment and trial. It appears that the Geary County District Court had consolidated the cases (98-821 and 98-829) by this point. Prosecutor Roe was responsible for both casts.

In resolution of Case Nos. 98-821 and 98-829, Arceo entered a plea agreement on September 14, 1998. The terms of the agreement indicate that the state would dismiss with prejudice all charges that were or could have been raised in the course of Case No. 98-829*fn1 if Arceo agreed to enter a plea on the charge of violating a protective order and on the charge of simple assault as charged in Case No. 98-821 (these charges were introduced by amendment through agreement — See Warren's Memorandum in Support, Exhibit N). Arceo entered a plea of nolo contendere on those charges and was thereby found guilty of a violation of a protective order, a class A misdemeanor, and Class C assault, resulting in a 30-day sentence with a work release program. Additionally, Arceo agreed, as a condition of the plea and probation, to have no contact with Lueker. The conviction in Geary County District Court in Case No. 98-821 violated the terms of Arceo's parole entered by the Municipal Court of Junction City, Case No. 98-2050. Thus, Arceo agreed to serve 14 of the 58 days remaining on his parole. Warren's Memorandum in Support, Exhibit O. The time would be concurrent with his sentence in Case No. 98-821, and the jail time was set to commence on September 16, 1998.

D. Incidents Triggering Investigation and Case No. 98-1424

On September 16, 1998, detective Clark was assigned to investigate complaints that Lueker had made to the JCPD regarding a September 15-16 incident involving Arceo. Prior to Clark's involvement in the investigation, Lueker had seen Clark on one or two occasions, but did not know him beyond recognition of his face. At approximately 1:00 am. on September 16, 1998, Lueker reported to the JCPD that someone had tampered with her vehicle, a Pontiac Grand-Am, while it was parked at her residence. Officer Loyce Smith responded and found writing on the inside of the vehicle's windshield, stating "It's not over I told you — you don't know what I can do to you Now your [sic] dead." The writing was in grease paint or a similar product which the officer believed to be military face camouflage. Smith found a military insignia sticker adhered to the outlet of the vehicle's exhaust pipe, and also found the vehicle's fuel tank cover open so that the filler tube was exposed. Smith could not determine whether anything had been placed into the fuel tank. Lueker told Smith she had found a book of partially burnt matches resting on the opening to her vehicle's fuel tank before she called police, but that she had removed the matches before the police arrived.

Upon commencing an interview, Lueker told Smith that she believed Arceo was responsible for the threat, stickers, and matches. She described to Smith a long history of domestic violence involving herself and Arceo. She indicated that Arceo had just been sentenced to 30 days in jail as a result of domestic violence and that he was to begin the sentence later that day, on September 16, 1998. Lueker informed Smith that she locked her vehicle and that Arceo still had a set of keys to the vehicle. Smith noted that the perpetrator had not forced entry into the vehicle. Finally, Lueker told Smith that she believed the sticker on the exhaust pipe was an insignia from Arceo's reserve Army unit. Smith's report concluded by indicating his request that the case "be forwarded to the County Attorney's office for review." During her grand jury testimony, Lueker testified that, at the time Smith was conducting the interview, she knew the handwriting on the windshield did not resemble Arceo's, but did not mention this to the police. Lueker also told officer Smith that she wanted her civil attorney to see the windshield as it would constitute a violation of an existing Protection From Abuse ("PFA") order. Officer Smith indicated his understanding, however, that Lueker wanted to discuss the September 15-16 incident with her civil attorney before making a statement to police. On the same day, Lueker's attorney called the Central National Bank to give a representative of the bank an opportunity to view the alleged vandalism.

Later, in the afternoon of the 16th, detective Clark took Lueker's sworn statement. Lueker confirmed that the vehicle was locked and in normal condition at 10:00 p.m. on September 15, 1998. She next saw the vehicle around 1:00 a.m. on the 16th, at which time the tampering was complete. Lueker additionally told Clark that Arceo had previously threatened her over the phone using language similar to that found on the windshield. After interviewing Lueker, Clark reviewed other police reports pertaining to Lueker. He found that Lueker had complained about harassment and threats by Arceo on other occasions. Clark made note of the following reports in his first investigative report:

1) Case 98-7772, Telephone Harassment; Lueker received a phone call on her cellular phone stating, "you better watch out." Arceo then called, saying "You're not home yet."
2) Case 98-7821, Criminal Threats and Telephone Harassment; Lueker received a call from an unknown male saying, "hope you don't have a drowning" and then received a call from another unknown male saying, "hope you don't have any problems at the pool." When Lueker asked what the caller wanted, the caller stated, "you're going to be a dead bitch."
3) Case 98-8574, Aggravated Intimidation of Witness, Criminal Threats, and Violation of a PFA; these incidents involve Arceo calling Lueker and telling her to drop a restraining order or she would be a "dead bitch" and the "egging" of Lueker's vehicle.
4) Case 98-8675, Violation of PFA and Criminal Threats; Arceo drove to Arceo's work place and threatened her stating, "you're a dead bitch." This incident was witnessed by Lueker's boss, Jennifer Stegmeier.
5) Case 98-8875, Telephone Harassment; Martha Rombold, wife of Lueker's civil attorney, received a harassing phone call from a person she believed to be Arceo.
6) Case 98-11230, Defamation; Kyle Junghaus, Arceo's friend, was upset by rumors that he was making death threats to Lueker.
7) Case 98-11546, Criminal Threats; an unknown caller told Lueker that Arceo was planning to harm her and even talked of drowning her.
8) Case 98-13506, Telephone Harassment; Lueker alleged receiving a harassing call to her home. Her "caller I.D." indicated the call was placed from Arceo's place of employment.*fn2

Clark continued investigating and preparing reports through October 21, 1998. At that time, his supervisor, Captain Winters. reviewed and approved his completed reports and then forwarded them, along with any sworn statements or affidavits, to the Geary County Attorney's office. Prosecutor Russell Roe asked Clark to prepare an affidavit which could be used to request an arrest warrant to arrest Arceo for the acts described in Clark's investigation. Clark prepared the affidavit ...

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