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Rivera v. Town of Patagonia

United States District Court, D. Arizona

July 5, 2018

April Henrietta Rivera, Plaintiff,
The Town of Patagonia, et al., Defendants.


          Cindy K. Jorgenson United States District Judge

         Pending before the Court are the Motion for Partial Summary Judgment (Doc. 56) filed by Plaintiff April Henrietta Rivera (“Rivera”) and the Motion for Summary Judgment (Doc. 53) filed by Defendants Town of Patagonia, Marshal Joseph A. Patterson (“Patterson”), and Deputy Marshal Ronald Davis (“Davis”) (collectively, “Defendants”). Also pending before the Court are Rivera's Motion in Limine (Doc. 56) and Motion to Strike (Doc. 59).

         The parties have requested this matter be set for oral argument. However, the issues are fully presented in the briefs and the Court finds it would not be assisted by oral argument. The Court declines to schedule this matter for oral argument. LRCiv 7.2(f).

         Summary judgment will be granted in favor of Defendants and against Plaintiff for the reasons stated herein.

         I. Factual and Procedural Background

         On March 15, 2014, Plaintiff April Henrietta Rivera ("Rivera") lived in a mobile home with her ex-then husband Ricky Rivera (“R. Rivera”) at 289 Duquesne Space #4 (“Duquesne residence”) in Patagonia, Arizona. The mobile home was owned by Tony Valenzuela. Rivera may have also owned another mobile home at 289 Duquesne Space #2, but she continued to reside at Space #4 when she separated from her husband. The parties dispute whether Rivera was a tenant at that location as recognized under the Arizona Residential Landlord Tenant Act.

         At approximately 9:45 p.m., Davis responded to the Duquesne residence for a reported domestic disturbance.[1] Rivera was seated on the ground and was crying. R. Rivera, who had blood on his face from a wound above his right eyebrow, was seated on the porch. Davis approached R. Rivera, had him stand up, and placed him in handcuffs for the protection of both Davis and R. Rivera.

         Davis went to speak to Rivera, but she was crying uncontrollably, being consoled by two other females. These other females did not witness the incident.

         Davis returned to R. Rivera, who stated that he had been hit in the head with a bottle. Davis took photographs of the injury. R. Rivera was then attended to by EMTs. R. Rivera stated that he had thrown Rivera's clothes out of the trailer. R. Rivera invoked his rights and Davis did not ask him anything else, other than to get his consent to take pictures inside the residence. R. Rivera remained handcuffed throughout this process, and the handcuffs were only removed once Davis finished photographing the scene.

         Davis made the determination to arrest Rivera for disorderly conduct - fighting.

         Davis returned to Rivera and asked the EMTs if they would be transporting Rivera; the EMTs advised Davis that Rivera had refused medical transport. Davis advised Rivera of her Miranda rights, but did not get a verbal acknowledgment of those rights. Davis advised Rivera that she was being arrested for fighting and would be transported to the Marshal's Office. Rivera waived her Miranda rights. R. Rivera retrieved a pair of jeans and some shoes, which Rivera put on.

         One of the EMTs told Davis that Rivera had a history of being violent when transported, and had tried to kick out the window of a police vehicle.[2]

         At the Marshal's Office, Rivera stated that a disagreement had ensued when R. Rivera asked to speak to her. She stated that she had consumed two beers that afternoon/evening. Rivera did not want to talk to R. Rivera, so she turned up the volume on the TV. R. Rivera tried to grab the remote from her, and she resisted. Rivera stated that R. Rivera then put her in a choke hold, and she bit him to get him to let her go. He sat down, and she hit him in the head with a beer bottle. R. Rivera then started throwing Rivera's things out of the residence. Rivera stated she attempted to go to bed, but R. Rivera attacked her again (throwing her around), so she grabbed his hair, and he threw her out of the Duquesne residence.

         Davis did not observe any redness around Rivera's neck, but Rivera did have scrapes on her elbow, blood on her shirt and her shirt was ripped in the back. When Davis asked Rivera what injuries she had, Rivera stated she had a broken rib, a scratched eye, contusions and abrasions all over her body and her legs. Border Patrol Agent Chamberlain took photographs of Rivera's injuries.

         Rivera refused to provide information during the booking process. Rivera denies that she was uncooperative and states that her traumatic experience as a domestic violence victim may have contributed to what was perceived by Defendants as a refusal to cooperate. Because a medical clearance could not be accomplished due to Rivera's refusal to answer questions, Davis asked for guidance from the Santa Cruz County Detention Facility (“SCCDF”); Davis was advised by the nurse at the SCCDF to take Rivera to the jail, which he did. Rivera continued to refuse to answer questions at the SCCDF. Rivera also refused to comply with requests and engaged in other non-compliant conduct (e.g., going limp, spitting or slobbering).[3]

         Rivera asserts the charges Rivera received from the events of March 15, 2014 were later dismissed, but does not provide a supporting citation to the record.

         On April 1, 2014 Rivera obtained an order of protection against R. Rivera because of the events of March 15, 2014. The order of protection prohibited R. Rivera from having contact with Rivera and from going to her residence or place of employment. The order of protection was served on R. Rivera on April 2, 2014 by Davis.

         Later on April 2, 2014, Rivera asserts she went to the apartment building to show an apartment and discovered R. Rivera.[4] Defendants assert R. Rivera was there working on a vacant apartment that would not be ready to rent for several weeks. Rivera asserts R. Rivera's presence was in violation of the protective order. Rivera asserts she was at her place of work and had a valid order of protection that prevented R. Rivera from being at her place of work.

         R. Rivera went to the Marshal's Office to report Rivera's attempt to contact him. R. Rivera also requested that he be accompanied to the trailers listed on the restraining order (the one where he and Rivera lived and the one they were fixing up) for a one-time opportunity to retrieve his personal items and tools he needed for work, as permitted in the restraining order. Defendants assert Davis confirmed the terms of release and the order of protection from the court and prosecutor. Rivera asserts Davis reported this information to Defendant Marshal Joe Patterson (“Patterson”), who decided that Rivera's contact with R. Rivera violated the conditions of release from the previous domestic violence charges.

         Rivera went to the Marshal's Office about 30 minutes after R. Rivera and demanded that R. Rivera be arrested for violating the conditions of the order of protection. Defendants assert Rivera argued with Davis and then left in an irate and belligerent manner.[5] Rivera denies that she was irate or belligerent.

         Patterson and Deputy Marshal John York “(York”) met R. Rivera at the trailers. R. Rivera told Patterson that Rivera was using the court process to intentionally harass or intimidate. Davis then arrived at the trailers and informed Patterson that R. Rivera could have a one time access to the location to retrieve items that belonged to him.

         Patterson learned that Rivera was not leasing the Duquesne residence. Valenzuela told Patterson (over the phone) that the space was rented to Thomas Rivera (“T. Rivera”), R. Rivera's father. Valenzuela advised Patterson that he would like Rivera removed from the residence and that the rental contract or verbal agreement was voluntarily terminated as R. Rivera had been served an order of protection after a fight.

         R. Rivera began gathering his items. Rivera approached but was asked to step away; she refused. Defendants asserts Rivera continued to walk around and speak to R. Rivera, refusing directives by Patterson.[6] Rivera was then detained in the back of York's vehicle while R. Rivera retrieved his belongings. Rivera was cited with interfering with judicial proceedings due to her failure to abide by the conditions of release. Rivera admitted at her deposition that she knew that, as a condition of her release, she was not to have contact with R. Rivera. Rivera asserts, however, that her actions were not a violation of her conditions of release. Rivera asserts that, prior to her being charged, the only investigation conducted by Defendant Patterson was to speak with R. Rivera. Defendants assert additional investigation was conducted, including talking to Rivera, witnessing Rivera attempt to initiate contact with R. Rivera after being ordered multiple time to cease doing so and other observations, and contacting the court. Rivera asserts this charge was later dismissed, but does not cite to the record in support of this assertion.

         Patterson was provided with a hand-written paper from T. Rivera asking that Rivera be removed from the residence. Patterson provided the document to Rivera and advised her she was being asked to leave the residence. Rivera refused to answer and became upset she was being asked to leave.

         Sometime prior to April 19, 2014, Patterson composed a letter on behalf of Valenzuela requesting that Rivera vacate the Duquesne residence. Patterson delivered that letter to Rivera on April 19, 2014. The parties dispute whether Patterson threatened Rivera with arrest if she failed to leave immediately. Patterson was not in possession of a court order or valid eviction notice when he told Rivera that she was committing a criminal trespass. Defendants assert that, because the space was owned by Valenzuela, rented by T. Rivera, and Rivera was told by T. Rivera she was no longer welcome on the premises, and Rivera had no rental agreement and did not pay rent to live at the space, Rivera was not a tenant with legal rights at the Duquesne residence. Patterson left the Duquesne residence.

         After reviewing the letter, Rivera called the Santa Cruz County Sheriff's Office (“SCCSO”) requesting assistance; she did not want the Marshal's Office to respond. The SCCSO dispatcher advised Patterson that Rivera was tying up the 911 line without providing any information to indicate an emergency. Patterson and Davis responded. Rivera would not come to the door; Patterson and Davis left. Rivera asserts she called 911 because Patterson was trying to illegally force her from her home and threatening to arrest her for trespassing if she did not leave.

         Rivera contacted the SCCSO office and requested assistance. Defendants assert Patterson learned Rivera was again tying up the 911 line. Rivera denies she was tying up the 911 line. Patterson, Davis, SCCSO Deputy Alejandro Gonzales (“Gonzales”), and Volunteer Toni Hansen returned to the Duquesne residence. Gonzales attempted to speak with Rivera. Patterson learned Rivera was still on the 911 line. Rivera terminated the call and was then advised she was under arrest for the abuse of the 911 emergency line. Patterson cited Rivera for a violation of A.R.S. §13-2915(A)(2), which governs party line violations; Patterson stated at his deposition that he was not familiar with the specifics of that statute and that he did not believe that she was interrupting somebody on a party line to make a call. Patterson wrote on the citation “preventing use of a phone in an emergency.” (Rivera SOF, Ex 1, page 95). Patterson requested Rivera come out of the residence and sign the summons and complaint. Rivera refused to return outside. Patterson was informed that Rivera was on the non-emergency line and was no longer tying up the 911 emergency system.

         Patterson checked the plate of a vehicle parked in front of the Duquesne residence. The registration came back as expired, and not as registered to the Duquesne residence.[7]Patterson called to have the vehicle towed.[8] Rivera left the residence, got into the car, and began to back out. Patterson told Rivera to stop and she refused. Defendants assert Patterson stood in the road and Rivera drove towards him; Patterson had to move out of the road to avoid being hit; Rivera denies these assertions. Rivera drove a short distance and pulled into the driveway at 289 Duquesne Space #2.

         After Rivera exited her vehicle, she was arrested by Patterson for driving under the influence and was transported to the Marshal's Office. Patterson based the arrest for driving under the influence on his belief that Rivera was operating her vehicle while under the influence of marijuana. Specifically, Patterson's report indicates that Rivera's observed actions were not reasonable, she had visible signs of impairment (confused speech, watery bloodshot eyes, disheveled and dirty clothing), she wore limited clothing, she was running around barefoot, she had a strong odor of burned marijuana coming from the residence and her person, and she had answered the door with paraphernalia in her hand. Patterson testified at his deposition that the smell of marijuana itself is not sufficient probable cause to arrest someone for DUI. No. field sobriety tests were performed, nor was an intoxilizer test performed on Rivera at the arrest scene.

         Rivera was transported to the Marshal's Office. Rivera refused to speak to Patterson or Davis, refused to answer their questions, refused to comply with their directives, and flopped onto the floor when asked to sit down. Rivera was asked multiple time to submit to a test of her breath, blood or other bodily substance. Rivera did not respond or comply with directives. Eventually an intoxilizer test was performed on Rivera at the Patagonia Marshal's Office with the result of 0.00% alcohol in her blood.[9] Defendants assert Rivera was not blowing sufficiently to get a reading on multiple occasions.

         Eventually, Rivera rolled up her sleeve and exposed her arm for a blood draw.[10]

         A warrant was obtained. Rivera points out that the affidavit sworn out by Defendants to secure the search warrant indicated that Rivera had refused all sobriety tests that the officers had requested her to perform. However, Rivera did not refuse to take an intoxilizer test, nor did Defendants ever ask Rivera if she would submit to field sobriety tests. Defendants assert that Patterson had offered Rivera an opportunity to perform field sobriety tests, but that Rivera either had not responded or declined.

         Despite exposing an arm from which the blood could be drawn, Patterson and Davis treated Rivera's silence as a refusal and filed an Implied Consent Affidavit with the Arizona MVD. Defendants assert that the decision of what constituted consent in these circumstances was within the sole discretion of Davis. Further, Defendants point out that Rivera did not roll up her sleeve until after she learned that a warrant had been obtained. Davis indicated that, despite Rivera rolling up her sleeve and offering her arm, because of Rivera's past violent activity he did not feel safe putting the needle into her arm. Davis never attempted to insert the needle into Rivera's arm. Davis told Rivera if she did not cooperate he was going to charge her with interfering with judicial proceedings and obstructing governmental operations. Ultimately, a blood drawn was not taken.

         After the events of April 19, 2014, Rivera was cited for interfering with judicial proceedings for not answering questions pursuant to a court order, for not complying with the terms of the search warrant, and not consenting to the blood draw. The only court order that Defendants had on that date was a search warrant; the search warrant did not require Rivera to answer the officer's questions.

         Rivera also received two other citations for interfering with judicial proceedings for not signing her citation and not answering her door when Defendants were attempting to contact her. Rivera asserts that, on March 15, 2015 the prosecutor dismissed all the charges filed against Rivera for the events at the mobile home park on April 19, 2014. However, new charges were filed from the same set of events on April 19, 2014, including obstructing governmental operations, reckless driving, endangerment and no license in possession.[11]

         Patterson testified during his deposition that a charge of obstructing a governmental operation requires the use or threat to use physical force. When asked what physical force Rivera used or threatened to use against Defendants on April 19, 2017, Patterson indicated that he did not recall.

         The Implied Consent Affidavit that was filed by Patterson after the April 19, 2014 incident was later rejected by the MVD. Patterson later filed an Amended Affidavit. The Amended Affidavit was not served on Rivera during the course of events that are the subject of this lawsuit.

         On April 21, 2014, Rivera called 911 to report that T. Rivera was looking at her, claiming this was a violation of the order of protection that T. Rivera and R. Rivera had taken out against her. Rivera was informed that this was not a violation of R. Rivera's order, and it was not a violation of Rivera's order of protection since T. Rivera was not listed on her order.

         On April 25, 2014, Rivera contacted the Marshal's Office complaining that R. Rivera had again violated the court order of protection by contacting Rivera's friend Ann Mihalik. R. Rivera had texted Ms. Mihalik, telling her that he was no longer paying for a shed on the property, and she should remove any of her belongings before the shed was picked up. The Marshal's Office determined there was no violation.

         On April 26, 2014, Patterson received a call from Valenzuela, who was concerned about items being removed and sold out of the Duquesne residence. Rivera was removing property from the Duquesne residence and selling it in front of 289 Duquesne Space #2. Deputies responded and took photos of the items; Rivera voluntarily returned money to at least one of the buyers for one of the items she sold that was not hers, but Rivera was not cited.

         On May 1, 2014, Rivera complained that T. Rivera was in violation of his own order of protection against her. Rivera was again informed that this was not a violation for which T. Rivera could be cited.

         On May 2, 2014, the Marshal's Office left another letter for Rivera from the landlord ...

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