Cochran v. Wardian et al

Filing 36

ORDER granting 23 Defendant's Motion for Summary Judgment. The Clerk must enter judgment accordingly and terminate the action. Signed by Senior Judge Robert C Broomfield on 4/15/13.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Howard Cochran,

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Plaintiff,
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vs.
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Mark Wardian, et al.,
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Defendants.

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No. CV 11-2538-PHX-RCB (JFM)
ORDER

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Plaintiff Howard Cochran brought this civil rights action under 42 U.S.C. § 1983

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against Mark Wardian, a City of Phoenix police officer (Doc. 9).1 Before the Court is

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Defendant’s Motion for Summary Judgment (Doc. 23), which Plaintiff opposes (Doc. 29).
The Court will grant the motion and terminate the action.

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I.

Background

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Plaintiff’s claims arose during the course of his arrest on October 29, 2010 (Doc. 9

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at 4). Plaintiff alleged that when Defendant arrived on the scene, he ordered Plaintiff to the

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ground, got on top of Plaintiff, and ground Plaintiff’s face into the concrete (id.). Plaintiff

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claimed that the force used by Defendant was objectively unreasonable and caused him to

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suffer physical pain (id.).

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Upon screening, the Court dismissed Michael Hiatt, Robert Ramsey, Christopher
Smith, John Doe, Michael Caggiano, and Todd Everett as Defendants (Doc. 10).

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Defendant now moves for summary judgment on the grounds that (1) he was not the

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officer who held Plaintiff on the ground when he was taken into custody and (2) Defendant

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is entitled to qualified immunity (Doc. 23).

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II.

Summary Judgment Legal Standard

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A court must grant summary judgment “if the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The

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movant bears the initial responsibility of presenting the basis for its motion and identifying

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those portions of the record, together with affidavits, that it believes demonstrate the absence

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of a genuine issue of material fact. Celotex, 477 U.S. at 323.

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If the movant fails to carry its initial burden of production, the nonmovant need not

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produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099,

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1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts

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to the nonmovant to demonstrate the existence of a factual dispute and that the fact in

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contention is material, i.e., a fact that might affect the outcome of the suit under the

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governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury

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could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir.

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1995). The nonmovant need not establish a material issue of fact conclusively in its favor,

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First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must

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“come forward with specific facts showing that there is a genuine issue for trial.” Matsushita

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Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation

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omitted); see Fed. R. Civ. P. 56(c)(1).

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At summary judgment, the judge’s function is not to weigh the evidence and

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determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477

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U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence, and draw all

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inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited

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materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3).
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III.

Factual Contentions

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A.

Defendant

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In support of his motion, Defendant submits a separate Statement of Facts (DSOF),

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which is supported by his declaration and the declaration of Officer Robert Ramsey, Jr. (Doc.

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24, Exs. A-B). Defendant sets forth the following factual assertions:

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On October 29, 2010, Defendant and Ramsey were on duty when, around 11:00 p.m.,

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they were called to the scene of a shooting incident near 4100 West Camelback Road in

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Phoenix, Arizona (DSOF ¶ 5). Defendant and Ramsey were provided information that there

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were three suspects involved in the shooting, and when Ramsey arrived at the scene, he

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observed three males who matched the suspects’ description run north across Camelback

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Road near an apartment complex driveway (id. ¶ 7).

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When other police units arrived on the scene, including Defendant, they all joined

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Ramsey in surrounding the three males and making contact with them (id. ¶¶ 8-9). Ramsey

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made contact with the suspect who turned out to be Plaintiff; Ramsey asked him three times

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to raise his hands in the air, but Plaintiff failed to comply (id. ¶ 10). Ramsey then drew his

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service weapon and yelled at Plaintiff to raise his hands in the air, but Plaintiff still did not

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comply (id.). After Ramsey’s fifth request, Plaintiff slowly turned around and put both hands

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in front of his waist (id.). Plaintiff then raised his shirt, pulled a cigarette pack out of his

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waistband and tossed it through a fence (id.). He proceeded to pull a handgun out of his

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waistband and drop it through the fence (id.). Ramsey ordered Plaintiff to his knees, and

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Plaintiff complied, though he did not raise his hands in the air (id.). Ramsey then ordered

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Plaintiff to lie on his stomach, but Plaintiff did not comply, so Ramsey used his right foot to

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push Plaintiff forward onto his stomach (id.). Ramsey kept his foot on Plaintiff’s back while

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Officer Michael Feist handcuffed Plaintiff (id.). In order to handcuff Plaintiff, Feist had to

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grab Plaintiff’s arms because they were underneath his body (id.).

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Plaintiff was already handcuffed when Defendant made contact with him (id. ¶ 12).

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Defendant was assigned to transport Plaintiff to the Arizona Department of Corrections

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(ADC) because Plaintiff was wanted for a parole violation (id.). Before placing Plaintiff into
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the patrol car, Defendant searched Plaintiff and found his identification (id.). Defendant did

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not force Plaintiff to the ground, hold him on the ground, get on top of him, or grind his face

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into the ground (id.). The extent of his contact with Plaintiff was that Defendant handcuffed,

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transported, and then fingerprinted him (id. ¶ 15).

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B.

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In response to DSOF, Plaintiff submits a “Statement Affidavit” (Doc. 29), in which

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Plaintiff

he sets forth his version of the incident as follows:

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On October 29, 2010, Plaintiff was walking in the 4100 block of West Camelback

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Road when numerous Phoenix police cars quickly arrived and surrounded Plaintiff (id. at 2).

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Plaintiff was nervous because he was carrying a gun and had just been shot at by the person

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from whom he had taken the gun (id.). Plaintiff turned toward a fence and discarded the gun

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(id.). He then heard one of the officers tell him to get down on his knees, which he did, and

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the officer ordered him to get down on his stomach (id.). Plaintiff was kneeling on the

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asphalt; therefore, he hesitated, and within seconds, he felt someone get on top of him, pull

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his arms back, and cuff him (id.). This officer, who turned out to be Ramsey, appeared very

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angry, and he or one of the other officers present continued to grind Plaintiff’s face into the

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asphalt with much force (id.). When Plaintiff tried to pull up, he was pushed back down even

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harder (id.). Plaintiff was aware that there were other officers next to him; however, he could

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not see them after he was pulled to his feet (id.). He was then taken to the ADC by

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Defendant (id.). Plaintiff never ran or resisted arrest, and he was compliant throughout the

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incident (id. at 3).

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IV.

Parties’ Contentions

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A.

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Defendant argues that he was not one of the officers involved in holding Plaintiff on

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the ground and Plaintiff will have great difficulty proving otherwise (Doc. 23 at 5).

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Defendant states that Plaintiff mistakenly identified him as the officer who had him on the

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ground and, therefore, Defendant should be dismissed from the action (id.).

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Defendant’s Motion

Defendant next argues that even if Plaintiff named the correct police officer, qualified
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immunity applies because the amount of force used in the circumstances was reasonable (id.

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at 7-8). Defendant also notes that the only injury Plaintiff alleged was “physical pain” (id.).

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Finally, Defendant argues that because the officers involved are entitled to qualified

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immunity, Plaintiff should not be allowed to amend his complaint to name the proper party

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(id.).2

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B.

Plaintiff’s Response

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In response, Plaintiff contends that there is a serious conflict as to which officer

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actually handcuffed Plaintiff and, therefore, as to which officer continued to force Plaintiff’s

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face into the ground after he was securely handcuffed (Doc. 29 at 3). Plaintiff submits a copy

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of the police report for the October 29, 2010 incident, which indicates that Ramsey pushed

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Plaintiff to the ground and held him while Feist handcuffed him (id., Ex. A). Plaintiff also

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points to Defendant’s affidavit, in which he states that his contact with Plaintiff included

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handcuffing Plaintiff (id., ref to. Doc. 24, Ex. A, Def. Aff. ¶ 10).

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As to his injury, Plaintiff avers that he sustained a bad scar on his face under his right

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eye (id.). He states that he attempted to obtain copies of photographs taken of him at the

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ADC both before and after the incident, but his requests were denied (id.; Doc. 30, Pl. Decl.).

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Plaintiff states that he does not challenge the officers’ decision to detain him; rather,

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he alleges that after he was handcuffed, his face continued to be pushed into the ground even

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though he was compliant and did not resist arrest and he did not say anything to the officers

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during or after the incident (Doc. 29 at 3-4).

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C.

Defendant’s Reply

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Defendant proffers a supplemental affidavit in which he avers that when he took

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control of Plaintiff for transport to the ADC, he placed his handcuffs on Plaintiff and

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removed the handcuffs that belonged to another officer (Doc. 34, Ex. 1, Def. Supp. Aff. ¶ 4).

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Defendant reasserts his argument that he only encountered Plaintiff after Plaintiff was

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handcuffed (Doc. 34 at 3). Defendant states that Plaintiff admits that he could not see which

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In an Order dated February 27, 2013, the Court denied Plaintiff’s Motion for Leave
to File an Amended Complaint (Doc. 35).
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officer allegedly ground his face into the asphalt, and Defendant argues that Plaintiff named

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the wrong party and cannot prove his case against Defendant (id.). Defendant also restates

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his qualified immunity argument (id. at 3-5).

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V.

Analysis

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A claim that law enforcement officers used excessive force in the course of an arrest

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is analyzed under the Fourth Amendment and its “reasonableness” standard. Graham v.

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Connor, 490 U.S. 386, 395 (1989). The pertinent question in an excessive-force case is

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whether the use of force was “objectively reasonable in light of the facts and circumstances

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confronting [the officers], without regard to their underlying intent or motivation.” Id. at

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396-97 (citations omitted).

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“An officer’s liability under section 1983 is predicated on his ‘integral participation’

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in the alleged violation.” See Blankenhorn v. City of Orange, 485 F.3d 463, 481 n. 12 (9th

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Cir. 2007); see also Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976) (to support a § 1983

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claim, a plaintiff must demonstrate that he suffered a specific injury as a result of specific

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conduct of a defendant and show an affirmative link between the injury and the conduct of

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that defendant). The fact that Plaintiff could not see exactly who pushed his face into the

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ground does not necessarily preclude liability for excessive force. See Santos v. Gates, 287

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F.3d 846, 851 (9th Cir. 2002) (the fact that the plaintiff had no clear recollection of the

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defendants’ exact actions that caused his alleged injuries did not preclude the plaintiff’s

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excessive force claims as a matter of law). For example, in Rutherford v. City of Berkely,

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the plaintiff could not specifically state which defendants punched or kicked him when he

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was thrown to the ground and handcuffed. 780 F.2d 1444, 1445, 1448 (9th Cir. 1986)

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abrogated on other grounds by Graham, 490 U.S. 396. The Ninth Circuit held that in light

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of evidence that (1) the defendant officers were among the officers who detained and

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handcuffed the plaintiff and (2) the plaintiff saw the defendant officers around him while he

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was being beaten, a jury could reasonably infer that the defendant officers were participants

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in punching and kicking the plaintiff. Rutherford, 780 F.2d at 1448.

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In this case, however, Plaintiff has not controverted Defendant’s evidence showing

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that Ramsey was the officer who used his foot to push Plaintiff onto his stomach, and Feist

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was the officer who grabbed Plaintiff’s arms and handcuffed him (Doc. 24, Ex. B, Ramsey

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Aff. ¶ 7). Indeed, Plaintiff’s own evidence includes the incident police report, which

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indicates that Ramsey used his foot to push Plaintiff to his stomach and then held him down

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as Feist handcuffed him (Doc. 29, Ex. A). There is no dispute that Defendant was the officer

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who transported Plaintiff to the ADC (id., Ex. A, Def. Aff. ¶ 7; Doc. 29 at 2). And Plaintiff

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fails to controvert Defendant’s evidence that Plaintiff was already handcuffed by Feist when

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Defendant made contact with him for transport (Doc. 24, Ex. A, Def. Aff. ¶ 7). Defendant’s

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supplemental affidavit explains that he changed the handcuffs on Plaintiff when he took

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control of Plaintiff for transport (Doc. 24, Ex. 1, Def. Supp. Aff. ¶ 4). Defendant’s original

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affidavit statement that he handcuffed Plaintiff is all that Plaintiff relies on to support a

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material factual dispute as to Defendant’s liability, but this is insufficient to support an

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inference that Defendant was the officer who allegedly ground Plaintiff’s face into the

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asphalt as he was lying on his stomach. Cf. Rutherford, 780 F.2d at 1448 (court found

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sufficient circumstantial evidence that the defendant officers could have participated in

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beating the plaintiff); see also Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.

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2007) (“[c]onclusory, speculative testimony in affidavits and moving papers is insufficient

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to raise genuine issues of fact and defeat summary judgment”).

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In sum, Defendant’s evidence establishes the absence of a material issue of fact that

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Defendant participated in the alleged constitutional violation, and Plaintiff fails to present

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any specific facts or evidence to support a material factual dispute regarding Defendant’s

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liability. Summary judgment will granted on this basis, and the Court need not conduct a

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reasonableness analysis under Graham or address Defendant’s qualified immunity argument.

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IT IS ORDERED:

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(1) The reference to the Magistrate Judge is withdrawn as to Defendant’s Motion for
Summary Judgment (Doc. 23).
(2) Defendant’s Motion for Summary Judgment (Doc. 23) is granted.
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(3) The Clerk of Court must enter judgment accordingly and terminate the action.

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DATED this 15th day of April, 2013.

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