MEMORANDUM DECISION AND ORDER REGARDING DEFENDANTS UTAH COUNTY, OFFICER MATTHEW HIGLEY AND SHERIFF JIM TRACY'S MOTION FOR SUMMARY JUDGMENT DISMISSAL OF ALL CLAIMS ASSERTED IN PLAINTIFFS' FIRST AMENDED COMPLAINT AND MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS OFFICER REED VANWAGONER, PROVO CITY, AND DAVID BOLDA

DAVID NUFFER, District Judge.

Defendants Sergeant Higley, Sheriff Tracy, and Utah County's (hereinafter "Defendants") Motion for Summary Judgment Dismissal of All Claims Asserted in Plaintiffs' First Amended Complaint ("Defendants' Motion for Summary Judgment")1 and Defendants Officer Reed VanWagoner, Provo City, and David Bolda's (hereinafter "Co-Defendants") Motion for Summary Judgment ("Co-Defendants' Motion for Summary Judgment"),2 joined by Defendants3 was heard March 18, 2013. The court's decision was announced at that hearing. The parties, as directed by the court, submitted a proposed order which the court has carefully reviewed and edited.

BACKGROUND4

A. Parties.

1. Plaintiffs brought this action seeking compensatory, injunctive, and declaratory, damages from Defendants in connection with an event that occurred on February 21, 2010.5

2. Plaintiff Patrick Schultz ("Plaintiff Schultz") is a forty-six (46) year old male individual who resides in Provo, Utah. Plaintiff Schultz is deaf.6

3. Plaintiff Velvette Skaggs ("Plaintiff Skaggs") is a thirty (30) year old female individual who also resides in Provo, Utah. Plaintiff Skaggs is deaf.7

4. Plaintiff The Utah Association For The Deaf ("UAD"), is a Utah non-profit corporation "organized with the purpose of helping to eliminate discrimination against individuals who are Deaf...."8

5. Plaintiffs named the following Defendants in their First Amended Complaint: (a) Utah County; (b) Provo City; (c) Jim Tracy; (d) David Bolda; (e) Officer Matthew Higley; (f) Officer Reed VanWagoner; and, (g) Roes I-IX.9

6. Defendant Utah County is organized and existing under the laws of the State of Utah and is a political subdivision thereof.10

7. Defendant Sheriff Tracy has been the Sheriff for the Utah County Sheriff's Office for nine (9) years and has been with the Utah County Sheriff's Office for approximately thirty-four (34) years.

B. Utah County's Policy and Training.11

8. At the time of these events, Utah County Sheriff's Office had Policy 5/330.00 — Interaction with the Hearing Impaired12 in effect:

9. At the time of these events, the Utah County Sheriff's Office had Policy 5/331.00 — Interviewing/Interrogating Subjects with a Hearing Impairment in effect:

10. At the time of these events, Utah County Sheriff's Office had Policy 5/332.00 — Issuance of Non-Criminal Citations to Hearing Impaired in effect:

11. In addition, the Utah County Sheriff's Office had a specific policy prohibiting against biased-based policing, under Policy 5/102.00 — Prohibition Against Biased-Based Policing in effect at the time of these events:

12. Sergeant Higley's written communications with Plaintiff Schultz and Plaintiff Skaggs was consistent with the Utah County Sheriff's Department's policies pertaining to interactions with the deaf or hearing impaired as of February 21, 2010.

13. Further, reports from the Utah County Sheriff's Office ("Reports") reflect that there was ongoing communication between deaf or hearing-impaired individuals and the Utah County Sheriff Office's deputies or employees, on or before February 21, 2010. The Reports indicate that officers of the Utah County Sheriff's Office, on numerous occasions, have assisted or set up communications with TDD or TTY phones at the jail, communicated with translators, and provided services to accommodate deaf or hearing impaired individuals, when taking deaf or hearing impaired individuals into custody, or communicating with deaf or hearing impaired individuals when aiding them with their questions or needs. Before February 21, 2010, none of those interactions resulted in a lawsuit.16

C. Thirty-Day Notice to Vacate for Nuisance that Plaintiffs Received Seven (7) Months Before the Incident at Hand.

14. On July 29, 2009, well before February 21, 2010, Plaintiffs were issued a thirty-day eviction notice to vacate for nuisance by the Lessor and Owner of the premises, Clayton Weaver, which stated the following:

15. Prior to that eviction notice, Plaintiffs had executed a Tenant-Owner Lease Agreement regarding the property located at 411 East 300 South # 1, Provo, Utah. The Plaintiffs had agreed to a term of lease beginning on May 5, 2009, and ending on April 30, 2010, unless terminated in accordance with their agreement.19

16. In their First Amended Complaint, Plaintiffs repeatedly allege that they "were subjected to eviction from their apartment shortly after the events of February 21, 2010. A stated reason for the eviction was the presence of police at the apartment. The eviction caused the Plaintiffs to incur real costs the sum of which is still being calculated."20

17. Because Plaintiffs claimed that they were evicted due to the February 21, 2010, events in Defendants' First Set of Interrogatories and Requests for Production of Documents to Plaintiffs, Defendants made the following requests:

18. In Plaintiffs' Answers and Responses to Defendant Utah County's First Set of Interrogatories and Requests for Production of Documents to Plaintiffs, Plaintiffs responded as follows to those requests:

19. Simply put, the only eviction notice produced by Plaintiffs was the one from July 29, 2009, seven (7) months before the events at hand, and attached as Exh. F to the Supporting Memorandum. Plaintiffs' claims of being evicted as a result of the events on February 21, 2010, lack support.

D. The Homicide Investigation Unrelated to Plaintiffs that Started in the Early Evening of February 21, 2010.

20. At approximately 4:35 p.m., patrol deputies were called to Jolly's Ranch where a dead body had been found in Hobble Creek Canyon. When patrol deputies arrived they confirmed the person was obviously deceased. The body was found next to a blue garbage collector, there were "drag" marks in the snow leading to the body, and one set of footprints leading away from the body.23

21. The body lying in the snow was between a snowdrift and a dumpster. The person was wearing a black "hoodie." Once the "hoodie" was moved away from the person's face, it was determined that a power cord had been wrapped around the person's neck and strangulation marks were apparent. The deputies were also able to determine the victim was a Caucasian female. She was wearing blue jeans, a black "hoodie," two black t-shirts under the hoodie, and brown slip-on shoes/boots. Her hands were duct-taped behind her back as well. She appeared to be approximately between 25-35 years of age. She also had hearing aids in each ear. The victim did not have any other identification on her person, no cell phone, and no other identifying marks or visible tattoos. Also, based on the clothing and observations, the deputies believed the victim had been sexually assaulted. Her bra was pushed up, her jeans were open, and there was a large amount of blood on her jeans around the vaginal and rectum area.24

22. After clearing the scene, Sergeant Higley responded to the Utah County Sheriff's Office to further assist in the investigation. Sergeant Higley was asked to make contact with Sergeant Reed VanWagoner with Provo City Police. Sergeant Higley took several photographs of the victim to Sergeant VanWagoner in an attempt to have him identify the victim but he could not.25

23. While with the Provo City officers, Sergeant Higley was contacted by Utah County Detectives and was assigned to complete welfare checks on female individuals that were known to be deaf or hearing impaired. These individuals included Sarah Christian Thompson, Velvette Skaggs, Cynthia Monteirth and Melanie Sperry.26 Both Velvette Skaggs and Melanie Sperry resided in Provo, Utah. Pursuant to Sergeant Higley's report, the officers went to Velvette Skaggs' residence first.27

E. Events at Issue on the Evening of February 21, 2010 that Relate to Plaintiff Schultz and Plaintiff Skaggs.

24. Sergeant Higley went with Sergeant VanWagoner to the residence and attempted to contact Plaintiff Skaggs. After speaking with other tenants28 and knocking on Plaintiff Skaggs' door, Plaintiff Schultz opened the door.29 Sergeant Higley communicated with Plaintiff Schultz by writing on a note pad. Sergeant Higley expressed that they needed to physically see Plaintiff Skaggs. A written dialogue ensued, however Plaintiff Schultz would not let the officers enter the apartment to see Plaintiff Skaggs who Plaintiff Schultz claimed was sleeping at the time.30

25. The record reflects that there were multiple written communications exchanged between Sergeant Higley and Plaintiff Schultz on the night of February 21, 2010, spread out on seven (7) of eight (8) pages.31 Those seven (7) pages reflected the following dialogue:

26. When Sergeant Higley wrote "you are coming out" Plaintiffs allege in their Opposition Memorandum that Plaintiff Schultz took that to mean that he and his wife were being arrested and Plaintiff Schultz went to get her. Without writing anything on the notepad, Plaintiff Schultz turned to walk into his own apartment in order to wake up his wife. Plaintiff Schultz asserts that when he turned his back the officers entered his apartment (up until that point the officers had been standing outside the apartment at the front door). Plaintiffs assert that the officers grabbed Plaintiff Schultz by the arms and forced him to sit in a chair inside the apartment and again pointed at the written question ("Where is your wife"). This continued for several minutes until the commotion woke Plaintiff Skaggs and she wandered out of the bedroom to find out what was going on.33

27. At that time, the officers thanked Plaintiff Skaggs and Plaintiff Shultz, apologized for bothering them and left after Sergeant Higley gave Plaintiffs the last page of communication on the note pad which had his name and contact information on it.34

[28-30 omitted]

31. Apart from this interaction, Sergeant Higley had no further contact with Plaintiffs.

DISCUSSION

A. Summary Judgment Standard

"[A] court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law."35 Under this standard, "a mere factual dispute will not preclude summary judgment; instead there must be a genuine issue of material fact."36 When the Defendants' and the Plaintiffs' version of events clearly diverge, this court need not blindly accept Plaintiffs' one-sided version of the events, but rather it is the "factual matrix" most favorable to the Plaintiff that this court must consider.37

In other words, the non-moving party must provide evidence "such that a reasonable jury could return a verdict for the non-moving party."38 This means the Plaintiffs must provide "significant probative evidence tending to support the complaint."39 "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."40

Defendants assert that Sergeant Higley is entitled to summary judgment under the doctrine of qualified immunity regarding Plaintiffs' 42 U.S.C. § 1983 Deprivation of Constitutional Rights Claims. The court addressed those claims last as related to these Defendants and so will proceed regarding the claims in the order that the court addressed them at the hearing on March 18, 2013.

B. Plaintiffs' Claims Against Utah County, Jim Tracy, Utah County Sheriff, and Officer Matthew Higley

i. Plaintiff Utah Association for the Deaf's ("UAD") Claims Against Defendants

Defendants assert that Plaintiff UAD cannot assert a general claim on behalf of its association members in this case, particularly where each interaction the Defendants or Defendant-officers may have with UAD individual members may be different, requiring different and individualized proof which is consistent with the U.S. Supreme Court's holding in Warth v. Seldin:

Plaintiffs concede that the Association cannot seek separate monetary damages. Defendants also assert that while an association can seek injunctive relief there has been no demonstration or evidence produced by the individual Plaintiffs or by UAD that a pattern or practice of misconduct exists within Utah County to support any injunctive action being necessary. Plaintiffs offered no persuasive authority to refute Warth v. Seldin. Accordingly, Plaintiffs failed to meet their burden and UAD is dismissed as a party from this case.

ii. Plaintiffs' Claims Against Utah County for Injunction and Damages for Violation of Title II of the ADA for Failure to Afford Effective Communication and Violation of Section 504 of the Rehabilitation Act as Stated Under Plaintiffs' First and Second Causes of Action

Plaintiffs' First Cause of Action purports to state a claim for violation of Title II of the ADA, while Plaintiffs' Second Cause of Action addresses Section 504 of the Rehabilitation Act, against Utah County.

Section 504 has the same standards as a violation of Title II of the ADA.

Defendants assert that Tucker v. Tennessee, 539 F.3d 526 (6th Cir.2008) should be applied to the facts at hand. In Tucker v. Tennessee, the plaintiffs challenged the summary judgment that was granted in favor of the city police as it related to their arrest. Plaintiffs alleged that despite their request, the City police failed to provide a qualified sign language interpreter The court held that the police were not providing a "service, program, or activity" to which the ADA applied, but even if they were, the plaintiffs "... failed to show any intentional denial of benefits solely because of their disabilities ... Had the situation remained controlled, the officers were communicating effectively with all parties by using a pen and paper ... Where, as it occurred in this case, officers are presented with exigent or unexpected circumstances, it would be unreasonable to require certain accommodations be made in light of the overriding public safety concerns."44

Plaintiffs assert that Gorman v. Bartch, 152 F.3d 907 (8th Cir.1998), is a "more applicable case."45 In Gorman v. Bartch, a wheelchair bound arrestee brought a claim against the city police department, its officers and others, under the Rehabilitation Act and ADA, for injuries received when being transported in a police van that was not equipped with wheelchair restraints. While the appellate court found that the arrestee's allegations fell within the framework of both ADA provisions regarding public services and the Rehabilitation Act, the appellate court also found that the police officials were entitled to qualified immunity in their individual capacities from arrestee's claims because "it cannot be said that reasonable police officials in May of 1992 would have known that the actions alleged against the individual defendants in respect to the transportation of a disabled arrestee were subject to, and in violation of, Title II of the ADA or § 504 of the Rehabilitation Act."46

The court independently addressed the Tenth Circuit decision, Gohier v. Enright, 186 F.3d 1216 (10th Cir.1999), referenced in an Eleventh Circuit Case47 by Defendants in their Supporting Memorandum, which the Tucker v. Tennessee court found persuasive.

The Eleventh Circuit noted that the Tenth Circuit "recognized the possibility that arrestees may be able to state an ADA claim based on police conduct during an arrest."48 However, the Tenth Circuit ultimately left the theory of such a claim "an open question" in the circuit because the facts did not show a wrongful arrest based on a disability and the plaintiff made no claim that the police had failed to accommodate his disability during the arrest.49

Under Gohier, a police investigation could be considered a service. However, taking the evidence in the light most favorable to Plaintiffs as the non-moving party, Plaintiffs were not intentionally denied the benefit of participating in a service based on their disability, where there was no arrest, no documented written request for an interpreter by Plaintiff Schultz; Plaintiff Schultz provided no sworn affidavit stating otherwise; and the communication while perhaps difficult, was not ineffective, as it related to the communications exchanged between Plaintiff Schultz and Sergeant Higley on the evening of February 21, 2010. Further, Plaintiffs could not demonstrate what would have been different had an interpreter been present. Thus, Plaintiffs did not carry their burden on their causes of action against Utah County for Violation of Title II of the ADA Failure to Afford Effective Communication and Violation of Section 504 of the Rehabilitation Act, such that Plaintiffs' First and Second Causes of Action are dismissed against Utah County.

iii. Plaintiffs' Claims Against Utah County for Violation of Title II, ADA and Section 504 for Disparate Treatment by Reason of Disability as Stated Under Plaintiffs' Third Cause of Action

Plaintiffs assert that a disparate-treatment or disparate-impact claim is cognizable under the ADA against Utah County based on Thompson v. Colorado, 258 F.3d 1241, 1249 (10th Cir.2001). Plaintiffs also referred to the Department of Justice, 1991 title II ADA regulation.50 However, Plaintiffs failed to mention that Utah County does use qualified American Sign Language interpreters and there is no limitation demonstrated by Plaintiffs regarding any auxiliary aid or services that Utah County does not provide. In fact, there is nothing in support of Plaintiffs' claims that Defendants segregate their services from persons who are Deaf or have any type of hearing impairment and because Plaintiffs demonstrated no showing of need to be treated differently other than the treatment provided by Sergeant Higley on the evening at issue, Plaintiffs Third Cause of Action is dismissed against Utah County.

iv. Plaintiffs' Claims Against Utah County for Violation of Title II, ADA — Discriminatory Policies Practices and Procedures as Well as Injunction and Damages for Violation of Title II, ADA — Discriminatory Administrative Methods as Stated Under Plaintiffs' Fourth and Fifth Causes of Action

In Plaintiffs' Fourth and Fifth Causes of Action, Plaintiffs addressed violations under Title II of the ADA against Utah County based on claims that Utah County has discriminatory policies, practices, or administrative methods. Plaintiffs asserted that Utah County fails to provide interpreters and fails to provide training related to their employees regarding the ADA and Section 504, and that Plaintiffs' eviction was a result of Utah County's discriminatory policies.51

In response, Defendants addressed the training provided by Utah County to Sergeant Higley regarding the ADA, discrimination, and disabled individuals with documentation,52 and also attached an eviction notice from seven months earlier to show that the eviction proceedings were not related to the events on February 21, 2010. Plaintiffs offered no evidence to the contrary.

Further, Plaintiffs failed to produce any evidence that there was a widespread pattern or practice of misconduct, deliberate indifference by the policy makers, or that Plaintiffs were specifically injured by any Utah County policy, practice, method or custom, such that Plaintiffs' claims failed under the Monell test.53 However, Defendants argued this only in their discussion of dismissal of Plaintiffs' Eighth Cause of Action and not as a separate section in their argument. Even though Defendants requested dismissal of all claims asserted in Plaintiffs' First Amended Complaint,54 Defendants (in not including specific language of dismissal regarding "Plaintiffs' Fourth and Fifth Causes of Action" in their Supporting Memorandum) did not put Plaintiffs on clear notice or fully brief those two causes of action, such that Plaintiffs did not respond in their Opposition Memorandum, and therefore Defendants' Motion to dismiss Plaintiffs' Fourth and Fifth Causes of Action is denied.

v. Plaintiffs' Claims Against Sergeant Higley and Sheriff Tracy as Individuals in Their Official Capacities for Violation of Plaintiffs' Constitutional Rights to Miranda Prior to Custodial Questioning and Attached Due Process Violations Under the Sixth And Fourteenth Amendments as Stated Under Plaintiffs' Seventh Cause of Action

In their Seventh Cause of Action, Plaintiffs complain that Schultz was not given Miranda warnings. Defendants assert that Plaintiff Schultz was neither a criminal suspect in custody or under the functional equivalent of a formal arrest when the officers interacted with him on the night of February 21, 2010, regarding the whereabouts of Plaintiff Skaggs. Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003), is directly on point. In that case, the U.S. Supreme Court indicated that a sergeant's general questioning did not violate the plaintiff's due process rights, nor warrant liability under a 42 U.S.C. § 1983 action. Miranda advice of rights was not required and Plaintiffs' evidence in support of their Seventh Cause of Action fails to support a violation of the Sixth or Fourteenth Amendment; therefore Plaintiffs' Seventh Cause of Action is dismissed.

vi. Plaintiffs' Claims Against Jim Tracy, Utah County Sheriff

It is undisputed by all parties that Sheriff Tracy was not present during the interaction or involved in any way with the officers' interaction at the Plaintiffs' apartment on the evening of February 21, 2010. Accordingly, Plaintiffs have failed to assert facts which would establish Sheriff Tracy's liability in any way and Sheriff Tracy is entitled to dismissal of all claims raised against him by Plaintiffs.

vii. Plaintiffs' Claims Against Utah County for Violation of Plaintiffs' Civil Rights Municipal Liability, 42 U.S.C. § 1893 as Stated Under Plaintiffs' Eighth Cause of Action

Plaintiffs' Eighth Cause of Action alleges violations of 42 U.S.C. § 1983 by Utah County. Defendants assert that there was no improper custom in place to support Plaintiffs' claims against Utah County, or its Sheriff's Department, and that the record regarding the Utah County Sheriff's Department's interactions with deaf or hearing impaired individuals demonstrates the Department is considerate of those individuals.

Plaintiffs argue that Utah County, or its Sheriff's Department, is liable based on the customs of Utah County and its ratification of the "intentional denial of constitutional and statutory rights of its citizens." Plaintiffs, however, offer no proof approaching the level required to show a "persistent and widespread practice of unconstitutional misconduct."56 The only evidence related to this claim is submitted by Utah County. The records from Utah County demonstrate that it is routine for hearing impaired individuals to have access to auxiliary aids, such as the TDD or TTY phones in the jail; and that the Utah County Sheriff's Office has addressed interactions with hearing impaired individuals on one or more occasions through interpreters.57 In fact, Utah County showed that it spent thousands of dollars last year for interpreter services prior to these events.58

Plaintiffs' statements regarding Utah County's practices were unsupported and insufficient to show that Utah County is liable for Plaintiffs' alleged injuries on the basis of an unconstitutional custom. There is no evidence of an established policy, practice, custom and/or decision by Utah County to deprive Utah County Sheriff's Office deputies of proper training or hearing impaired citizens of auxiliary aids and services.

Plaintiffs failed to meet the requirements of Brown v. Whitman, to establish municipal liability and Plaintiffs' Eighth Cause of Action is dismissed.

viii. Plaintiffs' Claims Against Sergeant Higley for Violation of Plaintiffs Constitutional Right to be Free from Illegal Search and Seizure and Attached Due Process Violations Under the Fourth and Fourteenth Amendments and Section 1983 as Stated Under Plaintiffs' Sixth Cause of Action.

Defendants assert that Sergeant Higley is entitled to summary judgment under the doctrine of qualified immunity.59 Officers are entitled to qualified immunity when "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."60 "Qualified immunity protect[s] officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority."61

When such a defense is raised, it becomes the Plaintiffs' burden to first prove that the facts alleged make out a violation of a constitutional right.62 Then, the second prong of the qualified immunity inquiry turns on whether the right allegedly violated was clearly established at the time of the incident63 "such that a reasonable person in the defendant's position would have known that his conduct violated that right."64 "If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate."65

If the plaintiff "fails to satisfy either part of this two-part inquiry, the court must grant the defendant qualified immunity."66 The court has discretion as to which of these two inquiries it addresses first.67

In this case, the parties agree that "[T]he Fourth Amendment does not permit a warrantless entry into a suspect's home to arrest him unless the circumstances are exigent or an occupant has consented."68 Furthermore, the parties agree that Schultz did not consent to the officers entering his home.

Defendants argued that Plaintiffs have not supported their "heavy burden" of establishing that the law was clearly established on these specific facts and that it would be appropriate for this court to find that (as of February 21, 2010) the "existing precedent" had not placed beyond debate the constitutional question regarding the interactions with a hearing impaired individual, and subsequent entry into the apartment with use of minimal force, in a situation analogous to that confronting Sergeant Higley (such that "every reasonable official would have understood that what he [did] violate[d] that right").69

Defendants asserted that exigent circumstances existed under the emergency circumstances articulated by the U.S. Supreme Court in Brigham City, Utah v. Stuart.70 In Brigham City, Utah, officers responded to a 3 a.m. call about a loud party and when outside they observed what they perceived to be an altercation through a kitchen window. They saw four adults attempting to restrain a juvenile, who broke free and struck one of the adults, causing him to spit up blood.71 When the officers saw the fight continue, they announced themselves through an open screen door, but no one heard, so they then entered the home and announced themselves again. The entry was deemed reasonable because "the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning."72 Further, the court found the "manner of the officers' entry was also reasonable" in spite of the Fourth Amendment "knock and announce" requirement, because no one heard the officer's announcement outside the screen door and the announcement after stepping inside "was probably the only option that had even a chance of rising above the din."73

Defendants claim that Sergeant Higley had just been confronted with a crime scene and a murdered, unidentified female victim. Therefore, Defendants asserted, the gravity of the underlying offense was severe and that Sergeant Higley's actions in following Plaintiff Schultz into the apartment after Schultz turned away were reasonable because Sergeant Higley knew that he could not verbally command Plaintiff Schultz to stop since Plaintiff Schultz is Deaf. According to Defendants, they had a reasonable belief that Plaintiff Schultz walked away to hide evidence, get a weapon, or try to flee. This ignores the point of their interchange with Schultz which was pointed at seeing Schultz's wife.

Defendants also joined with Co-Defendants' analysis of Ryburn v. Huff74 in Co-Defendants' Reply Memorandum.75 In Ryburn v. Huff, a minor was being interviewed for allegations that the minor may conduct violence against his fellow classmates and teacher. The interview took place in the presence of his mother on the sidewalk outside his home. The officers asked if they could interview the mother inside and she declined. Then when the officers asked if there were any guns in the home, the mother ran inside the home. The Ryburn court found that the discrete incident of the mother not responding and returning into the house, when considered under the totality of the circumstances, was the precipitating event that permitted the officers' entry inside the home in following the mother, without a warrant. The Plaintiffs stated, unlike Brigham City, or Ryburn, Defendants in this case had not shown any predicate reason for the officers to suspect the presence of a weapon or to believe that Plaintiff intended to destroy evidence.

Unlike the exigent circumstances present in Brigham City, Utah and Ryburn, the facts in this case only show that Plaintiff Schultz was deaf and turned away from the officers and that he was complying with the officers' demand to see his wife. This does not create exigent circumstances, authorizing entry into the home without consent. No exigency is presented by the events leading up to Sergeant Higley's interactions with Plaintiff Schultz, since the victim was already dead and discovery was made several hours before. There are no exigencies comparable to those enumerated in Welsh v. Wisconsin76 which included the "hot pursuit of a fleeing felon," "destruction of evidence" or "ongoing fire.". Further, while Defendants assert that there is no, Tenth Circuit or Supreme Court decision on these facts the law clearly established that warrantless entries are not permitted absent exigent circumstances. No such circumstances were present.

As a result, on the undisputed facts presented on this motion, Sergeant Higley is not entitled to qualified immunity. Accordingly, dismissal of Plaintiffs' Sixth Cause of Action against Sergeant Higley is denied.

C. Plaintiffs' Claims Against Officer Reed Van Wagoner, Provo City, and David Bolda, Interim Provo City Police Chief

i. Plaintiffs' Claims Against Officer Reed Van Wagoner

Officer Reed Van Wagoner ("Lt. Van Wagoner") asserts that he is entitled to dismissal of the civil rights claims against him on the basis of qualified immunity.

In support of his motion for summary judgment, Lt. Van Wagoner presented sworn testimony establishing that he did not participate in the conversation between Sergeant Higley and Mr. Schultz; that he made no independent assessment of exigent circumstances allowing for warrantless entry into the Schultz/Skaggs apartment; that he did not have information upon which to make an independent probable cause determination; and that he followed Sergeant Higley into the apartment to provide backup. Plaintiffs do not contest these material facts.

Plaintiffs have failed to provide any evidence to contradict the sworn testimony of Officer Van Wagoner. Plaintiffs have also failed to sustain their burden to demonstrate that it was clearly established that a reasonable person in Officer Van Wagoner's position would have known that his conduct in entering the apartment to provide backup violated Plaintiffs' constitutional rights. Accordingly, the court finds that Officer Van Wagoner is entitled to qualified immunity and hereby dismisses Plaintiffs' claims against him.

ii. Plaintiffs' Claims Against Provo City and Chief Bolda

Against Provo City and Chief Bolda, Plaintiffs claim that the events of the evening were the direct result of failure to train or supervise Officer Van Wagoner. All of the parties agree, however, that the "welfare check" at the Schultz/Skaggs apartment was being conducted pursuant to orders from the Utah County Sheriff. Thus, it is Utah County policy that is at issue in this case. Provo City policies are not implicated because it was not directing the investigation. Thus, Plaintiffs cannot establish that Provo City policy was the "moving force" behind the alleged civil rights violation. Similarly, Provo City's police are not implicated in Plaintiffs' ADA claims. Accordingly, Plaintiffs' claims against Provo City and Chief Bolda are hereby dismissed.

ORDER

Having reviewed the parties' respective motions and memoranda, each document submitted before the court, the applicable case law and statutory provisions, the arguments of counsel set forth at the March 18, 2013 hearing, and based on consideration of facts deemed relevant by the court and notes addressed at the hearing included above, for good cause appearing, IT IS HEREBY ORDERED that:

I. Defendants' Motion for Summary Judgment77 is GRANTED in part and DENIED in part as follows:

II. Co-Defendants' Motion for Summary Judgment78 is GRANTED in its entirety and Plaintiffs' claims and legal action against Lieutenant Reed VanWagoner, Provo City, and David Bolda are dismissed with prejudice.