Johnson v. Arizona, State of, et al

Filing 104

ORDER - Defendant Anderson's motion for summary judgment (Doc. 92) is granted. Defendant Hughes and Navajo County's motion for summary judgment (Doc. 94) is granted in part and denied in part as stated above. Defendant Navajo County shall be dismissed from the case. Signed by Judge David G Campbell on 4/18/11.(LAD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Robert Johnson,
Plaintiff,

10
11

vs.

12
State of Arizona, et al,
13
Defendants.
14

)
)
)
)
)
)
)
)
)
)
)
)

No. CV10-8006-PCT-DGC
ORDER

15
16

Defendants filed motions for summary judgment on Plaintiff’s four claims. Docs. 92,

17

94. Plaintiff concedes that summary judgment may be granted on claims 2, 3, and 4, but

18

opposes summary judgment on claim 1.

19

Docs. 92-103. The Court will grant Defendant Anderson’s motion and will grant in part and

20

deny in part the motion by Defendants Hughes and Navajo County.1

21

A.

Doc. 97.

The motions are fully briefed.

Background.

22

After being arrested for driving under the influence of alcohol by Defendant A. Keith

23

Anderson, a Department of Public Safety (“DPS”) officer, Plaintiff was taken to the Navajo

24

County Sheriff’s substation where he was forced to sit in a chair and his right wrist was

25

placed in a cuff that was chained to the floor. Doc. 57 ¶¶ 10, 11, 17; Doc. 93 ¶ 6. Defendant

26
27
28

1

Defendants’ request for oral argument is denied because the issues have been fully
briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

1

Shaun Hughes, a Deputy Sheriff, and another Deputy Sheriff, came nearby at the request of

2

Defendant Anderson. Doc. 57 ¶ 18. Defendant Hughes allegedly stood in front of Plaintiff,

3

placed his knee in Plaintiff’s groin, and pressed a weapon, taser, gun, or similar instrument

4

into Plaintiff’s neck as means of coercing him to submit to a blood draw. Id.; Doc. 93 ¶ 8;

5

Doc. 98 at 4:19-20. Plaintiff does not allege that the instrument was fired, but does allege

6

that he was threatened with death or serious bodily injury by these actions. Doc. 57 ¶ 18.

7

Plaintiff was charged with several DUI offenses, pled guilty to one count pursuant to a plea

8

agreement, and was sentenced. Doc. 92 at 3-4. Plaintiff later filed this action, alleging use

9

of excessive force by officers under color of state law.

10

B.

Legal Standard.

11

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

12

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

13

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

14

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

15

in the light most favorable to the nonmoving party, shows “that there is no genuine issue as

16

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

17

Civ. P. 56(c)(2). Only disputes over facts that might affect the outcome of the suit will

18

preclude the entry of summary judgment, and the disputed evidence must be “such that a

19

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

20

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

21

C.

Discussion.

22

1.

23

Defendant Anderson moves for summary judgment on the ground that Plaintiff’s

24

claim is precluded by Heck v. Humphrey, 512 U.S. 477 (1994), because a plaintiff’s § 1983

25

claim is barred where it seeks to undermine the basis for a conviction that has not been

26

previously voided. Doc. 92. Plaintiff asserts that Heck is inapplicable to the facts of this

27

case because his conviction was based on his pleading guilty rather than on any evidence

28

obtained by the unconstitutional threat of using a taser. Doc. 97 at 3-4. Defendant Anderson

Claim 1 as to Defendant Anderson.

-2-

1

replies that Whitaker v. Garcetti, 486 F.3d 572 (9th Cir. 2007), and Szajer v. City of Los

2

Angeles, 632 F.3d 607 (9th Cir. 2011), have applied Heck to guilty-plea cases. Doc. 102 at

3

4-5. The Court need not decide this issue because another argument is dispositive.

4

Defendant Anderson joins the arguments in Defendant Hughes’s motion for summary

5

judgment that the officers’ actions as alleged by Plaintiff do not constitute a violation of

6

§ 1983. See Doc. 94 at 5-6. Plaintiff responds that Officer Anderson’s threat to use a taser

7

constituted excessive force. Doc. 97 at 3:2-3, 4:21, 6:22-23. Plaintiff cites Bryan v.

8

MacPherson, 630 F.3d 805 (9th Cir. 2010). Doc. 97 at 5. Bryan held that the firing of a

9

taser in dart mode constituted an intermediate, significant level of force. 630 F.3d at 810-11.

10

The mere verbal threat to use a taser was not the inquiry in Bryan, and Plaintiff cites no other

11

case for the proposition that a threat to use a taser constitutes excessive force. Moreover, the

12

Ninth Circuit stated in Gaut v. Sunn, 810 F.2d 923, 925 (1987), that “[w]e find no case that

13

squarely holds a threat to do an act prohibited by the Constitution is equivalent to doing the

14

act itself.” Although the Ninth Circuit has observed that drawing weapons and brandishing

15

them before a civilian may constitute excessive force in certain circumstances, Robinson v.

16

Solano County, 278 F.3d 1007, 1015 (9th Cir. 2002), Plaintiff does not assert that Defendant

17

Anderson drew a taser or brandished it, only that he threatened to do so.

18

Plaintiff has not presented evidence from which a reasonable jury could find in his

19

favor as to Defendant Anderson. The Court therefore will grant summary judgment to

20

Defendant Anderson.

21

2.

22

Defendant Hughes asserts that his actions as alleged do not violate § 1983, and that

23

even if they do he is entitled to qualified immunity. Doc. 94 at 5-8. Plaintiff responds that

24

the pressing of a taser against his neck is a constitutional violation, and that qualified

25

immunity does not attach because the right to be free from such intrusions was clearly

26

established for circumstances similar to this case. Doc. 97 at 2-3. Defendant appears to reply

27

that unless the taser was actually fired the law requires a finding of no excessive force, and

28

also restates his earlier arguments. See Doc. 99.

Claim 1 as to Defendant Hughes.

-3-

1

Plaintiff had been arrested for driving under the influence and brought to the sheriff’s

2

substation. When Defendant pressed a taser against his neck, Plaintiff asserts, Plaintiff was

3

“handcuffed and chained to the floor in a seated position,” could not have attempted to flee,

4

and was no threat to officers or others in the substation. See Doc. 97 at 2:21-22, 5:14-17.

5

Defendant Hughes asserts that Plaintiff “refused to sit still for a blood draw after a warrant

6

was obtained” (Doc. 99 at 4:11-12; accord Doc. 95 at 3:1-2), admits to putting his “right

7

hand on Plaintiff’s arm and shoulder to keep him seated,” asserts that Plaintiff’s cuff was

8

loosened with a warning from Officer Anderson that further struggling would result in tasing,

9

and that Plaintiff stopped resisting afterward (Doc. 95 at 3). Defendant also points to witness

10

testimony that “no one took a taser from anyone’s utility belt” and that Defendant “did not

11

place a knee in Plaintiff’s groin area.” Id. at 4:9-14. It is not entirely clear from Plaintiff’s

12

deposition testimony whether the cuff was loosened before or after the taser was allegedly

13

placed on his neck, but the testimony asserts the cuff was not entirely removed – only

14

loosened. Doc. 95-2 at 29-31. Plaintiff admits not being able to see the taser because it was

15

behind his back. Id. at 29. The disputed factual assertions raise issues of material fact about

16

whether Plaintiff was actively resisting a blood draw, whether his resistance posed a threat

17

to officers or himself, and whether a taser was actually pressed against his neck.

18

Assuming Plaintiff’s version of the facts as true, however, the Court must decide

19

whether Defendant Hughes would be entitled to qualified immunity. Saucier v. Katz, 533

20

U.S. 194, 200-01 (2001) (concluding that “[w]here the defendant seeks qualified immunity,

21

a ruling on that issue should be made early in the proceedings [based on the alleged facts]

22

so that the costs and expenses of trial are avoided where the defense is dispositive”); accord

23

Robinson, 278 F.3d at 1012 (noting that “issues of qualified immunity should be determined

24

at the earliest possible stage”). The qualified immunity inquiry is a two-step process:

25

(1) whether the violation of a constitutional right occurred; and (2) whether the right was

26

clearly established. Saucier, 533 U.S. at 201.

27

Brandishing a weapon before a civilian may, in certain circumstances, constitute

28

excessive force in violation of § 1983. Robinson, 278 F.3d at 1015. It follows, therefore,
-4-

1

that firing a weapon is not necessarily required for a finding of “usage of force,” and that the

2

mere pressing of a taser against a seized person with the stated objective of firing can be

3

sufficient. Whether such use of force is excessive, however, is determined by whether the

4

force was “‘objectively reasonable’ in light of the facts and circumstances confronting the

5

officer.” Id. at 1013 (citing Graham v. Connor, 490 U.S. 386, 397 (1989)). The inquiry

6

“requires careful attention to the facts and circumstances of each particular case, including

7

the severity of the crime at issue, whether the suspect poses an immediate threat to the safety

8

of the officers or others, and whether he is actively resisting arrest or attempting to evade

9

arrest by flight.” Id. at 1013-14 (citing Graham, 490 U.S. at 397).

10

Under Plaintiff’s version of the facts as discussed above and as supported by his

11

deposition, the use of force was excessive: Plaintiff was arrested for a non-violent crime, was

12

sitting handcuffed to the floor by a chain, and Defendant allegedly pressed a taser to his neck

13

prior to a blood draw attempt. Under these facts, such use of force was not objectively

14

reasonable. The Court must still determine, however, whether Plaintiff’s right to be free

15

from such force was clearly established.

16

“The relevant, dispositive inquiry in determining whether a right is clearly established

17

is whether it would be clear to a reasonable officer that his conduct was unlawful in the

18

situation he confronted.” Saucier, 533 U.S. at 202 (citing Wilson v. Layne, 526 U.S. 603,

19

615 (1999)). “If the law did not put the officer on notice that his conduct would be clearly

20

unlawful, summary judgment based on qualified immunity is appropriate.” Id. (citing Malley

21

v. Briggs, 475 U.S. 335, 341 (1986)). Plaintiff argues that the DPS Phlebotomy Manual

22

(“Manual”) states “[o]fficers shall not use an electronic control weapon (ECW) hard impact

23

control weapon, chemical irritants, or any other weapon to subdue the person during the

24

blood-draw.” Doc. 96 at 6. Plaintiff does not allege that the taser was fired – only that it was

25

pressed against his neck. Moreover, Plaintiff alleges that Officer Anderson was the licensed

26

phlebotomist, not Defendant Hughes, and does not allege that Hughes knew of the Manual.

27

Although the Manual is not an adequate source of notice for Defendant Hughes, the

28

Ninth Circuit Robinson opinion, issued in 2002, is. Robinson involved the brandishing of
-5-

1

a gun, not a taser, but the Ninth Circuit observed that the psychological effect of the use of

2

such force is the relevant inquiry. Robinson, 278 F.3d at 1015 (“We agree with the Fifth

3

Circuit that ‘[a] police officer who terrorizes a civilian by brandishing a cocked gun in front

4

of that civilian’s face may not cause physical injury, but he has certainly laid the building

5

blocks for a section 1983 claim against him.” (emphasis and alterations in original) (citing

6

Petta v. Rivera, 143 F.3d 895, 905 (5th Cir. 1998)). Here, Plaintiff testified that he was

7

afraid for his life. Doc. 95-2 at 29 (“I do not recall where his left hand was. I was

8

concentrating on what was on my neck. I thought he was going to kill me.”). Such fear of

9

death, if genuine and objectively reasonable, would be the same from a taser as from a gun.

10

In light of the above, the Court finds that summary judgment is not proper, and that

11

Plaintiff’s testimony, which could be believed by the jury, leads to the conclusion that

12

Defendant Hughes is not entitled to qualified immunity as a matter of law at this stage of the

13

proceedings.

14

3.

15

Defendant Navajo County argues in part that it cannot be held vicariously liable for

16

Defendant Hughes’s actions, citing Monell v. New York City Dep’t of Social Servs., 436 U.S.

17

658, 691 (1978). Plaintiff does not address this argument in his response. Doc. 97. The

18

Court finds the County’s argument persuasive and will therefore grant summary judgment.

Claim 1 as to Defendant Navajo County.

19

4.

20

Plaintiff concedes that summary judgment may be granted to Defendants on claims

21

Claims 2, 3, and 4.

2, 3, and 4. Doc. 97. The Court will therefore grant the motions as to these claims.

22
23

IT IS ORDERED:

24

1.

Defendant Anderson’s motion for summary judgment (Doc. 92) is granted.

25
26
27
28
-6-

1

2.

Defendant Hughes and Navajo County’s motion for summary judgment

2

(Doc. 94) is granted in part and denied in part as stated above. Defendant

3

Navajo County shall be dismissed from the case.

4

DATED this 18th day of April, 2011.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-7-