Altamirano v. County of Pima

          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 ...