United States District Court, D. Arizona
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,
City of Phoenix, Matthew Johnson, Celina Gonzales, Joel Zemaitis, William Weber, and John and Jane Doe Spouses, Defendants.
G. Campbell, United States District Judge
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
Summary Judgment Standard.
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.
§ 1983 Excessive Force Claim.
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.
Reasonableness of the Force.
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)
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
Quantum of Force.
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).
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.
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.
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.
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).