JENNIFER G. ZIPPS, District Judge.
Pending before the Court is a Motion for Summary Judgment filed by Defendants on July 21, 2016. (Doc. 54.) Defendants seek summary judgment on Plaintiffs' claims of false arrest, negligence/police misconduct, intentional infliction of emotional distress, negligent infliction of emotional distress, malicious prosecution, assault and battery, failure to provide medical care, excessive force in effecting arrest, and claims arising under 42 U.S.C. § 1983 for warrantless arrest, excessive force, denial of medical care and detention under harmful conditions. For the reasons stated herein, the Court will grant the Motion as to all claims.
As a threshold matter, the Court finds it necessary to summarize the shambles of a record that is before the Court on this Motion. On November 21, 2016, the Court issued an Order striking Plaintiffs' response to the pending Motion for Summary Judgment and Plaintiffs' Supplemental Statement of Facts on the grounds that the documents were not timely filed after numerous requests for extensions of time had been granted. (Doc. 75.) This has left the Court in the unfortunate position of adjudicating Defendants' Motion for Summary Judgment without a response from the Plaintiffs. Instead, the only brief timely submitted by Plaintiffs that the Court considers in reviewing the pending Motion is Plaintiffs' Statement of Facts. (Doc. 67.) Unfortunately, Plaintiffs did not file a Controverting Statement of Facts as required by LRCiv 56.1, which states that "any party opposing a motion for summary judgment must file a statement, separate from that party's memorandum of law, setting forth . . . for each paragraph of the moving party's separate statement of facts, a correspondingly numbered paragraph indicating whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific admissible portion of the record supporting the party's position if the fact is disputed." Without Plaintiffs' Controverting Statement of Facts, it is unclear which facts contained in Defendants' Statement of Facts Plaintiffs dispute. This is particularly true because the vast majority of Plaintiffs' factual assertions are refuted by other parts of the record including Plaintiffs' own statements and a video clip of the events of June 9, 2013, the content of which is uncontested by the parties.
Defendants were permitted to file a Reply to Plaintiffs' Statement of Facts, which the Court has also considered. (Doc. 77.) However, because Plaintiffs' response to the Motion for Summary Judgment is not a part of the record before the Court, it is evident from Defendants' Reply that Defendants took their best guess as to which facts alleged in Plaintiffs' Separate Statement of Facts might pertain to which claims. Defendants' Reply to Plaintiffs' Statement of Facts therefore has limited usefulness to the Court.
It is with these briefs and this record that the Court is asked to evaluate whether Defendants are entitled to summary judgment on 11 counts alleged by Plaintiffs against five Defendants. In evaluating the pending Motion, the Court has construed the facts alleged in DSOF as undisputed, because Plaintiffs failed to file the required Controverting Statement of Facts. See Breeser v. Menta Grp., Inc., NFP, 934 F.Supp.2d 1150, 1153 (D. Ariz. 2013), aff'd sub nom. Breeser v. Menta Grp., Inc., 622 F. App'x 649 (9th Cir. 2015) (citing Szaley v. Pima Cnty., 371 Fed. App'x 734, 735 (9th Cir. 2010)) (Failure of the non-movant to comply with LRCiv 56.1(b) is ground for the Court to disregard a controverting statement of facts and deem as true the moving party's separate statement of facts in support of the motion for summary judgment.). "Judges are not like pigs, hunting for truffles buried in briefs." Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam)). The Court has considered the facts alleged by Plaintiffs in their Separate Statement of Facts to the extent those factual allegations were supported by admissible evidence and not contradicted by Plaintiffs' own testimony or the uncontested video. The Court has considered and ruled on Defendants' objections to Plaintiffs' Separate Statement of Facts where it was necessary to do so. The Court also relied upon its own review of the video clip of the June 9, 2013 incident. (DSOF 50-55.)
This action arises from the June 9, 2013 arrest of married Plaintiffs Steven Dougall and Kari Rolfe by officers of the Tucson Police Department (TPD).
The first incident occurred on May 19, 2013. (DSOF 1.)
The second domestic violence incident occurred on June 8, 2013. (DSOF 17.) Rolfe called 911 to report that Dougall was violent and destroying things inside the home. (Id.) TPD Officer Echols responded to the call. (DSOF 18.) Rolfe told Officer Echols that Dougall had become angry with her granddaughter and pushed the handle of a broom into the granddaughter's chest. (DSOF 19.) Rolfe attempted to drive away from the residence, and Dougall punched her in the face. (DSOF 20.) Dougall admitted to Officer Echols that he pushed Rolfe. (DSOF 21.) Officer Echols contacted the Mobile Acute Crisis (MAC) team, who assisted Rolfe in filing an emergency mental health petition for evaluation of Dougall, which was approved. (DSOF 22.) TPD officers transported Dougall to the Crisis Response Center. (DSOF 24.)
Plaintiffs were arrested on June 9, 2013 as a result of a third domestic violence incident. (DSOF 40, 44.) Dougall was released from the mental health facility on June 9, 2013 after a determination by the facility that mental health services were not necessary. (PSOF 5.) On that date, Rolfe called 911 and reported that Dougall was returning home angry and violent. (DSOF 25-26.) Rolfe reported that Dougall had weapons and had threatened to hit her. (DSOF 27.) Rolfe stated to the 911 operator that Dougall was about to hit her, then stated that she had been hit in the head and was dizzy. (DSOF 29-30.) Rolfe admitted that she had thrown hot tea on Dougall; Dougall can be heard on the 911 call requesting police and an ambulance due to second degree burns. (DSOF 31-32.) TPD Officers Halverson and Davis and TPD Sergeant McGuire responded to the call. (DSOF 33.) Rolfe reported that Dougall had struck her in the head and punched her in the shoulder and head. (DSOF 34.) Dougall reported that Rolfe had hit him in the head with a cup and burned him with the hot water inside the cup. (DSOF 36.)
Sergeant McGuire was aware of the previous history of domestic violence calls at Plaintiffs' home. (DSOF 38.) On June 9, 2013, Sergeant McGuire arrested Dougall for the May 19th domestic violence incident.
Dougall claims he was forcefully shoved into a TPD police car, which caused him to cry out in pain. (PSOF 25.) Plaintiffs claim that Dougall was in the back of the police car for approximately one hour. (PSOF 30.) The video provided by Defendants consists of 45 minutes of video footage of the view out the front window of the police car, and audio recording of Dougall's time in the police car.
Dougall was transported to jail. (DSOF 56.) The video footage of Dougall's transport to the jail shows Dougall engaged in conversation with the officer; Dougall does not complain about any injuries during the drive. (Doc. 55, Ex. 138.) At the jail, Dougall received medical screening and was asked whether he needed immediate medical attention. (DSOF 57.) Dougall did not report any injuries during medical screening. (Id; see also Doc. 55-3, pgs. 38-41.)
Officer Davis arrested and handcuffed Plaintiff Rolfe.
Officer Davis transported Rolfe to jail. (DSOF 49.) The only injuries Rolfe reported to jail personnel were an injury to her left little finger and a bump on the back of her head.
Dougall sought medical attention from the Southern Arizona Veteran's Administration (VA) after his release from custody. (PSOF 40.) Medical records from Dougall's visit indicate that the physician observed minimal burns on Dougall's scalp and back and that Dougall's left shoulder was tender when palpitated.
On June 12, 2013, Rolfe sought medical treatment at the VA for injuries to her head and left hand caused by Dougall. (DSOF 62.)
The City of Tucson prosecuted both Dougall and Rolfe for domestic assault. (DSOF 63.) The charges against Dougall and Rolfe were voluntarily dismissed. (PSOF 36.)
On August 12, 2015, Plaintiffs filed a Second Amended Complaint alleging 11 claims against Defendants: Count 1, false arrest; Count 2, negligence/police misconduct; Count 3, intentional infliction of emotional distress; Count 4, negligent infliction of emotional distress; Count 5, malicious prosecution; Count 6, assault and battery; Count 7 failure to provide medical care; Count 8, excessive force in effecting arrest; Count 9, warrantless arrest in violation of 42 U.S.C. § 1983; Count 10, excessive force in violation of 42 U.S.C. § 1983; and Count 11, denial of medical care and detention under harmful conditions in violation of 42 U.S.C. § 1983.
In deciding a motion for summary judgment, the Court views the evidence and all reasonable inferences in the light most favorable to the party opposing the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987). Summary judgment is appropriate if the pleadings and supporting documents "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id.
A party moving for summary judgment initially must demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 325. The moving party merely needs to point out to the Court the absence of evidence supporting its opponent's claim; it does not need to disprove its opponent's claim. Id.; see also Fed. R. Civ. P. 56(c).
If a moving party has made this showing, the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see also Fed. R. Civ. P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).
Defendants move for summary judgment on all 11 counts alleged against Defendants in Plaintiffs' Second Amended Complaint. For the reasons stated herein, the Court will grant the Motion.
TPD Officer Rafael Rodriguez is named as a Defendant in Plaintiffs' Second Amended Complaint. Plaintiffs' Statement of Facts, however, does not contain any factual allegations against Defendant Rodriguez. It is undisputed that Defendant Rodriguez was not present during the June 9, 2013 arrests. (DSOF 65.) Because there is no genuine issue as to any material fact tending to prove that Defendant Rodriguez caused Plaintiffs' alleged injuries, Defendant Rodriguez is entitled to summary judgment on all claims.
Under Arizona law, probable cause is an absolute defense to a claim of false arrest and a complete defense to a claim of malicious prosecution. See Hockett v. City of Tucson, 678 P.2d 502, 505 (Ariz. Ct. App. 1983); Bird v. Rothman, 627 P.2d 1097, 1100 (Ariz. Ct. App. 1981). Similarly, a claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth Amendment only if the arrest was without probable cause or other justification. See Dubner v. City and Cnty. of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). An arrest is supported by probable cause if, under the totality of the circumstances known to the arresting officer, a prudent person would have concluded that there was a fair probability that the defendant had committed a crime. Luchtel v. Hagemann, 623 F.3d 975, 980 (9th Cir. 2010).
Officers had probable cause to arrest Dougall on June 9, 2013 for domestic violence assault occurring on May 19, 2013. A.R.S. § 13-3601(A)(1) defines domestic violence to include an assault offense where the relationship between the victim and defendant is one of marriage. A.R.S. § 13-1203 defines assault as intentionally, knowingly or recklessly causing any physical injury to another person. Dougall and Rolfe are married. (PSOF 1.) At the time Sergeant McGuire arrested Dougall, Sergeant McGuire had reason to believe that on May 19, 2013, Dougall hit Rolfe three times, shoved her into a wall, and attacked Rolfe's granddaughter. Sergeant McGuire was also aware that officers did not arrest Dougall on May 19, 2013 because it was not reasonable for them to attempt entry into Plaintiffs' home due to officer safety concerns. On June 9, 2013, based on what Sergeant McGuire knew about the May 19, 2013 incident, it was reasonable for Sergeant McGuire to conclude that there was a fair probability that Dougall had committed domestic violence assault in violation of Arizona law on May 19, 2013.
Defendants also had probable cause to arrest Rolfe on June 9, 2013. At the time Officer Davis arrested Rolfe, Officer Davis knew that Dougall had reported that Rolfe had thrown hot water on Dougall and hit Dougall with a cup. Rolfe also admitted during her 911 call that she threw hot water on Dougall. Based on these facts, it was reasonable for Officer Davis to conclude that there was a fair probability that Rolfe had committed domestic violence assault in violation of Arizona law on June 9, 2013.
Accordingly, Defendants are entitled to summary judgment on Counts 1, 5 and 9 of Plaintiffs' Second Amended Complaint.
To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages. Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). In Plaintiffs' negligence claim against the City of Tucson, Plaintiffs allege that the City was negligent in the manner it hired, trained, supervised and directed the individual Defendants. The Court agrees with Defendants that Plaintiffs have failed to present any evidence in support of that assertion. Defendants are therefore entitled to summary judgment on Count 2 against the City of Tucson.
The Court also agrees with Defendants that Plaintiffs have failed to provide any evidence in support of their claim that any officer was negligent. Plaintiffs allege in paragraph 34 of the SAC that Officers Halverson, McGuire, and Davis acted carelessly, negligently, and below the standards of a reasonable peace officer. However, Plaintiffs fail to provide any evidence of: the officers' duty to conform to a certain standard of care; a breach by each officer of that standard; or a causal connection between the defendant's conduct and the resulting injury.
The tort of intentional infliction of emotional distress requires proof of three elements: first, the conduct by the defendant must be "extreme" and "outrageous"; second, the defendant must either intend to cause emotional distress or recklessly disregard the near certainty that such distress will result from his conduct; and third, severe emotional distress must indeed occur as a result of defendant's conduct. Citizen Publ'g Co. v. Miller, 115 P.3d 107, 110 (Ariz. 2005). Here, Plaintiffs claim for intentional infliction of emotional distress is without merit because Plaintiffs have failed to present evidence in support of their allegations that Defendants engaged in extreme or outrageous conduct that caused Plaintiffs severe emotional distress. Plaintiffs' Second Amended Complaint does not specifically identify the officer conduct that Plaintiffs claim was "extreme and outrageous." Generally, the allegations regarding officer misconduct in Plaintiffs' Second Amended Complaint are not supported by admissible evidence. The undisputed facts demonstrate that there is no medical proof that Dougall's arm was re-fractured, that Dougall was detained in an air-conditioned police car, that Dougall received medical attention when requested, that Rolfe was also placed in an air conditioned police car and that neither Dougall or Rolfe complained during their medical assessments at the scene or at the jail of any injuries sustained as a result of police misconduct.
Construing the evidence in the light most favorable to Plaintiffs, the only action by officers which arguably supports Plaintiffs' allegation of outrageous conduct is Dougall's testimony that he was forced into a police car in a manner that was painful to Dougall due to his pre-existing conditions. No reasonable jury, however, could credit that testimony and find that Plaintiffs proved the outrageousness element of their claim for intentional infliction of emotional distress. Dougall's testimony is undermined by the fact that there is no evidence in the record to support Dougall's self-serving statement, and by the weight of the evidence supporting the conclusion that Dougall was not injured upon entering the police car. Minutes after being placed in the police car, Dougall requested a paramedic, and when a paramedic promptly appeared, Dougall complained only of the burn injury Rolfe had inflicted on him. See Scott v. Harris, 550 U.S. 372, 380 (2007) ("when 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.") No reasonable jury viewing the video footage of Dougall's time in the police car could conclude that Dougall was in significant pain; while he complained to a nearby officer that sitting in the police car was uncomfortable because of herniated disks in his back, he also engaged officers and bystanders in conversation about his pets and his vehicles. Dougall did not complain about any injuries during his transport to jail and did not report any injuries during medical screening at the jail. The video footage shows the officers acting consistently courteous and professional toward Dougall. There is no medical evidence of any emotional distress suffered by either Plaintiff. Based on the record before the Court, Plaintiffs have failed to demonstrate any extreme or outrageous conduct by the officers or any severe emotional distress resulting therefore. Accordingly, Defendants are entitled to summary judgment on Count 3.
In order to state a claim for negligent infliction of emotional distress under Arizona law, Plaintiffs must prove that: (1) they each witnessed an injury to a closely related person; (2) they were each within the zone of danger at the time of the injury; and (3) they each suffered mental anguish manifested as physical injury. See Kaufman v. Langhofer, 222 P.3d 272, 279 (Ariz. Ct. App. 2009); Keck v. Jackson, 593 P.2d 668, 669 (Ariz. 1979). Here, Plaintiffs have failed to present evidence supporting their allegations that they suffered mental anguish manifested as physical injury. The only admissible evidence of injuries sustained by Dougall and Rolfe are the pain Dougall experienced when he was forced into the police car and the physical injuries Dougall and Rolfe inflicted on each other. None of the injuries supported by the evidence in the record are physical manifestations of mental anguish. Accordingly, Defendants are entitled to summary judgment on Count 4.
Under Arizona law, a claim for common-law battery requires an allegation that the defendant intentionally engaged "in an act that results in harmful or offensive contact with the person of another." Duncan v. Scottsdale Med. Imaging, Ltd., 70 P.3d 435, 438 (Ariz. 2003) (citing Restatement (Second) of Torts §§ 13, 18 (1965)). A claim for common-law assault requires an allegation that the defendant acted intentionally to cause a harmful or offensive contact and another person is placed in imminent apprehension of the contact. See Restatement § 21. The two claims are the same except that assault does not require the offensive touching or contact. Garcia v. United States, 826 F.2d 806, 810 n.9 (9th Cir. 1987). Similarly, "to establish personal liability in a § 1983 action, [the plaintiff must] show that the official, acting under color of state law, caused the deprivation of a federal right.'" Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)).
Plaintiffs failed to provide any evidence that Defendants intentionally engaged in harmful or offensive conduct in their treatment of Plaintiffs. As discussed throughout this opinion, there is no evidence that Defendants' conduct was intentionally harmful or offensive, that Defendants violated any professional standards or acted without due care. On the contrary, the undisputed evidence shows that Defendants were professional and courteous at all times.
Moreover, there is no evidence of a causal connection between Defendants' actions and Plaintiffs' alleged injuries. The only evidence of injury allegedly sustained by Dougall at the hands of police is Dougall's testimony that he was forcefully placed in a TPD police car, which caused him to cry out in pain. However, even construing the facts in the light most favorable to Plaintiffs, no reasonable jury could conclude that Defendants caused Dougall injury when they placed him in the police car. Minutes after being placed in the police car, Dougall requested and received medical attention from TFD, and Dougall's only complaint to TFD paramedics was the burn on his back caused by Rolfe throwing hot water on him. During the time that Dougall was detained in the police car, he complained of pain in his back and his arm—both pre-existing injuries. The video footage of Dougall's transport to the jail shows Dougall engaged in conversation with the officer; Dougall does not complain about any injuries during the drive. (Doc. 55, Ex. 138.) At the jail, Dougall received medical screening and was asked whether he needed immediate medical attention. (DSOF 57.) Dougall did not report any injuries during medical screening. (Id; see also Doc. 55-3, pgs. 38-41.) Medical records from Dougall's visit to the VA indicate that the physician observed minimal burns on Dougall's scalp and back, that Dougall had pain in his left shoulder, and that Dougall was diagnosed with chronic lower back pain and depression. (Doc. 67-2, pg. 54.)
Similarly, Rolfe had multiple opportunities to report her alleged injuries and she did not report any injuries caused by police. Rolfe told TFD that she had a headache from Dougall striking her in the head, but she refused treatment and declined to be transported to the hospital. (DSOF 47, 48.) The only injuries Rolfe reported to jail personnel were an injury to her left little finger and a bump on the back of her head. (DSOF 60.) On June 12, 2013, Rolfe sought medical treatment at the VA for injuries to her head and left hand caused by Dougall. (DSOF 62.) Even construing the facts in the light most favorable to Plaintiffs, no reasonable jury could conclude that Defendants caused Rolfe's alleged injuries.
Thus, Plaintiffs have failed to establish that any of the conduct engaged in by Defendants rose to the level of "harmful or offensive," or that such conduct caused any of the injuries that Plaintiffs reported following arrest. Accordingly, Defendants are entitled to summary judgment on Counts 6, 8 and 10.
In Counts 7 and 11, Plaintiffs allege that Defendants failed to provide appropriate medical care during Plaintiffs' arrest, detention, and transportation to jail. Neither party cited to any case law recognizing a free-standing claim for failure to provide medical care under Arizona law (Count 7). It appears that such a claim is essentially a state law negligence claim. See, e.g., Zuck v. State, 764 P.2d 772, 777 (Ariz. 1988) (prisoner brought negligence claim based on allegations that there had been serious delay in receiving prescribed medication and medical treatment). Thus, in order to prevail on Count 7, Plaintiffs must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages. Gipson, 150 P.3d at 230. Under 42 U.S.C. § 1983, to maintain an Eighth Amendment claim based on denial of medical treatment, a plaintiff must show "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). First, the plaintiff must show a serious medical need by demonstrating that failure to treat plaintiff's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Id. Second, the plaintiff must show the defendant's response to the need was deliberately indifferent. Id.
Here, Plaintiffs have failed to state a claim in Counts 7 or 11 because it is undisputed that Defendants provided medical care to Plaintiffs during their detention and at the time Plaintiffs were booked into jail. Dougall asked for a paramedic shortly after he was placed in the police car, and explained that he wanted the paramedics to check his head, neck and back because of "the burn." The TFD paramedics promptly attended to Dougall in the police car, evaluated Dougall's burn, and concluded that it was not a serious injury. The medical records from Dougall's subsequent appointment at the VA support that conclusion. At the jail, Dougall received medical screening and was asked whether he needed immediate medical attention. Dougall did not report any injuries during medical screening.
TFD also treated Rolfe. Rolfe told TFD that she had a headache from Dougall striking her in the head, but she refused treatment and declined to be transported to the hospital. Rolfe also received medical screening at the jail, where the only injuries she reported were injuries to her left little finger and a bump on the back of her head.
Thus, Plaintiffs' state law negligence claim arising from Defendants' alleged denial of medical care fails because Plaintiffs cannot prove that Defendants breached their duty to provide medical care, and Plaintiffs' Eighth Amendment claim based on denial of medical treatment fails because Plaintiffs cannot prove that officers were deliberately indifferent to their medical needs.
THEREFORE, IT IS ORDERED that Defendants' Motion for Summary Judgment filed on July 21, 2016 (Doc. 54) is GRANTED.
The Clerk of the Court must enter judgment accordingly and close the case.
