Denby v. City of Casa Grande

668 F.Supp.3d 855

James W. DENBY, et al., Plaintiffs, v. CITY OF CASA GRANDE, et al., Defendants.

No. CV-17-00119-PHX-SPL

United States District Court, D. Arizona

Filed April 5, 2023

Signed April 4, 2023

Robert T. Mills, Sean Anthony Woods, Mills & Woods Law PLLC, Phoenix, AZ, for Plaintiff James W. Denby.

James M. Jellison, Jellison & Robens PLLC, Scottsdale, AZ, for Defendants David Engstrom, Unknown Engstrom, Jacob H. Robinson, Unknown Robinson, Christopher Lapre, Unknown Lapre, Unknown Gregg, Rory Skedel, Unknown Skedel.

Abram Ochoa, Tucson, AZ, Pro Se.

ORDER

Steven P. Logan, United States District Judge

Before the Court is a Motion for Summary Judgment (Doc. 201) filed by Defendants David and Jane Doe Engstrom, Jacob H. Robinson, Christopher and Jane Doe Lapre, Sgt. Gragg and Jane Doe Gragg, and Rory Skedel (collectively, "Defendants").¹ The Motion is fully briefed and ready for review. (Docs. 201, 203, 210, 211 & 215). For the following reasons, the Court denies Defendants' Motion.²

I. BACKGROUND

This action arises from a December 2014 incident at a residence owned by Plaintiff James W. Denby ("Plaintiff") in Casa Grande, Arizona. (Doc. 82 at 6). At approximately 3:05 P.M. on the afternoon of December 17, 2014, the Casa Grande Police Department ("CGPD") responded to a "domestic disturbance" complaint at a house nearby Plaintiff's. (Id.). Upon arrival, the officers learned the dispute involved Abram Ochoa ("Mr. Ochoa"), who had at least one outstanding arrest warrant for an unrelated incident.³ (Id. at 7). The officers were made aware that Mr. Ochoa had potentially fled to Plaintiff's residence down the street (the "Residence"). (Id.). CGPD declined offers from Mr. Ochoa's girlfriend and Plaintiff Denby's son to help persuade Mr. Ochoa to leave the Residence voluntarily. (Id. at 8). The officers used a loudspeaker PA system to attempt communication with Mr. Ochoa, but they did not receive any response from the Residence. (Id.).

Shortly after arriving, CGPD requested assistance from the Pinal County Regional SWAT ("SWAT"). (Id.). SWAT arrived approximately one hour later and decided to use a "Bearcat" as a battering ram to gain access to the Residence. (Id. at 10). SWAT drove the Bearcat over a chain-linked fence and into the front of the Residence, breaking the windows and front door. (Id. at 11). SWAT then unsuccessfully attempted to communicate with Mr. Ochoa through the Bearcat's PA system and through a tactical phone deployed through the broken windows and wall. (Id.). At approximately 5:00 P.M., a judged signed a search warrant for the Residence, permitting officers to enter the Residence for the sole purpose of arresting Mr. Ochoa. (Id.). Over the course of several hours, SWAT deployed robots, fired a total of twenty-two (22) canisters of pepper spray and tear gas, and deployed multiple Noise Flash Diversionary Devices ("NFDDs" or "flash grenades") into the Residence. (Id. at 11-12). Through it all, the officers did not see Mr. Ochoa nor any signs of movement or response from inside the Residence. (Id. at 13). Next, SWAT developed a tactical plan to enter the Residence and act on the search warrant. (Id. at 13). They entered at 9:47 P.M., nearly seven hours after they first arrived at the Residence. (Id.). During the search, SWAT team members and CGPD officers destroyed several items in the Residence, including furniture, cushions, pillows, windows, window coverings, bathroom mirrors, shower doors, toilets, televisions, artwork, and antiques. (Id. at 13-14). At approximately 10:03 P.M.—seven hours after CGPD was originally dispatched to the area—Mr. Ochoa was found outside the Residence and hiding under a tarp on the property. (Id. at 14). Mr. Ochoa had apparently been hiding under the tarp during the entire incident. (Id.).

Although Plaintiffs initially filed this case in state court, Defendants removed it to this Court on January 13, 2017.⁴ (Doc. 1). Plaintiffs amended their complaint twice. (See Docs. 31 & 82). Three of Plaintiffs' five original claims have been dismissed, along with several of the originally named Defendants. (See Docs. 21, 118 & 136). Only Defendants Engstrom, Robinson, Lapre, Gragg, Skedel, and Ochoa remain. As it relates to these Defendants—excluding Defendant Ochoa—only two claims remain: (i) violation of Plaintiff's Fourth and Fourteenth Amendment rights, pursuant to 42 U.S.C. § 1983 (Count I) and (ii) failure to intervene with respect to a constitutional violation (Count II). (Doc. 82 at 16-21). Defendants Engstrom, Robinson, Lapre, Gragg, and Skedel now seek summary judgment in their favor as to both claims and dismissal from this action. (Id.).

II. LEGAL STANDARD

A court must grant summary judgment if the evidence 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 also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat the motion, the non-moving party must show that there are genuine factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 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).

At summary judgment, 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, 477 U.S. at 249, 106 S.Ct. 2505. "The Court must assume the nonmoving party's version of the facts to be correct, even in qualified immunity cases," Soto v. Paredes, No. CIV-05-4105-PHX-MHM, 2008 WL 906461, at *1 (D. Ariz. Mar. 31, 2008) (citing Liston v. Cnty. of Riverside, 120 F.3d 965, 977 (9th Cir. 1997)), and all inferences must be drawn in the nonmoving party's favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. 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. DISCUSSION

Defendants Engstrom, Gragg, Lapre, Robinson, and Skedel argue they are entitled to qualified immunity and that summary judgment in their favor is therefore appropriate with respect to Plaintiff's two remaining claims. The Court will first address Plaintiff's Fourth Amendment claim and conduct the requisite qualified immunity analysis before turning to Plaintiff's failure to intervene claim.

A. Fourth Amendment Claim & Qualified Immunity Analysis

"The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Est. of Lopez v. Gelhaus, 871 F.3d 998, 1005 (9th Cir. 2017) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). "Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects 'all but the plainly incompetent or those who knowingly violate the law.' " Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). "Because qualified immunity is 'an immunity from suit rather than a mere defense to liability . . . it is effectively lost if a case is erroneously permitted to go to trial.' " Pearson, 555 U.S. at 231, 129 S.Ct. 808 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).

In determining whether an officer is entitled to qualified immunity, the Court must consider (1) whether there has been a violation of a constitutional right, and (2) whether that right was clearly established at the time of the officer's alleged misconduct." Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014) (citing Pearson, 555 U.S. at 231, 129 S.Ct. 808). The Court may exercise its discretion "in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson, 555 U.S. at 236, 129 S.Ct. 808. Once a qualified-immunity defense is raised, the plaintiff bears the burden of proving the violation of a constitutional right and that the right was clearly established. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000).

1. Constitutional Violation Prong

The first prong of the qualified immunity analysis asks whether the facts shown by Plaintiff—when viewed in Plaintiff's favor—make out a constitutional violation. Capp v. Cnty. of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019) (citing Pearson, 555 U.S. at 232, 129 S.Ct. 808). The constitutional right at issue is the Fourth Amendment's protection from unreasonable searches and seizures. Plaintiff contends that his Fourth Amendment rights were violated when Defendants excessively and unnecessarily destroyed Plaintiff's property during their search of his Residence. (Doc. 82 at 16-19).

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. CONST. amend. IV. "It is plain that while the destruction of property in carrying out a search is not favored, it does not necessarily violate the fourth amendment." United States v. Becker, 929 F.2d 442, 446 (9th Cir. 1991) (citation omitted). "[O]fficers executing a search warrant occasionally ...