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Lihosit v. Flam

United States District Court, D. Arizona

May 16, 2016

Jeffrey Lihosit, Plaintiff,
Jason Flam and Jane Doe Flam, husband and wife; Patrick Carroll and Jane Doe Carroll, husband and wife; City of Mesa, a municipal entity; and John Does I-X, ABC Corporations I-X, and XYZ Partnerships I-X, Defendants.


          Neil V. Wake United States District Judge.

         Before the Court is Defendants’ Motion to Dismiss (Doc. 26). Oral argument was heard on May 4, 2016. For the reasons that follow, the Motion will be granted.

         I. BACKGROUND

         Jeffrey Lihosit claims that two police officers used excessive force in the course of arresting him. He describes the incident in his First Amended Complaint. Defendants have submitted a video and transcript of the incident, as well as documents from the post-arrest municipal court proceedings.

         A. Lihosit’s Allegations

         The First Amended Complaint (Doc. 25) alleges as follows. On the evening of October 29, 2014, City of Mesa Police Officer Patrick Carroll and Detective Jason Flam spoke with Lihosit outside his home about his recent communication with his ex-wife. (Id. at ¶ 11.) The officers did not arrive with the intention to arrest him. (Id. at ¶ 12.) Throughout the conversation Lihosit was calm and unarmed. (Id. at ¶ 13, 19.) He was smoking a cigarette and holding a cup of coffee. (Id. at ¶ 13.) He never raised his voice or made any threats. (Id.)

         During the conversation, Lihosit read aloud a text message from his wife which stated in part, “This is ridiculous, just like you.” (Id. at ¶ 14.) Officer Carroll mistakenly thought Lihosit was referring to the officers and threatened to “punch [Lihosit] in the face.” (Id. at ¶ 15.) Lihosit then looked at Officer Carroll and asked him if he had just threatened harm. (Id. at ¶ 16.) Detective Flam said that Officer Carroll did not make a threat. (Id. at ¶ 17.)

         Lihosit asked to speak with the officers’ supervisor. (Id. at ¶ 18.) In response to Lihosit’s request, Detective Flam pointed his Taser at Lihosit and said, “You are about to be lit up!” (Id. at ¶ 19.) The officers then arrested Lihosit in order to cover up their use of excessive force. (Id. at ¶ 20.)

         Lihosit’s neighbors and other passers-by saw this incident. (Id. at ¶ 22.) Lihosit suffered “anguish and pain and suffering, ” “post-traumatic stress-disorder, ” and “humiliation in front of his kids, girlfriend and neighbors.” (Id. at ¶ 24.) Neighbors will not let their children play with Lihosit’s children anymore, and Lihosit’s role as leader of his son’s boy-scout group is jeopardized. (Id.)

         Lihosit brings this action under 42 U.S.C. § 1983. (Id. at 6-11.) He claims that the officers used excessive force in violation of the Fourth Amendment. (Id. at 6-9.) He also claims that this violation resulted from the City of Mesa’s policies, practices, or customs and its failure to train and supervise its officers. (See Id. at ¶¶ 26, 49-58.) He seeks damages against the officers and the City, jointly and severally. (Id. at 11.)

         B. Video, Transcript, and Municipal Court Documents

         Defendants submitted a video of the incident (“Video”), taken from Detective Flam’s body camera. (See Doc. 33.)[1] Defendants also submitted a transcript of the incident, written by a third party who watched and listened to the Video. (See Doc. 26-2.) Lihosit does not dispute the authenticity of the Video or the transcript. (Docs. 35, 36.) Defendants also submitted copies of the charges brought against Lihosit in municipal court after the arrest, as well as copies of that court’s findings. (See Doc. 26-1.)

         The Video and transcript provide a fuller picture of what happened. Detective Flam, Officer Carroll, and Lihosit were standing outside, within a few feet from each other, talking. (See Video; accord Doc. 25 at ¶ 19.) Officer Carroll told Lihosit that the reason they were there was to address Lihosit’s recent communication with his ex-wife, in light of a court order limiting such communication:

OFFICER CARROLL: What we’re here to address is that you were served with an order of the court saying that you’re not to contact her, except in regards to the children. Okay? She made a complaint regarding one of the [communications] . . . .

         (Video at 0:04-0:11; Doc. 26-2 at 3.) Lihosit offered to read his recent communications with his ex-wife from his phone; the officers agreed. (Video at 0:32-0:37; Doc. 26-2 at 4.) Looking through his phone, Lihosit muttered, “This is ridiculous, guys. You guys have no idea.” (Video at 0:39-0:43; Doc. 26-2 at 4.) Lihosit then read aloud a text message. (Video at 0:58-1:10; Doc. 26-2 at 4.) Detective Flam specified that the communication in question was an email, not a text message. (Video at 1:15-1:22; Doc. 26-2 at 4-5.) Looking through his phone again, Lihosit declared, “I ain’t contacting her anymore. I understand the point.” (Video at 1:24-1:26; Doc. 26-2 at 5.)

         Lihosit then read aloud from his phone, “This is ridiculous, just like you.” Upon hearing this, Officer Carroll began to argue, but Detective Flam clarified that Lihosit was simply reading an email. Officer Carroll then said that Lihosit “was about to get punched in the face”:

MR. LIHOSIT [Reading from phone screen]: This is ridiculous, just like you.
OFFICER CARROLL: -if he was ridiculous-
DETECTIVE FLAM: -that’s the-no, no, no. He’s reading the email. I’m sorry. [Laughing]
OFFICER CARROLL: He was about to get punched in the face.

         (Video at 1:30-1:38; Doc. 26-2 at 5.)

         Upon hearing Officer Carroll’s remark, Lihosit turned his head toward Officer Carroll and asked, “Did you just tell me you were gonna punch me in the face?” He then turned the rest of his body toward Officer Carroll and repeated the question:

MR. LIHOSIT: Did you just tell me you were gonna punch me in the face?
DETECTIVE FLAM: Hey, you know ...

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