Free Order - 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), 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). 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 party's motion for summary judgment construing the alleged facts with all reasonable
Document 110 Filed 04/05/2006 Page 1 of 5

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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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 him for up to three hours to take the evidence. A.R.S. § 13-3905(A)(7). Chase's physical affront to Cox authorized 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. Chase refused to comply with the order. In the course of the discussion, Chase jumped up in front of, and very close to, -2Document 110 Filed 04/05/2006 Page 2 of 5

See Singletary v.

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

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Cox and tried to leave. Cox pushed Chase back into the chair in which he had been sitting. Chase recited several times that Cox was "putting his hands on me." Chase's evidence 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, which precipitated Cox's physical response to return him to his seat 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 sought medical examination,

complaining of injury to his shoulder. Chase offers no medical evidence that he was injured in the altercation. 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.

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Q. A. Q. A. Q.

More than ten times? 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?

13 14 15 Chase's testimony that Cox pushed him into a wall and furniture and hit him with a 16 closed fist about ten times for a few minutes may be largely refuted by the audio recording, 17 which shows that the largely verbal altercation lasted about 40 seconds of a total meeting of 18 seven minutes and 40 seconds. Defendant Sesma, who has no memory of this incident, 19 cannot directly refute Chase's additional assertions, and Cox strangely does not do so either. 20 Perhaps Cox intended his recitation of what happened as an implicit denial of Chase's 21 assertions of other things happening as well, but Cox has not directly denied that he pushed 22 Chase into a wall and hit him with a closed fist, whether ten or fewer times. The pertinent 23 portion of Cox's affidavit states: 24 8. 25 26 27 9. 28 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 -4Case 2:04-cv-00056-NVW-LOA Document 110 Filed 04/05/2006 Page 4 of 5

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.

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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.

The Court is reluctant to infer the impossibility of what Cox himself does not deny. The Court has been lenient in the extreme with Chase's failures to timely file responses to these motions for summary judgment. In a parallel vein of leniency, the Court will allow Cox to file supplemental evidence on the motion for summary judgment to address directly Chase's deposition testimony quoted above. If Chase can offer no further sworn evidence, the Court will then dispose of these motions on this record. If further evidence is offered, the Court will consider it in determining whether a triable issue of fact has been presented. Because Sesma's motion for summary judgment is to some extent derivative of Cox's motion, the Court will defer ruling on Sesma's motion until it rules on Cox's. IT IS THEREFORE ORDERED that Defendants may have until April 21, 2006, to submit further evidence in support of their motions for summary judgment. Plaintiff may have until May 8, 2006, to file further rebuttal evidence. DATED this 5th day of April 2006.

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