United States District Court, D. Arizona
Murray Snow Chief United States District Judge.
before the Court are Defendant City of Lake Havasu City
(“Defendant”)'s Motion for Summary Judgment
(Doc. 123) and Plaintiff Tom Gonzales
(“Plaintiff”)'s Motion to Strike (Doc. 137).
pending are Plaintiff's Motion to Preclude the Testimony
of Defendant's Expert Witness Andrew Pacheco (Doc. 113)
and Defendant's Motion to Exclude Plaintiff's Expert
Lauren Freeman and Motion to Exclude Dr. Brady Wilson's
Credibility Opinion (Doc. 119). For the following reasons,
the Court grants Defendant's Motion for Summary Judgment,
denies Plaintiff's Motion to Strike, and terminates the
remaining motions as moot.
February 27, 2016, officers of the Lake Havasu City Police
Department responded to a report by Plaintiff's wife,
Mayra Gonzales, that Plaintiff had assaulted her and
attempted to prevent her from calling the police. Plaintiff
was subsequently charged with assault, disorderly conduct,
and preventing the use of a telephone in an emergency. On
March 16, 2016, Ms. Gonzales provided the Lake Havasu City
prosecutor, Kristen Rienfeld, with an unsigned retraction
letter in which she recanted her prior statements regarding
the events of February 27, 2016. In the letter, Ms. Gonzales
claimed that she was not the victim of any violence and did
not want to pursue any legal action against Plaintiff. Ms.
Gonzales submitted a second letter to the same effect on June
8, 2016. The second letter was signed and notarized.
Plaintiff's case proceeded to a bench trial on June 13,
2016. Ms. Rienfeld did not call Ms. Gonzales to testify, and
instead presented only testimony from the officers who
responded to the Gonzales's home on the night of the
incident. Plaintiff was convicted on July 27, 2016.
following day, Ms. Rienfeld filed charges against Ms.
Gonzales for making false statements to the police on the
night of the incident. This prompted Plaintiff to file a
Motion for New Trial. In the motion, Plaintiff argued that
Ms. Rienfeld's failure to inform Plaintiff that Ms.
Gonzales was charged with false statements amounted to
prosecutorial misconduct and Brady violations.
Plaintiff accused Ms. Rienfeld of charging him while at the
same time believing Ms. Gonzales lied about the allegations
for which he was convicted. Plaintiff's direct
supervisor, Charles Yager, City Prosecutor, answered
Plaintiff's Motion for New Trial because Ms. Rienfeld was
on vacation. However, that was the extent of his involvement
in the case. Before Plaintiff was sentenced, the court held
oral argument on the Motion for New Trial and the presiding
judge dismissed Plaintiff's charges with prejudice
“in the interest of justice.” The court, however,
declined to find prosecutorial misconduct or Brady
October 2017, Plaintiff brought this suit against Defendant
and Ms. Rienfeld in her individual capacity under 42 U.S.C.
§ 1983 for alleged violations of his Fifth, Sixth, and
Fourteenth Amendment rights. Plaintiff's original
complaint also included claims for malicious prosecution and
abuse of process. On January 22, 2018, Defendant and Ms.
Rienfeld filed a Motion for Judgment on the Pleadings. The
Court dismissed with prejudice all claims against Ms.
Rienfeld, finding that she was entitled to the defense of
absolute immunity. The Court also dismissed the malicious
prosecution and abuse of process claims against Defendant,
but granted Plaintiff leave to amend the complaint to make
clear “whether the claim is brought under 42 U.S.C.
§ 1983 or as a standalone state-law tort claim.”
(Doc. 42 at 9.) Finally, the Court denied the Motion as to
the 42 U.S.C. § 1983 claim against Defendant, finding
that Plaintiff's allegations were sufficient to state a
claim under Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978). On July 20, 2018,
Plaintiff timely filed an Amended Complaint. The Amended
Complaint maintained three causes of action against
Defendant: (1) a Monell claim under § 1983 for
violations of Plaintiff's Fifth, Sixth, and Fourteenth
Amendment rights; (2) malicious prosecution under §
1983; and (3) abuse of process under § 1983.
Additionally, Plaintiff alleged Arizona common law malicious
prosecution and Arizona common law abuse of process.
Defendant filed a Second Motion for Judgment on the
Pleadings. The Court found that Plaintiff plausibly alleged a
§ 1983 claim against the City for alleged violations of
his Fifth, Sixth, and Fourteenth Amendment rights and for
malicious prosecution under § 1983 and Arizona state
law. The Court dismissed Plaintiff's federal claim for
abuse of process but found that he had stated a claim under
Arizona law. Defendant now brings this motion for summary
judgment on the remaining claims. Plaintiff opposes
Defendant's motion and moves to strike certain exhibits
and witnesses relied upon by Defendant in its Motion for
Plaintiff's Motion to Strike
moves to strike Defendant's Exhibits 11, 17, 18, and 20.
Defendant withdraws, for purposes of this motion only,
Exhibits 11, 18, and 20. Thus, Exhibit 17- the declaration of
Ms. Kelly Garry, City Attorney-is the only exhibit in
dispute. Defendant seeks to use Ms. Garry's declaration,
among other evidence, to demonstrate that Ms. Garry, not Mr.
Yager, has “final policymaking authority” for
purposes of refuting Plaintiff's Monell claim.
Plaintiff argues that Defendant did not disclose Ms. Garry as
a fact witness until its Tenth Supplemental Mandatory
Discovery Response (“10th MIDR”) on Friday, July
12, 2019-three days before the close of discovery. Plaintiff
further claims that the disclosure was sent to Plaintiff by
mail and was not received until after the close of discovery.
Thus, Plaintiff moves to strike the declaration testimony as
Rule of Civil Procedure 26 requires parties to provide
opposing parties “the name . . . of each individual
likely have discoverable information-along with the subjects
of that information-that the disclosing party may use to
support its claims or defenses.” Fed.R.Civ.P.
26(a)(1)(A)(i). Rule 26(e) requires parties to supplement
those disclosures “in a timely manner if the party
learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to
the other parties during the discovery process or in
writing.” Fed.R.Civ.P. 26(e)(1)(A). Rule 37(c)(1)
states that “[i]f a party fails to provide information
or identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is
harmless.” The party facing sanctions has the burden to
show that the failure to disclose was substantially justified
or harmless. Torres v. City of Los Angeles, 548 F.3d
1197, 1213 (9th Cir. 2008).
November 19, 2018 response to Plaintiff's Request for
Admission Defendant sufficiently identified Ms. Garry as
having supervisory policymaking authority over Mr. Yager for
purposes of imposing liability under § 1983. Plaintiff
had requested an admission that “the Lake Havasu City
Prosecutor does in fact have final decision-making authority
regarding criminal prosecutions conducted by either the Lake
Havasu City Attorney, the Lake Havasu City Prosecutor, or the
Lake Havasu Assistant Prosecutor, ” (Doc. 141-1 at
5-6), to which Defendant responded,
The Lake Havasu City Attorney's Office has only two
prosecutors, Charles Yager and Kristin Rienfeld. Charles
Yager supervises Ms. Rienfeld. Kelly Garry, the Lake Havasu
City Attorney, supervises Mr. Yager. The City denies that Mr.
Yager is a “final” decision-maker, for purposes
of imposing liability on the City under §1983, because
although Ms. Garry does not typically exercise her authority
to override prosecutorial decisions made by either Mr. Yager
or Ms. Rienfeld, she is Mr. Yager's direct supervisor.
(Doc 141-1 at 6.) Defendant also provides excerpts from Mr.
Yager's June 2019 deposition that further detail Ms.
Garry's authority over Mr. Yager. Pursuant to Rule 26(e) and
General Order 17-08, new information revealed in a written
discovery response or deposition in a manner that reasonably
informs all parties of the information need not be presented
in a supplemental response. See Fed. R. Civ. P.
26(e) (“A party . . . must supplement or correct its
disclosure or response . . . if the additional or corrective
information has not otherwise been made known to the other
parties during the discovery process or in writing . . .
.”); AZ R USDCT Order 17-08 (“If new information
is revealed in a written discovery response or a deposition
in a manner that reasonably informs all parties of the
information, the information need not be presented in a
supplemental response.”). This is sufficient
pre-disclosure such that the final supplemental disclosure
was not unfair to the Plaintiff and will not be excluded.
Plaintiff had previously learned of Ms. Garry's identity
during discovery and had ample opportunity to pursue follow
up discovery with her if he so chose.
argues that he relied on Defendant's previous contention
that Mr. Yager was the City Attorney and that Lake Havasu
City Council was the final decision maker. Defendant,
however, made these assertions prior to the November 19, 2018
written discovery response and June 2019 depositions. Thus,
Plaintiff was made aware of Defendant's present theory
that Ms. Garry is the final policymaker through the discovery
process. Plaintiff was put on notice long before the close of
discovery that Ms. Garry may have discoverable information.
The Court declines to strike Ms. Garry's declaration
because it contains facts timely disclosed and any delayed
disclosure of Ms. Garry as a witness was harmless.
Defendant's Motion ...