By KARLA POMEROY
A Greybull man seeking more than $8 million from the Greybull Police Department and town of Greybull is appealing a decision to dismiss the majority of his civil lawsuit.
A notice of appeal was filed on Aug. 4 in the United States District Court. Phillip Charles Barham’s attorney James Castberg, originally filed the case against the town of Greybull, Greybull Police Department, Police Chief Brenner individually, Officer Matt Miller individually and Officer Ben Mayland individually, in December 2010. The motion for summary judgment was approved by U.S. Magistrate Judge Scott W. Skavdahl on July 11.
The suit stems from incidents surrounding Barham’s arrest in July 2009 on multiple sexual assault charges. Barham was originally charged with eight counts of sexual assault of a minor for alleged acts upon an 8-year-old victim. The investigation into those charges led the county attorney’s office to file additional charges of alleged sexual assaults of two female victims. In total, according to Summary Judgment ruling, 20 counts were filed against Barham.
Barham was released in March 2010, following dismissal of all 20 counts, after Barham had spent 224 days in the Big Horn County Jail.
Barham, in his original complaint seeks $5,367,000 to recover damages from what he alleges was an unlawful arrest and detention. He stated in the complaint that the information from the alleged victims was false and uncorroborated. It was noted among inconsistencies in the victims’ stories, that DNA found on one of the adult victim’s bra’s excluded Barham as the contributor. The DNA evidence was provided on March 4, after most of the counts were already dismissed. The additional counts were dismissed five days later.
Barham alleges that while incarcerated he was harassed and feared for his safety and volunteered for solitary confinement.
The defendants in the civil case claim qualified immunity. In the summary judgment, Skavdahl writes that “qualified immunity shields public officials from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.”
He seeks $1 million for Count II, which he alleges was unlawful search and seizure. He alleges in the complaint that probable cause for the three search warrants executed on his property were based on “false information” and that evidence seized did not corroborate victims’ statements to police.
In the summary judgment regarding the unlawful arrest and unlawful search and seizure allegations, Skavdahl wrote, “Probable cause (for an arrest) requires reasonably trustworthy information as to warrant a prudent man in believing that the arrestee has committed or is committing an offense. Probable cause, however, does not require an actual showing of such activity. It is irrelevant to the determination of probable cause whether a person is later acquitted of the crime for which he is arrested.”
He added, “Based on statements provided by three independent women, Police Officer Defendants reasonably believed they had probable cause to arrest Plaintiff and search his property.”
Skavdahl also wrote that “Proof beyond a reasonable doubt is required for a conviction but, as is the case here, only the lesser standard of probable cause is required for an arrest.
“The court finds Plaintiff has not met his burden showing Police Officers Defendants violated his consitutional rights.”
In regard to an issue of whether the Greybull Police have returned all property seized during the searches, the District Court ruled that it was a matter for the state court.
Barham is seeking another $1 million for Count IV — public embarrassment and ridicule, loss of enjoyment of life. According to the complaint, “As a result of the false charges filed against him … the Plaintiff has been branded as a child molester, a rapist and a sexual pedophile.” The complaint adds that Barham has “been forced to keep his current whereabouts unknown to the public,” and that during his incarceration he became delinquent on financial obligations and has been sued by collection agencies.
The court ruled that “There is no underlying constitutional violation upon with (Barham) can support his claim for public embarrassment, ridicule or loss of enjoyment of life.”
On liability of the town and the Greybull Police Department, the court ruled that Barham failed to allege any facts supporting his claim of inadequate supervision, training or discipline over the officers.
He also seeks $1 million in punitive damages. The court ruled that pursuant to state law, “punitive damages are not intended to compensate the plaintiff; instead punitive damages are awarded to punish the defendant and deter others from such conduct in the future. A claim for punitive damages in this case cannot stand without an underlying constitutional violation.
According to documents with the Tenth Circuit Court of Appeals, action on the appeal is delayed pending resolution to the one additional charge — excessive force — that was not dismissed.
Barham is seeking an additional $1 million for an excessive force allegation against Officer Miller. The count was not part of the summary judgment motion filed by the defendants.
Barham alleges that after he was initially handcuffed by Officer Mayland in July 2009, Miller “rehandcufffed (his) hands behind his back and forcefully jerked (his) cuffed hands and arms upward with such force that Plaintiff immediately experienced severe pain in his left shoulder.” He further alleges that Miller used enough force on the leg shackles that Barham’s left prosthetic leg came off.
The complaint alleges that Barham needs rotator cuff surgery and was in pain during his 224 days in jail.
In the answer filed with the U.S. District Court, Miller denies the allegations.