Machowicz v. Maricopa, County of

Opinion

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

9 Thomas Machowicz, No. CV-21-00316-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Maricopa County, et al.,

13 Defendants. 14 15 At issue is Defendant Phoenix Police Chief Jeri Williams’s Motion for Summary 16 Judgment (Doc. 57, MSJ), to which Plaintiff Thomas Machowicz filed a Response 17 (Doc. 61, Resp.), and Defendant filed a Reply (Doc. 63, Reply). No party requested oral 18 argument and the Court did not find it necessary. See LRCiv 7.2(f). For the reasons set 19 forth below, the Court grants Defendant’s Motion for Summary Judgment. 20 I. BACKGROUND 21 Plaintiff filed his Amended Complaint on March 17, 2021, in which he alleges as 22 follows.1 (Doc. 11, Am. Compl.) Plaintiff is a freelance photojournalist working in 23 Phoenix, Arizona, who documented a demonstration against alleged police brutality around 24 Phoenix Police Headquarters on May 30, 2020. (Am. Compl. ¶¶ 26, 29–30.) While he was 25 photographing the event, Phoenix Police Department (“PPD”) officers deployed gas to 26 disperse demonstrators. (Am. Compl. ¶ 31.) Video footage shows Plaintiff running away 27

28 1 The Court dismissed Plaintiff’s claims against Maricopa County and the Phoenix Police Department in a prior order. (Doc. 16.) 1 from the gas when an unnamed PPD officer aimed and fired a rubber bullet at him, striking 2 his lower back. (Am. Compl. ¶¶ 32, 34–35.) 3 Plaintiff further alleges a second shot struck him in the ribs, knocking him to the 4 ground. (Am. Compl. ¶ 37.) Also, a third bullet allegedly struck him in the back of the 5 head, causing him to lie motionless on the ground, and no officer attempted to aid him. 6 (Am. Compl. ¶¶ 38–40.) 7 Plaintiff also states the PPD subjected protesters, onlookers, and citizens to tear gas 8 and rubber bullets on other occasions. (Am. Comp. ¶ 45.) He claims Defendant, as a 9 policymaker for the PPD, “would have authorized the practice and policy of using non-lethal 10 measures, such as gas and rubber bullets, to disperse demonstrators.” (Am. Compl. ¶ 47.) 11 Plaintiff brings the pending claims under 42 U.S.C. § 1983 for a violation of the 12 freedom of press under the First Amendment and for excessive force under the Fourth and 13 Fourteenth Amendments to the United States Constitution. Both claims are against 14 Defendant Williams in her individual and official capacities. 15 II. LEGAL STANDARD 16 Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate 17 when the movant shows that there is no genuine dispute as to any material fact and the 18 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. 19 Catrett, 477 U.S. 317, 322–23 (1986). “A fact is ‘material’ only if it might affect the 20 outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could 21 resolve the issue in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, 22 LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 23 242, 248 (1986)). The court must view the evidence in the light most favorable to the 24 nonmoving party and draw all reasonable inferences in the nonmoving party’s favor. 25 Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). 26 The moving party “bears the initial responsibility of informing the district court of 27 the basis for its motion, and identifying those portions of [the record] . . . which it believes 28 demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 232. 1 When the moving party does not bear the ultimate burden of proof, it “must either produce 2 evidence negating an essential element of the nonmoving party’s claim or defense or show 3 that the nonmoving party does not have enough evidence of an essential element to carry 4 its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., 5 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party carries this initial burden of 6 production, the nonmoving party must produce evidence to support its claim or defense. 7 Id. at 1103. Summary judgment is appropriate against a party that “fails to make a showing 8 sufficient to establish the existence of an element essential to that party’s case, and on 9 which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. 10 In considering a motion for summary judgment, the court must regard as true the 11 non-moving party’s evidence, as long as it is supported by affidavits or other evidentiary 12 material. Anderson, 477 U.S. at 255. However, the non-moving party may not merely rest 13 on its pleadings; it must produce some significant probative evidence tending to contradict 14 the moving party’s allegations, thereby creating a material question of fact. Id. at 256–57 15 (holding that the plaintiff must present affirmative evidence in order to defeat a properly 16 supported motion for summary judgment); see also Taylor v. List, 880 F.2d 1040, 1045 17 (9th Cir. 1989) (“A summary judgment motion cannot be defeated by relying solely on 18 conclusory allegations unsupported by factual data.” (citation omitted)). 19 III. ANALYSIS 20 A. Official Capacity 21 Defendant first argues she is entitled to summary judgment on Plaintiff’s “disguised 22 official capacity claims” because she is not a policymaker for the PPD. (MSJ at 4.) Plaintiff 23 argues Defendant is a policymaker because she had final policymaking authority in a 24 particular area at issue. (Resp. at 9.) 25 A claim against a state or municipal official in her official capacity is treated as a 26 claim against the entity itself. Kentucky v. Graham, 473 U.S. 159, 167 (1985). 27 Municipalities, as well as municipal officials sued in their official capacity, are subject to 28 liability under § 1983 when their policies subject an individual to the deprivation of any 1 right guaranteed to him by the Constitution. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 2 690 (1978); Tanner v. Heise, 879 F.2d 572, 582 (9th Cir. 1989). The policy can be a 3 government policy or custom made by lawmakers or by those whose edicts or acts fairly 4 represent official policy. Tanner, 879 F.2d at 582. Plaintiff’s official capacity claim requires 5 that Defendant had final policymaking authority concerning the particular issues of crowd 6 control and use of force, that Defendant’s actions in this area represented official policy, 7 and that the officers at the scene followed that representation of official policy. See 8 McMillan v. Monroe Cnty., 520 U.S. 781, 785 (1997). 9 1. Defendant’s Policymaking Authority 10 Plaintiff argues Defendant’s actions represent official policy or custom. (Resp. at 9.) 11 Only those municipal officials who have final policymaking authority may by their actions 12 subject the government to § 1983 liability. St. Louis v. Praprotnik, 485 U.S. 112, 123 13 (1988). To determine whether an individual has final policymaking authority, courts ask 14 whether the individual has authority “in a particular area, or on a particular issue.” 15 McMillan, 520 U.S. at 785. Specifically, courts must identify officials who speak with final 16 policymaking authority for the local government actor concerning the action alleged to 17 have caused the particular constitutional or statutory violation at issue. Id. (citing Jett v. 18 Dallas Indep. Sch. Dist., 491 U.S. 701, 737, (1989)). Further, an official’s final 19 policymaking authority in a particular area is a question of state or municipal law. 20 McMillan, 520 U.S. at 785. 21 Plaintiff argues the Phoenix City Code grants Defendant final policymaking 22 authority. (Resp. at 12.) Plaintiff refers to the City Code, Phoenix Charter, Ch. II § 2-119 23 (a)–(b), which recites: 24 There shall be a Police Department, headed by a Director of the Police Department. He shall be responsible for the enforcement of State laws and 25 City ordinances, protection of life and property, preservation of law and 26 order, investigation of crimes, and suppression of vice and shall direct the proper assignment of police officers, establish training programs, maintain 27 records, provide traffic control and enforcement, cooperate with other law 28 1 enforcement agencies, establish rules and departmental policies and be responsible for the custody of City prisoners.2 2 3 Plaintiff specifically argues the City Code grants the Police Chief responsibility to 4 establish training programs and supervise and direct the police. (Resp. at 12.) Plaintiff 5 further contends Defendant could prevent changes to training manuals from going into 6 effect if she disagreed with them and could implement policies concerning the use of 7 excessive force in response to prior incidents. (Resp. at 6-7.) Through the City Code, 8 Defendant had some policymaking authority in the areas of training and supervising 9 officers.3 10 2. Policy or Custom Created by Defendant’s Conduct 11 The Court must next evaluate whether Defendant’s conduct effectively created a 12 policy concerning the constitutional violation at issue. McMillan, 520 U.S. at 785. Here, 13 Plaintiff alleges his First Amendment right of freedom of the press was violated when 14 officers used excessive force against him. (Am. Compl. ¶¶ 48-76.) 15 Plaintiff attempts to connect Defendant’s authority over officer training with an 16 alleged policy of using excessive force by arguing Defendant did “nothing to change the 17 policies or customs of [the Tactical Response Unit (“TRU”)],” in response to reports 18 concerning officers’ use of force. (Resp. at 4.) To establish a failure to adequately train as 19 a policy or custom, the failure must amount to deliberate indifference to the rights of 20 persons with whom the untrained employees come into contact. Connick v. Thompson, 21 563 U.S. 51, 61 (2011). Plaintiff argues Defendant did not make changes even though she 22 was “willing to look at training methods” after receiving reports concerning the PPD’s use 23 of force. (Resp. at 4.) But even if Defendant chose not to update PPD training methods,

24 2 “As set forth in the Charter, each department shall be headed by a director and the work of departments may be distributed among divisions. In addition to the official title as 25 ‘Director,’ Directors may also, with City Manager approval, use a working title consistent with industry practices. If approved, the working title shall have the same meaning in any 26 rules, regulations, policies or procedures as the official title.” City Code, Phoenix Charter, Ch. II § 2-7. 27 3 In Puente v. City of Phoenix, No. CV-18-02778-PHX-JJT, 2022 WL 357351 28 (D. Ariz. Feb. 7, 2022), the Court found the City Council and City Manager had ultimate policymaking authority under Phoenix City Charter Ch. III §§ 1, 2. 1 that does not demonstrate deliberate indifference. Specifically, Plaintiff concludes the 2 policies concerning excessive force were deficient because there were two prior incidents 3 involving alleged excessive force, but he provides no evidence, beyond this conclusory 4 statement, that the existing policies or customs were deficient or needed to be updated. 5 Accordingly, Plaintiff’s evidence is not sufficient for a reasonable trier of fact to conclude 6 that Defendant’s alleged decision not to update training manuals created a policy of using 7 excessive force during protests. 8 Plaintiff also attempts to relate Defendant’s policymaking authority concerning 9 officer supervision to an alleged policy of using excessive force during protests. Plaintiff 10 alleges Defendant had the power to overrule every single officer at the scene and order 11 them to stop using excessive force. (Resp. at 6.) He fails, however, to show that Defendant 12 created a policy by not telling officers at the scene to stand down. More broadly, Plaintiff 13 fails to demonstrate how inaction during a single event can create a custom or policy. See 14 Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985) (“Proof of a single incident of 15 unconstitutional activity is not sufficient to impose liability under Monell, unless proof of 16 the incident includes proof that it was caused by an existing, unconstitutional municipal 17 policy, which policy can be attributed to a municipal policymaker.”) 18 Plaintiff further argues Defendant created a policy allowing officers to use excessive 19 force when she did not discipline officers or make substantive changes after a prior incident 20 allegedly involving excessive force. (Resp. at 11.) Notwithstanding Plaintiff’s improper 21 introduction of this legal argument in his Controverting Statement of Facts4 (see Doc. 62 22 at 10), his argument is effectively that Defendant created policy through ratification. To 23 create policy by ratification, a final policymaker must approve a subordinate’s decision 24 and the basis for it. Praprotnik, 485 U.S. at 127. The policymaker must also make a 25 deliberate choice to follow a course of action among various alternatives. Pembaur v. City 26 4 The Controverting Statement of Facts must set forth either 1) paragraphs indicating 27 whether the party disputes the statement of fact set forth in the moving party’s corresponding paragraph or 2) additional facts that establish a genuine issue of material 28 fact or otherwise preclude judgment in favor of the moving party. LRCiv 56.1(b). The Local Rules do not permit legal argument in the Controverting Statement of Facts. 1 of Cincinnati, 475 U.S. 469, 483 (1986); Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 2 1992). 3 For example, the Gillette court held a city manager’s acquiescence in the fire chief’s 4 termination of the plaintiff did not ratify the decision absent evidence of affirmative or 5 deliberate conduct. Gillette, 979 F.2d at 1348. The court reasoned the plaintiff only 6 established that the city manager did not overrule a discretionary decision, and that a 7 decision not to overrule was not a “deliberate choice to endorse” the decision. Id. Like the 8 city manager’s decision not to overrule his subordinate’s discretionary decision in Gillette, 9 Defendant here allegedly chose not to discipline officers for their discretionary decisions. 10 Accordingly, Plaintiff fails to proffer sufficient facts indicating Defendant made a 11 deliberate choice to support the allegedly excessive force used. Plaintiff also fails to put 12 forward facts indicating that discipline was necessary, but instead improperly concludes 13 the force used in the prior incidents was unconstitutional and thus discipline was required. 14 Plaintiff also points to Defendant’s public compliments concerning officer conduct 15 during prior incidents allegedly involving excessive force (Resp. at 11), but that evidence 16 is similarly insufficient for ratification. Specifically, Plaintiff does not produce any facts 17 that Defendant complimented the officers’ use of force, which is the alleged constitutional 18 violation at issue. Even if Defendant had specifically complimented the officers’ use of 19 force, Plaintiff fails to provide evidence that Defendant complimented an unconstitutional 20 use of force. Although Plaintiff states the use of force during the prior incidents was 21 excessive, Plaintiff identifies no decision in comparable circumstances finding that it was.5 22 Accordingly, Plaintiff fails to produce sufficient facts from which a reasonable trier 23 of fact could conclude Defendant created a policy or custom of using excessive force. 24 3. Custom Created by the Phoenix Police Department 25 Plaintiff next argues the officers’ conduct was in accordance with PPD customs 26 because the PPD allegedly “has a long and troubled history with abuse of power.” (Resp.

27 5 The complicated nature of any potential claims related to a separate incident between PPD and protestors does not lend itself to a straightforward conclusion about 28 whether excessive force was used in the separate incident, and of course the Court would not conduct a mini-trial on a separate matter. 1 at 2.) A custom is a “widespread practice that, although not authorized by written law or 2 express municipal policy, is so permanent and well-settled as to constitute a custom or 3 usage with the force of law.” Praprotnik, 485 U.S. at 127. “Liability for improper custom 4 may not be predicated on isolated or sporadic incidents; it must be founded upon practices 5 of sufficient duration, frequency and consistency that the conduct has become a traditional 6 method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 7 Plaintiff’s basis for the PPD’s “long and troubled history” is that its practices are 8 under investigation by the Department of Justice. (Resp. at 2.) Plaintiff does not provide 9 any conclusions the Department of Justice reached in that investigation and the 10 investigation concerns several areas of law enforcement other than the use of excessive 11 force. (Resp. at 2.) Accordingly, a reasonable trier of fact could not conclude that being 12 under investigation is sufficient evidence of a PPD custom allowing officers to use 13 excessive force. 14 Plaintiff further argues that two prior instances of alleged excessive force in 2016 and 15 2017 are also evidence of a custom. (Resp. at 3.) Concerning the 2016 incident, Plaintiff 16 advances that “PPD officers indiscriminately and without warning, fired ‘less lethal’ 17 weapons and ‘chemical weapons’ purportedly as a ‘crowd-control measure,’ into . . . 18 protesters.” (Resp. at 3.) Concerning the 2017 incident, Plaintiff contends that “PPD, without 19 warning, fired ‘more than 590 kinetic and chemical projectiles’ into a crowd.” (Resp. at 3.) 20 Plaintiff also submits that the protestors in each incident were politically liberal, like the 21 protesters Plaintiff attempted to document. (Resp. at 13.) 22 But for the alleged similarity of political leaning, Plaintiff’s comparison is 23 ineffective because it focuses almost exclusively on the outcome, instead of the steps 24 leading to the officers’ actions. Through this comparison, Plaintiff alleges the PPD has a 25 general custom of using excessive force against politically liberal protestors. For such a 26 sweeping custom, two prior incidents, which occurred three and four years before the 27 actions at issue, are insufficient to establish that the officers’ conduct was “a traditional 28 method of carrying out policy.” See Trevino, 99 F.3d at 918. 1 Plaintiff also fails to show that excessive force was used in either prior incident. As 2 the Court notes infra, Plaintiff has not provided evidence that a court determined the use 3 of force by PPD on the crowds during the 2016 or 2017 protests was unconstitutional. 4 Accordingly, Plaintiff fails to proffer sufficient facts for a reasonable trier of fact to 5 conclude the PPD had an official custom allowing excessive force. 6 If Plaintiff did supply sufficient facts for a reasonable trier of fact to conclude PPD 7 had a policy or custom to use excessive force, the Court would determine if the officers at 8 the scene acted pursuant to such policy. McMillan, 520 U.S. at 785. However, although 9 Plaintiff attempts to connect Defendant’s policymaking authority concerning training and 10 supervision to a policy or custom of using excessive force, the connections advanced are 11 too attenuated and conclusory. Moreover, Plaintiff’s attempts to demonstrate a PPD custom 12 by way of comparison to prior similar conduct are unsupported. Therefore, Plaintiff’s 13 official capacity claim fails. 14 B. Individual Capacity 15 Plaintiff also argues Defendant is liable for the officers’ conduct in her individual 16 capacity (Resp. at 14) because she set in motion a series of acts by others that she knew, or 17 reasonably should have known, would cause constitutional injury. See Larez v. City of Los 18 Angeles, 946 F.2d 630, 645 (9th Cir. 1991). Plaintiff relies on Larez, where the court held 19 the jury’s verdict—that the police chief, in his individual capacity, was responsible for the 20 defendants’ constitutional deprivations—was not in plain error. Id. There, however, the jury 21 heard evidence from an expert witness on police department procedures. Id. The expert 22 testified that he would have disciplined the individual officers and would have established 23 new procedures to avoid the reoccurrence of similar instances of the use of excessive force. 24 Id. Additionally, the police chief in Larez signed a letter informing a defendant that his 25 complaints against the officers would not be sustained. Id. at 646. 26 Here, by contrast, Plaintiff only supplies conclusory statements that discipline and 27 changes were needed after prior incidents. (Resp. at 15.) Unlike the expert testimony in 28 Larez, Plaintiff’s conclusions are his own and are unsupported by independent facts. 1 Additionally, although the Larez police chief signed a letter dismissing a defendant’s 2 complaint, Plaintiff does not demonstrate similar affirming conduct here. Plaintiff, by 3 contrast, argues Defendant’s public compliments about officer conduct following prior 4 incidents signaled approval to use excessive force. But Plaintiff does not show those 5 compliments were specifically directed toward the use of force. Even assuming the 6 compliments concerned the use of force, Plaintiff fails to proffer evidence of Defendant’s 7 knowledge that the force used was unconstitutional when she complimented the officers. 8 More generally, Plaintiff fails to show the force used was unconstitutional. 9 Plaintiff also asserts Defendant should have known a constitutional injury would 10 occur when she chose not to change the rules of engagement before the protest at issue, or 11 when she did not tell the officers to stand down. (Resp. at 16.) Plaintiff specifically reasons 12 Defendant knew the officers would target journalists—since the PPD released a statement 13 that officers would arrest journalists found near an unruly protest—and therefore should have 14 known her inaction would lead officers to use excessive force. Plaintiff does not, however, 15 bridge the gap between a plan to arrest journalists near an unruly protest and the allegedly 16 unconstitutional force used. Specifically, there are no facts to suggest Defendant knew the 17 officers would use excessive force against journalists. 18 Additionally, Plaintiff’s basis for Defendant’s alleged knowledge of impending 19 constitutional injury is rooted exclusively in a newspaper article. (Doc. 62, Separate 20 Statement of Facts ¶ 21.) Even if this evidence is hearsay6, the substance—that Defendant 21 apologized for the statement by the PPD—is insufficient for a reasonable trier of fact to 22 conclude that Defendant should have known her inaction would lead to the unconstitutional 23 use of force. 24 Plaintiff has therefore failed to provide sufficient facts from which a reasonable trier 25 of fact could conclude Defendant set in motion a series of acts which she knew, or should 26

27 6 See Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) (“To survive summary judgment, a party does not necessarily have to produce evidence in a form that 28 would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56.”) || have known, would cause others to inflict constitutional injury. Accordingly, □□□□□□□□□□□ 2|| individual capacity claim fails. 3 IT IS THEREFORE ORDERED granting Defendant’s Motion for Summary Judgment (Doc. 57). 5 IT IS FURTHER ORDERED directing the Clerk of Court to enter final judgment || in favor of Defendant Jeri Williams and to close this case. 7 Dated this 7th day of February, 2024. CN iy. 9 weffelee— United State@District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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