United States District Court, D. Arizona
Ngozi Mbegbu, individually as the surviving spouse of decedent Balantine Mbegbu and on behalf of decedent's child Ogechukwu Amarachukwu Gloria Mbegbu as the statutory beneficiary of Balantine Mbegbu; and as Personal Representative of the Estate of Balantine Mbegbu, Plaintiffs,
City of Phoenix, Matthew Johnson, Joel Zemaitis, William Weber, and John and Jane Doe Spouses, Defendants.
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE
case arises out of the death of Balantine Mbegbu, who died in
his home during an incident with Phoenix police officers. His
surviving spouse, Plaintiff Ngozi Mbegbu, brings a state law
tort claim for wrongful death and § 1983 claims for
excessive force and loss of familial association in violation
of the Fourth and Fourteenth Amendments. Doc. 1. The tort
claim is brought against the City of Phoenix and the
officers, and the § 1983 claims are asserted against the
individual officers only. Plaintiff seeks compensatory and
punitive damages. Doc. 1-1 at 3-14.
October 18, 2017, the Court granted summary judgment on all
claims in favor of one officer, but denied Defendants'
motion for summary judgment in all other respects. Doc. 58.
The Court then granted Plaintiff's motion to substitute
counsel and granted her request to reopen discovery after her
original counsel clearly failed to provide competent
representation. Docs. 62, 64, 69. On July 3, 2018, the Court
held a conference with the parties. Doc. 112. Defendants
requested a second round of summary judgment briefing,
arguing that the reopening of discovery had illuminated
several issues that might affect the Court's ruling.
Id. at 5-7. The Court permitted Defendants to
supplement their first summary judgment motion (Docs. 47) to
identify specific grounds upon which the Court's ruling
might be different in light of the developed record (Doc. 112
at 13). That supplemental briefing is now before the Court
and oral argument will not aid in the Court's decision.
Docs. 110, 114, 116. For the following reasons, the Court
will deny Defendants' summary judgment motion.
the evidence in the light most favorable to Plaintiff for
purposes of summary judgment, the facts are as follows. On
the evening of October 6, 2014, the decedent Mbegbu was at
home with Plaintiff and Plaintiff's sister. Doc. 52-2 at
23. At approximately 9:11 p.m., Officers Gonzales and Johnson
responded to a 911 call from Mbegbu's friend, who had
concerns that a fight between Plaintiff and Mbegbu might
escalate. Doc. 48 at 2. Officers arrived at the residence and
approached Plaintiff on the street outside her home as she
was leaving to pick up her son. Doc. 48-3 at 19. The officers
explained the reason for their visit, and Plaintiff assured
the officers that she was fine. Id. Plaintiff let
the officers inside the home and began showing them pictures
of her children. The parties dispute whether Plaintiff
invited the officers in or whether they requested entrance
and Plaintiff only assented. Docs. 48 at 3; 53 at 2.
Officers Gonzales and Johnson entered, Mbegbu was sitting in
the living room eating dinner. Doc. 48-3 at 20. He was
surprised to see the officers and asked why they were there
and if they were going to kill him. Doc. 52-2 at 23. The
officers said someone had called about a domestic dispute,
but Mbegbu explained that nothing had happened. Doc. 52-2 at
22-23. The parties dispute whether Mbegbu remained seated or
immediately rose and approached the officers. See
Docs. 48 at 3; 53 at 2. Plaintiff asserts that Mbegbu
remained seated until a third officer arrived. Doc. 52-2 at
parties dispute whether Mbegbu was yelling or the officers
confused his stammer with raising his voice. Docs. 52-2 at
22-23; 48 at 5. Gonzales radioed for back up and Officers
Zemaitis and Weber arrived at the scene. Docs. 48-3 at 21;
48-4 at 2. Johnson then discussed the situation with the
other officers and informed Mbegbu that he was under arrest.
Mbegbu pulled his arm away when Johnson attempted to handcuff
him, and he was struck in the face by Johnson during the
ensuing arrest. Doc. 48-3 at 55-56.
warning, Zemaitis tased Mbegbu in the face and chest. Doc.
48-3 at 56-57, 127. After the first tasing, which lasted
eleven seconds, Mbegbu exclaimed: “I'm dying,
I'm dying.” Doc. 52-2 at 24. Zemaitis tased Mbegbu
a second time for six seconds. Doc. 48-3 at 5-6, 73. Weber
then threw Mbegbu to the ground with the help of Johnson and
Zemaitis, and Mbegbu began to bleed. Doc. 48-3 at 94-96; Doc.
52-2 at 25. Johnson put his knee on the back of Mbegbu's
neck and pressed his thumb behind Mbegbu's ear as a
pressure point. Doc. 48-3 at 57-58. Weber knelt on
Mbegbu's back and he and Johnson pulled Mbegbu's arms
back and handcuffed him. Docs. 48-3 at 94-96; 52-2 at 25-26.
the officers sat him up, Mbegbu slumped over and did not
appear to be breathing. Doc. 52-2 at 25-26. The officers
removed the handcuffs and began CPR. Doc. 48-3 at 58-59.
Paramedics took Mbegbu to the hospital, where he was
seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Summary judgment is
appropriate if the evidence, viewed in the light most
favorable to the nonmoving party, 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). Summary judgment is also appropriate against a party
who “fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial.” Celotex, 477 U.S. at 322. Only
disputes over facts that might affect the outcome of the suit
will preclude summary judgment, and the disputed evidence
must be “such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
argue that additional discovery and case developments entitle
them to summary judgment for three reasons: (1)
Plaintiff's testimony is incompetent, (2) medical
causation does not support an injury,  and (3) the
officers' use of force was not excessive and they are
entitled to qualified immunity. Doc. 110 at 1.
Defendants' supplemental brief contains five pages of
what is characterized as “new factual
information.” Doc. 110 at 2-6. The Court will address
only the specific grounds that Defendants identify for
granting summary judgment. See Doc. 112 at 12-13;
Indep. Towers of Wash. v. Washington, 350 F.3d 925,
929 (9th Cir. 2003).
Competency of ...