Johnson v. City of Mesa

Robert Johnson, Plaintiff, v. City of Mesa, et al., Defendants.

No. CV 19-02827-PHX-JAT (JZB)

United States District Court, D. Arizona

September 8, 2021

ORDER

James A. Teilborg, Senior United States District Judge

Plaintiff Robert Johnson, who is represented by counsel, brought this civil rights action pursuant to 42 U.S.C. § 1983 and Arizona law. (Doc. 41.) Defendants move for summary judgment (Docs. 174, 176, 181, 182), and Plaintiff opposes (Docs 188-191). Also before the Court is Plaintiff's Motion for Partial Summary Judgment (Doc. 177), which Defendants oppose (Doc. 187).

I. Background

In his First Amended Complaint (Doc. 41), Plaintiff sues the City of Mesa (“the City”) and Mesa Police Department (MPD) Officers Jhonte Jones, Rudy Monarrez, and Ernesto Calderon based on events stemming from Plaintiff's May 23, 2018 arrest. In Count One, Plaintiff brings a state law assault and battery claim against all Defendants. (Id. ¶¶ 54-59.) In Count Two, Plaintiff brings a state law negligence claim against the City. (Id. ¶¶ 60-65.) In Count Three, Plaintiff brings § 1983 Fourth Amendment excessive force claims against Defendants Jones, Monarrez, and Calderon. (Id. ¶¶ 66-69.) In Count Four, Plaintiff brings a § 1983 policy claim against the City. (Id. ¶¶ 70-75.)

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 also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 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.

If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). 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 (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 (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. In its analysis, the Court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. 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. Relevant Facts

Consistent with the legal standards discussed above, the following recounting of the facts (unless otherwise noted) accepts as true the nonmovant's evidence and draws all reasonable inferences in the nonmovant's favor.

A. The 911 Call (See Defs.' Ex. 1, Flash Drive, Audio of 911 Call.)

On May 23, 2018, C. Diaz called 911 and asked for officers to be sent to his girlfriend, K. Luevano's, apartment on the third floor of a large apartment complex. (Doc. 172 (Defs.' Statement of Facts) ¶ 1.) Diaz reported that Luevano's ex-boyfriend, later identified as E. Reyes, had come to the apartment, threatened them, and tried to force open the door. Diaz informed the dispatcher that Reyes had choked Luevano a couple of days before and that Reyes still had a key to the apartment. Diaz also informed the dispatcher that there were three children sleeping in the apartment. Diaz reported that Reyes had left about three minutes before Diaz made the 911 call and that Reyes had stated that he was going to come back with his “strap, ” meaning a gun. Diaz informed the dispatcher that he (Diaz) had a gun inside the apartment and that it was on the kitchen counter. Diaz described Reyes as a 22-year-old Hispanic male, with black medium-length hair, approximately 5'8” and 170 pounds, wearing a black jacket and gray shorts.

Approximately halfway through the 911 call, Diaz reported that Reyes was back at the front door and trying to force his way through again. At least one male voice can be heard yelling loudly in the background while Diaz is talking to the dispatcher. Diaz informed the dispatcher that Reyes was kicking the front door. Diaz also informed the dispatcher that one of Reyes' friends (Plaintiff herein), an African American male, was outside with Reyes, but Diaz did not know this man. Diaz told the dispatcher, “he just kicked the door, ” but it is unclear whether Diaz was referring to Reyes or Reyes' friend. Officers eventually responded to the apartment complex and made contact with Diaz and Luevano inside the apartment.

B. Body-Worn Camera Footage^[1]

Defendant Calderon was the first officer to make contact with Reyes and Plaintiff. Defendant Calderon encountered Reyes and Plaintiff in the hallway of the apartment complex as they were heading towards the elevator. Upon seeing Reyes and Plaintiff, Defendant Calderon told them to “hang on” and “grab a seat.” Reyes sat down in the hallway with his back against the wall. Plaintiff did not immediately stop and continued to walk towards the elevator, stood against the wall, and pushed the button to summon the elevator. As the elevator door opened, Defendant Calderon told Plaintiff, “Do me a favor dude and don't leave. I got other people coming. Grab a seat if you don't mind.” Plaintiff let the elevator door close and stood near the balcony and made a call on his cell phone. Defendant Calderon began asking Reyes questions about the reported incident. Plaintiff was still leaning against the balcony talking on his cell phone. While Defendant Calderon was talking to Reyes, Plaintiff told Defendant Calderon, “All I came up for was to get his [Reyes'] backpack and that's it.” Defendant Calderon told Plaintiff, “Do me a favor and just wait right there in that corner for me.” Plaintiff was still leaning against the balcony on his cell phone. Defendant Calderon said, “In the corner man, ” and Plaintiff replied, “I am in the corner.” The video shows that Plaintiff was standing approximately 3-4 feet from the corner-formed by the edge of the balcony and the elevator-that Defendant Calderon appeared to be pointing to. Plaintiff continued to speak on his cell phone and lean against the balcony with his back to Defendant Calderon. Plaintiff saw that more officers were arriving and told Defendant Calderon that they were coming up the elevator. Plaintiff commented on the number of officers arriving, stating, “Your boys [the additional officers] are showing up…What the f**k you been up to?” Plaintiff told officers on the ground floor that they would have to wait for the elevator because some other officers had just gotten on. Plaintiff whistled as Defendants Jones and Monarrez and MPD Officer Bridges got out of the elevator. At this time, Plaintiff had not moved from where he had been standing. During this time, Plaintiff was leaning against the balcony railing, talking on his cell phone, with his back to Defendant Calderon and Reyes, who was still seated in the hallway with his back to the wall. (See Defs.' Ex. 7, Flash Drive, Calderon AXON Video at 00:00-2:10.)

As Defendants Jones and Monarrez and Officer Bridges exited the elevator, Defendant Calderon told them to, “Handle this guy first, ” referring to Plaintiff. Plaintiff was still leaning against the balcony railing talking on his cell phone. Defendant Jones told Plaintiff he was going to pat him down, and Plaintiff consented to the pat down. Plaintiff informed Defendant Jones that he might have a knife in his pocket, but there was no knife when Defendant Jones checked Plaintiff's pockets. No weapons were found on Plaintiff during the pat down. During the pat down, Plaintiff continued to stand in the same spot, leaning against the balcony railing and talking on his cell phone at a normal volume. Defendant Calderon continued questioning Reyes. (Defs.' Ex. 7 at 02:15-02:45; Defs.'s Ex. 8, Flash Drive, Bridges AXON Video at 01:23-01:42.)

After the pat down, Defendant Jones told Plaintiff to, “Have a seat right there by the wall, ” indicating the wall across from where Plaintiff had been standing. Plaintiff was still talking on his cell phone. Plaintiff walked over to the wall while asking, “what do I need to sit in the corner for, sounds like a f**king two-year-old?” Plaintiff stood against the wall and appeared to be making another call or texting. Defendant Monarrez replied, “It makes us feel comfortable, ” and Plaintiff responded, “For what?” (Defs.' Ex. 8 Flash Drive, Bridges AXON Video at 01:43-02:07.)

At this time, Plaintiff was standing against the wall. Defendant Jones instructed Plaintiff to have a seat. Plaintiff looked at Defendant Monarrez and stated, “Oh yeah. You are small.” Defendant Jones told Plaintiff to have a seat again and stated, “Guess what? I ain't gonna ask you again. Have a seat.” Plaintiff leaned against the wall and bent his legs so that he...