Full opinion text
MEMORANDUM AND ORDER 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 defend dant. I. Statement of Uncontroverted Facts Plaintiff, Pete Arceo (hereinafter “Ar-ceo”), 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, he 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. Departmental 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 JCPD 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, Ar-ceo appeared with attorney Doug Thompson and the parole revocation hearing was reset for June 8, 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 Lei-thoff, which set out that Arceo had threatened Lueker by phone and had “egged” her car. Specifically, Leithoffs 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 Ar-ceo 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 Mul-lenaux 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 80, 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 cases. 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 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 nob 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 Ar-ceo. 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 a.m. 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 ease “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 Ar-ceo’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 Ar-ceo 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. 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 and executed it on October 21, 1998. The affidavit essentially summarizes Clark’s investigative reports up to that date. E. Clark’s Investigation Leading to Case No. 98-1424 During the investigation leading up to the 98-1424 charges, Larry Pacquette, the vice-president of Central National Bank, came to Chief Warren’s office to state his opinion that Arceo was innocent of the charges against him. Pacquette told Warren he believed that two JCPD officers, Loyce Smith and Ron Shelton, were having an affair with Lueker, and that the affairs had affected their treatment of certain complaints by her. Pacquette did not provide Warren with any evidence to support his assertion. Warren then offered to allow Arceo to take a Computer Voice Stress Analyzer (“CVSA”) test. Arceo did take the CVSA test on September 23, 1998, during which the interrogator asked him whether he had vandalized Lueker’s vehicle or knew who did such acts. The administrator of the test reported to Warren that the test revealed Arceo had shown signs of deception on the relevant questions. Similarly, on November 19, 1998, after the 98-1424 complaint, Arceo underwent a polygraph examination administered by the KBI in which he answered several questions about the vandalism of Lueker’s vehicle. The KBI report indicates that “[Arceo] was being deceptive when answering the relevant questions.” Warren Memorandum in Support, Exhibit U. After the conversation with Larry Pac-quette, Warren relayed the information to Clark and conveyed the names of several individuals for possible questioning. From that point on, Clark kept Warren informed with regard to the investigation in Lueker’s complaint, but Clark’s supervisor and the person who reviewed his reports remained Captain Winters. Clark did interview the individuals mentioned by Warren and referred the results to Captain Winters. Clark testified that Captain Winters and Chief Warren agreed that Clark should conduct surveillance of Lueker. Clark began conducting the surveillance a week or two after the reported vehicle vandalism, but the effort did not lead to any additional evidence. Lueker stated that she was not initially aware that Warren and Winters ordered Clark to surveil her residence, but that Clark eventually informed her of the fact. Clark testified that he spent “quite a bit” of overtime on the investigation of Lueker’s complaint. Roe was not aware of the details of Clark’s investigation, but testified that Clark’s working overtime would not have concerned him. Warren also testified that he was not aware of Clark’s overtime because the investigator’s immediate supervisor usually handled and approved such matters. During his second deposition, taken on September 20, 2001, Clark testified extensively regarding the content of the October 21,1998 affidavit. He stated that all of the criminal conduct alleged in his affidavit occurred after September 14, 1998 . However, he also provided information relating to pre-September 14 conduct to the prosecutor for use in determining appropriate charges. Specifically, Clark felt the earlier activity would be relevant to determining if the prosecutor should advance a stalking charge. However, Clark did state that he was not aware of any post-September 14 evidence which would support a stalking charge. Nonetheless, Clark stated that the information was forwarded without his knowledge of the plea agreement and simply for the purpose of allowing the County Attorney to assess the situation. As it pertains to the vehicle vandalism/attempted arson, Clark indicated that the evidence against Arceo was based on Lueker’s statement and other circumstantial evidence. Clearly, Lueker did not see Arceo committing the alleged acts. As noted above, Clark had discovered evidence to explain the phone call from Ar-ceo’s place of employment. Further, Clark indicated that Lueker’s claims in regard to an incident occurring in South Park, which will be discussed below, were somewhat suspicious. In short, after investigating Lueker’s report, Clark could not determine that, after September 14, 1998, Arceo had violated a PFA, had used a telephone to harass any person, or had threatened Lueker. F. The Filing of Case No. 98-1424 Prosecutor Roe filed, on behalf of the State of Kansas, a Complaint/Information against Arceo, dated October 21, 1998, in the Geary County District Court, Case No. 98-CR-1424. The complaint was based solely on detective Clark’s affidavit. The complaint included five counts. Counts 1 and 5 allege that Arceo attempted to damage Lueker’s Pontiac Grand-Am by means of fire or explosive, resulting in charges of attempted arson and felony criminal damage to property. Counts 2 through 4 include stalking, criminal threat, and attempting to dissuade a victim from making a victimization report. Roe prepared an arrest warrant and attached evidence of probable cause and presented the package to the Honorable Larry Bengston, Judge of the Geary County District Court. Judge Bengston found probable cause for all five charges and signed the arrest warrant on October 22,1998. At the time of filing the 98-1424 complaint, Roe was fully aware of the disposition of Case Nos. 98-821 and 98-829, as well as all of the facts and affidavits leading to the plea agreement. Additionally, Roe was aware of the municipal court record in Case No. 98-2050. Before filing the complaint in Case No. 98-1424, Roe considered a number of facts. Primarily, Roe relied on the following: 1) The affidavit of Karen Pruitt which states that she had previously been in an abusive relationship with Arceo. 2) The April 9, 1998 affidavit by Lueker outlining the three occasions of physical abuse by Arceo (3/21/98, 3/27/98, and 4/3/98). 3) A PFA order which prohibited Arceo from contacting Lueker in any manner. 4) An affidavit prepared by Officer Lei-thoff outlining the facts giving probable cause to believe Arceo had committed aggravated intimidation of a witness, criminal threat, and a violation of a protective order. 5) A June 21, 1998 statement by Lueker outlining a phone call from Arceo in which he threatened her if she did not drop the restraining order. 6) The affidavit of Jimmy Mullenaux indicating that he had heard the June 21 phone threat and recognized Ar-ceo’s voice because he had been friends with him for many years. 7) Documents outlining the history and disposition of Case Nos. 98-821/829. 8) The municipal court order wherein Arceo plead guilty to the February 1998 battery of Lueker. 9) The affidavit of officer Loyce Smith regarding the September 15-16, 1998 incident involving Lueker’s vehicle. 10) The offense report and probable cause affidavit prepared by detective Clark in reference to Case No. 98-1424, including the list of other occasions involving Lueker and Ar-ceo and the results of Arceo’s CVSA test. 11) The sworn statement of Lueker describing the automobile incident. 12) Lueker’s statement dated June 22, 1998 regarding a phone log she kept from May 26, 1998 through June 20, 1998 outlining calls from either Ar-ceo or his friends. 13) An October 13, 1998 affidavit by Lueker describing an alleged October 10, 1998 incident where Lueker claims to have been attacked and threatened by a masked assailant with a gun with the threats pertaining to the action against Arceo. 14) A Lueker affidavit describing the September 15,1998 phone call which her “caller I.D.” indicated to be from Arceo’s work place, Central National Bank. 15) An affidavit by Jane Lueker, Suzanne’s mother, explaining why the damage done to Lueker’s vehicle could not have been done by Lueker. 16) Copies of the evidence log of photographs and items taken in connection with the September 15-16 vehicle incident, including a tape from Arceo to Lueker which was allegedly left in the vehicle and which led Roe to believe that Arceo was “nuts.” 17) Detective Clark’s continuing investigative narrative indicating that someone had called his wife from jail and claimed to be Arceo, but that Arceo had denied placing the call. 18) Clark’s continuing investigative report describing an “on-going saga” and summarizing eight additional instances of threats. 19) A two-page investigation summary covering much of the above information and indicating that Arceo had failed the CVSA test. 20) The results of the CVSA test indicating that the test had been administered by a qualified operator and that Arceo had been evasive on relevant questions. 21) A 13 page report from Clark detailing his questioning of a number of witnesses. 22) The cover sheet of a Kansas Standard Offense Report detailing Ar-ceo’s arrest. Roe stated that it is the County Attorney’s office which determines whether to prosecute a case, but that the determination rests heavily on information provided by police. While Lueker was the complaining witness in all of the cases against Arceo, she did not make any of the prose-cutorial decisions. Lueker testified that she was not always pleased with the County Attorney’s decisions in regard to prosecuting Arceo. Roe indicated that, in Ar-ceo’s case, he reviewed all documentation before filing Case No. 98-1424 because he wanted to make sure he had a “lock tight case,” especially in view of the prior intervention by Central National Bank officials. Roe did discuss the case with Clark both before and after its filing, but never discussed the case directly with Chief Warren. G. Clark/Lueker Connection and Alleged Impact on Investigation Rheanna Shaw is a former friend of Lueker. The two had known each other since childhood. Shaw stated, in her grand jury testimony, that Lueker had told her on a number of occasions that she wanted Arceo to go to jail and to lose his job at Central National Bank. Shaw further stated that Lueker had a box of Ar-ceo’s Army reserve unit items, including camouflage paint and unit stickers. Shaw also indicated that, on occasion, Lueker would call her own home from pay phones to make detective Clark believe that Arceo was stalking her. According to Shaw, Lueker staged a phone harassment incident with the assistance of Jimmy Mulle-naux, who developed an interest in Lueker during Arceo’s absence during military duty in Bosnia. Without going into further detail at this point, it is sufficient to state that prior to a phone call from Shaw in December of 1998, Clark did not have any information which would lead one to believe that Lueker was lying. See City’s Statement of Fact No. 73 and Arceo’s Admission Thereto. Lueker also told Shaw that she and detective Clark had kissed for the first time on October 10, 1998, the night of the South Park incident. Shaw stated that she had ridden with Clark and Lueker several times (Shaw’s grand jury testimony reflected three to five times while Clark testified that it was perhaps twice), heard them discuss personal topics, and saw them touch each other’s arms, legs, and shoulders. Clark did testify, during his grand jury testimony, that he gave Lueker a ride to and from the police station “no more than ten times” and that Lueker was with him perhaps three times while he was on surveillance (such as while he was sur-veilling Mr. Pacquette’s residence). Clark Grand Jury, at 867. According to Shaw’s testimony, Lueker called Clark her “undercover lover,” and told Shaw that she had Clark wrapped around her little finger. Throughout Shaw’s grand jury testimony, she recounts other examples which tend to indicate that Clark had an interest in Lueker that was other than professional. Shaw and Lueker terminated their friendship in early December 1998. On the night the friendship ended, Clark called Shaw and told her to stop running her mouth and to leave Lueker alone. It was during this call that Shaw conveyed to Clark, for the first time, that Lueker had asked her to lie about the South Park incident. According to Shaw, she told Clark that she and Lueker were to meet in the park that night, when in fact they planned no such meeting. Thus, during the December 1998 phone call, Shaw told Clark that both she and Lueker had lied about the incident. Clark testified that he never had any romantic relationship with Lueker. Arceo cites Clark’s Grand Jury Testimony, pp. 870-71, 874-75, 878-89, for the proposition that Clark had “become involved with Lueker.” The cited portions of the record do not support any conclusion that Clark was romantically involved with Lueker. Clark did indicate that there were some problems with Lueker calling him directly or paging him to report incidents, but stated that the repeated calls were annoying and he eventually addressed Lueker about the situation. Lieutenant Rasmussen confronted Clark about receiving all the direct calls and the amount of time he was spending on Lueker’s complaint. While he did address the situation, Clark had given Lueker a police department cell phone and told her to contact him directly if she had any problems or if she were going to leave her residence at night. After Clark confronted Lueker, he stopped returning her pages and stopped receiving her phone calls. Clark additionally testified that, after the September 15-16 vehicle incident, he gave Lueker a hug and told her to “hang in there.” Clark specifically denied kissing, having intercourse or any other sexual or physical contact with Lueker. Clark further states that he never furnished any information to the County Attorney’s office which he knew to be false and that he never knowingly concealed any material fact concerning Lueker’s complaints. Finally, Clark testified that he and Lueker had never discussed or planned to have Arceo wrongly arrested, imprisoned, or prosecuted. James Connor, a former police officer, now works as an investigator for Clarence Kelley & Associates (“Kelley”). He was hired by Kay Huff, Arceo’s criminal defense attorney in Case No. 98-1424 and later in 99-764. Huff initially hired Con-nor on December 31, 1998 to investigate the facts relevant to the case against Ar-ceo. After his investigation, Connor concluded that detective Clark should have known that Lueker was lying on certain occasions. Connor apparently based this conclusion on the conversation that Clark had with Rheanna Shaw regarding the South Park incident. At some point after the October 22, 1998 arrest and subsequent to the filing of Case No. 98-1424, Clark became aware that a Geary County Sheriffs Lieutenant, Beth Gilmore-Jones, was conducting an internal affairs investigation about a contact a jail- or made with Arceo. Gilmore-Jones told Clark that he should talk to jailor Lisa Villa because Villa might have information relating to Clark’s investigation of Arceo. Clark prepared a report of his conversation with Villa which stated: Lizza also mentioned that one time Suz-zane did want her and Crystal to go by Petes [sic] house to see if he was home and made a phone call from his residence to hers but that never occurred and she never thought much more about it. The report further discussed how Lueker allegedly told the individuals to pretend they needed help because their vehicle had broken down in order to use Arceo’s phone. The purpose of the alleged ruse was to enable Lueker’s “caller I.D.” to reflect a call from Arceo’s residence and thereby evidence Arceo’s violation of his conditions of probation. Clark supplied this report to the prosecutor’s office in early November 1998. However, Roe testified that Clark’s description of events was so innocuous that it did not cause him to think that Lueker was lying. The Villa allegation first came to Clark’s attention after he had executed the October 21, 1998 affidavit that served as the basis for the complaint in Case No. 98-1424. Neither Roe nor Clark saw the report prepared by Gillmore-Jones that discussed Lueker’s alleged attempt to manufacture evidence until well after the events of this case. Having read the report before his deposition, Roe testified that he would have still believed that probable cause existed to arrest Arceo, but he would have been much more interested in Lisa Villa’s statements. Specifically, the report would have made him question whether Lueker was telling the truth. Clark did question Lueker about Villa’s accusation and Lueker denied any involvement. H. Arceo’s Arrest and the Prosecution of Case No. 98-1424 Picking up the thread of the formal prosecution, Judge Bengsten signed an arrest warrant naming Arceo. The arrest warrant was executed on October 22, 1998 by two plain clothes officers, Clark and another officer, who arrived in an unmarked vehicle at Arceo’s place of employment, Central National Bank. Warren testified that, especially in cases of domestic violence, it is JCPD policy to execute the warrant as soon as possible so as to alleviate risk of further harm to the victim. Warren Deposition, at 54-56. There is factual controversy as to whether the officers arrested and handcuffed Arceo before or after he exited the bank building, or even whether they handcuffed him at all. At the first hearing following Arceo’s arrest, on October 23, 1998, the district court assigned Arceo counsel, Maritza Se-garra. The prosecution offered to reduce Arceo’s bond to $10,000 if Arceo’s employer, or an individual officer of the bank, was willing to accept liability on the bond. During the period immediately following the hearing, no request for reduction of the bond was made by or on behalf of Arceo. In mid-March 1999, Tom Alongi, Assistant County Attorney, took over the case from Roe due to Roe’s being extensively involved in a separate impending homicide trial. Roe’s involvement in the case ended at this point. When Alongi became involved in Arceo’s case, he was unaware of the ongoing internal sheriffs department investigation. In fact, he did not receive a copy of Gilmore-Jones’s report regarding the investigation until well after he dismissed the 98-1424 charges. However, Alongi did know that Lisa Villa had stated that Lueker had asked her and another individual to plant false evidence in the form of a phone call from Arceo’s house to Lueker’s. Alongi was aware of the accusation but did not believe that Villa’s statement affected the appropriateness of the charges against Arceo since the evidence reflected in the charges was not tainted by virtue of the statement and because the allegation did not outweigh other corroborating evidence of Arceo’s commission of the acts alleged in the case. Alongi further noted that, in talking with Lueker, she did not “come off vindictive, like I’ve got him.” Alongi Deposition, at 97, Lueker’s Memorandum in Support, Exhibit N. At a hearing on December 10, 1998, Arceo waived preliminary examination through his appointed counsel. The court found probable cause and bound him over for trial. Alongi filed an Amended Information on March 23, 1999 that included an additional three events, or physical contacts, which Lueker had described in her April 9, 1998 affidavit, i.e., that Areeo made physical contact with her on March 21, 27 and April 8 of 1998. To be clear, the Amended Information in Case No. 98-1424 contained the following charges: 1) domestic battery arising from an alleged March 21, 1998 incident; 2) domestic battery arising from an alleged March 27, 1998 incident; 3) domestic battery arising from an alleged April 3, 1998 incident; 4) solicitation to commit perjury arising from an alleged incident in late May 1998; 5) telephone harassment arising from an alleged June 5, 1998 incident; 6) telephone harassment arising from an alleged June 7, 1998 incident; 7) making a criminal threat arising from an alleged June 7, 1998 incident; 8) attempted arson arising from an alleged September 16, 1998 incident; and 9) stalking arising from alleged incidents between June and October 1998. Notwithstanding Arceo’s prior waiver of his preliminary examination, the court held another preliminary examination on March 31, 1999. The prosecution produced witnesses Lueker and Loyce Smith, who testified about his investigation of the vehicle incident. The government did not call detective Clark, and the defense did not proffer any evidence. The court found probable cause to bind Areeo over on the charges of attempted arson, stalking, and criminal threat. On that same day, Robert Munson of the Central National Bank, signed as surety in the sum of $10,000; Areeo then signed a recognizance bond and was released from custody pending trial. Alongi filed a Second Amended Information on April 5, 1999 basically setting forth the charges that survived the March 31,1999 preliminary hearing. Alongi testified that, as of the filing of the Amended Information outlined above, he had no doubt as to the existence of probable cause on all charges contained therein. Similarly, the original prosecutor, Roe, testified that he would have filed the original charges in Case No. 98-1424 even if he had known about additional circumstances that subsequently came to light. Roe further stated that the totality of the circumstances led him to believe that Ar-ceo was the type of person who would harm Lueker. On June 21, 1999, in response to Arceo’s motion to enforce the September 14, 1998 plea agreement entered in resolution of Case Nos. 98-821*829, the district court eliminated many of the counts in the Second Amended Information as having been extinguished by the agreement, which prohibited prosecution for all matters that were or could have been filed prior to September 14, 1998. Thus the remaining claims, after the June 21 order, were the counts involving attempted arson of the Grand-Am and the criminal threats written inside the vehicle which occurred on September 16, 1998, and the stalking charge which was predicated at least in part on events after the critical date. Certain facts presented by the City (Fact Nos. 93-106) and Lueker (Fact Nos. 55-57) address the April 12,1999 and June 7, 1999 arrests of Areeo and the ensuing prosecution in Case No. 99-CR-764. At footnote 4 of his response brief, Areeo plainly states that he does not assert a cause of action based on these 1999 incidents. However, the additional arrests are relevant to Arceo’s attempt to show that Lueker conspired with the police to violate Arceo’s constitutional rights, thus subjecting her to section 1983 liability. In addition, the court notes that defendant Lueker has introduced facts relating to a civil suit (Geary County District Court Case No. 99-C^42) filed by her against Areeo based primarily on occurrences discussed herein. Neither of these cases are immediately relevant and the court will thus omit discussion of Case Nos. 99-CR-764 and 99-C^12 until the appropriate analysis section. At this point, it is sufficient to recognize that the district court joined Case No. 99-764 with Case No. 98-1424 and the cases proceeded simultaneously. The County Attorney’s office continued to investigate the case, and on July 29, 1999, Alongi requested a continuance, citing the need to examine some newly discovered scientific evidence being offered by Arceo. The court denied the continuance. On July 30, 1999, Alongi met with Lueker to discuss some evidence. Lueker provided some phone records which dealt with an April 19, 1999 incident. She also indicated that she had some evidence that Arceo had lied under oath during a prior proceeding. Alongi wanted additional time to consider this evidence and accusation and thus elected to dismiss the case without prejudice. On August 2, 1999, the district court dismissed the case against Arceo without prejudice. I. Events Following Dismissal of Case No. 98-1424 Up until August of 1999, the City Manager’s office had no reason to suspect that the activity of detective Clark or any other officer fell below professional standards. However, beginning in August 1999, the Junction City newspaper, the Daily Union, carried articles and Letters to the Editor, authored by officials of the Central National Bank, critical of the JCPD’s handling of the investigations involving Arceo. On October 4, 1999, each City Commissioner and the City Manager received a letter from Bruce Woner, an attorney in Topeka, Kansas. The letter included a number of attachments and essentially sought to establish that detective Clark, Chief Warren and others had violated Arceo’s constitutional rights in the way they dealt with the investigation of Lueker’s claims. Wonér’s letter also included a copy of a federal court complaint that was being prepared for filing if the City failed to take appropriate actions to remedy the alleged wrongs. After examining the evidence provided by Woner, the City hired a professional investigation group, Professional Services, Inc. (“PSI”) to investigate Won-er’s allegations. The City did not receive PSI’s report until December 7, 1999, but Clark was placed on administrative leave with pay on October 7,1999. In the interim, the prosecutor convened a grand jury which, on December 13,1999, indicted detective Clark on charges of perjury and providing false information. On December 14, 1999, the City Manager terminated Clark in accordance with a recommendation from the JCPD because he had lied to the department during an internal investigation into Arceo’s case. Clark believed he was terminated due to allegations that he had engaged in an affair with Lueker. The independent investigation, which PSI finalized on December 14, 1999, also included a recommendation to terminate Chief Warren. The City did in fact terminate Warren, effective January 4, 2000. II. Summary Judgment Standard Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(e). In considering a motion for summary judgment, the court must examine all of the evidence in a light most favorable to the opposing party. Jurasek v. Utah State Hosp., 158 F.3d 506, 510 (10th Cir. 1998). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Baker v. Board of Regents, 991 F.2d 628, 630 (10th Cir.1993). The moving party need not disprove the non-moving party’s claim or defense; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987). The party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. “In the language of the Rule, the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). The opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the opposing party must present significant admissible probative evidence supporting that party’s allegations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. Analysis and Discussion A. Prefatory Objections Initially, the court notes that several of the defendants object to Arceo’s use of grand jury testimony of various defendants to establish a record for summary judgment. Defendants rely on the arguments raised in the City’s reply brief. Indeed, Arceo makes numerous and extensive reference to the grand jury testimony of Jeff Clark, Suzanne Lueker, Rheanna Shaw, and John Warren. Rule 56 indicates that the court should decide a summary judgment motion based on “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” Fed.R.Civ.P. 56(c). However, as previously noted in this district, “the particular forms of evidence mentioned in [Rule 56] are not the exclusive means of presenting evidence on a [summary judgment] motion. The court may consider any material that would be admissible or usable at trial.” Wright v. Wyandotte County Sheriff's Dept., 963 F.Supp. 1029, 1035 (D.Kan.1997) (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2721 (1983)). The issue, then, is whether the grand jury testimony advanced by Arceo falls into the category of “any material that would be admissible or usable at trial.” Incidentally, the City argues that grand jury testimony is improper evidence in a summary judgment proceeding because none of the parties had an opportunity to cross-examine the witnesses. However, defendants are in the same position they would have been had Arceo filed an affidavit signed by the witnesses. Since defendants would not have had the opportunity to cross-examine an affiant, their inability to cross-examine the various witnesses during their sworn grand jury testimony does not result in prejudice. The remainder of defendants’ arguments goes to the admissibility of grand jury testimony. The court finds Judge Crow’s opinion in Duffee By and Through Thornton v. Murray Ohio Mfg. Co., 160 F.R.D. 602 (D.Kan.1995) to be persuasive on this issue. In that case, the court considered a statement given by a party to Arceo’s counsel’s interrogator. The person giving the statement was duly sworn to tell the truth by a shorthand reporter, and the reporter properly transcribed the questions and answers. The reporter signed the transcript, but the witness did not. Because a certified reporter prepared the transcript and because the witness gave the statement under oath, the court found that the transcript was at least as reliable as an affidavit. Id. Duffee relied extensively on the Ninth Circuit case of Curnow v. Ridgecrest Police, 952 F.2d 321, 323-24 (9th Cir.1991) where the circuit held that the trial court properly considered an unsigned transcript of a witness’s statement given under oath. The circuit indicated that “because there is no reason to believe that the sworn answers to questions are less reliable than an affidavit, ..., that testimony should be admissible on summary judgment.” Id. at 324. The court concludes that grand jury testimony, like the sworn and properly recorded statements mentioned in the cases above, is a reliable source of information which may be considered on summary judgment. Defendants make much of the fact that grand jury testimony transcripts are not themselves admissible evidence. Given the above standards, it seems this is a critical consideration. However, defendants posit the wrong query. The proper question is not whether the actual transcripts fall within the gambit of proper evidence; the proper inquiry is whether the contents of the transcripts represent admissible testimony. As the Tenth Circuit notes in Thomas v. International Business Machines, 48 F.3d 478 (10th Cir.1995), “the nonmoving party need not produce evidence ‘in a foim that would be admissible at trial,’ but the content or substance of the evidence must be admissible.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)) (emphasis in original). As an example, an affidavit is not itself admissible at trial. It is, however, a proper basis for a summary judgment record if its content is admissible. In other words, a party may not include hearsay testimony that would be inadmissible at trial in an affidavit to defeat summary judgment. In the present case, the fact that the grand jury transcripts are not admissible at trial is irrelevant since much of the transcripts’ content presents admissible and reliable testimony. Portions of the grand jury transcripts do contain inadmissible hearsay which the court will not consider. The court thus overrules defendants’ objection to Arceo’s use of grand jury transcripts but fully recognizes its duty to screen such evidence for any inadmissible content. Various defendants also object to Arceo’s inclusion of a statement of additional uncontroverted facts in his responsive pleading. Defendant City cites cases such as Money v. Great Bend Packing, 783 F.Supp. 563 (D.Kan.1992) and Berry v. City of Phillipsburg, 796 F.Supp. 1400 (D.Kan.1992), to support defendants’ arguments that Arceo failed to properly respond to the various motions for summary judgment. These cases, and others like them, simply hold that a nonmoving party must specifically respond to the moving parties’ statements of uncontroverted fact. Arceo complied with this requirement by separately responding to each allegation by each defendant. Arceo then went further by submitting a statement of additional facts. Rule 56 clearly contemplates such a statement of additional facts and contemplates an opportunity for the moving party to respond thereto. The court will consider Arceo’s statement of additional facts and defendants’ responses thereto. The court also notes defendants’ objections to certain instances where Arceo attempted to controvert a fact, but failed to provide a proper citation. The court need not address that objection other than to make clear that it will not consider any assertion or response to be accurate unless and until the assertion or response is confirmed through use of proper summary judgment evidence. Where any party fails to properly cite the summary judgment record in response to a statement of uncontroverted fact, the court deems the factual assertion admitted. B. Defendant Lueker’s Motion To address Lueker’s arguments, the court must set out a few additional facts. As noted briefly above, on February 8, 1999, Lueker filed a civil petition against Arceo in Geary County District Court Case No. 99-C-42. The petition included four counts: 1) intentional infliction of emotional distress; 2) tort of outrage; 3) assault; and 4) battery. Lueker’s petition reflected allegations from occurrences from February through September of 1998, including the incident involving the threat on and damage to her vehicle. On February 23, 1999, Arceo filed a pleading in Case No. 99-C-42 entitled “Answer and Counter-Claim to Petition.” The pleading denied the allegations in Lueker’s pleading but did not include any counterclaim. On September 14, 1999, Arceo filed a Motion to Amend Answer to Add Counter-Claim. The amendment sought to add counterclaims for malicious prosecution or abuse of process and libel and slander. The proposed counterclaim alleged that Lueker made statements to the police leading to Arceo’s arrests in connection with Case Nos. 98-1424 and 99-724 that she knew to be false and malicious. Civil Case No. 99-C-42 was transferred to the Montgomery County District Court. To this date,