Williams v. City of Tempe

          ORDER

          HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Defendants Safeway Inc. (“Safeway”) and Albertsons Companies Inc.'s (“Albertsons”) (collectively “Defendants”)^[1] Motion for Summary Judgment. (Doc. 133). The Court has now considered the Motion (Doc. 133, “Mot.”), Response (Doc. 153, “Resp.”), ^[2] 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).

         BACKGROUND

         In his 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^[3] (the “Safeway Store”) and lists the following causes of action: Assault, Excessive Force, Elder Abuse, and Harassment. (FAC at 3).

         The 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'^[4] - Employee -grab my arm, (Assault) with impunity.” (FAC at 3).

         The 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 store.

         In 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).

         The 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.

         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. 2010) (“an ordinary pro se litigant, like other litigants, must comply strictly with the summary judgment rules” (citation omitted)).

         II. Analysis

         A. Procedural Defects

         At the 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.^[5]

         Second, Plaintiff violated Local Rule 56.1(b) by not filing a controverting statement of facts. Local Rule 56.1(b) requires a ...