Mbegbu v. City of Phoenix

          ORDER

          DAVID G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE

         This 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.

         On 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.

         I. Background.

         Viewing 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.

         When 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 23-25.

         The 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.

         Without 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.

         When 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 pronounced dead.

         II. Legal Standard.

         A party 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).

         III. Summary Judgment.

         Defendants 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, ^[1] 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).

         A. Competency of ...