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Martinez v. City of Mesa

United States District Court, D. Arizona

March 2, 2018

Frank Garza Martinez, III, Plaintiff,
City of Mesa, et al., Defendants.

          ORDER (UNDER SEAL) [1]

          Douglas L. Rayes United States District Judge.

         Plaintiff Frank Garza Martinez III, who is currently confined in Arizona State Prison Complex-Lewis, brought this civil rights case pursuant to 42 U.S.C. § 1983. (Doc. 1.) Pending before the Court are Defendant Burkett's Motion for Summary Judgment (Doc. 37) and Defendants Tapia and Hermes' Motion for Summary Judgment (Doc. 40). Plaintiff opposes both Motions.[2] (Doc. 48.)

         The Court will grant in part and deny in part the Motions.

         I. Background

         On screening of Plaintiff's Complaint under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated claims of excessive force and unreasonable search in Counts II and III related to an alleged second body cavity search and directed Defendants Mesa Police Department (“MPD”) Detectives Tapia and Hermes and Nurse Practitioner Burkett to answer.[3] (Doc. 5.) The Court dismissed the remaining claims and Defendants. (Id.)

         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

         Defendants filed a Joint Separate Statement of Facts in support of their respective Motions for Summary Judgment. (Doc. 38.) In his Responses to Defendants' Motions, Plaintiff asserts that “at this point in time the Plaintiff (nonmovant) does not have, and cannot present the facts and law necessary to justify [his] opposition.” (Doc. 47 at 2; Doc. 48 at 2.) In Affidavits attached to his Responses, Plaintiff asserts that he was trying to figure out how to depose a witness to the body cavity search, Nurse Heidi Panczner, whom Plaintiff avers will corroborate his version of events. (Docs. 47 and 48 at 5-6.) Plaintiff provides no further information about his attempt to depose Panczner but the Court notes that Plaintiff filed a motion to depose Panczner (Doc. 50), which the Magistrate Judge denied as untimely because it was filed three months after the close of discovery and nearly two weeks after Plaintiff filed his Responses to the Motions for Summary Judgment. (Doc. 55.)

         Because Plaintiff did not file a separate statement of facts or controverting statement of facts, the Court will, in its summary judgment analysis, construe the verified Complaint (Doc. 1) as an affidavit in opposition to the summary judgment motions. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (allegations in a pro se plaintiff's verified pleadings must be considered as evidence in opposition to summary judgment); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (verified complaint may be used as an affidavit opposing summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence).

         Because the parties tell significantly different versions of what happened to Plaintiff, the Court will set forth each party's version separately.

         A. Plaintiff's Facts

         Plaintiff asserts in his Complaint that on April 22, 2015, Defendants MPD Detectives Tapia and Hermes took Plaintiff to Desert Banner Hospital and told Plaintiff they had a search warrant to allow medical personnel to conduct a body cavity search. (Doc. 1 at 6, 8.) Tapia and Hermes were in the exam room along with Defendant Nurse Practitioner Burkett and two other female medical staff. (Id. at 6.) Plaintiff initially refused to cooperate with the search but Burkett told him to “either let me check real quick or I'm gonna get the biggest guy in here and he's gonna shove his whole hand up your [expletives omitted]!” (Id. at 8.) Plaintiff told the Detectives that she could not talk to him that way and that her statement constituted sexual assault, but the detectives shrugged and one said, “well then you better start complying.” (Id.) Plaintiff was scared but submitted to the exam and nothing was found. (Id.) Burkett and Hermes then left the room.

         Ten to fifteen minutes later, Burkett and Hermes returned with a male medical staff member and told Plaintiff they needed to check again. (Id. at 6, 8.) Plaintiff said they could “if they got another warrant.” (Id.) After arguing with Plaintiff for about ten minutes, the male hospital employee “jumped” on Plaintiff and pinned him down, while Burkett “attempted to shove her entire hand into Plaintiff's rectal cavity” as Plaintiff screamed and begged her to stop and “beg[ged] Det. Tapia and medical personnel to stop [and] that she was hurting him.” (Id.) Plaintiff asserts that “she found contraband but the entire process was in violation of Plaintiff's civil rights.” (Id. at 6.)

         Plaintiff states that he suffered “serious physical trauma that lasted several months” and he “is still suffering from severe mental trauma.”[4] (Id. at 8.)

         B. Defendants' Facts

         In April 2015, Plaintiff and his brother sold methamphetamine and heroin to an undercover police officer. (Doc. 38 (DJSSOF) ¶ 1.) On April 20, 2015, Judge Alysson Abe granted a search warrant submitted by the MPD, finding that probable cause existed to conclude that Plaintiff and his brother had contraband on their persons or in a residence at 1245 South Lesueur, Mesa, Arizona. (Id. ¶ 2.) The MPD executed the search warrant on April 22, 2015. (Id. ¶ 4.) While executing the search warrant, MPD found in a bathroom an empty condom wrapper, part of a torn condom, and folded parchment paper containing a dark residue in the toilet bowl. (Id. ¶ 6.) These items led the MPD to believe that someone had wrapped an illicit substance in a condom and inserted it into a body cavity either orally or through the anus. (Id.) Based on that belief, the MPD sought and obtained an amended search warrant to seize any contraband contained inside the bodies of Plaintiff or his brother including “illicit substances and paraphernalia. Cavity search to be conducted by a medical professional at a medical facility.” (Id. ¶ 8.) At his deposition, Plaintiff admitted that when the MPD arrived at the residence, he hid heroin in his anal cavity by inserting the heroin into a condom. (Id. ¶ 5; Doc. 38-2 at 32 (Pl. Dep. June 27, 2017).)

         Plaintiff was taken to Banner Desert Medical Center in Mesa, Arizona, where he was admitted to the Emergency Department at 3:29 p.m. (Doc. 38 ¶¶ 9-10.) An x-ray of Plaintiff's abdomen showed a “4 cm oval radiolucent focus overlying the rectum, possibly representing the reported foreign body.” (Id. ¶ 11.) Based on the x-ray result, Dr. Scott Schleifer, the admitting physician, asked Defendant Burkett to perform a digital anal exam to retrieve the foreign body. (Id. ¶ 12.) Burkett understood that the foreign body possibly contained an illicit substance and that MPD had obtained a search warrant for the procedure. (Id.)

         Burkett entered the exam room where Plaintiff was being held, introduced herself to Plaintiff, and explained that she was there to perform an anal exam and remove the foreign body. (Id. ¶ 13.) Plaintiff initially refused to consent to the anal exam, but when Burkett explained that a foreign body filled with illicit substances in the anus presents a variety of risks including an inadvertent overdose if the foreign body ruptured, Plaintiff consented to the exam and retrieval by Burkett. (Id. ¶¶ 13-14.) Burkett then put gloves on and Plaintiff laid on his side with his knees up to his chest, “one of the common positions patients adopt for consensual digital anal exams.” (Id. ¶ 15.) Burkett used “substantial lubricant and began a gradual exploratory penetration of Plaintiff's anus- both of which were to minimize the discomfort associated with the exam.” (Id.)

         A few minutes into the exam, Burkett felt the foreign body in Plaintiff's anus but realized she could not retrieve it because it was lodged too far up his anus. (Id. ¶ 18.) Burkett states in her Declaration that she withdrew her hand for a few moments and asked Plaintiff if she could make another attempt to retrieve the foreign body, but he refused. (Doc. 38-2 at 53 ¶ 13.) According to Defendants, “[a]t no point did a second nurse or Banner Desert employee enter the examination room where Ms. Burkett was performing the exam and aid Ms. Burkett in conducting the exam.” (Doc. 38 ¶ 20.) ...

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