Badia v. City of Casa Grande

• Decision Date: 16 March 1999
• Docket Number: No. 2 CA-CV 98-0122.,2 CA-CV 98-0122.
• Citation: 195 Ariz. 349,988 P.2d 134
• Parties: Delores BADIA, individually and as personal representative of the Estate of Ida Perez, and on behalf of Natalie Avilez, Danielle Marcus, and Belen Murrillo, natural children of Ida Perez, Plaintiff/Appellant, v. CITY OF CASA GRANDE, a political subdivision of the State of Arizona; Kent A. Myers and Angela Myers, husband and wife; John Tena and Monica Tena, husband and wife; G.M. Clark and Tammy Clark, husband and wife; Dennis Mercer, Defendants/Appellees.
• Court: Arizona Court of Appeals

988 P.2d 134

195 Ariz. 349

Delores BADIA, individually and as personal representative of the Estate of Ida Perez, and on behalf of Natalie Avilez, Danielle Marcus, and Belen Murrillo, natural children of Ida Perez, Plaintiff/Appellant, v. CITY OF CASA GRANDE, a political subdivision of the State of Arizona; Kent A. Myers and Angela Myers, husband and wife; John Tena and Monica Tena, husband and wife; G.M. Clark and Tammy Clark, husband and wife; Dennis Mercer, Defendants/Appellees.

No. -0122.

Court of Appeals of Arizona, Division 2, Department A.

March 16, 1999.

Review Denied October 26, 1999.

Surrano & Massey, P.C. By Charles J. Surrano and John N. Wilborn, Phoenix, Attorneys for Plaintiff/Appellant.

Mesch, Clark & Rothschild, P.C., By Tom R. Clark and Scott H. Gan, Tucson, Attorneys for Defendants/Appellees.

OPINION

PELANDER, Presiding Judge.

¶ 1 Plaintiff/appellant Delores Badia, individually and on behalf of the estate and children of her deceased daughter, Ida Perez, appeals from a summary judgment granted in favor of defendants/appellees the City of Casa Grande; Kent Myers, Casa Grande City Manager; and Officers John Tena, G.M. Clark, and Dennis Mercer of the Casa Grande Police Department. We affirm.

BACKGROUND

¶ 2 "On appeal from a grant of summary judgment, we view all facts and reasonable inferences therefrom in the light most favorable to the party against whom judgment was entered." Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 2, 965 P.2d 47, ¶ 2 (App.1998). At approximately 3:00 a.m. on October 17, 1993, Perez was murdered by her boyfriend, Julio Murrillo. Apparently Murrillo later was convicted of second-degree murder for the slaying. Officer Tena had arrested Perez at around 9:45 p.m. on the previous evening, after Officer Mercer had seen her back her truck into a parked vehicle. Murrillo and Gloria Harrison, a relative of Perez, were passengers in the truck at the time.

¶ 3 When Officer Tena approached Perez to investigate what had happened, he smelled a faint odor of alcohol coming from her and observed that she had watery, bloodshot eyes and mumbled speech. Perez initially gave a false first name to Officer Tena and, after she admitted having done so, Tena arrested her for "false reporting." He handcuffed her and placed her in Officer Mercer's vehicle. After Tena walked away, Perez slipped one hand out of the handcuffs and began banging the patrol car windows with the cuffs. When Tena removed Perez from the vehicle, she became physically combative and kicked him. Tena and Mercer then put the handcuffs back on her and "hobbled" her.¹ They placed her face-down in the back seat of Mercer's vehicle, and he transported her to the police station.

¶ 4 During the drive, Perez was "irritated with Officer Tena" and called him names. At the police station, Sergeant Ellsworth, the "officer in charge," met Mercer and Perez in the parking lot, and the officers removed the hobble but kept Perez handcuffed. They took Perez to an interview room, where Ellsworth talked to her for a few minutes until she "settled down." When Tena came in, however, she again started to call him names. After Ellsworth returned to the room and talked to Perez for a while, she agreed to cooperate with the rest of the investigation and processing. Ellsworth testified in his deposition that he observed that Perez had been drinking, but that she was oriented and conversant. He did not "remember a strong odor of alcohol" and did not believe she was "snockered or falling-down drunk."

¶ 5 Tena testified in his deposition that while Perez was in custody, a dispatcher ran a "driver's license check" through the state motor vehicle division and determined that Perez's license was suspended, but that she did not have a prior conviction for driving under the influence of alcohol (DUI). The police also ran a computer check on Perez's name "for her physical information, Social Security number, [and] date of birth," and ran a "warrants check" through a different state computer system. After reviewing the information that was obtained and discussing the earlier accident and Perez's conduct at the scene, Ellsworth and Tena charged Perez with various misdemeanor offenses, including driving with a suspended license, DUI, and resisting arrest.

¶ 6 At some point during the evening, Perez agreed to take an "intoxilyzer test." Tena transported her to the Pinal County substation for that test because the Casa Grande Police Department did not have an intoxilyzer machine. When they arrived at the substation, however, Perez refused to take the test and, instead, signed an informed consent form acknowledging that she knew the consequences of refusing the test. Tena completed his paperwork and "waited for someone to pick her up."

¶ 7 Harrison testified in her deposition that a woman dispatcher from the substation had telephoned to inform her that Perez would be released. According to Harrison, the dispatcher stated that Perez wanted Harrison to pick her up and did not want Harrison to bring Murrillo with her. Although Harrison related that information to Murrillo, he accompanied Harrison to the substation. Upon their arrival there, Harrison spoke through a plexiglass window with the same dispatcher with whom she had spoken by telephone earlier, who immediately released Perez to Harrison. Murrillo was with Harrison and, according to Harrison, Perez was intoxicated but "acting okay" at that time. As the three of them started to leave the substation, but while they were still inside, Perez pushed Murrillo after he made a derogatory comment, and he shoved her back. Perez almost lost her balance but did not fall down. According to Harrison, Perez and Murrillo also argued and shoved one another outside in the parking lot after they had left the substation.

¶ 8 The county substation dispatcher, who was not identified or deposed in this case, released Perez sometime before 1:00 a.m. Harrison drove Perez and Murrillo directly from the substation to a convenience store because Perez wanted to purchase more beer. Harrison had not been drinking at all that night. Perez and Murrillo then resumed their drinking. Harrison testified that at some point later Perez told her that she (Perez) "had told the police that night that she did not want [Murrillo] to pick her up" and that he had "threatened to kill her a month earlier." Murrillo stabbed Perez to death at her apartment within approximately two hours after she was released.

¶ 9 In her amended complaint in this action, plaintiff alleged that defendants "knew or should have known of a pattern of domestic violence perpetrated against" Perez by Murrillo at the time they released her, and that the police department "failed to adequately protect" Perez from Murrillo "by treating her domestic violence complaints with less priority."² Plaintiff claimed, inter alia, that the individual police officers and the City "deprived Ms. Perez of her constitutional rights to equal protection under the law, under the Fourteenth Amendment to the United States Constitution," in violation of 42 U.S.C. § 1983. In a separate negligence count, plaintiff also alleged that defendants had "established a special relation with Ida Perez by acts including arresting and/or detaining her knowing or having reason to know that she was intoxicated," "had a duty to take reasonable precautions" for her safety, had negligently breached that duty by releasing her to Murrillo, and had thereby proximately caused her death. Plaintiff sought compensatory and punitive damages and an award of attorneys' fees.

¶ 10 In their motion for summary judgment, defendants argued that plaintiff had failed to present any evidence of an unconstitutional policy or custom entitling her to relief under § 1983; that the individual officers were shielded from § 1983 liability by qualified immunity; and that plaintiff had failed to introduce evidence that the officers had been grossly negligent, required by A.R.S. § 12-820.02(A) in order to establish their liability. In her response, plaintiff claimed for the first time that defendants had violated § 1983 by depriving Perez of her due process rights under the Fourteenth Amendment by releasing her to Murrillo.³ She also claimed for the first time that Officers Mercer and Tena had used excessive force in violation of § 1983 when they "hobbled" and "hogtied" Perez and placed her face-down in the patrol car. After the parties stipulated to a change of venue from Pinal County to Pima County, the trial court granted defendants' motion. This appeal followed.

DISCUSSION

¶ 11 Summary judgment is proper "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). "On appeal from a summary judgment, we must determine de novo whether there are any genuine issues of material fact and whether the trial court erred in applying the law." Bothell, 192 Ariz. at ¶ 8, 965 P.2d at ¶ 8. We also review de novo statutory interpretation issues and constitutional claims, Little v. All Phoenix South Community Mental Health Center, Inc., 186 Ariz. 97, 919 P.2d 1368 (App.1995), and will affirm the trial court's ruling if it is correct on any ground. Glaze v. Marcus, 151 Ariz. 538, 729 P.2d 342 (App.1986).

I. Section 1983 Due Process Claim

¶ 12 Plaintiff first contends the trial court "[f]ailed to address [her] § 1983 due process claim under the explicit exception ... for incarceration and commitment" recognized in DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989).⁴ That "exception," however, does not apply here.

¶ 13 In DeShaney, the Supreme Court held that government agents had no duty under the due process clause to affirmatively...