Barnes v. Mingura

• Court: District Court, D. Arizona
• Decided: July 26, 2023
• Docket: 4:19-cv-00396
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Kevin Barnes, No. CV-19-00396-TUC-JGZ

10 Plaintiff, ORDER

11 v.

12 Steven Mingura, et al.,

13 Defendants. 14 15 Plaintiff Kevin Barnes, who is represented by counsel, brought this civil rights case 16 pursuant to 42 U.S.C. § 1983. (Doc. 11.) Defendants Steven Mingura and Sheriff Preston 17 Allred move for summary judgment. (Docs. 95, 92.) The motions are fully briefed.1 (Docs. 18 103, 123, 127, 129.) For the following reasons, the Court will deny Mingura’s Motion, and 19 deny Allred’s Motion in part and grant it in part. 20 BACKGROUND 21 In his First Amended Complaint, Barnes brings claims against Graham County 22 Sheriff Preston Allred and former Deputy Steven Mingura for violations of his Fourth and 23 Fourteenth Amendment rights. (Doc. 11.) In Count One, Barnes alleges that Mingura 24 intentionally used unnecessary and excessive force when arresting him on November 16, 25 2017. (Id. ¶ 16.) In Count Two, Barnes alleges that Sheriff Allred violated his constitutional 26 rights under a Monell theory based on deficiencies in the hiring, retention, training, 27 1 Oral argument was not held as it would not aid the Court’s decisional process. See 28 Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); LRCiv 7.2(f). 1 supervision, and discipline of Mingura. (Id. ¶ 19–25; see Monell v. Dep’t of Soc. Servs. of 2 New York, 436 U.S. 658 (1978).) 3 In their motions for summary judgment, Defendants argue that Barnes’ claims are 4 barred by Heck v. Humphrey, Mingura’s force was reasonable, Mingura is entitled to 5 qualified immunity, and Allred is not liable in his official capacity. (Docs. 92, 95; see Heck 6 v. Humphrey, 512 U.S. 477 (1994).) 7 SUMMARY JUDGMENT STANDARD 8 A court must grant summary judgment “if the movant shows that there is no genuine 9 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 10 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 11 movant bears the initial responsibility of presenting the basis for its motion and identifying 12 those portions of the record that it believes demonstrate the absence of a genuine issue of 13 material fact. Celotex, 477 U.S. at 323. 14 If the movant fails to carry its initial burden of production, the nonmovant need not 15 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 16 1102–03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 17 to the nonmovant to demonstrate the existence of a material factual dispute, and that the 18 dispute is genuine, that is, the evidence is such that a reasonable jury could return a verdict 19 for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see 20 Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant 21 need not establish a material issue of fact conclusively in its favor. First Nat’l Bank of Ariz. 22 v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). However, it must “come forward with 23 specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., 24 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed. 25 R. Civ. P. 56(c)(1). 26 At summary judgment, the court’s function is not to weigh the evidence and 27 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 28 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 1 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 2 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 3 FACTS 4 I. November 16, 2017 Incident 5 On November 16, 2017, Barnes’ spouse called 911 to report that Barnes was being 6 verbally aggressive and throwing things. (Doc. 96 ¶ 12.)2 Graham County Sheriff’s 7 deputies responded to the Barnes residence, but Barnes was not there. (Id. ¶ 13.) Shortly 8 after the deputies left, Barnes returned to the residence and his spouse again called 911. 9 (Id. ¶ 14.) The deputies responded once again; Deputy Schysm, who is not a party to this 10 action, was the first to arrive. (Id. ¶ 15.) When Deputy Schysm entered the residence, 11 Barnes was sitting in a lounge chair; his spouse and their two minor children were also 12 present. (Id. ¶ 16.) 13 Mingura was parked within a few miles of the Barnes residence when he heard the 14 dispatch for deputies to respond. (Doc. 104 ¶ 74.) He called his supervising sergeant and 15 told him that he would “try to stay out of this one,” but drove out to the area “because ‘he 16 knew how Kevin is.’”3 (Id. ¶¶ 30, 73; Doc. 104-7 at 60.) Ultimately, Mingura went to the 17 2 The Court cites to Mingura’s Statement of Facts (Doc. 96) and Sheriff Allred’s Statement 18 of Facts (Doc. 93) where the facts are undisputed. Defendants did not object to or dispute the additional facts provided with Barnes’ Controverting Statements of Fact, which the 19 Court incorporates. (Docs. 104, 126; see Doc. 123 at 16–19 (objecting only to improper argument and imprecise pin cites in controverting statement of facts).) Additionally, 20 Defendants have provided the body camera footage from the November 16 arrest. (See DVD, Exs. 2–4, 8–11.) To the extent that the parties’ facts conflict with the videos, the 21 Court will consider the evidence as depicted by the body camera footage. See Scott v. 22 Harris, 550 U.S. 372, 380-81 (2007) (a court may properly consider video evidence in ruling on a motion for summary judgment and should view the facts “in the light depicted 23 by the videotape.”). 24 3 The November 16, 2017 incident was not Mingura’s first time meeting Kevin Barnes. Barnes’ complaint alleges that on November 3, 2017, Mingura forcibly threw Barnes to 25 the ground face first, handcuffed him, turned him over, and punched him hard in the face 26 three times without any justification. (Doc. 73 at 5–6 (citing Doc. 11 ¶ 13).) On August 3, 2018, Barnes filed a lawsuit in Graham County Superior Court, CV 2018-00081, naming 27 Mingura and Sheriff Allred as defendants and asserting claims arising out of Barnes’ interactions with Mingura on November 3 and November 16, 2017. (Doc. 73 at 2.) The 28 parties to that action subsequently entered into a settlement agreement resolving the November 3 claims only. (Id.) The settlement agreement expressly reserved the right for 1 Barnes residence and waited outside on the front patio next to the open door; non-party 2 Deputies Haralson and Martin arrived and went inside the home. (Doc. 96 ¶¶ 17, 18.) The 3 three deputies inside spoke with Barnes, and one asked, “Kevin, you wanna stand up for 4 me?” (DVD, Ex. 3 2:19–2:22.) Video of the interaction shows Barnes refused. A deputy 5 stated, “Yes, you’re under arrest.” (Id.) Barnes responded, “No, I’m not.” (Id.) Two 6 deputies physically brought Barnes to his feet, holding on to Barnes’ left arm and the back 7 of his neck. 4 (Id. 2:22–2:27.) 8 Mingura entered the home as soon as Barnes was told that he was under arrest, and 9 walked around and in front of Barnes so that he was standing face-to-face with Barnes as 10 the other deputies stood him up. (Doc. 104 ¶ 75; DVD, Ex. 3 2:22–2:30.) The three deputies 11 were holding Barnes from behind and the side. (Doc. 96 ¶ 30; Doc. 104 ¶ 33.) The parties 12 dispute whether Barnes resisted at this point,5 but the video shows that Mingura grasped 13 Barnes’ t-shirt near the shoulder with his left hand, and wrapped his right arm around 14 Barnes’ neck. (Doc. 104 ¶ 77; DVD, Ex. 4 4:49–4:54) Barnes responded, “get your hand 15 off me,” and grasped Mingura’s left arm with his right hand. (Doc. 96 ¶ 33; DVD, Ex. 3 16 2:36–2:38.) As soon as Barnes touched Mingura’s arm, Mingura initiated a “takedown” 17 Barnes to sue Sheriff Allred and Mingura in connection with the November 16 incident. 18 (Id.) In this action, Defendants have asserted counterclaims for breach of contract and unjust enrichment, alleging that Barnes’ complaint violated the prior settlement agreement 19 by referencing the November 3 incident. (Doc. 12 at 9–11, ¶¶ 17–29; Doc. 14 at 9–10, ¶¶ 17–29.) The Court has denied summary judgment on the counterclaims and concluded that 20 a genuine issue of material fact exists as to whether the 2019 settlement agreement precludes Barnes from using evidence of the November 3 incident to prove his Monell 21 claim against Allred and punitive damages claim against Mingura relating to the November 22 16 incident. (Docs. 73 at 2, 132 at 1.) 23 4 The parties dispute whether Barnes physically resisted the deputies’ attempt to stand him up. Barnes later pleaded guilty to passively resisting arrest and maintains that his only 24 resistance was the refusal to stand up when instructed. (Doc. 104 ¶ 27.) 25 5 Defendants assert that Barnes was resisting and pulling his hands away from the deputies 26 at this time, and that he “lunged” at Mingura. (Doc. 96 ¶¶ 28, 31.) Barnes disputes these allegations, and the video does not show him pulling his hands away, physically resisting 27 the deputies, or lunging at Mingura. (Doc. 104 ¶¶ 28, 31; DVD, Ex. 3 2:22–2:30, Ex. 4 4:35–4:56.) At this same time, Barnes’ daughter stepped toward Barnes and pointed at 28 Mingura, saying “No,” before she was pushed away. (DVD, Ex. 3 2:28–2:32.) 1 and brought Barnes down to the floor. (Doc. 96 ¶ 34; Doc. 104 ¶¶ 34, 79; DVD, Ex. 3 2 2:39–2:41.) As he came down, Barnes let go of Mingura’s wrist and attempted to use his 3 right arm to break his fall. (Doc. 104 ¶¶ 37, 80.) Barnes landed on his stomach with his 4 face close to a metal ventilation grate on the floor. (Doc. 96 ¶ 34; DVD, Ex. 2 9:44–9:46.) 5 The video shows that Barnes’ right arm was flat on the floor, near Mingura’s legs, as 6 Mingura shifted his weight over Barnes and pushed him into the floor. (DVD, Ex. 3 2:45– 7 2:47.) Meanwhile, Barnes’ daughter continued to attempt to interfere with the arrest, 8 encouraging the Barnes family dog to “go get” and “sic” the officers. (Doc. 96 ¶¶ 35, 39.)6 9 Deputy Martin disengaged with Barnes to move the daughter away and restrain her. (Doc. 10 96 ¶ 40.) 11 On the floor, Mingura, Deputy Schysm, and Deputy Haralson surrounded Barnes. 12 (Doc. 96 ¶ 36; DVD, Ex. 2 9:45–10:10.)7 Deputy Schysm had control of Barnes’ left arm, 13 while Mingura was positioned over Barnes’ upper body and delivered one closed-fist strike 14 to Barnes’ head. (DVD, Ex. 2 9:45–9:49.) Mingura pressed Barnes’ face to the floor over 15 the grate, then stated in a normal volume, “he tried grabbing my balls.” (Id. 9:51–9:53.)8

16 6 The dog did not respond to the daughter’s directives and did not act aggressively towards the officers at any time. Mingura’s body camera footage shows that the dog was sitting on 17 a couch on the front porch when Mingura arrived at the Barnes residence; Mingura did not 18 interact with the dog. (DVD, Ex. 4 2:00–2:40) Deputy Haralson’s body camera footage shows that the dog was on the porch near Mingura when Haralson arrived. (DVD, Ex. 3 19 0:28–0:40.) The dog wagged its tail as Haralson approached. (Id.) Haralson quietly said, “what’s up dog,” and the dog climbed down from the couch and approached Haralson with 20 a submissive demeanor and wagging tail. (Id.) The dog followed Haralson into the home; Haralson said, “I don’t got no steaks on me,” as the dog sniffed him, and Haralson bent 21 down to pat the dog. (Id. 0:40–0:58.) During the arrest, the video shows the dog sitting on 22 the couch in the living room—it did not move or bark during the altercation, even as Barnes’ daughter continued to yell or when she was restrained by two deputies on the floor 23 immediately next to the dog. (Id. 3:14–3:19.) Defendants do not allege that the dog posed a danger or interfered with the arrest. 24 7 Barnes disputes the Defendants’ characterization that he “wrestled” or struggled against 25 the deputies’ effort to bring his hands behind back, and disputes that there was any need to 26 stop his upper body from moving because the three deputies were controlling his movement with the weight of their bodies. (Doc. 104 ¶¶ 36–42.) 27 8 Defendants assert that the “video evidence demonstrates that Plaintiff grabbed and 28 squeezed Deputy Mingura’s testicles, causing him immense pain.” (Doc 96 ¶ 7.) The body camera footage does not show this; Barnes’ right arm is not visible except for the moment 1 Mingura asserts that he delivered the fist strike after Barnes failed to obey commands and 2 “to make Plaintiff let go of his testicles.” (Doc. 96 ¶ 7.) The body camera footage shows 3 that Mingura struck Barnes in the head before he said that Barnes had tried to grab his 4 testicles, and before he said, “let go”. (DVD, Ex. 2 9:45–9:56.) 5 After delivering the fist strike, and with his knee on Barnes’ back, Mingura lifted 6 up Barnes’ head with two hands and hit it against the metal floor grate three times in rapid 7 succession. (Id. 9:53–9:56.)9 Mingura and the other deputies then pulled Barnes’ right arm 8 back behind his back, while Mingura said, “don’t ever grab my balls, Kevin.” (Id. 9:59– 9 10:06.) Barnes’ hands were fully restrained in the next five to six seconds; Mingura’s knee 10 remained on Barnes’ back. (Id. 10:04–10:10.) Approximately one minute and 51 seconds 11 elapsed between the time that Barnes was told he was under arrest and when the deputies 12 picked him up off the floor in handcuffs. (DVD, Ex. 3 2:22–4:13.) Mingura’s use of force 13 fractured several bones in Barnes’ face, including his orbital eye-socket, maxilla, nasal 14 bone, and nasal septum. (Doc. 104 ¶ 48.)10 15 In 2018 in Graham County Superior Court, Barnes pleaded guilty to disorderly 16 conduct, passively resisting arrest, and assault, in violation of A.R.S. §§ 13-2904, 17 13-2508, 13-1203(A)(3), for his conduct on November 16, 2017.11 (Doc. 96 ¶ 64.) At the 18 it is shown flat on the floor near Mingura’s legs. (DVD, Ex. 3 2:45–2:47.) Barnes asserts 19 that Mingura’s statements on the video demonstrate that Barnes did not in fact touch Mingura’s testicles because Mingura said only, “he tried,” and his voice was “calm and 20 subdued,” even when he said, “let go.” (Doc. 104 ¶ 48.) Barnes denies that he ever attempted to touch Mingura’s testicles. Because the video does not clearly show Barnes’ 21 right hand, it remains disputed whether Barnes did so. 22 9 Mingura asserts that he forced Barnes’ head to the floor repeatedly to “try and stop” 23 Barnes’ upper body from moving. (Doc. 96 ¶ 42.) Barnes disputes that there was any need to slam his head on the floor because the three deputies were controlling him with the 24 weight of their bodies, preventing him from moving his upper body. (Doc. 104 ¶ 42.) Barnes asserts that if he appears to be struggling in the video, it is only because he was 25 “writhing in pain.” (Id. ¶¶ 55, 61.) 26 10 Barnes does not claim injury to his back from the placement of Mingura’s knee. (Doc. 27 104 ¶ 57.) 28 11 Under A.R.S. § 13-2508(A)(3), a person commits resisting arrest by “intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, 1 change of plea hearing, Barnes’ attorney provided the factual basis for the resisting arrest 2 and assault charges as follows: 3 When the police arrived, the body camera shows that Mr. Barnes was seated in a recliner or an armchair. They asked him 4 repeatedly to stand up—he refused to do so. An officer placed his hand on the back of Mr. Barnes’ neck and lifted and shoved 5 him forward in order to get him to his feet. And we believe that that forms the factual basis for resisting arrest by passive 6 resistance. 7 . . . 8 After he was on his feet, Officer Mingura placed his left hand on the right shoulder of Mr. Barnes as is clearly shown in the 9 videotape. Mr. Barnes as clearly shown said get your hands off me and he grabbed Officer Mingura by the wrist and tried to 10 move Officer Mingura’s arm off of him and they actually afterwards fell to the floor would be the basis for assault, class 11 one misdemeanor. 12 (Id. ¶ 65.) The disorderly conduct conviction arose out of conduct prior to the deputies’ 13 arrival at the Barnes residence: Barnes had thrown a glass bottle at his spouse. (Doc. 96 14 ¶ 19.) Barnes agreed that the factual basis for each conviction was true. (Id. ¶ 67.) 15 II. Defendant Mingura’s Hiring, Training, Discipline, and Retention 16 Mingura applied in September 2014 to be a deputy at the Graham County Sheriff’s 17 Office. (Doc. 93 ¶ 9.) He completed an employment application that included his prior 18 history of working for other law enforcement agencies, including his time at the Greenlee 19 County Sheriff’s Office, Town of Clifton Police Department, and Town of Pima Police 20 Department. (Id.) Prior to hiring, Mingura also submitted to a background check, polygraph 21 examination, and completed an Arizona Peace Officers Standards and Training Board 22 (AZPOST) Personal History form, which disclosed that he had been “cited, arrested, 23 accused or charged with a crime,” regarding past use of excessive force. (Id.; Doc. 126 ¶ 24

25 acting under color of such peace officer’s official authority, from effecting an arrest” by 26 engaging in passive resistance. Passive resistance, a class one misdemeanor, means “a nonviolent physical act or failure to act that is intended to impede, hinder or delay the 27 effecting of an arrest.” A.R.S. § 13-2508(A)(3)(C). Under A.R.S. § 13-1203(A)(3), a person commits assault, a class three misdemeanor, by “knowingly touching another 28 person with the intent to injure, insult, or provoke such a person.” 1 10.) Graham County Undersheriff Carl McCormies, or Chief McCormies, is second in 2 command at the Graham County Sheriff’s Office and his responsibilities include 3 overseeing hiring, internal investigations, and training. (Doc. 93 ¶¶ 5, 6.) Lieutenant Jerry 4 Nelson gathered the background information and completed the AZPOST Peace Officer 5 Standards for Appointment checklist on Mingura. (Id. ¶ 11.) In his polygraph examination, 6 Mingura disclosed that his prior employer, the Clifton Police Chief, had requested the 7 Arizona Department of Public Safety (DPS) to investigate allegations that Mingura had 8 used excessive force against arrestees. (Doc. 126 ¶ 31.) Neither Chief McCormies nor 9 Lieutenant Nelson contacted DPS to obtain or review the 88-page report it prepared in 10 2012. (Doc. 126 ¶ 10; see Doc. 126-1 at 2–89.) 11 The 2012 DPS report investigated Mingura’s alleged use of excessive force against 12 five separate individuals during arrests, and documented Mingura’s uses of force against 13 several other unnamed individuals. (Doc. 126-1 at 3, 11, 23, 44, 69.)12 In one instance, 14 Mingura’s fellow deputies reported that, after they had arrested and secured an individual, 15 Mingura arrived on the scene with a shotgun in his hands, then “racked a round into the 16 chamber of the shotgun and told the suspect, ‘move and I’ll send you to hell mother 17 fucker.’” (Doc. 126 ¶ 37 (quoting 126-1 at 88).) 18 Despite Mingura’s disclosure, in both his personal history form and polygraph 19 examination, that he had been charged with a crime involving excessive force, neither 20 12 At the time of the investigation, the compliance officer at AZPOST was well aware of 21 Mingura’s reputation for using excessive force. (Doc. 126 ¶ 31.) The detective conducting 22 the DPS investigation called Compliance Officer Orfe on November 7, 2011 to explain that he was criminally investigating an officer at the Clifton Police Department. (Id.) Before 23 the detective could provide a name, Officer Orfe asked which one of the Mingura brothers he was investigating, explaining that Steven Mingura and his brother had reputations of 24 being “heavy handed” in making arrests. (Id. ¶ 31 (quoting Doc. 126-1 at 77).) Officers who worked with Mingura also expressed concerns about being “on a scene” with him and 25 reported that he was “heavy handed,” was “someone who antagonizes people, talks down 26 to people, has the ability just by his presence to escalate a situation,” and would not “trust him to stop one of their family members.” (Id.¶ 32 (quoting Doc. 126-1 at 84–85).) Others 27 described Mingura as an “arrogant” officer who would “purposely escalate the situation to a point where an arrest would occur,” and thought “law enforcement is a competition.” 28 (Id.) 1 McCormies nor Nelson contacted the prosecutor in the 2011 criminal case to obtain 2 information regarding the charges—three counts of felony aggravated assault involving 3 three separate victims.13 (Doc. 126 ¶¶ 12, 30.) 4 Lieutenant Nelson produced a Graham County Sheriff’s Department Background 5 Report on Mingura that outlined and summarized the background investigation; that report 6 reflected that Mingura was “a satisfactory candidate to hire” as a Graham County Sheriff’s 7 Deputy. (Doc. 93 ¶ 12.) Mingura had completed the Central Arizona Regional Law 8 Officers Training Academy in 2007, which trained cadets on use of force. (Id. ¶ 13.) Upon 9 hiring, Mingura completed GCSO’s eight- to ten-week field training program. (Id. ¶ 17.) 10 Mingura testified that he did not receive training regarding use of force while employed at 11 GCSO—he had asked Lieutenant Nelson and the use of force instructor for in-house 12 training, but was advised that “he didn’t have time this year.” (Doc. 126 ¶ 13 (quoting Doc. 13 126-2 at 3).) 14 While he was employed at GCSO, written policies on use of force were in effect 15 and Mingura was supervised by the chain of command. (Doc. 93 ¶ 20, 21.) Performance 16 evaluations reflected that Mingura demonstrated “competent, acceptable, even 17 commendable performance.” (Id. ¶ 22.) 18 Prior to November 16, 2017, Chief McCormies was aware of Mingura’s November 19 3, 2017 use of force against Barnes, and recognized that there was a disparity between 20 Barnes’ and Mingura’s descriptions of the incident. (Id. ¶ 23.) Chief McCormies was in 21 the process of obtaining the assistance of an independent outside agency to investigate the 22 November 3 incident when Mingura responded to the Barnes residence and again used 23 force against Barnes on November 16, 2017. (Id.) Mingura was placed on administrative 24 leave with pay on December 7, 2017. (Id. ¶ 24.) The DPS Investigation into the November 25 3 incident was completed on or about October 29, 2018; it concluded that Mingura’s use 26 13 The criminal case against Mingura was ultimately dismissed due to lack of cooperation 27 by the victims. (Doc. 126 ¶¶ 30, 61.) 28 1 of force against Barnes was unreasonable and excessive. (Id.) After a hearing on November 2 6, 2018, Mingura was terminated from GCSO due to his November 3 use of force against 3 Barnes. (Id.) Mingura was not disciplined for the November 16, 2017 incident; Chief 4 McCormies concluded that the November 16 use of force was reasonable under the 5 circumstances because “Barnes grabbed Mingura’s testicles,” and “was physically resisting 6 arrest” while his daughter attempted to intervene. (Id. ¶ 25.) The claims in Barnes’ pending 7 lawsuit pertain to the November 16 incident. 8 DISCUSSION 9 Defendant Mingura moves for summary judgment on Barnes’ § 1983 excessive 10 force claim, arguing that it is barred under Heck v. Humphrey, 512 U.S. 477 (1994), that 11 Mingura’s actions were objectively reasonable, and that he is entitled to qualified 12 immunity. (Doc. 95 at 2.) Sheriff Allred moves for summary judgment and asserts that he 13 is entitled to judgment as a matter of law because there is no evidence of deliberate 14 indifference in the Graham County Sheriff’s Officer’s hiring, training, supervision, 15 discipline, or retention of Mingura. (Doc. 92 at 9.) 16 I. Heck v. Humphrey Does Not Bar Barnes’ Excessive Force Claims 17 Mingura argues that Barnes’ guilty plea to resisting arrest and assault bars his 18 excessive force claim under Heck v. Humphrey. The Court disagrees. Because Barnes’ 19 excessive force claim turns on conduct that was not part of the factual basis of his plea, 20 success in this action would not necessarily invalidate his convictions. As a result, the Heck 21 bar does not require dismissal of Barnes’ claim that Mingura used excessive force when he 22 struck Barnes and hit his face against the metal grate on the floor three times. 23 In Heck, the Court held that a prisoner’s claim for damages cannot be brought under 24 42 U.S.C. § 1983 if “a judgment in favor of the plaintiff would necessarily imply the 25 invalidity of his conviction or sentence,” unless the prisoner demonstrates that the 26 conviction or sentence has previously been reversed, expunged, or otherwise invalidated. 27 Heck, 512 U.S. at 486–87. The Supreme Court has since emphasized that it was “careful 28 in Heck to stress the importance of the term ‘necessarily.’” Lemos v. County of Sonoma, 40 1 F.4th 1002, 1005 (9th Cir. 2022) (en banc) (quoting Nelson v. Campbell, 541 U.S. 637, 647 2 (2004)). If the prior conviction arises out of a guilty plea, the court must look to the factual 3 basis of the plea to determine if success in the § 1983 action would necessarily invalidate 4 the plea. Lemos, 40 F.4th at 1006, 1008; see Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 5 1996). 6 Here, Barnes’ § 1983 claim is limited to Mingura’s alleged excessive use of force 7 when he struck Barnes and hit his face against the floor while placing a knee on Barnes’ 8 back. (Doc. 103 at 9.) For his conduct on November 16, 2017, Barnes pleaded guilty to 9 passively resisting arrest, in violation of A.R.S. § 13-2508, and assault, in violation of 10 A.R.S. § 13-1203(A)(3). The factual basis of the passive resistance plea was limited to 11 Barnes’ refusal to stand up out of his chair. As his attorney explained, the deputies “asked 12 him repeatedly to stand up—he refused to do so.” (Doc. 96 ¶ 65.) Crucially, Barnes did not 13 admit to, and was not convicted of, physically resisting the deputies by struggling against 14 their attempts to handcuff him or wrestling with them on the floor—his passive resistance 15 ended when the deputies stood him up. Similarly, as Barnes’ attorney explained, Barnes’ 16 assault plea was based solely on conduct occurring prior to Barnes’ being taken to the floor: 17 “Barnes as clearly shown said get your hands off me and he grabbed Officer Mingura by 18 the wrist and tried to move Officer Mingura’s arm off of him and they actually afterwards 19 fell to the floor would be the basis for assault.”14 (Id.) 20 Barnes’ prior guilty pleas pertained only to his actions up until he was on the floor, 21 while his excessive force claim is limited to Mingura’s use of force against Barnes after he 22 was pinned on the floor. Barnes does not contest the facts underlying his plea and neither 23 his passive resistance nor his admitted assault on Mingura was the moving force behind 24 the alleged constitutional violation. Thus, success in this action would not in any way 25 invalidate Barnes’ prior resisting arrest or assault convictions. 26

27 14 While both parties agree that Mingura took Barnes to the floor and the men did not accidentally fall, Barnes does not allege that the takedown was excessive or seek damages 28 for that use of force. 1 Mingura argues that Barnes’ convictions should bar any excessive force claim 2 against him for “any actions” Mingura took in the November 16 encounter because “an 3 arrest under the Fourth Amendment extends from the start to the end of an arrest, spanning 4 the entire period a suspect remains with the arresting officers,” and “a defendant can only 5 be convicted of resisting arrest in Arizona if the officer’s conduct was lawful.” (Doc. 95 at 6 7–8 (citing Curry v. Baca, 371 F. Appx. 733, 733–34 (9th Cir. 2010).) Mingura’s argument 7 fails because both the temporal and categorical approaches to the Heck bar are no longer 8 applicable; analyzing the factual basis of the conviction is required. Lemos, 40 F.4th at 9 1006, 1008. 10 Applying a temporal analysis, Mingura explains that Arizona courts have held that 11 “effecting arrest” under A.R.S. § 13-2508 “is on-going beginning with the officer’s first 12 physical contact and continuing even after the arrest may be ‘complete’ under the law.” 13 State v. Flores, 260 P.3d 309, n.1 (Ariz. Ct. App. 2011) (citing State v. Mitchell, 62 P.3d 14 616, 619–20 (Ariz. Ct. App. 2003)). Mingura asserts that none of the force used “occurred 15 pre-arrest or post-arrest,” but rather during “the same phase of the encounter” and was thus 16 not “outside the timeframe from which Plaintiff resisted arrest.” (Id. at 9.) This argument 17 relies on the Ninth Circuit’s interpretation of a California resisting arrest statute in Smith 18 v. City of Hemet, 394 F.3d 689 (9th Cir. 2005). In Smith, the panel identified different 19 “phases” in an arrest encounter when considering whether the Heck bar applied. The Ninth 20 Circuit subsequently narrowed Smith’s holding after an intervening California Supreme 21 Court decision interpreted the statute at issue and clarified that not all encounters can be 22 divided into discrete phases—and that both lawful and unlawful force may be used by 23 officers during a “continuous transaction” of events. Hooper v. County of San Diego, 629 24 F.3d 1127, 1132 (9th Cir. 2011). In any event, Barnes was convicted of resisting arrest and 25 assault in Arizona, not under the California statute. 26 Mingura takes a categorical approach to the Arizona statutes. He argues that Barnes’ 27 excessive force claims would necessarily invalidate his convictions because an excessively 28 forceful arrest is unlawful in Arizona and a resisting arrest conviction requires the officer’s 1 conduct to be lawful. (Doc. 95 at 7.) In support, Mingura cites several District of Arizona 2 cases applying this logic to bar claims under Heck. These cases are inapposite because each 3 was decided before the en banc Ninth Circuit decision in Lemos held that the court must 4 look to the factual basis of the conviction, not categorically interpret the elements of the 5 statute. Lemos, 40 F.4th at 1006, 1008. 6 Further, Mingura’s characterization of the relevant Arizona statutes is incorrect. 7 Arizona’s resisting arrest statute does not require the arrest to be lawful to sustain a 8 conviction, it merely provides that the person must reasonably know the arresting officer 9 is “a peace officer, acting under color of such peace officer’s official authority.” A.R.S. 10 § 13-2508(A). Additionally, the statutory justification defense is not part of the resisting 11 arrest or assault statutes, it is a separate affirmative defense codified at A.R.S. § 13-404. It 12 provides that a person is not justified in the threat or use of physical force against another 13 to “resist an arrest that the person knows or should know is being made by a peace officer 14 or by a person acting in a peace officer's presence and at his direction, whether the arrest 15 is lawful or unlawful, unless the physical force used by the peace officer exceeds that 16 allowed by law.” A.R.S. § 13-404(B)(2) (emphasis added). Regardless, the court must look 17 to the factual basis of the assault plea, not only to the text of the statute of conviction. 18 Section 13-404 is not referenced in the plea agreement and justification was not discussed 19 at the change of plea hearing. Barnes may have waived the justification defense, but there 20 was no finding in the criminal record as to whether the force used by Mingura or the other 21 deputies was excessive. 22 In sum, looking to the factual basis of Barnes’ guilty pleas shows that Barnes was 23 convicted only of conduct that occurred before he was on the floor, prior to Mingura’s 24 alleged use of unlawful force. Thus, the fact that he was convicted of resisting arrest and 25 assault does not establish, as a matter of law, that the arrest was lawful or did not involve 26 excessive force at any point during the encounter. Even if Barnes’ attempt to move 27 Mingura’s hand from his shoulder constitutes physical resistance, Barnes’ assault plea 28 covers only the acts of grasping Mingura’s wrist and attempting to move Mingura’s arm 1 away. Viewing the evidence in the light most favorable to Barnes, who disputes that he 2 struggled on the floor, once Barnes had let go of Mingura’s arm, the assault had ended, 3 regardless of whether the arrest had been fully “effected.” To interpret the Heck bar 4 otherwise would permit an unscrupulous officer who encounters a resisting arrestee—even 5 one who passively resists—to prolong the arrest encounter and continue to use 6 disproportionate force without consequence so long as the arrestee is later convicted of 7 resisting arrest or assaulting the officer. 8 Accordingly, the Court finds that Heck does not bar Barnes’ § 1983 claim alleging 9 that Mingura used excessive force when he struck Barnes with a closed-fist and hit his head 10 against the metal grate on the floor three times. 11 II. A Reasonable Jury Could Conclude Mingura’s Force was Excessive 12 The Fourth Amendment requires that police officers use only an amount of force 13 that is objectively reasonable in light of the circumstances. Tennessee v. Garner, 471 U.S. 14 1, 7–8 (1985). The use of excessive force by police officers in the course of an arrest can 15 violate the arrestee’s Fourth Amendment right to be free from unreasonable seizures. See 16 White by White v. Pierce County, 797 F.2d 812, 816 (9th Cir. 1986). The Fourth 17 Amendment does not prohibit the use of reasonable force. Tatum v. City & County of San 18 Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006). But even if some amount of force is 19 justified, an officer may not use more force than is reasonably necessary. Santos v. Gates, 20 287 F.3d 846, 853 (9th Cir. 2002). 21 To determine whether a Fourth Amendment violation has occurred, the court 22 conducts a three-step analysis, assessing (1) the nature of force inflicted; (2) the 23 governmental interests at stake, which involves assessing factors such as the severity of the 24 crime, the threat posed by the suspect, and whether the suspect was resisting arrest (the 25 “Graham factors”); and (3) whether the force used was necessary. Espinosa v. City & 26 County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010) (citing Graham v. Connor, 27 490 U.S. 386, 396–97, and Miller v. Clark County, 340 F.3d 959, 964 (9th Cir. 2003)). The 28 Court must balance the nature and quality of the intrusion against the countervailing 1 governmental interests at stake. Graham, 490 U.S. at 396. Moreover, 2 [t]he “reasonableness” of a particular use of force must be 3 judged from the perspective of a reasonable officer on the 4 scene, rather than with the 20/20 vision of hindsight. . . . “Not every push or shove, even if it may later seem unnecessary in 5 the peace of a judge’s chambers,” violates the Fourth Amendment. 6 Graham, 490 U.S. at 396 (citations omitted). However, because this is a highly 7 fact-intensive inquiry, “whether a particular use of force was reasonable is rarely 8 determinable as a matter of law,” and “should only be taken from the jury in rare cases.” 9 Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994); Green v. City of San Francisco, 751 10 F.3d 1039, 1049 (9th Cir. 2014). 11 Here, the Graham analysis, as well as the consideration of whether the force was 12 necessary, turns on several disputed facts. A key dispute is whether Barnes physically 13 resisted arrest once on the floor. While Mingura argues that Barnes fought the deputies, 14 Barnes contends that Mingura’s “two violent uses of force” were excessive because Barnes 15 was pinned on his stomach with three deputies around him and, instead of attempting to 16 control Barnes’ free right arm to handcuff him, Mingura “began to repeatedly smash” his 17 face into the metal grate and punched him with enough force to fracture several bones. 18 (Doc. 95 at 11; Doc. 103 at 20.) Viewing the evidence in the light most favorable to Barnes, 19 as the Court must do on a motion for summary judgment, the Court concludes that a 20 reasonable jury could find that Mingura’s fist strike and face-to-floor contact was 21 unreasonable and unnecessary. 22 At the first step of the excessive force analysis—the amount of force inflicted—the 23 parties agree that Mingura delivered one closed-fist strike to Barnes’ head and hit his face 24 against the floor three times. These actions are visible on the body camera footage, which 25 shows that Mingura struck Barnes in the head and then placed two hands on the back of 26 Barnes’ head to drive his face down onto the metal ventilation grate. The parties also do 27 not dispute that Mingura’s use of force resulted in multiple injuries to Barnes’ face, 28 1 including fractures to his orbital eye-socket, maxilla, nasal bone, and nasal septum. 2 Mingura characterizes this as an “intermediate” use of force, while Barnes contends that it 3 was “extreme[ly] violent and severely destructive.” (Doc. 95 at 11–12; Doc. 103 at 20.) A 4 reasonable jury could conclude that the extent of the injuries inflicted by Mingura 5 demonstrates that his force was a significant intrusion on Barnes’ Fourth Amendment 6 rights. See Lalonde v. County of Riverside, 204 F.3d 947, 959 (9th Cir. 2000) (“[I]f the 7 extent of the injury to [plaintiff’s] back is serious enough, a jury could conclude that [the 8 officer] used force in excess of what was reasonable, even if [plaintiff] had been resisting 9 at the time.”). 10 At the second step, the Court must consider the governmental interests at stake by 11 evaluating the Graham factors: the severity of the crime, whether the arrestee posed an 12 immediate threat, and whether the arrestee was resisting. Espinosa, 598 F.3d at 537. As to 13 the severity of the crime, deputies responded to the Barnes residence for a domestic 14 violence call; Barnes had allegedly thrown a beer bottle at his spouse.15 It has been 15 recognized that domestic violence calls can pose some of the highest risks to officer safety. 16 Mattos v. Agarano, 661 F.3d 433, 450 (9th Cir. 2011). This factor weighs in Mingura’s 17 favor. 18 It is disputed whether Barnes posed a threat during the arrest. The video evidence 19 demonstrates that Barnes did not pose an immediate threat to the deputies upon their 20 arrival—Barnes sat in his chair the entire time he conversed with the deputies until he was 21 pulled to his feet. Barnes concedes that he passively resisted by refusing to stand up, but 22 the video shows that Barnes did not lunge at the deputies as Mingura alleges. Barnes 23 subsequently pleaded guilty to assault because he grasped Mingura’s arm after Mingura 24 grabbed him, a class three misdemeanor. Mingura alleges no injury from that contact. Once 25 Barnes was on the floor, the video shows that he was surrounded by three deputies, with 26 one controlling his left arm while Mingura placed a knee on Barnes’ back and used force 27

28 15 Barnes subsequently pleaded guilty to misdemeanor disorderly conduct. 1 on his head and face. Mingura asserts that during this time Barnes “violently resisted arrest” 2 because he struggled and grabbed Mingura’s testicles. (Doc. 95 at 11.) Barnes denies ever 3 touching Mingura’s testicles. This factual dispute is not resolved by the video because it 4 does not clearly show Barnes’ right hand. Moreover, Barnes argues that the video does 5 support Mingura’s testimony because Mingura only ever said, “he tried grabbing my 6 balls,” did not react in pain, and continued to calmly state “let go” even when Barnes’ right 7 arm was fully controlled. (Doc. 103 at 22 (emphasis added).) Barnes asserts that a 8 reasonable juror viewing the video could “conclude that Mingura falsely accused [Barnes], 9 in order to make others believe that he was justified in punching [Barnes] in the face. The 10 fact that Mingura began smashing [Barnes’s] face into the floor before alleging that [he] 11 had grabbed his testicles reveals that Mingura had already been intent on violently hurting 12 [Barnes].” (Id.) This is a credibility dispute to be resolved by a jury. Viewing the evidence 13 in a light most favorable to Barnes, as the Court must, a reasonable jury could find that 14 Barnes did not pose a threat to the four deputies.16 This factor weighs in Barnes’ favor. 15 Similarly, the issue of whether Barnes was actively resisting is partially. Barnes did 16 passively resist an order to stand up out of his chair when he was told he was under arrest. 17 When a suspect's only resistance is failure to comply with a police order, and when that 18 resistance is “not particularly bellicose,” it is considered passive and does not weigh 19 heavily in the government's favor. Bryan v. MacPherson, 630 F.3d 805, 830 (9th Cir. 2010) 20 (citing Forrester v. City of San Diego, 25 F.3d 804, 805 (9th Cir. 1994); see also Smith, 21 394 F.3d at 703. It is disputed, however, whether Barnes resisted the deputies when pinned 22 to the ground. He testified that he did not actively resist while on his stomach, and asserts 23 that any movement on the video is only the result of pain inflicted by Mingura while the 24 three deputies had control of his body. (Doc. 103 at 22.) Accepting the contention that 25 Barnes did not resist on the floor and his only resistance was passive, this factor weighs 26 16 Mingura also asserts that the deputies faced a threat due to Barnes’ daughter’s 27 interference and commands to the dog. The daughter and the dog’s actions (or inaction) are irrelevant to the Fourth Amendment consideration of whether Barnes himself posed a threat 28 to the deputies. 1 slightly in Mingura’s favor. 2 Finally, the Court must consider whether Mingura’s use of force was necessary. 3 Mingura alleges that forcing Barnes’ face to the floor repeatedly was an attempt to “gain 4 control over Plaintiff’s upper body” while Barnes “aggressively resisted deputies’ attempts 5 to restrain his hands.” (Doc. 95 at 10–11.) Yet the video shows that Mingura did not attempt 6 to grasp or control Barnes’ right arm, which was flat on the floor near Mingura’s legs, 7 before Mingura used two hands to repeatedly slam Barnes’ face against the metal grate on 8 the floor. Nor, on the video, does it appear that Mingura lacked control over Barnes’ upper 9 body—he had a knee on his back, and two hands on the back of his head, while two other 10 deputies assisted. In these circumstances, a reasonable juror could conclude that hitting 11 Barnes’ face against the floor was unnecessary. (Doc. 95 at 13.) 12 Similarly, although Mingura asserts that it was only after Barnes grabbed his 13 testicles and refused commands to let go that Mingura delivered a closed-fist strike to 14 Barnes’ head, the video shows that Mingura struck Barnes in the face before he stated that 15 Barnes had tried to grab his testicles, and Mingura continued to repeat “let go,” even when 16 Barnes’ right arm was pulled behind his back. As discussed above, it is disputed whether 17 Barnes ever attempted to touch Mingura’s testicles. As a result, a reasonable juror could 18 conclude that Mingura’s fist strike was unnecessary. 19 In sum, under the totality of the circumstances, and viewing the facts in the light 20 most favorable to Barnes, the Court cannot conclude as a matter of law that the 21 governmental interests outlined in the Graham factors justify the nature and extent of force 22 which Mingura inflicted upon Barnes. As a result, the Court will deny summary judgment 23 on Mingura’s claim that his force was objectively reasonable. 24 III. Material Factual Disputes Preclude Qualified Immunity 25 A defendant in a § 1983 action is entitled to qualified immunity from damages for 26 civil liability if his conduct does not violate clearly established federal statutory or 27 constitutional rights of which a reasonable person would have known. Harlow v. 28 Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity analysis requires the court 1 to make two distinct inquires, the “constitutional inquiry” and the “qualified immunity 2 inquiry.” See Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir. 2002). 3 The constitutional inquiry asks whether, when taken in the light most favorable to 4 the non-moving party, the facts alleged show that the official’s conduct violated a 5 constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). Mingura argues that he did 6 not violate Barnes’ constitutional rights because his use of force was objectively 7 reasonable. (Doc. 95 at 16.) The Court has determined, for the purposes of summary 8 judgment, that Barnes has demonstrated sufficient facts from which a reasonable jury could 9 conclude that Mingura violated Barnes’ constitutional rights because, once on the floor, 10 Barnes did not pose a threat to the deputies or resist arrest. 11 The qualified immunity inquiry asks if the right was clearly established at the 12 relevant time, and “must be undertaken in light of the specific context of the case, not as a 13 broad general proposition.” Saucier, 533 U.S. at 201–02. A clearly established right is one 14 that is “sufficiently clear that every reasonable official would have understood that what 15 he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015). “Sufficiently clear” 16 does not mean a prior case with identical facts is required, but the Supreme Court has 17 recognized that specificity is important in the Fourth Amendment context because whether 18 an officer has used excessive force depends on the facts and circumstances of each 19 particular case. Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021). 20 The plaintiff has the burden to show that the right was clearly established at the time 21 of the alleged violation. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002); Romero v. 22 Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). Therefore, regardless of whether the 23 constitutional violation occurred, the officer should prevail if the plaintiff cannot show the 24 right was “clearly established” or the officer could have reasonably believed that his 25 particular conduct was lawful. Romero, 931 F.2d at 627. When the officer’s conduct is 26 subject to a material factual dispute—such as when the officer’s version of events is 27 materially contradicted by the record or turns on credibility—the court is precluded from 28 granting summary judgment in favor of the officer on the issue of qualified immunity. 1 Smith v. Agdeppa, 56 F.4th 1193, 1203 (9th Cir. 2022) (citing Newmaker v. City of Fortuna, 2 842 F.3d 1108, 1116 (9th Cir. 2016)). Such is the case here. 3 Barnes argues that Mingura is not entitled to qualified immunity because it was 4 clearly established at the time that the use of excessive force against arrestees was 5 unconstitutional. (Doc. 103 at 23.) Barnes cites Lalonde v. County of Riverside, 204 F.3d 6 947 (9th Cir. 2000); Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir 2003); and 7 Lowry v. City of San Diego, 858 F.3d 1248 (9th Cir. 2017), in support.17 Citing Meredith 8 v. Erath, 342 F.3d 1057 (9th Cir. 2003), Barnes further asserts that it was clearly established 9 that “smashing a suspect’s fact into the floor and punching the suspect” constitutes 10 disproportionate and excessive force when “the alleged crimes were relatively benign, the 11 suspect posed no immediate threat to the officer, and the suspect’s resistance was fairly 12 passive.” (Doc. 103 at 27.)18 Barnes argues that the rationale of Lowry and Meredith would 13 have put any reasonable officer on notice that the degree of force used by Mingura was 14 excessive and unnecessary. (Doc. 103 at 27.) Barnes does not dispute that—because he 15 passively resisted arrest but did not fight the deputies on the floor—Mingura would have

16 17 Lalonde examined an officer’s use of pepper spray and explained that “in a situation in which an arrestee surrenders and is rendered helpless, any reasonable officer would know 17 that a continued use of the weapon or a refusal without cause to alleviate its harmful effects 18 constitutes excessive force.” 204 F.3d at 961. In Drummond, the panel denied qualified immunity, finding there was no need for a “federal case directly on point to establish that 19 kneeling on the back and neck of a compliant detainee, and pressing the weight of two officers' bodies on him even after he complained that he was choking and in need of air 20 violates clearly established law, and that reasonable officers would have been aware that such was the case.” 343 F.3d at 1060, 1062 (explaining that an arrestee’s “basic 21 constitutional right to be free from excessive force was clearly established as of 1999.”). 22 Finally, in Lowry the en banc Ninth Circuit declared that “although we have acknowledged that even purely passive resistance can support the use of some force, . . . our cases suggest 23 that where the suspect passively resists arrest, a lesser degree of force is justified compared to situations in which the suspect actively resists arrest.” 858 F.3d at 1248 (cleaned up). 24 The Lowry opinion was filed on June 6, 2017, prior to the incident at issue in this case. 25 18 In Meredith, an IRS agent encountered a “vociferously” objecting and passively resisting 26 suspect, forcibly threw the woman to the ground, and twisted her arms before handcuffing her. 342 F.3d at 1061. The court found that the agent’s conduct was objectively 27 unreasonable because the need for force was “minimal at best.” Id. 28 1 been justified in using a proportional amount of force to control Barnes’ right arm to pull 2 it behind his back, or even hold him down against the floor. (Id. at 26.) But Barnes argues 3 that Mingura “certainly was not justified in smashing [Barnes’] face onto the floor or 4 punching his face,” because the deputies had already subdued him. (Id. at 26–27.) The 5 Court agrees that Barnes has made a sufficient showing that it was clearly established prior 6 to the incident that, when an arrestee’s resistance is fairly passive and the need for force is 7 minimal, slamming the arrestee to the ground and inflicting pain prior to handcuffing is 8 excessive and unconstitutional. 9 The Court rejects Mingura’s argument that no case law “with the same facts” put him 10 on notice that striking Barnes in the head and hitting his face against the floor was unlawful 11 under the circumstances (Doc. 95 at 17.) A defendant is not entitled to qualified immunity 12 simply because “the very action in question has not previously been held unlawful.” 13 Sandoval v. County of San Diego, 985 F.3d 657, 680 (9th Cir. 2021); Hope v. Pelzer, 536 14 U.S. 730, 741 (2002) (“[O]fficials can still be on notice that their conduct violates 15 established law even in novel factual circumstances.”) Moreover, Mingura relies on a 16 disputed version of the November 16, 2017 incident to make the case that he is entitled to 17 qualified immunity. 18 Mingura asserts that the Ninth Circuit has established that head slams are not 19 unreasonable when a suspect refuses commands and resists arrest. (Doc. 95 at 17 (citing 20 Ames v. King County, 846 F.3d 340, 350 (9th Cir. 2017).)19 Mingura also asserts that fist 21 strikes are permissible following active resistance and direct assault on an officer. (Id. 22 23 19 In Ames, a deputy responding to an attempted suicide call pulled a woman by her hair 24 out of a truck containing her unconscious son and slammed her head into the ground three times when the woman refused to comply with orders to provide her arm for handcuffing. 25 846 F.3d at 345. The Ninth Circuit panel concluded that the deputy’s use of force while 26 “discharging her community caretaking function” was objectively reasonable in light of the unfolding emergency because the deputy needed to “quickly disable the clearly 27 panicked mother from leaving with her gravely ill son.” Id. at 351. Ames is inapposite to the situation here. Viewing the record in the light most favorable to Barnes, Mingura faced 28 no ongoing emergency that could have justified the level of force he employed. 1 (citing Tuuamalemalo v. Greene, 946 F.3d 471 (9th Cir. 2019).)20 Barnes denies that he 2 actively resisted because he did not struggle against the deputies or touch Mingura’s 3 testicles. (Id.) The Court has already determined that these factual issues turn on credibility 4 disputes that must be resolved by a jury. Because the disputed facts are material to the 5 question of what an officer in Mingura’s position might have reasonably believed during 6 the incident, the Court is precluded from awarding qualified immunity to Mingura. 7 IV. Monell Liability 8 In Count Two, Barnes brings a § 1983 claim against Sheriff Preston Allred in his 9 official capacity, alleging that Allred and his administrative staff violated Barnes’ Fourth 10 and Fourteenth Amendment rights by implementing and maintaining policies and 11 procedures, as well as tolerating practices, which allowed and implicitly encouraged 12 Mingura’s use of excessive force against Barnes. (Doc. 11 ¶ 22.) Barnes also alleges that 13 Allred failed to establish and implement policies, procedures, and practices which would 14 have deterred or prevented Mingura’s use of excessive force against him. (Id. ¶ 23.) In 15 particular, Barnes challenges the GCSO’s failure to adequately screen Mingura prior to 16 hiring, failure to provide use of force training, and failure to discipline Mingura after the 17 November 3 incident. Allred moves for summary judgment on all claims against him, 18 arguing that there is no evidence to support Monell liability because Barnes has not 19 disclosed a police procedures expert and there is no “policy, custom, or practice that

20 20 Mingura cites Tuuamalemalo for the proposition that “other circuits also recognize that punching a suspect in self-defense to make an arrest is not necessarily unconstitutional.” 21 Yet that phrase only appears in the slip copy of the district court order and is not clearly 22 established law. See Tuuamalemalo v. Las Vegas Metro. Police Dep't, No. 216CV00619JADVCF, 2018 WL 11016234, at *7 (D. Nev. Mar. 27, 2018). In fact, the 23 Ninth Circuit denied qualified immunity for the officer’s use of a chokehold in Tuuamalemalo and remanded the case because the plaintiff disputed that he resisted and 24 “there was little chance he could initiate resistance with five other officers fully restraining him and pinning him to the ground.” 946 F.3d at 477. Here as well the Court must view 25 the facts in the light most favorable to Barnes, who asserts that he was not and could not 26 have been actively resisting with three deputies pinning him to the ground when Mingura used force. See id. at 478. Because Mingura faced no similar need for self-defense, 27 Tuuamalemalo is not relevant here. 28 1 encourages or allows GCSO deputies to use excessive force.” (Doc. 92 at 7–8.) 2 Sheriff Allred may not be sued under § 1983 solely because an injury was inflicted 3 by one of his deputies. Long v. County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006). 4 A municipal or county entity may be held liable under § 1983 only when execution of its 5 policy or custom inflicts the injury. Id. (citing Monell, 436 US. at 690–94); Jackson v. 6 Barnes, 749 F.3d 755, 764 (9th Cir. 2014). Thus, to succeed on a Monell claim against 7 Allred, Barnes must show that Mingura deprived him of a constitutional right and the 8 Graham County Sheriff’s Office has a policy or custom that led to the deprivation. Monell, 9 436 U.S. at 694; Gillette v. Delmore, 979 F.2d 1342 (Monell liability may be established 10 by proving that a municipal employee “committed the alleged constitutional violation 11 pursuant to a formal governmental policy or a longstanding practice or custom which 12 constitutes the standard operating procedure of the local governmental entity.”) (internal 13 quotations omitted). To establish Monell liability on the theory that a facially lawful 14 municipal action has led an employee to violate a plaintiff’s rights, the plaintiff must 15 demonstrate that the action was taken with deliberate indifference to its known or obvious 16 consequences. Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 407 17 (1997). The Court has determined that Barnes has established a constitutional deprivation 18 for the purposes of summary judgment. 19 A. Lack of Expert 20 Allred argues that Barnes’ failure to retain a police procedures expert is fatal to his 21 Monell claim because “expert testimony is necessary to prove professional malfeasance.” 22 (Doc. 92 at 6.) Allred asserts that Barnes’ claims regarding Mingura’s hiring, training, and 23 discipline do not present circumstances “so obvious that expert testimony is unnecessary.” 24 (Id. at 7.) In support, Allred cites to three Arizona medical malpractice cases requiring an 25 expert to establish a physician’s negligence. (Id.) These state law cases are inapposite 26 because they do not involve the operations of a Sheriff’s department or analyze § 1983 27 claims. 28 A plaintiff may survive summary judgment on a Monell claim without having 1 identified an expert if there is other supporting evidence. See Meli v. City of Burlington, 2 Vermont, 585 F. Supp. 3d 615, 643 (noting the Second Circuit has upheld several Monell 3 claim verdicts without the use of expert testimony related to city or department policies). 4 Here, Barnes presents evidence that Allred failed to adequately investigate evidence that 5 Mingura had routinely used excessive force on detainees in his past employment, did not 6 receive use of force training even upon request, and did not restrict Mingura’s duties after 7 the first incident at the Barnes residence. These facts, if proven, and the reasonableness of 8 the actions, is within a lay juror’s common understanding. Notably, Allred’s proffered 9 police expert does not appear to offer any opinions regarding the propriety of GCSO’s 10 policies, procedures, or practices. (See Doc. 93-4.) In sum, Barnes’ decision not to obtain 11 expert opinions is not in and of itself a reason to grant summary judgment on the Monell 12 claim. 13 B. Failure to Screen 14 Barnes alleges that Allred and his administrative staff violated his constitutional 15 rights by hiring Mingura as a GCSO deputy without reasonably investigating or adequately 16 determining his propensity for using excessive force against arrestees. (Doc 11 ¶ 24.) 17 Allred argues that there is no evidence of deliberate indifference in the GCSO hiring 18 process because “Mingura received stringent vetting.” (Doc. 92 at 9.) Allred argues that 19 summary judgment is appropriate on GCSO’s failure to screen Mingura because there is 20 no evidence “from the information gathered in the hiring process” that would have shown 21 it was “plainly obvious” that Mingura would use excessive force if hired. (Doc. 92.) Allred 22 misconstrues Barnes’ failure to screen argument. 23 Barnes asserts that because Mingura disclosed that he had been both investigated by 24 DPS and charged by the State of Arizona for the use of excessive force as a police officer, 25 it was deliberately indifferent for Chief McCormies and Lieutenant Nelson to fail to obtain 26 the DPS report and investigate the charges, rather than simply concluding that he was 27 satisfactory to hire based on the information already collected. (Id. at 3.) Barnes alleges 28 that it was the failure to apply adequate scrutiny to Mingura’s background that violated his 1 constitutional rights, because if GCSO had properly screened Mingura it would have 2 reviewed the DPS excessive force report and investigated the aggravated assault charges 3 that made it plainly obvious Mingura had a propensity for routinely inflicting excessive 4 force on arrestees. (Doc. 127 at 2.) A municipality may be liable for a failure to properly 5 screen in the hiring process if it is deliberately indifferent to the fact that the people it is 6 hiring were the kind of people who would predictably commit this type of constitutional 7 violation. Brown, 520 U.S. at 411 (“Only where adequate scrutiny of an applicant’s 8 background would lead a reasonable policymaker to conclude that the plainly obvious 9 consequence of the decision to hire the applicant would be the deprivation of a third party’s 10 federally protected right can the official’s failure to adequately scrutinize the applicant’s 11 background constitute ‘deliberate indifference.’”). Thus, the fact that GCSO hiring 12 policies were followed in Mingura’s application and background process, (Doc. 129 at 2), 13 is irrelevant if GCSO was deliberately indifferent to and did not reasonably consider the 14 information it obtained during that process.21 15 It is undisputed that GCSO policies led to the hiring of Mingura. A reasonable juror 16 could conclude that—had the GCSO applied adequate scrutiny to Mingura’s disclosures— 17 it would have been plainly obvious that Mingura had both a reputation and a propensity for 18 using excessive force and would predictably continue to use excessive force against 19 arrestees if hired. Because Barnes has presented sufficient evidence to conclude that those

20 21 The jury should evaluate Allred’s explanation that the criminal charges were not investigated because they had been dismissed. A jury could conclude that, if the GCSO 21 had followed up, McCormies and Nelson likely would have learned that the aggravated 22 assault charges arising out of Mingura’s use of allegedly excessive force against three arrestees had only been dismissed due to lack of cooperation from the victims. Also, Allred 23 does not offer an explanation for the GCSO’s decision not to obtain the DPS report on Mingura. McCormies testified that, at the time, GCSO did not have a practice of following 24 up on any negative comments they received from an applicant’s prior employers. (Id. at 11; see Doc. 126-8 at 3–4.) As detailed earlier in this order, the 2012 DPS investigation 25 included interviews with Mingura’s fellow officers at the Greenlee County Sheriff’s Office 26 and Clifton Police Department, as well as several individuals who had experienced Mingura’s allegedly excessive force during arrests. (See also Doc. 126 ¶ 37 (quoting 126- 27 1 at 88).) 28 1 policies were the moving force behind the alleged deprivation of his constitutional rights, 2 the Court will deny summary judgment on the failure to screen aspect of Barnes’ Monell 3 claim. 4 C. Failure to Train 5 Barnes next alleges that Allred and his office failed to adequately train and supervise 6 Mingura, contributing to the use of excessive force against him on November 16, 2017, 7 because Mingura specifically requested use of force training but GCSO did not provide it. 8 (Doc. 11 ¶ 24; Doc. 127 at 12.) 9 Monell liability can attach where the failure to train an employee reflects a deliberate 10 or conscious choice by the municipality that demonstrates deliberate indifference to the 11 person whose rights were violated. City of Canton, Ohio v. Harris, 489 U.S. 378, 388 12 (1989). Again, deliberate difference is “a stringent standard of fault, requiring proof that a 13 municipal actor disregarded a known or obvious consequence of his action.” Brown, 520 14 U.S. at 410. To establish deliberate indifference for failure to train, the plaintiff must 15 present evidence of a “program-wide inadequacy in training,” beyond a shortfall in a single 16 officer’s training. Blankenhorn v. City of Orange, 485 F.3d 463, 484–85 (9th Cir. 2007). 17 Allred argues that Barnes cannot show there was a program-wide inadequacy in 18 training because he “has no expert to testify that Mingura’s AZPOST academy training is 19 inadequate or that GCSO training is deficient.” (Doc. 92 at 10–11.) The Court has 20 explained why the lack of an expert is not fatal to Barnes’ claims. Mingura’s academy 21 training was in 2007, a decade before the events giving rise to this case, and Mingura 22 testified that GCSO’s field training program upon hiring did not involve use of force 23 instruction. Allred does not address Mingura’s testimony that he had specifically requested 24 use of force training from Lieutenant Nelson and GCSO’s use of force instructor but was 25 told there was no time to do it that year, or the fact that there were no use of force 26 presentations offered in 2016 or 2017 while Mingura was with the GCSO. (See Doc. 127 27 at 12–13.) Allred presents no argument why GCSO’s reliance on its deputies’ academy 28 training—especially when more training was requested, and in light of the information that 1 GCSO did receive in Mingura’s hiring process—cannot be considered a program-wide 2 inadequacy in training that could have led to unconstitutional uses of force. Accordingly, 3 the Court will deny summary judgment on failure to train aspect of Barnes’ Monell claim. 4 D. Failure to Discipline 5 Finally, Barnes alleges that Allred and his office failed to adequately discipline 6 Mingura and promptly terminate him for his conduct on November 3, 2017. (Doc. 11 ¶ 24.) 7 Barnes alleges that these failures established a climate of tolerance for the use of excessive 8 force and implicitly encouraged Mingura to again use unlawful force against him on 9 November 16, 2017. (Id.) Barnes does not allege that Allred ratified Mingura’s November 10 3 or November 16 uses of force, but argues that Chief McCormies should have immediately 11 placed Mingura on leave while the November 3 excessive force allegations were being 12 investigated. (Doc. 126 at 22.) In the days following the November 3 incident, Chief 13 McCormies first sought to have an independent law enforcement agency investigate 14 because of DPS delays, but ultimately a request for DPS to investigate was made on 15 November 30, 2017. Mingura was placed on paid administrative leave on December 7, 16 2017 and did not return to duty prior to his termination. 17 To establish Monell liability based on a failure to discipline, Barnes must show that 18 a policy, custom, or practice of failing to discipline Mingura amounted to deliberate 19 indifference. Harris, 489 U.S. at 388–89. A municipality can be liable for an isolated 20 constitutional violation if the final policymaker ratified a subordinate’s actions. Christie v. 21 Iopa, 176 F.3d 1231, 1238 (9th Cir. 1999). A mere failure to overrule a subordinate’s 22 actions, without more, is insufficient—to find ratification, there must be something more 23 than a single failure to discipline. Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004). 24 Barnes does not allege facts demonstrating that there was a policy, custom, or 25 practice of failing to investigate or discipline GCSO deputies. His only evidence for the 26 failure to discipline is Allred’s allegedly delayed response to the single November 3 27 incident. This is insufficient to establish Monell liability. Thus, the Court will grant 28 summary judgment on the failure to discipline and improper retention aspects of Barnes’ □□ Monell claim. 2 CONCLUSION □□ For the foregoing reasons, IT IS ORDERED: 4 1. Defendant Mingura’s Motion for Summary Judgment (Doc. 95) is DENIED. 5 2. Defendant Allred’s Motion for Summary Judgment (Doc. 92) is DENIED in 6 part and GRANTED in part. 7 3. A telephonic Pretrial Hearing is set for Thursday, August 10, 2023, at 2:30 8 p.m. The parties will receive a notification with call-in instructions prior to the 9 Pretrial Hearing. The parties shall be prepared to discuss the setting of a trial 10 date. 11 4. The parties’ Joint Proposed Pretrial Order is due 30 days from the date of this 12 Order. The Court’s Joint Proposed Pretrial Order form can be found at: 13 https://perma.cc/SK55-JKK4. 14 15 Dated this 25th day of July, 2023. 16 17 □ 18 pote Spe 19 ; Honorable Jennife MM Zfpps United States District Judge 20 21 22 23 24 25 26 27 28

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