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Mbegbu v. City of Phoenix

United States District Court, D. Arizona

October 18, 2017

Ngozi Mbegbu, individually as the surviving spouse of decedent Balantine Mbegbu and on behalf of decedent's children, Ogechukwu Amarachukwu Gloria Mbegbu and C.C.E.M. a minor, and as Personal Representative of the Estate of Balantine Mbegbu, Plaintiffs,
v.
City of Phoenix, Matthew Johnson, Celina Gonzales, Joel Zemaitis, William Weber, and John and Jane Doe Spouses, Defendants.

          ORDER

          David G. Campbell, United States District Judge

         This case arises out of the death of Balentine Mbegbu. He died October 6, 2014 during an incident involving several Phoenix police officers. His surviving spouse, Ngozi Mbegbu, brought this action individually, on behalf of decedent's children, and as personal representative of his estate.

         The complaint asserts a state law tort claim for wrongful death and § 1983 claims for excessive force and loss of familial association in violation of the Fourth and Fourteenth Amendments. The tort claim is brought against the City of Phoenix and Officers Matthew Johnson, Celina Gonzales, Joel Zemaitis, and William Weber, and the § 1983 claims are asserted against the individual officers only. Plaintiffs seek compensatory and punitive damages. Doc. 1-1 at 3-14.

         Defendants have filed a motion for summary judgment. Doc. 47. The motion is fully briefed, and neither side requests oral argument. Docs. 52, 56. For reasons stated below, the Court will grant the motion in part and deny it in part.

         I. Background.

         Most of the facts are undisputed, but not all, and certainly not the inferences to be drawn from them. As explained below, the Court must consider the evidence in the light most favorable to Plaintiffs when ruling on Defendants' summary judgment motion. Viewing the evidence in this light, and for purposes of summary judgment, the facts are as follows.

         On the night in question, Mbegbu was at home with his wife Ngozi and her sister. Shortly after 9:00 p.m., Officers Gonzales and Johnson responded to a 911 call from one of Mbegbu's friends who had concerns that he and Ngozi may have been fighting. The officers encountered Ngozi outside her home as she was leaving to pick up her son from basketball practice, and she assured the officers she was okay. She let the officers inside the home and began showing them pictures of her children.

         Mbegbu was sitting on the couch eating some food. He was surprised to see the officers and asked why they were there and if they were going to kill him. He also asked the officers and Ngozi if she had called the police, and they said no. He stood up briefly, but sat back down when the officers told him to, and again asked why they were there. The officers said someone had called about a domestic dispute, but Mbegbu explained nothing had happened and asked the officers to leave.

         Officer Johnson told Mbegbu, who was stammering and speaking loudly, to stop talking and warned him that he should not yell at police officers. Officer Gonzales radioed for back up and Officers Zemaitis and Weber arrived at the scene. Johnson then discussed the situation with the other officers and informed Mbegbu he was under arrest. Mbegbu pulled his arm away when Johnson attempted to handcuff him, and was struck in the face by Johnson during the ensuing arrest.

         Officer Zemaitis tased Mbegbu in the face and chest without warning. After the first tasing, which lasted eleven seconds, Mbegbu exclaimed: “My eye, my eye” and “I can't breathe, I'm dying.” Zemaitis tased Mbegbu a second time for six seconds.

         Officer Weber then threw Mbegbu to the ground with the help of Johnson and Zemaitis. Seeing Mbegbu laying on the floor bleeding, Ngozi shouted: “You guys are killing my husband.” Johnson put his knee on the back of Mbegbu's neck and pressed his thumb behind Mbegbu's ear. Weber knelt on Mbegbu's back and he and Johnson pulled Mbegbu's arms back and handcuffed him.

         Mbegbu slumped over when the officers sat him up. He was foaming at the mouth and did not appear to be breathing. The officers removed the handcuffs and began CPR. Paramedics arrived and took Mbegbu to the hospital, where he later was pronounced dead. Plaintiffs brought this wrongful death and civil rights action one year later.

         II. Summary Judgment Standard.

         A party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the moving party 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). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be “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 evidence of the nonmoving party, however, is to be believed, and all justifiable inferences drawn in that party's favor because “[c]redibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions, not those of a judge[.]” Id. at 255.

         III. § 1983 Excessive Force Claim.

         Plaintiffs allege in count two that the officers used excessive force in arresting Mbegbu in violation of his Fourth Amendment right to be free from unreasonable seizures, and that this use of force caused his death. Doc. 1-1 at 8-10. Defendants contend that the use of force was objectively reasonable, that the officers are entitled to qualified immunity, and that Plaintiffs cannot establish medical causation. Doc. 47 at 9-22. As explained more fully below, the Court will grant summary judgment on the excessive force claim only in favor of Officer Gonzales.

         A. Reasonableness of the Force.

         The Supreme Court provided guidance on the use of force nearly 30 years ago in Graham v. Connor, 490 U.S. 386 (1989). The Court instructed that “[d]etermining whether the force used to effect an arrest is ‘reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396. The importance of those governmental interests is determined by “looking at (1) how severe the crime at issue is, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc).

         More recently, the Supreme Court emphasized that while the Graham factors are important, “there are no per se rules in the Fourth Amendment excessive force context; rather, courts ‘must still slosh their way through the factbound morass of ‘reasonableness.'” Id. (quoting Scott v. Harris, 550 U.S. 372, 383 (2007)). Stated differently, courts should “examine the totality of the circumstances and consider ‘whatever specific factors may be appropriate in a particular case, whether or not listed in Graham.'” Id. (quoting Bryan v. MacPherson, 630 F.3d 805, 824 (9th Cir. 2010)). The Court therefore will begin its analysis by turning first to the Graham factors while keeping in mind that the ultimate determination of reasonableness is a fact-intensive inquiry that must be made by considering the totality of the circumstances.

         1. Quantum of Force.

         Consistent with Graham, the Court will begin by considering the type and amount of force used against Mbegbu by each Defendant. See Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir. 2001).

         a. Officer Gonzales.

         The Court agrees with Defendants that no unreasonable force is attributed to Officer Gonzales. Doc. 47 at 9. It is undisputed that Gonzales only helped Johnson handcuff Mbegbu and then briefly touched his hand to help him up from the ground. Doc. 48 ¶¶ 60, 117; Doc. 53 ¶¶ 28, 39. Plaintiffs do not argue, and no jury reasonably could find, that this conduct was excessive or otherwise in violation of the Fourth Amendment.

         Plaintiffs cite Cunningham v. Gates, 229 F.3d 1271 (9th Cir. 2000), for the proposition that police officers have a duty to intercede when their fellow officers violate the constitutional rights of a suspect. Doc. 52 at 14. “Importantly, however, officers can be held liable for failing to intercede only if they had an opportunity to intercede.” Cunningham, 229 F.3d at 1290. Plaintiffs assert that this is a factual inquiry, but point to no facts or evidence showing that Officer Gonzales had a “realistic opportunity” to intercede and stop the arrest but deliberately refused to do so. Id. Moreover, it is undisputed that Officer Gonzales tried to help Mbegbu up from the ground when she had the chance, and then called paramedics and performed CPR in an effort to save Mbegbu's life. Doc. 48 ¶¶ 117-18; Doc. 53 ¶ 39. The Court will grant summary judgment in favor of Gonzales on the excessive force claim.

         b. Officer Johnson.

         Defendants assert that Officer Johnson's “closed-fist strike” to Mbegbu's head and the pressure point to his ear were used to stop him from kicking the officers and constituted intermediate level force. Doc. 47 at 13-14. But the parties genuinely dispute whether Mbegbu kicked the officers and whether any such movement was intentional or simply a natural reaction to being tased. Doc. 53 ¶ 27; see Doc. 52-2 at 16, 24, 28. Defendants further assert that Johnson put his knee on Mbegbu's neck to keep him from getting up. Doc. 47 at 15. Again, however, the parties dispute whether Mbegbu continued to struggle after he was tased and taken to the ground. Doc. 53 ¶ 27.

         “Closed fist punches, while generally less dangerous than baton strikes, are still capable of inflicting serious bodily injury.” Myles v. Cty. of San Diego, No. 15-cv-1985-BEN, 2017 WL 4169722, at *8 (S.D. Cal. Sept. 20, 2017) (citations omitted). Indeed, Defendants admit that the bleeding and swelling on the left side of Mbegbu's head is consistent with Johnson's punch. Doc. 47 at 15. Construing the evidence in Plaintiffs' favor - as required at the summary judgment stage - the Court finds that the amount of force used by Officer Johnson was significant. See Russell v. City & Cty. of S.F., No. C-12-00929-JCS, 2013 WL 2447865, at *10 (N.D. Cal. June 5, 2013) (finding an officer's punch to be significant, intermediate level force where the plaintiff may have suffered a laceration).

         c. ...


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