United States District Court, D. Arizona
HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE.
before the Court are the parties' motions for summary
judgment pursuant to Federal Rule of Civil Procedure 56.
Defendants Town of Gilbert (the “Town”) and
Officer Steve Gilbert (“Officer Gilbert”)
(collectively “Defendants”) moved for partial
summary judgment on Counts I and VI. (Doc. 49). Plaintiff
also moved for partial summary judgment on Count VI. (Doc.
54). Oral argument was held on April 5, 2019. The Court has
now considered the Motions, Responses, and Replies, along
with arguments of counsel and relevant case law.
following facts are taken from Plaintiff's and
Defendants' “Joint Statement of Facts in Support of
the Parties' Respective Motions for Partial Summary
Judgment, ” (Doc. 51, “JSOF”), or were
stipulated to by the parties, (Doc. 36). On May 5, 2016,
Gilbert Police Department Officer Chris Robinson saw
Plaintiff's vehicle swerving on the road. Plaintiff saw
emergency lights flashing behind him as he drove. Officer
Robinson activated the police vehicle's siren. Plaintiff
continued driving until he reached his residence, opened the
garage door remotely, pulled into the two-car garage, shut
off his vehicle, and then started to close the garage door
remotely. Officer Robinson stopped the garage door from
closing and waited for back-up officers to arrive. For the
next 2 1/2 minutes, Officer Robinson gave at least 13 verbal
orders for Plaintiff to step out of the vehicle. Officer
Robinson also verbally warned Plaintiff that he would be
arrested for failing to obey a police officer. Plaintiff
refused Officer Robinson's verbal commands, repeatedly
stating “no, I'm right here.” About 90
seconds after Plaintiff drove into the garage, Officer Justin
Leach arrived. Officers Robinson and Leach approached the
vehicle with guns drawn. Officer Robinson approached the
driver's door, where there was less than 3 feet of space
between the driver's door and garage wall. Officer
Robinson told Plaintiff at least 7 more times to get out of
the vehicle because he was under arrest. Plaintiff refused to
leave his vehicle. For the next 60 seconds, Officer Robinson
applied physical force to Plaintiff to get him out of the
vehicle. Officer Robinson used control holds such as grabbing
Plaintiff's left forearm, his left leg, and his head.
Plaintiff resisted these control holds by tucking his arms
close to his body and repeatedly stating, “No, I'm
not under arrest.” Officer Robinson attempted another
control hold technique, by grabbing Plaintiff's right
ear. Plaintiff stated, “Sorry, dude, I'm not going
nowhere.” Officer Robinson detected that
Plaintiff's eyes were bloodshot, his speech was slurred,
and his breath smelled of alcohol. Officer Robinson then
deployed pepper spray in Plaintiff's face. Officer
Robinson told Plaintiff at least 8 more times that he was
under arrest and to get out of the vehicle. Plaintiff
continued to ignore these commands. Officer Robinson warned
Plaintiff at least 5 times that a police dog was going to be
used to bite him and pull him from the vehicle if Plaintiff
did not step out. Plaintiff responded, “I'm not
going nowhere, dude, ” “You're on my
property, bro. You can't do this shit, ” and
“No, I am not.” Officer Gilbert approached
Plaintiff's vehicle from about 6-10 feet away with his
police dog, Murphy, on leash. Both the driver's door and
front passenger door of Plaintiff's vehicle were open.
Officer Gilbert loudly stated, “Sir, step out of the
car or the dog will bite you. Step out of the car, step out
of the car.” Plaintiff closed the driver's door and
leaned to his right to close the front passenger door.
Officer Gilbert released K9 Murphy to enter the vehicle
through the front passenger door. K9 Murphy bit Plaintiff on
the left bicep. Officer Robinson ordered Plaintiff to crawl
out of the vehicle. Plaintiff repeatedly yelled
“Alright.” After about 36 seconds, Officer
Gilbert commanded K9 Murphy to release the bite. About 14
seconds later, K9 Murphy released the bite on Plaintiff's
left upper arm, but hung onto Plaintiff's shirt for
another 22 seconds before completely releasing the bite.
After K9 Murphy released the bite, Officers Robinson and
Leach physically pulled Plaintiff from the vehicle and moved
him to the driveway to handcuff him. At the time of this
incident, Plaintiff was under the influence of an
intoxicating liquor, and had a blood alcohol concentration of
Plaintiff and Defendants view of the facts differ regarding
what happened after K9 Murphy first bit Plaintiff, the Court
notes that the officer body-camera videos worn by officers at
the scene (the “Videos”), which were submitted as
evidence (JSOF, Exhibits E, F, G), provide a picture of what
occurred after K9 Murphy entered the vehicle. Even after K9
Murphy was called off, Plaintiff is seen telling officers
that they were on his property and holding on to the headrest
as officers attempt to remove him from the vehicle. (JSOF,
Exhibit E at 8:44). Officers were then forced to pull
Plaintiff from the vehicle, as Plaintiff continued to resist.
(JSOF, Exhibit E at 9:10).
commenced this action in state court on May 5, 2017, and the
action was subsequently removed to this Court. (Doc. 1).
After orders dismissing multiple counts and multiple
defendants, (Docs. 19, 25, 42), the remaining counts before
the Court are as follows: (1) Count I against the Town for
Negligence and Gross Negligence, (2) Count II against the
Town for Negligent Training, and (3) Count VI, brought
pursuant to 42 U.S.C. § 1983, against Officer Gilbert
alleging the use of excessive force in violation of the
Fourth and Fourteenth Amendments. Plaintiff now moves for
partial summary judgment on Count VI, (Doc. 54), and
Defendants move for partial summary judgment on Counts I and
VI, (Doc. 49).
judgment is appropriate when “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). A
material fact is any factual issue that might affect the
outcome of the case under the governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute about a fact is “genuine” if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Id. “A party
asserting that a fact cannot be or is genuinely disputed must
support the assertion by . . . citing to particular parts of
materials in the record” or by “showing that
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56(c)(1)(A), (B). The court need only consider the cited
materials, but it may also consider any other materials in
the record. Id. 56(c)(3).
the movant bears the burden of demonstrating to the Court the
basis for the motion and “identifying those portions of
[the record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the movant fails
to carry its initial burden, the nonmovant need not produce
anything. Nissan Fire & Marine Ins. Co. v. Fritz
Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the
movant meets its initial responsibility, the burden then
shifts to the nonmovant to establish the existence of a
genuine issue of material fact. Id. at 1103. The
nonmovant need not establish a material issue of fact
conclusively in its favor, but it “must do more than
simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
nonmovant's bare assertions, standing alone, are
insufficient to create a material issue of fact and defeat a
motion for summary judgment. Liberty Lobby, 477 U.S.
at 247-48. “If the evidence is merely colorable, or is
not significantly probative, summary judgment may be
granted.” Id. at 249-50 (citations omitted).
However, in the summary judgment context, the Court believes
the nonmovant's evidence, id. at 255, and
construes all disputed facts in the light most favorable to
the nonmoving party, Ellison v. Robertson, 357 F.3d
1072, 1075 (9th Cir. 2004). “When the record contains a
‘videotape capturing the events in question,' and
that videotape ‘quite clearly contradicts the version
of the story told by' one party, the court need not adopt
that party's version of the facts, but should instead
rely on the facts as presented in the recording.”
Hulstedt v. City of Scottsdale, 884 F.Supp.2d 972,
989 (D. Ariz. 2012) (quoting Scott v. Harris, 550
U.S. 372, 378 (2007)). If “the evidence yields
conflicting inferences [regarding material facts], summary
judgment is improper, and the action must proceed to
trial.” O'Connor v. Boeing N. Am., Inc.,
311 F.3d 1139, 1150 (9th Cir. 2002).
Rule of Civil Procedure 56 “is silent as to how the
court must analyze simultaneous cross-motions for summary
judgment.” Fair Hous. Council of Riverside Cty.,
Inc. v. Riverside Two, 249 F.3d 1132, 1135 (9th Cir.
2001). Even though the Court is presented with cross-motions
for summary judgment, the Court must view the materials on
file in the light most favorable to the nonmoving party.
Oshilaja v. Watterson, No. CV 05-3429-PHX-RCB, 2007
WL 2903029, at *4 (D. Ariz. Sept. 30, 2007) (citing High
Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d
563, 574 (9th Cir. 1990)).
moved for partial summary judgment on Count VI-excessive
force in violation of the Fourth Amendment brought pursuant
to 42 U.S.C. § 1983. (Doc. 54). Defendants filed a
Response, (Doc. 57), and Plaintiff filed a Reply, (Doc. 62).
Plaintiff argues that Officer Gilbert used unreasonable force
by ordering K9 Murphy to “bite and hold [Plaintiff] for
over a minute while [Plaintiff] sat unarmed in his
automobile[.]” (Doc. 54 at 1).
1983 of Title 42 of the U.S. Code provides a cause of action
for persons who have been deprived their constitutional
rights by persons acting under color of law. Section 1983
“is not itself a source of substantive rights”
but only provides a cause of action “for vindicating
federal rights elsewhere conferred.” Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979). Claims of
excessive force before or during an arrest are analyzed under
the Fourth Amendment. Graham v. Connor, 490 U.S.
386, 394 (1989); see also Smith v. City of Hemet,
394 F.3d 689, 700-01 (9th Cir. 2005) (“It is clear that
under Graham, excessive force claims arising before
or during arrest are to be analyzed exclusively under the
[F]ourth [A]mendment's reasonableness standard.”).
An officer's use of a police dog is subject to an
excessive force analysis. Mendoza v. Block, 27 F.3d
1357, 1362 (9th Cir. 1994), as amended (May 31,
1994). In determining whether a law enforcement officer used
excessive force in violation of the Fourth Amendment, the
Court considers “whether the officers' actions are
‘objectively reasonable' in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivation.” Graham, 490
U.S. at 397. “The 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
of force that is necessary in a particular situation.”
Id. at 396-397. “Determining the
reasonableness of an officer's actions is a highly
fact-intensive task for which there are no per se
rules.” Torres v. City of Madera, 648 F.3d
1119, 1124 (9th Cir. 2011). In evaluating the
“objective reasonableness” of a use of force, the
Court generally proceeds in three steps. Miller v. Clark
Cty., 340 F.3d 959, 964 (9th Cir. 2003). “First,
we assess the gravity of the particular intrusion on Fourth
Amendment interests by evaluating the type and amount of
force inflicted.” Id. (citing Chew v.
Gates, 27 F.3d 1432, 1440 (9th Cir. 1994)).
“Second, we assess the importance of the government
interests at stake by evaluating: (1) the severity of the
crime at issue, (2) whether the suspect posed an immediate
threat to the safety of the officers or others, and (3)
whether the suspect was actively resisting arrest or
attempting to evade arrest by flight.” Id.
(citing Graham, 490 U.S. at 396). “Third, we
balance the gravity of the intrusion on the individual
against the government's need for that intrusion to
determine whether it was constitutionally reasonable.”
Id. When “there are no genuine issues of
material fact and the relevant set of facts has been
determined, the reasonableness of the use of force is a pure
question of law.” Lowry v. City of San Diego,
858 F.3d 1248, 1256 (9th Cir. 2017), cert. denied,
138 S.Ct. 1283 (2018) (internal quotation marks and citation
omitted). However, “[b]ecause such balancing nearly
always requires a jury to sift through disputed factual
contentions, and to draw inferences therefrom, we have held
on many occasions that summary judgment or judgment as a
matter of law in excessive force cases should be granted
sparingly.” Santos v. Gates, 287 F.3d 846, 853
(9th Cir. 2002).
Type and Amount of Force Inflicted
first step is to assess the severity of the intrusion on
Plaintiff's rights by evaluating the type and amount of
force used. “[C]haracterizing the quantum of force with
regard to the use of a police dog depends on the specific
factual circumstances.” Lowry, 858 F.3d at
1256. In this case, the dog bit Plaintiff on his left bicep,
which lasted about 50 seconds. (JSOF ¶¶ 32, 35,
36). As far as Plaintiff's injuries, there is no dispute
that Plaintiff suffered injuries. The officers at the scene
reported that Plaintiff was bit by the dog, “sustained
several lacerations to his left bicep, ” and was
treated on the scene and transported to the hospital. (Doc.
56-3 at 7), (Doc. 56-4 at 3). Photos further show the
considerable injuries to Plaintiff's left arm. (Doc.
56-12 at 2-3). Plaintiff states that he has severe and
permanent injuries including disfiguring scars resulting in
more treatment and surgery, and that he was hospitalized for
three days for medical treatment as a result of the
bite. (Doc. 56-1 ¶¶ 21, 23).
cites to Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir.
1994), in which the court found that the force used to arrest
Chew was “severe” when the dog had to bite Chew
three times before achieving an effective hold, the dog
dragged Chew between four and ten feet, and Chew's arm
was “nearly severed.” In reply, Defendants state
that the “level of force used [here] was not severe,
” and cite to Miller v. Clark County, 340 F.3d
959, 964 (9th Cir. 2003). (Doc. 57 at 5). In Miller,
the Ninth Circuit held “that the intrusion on
Miller's Fourth Amendment interests was a serious one,
” after the officer unleashed the dog to search for
Miller, the dog located and held Miller, and the officer took
between 45 and 60 seconds to arrive at a location where he
could see Miller. 340 F.3d at 960-61, 964. The court noted
that the officer's dog ordinarily bit a suspect for only
about four seconds, but in that case, the dog bit Miller for
“an unusually long time period, an action that might
cause a suspect pain and bodily injury.” Id.
at 964. “Miller's skin was torn in four places
above his elbow, and the muscles underneath were
shredded.” Id. at 961. He had torn muscles,
the injury went as deep as the bone, and he underwent surgery
and spent several days in the hospital. Id. In
contrast to Chew and Miller, the Ninth
Circuit affirmed in Lowry the district court's
finding that the force used by a police dog was
“moderate, ” not “severe, ” when the
dog bit the suspect on the lip and was called off within
seconds. 858 F.3d at 1257.
undisputed here that Officer Gilbert commanded K9 Murphy to
release the bite after approximately 36 seconds, and that K9
Murphy released the bite approximately 14 seconds later-a
total of 50 seconds. The facts seem most analogous to
Miller, and the Court finds that given the amount of
time that K9 Murphy bit and held Plaintiff, the amount of
force used was serious.