United States District Court, D. Arizona
Robyn E. Ryba, Plaintiff,
Town of Marana, et al. Defendants.
K. Jorgenson United States District Judge
before the Court is the Motion for Partial Summary Judgment
(Doc. 34) filed by Defendants Town of Marana
(“Marana”) and Cesar Nelson
(“Nelson”) (collectively, “Marana
Defendants”). Plaintiff Robyn E. Ryba
(“Ryba”) has filed a response (Doc. 36)and Marana
Defendants have filed a reply (Doc. 38).
argument has been requested. 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.
Factual and Procedural Background
approximately 10:54 p.m. on June 14, 2015, Officer Nelson of
the Marana Police Department was dispatched to check on a
suspicious vehicle reported near 5448 W. Mosquito Drive, in
Marana. When Nelson approached the vehicle, he noticed that
the windshield wipers and left-turn signal were on. The
parties dispute whether the engine was on. N e lso n
observed Ryba sitting in a curled up position, asleep in the
driver's seat. Ryba's legs were tucked up in the seat
and she was facing right. Ryba asserts that the vehicle had a
push ignition switch that needed a fully engaged clutch to
start,  which Ryba asserts is not possible with
her feet tucked beneath her while she was asleep. Ryba also
asserts her windshield was dusty and that the wipers were on
to remove the dust. During her deposition, Ryba could not say
for certain whether her headlights were on, but testified
that the radio was on, and the fan was blowing air, although
the air conditioning was not operating.
Nelson tapped on the driver's window, Ryba did not
respond; Nelson tapped harder, but Ryba still did not
respond. Nelson then used his flashlight to tap on the
window. Nelson detected a strong odor of intoxicants within
the vehicle. Nelson asked Ryba if she had anything to drink
that night, to which she responded, no, then yes. Nelson
included in his report that Ryba exhibited signs of
intoxication, including red, watery, bloodshot eyes, slurred
speech, and disorientation.
Ryba stepped out of the vehicle at Nelson's request,
Nelson conducted the horizontal gaze nystagmus
(“HGN”) test, which resulted in 6 out of 6 cues
being observed. Nelson also noted a strong odor of
intoxicants emanating from Ryba's mouth as she spoke,
that Ryba was unsteady in her gait, that Ryba had a side to
side sway as she stood still, and that he had to repeat his
instructions to her numerous times.
asked Ryba if she would agree to perform field sobriety
tests, to which she consented. Nelson reported that Ryba then
began asking questions and not following instructions. Nelson
asserts he placed Ryba under arrest for DUI after numerous
attempts to have her conduct the test and Ryba refusing to
follow his instructions. Ryba asserts she was attempting to
follow Nelson's instructions regarding the field sobriety
tests, but she sought clarification on what he was asking her
to do. Ryba testified at deposition that she felt like Nelson
was manipulating her and asking her to do something
different. She further testified that she felt as if she
“just kind of fed into his demeanor that he had with
me, none of this would have happened anyways” . . .
stating she felt “I don't care if you are a cop;
you can't---like, I don't have to flirt with you,
then the whole thing changed.” (Depo. of Ryba, p. 80).
asserts that, after Nelson had handcuffed her, Nelson
inappropriately “grabbed” her with enough force
to cause bruising to Ryba's right breast.
was then transported to the Marana Police Department
Substation, where her blood was eventually drawn. Analysis of
the blood revealed it to contain 0.249 ± 0.013 grams
of ethanol per 100 ml of blood, which is more than three
times the legal limit of 0.08. Ryba asserts Nelson did not
attempt to get her written consent to a blood draw until
after it had been completed. Nelson's report indicates
that Ryba was struggling and delaying the test; the
technician drawing blood reported that Ryba consented to the
blood draw, was very apprehensive, was gagging and crying,
but told the technician to “just do it.”
(Nelson's Police Report, p. 9). Ryba also points out that
Nelson did not afford her sufficient time to read the
Administrative Pro Se document, so she wrote she needed to
read it on the form, to which Nelson responded that Ryba was
going to jail.
did not report the alleged excessive force or inappropriate
touching to anyone at the Marana Police Department Substation
or at the Pima County Jail, and did not tell anyone about it
until a few days later.
was tried for violation of A.R.S. § 28-1381(A)(1), which
makes it unlawful for a person “to drive or be in
actual physical control of a vehicle . . . [w]hile under the
influence of intoxicating liquor.” During the trial,
Ryba did not dispute the toxicology report finding her BAC to
be 0.249, and did not dispute that she was drunk. Ryba was
acquitted by a jury.
Defendants have filed a Motion for Partial Summary Judgment
seeking summary judgment on Ryba's Fourth Amendment
claims alleging false arrest and malicious prosecution and on
Ryba's claims against Marana.
Summary Judgment Legal Standard
judgment may be granted if the movant shows “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(c). The moving party has the initial responsibility of
informing the court of the basis for its motion, and
identifying those portions of “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, ” which it
believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986); Scheuring v. Traylor Bros., 476
F.3d 781, 784 (9th Cir. 2007).
the moving party has met the initial burden, the opposing
party must "go beyond the pleadings" and "set
forth specific facts showing that there is a genuine
[material] issue for trial." Celotex Corp., 477
U.S. at 248 (internal quotes omitted); see also United
States v. $133, 420.00 in U.S. Currency, 672 F.3d 629,
638 (9th Cir. 2012) (“a plaintiff cannot rely on mere
allegations but rather must “set forth” by
affidavit or other evidence “specific facts”).
The nonmoving party must demonstrate a dispute “over
facts that might affect the outcome of the suit under the
governing law” to preclude entry of summary judgment.
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248
(1986). Further, the disputed facts must be material.
Celotex Corp., 477 U.S. at 322-23. Further, "a
party cannot manufacture a genuine ...