1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Dillon Rock, No. CV-20-01837-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 N. Cummings, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff’s motion for entry of judgment under Rule 16 54(b). (Doc. 91.) For the following reasons, the motion is granted in part and denied in 17 part. 18 RELEVANT BACKGROUND 19 This is a § 1983 action in which Dillon Rock (“Plaintiff”) has sued six members of 20 the Goodyear Police Department—Corporal Nathan Cummings, Sergeant Ryan McCarthy, 21 Officer Mike Miller, Officer Scott Preston, Officer Aaron Torres, and Officer Josh White 22 (together, “Defendants”). (Docs. 1, 84.) 23 Plaintiff’s claims arise from an incident in October 2019 in which Defendants 24 responded to a 911 call. (Doc. 84 at 1.) The subject of the call was Plaintiff, who lived 25 with his father in the same neighborhood as the caller. (Id.) The caller reported— 26 mistakenly, as it turns out—that Plaintiff had just threatened Plaintiff’s parents with a knife. 27 (Id.) This information was conveyed to Defendants on their way to the scene. (Id.) After 28 Plaintiff became aware of Defendants’ arrival, he went into his backyard and hid in a shed. 1 (Id.) Before entering the backyard, Officer Miller announced that if Plaintiff did not come 2 out, Officer Miller would release a police dog, Toby, who would bite Plaintiff. (Id.) After 3 Plaintiff did not respond to this announcement—which, he contends, he did not hear— 4 several Defendants entered the backyard. (Id.) Upon arrival at the shed, and without 5 providing any additional warnings, Corporal Cummings opened the door and Officer 6 Miller let Toby inside. (Id. at 1-2.) Toby bit Plaintiff for approximately 41 seconds, 7 dragging Plaintiff out of the shed and causing Plaintiff to sustain extensive arm injuries 8 that later required surgery. (Id. at 2.) 9 In this action, Plaintiff alleges that Officer Miller violated the Fourth Amendment’s 10 prohibition against the use of excessive force in two different ways—first, by releasing 11 Toby at all, and second, by allowing Toby to continue biting him for too long—and the 12 remaining Defendants violated the Fourth Amendment by failing to intervene and/or by 13 being integral participants in the violations. (Docs. 1, 84.) 14 On July 3, 2023, the Court issued an order resolving Defendants’ motion for 15 summary judgment. (Doc. 84.) As for Defendants Cummings, McCarthy, Preston, Torres, 16 and White, summary judgment was granted in full. (Id.) As for Defendant Miller, the 17 Court concluded that although he was entitled to qualified immunity as to Plaintiff’s theory 18 of excessive force predicated on the initial decision to release Toby, he was not entitled to 19 qualified immunity as to Plaintiff’s theory of excessive force predicated on the “duration 20 and encouragement” of the bite. (Id. at 50.) 21 On July 17, 2023, Defendant Miller filed a notice of interlocutory appeal. (Doc. 22 87.) The notice only applies to “that part of the . . . July 3, 2023 Order denying Miller’s 23 Motion for Summary Judgment, in part, on the issue of qualified immunity.” (Id. at 1.) 24 On July 24, 2023, Defendant Miller filed a motion “to stay further proceedings in 25 this matter pending the outcome of his Interlocutory Appeal to the U.S. Ninth Circuit Court 26 of Appeals from the denial of qualified immunity.” (Doc. 89 at 1.) 27 On August 1, 2023, Plaintiff filed two documents: (1) a notice of cross-appeal (Doc. 28 90); and (2) a Rule 54(b) motion for entry of judgment as to all issues resolved in 1 Defendants’ favor in the summary judgment ruling (Doc. 91). 2 On August 9, 2023, the Court issued an order granting Defendant Miller’s stay 3 request. (Doc. 93.) This order “clarif[ied] that the stay only applies to Plaintiff’s excessive 4 force claim against Defendant Miller predicated on a ‘duration and encouragement’ 5 theory—because that claim is the sole subject of Defendant Miller’s interlocutory appeal— 6 and does not interfere with the Court’s jurisdiction to resolve Plaintiff’s Rule 54(b) motion, 7 which is not yet fully briefed and remains pending.” (Id. at 2.) 8 Under LRCiv 7.2(c), Defendants had 14 days to respond to Plaintiff’s Rule 54(b) 9 motion. Thus, the response deadline was August 15, 2023. That deadline has now expired 10 and Defendants did not file a response. 11 DISCUSSION 12 As an initial matter, the Court retains jurisdiction to rule on Plaintiff’s Rule 54(b) 13 motion despite Plaintiff’s filing of a cross-appeal as to the claims that are the subject of the 14 Rule 54(b) motion. Although the usual rule is that “[t]he filing of a notice of appeal is an 15 event of jurisdictional significance [that] confers jurisdiction on the court of appeals and 16 divests the district court of its control over those aspects of the case involved in the appeal,” 17 Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982), that rule is not 18 implicated here because Plaintiff’s cross-appeal was premature and thus did not have a 19 jurisdiction-divesting effect. See generally Leibel v. City of Buckeye, 382 F. Supp. 3d 909, 20 916 (D. Ariz. 2019) (“[T]he Court disagrees that Plaintiffs’ attempt to file a cross-appeal 21 has any impact on its jurisdiction. Although Officer Grossman’s notice of appeal was 22 permissible, because a defendant who unsuccessfully asserts a qualified-immunity defense 23 is entitled to interlocutory review of the challenged ruling, Plaintiffs were not entitled to 24 file their own notice of appeal seeking interlocutory review of the portions of the Order 25 dismissing some of their other claims. A premature notice of appeal does not divest a 26 district court of jurisdiction.”) (citations omitted). 27 Turning to the merits, the summary judgment order left alive only one claim against 28 one Defendant—Plaintiff’s § 1983 claim against Officer Miller predicated on the allegation 1 that Officer Miller used excessive force in violation of the Fourth Amendment. (Doc. 1 2 ¶¶ 33-38.) Although the Court concluded that one of Plaintiff’s theories of liability in 3 relation to that claim (i.e., Officer Miller violated the Fourth Amendment via his initial 4 decision to release Toby) is barred by the doctrine of qualified immunity, the claim itself 5 survives. Indeed, that claim has now been stayed (Doc. 93) so Officer Miller may pursue 6 an interlocutory appeal of the denial of his request for qualified immunity as to Plaintiff’s 7 other theory of liability (i.e., Officer Miller violated the Fourth Amendment by encouraging 8 and/or extending the duration of the resulting dog bite). 9 Rule 54(b) of the Federal Rules of Civil Procedure provides that where, as here, an 10 action involves multiple claims or parties, “the court may direct entry of a final judgment 11 as to one or more, but fewer than all, claims or parties . . . .” (emphasis added). Thus, 12 before entering judgment under Rule 54(b), “the district court first must render ‘an ultimate 13 disposition of an individual claim.’” Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 14 565, 574 (9th Cir. 2018) (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7 15 (1980)). That has not occurred in relation to Plaintiff’s excessive force claim against 16 Officer Miller, which remains pending. Although Plaintiff contends that his two theories 17 of liability should be considered discrete “claims” for Rule 54(b) purposes (Doc.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Dillon Rock, No. CV-20-01837-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 N. Cummings, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff’s motion for entry of judgment under Rule 16 54(b). (Doc. 91.) For the following reasons, the motion is granted in part and denied in 17 part. 18 RELEVANT BACKGROUND 19 This is a § 1983 action in which Dillon Rock (“Plaintiff”) has sued six members of 20 the Goodyear Police Department—Corporal Nathan Cummings, Sergeant Ryan McCarthy, 21 Officer Mike Miller, Officer Scott Preston, Officer Aaron Torres, and Officer Josh White 22 (together, “Defendants”). (Docs. 1, 84.) 23 Plaintiff’s claims arise from an incident in October 2019 in which Defendants 24 responded to a 911 call. (Doc. 84 at 1.) The subject of the call was Plaintiff, who lived 25 with his father in the same neighborhood as the caller. (Id.) The caller reported— 26 mistakenly, as it turns out—that Plaintiff had just threatened Plaintiff’s parents with a knife. 27 (Id.) This information was conveyed to Defendants on their way to the scene. (Id.) After 28 Plaintiff became aware of Defendants’ arrival, he went into his backyard and hid in a shed. 1 (Id.) Before entering the backyard, Officer Miller announced that if Plaintiff did not come 2 out, Officer Miller would release a police dog, Toby, who would bite Plaintiff. (Id.) After 3 Plaintiff did not respond to this announcement—which, he contends, he did not hear— 4 several Defendants entered the backyard. (Id.) Upon arrival at the shed, and without 5 providing any additional warnings, Corporal Cummings opened the door and Officer 6 Miller let Toby inside. (Id. at 1-2.) Toby bit Plaintiff for approximately 41 seconds, 7 dragging Plaintiff out of the shed and causing Plaintiff to sustain extensive arm injuries 8 that later required surgery. (Id. at 2.) 9 In this action, Plaintiff alleges that Officer Miller violated the Fourth Amendment’s 10 prohibition against the use of excessive force in two different ways—first, by releasing 11 Toby at all, and second, by allowing Toby to continue biting him for too long—and the 12 remaining Defendants violated the Fourth Amendment by failing to intervene and/or by 13 being integral participants in the violations. (Docs. 1, 84.) 14 On July 3, 2023, the Court issued an order resolving Defendants’ motion for 15 summary judgment. (Doc. 84.) As for Defendants Cummings, McCarthy, Preston, Torres, 16 and White, summary judgment was granted in full. (Id.) As for Defendant Miller, the 17 Court concluded that although he was entitled to qualified immunity as to Plaintiff’s theory 18 of excessive force predicated on the initial decision to release Toby, he was not entitled to 19 qualified immunity as to Plaintiff’s theory of excessive force predicated on the “duration 20 and encouragement” of the bite. (Id. at 50.) 21 On July 17, 2023, Defendant Miller filed a notice of interlocutory appeal. (Doc. 22 87.) The notice only applies to “that part of the . . . July 3, 2023 Order denying Miller’s 23 Motion for Summary Judgment, in part, on the issue of qualified immunity.” (Id. at 1.) 24 On July 24, 2023, Defendant Miller filed a motion “to stay further proceedings in 25 this matter pending the outcome of his Interlocutory Appeal to the U.S. Ninth Circuit Court 26 of Appeals from the denial of qualified immunity.” (Doc. 89 at 1.) 27 On August 1, 2023, Plaintiff filed two documents: (1) a notice of cross-appeal (Doc. 28 90); and (2) a Rule 54(b) motion for entry of judgment as to all issues resolved in 1 Defendants’ favor in the summary judgment ruling (Doc. 91). 2 On August 9, 2023, the Court issued an order granting Defendant Miller’s stay 3 request. (Doc. 93.) This order “clarif[ied] that the stay only applies to Plaintiff’s excessive 4 force claim against Defendant Miller predicated on a ‘duration and encouragement’ 5 theory—because that claim is the sole subject of Defendant Miller’s interlocutory appeal— 6 and does not interfere with the Court’s jurisdiction to resolve Plaintiff’s Rule 54(b) motion, 7 which is not yet fully briefed and remains pending.” (Id. at 2.) 8 Under LRCiv 7.2(c), Defendants had 14 days to respond to Plaintiff’s Rule 54(b) 9 motion. Thus, the response deadline was August 15, 2023. That deadline has now expired 10 and Defendants did not file a response. 11 DISCUSSION 12 As an initial matter, the Court retains jurisdiction to rule on Plaintiff’s Rule 54(b) 13 motion despite Plaintiff’s filing of a cross-appeal as to the claims that are the subject of the 14 Rule 54(b) motion. Although the usual rule is that “[t]he filing of a notice of appeal is an 15 event of jurisdictional significance [that] confers jurisdiction on the court of appeals and 16 divests the district court of its control over those aspects of the case involved in the appeal,” 17 Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982), that rule is not 18 implicated here because Plaintiff’s cross-appeal was premature and thus did not have a 19 jurisdiction-divesting effect. See generally Leibel v. City of Buckeye, 382 F. Supp. 3d 909, 20 916 (D. Ariz. 2019) (“[T]he Court disagrees that Plaintiffs’ attempt to file a cross-appeal 21 has any impact on its jurisdiction. Although Officer Grossman’s notice of appeal was 22 permissible, because a defendant who unsuccessfully asserts a qualified-immunity defense 23 is entitled to interlocutory review of the challenged ruling, Plaintiffs were not entitled to 24 file their own notice of appeal seeking interlocutory review of the portions of the Order 25 dismissing some of their other claims. A premature notice of appeal does not divest a 26 district court of jurisdiction.”) (citations omitted). 27 Turning to the merits, the summary judgment order left alive only one claim against 28 one Defendant—Plaintiff’s § 1983 claim against Officer Miller predicated on the allegation 1 that Officer Miller used excessive force in violation of the Fourth Amendment. (Doc. 1 2 ¶¶ 33-38.) Although the Court concluded that one of Plaintiff’s theories of liability in 3 relation to that claim (i.e., Officer Miller violated the Fourth Amendment via his initial 4 decision to release Toby) is barred by the doctrine of qualified immunity, the claim itself 5 survives. Indeed, that claim has now been stayed (Doc. 93) so Officer Miller may pursue 6 an interlocutory appeal of the denial of his request for qualified immunity as to Plaintiff’s 7 other theory of liability (i.e., Officer Miller violated the Fourth Amendment by encouraging 8 and/or extending the duration of the resulting dog bite). 9 Rule 54(b) of the Federal Rules of Civil Procedure provides that where, as here, an 10 action involves multiple claims or parties, “the court may direct entry of a final judgment 11 as to one or more, but fewer than all, claims or parties . . . .” (emphasis added). Thus, 12 before entering judgment under Rule 54(b), “the district court first must render ‘an ultimate 13 disposition of an individual claim.’” Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 14 565, 574 (9th Cir. 2018) (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7 15 (1980)). That has not occurred in relation to Plaintiff’s excessive force claim against 16 Officer Miller, which remains pending. Although Plaintiff contends that his two theories 17 of liability should be considered discrete “claims” for Rule 54(b) purposes (Doc. 91 at 2- 18 3), this argument is unavailing in light of the authority Plaintiff acknowledges in his motion 19 papers. Ariz. State Carpenters Trust Fund v. Miller, 938 F.2d 1038, 1040 (9th Cir. 1991) 20 (“[A] complaint asserting only one legal right, even if seeking multiple remedies for the 21 alleged violation of that right, states a single claim for relief.”). Thus, the Court denies 22 Plaintiff’s request for Rule 54(b) relief as it applies to Officer Miller. 23 As for the remaining five Defendants, Plaintiff’s request is summarily granted. 24 Plaintiff’s claims against those Defendants have been resolved with finality, such that Rule 25 54(b)’s threshold requirement is satisfied, and “there is no just reason for delaying 26 judgment on” those claims. Id. at 574. More specifically, the Court summarily concludes, 27 based on Defendants’ non-opposition, that the relevant “juridicial concerns” and 28 “equitable” considerations favor Plaintiff’s request. See generally Texaco, Inc. v. Ponsoldt, 1|| 939 F.2d 794, 797 (9th Cir. 1991) (“Rule 54(b) certification is proper if it will aid || expeditious decision of the case.”). 3 Accordingly, 4 IT IS ORDERED that Plaintiff's Rule 54(b) motion (Doc. 91) is granted in part □□ and denied in part. 6 IT IS FURTHER ORDERED directing the Clerk to enter a final judgment in favor of Defendants Cummings, McCarthy, Preston, Torres, and White. 8 Dated this 5th day of September, 2023. 9 10 Lom ee” ll f t _o—— Dominic W. Lanza 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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