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Rodriguez-Wakelin v. Barry

United States District Court, D. Arizona

September 27, 2019

Anita Rodriguez-Wakelin, Plaintiff,
v.
Daniel Barry, et al., Defendants.

          ORDER

          Honorable Rosemary Marquez United States District Judge

         On August 1, 2017, Plaintiff Anita Rodriguez-Wakelin filed a pro se Complaint against Tucson Police Department (“TPD”) officers Daniel Barry (“Barry”), Gary Parrish (“Parrish”), and Scott Glass (“Glass”); Pima County Attorney Barbara LaWall (“LaWall”); and unknown TPD officers. (Doc. 1.) Plaintiff’s Complaint asserts claims for negligence, gross negligence, wrongful death, and malicious prosecution; claims under 42 U.S.C. § 1983 alleging due process violations under the Fifth and Fourteenth Amendments; and § 1983 claims alleging unreasonable search and seizure, false imprisonment, and false arrest under the Fourth Amendment. (Doc. 1 at 2.)[1]

         Defendants answered the Complaint (Docs. 4, 7), and Defendant LaWall filed a Motion to Dismiss (Doc. 6). The Court dismissed LaWall on the grounds of absolute immunity. (Doc. 20.) The Court later granted summary judgment in favor of Defendants Barry, Parrish, and Glass on Plaintiff’s state-law claims due to Plaintiff’s failure to comply with Arizona’s notice-of-claim statute, A.R.S. § 12-821.01. (Doc. 82.)

         Currently pending before the Court is Defendants Barry, Parrish, and Glass’s Motion for Summary Judgment (Doc. 86) seeking dismissal of Plaintiff’s § 1983 claims. The Motion is fully briefed. (Docs. 98, 100, 106.)[2] The Court held oral argument on June 20, 2019, and took the matter under advisement. (Doc. 109.)

         I. Standard of Review

         A court must grant summary judgment “if the movant shows that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and to show (1) that the fact in contention is material, i.e., a fact “that might affect the outcome of the suit under the governing law, ” and (2) that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); see also Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995).

         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 other materials in the record.” Fed.R.Civ.P. 56(c)(3).

         II. Facts

         Defendant Barry is a TPD detective assigned to the Internet Crimes Against Children (“ICAC”) Unit. (Doc. 87 at 1-2; Doc. 87-2 at 2, 28.) On December 2, 2015, an investigative tool used by TPD’s ICAC unit located a computer with the IP address 68.228.45.62 that was potentially sharing child sexual abuse files on the Bittorrent network. (Doc. 87 at 2; Doc. 87-2 at 13, 29-30.) TPD’s undercover computer automatically queried the computer with IP address 68.228.45.62, and numerous files of interest were downloaded onto the undercover computer. (Doc. 87 at 2; Doc. 87-2 at 13, 30.) Barry reviewed the files and determined that they depicted children under the age of 18 engaged in sexual acts and/or exploitive exhibition. (Doc. 87 at 3; Doc. 87-2 at 13, 30.)

         On December 3, 2015, Barry obtained a grand jury subpoena requiring Cox Communications to provide subscriber information related to IP address 68.228.45.62 used on December 2, 2015. (Doc. 87 at 3; Doc. 87-2 at 14, 21.) There is no evidence that either Glass or Parrish assisted Barry with the grand jury subpoena. (Doc. 87 at 4; Doc. 87-2 at 43, 51.) In an Incident/Investigation Report, Barry wrote that Cox Communications responded to the subpoena on November 12, 2015, identifying Plaintiff’s son, Alejandro Wakelin (“Alex”), as the subscriber associated with IP address 68.228.45.62. (Doc. 87-2 at 14.)[3]

         Attached as an exhibit to Defendants’ Statement of Facts is an email from Cox Communications to Barry that is dated December 28, 2015 and includes the subject line: “Customer Information Request.” (Doc. 87-2 at 22.) The email itself does not reference any particular customer or IP address, nor does it indicate how many pages of records are attached. (Id.) The next page of the exhibit is titled “Responsive Records” and indicates that 1 DHCP lease record was found for IP address 68.228.45.62, with a start date of July 11, 2015 and an end date of December 29, 2015. (Id. at 23.) That page does not mention Alex’s name. (Id.) The third page of the exhibit is a screenshot of a Cox Communications customer information page for account number 5213258-04. (Id. at 24.) That page lists Alex’s name, address, and phone number, and indicates that Alex’s account had been active since February 17, 2013; the page does not mention IP address 68.228.45.62. (Id.) Plaintiff has not identified any evidence undermining Defendants’ representation that the three pages of this exhibit together constitute Cox’s response to the grand jury subpoena. According to Barry’s Incident/Investigation Report and search warrant affidavit, after receiving Cox’s subpoena response, TPD conducted a wireless surveillance of the area surrounding Alex’s address to ensure there were no unsecured wireless networks. (Doc. 87 at 3; Doc. 87-2 at 14, 31.)

         On July 27, 2016, Pima County Superior Court Judge Kenneth Lee issued a search warrant for Alex’s apartment and car. (Doc. 87 at 4; Doc. 87-2 at 15, 25-32, 38-41.) Barry prepared and presented the affidavit in support of the search warrant. (Doc. 87 at 3-4; Doc. 87-2 at 15, 25-32.) Parrish, as the Sergeant of Barry’s unit, sometimes reviewed search warrant affidavits, but he cannot recall if he reviewed the affidavit Barry prepared for the search of Alex’s apartment and car. (Doc. 87-2 at 55.) The record contains no evidence indicating that Glass was involved in the preparation or presentation of the search warrant affidavit. (Doc. 87 at 4; Doc. 87-2 at 47.)

         Barry’s search warrant affidavit describes Barry’s training and experience, the crime being investigated, and the December 2015 download of files of interest. (Doc. 87-2 at 28-30.) Specifically, the affidavit states that TPD’s investigative tool downloaded files of interest from a computer with IP address 68.225.45.62. (Id. at 30.) The affidavit further states that Barry requested a grand jury subpoena directing Cox Communications to provide subscriber information for the user of IP address 68.228.45.62. (Id.) The affidavit then states: . . . .

On 12/28/15, Cox Communications responded to the subpoena, identifying the following subscriber as being associated with IP address 70.176.130.130 from 07/11/2015 at 08:01:42 (GMT) and 12/29/15 at 20:16:43 (GMT.)
Subscriber Name: Alejandro Wakelin Service Address: 5755 E. River Rd. #1728 Tucson, AZ 85750 Telephone Number: (520) 661-1169

(Id.) Finally, the affidavit describes characteristics of child pornography collectors, including that they typically retain child pornography for many years and keep it hidden from others in private places. (Id. at 31.) The affidavit requests a warrant to search Alex’s apartment and car for indicia of occupancy; pornographic DVDs, CDs, VHS recordings, photographs, and images; and a variety of electronic devices including computers, memory drives, and cell phones. (Id. at 25-27.)

         Detectives from the ICAC Unit and the Sex Offender Registration and Tracking Unit, including Barry, Parrish, and Glass, executed the search warrant on July 28, 2016. (Doc. 87 at 5; Doc. 87-2 at 15; see also Doc. 98-20.) The officers immediately detained Alex and his girlfriend, and took both individuals to the ICAC Command Post located at the apartment complex. (Doc. 87 at 5; Doc. 87-2 at 15.) Barry asked Alex if he wished to speak to him about why the search warrant was being served, but Alex asked if he could have an attorney and was not questioned.[4] (Doc. 87 at 5; Doc. 87-2 at 15.) Barry interviewed Alex’s girlfriend, searched her cell phone with her permission, and allowed her to leave after no files of interest were found on the phone. (Doc. 87 at 5; Doc. 87-2 at 15.)

         On the date that the search warrant was executed but at an unknown time, Barry forensically previewed numerous items seized from Alex’s residence. (Doc. 87 at 6; Doc. 87-2 at 3-4, 15-16.) He located evidence of the installation of qBitTorrent and uTorrent, both of which are software used to access the BitTorrent network. (Doc. 87 at 6; Doc. 87-2 at 3-4, 15-16.) Barry also located over 275 .torrent files with names consistent with child pornography. (Doc. 87-2 at 3-4, 16.) A .torrent file contains metadata about files and folders to be distributed but does not contain the content to be distributed. (Id. at 16.) Barry also located a folder identical to one downloaded by the TPD undercover computer in the recycle bin of a hard drive seized from Alex’s residence, though the actual contents of the folders were no longer present on the drive. (Id.) Barry did not locate the content of any files of interest in the items seized from Alex’s apartment. (Doc. 87 at 6.) However, based on the remnants located during the forensic preview analysis, Barry concluded that ten files of interest had been downloaded from Alex’s computer by TPD’s undercover computer. (Doc. 87-2 at 15-17.)[5] A second forensic preview completed on July 29, 2016 concluded that files of interest had most likely been transferred to an external drive not found during the search. (See Id . at 16.)

         TPD arrested Alex and charged him with ten counts of sexual exploitation of a minor in violation of A.R.S. § 13-3553. (Doc. 87 at 6; Doc. 98-6 at 1.) The documents in the record before the Court contain a discrepancy concerning the date of Alex’s arrest. Barry’s discovery responses and his Incident/Investigation Report indicate Alex was arrested after the forensic preview of items seized from his apartment (see Doc. 87-2 at 3-4, 15-17), and a document titled TPD Booking Information Summary similarly indicates that Alex was arrested on July 28, 2016 (Doc. 98-14). In contrast, the arrest report indicates that Alex was arrested on January 27, 2016 at 11:26 (Doc. 98-6). The January 27, 2016 date also appears on Barry’s Incident/Investigation Report, which is dated August 1, 2016 but inexplicably lists a follow-up supplement date of January 27, 2016. (Doc. 87-2 at 12.) In addition, the January 27, 2016 date is contained in a document titled “Event Chronology - E160270355” which appears to describe a call regarding sex offenses related to Cheena Productions located at 5755 E. River Road. (Doc. 98-8.) A document titled “Calls for Service Report” indicates that on January 27, 2016, Barry responded to an incident regarding sex offenses at 5755 E. River Road, and that event E160270355 was assigned case number P1601-270242. (Doc. 98-10.) The dispatch date and time, January 27, 2016 at 11:26 (id.), corresponds to the date and time listed on Alex’s arrest report (Doc. 98-6). Furthermore, the case number 1601270242 corresponds to the case number listed in the arrest report and in Barry’s Incident/Investigation Report for the investigation of Alex. (Doc. 87-2 at 12; Doc. 98-6; Doc. 98-10.) This date, time, and case number are also contained in a document titled “Case Summary Report.” (Doc. 98-12.)

         On August 9, 2016, Defendant Glass authored a supplement to the Incident/Investigation Report for case number 1601270242, stating that he had been informed on August 8, 2016 that Alex had been found dead of an apparent self-inflicted gunshot wound on August 6, 2016. (Doc. 98-20.)[6] Glass further stated that he notified Barry, Parrish, and the Pima County Attorney’s Office of Alex’s death. (Id.) On August 15, 2016, Barry wrote a supplement to his Incident/Investigation Report, indicating that he was to present Alex’s case to the Pima County Grand Jury on that date but that on August 9, 2016 he was advised that Alex had been found near Flagstaff, Arizona, deceased as a victim of an apparent suicide, and that Alex’s case had therefore been “exceptionally closed.” (Doc. 87-2 at 20; Doc. 98-22.) The precise date of the dismissal of Alex’s charges is unclear. Plaintiff avers that the charges were dismissed on August 5, 2016, prior to Alex’s death. (Doc. 95 at 5-6.) A signed document dismissing the criminal complaint against Alex contains both the dates August 5, 2016 and August 8, 2016. (See Doc. 98-26.) Alex’s public defender sent him a letter dated August 8, 2016, stating that the felony charge against him had been dismissed. (Doc. 51-15.)

         III. Discussion

         Prior to addressing the merits of Defendants’ Motion for Summary Judgment, the Court first addresses preliminary matters bearing on the proper analysis of the claims asserted in Plaintiff’s Complaint.

         A. Official-Capacity vs. Individual-Capacity Claims

         The caption of Plaintiff’s Complaint (Doc. 1 at 1) indicates that Defendants Barry, Parrish, and Glass are being sued in their official capacities. However, the remainder of Plaintiff’s Complaint and the course of proceedings in this case indicate Defendants are being sued in their individual capacities.

         A government official may be sued in their individual capacity for damages under 42 U.S.C. § 1983 based on acts taken in an official capacity. See Hafer v. Melo, 502 U.S. 21, 31 (1991). In an individual-capacity suit, the plaintiff must show that the individual defendant “was personally involved in the deprivation of [the plaintiff’s] civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). The plaintiff need not show a connection to a governmental policy or custom. Hafer, 502 U.S. at 25. In contrast, an official-capacity suit “generally represent[s] only another way of pleading an action against the entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 166 (1985) (internal quotation omitted). Because the governmental entity is the real party in interest in an official-capacity suit, the plaintiff must show that the entity had a policy or custom that was the moving force behind the alleged constitutional violation. Hafer, 502 U.S. at 25; see also Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694-95 (1978).

         The Court has a duty to construe pro se pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (“A document filed pro se is to be liberally construed” (internal quotation omitted)). Furthermore, when a complaint is ambiguous regarding whether a government official is being sued in a personal or official capacity, courts take a flexible approach that looks to the entirety of the complaint and the course of the proceedings to determine the capacity in which the individual has been sued. See Kentucky, 473 U.S. at 167 n.14; Shoshone-Bannock Tribes v. Fish & Game Comm’n, 42 F.3d 1278, 1284-85 (9th Cir. 1994). Although the caption of the Complaint should be considered, it is generally not controlling. Shoshone-Bannock Tribes, 42 F.3d at 1285.

         Plaintiff indicates in her Complaint that she seeks to “correct the TPD” and “its Officers” of “its policies and practices that fostered [the officers’ alleged] misconduct.” (Doc. 1 at 6.) However, the factual allegations of the Complaint, as well as Plaintiff’s response and surreply to Defendant’s Motion for Summary Judgment, focus on the actions of the individual defendants rather than specific TPD policies or practices.[7]Defendants’ written briefs and their assertion of qualified immunity indicate that Defendants believe Plaintiff’s Complaint asserts individual-capacity claims. Based on the language of Plaintiff’s Complaint and the course of proceedings in this case, the Court will analyze Plaintiff’s claims as individual-capacity claims.

         B. Survivorship vs. Third-Party vs. Wrongful Death Claims

         Plaintiff appears to be asserting constitutional claims on behalf of three people: her son Alex, Plaintiff herself, and Alex’s girlfriend. Plaintiff asserts that Alex’s constitutional rights under the Fourth, Fifth, and Fourteenth Amendments were violated. She also asserts a wrongful death claim and seeks damages that she suffered personally, such as loss of companionship and emotional distress resulting from the death of her son; it is not clear from her Complaint whether the wrongful death claim is asserted solely under state law or also under § 1983, but the Court must construe pro se pleadings liberally. See Erickson, 551 U.S. at 94. In addition to asserting claims based on the rights of Alex and herself, Plaintiff also alleges that Defendants violated the constitutional rights of Alex’s girlfriend.

         Alex’s girlfriend is not a party to this action, and Plaintiff cannot assert claims on her behalf. See Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (as a general rule, pro se plaintiffs cannot pursue claims on behalf of others in a representative capacity); see also Alderman v. United States, 394 U.S. 165, 174 (1969) (“Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.”) However, Defendants concede that Plaintiff has standing to assert claims on behalf of Alex, as she is apparently the representative of his estate.[8]Pursuant to 42 U.S.C. § 1988, a claim under 42 U.S.C. § 1983 that accrued before death survives the decedent if state law authorizes a survival action and the state law of survivorship is consistent with the policies underlying 42 U.S.C. § 1983. See Robertson v. Wegmann, 436 U.S. 584, 588-90 (1978). With limited exceptions not relevant here, Arizona’s survival statute provides that every cause of action “shall survive the death of the person entitled thereto . . . and may be asserted by . . . the personal representative of such person.” A.R.S. § 14-3110.[9]

         Survival claims are distinguishable from wrongful death claims. A survival claim is the decedent’s own cause of action, brought on the decedent’s behalf by a representative of the decedent’s estate; damages on such a claim result from losses suffered by the decedent as a result of the violation of the decedent’s rights. See Smith v. City of Fontana, 818 F.2d 1411, 1416-17, 1420 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc). In contrast, a wrongful death claim brought under § 1983 alleges that the decedent’s death violated the plaintiff’s constitutional rights by interfering with the plaintiff’s liberty interests in the companionship and society of the decedent; damages on a wrongful death claim are the losses that the plaintiff suffered ...


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