United States District Court, D. Arizona
V. Wake Senior United States District Judge.
the Court is Defendants' Motion for Summary Judgment
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).
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.
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.
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.
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
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.
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.
UNDISPUTED MATERIAL FACTS
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.
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.
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.
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
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
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
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.
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 ...