Rizzo v. Phoenix, City of et al

Filing 120

ORDER granting 108 Motion for Summary Judgment. The Clerk shall enter judgment against Plaintiff Denny Rizzo on his complaint and in favor of Defendants City of Phoenix and Anthony Hardina, and that Plaintiff take nothing. The Clerk shall terminate this case. Signed by Senior Judge Neil V Wake on 7/28/17.(DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Denny Rizzo, an individual,
Plaintiff,

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No. CV-15-00829-PHX-NVW
ORDER

v.
City of Phoenix, a political subdivision of
the State of Arizona; Anthony Hardina
(Badge No. 8076), in his individual
capacity as an officer with the City of
Phoenix Police Department,
Defendants.

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Before the Court is Defendants’ Motion for Summary Judgment (Doc. 108).
I.

LEGAL STANDARD

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A motion for summary judgment tests whether the opposing party has sufficient

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evidence to merit a trial. Summary judgment should be granted if the evidence reveals no

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genuine dispute about any material fact and the moving party is entitled to judgment as a

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matter of law. Fed. R. Civ. P. 56(a). A material fact is one that might affect the outcome

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of the suit under the governing law, and a factual dispute is genuine “if the evidence is

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such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

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

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The movant has the burden of showing the absence of genuine disputes of material

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fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, once the movant

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shows an absence of evidence to support the nonmoving party’s case, the burden shifts to

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the party resisting the motion. The party opposing summary judgment must then “set

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forth specific facts showing that there is a genuine issue for trial” and may not rest upon

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the pleadings. Anderson, 477 U.S. at 256. If a party fails to properly support an assertion

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of fact or fails to properly address another party’s assertion of fact, the court may

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consider the fact undisputed for purposes of the motion. Fed. R. Civ. P. 56(e)(2). In

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deciding a motion for summary judgment, the Court must view the evidence in the light

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most favorable to the nonmoving party, must not weigh the evidence or assess its

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credibility, and must draw all justifiable inferences in favor of the nonmoving party.

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Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477

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U.S. at 255.

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The Local Rules require that any party filing a motion for summary judgment file

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a statement, separate from the motion and memorandum of law, that sets forth each

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material fact on which the party relies in support of the motion. LRCiv. 56.1(a). “Each

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material fact in the separate statement must be set forth in a separately numbered

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paragraph and must refer to a specific admissible portion of the record where the fact

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finds support (for example, affidavit, deposition, discovery response, etc.).” Id. Only

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material facts should be included in the separate statement of facts; other undisputed facts

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that provide context may be included in the memorandum of law. Id.

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Any party opposing a motion for summary judgment must file a separate
controverting statement of facts that sets forth:
(1) for each paragraph of the moving party’s separate
statement of facts, a correspondingly numbered paragraph
indicating whether the party disputes the statement of fact set
forth in that paragraph and a reference to the specific
admissible portion of the record supporting the party’s
position if the fact is disputed; and (2) any additional facts
that establish a genuine issue of material fact or otherwise
preclude judgment in favor of the moving party. Each
additional fact must be set forth in a separately numbered
paragraph and must refer to a specific admissible portion of
the record where the fact finds support.

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LRCiv 56.1(b). Although the nonmoving party’s separate controverting statement of

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facts may include “additional facts,” it should not include undisputed facts, such as

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background about the action or the parties.

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The moving party may file a reply memorandum, but the Local Rules do not

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authorize filing a separate statement responding to the nonmoving party’s controverting

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statement of facts. See LRCiv 56.1(d). The moving party may include its objections to

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the nonmoving party’s controverting statement of facts in its reply memorandum. LRCiv

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7.2(m)(2). The moving party would need to seek and obtain leave to file another separate

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statement.

If such leave were granted, the nonmoving party would be granted

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opportunity to respond.

Therefore, the Court has not considered Defendants’

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Response/Objections to Plaintiff’s Separate Statement of Facts in Opposition to

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Defendant’s Motion for Summary Judgment (Doc. 118), which is not authorized by the

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Local Rules and for which leave of court was not sought. It is stricken from the record.

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Further, in response to a motion for summary judgment, “any objection in the

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party’s response to the separate statement of facts must be stated summarily without

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argument.” LRCiv. 7.2(m). Therefore, the argument included in Plaintiff’s Separate

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Statement of Facts and Response to Defendants’ Statement of Facts (Doc. 112) has not

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been considered.

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II.

UNDISPUTED MATERIAL FACTS

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Shortly before midnight on September 11, 2013, Michael Collins was stabbed on

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the grounds of the Missouri Crossing Apartment Complex in Phoenix, Arizona. Two

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residents of the complex called 911 and reported a man lying on the sidewalk, bleeding

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profusely, and throwing gravel at a nearby car.

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responded, and Officer Joel Kaminsky spoke with Collins. Kaminsky recalled hearing

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Collins say he was HIV-positive and had been stabbed by someone named “Frankie.”

The Phoenix Police Department

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Collins was transported to St. Joseph’s Hospital, and a police officer arrived at the

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hospital before the ambulance. The officer asked Collins his name several times before

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he responded, “Michael.” The officer then asked Collins who had stabbed him. The
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officer believed that Collins responded, “Frankie.” Collins was unable to answer any

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further questions. Collins subsequently underwent amputation of his left arm, suffered

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multiple strokes, and died on September 16, 2013.

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When officers arrived at the apartment complex, there was blood on the ground

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around the victim, on the sidewalk, on a stairway between the ground floor and the

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second floor, on the second-floor landing in front of the doors to apartments A-10, A-11,

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and A-12, and on the door to apartment A-11. Police interviewed people who were

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standing near the victim, those who had called 911, and residents who were home and

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answered knocks on their doors.

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An officer spoke with the resident of apartment A-10 and reported finding no

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blood inside A-10. When no one responded to a knock on the door of apartment A-11, a

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key to A-11 was obtained from a maintenance person for the complex, who said that the

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occupant of A-11 had been evicted earlier in the day, and he believed the apartment was

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empty. When the door to apartment A-11 was opened, Plaintiff Denny Rizzo emerged

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and said he had not answered the door because he thought the officers were there to evict

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him. Four officers checked the apartment and found no one else or any signs of an

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altercation in the apartment or on Rizzo.

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apartment.

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warrant from the City of Glendale, he was arrested on the misdemeanor warrant and

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taken to police headquarters.

They told Rizzo to go back inside the

After police learned that Rizzo had an outstanding misdemeanor arrest

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At approximately 4:30 a.m. on September 12, 2013, Detective Jeremy Herrera

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interviewed the residents of apartment A-7 from which a call to 911 had been made.

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They reported hearing the victim say he was HIV-positive and “Frank stabbed me.” One

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of them said he believed the victim hung around with the resident of apartment A-11 who

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went by the name of “Frankie.” Later in the morning, the other resident of A-7 identified

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Rizzo from a photo lineup as the resident of A-11 and said Rizzo had introduced himself

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as “Frankie.”

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At approximately 5:30 a.m., Defendant Detective Anthony Hardina was informed

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about the stabbing incident and assigned as the case agent. Hardina was told that the

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victim had been taken to the hospital and said that a man named “Frankie” had stabbed

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him.

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“Frankie.” At approximately 7:00 a.m., Hardina began interviewing Rizzo. Hardina

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reported that Rizzo said he usually goes by the name Denny and had never been called

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“Frank” or “Frankie.” Rizzo said he had moved into his apartment in June 2013, was

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served eviction papers, and was waiting for the constable to return to evict him out of his

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apartment. He said he had been inside his apartment the whole night. Rizzo denied

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knowing the victim or any of the witnesses and denied getting into any argument with the

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victim. Rizzo repeatedly denied that he had ever been known as “Frank” or “Frankie.”

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He said he would be willing to take a polygraph test. Hardina contacted the polygrapher,

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but he was not available.

He was also told that two witnesses stated they knew Rizzo as “Frank” or

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In the early morning of September 12, 2013, Detectives Jeremy Rose and Jason

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Robidoux were assigned as the crime scene investigators. Robidoux reported that he and

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Rose arrived on the scene at approximately 7:30 a.m. and did a walk through. His initial

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observations indicated that the stabbing likely occurred at the apartment complex

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playground. He observed a blood trail along a sidewalk and up a stairwell to a shared

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landing on the second floor. Robidoux reported that it was determined that he would

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serve the search warrant on apartment A-11 and process apartment G-1, which appeared

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to be vacant with an open door and reportedly was used by the victim.

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At 8:10 a.m., Robidoux served the search warrant on A-11. He was accompanied

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by a crime scene specialist. Robidoux reported finding two smudges of a bloodlike

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substance, one approximately one centimeter in diameter, the other smaller,

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approximately three feet above the floor on different walls. He also reported finding a

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larger smear of another deposit of bloodlike substance approximately four feet above the

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floor and approximately four centimeters in diameter. He also reported finding a deposit

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of a red substance less than five millimeters in diameter on a bathroom wall, a drop in the
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bathtub, a deposit on the edge of an air mattress in a bedroom, a deposit less than five

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millimeters in diameter on a vertical blind slat on a bedroom window, and a deposit

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approximately two millimeters by one centimeter in the shower of the second bathroom.

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Robidoux reported that near the air mattress was a sleeveless undershirt with a red

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bloodlike substance present in various places on the shirt.

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Also at approximately 8:10 a.m., the complex’s maintenance supervisor showed

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Rose a knife in the grass, which was wet after the sprinkler system had run and had no

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obvious sign of biological material. The knife was a folding knife with its approximately

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four-inch blade fully extended.

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At approximately 11:00 a.m., Hardina interviewed by telephone Jessica Lare, who

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resided in apartment G-6. She said that early in the morning on September 11 she saw a

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white man yelling threats and throwing rocks up at apartment G-4. She said that she saw

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two men arguing, but did not know either man’s name. One was white, and the other was

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a short Hispanic man with tattoos on his back and face.

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At approximately 11:40 a.m., Detective Gail Aamodt began knocking on

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apartment doors at the complex. Most of the residents that Aamodt spoke with were not

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home or did not see or hear anything during the night of September 11. Aamodt reported

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that she interviewed Richard Garcia, the maintenance man for the apartment complex.

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Garcia said he had heard that Collins caused trouble in the complex, owed many people

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money, and had been evicted twice. About 12:30 p.m., Aamodt re-contacted Garcia and

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showed him a photo lineup that included Rizzo. Aamodt asked Garcia whether he could

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identify any of the males in the photos as “Frankie.” Garcia said the only one he

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recognized was Rizzo and that was only because he lived in apartment A-11. Garcia said

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he did not know Rizzo’s name, management had no problems with him, and Rizzo was

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really quiet and kept to himself. Aamodt asked Garcia if he knew someone named Denny

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who went by the nickname “Frankie,” and Garcia said he did not. Garcia said he knew

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about the brother of the resident living in apartment G-4 and heard he went by the name

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“Smokey” or something similar. Garcia said he did not know whether “Smokey’s” real
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name was “Frankie.” Aamodt reported that Garcia said he did not know anyone in the

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complex named “Denny” or “Frankie,” but that he was not good with names, only

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apartment numbers.

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While Hardina was interviewing Rizzo, he was informed that a search of Rizzo’s

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apartment found bloody footprints along with blood spatter on the walls, in the bathroom,

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in the master bedroom, and on a shirt. When Hardina told Rizzo, Rizzo stated that police

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had taken him downstairs through the victim’s blood and then returned him to his

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apartment, tracking blood into his apartment. Rizzo also said the shirt with blood was

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really a rag that he had used for a bloody nose three or four days earlier. Rizzo said any

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DNA found in his apartment would be his own except for what he tracked in from the

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victim’s blood outside his apartment. Rizzo repeatedly denied any involvement in the

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stabbing incident.

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Hardina reported that he was informed that one of Rizzo’s neighbors had picked

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him out of a photo lineup and said he knew Rizzo as “Frank.” He also reported that he

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was informed that a maintenance person for the complex said he knew Rizzo as “Frank.”

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About noon, Rose was approached by Ronnie Bowman in the apartment complex

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parking lot. Bowman was extremely upset and cried multiple times while talking to

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Rose. Bowman said he had witnessed a verbal confrontation between Collins and a black

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male, whom he referred to as “Smokey,” during the day of September 11, 2013, at a

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nearby park. Bowman said that Collins was trying to get a food stamp card from

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“Smokey,” and Bowman thought it was related to crystal meth. Bowman said he heard

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“Smokey” tell Collins, “Don’t come back around my apartment or I’ll get you.” (Doc.

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112-3 at 6.) Bowman said that Collins was living in apartment G-1, which was vacant,

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and “Smokey” stayed in the apartment upstairs from G-1.

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Hardina reported that on September 16, 2013, he interviewed Stefanee Perez, who

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lived in apartment G-6 with Jessica Lare. Perez told Hardina that she had heard someone

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she thought was Collins yelling and banging on the door of apartment G-4 the night of

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the incident and that Collins had also done this the previous two nights. Perez said she
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did not see who Collins was yelling at the night of the incident, but said on previous

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nights he had argued with a man staying in G-4 who was Hispanic, in his late 20’s, with

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tattoos on his neck and a shaved head. Perez said she would be able to recognize who

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Collins was arguing with, but she did not know whether he was involved in the stabbing

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incident. She also said many other people, including Collins, came and went from

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apartment G-4. Perez told Hardina that on the night of the incident she heard Collins

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threatening someone, the door to G-4 open, someone go down the stairs, “something that

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hit and a piece of metal fall,” and a girl scream and say she was going to call 911.

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On September 16, 2013, Deputy County Attorney Leslie LeMense filed a direct

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complaint charging Rizzo with aggravated assault. Also on September 16, 2013, Hardina

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submitted a Priority Request for DNA analysis of the blood taken from apartment A-11.

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The Request said Rizzo was in custody, which meant the Phoenix Police Crime Lab

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would consider it a highest priority case. The Crime Lab began its forensic biology

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screening on September 16 or 17, 2013. In the Crime Lab, even the highest priority in-

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custody DNA requests take three to six months to turn around due to the volume of cases

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in the lab and the amount of time it takes to process the analyses.

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On September 17, 2013, Perez identified Collins from a photo lineup as the victim.

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When shown a photo lineup that included a photo of Rizzo, Perez did not recognize

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anyone.

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On September 18, 2013, Hardina interviewed an employee of the apartment

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complex’s leasing office.

Hardina was told that Anthony Hicks is the brother of

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Angelina Ruiz, Ruiz leased apartment G-4, Ruiz’s mother is Anita Hicks,1 Anthony

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Hicks was known as “Smokey,” and “Smokey” was staying in G-4 but not named on the

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lease. Hardina reported that he was told that neither Ruiz nor “Smokey” had been seen

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since the incident.

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Anita Hicks is one of the residents who called 911 regarding the stabbing

incident.
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On September 19, 2013, Hardina interviewed Angelina Ruiz by telephone. Ruiz

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said she had been living in apartment G-4, but she currently was living in apartment A-17

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with her mother because she was afraid to live alone. She said she had moved back with

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her mother about three or four days before the stabbing incident. Although the lease for

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apartment G-4 was in her name, Ruiz said that she was not in the apartment the night of

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the incident or in the days just before the incident. Hardina reported that Ruiz said the

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only person who could be in her apartment was her brother Anthony Hicks, and he went

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by the name of “Smokey.” Ruiz said that “Smokey’s” girlfriend probably was with him

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the night of the incident. Ruiz said that she did not know the victim or anyone by the

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name of “Frankie.” She said she did not see the incident, but only called 911 after the

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victim was throwing rocks at the back door of apartment A-17. She also said she did not

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know where “Smokey” was living or where he was at this time.

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On September 20, 2013, Rizzo was charged with second degree murder.

A

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warrant was issued for his arrest. A commissioner signed the warrant finding probable

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cause to arrest. Rizzo then attended an initial appearance during which a judicial officer

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reviewed the probable cause statement and also affirmatively found that “probable cause

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was determined.”

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On September 30, 2013, Hardina testified before the Maricopa County Grand Jury.

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Hardina informed the grand jurors that (a) Rizzo denied any involvement, (b) Rizzo

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stated that he was sleeping at the time, and (c) Rizzo explained that if the victim’s blood

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was in his apartment it was only because he tracked it in on his feet after officers allowed

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him to return to his apartment. Hardina described the blood swipes or transfer marks

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found on the wall, in the bathroom, and on the window blinds of Rizzo’s apartment and

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on a white tank top in the bedroom. Hardina told the grand jurors that DNA analysis had

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not been completed to determine whose blood was found in Rizzo’s apartment and that

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Rizzo said he had had a bloody nose four days earlier. Hardina reported that the officers

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who executed the search warrant in apartment A-11 did not believe the blood found there

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was four days old.

Hardina also said that the police had not yet developed any
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relationship between Rizzo and Collins and that, as far as Hardina knew, Rizzo had not

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had any previous assaults or trouble in the apartment complex.

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On September 30, 2013, the grand jury indicted Rizzo for second degree murder.

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On February 28, 2014, the Phoenix Police Department received the results of the

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DNA testing, which showed that the blood found in Rizzo’s apartment was Rizzo’s, not

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that of the victim. Hardina recommended that the charges against Rizzo be dismissed.

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On April 4, 2014, the charges against Rizzo were dismissed without prejudice. On April

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22, 2014, the Maricopa County Sheriff’s Office released Rizzo from custody.

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III.

ANALYSIS

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The Complaint alleges three state law claims and one federal claim against both

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Anthony Hardina, an officer with the Phoenix Police Department named in his individual

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capacity, and the City of Phoenix, under the doctrine of respondeat superior for the state

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law claims.

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A.

Count Four: 42 U.S.C. § 1983 Malicious Prosecution and Violation of
the Fourth and Fourteenth Amendments of the U.S. Constitution

Count Four alleges that Defendants “arrested and prosecuted Plaintiff without
probable cause to believe he had committed a crime, and Defendants initiated the
prosecution with reckless disregard of the facts and/or with malice.” (Doc. 1-1 at 13-14.)
Under § 1983, a municipality cannot be held liable under a respondeat superior
theory. Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). The City of Phoenix is
liable for the violation of Rizzo’s constitutional rights only if the conduct of its police
officers is directly attributable to the City’s policy or custom. See id. Rizzo does not
allege or provide evidence that his rights were violated because of a policy or custom of
the City of Phoenix. Therefore, only Hardina can be liable under Count Four.
The Arrest. Rizzo claims he was arrested on September 16, 2013, for murder
without a warrant or probable cause. That is incorrect. The evidence shows that he was
arrested on September 12, 2013, on a misdemeanor warrant from the City of Glendale.
On September 16, 2013, the Deputy County Attorney filed a direct complaint charging

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Rizzo with aggravated assault. On September 20, 2013, Rizzo was charged with second

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degree murder and a warrant was issued for his arrest based on a judicial officer’s

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determination of probable cause. On September 30, 2013, the grand jury returned an

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indictment for second degree murder.

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Probable Cause. Civil rights are not violated by an arrest based on probable cause

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even though the arrestee’s innocence may be established subsequently. Beauregard v.

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Wingard, 362 F.2d 901, 903 (9th Cir. 1966). Although Rizzo bears the ultimate burden

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of proof on the issue of unlawful arrest, Defendants bear the burden of producing

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evidence that the arresting officers had probable cause for an arrest. Dubner v. City &

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Cnty. of San Francisco, 266 F.3d 959, 965 (9th Cir. 2001). “Probable cause exists when,

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under the totality of the circumstances known to the arresting officers (or within the

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knowledge of the other officers at the scene), a prudent person would believe the suspect

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had committed a crime.” Id. at 966; accord Blankenhorn v. City of Orange, 485 F.3d

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463, 482 (9th Cir. 2007).

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“Whether probable cause exists depends upon the reasonable conclusion to be

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drawn from the facts known to the arresting officer at the time of the arrest.” Devenpeck

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v. Alford, 543 U.S. 146, 152 (2004). To determine probable cause, police may rely on

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hearsay, information received from informants, and other evidence that would not be

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admissible in court. Hart v. Parks, 450 F.3d 1059, 1066 (9th Cir. 2006). Police officers

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may draw inferences from and make deductions about the cumulative information

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available to them. Id. at 1067. When officers have communicated, probable cause can be

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based upon the collective knowledge of the investigating officers. Blankenhorn, 485

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F.3d at 472. Although officers may rely on the totality of the circumstances known to

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them in establishing probable cause, they may not disregard facts tending to dissipate

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probable cause. Crowe v. Cnty. of San Diego, 608 F.3d 406, 433 (9th Cir. 2010).

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“Whether a given state of facts constitutes probable cause is always a question of

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law to be determined by the court.” Slade v. City of Phoenix, 112 Ariz. 298, 301, 541

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P.2d 550, 553 (1975). “The existence of probable cause necessarily turns upon the
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particular facts of the individual case, and prior decisions generally are of little help in

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deciding a specific case.” John v. City of El Monte, 515 F.3d 936, 941 (9th Cir. 2008).

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Rizzo initially was arrested on a misdemeanor warrant from the City of Glendale.

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When Rizzo was arrested at police headquarters for aggravated assault, Hardina had been

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told the following:

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“Frankie,” (3) a blood trail led up the stairway to a landing in front of apartment A-11,

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(4) there was a blood smear on the door of A-11, (5) traces of blood and a bloody shirt

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were found inside of apartment A-11, (6) Rizzo lived in apartment A-11, and (7) a

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witness said Rizzo had introduced himself as “Frankie.” The information that Collins

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had a conflict with someone named “Smokey,” who did not look like Rizzo, did not

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eliminate Rizzo as a suspect. Based on the information known to Hardina at the time of

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the arrest, a prudent person would have concluded there was probable cause to think that

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Rizzo committed the crime.

(1) Collins was stabbed, (2) Collins said he was stabbed by

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Further, probable cause for an arrest may be satisfied by a grand jury indictment.

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Hart, 450 F.3d at 1070. Rizzo has not demonstrated that the indictment was invalid or

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based on false and misleading testimony. Some of Hardina’s testimony was inaccurate,

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but the errors were not prejudicial. For example, Hardina described the knife found in

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the grass courtyard as a kitchen knife instead of a folding knife, and he described the

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blood on the door to apartment A-11 as “dripping” instead of a palm print or smear.

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Hardina explained to the grand jury all of the information he did not have, such as DNA

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test results, an eyewitness to the stabbing, and any evidence that Rizzo knew Collins.

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Thus, the grand jury indictment establishes probable cause for Rizzo’s arrest. There was

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no indication that Hardina had fabricated any of the evidence.

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The Prosecution.

Malicious prosecution involves the wrongful use of legal

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process. Lacey v. Maricopa Cnty., 693 F.3d 896, 919 (9th Cir. 2012). In order to prevail

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on an action under 42 U.S.C. § 1983 for malicious prosecution, a plaintiff must show that

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the defendants prosecuted him with malice and without probable cause for the purpose of

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denying him equal protection or another specific constitutional right. Id.
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The plaintiff also must show that criminal proceedings were instituted against him

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for an offense of which he was not guilty and that the proceedings were terminated in his

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favor. Id.; Heck v. Humphrey, 512 U.S. 477, 484 (1994). This requirement avoids

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parallel litigation regarding probable cause and guilt and precludes the possibility of a

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claimant succeeding in a tort claim after being convicted in the underlying criminal

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prosecution. Id. “An individual seeking to bring a malicious prosecution claim must

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generally establish that the prior proceedings terminated in such a manner as to indicate

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his innocence.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 2004).

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The Complaint alleges that the prosecution against Rizzo terminated in his favor

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on April 1, 2014, when all charges against him were dismissed without prejudice.

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Defendants’ Motion for Summary Judgment contends the prosecution against Rizzo did

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not terminate in his favor because a prosecutor’s dismissal of a case does not terminate a

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case in favor of a defendant unless it can be shown from the record that the prosecutor

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manifested an intent to abandon the prosecution and the record here does not show an

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intent to abandon. Rizzo did not respond to Defendant’s contention. Rizzo has not

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established that the prior proceedings terminated in such a manner as to indicate his

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innocence.

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Moreover, Rizzo has provided no evidence of malice, and he was prosecuted with

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probable cause. Therefore, Defendants will be granted summary judgment on Count

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Four.

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B.

Count One: Gross Negligence

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Count One alleges that the City of Phoenix and Hardina had a duty of care not to

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recklessly endanger Rizzo’s rights and the City of Phoenix is vicariously liable for the

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conduct of its employees. It alleges Defendants breached their duty of care by entering

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Rizzo’s apartment without a search warrant or exigent circumstances, failing to promptly

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analyze the blood samples found in Rizzo’s apartment, arresting Rizzo without probable

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cause, grossly negligently investigating the assault of Collins, etc. However, the police

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entered the apartment from which Rizzo had been evicted with permission of the
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apartment complex and under exigent circumstances.2 They initially arrested Rizzo

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based on a misdemeanor arrest warrant issued by the City of Glendale and subsequently

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arrested him based on probable cause. They had no duty to process the blood samples

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from Rizzo’s apartment faster than usual. The only possible basis for a negligence claim

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would be relying on inaccurate witness reports that Collins was stabbed by someone

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named “Frankie” and Rizzo was known as “Frankie,” which led to charges against Rizzo

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instead of the person who actually assaulted Collins. However, the evidence does not

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show gross negligence.

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Police are not liable for simple negligence in investigating crime:

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The public has a vital stake in the active investigation and prosecution of
crime. Police officers and other investigative agents must make quick and
important decisions as to the course an investigation shall take. Their
judgment will not always be right; but to assure continued vigorous police
work, those charged with that duty should not be liable for mere
negligence.

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Landeros v. City of Tucson, 171 Ariz. 474, 475, 831 P.2d 850, 851 (Ct. App. 1992)

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(quoting Smith v. State, 324 N.W.2d 299, 301 (Iowa 1982)). But a municipality “may be

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liable if its police officers are grossly negligent in their investigation of a crime which

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results in an arrest.”

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negligence, the plaintiff must show “the conduct of the police was outside the duty and

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standard of care required of them in that they had reason to believe that the information

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on which they based their arrest . . . was not trustworthy.” Id.

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Id.

To survive a motion for summary judgment on gross

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Probable cause alone defeats this claim. Further, to establish probable cause for

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arrest, the police ordinarily may rely on information received from a witness shown to be

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reliable and trustworthy. Cullison v. City of Peoria, 120 Ariz. 165, 167, 584 P.2d 1156,

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1158 (1978).

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introduced himself as “Frankie” were unreliable. Few neighbors knew Rizzo, and even

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the maintenance man for the apartment complex did not know Rizzo’s name. Therefore,

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Hardina had no reason to think that the witnesses who said Rizzo

2

In response to the motion for summary judgment, Rizzo said he “does not contest
the legality of the entry into Apartment A-11.” (Doc. 112-1 at 13, ¶ 11.)
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even though the police interviewed many people, the fact that no one corroborated the

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witnesses’ identification of Rizzo as “Frankie” was not sufficient to raise suspicion about

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their reliability. Rizzo has not shown gross negligence by Defendants.

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Therefore, Defendants will be granted summary judgment on Count One.

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C.

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Count Two: Violations of Right of Due Process of Law and Right to
Privacy Under the Arizona Constitution

Count Two alleges Defendants violated Rizzo’s rights under article 2, § 4 and
article 4, § 8 of the Arizona Constitution by seizing Rizzo in his apartment without
probable cause or exigent circumstances and confining him to jail for nearly eight
months. But Rizzo was arrested in his apartment based on a misdemeanor arrest warrant
from the City of Glendale and subsequently was detained after a grand jury indictment.
Rizzo had no reasonable expectation of privacy in his apartment for which he no longer
had a right to occupy, and he expressly does not challenge the search of his apartment.
(Doc. 112-1 at 13, ¶ 11.)
Further, Rizzo does not cite any authority holding that the Arizona Constitution
provides a private right of action. He only speculates that Arizona would recognize an
implied private right of action for a state constitutional violation because more states
have done so than states that have rejected it entirely or permitted it in narrow
circumstances.
Therefore, Defendants will be granted summary judgment on Count Two.
D.

Count Three: False Imprisonment

Count Three alleges Defendants “falsely and wrongfully imprisoned Rizzo, both
following his initial arrest on September 12, 2013, and after all criminal charges were
dismissed on April 1, 2014.” (Doc. 1-1 at 13, ¶ 75.) False imprisonment is “the
detention of a person without his consent and without lawful authority.” Slade v. City of
Phoenix, 112 Ariz. 298, 300, 541 P.2d 550, 552 (1975). “A detention which occurs
pursuant to legal authority, such as a valid warrant, is not an unlawful detention.” Id.

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In this case, Rizzo was initially arrested on a misdemeanor warrant from the City

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of Glendale, which he does not claim was issued without lawful authority. Subsequently

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he was detained on an arrest warrant and grand jury indictment that were based on

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probable cause.

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Further, under Arizona law, a claim for false imprisonment must be filed within

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one year after the cause of action accrues. A.R.S. § 12-541(1). The claim accrues upon

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arrest. Hansen v. Stoll, 130 Ariz. 454, 460, 636 P.2d 1236, 1242 (Ct. App. 1981). Rizzo

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was arrested on September 12, 2013, but did not file suit until April 1, 2015. Rizzo did

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not respond to Defendants’ motion for summary judgment that his claim for false

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imprisonment is time-barred. Therefore, Defendants will be granted summary judgment

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on Count Three.

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IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment
(Doc. 108) is granted.

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IT IS FURTHER ORDERED that the Clerk enter judgment against Plaintiff

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Denny Rizzo on his complaint and in favor of Defendants City of Phoenix and Anthony

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Hardina, and that Plaintiff take nothing. The Clerk shall terminate this case.

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Dated this 28th day of July, 2017.
Dated this 28th day of July, 2017.

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