ORDER
FRANK R. ZAPATA, Senior District Judge.
Before the Court for consideration is the Defendants' Motion for Summary Judgment and the Report and Recommendation of the Magistrate Judgment thereof.
This matter was referred to the United States Magistrate Judge for all pretrial proceedings and report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) and LRCiv 72.1 and LRCiv 72.2, Rules of Practice of the United States District Court for the District of Arizona.
Plaintiff Diego Lerma filed this action, which arises out of incidents during his arrest by Nogales Police and interaction with Nogales EMTs prior to the arrest.
In his First Amended Complaint, Plaintiff alleges violation of 42 U.S.C. § 1983 and 42 U.S.C. §12131-12134 ("ADA"), and state law claims of: assault, battery, negligence, inadequate training, negligent supervision, intentional infliction of emotional distress, vicarious liability, and exemplary damages.
Defendants filed a Motion for Summary Judgment on all claims.
On May 20, 2014, Magistrate Judge Charles R. Pyle issued his Report and Recommendation, following extensive briefing and a hearing on the matter, recommending that the District Court, after its independent review of the record herein, grant in part, and deny in part, Defendants' Motion for Summary Judgment as follows:
Defendants' Motion should be granted to the extent they seek summary judgment on Plaintiff's claims:
(1) that the City of Nogales had a custom or practice of tasering people indiscriminately in violation of 42 U.S.C. § 1983 (portion of Claim 1);
(2) under the ADA (Claim 2);
(3) of negligence (Claim 5) alleged against the EMTs only;
(4) of inadequate training (Claim 6);
(5) of vicarious liability (Claim 9) as to the federal claims only (the parties do not dispute that Claim 9 remains as to the state law claims); and
(6) for exemplary damages (Claim 10) except as to Defendant Pimienta.
Defendants' Motion should be denied to the extent that they seek summary judgment on Plaintiff's claims of:
(1) excessive force in violation of 42 U.S.C. § 1983 (portion of Claim 1);
(2) assault (Claim 3);
(3) battery (Claim 4);
(4) negligence (Claim 5) as to the police officers;
(5) negligent supervision (Claim 7);
(6) intentional infliction of emotional distress (Claim 8); and
(7) entitlement to exemplary damages as to Defendant Pimienta (Claim 10).
Magistrate Judge Pyle further recommends that Plaintiff should be granted leave to amend the complaint to allege gross negligence as to the EMTs.
The Report and Recommendation sets forth a thorough factual background of the relevant facts leading up, to and at the time of, the incident at issue and an in-depth legal analysis of the claims under the applicable legal standards.
The Report and Recommendation advised the parties that they may file written objections within fourteen (14) days from the date of service of a copy of the Report and Recommendation. See 28 U.S.C. § 636(b)(1) and Rules 72(b) of Federal Rules of Civil Procedure. Both parties filed objections and responses to the Report and Recommendation pursuant to 28 U.S.C. §636(b) and Rule 72(b)(2) of the Federal Rules of Civil Procedure and LRCiv 7.2(e).
Upon review and consideration of all matters presented, including the parties' objections and responses thereto,
The Court finds, after consideration of all matters presented and an independent review of the record herein, that the findings of the Magistrate Judge as set forth in the Report and Recommendation, shall be accepted and adopted as the findings of fact and conclusions of law of this Court, with the exception that the parties will not be granted leave to amend the pleadings in this case, as suggested by the Magistrate Judge.
Based on the forgoing,
IT IS HEREBY ORDERED that the Report and Recommendation of the Magistrate Judge (Doc. 115) is ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court, with the exception leave shall not be granted to amend the complaint;
IT IS FURTHER ORDERED that Defendant Motion for Summary Judgment (Doc. 96) is GRANTED in part and DENIED in part accordingly;
IT IS FURTHER ORDERED that summary judgment is granted as to Plaintiff's claims:
(1) that the City of Nogales had a custom or practice of tasering people indiscriminately in violation of 42 U.S.C. § 1983 (portion of Claim 1);
(2) under the ADA (Claim 2);
(3) of negligence (Claim 5) alleged against the EMTs only;
(4) of inadequate training (Claim 6);
(5) of vicarious liability (Claim 9) as to the federal claims only (the parties do not dispute that Claim 9 remains as to the state law claims); and
(6) for exemplary damages (Claim 10) except as to Defendant Pimienta.
IT IS FURTHER ORDERED that summary judgment is denied as to Plaintiff's claims alleging:
(1) excessive force in violation of 42 U.S.C. § 1983 (portion of Claim 1);
(2) assault (Claim 3);
(3) battery (Claim 4);
(4) negligence (Claim 5) as to the police officers;
(5) negligent supervision (Claim 7);
(6) intentional infliction of emotional distress (Claim 8); and
(7) entitlement to exemplary damages as to Defendant Pimienta (Claim 10).
IT IS FURTHER ORDERED that a separate order shall issue setting this case for Pretrial Conference on the remaining issues and a date for the filing of the Joint Proposed Pretrial Order and motions in limine.
