United States District Court, D. Arizona
Murray Snow Chief United States District Judge.
before the Court are multiple Motions for Summary Judgment
against both groups of Plaintiffs. (Docs. 261, 265, 270, 271,
273, 276). As to Plaintiffs Laney Sweet, E.S., N.S. and the
Estate of Daniel Shaver (“the Sweet Plaintiffs”),
Defendants City of Mesa, Bryan Cochran, Christopher Doane,
Brian Elmore and Richard Gomez, Defendant Charles Langley,
and Defendant LQ Management LLC seek summary judgment on all
remaining claims. (Docs. 261, 265, 271). Those same
Defendants seek summary judgment on some or all of the Shaver
Plaintiffs claims (Docs. 261, 270, 273). Plaintiffs have also
filed a Joint Motion to Amend the Rule 16 Scheduling Order
and conduct additional discovery. (Doc. 329). For the
following reasons, the Court grants the Motion to Amend the
Rule 16 order, grants the motions for summary judgment in
part, denies them in part and defers a ruling on some of the
remaining claims until after further discovery is
January 18, 2016, Daniel Shaver, a resident of Texas, was
visiting Arizona and staying at a La Quinta Inn & Suites
in Mesa. Mr. Shaver worked as a pest eradication specialist
and was in Arizona on business. Mr. Shaver's job required him
to carry pellet rifles.
night of the incident, hotel employee Leticia Jimenez was
approached by two hotel guests. They informed her that they
could see an individual holding what they thought was a rifle
with a scope in a hotel room. The guests pointed to Mr.
Shaver's room on the fifth floor. Ms. Jimenez indicated
that she knew that Mr. Shaver was staying in that room. The
guests agreed that the hotel staff should call the police.
Ms. Jimenez asked Mr. Johnson to call the police, and then
went upstairs to investigate herself. Mr. Johnson relayed
some information about Mr. Shaver to the police, including
his approximate age and physical features.
arriving at Mr. Shaver's room, Ms. Jimenez began asking
questions about his pizza that he ordered. Mr. Shaver
appeared confused as to why Ms. Jimenez was asking these
questions. There were two other individuals in the room with
Mr. Shaver. Mr. Shaver told Ms. Jimenez that everything was
fine, and she went back downstairs.
p.m., several Mesa Police Department (“MPD”)
officers arrived on the scene. These officers included
Defendants Charles Langley, Christopher Doane, Richard Gomez,
Brian Elmore and Bryan Cochran, as well as Phillip
Brailsford. Sergeant Langley was the commanding
officer at the scene. Without speaking to the La Quinta
employees about the situation, Sergeant Langley directed the
MPD team to move up to Mr. Shaver's room. Officers Gomez,
Cochran, Doane, and Elmore were all part of the team that
went upstairs. Officers Doane and Elmore both had their
weapons drawn initially, but Officer Doane switched to a
taser when Mr. Shaver exited the room. Before heading
upstairs, the police officers secured Mr. Shaver's
vehicle and also established a perimeter around the
hotel-depriving Mr. Shaver of any flight path.
officer called Mr. Shaver's room and told the inhabitants
to exit the room into the hallway. Mr. Shaver and Ms.
Portillo did so immediately (Mr. Nunez had left the room
prior to MPD's arrival). At one point when Mr. Shaver was
attempting to comply with commands, Sergeant Langley stated,
“Alright, if you make another mistake, there's a
very severe possibility you're both going to get
shot.” When Mr. Shaver attempted to speak, Sergeant
Langley said “This is--shut up. I'm not here to be
tactful and diplomatic with you. You listen, you obey.”
Sergeant Langley then asked Mr. Shaver to place his hands on
the back of his head and interlace his fingers. Mr. Shaver
did so. Next, Sergeant Langley instructed Mr. Shaver to cross
his left foot over his right foot. Mr. Shaver did so.
Sergeant Langley told Mr. Shaver “If you move,
we're going to consider that a threat and we are going to
deal with it and you may not survive it.” Mr. Shaver
began to crawl towards the officers, complying with their
commands. As he did so, his athletic shorts started to fall
down. Mr. Shaver reached backwards towards his pants. At the
sight of this movement, Officer Brailsford fired five shots
from his AR-15. Mr. Shaver died as a result of the shooting.
the incident, Officer Brailsford was terminated from the
Department and Sergeant Langley took an early retirement.
Officers Cochran, Doane, Elmore, and Gomez remain employed by
purpose of summary judgment is “to isolate and dispose
of factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). Summary judgment is appropriate if the
evidence, viewed in the light most favorable to the nonmoving
party, shows “that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c). Only disputes
over facts that might affect the outcome of the suit will
preclude the entry of summary judgment, and the disputed
evidence must be “such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion and identifying those portions of [the record]
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex, 477 U.S. at 323.
Parties opposing summary judgment are required to
“cit[e] to particular parts of materials in the
record” establishing a genuine dispute or “show
that the materials cited do not establish the absence . . .
of a genuine dispute.” Fed.R.Civ.P. 56(c)(1).
Request to Amend the Rule 16 Order
Sweet and Shaver Plaintiffs now request that the Court amend
its Rule 16 order to allow additional discovery to be
conducted. Requests to amend a Rule 16 Order are governed by
Rule 16(b)'s “good cause” standard.
Johnson v. Mammoth Recreations Inc., 975 F.2d 604,
609 (9th Cir. 1992). This standard “primarily considers
the diligence of the party seeking the amendment.”
Id. And “[a]lthough the existence or degree of
prejudice to the party opposing the modification might supply
additional reasons to deny a motion, the focus of the inquiry
is upon the moving party's reasons for seeking
parties became aware of Officer Brailsford's pending
bankruptcy on February 7, 2019. At this time, the deadline
for finishing discovery was March 7, 2019, and the deadline
for filling dispositive motions was April 26, 2019. After the
bankruptcy proceedings began, all Defendants represented that
they collectively believed that no additional discovery by
any of the parties-even the deposition of Plaintiff Ms.
Sweet- could go forward while Defendant Brailsford's
bankruptcy proceeding was pending. (Doc. 326, Ex. B). As
such, the Plaintiffs here were unable to complete all
relevant discovery before these motions were filed.
the Defendants in this case collectively represented to
Plaintiffs that no further discovery could proceed while the
bankruptcy was pending (including discovery of
Plaintiffs' witnesses), the Court finds that Plaintiffs
have demonstrated good cause to amend the Rule 16
Order. And although additional discovery and
supplemental briefing may slightly prejudice Defendants as
they suggest, that result flows directly from Defendants'
own voluntary decision to halt discovery while the Motion to
Stay was pending.
Court will therefore reopen the discovery period for
ninety days from the date of this order, in
which the parties may seek to obtain that discovery that was
specifically identified among the parties and sought prior to
the bankruptcy proceeding. The new discovery cutoff is
October 31, 2019. To obtain discovery that
was not specifically identified and sought prior to the
bankruptcy proceeding will require the party to separately
show both good cause and unusual circumstances. After the
discovery period is closed the parties will have
thirty days thereafter up until
December 2, 2019, in which they may file a
supplement to their present briefing on the issues which
remain open after this order which include: (1) Whether Ms.
Sweet and N.S. have standing to bring certain claims, (2)
whether the City of Mesa is entitled to summary judgment on
Plaintiffs claims under 1983 or Arizona law for
unconstitutional custom or practice, failure to supervise,
ratification, or negligent hiring, (3) whether Officer
Langley was properly notified of the Shaver Plaintiffs'
state law claims, (4) whether Plaintiffs have sufficiently
pointed to facts from which a jury could find in their favor
on the intentional infliction of emotional distress claim;
and (5) whether Officers Gomez, Cochran, Doane, and Elmore
are entitled to summary judgment on the state law wrongful
death claim. The supplemental briefing will not exceed ten
pages-and will contain only facts and argument discovered
during the extended discovery period.
if the parties agree that the bankruptcy proceeding as to
Officer Brailsford has terminated, they shall conduct any
discovery relating to Officer Brailsford in this same period.
(At the time that Officer Brailsford filed for bankruptcy,
there were twenty-eight days of discovery left prior to the
cutoff). They may additionally move for summary judgment as
to issues pertaining to him within the same motion deadline.
(See Doc. 334).
Motion to Bifurcate
City of Mesa and remaining individual officers request that
this Court bifurcate two issues of standing as to the Sweet
Plaintiffs from the other remaining issues at trial under
Rule 42(b). Specifically, the City of Mesa argues that the
Court must first determine whether Plaintiff Laney Sweet was
Mr. Shaver's common law wife under Texas law, and also
determine whether one of the child plaintiffs was Mr.
42(b) states that a court may order a separate trial of
separate issues for convenience, to avoid prejudice, or to
expedite and economize. District courts have broad discretion
as to whether bifurcation is appropriate. United States
v. 1, 071.08 Acres of Land, Yuma and Mohave Counties,
564 F.2d 1350, 1352 (9th Cir. 1977). “The piecemeal
trial of separate issues in a single lawsuit . . . is not to
be the usual course, however, and will be ordered only where
the party seeking separate trials meets his or her burden of
proving that bifurcation is necessary.” Lassley v.
Secura Supreme Inc. Co., 2015 WL 5634307 at *2 (D.
Ariz., Sept. 15, 2015) (internal citations and quotation
marks omitted). At this time, Defendants have not met their
burden of demonstrating that bifurcation is necessary here.
Importantly, even if a jury were to find for Defendants on
both of these standing arguments, a trial on the merits would
still be necessary for the remaining plaintiffs. Accordingly,
the Court denies the Motion to Bifurcate.
because Defendants state additional discovery may be
necessary for proper resolution of this standing issues at
summary judgment, the Court will defer a ruling on the
standing arguments until after additional discovery on these
two issues is completed, including the deposition of Ms.
LQ Management moves for summary judgment against both sets of
Plaintiffs on the same grounds, the Court will analyze their
arguments as to both plaintiffs together.
La Quinta is Immune From Plaintiff's State Law Negligence
Arizona, “putative crime victims . . . are entitled to
absolute immunity when they complain to police.”
Ledvina v. Cerasani, 146 P.3d 70, 75 (Az. Ct. App.
2006). This immunity extends to “victims of crimes as
well as those who witness and report them.”
Ledvina 146 P.3d at 76. Ledvina announced
this broad immunity for two reasons: (1) to preserve
“utmost freedom of communication between citizens and
public authorities whose responsibility it is to investigate
and remedy wrongdoing, ” id. at 75 (internal
citation omitted), and (2) to further the policy embodied in
the Arizona Constitution that crime victims “be free
from intimidation, harassment, or abuse throughout the
criminal justice process.” Id. (citing Ariz.
Const. art. II, § 2.1(A)(1)). Courts in this district
have read Ledvina to prevent actions against
individuals who report potential crimes to the police.
See Clark v. Minore, 2017 WL 5668351, at *2 (D.
Ariz. 2017) (“[C]ivil claims based on police reports
are barred as a matter of law”); Shelburg v. City
of Scottsdale Police Dept., 2010 WL 3327690, at *12 (D.
Ariz., 2010) (“Arizona does not have a cause of action
for negligently calling the police”). In
Ledvina, the court left open the possibility of
exceptions to this broad immunity, including in cases of
malicious prosecution or abuse of process. Id.
Plaintiffs' allegations against La Quinta focus on the
information (or lack thereof) provided to MPD in the 911
call, and subsequent interactions with hotel staff. Had La
Quinta's employees provided additional or different
information to the MPD, their argument goes, an accurate
scope of the threat would have been relayed to the officers,
and Mr. Shaver's death could have been avoided.
Plaintiffs further allege that La Quinta negligently failed
to implement policies that would have better facilitated
their employees' processing of this information, and that
their employees additionally acted negligently by not
relaying additional information to the police regarding Mr.
broad immunity announced in Ledvina bars this claim.
While Ledvina involved a defamation claim, not a
negligence claim, other courts applying this privilege have
explained that “the privilege cannot be defeated by
providing a new label for the alleged wrong.”
Hagberg v. California Fed. Bank, 81 P.3d 244, 259
(Cal. 2004). The underlying conduct here-providing inaccurate
or incomplete information to police-is the exact conduct for
which Ledvina bars liability. Accordingly, La
Quinta's Motion for Summary Judgment as to both sets of
Plaintiffs is granted.
Rule 56(d) Motion
the Court finds that La Quinta is entirely immune from
Plaintiffs' negligence claims, it will deny the
Plaintiffs' Rule 56(d) motion as moot. Plaintiffs have
not alleged a malicious prosecution or abuse of process claim
against La Quinta, which are the kinds of claims that remain
available under Ledvina. Accordingly, any further
discovery would not change the outcome reached herein.
Section 1983 Claims
Officers Gomez, Doane, Cochran, and Elmore
immunity attaches when an official's conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (per
curiam) (internal quotation marks and citation omitted).
“In determining whether an officer is entitled to
qualified immunity, [courts] consider (1) whether there has
been a violation of a constitutional right; and (2) whether
that right was clearly established at the time of the
officer's alleged misconduct.” Lal v.
California, 746 F.3d 1112, 1116 (9th Cir. 2014). The
Supreme Court has cautioned lower courts not to define
clearly established law “at a high level of
generality.” White v. Pauley, 137 S.Ct. 548,
552 (2017). District courts have discretion as to which prong
of the qualified immunity analysis should be analyzed first.
See Jessop ...