United States District Court, D. Arizona
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Bernardo P. Velasco United States Magistrate Judge
Walter L. Cleveland, who is proceeding pro se,
brings this action against: (1) Cochise County, Arizona, for
Cochise County Sheriff's Department; (2) Cochise County
Deputy Sheriff Troy Haymore; (3) Cochise County Deputy
Sheriff Robin Cronin; and (4) Cochise County Deputy Sheriff
Marsha Callahan-English. (See Pretrial Order, (Doc.
27 at 1)). Plaintiff's claims are based on 42 U.S.C.
§ 1983 for alleged violations of his rights under the
Fourth and Fourteenth Amendments of the United States
Constitution relating to use of excessive force, unlawful
search, unlawful seizure, and placing Plaintiff's life
“at risk by withholding…” his blood
pressure medication. (Id.). Plaintiff also alleges
state law claims of: false arrest; assault; and negligence
with regard to his blood pressure medication. (Id.
accordance with the provisions of 28 U.S.C. § 636(c)(1),
the parties consented to proceed before a United States
Magistrate Judge to conduct any and all further proceedings
in this case, including trial and entry of a final judgment,
with direct review by the Ninth Circuit Court of Appeals if
an appeal is filed. (Doc. 19).
13, 2016, the Court conducted a one-day bench trial in this
action. (See Amended Minute Entry 6/13/16 (Doc.
30)). At trial, Plaintiff was the only witness to testify in
his case-in-chief. At the close of Plaintiff's evidence,
counsel for Defendants made an oral motion for judgment as a
matter of law and the Court granted the motion with regard to
the excessive force claim only. (Id.). Defendants then
presented testimony from the following witnesses: Assistant
Chief Artie Reid of the Willcox Rural Fire Department and
Defendant Cochise County Deputy Sheriffs Haymore, Cronin, and
Callahan-English. (Id.). No exhibits were admitted
into evidence. Nor did the parties submit any stipulations of
fact or uncontested issues. (See Doc. 27 at 2).
Court has heard and weighed the testimony presented at trial.
The Court has observed the witnesses' demeanor at trial
and has evaluated their candor and credibility. Having
considered the pleadings, testimony of the witnesses, and the
Court's trial notes, the Court makes the following
Findings of Fact and Conclusion of Law in accordance with
Rule 52(a) of the Federal Rules of Civil
Findings of Fact
extent that the Findings of Fact stated below are also deemed
to be Conclusions of Law, they are hereby incorporated into
the Conclusions of Law that follow.
relevant times, Plaintiff and his brother, Fred Cleveland,
lived in homes located next to each other on the same
property at or near Willcox, Arizona. The property on which
both homes are located is fenced with at least one gate
leading to Plaintiff's residence. The fence is about 20
feet from Plaintiff's residence. Late on the evening of
August 7, 2015, Plaintiff set fire to a mattress and other
household trash at his residence. The fire was located inside
the fence, approximately 10 feet in front of Plaintiff's
approximately 11:18 p.m., on August 7, 2015, Deputy Haymore
responded to Plaintiff's residence in response to a
report of burning. Upon arrival, he saw the fire in front of
Plaintiff's residence. He spoke to Fred Cleveland who
said that Plaintiff had been drinking and had wanted to set a
Plaintiff's residence, Deputy Haymore saw Plaintiff
standing on the other side of the fire. When Deputy Haymore
called out to him, Plaintiff went into his home saying
something to the effect that he was not going to talk to the
deputy. Deputy Haymore stepped over a chain link fence which
was a little lower than waist high so that he could make
contact with Plaintiff. After he knocked on the door, he
heard the sound of someone pushing furniture around, and
based on his training, he suspected that Plaintiff was
barricading himself inside. Due to safety concerns, Deputy
Haymore retreated to the other side of the fence to wait for
back-up to arrive.
Cronin arrived as back-up. She spoke to Fred Cleveland who
told her that Plaintiff, who had been drinking, wanted to set
a bonfire which Fred did not want to do. Fred Cleveland also
told Deputy Cronin that Plaintiff was not supposed to be
drinking per a release order. Deputy Cronin contacted the
Willcox Jail and confirmed that Plaintiff was subject to
conditions of release prohibiting alcohol.
Cronin and Deputy Haymore remained outside the fence and
called for Plaintiff to come out so that they could talk to
him. After about 15 minutes, Plaintiff came out of his home.
He appeared intoxicated and very agitated, waving his arms
and yelling to the effect that he: (1) did not want to speak
to the deputies, (2) did not want to go to jail; and (3) was
going to sue them. Plaintiff also admitted that he had
started the fire. Meanwhile, Assistant Chief Reid of Willcox
Rural Fire Department arrived and worked to extinguish the
fire with a garden hose.
Deputy Callahan-Enlgish, who at that time was acting as a
senior night officer, was summoned to the scene by Deputy
Cronin. Upon Deputy Callahan-English's arrival, Plaintiff
was standing outside the fence. Plaintiff continued to present as
very agitated and upset, waving his arms and clenching his
fists. His speech was slurred and his eyes were blood shot.
All three deputies believed Plaintiff was
intoxicated. When Deputy Callahan-English asked
Plaintiff why he ran into the house earlier, he responded
that he did so because he was not going back to jail. He also
stated that he had a loaded gun and if they came into the
house to try to get him, he would shoot them.
behavior fluctuated from extreme agitation and yelling
profanities at the deputies one minute, to becoming calm,
then returning to an agitated state. Due to this behavior,
Deputy Callahan-English inquired whether Plaintiff, in
addition to being intoxicated, had any significant medical
issues that she should know about. Plaintiff responded that
he suffered from high blood pressure and high
cholesterol. Out of concern caused by what Deputy
Callahan-English described as Plaintiff's
“rollercoaster emotions” and “rollercoaster
attitude” toward the deputies, she asked him whether it
would be all right to have paramedics see him and she
requested paramedics to respond to the scene.
Haymore was with Plaintiff while the paramedics attended to
him. Although Plaintiff was not aggressive toward the
paramedics, he was agitated and they had to tell him to calm
down several times. Plaintiff told the paramedics that he had
high blood pressure. The paramedics determined that
Plaintiff's blood pressure was fine and informed Deputy
Haymore that Plaintiff had no significant medical issues at
that time and could be released to the deputies.
Plaintiff was with the paramedics, Deputies Callahan-English
and Cronin spoke with Fred Cleveland and his wife Denise. The
Clevelands said that Plaintiff had been drinking and he was
unpredictable when he was drinking. They also told the two
deputies that Plaintiff had threatened their family and he
had also threatened a juvenile named Gage, who was not
related to the Clevelands, but who had been at their
residence. They reported that Plaintiff had a BB gun and a
machete. They also told the deputies that Plaintiff
threatened to shoot out a window of their home, and they were
scared he would follow through on the threat because, on a
previous occasion, he shot out the windows of a vehicle
belonging to Fred. The Clevelands said that Plaintiff had
anger issues and that he previously had spent time in prison
in another state for slicing a man from his head to his
shoulder. The Clevelands warned the deputies to be careful if
they arrested Plaintiff because he would cause problems.
on the information from Fred and Denise Cleveland, Deputy
Callahan-English decided to arrest Plaintiff on charges of
domestic violence/disorderly conduct and domestic
violence/threatening or intimidating. After Plaintiff
finished with the paramedics, Deputy Callahan-English
informed him he was under arrest. She directed him to turn
around and place his hands behind his back, at which point
Plaintiff became upset, saying that he did not want to go to
jail and did not want to leave his dogs.
Callahan-English told Plaintiff that she would be more than
happy to make sure his dogs had food and water and that they
would be cared for, but to turn around and put his hand
behind his back. Plaintiff said: “Okay”, but did
not turn around or place his hands behind his
back and, instead, began cursing at the
deputies and yelling about suing them. Deputy
Callahan-English again directed Plaintiff to turn around and
place his hands behind his back or he would be charged with
resisting arrest. Plaintiff then complied with her command.
Callahan-English understood Plaintiff saying
“Okay” as his “acquiescence” to her
offer to look after the dogs. She went on to testify that
Plaintiff never told her not to check on the dogs.
Callahan-English and the paramedics, who she requested
accompany her, entered Plaintiff's home. Deputy
Callahan-English stood inside the doorway while the
paramedics tended to the dogs and obtained Plaintiff's
blood pressure medication. Deputy Callahan-English wanted
Plaintiff's medication because she intended to book
him into jail for the night and she was aware of the
possibility that he may have to stay there two or three days.
She wanted the medication at this time to avoid the need to
obtain permission later to re-enter the residence to obtain
it. Deputy Callahan-English did not conduct a search of
Plaintiff's residence and she and the paramedics were not
inside for an extended period of time. However, while Deputy
Callahan-English waited for the paramedics, she observed in
plain view near the front door where she stood, a
revolver-style handgun (later determined to be a
CO2 BB gun) and, across from her in plain view
near the television, she saw a large machete.
Callahan-English seized both weapons. She testified that she
did so for security reasons because Plaintiff's door did
not secure well, because she was dealing with a domestic
violence issue, and because the area where Plaintiff's
residence is located has a high incidence of illegal
immigrant traffic and drug smuggling. Her intention was to
secure the weapons. She did not intend to initiate any
charges related to the weapons. Later, Deputy
Callahan-English made arrangements with Plaintiff's
sister-in-law to care for the dogs in the event Plaintiff
remained in custody for more than a day.
Deputy Callahan-English was storing the weapons in her
vehicle, she was called over to Deputy Cronin's patrol
car where Plaintiff, who was inside the car, was angry and
yelling profanity and for the deputies to snap his neck.
Inside Deputy Cronin's patrol car, Plaintiff was hitting
his head against the partition dividing the back seat from
the front seat, and he was also throwing his head backwards
against the back seat, while screaming. Deputy
Callahan-English told Plaintiff that she had secured his gun
and machete, his dogs were fed and watered, and everything
would be okay but he needed to stop resisting and calm down.
She went on to tell him that if he would calm down, he would
probably just spend the night in jail and be out the next
day. Plaintiff continued yelling profanity at the deputies
and yelling for them to snap his neck.
point, Deputy Haymore entered the patrol car to prevent
Plaintiff from hurting himself. Deputy Haymore secured
Plaintiff's head by placing his right arm around the back
of Plaintiff's head and placing his left arm around
Plaintiff's left cheek, ear and forehead to prevent
Plaintiff from hitting his head on the partition or the back
seat. Deputy Haymore did not initiate any pain compliance;
instead, his intention was to prevent Plaintiff from harming
himself. Deputy Cronin assisted Deputy Haymore by holding
Plaintiff from the other side. Deputy Cronin used her body
weight and placed her hand on Plaintiff's face to prevent
him from hitting his head. She did not intend to cause
Plaintiff pain. Plaintiff told the deputies that he was going
to fake an injury in order to keep from going to jail.
Police Department (“WPD”) was called to the
scene. Deputies Haymore and Cronin decided to transfer
Plaintiff to the WPD patrol vehicle because it was smaller
and presented less of an opportunity for Plaintiff to injure
himself. Plaintiff resisted transfer to the WPD vehicle by
tucking his legs under the seat in Deputy Cronin's
vehicle. Once outside Deputy Cronin's vehicle, Plaintiff
kicked wildly and refused to comply with the deputies'
commands, so the deputies took Plaintiff to the ground to
secure his legs. During this time, Plaintiff bit at
Deputy Cronin's thigh. After her encounter with
Plaintiff, Deputy Cronin had a bruise on her left forearm and
an injured pinkie, both of which did not require medical
deputies eventually transferred Plaintiff to the WPD patrol
car and transported Plaintiff to the Willcox detention
center. When Deputy Haymore went to remove Plaintiff from the
vehicle, Plaintiff appeared unconscious and did not respond
to his name, although he was breathing. Plaintiff had blood
on his head and shoulder. Deputy Haymore called paramedics.
After checking on Plaintiff, the paramedics informed Deputy
Haymore that Plaintiff had been faking being unconscious and
he was fine, but he should probably be seen at to the
hospital anyway. Plaintiff, who was on a gurney, was taken to
the hospital where medical staff informed that
Plaintiff's potassium was offand that he should stay at
the hospital for treatment to achieve a safe level of
Callahan-English informed her lieutenant that Plaintiff would
be spending the night at the hospital to receive medical
care. The lieutenant then directed Deputy Callahan-English to
cite and release Plaintiff, and to also obtain an emergency
order of protection for Fred Cleveland and his family. Deputy
Callahan-English obtained the emergency order of protection
and informed Plaintiff he was not to return to his residence
and that if he needed items from there, he should contact the
sheriff's department for assistance. She stressed to
Plaintiff that if he returned to his residence he might be
arrested. At just before 4:00 a.m., after citing
and releasing Plaintiff, Deputy Callahan- English left
Plaintiff in the hospital's care.
at the hospital, Plaintiff indicated that he wished to refuse
further treatment so that he could return home. When he
encountered resistance from medical staff who indicated he
needed to stay until the IV bag was empty, he became angry,
kicked a chair, and spilled a container of urine. Hospital
staff contacted WPD, who took Plaintiff into custody,
apparently cited him for disorderly conduct, and transported
him to a detention facility where Plaintiff remained until
the following day.
following day, August 8, 2015, Plaintiff walked home after he
was released from the detention facility. At home, Plaintiff
could not locate his blood pressure medication. He contacted
the Cochise County Sheriff's Department and WPD, and both
denied having the medication. Plaintiff also contacted
hospital staff who denied having the medication, but called
in a prescription. However, Plaintiff's pharmacy informed
him that his insurance declined the prescription because he
had recently filled a prescription for that medication.
Plaintiff then sought care at the hospital because his head
was pounding. According to Plaintiff, when his blood pressure
is up, his head feels like it is going to explode. At the
hospital, Plaintiff's blood pressure was recorded at
189/122 and he was informed that his blood pressure was high
and that he was borderline for a stroke or heart attack.
August 8, 2015, Deputy Callahan-English received a call
reporting that Plaintiff had returned to his residence. At
approximately 7:30 to 8:00 p.m. that evening, she drove to
the property and met with Fred Cleveland who said that
Plaintiff had been at the residence since about 2:30 that
afternoon. She subsequently spoke to Plaintiff, who
appeared sober and said he was sorry for what had happened
the night before and that he acts that way when he drinks.
Deputy Callahan-English's sergeant directed her to issue
a ticket through the court to avoid any further altercation.
She advised Plaintiff that just because she was leaving did
not mean that he would not be charged with violating the
protective order. Deputy Callahan-English returned
Plaintiff's medication at that time.
at some point on August 8, 2015, Plaintiff contacted the
Cochise County Sheriff's Department about the removal of
his weapons. He was informed that he could pick up the
weapons that day or wait until his court date. Plaintiff
opted to wait until the court date because he was low on gas.
The weapons were returned to him on August 12, 2015.
Plaintiff was not charged with any offense related to the
September 2015, Plaintiff entered a guilty plea to reckless
burning and to disorderly conduct at the hospital, all
arising from the incidents on August 7 and 8, 2015.
Conclusions of Law
extent that any of the Findings of Fact contain or include
conclusions of law, they are incorporated by reference
has alleged claims under 42 U.S.C. § 1983 and Arizona
law. The Court has jurisdiction over this action pursuant to
28 U.S.C. § 1331 as it arises under the Constitution,
Laws, or Treaties of the United States. The Court also has
supplemental jurisdiction over Plaintiff's state law
claims. See 28 U.S.C. § 1367(a).
Plaintiff's claims pursuant to 42 U.S.C. §
§ 1983, every person who, under color of state law,
deprives any citizen of the United States “of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured . . .
.'” 42 U.S.C. § 1983. Here, Plaintiff alleges
that Defendants deprived him of his rights under the United
States Constitution. Thus, to prevail under §1983,
Plaintiff must prove by a preponderance of the evidence that
Defendants acted under color of state law and
Defendants' acts deprived Plaintiff of his particular
rights under the United States Constitution. See e.g.
Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir. 2002)
(“In a civil case under 42 U.S.C. § 1983, . . .
the plaintiff carries the ultimate burden of establishing
each element of his or her claim. . . .”) (citing
Larez v. Holcomb, 16 F.3d 1513, 1517 (9th Cir.
must also demonstrate by a preponderance of the evidence that
Defendants' conduct was the actionable cause of
Plaintiff's claimed injury. Harper v. City of Los
Angeles, 533 F.3d 1010, 1027 (9th Cir. 2008) (citation
omitted). “To meet this causation requirement, the
plaintiff must establish both causation-in-fact and proximate
causation.” Id. (citation omitted); see
also Rizzo v. Goode, 423 U.S. 362, 731-73, 377 (1976)
(to prevail, the plaintiff must demonstrate that he suffered
a specific injury as a result of specific conduct of a
defendant and show some affirmative link between the injury
and that defendant's conduct.).
Plaintiff's claims against Defendant Cochise
government may not be held liable on a theory of
respondeat superior. Gibson v. County. of
Washoe, Nev., 290 F.3d 1175, 1186 (9th Cir. 2002),
overruled on other grounds by Castro v. County of Los
Angeles, ___ F.3d ___, 2016 WL 4268955, *11
(9th Cir. Aug. 15, 2016) (en banc)), (citing Monell v.
New York City Dep't of Soc. Servs., 436 U.S. 658,
694 (1978)). Instead, “a local government may be held
liable ‘when implementation of its official policies or
established customs inflicts the constitutional
injury.'” Clouthier v. Cty. of Contra
Costa, 591 F.3d 1232, 1249 (9th Cir. 2010),
overruled on other grounds by Castro, ___ F.3d
___, 2016 WL 4268955, *6, (quoting Monell,
436 U.S. at 708 (Powell, J. concurring)); see also Price
v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (stating that
plaintiffs may “establish municipal liability by
demonstrating that . . . the constitutional tort was the
result of a longstanding practice or custom which constitutes
the standard operating procedure of the local government
entity.”) (internal quotations omitted). Additionally,
under certain circumstances a local government may be held
liable where, “through its omissions the [governmental
entity] is responsible for a constitutional violation
committed by one of its employees. . . .”
Gibson, 290 F.3d at 1186 (citations omitted). In
establishing liability on this theory, the plaintiff must
prove that the governmental entity's deliberate
indifference led to its omission and that the omission caused
the employee to commit the constitutional violation)
overruled on other grounds by Castro, ___ F.3d.
___, 2016 WL 4268955 at *11-*12 (holding that
objective standard is used to establish deliberate
indifference and overruling Gibson to the extent
that it suggested otherwise).
has not established that Defendant Cochise County maintained
a policy, practice or custom that resulted in the
constitutional deprivations of which he claims. Nor has he
established that Cochise County, through its omissions, is
responsible for a constitutional violation committed by one
of its employees. Consequently, judgment is entered in favor
of Defendant Cochise County with regard to Plaintiff's
§ 1983 claim.
Detention and Arrest
Fourth Amendment to the United States Constitution
“protects the right to be free from ‘unreasonable
searches and seizures[.]'” Davis v. United
States, 564 U.S. 229, 231 (2011); see also McKenzie
v. Lamb, 738 F.2d 1005, 1007 (9th Cir. 1984) (the Fourth
Amendment is made applicable to the states through the
Fourteenth Amendment). Nonetheless, the Supreme Court
“has recognized that a law enforcement officer's
reasonable suspicion that a person may be involved in
criminal activity permits the officer to stop the person for
a brief time and take additional steps to investigate
further” without violating the Fourth Amendment.
Hiibel v. Sixth Judicial Dist. Court of Nevada, 542
U.S. 177, 185 (2004); see also Terry v. Ohio, 392
U.S. 1 (1963). Reasonable suspicion requires the officer to
identify “specific and articulable facts which, taken
together with rational inferences from those facts,
reasonably warrant that intrusion.” Terry, 392
U.S. at ...