Free Motion for Judgment - District Court of Arizona - Arizona

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Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendants Griffin, Dunn, Lynde and Monson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiff, v. The City of Phoenix, et al, Defendant. NO. CV03-1892-PHX-ROS DEFENDANTS' RULE 50 MOTION REGARDING PUNITIVE DAMAGES AND EXCESSIVE FORCE CLAIM

Pursuant to FED. R. CIV. P. 50(a)(1), Defendants Griffin, Lynde, Dunn and Monson, through counsel, move for judgment as a matter of law on: (1) Plaintiff's claim for punitive damages; and (2) Plaintiff's claim of excessive force against the Defendants. Because no reasonable jury could find in Plaintiff's favor on these issues, Defendants are entitled to judgment as a matter of law and the claims dismissed. This Motion is supported by the following Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES
I. LEGAL ANALYSIS Judgment as a matter of law is appropriate only if "there is no legally sufficient evidentiary basis" to find in favor of Plaintiff. FED.R.CIV.P. 50; see also Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.2002) (a motion for judgment as a matter of law
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should be granted only "if the evidence permits only one conclusion, and that conclusion is contrary to the jury's verdict."). See generally, Wimmer v. Suffolk County Police Dept., 176 F.3d 125, 134 (2d Cir. 1999); CVI/Beta Ventures, Inc. v. Tura LP, 112 F.3d 14, 1146, 1152 (Fed. Cir. 1997) (pursuant to Rule 50(a), if there is not sufficient evidence to raise a genuine factual controversy, the court may take a case away from the jury by entering a judgment). A. Plaintiff Has Failed to Establish A Punitive Damages Claim. Plaintiff has made a claim of punitive damages against the Defendants. The standard for imposing punitive damages against an individual defendant was articulated by the U.S. Supreme Court in Smith v. Wade, 461 U.S. 30 (1983). In Smith, the Supreme Court held that punitive damages can be awarded against an individual defendant under § 1983 only "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Id. This standard is articulated in the Ninth Circuit Model Civil Jury Instruction, 7.5 (Punitive Damages). This instruction states that: The plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. You may award punitive damages only if you find that defendant's conduct was malicious, oppressive or in reckless disregard of the plaintiff's rights. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in reckless disregard of the plaintiff's rights if, under the circumstances, it reflects complete indifference to the plaintiff's safety and rights, or the defendant acts in the face of a perceived risk that its actions will violate the plaintiff's rights under federal law. Here, Plaintiff has failed to establish any evidence that the Defendants acted with ill will, spite, maliciously, oppressively or in reckless disregard of potential injury to Plaintiff on June 10, 2002. Because there has been no evidence to support Plaintiff's punitive damages claim, Defendants are entitled to judgment as a matter of law on this
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issue. B. No Excessive Force by Defendants. Pursuant to the Ninth Circuit Model Civil Jury Instructions, 11.1 (Excessive Force), the Plaintiff must establish: 1. 2. That the acts or omissions of the Defendants were intentional; and, The acts or omissions of the Defendants were the cause of the deprivation of Plaintiff's rights protected by the Constitution or laws of the United States.

Here, there has been no evidence that the officers used excessive force in a way that "caused" Plaintiff's injuries. Instead, the uncontroverted evidence is that

Plaintiff's resistance to her lawful arrest caused her elbow disclocation. Each of the officers testified that they did not intend to injure the Plaintiff, that they used the amount of force reasonable and necessary under the circumstances and that they complied with the City of Phoenix Use of Force Policy. As a result, Plaintiff cannot sustain her burden of proof on the first element of excessive force ­ that the officers acted intentionally to cause Plaintiff's injuries. Moreover, as outlined, there has been no evidence that the Defendants were the cause of Plaintiff's injury. Accordingly, Plaintiff cannot sustain her burden of proof on establishing an excessive force claim against the Defendants and they are therefore entitled to judgment as a matter of law. In addition, the uncontroverted testimony throughout this trial has been that neither Sergeant Griffin nor Officer Lynde used an arm bar hold on Plaintiff's right arm. Not only have the officers testified regarding their lack of contact with Plaintiff's right arm, but Plaintiff also provided testimony supporting this fact. Because there is no evidence that Sergeant Griffin or Officer Lynde even touched or "caused" Plaintiff's right elbow injury, Plaintiff has failed to meet her burden of proof regarding causation as to these two officers. Accordingly, Sergeant Griffin and Officer Lynde must be dismissed as Defendants.
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II.

CONCLUSION. Based on the foregoing, Defendants respectfully request the Court grant

Defendants' Rule 50 Motion on: (1) Plaintiff's claim for punitive damages; and (2) Plaintiff's claim of excessive force against the officers. DATED this 17th day of January, 2007. JONES, SKELTON & HOCHULI, P.L.C.

By /s/Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Griffin, Dunn, Lynde and Monson Electronically filed and served this 17th day of January, 2007, to: ALL PARTIES ON ELECTRONIC SERVICE LIST COPY mailed this same date to: The Hon Rosalyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, Arizona 85003

BY

s/Peggy Sue Trakes

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