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Fernandez v. Virgillo

United States District Court, D. Arizona

February 3, 2014

Elvira Fernandez, individually and as Co-Personal Representative of the Estate of Daniel Frank Rodriguez; Frank Rodriguez, individually and as Co-Personal Representative of the Estate of Daniel Frank Rodriguez, Plaintiffs,
v.
Sergio Virgillo and Maria Virgillo husband and wife, Defendants.

ORDER AND OPINION [Re: Motion at Docket 46].

JOHN W. SEDWICK, District Judge.

I. MOTION PRESENTED

At docket 46, Plaintiffs Elvira Fernandez and Frank Rodriguez, both acting individually and as co-personal representatives of the Estate of Daniel Frank Rodriguez, ("Plaintiffs") filed a motion for summary judgment on the issue of Defendant Sergio Virgillo's ("Defendant" or "Virgillo") qualified immunity defense as to their § 1983 claim for failure to intervene. Defendant responds at docket 58. Plaintiffs reply at docket 60. Oral argument was not requested and would not be of assistance to the court.

II. BACKGROUND

On October 5, 2010, Elvira Fernandez ("Fernandez") called 911 concerning her son, Daniel Frank Rodriguez ("Rodriguez"). In the call, Fernandez stated her son was acting violently, throwing things, and hurting her dog. She stated that he was violent and that she was afraid he would hurt her and afraid for her life. She had left her trailer and was at the neighbor's trailer making the call. Virgillo, a Phoenix Police Officer, and Richard Chrisman ("Chrisman"), who was also a Phoenix Police Officer at the time, responded to the call. They first went to the neighbor's home to talk to Fernandez. It is undisputed that at a minimum Fernandez told the officers that Rodriguez was acting violently and threw something at the wall of the trailer. She wanted the officers to get Rodriguez to leave the trailer.

The officers went next door and knocked, but Rodriguez did not respond. The officers returned to the neighbor's home to speak to Fernandez. She told the officers that the door to her trailer was unlocked and gave them permission to go inside. The two officers returned to the trailer and knocked again. When no one responded, Chrisman opened the door, announced himself, and asked Rodriguez to step outside to talk.

Rodriguez appeared and shouted at the officers, telling them they did not have a right to be in his trailer and to leave. As Rodriguez tried to shut the door, Chrisman stopped him from doing so and a verbal and physical altercation occurred inside the home.[1] It is undisputed that early in the encounter Chrisman pulled a gun out and at least pointed it in the direction of Rodriguez.[2] Chrisman then re-holstered his gun and engaged in a physical struggle with Rodriguez. He resisted Chrisman's attempts to restrain him, which led to Chrisman spraying pepper spray at Rodriguez who was not deterred and continued to resist compliance. Chrisman and Virgillo used their tasers against Rodriguez who fell down momentarily.

Virgillo then talked to Rodriguez to try and calm the situation, suggesting they step outside or that he give him a ride somewhere. Rodriguez said he wanted to go to his father's house and that he would ride his bike. Rodriguez walked towards his bicycle, which was against the wall of the living room. Virgillo moved back to the threshold of the door so Rodriguez could get his bike to the front door. As Rodriguez wheeled the bike toward the officers, Chrisman grabbed Rodriguez over the bike. Rodriguez's dog began barking and Chrisman pulled out his gun and shot the dog. Rodriguez became upset, yelling at Chrisman about the dog. About five seconds later, Chrisman aimed his gun at Rodriguez and shot twice, killing Rodriguez.

Plaintiffs filed a lawsuit against Chrisman and the City of Phoenix (the "City"). The City and Chrisman were represented by separate counsel, and the City denied any legal responsibility for the actions of Chrisman in shooting the unarmed suspect. The court dismissed the claims against the City.

On July 26, 2012, after the City's dismissal from the first case, Plaintiffs filed this separate lawsuit against Virgillo in state court, which he removed to federal court on November 16, 2012. The complaint in this case alleges four claims against Virgillo: (1) a § 1983 claim for unlawful entry; (2) a § 1983 claim for unreasonable use of force; (3) a § 1983 claim for unreasonable use of force for failure to intervene; and (4) a § 1983 claim for interference with the right to family society and companionship.

Plaintiffs filed the motion for summary judgment at docket 46, requesting that the court rule in their favor on the issue of whether Virgillo can raise qualified immunity as a defense to their § 1983 claim for failure to intervene. In their motion, Plaintiffs argue that based on Virgillo's own testimony, Virgillo suspected that Chrisman would kill Rodriguez given Chrisman's aggressive actions, but that Virgillo nonetheless failed to intervene to prevent the shooting. They argue such actions were clearly unconstitutional. Virgillo argues that viewing the evidence in light most favorable to him, the non-moving party here, the motion should be denied because the evidence does not show that Virgillo had the opportunity to intervene to stop the shooting given how rapidly the situation unfolded. Alternatively, Defendant argues that there are at least disputed facts about whether Virgillo failed to intervene or had the opportunity to do so.

Defendant recently filed his own motion for summary judgment at docket 63, based in part on qualified immunity grounds. That motion has not yet been fully briefed.

III. STANDARD OF REVIEW

Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."[3] The materiality requirement ensures that "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."[4] Ultimately, "summary judgment will not lie if the... evidence is such that a reasonable jury could return a verdict for the nonmoving party."[5] However, summary judgment is mandated under Rule 56(c) "against a party who fails to make a showing ...


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