Free Reply to Response to Motion - District Court of Arizona - Arizona

Michael D. House Chandler City Attorney Michael E. McNeff, SBN #3083 Assistant City Attorney 55 North Arizona Place, Suite 202 Chandler, Arizona 85225 (480) 782-4640 / (480) 782-4652 Fax Attorneys for the Defendant Cox IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA KERRY ALLYNN CHASE ) ) ) ) ) ) ) ) ) ) )

NO.CV-04-0056-PHX-NVW(MS) DEFENDANT COX'S REPLY TO PLAINTIFF'S CONSOLIDATED RESPONSE TO DEFENDANTS' COX & SESMA MOTIONS FOR SUMMARY JUDGMENT

Plaintiff, v. BRYAN COX, et al.,

Defendant.

COMES NOW Defendant Bryan Cox, by and through his undersigned attorneys and hereby respectfully replies to the plaintiff's Consolidated Response to Defendants' Cox & Sesma Motions for Summary Judgment. Defendant Cox respectfully requests the Court grant his Motion for Summary Judgment for the factual legal reasons set forth in Motion for Summary Judgment and the following Memorandum of Points and Authorities. Dated this 27th day of March, 2006. Michael D. House Chandler City Attorney

Michael E. McNeff, SBN 3083 Assistant City Attorney

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Kerry Allynn Chase Consolidated Response / CV-04-0056-PHX-NVW(MS)

MEMORANDUM OF POINTS AND AUTHORITIES ARGUMENT Plaintiff Chase has filed his Plaintiff's Consolidated Response to Defendants' Cox & Sesma Motions for Summary Judgment. Attached to this pleading is Plaintiff's Consolidated Statement of Facts in Support of Response to Motions for Summary Judgment. Plaintiff's statement of facts provides no admissible and relevant evidence that supports denial of the defendants' Motions for Summary Judgment and his argument is without merit. Plaintiff's statement of facts has references to exhibits with which Defendant Cox's counsel has not been served. Defendant Cox therefore objects to all of the plaintiff's factual statement of facts that are not supported by previous evidence of record in this matter. This issue notwithstanding, the plaintiff's statement of facts 2 through 11 are irrelevant to this action as the causes of action encompassing those factual allegations were dismissed by the Court pursuant to its initial review of plaintiff's original complaint. Statement of facts 13 does not meet the requirements of LRCiv 56.1 in that it does not cite to any part of the record in this case. Additionally, this statement of fact does not provide any supportive evidence to plaintiff's argument. The simple fact that an x-ray may have been taken, without a diagnosis from that x-ray, is not probative evidence. Plaintiff's statement of fact 12 refers to a statement of facts filed by the plaintiff in support of his Motion for Continuance. The only statement of facts in that document relevant to plaintiff's case against Defendant Cox, are statement of facts 7 and 8. The only relevant allegation the plaintiff makes in those statements of facts is that he was "assaulted" by Defendant Cox. The Court has already reviewed the relevant portions of the deposition of the plaintiff,
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Kerry Allynn Chase Consolidated Response / CV-04-0056-PHX-NVW(MS)

which was filed as Exhibit 5 of the defendants' motions. The plaintiff gave a detailed description of what he alleges happened to him on April 30, 2002. As was pointed out in Cox's brief, the plaintiff's description bears no relation to reality. This is because the best evidence of the events on April 30, 2002, is the audiotape with is Exhibit 4 to Cox's motion. The tape clearly shows that the plaintiff's rendition of the event could not have happened and that he was not subjected to any physical assault other than Cox using that force necessary to accomplish his lawful purpose. That force amounted to pushing plaintiff back into a chair. "...[I]f there is no genuine issue of material fact, and if the resisting party does not present a record sufficient to support a reasonable finding in his favor, the district court has a duty to grant the motion for summary judgment." Filco v. Amana Refrigeration, Inc, 709 F.2d 1257, 1260 (Ninth Cir. 1983), see also Chisholm Brothers Farm Equipment Co. v. International Harvester Co., 498 F.2d 1137 (Ninth Cir.), cert denied, 419 U.S. 1023, 95 S.Ct. 500, 42 L.Ed.2d 298 (1974) The plaintiff does discuss one issue in his motion that the defendants should address to show the court that defendants are maintaining candor with the court. Plaintiff points out that Sgt. Kyle Goerndt of the Chandler Police wrote a report of an interview with Sgt. Wiseman of the Maricopa County Sheriff's Office about the April 30, 2002 incident. Sgt. Wiseman is reported to have stated that the plaintiff did complain about the incident and was taken for a medical exam, but refused to submit to the exam. Sgt. Wiseman was also reported to have said that medical personnel examined the plaintiff later that day, but no injuries were found. This information was not submitted to the Court in the Motion for Summary Judgment because Sgt. (now Lt.) Wiseman was interviewed by counsel and Wiseman told counsel he had absolutely no recollection of anything concerning this incident. Therefore, there is no
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Kerry Allynn Chase Consolidated Response / CV-04-0056-PHX-NVW(MS)

admissible evidence to present to the Court as any reference to Wiseman's statement would be hearsay and not admissible pursuant to Rule 801 et seq of the Federal Rules of Evidence. Even if this evidence would be admissible, it would only further prove the defendants' case as Wiseman reportedly stated there was no medical evidence that Chase was injured on April 30, 2002, after his contact with Defendant Cox. The Defendants, in their respective Motions for Summary Judgment, have presented irrefutable evidence to the Court that the conduct alleged in the complaint did not occur. This evidence is in the form of the audiotape of the incident and the plaintiff's medical records. The evidence provided by the Defendants is the only credible evidence available concerning this case. The plaintiff has not provided the Court with any other obtainable, admissible and relevant evidence to warrant the denial of the defendants' Motions for Summary Judgment. RESPECTFULLY SUBMITTED this 27th day of March, 2006.

Michael D. House Chandler City Attorney

__________/s________________ Michael E. McNeff, SBN 3083 Assistant City Attorney

Foregoing document Electronically FILED on 03/27/06 and copies HAND-DELIVERED this 27th day of March, 2006 to: Honorable Neil V. Wake United States District Court
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Kerry Allynn Chase Consolidated Response / CV-04-0056-PHX-NVW(MS)

Sandra Day O'Connor U.S. Courthouse 401 West Washington Street Phoenix, Arizona 85003-2158 Honorable Morton Stiver U.S. Magistrate Judge United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street Phoenix, Arizona 85003-2120 Joseph I. Vigil, SBN 018677 Maricopa County Attorney Division of County Counsel Security Center Building 222 North Central Avenue, Suite 1100 Phoenix, Arizona 85004-2206 and COPY mailed this 27th day of March 2006 to: Kerry Allynn Chase #166870 ASPC- Lewis P.O. Box 3300 Buckeye, Arizona 85326

By: s/

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