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Hernandez v. Town of Gilbert

United States District Court, D. Arizona

April 10, 2019

Scott Harvey Hernandez, Plaintiff,
Town of Gilbert, et al., Defendants.



         Pending before the Court are the parties' motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendants Town of Gilbert (the “Town”) and Officer Steve Gilbert (“Officer Gilbert”) (collectively “Defendants”) moved for partial summary judgment on Counts I and VI. (Doc. 49). Plaintiff also moved for partial summary judgment on Count VI. (Doc. 54). Oral argument was held on April 5, 2019. The Court has now considered the Motions, Responses, and Replies, along with arguments of counsel and relevant case law.

         I. BACKGROUND

         The following facts are taken from Plaintiff's and Defendants' “Joint Statement of Facts in Support of the Parties' Respective Motions for Partial Summary Judgment, ” (Doc. 51, “JSOF”), or were stipulated to by the parties, (Doc. 36). On May 5, 2016, Gilbert Police Department Officer Chris Robinson saw Plaintiff's vehicle swerving on the road. Plaintiff saw emergency lights flashing behind him as he drove. Officer Robinson activated the police vehicle's siren. Plaintiff continued driving until he reached his residence, opened the garage door remotely, pulled into the two-car garage, shut off his vehicle, and then started to close the garage door remotely. Officer Robinson stopped the garage door from closing and waited for back-up officers to arrive. For the next 2 1/2 minutes, Officer Robinson gave at least 13 verbal orders for Plaintiff to step out of the vehicle. Officer Robinson also verbally warned Plaintiff that he would be arrested for failing to obey a police officer. Plaintiff refused Officer Robinson's verbal commands, repeatedly stating “no, I'm right here.” About 90 seconds after Plaintiff drove into the garage, Officer Justin Leach arrived. Officers Robinson and Leach approached the vehicle with guns drawn. Officer Robinson approached the driver's door, where there was less than 3 feet of space between the driver's door and garage wall. Officer Robinson told Plaintiff at least 7 more times to get out of the vehicle because he was under arrest. Plaintiff refused to leave his vehicle. For the next 60 seconds, Officer Robinson applied physical force to Plaintiff to get him out of the vehicle. Officer Robinson used control holds such as grabbing Plaintiff's left forearm, his left leg, and his head. Plaintiff resisted these control holds by tucking his arms close to his body and repeatedly stating, “No, I'm not under arrest.” Officer Robinson attempted another control hold technique, by grabbing Plaintiff's right ear. Plaintiff stated, “Sorry, dude, I'm not going nowhere.” Officer Robinson detected that Plaintiff's eyes were bloodshot, his speech was slurred, and his breath smelled of alcohol. Officer Robinson then deployed pepper spray in Plaintiff's face. Officer Robinson told Plaintiff at least 8 more times that he was under arrest and to get out of the vehicle. Plaintiff continued to ignore these commands. Officer Robinson warned Plaintiff at least 5 times that a police dog was going to be used to bite him and pull him from the vehicle if Plaintiff did not step out. Plaintiff responded, “I'm not going nowhere, dude, ” “You're on my property, bro. You can't do this shit, ” and “No, I am not.” Officer Gilbert approached Plaintiff's vehicle from about 6-10 feet away with his police dog, Murphy, on leash. Both the driver's door and front passenger door of Plaintiff's vehicle were open. Officer Gilbert loudly stated, “Sir, step out of the car or the dog will bite you. Step out of the car, step out of the car.” Plaintiff closed the driver's door and leaned to his right to close the front passenger door. Officer Gilbert released K9 Murphy to enter the vehicle through the front passenger door. K9 Murphy bit Plaintiff on the left bicep. Officer Robinson ordered Plaintiff to crawl out of the vehicle. Plaintiff repeatedly yelled “Alright.” After about 36 seconds, Officer Gilbert commanded K9 Murphy to release the bite. About 14 seconds later, K9 Murphy released the bite on Plaintiff's left upper arm, but hung onto Plaintiff's shirt for another 22 seconds before completely releasing the bite. After K9 Murphy released the bite, Officers Robinson and Leach physically pulled Plaintiff from the vehicle and moved him to the driveway to handcuff him. At the time of this incident, Plaintiff was under the influence of an intoxicating liquor, and had a blood alcohol concentration of .146.

         While Plaintiff and Defendants view of the facts differ regarding what happened after K9 Murphy first bit Plaintiff, the Court notes that the officer body-camera videos worn by officers at the scene (the “Videos”), which were submitted as evidence (JSOF, Exhibits E, F, G), provide a picture of what occurred after K9 Murphy entered the vehicle. Even after K9 Murphy was called off, Plaintiff is seen telling officers that they were on his property and holding on to the headrest as officers attempt to remove him from the vehicle. (JSOF, Exhibit E at 8:44). Officers were then forced to pull Plaintiff from the vehicle, as Plaintiff continued to resist. (JSOF, Exhibit E at 9:10).

         Plaintiff commenced this action in state court on May 5, 2017, and the action was subsequently removed to this Court. (Doc. 1). After orders dismissing multiple counts and multiple defendants, (Docs. 19, 25, 42), the remaining counts before the Court are as follows: (1) Count I against the Town for Negligence and Gross Negligence, (2) Count II against the Town for Negligent Training, and (3) Count VI, brought pursuant to 42 U.S.C. § 1983, against Officer Gilbert alleging the use of excessive force in violation of the Fourth and Fourteenth Amendments. Plaintiff now moves for partial summary judgment on Count VI, (Doc. 54), and Defendants move for partial summary judgment on Counts I and VI, (Doc. 49).


         Summary judgment is appropriate when “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). A material fact is any factual issue that might affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record” or by “showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). The court need only consider the cited materials, but it may also consider any other materials in the record. Id. 56(c)(3).

         Initially, the movant bears the burden of demonstrating to the Court the basis for the motion and “identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant fails to carry its initial burden, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the movant meets its initial responsibility, the burden then shifts to the nonmovant to establish the existence of a genuine issue of material fact. Id. at 1103. The nonmovant need not establish a material issue of fact conclusively in its favor, but it “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmovant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Liberty Lobby, 477 U.S. at 247-48. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50 (citations omitted). However, in the summary judgment context, the Court believes the nonmovant's evidence, id. at 255, and construes all disputed facts in the light most favorable to the nonmoving party, Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). “When the record contains a ‘videotape capturing the events in question,' and that videotape ‘quite clearly contradicts the version of the story told by' one party, the court need not adopt that party's version of the facts, but should instead rely on the facts as presented in the recording.” Hulstedt v. City of Scottsdale, 884 F.Supp.2d 972, 989 (D. Ariz. 2012) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)). If “the evidence yields conflicting inferences [regarding material facts], summary judgment is improper, and the action must proceed to trial.” O'Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 1150 (9th Cir. 2002).

         Federal Rule of Civil Procedure 56 “is silent as to how the court must analyze simultaneous cross-motions for summary judgment.” Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1135 (9th Cir. 2001). Even though the Court is presented with cross-motions for summary judgment, the Court must view the materials on file in the light most favorable to the nonmoving party. Oshilaja v. Watterson, No. CV 05-3429-PHX-RCB, 2007 WL 2903029, at *4 (D. Ariz. Sept. 30, 2007) (citing High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990)).


         Plaintiff moved for partial summary judgment on Count VI-excessive force in violation of the Fourth Amendment brought pursuant to 42 U.S.C. § 1983. (Doc. 54). Defendants filed a Response, (Doc. 57), and Plaintiff filed a Reply, (Doc. 62). Plaintiff argues that Officer Gilbert used unreasonable force by ordering K9 Murphy to “bite and hold [Plaintiff] for over a minute while [Plaintiff] sat unarmed in his automobile[.]”[1] (Doc. 54 at 1).

         A. Legal Standard

         Section 1983 of Title 42 of the U.S. Code provides a cause of action for persons who have been deprived their constitutional rights by persons acting under color of law. Section 1983 “is not itself a source of substantive rights” but only provides a cause of action “for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). Claims of excessive force before or during an arrest are analyzed under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394 (1989); see also Smith v. City of Hemet, 394 F.3d 689, 700-01 (9th Cir. 2005) (“It is clear that under Graham, excessive force claims arising before or during arrest are to be analyzed exclusively under the [F]ourth [A]mendment's reasonableness standard.”). An officer's use of a police dog is subject to an excessive force analysis. Mendoza v. Block, 27 F.3d 1357, 1362 (9th Cir. 1994), as amended (May 31, 1994). In determining whether a law enforcement officer used excessive force in violation of the Fourth Amendment, the Court considers “whether the officers' actions are ‘objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Id. at 396-397. “Determining the reasonableness of an officer's actions is a highly fact-intensive task for which there are no per se rules.” Torres v. City of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011). In evaluating the “objective reasonableness” of a use of force, the Court generally proceeds in three steps. Miller v. Clark Cty., 340 F.3d 959, 964 (9th Cir. 2003). “First, we assess the gravity of the particular intrusion on Fourth Amendment interests by evaluating the type and amount of force inflicted.” Id. (citing Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994)). “Second, we assess the importance of the government interests at stake by evaluating: (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.” Id. (citing Graham, 490 U.S. at 396). “Third, we balance the gravity of the intrusion on the individual against the government's need for that intrusion to determine whether it was constitutionally reasonable.” Id. When “there are no genuine issues of material fact and the relevant set of facts has been determined, the reasonableness of the use of force is a pure question of law.” Lowry v. City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017), cert. denied, 138 S.Ct. 1283 (2018) (internal quotation marks and citation omitted). However, “[b]ecause such balancing nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, we have held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002).

         B. Type and Amount of Force Inflicted

         The first step is to assess the severity of the intrusion on Plaintiff's rights by evaluating the type and amount of force used. “[C]haracterizing the quantum of force with regard to the use of a police dog depends on the specific factual circumstances.” Lowry, 858 F.3d at 1256. In this case, the dog bit Plaintiff on his left bicep, which lasted about 50 seconds. (JSOF ¶¶ 32, 35, 36). As far as Plaintiff's injuries, there is no dispute that Plaintiff suffered injuries. The officers at the scene reported that Plaintiff was bit by the dog, “sustained several lacerations to his left bicep, ” and was treated on the scene and transported to the hospital. (Doc. 56-3 at 7), (Doc. 56-4 at 3). Photos further show the considerable injuries to Plaintiff's left arm. (Doc. 56-12 at 2-3). Plaintiff states that he has severe and permanent injuries including disfiguring scars resulting in more treatment and surgery, and that he was hospitalized for three days for medical treatment as a result of the bite.[2] (Doc. 56-1 ¶¶ 21, 23).

         Plaintiff cites to Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994), in which the court found that the force used to arrest Chew was “severe” when the dog had to bite Chew three times before achieving an effective hold, the dog dragged Chew between four and ten feet, and Chew's arm was “nearly severed.” In reply, Defendants state that the “level of force used [here] was not severe, ” and cite to Miller v. Clark County, 340 F.3d 959, 964 (9th Cir. 2003). (Doc. 57 at 5). In Miller, the Ninth Circuit held “that the intrusion on Miller's Fourth Amendment interests was a serious one, ” after the officer unleashed the dog to search for Miller, the dog located and held Miller, and the officer took between 45 and 60 seconds to arrive at a location where he could see Miller. 340 F.3d at 960-61, 964. The court noted that the officer's dog ordinarily bit a suspect for only about four seconds, but in that case, the dog bit Miller for “an unusually long time period, an action that might cause a suspect pain and bodily injury.” Id. at 964. “Miller's skin was torn in four places above his elbow, and the muscles underneath were shredded.” Id. at 961. He had torn muscles, the injury went as deep as the bone, and he underwent surgery and spent several days in the hospital. Id. In contrast to Chew and Miller, the Ninth Circuit affirmed in Lowry the district court's finding that the force used by a police dog was “moderate, ” not “severe, ” when the dog bit the suspect on the lip and was called off within seconds. 858 F.3d at 1257.

         It is undisputed here that Officer Gilbert commanded K9 Murphy to release the bite after approximately 36 seconds, and that K9 Murphy released the bite approximately 14 seconds later-a total of 50 seconds. The facts seem most analogous to Miller, and the Court finds that given the amount of time that K9 Murphy bit and held Plaintiff, the amount of force used was serious.

         C. Government ...

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