Williams v. Tempe, City of ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Prentice Williams, No. CV-17-02161-PHX-SMB 10 Plaintiff, ORDER 11 v. 12 City of Tempe, et al., 13 Defendants. 14 15 16 Pending before the Court is Defendant Officer Ratko Aleksis’s Motion for Summary 17 Judgment.1 (Doc. 135, “Mot.”). The Court has now considered the Motion, Response 18 (Doc. 153, “Resp.”),2 and Reply (Doc. 163, “Reply”) along with relevant case law. The 19 Court has determined that oral argument will not be helpful to resolution of this motion 20 and will be vacated. See L.R. Civ 7.2(f). 21 22 BACKGROUND 23 In his First Amended Complaint, (Doc. 27, “FAC”), Plaintiff lists two counts and 24 names as defendants the City of Tempe, the Tempe Police Department, Officer Ratko 25 Aleksis, Officer Blake Dunn (collectively, “the Tempe Defendants”) and 26 1 This motion is filed only by Defendant Ratko Aleksis. For the sake of this motion, the 27 Court will use “Officer Aleksis” or “Defendant” to refer to the filing party only and not all named defendants. 28 2 Plaintiff’s response is a joint response to this motion as well as to Defendants Albertsons and Safeway’s Summary Judgment Motion (Doc. 133). 1 Albertsons/Safeway Inc. On August 31, 2018, this Court dismissed all claims against the 2 Tempe Defendants except the Fourth Amendment claim against Officer Aleksis. (Doc. 3 132). In Count I, Plaintiff alleges that on July 8, 2015, Officer Aleksis stopped him without 4 reasonable suspicion.3 Count II does not implicate Officer Aleksis. The present motion is 5 brought by Officer Aleksis and asks for summary judgment on the only remaining claim 6 against him, the Fourth Amendment claim. 7 Defendant filed a separate statement of facts, (Doc. 136, “DSOF”), to which 8 Plaintiff filed a controverting statement of facts, (Resp. at 7–9). Plaintiff does not dispute 9 the following facts. On July 8, 2015, at approximately 11:28 p.m., the Tempe Police 10 Department (“TPD”) received a call on its non-emergency line reporting that a white car 11 was sitting in a garage of a long-time vacant house (the “house”). TPD treats non- 12 emergency calls similar to 911 calls in that it audio records the call, traces the call, 13 dispatches officers, and takes notes in the computer aided dispatch system. 14 The following facts are as asserted by Defendant in his statement of facts, but 15 Plaintiff “disputes” these facts in his controverting statement. The caller, “Renee,” told 16 TPD that the subject was going from the car to the house. The house is located in a known 17 drug area and, itself, is known to be used for illegal drug use. Officer Aleksis was 18 dispatched to the house and, upon his arrival, contacted Plaintiff. On July 8, 2015, Plaintiff 19 had parked his white Buick Le Sabre at the house. Officer Aleksis saw that the house was 20 boarded up and obviously abandoned. Because of what was reported by the caller, his own 21 observation that Plaintiff parked (at night) his white Buick Le Sabre at a boarded-up 22 abandoned house in a well-known drug area, and that the house was previously used for 23 illegal drug activity, Officer Aleksis conducted a trespass investigation. During the 24 investigation, TPD attempted to communicate with the owner or person responsible for the 25 house. Those attempts proved unsuccessful. Because the owner or person responsible for 26 the house could not be contacted, Officer Aleksis ended his trespassing investigation. 27 Upon the conclusion of the trespass investigation, Plaintiff was permitted to leave. 28 3 Throughout Plaintiff’s papers, he refers to Officer Ratko Aleksis as Officer “Alexis Ratko,” “Ratko Aleksis,” and “Ratko.” 1 In his controverting statement of facts, Plaintiff does not clearly state why he is 2 disputing the above facts assertions. Plaintiff points to various documents in the record, 3 but it is not entirely clear which documents Plaintiff is directing the Court to review. In 4 several spots, Plaintiff appears to be citing an attached affidavit provided by the Plaintiff. 5 In the affidavit, Plaintiff makes various assertions, including the following: (1) that the 6 caller Renee “is a TPD undercover/surveillance officer who worked with ‘Ratko’ on 7 surveilling” Plaintiff; (2) that he was not parking in the driveway, but that he “parked 8 ‘parallel’ to a house on the street”; (3) that “if one parks there today, there’s no concern 9 and no one cares, then or now,” and that the parked car “was a pretext by ‘Ratko’ and TPD 10 undercover surveillance Off. ‘Renee.’” (Resp. at 11). 11 In addition to his controverting statement of facts, Plaintiff also includes the 12 following facts in his Response, which he also sets forth in affidavit (Doc. 160). On July 13 8, 2015, at about 11:30 p.m., Plaintiff was in the process of moving. He caught “Ratko” 14 tailing him to his new residence. Plaintiff parked his car on the street and then had walked 15 225 yards away when Officer Aleksis asked Plaintiff if that was his parked car. Plaintiff 16 alleges that Defendant used the location of Plaintiff’s parked car as a pretext to make the 17 stop. Defendant ordered Plaintiff to walk back to Plaintiff’s car. Defendant then ordered 18 Plaintiff away from the car, demanded his license, asked if Plaintiff still lived at the address 19 on his license, ran a warrants check, and asked to enter Plaintiff’s car. Plaintiff demanded 20 Defendant call his sergeant, who came and released Plaintiff. Plaintiff alleges he was kept 21 by Defendant for 78 minutes. 22 23 DISCUSSION 24 I. Legal Standard 25 Summary judgment is appropriate when “there is no genuine dispute as to any 26 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 27 56(a). A material fact is any factual issue that might affect the outcome of the case under 28 the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 1 A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could 2 return a verdict for the nonmoving party. Id. “A party asserting that a fact cannot be or is 3 genuinely disputed must support the assertion by . . . citing to particular parts of materials 4 in the record” or by “showing that materials cited do not establish the absence or presence 5 of a genuine dispute, or that an adverse party cannot produce admissible evidence to 6 support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). The court need only consider the cited 7 materials, but it may also consider any other materials in the record. Id. 56(c)(3). Summary 8 judgment may also be entered “against a party who fails to make a showing sufficient to 9 establish the existence of an element essential to that party’s case, and on which that party 10 will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 11 A principal purpose of summary judgment is “to isolate and dispose of factually 12 unsupported claims.” Id. at 323–24. 13 Initially, the movant bears the burden of demonstrating to the Court the basis for the 14 motion and “identifying those portions of [the record] which it believes demonstrate the 15 absence of a genuine issue of material fact.” Id. at 323. If the movant fails to carry its 16 initial burden, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co. 17 v. Fritz Cos., 210 F.3d 1099, 1102–03 (9th Cir. 2000). If the movant meets its initial 18 responsibility, the burden then shifts to the nonmovant to establish the existence of a 19 genuine issue of material fact. Id. at 1103. The nonmovant need not establish a material 20 issue of fact conclusively in its favor, but it “must do more than simply show that there is 21 some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith 22 Radio Corp., 475 U.S. 574, 586 (1986). The nonmovant’s bare assertions, standing alone, 23 are insufficient to create a material issue of fact and defeat a motion for summary judgment. 24 Liberty Lobby, 477 U.S. at 247–48. “If the evidence is merely colorable, or is not 25 significantly probative, summary judgment may be granted.” Id. at 249–50 (citations 26 omitted). However, in the summary judgment context, the Court believes the nonmovant’s 27 evidence, id. at 255, and construes all disputed facts in the light most favorable to the 28 nonmoving party, Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). If “the 1 evidence yields conflicting inferences [regarding material facts], summary judgment is 2 improper, and the action must proceed to trial.” O’Connor v. Boeing N. Am., Inc., 311 F.3d 3 1139, 1150 (9th Cir. 2002). 4 While the Court must construe the pleadings liberally, “[p]ro se litigants must follow 5 the same rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 6 (9th Cir. 1987). Regardless of his pro se status, at summary judgment, the elements Plaintiff 7 must prove and Plaintiff’s burden of proof are not relaxed simply because he is appearing 8 without the assistance of counsel. Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986); 9 see also Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (“an ordinary pro se 10 litigant, like other litigants, must comply strictly with the summary judgment rules” 11 (citation omitted)). 12 II. Analysis 13 A. Procedural Defects 14 At the outset, the Court is compelled to address deficiencies present in Plaintiff’s 15 Response. First, in addition to his Response (Doc. 153), Plaintiff filed a sur-reply (Doc. 16 167) without moving for leave to do so. The rules do not contain a provision allowing 17 parties to file sur-replies. See Armenta v. Spencer, No. CV-16-00697-TUC-DCB, 2018 18 WL 4698648, at *1 (D. Ariz. Oct. 1, 2018) (“There is no provision for Sur-replies.”). And 19 even then, “[c]ourts generally view motions for leave to file a sur-reply with disfavor.” 20 Whitewater W. Indus., Ltd. v. Pac. Surf Designs, Inc., No. 3:17-CV-01118-BEN-BLM, 21 2018 WL 3198800, at *1 (S.D. Cal. June 26, 2018). The Court will strike Plaintiff’s sur- 22 reply and not consider it.4 23 Second, Plaintiff violated Federal Rule of Civil Procedure 56(c) and Local Rule of 24 Civil Procedure 56.1(e) by not citing to specific evidence in the record in his Response. 25 “Memoranda of law filed . . . in opposition to a motion for summary judgment . . . must 26 include citations to the specific paragraph in the statement of facts that supports assertions 27 made in the memoranda regarding any material fact on which the party relies . . . .” LRCiv 28 4 The Court notes that even if Plaintiff’s sur-reply was to be considered by the Court, Plaintiff fails to make any new arguments or cite to the record. 1 56.1(e). Plaintiff’s Response contains no citations to his statement of facts. 2 Despite Plaintiff’s failure to comply with Rule 56(c) and Local Rule 56.1(e), the 3 Court will still rule on Defendant’s Motion. Given the limited nature of the factual 4 allegations, the Court is still able to consider whether there exists any genuine dispute of 5 material fact. 6 B. Factual Disputes 7 While Plaintiff has disputed some of Officer Aleksis’s facts, none of Plaintiff’s 8 disputes of material facts are supported by evidence. The only material fact that Plaintiff 9 appears to dispute is the identity of the caller who called TPD. Plaintiff asserts that the 10 caller (“Renee”) was an undercover officer working with Officer Aleksis, and that the call 11 about Plaintiff’s parked car was “pretext” by Officer Aleksis and the undercover officer. 12 (Resp. at 11). However, Plaintiff has provided no evidence of this assertion other than his 13 own affidavit attesting to this assertion. (Id.). While a party’s own affidavit may be 14 considered as evidence in the context of a motion for summary judgment, there are 15 situations when a district court can disregard a selfserving affidavit. In S.E.C. v. Phan, 500 16 F.3d 895, 909 (9th Cir. 2007), the Ninth Circuit confirmed that a party’s “selfserving” 17 affidavit may establish a genuine issue of material fact in the context of a summary 18 judgment motion. But the Phan court clarified that a district court may disregard a 19 selfserving affidavit in certain circumstances, including when the affidavit “states only 20 conclusions, and not such facts as would be admissible in evidence.” Id. The Phan court 21 also noted a case where the “declaration in question included facts beyond the declarant’s 22 personal knowledge and provided no indication how” the declarant knew these facts to be 23 true. Id. at 910 (citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1059 & n.5 (9th 24 Cir. 2002)). That is precisely the situation here. Plaintiff has not even provided an 25 indication of how he knows the asserted facts to be true. Accordingly, the Court does not 26 need to consider Plaintiff’s affidavit as evidence and holds that Plaintiff has not established 27 the existence of a genuine issue of material fact. 28 C. Fourth Amendment Claim 1 “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the 2 Government, and its protections extend to brief investigatory stops of persons or vehicles 3 that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273 (2002) 4 (citing Terry v. Ohio, 392 U.S. 1, 9 (1968)). “[T]he Fourth Amendment is satisfied [in 5 such cases] if the officer’s action is supported by reasonable suspicion to believe that 6 criminal activity may be afoot.” Id. (internal quotation marks and citation omitted). 7 “Reasonable suspicion requires more than a mere ‘hunch’ of wrongdoing, but the degree 8 of proof needed is ‘considerably less than proof of wrongdoing by a preponderance of the 9 evidence,’ and ‘obviously less demanding than that for probable cause.’” United States v. 10 Williams, 846 F.3d 303, 308 (9th Cir. 2016) (quoting United States v. Sokolow, 490 U.S. 11 1, 7 (1989) (citations and internal quotation marks omitted)). “Whether reasonable 12 suspicion exists depends upon the totality of the circumstances surrounding the stop, 13 including ‘both the content of information possessed by police and its degree of 14 reliability.’” Id. (quoting Alabama v. White, 496 U.S. 325, 330 (1990)). 15 “In assessing the role of telephone tips in investigative stops, the Supreme Court 16 and [the Ninth Circuit] have focused on whether the tips have ‘sufficient indicia of 17 reliability to provide reasonable suspicion to make [an] investigatory stop.’” Id. (quoting 18 White, 496 U.S. at 327). In Williams, the Ninth Circuit held that officers had reasonable 19 suspicion to stop Williams “based on information they possessed” and the reliability of a 20 phone tip. Id. at 309. First, the tipster had telephoned a police hotline and provided his 21 name, address, and phone number. Id. The Supreme Court has noted that calling a police 22 line that traces callers “provide[s] some safeguards against making false reports with 23 immunity.” Navarette v. California, 572 U.S. 393, 400 (2014). Second, the officers 24 verified the information relayed by the tipster through independent observation. See 25 Williams, 846 F.3d at 309. Third, the tipster provided specific criminal allegations of 26 someone sleeping in his car at an apartment complex where he did not live. See id. Also, 27 the incident occurred in a high-crime area during the early morning hours. See id. 28 Although “[a]n individual’s presence in an area of expected criminal activity, standing 1 alone, is not enough to support a reasonable, particularized suspicion that the person is 2 committing a crime . . . officers are not required to ignore the relevant characteristics of a 3 location in determining whether the circumstances are sufficiently suspicious to warrant 4 further investigation.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (citations and 5 alterations omitted). The Williams court also stated that “[e]ven if there were a question as 6 to whether the tip, on its own, provided the officers with the requisite reasonable suspicion 7 to detain [the individual], the tip was certainly sufficient to justify further investigation,” 8 and that “[a]fter receiving the information provided by the tipster, the officers would have 9 been delinquent had they not driven over to the parking lot to investigate the situation.” 10 Williams, 846 F.3d at 310. 11 Here, Defendant began the investigatory stop based on a call to TPD regarding 12 possible criminal activity. Similar to Williams, the caller contacted the TPD on a line that 13 allows the TPD to trace the calls. (DSOF ¶ 2). The caller provided her first name, informed 14 TPD that that a person was going from a white car to a vacant house, which is known to be 15 used for illegal drug use. The caller’s information was consistent with the observations of 16 Officer Aleksis when he found a white car parked at the vacant house in a well-known drug 17 area. (DSOF ¶¶ 4, 6). Based on the totality of the circumstances surrounding the stop, 18 Officer Aleksis had reasonable suspicion to stop Plaintiff. Accordingly, the investigatory 19 stop conducted by Officer Aleksis did not violate Plaintiff’s Fourth Amendment rights. 20 21 CONCLUSION 22 As discussed above, Plaintiff has not provided sufficient evidence to create a 23 genuine issue of material fact, and the Court finds that no violation of Plaintiff’s Fourth 24 Amendment rights occurred. Accordingly, summary judgment is granted in favor of 25 Defendant. 26 IT IS THEREFORE ORDERED granting Defendant Officer Ratko Aleksis’s 27 Motion for Summary Judgment (Doc. 135) and vacating oral argument. 28 IT IS FURTHER ORDERED striking Plaintiff’s sur-reply (Doc. 167). 1 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment accordingly. 3 Dated this 3rd day of July, 2019. 4 5 \— fe 7 United States District Tudge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-