United States District Court, D. Arizona
G. Campbell, Senior United States District Judge
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.)
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.
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.)
Summary Judgment Standard
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.
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.
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).
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.
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.
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.
Plaintiffs Injuries and Medical Treatment
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.
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.)
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.)
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.)
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.)
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.
Plaintiffs Visits with Civil Rights Counsel
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.)
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.)
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.)
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.)
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."
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."
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.)
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
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.)
Excessive Force - Count Four
Fourth Amendment Standard
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