Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA JOSHUA MUSSMAN, )
)
Plaintiff, ) ) ) ) ) ) ) )
No. CIV 05-084-TUC-CKJ vs.
ORDER PIMA COUNTY, et al.,
Defendants.
Pending before the Court is Defendants' Motion for Summary Judgment [Doc. #s 13 and 15]. Plaintiff has filed a Response/Cross Motion for Summary Judgment [Doc. # 20] and Defendants have filed a Reply. Oral argument was presented to the Court on December 15, 2005.
Factual and Procedural Background [1]
On March 17, 2004, the vehicle being driven by Plaintiff Joshua K. Mussman ("Mussman") swerved in the roadway. Deputy Alvaro Arizpuru ("Arizpuru"), traveling on a motorcycle unit, initiated a traffic stop on the vehicle. Defendants' Statement of Facts, Exhibit B. Mussman asserts that he saw police lights, heard a siren, and noticed a law enforcement vehicle behind him. Mussman pulled his vehicle over.
Arizpuru asked Mussman to produce his license and registration for the vehicle. Mussman informed Arizpuru that he had recently been charged with a DUI, did not have a regular license, but had a temporary permission to drive. When Arizpuru asked Mussman if he had any other form of identification with him, Mussman informed Arizpuru that he had an old instructional permit and presented it to Arizpuru.
Arizpuru noticed that Mussman had an additional driver's license in his wallet and inquired about that driver's license. Mussman denied that he had an additional driver's license. Defendants' Statement of Facts, Exhibit B. [2] Arizpuru stated that he had seen the second driver's license in Mussman's wallet. Id. Mussman informed Arizpuru that the additional license was not his, but belonged to his roommate. Mussman informed Arizpuru that his roommate had asked Mussman to hold the license when they had gone to the gym earlier in the day and that Mussman had forgotten to return the identification to his roommate.
Mussman provided the additional license to Arizpuru. Defendants' Statement of Facts, Exhibit B. The additional license was issued in the name of Joelray Scott Musgrove ("Musgrove"). Id. Arizpuru observed that the pictures and physical descriptions on both licenses were similar to each other and to the driver of the car (Mussman). Id. The Mussman permit stated in bright red letters "Under 21"; the Musgrove license did not contain such lettering. Id . Arizpuru stated that he could not determine if Mussman was the person on the second license and that he would have to place Mussman under arrest. Mussman informed Arizpuru that the vehicle and all of the other paperwork in his possession was in his name (Mussman). Arizpuru stated that was not sufficient to clarify Mussman's identity or to prevent the arrest.
Mussman requested permission to call his father, attorney Michael Mussman, on his cell phone. After speaking with Mussman, Mussman's father informed Arizpuru that the person in his custody was his son, Joshua Mussman, and requested that Mussman be released.
Arizpuru stated that the additional information was insufficient to establish Mussman's identity, but that Mussman's father could come to the scene to identify Mussman if he could be there within five minutes. Arizpuru also requested Mussman's father to come to the scene to establish his identity – i.e., that he really was Mussman's father. Defendant's Statement of Facts, Exhibit B. Mussman's father informed Arizpuru it would take him approximately twenty-five minutes to travel to the scene. Arizpuru stated that Mussman would have to be taken to jail and that he could be released there.
Mussman received a citation for Unlawful Use of License in violation of A.R.S. § 28- 3478 and Failure to Stay Within Traffic Lane in violation of A.R.S. § 28-729.1
Deputy Dowdy transported Mussman to the Pretrial Services Office, which refused to authorize his immediate release. Mussman was subsequently booked on one count of Unlawful Use of a License. Mussman's Statement of Facts, Exhibit H.
At the Pima County Jail, Mussman provided his social security number and other biographical information. Mussman's brother arrived at the jail with documentation (e.g., photograph, mail) showing that Mussman, his brother, and the roommate all lived at the same residence. Arizpuru refused to review the information and booked Mussman into the jail as a John Doe. However, Mussman's Statement of Facts, Exhibit H, indicates that Mussman was booked prior to Arizpuru speaking with Mussman's brother.
Mussman's brother was unable to post bail to secure Mussman's release because Mussman had been booked into the jail as a John Doe. Arizpuru informed Pretrial Services workers at the jail that Mussman had not provided any means to determine his identification.
Following an appearance before the court, Mussman was ordered to be released at 4:00 p.m. the following afternoon. Mussman was not released until 9:00 p.m.; Mussman was informed that this delay was the result of being booked into the jail as a John Doe. [3]
Mussman was horrified by the conditions to which he was subjected to in the jail. The conditions included the stench of body odor, alcohol, vomit, urine, and feces. Mussman suffered great fear of the persons in the cells with him, was subjected to explicit sexual comments from a transvestite drug addict, was physically assaulted by the transvestite drug addict, and was terrified of being attacked and, therefore, was unable to sleep.
A motion to dismiss the charges based on a lack of reasonable suspicion to stop Mussman's vehicle was denied by Judge Greene of the Pima County Consolidated Courts. A subsequent bench trial resulted in a directed verdict of not guilty of the charge of Unlawful Use of License and not responsible for the charge of Failure to Stay Within Traffic Lane.
On February 4, 2005, Mussman filed a Civil Rights Complaint against Pima County, Pima County Sheriff Clarence Dupnik, and Deputy Arizpuru ("Defendants"). The complaint alleges that Defendants deprived Mussman of his civil rights, privileges and immunities as guaranteed under the Fourth, Fifth, Sixth, Eighth, and Fourteen Amendment of the United States Constitution. Mussman states his claims as Count I: violation of civil rights under color of state law against individual defendants pursuant to 42 U.S.C. § 1983; Count II: damages under 42 U.S.C. § 1983 against Pima County and Pima County Sheriff Clarence Dupnik for developing, implementing, and maintaining policies or customs which exhibit deliberate indifference to the constitutional rights of persons who are arrested in Pima County and who may be incarcerated in the Pima County Jail, and; Count III: Defendants violated state law, to wit: assault and battery, negligent infliction of emotional distress, intentional infliction of emotional distress, and false imprisonment.
On September 20, 2005, Defendants filed a Motion for Summary Judgment [4] . Mussman has filed a Response/Cross-Motion for Summary Judgment and Defendants have filed a Reply.
Defendants' Objections to Plaintiff's Statement of Facts
A motion for summary judgment is to set forth the specific facts (with reference to a specific portion of the record where the fact may be found) on which a party relies separately from the memorandum of law. Rule 56.1(a), L.R.Civ. Defendants object to some of Mussman's facts as factually incorrect, hearsay, or beyond the scope of Mussman's knowledge.
Defendants are correct that some of the statements are hearsay or beyond the scope of Mussman's knowledge. However, it appears that some are not presented for the truth of the matter asserted, but to explain the reaction of Mussman (e.g., transvestite made sexually explicit comments to him – contributes to the fear Mussman was feeling). The Court will only consider the admissible evidence that is supported by specific facts that may show a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
Summary Judgment Legal Standard
Summary judgment may be granted if the movant shows “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 56(c), Federal Rules of Civil Procedure. The disputed facts must be material. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Therefore, the nonmoving party must demonstrate a dispute “over facts that might affect the outcome of the suit under the governing law” to preclude entry of summary judgment. Anderson v. Liberty Lobby Inc. , 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
The dispute over material facts must also be genuine. Id. A dispute about a material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. A party opposing a properly supported summary judgment motion must set forth specific facts demonstrating a genuine issue for trial. Id. Mere allegation and speculation are not sufficient to create a factual dispute for purposes of summary judgment. Witherow v. Paff , 52 F.3d 264, 266 (9th Cir. 1995) (per curiam). “If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson , 477 U.S. at 249-50, 106 S. Ct. at 2511. However, the evidence of the nonmoving party is to be believed and all justifiable inferences are to be drawn in his favor. [5] Id. at 255.
The Court is not to make credibility determinations with respect to the evidence offered and is required to draw all inferences in a light most favorable to the non-moving party. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n , 809 F.2d 626, 630-31 (9th Cir. 1987), citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). Summary judgment is not appropriate "where contradictory inferences may reasonably be drawn from undisputed evidentiary facts[.]" Hollingsworth Solderless Terminal Co. v. Turley , 622 F.2d 1324 (9th Cir. 1980).
Probable Cause to Arrest
Mussman asserts that he was falsely arrested and that his civil rights were violated by Arizpuru's arrest of Mussman without probable cause. 42 U.S.C. § 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. Graham v. Connor , 490 U.S. 386, 393-94, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989). To state a claim under § 1983, a plaintiff must allege: (1) the violation of a right secured by the Constitution and laws of the United States and (2) the alleged deprivation was committed by a person action under color of state law. Balistreri v. Pacifica Police Dept. , 901 F.2d 696, 699 (9th Cir. 1990); see also Parratt v. Taylor , 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams , 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Probable cause is a defense to a claim of false arrest under 42 U.S.C. § 1983. Pierson v. Ray , 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1987), overruled on other grounds , Harlow v. Fitzgerald , 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Cervantes v. United States , 330 F.3d 1186 (9th Cir. 2003). Probable cause exists where the facts and circumstances known to the arresting officer are sufficient to warrant a prudent man in believing that the arrestee has committed or is committing an offense. Brinegar v. United States , 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949); Graves v. City of Coeur D'Alene , 339 F.3d 828 (9th Cir. 2003).
In Arizona, an officer is authorized to arrest a person, without an arrest warrant, if the officer has probable cause to believe that a "misdemeanor or a petty offense has been committed and probable cause to believe the person to be arrested has committed the offense." A.R.S. § 13-3883. Here, Arizpuru arrested Mussman for Unlawful Use of License. In Arizona, it is a misdemeanor for a person to "knowingly display, cause or permit to be displayed or have in the person's possession a canceled, revoked, suspended, fictitious or fraudulently altered driver's licence." A.R.S. § 28-3478. Defendants assert that, because the last digit of the birth date listed on Mussman's instructional permit had been altered/obscured to appear as 02/29/81 rather than 02/29/84, there was probable cause to arrest Mussman for a violation of A.R.S. § 28-3478. Mussman asserts, however, this is the first time this information has been presented; there is no mention of any alleged alteration of Mussman's instructional permit in Arizpuru's report. However, Arizpuru's "subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As [the United States Supreme Court has] repeatedly explained, 'the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.'" Devenpeck v. Alford , 543 U.S. 146, 125 S.Ct. 588, 594, 160 L.Ed.2d 537 (2004), quoting Whren v. United States , 517 U.S. 806, 812-13., 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Mussman has not disputed that he had what appeared to be an altered instructional permit in his possession. There was probable cause to arrest Mussman for this violation.
Moreover, Arizpuru also had probable cause to believe that Mussman had in his possession a fictitious license. Mussman had in his possession an instructional permit in one name and a driver's license in another name. Arizpuru observed that the photographs and physical descriptions on both the instructional permit and driver's license were very similar; moreover, both closely resembled Mussman. There is no factual dispute that Mussman had both the instructional permit and the driver's license in his possession. Mussman has not disputed Arizpuru's assertion that Mussman initially provided inaccurate/incomplete information to Arizpuru regarding the driver's license in Mussman's wallet. There was probable cause for Arizpuru to believe that either the instructional permit or the driver's license was fictitious as to Mussman.
Additionally, in Arizona, it is an offense to provide law enforcement agencies "with information one knows is false, fraudulent or unfounded, or a misrepresent[ation] of facts in order to either interfere with the agency's operation or mislead a law enforcement officer." State v. Terrell , 168 Ariz. 112, 113, 811 P.2d 364, 365 (App. 1991); see also A.R.S. § 13- 2907.01. As previously stated, Mussman had provided inaccurate information to Arizpuru. There was probable cause to arrest Mussman for false reporting.
Mussman also asserts that Arizpuru violated department rules and regulations by arresting Mussman. However, Mussman fails to acknowledge that Arizpuru had probable cause to believe that Mussman had a fictitious license in his possession and determined that Mussman had not provided adequate identification.
Mussman further asserts that Arizpuru had a duty to continue investigating the offenses. However, Mussman has not provided any authority for this assertion. Rather,
a police officer's initial finding of probable cause justifies not only arrest, but a reasonable period of continued detention for the purpose of bringing the arrestee before a magistrate. Generally, once the arrest has been properly effected, it is the magistrate and not the policeman who should decide whether probable cause has dissipated to such an extent following arrest that the suspect should be released. We do not, however, intimate that a police officer, upon an initial finding of probable cause, may close his eyes to all subsequent developments. He may not. Probable cause to arrest does not suspend an officer's continuing obligation to act "reasonably." On the other hand, having once determined that there is probable cause to arrest, an officer should not be required to reassess his probable cause conclusion at every turn, whether faced with the discovery of some new evidence or a suspect's self- exonerating explanation from the back of the squad car. Thompson v. Olson , 798 F.2d 552, 556 (1st Cir. 1986), internal citations omitted; emphasis in original. The Thompson court concluded that a police officer has an affirmative duty to release an arrestee if he ascertains beyond a reasonable doubt that the probable cause which formed the basis for the arrest was unfounded. Id . Indeed, an officer's failure to "investigate Plaintiff's [defense does] not negate the probable cause for the warrantless arrest in the absence of a showing that [the officer's] initial probable cause determination was itself unreasonable." Romero v. Fay , 45 F.3d 1472, 1477-78 (10th Cir. 1995); see also Duckett v. City of Cedar Park, Texas , 950 F.2d 272 (5th Cir. 1992); Olinger v. Larson , 134 F.3d 1362, 1367 (8th Cir. 1998) (detective had "no obligation to immediately investigate [plaintiff's] asserted alibi evidence prior to the probable cause hearing"); Radvansky v. City of Olmsted Falls , 395 F.3d 291, 312 (6th Cir. 2005) (once plaintiff was arrested, the police were not required to investigate further). Here, the Court has determined that Arizpuru had probable cause to arrest Mussman; there has been no showing that the initial determination of probable cause was unreasonable. "The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted – indeed, for every suspect released." Baker v. McCollan , 443 U.S. 137, 145, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Summary judgment in favor of Defendants is appropriate as to the claims of false arrest and constitutional violations based on the arrest.
Qualified Immunity
Even if there was not probable cause to arrest Mussman, qualified immunity would require summary judgment on this claim. Qualified immunity is an “entitlement not to stand trial or face the other burdens of litigation.” Saucier v. Katz , 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Government officials are entitled to qualified immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Liston v. County of Riverside , 120 F.3d 965, 975 (9th Cir. 1997), citing Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The defense of qualified immunity allows for errors in judgment and protects "all but the plainly incompetent or those who knowingly violate the law . . . [I]f officers of reasonable competence could disagree on the issue [whether or not a specific action was constitutional], immunity should be recognized." Malley v. Briggs , 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). The Court must determine "whether, in light of clearly established principles governing the conduct in question, the officer objectively could have believed that his conduct was lawful." Watkins v. City of Oakland , 145 F.3d 1087, 1092 (9th Cir. 1998).
When qualified immunity is asserted at the summary judgment stage, the court must consider "this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier , 533 U.S. at 201; see also Billington v. Smith , 292 F.3d 1177, 1183 (9th Cir. 2002). As previously stated, there are no material issues of fact as to whether the officer's conduct violated a constitutional right. Even if there were material issues of fact, the court would then “ask whether the right was clearly established” such that “it would be clear to a reasonable officer that [his] conduct was unlawful in the situation he confronted.” Saucier , 533 U.S. at 201-202.
Any genuine issues of material fact concerning the underlying facts of what the officer knew or what the officer did are questions of fact for the jury. Acosta v. City and County of San Francisco , 83 F.3d 1143, 1149 (9th Cir. 1996), citing Sinaloa Lake Owners Ass'n v. City of Simi Valley , 70 F.3d 1095, 1099 (9th Cir. 1995). However, where the essential facts are undisputed, the reasonableness of the officer's actions is properly determined by the court. Sinaloa Lake Owners Ass'n , 70 F.3d at 1099; see also Scott v. Henrich , 39 F.3d 912, 915 (9th Cir. 1994) (“Even though reasonableness is traditionally a question of fact for the jury, defendant can still win on summary judgment if the district court concludes, after resolving all factual disputes in favor of the plaintiff, that the officer's use of force was objectively reasonable under the circumstances.”). Here, the essential facts are undisputed. Based on those facts, it would not be clear to a reasonable officer that he did not have probable cause to arrest Mussman for possession of a fictitious license, possession of an altered license, and false reporting. Moreover, it would not be clear to a reasonable officer that, following the initial probable cause determination, he had a continuing duty to investigate Mussman's defense. Accordingly, summary judgment based on qualified immunity in favor of Defendants is appropriate on the claims of false arrest and constitutional violations based on that conduct.
Constitutional Violation of Supervisor
Mussman asserts that Pima County and Pima County Sheriff Clarence Dupnik violated his rights by developing, implementing, and maintaining policies or customs which exhibit deliberate indifference to the constitutional rights of persons who are arrested in Pima County and who may be incarcerated in the Pima County Jail. Supervisory officials may be liable if they “implement a policy so deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation.'” Redman v. County of San Diego , 942 F.2d 1435, 1446 (9th Cir.1991), cert. denied, 112 S.Ct. 972 (1992) ( quotations omitted ); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989) (a supervisor may be liable under § 1983 if he "knew of the violations and failed to act to prevent them.").
However, Mussman has not alleged any policy expressly sanctioned, enacted, or authorized by Sheriff Dupnik that led to an alleged injury. Pembaur v. City of Cincinnati , 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Ulrich v. City and County of San Francisco , 308 F.3d 968 (9th Cir. 2002). Moreover, Mussman has not presented any facts to show that his alleged injuries are the result of a municipal custom. Id. , at 481-82, n. 10. Additionally, Mussman has not shown that the alleged constitutional violation is the result of inadequate training such that deliberate indifference is shown. City of Canton v. Harris , 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (inadequacy must be so likely to result in the violation of constitutional rights that the policymaker can reasonably be said to be indifferent to the need). Mussman has not presented any evidence of, e.g., similar incidents which demonstrate that Sheriff Dupnik knew or should have know of an alleged deficiency in the Sheriff's Department policies. Mere allegations based solely on a plaintiff's own experience is insufficient to establish liability of a supervisor. Trevino v. Gates , 99 F.3d 911, 918 (9th Cir. 1996) ("Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy."); City of Oklahoma v. Tuttle , 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). Summary judgment in favor of Defendants is appropriate on this claim.
Violations of State Law
Mussman alleges that Defendants violated state law by the commission of the following torts: assault and battery, negligent infliction of emotional distress, intentional infliction of emotional distress, and false imprisonment.
Summary judgment on the federal issue claims being appropriate, this Court does not have subject matter jurisdiction over the state law claims. Dismissal of the state law claims is appropriate.
Accordingly, IT IS ORDERED:
1. Defendants' Motion for Summary Judgment [Doc. #s 13 and 15] as to Counts I and II is GRANTED;
2. Summary judgment in favor of Defendants as to Counts I and II is GRANTED; 3. Plaintiff's Cross-Motion for Summary Judgment [Doc. # 20] is DENIED; 4. Count III is dismissed for lack of subjection matter jurisdiction, and; 5. The Clerk of the Court shall enter judgment accordingly and shall then close its file in this matter.
DATED this 3rd day of March, 2006.
[1] Unless otherwise stated, the facts are taken from Plaintiff's statement of facts.
[2] The Court notes that, although Mussman does not admit that he initially provided 28 inaccurate information, he has not denied it either.
[3] No foundation is provided for this statement.
[4] Defendants initially filed the motion on September 7, 2005, but it did not comply 28 with CM/ECF signature requirements. Defendants were directed to refile the motion.
[5] The Court resolves all factual disputes in Mussman's favor for purposes of this 28 motion. See Scott v. Henrich , 39 F.3d 912 (9th Cir. 1992).