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Sweet v. City of Mesa

United States District Court, D. Arizona

June 1, 2018

Laney Sweet, Plaintiff,
City of Mesa, et al., Defendants. Grady Shaver, et al. Plaintiffs,
City of Mesa, et al., Defendants.



         Pending before the Court are multiple Motions to Dismiss against both groups of Plaintiffs in this consolidated case. As to Plaintiffs Laney Sweet, E.S., N.S., and the Estate of Daniel Shaver (“the Sweet Plaintiffs”), Defendants Philip and Corrine Brailsford (Doc. 82), Defendants City of Mesa, Bryan Cochran and Jane Doe Cochran, Christopher Doane and Jane Doe Doane, Brian Elmore and Jane Doe Elmore, and Richard Gomez and Jane Doe Gomez (Doc. 83), and Defendant Charles Langley (Doc. 78) seek dismissal of some of the Sweet Plaintiffs' claims. The same Defendants seek dismissal of some or all of the Shaver Plaintiffs' claims. (Docs. 77, 81, 84). For the following reasons, the Court grants the motions in part and denies the motions in part.


         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. Mr. Shaver's job required him to carry pellet rifles and Mr. Shaver kept those in his hotel room to prevent theft. In the evening, Mr. Shaver ordered a pizza to his room and invited two other La Quinta guests, Monique Portillo and Luis Nunez, into his room to socialize.

         At some point, a member of the La Quinta hotel staff placed a call to 911, reporting that someone had told staff of an individual pointing a gun out of a hotel window. After receiving the report, Leticia Jimenez, a front desk employee, went outside to determine which hotel room was at issue. Ms. Jimenez was able to identify the room as Mr. Shaver's. Ms. Jimenez went up to Mr. Shaver's room, and saw a Hispanic male with a rifle in his hands. Because Ms. Jimenez was acquainted with Mr. Shaver, she knew that the individual holding the rifle was not Mr. Shaver.

         By 9:15 p.m., multiple Mesa Police Department (“MPD”) officers arrived at the La Quinta hotel. These officers included the Defendants Philip Brailsford, Charles Langley, Christopher Doane, Richard Gomez, Brian Elmore, and Bryan Cochran. Sergeant Langley was the senior responding officer and was in command of the other officers at the scene. At Sergeant Langley's direction, the MPD team moved up to Mr. Shaver's room. The MPD officers did not speak with La Quinta employees about the situation before doing so.

         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). After entering the hallway, 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.”

         The MPD officers worked to take Ms. Portillo into custody. Ms. Portillo had a purse, and was instructed by the officers to leave the purse in the hallway as she crawled towards the officers to be handcuffed. Sergeant Langley told Mr. Shaver to move into a kneeling position. This change in position caused Mr. Shaver to uncross his legs, which resulted in an immediate reaction and instruction from Sergeant Langley that Mr. Shaver was to keep his legs crossed. Mr. Shaver moved to put his hands behind his head, a movement which also elicited a response from Sergeant Langley. In response, Mr. Shaver began crying, asking the officers not to shoot him, and responding to the officers' requests with “yes sir.” Sergeant Langley told Mr. Shaver to begin crawling towards the officers, which required Mr. Shaver to crawl over Ms. Portillo's purse. While doing so, Mr. Shaver's athletic shorts began falling down. Mr. Shaver reached backwards towards his pants. At the sight of Mr. Shaver's movement, Officer Brailsford fired five shots from his AR-15. Mr. Shaver died as a result of the shooting. After the shooting, Officer Brailsford was fired from the MPD force and Sergeant Langley took an early retirement from the MPD. Officers Cochran, Doane, Elmore, and Gomez remain employed by MPD.

         Mr. Shaver's wife, Laney Sweet, filed an action on behalf of herself, her minor children (E.S. and N.S.), and Mr. Shaver's estate. Mr. Shaver's parents, Grady and Norma Shaver, filed an action on behalf of themselves. Both sets of plaintiffs sued the City of Mesa and the individual officers at the scene of Mr. Shaver's death. The various defendants now move to dismiss portions of both the Sweet and the Shaver complaints.


         I. Legal Standard

         “A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “In deciding such a motion, all material allegations of the complaint are accepted as true, as well as all reasonable inferences to be drawn from them.” Id. However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action”; it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff must allege sufficient facts to state a claim to relief that is plausible on its face. Iqbal, 556 U.S. at 678. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         II. Analysis

         A. The Sweet Complaint

         1. Count One: Wrongful Death by Laney Sweet, E.S., and N.S.

         The Sweet Plaintiffs bring a claim for wrongful death against all Defendants, pursuant to A.R.S. § 12-611. Defendant Langley moves to dismiss claims for punitive damages arising out of the state claims as barred by A.R.S. § 14-3110. Because punitive damages arising under state law claims are not recoverable against public employees acting within the scope of their public responsibilities, and the Complaint pleads that they were so acting, the Court dismisses punitive damages on the state law claims against Defendant Langley. The Court similarly dismisses punitive damages against Defendants Brailsford, Cochran, Doane, Elmore, and Gomez on the state law claims. At the time of the incident, they were also public employees acting within the scope of the public responsibilities.

         2. Count Three: § 1983 Claim by the Estate of Daniel Shaver for Violations of the Fourth and Fourteenth Amendments

         The Sweet Plaintiffs, on behalf of the Estate of Daniel Shaver, allege violations of the fourth and fourteenth amendments including violations of the rights to be free from: (1) unreasonable seizures; (2) excessive force; (3) deprivation of life, liberty, or property without due process of law; (4) summary punishment; and (5) arbitrary governmental activity. (Doc. 53, ¶ 213). This count is brought against “all Mesa defendants.” Id. at p. 10. Although not specified in Count Three itself, the Sweet Plaintiffs sued all of officers in both their individual and official capacity. Id. at ¶ 2.

         Defendants Brailsford and Langley argue that a § 1983 suit against the officers in their official capacity is duplicative of the suit against the City of Mesa. This is the same argument advanced by the Defendants in response to Count Two of the Shaver Complaint.[1] The Sweet Plaintiffs respond that the Complaint does not seek to bring duplicative claims.[2] Section 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects or caused to be subjected, any citizen of the United States . . . to the deprivation of any rights privileges or immunities secured by the Constitution and laws, shall be liable to the party injured.” Local municipalities and government units are considered a “person” under § 1983. Monell v. Dept. of Soc. Services of City of New York, 436 U.S. 658, 690-93 (1978) (holding that “it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983”). Suits against government officials in their official capacity “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Id. at 690, n. 55. An official capacity suit, therefore, is “to be treated as a suit against the entity. . . . for the real party in interest is the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). Thus, “if individuals are being sued in their official capacity as municipal officials and the municipal entity itself is also being sued, then the claims against the individuals are duplicative and should be dismissed.” Vance v. County of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996). Based on the Sweet Plaintiffs' representations, the Court understands the Sweet Plaintiffs to be bringing a § 1983 claim against the City of Mesa for any violations its employees took in their official capacity and a § 1983 claim against the officers in their individual capacity. Thus, Plaintiffs' claims against the Defendants in their individual capacities are not dismissed, but claims against the individual officers in their official capacity are dismissed.

         Next, all Defendants argue that claims under the Fourth and the Fourteenth Amendments are duplicative.[3] The Supreme Court has held that “all claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard, rather than under a ‘substantive due process' approach.” Graham v. Connor, 490 U.S. 386, 395 (1989). This is because “the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct” and is therefore better than “the more generalized notion of ‘substantive due process'” to evaluate claims. Id. Plaintiffs may still maintain separate Fourth and Fourteenth Amendment claims, but if the Fourteenth Amendment claim is identical to the Fourth Amendment claim, the Court will dismiss the Fourteenth Amendment claim. See, e.g., Mays v. Gillespie, No. 15-CV-01333-RFB-NJK, Doc., *2 (D. Nev. July 22, 2016); Johnson v. City of Berkeley, No. 15-CV-05343-JSC, Doc., *7 (N.D. Cal. Mar. 11, 2016); Stein v. City of Piedmont, No. 16-CV-01172-JCS, Doc., *4-5 (N.D. Cal. Aug. 15, 2016). At this early stage in the litigation, the Court will not dismiss the Fourteenth Amendment claims. Defendant Langley, for example, appears to argue that some of the encounter with Mr. Shaver occurred before Mr. Shaver was officially seized. Factual development is required to before determining when the seizure of Mr. Shaver began. The Sweet Plaintiffs' Complaint also alleges that Defendants failed to properly investigate the scene prior to moving up to Mr. Shaver's hotel room. If there is pre-seizure conduct by the Defendants, that conduct would be analyzed under a Fourteenth Amendment lens.[4]

         Finally, Defendant Langley asserts an entitlement to qualified immunity. Qualified immunity “balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). It is “an immunity from suit rather than a mere defense to liability” and “is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 51, 526 (1985). Courts must answer two questions in the affirmative to determine that the officer is entitled to qualified immunity: (1) whether the officer violated a constitutional right; and (2) whether that right was clearly established at the time of the officer's alleged misconduct. See Saucier v. Katz, 533 U.S. 194, 201 (2001). The Sweet Plaintiffs assert an integral participation theory. (Doc. 100, p. 12); (Doc. 101, p. 11). An integral participation claim “does not require that each officer's actions themselves rise to the level of a constitutional violation.” Boyd v. Benton, 374 F.3d 773, 780 (9th Cir. 2004). The integral participation theory allows a plaintiff to “extend[ ] liability to those actors who were integral participants in the constitutional violation, even if they did not directly engage in the unconstitutional conduct themselves.” Hopkins v. Bonvicino, 573 F.3d 752, 770 (9th Cir. 2009). For example, an officer who “stands at the door, armed with his gun, while other officers conduct the [unconstitutional] search” is an integral participant in the constitutional deprivation. Boyd, 374 F.3d at 780. But, “an officer who waits in the front yard interviewing a witness and does not participate in the unconstitutional search” is not an integral participant. Hopkins, 573 F.3d at 770. Accepting the Sweet Plaintiffs' factual pleadings as true, Defendant Langley in his supervision of the scene, and by his treatment of and instructions to Mr. Shaver may have created an environment that heightened the likelihood, if it did not directly result in, Defendant Brailsford shooting Mr. Shaver. Under such a theory, Defendant Langley was an integral participant in setting in motion the events that led to Mr. Shaver's death. Moreover, the constitutional violation at issue is Defendant Brailsford's excessive force and unlawful seizure of Mr. Shaver by lethally shooting him. On the Sweet Plaintiffs' facts, it is clearly established that an officer may not shoot a citizen who is unarmed and complying with officers' instructions. See Tennessee v. Garner, 471 U.S. 1, 11 (1985) (“A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.”). Given the early-stage posture of this case, the Court denies Defendant Langley's motion to dismiss on qualified immunity grounds.

         Defendant Langley asserts that punitive damages are not appropriate. Punitive damages are allowed under § 1983 “when a defendant's conduct was driven by evil motive or intent, or when it involved a reckless or callous indifference to the constitutional rights of others.” Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005) (quoting Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993)). Plaintiffs have pled and a jury could find that Defendant ...

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