Pending before the Court are Defendants' Motion to Strike (Doc. #64) and Motion for Summary Judgment (Doc. #51). The Court now rules on the motions.
In the summary judgment context, the Court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). In support of his response opposing summary judgment (Doc. #60), Plaintiff has filed a separate statement of facts (Doc. #62), his affidavit (Doc. #61), the affidavit of his counsel, Mr. Poster (Doc. #61-2), and the affidavit of Sheri Castillo (Doc. #61-2). Plaintiff has also filed eight exhibits to his response (Doc. #s60-3 to 60-12).
One of these exhibits, the Notice of Claim (Doc. #60-10), contains Mr. Poster's recitation of facts and legal argument. While the Court has considered the Notice of Claim to determine whether it complies with Arizona's statutory requirements, the Court will not treat the Notice of Claim as substantive evidence relevant to the merits of the motion for summary judgment. Arguments by counsel are not evidence.*fn1 Given that general preface, the following are the properly-supported facts viewed in the light most favorable to Plaintiff. See Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004)("[[T]he Court construes all disputed facts in the light most favorable to the non-moving party.").
On June 24, 2006, the Phoenix police department responded to a shooting in an apartment at the Oasis Motel on 1501 West Grand Avenue. Someone had shot and killed Christopher Yates at the apartment of his friend Greg Chambers. Prior to Yates's arrival at the Oasis apartment, Dyon Martinez, another friend of Chambers, had stopped by the apartment for a brief visit. After several minutes of conversation, Martinez left. A few minutes later, Yates knocked on Chambers's door. Chambers and Yates were visiting when, a short time later, the shooter knocked on the door.
When Chambers answered the door, a man pushed his way inside and instructed Chambers and Yates to get on their knees and hand over their money. Chambers complied, but Yates refused. The shooter then killed Yates. During the robbery and shooting, Chambers's girlfriend, Lila Nelson, was in the bathroom. She did not witness the robbery or shooting.
At the time of the incident, Chambers told the police that a Hispanic male had shot Yates. He also told them that he would be able to identify the shooter. On July 20, 2008, the police received a silent tip regarding the Yates murder. That tip led the police to Shara Cox, Yates's ex-girlfriend. Cox had heard rumors that a man named "Chris" who lived on Atlanta Avenue, was approximately 17 or 18 years of age, had pock-marked skin, was a member of the "Bloods" gang, and always carried a gun had shot Yates.
Because of the police department's investigation of the other shooting involved in this case, the officer interviewing Cox, Defendant Weiss, thought Cox was describing Plaintiff Christopher Sanchez. On July 21, 2006, Weiss presented Shara Cox with a photographic line up that included Sanchez. Cox identified Sanchez as the man about whom Cox had heard rumors. On the same day, Weiss presented a photographic line up that included Sanchez to Chambers. Chambers studied the line up and identified Sanchez as the shooter. On October 19, 2006, Chambers confirmed that he was confident of his identification of Sanchez.
Chambers ultimately retracted his identification of Sanchez and instead, on December 6, 2006, identified Kenneth Vaughn as the shooter.
On June 25, 2006, Phoenix police responded to a call regarding a shooting at 2146 East Taylor Street. Someone had shot and killed Anthony Oliva in front of an apartment complex there. Stormey Navarro/Oliva*fn2 , the victim's sister, witnessed the shooting. Shayna Navarro, another of the victim's sisters, also witnessed most of the altercation, although she went inside briefly to call the police.
Both Stormey and Shayna told the police that they were outside with their brother, Anthony Oliva, when a car pulled up with four passengers. They said that two females, Alicia Oliva and Vangelina Gloria, were sitting in the back seat of the car. Alicia and Vangelina are also sisters of the victim. Alicia's boyfriend, Christopher Sanchez, and Leo Perez, Vangelina's husband, allegedly were in the front seats.
According to the witnesses on the scene, the two men exited the vehicle and one of them fired five or six shots from a large assault rifle into the yard or into the air. Shayna originally stated that Sanchez fired those shots, but Stormey insisted that Leo Perez fired off those first shots. After those shots, Oliva and Perez got into a physical fight. The sisters told the police that at some point during the fight, Perez shoved Oliva to the ground. Perez then shot Oliva once. Perez then handed the gun to Sanchez who shot Oliva multiple times. When police arrived on the scene, Stormey gave a photo of Sanchez to the police and identified him as one of the shooters. The back of the photo had the following written on it: "Chris," "C-Loc," "Lisa's homeboy," and "south side Phoenix gang." Alicia Oliva, Sanchez's girlfriend and the victim's sister, told police that the four went to Oliva's apartment, but that Perez shot Oliva. Juan Torrez, a person at the scene, told police that he could not tell if Perez, Sanchez, or both shot Oliva. Sanchez's parents told police that Sanchez might have been at home at the time of the shooting, but their statements somewhat contradicted each other.
On July 24, 2006, believing he was a suspect, Sanchez self-surrendered at the police station. His lawyer, Mr. Poster, accompanied him to the station. After a few minutes of conversation, the police arrested Sanchez. Either at the time of or right after Sanchez's arrest, Mr. Poster handed an officer a letter and asked him to read it. The officer told Mr. Poster that he did not have time to read the letter at that moment. Mr. Poster asked to accompany Sanchez during his booking, but the officers refused the request.
The letter contained the following language:
1. I know who implicated Mr. Sanchez, and I know that person lied to you concerning Mr. Sanchez and any involvement he had.
2. I am informing you that I can produce four (4) alibi witnesses who can testify that Mr. Sanchez was with them during the time this shooting occurred. All of these people, and Mr. Sanchez were at another location when the shooting occurred. Additionally, I can produce other witnesses who can testify as to Mr. Sanchez's whereabouts both before and after the shooting occurred.
(Ex. A to Response, Doc. #60-3).*fn3
Maricopa County prosecutors brought two separate Grand Jury proceedings against Plaintiff for the Yates and Oliva murders. The Grand Juries indicted Sanchez for both murders and the Superior Court issued warrants for his arrest. Prosecutors eventually dismissed, without prejudice, the Oasis Motel murder case against him.
Plaintiff filed his Complaint in state court on May 31, 2007. The City Defendants removed the case to this Court on June 26, 2007 (Doc. #1). The County Defendants answered the Complaint in this Court on the same day (Doc. #2), and filed a Notice of Consent to Removal on July 5, 2007 (Doc. #10). The Court granted the County Defendants' motion to dismiss on October 2, 2008 (Doc. #33).
Defendants have filed a motion to strike Plaintiff's Separate Statement of Facts in Support of His Response to Defendants' Motion for Summary Judgment (Doc. #64). Defendants argue that Plaintiff's entire statement of facts should be stricken because it does not comply with Local Rule of Civil Procedure 56.1. Defendants further argue that portions of the statement of facts should be stricken pursuant to Federal Rule of Civil Procedure 12(f) because they are immaterial, impertinent, and/or scandalous.
Local Rule of Civil Procedure 56.1(b) requires:
Any party opposing a motion for summary judgment shall file a statement, separate from that party's memorandum of law, setting forth: (1) 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 that the fact is disputed; and (2) any additional facts that establish a genuine issue of material fact or otherwise preclude judgment in favor of the moving party. Each additional fact shall be set forth in a separately numbered paragraph and shall refer to a specific admissible portion of the record where the fact finds support.
(emphasis added). Federal Rule of Civil Procedure 12(f) allows a court to strike from a pleading an insufficient defense or "any redundant, immaterial, impertinent, or scandalous matter." Plaintiff filed a separate statement of facts, but he did not specifically refute Defendants' statement of facts in numbered paragraphs, as required by Local Rule 56.1(b). Nor does Plaintiff's statement of facts cite to record evidence, let alone to admissible record evidence. Instead, Plaintiff's statement of facts cites to his response. His response then, in large part, cites back to the statement of facts. In this method of circular citation, Plaintiff does not adequately cite to record evidence. Nonetheless, he has filed exhibits to his response and has separately filed affidavits.
Plaintiff's statement of the facts falls woefully short of meeting the requirements of Local Rule of Civil Procedure 56.1(b). The statement of facts does not refute Defendants' separately numbered undisputed facts. And the statement of facts does not cite to record evidence. Plaintiff does cite to the exhibits and affidavits in some paragraphs of his response.
To avoid summary judgment, the non-moving party must present "'significant probative evidence tending to support'" its allegations. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (quoting Gen. Bus. Sys. V. N. Am. Philips Corp., 699 F.2d 965, 971 (9th Cir. 1983)). If the non-moving party's papers fail to either cite to materials in the court's record or cite to materials not included in the court's record, the court is not required to either scour the entire record for evidence establishing a genuine issue of fact or obtain the missing materials. See Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001); Forsberg v. Pacific N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir. 1988).
The Defendants correctly argue that Plaintiff's statement of facts does not comply with the rules. The Court could strike the statement of facts for this failure and order Plaintiff to re-file the statement of facts and response. But in the interest of time and judicial economy, the Court will deny the motion to strike for failure to follow Local Rule of Civil Procedure 56.1(b). Moreover, the Court has read all the exhibits and the affidavits and would reach the same result even if Plaintiff had correctly cited to those exhibits and affidavits in his statement of facts. The Court, however, will grant Defendants' motion pursuant to Federal Rule of Civil Procedure 12(f) to strike certain paragraphs of the statement of facts. In paragraphs 22 through 32 of his statement of facts, Plaintiff relates facts that occurred after he filed his complaint.*fn4 None of these events are relevant to the present action. Because Plaintiff's allegations regarding conduct by other police officers that occurred after he filed his ...