Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Brian Cox, et. al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court has considered Defendant Cox's Motion for Summary Judgment (doc. #70) and Defendant Robert Sesma's Motion for Summary Judgment (doc. #69), Defendants' Joint Statement of Facts (doc. # 71), Plaintiff's Consolidated Response (doc. # 205), Plaintiff's Statement of Facts (doc. # 106), and Defendants' Replies (docs. ## 108 and 109). The Court has also considered Plaintiff's Affidavit in Support of His Motion for Continuance (doc. # 97). The Court allowed and has considered supplemental affidavits from both parties. (doc. ## 111 and 115.) I. STANDARD FOR SUMMARY JUDGMENT Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be entered if the pleadings, depositions, affidavits, answers to interrogatories, and admissions on file show that there is no genuine dispute regarding the material facts of the case and the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c) (2004); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The Court must evaluate a
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Kerry Allyn Chase, Plaintiff, vs.

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No. CV 04-0056-PHX-NVW ORDER

Case 2:04-cv-00056-NVW-LOA

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party's motion for summary judgment construing the alleged facts with all reasonable inferences favoring the nonmoving party. See Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir. 2001). The party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met its initial burden with a properly supported motion, the party opposing the motion "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. See also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). Although the initial burden is on the movant to show the absence of a genuine issue of material fact, this burden may be discharged by indicating to the Court that there is an absence of evidence to support the nonmoving party's claims. Pennsylvania Dep't of Corr., 266 F.3d 186, 193 n.2 (3d Cir. 2001). II. DISPUTED AND UNDISPUTED FACTS The undisputed evidence on these motions establishes that on April 30, 2002, Defendant Bryan Cox, City of Chandler Police Detective, attempted to serve on Plaintiff Kerry Allynn Chase (also referred to in the discovery as Gilberto S. Martinez), a pre-trial detainee at the Maricopa County Jail, a state court order for taking handwriting samples. Cox detained Chase pursuant to court order under A.R.S. § 13-3905, which authorized Cox to detain Chase for up to three hours to take the evidence. A.R.S. § 13-3905(A)(7). Any physical affront by Chase would authorize Cox to use physical force to the extent reasonably necessary to effect the detention, Cox having made known the purpose of the detention and its lawfulness being reasonably apparent. A.R.S. § 13-409. -2Document 116 Filed 05/17/2006 Page 2 of 6

See Singletary v.

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Chase refused to comply with the order. In the course of the discussion, Chase jumped up in front of and very close to Cox and tried to leave. Chase then recited several times that Cox was "putting his hands on me." Chase does not dispute that he refused to comply with the court order to give handwriting samples or that he jumped up in front of and very close to Cox and tried to leave. The meeting was recorded on audio tape, which is in evidence. Chase's affidavits assert conclusorily that Cox "assaulted" him and that Sesma did not protect him from Cox's assault. Chase thereafter sought a medical examination complaining of injury to his shoulder. That much is undisputed. Whether there is a triable question of fact turns on Chase's deposition testimony, in which he stated: Q. A. Q. What exactly did he do? He assaulted me. How did he assault you?

A. Well, originally, or at first, he began yelling at me. I remember him striking me in my upper - - upper torso area. I remember falling backwards. I know there was - - there was times when I was up against the wall, when I was falling over a chair. It took - - oh, I can't even - - I can't even remember exactly, but it took a few minutes of what he was doing to me, so he - - he - - he was pushing and hitting me, me bumping into things because of the way he was pushing me and pushing me into things. I think that Officer Cox had a recording of that incident. I don't know if you - - I'm sure you're privy to that by now. Q. You indicated that he struck you. Did he hit you with a close fist? Yes. How many times did he hit you? Several.

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Q. Several? Does that mean two times, three times? Can you give me a number of times? A. I can't give you an exact amount, no, but it was, I'm sure more than - - more than three times. Okay. More than five times? Possibly, yes. More than ten times?

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A. Q. A. Q.

About that. About ten times? Yeah. And where did he strike you?

A. I remember when I saw the sergeant at Towers Jail, I had bruises on the side, on the sides of my torso, I had bruising on my chest, I had bruising on my arms. He also grabbed me by my arms, so I had the bruising on my biceps from where he had grabbed me. I don't recall, I may have had some bruises on my - - on my thigh area from the desks and the chairs and whatnot. I don't recall. Q. Okay. Other than this - - the bruising that you indicated you had, did you suffer any other injuries? A. I have a torn rotator cuff since then. I've been seen, I've had some MRIs done, and the calcification or the bone fracture, whatever took place there, is showing up on the MRIs. Q. Those were MRIs that were done when?

12 13 14 Cox's general account of the confrontation states: 15 8. 16 17 18 9. 19 20 21 22 23 24 (doc. # 71.) In his supplemental affidavit, Cox directly denies that he struck Chase with close 25 fist or open hand, that he threw Chase against walls or onto the floor, or that he did anything 26 that could cause bruising or any other injury. Cox acknowledges the use of force, but only 27 28 -4Case 2:04-cv-00056-NVW-LOA Document 116 Filed 05/17/2006 Page 4 of 6

A. They were done - - they were done at the county jail. I had x-rays taken probably a couple of months - - I would guess a couple of months after the incident took place, I had x-rays taken at DOC.

I continued to explain the order to Martinez at which time he stood from his chair and began approaching me. I instructed Martinez to return to his chair and Martinez stated that I could not threaten him. I told Martinez that I was not threatening him and he needed to return to his chair. Martinez became verbally confrontational, still refusing my visit. I told Martinez to sit down about four times, but he still refused. Martinez attempted to walk past me to exit the interview room at which time I placed my right hand on the middle of his chest and pushed him back to create space between us. Martinez was attempting to gain the attention of a detention officer sitting outside the room. I advised Martinez that I was going to return the order to the Judge and notify him that he would not comply. Martinez again began to stand up and I told him that I would let him know when I was done. Martinez stated that he did not want me to place my hands on him again and I stated I would do what is necessary if he stood up in my face. Detention Officer Sesma entered the room as I was exiting.

10.

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to push Chase "back into a chair with an open hand after he tried to force his way around me to leave the room." (doc. # 111.) Defendant Sesma has no memory of this incident. The Court should not ordinarily assess the parties' credibility to resolve a motion for summary judgment. See, e.g., Berry v. Baca, 379 F.3d 764, 769 (9th Cir. 2004); Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996). "However, when evidence is so contradictory and fanciful that it cannot be believed by a reasonable person, it may be disregarded." Jeffreys v. Rossi, 275 F. Supp. 2d 463, 476-477 (S.D.N.Y. 2003) ("[The Plaintiff's] own testimony is so replete with inconsistencies and improbabilities that a reasonable jury could not find that excessive force was used against him."). "The rationale underlying the rule that contradictory evidence may be disregarded is that a party cannot rely upon implausible testimony to create a triable issue of fact." Id. at 477; see also Radobenko v. Automated Equip. Corp., 520 F.2d 540, 544 (9th Cir. 1975) (holding that to allow the non-movant to create a genuine issue of material fact based upon self-serving, contradictory statements made in his depositions and affidavits undermines "the utility of summary judgment as a procedure for screening out sham issues of fact"); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (stating that uncorroborated allegations and "self-serving testimony" are insufficient to create a genuine issue of material fact); Riley v. City of Montgomery, Ala., 104 F.3d 1247, 1251 (11th Cir. 1997) (finding the plaintiff's "theory of the incident is inherently incredible and could not support reasonable inferences sufficient to create an issue of fact."); Culver v. Town of Torrington, Wyo., 930 F.2d 1456, 1461 (10th Cir. 1991) (affirming summary judgment for the defendants and concluding that evidence of the plaintiff's injury was insufficient to establish that the injury was caused by the defendants' use of force, where the court allowed that the defendants used force against the plaintiff). There is no genuine issue of material fact for trial because Chase presents no plausible evidence that Defendants used excessive force on Chase, an element essential to his claim that Defendants violated his constitutional rights, and on which Chase would bear the burden of proof at trial. Chase bears the burden of establishing that Defendants used force against -5Document 116 Filed 05/17/2006 Page 5 of 6

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him and that the force used was excessive, i.e., not reasonable under the circumstances. See Peraza v. Delameter, 722 F.2d 1455, 1457 (9th Cir. 1984). Chase must present more than a mere "scintilla" of evidence to defeat Defendants' motions for summary judgment; he must show that the trier of fact could reasonably find for him regarding the elements of his claim. See Anderson, 477 U.S. at 252. Summary judgment may be granted if the only evidence presented by the non-moving party is "merely colorable." Eisenberg v. Insurance Co. of N. Amer., 815 F.2d 1285, 1288 (9th Cir. 1987). Chase's rendition of the events giving rise to his action are simply not plausible in light of the audio recording. The audio tape is inconsistent with any closed fist blows, much less for several minutes, and Chase offers no explanation for the inconsistency. Nor does Chase contradict Cox's testimony that Chase refused to give the court-ordered hand writing samples and attempted to escape Cox's immediate custody, thus occasioning force by Cox to retain Chase in custody. The audio recording shows a confrontation and angry words from Cox when Chase refused the lawful order to give handwriting samples and attempted to depart, but Chase's rendition of being thrown against the wall and floor, of blows with the fist, or of any excessive force, is incompatible with the sounds on the tape. IT IS THEREFORE ORDERED that Defendant Cox's Motion for Summary

Judgment (doc. #70) and Defendant Robert Sesma's Motion for Summary Judgment (doc. #69) are granted. IT IS FURTHER ORDERED that the Clerk enter judgment in favor of Defendants and that Plaintiff take nothing on his complaint. The Clerk shall terminate this action. DATED this 15th day of May 2006.

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