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Cleveland v. County of Cochise

United States District Court, D. Arizona

September 12, 2016

Walter L Cleveland, Jr., Plaintiff,
County of Cochise, et. al., Defendants.


          Bernardo P. Velasco United States Magistrate Judge

         Plaintiff 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. at 1-2).

         In 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).

         On June 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.[1] (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).

         The 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 Procedure.[2]

         I. Findings of Fact

         To the 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.

         At all 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 residence.[3]

         At 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 bonfire.

         At 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.

         Deputy 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.

         Deputy 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.[4] 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.[5]

         Eventually, Deputy Callahan-Enlgish, who at that time was acting as a senior night officer[6], was summoned to the scene by Deputy Cronin. Upon Deputy Callahan-English's arrival, Plaintiff was standing outside the fence.[7] 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.[8] 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.[9]

         Plaintiff's 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.[10] 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.

         Deputy 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.

         While 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[11], 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.[12] 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.

         Based 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.

         Deputy 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[13] 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.

         Deputy Callahan-English understood Plaintiff saying “Okay” as his “acquiescence” to her offer to look after the dogs.[14] She went on to testify that Plaintiff never told her not to check on the dogs.

         Deputy Callahan-English and the paramedics, who she requested accompany her[15], 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[16] 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.

         Deputy 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.

         While 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.

         At one 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.

         Willcox 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.[17] During this time, Plaintiff bit at Deputy Cronin's thigh.[18] 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 attention.

         The 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 off[19]and that he should stay at the hospital for treatment to achieve a safe level of potassium.

         Deputy 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.[20] At just before 4:00 a.m., after citing and releasing Plaintiff, Deputy Callahan- English left Plaintiff in the hospital's care.

         Later 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.

         The 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.

         On 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.[21] 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.

         Additionally, 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 weapons.

         In 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.

         II. Conclusions of Law

         To the extent that any of the Findings of Fact contain or include conclusions of law, they are incorporated by reference herein.

         A. Jurisdiction

         Plaintiff 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).

         B. Plaintiff's claims pursuant to 42 U.S.C. § 1983

         Under § 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[22] 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. 1994)).

         Plaintiff 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.).

         1. Plaintiff's claims against Defendant Cochise County

         A local 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).

         Plaintiff 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.

         2. Detention and Arrest

         The 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 ...

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