United States District Court, D. Arizona
ORDER
HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE
Defendants
City of Phoenix, Antonio Tarango, and Officers Oswald
Grenier, Kevin McGowan, Jason Hobel, Ronaldo Canilao, David
Head, Susan Heimbigner, James Clark, Dennis Leroux, Ryan
Nielsen, and Steven Wong (collectively the “Phoenix
Defendants”) filed an Amended Motion to Dismiss
Plaintiff's First Amended Complaint based on Qualified
Immunity (Doc. 43, “Mot.”) and pursuant to Rule
12(b)(6). Plaintiff filed a Response (Doc. 50,
“Resp.”), and the Phoenix Defendants filed a
Reply (Doc. 57, “Reply”). Oral argument was held
on January 11, 2019. The Court has now considered the Motion,
Response, and Reply along with arguments of counsel and
relevant case law.
I.
BACKGROUND
This
case arises out of the death of Muhammad Abdul Muhaymin Jr.
(“Muhaymin”). At the time of Muhaymin's
death, he was 43 years old and suffered from post-traumatic
stress disorder, acute claustrophobia, and schizophrenia.
(FAC ¶ 1).[1] On January 4, 2017, Muhaymin was at the
Maryvale Community Center along with his dog,
“Chiquita.” (FAC ¶ 3). Plaintiff asserts
that Chiquita was a “service dog, ” (FAC ¶
3), while Defendants contend that Chiquita did not qualify as
a “service animal.” (Mot. at 12). When Muhaymin
attempted to use the restroom facilities at the community
center, he was refused entry by Defendant Tarango because of
Chiquita. (FAC ¶¶ 4, 5). Muhaymin and Tarango
argued and “chest bumped.” (FAC ¶6). The
Phoenix Police were called and arrived on the scene shortly
after. (FAC ¶¶ 7, 9). Upon arrival, Officer Grenier
asked Muhaymin to see Chiquita's documentation. (FAC
¶ 12). Muhaymin was permitted to enter the restroom
after he provided Defendant Officers with his identifying
information. (FAC ¶¶ 14, 17). Defendant Officers
subsequently discovered an outstanding arrest warrant against
Muhaymin and informed Muhaymin that he was being arrested.
(FAC ¶¶ 21, 23). During the course of the arrest,
Defendant Officers and Muhaymin struggled. (FAC ¶¶
31-36). Muhaymin went into cardiac arrest and began vomiting.
(FAC ¶ 37). Muhaymin was pronounced dead shortly
thereafter.
Plaintiff,
Mussalina Muhaymin, sister of Muhammad Abdul Muhaymin Jr. and
personal representative of his estate, originally filed a
complaint on December 8, 2017. (Doc. 1). On January 17, 2018,
Plaintiff filed a First Amended Complaint against City of
Phoenix, Antonio Tarango, Officers Oswald Grenier, Kevin
McGowan, Jason Hobel, Ronaldo Canilao, David Head, Susan
Heimbigner, James Clark, Dennis Leroux, Ryan Nielsen, Steven
Wong, and Doe Supervisors 1-5.[2] (Doc. 16, “FAC”). In
the FAC, Plaintiff alleges fifteen counts against the
Defendants, including claims pursuant to 42 U.S.C.
§§ 1983 and 12131, et. seq., as well as
multiple state law claims. Phoenix Defendants now move to
dismiss all counts in Plaintiff's FAC with prejudice.
II.
LEGAL STANDARD
To
survive a Rule 12(b)(6) motion for failure to state a claim,
a complaint must contain a “short and plain statement
of the claim showing that the pleader is entitled to relief,
” so that the defendant has “fair notice of what
the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)); Fed.R.Civ.P. 8(a)(2). Dismissal under Rule
12(b)(6) “can be based on the lack of a cognizable
legal theory or the absence of sufficient facts alleged under
a cognizable legal theory.” Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). A
complaint that sets forth a cognizable legal theory will
survive a motion to dismiss if it contains sufficient factual
matter, which, if accepted as true, states a claim to relief
that is “plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). Facial plausibility
exists if the pleader sets forth “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. Plausibility does not equal
“probability, ” but requires “more than a
sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint
pleads facts that are ‘merely consistent' with a
defendant's liability, it ‘stops short of the line
between possibility and plausibility of entitlement to
relief.'” Id. (quoting Twombly,
550 U.S. at 557).[3]
In
ruling on a Rule 12(b)(6) motion to dismiss, the well-pled
factual allegations are taken as true and construed in the
light most favorable to the nonmoving party. Cousins v.
Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However,
legal conclusions couched as factual allegations are not
given a presumption of truthfulness, and “conclusory
allegations of law and unwarranted inferences are not
sufficient to defeat a motion to dismiss.” Pareto
v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).
“As
a general rule, ‘a district court may not consider any
material beyond the pleadings in ruling on a Rule 12(b)(6)
motion.'” Lee v. City of Los Angeles, 250
F.3d 668, 688 (9th Cir. 2001) (quoting Branch v.
Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled on
other grounds by Galbraith v. County of Santa Clara,
307 F.3d 1119 (9th Cir. 2002)). “[I]f a district court
considers evidence outside the pleadings, it must normally
convert the 12(b)(6) motion into a Rule 56 motion for summary
judgment, and it must give the nonmoving party an opportunity
to respond.” United States v. Ritchie, 342
F.3d 903, 907 (9th Cir. 2003); see Fed. R. Civ. P.
12(d). The court may, however, consider “matters of
judicial notice [ ] without converting the motion to dismiss
into a motion for summary judgment.” Id. at
908. A “court may take judicial notice of matters of
public record . . ., [b]ut a court cannot take judicial
notice of disputed facts contained in such public
records.” Khoja v. Orexigen Therapeutics,
Inc., 899 F.3d 988, 999 (9th Cir. 2018) (quotation marks
and citations omitted). The Court may also consider evidence
outside of the pleadings where the “authenticity is not
contested, and the plaintiff's complaint necessarily
relies” on the evidence. Sams v. Yahoo! Inc.,
713 F.3d 1175, 1179 (9th 2013). If the Court finds that the
evidence may not be considered when ruling on a 12(b)(6)
motion to dismiss, the Court has “discretion whether to
consider the extrinsic evidence and convert the motion to
dismiss into a motion for summary judgment pursuant to Rule
12(d), or to merely exclude the evidence.”
Sternberger v. Gilleland, No. CV-13-02370-PHX-JAT,
2014 WL 3809064, at *4 (D. Ariz. Aug. 1, 2014) (citing
Hamilton Materials, Inc. v. Dow Chem. Corp., 494
F.3d 1203, 1207 (9th Cir. 2007)).
III.
ANALYSIS
A.
Evidence Outside The Pleadings
Phoenix
Defendants attached two exhibits to the instant motion which
contain evidence outside of the pleadings. Exhibit 1 contains
videos taken from Defendant Officers' body-cameras (the
“Videos”), and Exhibit 2 consists of Phoenix
Police Department Incident Report No. 201700000019424 (the
“Incident Report”). (Mot. at 4 n.13-14).
Plaintiff objects to the Court's consideration of the
Incident Report arguing that it is self-serving, contains
inadmissible hearsay, and is not authenticated. (Resp. at 7).
In United States v. Ritchie, the Ninth Circuit held
that courts “may take judicial notice of some public
records, including the ‘records and reports of
administrative bodies.'” 342 F.3d at 909 (quoting
Interstate Nat. Gas Co. v. S. Cal. Gas Co., 209 F.2d
380, 385 (9th Cir.1953)). The Ninth Circuit further
articulated that such a holding “does not mean that all
evidence related to this case . . . fits within the judicial
notice exception, ” citing to a Second Circuit case
that held “the existence and content of a police report
are not properly the subject of judicial notice.”
Id. (citing Pina v. Henderson, 752 F.2d 47,
50 (2d Cir.1985)); see also Ledet v. Gibson, No.
3:06-CV-00179-LRH (VPC), 2007 WL 777686, at *4 (D. Nev. Mar.
9, 2007) (declining to consider police reports and noting
that “the Ninth Circuit has inferred that courts should
not take judicial notice of police reports”);
Victoria v. City of San Diego, 326 F.Supp.3d 1003,
1012 (S.D. Cal. 2018) (declining to consider more than the
“reasonably undisputed facts” in a police report
even after plaintiff referenced the report in her complaint).
The Court will not consider the Incident Report and
disregards facts from the Incident Report added by
Defendants.
Phoenix
Defendants also assert that the Court may consider the Videos
as they are matters of public record and they can be
considered without converting this to a motion for summary
judgment. (Reply at 4). As discussed above the court can
consider additional evidence if it is a matter of public
record and not disputed. Additionally, there are other courts
in this Circuit that have considered video from body-cameras
in analyzing similar motions to dismiss because the
“complaints necessarily relie[d] on the circumstances
surrounding” the incident alleged in the complaint.
Lihosit v. Flam, No. CV-15-01224-PHX-NVW, 2016 WL
2865870, at *3 (D. Ariz. May 17, 2016); see also Covert
v. City of San Diego, No. 15-CV-2097 AJB (WVG), 2017 WL
1094020, at *5 (S.D. Cal. Mar. 23, 2017) (considering officer
body-camera videos and transcripts of the videos in a motion
to dismiss as they were “incorporated into the FAC by
reference and [were] documents that partially form[ed] the
basis of Plaintiff's complaint”).
Plaintiff
objects to the consideration of the Videos because they are
incomplete, but later asserts that they are
“potentially incomplete.” (Resp. at 11). They
base this on their allegation that “significant
portions appear to have been intentionally obstructed.”
(Resp. at 10). The fact that the view from the cameras may
have been obstructed does not invalidate the authenticity of
the Videos, but rather may make the Videos less valuable.
Additionally, Plaintiff asserts that Defendants have failed
to authenticate the Videos. In their Reply, Defendants
submitted an affidavit to authenticate that the 13 Videos are
complete, unredacted, and unedited copies, (Reply, Exhibit
1), which distinguishes this case from Brown v. City of
San Diego, No. 3:17-CV-00600-H-WVG, 2017 WL 3993955, at
*2 (S.D. Cal. Sept. 11, 2017), cited by Plaintiff in its
Response. The Court will consider the Videos.[4]
In
reviewing the Videos, the Court notes that it is clear that
an extensive physical struggle occurred between the Defendant
Officers and Muhaymin. However, without outside testimony,
the angles of the Defendant Officers' body-cameras do not
provide a definitive answer to what occurred on that day. The
beginning stages of the arrest that occurred near the
building appear in Videos 1-5. The Defendant Officers told
Muhaymin to stop as he exited the building because there was
a warrant, (Video 1 at 18:18) (Video 2 at 11:30) (Video 4 at
9:19) (Video 5 at 11:31), but in reviewing what ensued
shortly thereafter, the movements of Defendant Officers and
Muhaymin are difficult to define because of the angles of the
cameras or because the cameras were obstructed or faced away
from the Defendant Officers and Muhaymin. What occurred after
Defendant Officers arrived at the vehicle with Muhaymin and
began to search and further restrain him appears in Videos 1,
3, 5, 7, 8, and 11. The movements of Defendant Officers and
Muhaymin are again difficult to define due to obstructed
cameras or angles. (Video 1 at 19:35) (Video 3 at 3:00)
(Video 5 at 16:00) (Video 7 at 0:22) (Video 8 at 0:06) (Video
11 at 23:45). The remaining Videos begin after Defendant
Officers had already begun CPR (6, 9, 10, and 12) or only
record conversations between Defendant Officers and witnesses
(13).
B.
Counts I and VII - Excessive Force
Plaintiff
brings Counts I and VII pursuant to 42 U.S.C. § 1983 and
A.R.S. §§ 12-611 et. seq., 14-3110, 13-410
for excessive force against Defendant Officers and Doe
Supervisors 1-5.
Claims
of excessive force during an arrest are analyzed under the
Fourth Amendment. Graham v. Connor, 490 U.S. 386,
394 (1989). In determining whether a law enforcement officer
used excessive force in violation of the Fourth Amendment,
the Court considers “whether the officers' actions
are ‘objectively reasonable' in light of the facts
and circumstances confronting them, without regard to their
underlying intent or motivation.” Id. at 397.
“The calculus of reasonableness must embody allowance
for the fact that police officers are often forced to make
split-second judgments-in circumstances that are tense,
uncertain, and rapidly evolving-about the amount of force
that is necessary in a particular situation.”
Id. at 396-397. “Determining the
reasonableness of an officer's actions is a highly
fact-intensive task for which there are no per se
rules.” Torres v. City of Madera, 648 F.3d
1119, 1124 (9th Cir. 2011). In evaluating the
“objective reasonableness” of a use of force, the
Court considers: “(1) the severity of the intrusion on
the individual's Fourth Amendment rights by evaluating
the type and amount of force inflicted, (2) the
government's interest in the use of force, and (3) the
balance between the gravity of the intrusion on the
individual and the government's need for that
intrusion.” Lowry v. San Diego, 858 F.3d 1248,
1256 (9th Cir. 2017) (internal quotation marks omitted). The
Court considers “the totality of the circumstances,
including (1) the severity of the crime at issue, (2) whether
the suspect posed an immediate threat to the safety of the
officers or others, and (3) whether the suspect was actively
resisting arrest or attempting to evade arrest by
flight.” Torres, 648 F.3d at 1124 (citing
Graham, 490 U.S. at 396). Further, Ninth Circuit
cases hold that “excessive force claims may proceed
even when the plaintiff cannot identify the defendant who
assaulted him or allege the actions of specific
defendants.” Hernandez v. Ryan, No.
CV-16-03699-PHX-DGC (BSB), 2018 WL 2009053, at *10 (D. Ariz.
Apr. 30, 2018) (citing Santos v. Gates, 287 F.3d
846, 851-852 (9th Cir. 2002); Rutherford v. City of
Berkeley, 780 F.2d 1444, 1448 (9th Cir. 1986)).
Phoenix
Defendants assert that “[t]he Amended Complaint does
not identify conduct demonstrating a specific action of the
Phoenix Police was an excessive-force violation or caused
Muhaymin's death.” (Mot. at 8). In opposition,
Plaintiff points to various paragraphs of the FAC, including
¶¶ 31-34 and ¶¶ 36-39. (Resp. at 16-17).
Plaintiff alleges that Muhaymin was “forced . . . to
the ground” and “can be heard yelling,
‘Okay!' and ‘I can't breathe' as
multiple Defendant Officers placed the weight of their bodies
on his head, back, arms, and legs”; that “[a]fter
wrestling Muhaymin to the ground, one of the Defendant
Officers placed his knee on Muhaymin's head while another
Defendant Officer placed him in handcuffs”; that
“Defendant Officers again wrestle[d] Muhaymin, who had
already been restrained, back down to the ground”; and
that “[s]everal Defendant Officers placed their weight
on top of Muhaymin, while one Defendant Officer requested
‘hobbles' in order to restrict Muhaymin's
ability to walk.” (FAC ¶¶ 31-33, 35- 36).
Plaintiff also alleges that “Muhaymin went into cardiac
arrest and began vomiting” due to the excessive force
and that the “unreasonable, excessive, and
[conscience]-shocking physical force to the person of
Muhaymin” caused his death. (FAC ¶¶ 37, 43).
In response, Phoenix Defendants contend that the acts were
not excessive “in the context of Muhaymin's
pushing, kicking, and thrashing about while trying to escape
arrest.” (Reply at 10).
In
considering the totality of the circumstances alleged
surrounding the use of force by Defendant Officers, the Court
first notes that Muhaymin was being arrested on a warrant for
failure to appear, not for the alleged assault. (Mot. at 17).
The Court also notes that neither Plaintiff nor Defendants
have indicated that Muhaymin was armed. While Defendants
assert that Muhaymin had just committed an assault of a
government employee, (Mot. 8, 14, 17), Plaintiff denies that
Muhaymin committed such an assault. (Resp. at 12). Rather
Plaintiff alleges that the assault was actually committed
against Muhaymin. (Resp. at 12). Assuming the truth of
Plaintiff's allegations, these facts weigh in
Plaintiff's favor. Lastly, the Court considers whether
Muhaymin was actively resisting arrest. While Defendant
asserts that Muhaymin resisted arrest, (Mot. at 6, 8),
Plaintiff is silent regarding whether Muhaymin resisted
arrest. Defendants assertion is likely based on the Incident
Report, which the Court will not consider with this
motion.[5] While the Videos confirm the extensive
struggles between Muhaymin and Defendant Officers during the
course of the arrest, the angles of the Defendant
Officers' body cameras do not provide a complete picture
of the events. Without further fact development, the Videos
alone do not indicate whether Muhaymin's resistance
warranted the force used by Defendant Officers.
Therefore,
assuming the truth of Plaintiff's allegations, and
viewing the allegations in the light most favorable to the
Plaintiff, the Court finds that Plaintiff has stated a
plausible claim for excessive force, and that dismissal of
Counts I and VII is not warranted at this stage of the
proceedings.
C.
Count II - Failure to Protect/Intervene
Count
II is brought pursuant to 42 U.S.C. § 1983 for failure
to protect/intervene against Defendant Officers and Doe
Supervisors 1-5. “Police officers have a duty to
intercede when their fellow officers violate the
constitutional rights of a suspect or other citizen.”
Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir.
2000), as amended (Oct. 31, 2000).
“Importantly, however, officers can be held liable for
failing to intercede only if they had an opportunity to
intercede.” Id. “An officer who fails to
intercede is liable for the preventable harm caused by the
actions of the other officers where that officer observes or
has reason to know: (1) that excessive force is being used;
(2) that a citizen has been unjustifiably arrested or (3)
that any constitutional violation has been committed by a law
enforcement official.” Anderson v. Branen, 17
F.3d 552 (2d Cir. 1994) (citations omitted).
Plaintiff
relies on Castro v. County of Los Angeles, 833 F.3d
1060 (9th Cir. 2016) to explain that elements of a pretrial
detainee's failure-to-protect claim. (Resp. at 17-18).
However, that case involves a detainee's right to be free
from violence by other inmates. Castro, 833 F.3d at
1064. This case involves a completely different scenario
where the alleged constitutional violation occurred while
effectuating a valid arrest.
Defendants
argue that Count II should be dismissed because “[t]he
force used against Muhaymin was both reasonable and
necessary, given his behavior.” (Mot. at 9). Defendants
also argue that “plaintiff cannot show Muhaymin's
arrest was unjustified, ” and that there is “no
evidence officers failed to intervene on Muhaymin's
behalf during his arrest.” Id. However, given
the Court's above ...