United States District Court, D. Arizona
ORDER
Honorable Rosemary Marquez United States District Judge
Pending
before the Court are Defendant Pima County's Motion for
Summary Judgment (Doc. 123), Defendant City of Tucson's
Motion for Summary Judgment (Doc. 125), and Plaintiff's
Motions to Strike (Doc. 144, 145). The Court will deny
Defendant Pima County's summary judgment motion, and
grant in part and deny in part Defendant City of Tucson's
summary judgment motion; the motions to strike will be
granted in part.
I.
Background
This
action arises out of Plaintiff's arrest and year-long
confinement on suspicion that he had participated in a home
invasion. Plaintiff alleges that he was arrested and
prosecuted without probable cause. (Doc. 26 at 5, 9.) He
further alleges that he was a victim of Defendant Pima
County's (“the County”) and the Defendant
City of Tucson's (“the City”)
unconstitutional policies relating to arrests,
interrogations, and the decision to seek indictments.
(Id. at 2, 11.) Finally, he alleges that Defendants
conspired to bring about these deprivations of his rights.
(Id. at 9-11.)
Plaintiff
filed suit in the Pima County Superior Court on April 1,
2015; the County filed a Notice of Removal to Federal Court
on April 22, 2015. (See Doc. 1.) The County then
filed a motion to dismiss (Doc. 18), which the Court granted
in part and denied in part. (Doc. 25.) The Court found that
the County failed to show, as a matter of law, that the
deputy county attorney was not a municipal policymaker. (Doc.
25 at 4.) Further, because the Court found that Plaintiff had
sufficiently alleged a final-policymaker theory of liability,
it declined to address whether Plaintiff had failed to
adequately plead a deliberate indifference theory of
liability. (Doc. 25 at 5, n.2.) The Court dismissed with
prejudice Plaintiff's intentional and negligent
infliction of emotional distress claims with respect to the
County on the ground that “under Arizona law, [the]
County cannot be held vicariously liable for any torts
committed by the county attorney while engaged” in
“[i]nitiating a criminal prosecution, convening a grand
jury, and continuing to pursue the prosecution[.]”
(Doc. 25 at 7.) The Court dismissed with leave to amend
Plaintiff's malicious prosecution and conspiracy claims.
(Doc. 25 at 5-6.)
On
March 7, 2017, Plaintiff timely filed a Second Amended
Complaint (Doc. 26), which brings the following three counts
against both Defendants under 42 U.S.C. § 1983: (1)
False Arrest and Imprisonment, (2) Malicious Prosecution, and
(3) Conspiracy. Plaintiff seeks compensatory damages, costs,
and attorneys' fees. (Doc. 26 at 15.) No. motion to
dismiss was filed as to the Second Amended Complaint, and the
Parties proceeded with discovery. Discovery closed on May 30,
2018 (see Doc. 113), and each Defendant filed a
Motion for Summary Judgment (Doc. 123, 125). Defendants filed
Replies in support of their respective summary judgment
motions (Doc. 140, 141), which are the subject of
Plaintiff's instant Motions to Strike (Doc. 144, 145).
II.
Motions to Strike
In the
Motions to Strike (Doc. 144, 145), Plaintiff asks the Court
to strike both Defendants' Replies and Reply Statements
of Facts (Docs. 139-142) on the ground that they do not
comply with the Local Rules of Civil Procedure. Both
Defendants respond that their Replies do comply with the
Local Rules and ask that, at most, only their Objections to
Plaintiff's Statement of Facts (Doc. 139, 142) be
stricken.
The
Local Rules do not permit filing reply statements of facts.
LRCiv 56.1(b). Local Rule 7.2 allows a party to move to
strike “any part of a filing or submission on the
ground that it is prohibited (or not authorized) by a
statute, rule, or court order.” LRCiv 7.2(m). A motion
to strike, however, “should not be granted unless it is
clear that the matter to be stricken could have no possible
bearing on the subject matter of the litigation.”
Colaprico v. Sun Microsystems, Inc., 759 F.Supp.
1335, 1339 (N.D. Cal. 1991); see also Yount v. Regent
Univ., Inc., No. CV-08-8011-PCT-DGC, 2009 WL 995596, at
*11 (D. Ariz. Apr. 14, 2009) (“[E]ven a properly made
motion to strike is a drastic remedy which is disfavored by
the courts and infrequently granted.” (internal
quotations omitted)).
The
Local Rules permit replies, LRCiv 56.1(d), but do not allow
for a “reply statement of facts[, ]” LRCiv
56.1(b). The Objections to Plaintiff's Statement of Facts
are in essence reply statements of facts. The Court will deny
the Motions to Strike as to Defendants' Replies, which
are permissible under the Local Rules, and grant the Motions
to Strike as to the Objections, which are not permissible.
The Court will not consider the Objections in resolving the
summary judgment motions.
III.
Facts
Making
all reasonable inferences in Plaintiff's favor, the Court
finds the facts are as follows:
Plaintiff
was arrested by Tucson Police Department (“TPD”)
officers on April 29, 2010 on suspicion of having
participated in a home invasion that involved a sexual
assault. (Doc. 124 ¶ 1; Doc. 126 ¶ 1.) TPD
conducted an investigation into the home invasion, led by TPD
Detective VanNorman. (Doc. 124 ¶¶ 1-2.) As part of
the investigation, Plaintiff was interrogated by VanNorman
and fellow TPD Detective Robinson. (Doc. 126 ¶ 2.) At
the time of his interrogation, Plaintiff was fourteen years
old. (See Doc. 126-1 at 2.)
Although
he initially denied involvement, Plaintiff's
interrogation resulted in his confession to participating in
a home invasion which involved sexual assault of a minor
victim. (See Doc. 126-2.) Plaintiff was read his
Miranda rights at the beginning of the interrogation
(see Doc. 126-2 at 8) and eventually requested the
presence of a lawyer. (Doc. 126-2 at 42.) Despite requesting
a lawyer, Plaintiff continued to speak with interrogators,
who then re-administered the Miranda warnings. (Doc.
126-2 at 54.) At one point in the interrogation, Plaintiff
struggled with giving interrogators information they were
requesting regarding the type of weapon used in the home
invasion; he volunteered that he is “kind of
retarded.” (Doc. 126-2 at 132.) He further explained
that he is in “special education, [has a] learning
disability[, ]” and that he is doing “[n]ot that
good in school” because he's “special.”
(Doc. 126-2 at 132-33.) Interrogators continued to question
Plaintiff for more than an hour, without a parent or lawyer
present, about the details of the home invasion and
Plaintiff's supposed involvement. (See Doc.
126-2.)
Following
Plaintiff's interrogation, VanNorman scheduled an
appointment with a Pima County Attorney's Office
(“PCAO”) prosecutor, seeking to bring criminal
charges against Plaintiff. (Doc. 124 ¶¶ 2-4; Doc.
126 ¶ 2.) VanNorman had two meetings with PCAO
prosecutors, first with Deputy County Attorney Spivack, and
later with Deputy County Attorney Delany. (Doc. 124 at
¶¶ 4, 6.) Delany scheduled the case before a grand
jury on June 1, 2010, and did not speak with VanNorman again
before presenting the case to the grand jury. (Doc. 124
¶¶ 10, 12-13.) VanNorman provided testimony before
the grand jury regarding the robbery and sexual assault.
(Doc. 124 ¶ 14.) Delany knew that she was required to
present any exculpatory evidence to the grand jury; the only
evidence she presented to the grand jury was VanNorman's
testimony. (Doc. 124 ¶ 15, 34; Doc. 134 ¶ 34.) With
regard to Plaintiff, VanNorman testified that police tracked
a cellphone taken during the robbery to Plaintiff's home
address, although Plaintiff was at school when the cellphone
was tracked to his family's home. (Doc. 124 ¶ 14.)
VanNorman additionally testified that Plaintiff admitted to
committing the robbery with three other suspects; that he
named those other suspects, singling out the suspect who
committed the sexual assault; and that his “account of
the robbery identified specific details of the event.”
(Id.) Based on VanNorman's testimony, and only
VanNorman's testimony, Plaintiff was indicted on criminal
charges. (Doc. 124 ¶¶ 15, 16.)
A
transcript of Plaintiff's interrogation was prepared
January 12, 2011, approximately two months before Delany left
the PCAO. (Doc. 124 ¶¶ 18, 20.) Deputy County
Attorney Otto, who was assigned to the case after Delany left
the PCAO, reviewed the interrogation transcript in detail and
later discussed it with Plaintiff's criminal attorney.
(Doc. 124 ¶¶ 21, 23; Doc. 126 ¶ 5.) Based on
her review, Otto concluded that Plaintiff's admissions
during the interrogation were all facts TPD interrogators had
brought up earlier in the interrogation; accordingly, she
concluded there was insufficient evidence to proceed with the
case. (Doc. 124 ¶¶ 23, 24; Doc. 126 ¶ 5.) On
April 26, 2011, Otto moved to dismiss the indictment against
Plaintiff without prejudice; the trial court granted her
motion and dismissed the charges on May 2, 2011. (Doc. 124
¶ 25-26.)
Neither
the City nor TPD have a written or published policy to
present false testimony to a grand jury and/or to seek an
indictment based on such false testimony. (Doc. 126 ¶
17; Doc. 134 ¶ 17.) There is also no evidence of a
written or published policy that impliedly authorizes
presentation of false testimony to a grand jury or to seek an
indictment based on the false testimony. (Doc. 126 ¶ 20;
Doc. 134 ¶ 20.) At the time of Plaintiff's
interrogation, TPD General Order 21.24.2 provided that during
juvenile interviews and interrogations “[a] member may
confer with a juvenile's parents during an interview. If
a parent is present and insistent on being present during the
interview, they shall be permitted.” (Doc. 126 ¶
23.) A separate TPD General Order in effect at the time read:
“Officers will take into consideration the age and
psychological state of the juvenile when conducting the
interview.” (Doc. 126 ¶ 29; Doc. 134 ¶ 29.)
IV.
Summary Judgment Standard
Summary
judgment should be granted where 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
fact is material if it “might affect the outcome of the
suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute
is genuine if the evidence would enable a reasonable trier of
fact to resolve the dispute in favor of the nonmoving party.
See Id. At summary judgment, the judge's
function is not to weigh the evidence and determine the truth
but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. In evaluating a motion
for summary judgment, the Court must “draw all
reasonable inferences from the evidence” in favor of
the non-movant. O'Connor v. Boeing N. Am., Inc.,
311 F.3d 1139, 1150 (9th Cir. 2002). If the “evidence
yields conflicting inferences, summary judgment is improper,
and the action must proceed to trial.” Id.
The
court need consider only the cited materials, but it may
consider any other materials in the record. Fed.R.Civ.P.
56(c)(3). If, after considering the arguments and materials
in the record, it appears that reasonable jurors could find
that the defendant is liable, then the court should not grant
summary judgment. Cornwell v. Electra Cent. Credit
Union, 439 F.3d 1018, 1027-28 (9th Cir. 2006). If,
however, jurors of reason could not determine that the
plaintiff is entitled to a judgment in her favor, then
summary judgment is appropriate. Id.
V.
The County's Motion for Summary Judgment
The
County brings three grounds upon which it argues it is
entitled to summary judgment: (1) there is no factual or
legal basis for Plaintiff's final-policymaker theory of
liability because the deputy county attorneys are not final
policymakers for the County but rather act on behalf of the
State and are entitled to Eleventh Amendment Sovereign
Immunity, (2) the failure-to-train claim of liability is
barred by Eleventh Amendment Sovereign Immunity because
“prosecutorial-training decisions constitute state
action[, ]” and (3) alternatively, all three counts
fail on the merits. (Doc. 123 at 2.) The Court will deny the
Motion.
A.
Eleventh Amendment Immunity
The
County argues that all of Plaintiff's claims must fail
because the deputy county attorneys, and PCAO in making
prosecutorial training decisions, were state actors.
“[O]nly States and arms of the State possess immunity
from suits authorized by federal law[, ]” Northern
Ins. Co. of New York v. Chatham County, Ga., 547 U.S.
189, 193 (2006), and “the public entity [claiming
immunity] ought to bear the burden of proving the facts that
establish its immunity under the Eleventh Amendment[,
]” ITSI T.V. Prods., Inc. v. Agricultural
Assocs., 3 F.3d 1289, 1292 (9th Cir. 1993). See
also, Pennhurst St. Sch. & Hosp., 465 U.S.
89, 100 (1984); Taylor v. List, 880 F.2d 1040, 1045
(9th Cir. 1989); Eason v. Clark Cnty. School Dist.,
303 F.3d 1137, 1141 (9th Cir. 2002).
A state
waives Eleventh Amendment immunity by removing a case to
federal court. See Lapides v. Board of Regents of
University System of Georgia, 535 U.S. 613, 619-24
(2002) (unanimous decision). That is because “removal
is a form of voluntary invocation of a federal court's
jurisdiction sufficient to waive the State's otherwise
valid objection to litigation of a matter . . . in a federal
forum.” Id. at 624. The waiver applies to both
state law and federal law claims, regardless of the motive
for removal, and irrespective of any amendments to the
complaint made in federal court following removal. Embury
v. King, 361 F.3d 562, 564-66 (9th Cir. 2004)
(“hold[ing] to a straightforward, easy-to-administer
rule in accord with Lapides: Removal waives Eleventh
Amendment immunity”). As the Ninth Circuit put it:
“[a]llowing a State to waive immunity to remove a case
to federal court, then ‘unwaive' it to assert that
the federal court could not act, would create a new
definition of chutzpah.” Embury, 361 F.3d at
566.
Because
the County removed this case to federal court (see
Doc. 1), any claim to Eleventh Amendment immunity from suit
is foreclosed. The Court will deny the summary ...