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McLemore v. Johnson

United States District Court, D. Arizona

May 19, 2014

Justin Lowell McLemore, Plaintiff,
v.
Todd Johnson, et al., Defendants.

ORDER

JAMES A. TEILBORG, District Judge.

Pending before the Court are Defendants' Motion for Summary Judgment (Doc. 29) and Motion for Summary Disposition of their Motion for Summary Judgment (Doc. 31). The Court now rules on the motions.[1]

I. Background[2]

Plaintiff is a former deputy sheriff with the Maricopa County Sheriff's Office. (Doc. 30-1 at 2). In 2009, Plaintiff was involved in a domestic dispute with his girlfriend when he pointed a gun at his head and said that he wanted to commit "suicide by cop." ( Id. at 58). During the ensuing confrontation with police, Plaintiff refused to obey instructions and attempted to simulate having a gun behind his back by extending his finger and thumb. ( Id. at 62). After police lit up Plaintiff with the laser sight of a Taser, Plaintiff cooperated and was arrested. ( Id. ) Plaintiff was charged with three counts of disorderly conduct and one count of criminal damage. ( Id. at 68). Plaintiff subsequently resigned his position as deputy sheriff. ( Id. at 22).

Plaintiff's troubles resumed on June 10, 2010. (Doc. 30-2 at 3). That evening, he was drinking with friends at his mother's house when an argument erupted between Plaintiff, his mother, and his stepfather. ( Id. at 3-4). Plaintiff grabbed a knife, held it to his throat, and threatened to kill himself. Plaintiff's mother grabbed a knife, held it to her throat, and threatened to kill herself. Plaintiff and his mother each reached for the other's knife; Plaintiff's stepfather reached for both knives. When the melee ended, all three had lacerated hands. ( Id. at 4).

Plaintiff left the house, and Plaintiff's stepfather called 911. ( Id. at 2). City of Mesa police officers were dispatched to a report of a suicide threat with a knife. ( Id. at 3). Plaintiff's mother told the Mesa police that Plaintiff had lost his job with the Maricopa County Sheriff's Office because of the 2009 incident in which he held a gun to his head. She also told the police how in that incident Plaintiff had attempted to simulate possession of a gun with his hands so as to cause the officers to shoot him. Mesa police found an empty gun holster underneath Plaintiff's bed; they reported him to the National Crime Information Center database as a missing adult with suicidal tendencies who was possibly armed. (Doc. 30-2 at 3-5).

Plaintiff cleaned up his hand to the extent that it no longer dripped blood, (Doc. 30-1 at 84), and walked over to the Hyatt hotel in Gilbert to hang out in the pool, ( id. at 82, 84). He was wearing shorts, a t-shirt, and flip-flops. ( Id. at 82). Meanwhile, the Gilbert Police Department was dispatched to the hotel for a male subject who had made suicidal threats earlier in the evening. Gilbert police were advised that the subject had been involved in an altercation with his parents involving a knife, the subject was injured, an empty gun holster had been found at the subject's residence, the subject had previously attempted "suicide by cop, " the subject was considered dangerous, the subject was a former law enforcement officer, and the subject had been listed in the National Crime Information Center database as a missing adult with suicidal tendencies. ( Id. at 10).

Gilbert police saw Plaintiff walking around the Hyatt's pool area. (Doc. 30-2 at 18). Plaintiff saw police vehicles driving around and believed they were looking for him. (Doc. 30-1 at 82). He hid in the bushes until most of the vehicles had left. ( Id. at 85, 86). Some time later, Officers Johnson and Fisher were standing in full police uniform near two vehicles when another officer advised them over the radio that Plaintiff was walking towards them. (Doc. 30-2 at 10, 13). Although it was dark and the area was not well-lit, (Doc. 30-1 at 87), Officers Johnson and Fisher turned around and saw Plaintiff, matching the subject's description, walking towards them, (Doc. 30-2 at 10, 13).

When Plaintiff stepped into the street at a distance of about fifty feet from the officers, Officer Johnson instructed Plaintiff to sit on the curb. ( Id. at 10, 13). Plaintiff did not comply. Specifically, Plaintiff shouted, "F*** you, this is f******* ridiculous." ( Id. at 11). Officer Johnson drew his X26 Taser at roughly the same time as Plaintiff's commentary and pointed the Taser in Plaintiff's direction. ( Id. at 11, 14). Plaintiff continued walking towards the officers despite hearing Officer Johnson's commands. (Doc. 30-1 at 89; Doc. 30-2 at 11). Officer Johnson told Plaintiff to sit down on the curb or be tased. ( Id. at 14).

Plaintiff walked between two vehicles that were parallel parked on the street, a space of a few feet. ( Id. at 14). This caused Officer Fisher to lose sight of Plaintiff's hands, and Officer Fisher ran around one of the vehicles to "cut him off." ( Id. at 11). Officer Fisher and Officer Johnson both ordered Plaintiff to get on the ground, but Plaintiff stopped in the space between the vehicles and placed his hands on the back of one vehicle's trunk. ( Id. at 11, 14). Plaintiff was seven to ten feet away from Officer Johnson, who again told Plaintiff to sit down on the curb or be tased. ( Id. at 14). Plaintiff did not comply, and Officer Johnson fired his Taser, striking Plaintiff in the chest and enabling Officer Fisher to handcuff Plaintiff. ( Id. ) Plaintiff then shouted several times that he was going to sue for excessive force. ( Id. at 11).

Plaintiff was not injured during the arrest. (Doc. 30-1 at 88). Plaintiff equivocated when asked by on-scene firefighters if he wanted to hurt himself, and was transported to the hospital where he received stitches in his thumb. ( Id. at 87-88). Plaintiff was subsequently convicted of interfering with a police officer in the discharge of official duties. (Doc. 30-2 at 29-30).

II. Motion for Summary Disposition

Plaintiff did not respond to Defendants' motion for summary judgment. Defendants have moved for summary disposition of their motion for summary judgment, asking the Court to deem Plaintiff's failure to respond as consent to granting the motion. (Doc. 31). Although permitted under Local Rule 7.2(i), the Ninth Circuit Court of Appeals ("Court of Appeals") has held that Federal Rule of Civil Procedure 56 forbids such a practice with respect to motions for summary judgment. See Heinemann v. ...


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