United States District Court, D. Arizona
K. Jorgenson United States District Judge
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
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.
judgment will be granted in favor of Defendants and against
Plaintiff for the reasons stated herein.
Factual and Procedural Background
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.
approximately 9:45 p.m., Davis responded to the Duquesne
residence for a reported domestic disturbance. 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
went to speak to Rivera, but she was crying uncontrollably,
being consoled by two other females. These other females did
not witness the incident.
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.
made the determination to arrest Rivera for disorderly
conduct - fighting.
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
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.
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
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
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
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.
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.
on April 2, 2014, Rivera asserts she went to the apartment
building to show an apartment and discovered R.
Rivera. 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.
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.
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. Rivera denies that she was irate or
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.
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.
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. 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.
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.
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.
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.
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.
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.Patterson called to have the vehicle
towed. 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.
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.
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. Defendants assert Rivera was
not blowing sufficiently to get a reading on multiple
Rivera rolled up her sleeve and exposed her arm for a blood
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
2, 2014, the Marshal's Office left another letter for
Rivera from the landlord ...