United States District Court, D. Arizona
FRANK R. ZAPATA, Senior District Judge.
Pending before the Court is the Report and Recommendation [Doc. 266] issued by United States Magistrate Judge Rateau that recommends the Court deny Defendant Hunt's Motion for Summary Judgment [Doc. 235] and grant Defendants Demik, Rios, and Scharnweber's Motion for Summary Judgment [Doc. 238]. The Court has conducted an independent review of the record, including review of Defendant Scharnweber's Partial Objections to Summary Judgment Report and Recommendation [Doc. 269], Objection to Report and Reccomendation ( sic ) to Deny Summary Judgment for Defendant Hunt [Doc. 271], Plaintiffs' Objections to Magistrate's Report and Recommendations ( sic ) [Doc. 272], Defendant Rios, Scharnweber, and Demik's Objections to the Report and Recommendation [Doc. 273], Plaintiffs' Response to Defendant Scharnweber's Partial Objections to Summary Judgment Report and Recommendation [Doc. 274], and Plaintiffs' Response to Defendant Hunt's Objection to Report and Recommendation to Deny Summary Judgment for Defendant Hunt [Doc. 275]. As more fully set forth herein, the Court will adopt in part and reject in part the recommendations of Magistrate Judge Rateau.
Plaintiffs Jose and Maria Chavez initiated this case on May 25, 2001. Their First Amended Complaint [Doc. 12] ("FAC") was filed on January 7, 2002. The FAC named as defendants the United States of America, the United States Immigration and Naturalization Service Commissioner James Ziglar, United States Border Patrol Sector Chief David Aguilar, and fifteen current and former Border Patrol agents. The FAC alleges: (1) assault; (2) battery; (3) false imprisonment/false arrest; (4) intentional infliction of emotional distress; (5) negligence; and (6) constitutional violations (monetary, declaratory, and injunctive relief). Id.
Defendants filed motions to dismiss or in the alternative motions for summary judgment seeking to dispose of the entire case. At the same time Plaintiffs filed their responsive briefs opposing dismissal, Plaintiffs filed their Rule 56(f) motion seeking deferment of any ruling on the alternative motion for summary judgment as Plaintiffs had not had any opportunity to conduct discovery. In 2002, the Honorable David C. Bury (who presided over the case at the time) ordered nearly all of the substantive claims dismissed whereby only a minor property damage claim remained. As the motion to dismiss was granted, the Rule 56(f) motion was denied as moot as well as the alternative motion for summary judgment. Subsequently, Judge Bury recused himself from the case, the case was reassigned to Magistrate Judge Marshall, and the parties proceeded to a bench trial before Magistrate Judge Marshall in 2005. Magistrate Judge Marshall found in favor of Plaintiffs in the amount of $3, 700.00. Thereafter, Plaintiffs appealed Judge Bury's previous dismissal order.
On March 27, 2007, the Ninth Circuit issued an order affirming in part and reversing in part Judge Bury's decision and remanding for further proceedings. See Chavez v. U.S., 226 Fed.Appx. 732 (9th Cir. 2007) (hereinafter, Chavez I ). The Ninth Circuit reversed the dismissal of Plaintiffs' Bivens claims as to Agents Rios, Demik, Scharnweber, Hunt, Obregon, Chavez, Campbell, Ziglar and Aguilar, and reinstated Plaintiffs' claims for equitable relief under the Fourth Amendment. The Ninth Circuit found that the dismissal of these claims pursuant to Rule 12(b)(6) for failure to state a claim was erroneous and also found that the previous denial of the Rule 56(f) motion and motion for summary judgment as moot was also error. The Ninth Circuit held, inter alia,
We disagree, however, with the district court's finding that the Chavezes have failed to satisfy the notice pleading requirement with respect to the remaining defendants. First, the Chavezes bring claims against Agents, Rios, Demek, ( sic ) and Scharnweber. Unlike the vague and conclusory allegations regarding the other defendants discussed supra, the complaint alleged that Rios, Demek, ( sic ) and Scharnweber each stopped the shuttle on a specific occasion. Those allegations, coupled with the allegation that "[i]ndividual Defendants lacked consent, probably cause, and reasonable suspicion, and warrants, " are sufficient to provide notice of the claims against Agents Rios, Demek, ( sic ) and Scharnweber.
Thus, the Ninth Circuit remanded the case to the District Court for its consideration of the Rule 56(f) and summary judgment motions.
After remand to the District Court, the United States Supreme Court decided Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In light of Iqbal, the supervisory Defendants filed a motion for judgment on the pleadings under Rule 12(c). This Court denied the motion to dismiss, finding that the supervisory defendants failed to provide a plausible nondiscriminatory explanation for the alleged stops. This Court also held that Plaintiffs did not need to allege that the supervisory defendants directly participated in constitutional violations. Id. Instead, relying upon Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991), this Court held Plaintiffs had plausibly alleged that the supervisory defendants had either knowingly refused to terminate a series of acts they reasonably should have known would cause constitutional violations, acquiesced in constitutional deprivations by subordinates, or displayed reckless or callous indifference to others' rights. The supervisory defendants appealed.
On the supervisory defendants' appeal, the Ninth Circuit held, inter alia, "taking qualified immunity into account, a supervisor faces liability under the Fourth Amendment only where it would be clear to a reasonable supervisor that his conduct was unlawful in the situation he confronted.'" Chavez v. United States, 683 F.3d 1102, 1110 (9th Cir. 2012) (hereinafter, Chavez II ). Under this standard, the Ninth Circuit held Plaintiffs' FAC failed to state a Fourth Amendment claim against any supervisory defendant except as to Defendant Hunt. Id. The Ninth Circuit further held that, in contrast to the other supervisory defendants, Hunt faces liability not only as a supervisor, but also for his direct participation in the stops. Id. at 1111. The Fourth Amendment prohibits an officer on roving patrol near the border from stopping a vehicle in the absence of an objectively "reasonable suspicion" that the "particular vehicle may contain aliens who are illegally in the country" or is involved in some other criminal conduct. Id., quoting United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 275, 45 L.Ed.2d 607 (1975).
The Ninth Circuit held that the facts alleged in the FAC did not indicate that, when Hunt made the two stops, any observable characteristics other than race could have provided a basis for reasonable suspicion. Chavez II, 683 F.3d at 1112, citing Brignoni-Ponce, 422 U.S. at 886, 95 S.Ct. 2574 ("At best the officers had only a fleeting glimpse of the persons in the moving car..."). Indeed, although the supervisory defendants argue that Hunt's knowledge that Plaintiffs' shuttle had carried undocumented passengers on previous occasions would have supported reasonable suspicion, the FAC indicates that, on one of the two occasions when Hunt stopped Plaintiffs, Plaintiffs drove a rental van because their usual shuttle was under repair. Chavez II, 683 F.3d at 1112. Based upon the facts set forth in the FAC, Plaintiffs have plausibly alleged that Hunt stopped them based solely on their and their passengers' "apparent Mexican ancestry, " a characteristic that a reasonable officer clearly would have known did not create reasonable suspicion. Id. Accordingly, the Ninth Circuit held the FAC adequately states a claim against Defendant Hunt for Fourth Amendment violations, and, at least on the facts alleged, qualified immunity does not shield Hunt from liability. Id.
The mandate in Chavez II was issued on August 15, 2012. Thereafter, the parties engaged in discovery relating to what was left of the allegations contained in Plaintiffs' FAC. On August 3, 2013, Defendants Scharnweber, Demik, and Rios filed a motion to amend their answer to add the defense of the statute of limitations. This Court entered an Order granting Defendants' motion by adopting the conclusion of Magistrate Judge Rateau's Report and Recommendation. On September 1, 2013, Defendant Hunt filed his Motion for Summary Judgment. On that same date, Defendants Scharnweber, Rios and Demik filed their Motion for Summary Judgment.
It is against this lengthy backdrop that the Court considers the current Report and Recommendation [Doc. 266] regarding the disposition of Defendants Hunt, Scharnweber, ...