United States District Court, D. Arizona
HONORABLE DAVID C. BURY UNITED SLATED DISTRICT JUDGE
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).
AND PROCEDURAL BACKGROUND
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.
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.
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).
in the First Amended Complaint:
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 ...