Williams v. Khan

          ORDER

          BERNARDO P. VELASCO UNITED STATES MAGISTRATE JUDGE

         Pending before the Court are two motions by Plaintiff Elizabeth Williams: a Motion for Partial Summary Judgment Against Defendant Erika Campas (“C Motion”) (Doc. 100) and another against Defendants Rosebeck and Davis (“R&D Motion”) (Doc. 101). Also before the Court is Defendant Erika Campas' Partial Cross-Motion for Summary Judgment (Doc. 106) (“Cross-Motion”).

         The motions ask the Court to decide whether the search and seizure at the home of Ms. Williams and the subsequent removal of her children permit summary judgment for either party. What is undisputed is that Arizona Department of Child Safety employee Erika Campas entered Ms. Williams' residence when Ms. Williams was absent, looked into the bedrooms, and discovered marijuana plants. Also present were Tucson Police Department Officers James Davis and Gary Rosebeck (collectively “TPD officers”); Williams' babysitter; Williams' father, Randall Williams (“Randall”); and her two children. After the search, Campas temporarily removed the children from the home and placed them in foster care for several days before placing them with the paternal grandparents.

         Ms. Williams' C Motion asks the Court to grant partial summary judgment in her favor on Claim One alleging Illegal Search and Seizure under 42 U.S.C. § 1983. Ms. Williams' R&D Motion also asks the Court to grant summary judgment in Ms. Williams' favor on Claim One. To grant the motions would require the Court find there is no genuine issue of material fact as to whether the Defendants' entry and search of Ms. Williams' home violated her Fourth Amendment rights.

         Defendant Campas' Cross-Motion asserts that Count Two of the FAC should be summarily dismissed. Count Two alleges that Campas violated Ms. Williams' right to familial association under the First and Fourteenth Amendments when she removed Williams' children without a warrant or court order. Campas argues she is immune from suit because she is entitled to qualified immunity. Even if she were not immune, she claims no constitutional violation occurred because Ms. Williams consented to voluntary placement of her children approximately a week later.

         I. Summary Judgment Standard

         The court may grant summary judgment only if a movant has demonstrated there is no genuine issue of material fact and “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). If, considering the alleged facts in the light most favorable to the non-moving party, a reasonable jury could find in favor of that party, there is a genuine dispute of material fact precluding summary dismissal. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The moving party must first identify the portions of the record, if any, that demonstrate an absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The movant, if carrying “the burden of proof on an issue at trial, . . . must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). However, if the non-moving party bears the burden, “the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010).

         If the movant cannot meet its initial burden, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). However, if movant meets its burden, it shifts to the nonmovant who must show there is a material factual dispute; meaning, certain disputed facts exist that could affect the outcome in non-movant's favor. Anderson, 477 U.S. at 248, 250; see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant does not need to show the material issues of fact are irrefutable, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, there must exist “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(c)(1); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In the cross-summary judgment evaluation, the court must “review each motion . . . separately, giving the nonmoving party for each motion the benefit of all reasonable inferences.” Brunozzi v. Cable Commc'ns, Inc., 851 F.3d 990, 995 (9th Cir. 2017), cert. denied, 138 S.Ct. 167 (2017). In addition, the court may consider either parties' evidence in the opposing parties' motion when deciding whether to grant either summary judgment motion. See Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1136-37 (9th Cir. 2001).

         Even though the court may evaluate either parties' evidence, evidence must be admissible to be considered. Moran v. Selig, 447 F.3d 748, 759-60 (9th Cir. 2006) (pleading and opposition must be verified to constitute opposing affidavits); FDIC v. New Hampshire Ins. Co., 953 F.2d 478, 484 (9th Cir. 1991) (court may strike inadmissible declarations and other evidence). Furthermore, a party cannot create a genuine issue of material fact by making barren assertions in its legal memoranda. See Varig Airlines v. Walter Kidde & Co., 690 F.2d 1235, 1238 (1982).

         It is not within the court's purview to weigh evidence at the summary judgment stage, the court should merely determine whether there is a genuine dispute appropriately resolved at trial. Anderson, 477 U.S. at 249. After reviewing the summary judgment record, if jurors of reason could decide by a preponderance of the evidence that plaintiff is entitled to relief, then summary judgment is improper. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1027-28 (9th Cir. 2006). But, if jurors of reason could not find a defendant liable then summary judgment is appropriate. Id.

         II. Count One: Unreasonable Search and Seizure

          Plaintiff's summary judgment motions claim that there is no genuine issue of material fact as to whether Campas and the TPD officers reasonably believed that Randall had actual or apparent authority to consent to the search of the home or even whether Randall did, in fact, consent. (Docs. 100 at 4-12; 101 at 9-14.) Ms. Williams further argues that even if there was authority to enter the home, Campas and the TPD officers exceeded that authority when they searched the bedrooms. Id.

         III. Actual or Apparent ...