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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Mussalina Muhaymin,

Plaintiffs,

v. 

City of Phoenix, et al.,

Defendants.

No. CV-17-04565-PHX-SMB

SEALED ORDER 

Pending before this Court is Defendants City of Phoenix, Antonio Tarango 

(“Tarango”), Officer Oswald Grenier, Officer Kevin McGowan, Officer Jason Hobel, 

Officer Ronaldo Canilao, Officer David Head, Officer Susan Heimbigner, Officer James 

Clark, Officer Dennis Leroux, Officer Ryan Nielsen, and Sergeant Steven Wong’s 

(collectively “Defendants”) sealed Motion for Summary Judgment, (Doc. 273), which is 

supported by Defendants’ sealed Statement of Facts in Support of their Motion for 

Summary Judgment. (Doc. 274.) Plaintiff Mussalina Muhaymin filed her opposition to the 

motion, (Doc. 291), and filed a sealed Statement of Disputed Facts and Statement of Facts 

in Support of Opposition to Defendants’ Motion for Summary Judgment. (Doc. 292.) 

Defendants filed a reply. (Doc. 298.) Oral argument was held on May 4, 2021. The Court 

has considered the pleadings, evidence, and relevant law and now grants in part and denies

in part Defendants’ Motion for Summary Judgment for the reasons explained below.

I. BACKGROUND

A. Factual Background
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This case arises out of the death of Muhammed Muhaymin Jr. (“Muhaymin”) while 

he was being taken into custody by Phoenix Police Department. The facts of this case are 

as follows:

On January 4, 2017, Muhaymin entered the Maryvale Community Center in 

Phoenix, Arizona, to use the restroom. (Doc. 274 ¶ 1.) Muhaymin had a chihuahua with 

him named “Chiquita” which was not on a leash. (Id. ¶ 2.) Defendant Tarango, the 

supervisor of the community center, told Muhaymin to leave because Chiquita was not 

leashed and not under his control. (Doc. 292 at 3-4, ¶ 6.) As Tarango and Muhaymin argued 

about the dog, Muhaymin walked towards the restroom. (Doc. 274 ¶ 8.) Tarango stepped 

in front of Muhaymin and the two bumped into each other. (Doc. 292 at 4, ¶ 8.) Tarango 

then directed another employee, Hannah Glemba, to call the police. (Doc. 274 ¶ 9.) Phoenix 

police officers responded to the center. (Doc. 274 ¶ 10.) The call was dispatched as an 

assault. (Id.) When the officers arrived, Muhaymin was holding Chiquita. (Id. ¶ 11.) 

Officers Oswald Grenier, Jason Hobel, Ronaldo Canilao, and David Head arrived at the 

center and agreed to allow Muhaymin to use the restroom if he held Chiquita. (Doc. 274 

¶¶ 12-13.) Before entering the restroom, Muhaymin gave his identification information to 

the officers. (Id. ¶ 14.) While Muhaymin was in the restroom for approximately six 

minutes, the officers discovered that Muhaymin had an outstanding misdemeanor warrant

from the Mesa Police Department. (Id. ¶ 15.) Officer Hobel remarked to Officers Grenier 

and Head that Muhaymin was “a little 918.” (Doc. 292 ¶ 23.) “918” is a common phrase 

used by police officers to describe “people that are mentally unstable.”1(Doc. 292 at 29, ¶ 

24.) When Muhaymin exited the restroom, all four officers walked him outside the center. 

(Doc. 274 ¶ 19.) Once outside, officers Grenier and Canilao informed Muhaymin of the 

existence of the warrant and advised him that he was under arrest. (Id.) 

The remaining facts are largely disputed by the parties. However, the Court has 

gleaned the following from the evidence presented by the parties and the bodycam footage 

1

In fact, the evidence reveals that Muhaymin suffered from Schizophrenia (Disorganized 

Type). (Doc. 292 ¶ 2.) 
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of the officers: Upon being advised that he was under arrest, Muhaymin asked what the 

warrant was for and expressed concern that no one would look after Chiquita. An officer

told him that they would “find someone” to watch Chiquita. (Doc. 292 at 7, ¶ 24.) 

Muhaymin continued to hold Chiquita and ignored commands from the officers to put his 

hands behind his back. Instead, he asked to be able to call his “sensei” first. (Doc. 292 at 

30, ¶ 29.) Despite repeated commands to put his hands behind his back, Muhaymin refused 

to drop his dog and present his arms for arrest. Officers warned Muhaymin that they would

have to take him to the ground if he didn’t comply. As Muhaymin continued to refuse to 

comply with the officers’ orders, the officers placed Muhaymin against a glass wall to get 

him to let go of the dog so that his hands could be handcuffed behind his back. (Doc. 274 

¶ 27.) Officer Canilao, with Officer Hobel’s assistance, used a baton under Muhaymin’s 

right arm as leverage to pry his interlocked hands free and to release Chiquita. (Id. ¶ 28.) 

Once the officers released Chiquita from Muhaymin’s hold, Muhaymin continued to resist 

officers’ attempt to handcuff him. (Doc. 274 ¶ 29.) The four officers took him to the ground 

and eventually “double-cuffed” his hands behind his back after a struggle that lasted 

approximately two minutes. (Doc. 274 ¶ 29.) Muhaymin yelled “Ok!” multiple and times 

as the four officers forced him to the ground. (Doc. 292 ¶ 33.) One of the officers can be 

heard on the bodycam footage saying, “Now you’re gonna be going for a felony now, 

dumbass. Now it’s a felony. You understand?” (Doc. 292 at 31, ¶ 34.) The interlocked pair 

of handcuffs gave Muhaymin a few extra inches than he would have had if he was 

restrained using only one pair of handcuffs. During the scuffle, Officer Grenier delivered 

an elbow strike to the rear lateral muscle in Muhaymin’s left shoulder to release his arms 

from under his body so that he could be handcuffed. (Id. at 30, ¶ 30; 31, ¶ 35.) As 

Muhaymin was laying prone on the sidewalk being handcuffed, Officer Hobel placed his 

knee on Muhaymin’s head where it remained for about forty seconds. (Doc. 292 at 31, ¶ 

38.) 

After they had handcuffed him, Muhaymin was walked to the parking lot as some

of the officers lifted him by his arms. (Doc. 292 at 30-31, ¶ 33.) About halfway to the police 
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SUV, the officers lifted Muhaymin by his arms and told him, “Stand your ass up.” (Doc. 

292 at 32, ¶ 42.) Upon arriving at the police SUV, the officers attempted to search him. 

(Doc. 274 ¶ 34.) Officers Canilao and Hobel put Muhaymin’s body against the hood of the 

police SUV. During the search officers Canilao and Hobel push up on Muhaymin’s doublecuffed arms and his arms end up over his head so that his hands went from behind his body 

to in front of his body. Muhaymin can be heard yelling as his arms go up and over his head 

and in front of his body. (Doc. 292 at 10, ¶ 38.) It is disputed as to whether the officers 

forced Muhaymin’s arms over his head or whether Muhaymin raised his arms over his head 

on his own. (Doc. 274 ¶ 38.)

Officers then took Muhaymin to the ground a second time to re-handcuff him. (Doc. 

274 ¶ 39.) As officers take him to the ground, Muhaymin states, “Please stop.” (Doc. 292

at 32, ¶ 48.) Additional officers were dispatched for assistance and several arrived at the 

scene while Muhaymin was on his side with multiple officers holding him down.2(Doc. 

274 ¶ 41.) Muhaymin engaged in “passive” resistance during the ensuing struggle, meaning 

that he resisted arrest without attempting to assault the officers. (Doc. 274 ¶ 43.) Bodycam 

footage shows that as many as four or five officers at a time place their body weight on 

Muhaymin during this struggle to counteract his resistance. (Doc. 292 at 13, ¶ 44.) 

Muhaymin yelled three times during the struggle that he couldn’t breathe. (Doc. 292 at 36, 

¶ 52.) Nonetheless, officers continued to place their weight on Muhaymin as they struggled 

to get his hands behind his back. Muhaymin was moved from his side to the prone position

during the struggle, and officers were continually adjusting their weight and position on 

him throughout the struggle. (Doc. 292 at 36, ¶ 51.) Officer Grenier’s knee was on 

Muhaymin for a total of around three minutes during the struggle, with his knee placed on 

Muhaymin’s shoulders and neck area for a substantial portion of that time. (Id. at 33, ¶ 50.) 

With additional officers assisting, the double set of handcuffs were disconnected from the 

front of Muhaymin, and the officers were able to re-handcuff Muhaymin with a single pair 

2 While Plaintiff disputes that Muhaymin was on his side and claims that he was laying 

prone, the bodycam footage cited by Plaintiff proves otherwise. 
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of cuffs behind his back. (Doc. 274 ¶ 53.) As officer’s secured the handcuffs behind 

Muhaymin’s back, Muhaymin vomited, and all officers removed their bodyweight from 

his back. (Doc. 292 at 17, ¶ 58.) Immediately after he vomited, an officer on the bodycam 

footage can be heard saying “call fire.” (Doc. 274 Ex. 68.) About 25 seconds after he 

vomited, officers rolled Muhaymin over onto his side and initiated resuscitative efforts 

since he had stopped breathing. (Doc. 292 at 37, ¶¶ 59-60.) After paramedics arrived, 

Muhaymin was transported to Maryvale Hospital and pronounced deceased at 10:39 A.M. 

(Doc. 274 ¶ 63.) The autopsy pathologist determined that Muhaymin died of “cardiac arrest 

in the setting of coronary artery disease, psychiatric disease, acute methamphetamine 

intoxication, and physical exertion during law enforcement subdual.” (Doc. 274 ¶ 66.) 

Muhaymin’s cause of death is disputed by the parties. While Defendants’ expert agreed 

with the autopsy, Plaintiffs’ expert instead opined that Muhaymin died from asphyxiation. 

(Doc. 292 at 19, ¶ 66.) The toxicology results showed Muhaymin had over five times the 

toxic level of methamphetamine in his system at his death. (Doc. 274 ¶ 68.) 

Methamphetamines are known for their stimulant effects, including increased energy, 

endurance, strength, and aggression. (Id. ¶ 71.) Defendants noted occasions that Muhaymin 

displayed incredible strength during the struggle. (Id. ¶¶ 31, 40, 42, 44, 46, 50.) Officers in 

the bodycam footage can be heard on several occasions noting Muhaymin’s exceptional 

strength. (Id., Ex. 73 at 24:10, 25:00.)

After review of the officers’ actions, the Phoenix Police Department’s Use of Force 

Board recommended that the officers’ actions “be designated as in accordance with the 

Department’s policy.” (Doc. 292 at 23, ¶ 80.) 

B. Procedural Background

On February 20, 2019, the Court granted in part and denied in part Defendants’

Motion to Dismiss, which dismissed four claims from Plaintiff’s First Amended 

Complaint. (Doc. 67.) On October 31, 2019, the Court granted the parties stipulation to 

dismiss Plaintiff’s loss of income claims against all Defendants. (Doc. 96.) Plaintiff’s 

remaining claims are: Count I: § 1983 Claim for Excessive Force; Count II: § 1983 Claim 
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for Failure to Protect and Intervene; Count III: 42 U.S.C. § 12131 Claim for ADA 

Discrimination; Count VII: Wrongful Death and Survival Action-Excessive Use of Force 

(A.R.S. § 13-410); Count VIII: Wrongful Death and Survival Action-Battery; Count IX: 

Wrongful Death and Survival Action-Intentional Infliction of Emotional Distress; Count 

X-Wrongful Death and Survival Action-Negligent Infliction of Emotional Distress; Count 

XI: Wrongful Death and Survival Action: Negligence; Count XII: Wrongful Death and 

Survival Action-Gross Negligence; Count XIII: Arizona Civil Rights Act Discrimination; 

and Count XIV: Wrongful Death and Survival Action-Negligent Hiring, Supervision, 

Retention, and/or Training. 

II. LEGAL STANDARD

Summary judgment is appropriate when “there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). A material fact is any factual issue that might affect the outcome of the case under 

the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could 

return a verdict for the non-moving party. Id. “A party asserting that a fact cannot be or is 

genuinely disputed must support the assertion by . . . citing to particular parts of materials 

in the record” or by “showing that materials cited do not establish the absence or presence 

of a genuine dispute, or that an adverse party cannot produce admissible evidence to 

support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). The court need only consider the cited 

materials, but it may also consider any other materials in the record. Id. 56(c)(3). Summary 

judgment may also be entered “against a party who fails to make a showing sufficient to 

establish the existence of an element essential to that party’s case, and on which that party 

will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Initially, the movant bears the burden of demonstrating to the Court the basis for the 

motion and “identifying those portions of [the record] which it believes demonstrate the 

absence of a genuine issue of material fact.” Id. at 323. If the movant fails to carry its initial 

burden, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co. v. Fritz 
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Cos., 210 F.3d 1099, 1102–03 (9th Cir. 2000). If the movant meets its initial responsibility, 

the burden then shifts to the nonmovant to establish the existence of a genuine issue of 

material fact. Id. at 1103. The nonmovant need not establish a material issue of fact 

conclusively in its favor, but it “must do more than simply show that there is some 

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio 

Corp., 475 U.S. 574, 586 (1986). The nonmovant’s bare assertions, standing alone, are 

insufficient to create a material issue of fact and defeat a motion for summary judgment. 

Liberty Lobby, 477 U.S. at 247–48. “If the evidence is merely colorable, or is not 

significantly probative, summary judgment may be granted.” Id. at 249–50 (citations 

omitted). However, in the summary judgment context, the Court believes the nonmovant’s 

evidence, id. at 255, and construes all disputed facts in the light most favorable to the nonmoving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). If “the evidence 

yields conflicting inferences [regarding material facts], summary judgment is improper, 

and the action must proceed to trial.” O’Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 

1150 (9th Cir. 2002). Where there is video evidence of a disputed incident and a parties’ 

version of the facts differs from that video at the summary judgment stage, “a court should 

not adopt that version of the facts for purposes of ruling on a motion for summary 

judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). 

III. PLAINTIFF’S STATEMENT OF FACTS

Defendants, in their reply, argue that Court should disregard Plaintiff’s statement of 

facts because it includes explanation and argument about Plaintiff’s position. LRCiv 56.1 

“‘does not permit explanation and argument supporting the party’s position to be included 

in the...statement of facts.” Marceau v. Int’l Bhd. Of Elec. Workers, 618 F. Supp. 2d 1127, 

1141 (D. Ariz. 2009) (quoting Pruett v. State, 606 F. Supp. 2d 1065, 1075 (D. Ariz. 2009)).

A court may disregard paragraphs in a party’s statement of facts where improper argument 

is present. See Pruett, 606 F. Supp. 2d at 1075. Defendants’ argument has merit. Plaintiff’s 

Statement of Disputed Facts and Statement of Facts in Support of Opposition to 
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Defendant’s Motion for Summary Judgment contains explanation and argument.3 As a 

remedy, the Court will disregard any explanation or argument made in Plaintiff’s statement 

of facts and will only consider factual citations from Plaintiff. 

IV. ANALYSIS

A. Qualified Immunity

1. Qualified Immunity Rule of Law

“The doctrine of qualified immunity protects government officials ‘from liability 

for civil damages insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Pearson v. 

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982)). “Qualified immunity shields federal and state officials from money damages 

unless a plaintiff pleads facts showing (1) that the official violated a statutory or 

constitutional right, and (2) that the right was ‘clearly established’ at the time of the 

challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. 

Fitzgerald, 457 U.S. 800, 818 (1982)). “When this test is properly applied, it protects ‘all 

but the plainly incompetent or those who knowingly violate the law.’” Hernandez v. City 

of San Jose, 897 F.3d 1125, 1132-33 (9th Cir. 2018) (quoting al-Kidd, 563 U.S. at 743)).

A government official’s conduct violates clearly established law when, at the time of the 

challenged conduct, the contours of the right are sufficiently clear such that “every 

‘reasonable official would [have understood] that what he is doing violates that right.’” alKidd, 563 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). While 

a case directly on point is not required, “existing precedent must have placed the statutory 

or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741 (citations omitted). 

Where excessive force is at issue, police officers “are entitled to qualified immunity unless 

existing precedent ‘squarely governs’ the specific facts at issue.” Kisela v. Hughes, 138 

3 For example, paragraph 2 of Plaintiff’s disputed statement of facts contains ample 

explanation and even cites to caselaw. This is clearly improper. There are many other 

examples where Plaintiff utilizes explanation and argument in her statement of facts. (Doc. 

292 at 2-3, ¶ 2.)
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S.Ct. 1148, 1153 (2018) (citing Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)). To be clearly 

established, the court must identify a case “‘where an officer acting under similar 

circumstances’” was held to have violated the constitutional right at issue. S.B. v. Cty. of 

San Diego, 864 F.3d 1010 (9th Cir. 2017). Thus, liability will not attach unless there is “‘a 

case where an officer acting under similar circumstances ... was held to have violated the 

Fourth Amendment.’” Emmons v. City of Escondido, 921 F.3d 1172, 1174 (9th Cir. 2019)

(quoting White v. Pauly,137 S.Ct. 548, 552 (2017)). The plaintiff bears the burden of 

showing that the rights allegedly violated were clearly established. Shafer v. Cty. of Santa 

Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017) (citation omitted).

The Supreme Court has repeatedly “stressed the importance of resolving immunity 

questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 

(1991) (citations omitted). The trend of the Supreme Court’s qualified immunity 

jurisprudence is “toward resolving qualified immunity as a legal issue before trial 

whenever possible.” Morales v. Fry, 873 F.3d 817, 823 (9th Cir. 2017). Where disputed 

facts exist, courts can determine whether the denial of qualified immunity was appropriate 

by assuming that the version of the material facts asserted by the non-moving party is 

correct. Bingue v. Prunchak, 512 F.3d 1169, 1172-73 (9th Cir. 2008) (citing Jeffers v. 

Gomez, 267 F.3d 895, 903 (9th Cir. 2001)). “[I]n resolving a motion for summary judgment 

based on qualified immunity, a court must carefully examine the specific factual allegations 

against each individual defendant (in a light most favorable to the plaintiff).” Cunningham 

v. Gates, 229 F.3d 1271, 1287 (9th Cir. 2000).

2. Fourth/Fourteenth Amendment Excessive Force Rule of Law

Claims of excessive force are analyzed under the reasonableness standard of the 

Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395 (1989). Determining whether 

the force used to effect a seizure is “reasonable” under the Fourth Amendment requires a 

balancing of “the nature and quality of the intrusion on the individual’s Fourth Amendment 

interests against the countervailing governmental interests at stake.” Id. at 396 (internal 

quotation marks and citations omitted). The test of reasonableness under the Fourth 
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Amendment requires “careful attention to the facts and circumstances of each particular 

case.” Id. Reasonableness is assessed by weighing the type and amount of force used with: 

(1) the severity of the crime at issue; (2) whether the suspect posed an immediate threat to 

the safety of the officers or others; and (3) whether the suspect was actively resisting arrest 

or attempting to evade arrest by flight.” Miller v. Clark Cty., 340 F.3d 959, 964 (9th Cir. 

2003) (citing Graham, 490 U.S. at 396). “Of all these factors, the ‘most important’ one is 

‘whether the suspect posed an immediate threat to safety of the officers or others.’” S.B. v. 

Cty. of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017). “‘Other relevant factors include 

the availability of less intrusive alternatives to the force employed, whether proper 

warnings were given and whether it should have been apparent to officers that the person 

they used force against was emotionally disturbed.’” S.B. v. Cty. of San Diego, 864 F.3d 

1010, 1013 (9th Cir. 2017) (quoting Glenn v. Washington Cty., 673 F.3d 864, 870 (9th Cir. 

2011)). Reasonableness of a particular 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.” 

Graham, 490 U.S. at 396. “The calculus of reasonableness must embody allowance for the 

fact that police officers are often forced to make split-second judgments—in circumstances 

that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary 

in a particular situation.” Graham, 490 U.S. at 396-97. 

3. Reasonableness of the Officers’ Actions under the Fourth 

Amendment

For the purposes of this motion, considering the facts in the light most favorable to 

the Plaintiff, a reasonable jury could find that the use of force the officers used to effect the 

arrest of Muhaymin was excessive. The initial use of a baton to free Chiquita from 

Muhaymin’s clutches was reasonable given the fact that Muhaymin was refusing to comply 

with officers’ request to let go of the dog and present his hands to be handcuffed. Likewise, 

the initial takedown of Muhaymin seemed to be warranted given that Muhaymin was not 

complying the commands of officers. Although one officer did elbow Muhaymin, even this 

did not seem to be unreasonable since it was an attempt to pull Muhaymin’s arm behind 
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his back to handcuff him. However, upon arrival at the police SUV once Muhaymin was 

in custody, there are factual disputes that make it questionable if the officers’ use of force 

escalated to an unreasonable level. After laying Muhaymin on the hood the vehicle,4

officers Hobel and Canilao appear from the video a to lift Muhaymin’s handcuffed hands 

and arms while Muhaymin yelled. (Doc. 274, Ex. 64 at 3:05.) It’s not completely apparent 

from the bodycam footage that Officers Canilao and Hobel lifted Muhaymin’s handcuffed 

hands over his head and in front of his body or if Muhaymin performed this act himself.

There is a factual dispute about how far apart Muhaymin’s hands were with Plaintiff 

claiming they were only 4 inches apart and Defendants claiming they were 8 inches apart. 

It would not be excessive force for the officers to merely lift Muhaymin’s arms a couple of 

inches to complete their search, while it would be unreasonable if they forced his arms over 

his head and to the front of his body. With this factual dispute, the Court cannot grant 

summary judgment.

Now, with Muhaymin’s hands in front of his body, the officers took him to the 

ground a second time to re-handcuff his hands behind his back. Although Muhaymin was 

resisting during the second struggle, his resistance was passive—he did not appear to be 

trying to hurt the officers. During the struggle, multiple officers kneeled with their body 

weight on Muhaymin, including stints where at least one officer, Officer Grenier, kneeled 

with his bodyweight on Muhaymin’s neck for an extended period. Officers did not relent 

despite the fact that Muhaymin exclaimed that he could not breathe at least three times. 

Officers continued to press their weight on Muhaymin and restrain him against the ground 

so that they could remove the double cuffs from his hands, which were now in front of his 

body, and re-cuff his hands behind his back. Viewing the totality of the evidence in the 

light most favorable to the Plaintiff, a finder of fact could find that officers used excessive 

force under the Fourth Amendment analysis in arresting Muhaymin both for lifting his

4 Although Plaintiff claims that officers slammed Muhaymin against the hood of the police 

SUV, that claim is unsubstantiated by Officer Hobel’s bodycam footage. (Doc. 292, Ex. 64 

at 3:05.) Instead, officers appear to merely have placed Muhaymin against the hood of the 

vehicle. (Id.)
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handcuffed arms from behind his back and over his head and for applying bodyweight to 

his neck while he was on his side and while he was in the prone position exclaiming that 

he could not breathe. 

Analyzing these facts under the Graham factors in the light most favorable to the 

Plaintiff further supports Plaintiff’s claim for excessive force under the Fourth 

Amendment. The crime at issue was hardly severe. Officers initially responded to a call for 

assault, but after arrival, the officers did not arrest Muhaymin for assault. Instead, the 

officers arrested Muhaymin for the misdemeanor warrant from Mesa. Although 

Defendants contend that Muhaymin was being arrested for a felony because he was 

resisting arrest, that is incorrect. (Doc. 273 at 23.) Instead, Muhaymin was being arrested 

for a misdemeanor warrant and engaged in passive resistance in response.5 As to the second 

Graham factor, Muhaymin did not appear to pose an immediate threat to the officers or 

others. There is no evidence in the record for the officers to fear that Muhaymin would try 

to harm them.

6 There is no evidence that Muhaymin had weapons or attempted to threaten 

the officers or others. As to the third factor, Muhaymin clearly did passively resist arrest.

However, there is no evidence that Muhaymin attempted to run or engage in threatening

behavior. Accordingly, the Court finds the Graham factors favor a finding of excessive 

force under the Fourth Amendment. 

Defendants argue that the Court must individually examine the actions of each 

officer to determine whether the officers’ actions violated Muhaymin’s constitutional 

rights. Conversely, Plaintiff argues that in the Ninth Circuit, multiple law enforcement 

officers may be held liable on an integral participant theory of liability when at least one 

officer violates a plaintiff’s constitutional rights. See, e.g., Garlick v. Cty of Kern, 167 F. 

5

In Arizona, if a person merely prevents officers from effecting an arrest using “passive 

resistance”, then the resistance constitutes a class 1 misdemeanor. A.R.S. § 13-2508(B). 

The statute defines “passive resistance” as “a nonviolent physical act or failure to act that 

is intended to impede, hinder or delay the effecting of an arrest.” A.R.S. § 13-2508(C).

6 Defendants attempt to claim that the officers feared that Muhaymin knew martial arts 

because he asked to call his “sensei.” However, no other facts gave them reason to fear 

they would be harmed. 
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Supp. 3d 1117, 1158 (E.D. Cal. 2016) (citing Chuman v. Wright, 76 F.3d 292, 295 (9th Cir. 

1996)). Defendants take exception to this argument on a few grounds. First, they point out 

that Plaintiff never pled an integral participant theory and failed to disclose the claim. (Doc. 

298 at 12.) Indeed, in Garlick, the plaintiff had pled integral participation as a claim in the 

complaint. 167 F. Supp. 3d at 1161. Here, Plaintiff has not pled such a theory. In addition, 

Ninth Circuit jurisprudence requires the Court to examine each Defendants’ “specific 

factual allegations” even if Plaintiff pled or disclosed the integral participation theory. See 

Cunningham v. Gates, 229 F.3d 1271, 1287 (9th Cir. 2000). Accordingly, the Court will 

examine the specific actions of each of the officers to determine whether those actions were 

reasonable under the Fourth Amendment analysis. 

i. Officer Oswald Grenier

Officer Grenier was the first officer on the scene. He was involved in the initial 

takedown and handcuffing of Muhaymin and delivered an elbow strike to Muhaymin’s left 

lateral rear muscle to release his arms from underneath his body to be handcuffed. Later, 

after the second takedown of Muhaymin, Officer Grenier can clearly be seen on the 

bodycam footage placing his knee on Muhaymin’s shoulder/neck area for more than three 

minutes as Muhaymin is on his side. (Doc. 292 at 33, ¶ 50(a).) At times in the bodycam 

footage, Officer Grenier can clearly be seen kneeling with bodyweight directly on 

Muhaymin’s neck. (Id.) When Muhaymin is moved to the prone position, Officer Grenier 

continued to kneel with a substantial portion of his weight on Muhaymin. (Id.) The Court 

finds that evidence in the record clearly creates a dispute of material fact as to whether 

Officer Grenier used excessive force under the Fourth Amendment during the arrest of 

Muhaymin. Applying bodyweight to an individual’s neck while the individual is 

handcuffed on the ground, especially when that individual has stated multiple times that he 

cannot breathe, could constitute excessive force under the Fourth Amendment. 

ii. Officer Jason Hobel

Officer Hobel was the second officer on the scene. He assisted in the first takedown 

of Muhaymin. When Muhaymin was searched at the police SUV, Officer Hobel and 
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Officer Canilao lifted Muhaymin’s handcuffed arms in an upward direction. (Doc. 292 at 

10, ¶ 37.) Officer Hobel kneeled on or near Muhaymin’s legs during the second takedown. 

(Doc. 292 at 34, ¶ 50(c).) He also appears to have held up Muhaymin’s pants during the 

struggle. (Id.) Due to the fact that Officer Hobel is accused of lifting Muhaymin’s 

handcuffed hands over his head from back to front and it is unclear from the video, the 

Court finds that there is a dispute of fact as to whether Officer Hobel engaged in excessive 

force. 

iii. Officer Ronaldo Canilao

Officer Canilao was one of the first four officers on the scene. After officers told 

Muhaymin that he was under arrest, Officer Canilao used his baton in the crease of 

Muhaymin’s elbow to pry his arms free of Chiquita and to use it as leverage to move 

Muhaymin’s arm so that the officers could handcuff him. (Doc. 274 ¶ 28.) Once officers 

moved Muhaymin to the police SUV to search him, Officer Canilao was holding onto 

Muhaymin’s arms when they went from back to front. (Doc. 274, Ex. 64 at 3:05.) After 

officers took Muhaymin to the ground a second time, Officer Canilao secured Muhaymin’s 

double-cuffed hands to the ground as they waited for additional officers to arrive. (Doc. 

274 ¶¶ 39-44.) After more officers arrived, Canilao applied some body weight on 

Muhaymin’s right forearm while another officer disconnected the first set of handcuffs and 

moved Muhaymin’s left arm behind his back. Because there is a factual dispute as to how 

Muhaymin’s arms got from behind his body to the front, the Court concludes that there is 

a dispute of fact as to whether Officer Canilao engaged in excessive force. 

iv. Officer David Head

Officer Head was one of the first four officers on the scene. He assisted in the first 

takedown of Muhaymin. After Muhaymin was initially secured in handcuffs, Officer Head 

remained behind picking up the officers’ belongings while other officers moved Muhaymin 

to be searched. Officer Head was not involved in moving Muhaymin to the police SUV to 

be searched or in lifting his handcuffed hands. (Doc. 274, Ex. 67.) Instead, he collected the 

officers’ cameras and keys and Muhaymin’s belongings which were left behind after the 
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first takedown. (Id.) He arrived at the police SUV right around the time that officers 

attempted to search Muhaymin, but he did not personally assist the other officers. (Id.) He 

was involved in the second takedown and laid across Muhaymin’s legs during the second 

struggle to help restrain him. (Id.) He stayed there until Officer McGowan arrived and 

secured the hobble. (Doc. 274, Ex. 72.) Under these facts, there is no dispute as to any 

material fact as to whether Officer Head was involved in any of the facts that constituted 

excessive force. Although he was a participant in the interaction, he did not commit any of 

the acts that could constitute excessive force. 

v. Officer Susan Heimbigner

Officer Heimbigner arrived on the scene after Muhaymin had been taken to the 

ground the second time. Upon arriving on the scene, she asks, “What do you need, guys?” 

(Doc. 274, Ex. 64 at 7:34.) An officer instructs her, “Hold right there!” (Id.) Officer 

Heimbigner then placed her hand on Muhaymin’s mid torso. (Id.) She instructed 

Muhaymin to “Stop!” (presumably resisting) and then laid across his mid to lower torso

for approximately fifty-two seconds before getting up and standing near Muhaymin. (Id.) 

Several minutes later, Muhaymin vomited. The Court finds that Officer Heimbigner there 

is no dispute of any material fact as to whether Officer Heimbigner engaged in the use of 

excessive force. She arrived at the scene late in the interaction and simply tried to control 

Muhaymin’s movements while he was on the ground struggling with officers. 

vi. Officer Ryan Nielsen

Officer Nieslen arrived on the scene during the officers’ second struggle with 

Muhaymin while Muhaymin was on his side. Upon arrival, Officer Nielson helped to get 

the handcuffs off Muhaymin’s hands which were stretched over his head as officers held 

him on his side. (Doc. 274, Ex. 68.) He then instructed another unidentified officer to step 

on Muhaymin’s wrist “as hard as you can there.” (Id.) After he helped secure Muhaymin’s 

left arm behind his back in handcuffs, he held Muhaymin’s hair, presumably to keep his 

face from rubbing against the pavement. (Id.) He continued to hold Muhaymin’s hair until 

shortly after he vomited. (Id.) Phoenix Officers are trained to control a subject’s head to 
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prevent injury in such situations. (Id. ¶ 45.) The Court finds that there is not dispute of fact 

as to Officer Nielsen’s actions, and the Court finds that he did not engage in the use of 

excessive force. 

vii. Sergeant Steven Wong

Sergeant Wong arrived at the scene during the second struggle. When Officer Aker 

arrived, Sergeant Wong can be seen on Officer Aker’s bodycam kneeling next to where the 

other officers were struggling with Muhaymin. (Doc. 274, Ex. 73 at 23:51.) He appears to 

simply watch the struggle and any other actions are not clearly ascertainable from the 

bodycam footage. (Id.) Sergeant Wong does not appear to engage much in the struggle. It’s 

unclear from the bodycam footage whether he even ever put his hands on Muhaymin at all. 

(Doc. 274, Ex. 73 at 23:45-26:15.) The Court finds that there is not dispute as to any 

material fact and Sergeant Wong did not engage in excessive force.

viii. Officer Dennis Leroux 

Officer Leroux arrived during the second struggle with Muhaymin. Upon arrival, he 

took the place of Officer Grenier. It is difficult to ascertain Officer Leroux’s exact position 

on Muhaymin from the bodycam footage. However, in an interview afterward, Officer 

Leroux says that he put his knee on his upper right shoulder blade to keep Muhaymin down 

as he attempted to bring his arm around back to be handcuffed. (Doc. 274, Ex. 36 at 7.) 

Her remained there for around 39 seconds before shifting his bodyweight on Muhaymin. 

(Id., Ex. 73 at 24:45.) It is difficult at that point to tell where Officer Leroux’s bodyweight 

is on Muhaymin. Approximately 38 seconds later, Officer Leroux stood up and offered

some general assistance in handcuffing Muhaymin for the next 55 seconds. (Id., Ex. 73 at 

26:15.) He stood and completely disengaged just before Muhaymin vomited. (Doc. 274, 

Ex. 73 at 26:15.) The Court finds that there is a dispute of material fact as to whether 

Officer Leroux engaged in excessive force. Therefore, summary judgment is not 

appropriate as to his actions. 

ix. Officer James Clark

Plaintiff’s Opposition and Statement of Facts in Support of her Opposition do not 
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specifically analyze the actions of Officer Clark. However, according to Defendants’ cited 

evidence, Officer Clark responded during the second struggle approximately two minutes 

before Muhaymin vomited. (Doc. 274 ¶ 41.) While officers attempted to reposition 

Muhaymin’s handcuffs, Officer Clark applied a portion of his body weight with his left 

knee/shin on Muhaymin’s lower back for less than a minute. (Id. ¶¶ 44, 54.) Officer Clark 

assisted another officer in bringing Muhaymin’s left arm behind his back and applying the 

“hobble” restraint. (Id. ¶ 53.) The Court finds that there is no dispute of any material fact 

and Officer Clark did not engage in the use of excessive force. 

x. Officer Kevin McGowan

Officer McGowan arrived at the scene after Muhaymin had been taken down for the 

second time. (Doc. 292 at 35, ¶ 50(f).) His involvement consisted merely of applying the 

hobble to Muhaymin’s legs. (Doc. 274, Ex. 72.) Accordingly, the Court finds that there is 

no dispute of any material fact and Officer McGowan did not engage in excessive force. 

4. Whether the Violations were Clearly Established

i. Placing Bodyweight on Muhaymin’s Neck

Defendants argue that “Plaintiff can point to no violation of ‘clearly established law’ 

that occurred. Plaintiff, in response, argues that it is well settled in the Ninth Circuit that 

“keeping an individual who is in a state of excited delirium restrained with his chest to the 

ground while applying pressure to his back and ignoring pleas that he cannot breathe” 

constitutes excessive force under the Fourth Amendment. Acre v. Blackwell, 294 F. App’x 

259, 261 (9th Cir. 2008) (citing Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 

1052, 1056-57 (9th Cir. 2003)); Drummond, 343 F.3d at 1056-57 (9th Cir. 2003) (“The 

officers—indeed, any reasonable person—should have known that squeezing the breath 

from a compliant, prone, and handcuffed individual despite his pleas for air involves a 

degree of force that is greater than reasonable.”); Abston v. City of Merced, 506 F. App’x 

650, 653 (9th Cir. 2013) (“It was clearly established that defendants’ use of body 

compression to restrain a prone and bound suspect, who was in no position to offer any 

meaningful resistance would violated the rule established by Drummond nearly five years 
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earlier, in 2003.”). 

“The Supreme Court has repeatedly instructed that we examine ‘whether the 

violative nature of particular conduct is clearly established’ by controlling precedent, not 

whether the conduct violates a general principle of law.” Sharp v. Cty. of Orange, 871 F.3d 

901, 910 (9th Cir. 2017) (quoting Mullenix v. Luna, 577 U.S. 7, 136 S.Ct. 305, 308 (2015)). 

To achieve that kind of notice, “the prior precedent must be ‘controlling’—from the Ninth 

Circuit or Supreme Court—or otherwise be embraced by a ‘consensus’ of courts outside 

the relevant jurisdiction.” Id. at 911 (citing Wilson v. Layne, 526 U.S. 603, 617 (1999)). 

Defendants argue that, besides Drummond, the cases relied upon by Plaintiff are either 

unpublished, non-binding decisions or a decision from a district court. Additionally, 

Defendants argue that Drummond is factually distinguishable from this case. 

In Drummond, officers responded to a call at a 7-Eleven parking lot where a man 

was hallucinating and in an agitated state as a result of his failure to take his medication 

for schizophrenia. Drummond, 343 F.3d at 1054. The three officers decided to take him 

into custody “for his own safety.” Id. The officers took Drummond to the ground and 

handcuffed him with Drummond laying on his stomach. Id. Although he offered no 

resistance, one of the officers put his knee on Drummond’s back and placed the weight of 

his body on him. Id. Relevant to the case at issue, one of the officers also had a knee on 

Drummond’s neck. Id. The officers did not relent even though Drummond mentioned that 

he was having trouble breathing. Id. at 1055-56. Officers were on Drummond for about 

twenty minutes before Drummond lost consciousness and eventually went into a permanent 

vegetative state. Id. at 1055.

Defendants attempts to distinguish Drummond by pointing out that Drummond 

offered no resistance and that police restrained him for over twenty minutes despite the fact 

that his hands were cuffed behind his back. However, the Court finds that Drummond is 

sufficiently close factually to the present case for the constitutional violation to be clearly 

established for qualified immunity purposes. Here, although his hands were now in front 

of his body, Muhaymin was cuffed when officers took him to the ground a second time. 
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As in Drummond, Muhaymin yelled that he could not breathe at least three times while 

officers restrained him against the ground with their bodyweight on his torso and neck. His 

pleas were ignored by the officers. Most importantly, here, Officer Grenier, as in 

Drummond, kneeled on Muhaymin’s neck. Although Muhaymin did appear to be putting 

up some resistance to the officers’ attempt to re-handcuff him behind his back, his 

resistance was merely passive—it did not appear that he was a threat to harm the officers. 

Lastly, as in Drummond, Muhaymin was not being arrested for a serious crime; officers 

were merely taking him in on a misdemeanor warrant. Accordingly, the Court finds that 

the law is clearly established that the officers’ conduct at issue of applying weight to 

Muhaymin’s neck area while he was in the prone position could constitute excessive force. 

ii. Physically Manhandling

Plaintiff also argues that “physically manhandling” an individual while effecting an 

arrest is considered excessive force in the Ninth Circuit if the Graham factors do not 

support the use of force. However, Plaintiff has only produced one unpublished Ninth 

Circuit opinion to support that argument. See Bushell-McIntyre v. City of San Jose, 252 F. 

App’x 810 (9th Cir. 2007). As stated above, Plaintiff bears the burden of showing that there 

is “controlling” precedent either from the Ninth Circuit or the Supreme Court that shows 

that the violation of constitutional rights was clearly established. Accordingly, the Court 

finds that this alleged constitutional violation was not clearly established. 

iii. Leaving a Person Face down in Vomit

Plaintiff next argues that leaving a person facedown in their own vomit is a clearly 

established violation of an arrestee’s constitutional rights. However, Plaintiff cites to only 

one case from the Eastern District of California to support his argument. See Gabales v. 

Cty. of San Joaquin, No. CIV. S-07-1346LKKDAD, 2009 WL 2923037, at *11 (E.D. Cal. 

Sept. 4, 2009). Once again, since this precedent is not from the Ninth Circuit or United 

States Supreme Court, it is not controlling. See Camreta v. Greene, 563 U.S. 692, 709 n.7

(2011) ("[a] decision of a federal district court judge is not binding precedent in either a 

different judicial district, the same judicial district, or even upon the same judge in a 
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different case."); S.B. v. County of San Diego, 864 F.3d 1010, 1016 (9th Cir. 2017); Hamby 

v. Hammond, 821 F.3d 1085, 1095 (9th Cir. 2016); Marsh v. County of San Diego, 680 

F.3d 1148, 1159 (9th Cir. 2012). Thus, the Court rejects this argument.

iv. Shoving a Person’s Handcuffed Hands Over their Head

Even if it does not violate clearly established law, the Court finds that shoving a 

person’s handcuffed hands up over his head to the front of his body constitutes a rare case 

of an “‘obvious’ instance of constitutional misconduct.” Sharp v. Cty. of Orange, 871 F.3d 

901, 911 (9th Cir. 2017) (quoting White v. Pauly, --- U.S. ---, 137 S.Ct. 548, 552 (2017))

(“[I]n a sufficiently ‘obvious’ case of constitutional misconduct, we do not require a precise 

factual analogue in our judicial precedents.”); Brosseau v. Haugen, 543 U.S. 194, 199 

(2004) (per curiam) (“Of course, in an obvious case, these standards can “clearly establish” 

the answer, even without a body of relevant case law.”) Here, although Plaintiff has 

identified no case showing that pushing a person’s handcuffed hands from behind his or 

her back up over his or her head to the front of his or her body is a clearly established 

constitutional violation, the Court finds that it is an obvious constitutional violation in light 

of the Graham factors. Examining the Graham factors, while giving Plaintiff’s version of 

the facts the benefit of the doubt, (1) the crime at issue was an arrest for a misdemeanor 

warrant and therefore was not severe; (2) Muhaymin was handcuffed and posed virtually 

no threat to the safety of officers when his arms were lifted up and over his head to the 

front of his body; and (3) Muhaymin seemed to be mostly cooperative with officers at the 

time when his hands were lifted over his head due to the fact that his hands were cuffed 

behind his back with multiple officers around him. Thus, if the officers did indeed force 

Muhaymin’s hands up and over his head, the Court finds that this is a rare case where a 

constitutional violation is so obvious that it need not be clearly established by existing 

precedent. Accordingly, there is a question of fact as to whether this act constituted 

excessive force.

5. Qualified Immunity Conclusion

The Court finds that Officers Grenier, Hobel, Canilao, and Leroux are not entitled 
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to qualified immunity because there is a question of fact as to whether they engaged in 

excessive force. The evidence shows that officers engaged in acts that may have constituted 

unreasonable force under the Fourth Amendment by forcing Muhaymin’s doublehandcuffed hands up and over his head to the front of his body and by putting bodyweight 

on his back, shoulders, and neck while he was on his side and in the prone position despite 

the fact that he stated he could not breathe on at least three occasions. The remaining 

officers are entitled to qualified immunity on this claim. 

B. Plaintiff’s Failure to Intervene Claim

Defendants argue that Plaintiff’s failure to intervene claim fails as a matter of law 

because the arrest was not unjustifiable and excessive force was not utilized. Plaintiff 

argues that, “Defendants’ argument for dismissal on Plaintiff’s failure to intervene claims 

rests entirely on their erroneous conclusion that the offending officers did not use excessive 

or unreasonable force in attempting to effect Muhaymin’s arrest.” (Resp. at 30.) Plaintiff 

further argues that Defendants have not argued that the officers did not have a reasonable 

opportunity to intervene, and thus, their failure to intervene claim must survive summary 

judgment. The Court agrees with Plaintiff. 

“‘Police officers have a duty to intercede when their fellow officers violate the 

constitutional rights of a suspect or other citizen.’” Cunningham v. Gates, 229 F.3d 1271, 

1289 (9th Cir. 2000) (quoting United States v. Koon, 34 F.3d 1416, 1447, n.25 (9th Cir. 

1994), rev’d on other grounds, 518 U.S. 81, 116 S.Ct. 2035 (1996)). It is clearly established 

that it violates the Fourth Amendment for a police officer not to intercede to prevent 

another officer from using excessive force if an officer has a reasonable opportunity to do 

so. Fernandez v. Virgillo, No. 2:12-CV-02475 JWS, 2014 WL 2930749, at *6 (D. Ariz. 

June 30, 2014), aff’d, 651 F. App’x 692 (9th Cir. 2016) (“If an officer merely stands by 

without trying to assist the victim, that officer may be held liable as a tacit collaborator.”). 

However, the officer must have had an opportunity to intercede. Cunningham, 229 F.3d at 

1289.

Plaintiff’s failure to intervene claim will survive summary judgment. Defendants 
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have only argued that Plaintiff’s failure to intervene claim fails because no excessive force 

was used. However, the Court has decided to the contrary and that there is a dispute of fact 

as to some of the officers’ actions. Since the Court denied summary judgment finding that 

there is a question of fact as to whether excessive force was utilized during the arrest, 

Defendants’ request for summary judgment on this claim must fail.

C. Plaintiff’s ADA Claim

Defendants argue that summary judgment is appropriate for Plaintiff’s Americans 

with Disabilities Act (“ADA”) claim because there is no evidence that Muhaymin was 

disabled under the ADA or that Chiquita was a service dog. Further, Defendants argue that 

even if Chiquita was a service animal, Chiquita was required to be on a leash and the 

handler must have effective control of the animal. Under federal ADA regulations, service 

animal means:

any dog that is individually trained to do work or perform tasks for the benefit 

of an individual with a disability, including a physical, sensory, psychiatric, 

intellectual, or other mental disability. . . The crime deterrent effects of an 

animal's presence and the provision of emotional support, well-being, 

comfort, or companionship do not constitute work or tasks for the purposes 

of this definition.

28 C.F.R. § 36.104. 

Here, the record is devoid of any evidence from which a reasonable jury could 

conclude that Chiquita was a service animal. Specifically, Plaintiff must present evidence 

that Chiquita was trained to do work or preform tasks for the benefit of Muhaymin’s 

disability. Plaintiff has presented no evidence that Chiquita was trained. Instead, Plaintiff 

points only to conclusory statements made by Muhaymin shortly before his arrest that 

Chiquita was his service dog, that she was “disciplined,” and various statements from his 

mental health records indicating that Chiquita helped him mentally. (Doc. 292 ¶ 3.) 

Plaintiffs have failed to meet their burden of showing some evidence that Chiquita was 

trained as a service animal. Even if they had, a public entity can ask a service animal to be 

taken off the premise if it is not under the control of the handler. 28 C.F.R. § 35.136(b). 
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Defendant Tarango testified during this deposition that the dog was walking freely in the 

center. (Doc. 274, Ex. 3 at 27.) Although police footage shows Chiquita in Muhaymin’s 

arms when they arrived, Mr. Tarango’s testimony shows that Chiquita was not controlled 

when Muhaymin entered the center. Accordingly, summary judgment for the Defendants 

is appropriate for Plaintiff’s ADA claim. Likewise, summary judgment is appropriate for 

Plaintiff’s Arizona Civil Rights Act claim because that statute only requires compliance 

with the ADA. See A.R.S. § 41-1492.01(A) (requiring public entities to conform to the 

ADA).

D. Supplemental Jurisdiction over Plaintiff’s State Law Claims

Defendants next argue that if the Court grants summary judgment on Plaintiff’s § 

1983 and ADA claims, then the Court can use its discretion not to grant supplemental 

jurisdiction over Plaintiff’s state law claims. (Doc. 273 at 30.) “Under 28 U.S.C. § 

1367(c)(3), a district court has discretion to elect not to exercise supplemental jurisdiction 

over state claims if it has dismissed the federal claims over which it had original 

jurisdiction.” Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1189 (9th Cir. 2001) (citing Voigt 

v. Savell, 70 F.3d 1552, 1565 (9th Cir. 1995)). However, as explained above, the Court has 

determined that not all the Phoenix officers are entitled to qualified immunity on Plaintiff’s 

§ 1983 claims. Additionally, Plaintiff’s failure to intervene claim survives summary 

judgment. Therefore, Defendants’ request that the Court refuse to exercise supplemental 

jurisdiction over Plaintiff’s state law claims is denied. 

E. Officers’ Liability under Arizona Law

1. Phoenix Officers Immunity under Arizona Law

i. A.R.S. § 13-409

Defendants contend that the Phoenix officers are immune from liability under 

Arizona law. Under A.R.S. § 13-409:

A person is justified in threatening or using physical force against another if 

in making or assisting in making an arrest or detention or in preventing or 

assisting in preventing the escape after arrest or detention of that person, such 

person uses or threatens to use physical force and all of the following exist:
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1. A reasonable person would believe that such force is immediately 

necessary to effect the arrest or detention or prevent the escape.

2. Such person makes known the purpose of the arrest or detention or 

believes that it is otherwise known or cannot reasonably be made known 

to the person to be arrested or detained.

3. A reasonable person would believe the arrest or detention to be lawful. 

A.R.S. § 13-409. “No person in this state shall be subject to civil liability for engaging in 

conduct otherwise justified pursuant to the provisions of this chapter.” A.R.S. § 13-413.

“Importantly, although the use of force can be justified at its commencement, it loses legal 

justification at the point the force becomes unnecessary.” Ryan v. Napier, 425 P.3d 230, 

239 (Ariz. 2018). 

The Court finds that the Arizona immunity statute is not applicable in the current 

case. Specifically, the statute requires a reasonable person to believe that “such force is 

immediately necessary to effect the arrest or detention or prevent the escape.” A.R.S. § 13-

409(1). For the acts that the Court has identified as potential excessive force under the 

Fourth Amendment, the Court does not believe that a reasonable person would believe that 

such force is necessary to effect the arrest or detention of Muhaymin. Further, as Ryan v. 

Napier makes clear, even if the use of force is justified at its commencement, officers lose 

the justification at the point the force becomes unnecessary. 425 P.3d at 239. Here, a jury 

could find the force became unnecessary when officers lifted Muhaymin’s arms up and 

over his head and when officers applied bodyweight to Muhaymin’s neck area for a 

prolonged amount of time despite the fact that Muhaymin was only offering passive 

resistance and complaining that he could not breathe. Thus, Arizona’s immunity statute is 

not applicable in this case and the Court denies Defendants’ request for summary judgment 

on this point. 

ii. A.R.S. § 12-716

Next Defendants argue that the officers’ conduct was justified under A.R.S. § 12-
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716. That statute states:

A. If the court finds by a preponderance of the evidence that a plaintiff is 

harmed while the plaintiff is attempting to commit, committing or fleeing 

after having committed or attempted to commit a felony criminal act or if 

a person intentionally or knowingly caused temporary but substantial 

disfigurement or temporary but substantial impairment of any body organ 

or part or a fracture of any body part of another person, the following 

presumptions apply to any civil liability action or claim:

1. A victim or peace officer is presumed to be acting reasonably if the victim 

or peace officer threatens to use or uses physical force or deadly physical 

force or a police tool product to either:

(a) Protect himself or another person’s use or attempted use of physical force 

or deadly force.

(b) Effect an arrest or prevent or assist in preventing plaintiff’s escape. 

A.R.S. § 12-716(A). Defendants argue that this statute applies because Muhaymin was 

engaged in the commission of a felony by resisting arrest and was intoxicated on drugs 

with over five times the fatal level of methamphetamine in his system at the time of his 

arrest. 

Under A.R.S. § 13-2508, resisting arrest is a class 6 felony in Arizona if a person 

prevents a peace officer from effecting an arrest by “[u]sing or threatening to use physical 

force against the peace officer or another.” A.R.S. § 13-2508(A)(1), (B). If the person 

merely prevents the officer from effecting an arrest using “passive resistance”, then the 

resistance constitutes class 1 misdemeanor. A.R.S. § 13-2508(B). The statute defines 

“passive resistance” as “a nonviolent physical act or failure to act that is intended to 

impede, hinder or delay the effecting of an arrest.” A.R.S. § 13-2508(C). Here, 

Muhaymin’s resistant falls under the definition of passive resistance when viewing the 

evidence in the light most favorable to the non-moving party. Multiple officers described 

Muhaymin’s resistance as passive. Further, when viewing the bodycam footage, 

Muhaymin never threatens to use force against the officers or attempts to use physical 

force. Instead, he simply resisted arrest by tensing his body to prevent the officers from 
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handcuffing him. The Court finds that this constituted a “non-violent physical act or failure 

to act.” Accordingly, his resisting arrest constituted a misdemeanor offense, not a felony. 

Similarly, the fact that Muhaymin was intoxicated with methamphetamine upon his 

death also does not constitute a felony offense. In Arizona, the possession or use of a 

dangerous drug is a class 4 felony. A.R.S. § 13-3407(A)(1), (B)(1). Here, there is no 

evidence that Muhaymin possessed methamphetamine on his person when he was being 

arrested. The evidence only suggests that he used methamphetamine at some time before 

he was arrested. Based on these facts, the Court finds that Defendants have not shown by 

a preponderance of the evidence that Muhaymin was in the process of using 

methamphetamine or fleeing after having used it. It is unclear from the evidence presented 

when Muhaymin used the methamphetamine. Although Defendants suggest that he used 

methamphetamine while in the bathroom of the community center, he could just have 

easily used it a few hours earlier. Regardless, he was not using it during his arrest. 

Therefore, the Court finds that A.R.S. § 12-716 is not applicable here because there is no 

evidence that Muhaymin committed a felony during the arrest. 

2. Plaintiff’s Negligence Claims

Defendants argue that Plaintiff’s negligence claims7fail because Arizona does not 

recognize claims for negligent use of intentionally inflicted force. Defendants rely on the 

Arizona Supreme Court’s decision in Ryan v. Napier for this argument. 425 P.3d 230 (Ariz. 

2018). As such, Defendants argue that Plaintiff cannot simultaneously claim that the 

Phoenix Officers’ use of force was both intentional and negligent, and Plaintiff’s claims 

for negligence fail as a matter of law. Plaintiff contends that Defendants misconstrue Ryan, 

and that she is allowed to present multiple theories of liability under the decision. 

In Ryan, the Arizona Supreme Court concluded that “negligence and intent are 

mutually exclusive grounds for liability.” 425 P.3d at 236. Therefore, the court found that 

there is no such thing as negligent use of intentionally inflicted force. Id. However, the 

7 Plaintiff’s negligence claims are Count XI (Negligence), Count XII (Gross Negligence), 

Count XIV (Negligent Hiring, Supervision, and/or Training), and Count X (Negligent 

Infliction of Emotional Distress). 
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court ruled that plaintiffs could “plead a negligence claim for conduct that is independent 

of the intentional use of force or plead negligence and battery as alternate theories if the 

evidence supports each theory.” Id. at 238. Since the evidence showed that the police 

officer’s actions in Ryan were intentional, the officer could not be liable for negligence. Id.

Here, Plaintiff’s negligence claims are not supported by the evidence. Although 

Plaintiff is entitled to plead the alternative theory of liability of negligence under Ryan, 

they are only able to do so if the evidence supports a theory of negligence. The evidence 

plainly does not support Plaintiff’s negligence claims. Plaintiff can point to no evidence on 

which a negligence claim can rest. Further, after viewing the evidence in the light most 

favorable to the Plaintiff, there are no facts on which negligence claims can rest. All the 

officers’ acts were intentional, and there appear to be no independent facts on which the 

negligence claims can be based. Accordingly, the Court will grant Defendants’ request for 

summary judgment as to Plaintiff’s negligence claims. Thus, the Court grants summary 

judgment on Plaintiff’s negligence and gross negligence claims.8

Plaintiff’s claim for negligent hiring, supervision, retention, and/or training against 

the City of Phoenix is based on different facts warranting a separate discussion. “In order 

for the employer to be held liable for negligent hiring, retention or supervision, the 

employee must have committed a tort.” Mulhern v. City of Scottsdale, 799 P.2d 15, 18 

(Ariz. Ct. App. 1990). Thus, in Mulhern, since the theory of the employee’s underlying 

negligence failed, the court found that the employer was not negligent in hiring or retaining 

the employee as a matter of law. Id. Here, there is a question of fact as to whether the 

Defendant officers committed torts. Not only are Plaintiff’s § 1983 excessive force claims 

surviving summary judgment, but Plaintiff’s wrongful death claim based on battery against 

the Phoenix officers survives as well. Defendants have not advanced any other arguments 

why Plaintiff’s claim for negligent hiring, supervision, retention, and/or training fails. 

Thus, there is still a question of fact as to whether the Defendant officers have committed 

8 Plaintiff’s claim for negligent infliction of emotional distress will be discussed in the next 

subsection. 
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a tort, and Plaintiff’s claim against the City of Phoenix will survive summary judgment. 

Accordingly, Defendants’ request for summary judgment is denied for Plaintiff’s claim for 

negligent hiring, supervision, retention, and/or training. 

3. Plaintiff’s Infliction of Emotional Distress Claims

Defendants next argue that Plaintiff’s Intentional and Negligent Infliction of 

Emotional Distress claims both fail as a matter of law because Plaintiff has not shown that 

she or Muhaymin’s children were present when he died. (Mot. at 34-35.) The tort of 

intentional infliction of emotional distress requires a plaintiff to prove: (1) the conduct by 

the defendant is “extreme” and “outrageous”; (2) the defendants either intends to cause 

emotional distress or recklessly disregards the near certainty that such distress will result 

from the conduct; and (3) severe emotional distress occurs as a result of defendant’s 

conduct. Mckee v. State, 388 P.3d 14, 20 ¶ 25 (Ariz. Ct. App. 2016) (citations omitted). 

“For one to recover for intentional infliction of emotional distress arising from death or 

injury to a family member, the plaintiff must allege she was present at the time of the 

extreme and outrageous conduct.” Id. (citing Restatement (Second) of Torts § 46(2) & cmt. 

l). Likewise, “[n]egligent infliction of emotional distress requires that the plaintiff witness 

an injury to a closely related person, suffer mental anguish that manifests itself as a physical 

injury, and be within the zone of danger so as to be subject to an unreasonable risk of bodily

harm created by the defendant.” Villareal v. State Dep’t of Transp., 774 P.2d 213, 221 

(Ariz. 1989) (citations omitted). 

Here, there is no evidence that Plaintiff or Muhaymin’s children were at the scene 

when Muhaymin was arrested and eventually died. Thus, Plaintiff’s claims for intentional 

and negligent infliction of emotional distress fail under Arizona law. Accordingly, the 

Court will grant Defendants’ motion for summary judgment for the intentional infliction 

of emotional distress and negligent infliction of emotional distress claims. 

4. Compensatory Damages

Defendants argue, “Plaintiff has presented no evidence to support an award of 

compensatory damages.” (Mot. at 35.) Specifically, Defendants argue that Muhaymin’s 
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children, the statutory beneficiaries in this case, have not shown that they are entitled to 

compensatory damages due to their inconsistent relationship with their father. Defendants 

contend, “Any emotional harm suffered by Muhaymin’s children occurred long before 

Muhaymin’s death as a result of their father’s absence – which was a direct consequence 

of his choices and lifestyle.” (Mot. at 38.) Plaintiff contends that there is sufficient evidence 

in the record to support compensatory damages for Muhaymin’s two children. 

“A wrongful death action must ‘be brought by and in the name of the surviving 

husband or wife, child, parent or guardian, or personal representative of the deceased 

person for and on behalf of the surviving husband or wife, children or parents, or if none 

of these survive, on behalf of the decedent’s estate.” Est. of Decamacho ex rel. Guthrie v. 

La Solana Care & Rehab, Inc., 316 P.3d 607, 613 ¶ 24 (Ariz. Ct. App. 2014) (citing A.R.S. 

§ 12-612(A)). “The damages that may be recovered are the beneficiaries’, not the 

decedent’s.” Duenas v. Life Care Centers of Am., Inc., 336 P.3d 763, 771 (Ariz. Ct. App. 

2014) (citing Est. of Decamacho, 316 P.3d at 613). The amount recovered is distributed to 

those parties in proportion to their damages. Id. (citing A.R.S. § 12-612(C)). “The potential 

damages include the loss of love, affection, companionship, consortium, personal anguish 

and suffering.” Id. (quoting Vasquez v. State, 206 P.3d 753, 759 (Ariz. Ct. App. 2008) 

(internal quotation marks omitted)). 

The Court finds that there is sufficient evidence of damages for both of Muhaymin’s 

children. AM (Muhaymin’s daughter) was 10 years old when her father died. (Doc. 292,

Ex. S at 34:24-25.) AM visited her father at a park two days before his death for four hours. 

(Id. at 24:18-29.) Although AM testified that she felt “[h]appy” during the visit with her 

father shortly before his death, she testified that she became depressed, started cutting 

herself, and tried to commit suicide after learning of her father’s death. (Id. at 36:5-12.) 

She also testified that she went to the hospital for about three weeks due to depression, 

anxiety, and self-harm issues. (Id. at 36:22-37:1.) AM testified that she never had issues 

with self-harm before learning of her father’s death. (Id. at 37:2-4.) AM is still in treatment 

with a therapist due to the issues. (Id. at 40:8-17.) The Court finds that this constitutes 
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sufficient evidence of personal anguish and suffering for AM due to her father’s death. 

Likewise, there is sufficient evidence of damages for Muhaymin’s son, Muhammed. 

During his deposition, Muhammed testified that he had not seen his dad in a number of 

years. (Doc. 292, Ex. T at 56:19-21.) However, he also testified about his desire to have 

more time with his father. (Id. at 91:8-18.) He also testified that he was “traumatized” after 

the funeral and that he was traumatized by the fact that he could watch footage of his 

father’s death online. (Id. at 96:19-20, 97:5-11.) The evidence is sufficient to constitute a 

dispute of material fact as to whether damages should be awarded. Specifically, there is 

evidence in the record that he experienced personal anguish and suffering because of his 

father’s death. Accordingly, the Court will allow the jury to weigh the evidence and 

determine whether compensatory damages should be awarded for both of Muhaymin’s 

children.

5. Punitive Damages

Defendants argue that Plaintiff cannot be awarded punitive damages for a few 

reasons. First, Defendants ask the Court to deny Plaintiff’s punitive damages request

because it is not adequately pled. (Mot. at 38.) Specifically, Defendants argue that it is

unclear in the Amended Complaint whether Defendants are asking for punitive damages 

for their state or federal claims. Next, Defendants argue that they are immune from punitive 

damages claims under A.R.S. § 12-820.04 because the officers were acting within the scope 

of their employment when arresting Muhaymin. Lastly, Defendants argue that Plaintiff is 

not entitled to damages on her federal claims because there is no evidence that the 

Defendant officers acted with an evil motive or intent or a reckless or callous indifference 

to the constitutional rights of others. Plaintiff seems to concede that she is not entitled to 

punitive damages for her state claim but argues that she is entitled to such damages under 

federal law. 

To start, Defendants’ argument that Plaintiff has inadequately pled its punitive 

damages claim must be rejected. The failure to state a claim in a complaint is plainly not a 

motion for summary judgment issue. See In re Apple iPhone Antitrust Litig., 846 F.3d 313, 
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318-19 (9th Cir. 2017), aff’d sub nom. Apple Inc. v. Pepper, 139 S.Ct. 1514 (2019) (finding 

that under Rule 12(g)(2) and Rule 12(h)(2), a party may raise 12(b)(6) defenses after filing 

a motion to dismiss in a late-filed 12(b)(6) motion, in any pleading allowed under Rule 

7(a), in a Rule 12(c) motion, or at trial). Even if Defendants had properly raised the defense, 

it is fairly clear from the pleadings that Plaintiff requested punitive damages for both its 

state and federal claims.9 Accordingly, the Court rejects this argument and will construe 

Plaintiff’s pleading as requesting punitive damages for both its state and federal claims.

10

Likewise, the jury should be allowed to consider punitive damages for Plaintiff’s § 

1983 claims. “[A] jury may be permitted to assess punitive damages in an action under § 

1983 when the defendant’s conduct is shown to be motivated by evil motive or intent, or 

when it involves reckless or callous indifference to the federally protected rights of others.” 

Smith v. Wade, 461 U.S. 30, 56 (1983). Viewing the evidence in the light most favorable 

to the Plaintiff, there is some evidence that officers Grenier, Hobel, Canilao, and Leroux

acted with a callous or reckless indifference to Muhaymin’s constitutional rights. 

Specifically, there is evidence that these officers lifted Muhaymin’s handcuffed hands and

arms from behind his back, over his head, and to the front of his body and applied 

bodyweight to his neck for an extended period. Accordingly, the Court will allow the jury 

to consider Plaintiff’s punitive damages claims only against officers Grenier, Hobel,

Canilao, and Leroux. Thus, punitive damages will only be available if the jury finds 

liability on Plaintiff’s federal claims.

F. Vicarious Liability

Defendants argue that the respondeat superior claims against the City of Phoenix 

9 The prayer for relief section of Plaintiff’s Amended Complaint states that Plaintiff is 

demanding a judgment against Defendants for “violations of MUHAYMIN’S 

Constitutional and statutory rights.” (Doc. 16 at 24.) Below this heading, Plaintiff demands

“punitive damages against the individual Defendants in an amount to be determined at 

trial.” (Id.) 

10 As the Court noted in its previous paragraph, Plaintiff seems to concede that punitive 

damages are not allowed for her state law claims under A.R.S. § 12-820.04. Thus, the Court 

will not address that issue. 
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fail because the City of Phoenix cannot be held vicariously liable under Plaintiff’s federal 

§ 1983 claims. Further, Defendants argue that Plaintiff’s remaining state law claims against 

the City of Phoenix fail because the officers are not liable for the underlying torts. In 

response, Plaintiff argues, “Plaintiff’s state law claims against the individual Defendants 

survive summary judgment, therefore, Plaintiff’s state law claims against the City of 

Phoenix likewise survive summary judgment.” 

“There is no respondeat superior liability under section 1983.” Taylor v. List, 880 

F.2d 1040, 1045 (9th Cir. 1989) (citing Ybarra v. Reno Thunderbird Mobile Home Village, 

723 F.2d 675, 680-81 (9th Cir. 1984)); Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001). 

A plaintiff may establish municipal liability by demonstrating “(1) the constitutional tort 

was the result of a ‘longstanding practice or custom which constitutes the standard 

operating procedure of the local government entity;’ (2) the tortfeasor was an official 

whose acts fairly represent official policy such that the challenged action constituted 

official policy; or (3) an official with final policy-making authority ‘delegated that 

authority to, or ratified the decision of, a subordinate.’” Price v. Sery, 513 F.3d 962, 966 

(9th Cir. 2008) (quoting Ulrich v. County of San Francisco, 308 F.3d 968, 984-85 (9th Cir. 

2002)). 

The Court agrees that the City of Phoenix cannot be held vicariously liable for 

Plaintiff’s § 1983 claims because Plaintiff has not alleged any Monell claims as outlined 

by Ninth Circuit caselaw.

11 However, Plaintiff’s state law claims for battery and for 

negligent hiring, supervision, retention, and/or training survive summary judgment. 

Therefore, the City of Phoenix must remain a defendant in this case only as to the state law 

claims. 

V. CONCLUSION

Defendants’ Motion for Summary Judgment is granted in part and denied in part as 

outlined above. Summary judgment is granted as to Plaintiff’s Excessive Force claims 

11 Although Plaintiff previously filed a Motion for Leave to File a Seconded Amended 

Complaint, the Court denied that motion. (Doc. 301.)
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under § 1983 survive except the claims against Defendants Grenier, Hobel, Canilao, and 

Leroux. Summary judgment is granted on Plaintiff’s claims under the ADA and Arizona 

Civil Rights Act. Summary judgment is also granted on Plaintiff’s claims for intentional 

infliction of emotional distress, negligent infliction of emotional distress, negligence, and 

gross negligence. Plaintiff’s remaining claims survive summary judgment. 

Accordingly,

IT IS ORDERED granting in part and denying in part Defendants’ Motion for 

Summary Judgment, (Doc. 273), as explained above. 

IT IS FURTHER ORDERED that the Clerk of Court file this order under seal. 

Dated this 31st day of August, 2021.

cc: All counsel