United States District Court, D. Arizona
HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Officer Ratko Aleksis's
Motion for Summary Judgment. (Doc. 135, “Mot.”).
The Court has now considered the Motion, Response (Doc. 153,
“Resp.”),  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).
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. 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.
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.
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.
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.
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.
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
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.
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).
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. ...