United States District Court, D. Arizona
HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE.
before the Court is Defendants Safeway Inc.
(“Safeway”) and Albertsons Companies Inc.'s
“Defendants”) Motion for Summary Judgment. (Doc.
133). The Court has now considered the Motion (Doc. 133,
“Mot.”), Response (Doc. 153,
“Resp.”),  and Reply (Doc. 165, “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 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),
which is not at issue in the present motion. In Count II of
the FAC, Plaintiff discusses incidents that occurred at a
Safeway Store in Tempe, Arizona (the “Safeway Store”)
and lists the following causes of action: Assault, Excessive
Force, Elder Abuse, and Harassment. (FAC at 3).
present motion is brought by Defendants Safeway and
Albertsons and asks for summary judgment on all claims
brought against Defendants. In the FAC, Plaintiff alleges
that “Safeway Store Manager J.D. Hall [ ] provided an
environment, opportunity & atmosphere for Off[icer] Blake
Dunn (21722), not in uniform, with no suspicion or probable
cause, to assault[ ] and harass me, ” and that
“Hall targeted me for [Tempe Police Department's]
racist toxic culture, infecting Off[icer] Dunn's, (acting
with glee) due to my race.” (FAC at 3). Plaintiff also
alleges that “Hall also witnessed an
‘LP' - Employee -grab my arm, (Assault) with
impunity.” (FAC at 3).
following facts are summarized from Plaintiff's response
to Defendants' interrogatory requests. (Doc. 134-1 at
5-7). Plaintiff describes two separate incidents occurring at
the Safeway Store. First, on May 2, 2015, Plaintiff was in
the Safeway Store to shop and was talking to store manager
J.D. Hall when he noticed a man nearby trying to hear the
conversation. The man asked Hall if everything was okay, to
which Hall shook his head in the affirmative. The man then
forcefully grabbed Plaintiff's left arm and said to Hall
that he could remove Plaintiff from the store if Hall wanted
him to. Hall said no, and the man held on to Plaintiff for
about 14 seconds before Hall said he could let him go.
Plaintiff then got in line, paid for his items, and left the
their Statement of Facts, (Doc. 134, “DSOF”),
Defendants identify the man as the loss prevention officer on
duty that day, Marcus Dove. (DSOF ¶ 11). Defendants also
note that Plaintiff testified that he has no recollection as
to whether Dove said anything to Plaintiff or what Dove may
have said. (DSOF ¶ 10). Additionally, Plaintiff
testified that Dove grabbed Plaintiff's arm for 10
seconds and that Plaintiff had no marks or bruises on his arm
following the incident. (DSOF ¶¶ 12, 13).
second incident occurred on May 10, 2015, when Plaintiff
walked into the Safeway Store, picked up items, and got in
line to pay. After he paid for his items and started to walk
to the door, Plaintiff saw the same man who grabbed his arm
on May 2 standing with two others near the door. Plaintiff
alleges that as he walked, Officer Dunn, one of the three men
standing near the door, grabbed Plaintiff's right arm and
said he wanted to say something to Plaintiff. Plaintiff asked
Officer Dunn why he was grabbing him, and the two briefly
conversed. Plaintiff then left the store.
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.
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. 2010) (“an ordinary pro
se litigant, like other litigants, must comply strictly
with the summary judgment rules” (citation omitted)).
outset, the Court is compelled to address deficiencies
present in Plaintiff's Response. First, in addition to
his Response (Doc. 153), Plaintiff filed a sur-reply (Doc.
168) without moving for leave to do so. The rules do not
contain a provision allowing parties to file sur-replies.
See Armenta v. Spencer, No. CV-16-00697-TUC-DCB,
2018 WL 4698648, at *1 (D. Ariz. Oct. 1, 2018) (“There
is no provision for Sur-replies.”). And even then,
“[c]ourts generally view motions for leave to file a
sur-reply with disfavor.” Whitewater W. Indus.,
Ltd. v. Pac. Surf Designs, Inc., No.
3:17-CV-01118-BEN-BLM, 2018 WL 3198800, at *1 (S.D. Cal. June
26, 2018). The Court will strike Plaintiff's sur-reply
and not consider it.
Plaintiff violated Local Rule 56.1(b) by not filing a
controverting statement of facts. Local Rule 56.1(b) requires