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Rizzo v. City of Phoenix

United States District Court, D. Arizona

July 28, 2017

Denny Rizzo, an individual, Plaintiff,
City of Phoenix, a political subdivision of the State of Arizona; Anthony Hardina Badge No. 8076, in his individual capacity as an officer with the City of Phoenix Police Department, Defendants.


          Neil V. Wake Senior United States District Judge.

         Before the Court is Defendants' Motion for Summary Judgment (Doc. 108).


         A motion for summary judgment tests whether the opposing party has sufficient evidence to merit a trial. Summary judgment should be granted if the evidence reveals no genuine dispute about any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A material fact is one that might affect the outcome of the suit under the governing law, and a factual dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The movant has the burden of showing the absence of genuine disputes of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, once the movant shows an absence of evidence to support the nonmoving party's case, the burden shifts to the party resisting the motion. The party opposing summary judgment must then “set forth specific facts showing that there is a genuine issue for trial” and may not rest upon the pleadings. Anderson, 477 U.S. at 256. If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, the court may consider the fact undisputed for purposes of the motion. Fed.R.Civ.P. 56(e)(2). In deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party, must not weigh the evidence or assess its credibility, and must draw all justifiable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 255.

         The Local Rules require that any party filing a motion for summary judgment file a statement, separate from the motion and memorandum of law, that sets forth each material fact on which the party relies in support of the motion. LRCiv. 56.1(a). “Each material fact in the separate statement must be set forth in a separately numbered paragraph and must refer to a specific admissible portion of the record where the fact finds support (for example, affidavit, deposition, discovery response, etc.).” Id. Only material facts should be included in the separate statement of facts; other undisputed facts that provide context may be included in the memorandum of law. Id.

         Any party opposing a motion for summary judgment must file a separate controverting statement of facts that sets forth:

(1) for each paragraph of the moving party's separate statement of facts, a correspondingly numbered paragraph indicating whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific admissible portion of the record supporting the party's position if the fact is disputed; and (2) any additional facts that establish a genuine issue of material fact or otherwise preclude judgment in favor of the moving party. Each additional fact must be set forth in a separately numbered paragraph and must refer to a specific admissible portion of the record where the fact finds support.

         LRCiv 56.1(b). Although the nonmoving party's separate controverting statement of facts may include “additional facts, ” it should not include undisputed facts, such as background about the action or the parties.

         The moving party may file a reply memorandum, but the Local Rules do not authorize filing a separate statement responding to the nonmoving party's controverting statement of facts. See LRCiv 56.1(d). The moving party may include its objections to the nonmoving party's controverting statement of facts in its reply memorandum. LRCiv 7.2(m)(2). The moving party would need to seek and obtain leave to file another separate statement. If such leave were granted, the nonmoving party would be granted opportunity to respond. Therefore, the Court has not considered Defendants' Response/Objections to Plaintiff's Separate Statement of Facts in Opposition to Defendant's Motion for Summary Judgment (Doc. 118), which is not authorized by the Local Rules and for which leave of court was not sought. It is stricken from the record.

         Further, in response to a motion for summary judgment, “any objection in the party's response to the separate statement of facts must be stated summarily without argument.” LRCiv. 7.2(m). Therefore, the argument included in Plaintiff's Separate Statement of Facts and Response to Defendants' Statement of Facts (Doc. 112) has not been considered.


         Shortly before midnight on September 11, 2013, Michael Collins was stabbed on the grounds of the Missouri Crossing Apartment Complex in Phoenix, Arizona. Two residents of the complex called 911 and reported a man lying on the sidewalk, bleeding profusely, and throwing gravel at a nearby car. The Phoenix Police Department responded, and Officer Joel Kaminsky spoke with Collins. Kaminsky recalled hearing Collins say he was HIV-positive and had been stabbed by someone named “Frankie.” Collins was transported to St. Joseph's Hospital, and a police officer arrived at the hospital before the ambulance. The officer asked Collins his name several times before he responded, “Michael.” The officer then asked Collins who had stabbed him. The officer believed that Collins responded, “Frankie.” Collins was unable to answer any further questions. Collins subsequently underwent amputation of his left arm, suffered multiple strokes, and died on September 16, 2013.

         When officers arrived at the apartment complex, there was blood on the ground around the victim, on the sidewalk, on a stairway between the ground floor and the second floor, on the second-floor landing in front of the doors to apartments A-10, A-11, and A-12, and on the door to apartment A-11. Police interviewed people who were standing near the victim, those who had called 911, and residents who were home and answered knocks on their doors.

         An officer spoke with the resident of apartment A-10 and reported finding no blood inside A-10. When no one responded to a knock on the door of apartment A-11, a key to A-11 was obtained from a maintenance person for the complex, who said that the occupant of A-11 had been evicted earlier in the day, and he believed the apartment was empty. When the door to apartment A-11 was opened, Plaintiff Denny Rizzo emerged and said he had not answered the door because he thought the officers were there to evict him. Four officers checked the apartment and found no one else or any signs of an altercation in the apartment or on Rizzo. They told Rizzo to go back inside the apartment. After police learned that Rizzo had an outstanding misdemeanor arrest warrant from the City of Glendale, he was arrested on the misdemeanor warrant and taken to police headquarters.

         At approximately 4:30 a.m. on September 12, 2013, Detective Jeremy Herrera interviewed the residents of apartment A-7 from which a call to 911 had been made. They reported hearing the victim say he was HIV-positive and “Frank stabbed me.” One of them said he believed the victim hung around with the resident of apartment A-11 who went by the name of “Frankie.” Later in the morning, the other resident of A-7 identified Rizzo from a photo lineup as the resident of A-11 and said Rizzo had introduced himself as “Frankie.”

         At approximately 5:30 a.m., Defendant Detective Anthony Hardina was informed about the stabbing incident and assigned as the case agent. Hardina was told that the victim had been taken to the hospital and said that a man named “Frankie” had stabbed him. He was also told that two witnesses stated they knew Rizzo as “Frank” or “Frankie.” At approximately 7:00 a.m., Hardina began interviewing Rizzo. Hardina reported that Rizzo said he usually goes by the name Denny and had never been called “Frank” or “Frankie.” Rizzo said he had moved into his apartment in June 2013, was served eviction papers, and was waiting for the constable to return to evict him out of his apartment. He said he had been inside his apartment the whole night. Rizzo denied knowing the victim or any of the witnesses and denied getting into any argument with the victim. Rizzo repeatedly denied that he had ever been known as “Frank” or “Frankie.” He said he would be willing to take a polygraph test. Hardina contacted the polygrapher, but he was not available.

         In the early morning of September 12, 2013, Detectives Jeremy Rose and Jason Robidoux were assigned as the crime scene investigators. Robidoux reported that he and Rose arrived on the scene at approximately 7:30 a.m. and did a walk through. His initial observations indicated that the stabbing likely occurred at the apartment complex playground. He observed a blood trail along a sidewalk and up a stairwell to a shared landing on the second floor. Robidoux reported that it was determined that he would serve the search warrant on apartment A-11 and process apartment G-1, which appeared to be vacant with an open door and reportedly was used by the victim.

         At 8:10 a.m., Robidoux served the search warrant on A-11. He was accompanied by a crime scene specialist. Robidoux reported finding two smudges of a bloodlike substance, one approximately one centimeter in diameter, the other smaller, approximately three feet above the floor on different walls. He also reported finding a larger smear of another deposit of bloodlike substance approximately four feet above the floor and approximately four centimeters in diameter. He also reported finding a deposit of a red substance less than five millimeters in diameter on a bathroom wall, a drop in the bathtub, a deposit on the edge of an air mattress in a bedroom, a deposit less than five millimeters in diameter on a vertical blind slat on a bedroom window, and a deposit approximately two millimeters by one centimeter in the shower of the second bathroom. Robidoux reported that near the air mattress was a sleeveless undershirt with a red bloodlike substance present in various places on the shirt.

         Also at approximately 8:10 a.m., the complex's maintenance supervisor showed Rose a knife in the grass, which was wet after the sprinkler system had run and had no obvious sign of biological material. The knife was a ...

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