Mendez v. Scottsdale, City of et al, No. 2:2012cv00285 - Document 70 (D. Ariz. 2014)
Court Description: MEMORANDUM OF DECISION AND ORDER: ORDERED granting Defendants' 60 MOTION for Summary Judgment on all counts. ORDERED that Defendant is dismissed from this case. IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly and terminate this case. Signed by Senior Judge Stephen M McNamee on 6/9/2014.(LFIG)
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jorge Rolando Mendez, Plaintiff, 10 11 vs. 12 City of Scottsdale, et al., Defendants. 13 14 ) ) ) ) ) ) ) ) ) ) ) No. CV-12-285-PHX-SMM MEMORANDUM OF DECISION AND ORDER 15 Pending before the Court is Scottsdale Police Officer Aaron Bolin s ( Defendant ) 16 motion for summary judgment and accompanying statement of facts, which is fully briefed. 17 (Docs. 60, 61.) After considering the parties extensive briefing, the Court will grant 18 Defendants motion for summary judgment. BACKGROUND 19 20 The undisputed material facts of this case are as follows: on January 16, 2011, 21 Defendant was on duty at the P.F. Chang s Marathon in Scottsdale. (Doc. 61-1 at 12.) 22 Defendant was working to keep non-runners and non-race participants off the closed 23 roadway during the race. Id. Defendant noticed Jorge Rolando Mendez ( Plaintiff ) riding 24 his bicycle on the left side of the closed road.1 Id. In Defendant s police report he stated that 25 26 27 28 1 Plaintiff was holding a sign to the crowd which read Protect our Constitution. (Doc. 61-1 at 12.) Plaintiff was carrying the sign intending to put out the message in connection with his strongly-held beliefs regarding immigration legislation. (Doc. 61-2 at 2526.) 1 he rode up to Plaintiff and informed him that the road was closed to all vehicle traffic for the 2 race and that he needs to get off the road and ride on the sidewalk. Id. At first Plaintiff 3 complied with Defendant s instructions and got off the road, but shortly after, Plaintiff left 4 the sidewalk and entered the closed roadway in the bicycle lane. Id. Seeing Plaintiff on the 5 road again, Defendant instructed Plaintiff to stop and pull over onto the sidewalk. Id. Once 6 both Defendant and Plaintiff were off the road, Defendant asked Plaintiff to provide his 7 driver s license or evidence of identification. Id. However, Plaintiff refused. (Doc. 61-2 at 8 28-29.) Defendant warned Plaintiff that if he refused to produce evidence of identification, 9 Defendant would have to arrest him. (Docs. 61-3 at 49, 61-2 at 29.) Plaintiff began to move 10 away from Defendant (Doc. 61-2 at 34), at which time Defendant took hold of Plaintiff s arm 11 to handcuff him (Doc. 61-1 at 12). Plaintiff admits that he stiffened his arm as a reaction to 12 the arrest. (Doc. 61-2 at 35.) Consequently, Defendant delivered a knee strike2 to Plaintiff s 13 right leg. (Doc. 61-1 at 13.) The knee strike landed on Plaintiff s leg and he immediately 14 began to yell and howl in pain. Id. 15 Plaintiff initially did not request medical assistance, but later when he was being 16 transported to jail, he requested medical attention. (Doc. 61-2 at 20.) When paramedics 17 arrived on the scene, Plaintiff s running pants were rolled up revealing a large vertical scar 18 on his knee. (Doc. 61-1 at 13.) Plaintiff, formerly a professional and amateur soccer player, 19 had two knee surgeries to his right knee and one prior surgery to his left knee. (Docs. 61-2 20 at 12-14, 61-12 at 4.) Plaintiff testified that he has no recollection of any aspect of the 21 surgery on his left knee, or where it was performed. (Doc. 61-2 at 14.) The pre-existing 22 surgical scar on Plaintiff s knee had been hidden from Defendant s view until after the 23 paramedics arrived. Id. Upon examination of Plaintiff s right knee, the paramedic found 24 absolutely no sign of recent injury no cut, scrape, bruising, swelling or other trauma. (Docs. 25 61-9 at 8, 61-10 at 3.) Plaintiff complained of pain and decreased range of motion, but the 26 paramedic noted that this was a subjective finding which is patient dependent. (Docs. 61-9 27 28 2 A police officer delivers a knee strike by using his knee to deliver force to the subject s thigh area. (Doc. 61-14 at 3-4.) -2- 1 at 8-9, 61-10 at 3.) No objective signs of injury were found by the paramedic. Id. Later, an 2 MRI of Plaintiff s right knee was taken which showed multiple degenerative changes 3 including advanced tricompartmental osteoarthritis, but no definitive injury from the knee 4 strike or subsequent fall to the ground. (Doc. 61-12 at 2.) 5 Plaintiff was arrested and charged with (1) failure to obey a police officer (A.R.S. § 6 28-622(A)), (2) failure to provide driver s license or evidence of identity (A.R.S. § 28- 7 1595(B)), (3) failure to ride on the right side of the road (A.R.S. § 28-815(A)), and (4) 8 riding/driving on a closed road (Scottsdale Revised Code ( S.R.C. ) § 17-4). (Doc. 61-1 at 9 3.) Following a trial, Plaintiff was convicted of violating A.R.S. § 28-622(A), failure to 10 comply with a police officer and held responsible for the civil traffic violation of 11 riding/driving on a closed road, pursuant to S.R.C. § 17-4. (Doc. 61-8.) However, Plaintiff 12 was not found guilty under A.R.S. § 28-1595(B), failure to provide driver s license or 13 evidence of identity and A.R.S. § 28-815(A), failure to ride on the right side of the road. Id. 14 Plaintiff filed his original complaint in Maricopa County Superior Court and 15 Defendant removed the case to this Court on October 2, 2012. (Doc. 1 and Doc. 1 at 2.) 16 Subsequently, Defendant moved for summary judgment along with his supporting statement 17 of facts. (Docs. 60, 61.) Plaintiff responded together with a statement of controverting facts 18 and Defendant replied. (Docs. 66, 65, 69.) STANDARD OF REVIEW 19 20 I. Summary Judgment 21 In a summary judgment motion, the court construes all disputed facts in the light most 22 favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 23 2004). A court must grant summary judgment if the pleadings and supporting documents, 24 viewed in the light most favorable to the non-moving party, show that there is no genuine 25 issue as to any material fact and that the moving party is entitled to judgment as a matter of 26 law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 27 Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). A dispute about 28 a fact is genuine if the evidence is such that a reasonable jury could return a verdict for -3- 1 the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); see Jesinger, 2 24 F.3d at 1130. Only disputes over facts that might affect the outcome of the suit under the 3 governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. 4 at 248. 5 The principal purpose of summary judgment is to isolate and dispose of factually 6 unsupported claims. Celotex, 477 U.S. at 323-24. Summary judgment is appropriate against 7 a party who fails to make a showing sufficient to establish the existence of an element 8 essential to that party s case, and on which that party will bear the burden of proof at trial. 9 Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The 10 moving party need not disprove matters on which the opponent has the burden of proof at 11 trial. See Celotex, 477 U.S. at 323-24. The party opposing summary judgment need not 12 produce evidence in a form that would be admissible at trial in order to avoid summary 13 judgment. Id. at 324. However, the non-movant may not rest upon the mere allegations or 14 denials of the party s pleadings, but must set forth specific facts showing that there is a 15 genuine issue for trial. See Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co., Ltd. v. Zenith 16 Radio Corp., 475 U.S. 574, 585-88 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 17 1044, 1049 (9th Cir. 1995). 18 II. Qualified Immunity 19 The doctrine of qualified immunity protects government officials from liability for 20 civil damages insofar as their conduct does not violate clearly established statutory or 21 constitutional rights of which a reasonable person would have known. Pearson v. Callahan, 22 555 U.S. 223, 231 (2009). When a defendant asserts qualified immunity, a court must make 23 two distinct inquires, the constitutional inquiry and the qualified immunity inquiry. See 24 Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir. 2002). The constitutional 25 inquiry asks whether, when taken in the light most favorable to the non-moving party, the 26 facts alleged show that the official s conduct violated a constitutional right. Saucier v. Katz, 27 533 U.S. 194, 201 (2001). If so, a court then turns to the qualified immunity inquiry and 28 asks if the constitutional right was clearly established at the relevant time. Id. at 201-02. This -4- 1 second inquiry must be undertaken in light of the specific context of the case, not as a broad 2 general proposition. Id. at 201. 3 Subsequently, in Pearson, the Supreme Court altered this rigid framework and held 4 that Saucier s procedure should not be regarded as an inflexible requirement. 555 U.S. at 227. 5 Judges should be permitted to exercise their sound discretion in deciding which of the two 6 prongs of the qualified immunity analysis should be addressed first in light of the 7 circumstances in the particular case at hand. Id. at 242. In this case, the Court finds no 8 reason to deviate from Saucier s traditional analysis. 9 Further, in this case to determine whether a constitutional right was violated, the Court 10 must determine whether the Defendant s use of force was reasonable under the totality of the 11 circumstances. Graham v. Connor, 490 U.S. 386, 388 and 396 (1989). A claim that a law- 12 enforcement officer used excessive force to effect a seizure is governed by the Fourth 13 Amendment s reasonableness standard. See id. at 386. Determining the objective 14 reasonableness of a particular seizure under the Fourth Amendment requires a careful 15 balancing of the nature and quality of the intrusion on the individual s Fourth Amendment 16 interests against the countervailing government interests at stake. Plumhoff v. Rickard, No. 17 12-1117, 2014 WL 2178335, at * 7 (U.S. May 27, 2014). 18 In this case, the Court analyzes whether the use of force is reasonable from the 19 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 20 hindsight. Id.; see Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001) (stating that a 21 court evaluates force based on the officer s contemporaneous knowledge of the facts. ); see 22 also Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994) (the reasonableness of an arrest or 23 seizure must be assessed by carefully considering the objective facts and circumstances that 24 confronted the arresting officer. ). Thus, courts allow for the fact that police officers are 25 often forced to make split-second judgments - in circumstances that are tense, uncertain, and 26 rapidly evolving - about the amount of force that is necessary in a particular situation. Id. 27 Our Fourth Amendment jurisprudence has long recognized that the right to make an 28 arrest or investigatory stop necessarily carries with it the right to use some degree of physical -5- 1 coercion or threat thereof to effect it. Graham, 490 U.S. at 396. If an officer reasonably, but 2 mistakenly, believed that a suspect was likely to fight back, the officer would be justified in 3 using more force than in fact was needed. Saucier, 533 U.S. at 204-05. The reasonableness 4 inquiry in an excessive force case is an objective one: the question is whether the officers' 5 actions are objectively reasonable in light of the facts and circumstances confronting them, 6 without regard to their underlying intent or motivation. Graham, 490 U.S. at 397; see also 7 Terry v. Ohio, 392 U.S. 1, 21 (1968) (stating that in analyzing the reasonableness of a 8 particular search or seizure, it is imperative that the facts be judged against an objective 9 standard ). DISCUSSION 10 11 I. Qualified Immunity 12 Plaintiff claims that Defendant violated his Fourth Amendment right to be free from 13 excessive force because Defendant unnecessarily administered the knee strike causing 14 Plaintiff severe physical injury. (Doc. 65 at 4.) Defendant contends that he is entitled to 15 qualified immunity because his response (i.e. the knee strike) to Plaintiff s actions was 16 objectively reasonable under the Fourth Amendment and did not violate any clearly 17 established constitutional right. (Doc. 60 at 9.) Based on the doctrine of qualified immunity, 18 Defendant seeks summary judgment on Plaintiff s excessive force claim. (Doc. 60 at 9-15.) 19 Given Plaintiff s misdemeanor convictions, Defendant had probable cause to arrest 20 Plaintiff at the scene. At no point prior to the handcuffing did Plaintiff provide his name or 21 other evidence of identification to Defendant. (Doc. 61-3 at 41-42.) Plaintiff admits to 22 stiffening his arm and moving away from Defendant when being placed under arrest. (Doc. 23 61-2 at 34-35.) Plaintiff asserts that his arm stiffening was simply a reflexive reaction by 24 almost anyone who is suddenly and unexpectedly restrained by the arm. (Doc. 61-2 at 35.) 25 However, Plaintiff s subjective intention is irrelevant. See Graham, 490 U.S. at 397. A court 26 objectively analyzes the reasonableness of force used. Id. Plaintiff has not presented any 27 evidence which demonstrates that such physical behavior by a suspect does not constitute 28 resisting arrest, or that the use of a single knee strike is unreasonable or excessive when a -6- 1 suspect resists arrest in that manner. Plaintiff s conduct amounts to what the Ninth Circuit 2 classifies as active resistence because he resisted the officer s attempt to arrest him. Brooks 3 v. City of Seattle, 599 F.3d 1018, 1029 (9th Cir. 2010). Defendant reacted to Plaintiff s 4 resistence as he is trained to do by delivering a single knee strike to Plaintiff s leg. 5 Further, Plaintiff has failed to present any evidence which demonstrates that 6 Defendant s single knee strike caused Plaintiff any physical injuries. (Docs. 61-9 at 8, 61-10 7 at 3.) Plaintiff complained of pain and decreased range of motion, but the paramedic found 8 that this is a subjective finding, which is patient dependent. (Docs. 61-10 at 3, 61-9 at 8-9.) 9 Plaintiff has not produced any evidence which shows that he has or had suffered any physical 10 injury or harm because of Defendant s knee strike. Force used by Defendant to arrest 11 Plaintiff was de minimis and necessary. See Woods v. City of Garden Grove, 395 Fed. Appx. 12 467, 469 (9th Cir. 2010). The knee strike does not amount to excessive force because 13 Plaintiff provides no evidence of injury. See id.; Saucier, 533 U.S. at 208-09. After due 14 consideration of the facts of this case, the Court finds that Defendant s use of force is 15 reasonable under the totality of the circumstances; there is no constitutional violation. Even 16 when viewing the facts regarding Defendant s use of force in the light most favorable to 17 Plaintiff, no triable issue of fact is created. Defendant is entitled to qualified immunity. 18 Injuries to Plaintiff, if any, were minor and solely the accidental consequence of lawful 19 police behavior. The Court need not proceed to the second step of the Saucier analysis and 20 determine whether Plaintiff has been able to demonstrate that Defendant s actions violated 21 clearly established constitutional law. See Johnson v. County of Los Angeles, 340 F.3d 787, 22 791-92 (9th Cir. 2003). 23 II. Plaintiff s State Law Claims 24 In his complaint, Plaintiff further alleged state law claims of assault and battery 25 against Defendant. (Doc. 1 at 18-19.) Defendant, in the motion for summary judgment, 26 contends that Defendant s conduct is privileged under A.R.S. 13-409, which provides that 27 a person is justified in threatening or using physical force against another if, in making an 28 arrest, all of the following factors are present: (1) a reasonable person would believe that -7- 1 such force is immediately necessary to effect the arrest; (2) such person makes known the 2 purpose of the arrest or believes that it is otherwise known or cannot reasonably be made 3 known to the person to be arrested; and (3) a reasonable person would believe the arrest or 4 detention is lawful. (Doc. 61 at 16.) Here, Plaintiff failed to prosecute his claim of assault and 5 battery in his response to Defendant s motion for summary judgment. (Doc. 65.) Therefore, 6 the Court grants Defendant s motion for summary judgment on the state law claims of assault 7 and battery. 8 Moreover, as the Court has already concluded above, Defendant s use of force was 9 not excessive. Defendant informed Plaintiff that if Plaintiff did not produce any evidence of 10 identification, Defendant would have to arrest him. (Doc. 61-3 at 50.) The Court finds that 11 any reasonable person in Defendant s position would have believed the arrest to be lawful 12 as Plaintiff was not complying with Defendant s instructions. (Docs. 61-3 at 50, 61-2 at 29.) 13 Therefore, the requirements of A.R.S. § 13-409 are met in this case and Defendant is entitled 14 to summary judgment on the claims of assault and battery. 15 III. Plaintiff s Punitive Damages Claim 16 Summarily, Plaintiff in his complaint claims that he is entitled to punitive damages 17 because Defendant falsely arrested him, committed assault, mistreated Plaintiff and 18 intentionally deprived Plaintiff of his constitutional rights. (Doc. 1 at 23.) Defendant 19 contends that under A.R.S § 12-820.04 neither a public entity nor a public employee acting 20 within the scope of his employment is liable for punitive or exemplary damages. (Doc. 60 21 at 17.) Here, Plaintiff again failed to respond to Defendant s motion for summary judgment 22 on his punitive damages claim. (Doc. 65.) Therefore, the Court grants Defendant s motion 23 for summary judgment on the punitive damages claim. 24 Moreover, Plaintiff has failed to satisfy the requisite conditions for a successful 25 punitive damages claim. Under Arizona law, punitive damages are awarded in order to 26 punish the wrongdoer and deter others from emulating the same conduct. Linthicum v. 27 Nationwide Life Ins. Co., 150 Ariz. 326, 330, 723 P.2d 675, 679 (1986). The punitive 28 damages standard in Arizona requires something more than gross negligence. Rawlings -8- 1 v. Apodaca, 151 Ariz. 149, 161, 726 P.2d 565, 577 (1986). The something more is the evil 2 mind, which is satisfied by evidence that defendant's wrongful conduct was motivated by 3 spite, actual malice, or intent to defraud or defendant's conscious and deliberate disregard 4 of the interest and rights of others. Gurule v. Illinois Mut. Life and Casualty Co., 152 Ariz. 5 600, 602, 734 P.2d 85, 87 (1987). Here, Plaintiff did not provide any evidence to show that 6 Defendant s actions were motivated by spite or malice or that Defendant consciously and 7 deliberately acted to disregard Plaintiff s rights. The Court has already found that Defendant 8 acted within the scope of his employment, that he was entitled to qualified immunity, and 9 that Defendant s actions are privileged. Therefore, the Court grants Defendant s motion for 10 summary judgment on the punitive damages claim. 11 Accordingly, 12 IT IS HEREBY ORDERED granting Defendants motion for summary judgment 13 on all counts. (Doc. 60.) 14 IT IS FURTHER ORDERED that Defendant is dismissed from this case. 15 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment 16 17 accordingly and terminate this case. DATED this 9th day of June, 2014. 18 19 20 21 22 23 24 25 26 27 28 -9-
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