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Fraire v. Arpaio

United States District Court, D. Arizona

February 6, 2017

Jose Tomas Fraire, Plaintiff,
v.
Joseph M. Arpaio, et al., Defendants.

          ORDER

          Honorable G. Murray Snow United States District Judge

         Plaintiff Jose Tomas Fraire, who is represented by counsel, brought this civil rights action pursuant to 42 U.S.C. § 1983. Defendants Maricopa County Sheriff's Office (MCSO) Detention Officers McKinney, Lopez, Poor, and Damato (collectively, “Defendants”) move for summary judgment. (Doc. 62). Plaintiff opposes the Motion. (Doc. 69.)

         The Court will grant the Motion for Summary Judgment in part and deny it in part.

         I. Background

         In his Third Amended Complaint, Plaintiff claims that, while he was confined at the Maricopa County Fourth Avenue Jail, Defendants used excessive force against him in violation of his Fourth and/or Fourteenth Amendment rights. (Doc. 37 ¶ 22.)

         Plaintiff's claims stem from an incident on October 22, 2014, in which he alleges Defendants attempted to relocate him to a different cell and, when they arrived at that cell, insisted he would have to occupy the top bunk, even though Plaintiff explained to them that he has a lower-bunk order for medical reasons. (Id. ¶¶ 7-9.) Plaintiff refused to enter the cell because he did not want to risk injury from having to sleep on a top bunk, and Defendants allegedly ignored Plaintiff's explanation and told him they would penalize him by taking him to “the hole.” (Id. ¶¶ 10-12.) Defendant McKinney then placed Plaintiff in handcuffs and began to escort him away. (Id. ¶ 13.)[1] Plaintiff alleges that as McKinney walked beside Plaintiff, he “forcefully threw Plaintiff to the floor” and the other Defendants “jumped on top of Plaintiff and forcefully accosted him.” (Id. ¶ 14.) According to his allegations, Plaintiff did not resist being handcuffed and escorted away, and he did not do anything to indicate he would become combative or endanger anyone prior to the takedown. (Id. ¶ 15.) Plaintiff seeks damages for physical injuries and impairments, pain and suffering, and mental and emotional anguish that he alleges he suffered as a result of this incident. (Id. ¶ 22.)

         II. Summary Judgment Standard

         A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

         If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1).

         At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. In its analysis, the court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. The court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3).

         III. Facts[2]

         The parties present conflicting versions of the facts; as stated, for purposes of summary judgement, the Court must take Plaintiff's version of events as true wherever there is a genuine factual dispute, and it must draw all reasonable inferences in Plaintiff's favor. See Anderson, 477 U.S. at 255.

         At the relevant time in this action, Plaintiff was an inmate of the Maricopa County Fourth Avenue Jail (hereinafter “the Jail”). (Doc. 63 (Defs.' Statement of Facts) ¶ 1; Doc. 37 ¶ 5.) Inmates at the Jail are regularly moved to different cells in order to break up racial tensions and for other issues such as gang affiliations. (Doc. 63 ¶ 2; Doc. 63-1 at 9:11-22 (Poor Dep.).)[3], [4] On October 22, 2014, Defendant Poor and other detention officers randomly moved Plaintiff to a new cell. (Doc. 63 ¶ 3; Doc. 63-1 at 9:11.) Upon arriving at the new cell, Plaintiff refused the detention officers'[5] orders to enter it because he had a lower bunk pass and the cell already had an occupant on the lower bunk. (Doc. 63 ¶¶ 4-6; Doc. 70 (Pl. Statement of Facts) ¶¶ 2, 12; Doc. 63-1 at 45-47 (Pl. Dep.) 52:22-53:7, 54:17-19, 58:1-25.)

         Video footage of this incident shows Plaintiff becoming visibly agitated. He drops his bag of belongings, waves his arms in front of the cell door, places his head in his hands, turns away from the cell, again waves his arms, and appears to engage in a heated verbal exchange with the two officers closest to the cell, although there is no audio on the video provided to the Court. (DVD, cameras 1 and 2, 8:26:04-16.) According to Defendants' facts, Defendants told Plaintiff he would be taken to security segregation for refusing to follow orders; Defendant Poor then handcuffed Plaintiff's wrists in front of Plaintiff, placed his own hands in an “escort hold” on Plaintiff's right wrist and arm and began escorting him away from the cell. (Doc. 63 ¶¶ 8, 10-11; Doc. 70 ¶ 3; Doc. 63-1 at 11:10-11 (Poor Dep.).) Plaintiff testifies, and the video evidence appears to confirm, that Plaintiff did not physically resist being handcuffed or led away. (Doc. 70 ¶ 3; DVD, camera 2 at 8:26:10-26.) A detention officer who later handled Plaintiff's administrative grievance of the incident states, however, that Plaintiff told him he (Plaintiff) “was aggressive and agitated” with the officer escorting him. (Doc. 63-1 at 6 (Mikel Aff.).)

         Plaintiff testifies, and the video evidence shows, that, after escorting Plaintiff several yards from the cell, Poor (who can be seen walking to the right and slightly to the back of Plaintiff) suddenly places his left foot in front of Plaintiff's right foot and yanks down on Plaintiff's right arm, throwing Plaintiff down to the floor. (Doc. 70 ¶ 4, See DVD, cameras 1 and 2 at 8:26:29.) According to Poor, he did so because he could feel Plaintiff tense up his upper and lower arm and pull it in a “fast motion” forward and away from Poor. (Doc. 63 ¶ 12, Doc. 63-1 at 11:11-13, 19-20.) Plaintiff testifies that he did not tense his muscles, pull away, or do anything else to provoke Poor's sudden use of force against him. (Doc. 70 ¶ 5, Doc. 70-2 at 5 (Pl. Dep.) 74:11-16, 75:15-19.) It is not clear from the video evidence that Plaintiff made any of the movements Poor describes.

         After Poor took Plaintiff down, the video shows four other officers walking forward and quickly surrounding Plaintiff on the floor. (DVD, cameras 1, 4 at 8:26:33.) One officer grabs Plaintiff's legs, which appear to have flown up as Plaintiff rolled onto his back on the floor, two other officers assist in restraining Plaintiff on the floor, and a fourth officer stands or walks around behind the others, turning at one point to motion for the inmate in the doorway of the still-open cell to get back inside. (Id., cameras 1, 2, 3, 4 at 8:26:33-8:27:00.) Because the officers kneeling on the floor completely surround Plaintiff and the cameras show only their backs, it is impossible to see the degree to which Plaintiff is moving or struggling or what the officers are doing with their hands and arms as they continue to huddle around him. During this time, additional officers arrive on the scene, and two of them retrieve ...


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