Ames v. City of Tempe

665 F.Supp.3d 1013

Dravon AMES, Plaintiff, v. CITY OF TEMPE, et al., Defendants.

No. CV-20-02102-PHX-DWL

United States District Court, D. Arizona

Filed March 29, 2023

Signed March 28, 2023

Matthew Joseph Monaco, Horne Slaton PLLC, Scottsdale, AZ, Sandra Lynn Slaton, Slaton Roebuck PLLC, Scottsdale, AZ, Robert James McWhirter, Law Offices of Robert J. McWhirter, Phoenix, AZ, for Plaintiff.

Michael Robert Niederbaumer, Sonia M. Blain, Sarah Roshanne Anchors, Tempe City Attorney's Office, Tempe, AZ, for Defendants Corynn Payne, Cameron J. Payne, Cody Conklin.

Matthew Mansfield, Michael Robert Niederbaumer, Sonia M. Blain, Sarah Roshanne Anchors, City of Tempe, City Attorney's Office, Tempe, AZ, for Defendant City of Tempe.

Sarah Roshanne Anchors, Sonia M. Blain, Michael Robert Niederbaumer, Tempe City Attorney's Office, Tempe, AZ, for Defendant Jenna Conklin.

ORDER

Dominic W. Lanza, United States District Judge

Dravon Ames ("Plaintiff") alleges that Officers Cameron Payne and Cody Conklin of the Tempe Police Department violated his Fourth and Fourteenth Amendment rights by using excessive force against him. Plaintiff also asserts a 42 U.S.C. § 1983 claim against the City of Tempe (the "City"), alleging municipal liability for the officers' conduct. Now pending before the Court is a motion for summary judgment filed by Officers Payne and Conklin and the City (together, "Defendants"). (Doc. 113.) For the following reasons, the motion is granted.

BACKGROUND

I. Factual Background

This litigation arises from Officers Payne's and Conklin's use of force against Plaintiff on October 31, 2018. Because the summary judgment analysis turns, in significant part, on which version of the facts must be accepted, the Court begins with a detailed factual summary, indicating as appropriate where one side's version of the facts need not be credited.

Although many of the material facts are undisputed (including the officers' actions throughout the encounter), the parties' motion papers provide sharply different accounts of Plaintiff's conduct—Defendants assert that Plaintiff physically resisted and attempted to leave, while Plaintiff describes his behavior as compliant and nonthreatening. However, the parties rely on the same exhibits to support their respective positions. Specifically, both sides submitted video footage of the incident, captured by the officers' body cameras. (Doc. 116 [Defendants' notice of filing of body camera footage]; Doc. 124 [Plaintiff's notice of the same]). Additionally, both sides cite the deposition testimony of Officers Payne and Conklin. (Docs. 113-10 [Payne dep.], 113-11 [Conklin dep.], 119-4 [Conklin dep.], 119-6 [Payne dep.].) In contrast, Plaintiff does not provide any sworn testimony.

During oral argument, Plaintiff sought to justify his failure to provide a competing account of the encounter by arguing that, because the video evidence is often too blurry and/or misdirected to conclusively establish what happened, the officers' testimony regarding the various ways he engaged in resistance over the course of the encounter must be disregarded for summary judgment purposes. This argument is unavailing. As an initial matter (and as discussed in more detail below), in some instances the video evidence corroborates the officers' account and contradicts the competing narrative that Plaintiff's counsel has attempted to construct in Plaintiff's motion papers. In those instances, even if Plaintiff had submitted a declaration or deposition testimony disputing the officers' account (which, again, Plaintiff failed to do), the Court would be required under Rule 56 to reject Plaintiff's account in light of the contradictory video evidence. Hernandez v. Town of Gilbert, 989 F.3d 739, 743 (9th Cir. 2021); Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (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.").

But Plaintiff also misunderstands the evidentiary value of the video footage that is blurry and/or misdirected. To give one example (and as discussed in more detail below), Officer Conklin testified that Plaintiff attempted to grab his gun during a portion of the encounter. No reasonable juror could find that the available video footage corroborates or contradicts Officer Conklin's testimony on this point—the cameras are blocked or pointed elsewhere. Although Plaintiff argues that the absence of corroboration means that Officer Conklin's testimony on this point must be disregarded, this reflects a misunderstanding of how Rule 56 works. When, as here, "the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). See also Scott, 550 U.S. at 380, 127 S.Ct. 1769 ("At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'"). Thus, it was not enough for Plaintiff to attempt to create "metaphysical doubts" about the accuracy of the officers' sworn testimony by pointing to video footage that no reasonable juror could view as confirming or contradicting that testimony. See also Baker v. Tevault, 2022 WL 7033701, *3 n.5 (D. Ariz. 2022) ("Plaintiff claims to dispute this sequence of events, stating that Officer Tevault first released Plaintiff's left hand to free his own hand to slam Plaintiff into the vehicle, and Plaintiff then put out his left hand to protect his face from hitting the car door. In support, Plaintiff relies solely on the [video] footage and the interpretation of counsel regarding what the video shows. The opinions of counsel are not evidence. Additionally, the video clearly shows that Plaintiff pulled out and raised his left hand while he was arguing with Tevault, and it is not clear from the video that Tevault first let go of Plaintiff's left hand or pushed Plaintiff. The mere fact that not every action is observable or clear from the video evidence is insufficient to create a genuine issue of material fact regarding Tevault's first-hand sworn testimony about what occurred.") (citations omitted).¹

With these principles in mind, the relevant facts for summary judgment purposes are as follows:²

A. Initial Encounter

On October 31, 2018, around 5:00 AM, Officers Payne and Conklin were dispatched to a possible traffic accident at the intersection of Rural Road and University Drive in Tempe, Arizona. (Doc. 119-1 at 2, 4.) Officer Conklin arrived first. (Id. at 2.) The video footage from Officer Conklin's body camera, which was enclosed as Exhibit 3 to Defendants' motion, shows the following:

As Officer Conklin exits his vehicle, Plaintiff is standing in the middle of the street near a black sedan, wearing socks (but not shoes) and gloves. The driver's side front door of the sedan is ajar:

Image materials not available for display.

Plaintiff is mid-sentence as the video begins:

Plaintiff: "—I'm in an area I don't fucking know."

Officer Conklin: "Dude, come over here. You're going to get hit by a car."

Plaintiff: "Alright, bro. But I don't trust—"

Officer Conklin: "You don't trust me?"

Plaintiff: "I don't trust police, bro!" I always get fucking—"

Officer Conklin: "Too bad! Now you're in this situation."

At this point, a second police vehicle can be seen pulling up behind Plaintiff.

Plaintiff: "I always get fucking harassed by police, bro. All the time, bro. I've paid over $4,000 in tickets, bro."

Officer Conklin: "Why are you—why?"

Plaintiff: "Cause they're fucking driving tickets bro. I always fucking go. I don't even do shit."

Officer Conklin: "Dude, I'm just trying to figure out what's going on."

In the footage captured by Officer Conklin's camera, Officer Payne can be seen exiting the second police vehicle. The footage from Officer Payne's body camera (which was enclosed as Exhibit 4 to Defendants' motion), viewed together with the footage from Officer Conklin's camera, shows the following:

Officer Payne: "Why are you standing in the middle of the road?"

Plaintiff: "Shit—I took my fucking first dab, with my white buddies, at Amazon. I work at Amazon. And we were just fucking smoking. And I don't smoke weed at all, you know what I mean. I just took a fucking dab. I've never—"

Officer Payne, gesturing toward the sidewalk (but not touching Plaintiff): "Okay. Let's go over here."

Plaintiff: "You know what I mean?"

Officer Payne: "Hey, hey, hey, hey!"

Plaintiff: "But I'm—I'm not—but I'm not—"

Officer Payne: "We're walking over to the sidewalk."

Officer Conklin: "Are you kind of tripping right now on it?"

Plaintiff: "Hey, but look, sir—"

Officer Payne: "I don't want to get my ass run over!³ Walk over there!"

Plaintiff: "But what I'm not, I'm not, I'm not under arrest—"

Officer Payne: "You're not listening, right, got it."

Plaintiff: "I didn't do anything wrong. You know what I mean? I, I, I—I'm a good dude. I take care of my daughter, bro, I got to work, and I go home, and I sleep, bro."

Officer Conklin: "Okay."

Plaintiff: "Hey as much as I can, the fucking four hours I get. I—I don't do a lot like you guys—"

Officer Conklin: "Alright, so you're tired."

Plaintiff: "—I'm not out yet but I'm tired as fuck."

Officer Conklin: "Okay, I get that, dude—"

Plaintiff: "I'm tired as shit, bro. And I'm always getting fucking pulled over—"

Officer Conklin: "Can I get you—can I get you out of the road?"

Plaintiff: "Bro, this is the first time I've smoked, bro. They've been trying to make me smoke with them for like six months. I...