Lockett v. Colclough

          ORDER

          James A. Teilborg Senior United States District Judge

         Plaintiff Joseph Lockett, III, who is currently confined in the Arizona State Prison Complex (ASPC)-Yuma in San Luis, Arizona, brought this civil rights action pursuant to 42 U.S.C. § 1983. Defendants Phoenix Police Officers Ramel Colclough and David Dodd move for summary judgment. (Doc. 18.) 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) (Doc. 23), and he failed to do so.

         Because Plaintiff did not file a response, the Court will use Plaintiff's First Amended Complaint (FAC) as an affidavit in opposition to the Motion for Summary Judgment, to the extent his allegations are based on personal knowledge. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (allegations in a pro se plaintiff's verified pleadings must be considered as evidence in opposition to summary judgment); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (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 grant the Motion for Summary Judgment and dismiss this action with prejudice.

         I. Background

         In his one-count FAC, Plaintiff relevantly alleges the following facts:

         In May 2016, Plaintiff and his wife got into an argument, he left his apartment at night, and his wife filed for an order of protection the following day. (Doc. 7 at 3.) The day after that, Plaintiff and his wife spoke on the phone and his wife told him that he could return home, which he did. (Id.) Shortly thereafter, Plaintiff was served with an order of protection, which instructed him to stay away from his wife. (Id.) When he discussed the order of protection with his wife, his wife told him that she got the order of protection “out of spite, ” that she would submit the paperwork to withdraw it, and that Plaintiff could stay at the apartment. (Id.)

         Plaintiff contends that on July 24, 2016, he and his wife began arguing again and they argued through most of the night. (Id. at 3-4.) On July 25, 2016, his wife left and, without his knowledge, called the police and reported that Plaintiff was in the apartment in violation of the order of protection. (Id. at 4.) The police arrived at Plaintiff's apartment and told him to come outside, that they just wanted to talk to him, and that they were there because of the order of protection. (Id.) Plaintiff responded by telling the officers that he had not done anything wrong, he just wanted to be with his family, he lived in the apartment, and he was not coming out because nothing had happened. (Id.)

         Plaintiff asserts that this verbal exchange continued for several hours. (Id.) He claims that he did not attempt to run away, attack anyone, act violently, or threaten the police or others. (Id. at 5-6.) He alleges that the officers never asked him if there were other occupants in the apartment or whether Plaintiff had any weapons. (Id. at 4.) Eventually, Defendants, without providing any warning, launched three oleoresin capsicum (OC) spray grenades into his small, two-bedroom apartment. (Id. at 4-5.) Although one of the grenades did not work, the other two did. (Id. at 5.) Plaintiff began coughing to the point that he could not breathe. (Id.) Plaintiff ran out of the apartment, was arrested, and was treated by the fire department. (Id.)

         Plaintiff claims that the amount of OC caused him instant pain, he had pain and irritation hours after being treated by the fire department, and he continues to have psychological issues and breathing problems due to the incident. (Id.) He contends it was “absolutely not necessary” and “very excessive” to release that amount of OC spray into a small apartment to get someone who was suspected of a misdemeanor offense to exit the apartment. (Id. at 5-6.) Plaintiff seeks monetary damages. (Id. at 7.)

         On screening of the FAC under 28 U.S.C. § 1915A(a), the Court determined that, liberally construed, Plaintiff stated a Fourth Amendment excessive-use-of-force claim against Defendants and directed them to answer the claim. (Doc. 8.)

         II. Legal Standards

         A. Summary Judgment

         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, 210 F.3d at 1102-03. 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, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., 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 its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288- 89 (1968); however, it 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 need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3).

         B. Excessive Use of Force

         The use of excessive force by police officers during an arrest can violate the arrestee's Fourth Amendment right to be free from unreasonable seizures. See White by White v. Pierce County, 797 F.2d 812, 816 (9th Cir. 1986). The Fourth Amendment does not prohibit the use of reasonable force. Tatum v. City & County of San Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006). Whether the force was excessive depends on “whether the officers' actions [were] ‘objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989); Tatum, 441 F.3d at 1095; Lolli v. County of Orange, 351 F.3d 410, 415 (9th Cir. 2003). Moreover,

[t]he “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight ..... “Not every push or shove, even if it may later seem unnecessary in the peace ...