Trevizo v. Adams

• Decision Date: 26 July 2006
• Docket Number: No. 05-4110.,No. 05-4098.,05-4098.,05-4110.
• Citation: 455 F.3d 1155
• Parties: Carlos TREVIZO, Plaintiff, Carlos Perez, Maria Del Carmen Cruz, Carmelo Cruz, Laurentino Rodriguez, Ashley Rodriguez, Sylvia Rodriguez, Gloria E. Villalobos, Pedro Campos, Jiverto Baptista, and Rogelio Gomez, for themselves and on behalf of all others similarly situated, Plaintiffs-Appellants/Cross-Appellees, v. Robe ADAMS, personally and in his capacity as a Salt Lake City Police Officer, Defendant, Salt Lake City Corporation, Dee Dee Corradini, personally and in her capacity as Mayor of Salt Lake City, Ruben Ortega, personally and in his capacity as Police Chief of Salt Lake City, Melody Gray, personally and in her capacity as a Bountiful City Police Officer, Russell Amott, James Bloomer, Amy Despain, Tim Doubt, Wanda Gabbetas, Craig Gleason, Greg Hagelberg, Marty Kaufman, Phil Kirk, John Ritchie, Michael Ross, Morgan Sayes, Troy Siebert, Chad Steed, and Marty Vuyk, personally and in their capacities as Salt Lake City Police Officers, Defendants-Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

455 F.3d 1155

Carlos TREVIZO, Plaintiff Carlos Perez, Maria Del Carmen Cruz, Carmelo Cruz, Laurentino Rodriguez, Ashley Rodriguez, Sylvia Rodriguez, Gloria E. Villalobos, Pedro Campos, Jiverto Baptista, and Rogelio Gomez, for themselves and on behalf of all others similarly situated, Plaintiffs-Appellants/Cross-Appellees, v. Robe ADAMS, personally and in his capacity as a Salt Lake City Police Officer, Defendant, Salt Lake City Corporation, Dee Dee Corradini, personally and in her capacity as Mayor of Salt Lake City, Ruben Ortega, personally and in his capacity as Police Chief of Salt Lake City, Melody Gray, personally and in her capacity as a Bountiful City Police Officer, Russell Amott, James Bloomer, Amy Despain, Tim Doubt, Wanda Gabbetas, Craig Gleason, Greg Hagelberg, Marty Kaufman, Phil Kirk, John Ritchie, Michael Ross, Morgan Sayes, Troy Siebert, Chad Steed, and Marty Vuyk, personally and in their capacities as Salt Lake City Police Officers, Defendants-Appellees/Cross-Appellants.

No. 05-4098.

No. 05-4110.

United States Court of Appeals, Tenth Circuit.

July 26, 2006.

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Dale F. Gardiner, Parry Anderson & Gardiner, Salt Lake City, UT, for Plaintiffs-Appellants/Cross-Appellees.

Morris O. Haggerty, Senior City Attorney, Salt Lake City Attorney's Office, Salt Lake City, UT, for Defendants-Appellees/Cross-Appellants.

Before KELLY, TYMKOVICH, Circuit Judges and EAGAN, District Judge.^*

TYMKOVICH, Circuit Judge.

This appeal arises out of a § 1983 action filed against Salt Lake City and various individual law enforcement officers. The plaintiffs were owners, employees, and customers of Panaderia La Diana, a Latino-owned business that served as a combination restaurant, tortilla factory, and bakery in Salt Lake City. The civil rights claims arise from the manner in which police executed a search warrant of Panaderia La Diana in 1997. Thirty-three individuals initially filed suit alleging gross improprieties from the SWAT-style police raid. They also sought class action certification on behalf of the remaining individuals who were subjected to the raid but failed to file suit.

After numerous pretrial delays, the district court issued a lengthy summary judgment order in 2004, which completely disposed of the case as to ten of the plaintiffs and partially disposed of the case as to the remaining plaintiffs. This appeal involves the ten plaintiffs against whom complete summary judgment was issued. They contest the district court's decision to dismiss their claims and also challenge its prior denial of their motion for class certification.

Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the decisions below.

I. Factual and Procedural Background

Prior to the events that gave rise to this case, Panaderia La Diana had been placed under surveillance by law enforcement due to numerous reports of drug sales on the premises. As part of their investigation, undercover police purchased cocaine and heroin from eight different persons in the parking lot and purchased the prescription drug Darvon from an employee inside the restaurant. The police also obtained information about potential firearms located on the premises.

At mid-afternoon on April 24, 1997, Salt Lake City police, in conjunction with officers from other agencies, executed a search warrant at Panaderia La Diana, seeking evidence of the purported drug activity occurring on the property. The warrant was executed pursuant to high risk procedure and, throughout the course of the search, at least forty-seven SWAT members and other law enforcement officers detained approximately eighty people. Six people were initially arrested, including the employee who had previously sold Darvon to an undercover officer. However, the search produced no new evidence of illegal activity, and the charges were later dropped.

Nearly two years later, on March 8, 1999, thirty-three of the persons detained by law enforcement joined in filing suit under 42 U.S.C. § 1983 against Salt Lake City and individual police officers involved in the raid.¹ The plaintiffs claimed they suffered maltreatment at the hands of law enforcement officers and alleged a litany of horrific facts to support their claims. The allegations, which were set out at length in the district court's thorough opinion, see Panaderia La Diana, Inc. v. Salt Lake City Corp., 342 F.Supp.2d 1013, 1016-29 (D.Utah 2004), describe a wide range of physical and verbal abuse of persons at the scene, including pregnant women and children.

On July 22, 2004, over five years after the plaintiffs filed suit, the City noticed depositions for a number of plaintiffs for July 30, the last day of the discovery period. On that date, for reasons that are disputed by the parties, the following ten noticed plaintiffs failed to appear at the appointed place: Carlos Perez, Maria Del Carmen Cruz, Carmelo Cruz, Laurentino Rodriguez, Ashley Rodriguez, Silvia Rodriguez, Gloria E. Villalobos, Pedro Campos, Jiverto Baptista, and Rogelio Gomez. These plaintiffs were therefore never deposed.

After discovery was closed but before the motions deadline had passed, the plaintiffs moved for certification as a class action pursuant to Federal Rule of Civil Procedure 23. In addition, the City moved for summary judgment pursuant to Rule 56. The court denied the plaintiffs' request for class certification and granted summary judgment against the ten plaintiffs who failed to appear at their own depositions.²

These ten plaintiffs appeal the judgment entered against them as well as the denial of class certification. The City cross-appeals the certification issue.

II. Discussion

A. Summary Judgment Against Plaintiffs

When a party moves for summary judgment, it will be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Plaintiffs seeking to overcome a motion for summary judgment may not "rest on mere allegations" in their complaint but must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added); see Lujan v. Nat'l Wildlife Fed'n., 497 U.S. 871, 902, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ("[C]onclusory allegations unsupported by specific evidence will be insufficient to establish a genuine issue of fact.") (internal quotations omitted).

This does not mean that evidence must be submitted "in a form that would be admissible at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Indeed, parties may submit affidavits even though affidavits are often inadmissible hearsay at trial on the theory that the same facts may ultimately be presented at trial in an admissible form. Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir.2005). However, "[t]o determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury" in some form. Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir.2006) (citing Truck Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1216 (10th Cir.2004) (affirming summary judgment, in light of the available evidence, because "[j]ury verdicts may not be based on speculation or inadmissible evidence or be contrary to uncontested admissible evidence")).

Having reviewed this issue de novo and applied the same standard as the district court, Burnham v. Humphrey Hospitality Reit Trust, Inc., 403 F.3d 709, 714 (10th Cir.2005), we come to the same conclusion — that these plaintiffs failed to "put forward any evidence in their favor" that satisfies these standards, Panaderia, 342 F.Supp.2d at 1030. Absent deposition testimony or other competent evidence of what occurred, it was incumbent upon these plaintiffs to provide—at the very least—affidavits detailing what happened to them. None of these ten plaintiffs did so. Nor, after the district court's decision alerted them to their deficiencies, did they ask the court to reconsider its ruling and, at that time, seek to supplement the record.

As it is, the plaintiffs can only argue on appeal that (1) the City never contested their presence at Panaderia La Diana, and (2) other previously joined plaintiffs (who had provided deposition testimony to support their own claims) made sweeping statements about the group as a whole. However, neither physical presence on the premises, nor vague, generalized statements from others suggesting that "pretty much everyone was treated the same way," Applt. Appx. at 360, is sufficient to constitute "specific facts showing there is a genuine issue for trial as to the essential elements" of these plaintiffs' claims. See Flight Concepts Ltd. P'ship v. Boeing Co., 38 F.3d 1152, 1156 (10th Cir.1994). The record is particularly deficient considering the plaintiffs had over five years to prepare their case, and summary judgment was granted only one month before the scheduled trial in the matter.

Because these plaintiffs failed to meet the requirements of Rule 56, summary judgment is appropriate. We therefore uphold the district court's decision.³

B. Denial of Plaintiffs' Motion for Class Certification

Plaintiffs also appeal on behalf of other potential claimants who were at the restaurant during the raid but did not join the lawsuit, arguing the district court should have certified their case as a class action. The district court initially denied certification on the ground of untimeliness. Subsequently, however, the court amended its prior order and denied certification based on the plaintiffs' failure to meet two elements set forth in Rule 23—numerosity and commonality.

"Whether the district court applied the correct legal standard in its decision to grant or deny class certification is...