CINDY K. JORGENSON, District Judge.
Currently pending before this Court is Defendants' Motion for Summary Judgment [Doc. 78]. A response and reply have been filed, and oral argument was held on March 5, 2012. [Docs. 79, 82, 89]. For the reasons delineated below, Defendants' motion is granted.
On March 29, 2008, at approximately 4 a.m., the Pima County Sheriff's Department received a number of 911 calls regarding a disturbance in the vicinity of 10968 South Alley Mountain Drive. The 911 reports indicate that a male subject was yelling and screaming, going crazy, throwing rocks at a vehicle and at the windows of houses, and chasing someone on foot with a knife. Deputy Laura Ybarra was the first deputy to arrive on scene. Upon her arrival, she saw the subject later identified as Plaintiff Joshua Dimmig, walking toward her vehicle in a very aggressive manner, looking mad and yelling. Plaintiff walked past Defendant Deputy Ybarra's vehicle, picked up a large rock, threw the rock at the police vehicle, and hit it. Shortly thereafter, Defendant Deputy Ybarra saw that the subject had a knife in his hand and saw him pull up his shirt and appear to be cutting himself. It was still dark out, and Defendant Deputy Ybarra put her spotlight on the subject and directed him via the PA system to put the knife down. The subject did not comply, but instead responded by saying "fuck you, bitch: and "come over here, try to get me." Other officers arrived on scene, including Defendant Deputy Steven Love and two border patrol agents. They followed Plaintiff as he walked backwards facing them. They tried to talk Plaintiff into dropping the knife, but he did not comply and responded by saying things like "just go ahead and shoot me," "if you don't shoot me, I'm gonna fucking kill you guys," "I'm gonna stab you guys" "I don't give a fuck." Based on supervisory direction via the radio, the deputies implemented a plan where they would use a police vehicle for cover, and attempt to get close enough to the armed subject to tase him.
Defendant Deputy McLeod arrived in his patrol car, and with Defendant Deputy Ybarra in the front passenger seat, began driving the vehicle and providing lethal cover. The patrol vehicle approached the subject at a very slow speed, 2 to 3 miles per hour, while Defendant Deputy Love and the two border patrol agents walked alongside the vehicle.
Within moments of the other vehicle stopping, Defendant Deputy Ybarra deployed her taser, which hit the subject who fell to the ground. Defendant Deputy McLeod had glanced back to check on Defendant Deputy Love's location, when he heard the taser deploy. Defendant Deputy McLeod looked forward to see the subject fall to the ground in front of the vehicle. He recalls trying to stop the vehicle and get it in park while at the same time trying to holster his gun. Defendant Deputy McLeod remembers slamming on the brakes, and thinking that he had missed the brake, and as a result the vehicle continued to roll forward and over the top of the Plaintiff before the vehicle was stopped.
Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), "there is no genuine issue as to any material fact and [] the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if it "might affect the outcome of the suit under the governing law," and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Thus, factual disputes that have no bearing on the outcome of a suit are irrelevant to the consideration of a motion for summary judgment. Id. In order to withstand a motion for summary judgment, the nonmoving party must show "specific facts showing that there is a genuine issue for trial," Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Moreover, a "mere scintilla of evidence" does not preclude the entry of summary judgment. Anderson, 477 U.S. at 252. The United States Supreme Court also recognized that "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007).
"In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force." Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989) (citations omitted). "Where . . . [an] excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right `to be secure in their persons . . . against unreasonable . . . seizures' of the person." Id., 109 S.Ct. at 1871. "[A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard, rather than under a `substantive due process' approach." Id. at 395, 109 S.Ct. at 1871 (emphasis in original). "Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims." Id.
Here, Plaintiff alleges Defendants used excessive force in violation of his "rights under the 4th and 14th Amendments of the United States Constitution and violated [his] civil rights under 42 U.S.C. § 1983." Pl.'s Amended Compl. [Doc. 40] ¶ 17. Section 1983 "`is not itself a source of substantive rights,' but merely provides `a method for vindicating federal rights elsewhere conferred.'" Graham, 490 U.S. at 393-94, 109 S.Ct. at 1870 (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S.Ct. 2689, 2694 n.3, 61 L.Ed.2d 433 (1979)). Defendants were in the process of arresting Plaintiff when the use of force occurred. As such, this Court shall analyze the case under the Fourth Amendment standard and not a substantive due process approach.
Defendant asserts that Defendant Deputy McLeod accidentally ran over Plaintiff, and as such there was no Fourth Amendment violation. Plaintiff urges that Defendant Deputy McLeod's failure to hit the brakes and the possibility that he may have hit the accelerator demonstrates that Defendant Deputy McLeod acted intentionally. The Fourth Amendment provides:
U.S. Const. amend. IV. "`[W]henever an officer restrains the freedom of a person to walk away, he has seized that person.'" Brower v. County of Inyo, 489 U.S. 593, 595, 109 S.Ct. 1378, 1380, 103 L.Ed.2d 628 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985)). "`[O]nce a seizure has occurred, it continues throughout the time the arrestee is in the custody of the arresting officers.'" Torres v. City of Madera, 524 F.3d 1053, 1056 (9th Cir. 2008) (Torres I) (quoting Robins v. Harum, 773 F.2d 1004, 1010 (9th Cir. 1985)). The Fourth Amendment, therefore, "addresses `misuse of power,' .. . not the accidental effects of otherwise lawful government conduct." Brower, 489 U.S. at 596, 109 S.Ct. at 1381 (internal citations omitted).
"Determining whether the force used to effect a particular seizure is `reasonable' under the Fourth Amendment requires a careful balancing of `the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Graham, 490 U.S. at 396, 109 S.Ct. at 1871 (citations omitted). The reasonableness test of the Fourth Amendment "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or to others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id., 109 S.Ct. at 1872 (citations omitted). This inquiry is an objective test: "whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. This reasonableness analysis applies to honest mistakes, as well. See Torres I, 524 F.3d at 1056 (whether an officer's mistake in drawing her Glock rather than her Taser was objectively reasonable).
It is undisputed that Plaintiff was threatening the police officers and threatening harm to himself and was possibly a risk to other innocent people. It is further undisputed that Defendant Deputy McLeod was in control of the vehicle and using it to provide cover for Defendant Deputy Ybarra, as she attempted to use her taser on Plaintiff. Once Defendant Deputy Ybarra subdued the Plaintiff, the patrol car continued to roll forward and ran over Plaintiff. It is unclear whether Plaintiff was at the hood of the car or a few feet away from it at the time that he was tased. Defendant Deputy McLeod avers that this was an accident. Plaintiff asserts that this was an intentional act. Plaintiff's expert witness, Joseph Godoy, opines as follows:
Pl.'s SSOF [Doc. 80-4], Exh. 6 at ¶ 3-5.
If Defendant Deputy McLeod's mistake was a reasonable one, then there cannot be liability under the Fourth Amendment. "Because the reasonableness standard `nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, we have held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.'" Torres v. City of Madera, 648 F.3d 1119, 1125 (9th Cir. 2011) (Torres II) (quoting Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)). "Conclusory, speculative testimony in affidavits and moving papers[, however,] is insufficient to raise genuine issues of fact and defeat summary judgment." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).
Contrary to Plaintiff's expert witness's affidavit, the record indicates that Defendant Deputy McLeod followed the orders of Sergeant Dominguez rather than disregard them. Def.'s SOF [Doc. 77], Exh. "C" at ¶¶ 4-5. Moreover, contrary to Plaintiff's expert affidavit, this incident did occur absent a mechanical malfunction of the vehicle. See id. Finally, Plaintiff's expert opines that the method employed "would not be authorized by a supervisor. . . [and] is inherently dangerous." Pl.'s SSOF [Doc. 80-4], Exh. 6 at ¶ 5. "[S]uch [a] conclusory assertion[] [is] insufficient to avoid summary judgment." Clouthier v. County of Contra Costa, 591 F.3d 1232, 1252 (9th Cir. 2010). The evidence before the Court demonstrates that Defendant Deputy McLeod followed the instructions of his supervisor. The factual record is undisputed, and this was certainly an unfortunate incident. "A summary judgment motion[, however,] cannot be defeated by relying solely on conclusory allegations unsupported by factual data." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). In considering the record as a whole, "a rational trier of fact could not find in favor of the party opposing the [summary judgment] motion[,]" because there is no genuine issue of material fact. Id. Accordingly, summary judgment in favor of Defendant McLeod is appropriate.
Defendant asserts that because Deputies Ybarra and Love did not personally participate in the car rolling over Plaintiff, liability should not attach. Plaintiff argues that they should have pulled him out from under the car instead of waiting for the car to be jacked up. "Pursuant to a long line of civil cases, police officers have a duty to intercede when their fellow officers violate the constitutional rights of a suspect or other citizen." U.S. v. Koon, 34 F.3d 1416, 1447 n. 25 (9th Cir. 1994), rev'd on other grounds by Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). "Thus an officer who failed to intercede when his colleagues were depriving a victim of his Fourth Amendment right to be free from unreasonable force in the course of an arrest would like his colleagues, be responsible for subjecting the victim to a deprivation of his Fourth Amendment rights." Id. Such is not the case here. Both Defendant Deputies Ybarra and Love assisted in removing Plaintiff from underneath the car. Indeed, Defendant Deputy Love avers that he attempted to pull Plaintiff out, but was unsuccessful prior to Defendant Deputy McLeod jacking up the vehicle.
Accordingly, IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment [Doc. 78] is GRANTED.
Plaintiff further suggests that if Plaintiff had rushed Defendant Deputy Ybarra, that either she would have overpowered him or one of the Border Patrol Agents also present would have reached him first. Plaintiff's suggestion is mere speculation as to what might have happened and does not refute Defendant Deputy McLeod's concerns.
Secondly, Plaintiff contests that Defendant Deputy McLeod "immediately" retrieved the jack from the vehicle's trunk. Relying on statements Deputy Watkins made to Deputy Farraris, Plaintiff urges that Deputy Watkins saw everyone huddled around the driver front side of the vehicle, and "when she started walking up to the vehicle, she saw someone underneath the car who was screaming. As she was walking up, she saw who she believed to be Deputy McLeod go to the trunk of his vehicle and get a jack." Pl.'s SSOF [Doc. 80] ¶ 21(A). Plaintiff further avers that this statement contradicts Defendants recitation. Plaintiff is incorrect. The record shows that the officers assessed the situation, attempted to extricate Plaintiff and when that was unsuccessful Defendant Deputy McLeod retrieved the jack and began jacking up the car "as fast as he could." Nothing about Deputy Watkins' statements contradicts this scenario.
