Crick v. City of Globe

606 F.Supp.3d 912

April Carrie CRICK, et al., Plaintiffs,

v.CITY OF GLOBE, et al., Defendants.

No. CV 21-00978-PHX-JAT (DMF)

United States District Court, D. Arizona.

Signed June 8, 2022

David Alan Dick, David Dick & Associates, Chandler, AZ, for Plaintiffs.

James M. Jellison, Mark Jeffrey Robens, Jellison Law Offices PLLC, Carefree, AZ, for Defendants City of Globe, Ramon Hernandez, Cody Hudson, Unknown Walters.

ORDER

James A. Teilborg, Senior United States District Judge Plaintiffs April Carrie Crick and Timothy Lee Crick, husband and wife, brought this civil rights action, through counsel, under 42 U.S.C. § 1983 and state law against the City of Globe, the Globe Police Department, Globe Police Chief Walters, and Officers Ramon Hernandez and Cody Hudson. (Doc. 1.)¹ Before the Court is Defendants’ Motion for Partial Summary Judgment. (Doc. 21.) The Court will grant the Motion in part and deny it in part.

I. Background

Plaintiffs’ claims arose at the business property they own in Globe, Arizona. (Doc. 1-3 at 5.) Plaintiffs’ building operated from 2015 to 2019 as Hair Salon, Nail Shop and retail beauty supply, and as Gem and Jewelry Shop. (Id. ) In their Complaint, Plaintiff allege the following:

April Crick reported police misconduct and, consequently, was subjected to harassment, battery, trespass, retaliation, violation of her civil rights, assault, and intentional infliction of severe emotional distress. (Doc. 1-3 at 7.) In 2020, Defendant officers threatened April Crick's life while she conducted legal activities on her property, and Defendant officers repeatedly trespassed, interrupted her lawful business, and caused her to fear for her life. (Id. ) April Crick did not engage in any illegal activities, and there was no probable cause to suspect her of any crime. (Id. at 8.) As a result of Defendants’ actions, Plaintiffs closed their retail supply shop and Gem and Jewelry Shop in March 2020. (Id. at 5.)

On April 29, 2020, Defendants again entered April Crick's property, pointed guns at her, and caused her to fear for her life. (Id. ) April Crick did not pose a threat to Defendant officers, did not resist, and did not attempt to flee from the unlawful arrest. (Id. at 9.) Without justification or provocation, Defendant officers used excessive and extremely painful force against April Crick, causing severe physical, mental, and emotional injuries. (Id. at 9–10.) April Crick's husband observed Defendant officers harass and assault April Crick and was traumatized as a result. (Id. at 19.)

In May 2020, Defendant officers unlawfully arrested April Crick. (Id. at 14.) Her case went to trial and was dismissed. (Id. )

Plaintiffs assert the following claims for relief:

• Count I—state law negligence and other liability (assault and battery, intentional infliction of emotional distress, negligent hiring and training) against the individual Defendants, the Globe Police Department, and the City of Globe;

• Count II—42 U.S.C. § 1983 claim for excessive force in violation of the Fourth, Eighth, and Fourteenth Amendments against the individual Defendants;

• Count III— § 1983 claim for retaliation for free speech in violation of the First Amendment against the individual Defendants;

• Count IV— § 1983 claim for wrongful arrest in violation of the Fourth and Fourteenth Amendments against the individual Defendants;

• Count V— § 1983 claim for malicious prosecution in violation of the Fourth and Fourteenth Amendments against the individual Defendants;

• Count VI— § 1983 claim for violation of the right to familial association under the First and Fourteenth Amendments against the individual Defendants; and • Count VII— § 1983 municipal liability claim against the City of Globe. (Id. at 7–23.)

Plaintiffs sue for damages, lost wages, costs and attorney's fees, and injunctive relief. (Id. at 24–25.)

On January 18, 2022, the City of Globe, the Globe Police Department, and Officers Hernandez, Hudson, and Walters filed a Partial Motion for Summary Judgment Re: Plaintiffs’ State Law Claims. (Doc. 21.) Defendants move for summary judgment on the grounds that (1) the Globe Police Department is not a jural entity capable of being sued, (2) Plaintiffs failed to strictly comply with the state notice of claim statute as to the three individual Defendants; and (3) because Plaintiffs cannot maintain state law claims against the individual Defendants, all state law claims against the City of Globe must be dismissed. (Id. )

II. Summary Judgment Standard

A court must grant summary judgment "if the movant shows that 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) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "A fact is ‘material’ only if it might affect the outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue in the non-movant's favor." Fresno Motors, LLC v. Mercedes Benz USA, LLC , 771 F.3d 1119, 1125 (9th Cir. 2014). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex , 477 U.S. at 323, 106 S.Ct. 2548. "[T]o carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc. , 210 F.3d 1099, 1102 (9th Cir. 2000).

If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Id. at 1102–03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden then shifts to the nonmovant to produce evidence to support its claim or defense. Id. at 1103. The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 288–89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) ; however, it must "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1).

The judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In its analysis, the court does not make credibility determinations; it must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255, 106 S.Ct. 2505 ; Soremekun v. Thrifty Payless, Inc. , 509 F.3d 978, 984 (9th Cir. 2007). The court need consider only the cited materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3).

III. Globe Police Department

Police departments are subparts of municipalities, not separate entities for purposes of suit. See Gotbaum v. City of Phoenix , 617 F. Supp. 2d 878, 886 (D. Ariz. 2008) ; cf. Melendres v. Arpaio , 784 F.3d 1254, 1260 (9th Cir. 2015) (county sheriff's office is a non-jural entity). Accordingly, the Globe Police Department is not a proper Defendant under § 1983 and must be dismissed as to Plaintiff's federal constitutional claims. The proper defendant is the City of Globe, which is already a named Defendant.

Arizona courts have likewise held that police departments are non-jural entities and lack the capacity to be sued for state law claims. See Braillard v. Maricopa Cnty. , 224 Ariz. 481, 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010) ; see also Medrano v. City of Phoenix , No. 1 CA-CV 13-0484, 2014 WL 5494931, at *1 n.4 (Ariz. Ct. App. Oct. 30, 2014) ("[b]ecause it is a non-jural entity that cannot be sued, the Phoenix Police Department was dismissed as a putative party"). Plaintiffs rely on state cases addressing liability under comparative fault principles to argue that the Globe Police Department is at fault and can be held responsible. (Doc. 27 at 3–4.) But those cases are inapplicable and do not alter Arizona court holdings that police departments are non-jural entities. The Globe Police Department will therefore be dismissed as a Defendant.

IV. Notice of Claim

A. Governing Statute

Under Arizona state law, a plaintiff must file a Notice of Claim with the public employee within 180 days of the incident from which the claim arose. Ariz. Rev. Stat. § 12–821.01(A). In addition, the plaintiff must give notice to a public employee's employer; "[a] claimant who asserts that a public employee's conduct giving rise to a claim for damages was committed within the course and scope of employment must give notice of the claim to both the employee individually and to his employer." Crum v. Superior Court In and For Cnty. of Maricopa , 186 Ariz. 351, 922 P.2d 316, 317 (Ariz. Ct. App. 1996).

Arizona's notice of claim statute provides, in relevant part:

Persons who have claims against a public entity, public school or a public employee shall file claims with the person or persons authorized to accept service for the public entity, public school or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues .... Any claim that is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon.

A.R.S. § 12-821.01(A).

For service of process on an individual, the Arizona rules of civil procedure state:

[A]n individual may be served by: (1) delivering a copy of the summons and the pleading being served to that individual personally; (2) leaving a copy of each at that individual's dwelling or usual place of abode

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