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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gary Bober,

No. CV11-01232-PHX-DGC
Plaintiff,

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ORDER

v.
Christopher Emmons #339, a Chandler
Police Officer,

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Defendant.

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Defendant Christopher Emmons moves for summary judgment pursuant to

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Rule 56 of the Federal Rules of Civil Procedure. Doc. 29. The motion is fully briefed.

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Docs. 29, 30, 31, 32, 34. The parties have not requested oral argument. For the reasons

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that follow, the Court will grant the motion.

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I.

Background.

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The following facts are undisputed. On February 28, 2010, Plaintiff Gary Bober

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drove to an In-N-Out Burger in Chandler, Arizona. Doc. 29, at 2. Earlier that day,

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Plaintiff had consumed a half pint of alcohol and had taken prescription medication. Id.

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Plaintiff drew attention to himself at the restaurant’s drive through and, as a result, was

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investigated and arrested for driving under the influence of alcohol by a Chandler police

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officer. Id. During the investigation, Plaintiff was asked to perform standard field

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sobriety tests, including a walk and turn test. Id.

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Plaintiff was placed in handcuffs and transported to a Chandler police station in

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Defendant’s police cruiser. Id. Defendant parked the vehicle at the rear of the police

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station in front of the holding area door. Id. at 3. Defendant opened the rear passenger

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side door and asked Plaintiff to step out and walk to the holding area door. Id. Plaintiff

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either tripped or lost his balance and fell face forward. Id. Because Plaintiff was secured

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in handcuffs behind his back, he was unable to break his fall, causing him to strike his

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face and mouth on the sidewalk. Id.
After Plaintiff’s fall, Defendant came immediately to his aid. Id. Defendant

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removed Plaintiff’s handcuffs and called for medical attention.

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Id.

Plaintiff was

transported to a hospital emergency room for treatment. Id.
Plaintiff asserts two causes of action in his first amended complaint: negligence

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and 42 U.S.C. § 1983 deprivation of civil rights.

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II.

Legal Standard.

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A party seeking summary judgment “bears the initial responsibility of informing

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the district court of the basis for its motion, and identifying those portions of [the record]

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which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

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Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the

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evidence, viewed in the light most favorable to the nonmoving party, shows “that there is

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no genuine issue as to any material fact and that the movant is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(c)(2). Summary judgment is also appropriate against a

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party who “fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at

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trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome

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of the suit will preclude the entry of summary judgment, and the disputed evidence must

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be “such that a reasonable jury could return a verdict for the nonmoving party.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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III.

Discussion.

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Defendant argues that Plaintiff’s state law claim is barred for failure to file a

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timely notice of claim and for failure to file the claim within the statute of limitations,

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and that Plaintiff fails to state a federal cause of action under § 1983. Doc. 29.
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A.

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State Law Negligence Claim.
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Notice of Claim.

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The parties do not dispute that Arizona’s notice of claim requirement applies to

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this case. The notice of claim statute provides that “[p]ersons who have claims against a

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public entity or a public employee shall file claims with the person or persons authorized

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to accept service for the public entity or public employee as set forth in the Arizona rules

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of civil procedure within one hundred eighty days after the cause of action accrues.”

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A.R.S. § 12-821.01(A). Defendant argues that Plaintiff “has offered no evidence that he

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filed a notice of claim . . . within the 180 day period dictated by § 12-821.01.” Doc. 29,

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at 4.

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This case arises from events that occurred on February 28, 2010. Plaintiff has

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produced a declaration of service indicating that Defendant was served with a notice of

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claim on August 24, 2010, within the 180-day period. Doc. 32-1, at 62. In ruling on a

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motion for summary judgment, the evidence of the nonmoving party “is to be believed,

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and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.

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The Court will deny summary judgment on the state law negligence claim with respect to

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Defendant’s notice of claim argument.

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2.

Statute of Limitations.

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Plaintiff’s cause of action accrued when he fell on February 28, 2010. Arizona

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law requires that “[a]ll actions against any public entity or public employee shall be

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brought within one year after the cause of action accrues[.]” A.R.S. § 12-821. Plaintiff

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filed his original complaint on March 3, 2011, which he concedes was “three days late.”

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Doc. 31, at 8. Plaintiff argues that his state law claim is not barred because of the two-

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year statute of limitations under § 1983, because Defendant waived the defense by his

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subsequent conduct in this litigation, and because of excusable neglect.

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Different statute of limitation periods apply, depending on whether the claim

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arises under state law or § 1983. Plaintiff correctly notes that Arizona courts apply a

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two-year statute of limitations to § 1983 claims. A.R.S. § 12-542; TwoRivers v. Lewis,
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174 F.3d 987, 991 (9th Cir. 1999). Section 1983, however, does not protect against

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violations of state law or state constitutional rights. Ybarra v. Bastian, 647 F.2d 891, 892

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(9th Cir. 1981). The fact that Plaintiff may have filed a timely § 1983 federal claim does

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not prevent application of the one-year statute of limitations under A.R.S. § 12-821 to his

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negligence claim. See Manriquez v. City of Phoenix, No. CV11-01981-PHX-DGC, 2012

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WL 1985640 (D. Ariz. June 4, 2012) (applying different statutes of limitations to federal

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and state law claims); Mulleneaux v. State, 950 P.2d 1156 (Ariz. App. 1997) (same).

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The statute of limitations is an affirmative defense, not a jurisdictional requirement

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that can be raised at any time. See Fed. R. Civ. P. 8(c). Generally, a defendant must

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plead his statute of limitations defense, or else it is waived. See, e.g., United States

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Postal Serv. v. Am. Postal Workers Union, 893 F.2d 1117, 1122 (9th Cir. 1990). Plaintiff

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argues that Defendant has waived his statute of limitations defense by withdrawing his

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original motion to dismiss in state court and actively litigating this case for over a year

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without raising the defense a second time. Doc. 31, at 8. “Waiver is either the express,

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voluntary, intentional relinquishment of a known right or such conduct as warrants an

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inference of such an intentional relinquishment. . . . Waiver by conduct must be

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established by evidence of acts inconsistent with an intent to assert that right.” Jones v.

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Cochise Cnty., 187 P.3d 97, 104 (Ariz. App. 2008) (quoting Am. Cont’l Life Ins. Co. v.

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Ranier Constr. Co., 607 P.2d 372, 374 (Ariz. 1980)). Defendant raised a statute of

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limitations defense to the negligence claim in his answer to the first amended complaint.

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Doc. 4, at 7.

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understanding Plaintiff’s federal claims, and subsequently filed a motion for summary

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judgment on all claims because the Court limited each party to one dispositive motion.

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See Doc. 34, at 3-4; Doc. 11, at 4. Defendant has not acted in a manner inconsistent with

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his intent to assert a statute of limitations defense.

Defendant took a single deposition of Plaintiff for purposes of

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Plaintiff argues that his negligence claim should nonetheless proceed because its

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untimeliness is not due to Plaintiff’s conduct, or alternatively, because its untimeliness is

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due to Plaintiff’s excusable neglect.

Doc. 31, at 9.
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Plaintiff cites Hauskins v.

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McGillicuddy, 852 P.2d 1226 (Ariz. App. 1992), and Nation v. Colla, 841 P.2d 1370

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(Ariz. App. 1991). These cases, however, address failure to comply with the notice of

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claim requirement, not failure to file a claim within the applicable statute of limitations.

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They also rely on an outdated version of the notice of claim statute. See Simon v.

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Maricopa Med. Ctr., 234 P.3d 623, 630 (Ariz. App. 2010) (“Although excusable neglect

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once relieved compliance with the notice of claim statute, the Legislature eliminated that

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exception when it amended the statute in 1994.”) (citations omitted).

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While the statute of limitations is a procedural requirement that is “subject to

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waiver, estoppel, and equitable tolling,” Pritchard v. State, 788 P.2d 1178, 1181

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(Ariz. 1990), Plaintiff has not shown grounds for applying any of these doctrines.

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Plaintiff’s bare implication that the untimely filing of his negligence claim was not due to

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his conduct, and that in any event his conduct would be excusable (see Doc. 31, at 9), is

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insufficient to overcome Defendant’s statute of limitations defense. The Court will grant

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summary judgment in favor of Defendant on the state law negligence claim because it is

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untimely filed under A.R.S. § 12-821.

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B.

Section 1983 Claim.

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To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the

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conduct of which he complains was committed by a person acting under color of state

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law, and (2) the conduct deprived him of a federal constitutional or statutory right. Wood

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v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). Plaintiff has asserted a deprivation of

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his Fifth and Fourteenth Amendment rights.1 Doc. 1-1, at 24.

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Plaintiff has no cause of action under the Fifth Amendment because Defendant is a

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local law enforcement official. A cause of action under § 1983 premised on the Fifth

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Amendment due process clause requires federal government action.

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Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (“[T]he Fifth Amendment’s due process

See Bingue v.

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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).
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clause only applies to the federal government.”).

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Nor does Plaintiff state a claim for violation of the Fourteenth Amendment.

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Negligence by a defendant acting under color of state law is insufficient to support a

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§ 1983 claim.

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Constitution does not guarantee due care on the part of state officials; liability for

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negligently inflicted harm is categorically beneath the threshold of constitutional due

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process.”) (citing Daniels v. Williams, 474 U.S. 327, 328 (1986)); see also Davidson v.

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Cannon, 474 U.S. 344, 348 (1986) (clarifying that Daniels applies to substantive, as well

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as procedural, due process). Plaintiff does not make factual allegations that exceed

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ordinary negligence in his first amended complaint (Doc. 1-1, at 21-24), nor does he

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attempt to do so in his response to Defendant’s motion for summary judgment (Doc. 31,

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at 9-10). The Court will grant summary judgment in favor of Defendant on the § 1983

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claim.

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 848 (1998) (“[T]he

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IT IS ORDERED:

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1.

Defendant’s motion for summary judgment (Doc. 29) is granted.

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2.

The Clerk is directed to terminate this action.

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Dated this 18th day of June, 2012.

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