Hughes v. Kisela

Filing 20

*ORDER: IT IS ORDERED Defendants 6 Motion to dismiss the negligence claim, which has been converted to a motion for summary judgment, is GRANTED. Defendants 13 Motion for summary judgment on the civil rights claim is DENIED without prejudice. Signed by Senior Judge Frank R Zapata on 5/8/12.(BAC) *Modified to modify text on 5/8/2012 (BAC).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Amy Hughes,
Plaintiff,

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vs.

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Corporal Andrew Kisela,

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Defendant.

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No. CV-11-00366-TUC-FRZ
ORDER

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On May 21, 2010, Amy Hughes was shot by Andrew Kisela, a member of the

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University of Arizona Police Department. Hughes filed suit against Kisela in May 2011.

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The complaint asserts a state law negligence claim and a federal civil rights claim under

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42 U.S.C. § 1983. Doc. 1-3 at 2-6.

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Defendant has filed a motion to dismiss the negligence claim pursuant to Rule

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12(b)(6) of the Federal Rules of Civil Procedure. Doc. 6. Because the parties have submitted

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affidavits and other materials outside the pleadings, the motion will be converted to one for

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summary judgment under Rule 56. See Fed. R. Civ. P. 12(d). Defendant also has filed a

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separate motion for summary judgment on the civil rights claim. Doc. 13. Oral argument

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has not been requested. For reasons that follow, summary judgment will be granted on the

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negligence claim and the motion for summary judgment on the civil rights claim will be

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denied without prejudice.

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I.

Summary Judgment Standard.

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A principle purpose of summary judgment is to dispose of factually or legally

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unsupported claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). A party

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seeking summary judgment “bears the initial responsibility of informing the district court of

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the basis for its motion, and identifying those portions of [the record] which it believes

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demonstrate the absence of a genuine issue of material fact.” Id. at 323. Summary judgment

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is appropriate if the evidence, viewed in the light most favorable to the nonmoving party,

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shows “that there is no genuine issue as to any material fact and that the movant is entitled

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to judgment as a mater of law.” Fed. R. Civ. P. 56(a). Only disputes over facts that might

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affect the outcome of the suit will preclude the entry of summary judgment, and the disputed

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evidence must be “such that a reasonable jury could return a verdict for the nonmoving

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

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II.

The Negligence Claim.

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Pursuant to Arizona’s notice of claim statute, A.R.S. § 12-821.01(A), a person who

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asserts a claim against a public employee must, within 180 days after the claim accrues,

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give notice of the claim to the employee individually. See Harris v. Cochise Health Sys.,

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160 P.3d 223, 230 (Ariz. Ct. App. 2007). This requirement is met only where the notice is

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actually delivered to the employee personally or to a person authorized to accept service for

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the employee. See Norby v. City of Tombstone, No. CIV 07-232-TUC-CKJ, 2008 WL

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5068835, at *3 (D. Ariz. Dec. 1, 2008). Actual delivery may be accomplished through the

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regular mail, and proof of proper mailing is evidence that the public employee actually

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received the notice. See Lee v. State, 182 P.3d 1169, 1173 (Ariz. 2008).

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Defendant has submitted an affidavit stating that he never was served with a notice

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of claim personally and never received one by way of mail. Doc. 6-1. Plaintiff does not

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dispute that no notice has been personally served on or otherwise delivered to Defendant

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individually. Plaintiff asserts that she nonetheless has complied with A.R.S. § 12-821.01(A)

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because a copy of the claim letter was mailed to Defendant “in care of the University of

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Arizona Police Department.” Doc. 7-2.

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Arizona courts have made clear that “[w]hen a person asserts claims against a public

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entity and public employee, the person ‘must give notice of the claim to both the employee

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individually and to his employer.’” Harris, 160 P.3d at 231 (quoting Crum v. Super. Ct., 922

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P.2d 316, 317 (Ariz. Ct. App. 1996)). Plaintiff’s mailing of the claim letter to the University

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of Arizona Police Department may constitute sufficient notice to that public entity, but the

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mailing cannot also be deemed actual delivery of a notice of claim to Defendant individually.

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This is particularly true given that the letter itself purports to be a “NOTICE OF CLAIM

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AGAINST A PUBLIC ENTITY” and makes clear that Plaintiff’s claim for excessive force

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was being asserted not against Defendant individually, but “against [the] University of

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Arizona Police Department.” Doc. 7-1 at 2 (capitalization in original).

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Plaintiff has presented evidence showing that the claim letter has been served on the

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University of Arizona Police Department by leaving a copy of the letter with the University’s

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attorney. Doc. 7-1. Citing Rule 4.1(j) of the Arizona Rules of Civil Procedure, Plaintiff

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contends that by serving the claim letter on the University’s attorney, she has served the

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“appropriate legal officer for Defendant.” Doc. 7 at 4. Rule 4.1(j), by its express terms,

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“applies only to service of governmental entities.” Gregory v. Harris, No. CV11-0372 PHX

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DGC, 2011 WL 6205902, at *2 (D. Ariz. Dec. 13, 2011); see Simon v. Maricopa Med. Ctr.,

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234 P.3d 623, 631 (Ariz. Ct. App. 2010). Moreover, Plaintiff presents no evidence or legal

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authority showing that the attorney served with the claim letter is authorized to accept service

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on behalf of Defendant.

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Plaintiff’s reliance on Lee is misplaced. The negligence claim in Lee, unlike the one

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in this case, was brought solely against the State of Arizona. The plaintiff presented

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evidence showing that a notice of claim had been properly mailed to the attorney general –

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the person duly authorized to accept service for the State, see Ariz. R. Civ. P. 4.1(h).

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Lee, 182 P.3d at 1173. Under the “mail delivery rule,” there is “a presumption that a ‘letter

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properly addressed, stamped and deposited in the United States mail will reach the

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addressee.’” Id. at 1171 (citation omitted). Given this presumption, the plaintiff’s proof of

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proper mailing to the attorney general was sufficient to create a triable issue as to whether

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the State actually received the notice of claim. Id. at 1173.

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The presumption of actual receipt under the mail delivery rule is available only where

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the plaintiff presents “proof of proper mailing – timely sent, correctly addressed, and postage

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paid[.]” Id. The claim letter in this case is addressed not to Defendant personally, but to the

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University of Arizona Police Department. Doc. 7-1 at 2. Because the claim letter is not

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correctly addressed, Plaintiff is entitled to no presumption under Lee that Defendant actually

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received the letter.

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“[S]trict compliance with A.R.S. § 12-821.01(A) is required and substantial

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compliance is insufficient.” Simon, 234 P.3d at 630. The evidence, even when construed in

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Plaintiff’s favor, does not support a finding that she actually delivered a notice of claim to

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Defendant, individually.

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“mandatory” and “essential” prerequisite to suit, Harris, 160 P.3d at 230, the Court will grant

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summary judgment on the negligence claim (count one). See Simon, 234 P.3d at 632

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(affirming summary judgment in favor of individual police officers where the plaintiff did

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not strictly comply with the statutory requirement that notice of the claim be personally

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delivered to each officer).

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III.

Because compliance with the notice of claim statute is a

The Federal Civil Rights Claim.

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Defendant seeks summary judgment on the § 1983 excessive force claim on the

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grounds that his use of a firearm was reasonable and he otherwise is entitled to qualified

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immunity. Doc. 13. In support of his motion for summary judgment, Defendant has

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submitted a photograph of the knife Plaintiff allegedly was carrying on the day in question,

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transcripts of witness and police officer interviews, and a written review of the incident by

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the county attorney’s office. Doc. 14-1. Plaintiff has not responded to the motion on the

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merits. Instead, pursuant to Rule 56(c)(2), Plaintiff objects on the ground that the documents

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submitted by Defendant lack foundation and contain hearsay and, therefore, “cannot be

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presented in a form that would be admissible in evidence.” Doc. 15 at 3.

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Under Rule 901(a) of the Federal Rules of Evidence, an item is admissible only where

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the proponent “produce[s] evidence sufficient to support a finding that the item is what the

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proponent claims it is.” This Circuit “‘has consistently held that documents which have not

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had a proper foundation laid to authenticate them cannot support a motion for summary

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judgment.’” Cristobal v. Siegel, 26 F.3d 1488, 1494 (9th Cir. 1994) (citations omitted); see

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Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). When Defendant filed his

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motion for summary judgment, he presented no evidence or argument to authenticate the

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documents attached to his supporting statement of facts. Thus, Plaintiff’s objection was,

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to some extent, proper.

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It is worth noting, however, that contrary to Plaintiff’s assertion (Doc. 15 at 2-3), an

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affidavit based on personal knowledge is not the sole means by which a document may be

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authenticated. See Fed. R. Evid. 901(b); Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 533

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(9th Cir. 2011) (citing Orr, 285 F.3d at 773). For example, under Rule 901(b)(4), the

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document’s appearance, contents, or substance, “taken together with all the circumstances,”

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may suffice to authenticate the document. Moreover, “the evidence presented at the

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summary judgment stage does not yet need to be in a form that would be admissible at trial,”

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but rather, the proponent need only “set out facts that it will be able to prove through

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admissible evidence.” Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010).

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Given that Plaintiff has objected to evidence rather than responding to the motion for

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summary judgment on the merits, and because discovery has not been conducted, the Court

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will exercise its discretion and deny the motion without prejudice. See Fed. R. Civ. P.

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56(e)(4) (providing that the court may issue any “appropriate order” where a party has failed

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to properly support an assertion of fact or address another party’s assertion of fact); Nat’l

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Union Fire Ins. Co. of Pittsburgh, PA v. Donaldson Co., Inc., No. 10-4948 (JRT/AJB), 2012

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WL 1072329, at *11 (D. Minn. Mar. 30, 2012) (noting that a court may “deny a motion for

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summary judgment if a party has not yet had the opportunity to present facts essential to

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justify its opposition”).

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Even if Plaintiff has a tenable basis for her objection, Defendant argues, summary

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judgment would still be appropriate on the basis of qualified immunity because Plaintiff

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has alleged no facts establishing the violation of a clearly-established constitutional right.

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Doc. 16 at 2-3. The Court does not agree.

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The complaint alleges that Plaintiff suffers from significant and obvious mental

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disabilities, that at the time of the shooting she was acting peaceably and committing no

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crime, and that Defendant used excessive force when he shot her multiple times. Doc. 1-3

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at 2-6. Accepting those allegations as true, as is required at this stage of the proceedings

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(see Doc. 16 at 2), the Court finds that Plaintiff’s constitutional right in this case – that is, the

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Fourth Amendment right to be free from unreasonable seizure – was clearly established when

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Defendant shot her. Stated differently, it should have been clear to any reasonable officer

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that, under circumstances alleged in the complaint, “firing at [Plaintiff] was objectively

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unreasonable.” Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001).

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The Court recognizes that Defendant has presented facts that, at the time of the

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shooting, Plaintiff was armed with a knife, posed a threat to her neighbor, and ignored the

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police officers’ warnings. Doc. 14-1. But those facts, to the extent they can be presented

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through admissible evidence, should be considered at trial or as part of a fully briefed

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summary judgment motion after Plaintiff has had an opportunity to conduct discovery.

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In summary, the Court will deny without prejudice the motion for summary judgment
on the § 1983 civil rights claim (count two).

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IT IS ORDERED:

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1.

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Defendant’s motion to dismiss the negligence claim (Doc. 6), which has been

converted to a motion for summary judgment, is granted.
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Defendant’s motion for summary judgment on the civil rights claim (Doc. 13)

is denied without prejudice.
DATED this 8th day of May, 2012.

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