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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Shirlene Rand, Plaintiff, vs. City of Glendale, et al., Defendants.

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No. CIV 03-2617-PHX-EHC ORDER

Defendant City of Glendale ("Defendant")1 filed a Motion for Partial Summary Judgment [Dk. 29] and Statement of Facts [Dk. 30]. Plaintiff filed a Response and Statement of Facts [Dk. 31].2 Defendant replied [Dk. 37]. Amended Complaint On May 19, 2003, Plaintiff, who was renting business space from Defendant City of Glendale, was arrested and taken into custody by Glendale police officers for trespassing at her place of business [Dks. 5, 34]. Plaintiff filed a Complaint in the Superior Court of Maricopa County on December 3, 2003, alleging a civil rights claim under 42 U.S.C. § 1983 and several state law claims. Defendant removed to the District of Arizona on December 31, 2003 [Dk. 1], alleging

The Statement of Facts is attached to the Response and was never separately filed.
Document 41 Filed 08/15/2005 Page 1 of 6

Case 2:03-cv-02617-EHC

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federal question jurisdiction over the § 1983 claim. In the Amended Complaint [Dk. 34],3 Plaintiff alleges claims for (1) civil rights violations under 42 U.S.C. §§ 1983 and 1988 and the United States Constitution; (2) battery; (3) gross negligence, bad faith, and wanton, willful, and malicious conduct; (4) false arrest/imprisonment; (5) negligence; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; (8) negligent supervision; (9) punitive damages; (10) breach of contract; (11) tortious interference with contract; and (12) setoff or recoupment. Summary Judgment Standard A court must grant summary judgment if the pleadings and supporting documents viewed in the light most favorable to the non-moving party "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." 477 U.S. at 248, 106 S.Ct. at 2510. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." 477 U.S. at 249, 106 S.Ct. at 2511. "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553 (1986). Accordingly, summary judgment must be granted to Defendant if Plaintiff "fails to make a showing sufficient to establish the

The Amended Complaint was filed on November 9, 2004 [Dk. 34]. The Motion for Partial Summary Judgment [Dk. 29], was filed on November 29, 2004. -2Case 2:03-cv-02617-EHC Document 41 Filed 08/15/2005 Page 2 of 6

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existence of an element essential to [Plaintiff's] case, and on which [Plaintiff] will bear the burden of proof at trial." Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552. The nonmoving party need not "produce evidence in a form that would be admissible at trial in order to avoid summary judgment." Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. However, "Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. Section 1983 Claim Plaintiff alleges that Glendale police officers violated her rights under the United States Constitution, and that Defendant "either promulgated a policy under which the hereinafter described incident occurred or allowed conditions to exist and to become the policy for custom of the City of Glendale Police Department, its officers and employees." Amended Complaint, ¶2. In order to survive Defendant's Motion for Summary Judgment, Plaintiff must provide evidence of a particular official municipal policy or established custom and that the policy or custom caused her to be subjected to a deprivation of a constitutional right. Oklahoma City v. Tuttle, 471 U.S. 808, 829-30, 105 S.Ct. 2427, 2439-40 (1985) (Justice Brennan, concurring); see also Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691-94, 98 S.Ct. 2018 (1978); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675 (9th Cir. 1984). Liability may attach to a municipality only where the municipality itself causes the constitutional violation through execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy. A municipal policy exists when a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (internal quotation marks and citations omitted).

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Plaintiff may present evidence of a policy or custom of the City of Glendale in three ways: (1) by showing a longstanding practice or custom which constitutes the standard operating procedure of the local government entity; (2) by showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision; or (3) by showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate. Id. (internal quotation marks and citations omitted). Defendant has presented the following evidence that the events surrounding Plaintiff's arrest did not result from any policy or custom of the City of Glendale.4 First, "[o]nly the Glendale City Council has the authority to determine policies." Second, "[d]uring the 18 years of Rick Flaaen's tenure with the Glendale City Attorney's office, the City never locked a commercial tenant out, much less arrested a tenant." Third, "[i]t is unknown who authorized or directed that [Plaintiff] be arrested" [Dk. 30, ¶¶ 3-5 (citations and internal quotation marks omitted)]. Defendant's evidence tends to show that Plaintiff's arrest was an isolated incident not carried out under the direction of any official policymakers. "A plaintiff cannot prove the existence of a municipal policy or custom based solely on the occurrence of a single incident of unconstitutional action by a nonpolicymaking employee." Davis v. City of Ellensburg, 869 F.2d 1230, 1233-34 (9th Cir. 1989) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 2436-37 (1985) (plurality opinion)). Plaintiff has failed to present evidence to the contrary. A review of the file indicates that Plaintiff has only offered deposition testimony relating to her experience of being arrested [Dk. 31, Exh. 2 & 3] and a report by Psychologist Phillip W. Esplin [Dk. 32, Exh. C] which is relevant to alleged damages. In her Statement of Facts, Plaintiff cites to her Amended Complaint. A complaint may be used as an opposing affidavit under Rule

For the purposes of summary judgment, Defendant does not dispute that Plaintiff's constitutional rights were violated. -4Case 2:03-cv-02617-EHC Document 41 Filed 08/15/2005 Page 4 of 6

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56 only if it is verified, based on personal knowledge, and sets forth specific facts which are admissible in evidence. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (citations omitted); see also Monahan v. New York City Dept. of Corrections, 214 F.3d 275, 292 (2nd Cir. 2000) ("[A] verified complaint may serve as an affidavit for summary judgment purposes provided it meets the other requirements for an affidavit under Rule 56(e)."). The Court will not consider Plaintiff's unverified Amended Complaint as an opposing affidavit. Because Plaintiff has failed to provide any evidence that Defendant acted according to an official policy or custom, the Court will grant summary judgment as to Count One. Remaining Counts Plaintiff's claim under 42 U.S.C. § 1983 was the only claim over which the Court allegedly had jurisdiction.5 Because summary judgment will be granted in Defendant's favor as to that count, the Court lacks supplemental jurisdiction over the remaining state law claims. Accordingly, IT IS ORDERED GRANTING IN PART AND DENYING IN PART Defendant's Motion for Partial Summary Judgment [Dk. 29]. The Motion is GRANTED as to Count One and DENIED AS MOOT as to all remaining Counts. IT IS FURTHER ORDERED that the Clerk enter Judgment DISMISSING Count One with prejudice and DISMISSING Counts Two through Twelve without prejudice. DATED this 15th day of August, 2005.

Plaintiff's claim under 42 U.S.C. § 1988, which has to do with remedies, is derivative to the § 1983 claim. -5Case 2:03-cv-02617-EHC Document 41 Filed 08/15/2005 Page 5 of 6

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