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Foust v. Page

United States District Court, D. Arizona

May 6, 2014

Shannon E. Foust, et al., Plaintiffs,
Page, et al., Defendants.


DAVID G. CAMPBELL, District Judge.

Defendants City of Page, Officer Wilson and his spouse, and Chief Charles Dennis and his spouse (collectively, "Defendants") have filed a motion for summary judgment. Docs. 85, 86. The motion has been fully briefed. Docs. 92, 93, 98. Plaintiffs seek leave to amend their complaint to add as Plaintiffs the Estate of William Dale Foust and Brynn Foust D'Avello as personal representative of the Estate. Doc. 91. That motion is also fully briefed. Docs. 96, 97. For the reasons stated below, Defendant's motion for summary judgment will be granted in part and denied in part and Plaintiff's motion to amend will be denied.[1]

I. Background.

Toni Foust and Decedent Bill Foust purported to marry in February 1996. Doc. 86, ¶ 1. The Fousts owned a watercraft store in the City of Page, which also served as their residence. Id., ¶ 2. During the time the Fousts lived there, Toni Foust called 911 on a number of occasions and filed for and received two orders of protection against Decedent. Id., ¶ 3. Plaintiffs allege that these calls and orders were related to marital disputes and verbal abuse by Decedent, but Defendants dispute this, asserting that Toni Foust "believes 911 should be called when you need someone to come and help resolve a situation" and that she "had a habit of calling the police every time she thought they could assist her in a dispute related to her business or with Mr. Foust." Doc. 92, ¶¶ 4-5. Defendants allege that Decedent was an active member of a sovereignty group who took issue with police in general, was confrontational, and would not back down. Doc. 86, ¶¶ 15-18. Defendants dispute these allegations. Doc. 92, ¶¶ 15-18.

On the morning of Sunday, June 19, 2011, Decedent spoke with his daughter, Brynn Foust D'Avello, and told her that he was thinking about leaving Toni and moving to California. Doc. 86, ¶ 21. Later that day Toni called 911 from the shop to report that Decedent was loading paperwork from their business into his truck. Id., ¶ 23. The 911 dispatcher issued a domestic dispute call, to which Officer Wilson responded. Id., ¶ 24. Wilson asked the dispatcher whether there was an order of protection in place. Id. Wilson entered the Foust's shop in full uniform, with a camera affixed to his chest. Id., ¶¶ 26, 28.

Upon arrival on the scene, Wilson asked Toni what was going on. Id., ¶ 29. Toni told him that Decedent was "pissed off" and was removing paperwork from the house. Id., ¶ 30. Wilson then informed her that the removal of the paperwork was a civil matter about which he could do nothing, and that only if physical violence was threatened could he intervene. Id., ¶¶ 29-32. Toni then described an incident in which Decedent had pushed a table at her and called her obscenities. Id., ¶ 33. Decedent then entered the shop's front door and told Wilson that if he wanted to talk with Toni he would need to go outside. Id., ¶ 36. Wilson refused and told Decedent "You don't tell me what to do, you go stand over there, " and that he was "good right here man." Id. Decedent then left the building. Id. Toni informed Wilson that Decedent had a gun, to which Wilson replied "That is fine, so do I." Id., ¶ 38.

Decedent re-entered the building and again told Wilson that he was not welcome in his shop, to which Wilson replied "I didn't ask you if I could be in here sir." Id., ¶ 40. Decedent asked Wilson for his name, to which Wilson gave his last name but refused to give his first. Id., ¶ 41. Decedent told Wilson "You better be careful the way you talk to me." Id. During this exchange, Toni gestured to Wilson and mouthed "call for backup." Id., ¶ 43. Wilson and Toni then left the building to continue their conversation. Id., ¶ 44. Toni informed Wilson that Decedent had been verbally abusive to her and told her that he did not know how much time she has left. Id.

While Toni and Wilson were talking, Decedent exited the building and got into his truck, which was parked near the shop. Id., ¶ 45. Decedent started his truck and moved it backwards as Wilson was passing near the rear of the truck. Id., ¶ 47, Doc. 92, ¶ 47. The parties dispute whether Decedent knew Wilson was behind the truck. Wilson approached the driver's side of the vehicle and struck the driver's side glass window, yelling "You don't run me over, " "[g]et your ass over here right now, " and, after Decedent got out of the car, "[g]et on the fuckin' ground right now." Doc. 86, ¶¶ 50-52. Decedent got back into his vehicle and tried to close the door, but Wilson attempted to hold it open, pulling the armrest off. Id., ¶ 54. The door was pulled open and Decedent emerged and the two struggled for the next few seconds, Wilson telling Decedent to get on the ground and Decedent attempting to get back into the truck. Id. During the struggle, Wilson deployed his taser and the two struggled over the taser, falling to the ground. Id., ¶¶ 57-59. At some point Wilson lost the taser, pulled his duty weapon, and pointed it at Decedent. Id., ¶¶ 60, 63. Officer Wilson fired two shots, striking Decedent in the chest and the forehead. Id., ¶ 67. Decedent fell forward and landed face down. Id. The entire encounter lasted approximately four and a half minutes from the time Wilson arrived at the business to the gunshots. Decedent died as a result of the gunshot wounds.

A.45 caliber Glock model handgun was later recovered from the passenger compartment of Decedent's truck, loaded with 12 live rounds. Id., ¶ 69. Two witnesses claimed to see at least some portion of the struggle between Wilson and Decedent and both gave statements. Id., ¶¶ 71-83.

II. Legal Standard.

A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment is also appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence only raises a genuine issue of fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

III. Analysis.

A. Assertion of § 1983 Claim by Surviving Daughters.

Defendants argue that Plaintiff's § 1983 claim fails because Decedent's estate was not included as a plaintiff, and Plaintiffs, as third parties, did not assert a survival claim and cannot assert ...

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