Bober v. Emmons

Filing 35

ORDER granting Defendant's 29 Motion for Summary Judgment; the Clerk is directed to terminate this action. Signed by Judge David G Campbell on 6/18/12.(REW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gary Bober, No. CV11-01232-PHX-DGC Plaintiff, 10 11 ORDER v. Christopher Emmons #339, a Chandler Police Officer, 12 Defendant. 13 14 15 Defendant Christopher Emmons moves for summary judgment pursuant to 16 Rule 56 of the Federal Rules of Civil Procedure. Doc. 29. The motion is fully briefed. 17 Docs. 29, 30, 31, 32, 34. The parties have not requested oral argument. For the reasons 18 that follow, the Court will grant the motion. 19 I. Background. 20 The following facts are undisputed. On February 28, 2010, Plaintiff Gary Bober 21 drove to an In-N-Out Burger in Chandler, Arizona. Doc. 29, at 2. Earlier that day, 22 Plaintiff had consumed a half pint of alcohol and had taken prescription medication. Id. 23 Plaintiff drew attention to himself at the restaurant’s drive through and, as a result, was 24 investigated and arrested for driving under the influence of alcohol by a Chandler police 25 officer. Id. During the investigation, Plaintiff was asked to perform standard field 26 sobriety tests, including a walk and turn test. Id. 27 Plaintiff was placed in handcuffs and transported to a Chandler police station in 28 Defendant’s police cruiser. Id. Defendant parked the vehicle at the rear of the police 1 station in front of the holding area door. Id. at 3. Defendant opened the rear passenger 2 side door and asked Plaintiff to step out and walk to the holding area door. Id. Plaintiff 3 either tripped or lost his balance and fell face forward. Id. Because Plaintiff was secured 4 in handcuffs behind his back, he was unable to break his fall, causing him to strike his 5 face and mouth on the sidewalk. Id. After Plaintiff’s fall, Defendant came immediately to his aid. Id. Defendant 6 7 removed Plaintiff’s handcuffs and called for medical attention. 8 Id. Plaintiff was transported to a hospital emergency room for treatment. Id. Plaintiff asserts two causes of action in his first amended complaint: negligence 9 10 and 42 U.S.C. § 1983 deprivation of civil rights. 11 II. Legal Standard. 12 A party seeking summary judgment “bears the initial responsibility of informing 13 the district court of the basis for its motion, and identifying those portions of [the record] 14 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 15 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the 16 evidence, viewed in the light most favorable to the nonmoving party, shows “that there is 17 no genuine issue as to any material fact and that the movant is entitled to judgment as a 18 matter of law.” Fed. R. Civ. P. 56(c)(2). Summary judgment is also appropriate against a 19 party who “fails to make a showing sufficient to establish the existence of an element 20 essential to that party’s case, and on which that party will bear the burden of proof at 21 trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome 22 of the suit will preclude the entry of summary judgment, and the disputed evidence must 23 be “such that a reasonable jury could return a verdict for the nonmoving party.” 24 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 25 III. Discussion. 26 Defendant argues that Plaintiff’s state law claim is barred for failure to file a 27 timely notice of claim and for failure to file the claim within the statute of limitations, 28 and that Plaintiff fails to state a federal cause of action under § 1983. Doc. 29. -2- A. 1 State Law Negligence Claim. 1. 2 Notice of Claim. 3 The parties do not dispute that Arizona’s notice of claim requirement applies to 4 this case. The notice of claim statute provides that “[p]ersons who have claims against a 5 public entity or a public employee shall file claims with the person or persons authorized 6 to accept service for the public entity or public employee as set forth in the Arizona rules 7 of civil procedure within one hundred eighty days after the cause of action accrues.” 8 A.R.S. § 12-821.01(A). Defendant argues that Plaintiff “has offered no evidence that he 9 filed a notice of claim . . . within the 180 day period dictated by § 12-821.01.” Doc. 29, 10 at 4. 11 This case arises from events that occurred on February 28, 2010. Plaintiff has 12 produced a declaration of service indicating that Defendant was served with a notice of 13 claim on August 24, 2010, within the 180-day period. Doc. 32-1, at 62. In ruling on a 14 motion for summary judgment, the evidence of the nonmoving party “is to be believed, 15 and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. 16 The Court will deny summary judgment on the state law negligence claim with respect to 17 Defendant’s notice of claim argument. 18 2. Statute of Limitations. 19 Plaintiff’s cause of action accrued when he fell on February 28, 2010. Arizona 20 law requires that “[a]ll actions against any public entity or public employee shall be 21 brought within one year after the cause of action accrues[.]” A.R.S. § 12-821. Plaintiff 22 filed his original complaint on March 3, 2011, which he concedes was “three days late.” 23 Doc. 31, at 8. Plaintiff argues that his state law claim is not barred because of the two- 24 year statute of limitations under § 1983, because Defendant waived the defense by his 25 subsequent conduct in this litigation, and because of excusable neglect. 26 Different statute of limitation periods apply, depending on whether the claim 27 arises under state law or § 1983. Plaintiff correctly notes that Arizona courts apply a 28 two-year statute of limitations to § 1983 claims. A.R.S. § 12-542; TwoRivers v. Lewis, -3- 1 174 F.3d 987, 991 (9th Cir. 1999). Section 1983, however, does not protect against 2 violations of state law or state constitutional rights. Ybarra v. Bastian, 647 F.2d 891, 892 3 (9th Cir. 1981). The fact that Plaintiff may have filed a timely § 1983 federal claim does 4 not prevent application of the one-year statute of limitations under A.R.S. § 12-821 to his 5 negligence claim. See Manriquez v. City of Phoenix, No. CV11-01981-PHX-DGC, 2012 6 WL 1985640 (D. Ariz. June 4, 2012) (applying different statutes of limitations to federal 7 and state law claims); Mulleneaux v. State, 950 P.2d 1156 (Ariz. App. 1997) (same). 8 The statute of limitations is an affirmative defense, not a jurisdictional requirement 9 that can be raised at any time. See Fed. R. Civ. P. 8(c). Generally, a defendant must 10 plead his statute of limitations defense, or else it is waived. See, e.g., United States 11 Postal Serv. v. Am. Postal Workers Union, 893 F.2d 1117, 1122 (9th Cir. 1990). Plaintiff 12 argues that Defendant has waived his statute of limitations defense by withdrawing his 13 original motion to dismiss in state court and actively litigating this case for over a year 14 without raising the defense a second time. Doc. 31, at 8. “Waiver is either the express, 15 voluntary, intentional relinquishment of a known right or such conduct as warrants an 16 inference of such an intentional relinquishment. . . . Waiver by conduct must be 17 established by evidence of acts inconsistent with an intent to assert that right.” Jones v. 18 Cochise Cnty., 187 P.3d 97, 104 (Ariz. App. 2008) (quoting Am. Cont’l Life Ins. Co. v. 19 Ranier Constr. Co., 607 P.2d 372, 374 (Ariz. 1980)). Defendant raised a statute of 20 limitations defense to the negligence claim in his answer to the first amended complaint. 21 Doc. 4, at 7. 22 understanding Plaintiff’s federal claims, and subsequently filed a motion for summary 23 judgment on all claims because the Court limited each party to one dispositive motion. 24 See Doc. 34, at 3-4; Doc. 11, at 4. Defendant has not acted in a manner inconsistent with 25 his intent to assert a statute of limitations defense. Defendant took a single deposition of Plaintiff for purposes of 26 Plaintiff argues that his negligence claim should nonetheless proceed because its 27 untimeliness is not due to Plaintiff’s conduct, or alternatively, because its untimeliness is 28 due to Plaintiff’s excusable neglect. Doc. 31, at 9. -4- Plaintiff cites Hauskins v. 1 McGillicuddy, 852 P.2d 1226 (Ariz. App. 1992), and Nation v. Colla, 841 P.2d 1370 2 (Ariz. App. 1991). These cases, however, address failure to comply with the notice of 3 claim requirement, not failure to file a claim within the applicable statute of limitations. 4 They also rely on an outdated version of the notice of claim statute. See Simon v. 5 Maricopa Med. Ctr., 234 P.3d 623, 630 (Ariz. App. 2010) (“Although excusable neglect 6 once relieved compliance with the notice of claim statute, the Legislature eliminated that 7 exception when it amended the statute in 1994.”) (citations omitted). 8 While the statute of limitations is a procedural requirement that is “subject to 9 waiver, estoppel, and equitable tolling,” Pritchard v. State, 788 P.2d 1178, 1181 10 (Ariz. 1990), Plaintiff has not shown grounds for applying any of these doctrines. 11 Plaintiff’s bare implication that the untimely filing of his negligence claim was not due to 12 his conduct, and that in any event his conduct would be excusable (see Doc. 31, at 9), is 13 insufficient to overcome Defendant’s statute of limitations defense. The Court will grant 14 summary judgment in favor of Defendant on the state law negligence claim because it is 15 untimely filed under A.R.S. § 12-821. 16 B. Section 1983 Claim. 17 To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the 18 conduct of which he complains was committed by a person acting under color of state 19 law, and (2) the conduct deprived him of a federal constitutional or statutory right. Wood 20 v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). Plaintiff has asserted a deprivation of 21 his Fifth and Fourteenth Amendment rights.1 Doc. 1-1, at 24. 22 Plaintiff has no cause of action under the Fifth Amendment because Defendant is a 23 local law enforcement official. A cause of action under § 1983 premised on the Fifth 24 Amendment due process clause requires federal government action. 25 Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (“[T]he Fifth Amendment’s due process See Bingue v. 26 27 28 1 Plaintiff also alleges violations of his rights under the Arizona Constitution. See Doc. 1-1, at 23. It is well settled, however, that § 1983 does not provide a remedy for violations of state law. See, e.g., Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir. 1981). -5- 1 clause only applies to the federal government.”). 2 Nor does Plaintiff state a claim for violation of the Fourteenth Amendment. 3 Negligence by a defendant acting under color of state law is insufficient to support a 4 § 1983 claim. 5 Constitution does not guarantee due care on the part of state officials; liability for 6 negligently inflicted harm is categorically beneath the threshold of constitutional due 7 process.”) (citing Daniels v. Williams, 474 U.S. 327, 328 (1986)); see also Davidson v. 8 Cannon, 474 U.S. 344, 348 (1986) (clarifying that Daniels applies to substantive, as well 9 as procedural, due process). Plaintiff does not make factual allegations that exceed 10 ordinary negligence in his first amended complaint (Doc. 1-1, at 21-24), nor does he 11 attempt to do so in his response to Defendant’s motion for summary judgment (Doc. 31, 12 at 9-10). The Court will grant summary judgment in favor of Defendant on the § 1983 13 claim. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 848 (1998) (“[T]he 14 IT IS ORDERED: 15 1. Defendant’s motion for summary judgment (Doc. 29) is granted. 16 2. The Clerk is directed to terminate this action. 17 Dated this 18th day of June, 2012. 18 19 20 21 22 23 24 25 26 27 28 -6-

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