Bueno v. Chang

          AMENDED ORDER

          David G. Campbell, Senior United States District Judge

         Plaintiff Ramon Luna Bueno, through counsel, brought this civil rights action pursuant to 42 U.S.C. § 1983. Defendants Sheriffs Deputy Don Marchand, Maricopa County Sheriff Paul Penzone, and Maricopa County move for summary judgment (collectively, "County Defendants"). (Doc. 105). Defendants J. Chang, B.Esperum, Keith Garn, C. Holton, C. Howard, B. Morris, and B. Wetzel (collectively, "City Defendants" separately move for summary judgment. (Doc. 107.) Plaintiff opposes both Motions. (Docs. 114, 122.)

         The Court will grant the County Defendants' Motion for Summary Judgment in its entirety and grant in part and deny in part the City Defendants' Motion for Summary Judgment.

         I. Background

         On screening the First Amended Complaint under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated claims in Count Two against the City Defendants for failure to intervene; in Count Four against the City Defendants for excessive force; in Count Five against the County Defendants for inadequate medical care; and in Count Six against the County Defendants for delaying or preventing legal visits from Plaintiffs retained civil attorney. (Doc. 25.) The Court directed those Defendants to answer the claims and dismissed the City of Phoenix and the remaining claims. (Id.)

         II. Summary Judgment Standard

         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., Ltd. v. Fritz Co., Inc., 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 that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and 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, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1).

         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 its analysis, the court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. 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).

         III. Facts

         The following facts are taken from the parties' respective Statements of Fact and Declarations. Where the facts are in dispute, the Court has used Plaintiffs version of the facts. See Anderson, 477 U.S. at 225.

         A. Plaintiffs Arrest

         On October 8, 2014, while conducting a traffic stop in the City of Phoenix, an Arizona Department of Public Safety (DPS) officer, Officer Casey, was shot in the face. (Doc. 108 at 2 ¶ 1.) The individual who shot Officer Casey, who officers believed to be Plaintiff, fled from the scene. (Id. ¶ 2.) After attempting to locate Plaintiff for almost a week, on October 15, 2014, detectives from the Phoenix Police Department (PPD) Major Offender Bureau obtained information that Plaintiff could be found at a residence on Vista Avenue in Phoenix. (Id. ¶ 3.) Because Plaintiff was believed to be armed and dangerous, several other PPD units, including the Special Assignments Unit (SAU), responded to assist the detectives "in a tactical operation" to take Plaintiff into custody. (Id. ¶ 4.) Law enforcement officers from several other agencies, including DPS, the Maricopa County Sheriffs Office (MCSO), the Bureau of Alcohol, Tobacco and Firearms (ATF), the Federal Bureau of Investigation, and the U.S. Marshal's Service, were also at the scene. (Id. ¶ 5.)

         At approximately 6:30 p.m. on October 15, 2014, the various City of Phoenix police officers who responded to the Vista Avenue house set up a perimeter and surrounded the house in preparation for taking Plaintiff and potentially other individuals who were in the house into custody. (Id. ¶ 6.) Defendant Wetzel is an SAU officer and was assigned as the primary negotiator at the Vista Avenue residence. (Id. ¶ 7.) Wetzel was positioned inside a "Bear" armored vehicle, which was parked in the driveway in the front of the residence. (Id. ¶ 8.) Defendant Esperum was assigned to SAU at the time of Plaintiff s arrest, and his primary position was as a negotiator. (Id. ¶ 9.) Esperum was positioned behind the Bear armored vehicle. (Id.) Defendants Chang and Holton were SAU officers who were positioned as snipers on a rooftop behind the residence to provide information and support for the officers who were on the ground attempting to take Plaintiff into custody. (Id. ¶ 10.) Defendant Howard is a City of Phoenix Police K-9 Officer. (Id. ¶ 11.) When Howard arrived at the residence, he positioned himself and his K-9 behind the Bear armored vehicle. (Id. ¶ 12.) Defendant Garn was a patrol officer with a collateral assignment to SAU as a hostage negotiator. (Id. ¶ 13.) Garn responded to the scene as part of the negotiation team, but when he arrived, Plaintiff had already been handcuffed. (Id. ¶ 14; Doc. 108-1 at 20.) Defendant Moms was a patrol officer with a collateral assignment to SAU as a hostage negotiator and responded to the scene as part of the negotiation team. (Doc. 108 ¶ 15.) Morris was one of the last officers to arrive at the scene, and by that time, Plaintiff had been taken into custody. (Doc. 108-1 at 23.)

         On October 15, 2014, Plaintiff went to the Vista Avenue residence to visit a woman whom he knew only as "Mousey." (Doc. 108 ¶ 16.) Mousey was not at the house, but other occupants of the house told Plaintiff that she would be returning soon, and he could wait for her there. (Id. ¶ 17.) Plaintiff was living on the streets at that time, and the other occupants told him he could do some laundry at the house while he was waiting for Mousey. (Id. ¶ 18.) Plaintiff was doing laundry in the carport and had put some of his clothing items on a clothesline in the backyard, and when he later went into the backyard to see if his clothes were dry, he heard someone say, "Freeze." (Id. ¶ 19.)

         When Plaintiff was in the carport of the Vista house and became aware of others in the darkness, he was not initially aware that they were law enforcement officers. (Doc. 115 ¶ 5.) An officer with a flashlight and a gun pointed it at Plaintiff, and he ran to the front of the house, where there were "all kinds of police officers," who told him to "freeze." (Id. ¶ 6.) Plaintiff went to a nearby wall, raised his hands above his head, and spread his legs. (Id.) Defendant Wetzel saw Plaintiff walk into the carport. (Doc. 108 ¶ 22.) Defendant Esperum saw Plaintiff by the east wall of the carport next to the house. (Id. ¶ 23.) Wetzel, Esperum, and Defendant Chang all saw Plaintiff put his hands on the wall of the house under the carport in response to commands by other officers. (Id. ¶ 24.) Esperum heard other officers near him at the back of the Bear armored vehicle give Plaintiff commands to walk to their location. (Id. ¶ 25.) Wetzel and Howard saw Plaintiff walk toward officers who were positioned behind the Bear armored vehicle. (Id. ¶ 37.)

         The City of Phoenix Police Report states that as the armored vehicles moved into position, "a male subject could be seen standing in the carport located on the west side of the house. Officers gave commands to the subject who complied and placed his hands on the wall of the house until he was further directed to be taken into custody." (Doc. 115 ¶ 7.) According to Plaintiff, officers gave Plaintiff "contradictory commands"; officers in the back told Plaintiff not to move, while officers in the front told him to come to the front. (Id. ¶ 8.) Plaintiff saw a laser pointer "going towards his head," and there was a "big floodlight" on him. (Id. ¶ 9.) Plaintiff told the officer in the front to "come and get [him]" because the officer in the back was telling him to stay. (Id. ¶ 10.) The officer in the front "finally came and got [him]," handcuffed him, turned him around, looked at him, and said, "that's him, that's him." (Id.)

         Defendant Howard avows in his Declaration that he saw Plaintiff being handcuffed by other officers "without incident and without any force being used." (Doc. 108 ¶ 38; Doc. 108-1 at 16.) Esperum does not recall having any physical contact with Plaintiff, but he believes it is possible he placed handcuffs on Plaintiff because he was near Plaintiff when the handcuffing occurred. (Doc. 108 ¶ 39.) After Plaintiff was handcuffed, he "was lifted into the air," and officers started "beating [him] up." (Doc. 115 ¶ 11.) Officers took Plaintiff toward a cul-de-sac and a dark "tactical SUV," slammed him on the street face down, and started "beating and torturing him." (Id. ¶ 12.) The officers had an unmuzzled K-9, which they held inches from Plaintiffs face. (Id.) The K-9 "barked and barked," and Plaintiff felt threatened by it. (Id.) However, the K-9 did not use any force against Plaintiff, and the K-9 did not come into contact with him. (Doc. 108 ¶ 53.) The officers continued to "beat on" Plaintiff but paused to ask him, "where is Danny Vargas[?]" (Doc. 115 ¶ 14.) Plaintiff said he did not know, and "the beating resumed." (Id.)

         The officers "talked shit" to Plaintiff and continued kicking and stomping him. (Id. ¶ 15.) The officers flipped him over, and one officer "grabbed the middle of the handcuffs and [] started pulling it back like [he was] trying to find out if [Plaintiff] was double-jointed." (Id.) The officer "started putting pressure on pressure," there was a "pop" in Plaintiffs shoulder, and the officer let go. (Id.) An officer was "stomping" on Plaintiffs head while the second officer was pulling back on the handcuffs. (Id. ¶ 16.) A female detective kicked Plaintiff in the face. (Id. ¶ 17.) After Plaintiffs shoulder popped, he was flipped over again, and "the same guy that was stomping on [his] head started stomping in the middle of [his] chest." (Id. ¶ 18.) Plaintiff was only able to identify the officer by his "floppy fishing type of hat." (Id. ¶ 19.) Another officer positioned Plaintiffs leg over the curb, and a second officer began stomping on Plaintiffs knee. (Id. ¶ 20.) Defendant Esperum states in his Declaration that he did not use any force on Plaintiff other than possibly assisting with or placing handcuffs on his wrists. (Doc. 108 ¶ 40; Doc. 108-1 at 7.)

         Most of the officers present were dressed in black, but some were dressed in plain clothes with their badge suspended on a chain. (Doc. 115 ¶ 21.) All SAU personnel who were involved in this incident were dressed in "full tactical police uniforms," including tactical ballistic vests containing police placards that clearly identified the officers as police. (Id. ¶ 22.) Plaintiff was "thrown into" a black SUV and taken directly to Phoenix Police Headquarters. (Id. ¶ 23.) Plaintiff was "pleading and yelling for help," but all the officers present laughed." (Id., ¶ 24.) The officers were "laughing and joking and talking about, oh, you ain't so tough now, you ain't so tough now." (Id.) Plaintiff "yelled real loud" and asked for help, but nobody ever came. (Id.)

         After his arrest, Plaintiff was charged in Maricopa County Superior Court case #CR2014-149887 with attempt to commit first-degree premeditated murder, aggravated assault, drive-by shooting, possession of a weapon by a prohibited possessor, and threatening or intimidating.^[1]

         B. Plaintiffs Injuries and Medical Treatment

         Prior to these events, on October 8, 1998, Plaintiff fell in the shower and injured his left shoulder. (Doc. 108 at 12 ¶ 73; Doc. 115 at 3 ¶ 23.) On June 21, 2014, Plaintiff dislocated his shoulder when he fell off a bicycle. (Doc. 108 ¶ 74; Doc. 115 ¶23.) Plaintiff had surgery on his shoulder, and it healed completely "about a month" after the bicycle accident and was "normal." (Doc. 115 ¶ 29.) Subsequently, Plaintiff was in good health and was free from back pain and other injuries. (Id. ¶ 31.)

         After Plaintiffs arrest on October 15, 2014, the Phoenix Fire Department responded to Phoenix Police Headquarters, where Plaintiff was being held and interrogated. (Id. ¶ 39.) Plaintiffs chief complaints were a headache and left shoulder separation. (Id.) Paramedics noted a right-side forehead abrasion and "shoulder dislocation - obvious [deviation]." (Id. ¶40.) Plaintiff was transported to St. Luke's Medical Center by Phoenix Police officers shortly after being checked by the Fire Department. (Id. ¶ 52; Doc. 106 ¶ 2.) Dr. Mark Mathurin medically cleared Plaintiff for jail and noted that Plaintiff had a left shoulder separation that "appear[ed] old." (Doc. 106 ¶ 2.)

         Plaintiff sustained some cuts, "lots of bruises," a gash on his right shoulder, and a torn ligament in his left shoulder, and his left collarbone popped out. (Doc. 115 ¶ 26.) Plaintiff also "claimed to have sustained an injury to his ACL on his left knee." (Id.) Over the next 30 days after being booked into jail, Plaintiff was evaluated and/or treated by Correctional Health Service (CHS) medical personnel. (Doc. 106 ¶ 4.) Specifically, on October 16, 2014, an initial health assessment was performed; on October 18, 2014, Plaintiff saw a nurse and complained of muscle strains and pain in his back, neck, and legs; on October 25, 2014, Plaintiff saw a nurse and complained of back pain; on October 31, 2014, Plaintiff saw a nurse and complained of shoulder, neck, and back pain; on November 3, 2014, a provider reviewed the records from St. Luke's and noted that no orthopedic referral was indicated; on November 18, 2014, Plaintiff was seen for pain in his left shoulder/arm, the back of his neck, and his left leg and lower back; on November 20, 2014, x-rays of Plaintiff s left knees were taken to rule out a fracture and were negative for signs of fracture, dislocation, subluxation, or other significant bony abnormality; on November 24, 2014, Plaintiff saw a nurse and complained of chest pain allegedly related to being stomped on the chest during his arrest; on December 1, 2014, Plaintiff saw a nurse for chest pain; on December 2, 2014, Plaintiff was seen in the clinic for follow-up regarding pain and x-rays; and on December 2, 2014, a provider reviewed the radiology report. (Id.)

         Plaintiff testified that every time he completed a Health Needs Request (HNR) requesting medical attention, he was seen by medical personnel. (Doc. 106-1 at 204.) Plaintiff also testified that no detention officer ever prevented him from receiving medical attention. (Id. at 197.) Plaintiff admits he received "quite a bit" of medical care while in Maricopa County custody. (Id. at 205.)

         Plaintiff sustained a left anterior cruciate ligament (ACL) tear that was confirmed on physical examination and by an MRI. (Doc. 115 ¶ 41.) On August 26, 2015, Dr. James Andry successfully performed ALC reconstruction surgery. (Id. ¶ 42.) Plaintiff also sustained a grade III AC joint separation with acromioclavicular joint arthropathy, which was confirmed by an MRI and x-rays. (Id. ¶ 43.) On May 23, 2016, Dr. Amon Ferry successfully performed surgery on Plaintiffs left shoulder. (Id. ¶¶ 44-45.)

         After his arrest, Plaintiffs shoulder bone was "sticking up." (Id. ¶ 30.) The bone was "not like that" after it had been repaired following the June 2014 bicycle accident. (Id.) The injuries to Plaintiffs shoulder impaired his ability to engage in normal activities "for a while." (Id. ¶ 27.) He experienced "a lot of pain" in his shoulder, and it was difficult to walk. (Id.) Plaintiff continues to experience pain in his left shoulder and left knee. (Id. ¶28.)

         C. Plaintiffs Visits with Civil Rights Counsel

         Plaintiff is housed in the Fourth Avenue Jail's most secure unit, the Special Management Unit (SMU). (Doc. 105 at 4.) SMU is reserved for detainees believed to pose the highest possible threat to the safety and security of the Jail based on the detainee's present charges and past convictions and his past and current institutional behavior. (Id.) On October 13, 2015, Plaintiffs counsel in this case, Jimmy Borunda, attempted to visit Plaintiff at SMU. (Doc. 123 at 4 ¶ 1.) Plaintiffs family had contacted Borunda, and the purpose of the October 13 visit was to inquire if Plaintiff wanted counsel to represent him in a civil lawsuit. (Id.) The visit was a cell-side visit, which requires visitors to walk down a hallway between the rows of individual cells to a detainee's cell. (Id. at 6 ¶ 21.) During a cell-side visit, the visitor visits the detainee from the dayroom by passing through the "rec room," which was shared with another detainee. (Id. ¶ 22.) Each cell in the Jail has a two-way speaker, and during a cell-side visit, a detention officer stands outside the slightly-opened door to the hallway. (Id. at ¶¶ 23, 25.) Detainees may exchange legal documents via a food trap door, but the food trap door remains closed during cell-side visits and can only be opened upon request by a detention officer who facilitates the transfer of documents and inspects them for contraband. (Id. at 2 ¶ 4.)

         During the cell-side visit on October 13, 2015, it was "extremely hard" for Borunda to hear Plaintiff because of the noise; Borunda and Plaintiff "had to yell back and forth." (Id. at 4 ¶ 2.) A "very loud" air conditioning vent was positioned near Plaintiffs cell, and Borunda and Plaintiff "were required to speak up through a grate" in the door separating the cell and the day room. (Id. at 7 ¶ 26.) Detention officers were "constantly passing by" and there was no privacy. (Id. at 4 ¶ 2.) Borunda asked a detention officer if he could visit with Plaintiff in the legal room, but the detention officer denied the request and stated that he had "orders to follow." (Id. ¶ 3.)

         On October 14, 2015, Borunda returned to the Fourth Avenue Jail for another legal visit. (Id. ¶ 4.) Borunda "was harassed" by staff, who "tried to check his credentials to see if he was a lawyer." (Id. at 7 ¶ 29.) The guards at the main entrance denied Borunda access to Plaintiff because Borunda was not "the attorney of record." (Id. at 4 ¶ 4.) Borunda explained that he was Plaintiffs civil attorney, and the guards asked for documentation of Plaintiffs civil case. (Id. ¶ 5.) When the guards "learned no complaint had been filed," they denied Mr. Borunda access, although they had previously granted a cell-side visit. (Id.) On October 17, 2015, Borunda attempted to make arrangements for a legal visit with Plaintiff. (Id. ¶ 6.) The same day, Plaintiff filed a grievance concerning the denial of a legal room visit. (Id. at 7 ¶ 35.) After Plaintiff filed the grievance, two intelligence officers told Plaintiff that Borunda would be allowed to visit cell-side. (Id. at 8 ¶ 36.)

         On October 23, 2015, Borunda received a phone call from Sergeant Brown, who told Borunda that he could not visit with Plaintiff "in any form" because he was not the attorney of record. (Id.) On October 26, 2015, Borunda received a phone call from Sergeant Pedone, who informed Borunda that he was "checking for approval" for visitation with Plaintiff. (Id. ¶ 7.) On October 28, 2015, Borunda received a call from Captain Scott Vail, who told Borunda that he could visit Plaintiff via video or through a cell-side visit outside of Plaintiff s cell. (Id. at 5 ¶ 9.) Borunda tried to explain why a cell-side visit was unacceptable, and Vail stated that he "got those orders from Don Marchand." (Id.) On October 29, 2015, Plaintiff received a note that stated his attorney would be allowed to visit him, but he claims "they still didn't let him come and visit." (Id. at 8 ¶ 44.)

         Over the next several months, Borunda left phone and email messages for Vail. (Id. at 5 ¶ 10.) On April 4, 2016, Vail responded that Marchand had reviewed the visitation request and that Borunda could only visit Plaintiff via cell-side or video visitation. (Id.) The same day, Borunda responded to Vail's email and copied Marchand. (Id. ¶ 11.) Borunda explained that a cell-side visit did not fulfill Plaintiffs constitutional right to a confidential, attorney-client privileged visit and that video visitation "does not permit the establishment of personal trust." (Id.)

         On April 7, 2016, Borunda sent Marchand an email, explaining that cell-side visits and video visits were unacceptable. (Id. ¶ 12.) On April 15, 2016, Borunda sent a similar email to Marchand. (Id.) The same day, Marchand called Borunda. (Id. ¶ 13.) Marchand stated that he had already responded to Borunda's request for a confidential legal visit with Plaintiff on several occasions through Vail and that his position was not going to change. (Id.) Borunda asked Marchand to put his "firm denial" in writing by responding to his e-mail, and Marchand refused and told Borunda he was "playing a game by trying to get him to respond in writing." (Id.) Marchand told Borunda to "take him to court or get him in front of a judge because his position was not going to change." (Id.)

         After a change in administration at MCSO, Borunda tried to visit Plaintiff on August 13, 2017 but was "refused a legal room visit." (Id. ¶ 14.) Borunda filed a motion for injunctive relief in this Court on August 17, 2017. (Id. at 6 ¶ 15; Doc. 20.) Maricopa County filed a response to the motion, claiming the restrictions were imposed with proper intentions, but "further review show[ed] them to be unnecessary." (Doc. 123 at 6 ¶ 16; Doc. 21.) Borunda "received assurances" from counsel for the County that he could visit Plaintiff without restrictions. (Doc. 123 at 6 ¶ 17.) By August 31, 2017, the former restrictions were rescinded, and Plaintiff was permitted to use the legal room for attorney visits. (Doc. 105 at 4.)

         On June 10, 2018, Borunda attempted to visit Plaintiff to discuss his answers to interrogatories propounded by the City, obtain Plaintiffs signature on medical reviews, and review some attorney-client correspondence. (Doc. 123 at 6 ¶ 18.) Borunda was escorted to the close custody section, where he met Officer Nelson. (Id. ¶ 19.) Nelson "refused to permit a legal room visit" with Plaintiff and offered him a cell-side visit instead. (Id.) Nelson could not provide a reason for the reversal from the previous practice and assurances of counsel for the County, except that he had "orders" from a "supervisor." (Id.)

         Plaintiff was only able to see Borunda once during a cell-side visit before the original Complaint was filed; other than that, Plaintiff was only able to communicate with counsel via phone and mail. (Id. at 6 ¶ 20; id. at 8 ¶¶ 41, 45.) Plaintiff was unable to approve or disapprove the First Amended Complaint before it was filed, and he was unable to sign a retainer agreement with Borunda until Borunda was permitted to visit Plaintiff in the legal room. (Id. at 7 ¶ 33-34.) Plaintiff only reviewed, but did not answer, the interrogatories propounded by the City because the only way he could assist in answering them was by mail. (Id. at 8 ¶ 42.) Plaintiff refused to talk about his case on the phone and he did not want to talk to any of his lawyers in his cell because of the speaker system installed in the cell. (Id. ¶¶ 40, 43.)

         IV. Discussion

         A. Excessive Force - Count Four

         1. Fourth Amendment Standard

         A claim that law enforcement officers used excessive force in the course of an arrest is analyzed under the Fourth Amendment and its "reasonableness" standard. Graham v. Connor,490 U.S. 386, 395 (1989). To determine whether the force used was reasonable requires a "careful balancing of 'the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Id. (quoting Tennessee v. Garner, 477 U.S. 1, 8 (1985). The Court must consider "the facts and circumstances of each particular case." Id. at 396. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. (citing Terry v. Ohio,392 U.S. 1, 20-22 (1968)). This is because "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount offeree that is necessary in a particular situation." Id. at 396-97. The ...