United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
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.
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
Court will grant the Motion for Summary Judgment and dismiss
this action with prejudice.
one-count FAC, Plaintiff relevantly alleges the following
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.)
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.)
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
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
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.)
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.
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).
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).
Excessive Use of Force
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 ...