United States District Court, D. Arizona
G. Campbell Senior United States District Judge.
Carlos Fernando Romero, who is currently confined in the
Arizona State Prison Complex-Lewis in Buckeye, Arizona,
brought this civil rights action pursuant to 42 U.S.C. §
1983. Defendants City of Phoenix Police Officers Hernandez,
Kerger, Smoke, Howard, Happeny, Bill, Wright, Fay, and
Peelman move for summary judgment. Doc. 65. Plaintiff was
informed of his rights and obligations to respond pursuant to
Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998)
(en banc), and he opposes the motion. Docs. 67, 68. The Court
will grant the motion for summary judgment and terminate this
one-count complaint, Plaintiff claims that the defendant
officers used excessive force on him when he pulled over to
the side of the freeway and exited his vehicle after a police
helicopter shined a spotlight on his car. Doc. 1 at 5.
Plaintiff alleges that he was standing by the side of the
road talking on his cellphone when a police canine attacked
him, and while he was being dragged to the ground, multiple
officers ran up and began to beat him in the face with closed
fists “until [he] was knocked unconscious.”
Id. Plaintiff alleges that he was awakened six hours
later in the hospital and told that he needed to be rushed
into surgery. Id. He claims he suffered permanent
nerve damage to his left leg, a severed artery that had to be
surgically repaired, numerous lacerations to his face, and
has to walk with the assistance of a cane. Id.
Plaintiff does not know specifically which officers
“were involved in the beating, ” but he alleges
that all nine Defendants “were the arresting officers
[and] someone could have stopped it.” Id. On
screening under 28 U.S.C. § 1915A(a), the Court
determined that Plaintiff stated an excessive use of force
claim against all Defendants and required them to answer the
claim. Doc. 11.
now move for summary judgment on the grounds that Defendant
Officers Peelman, Happeny, Howard, and Sergeant Fay were not
involved in the arrest; the evidence does not support an
excessive use of force claim; and Defendants are entitled to
qualified immunity. Doc. 65.
Summary Judgment Standard.
must grant summary judgment “if the movant shows that
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(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The movant bears
the initial responsibility of presenting the basis for its
motion and identifying those portions of the record, together
with affidavits, if any, that it believes demonstrate the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323.
movant fails to carry its initial burden of production, the
nonmovant need not produce anything. Nissan Fire &
Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099,
1102-03 (9th Cir. 2000). But if the movant meets its initial
responsibility, the burden shifts to the nonmovant to
demonstrate the existence of a factual dispute and that the
fact in contention is material (a fact that might affect the
outcome of the suit under the governing law) and that the
dispute is genuine (the evidence is such that a reasonable
jury could return a verdict for the nonmovant). Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986);
see Triton Energy Corp. v. Square D. Co., 68 F.3d
1216, 1221 (9th Cir. 1995). The nonmovant need not establish
a material issue of fact conclusively in his favor, First
Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253, 288-89 (1968), but he must “come forward with
specific facts showing that there is a genuine issue for
trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (internal citation
omitted); see Fed. R. Civ. P. 56(c)(1).
summary judgment, the judge's function is not to weigh
the evidence and determine the truth but to determine whether
there is a genuine issue for trial. Anderson, 477
U.S. at 249. In its analysis, the Court must believe the
nonmovant's evidence and draw all inferences in the
nonmovant's favor. Id. at 255. The Court must
consider only the cited materials, but it may consider any
other materials in the record. Fed.R.Civ.P. 56(c)(3).
failed to comply with the Court's February 20, 2018,
order and Local Rule 56.1(b), requiring that he provide a
separate statement of facts with numbered paragraphs
corresponding to the paragraphs in Defendants' Statement
of Facts, “indicating whether [he] disputes the
statement of fact set forth in that paragraph” and
including “a reference to the specific admissible
portion of the record supporting the party's
position.” Doc. 67 at 2 (quoting LRCiv 56.1(b)).
Instead, Plaintiff provided several pages of arguments with
references to copies of two police reports that he claims
contradict each other, and a number of photographs that he
claims show the severity of his injuries. Doc. 68. Where
Plaintiff points to relevant admissible evidence, the Court
has considered this evidence. Additionally, because a
verified complaint may be used as an affidavit opposing
summary judgment if it is based on personal knowledge and
sets forth specific facts admissible in evidence, the Court
will consider the allegations in Plaintiff's complaint.
See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir.
2004); Schroeder v. McDonald, 55 F.3d 454,
460 (9th Cir. 1995). Where Defendants' facts are not
clearly contradicted by this evidence or other evidence in
the record, the Court will consider the facts undisputed.
approximately 12:20 a.m. on December 20, 2015, Phoenix Police
dispatch broadcasted an armed robbery call over the radio.
Doc. 66 (Defs.' Statement of Facts) ¶ 2. The
dispatcher advised that the suspect, later identified as
Plaintiff, was armed with a handgun and had fled the scene of
the robbery in a white Lincoln Navigator. Id. ¶
3. About ten minutes later, non-defendant Officer Mead
broadcasted over the canine handler frequency that he was
behind the suspect's vehicle, gave his location, and
requested an air unit. Id. ¶ 4.
defendant officers, all of whom are canine handlers, heard
Officer Mead's broadcast and began to travel in Officer
Mead's direction. Id. ¶ 5. While Officer
Mead was behind the suspect vehicle, he broadcasted the
license plate number and a dispatcher indicated from a
records check that the vehicle was stolen. Id.
¶ 6. Defendant Wright, who was the closest to Officer
Mead's location, responded that he observed Officer Mead
driving directly behind the stolen vehicle with at least two
other patrol cars behind him. Id. ¶ 7. Officer
Mead, Defendant Wright, and the other patrol cars activated
their lights to initiate a traffic stop of the suspect
vehicle. Id. ¶ 8.
turned into a gas station and stopped to let a female
passenger out of the car. He then proceeded through the gas
station and continued driving westbound on Indian School
Road. Id. ¶ 9. Officer Mead stopped to secure
the female passenger while Defendant Wright continued to
follow Plaintiff, and the other vehicles backed off and let
the air unit follow the suspect vehicle. Id. ¶
10. After patrol officers arrived at the gas station to take
custody of the female passenger, Officer Mead resumed driving
in the direction of the stolen vehicle. Id. ¶
unit continued to broadcast Plaintiff's location and the
defendant officers continued to follow from a distance.
Id. ¶ 12. Plaintiff travelled westbound on
Interstate 10 and then exited onto northbound Loop 101.
Id. ¶ 13. As Plaintiff neared the Camelback
Road exit of Loop 101, he stopped the stolen vehicle along
the concrete barrier between the northbound and southbound
lanes, exited from the driver's side door, jumped over
the concrete barrier, and headed westbound across the
southbound lanes of Loop 101. Id. ¶ 14.
defendant officers exited at Camelback Road and made u-turns
onto the Camelback Road onramp leading to the southbound side
of Loop 101. Id. ¶ 15. At this point, the air
unit directed all ground units to use caution because the air
officers observed Plaintiff running with an object in one of
his hands. Id. ¶ 16.
Defendant Hernandez drove onto the Camelback Road onramp
leading towards southbound Loop 101, he observed Plaintiff
run directly towards him on the southbound shoulder and then
run down the gravel embankment on the west side of the
freeway. Id. ¶¶ 17, 18. Defendant
Hernandez immediately parked his vehicle on the side of the
onramp, exited the vehicle, retrieved his canine
“Murphy” out of the rear passenger compartment,
and gave a command for Plaintiff to stop, which Plaintiff
ignored. Id. ¶¶ 19-20. Defendant Hernandez
then commanded Murphy to apprehend Plaintiff, and Defendant