Ryba v. Town of Marana

          ORDER

          Cindy K. Jorgenson United States District Judge

         Pending 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).

         Oral 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).

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

         I. Factual and Procedural Background

         At 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.^[1] 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, ^[2] 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.

         When 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.

         After 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.

         Nelson 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).

         Ryba asserts that, after Nelson had handcuffed her, Nelson inappropriately “grabbed” her with enough force to cause bruising to Ryba's right breast.

         Ryba 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.

         Ryba 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.

         Ryba 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.

         Marana 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.

         II. Summary Judgment Legal Standard

         Summary 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).

         Once 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 ...