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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Refugio Ceyala,

Plaintiff,

v. 

Unknown Toth, et al.,

Defendants.

No. CV-17-00529-TUC-DCB (LAB)

ORDER 

This matter was referred to Magistrate Judge Leslie A. Bowman, pursuant to the 

Rules of Practice for the United States District Court, District of Arizona (Local Rules), 

Rule (Civil) 72.1(a). On March 5, 2020, Magistrate Judge Bowman issued a Report and 

Recommendation (R&R). (Doc. 71.) She recommends that the Court grant summary 

judgment for the Defendants because the shooting of Carlos Valencia was tragic but not an 

excessive use of force. She recommends summary judgment be granted on the state law 

claims because Plaintiff failed to comply with the notice of claim provisions in A.R.S. § 

12-821.01. The Court accepts and adopts the Magistrate Judge’s R&R as the findings of 

fact and conclusions of law of this Court and grants summary judgment for Defendants.

STANDARD OF REVIEW

The duties of the district court in connection with a R&R by a Magistrate Judge are 

set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The 

district court may “accept, reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 

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636(b)(1). Where the parties object to a R&R, “‘[a] judge of the [district] court shall make 

a de novo determination of those portions of the [R&R] to which objection is made.’” 

Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)).

This Court's ruling is a de novo determination as to those portions of the R&R to 

which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992, 

1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th 

Cir.2003) (en banc). To the extent that no objection has been made, arguments to the 

contrary have been waived. Fed. R. Civ. P. 72; see 28 U.S.C. § 636(b)(1) (objections are 

waived if they are not filed within fourteen days of service of the R&R), see also McCall 

v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report 

waives right to do so on appeal); Advisory Committee Notes to Fed. R. Civ. P. 72 (citing 

Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely 

objection is filed, the court need only satisfy itself that there is no clear error on the face of 

the record in order to accept the recommendation)).

The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. 

§ 636(b)(1), they had 14 days to file written objections. See also, Fed. R. Civ. P. 72 (party 

objecting to the recommended disposition has fourteen (14) days to file specific, written 

objections). The Court has considered the objections filed by the Defendants, and the 

parties’ briefs considered by the Magistrate Judge in deciding the Motion for Summary 

judgment.

OBJECTIONS

The Plaintiff, Refugio Ceyala, brings this action in her capacity as personal 

representative of the estate of her deceased son, Carlos Valencia, who was shot and killed 

by Defendant Toth. The Plaintiff filed objections to the R&R. She argues that the Court 

“cannot simply accept the officer’s subjective version of events, but rather must reconstruct 

the event in the light most favorable to the non-moving party and determine whether the

officer’s use of force was excessive under those circumstances.” (Objection (Doc. 72) at 

2.) The Plaintiff is of course correct. Other than the Defendants and Mr. Valencia, 

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deceased, there were four witnesses to the event, but, unfortunately, they did not see the 

actual shooting. Discovery has been completed. It is undisputed that both Defendants were 

in marked police cars and uniforms, therefore, there are no issues regarding any failure by 

Defendants to announce their identities or that Mr. Valencia’s non-compliance was due to 

confusion because it was not clear the Defendants were police officers. 

The Court relies solely on the Plaintiff’s statement of facts (Doc. 56), supporting 

her assertion that summary judgment should be denied, as stated below.

The circumstances of the case, which the Court finds dispositive begin with the 911 

phone call from the manager of the GRM, Gospel Rescue Mission, who reported that Mr. 

Valencia had created a disturbance, was asked to leave, and had stolen a fire extinguisher 

as he left. It is undisputed that the 911 transcript reflects Mr. Valencia was described as 

being a large man, over six feet tall and weighing more than 200 pounds, who was 

“unstable.” The caller described him as having “anger rising up in his voice” and the caller 

sensed “the aggression in him.” (Ps’ SOF (Doc. 56) ¶¶ 2-3.) Plaintiff’s assertion that 

Defendants had no information that Mr. Valencia was violent is simply not true. 

Defendants knew that he was unstable, agitated, and exhibiting signs of aggression and 

anger.

Police Officer Toth was the first Defendant to engage Mr. Valencia. He saw him 

walking with the fire extinguisher, which was two to two and a half feet long and 10 to 15 

pounds, and saw that Mr. Valencia was a large individual as described by the 911 caller. 

Id. ¶ 6-7. Defendant Toth yelled from inside his marked police car at Mr. Valencia to stop. 

Id. ¶ 11. Mr. Valencia did not stop. Instead, he walked faster. Defendant Toth contacted 

dispatch over his radio and reported that Mr. Valencia was being noncompliant. Id. ¶ 13. 

Defendant Toth brought his police car to a stop in front of Mr. Valencia, got out and again 

made contact by standing in front of him, telling him to stop and drop the fire extinguisher. 

When Mr. Valencia again failed to comply with Defendant Toth’s directive, Defendant 

Toth deployed pepper spray. Id. ¶¶ 16-19. At this point, Defendant Toth knew the 

information gleaned from the 911 call related to Mr. Valencia being mentally unstable, 

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angry and aggressive, and he knew that Mr. Valencia was refusing to comply with the 

police directive to stop and drop the fire extinguisher. 

In response to being pepper sprayed, Mr. Valencia raised the fire extinguisher over 

his head and threw it at Defendant Toth, hitting Defendant in the leg, and Mr. Valencia 

turned and ran, with Defendant Toth giving chase. Id. ¶¶ 19-20. 

At this time, Defendant Nunez arrived on the scene. He existed his vehicle and 

ordered Mr. Valencia to stop and get on the ground. Mr. Valencia did not comply. 

Defendant Nunez got out his taser and was surprised that Mr. Valencia ran towards him 

first, before turning and running away. Ignoring Defendant Nunez’ depiction of Mr. 

Valencia’s behavior as aggressive, it is undisputed that the two Defendants gave chase, 

with Officer Nunez continuing to order Mr. Valencia to stop, and get on the ground, and 

Mr. Valencia ignoring Defendants’ commands, running, and yelling profanities at the 

Defendants. Id. ¶¶ 26-27. 

Eventually, Defendant Nunez got close enough to Mr. Valencia to deploy his taser. 

It hit him in the back, but was ineffective. Id. ¶¶ 34-36. After being tased, Mr. Valencia 

confronted Defendant Nunez, “yelling, with his arms up and fists clenched in a fighting 

stance but did not attack Defendant Nunez. Id. ¶ 34. Defendant Nunez again tried to use 

his taser, but it did not work. Id. ¶¶ 35, 43. At this point, Defendant Toth caught up to 

Officer Nunez and Mr. Valencia, and attempted to physically subdue Mr. Valencia. Id. ¶ 

36. While Plaintiff disputes whether Mr. Valencia hit Defendant Toth with his fists and 

knocked him to the ground, Plaintiff admits that Defendant Toth fell to the ground. Id. ¶ 

37.

Nunez called over his radio that they were engaged with a suspect who was 

physically assaulting officers and requested assistance. Id. ¶ 41. With his taser not working, 

Defendant Nunez deployed his firearm. All three were now walking because they were 

tired; Mr. Valencia leading, followed by the Defendants. Id. ¶ 45. Again, Defendant Toth

attempted to physically subdue Mr. Valencia, using pepper spray, but his pepper spray was 

depleted. Id. ¶ 46. This time, Mr. Valencia knocked Defendant Toth down and hit him in 

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the head with his fists. Id. ¶ 48. Again, Mr. Valencia approached Defendant Nunez with 

his hands up, yelling obscenities and acting aggressive. Id. ¶ 54. Mr. Valencia punched 

Defendant Nunez in the head. Id. ¶ 56. Because Defendant Nunez had his firearm out, he 

focused on protecting his firearm from being grabbed by Mr. Valencia. Id. ¶¶ 55 56. Then 

Mr. Valencia turned to Defendant Toth, who had deployed his firearm after his pepper 

spray was depleted. Id. ¶ 57. Mr. Valencia knocked Defendant Toth to the ground twice, 

and they were struggling in close contact. Id. ¶ 60. Defendant Nunez was on the radio to 

advise responding officers of their location. Id. ¶ 59. During this engagement, Defendant 

Toth shot Mr. Valencia twice. Id. ¶ 60. 

These undisputed facts construed in favor of the Plaintiff reflect that Mr. Valencia 

refused to comply with police directives to stop and surrender to their arrest. He assaulted 

both officers when they attempted to arrest him, and he gave them no choice but to 

physically subdue him by force. They first used nonlethal force which was ineffective 

before turning to the use of their guns. 

To prevail on a section 1983 claim based on the Fourth Amendment, the Plaintiff 

must show that the Defendants’ conduct was an unreasonable seizure. (R&R (Doc. 71) at 

7 (citing Sandoval v. Cty. of Sonoma, 912 F.3d 509, 515 (9th Cir. 2018)). The 

reasonableness calculation allows for the fact that police officers, like the Defendants, are 

often forced to make split-second judgments in uncertain and tense circumstances that are 

rapidly evolving. Id. at 7-8 (citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)). Use 

of force “must be judged from the perspective of a reasonable officer on the scene, rather 

than with the 20/20 vision of hindsight.’” Id. 

The Court finds that the Magistrate Judge correctly found the Defendants did not 

use excessive force. It was objectively reasonable to pepper spray and taser Mr. Valencia 

because he refused to comply with verbal commands to stop, drop the fire extinguisher, 

and get on the ground. Rather than complying, Mr. Valencia not only ran away, he

assaulted both Defendants. Under the circumstances, it was reasonable for the Defendants 

to draw their weapons to obtain compliance. When Mr. Valencia again attacked Defendant 

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Toth, who’s weapon was drawn, it was reasonable for Defendant Toth to believe he needed 

to shoot Mr. Valencia to keep him from getting the gun and using it on them. The 

Magistrate Judge correctly assessed the graduated use of force employed by the Defendants 

which culminated in lethal force when Officer Toth shot Valencia twice. (R&R (Doc. 71) 

at 8-11.)

This is not a case where an unarmed emotionally disturbed person, who has 

committed no serious offense, did not pose a risk of flight and presented no objectively 

reasonable threat to officer safety or other individuals. (R&R (Doc. 11) (citing Deorle v. 

Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001)). Mr. Valencia posed a serious threat to 

officer safety. Not addressed by the Magistrate Judge, the Court also finds that he posed a 

risk to the community at large. Officers, like Defendants, may have reasonably believed 

that a mentally disturbed person willing to take on police officers might injure some 

member of the community if let go.

The Magistrate Judge did not reach the question of qualified immunity, which 

requires a court to consider both: (1) whether there has been a violation of a constitutional 

right, and (2) whether that right was clearly established at the time of the officer's alleged 

misconduct. Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014). Because the Magistrate 

Judge found no constitutional violation, there was no need to reach the second prong of the 

qualified immunity analysis. This Court agrees that the question of whether there has been 

a constitutional violation does not involve disputed facts which, when viewed most 

favorably to the Plaintiff, could support a rational jury finding in Plaintiff’s favor. The 

Court has, however, also reviewed the case law submitted by the Plaintiff and finds that 

there is no clearly established law that would have led reasonable police officers to 

understand the actions taken here were unlawful. The law does not “require a case directly 

on point, but existing precedent must have placed the ... constitutional question beyond 

debate.” Ashcroft v. al–Kidd, 563 U.S. 731, 740 (2011). There must be precedent involving 

similar facts to provide an officer notice that a specific act is constitutionally unlawful. 

Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curium). The Plaintiff has offered none 

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and the Court has found no case to suggest deploying lethal force is excessive in 

circumstances like those faced by the Defendants here.

Finally, the Defendants seek summary judgment on the state law claims based on 

A.R.S. § 12-821.01, which requires the claimant, Plaintiff, to have filed a notice of claim 

and settlement offer. Here, she sues the Defendants individually but served her notices of 

claim on the City Clerk of the City of South Tucson. Plaintiff’s argument that such service 

is proper was rejected in Simon v. Maricopa Med. Ctr., 234 P.3d 623, 629 (Ariz. App. 

2010). The Court adopts the Magistrate Judge’s recommendation that summary judgment 

be granted for Defendants on Plaintiff’s state law claims.

CONCLUSSION

The Court finds that Magistrate Judge Bowman issued a well-reasoned R&R, which 

explains the law and the facts. After de novo review of the issues raised in Plaintiff's 

objections, this Court agrees with the findings of fact and conclusions of law made by the 

Magistrate Judge in her R&R for determining the pending Motion for Summary Judgment.

The Court adopts it, and for the reasons stated in the R&R, the Court grants summary 

judgment for Defendants. 

Accordingly,

IT IS ORDERED that after a full and independent review of the record, in respect 

to the objections, the Magistrate Judge's Report and Recommendation (Doc. 71) is accepted 

and adopted as the findings of fact and conclusions of law of this Court.

IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment 

(Doc. 48) is GRANTED.

IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment, 

accordingly.

Dated this 29th day of September, 2020.

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