Romero v. Hernandez

          ORDER

          David G. Campbell Senior United States District Judge.

         Plaintiff 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 action.

         I. Background.

         In his 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.

         Defendants 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.

         II. Summary Judgment Standard.

         A court 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.

         If the 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).

         At 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).

         III. Facts.

         Plaintiff 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.

         At 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.

         The 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.

         Plaintiff 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. ¶ 11.

         The air 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.

         The 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.

         As 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 ...