Sweet v. City of Mesa

          AMENDED ORDER

          G. Murray Snow Chief United States District Judge.

         Pending 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 conducted.^[1]

         BACKGROUND

         On 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.^[2] Mr. Shaver's job required him to carry pellet rifles.

         On the 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.

         Upon 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.

         By 9:15 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.^[3] 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.

         An MPD 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.

         After 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 MPD.

         DISCUSSION

         I. Legal Standard

         The 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.

         “[A] 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).

         II. Analysis

         A. Request to Amend the Rule 16 Order

         The 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 modification.” Id.

         The 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.

         Because 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.^[4] 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.

         The 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.

         Additionally, 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).

         B. Motion to Bifurcate

          The 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. Shaver's.

         Rule 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.

         However, 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. Sweet.

         C. La Quinta

         Because 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.

         1. La Quinta is Immune From Plaintiff's State Law Negligence Claim.

         In 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.

         Here, 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. Shaver.

         The 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.

         2. Rule 56(d) Motion

         Because 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.

         D. Section 1983 Claims

         1. Officers Gomez, Doane, Cochran, and Elmore

         “Qualified 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 ...