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Denby v. City of Casa Grande

United States District Court, D. Arizona

March 29, 2019

James W Denby, et al., Plaintiffs,
City of Casa Grande, et al., Defendants.



         This action arises from law enforcement's execution of a search warrant for Abram Ochoa at 116 West 10th Street in Casa Grande, Arizona (hereinafter “the Property”). Plaintiffs, the Property residents, allege the use of excessive force upon the Property and assert constitutional claims against Defendants pursuant to 42 U.S.C. § 1983 (Doc. 82). Pending before the Court are Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 83) and Motion for Summary Judgment (Doc. 91). The Court rules as follows.

         I. Motion to Dismiss (Doc. 83)

         A. Background

         On December 17, 2014, the Casa Grande Police Department (“CGPD”) responded to a domestic disturbance call down the street from the Property (Doc. 82 at ¶ 31). Upon arrival, officers learned the incident involved Abram Ochoa, who had outstanding warrants for his arrest (Doc. 82 at ¶ 34). After determining that Ochoa had entered the Property, officers attempted to communicate with Ochoa via a loud speaker PA system but received no response (Doc. 82 at ¶¶ 38-41, 43-45, 55-56). CGPD declined offers from Ochoa's girlfriend and Plaintiff James Denby's son in helping persuade Ochoa to leave the Property voluntarily (Doc. 82 at ¶¶ 45, 57). Minutes after arriving, CGPD requested assistance from Pinal County Regional SWAT (“SWAT”) (Doc. 82 at ¶ 58). While establishing a perimeter, CGPD Officer Engstrom reported seeing movement under a tarp covering a car in the Property's backyard, but no further investigation was made (Doc. 82 at ¶¶ 64-70).

         SWAT arrived on scene and decided to use an armored vehicle, referred to as a “Bearcat, ” (Doc. 82 at ¶ 74) as a battering ram to gain access to the Property (Doc. 82 at ¶¶ 76-77). SWAT drove the Bearcat over a chain-linked fence and into the front of the Property, breaking windows and the front door (Doc. 82 at ¶ 80). Further attempts to communicate with Ochoa through the Bearcat's PA system and a deployed tactical phone proved unsuccessful (Doc. 82 at ¶¶ 81-84).

         Upon the execution of a search warrant (Doc. 82 at ¶¶ 86-89), SWAT deployed a medium robot into the Property but found no sign of Ochoa (Doc. 82 at ¶¶ 90-91). SWAT used the PA system to announce that Ochoa had five minutes to exit the building or further force would be used against him (Doc. 82 at ¶ 93). After the time expired, SWAT fired a total of 22 canisters of pepper spray and tear gas into the Property (Doc. 82 at ¶¶ 94-102), searched the Property with a second robot (Doc. 82 at ¶ 104), and deployed a Noise Flash Diversionary Device (Doc. 82 at ¶ 105). SWAT then developed a tactical plan to enter the Property, which included the use of two additional Noise Flash Diversionary Devices (Doc. 82 at ¶ 109-111). During the search, SWAT team members destroyed furniture, cushions, windows, bathroom mirrors, shower doors, toilets, televisions, artwork, and antiques (Doc. 82 at ¶¶ 116-121). Ochoa was not found inside the Property (Doc. 82 at ¶ 112). Once the Property was cleared, SWAT and CGPD searched the backyard (Doc. 82 at ¶¶ 124-126). Ochoa was found hiding underneath the tarp that Officer Engstrom had reported seeing movement under five hours earlier (Doc. 82 at ¶¶ 126-130).

         B. Legal Standard

         Defendants have moved to dismiss Plaintiffs' Second Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The motion argues that each individual Defendant is entitled to qualified immunity, and the complaint fails to state a municipal entity claim against either the City of Casa Grande or Pinal County. The motion further argues that Plaintiff Elizabeth Torres must be dismissed for lack of standing.

         “‘To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face;' that is, plaintiff must ‘plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court may dismiss a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) for two reasons: (1) lack of a cognizable legal theory, and (2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988), abrogated on other grounds by Bell Atl. Corp v. Twombly, 550 U.S. 544 (2007).

         A complaint must contain sufficient factual matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Facial plausibility requires the plaintiff to plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Plausibility does not equal “probability, ” but still requires more than a sheer possibility that a defendant 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. (citation and internal quotation marks omitted).

         In deciding a motion to dismiss, the Court must “accept as true the well-pleaded allegations of material fact, ” and construe those facts “in the light most favorable to the nonmoving party.” Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). “[A]llegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences, ” however, are insufficient to defeat a 12(b)(6) motion. Although a complaint “does not need detailed factual allegations, ” a plaintiff must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. This requires “more than labels and conclusions, [or] a formulaic recitation of a cause of action's elements.” Id.

         C. Qualified Immunity

         Defendants argue that the individually named Defendants are entitled to qualified immunity (Doc. 83 at 9-16). “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation omitted). In resolving qualified immunity claims, the Court must consider: (1) whether the facts alleged establish the violation of a constitutional right, and (2) whether the right was “clearly established” at the time of the incident. Id. at 232. To be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Dunn v. Castro, 621 F.3d 1196, 1201 (9th Cir. 2010) (“[T]he right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established.” (quotation omitted)). Although a case on point is not required, “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Clearly established law should not be defined at a “high level of generality.” Id. at 742.

         Although the applicability of qualified immunity should be resolved at the earliest possible stage in litigation, Hunter v. Bryant, 502 U.S. 224, 227 (1991), “a motion to dismiss on qualified immunity grounds puts the Court in the difficult position of deciding ‘far-reaching constitutional questions on a non-existent factual record, '” Hernandez v. Ryan, No. CV 09-2683-PHX-DGC, 2010 WL 4537975, at 2 (D. Ariz. 2010) (quoting Kwai Fun Wong v. United States, 373 F.3d 952, 957 (9th Cir. 2004). In this Court's March 31, 2018 Order, the Court found that resolution of Defendants' qualified immunity claims required ...

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