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Fernandez v. Virgillo

United States District Court, D. Arizona

March 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,
Sergio Virgillo and Maria Virgillo husband and wife, Defendants.

ORDER AND OPINION [Re: Motion at Docket 33]

JOHN W. SEDWICK, District Judge.


At docket 33, 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 Count 1 of their Amended Complaint. Count One is a § 1983 claim for unlawful entry, which alleges that Defendant Sergio Virgillo, a police officer with the Phoenix Police Department, unlawfully entered the home of their son, Daniel Frank Rodriguez ("Rodriguez"), in violation of his Fourth Amendment privacy rights. They allege that as a result of Virgillo's wrongful conduct, the Estate of Rodriguez has suffered damages.[1] Defendant responds at docket 53. Plaintiffs reply at docket 57. Oral argument was not requested and would not be of assistance to the court.


On October 5, 2010, Elvira Fernandez ("Fernandez") called 911 concerning her son, 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.[2] It is undisputed that early in the encounter Chrisman pulled a gun out and at least pointed it in the direction of Rodriguez.[3] 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' motion for summary judgment at docket 33 asks the court to grant summary judgment in their favor as to Count One. Plaintiffs argue that Rodriguez told the officers they could not enter his home without a warrant, revoking his mother's prior consent to enter, and that there was no exigency that would otherwise provide them with the authority to do so. Defendant argues that this particular § 1983 claim based on unlawful entry under the Fourth Amendment does not survive decedent's death or, alternatively, that his entry was lawful under the Fourth Amendment based on dicta in Georgia v. Randolph [4] or on the exigencies that existed at the time of his entry. Defendant also argues that, at a minimum, he is entitled to qualified immunity on the unlawful entry claim.

Defendant recently filed his own motion for summary judgment at docket 63, asking that all counts in the complaint be resolved in his favor. That motion has not yet been fully briefed.


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."[5] 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."[6] Ultimately, "summary judgment will not lie if the... evidence is such that a reasonable jury could return a verdict for the nonmoving party."[7] However, summary judgment is mandated under Rule 56(c) "against a party who fails to make a showing ...

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