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Williams v. City of Tempe

United States District Court, D. Arizona

July 3, 2019

Prentice Williams, Plaintiff,
v.
City of Tempe, et al., Defendants.

          ORDER

          HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Defendant Officer Ratko Aleksis's Motion for Summary Judgment.[1] (Doc. 135, “Mot.”). The Court has now considered the Motion, Response (Doc. 153, “Resp.”), [2] and Reply (Doc. 163, “Reply”) along with relevant case law. The Court has determined that oral argument will not be helpful to resolution of this motion and will be vacated. See L.R. Civ 7.2(f).

         BACKGROUND

         In his First Amended Complaint, (Doc. 27, “FAC”), Plaintiff lists two counts and names as defendants the City of Tempe, the Tempe Police Department, Officer Ratko Aleksis, Officer Blake Dunn (collectively, “the Tempe Defendants”) and Albertsons/Safeway Inc. On August 31, 2018, this Court dismissed all claims against the Tempe Defendants except the Fourth Amendment claim against Officer Aleksis. (Doc. 132). In Count I, Plaintiff alleges that on July 8, 2015, Officer Aleksis stopped him without reasonable suspicion.[3] Count II does not implicate Officer Aleksis. The present motion is brought by Officer Aleksis and asks for summary judgment on the only remaining claim against him, the Fourth Amendment claim.

         Defendant filed a separate statement of facts, (Doc. 136, “DSOF”), to which Plaintiff filed a controverting statement of facts, (Resp. at 7-9). Plaintiff does not dispute the following facts. On July 8, 2015, at approximately 11:28 p.m., the Tempe Police Department (“TPD”) received a call on its non-emergency line reporting that a white car was sitting in a garage of a long-time vacant house (the “house”). TPD treats non-emergency calls similar to 911 calls in that it audio records the call, traces the call, dispatches officers, and takes notes in the computer aided dispatch system.

         The following facts are as asserted by Defendant in his statement of facts, but Plaintiff “disputes” these facts in his controverting statement. The caller, “Renee, ” told TPD that the subject was going from the car to the house. The house is located in a known drug area and, itself, is known to be used for illegal drug use. Officer Aleksis was dispatched to the house and, upon his arrival, contacted Plaintiff. On July 8, 2015, Plaintiff had parked his white Buick Le Sabre at the house. Officer Aleksis saw that the house was boarded up and obviously abandoned. Because of what was reported by the caller, his own observation that Plaintiff parked (at night) his white Buick Le Sabre at a boarded-up abandoned house in a well-known drug area, and that the house was previously used for illegal drug activity, Officer Aleksis conducted a trespass investigation. During the investigation, TPD attempted to communicate with the owner or person responsible for the house. Those attempts proved unsuccessful. Because the owner or person responsible for the house could not be contacted, Officer Aleksis ended his trespassing investigation. Upon the conclusion of the trespass investigation, Plaintiff was permitted to leave.

         In his controverting statement of facts, Plaintiff does not clearly state why he is disputing the above facts assertions. Plaintiff points to various documents in the record, but it is not entirely clear which documents Plaintiff is directing the Court to review. In several spots, Plaintiff appears to be citing an attached affidavit provided by the Plaintiff. In the affidavit, Plaintiff makes various assertions, including the following: (1) that the caller Renee “is a TPD undercover/surveillance officer who worked with ‘Ratko' on surveilling” Plaintiff; (2) that he was not parking in the driveway, but that he “parked ‘parallel' to a house on the street”; (3) that “if one parks there today, there's no concern and no one cares, then or now, ” and that the parked car “was a pretext by ‘Ratko' and TPD undercover surveillance Off. ‘Renee.'” (Resp. at 11).

         In addition to his controverting statement of facts, Plaintiff also includes the following facts in his Response, which he also sets forth in affidavit (Doc. 160). On July 8, 2015, at about 11:30 p.m., Plaintiff was in the process of moving. He caught “Ratko” tailing him to his new residence. Plaintiff parked his car on the street and then had walked 225 yards away when Officer Aleksis asked Plaintiff if that was his parked car. Plaintiff alleges that Defendant used the location of Plaintiff's parked car as a pretext to make the stop. Defendant ordered Plaintiff to walk back to Plaintiff's car. Defendant then ordered Plaintiff away from the car, demanded his license, asked if Plaintiff still lived at the address on his license, ran a warrants check, and asked to enter Plaintiff's car. Plaintiff demanded Defendant call his sergeant, who came and released Plaintiff. Plaintiff alleges he was kept by Defendant for 78 minutes.

         DISCUSSION

         I. Legal Standard

         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). Summary judgment may also be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Id. at 323-24.

         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.” Id. at 323. 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). 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).

         While the Court must construe the pleadings liberally, “[p]ro se litigants must follow the same rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Regardless of his pro se status, at summary judgment, the elements Plaintiff must prove and Plaintiff's burden of proof are not relaxed simply because he is appearing without the assistance of counsel. Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986); see also Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. ...


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