United States District Court, D. Arizona
BERNARDO P. VELASCO UNITED STATES MAGISTRATE JUDGE
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”).
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.
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.
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.
Summary Judgment Standard
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).
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).
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).
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).
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.
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
Actual or Apparent ...