Opinion
No. CV-14-02255-TUC-JGZ
03-31-2017
Steven Richard Dougall, et al., Plaintiffs, v. City of Tucson, et al., Defendants.
ORDER
Pending before the Court is a Motion for Summary Judgment filed by Defendants on July 21, 2016. (Doc. 54.) Defendants seek summary judgment on Plaintiffs' claims of false arrest, negligence / police misconduct, intentional infliction of emotional distress, negligent infliction of emotional distress, malicious prosecution, assault and battery, failure to provide medical care, excessive force in effecting arrest, and claims arising under 42 U.S.C. § 1983 for warrantless arrest, excessive force, denial of medical care and detention under harmful conditions. For the reasons stated herein, the Court will grant the Motion as to all claims.
THE RECORD BEFORE THE COURT
As a threshold matter, the Court finds it necessary to summarize the shambles of a record that is before the Court on this Motion. On November 21, 2016, the Court issued an Order striking Plaintiffs' response to the pending Motion for Summary Judgment and Plaintiffs' Supplemental Statement of Facts on the grounds that the documents were not timely filed after numerous requests for extensions of time had been granted. (Doc. 75.) This has left the Court in the unfortunate position of adjudicating Defendants' Motion for Summary Judgment without a response from the Plaintiffs. Instead, the only brief timely submitted by Plaintiffs that the Court considers in reviewing the pending Motion is Plaintiffs' Statement of Facts. (Doc. 67.) Unfortunately, Plaintiffs did not file a Controverting Statement of Facts as required by LRCiv 56.1, which states that "any party opposing a motion for summary judgment must file a statement, separate from that party's memorandum of law, setting forth . . . for each paragraph of the moving party's separate statement of facts, a correspondingly numbered paragraph indicating whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific admissible portion of the record supporting the party's position if the fact is disputed." Without Plaintiffs' Controverting Statement of Facts, it is unclear which facts contained in Defendants' Statement of Facts Plaintiffs dispute. This is particularly true because the vast majority of Plaintiffs' factual assertions are refuted by other parts of the record including Plaintiffs' own statements and a video clip of the events of June 9, 2013, the content of which is uncontested by the parties.
Defendants were permitted to file a Reply to Plaintiffs' Statement of Facts, which the Court has also considered. (Doc. 77.) However, because Plaintiffs' response to the Motion for Summary Judgment is not a part of the record before the Court, it is evident from Defendants' Reply that Defendants took their best guess as to which facts alleged in Plaintiffs' Separate Statement of Facts might pertain to which claims. Defendants' Reply to Plaintiffs' Statement of Facts therefore has limited usefulness to the Court.
It is with these briefs and this record that the Court is asked to evaluate whether Defendants are entitled to summary judgment on 11 counts alleged by Plaintiffs against five Defendants. In evaluating the pending Motion, the Court has construed the facts alleged in DSOF as undisputed, because Plaintiffs failed to file the required Controverting Statement of Facts. See Breeser v. Menta Grp., Inc., NFP, 934 F. Supp. 2d 1150, 1153 (D. Ariz. 2013), aff'd sub nom. Breeser v. Menta Grp., Inc., 622 F. App'x 649 (9th Cir. 2015) (citing Szaley v. Pima Cnty., 371 Fed. App'x 734, 735 (9th Cir. 2010)) (Failure of the non-movant to comply with LRCiv 56.1(b) is ground for the Court to disregard a controverting statement of facts and deem as true the moving party's separate statement of facts in support of the motion for summary judgment.). "Judges are not like pigs, hunting for truffles buried in briefs." Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam)). The Court has considered the facts alleged by Plaintiffs in their Separate Statement of Facts to the extent those factual allegations were supported by admissible evidence and not contradicted by Plaintiffs' own testimony or the uncontested video. The Court has considered and ruled on Defendants' objections to Plaintiffs' Separate Statement of Facts where it was necessary to do so. The Court also relied upon its own review of the video clip of the June 9, 2013 incident. (DSOF 50-55.)
FACTUAL / PROCEDURAL BACKGROUND
This action arises from the June 9, 2013 arrest of married Plaintiffs Steven Dougall and Kari Rolfe by officers of the Tucson Police Department (TPD). That arrest was preceded by two domestic violence incidents at Plaintiffs' home.
Plaintiffs' Second Amended Complaint alleges claims against the City of Tucson, individual TPD officers, and Pima County. (Doc. 25.) Pursuant to a stipulation filed by the parties, the claims against Pima County were dismissed with prejudice on November 21, 2016. (Doc. 74.) Counts 1-11 remain pending against Defendants; Count 12 was alleged only against Pima County.
The first incident occurred on May 19, 2013. (DSOF 1.) Rolfe called 911 reporting domestic violence at Plaintiffs' home. (Id.) She stated that Dougall had hit her on the head, shoved her into a wall and attacked her 11 year-old granddaughter. (DSOF 3.) Rolfe also stated that Dougall was armed with a .38 revolver. (DSOF 2.) TPD Officers Luttrell and Berg arrived at the Plaintiffs' residence in response to the 911 call. (DSOF 4.) Officer Berg knew prior to responding to the call that Dougall was a tactical firearms instructor with access to automatic weapons, and that Dougall had made anti-police statements in the past. (DSOF 12.) Upon their arrival, Officers Luttrell and Berg interviewed Rolfe; eventually 20 police officers responded and set up containment on the house. (DSOF 4; 9.) Rolfe told the officers that Dougall suffered from anger and post-traumatic stress disorders. (DSOF 8.) Officer Luttrell transported Rolfe and her granddaughter to another location for safety. (DSOF 10.) Officer Berg spoke to Dougall for 1 to 1.5 hours on the telephone, but Dougall refused to come out of his home. (DSOF 13.) Due to Dougall's prior anti-police statements and Dougall's access to weapons, officers did not attempt to make contact with Dougall inside the home. (DSOF 14.) Officers terminated the containment and left the residence in the early morning of May 20, 2013. (DSOF 15.)
Defendants' Statement of Facts in Support of their Motion for Summary Judgment is abbreviated herein as "DSOF." (Doc. 55.) Because Plaintiffs' failed to file a Controverting Statement of Facts, the Court has construed all facts alleged in DSOF as undisputed, and therefore some facts recited in the Court's Factual Background are supported only by citation to DSOF. See Rule 56(e), Fed. R. Civ. P. (if a party fails to properly address another party's assertion of fact as required by Rule 56(c), the court may consider the fact undisputed for purposes of the motion). Plaintiffs' Separate Statement of Facts, which alleges additional facts not in response to DSOF, is cited herein as PSOF. (Doc. 67.) Defendants' Objections to PSOF is cited herein as DPSOF. (Doc. 78.) DPSOF only addresses those paragraphs of PSOF that Defendants intend to controvert. Accordingly, where the Court only cites to PSOF in the Factual Background of this Order, the Court has construed that fact as undisputed.
The second domestic violence incident occurred on June 8, 2013. (DSOF 17.) Rolfe called 911 to report that Dougall was violent and destroying things inside the home. (Id.) TPD Officer Echols responded to the call. (DSOF 18.) Rolfe told Officer Echols that Dougall had become angry with her granddaughter and pushed the handle of a broom into the granddaughter's chest. (DSOF 19.) Rolfe attempted to drive away from the residence, and Dougall punched her in the face. (DSOF 20.) Dougall admitted to Officer Echols that he pushed Rolfe. (DSOF 21.) Officer Echols contacted the Mobile Acute Crisis (MAC) team, who assisted Rolfe in filing an emergency mental health petition for evaluation of Dougall, which was approved. (DSOF 22.) TPD officers transported Dougall to the Crisis Response Center. (DSOF 24.)
Plaintiffs were arrested on June 9, 2013 as a result of a third domestic violence incident. (DSOF 40, 44.) Dougall was released from the mental health facility on June 9, 2013 after a determination by the facility that mental health services were not necessary. (PSOF 5.) On that date, Rolfe called 911 and reported that Dougall was returning home angry and violent. (DSOF 25-26.) Rolfe reported that Dougall had weapons and had threatened to hit her. (DSOF 27.) Rolfe stated to the 911 operator that Dougall was about to hit her, then stated that she had been hit in the head and was dizzy. (DSOF 29-30.) Rolfe admitted that she had thrown hot tea on Dougall; Dougall can be heard on the 911 call requesting police and an ambulance due to second degree burns. (DSOF 31-32.) TPD Officers Halverson and Davis and TPD Sergeant McGuire responded to the call. (DSOF 33.) Rolfe reported that Dougall had struck her in the head and punched her in the shoulder and head. (DSOF 34.) Dougall reported that Rolfe had hit him in the head with a cup and burned him with the hot water inside the cup. (DSOF 36.)
Sergeant McGuire was aware of the previous history of domestic violence calls at Plaintiffs' home. (DSOF 38.) On June 9, 2013, Sergeant McGuire arrested Dougall for the May 19th domestic violence incident. (DSOF 40.) Plaintiffs claim that, at the time of his arrest, Dougall informed officers that he was a disabled veteran with spinal injuries, a shoulder injury and post-traumatic stress disorder (PTSD). (PSOF 13.) Officer Halverson initially handcuffed Dougall's hands in front of Dougall's body as requested by Dougall. (PSOF 18.) Sergeant McGuire was aware that Dougall had a shoulder injury and had recently undergone surgery for a fractured left humerus. (PSOF 14; DPSOF 14.) Pursuant to TPD policy, Sergeant McGuire removed the handcuffs that Officer Halverson had placed on Dougall and "double-cuffed" Dougall's hands behind Dougall's back, using two pairs of handcuffs in order to put less stress on Dougall's shoulders. (DSOF 43; PSOF 14; DPSOF 14; PSOF 19.)
At PSOF 28, Plaintiffs allege that Dougall was arrested in front of neighbors and family members, which caused Dougall extreme emotional distress and exacerbated his PTSD. Defendants object to PSOF 28 on the ground that it is a conclusory allegation not supported by factual evidence. The Court sustains the objection. See Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993) (when the nonmoving party relies only on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact).
Defendants Object to PSOF 13 on the grounds that the allegations, if true, do not create a disputed issue of material fact with regard to Plaintiffs' negligence claim because Plaintiffs failed to present the testimony of a police procedures expert regarding the appropriate police standard of care. (Doc. 78, pg. 2.) Because this objection does not challenge the veracity of the facts alleged, the Court regards PSOF 13 as undisputed. The Court notes that the medical records submitted by Plaintiffs indicate that Dougall had shoulder surgery in December 2012 and the hardware associated with the surgery was removed in April 2013. (Doc. 67-2, pg. 51.) The records further indicate that, on May 23, 2013, Dougall reported to his physician that his condition had "improved significantly" and that Dougall was not using pain medication and had resumed activities. (Id.)
Plaintiffs allege that Sergeant McGuire forcefully twisted Dougall's arm in order to handcuff Plaintiff, and in doing so re-fractured Dougall's left humerus. This allegation is not supported by the medical evidence produced by Plaintiffs: there is no medical record demonstrating that Dougall's arm was re-fractured. The Court declines to consider this allegation as fact. See Hansen, 7 F.3d at 138.
Dougall claims he was forcefully shoved into a TPD police car, which caused him to cry out in pain. (PSOF 25.) Plaintiffs claim that Dougall was in the back of the police car for approximately one hour. (PSOF 30.) The video provided by Defendants consists of 45 minutes of video footage of the view out the front window of the police car, and audio recording of Dougall's time in the police car. (Doc. 55, Ex. 138.) The video demonstrates that, during Dougall's time in the police car, Dougall was occasionally belligerent, but the officers were consistently calm and professional. (Id.) Dougall asked for a paramedic, and an officer responded "ok, we will get you one." (Id.) Dougall then explained that he wanted the paramedics to check his head, neck and back because of "the burn." (Id.) The video shows the Tucson Fire Department (TFD) paramedics approaching the police car where Dougall is sitting. (Id.) Dougall's only complaint to TFD paramedics was the burn on his back caused by Rolfe throwing hot water on him. (Id; DSOF 51.) The TFD paramedics evaluated Dougall's burn and found no serious injury. (Doc. 55, Ex. 138.) A few minutes later, Dougall complained to a nearby officer that sitting in the police car was uncomfortable because of herniated disks in his back. (Id.) The officer's response is inaudible. (Id.) It appears from the video that Dougall's time in the police car was extended due to officers' accommodating Dougall's requests to speak to family members and officers about his vehicles, pets and medications. (Id.) After approximately 13 minutes in the police car, Dougall asked Sergeant McGuire to turn up the air conditioning and then thanked Sergeant McGuire for doing so. (DSOF 54, 55.) After 20 minutes in the police car, Dougall told officers that his arm was starting to hurt. (Doc. 55, Ex. 138.) An officer responded that Dougall had full range of motion in his arms and would be transported to jail soon. (Id.) The officer then transcribed instructions from Dougall regarding the care and feeding of Dougall's pets. (Id.)
The video footage provided by Defendants calls Dougall's credibility into serious question. Numerous statements made by Dougall in his affidavit and deposition, such as his claim that no air conditioning reached the back seat, that Dougall requested medical assistance for his knee/shoulder/hip injuries, that Dougall waited an hour or more for medical attention, that Dougall reported having trouble breathing, that officers were belligerent to him, and that the drive to jail was painful, are all directly disproven by the video footage.
At PSOF 26, Plaintiffs allege that the interior of the police car was well over 100 degrees. Defendants object to PSOF 26 on the ground that it is a conclusory allegation not supported by factual evidence. (DPSOF 26.) The Court sustains the objection. See Hansen, 7 F.3d at 138.
At PSOF 27, Dougall alleges that the heat, the force used to place him in the car, his position with the handcuffs, and his re-fractured arm caused him extreme pain and discomfort. Defendants object to PSOF 27 on the ground that it is a conclusory allegation not supported by factual evidence. The Court sustains the objection. See Hansen, 7 F.3d at 138. Plaintiffs cite to Dougall's affidavit and deposition transcript in support of PSOF 27. Although Dougall is competent to give testimony about the circumstances of his arrest, no reasonable jury could find Dougall's testimony credible in light of the video which refutes just about every detail Dougall provides.
Dougall was transported to jail. (DSOF 56.) The video footage of Dougall's transport to the jail shows Dougall engaged in conversation with the officer; Dougall does not complain about any injuries during the drive. (Doc. 55, Ex. 138.) At the jail, Dougall received medical screening and was asked whether he needed immediate medical attention. (DSOF 57.) Dougall did not report any injuries during medical screening. (Id; see also Doc. 55-3, pgs. 38-41.)
Officer Davis arrested and handcuffed Plaintiff Rolfe. (DSOF 44.) During her detention, Rolfe was outside for a brief time, then inside the house, then placed into an air conditioned police car. (DSOF 44.) Rolfe remained in the back of the police car for approximately one hour. (PSOF 33.) TFD also treated Rolfe. (DSOF 45.) Rolfe told TFD that she had a headache from Dougall striking her in the head, but she refused treatment and declined to be transported to the hospital. (DSOF 47, 48.)
At PSOF 34, Plaintiffs allege that Rolfe's handcuffs were too tight and her hands were injured as a result. Defendants object to PSOF 34 on the grounds that it is a conclusory allegation not supported by factual evidence and that Plaintiffs failed to present any medical evidence of an injury. The Court sustains the objection. See Hansen, 7 F.3d at 138.
At PSOF 32 and 33, Plaintiffs allege that Rolfe was detained outdoors in direct sunlight for over an hour, indoors for an hour, and then in a patrol car for an hour. Defendants object to PSOF 32 on the ground that it is a conclusory allegation not supported by factual evidence. The Court sustains the objection. See Hansen, 7 F.3d at 138. In addition, the Court notes that Plaintiffs' claim that Rolfe was detained for over three hours is contradicted by the undisputed evidence that police arrived at Rolfe's home at 10:51 a.m. and transported Rolfe to jail at 12:34 p.m. (DSOF 33, 49.)
Officer Davis transported Rolfe to jail. (DSOF 49.) The only injuries Rolfe reported to jail personnel were an injury to her left little finger and a bump on the back of her head. (DSOF 60.)
At PSOF 35, Plaintiffs allege that Rolfe suffered emotional trauma and extreme discomfort as a result of her arrest and by being held in a public place. Rolfe claims that the heat exacerbated her injuries. Defendants object to PSOF 35 on the ground that it is a conclusory allegation not supported by factual evidence. The Court sustains the objection. See Hansen, 7 F.3d at 138. There is no evidence to support Rolfe's claims that the Defendants exacerbated her injuries. To the extent Rolfe attributes injuries to the officers, in light of her conflicting statements to medical personnel at the time of the arrest and at the jail, no reasonable jury could find Rolfe's claims credible.
Dougall sought medical attention from the Southern Arizona Veteran's Administration (VA) after his release from custody. (PSOF 40.) Medical records from Dougall's visit indicate that the physician observed minimal burns on Dougall's scalp and back and that Dougall's left shoulder was tender when palpitated. (Doc. 67-2, pg. 54.) The physician diagnosed Dougall with chronic lower back pain and depression. (Id.)
At PSOF 40, Plaintiffs allege that doctors confirmed that Dougall's fractured humerus was re-fractured as a result of the handcuffs placed on Dougall. That claim is not supported by the medical records provided by Plaintiffs. Plaintiffs have failed to present medical documentation of Dougall's alleged re-fracture. In addition, the Court has not considered Dougall's self-serving statement to his physician on June 11, 2013 that a police officer hyperextended Dougall's left shoulder when Dougall was arrested. (Doc. 67-2, pg. 53); see Pope v. Las Vegas Metro. Police Dep't, 647 F. App'x 817, 819 (9th Cir. 2016) (medical record statements admitted to prove the truth of the matter asserted are hearsay).
On June 12, 2013, Rolfe sought medical treatment at the VA for injuries to her head and left hand caused by Dougall. (DSOF 62.)
The City of Tucson prosecuted both Dougall and Rolfe for domestic assault. (DSOF 63.) The charges against Dougall and Rolfe were voluntarily dismissed. (PSOF 36.)
On August 12, 2015, Plaintiffs filed a Second Amended Complaint alleging 11 claims against Defendants: Count 1, false arrest; Count 2, negligence / police misconduct; Count 3, intentional infliction of emotional distress; Count 4, negligent infliction of emotional distress; Count 5, malicious prosecution; Count 6, assault and battery; Count 7 failure to provide medical care; Count 8, excessive force in effecting arrest; Count 9, warrantless arrest in violation of 42 U.S.C. § 1983; Count 10, excessive force in violation of 42 U.S.C. § 1983; and Count 11, denial of medical care and detention under harmful conditions in violation of 42 U.S.C. § 1983.
STANDARD OF REVIEW
In deciding a motion for summary judgment, the Court views the evidence and all reasonable inferences in the light most favorable to the party opposing the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987). Summary judgment is appropriate if the pleadings and supporting documents "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id.
A party moving for summary judgment initially must demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 325. The moving party merely needs to point out to the Court the absence of evidence supporting its opponent's claim; it does not need to disprove its opponent's claim. Id.; see also Fed. R. Civ. P. 56(c).
If a moving party has made this showing, the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see also Fed. R. Civ. P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).
ANALYSIS
Defendants move for summary judgment on all 11 counts alleged against Defendants in Plaintiffs' Second Amended Complaint. For the reasons stated herein, the Court will grant the Motion.
1. Plaintiffs' claims against Officer Rodriguez are dismissed with prejudice
TPD Officer Rafael Rodriguez is named as a Defendant in Plaintiffs' Second Amended Complaint. Plaintiffs' Statement of Facts, however, does not contain any factual allegations against Defendant Rodriguez. It is undisputed that Defendant Rodriguez was not present during the June 9, 2013 arrests. (DSOF 65.) Because there is no genuine issue as to any material fact tending to prove that Defendant Rodriguez caused Plaintiffs' alleged injuries, Defendant Rodriguez is entitled to summary judgment on all claims. // // // 2. Defendants are entitled to summary judgment on Plaintiffs' claim for false arrest (Count 1), malicious prosecution (Count 5), and warrantless arrest (Count 9) because Defendants had probable cause to arrest Plaintiffs.
Under Arizona law, probable cause is an absolute defense to a claim of false arrest and a complete defense to a claim of malicious prosecution. See Hockett v. City of Tucson, 678 P.2d 502, 505 (Ariz. Ct. App. 1983); Bird v. Rothman, 627 P.2d 1097, 1100 (Ariz. Ct. App. 1981). Similarly, a claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth Amendment only if the arrest was without probable cause or other justification. See Dubner v. City and Cnty. of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). An arrest is supported by probable cause if, under the totality of the circumstances known to the arresting officer, a prudent person would have concluded that there was a fair probability that the defendant had committed a crime. Luchtel v. Hagemann, 623 F.3d 975, 980 (9th Cir. 2010).
Officers had probable cause to arrest Dougall on June 9, 2013 for domestic violence assault occurring on May 19, 2013. A.R.S. § 13-3601(A)(1) defines domestic violence to include an assault offense where the relationship between the victim and defendant is one of marriage. A.R.S. § 13-1203 defines assault as intentionally, knowingly or recklessly causing any physical injury to another person. Dougall and Rolfe are married. (PSOF 1.) At the time Sergeant McGuire arrested Dougall, Sergeant McGuire had reason to believe that on May 19, 2013, Dougall hit Rolfe three times, shoved her into a wall, and attacked Rolfe's granddaughter. Sergeant McGuire was also aware that officers did not arrest Dougall on May 19, 2013 because it was not reasonable for them to attempt entry into Plaintiffs' home due to officer safety concerns. On June 9, 2013, based on what Sergeant McGuire knew about the May 19, 2013 incident, it was reasonable for Sergeant McGuire to conclude that there was a fair probability that Dougall had committed domestic violence assault in violation of Arizona law on May 19, 2013.
Sergeant McGuire also had probable cause to arrest Dougall for domestic violence occurring on June 9, 2013. Sergeant McGuire was aware that Rolfe called 911 reporting that Dougall pushed a broom handle into Rolfe's chest, punched her two or three times on her shoulder, and at least five times on her head. (DSOF 34.) Rolfe testified at her deposition that her statements to police were true. (DSOF 35.)
Defendants also had probable cause to arrest Rolfe on June 9, 2013. At the time Officer Davis arrested Rolfe, Officer Davis knew that Dougall had reported that Rolfe had thrown hot water on Dougall and hit Dougall with a cup. Rolfe also admitted during her 911 call that she threw hot water on Dougall. Based on these facts, it was reasonable for Officer Davis to conclude that there was a fair probability that Rolfe had committed domestic violence assault in violation of Arizona law on June 9, 2013.
Accordingly, Defendants are entitled to summary judgment on Counts 1, 5 and 9 of Plaintiffs' Second Amended Complaint.
In Count 9, Plaintiffs allege that the City of Tucson is liable for the individual Defendants' wrongful arrest of Plaintiffs because the City failed to properly train its officers. Because Plaintiffs have failed to demonstrate an underlying constitutional violation, their claim against the City in Count 9 also fails. See Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 957 (9th Cir. 2008) (where there is no constitutional violation, there can be no municipal liability).
3. Defendants are entitled to summary judgment on Plaintiffs' negligence claims (Count 2).
To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages. Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). In Plaintiffs' negligence claim against the City of Tucson, Plaintiffs allege that the City was negligent in the manner it hired, trained, supervised and directed the individual Defendants. The Court agrees with Defendants that Plaintiffs have failed to present any evidence in support of that assertion. Defendants are therefore entitled to summary judgment on Count 2 against the City of Tucson.
The Court also agrees with Defendants that Plaintiffs have failed to provide any evidence in support of their claim that any officer was negligent. Plaintiffs allege in paragraph 34 of the SAC that Officers Halverson, McGuire, and Davis acted carelessly, negligently, and below the standards of a reasonable peace officer. However, Plaintiffs fail to provide any evidence of: the officers' duty to conform to a certain standard of care; a breach by each officer of that standard; or a causal connection between the defendant's conduct and the resulting injury. See Celotex, 477 U.S. at 325 (the moving party merely needs to point out to the Court the absence of evidence supporting its opponent's claim; it does not need to disprove its opponent's claim); see also Fed. R. Civ. P. 56(c). Accordingly, the Court will grant the motion for summary judgment as to the negligence claims in Count 2.
As explained in Sections 4 and 6, below, no reasonable jury could find that the individual Defendants caused Plaintiffs' injuries.
Defendants also argue that the negligence claim against the individual Defendants must be dismissed because a negligence claim may be maintained separately from a § 1983 claim only when the negligence claim is based on facts that are different from the facts on which the § 1983 claim is based. In support of this assertion, Defendants rely on two cases from the District of Oregon; however, those cases expressly limit that rule as the "law of th[at] District." See Estate of Lopez ex rel. Lopez v. City of San Diego 2014 WL 7330874, at *12 (S.D. Cal. Dec. 18, 2014), aff'd sub nom. Estate of Angel Lopez v. Walb, 2016 WL 6212018 (9th Cir. Oct. 25, 2016) (rejecting motion for summary judgment based on Oregon case law requiring a negligence claim to arise from different facts than a § 1983 claim because the rule appears to apply only in the District of Oregon). The Court therefore declines to grant summary judgment on the negligence claim on this ground.
4. Defendants are entitled to summary judgment on Plaintiffs' claim for intentional infliction of emotional distress (Count 3) because there is no evidence of extreme or outrageous conduct by Defendants or severe emotional distress by Plaintiffs.
The tort of intentional infliction of emotional distress requires proof of three elements: first, the conduct by the defendant must be "extreme" and "outrageous"; second, the defendant must either intend to cause emotional distress or recklessly disregard the near certainty that such distress will result from his conduct; and third, severe emotional distress must indeed occur as a result of defendant's conduct. Citizen Publ'g Co. v. Miller, 115 P.3d 107, 110 (Ariz. 2005). Here, Plaintiffs claim for intentional infliction of emotional distress is without merit because Plaintiffs have failed to present evidence in support of their allegations that Defendants engaged in extreme or outrageous conduct that caused Plaintiffs severe emotional distress. Plaintiffs' Second Amended Complaint does not specifically identify the officer conduct that Plaintiffs claim was "extreme and outrageous." Generally, the allegations regarding officer misconduct in Plaintiffs' Second Amended Complaint are not supported by admissible evidence. The undisputed facts demonstrate that there is no medical proof that Dougall's arm was re-fractured, that Dougall was detained in an air-conditioned police car, that Dougall received medical attention when requested, that Rolfe was also placed in an air conditioned police car and that neither Dougall or Rolfe complained during their medical assessments at the scene or at the jail of any injuries sustained as a result of police misconduct.
Construing the evidence in the light most favorable to Plaintiffs, the only action by officers which arguably supports Plaintiffs' allegation of outrageous conduct is Dougall's testimony that he was forced into a police car in a manner that was painful to Dougall due to his pre-existing conditions. No reasonable jury, however, could credit that testimony and find that Plaintiffs proved the outrageousness element of their claim for intentional infliction of emotional distress. Dougall's testimony is undermined by the fact that there is no evidence in the record to support Dougall's self-serving statement, and by the weight of the evidence supporting the conclusion that Dougall was not injured upon entering the police car. Minutes after being placed in the police car, Dougall requested a paramedic, and when a paramedic promptly appeared, Dougall complained only of the burn injury Rolfe had inflicted on him. See Scott v. Harris, 550 U.S. 372, 380 (2007) ("when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.") No reasonable jury viewing the video footage of Dougall's time in the police car could conclude that Dougall was in significant pain; while he complained to a nearby officer that sitting in the police car was uncomfortable because of herniated disks in his back, he also engaged officers and bystanders in conversation about his pets and his vehicles. Dougall did not complain about any injuries during his transport to jail and did not report any injuries during medical screening at the jail. The video footage shows the officers acting consistently courteous and professional toward Dougall. There is no medical evidence of any emotional distress suffered by either Plaintiff. Based on the record before the Court, Plaintiffs have failed to demonstrate any extreme or outrageous conduct by the officers or any severe emotional distress resulting therefore. Accordingly, Defendants are entitled to summary judgment on Count 3.
5. Defendants are entitled to summary judgment on Plaintiffs' claim of negligent infliction of emotional distress (Count 4) because Plaintiffs have failed to present evidence of mental anguish manifested as physical injury.
In order to state a claim for negligent infliction of emotional distress under Arizona law, Plaintiffs must prove that: (1) they each witnessed an injury to a closely related person; (2) they were each within the zone of danger at the time of the injury; and (3) they each suffered mental anguish manifested as physical injury. See Kaufman v. Langhofer, 222 P.3d 272, 279 (Ariz. Ct. App. 2009); Keck v. Jackson, 593 P.2d 668, 669 (Ariz. 1979). Here, Plaintiffs have failed to present evidence supporting their allegations that they suffered mental anguish manifested as physical injury. The only admissible evidence of injuries sustained by Dougall and Rolfe are the pain Dougall experienced when he was forced into the police car and the physical injuries Dougall and Rolfe inflicted on each other. None of the injuries supported by the evidence in the record are physical manifestations of mental anguish. Accordingly, Defendants are entitled to summary judgment on Count 4. 6. Defendants are entitled to summary judgment on Plaintiffs' claims of assault and battery (Count 6), excessive force in effectuating arrest (Count 8) and excessive force in violation of § 1983 (Count 10) because Plaintiffs have failed to present evidence that Defendants caused Plaintiffs' injuries.
Under Arizona law, a claim for common-law battery requires an allegation that the defendant intentionally engaged "in an act that results in harmful or offensive contact with the person of another." Duncan v. Scottsdale Med. Imaging, Ltd., 70 P.3d 435, 438 (Ariz. 2003) (citing Restatement (Second) of Torts §§ 13, 18 (1965)). A claim for common-law assault requires an allegation that the defendant acted intentionally to cause a harmful or offensive contact and another person is placed in imminent apprehension of the contact. See Restatement § 21. The two claims are the same except that assault does not require the offensive touching or contact. Garcia v. United States, 826 F.2d 806, 810 n.9 (9th Cir. 1987). Similarly, "to establish personal liability in a § 1983 action, [the plaintiff must] show that the official, acting under color of state law, caused the deprivation of a federal right.'" Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)). Thus, in order to prevail on Counts 6, 8, or 10, Plaintiffs must prove that Defendants intentionally engaged in harmful or offensive conduct that caused Plaintiffs' alleged injuries.
In Count 8, Plaintiffs allege that Defendants' alleged use of excessive force violated Plaintiffs' rights under Article 2, § 8 of the Arizona Constitution, A.R.S. § 13-3881(B) and "other provisions of state law.' (Doc. 25, pg. 17.) This Court is unaware of a free standing state law claim for "excessive force," and at least one other decision by this District has held that no such claim exists. See Irizarry v. City of Mesa, 2013 WL 3223399, at *4 (D. Ariz. June 25, 2013). Even if such a claim exists, the Court presumes it would fail for the reason Plaintiffs' assault and battery and § 1983 excessive force claims fail—Plaintiffs have failed to demonstrate that Defendants caused their injuries. --------
Plaintiffs failed to provide any evidence that Defendants intentionally engaged in harmful or offensive conduct in their treatment of Plaintiffs. As discussed throughout this opinion, there is no evidence that Defendants' conduct was intentionally harmful or offensive, that Defendants violated any professional standards or acted without due care. On the contrary, the undisputed evidence shows that Defendants were professional and courteous at all times.
Moreover, there is no evidence of a causal connection between Defendants' actions and Plaintiffs' alleged injuries. The only evidence of injury allegedly sustained by Dougall at the hands of police is Dougall's testimony that he was forcefully placed in a TPD police car, which caused him to cry out in pain. However, even construing the facts in the light most favorable to Plaintiffs, no reasonable jury could conclude that Defendants caused Dougall injury when they placed him in the police car. Minutes after being placed in the police car, Dougall requested and received medical attention from TFD, and Dougall's only complaint to TFD paramedics was the burn on his back caused by Rolfe throwing hot water on him. During the time that Dougall was detained in the police car, he complained of pain in his back and his arm—both pre-existing injuries. The video footage of Dougall's transport to the jail shows Dougall engaged in conversation with the officer; Dougall does not complain about any injuries during the drive. (Doc. 55, Ex. 138.) At the jail, Dougall received medical screening and was asked whether he needed immediate medical attention. (DSOF 57.) Dougall did not report any injuries during medical screening. (Id; see also Doc. 55-3, pgs. 38-41.) Medical records from Dougall's visit to the VA indicate that the physician observed minimal burns on Dougall's scalp and back, that Dougall had pain in his left shoulder, and that Dougall was diagnosed with chronic lower back pain and depression. (Doc. 67-2, pg. 54.)
Similarly, Rolfe had multiple opportunities to report her alleged injuries and she did not report any injuries caused by police. Rolfe told TFD that she had a headache from Dougall striking her in the head, but she refused treatment and declined to be transported to the hospital. (DSOF 47, 48.) The only injuries Rolfe reported to jail personnel were an injury to her left little finger and a bump on the back of her head. (DSOF 60.) On June 12, 2013, Rolfe sought medical treatment at the VA for injuries to her head and left hand caused by Dougall. (DSOF 62.) Even construing the facts in the light most favorable to Plaintiffs, no reasonable jury could conclude that Defendants caused Rolfe's alleged injuries.
Thus, Plaintiffs have failed to establish that any of the conduct engaged in by Defendants rose to the level of "harmful or offensive," or that such conduct caused any of the injuries that Plaintiffs reported following arrest. Accordingly, Defendants are entitled to summary judgment on Counts 6, 8 and 10.
7. Defendants are entitled to summary judgment on Plaintiffs' claims for failure to provide medical care (Count 7) and denial of medical care and detention under harmful conditions in violation of § 1983 (Count 11).
In Counts 7 and 11, Plaintiffs allege that Defendants failed to provide appropriate medical care during Plaintiffs' arrest, detention, and transportation to jail. Neither party cited to any case law recognizing a free-standing claim for failure to provide medical care under Arizona law (Count 7). It appears that such a claim is essentially a state law negligence claim. See, e.g., Zuck v. State, 764 P.2d 772, 777 (Ariz. 1988) (prisoner brought negligence claim based on allegations that there had been serious delay in receiving prescribed medication and medical treatment). Thus, in order to prevail on Count 7, Plaintiffs must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages. Gipson, 150 P.3d at 230. Under 42 U.S.C. § 1983, to maintain an Eighth Amendment claim based on denial of medical treatment, a plaintiff must show "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). First, the plaintiff must show a serious medical need by demonstrating that failure to treat plaintiff's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Id. Second, the plaintiff must show the defendant's response to the need was deliberately indifferent. Id.
Here, Plaintiffs have failed to state a claim in Counts 7 or 11 because it is undisputed that Defendants provided medical care to Plaintiffs during their detention and at the time Plaintiffs were booked into jail. Dougall asked for a paramedic shortly after he was placed in the police car, and explained that he wanted the paramedics to check his head, neck and back because of "the burn." The TFD paramedics promptly attended to Dougall in the police car, evaluated Dougall's burn, and concluded that it was not a serious injury. The medical records from Dougall's subsequent appointment at the VA support that conclusion. At the jail, Dougall received medical screening and was asked whether he needed immediate medical attention. Dougall did not report any injuries during medical screening.
TFD also treated Rolfe. Rolfe told TFD that she had a headache from Dougall striking her in the head, but she refused treatment and declined to be transported to the hospital. Rolfe also received medical screening at the jail, where the only injuries she reported were injuries to her left little finger and a bump on the back of her head.
Thus, Plaintiffs' state law negligence claim arising from Defendants' alleged denial of medical care fails because Plaintiffs cannot prove that Defendants breached their duty to provide medical care, and Plaintiffs' Eighth Amendment claim based on denial of medical treatment fails because Plaintiffs cannot prove that officers were deliberately indifferent to their medical needs.
CONCLUSION
THEREFORE, IT IS ORDERED that Defendants' Motion for Summary Judgment filed on July 21, 2016 (Doc. 54) is GRANTED.
The Clerk of the Court must enter judgment accordingly and close the case.
Dated this 31st day of March, 2017.
/s/_________
Honorable Jennifer G. Zipps
United States District Judge