Muhaymin v. City of Phoenix

          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 ...