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Brubaker v. City of Tucson

United States District Court, D. Arizona

April 16, 2018

Richard Brubaker, et al., Plaintiffs,
City of Tucson, et al., Defendants.



         This matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1)(B) and the local rules of practice of this Court for a Report and Recommendation (R&R) (Doc. 103) on Cross Motions for Summary Judgment (Docs. 84, 86). Before the Court is the Magistrate Judge's Report and Recommendation (Doc. 103). The Magistrate Judge recommends to the Court that relief may be granted, as follows: 1) grant in part and deny in part the City Defendants' Motion for Summary Judgment and (2) grant in full Defendant Pima County's Motion for Summary Judgment. The City Defendants filed Objections (Doc. 106), Supplement Authority (Doc. 109), and the Plaintiffs filed a Response to the Objections (Doc. 110).


         On November 2, 2010, the City Defendants removed this action originally filed in the Superior Court of Arizona for Pima County on September 30, 2010. Because Plaintiffs' Complaint claimed deprivation of constitutional rights as well as state tort claims of negligence, gross negligence, assault, battery, and intentional infliction of emotional distress, this Court had federal question jurisdiction under 28 U.S.C. §1331 of all claims for alleged violations of constitutional rights, 42 U.S.C. §1983, et seq. Plaintiffs are private parties, while the Defendants are the City of Tucson and the Pima County Board of Supervisors. The Complaint is based on police activity in September 2009, specifically police allegedly entered a residence by mistake using a search warrant mistakenly specifying that there was probable cause that drugs would be inside the premises and entered the home again the next day without a search warrant.

         On December 15, 2010, the Court granted a Motion to Stay pending the outcome of criminal charges related to the events at issue in this action. On April 29, 2016, the Stay was lifted and the action again became viable. (The charges in the underlying Tucson City Court Case CR13025792 were resolved on November 17, 2015.) On May 16, 2016, Plaintiffs filed an Amended Complaint (Doc. 52). A Rule 16 Scheduling Conference was held and a case management schedule was entered by the Court. During this time there were reports of settlement talks and discussions, including a referral to a Magistrate Judge to preside over a settlement conference. On May 1, 2017, the City Defendants filed a dispositive motion, as did the Pima County Defendants. Without the need for oral argument, the Magistrate Judge issued a Report and Recommendation on January 18, 2018. On February 12, 2018, the City Defendants filed Objections to the Report and Recommendation. On February 22, 2018, the City Defendants filed Supplemental Authority and on February 26, 2018, the Pima County Defendants filed a Response to the Objections.


         When objection is made to the findings and recommendation of a magistrate judge, the district court must conduct a de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).


         As pled in the First Amended Complaint[1]:

4. On or about September 30, 2009 Officer Pelton with the assistance of Sgt. Woolridge and other unknown officers obtained a search warrant from Judge Sharon Douglas of the Pima County Superior Court without probable cause through the means of mis-stating evidence and excluding relevant information known to them that if disclosed would have likely resulted in the denial of the requested warrant.
5. Sgt. Woolridge was the lead officer at the service of the warrant on September 30, 2009. After entering the home Sgt. Woolridge and the other officers determined that there were no “drugs” present at the premises as specified in the search warrant and were therefore, required to leave the premises. Instead Sgt. Woolridge or other officers invited a City of Tucson building inspector into the premises. That invitation to enter and the subsequent entry without a warrant or permission of Mr. Brubaker violated Sec. 16-42 and Sec. 16-44 of the Neighborhood preservation Ordinance of the City of Tucson and the Fourth Amendment of the United States Constitution.
7. The Tucson City Police Officers and Animal Control Officers and building inspector returned the next day October 1, 2009 and entered once again the Brubaker residence without permission or a search warrant.
8. The Pima County Animal Control Officers knew or should have known that they could not lawfully enter the Brubaker residence without a search warrant.
9. The Defendant Pima County is responsible for their trespasses pursuant to respondent ...

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