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Daniel J. O’Connor, Jr., Bar No. 010081

Karen J. Stillwell, Bar No. 022711

Travis B. Hill, Bar No. 021133

O'CONNOR & DYET, P.C.

7955 South Priest Drive

Tempe, Arizona 85284

daniel.oconnor@occlaw.com

karen.stillwell@occlaw.com

travis.hill@occlaw.com

(602) 241-7000

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Mussalina Muhaymin as Personal 

Representative of the Estate of 

Muhammad Abdul Muhaymin Jr.,

Plaintiff,

vs.

City of Phoenix, an Arizona Municipal

Corporation; Antonio 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 Nielson; Officer Steven Wong; and 

Doe Supervisors 1-5,

Defendants.

Case No.: 17-cv-04565-PHX-SMB

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

(TO BE FILED UNDER SEAL)

Oral Argument Requested

Assigned to the Honorable

Susan B. Brnovich

Pursuant to Rule 56, Fed. R. Civ. P., Defendants City of Phoenix (“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 
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Sergeant Steven Wong (“Phoenix Defendants” or “Phoenix Officers”) respectfully move 

for summary judgment on Plaintiff’s remaining claims in her First Amended Complaint. 

This Motion is supported by the following Memorandum of Points and Authorities 

and Phoenix Defendants’ Separate Statement of Facts (“SOF”). 

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Plaintiff Mussalina Muhaymin (“Plaintiff”), as the Personal Representative for the 

Estate of her brother, Muhammad Muhaymin, Jr. (“Muhaymin”), filed a wrongful death 

lawsuit against the Phoenix Defendants, alleging civil rights violations under 42 U.S.C. 

§1983 (“§1983”) and various state law claims stemming from the death of Muhaymin – an 

individual the Phoenix Officers were attempting to arrest pursuant to an outstanding 

warrant.

The Phoenix Officers are entitled to qualified immunity on Plaintiff’s federal civil 

rights claims because their actions were reasonable and because no precedent under 

comparable facts had clearly established that their conduct would be unlawful. Plaintiff’s 

claim under the Americans with Disabilities Act (“ADA”) is the only other claim that 

presents a federal question and, for the reasons discussed below, it also fails.

Because qualified immunity and dismissal of the ADA claim dispense of this

Court’s federal question jurisdiction, it should not retain supplemental jurisdiction over 

Plaintiff’s remaining state law claims. If the Court does elect to exercise supplemental 

jurisdiction and assess Plaintiff’s state law claims, those counts should also be dismissed 

because the Phoenix Officers used reasonable force, have immunity under Arizona law,

and Plaintiff is unable to prove the essential elements of the remaining state claims. 
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II. STATEMENT OF FACTS

A. Factual Summary of Events

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

(“Center”) in Phoenix, Arizona. SOF ¶1. Muhaymin had a Chihuahua dog with him named 

“Chiquita,” which was unleashed and not under his control. SOF ¶2. Arizona law requires 

all dogs over the age of three months to be licensed and vaccinated against rabies. SOF ¶3. 

Chiquita was not licensed and records from Maricopa County Animal Care and Control 

show no animals registered to Muhaymin. SOF ¶4. 

Muhaymin brought Chiquita unleashed to the Center before and, on those occasions,

Chiquita was aggressive, uncontrolled, and even attempted to bite staff members. SOF ¶5. 

When Muhaymin and his dog entered the Center that morning, Tarango, the Center 

manager, told Muhaymin that he could use the restroom if he left the dog outside. SOF ¶6.

Notably, Tarango had previous interactions with Muhaymin at the Center, where 

Muhaymin threatened physical harm. SOF ¶7. Tarango and Muhaymin argued about the 

dog as Muhaymin tried to force his way past Tarango toward the restroom and Muhaymin 

made physical contact with Tarango. SOF ¶8. Tarango then directed an employee, Hannah 

Glemba, to call the police. SOF ¶9. 

The Phoenix Officers responded to a call identified as an assault at the Center.1 SOF 

¶10. Immediately before the Phoenix Officers arrived, Muhaymin picked up the dog and 

was holding Chiquita in his arms. SOF ¶11. Officer Grenier, Officer Hobel, Officer 

Canilao, and Officer Head began arriving at 9:32 a.m. SOF ¶12. The officers and Tarango 

agreed to permit Muhaymin to use the restroom, provided that he held his dog. SOF ¶13. 

Before entering the restroom, Muhaymin gave his identification information to the officers. 

1 Ms. Glemba reported that Muhaymin pushed Tarango. The call was dispatched as an 

assault. When asked by the officers at the scene, and later by Plaintiff’s counsel in this 

case, if he was “assaulted,” Tarango explained that it was a “bump.” SOF ¶10.
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SOF ¶14. While he was in the restroom for over six (6) minutes, the officers discovered 

Muhaymin had an outstanding misdemeanor warrant. SOF ¶15. 

Absent exceptional circumstances, the Phoenix Officers were required to arrest

Muhaymin on the warrant.

2 SOF ¶16. While Muhaymin was in the restroom, the officers

discussed how to care for the dog and transport Muhaymin for the warrant. SOF ¶18. When 

Muhaymin exited the restroom, the Phoenix Officers walked with him outside the Center.

Once outside, Officer Grenier and Officer Canilao informed Muhaymin about the warrant 

and advised him that he was under arrest.3 SOF ¶19. 

Muhaymin immediately resisted arrest, refused to put Chiquita down, refused to put 

his hands behind his back, and told the officers to call his “sensei,” i.e., a martial arts 

instructor. SOF ¶22. When the officers heard Muhaymin ask for his “sensei,” they grew 

concerned Muhaymin had martial arts training. SOF ¶23. When Muhaymin expressed 

concern over Chiquita, the officers told him they would take care of the dog. SOF ¶24.

Yet, Muhaymin still refused to comply with the officers’ orders to put Chiquita

down and place his hands behind his back. Instead, he locked his hands together, tensed

and stiffened his body, flailed his extremities, twisted, thrashed back and forth, pulled left 

and right, squatted and otherwise resisted the arrest, including grabbing the officers’ hands

and squeezing with tremendous strength. SOF ¶25. Although he did not punch, kick or 

strike the officers, Muhaymin was actively and defensively resisting arrest and repeatedly 

struggled against the officers’ efforts to detain him. SOF ¶26. 

2

 Plaintiff’s expert, Scott DeFoe, testified that the Phoenix Officers had a lawful right to 

take Muhaymin into custody on the warrant, and that the Phoenix Officers were, in fact,

detaining Muhaymin for the warrant. SOF ¶17.

3 Officer Ronaldo Canilao is crisis intervention trained (“CIT”), which means he has 

training on identifying and interacting with individuals with mental health concerns.

Officer Canilao testified he did not know Muhaymin had any mental health concerns. 

SOF ¶20. Moreover, Plaintiff’s experts, Dr. Bennet Omalu and Dr. Ali Taqi, both 

testified the body camera videos do not show that Muhaymin was experiencing a mental 

health crisis; rather, he appeared calm, stable, and conversed intellectually. SOF ¶21.
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Muhaymin refused to comply with the officers’ orders and continued to resist arrest. 

The officers placed Muhaymin against a glass wall in an effort to get him to let go of the 

dog so that his hands could be handcuffed behind his back. SOF ¶27. Officer Canilao, with 

Officer Hobel’s assistance, was forced to use a baton under Muhaymin’s right arm as 

leverage to pry his interlocked hands free and to release the dog. SOF ¶28. Once the dog 

was freed, Muhaymin continued to resist and refused to put his hands behind his back, 

which forced the officers to take him to the ground where he was eventually “doublecuffed” behind his back (i.e., using two sets of handcuffs with one set of handcuffs on each 

wrist and the two sets linked together in the middle) after a brief struggle that lasted 

approximately two (2) minutes. SOF ¶29. During this initial encounter, Officer Grenier 

delivered one elbow strike to the rear lateral muscle in Muhaymin’s left shoulder to release 

his arms from underneath his body so he could be handcuffed. SOF ¶30. 

In resisting the detention, Muhaymin displayed incredible strength and it took four 

officers to finally gain control of Muhaymin and get him into the double-cuffs. SOF ¶31. 

Once Muhaymin was double-cuffed, the officers assisted Muhaymin to his feet and 

escorted him to a police SUV. SOF ¶32. He continued to resist. At one point, Muhaymin 

refused to walk and the officers lifted him to his feet to encourage him to walk. SOF ¶33. 

Before placing Muhaymin into the police SUV, the officers attempted to search him 

for drugs or weapons. SOF ¶34. Officer Hobel had prior encounters with Muhaymin, 

including an incident when Muhaymin was in possession of a knife. SOF ¶35. While being 

searched, Muhaymin actively attempted to prevent the officers from searching his back 

pants pockets. SOF ¶36. Muhaymin was obstructing the search, so Officer Hobel slightly 

raised Muhaymin’s arms to allow for the search of his back pockets. SOF ¶37. During this 

search, Muhaymin raised his double-cuffed arms, up and over his head, and positioned his 

cuffed hands in front of his body, which presented a safety concern to the officers. SOF 

¶38. Muhaymin then used his hands to push away from the police SUV and the officers
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had to take him to the ground a second time. SOF ¶39. Once again, Muhaymin exhibited 

extreme strength and resistance to the officers’ attempts to secure him. SOF ¶40. 

Additional officers were dispatched for assistance and several arrived at the scene 

while Muhaymin was on his side and on the ground. SOF ¶41. Muhaymin continued to 

actively resist arrest and flailed his body around, attempted to roll over onto his back, 

tensed, thrashed, twisted, kicked his legs, pulled, pushed back against the officers, and 

showed incredible strength that prevented officers from repositioning his arms and

handcuffs behind his back. Most officers described Muhaymin’s resistance as “defensive 

resistance” or “active resistance” and felt he was under the influence of drugs.4 SOF ¶42. 

A few officers used a portion of their body weight, for brief periods of time, 

adjusting their weight often, and placing it on extremities, the hip area, the shoulders, the 

legs, etc., in response to Muhaymin’s resistance and the strength he displayed throughout 

the encounter.

5 SOF ¶44. The officers pleaded with Muhaymin to stop resisting, but he 

refused and continued to resist with extreme strength.6 SOF ¶46. Although Muhaymin 

yelled “I can’t breathe,” he was still exerting tremendous strength in his resistance and the 

officers assessed his breathing, observed that he was breathing and there was nothing 

obstructing his ability to breathe. SOF ¶50. Throughout this second encounter, not only 

were the officers continuously adjusting their weight and position, Muhaymin was also 

adjusted from his side to his stomach. SOF ¶51.

4 A few officers testified that Muhaymin’s resistance was “passive;” meaning that he was 

not trying to assault the officers. SOF ¶43.

5 Phoenix Officers also held onto Muhaymin’s hair and/or head to prevent him from 

injuring himself or using his head to gain more resistance against the officers. Phoenix 

Officers are trained to control a subject’s head in this situation. SOF ¶45. 6 Muhaymin’s dog repeatedly barked and lunged at the Phoenix Officers. SOF ¶47. 

Officer Head removed his Taser and “cycled” it (or “sparked” it) to scare Chiquita away. 

SOF ¶48. The Taser was not deployed against Muhaymin or the dog. SOF ¶49. 
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Plaintiff’s police practices expert, Scott DeFoe, testified that in his experience as a 

police officer, he has personally applied his own body weight on subjects in a prone 

position while securing handcuffs. SOF ¶52. In fact, he noted that some type of force is 

used to handcuff a subject. Mr. DeFoe further testified using some force is within policy 

and if the subject physically resists, officers must use reasonable force to overcome the 

resistance displayed by the subject. SOF ¶52.

With the assistance of additional officers, the double set of handcuffs was

disconnected from in front of his body, and the officers were able to re-handcuff Muhaymin 

with a single pair of cuffs behind his back. SOF ¶53. A RIPP restraint (also referred to as 

a “hobble”) was utilized to restrain his feet to prevent him from kicking.7 SOF ¶54. The 

officers did not “hog-tie” Muhaymin – the application of a RIPP restraint is not considered

a hog tie or a “use of force.” SOF ¶56. Plaintiff’s expert, Mr. DeFoe, agrees that 

Muhaymin was not placed in a hog-tie position. SOF ¶57. 

Once Muhaymin was secured with the handcuffs behind his back, the Phoenix 

Officers immediately ceased contact. It was at this point that Muhaymin simultaneously 

vomited. SOF ¶58. The officers quickly rolled Muhaymin onto his side to clear his airway, 

but he had stopped breathing. SOF ¶59. The officers immediately requested medical 

support and initiated resuscitative efforts. SOF ¶60. The officers continued to clear 

Muhaymin’s airway and perform chest compressions until paramedics arrived. SOF ¶61.

Paramedics arrived and took over Muhaymin’s care. SOF ¶62. He was transported to 

Maryvale Hospital where he was pronounced deceased at 10:39 a.m. SOF ¶63. 

The second encounter with Muhaymin lasted approximately eight (8) minutes, with 

less than three (3) minutes in the prone position. Throughout, Muhaymin continued to yell, 

7 A RIPP restraint is a nylon material with a loop that goes around the ankles, and a hook 

on the other end to attach to the handcuffs. An individual can still stand and walk (with 

assistance) while a RIPP restraint is applied. SOF ¶55.
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physically resist, and refused to comply with directions until approximately one (1) minute 

before he vomited. Muhaymin vomited within seconds of being properly secured and 

restrained in handcuffs. With the exception of one elbow strike to a rear lateral muscle

during the initial encounter, none of the Phoenix Officers used any additional force. None 

of the Phoenix Officers punched, struck or kicked Muhaymin. SOF ¶64. No Tasers, pepper

spray or electrical restraints were used against Muhaymin. SOF ¶65.

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.” SOF ¶66. Phoenix 

Defendants’ expert, Dr. Michael Graham, concurred with the autopsy findings, and opined 

Muhaymin died of cardiac asystole precipitated by marked agitation and physical exertion 

on a background of methamphetamine use and schizophrenia. He further noted 

methamphetamine use and schizophrenia are each associated with an increased risk of 

sudden death. SOF ¶67. The toxicology results showed Muhaymin had over five (5) times 

the toxic (potentially fatal) level of methamphetamine in his system at his death. SOF ¶68. 

Dr. Amanda Maskovyak, the Maricopa County Medical Examiner/Pathologist, 

testified there is no “safe” level of methamphetamine because it has unpredictable effects

and always has a potential of being fatal. SOF ¶69. Plaintiff’s expert, Dr. Omalu, testified 

that, although he disagreed with the Medical Examiner’s findings, Muhaymin ingested 

methamphetamines within hours of his death, as his levels were “high.” SOF ¶70. Phoenix 

Defendants’ toxicology expert, Dr. Binh Ly, opined that the concentrations detected in 

Muhaymin were within the range of being fatal according to medical literature, and that 

Muhaymin may have ingested additional methamphetamines while in the restroom in an 

effort to conceal the drugs from the officers. Methamphetamines are known for their 

stimulant effects – increased energy, endurance, strength, and aggression. SOF ¶71.

Plaintiff’s expert, Dr. Taqi, testified that the most prevalent cause of death in 
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methamphetamine overdoses is cardiac-related issues, and that methamphetamine can kill 

a healthy person. SOF ¶91.

B. Each Officer’s Individual Actions

As the primary basis of this motion is that the Phoenix Officers are entitled to 

qualified immunity, the Court must separately assess each officers’ conduct before 

reaching a determination as to whether he or she violated clearly established law. See e.g., 

Cunningham v. Gates, 229 F.3d 1271, 1287 (9th Cir. 2000), as amended (“[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.”); K.J.P. v. City 

of Santee, 748 F. App’x 133, 134 (9th Cir. 2019) (remanding case where “the district court 

did not conduct an individualized assessment of the conduct of each of the various 

defendants in their myriad roles” with instructions to “make an individualized 

determination of whether summary judgment based on qualified immunity may be proper 

as to each defendant” by “individually evaluat[ing] each defendant’s specific actions and 

omissions to determine whether that conduct violated clearly established rights.”).

Accordingly, in order to facilitate this process, each of the Phoenix Officers’ individual 

roles in this case are discussed below, in the same order as he or she arrived at the scene.

8

 

1. Officer Oswald Grenier9

Officer Grenier, a Phoenix Police Officer for 18 years at the time, is sued in his 

individual capacity. Grenier was the first officer to respond to the call for service. He 

listened to Muhaymin and Tarango discuss what had transpired and, although Muhaymin

made some interesting comments, Grenier did not believe he was suffering any mental 

8 Antonio Tarango is not an officer. He is the manager of the Center and played no role 

in the arrest. It appears Plaintiff named him as a defendant in relation to her state claims, 

as well as the ADA and AzDA discrimination claims discussed supra. 9 Grenier wore a body camera during the encounter; however, it was dislodged during the 

first encounter so only a portion of the footage is available.
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health crisis. SOF ¶90. Grenier volunteered to transport Muhaymin to meet Mesa Police

for the warrant and discussed options to care for Muhaymin’s dog. SOF ¶18. Grenier and 

Officer Canilao walked with Muhaymin outside the Center and Grenier advised Muhaymin 

he had a warrant and to place his hands behind his back. SOF ¶19. During the first 

encounter, Grenier attempted to move Muhaymin’s arm from under his body and secure it

behind his back; however, Muhaymin exhibited extreme strength and resistance. SOF ¶22, 

25-27, 29. Grenier delivered a single elbow strike to Muhaymin’s left lateral rear muscle 

in an effort to “interrupt his bio-computer” and release his arms from underneath his body

to be handcuffed. SOF ¶30. Although Grenier helped escort Muhaymin to the police SUV, 

he was not involved in searching Muhaymin’s pockets, but held Muhaymin’s right bicep 

while the search was being conducted. SOF ¶36. 

After Muhaymin moved his cuffed arms to the front of his body and pushed off the 

police SUV, the four officers brought Muhaymin to the ground the second time and radioed 

for additional officers. SOF ¶38-41. The second encounter was dynamic with Muhaymin’s 

continued resistance and changing positions, as well as the officers’ changing positions in 

response to Muhaymin’s continued physical resistance and movements, and additional 

officers arriving on scene. SOF ¶41, 42, 44.

Grenier held Muhaymin’s head to the ground to prevent Muhaymin from rubbing 

his face into the concrete and injuring himself. SOF ¶45. While Muhaymin was on his 

side, Grenier testified that because of Muhaymin’s continuous movement and resistance, 

his shin slipped from Muhaymin’s shoulder to near the side of his neck for a brief period 

of time.10 Notably, Officer Grenier maintained his other foot on the ground to distribute 

10 Phoenix Defendants’ medical expert, Dr. Gary Vilke, opined this would not have affected 

Muhaymin’s ventilation and would not cause asphyxiation. SOF ¶73. Dr. Vilke opined 

that none of the officers’ actions would have caused asphyxiation or death. SOF ¶74.
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weight off of Muhaymin, and applied very little weight just to hold Muhaymin in place, as 

Muhaymin continued fighting, screaming and yelling. SOF ¶72.

Grenier had no physical contact with Muhaymin for approximately three (3) minutes 

prior to Muhaymin vomiting. Grenier was one of the first officers to begin lifesaving 

efforts, e.g., clearing airway and compressions. SOF ¶60. He testified: “In 18 years, I’ve 

never had anything like that in my life. . . That guy has been the strongest guy I’ve ever 

had in my life or my police career . . . I’ve never had anybody that strong.” SOF ¶31, 42.

2. Officer Jason Hobel11

Officer Jason Hobel, a Phoenix Police Officer for 18 years at the time, is sued in his 

individual capacity. Hobel was the second officer on scene and was involved in the initial 

discussions and investigation into whether an assault occurred or whether Muhaymin 

would be trespassed from the Center. SOF ¶10. Hobel walked outside the Center with 

Muhaymin and the other officers. SOF ¶19. During the first encounter, Hobel attempted 

to get Muhaymin’s arms behind his back to place him in handcuffs; however, Muhaymin

refused to let go of his dog, interlocked his hands together in front of his body, and the dog 

attempted to bite Hobel.

12 SOF ¶25-29. Hobel stated Muhaymin was “thrashing back and 

forth and pulling all over the place.” SOF ¶28. The officers were forced to take Muhaymin 

to the ground, to secure Muhaymin’s hands in two interlocked sets of handcuffs13 and 

escort him to the police vehicle. SOF ¶29, 33.

Based on his prior encounters with Muhaymin, during which he had knives in his 

pocket, Hobel searched Muhaymin’s pockets before placing him in the vehicle. SOF ¶35. 

Hobel testified that he went from lifting his arms to search his pockets, to trying to pull 

11 Hobel wore a body camera during the encounter; however, it stopped at one point, turned 

back on, and was later dislodged. Accordingly, Hobel has two body camera videos. 

12 The dog chased Hobel during an encounter with Muhaymin the month before. SOF ¶35.

13 The interlocked sets of handcuffs gave Muhaymin an extra eight inches of space between 

his wrists, which gave him an opportunity to move his arms more freely. SOF ¶29.
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them down, as Muhaymin rotated his arms from behind his back, up and over his head, to

in front of him. SOF ¶36, 37, 38. The officers were again forced to take Muhaymin to the 

ground to try to gain control of him. SOF ¶39. Muhaymin continued to resist with extreme 

strength14 and was on his side, “thrashing about” as the officers tried to re-handcuff his 

arms behind his back. SOF ¶41-42. Hobel had his hands on Muhaymin’s hips, with his 

own knees on the ground, trying to keep Muhaymin from flipping over onto his back. SOF 

¶44. Hobel used no other force. SOF ¶64.

3. Officer Ronaldo Canilao15

Officer Canilao, a Phoenix Police Officer for 15 years at the time, is sued in his 

individual capacity. Canilao is CIT-trained and used his training in de-escalation and talked

to Muhaymin prior to (and during arrest). SOF ¶20. Canilao also engaged with Muhaymin 

outside the Center, when the officers announced the warrant and told Muhaymin he was 

under arrest. SOF ¶19. When Muhaymin refused to let go of his dog and place his arms 

behind his back, and Muhaymin’s dog tried to bite the officers, Canilao used his baton in 

the crease of Muhaymin’s elbow, as leverage to allow the release of the dog and to move 

Muhaymin’s arm behind his back to handcuff him.

16 SOF ¶28. Once at the police vehicle, 

Canilao assisted in the attempted search of Muhaymin’s pockets. SOF ¶36. Canilao was 

holding onto Muhaymin’s arms, when Muhaymin rotated his arms from behind his back,

up and over his head, and to the front of his body. SOF ¶38. Canilao testified that he had 

14 Hobel also testified “I’m absolutely shocked that he was putting up as much of a fight 

as he is because I’m a bit bigger than he is, and I’m fairly strong, and it was everything 

that I could do to get his hand behind his back.” SOF ¶46.

15 Canilao wore a body camera during the encounter; however, it was dislodged during the 

first encounter so only a portion of the footage is available. 16 Canilao stated “I was thinking the baton was going to bend – the baton was going to bend 

because this guy’s hold was strong... Man, this guy is strong as a mule... He’s just very 

strong. I’m just surprised by how strong he is.” SOF ¶25, 46. 
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no idea how Muhaymin did this and that Canilao’s arms were now right in front of 

Muhaymin’s mouth and he was concerned Muhaymin was trying to bite him. SOF ¶38.

After Muhaymin and the officers went to the ground the second time, Canilao 

secured Muhaymin’s arms to the ground as the double-set of handcuffs were still in place, 

while they waited for additional officers to arrive. SOF ¶39, 40, 41, 42, 44. Once additional 

officers arrived, Canilao applied some body weight on Muhaymin’s right forearm, while 

another officer disconnected the first set of handcuffs from each other and began moving 

Muhaymin’s left arm behind his back. SOF ¶44. After the other officers took control of 

Muhaymin’s right arm to place it behind his back, Canilao stood up and had no further 

contact with Muhaymin. SOF ¶53, 58. Muhaymin vomited two minutes and thirty seconds 

later and Canilao then assisted with resuscitation efforts. SOF ¶58-61. Canilao used no 

other force in the arrest. SOF ¶64.

4. Officer David Head17

Officer Head, a Phoenix Police Officer for 21 years at the time, is sued in his 

individual capacity. Head assisted in handcuffing Muhaymin in the first encounter outside 

the Center’s doors. SOF ¶19, 22, 25-29, 31. Head described Muhaymin as actively 

resisting, but not assaultive toward the officers. SOF ¶25. After the first encounter, Head 

remained behind picking up body cameras, keys, etc. by the Center’s doors and was not 

involved in escorting Muhaymin to the police SUV or searching his pockets. SOF ¶33, 39. 

When Head arrived at the police SUV, Muhaymin was twisting, turning, and 

pushing officers back from the vehicle, which led the officers and Muhaymin to the ground 

a second time. SOF ¶39, 42. Muhaymin continued to twist, turn, flail and use his legs as 

leverage to get up, so Head laid across Muhaymin’s calves to control his legs. SOF ¶40, 

42, 44. Other officers described that, although Head was holding Muhaymin’s legs, 

17 Head wore a body camera during the encounter; however, it stopped at one point, and 

turned back on. Accordingly, Head has two body camera videos. 
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Muhaymin exhibited such extreme strength that he was able to “toss” Head around. SOF

¶44. Head remained holding Muhaymin’s legs until the RIPP restraint was applied around 

his ankles. SOF ¶40. Once the RIPP restraint was applied, he had no contact with 

Muhaymin and Muhaymin vomited approximately two minutes later. Head used no other 

force. SOF ¶64.

5. Officer Susan Heimbigner18

Officer Heimbigner, a Phoenix Police Officer for 21 years at the time, is sued in her 

individual capacity. Heimbigner was a School Resource Officer for a nearby school when 

she heard the call for additional officers. SOF ¶41. She drove to the Center and observed 

Officers Grenier, Hobel, Canilao, and Head on the ground with Muhaymin. SOF ¶41. 

Heimbigner went next to Muhaymin (who was positioned on his side) and placed her hands 

on his side to help control him due to his strength. SOF ¶41, 44. She directed Muhaymin 

to “stop” and “don’t resist.” SOF ¶46. Aside from placing her hands (open palm only) on 

Muhaymin’s side for a short duration, she used no other force. SOF ¶64. Heimbigner was 

on scene for approximately three minutes and thirty seconds before Muhaymin vomited.

6. Officer Ryan Nielsen19

Officer Nielsen, a Phoenix Police Officer for 13 years at the time, is sued in his 

individual capacity. Nielsen and his partner, Officer McGowan, responded to the call for 

additional officers and request for a RIPP restraint. SOF ¶41. Nielsen arrived on scene 

approximately three minutes before Muhaymin vomited. Upon Nielsen’s arrival,

Muhaymin was initially on his side and was then placed in the prone position while the 

handcuffs were re-positioned behind his back. SOF ¶42. Nielsen was near the left of 

Muhaymin’s head and assisted in disconnecting the first set of handcuffs from each other. 

18 Heimbigner was not equipped with a body camera at the time of the incident. 

19 Nielsen wore a body camera during the encounter; however, it stopped on two occasions, 

and turned back on. Accordingly, Nielsen has three body camera videos.
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SOF ¶53. With the assistance of another officer, they were able to overcome Muhaymin’s 

resistance and strength and re-position Muhaymin’s left arm behind his back. SOF ¶42, 

53. Nielsen then used his hand to hold the back of Muhaymin’s head, to prevent him from 

rubbing his face into the concrete.

20 SOF ¶44. Nielsen’s feet and knees remained on the 

ground the entire time and he used no other force. SOF ¶44, 64.

7. Sergeant Steven Wong21

Sergeant Wong, a Phoenix Police Officer for 17 years at the time, is sued in his 

individual capacity. Wong responded to the call for additional officers and arrived on scene 

approximately two minutes and thirty seconds before Muhaymin vomited. SOF ¶41. Wong 

assisted in holding Muhaymin’s right bicep and giving commands to stop fighting. SOF

¶46. Muhaymin did not comply.22 SOF ¶42. Wong applied a portion of his body weight 

to Muhaymin’s right upper back for approximately one minute while he assisted in bringing 

Muhaymin’s right arm behind his back, and while officers cut off the rope bracelet 

interfering with the cuffs on Muhaymin’s right wrist, and finally secured the handcuffs 

properly, behind Muhaymin’s back. SOF ¶44, 53, 58, 64. Wong used no other force and

immediately assisted in chest compressions after Muhaymin vomited. SOF ¶61, 64.

8. Officer Dennis Leroux23

Officer Leroux, a Phoenix Police Officer for 15 years at the time, is sued in his 

individual capacity. Leroux responded to the call for additional officers and arrived on 

scene within a few seconds of Wong’s arrival. SOF ¶41. Leroux took Officer Grenier’s 

place, and with the assistance of another officer, was able to overcome Muhaymin’s 

20 Nielsen stated “for somebody to get that like super human strength, my first thought was 

there’s got to be some sort of drugs on board.” SOF ¶46. 

21 Wong was not equipped with a body camera video at the time of the incident. 22 Wong stated “I ran across it in my career before, but very, very, few times... And yeah, 

this is one of those where I – he was – he was definitely a lot stronger than what he should 

have been.” SOF ¶46. 

23 Leroux was not equipped with a body camera at the time of the incident.
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resistance to move his right arm behind his back to be handcuffed. SOF ¶42, 44, 53. In his 

effort to move Muhaymin’s arm behind his back, Leroux applied a portion of his body 

weight by placing his shin on Muhaymin’s right shoulder blade area, while his other foot 

remained on the ground. Leroux maintained this position for approximately twenty (20) 

seconds. SOF ¶44, 53. As Muhaymin’s arm was being brought behind his back, and while 

the rope bracelet was cut so the handcuff could be placed, Leroux adjusted his own position 

and switched shins on Muhaymin’s right shoulder blade area, with his other foot on the 

ground for approximately twenty (20) seconds. SOF ¶42, 44. Leroux indicated Muhaymin 

was extremely strong and continued to physically resist throughout the encounter. SOF

¶42. Leroux used no other force and had no physical contact with Muhaymin in the one

minute prior to Muhaymin vomiting. SOF ¶64.

9. Officer James Clark24

Officer Clark, a Phoenix Police Officer for 23 years at the time, is sued in his 

individual capacity. Clark responded to the call for assistance and arrived approximately 

two minutes prior to Muhaymin vomiting. SOF ¶41. During the attempt to reposition 

Muhaymin’s handcuffs and overcome Muhaymin’s resistance and extreme strength, Clark

applied a portion of his body weight with his left knee/shin to Muhaymin’s right lower 

back for less than one (1) minute. SOF ¶44, 54. Clark assisted another officer in bringing 

Muhaymin’s left arm behind his back, and applying the RIPP restraint to Muhaymin’s 

ankles. SOF ¶53. As Clark attached the RIPP restraint clip to the handcuffs, Muhaymin 

simultaneously vomited. SOF ¶58. Clark assisted in lifesaving measures. SOF ¶60-61.

Clark used no other force. SOF ¶64.

24 Clark wore a body camera during the encounter and has one video. 
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10. Officer Kevin McGowan25

Officer McGowan, a Phoenix Police Officer for 19 years at the time, is sued in his 

individual capacity. McGowan and his partner, Nielsen, responded to the call for assistance

and McGowan brought the RIPP restraint to the scene. SOF ¶41. McGowan lifted Officer 

Head off of Muhaymin’s calves and applied the loop of the RIPP restraint around 

Muhaymin’s ankles. SOF ¶54. McGowan also cut a rope bracelet from Muhaymin’s right 

wrist so the handcuffs could be secured. SOF ¶53. McGowan used no force, had no further 

physical contact with Muhaymin, and was on scene for approximately two minutes prior 

to Muhaymin vomiting. SOF ¶64. 

III. PROCEDURAL BACKGROUND AND CAUSES OF ACTION AT ISSUE

Phoenix Defendants’ filed a Motion to Dismiss in March 2018. On February 20, 

2019, the Court dismissed §1983 Monell-related claims: Count IV for Supervisor Liability; 

Count V for Municipal Liability and Failure to Train; Count VI for Municipal Liability and 

Unlawful Policies, Practices and/or Customs; and Civil Conspiracy. See Dkt No. 67. 

On October 31, 2019, following Plaintiff’s Notice of Voluntary Dismissal, the Court 

also dismissed Plaintiff’s loss of income and services claims. See Dkt No. 96.

Plaintiff’s remaining claims against Phoenix Defendants are as follows: 

• Count I: §1983 Claim for Excessive Force; 

• Count II: §1983 Claim for Failure to Protect and Intervene; 

• Count III: 42 U.S.C. §12131 Claim for ADA Discrimination; 

• Count VII: State Law Claim for Wrongful Death and Survival Action under 

Excessive Force;

• Count VIII: State Law Claim for Wrongful Death and Survival Action Battery;

• Count IX: State Law Claim for Wrongful Death and Survival Action with 

Intentional Inflection of Emotional Distress; 

• Count X: State Law Claim for Wrongful Death and Survival Action with 

Intentional Inflection of Emotional Distress; 

25 McGowan wore a body camera during the encounter and has one video.
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• Count XI: State Law Claim for Wrongful Death and Survival Action for 

Negligence;

• Count XII: State Law Claim for Wrongful Death and Survival Action for Gross 

Negligence;

Count XIII: State Law Claim for ACRA Discrimination; and 

• Count XIV: State Law Claim for Wrongful Death and Survival Action for 

Negligent Hiring, Supervision, Retention and/or Training.

On June 10, 2020, Plaintiff filed a Motion for Leave to Amend the Complaint to 

include a Monell claim (Municipal Liability and Unlawful Policies). See Dkt. No. 192.

Although the Motion has been fully briefed, the Court has not ruled on Plaintiff’s Motion 

and, therefore, no additional claims have been added. This Motion for Summary Judgment 

addresses all of Plaintiff’s current remaining claims and, for reasons set forth below, each 

of these Counts should be summarily dismissed as a matter of fact and established law.

IV. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if the pleadings and supporting documents “show 

that there is no genuine issue as to any material fact and that the moving party is entitled 

to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) 

(quoting Fed. R. Civ. P. 56(c)). Material facts are those “that might affect the outcome of 

the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A genuine issue exists if “the evidence is such that a reasonable jury could return 

a verdict for the non-moving party.” Id.

A party moving for summary judgment initially must demonstrate the absence of a 

genuine issue of material fact. Celotex, 477 U.S. at 325. The moving party merely needs to 

point out to the Court the absence of evidence supporting its opponent’s claim; it does not 

need to disprove its opponent’s claim. Id.; see also Fed. R. Civ. P. 56(c). If a moving party 

has made this showing, the non-moving party “may not rest upon the mere allegations or 

denials of the adverse party’s pleading, but must set forth specific facts showing that there 

is a genuine issue for trial.” Anderson, 477 U.S. at 256; see also Fed. R. Civ. P. 56(e); 

Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).
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V. LEGAL ARGUMENT

A. The Phoenix Officers are Entitled to Qualified Immunity on Plaintiff’s 

Federal § 1983 Claims

1. Qualified Immunity Should be Decided as Early as Possible in Order to 

Avoid Subjecting an Immune Defendant to Trial

“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...” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation 

omitted). Qualified immunity recognizes that subjecting government officials to litigation 

and trial based on their good faith decisions would result in “distraction of officials from 

their governmental duties, inhibition of discretionary action, and deterrence of able people 

from public services.” Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). For this reason, 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) 

(citation omitted); see also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (qualified 

immunity is “an entitlement not to stand trial or face the other burdens of litigation” that 

“is effectively lost if a case is erroneously permitted to go to trial.”).

Qualified immunity should be decided on summary judgment whenever possible. 

See Morales v. Fry, 873 F.3d 817, 823 (9th Cir. 2017) (“[Q]ualified immunity was 

conceived as a summary judgment vehicle, and the trend of the Court’s qualified immunity 

jurisprudence has been toward resolving qualified immunity as a legal issue before trial 

whenever possible.”). To that end, summary judgment based on qualified immunity is 

proper even if material facts are in dispute; in such cases, courts are instructed to conduct 

the inquiry “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); see also 

Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001) (“Where disputed facts exist... we can 
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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.”).

2. The Phoenix Officers are Immune From § 1983 Liability Unless They 

Violated ‘Clearly Established’ Law

A plaintiff overcomes qualified immunity only by showing both: “(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, 457 U.S. at 818. “When this test is properly applied, [qualified 

immunity] 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) (internal 

quotations omitted).

The second (“clearly established”) prong of the qualified immunity analysis is 

satisfied only if “at the time of the challenged conduct, the contours of a right are 

sufficiently clear that every reasonable official would have understood that what he is doing 

violates that right.” Ashcroft, 563 U.S. at 741 (emphasis added).26 In other words, to show 

a violation of clearly established law, “existing precedent must have placed the statutory 

or constitutional question beyond debate.” Id.

3. To Show a Violation of ‘Clearly Established’ Law, Plaintiffs Must Identify 

Precedent ‘Precisely on Point.’

The burden of identifying clearly established law falls squarely on the plaintiff. See 

Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017) (“It is the plaintiff 

who bears the burden of showing that the rights allegedly violated were clearly 

established.”). But that burden will not be met by generalized statements of the law; rather, 

“police officers [especially] are entitled to qualified immunity unless existing precedent 

26 Thus, even if some reasonable officials might believe their peer acted unlawfully, 

qualified immunity applies unless all reasonable officials in that position would agree 

that his or her actions were unlawful. See Rosenbaum v. Washoe Cty., 663 F.3d 1071, 

1078 (9th Cir. 2011). 
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squarely governs the specific facts at issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1152-53 

(2018) (internal quotations and citations omitted).

Thus, to overcome qualified immunity, a § 1983 plaintiff must identify precedent 

wherein a government employee acting under similar circumstances as those in the case at 

bar was held to have violated the same constitutional right(s) at issue. White v. Pauly, 137 

S. Ct. 548, 552 (2017). The “[p]rior precedent must articulate ‘a constitutional rule specific 

enough to alert these deputies in this case that their particular conduct was unlawful.’” 

West v. City of Caldwell, 931 F.3d 901, 911 (9th Cir. 2019) (Italics in original), quoting 

Sharp v. Cnty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017); see also S.B. v. Cnty. of San 

Diego, 864 F.3d 1010, 1015-16 (9th Cir. 2017) (clearly established law arises out of 

precedent putting law enforcement officers on “clear notice” that their conduct “in these 

particular circumstances” would violate the Constitution).

Indeed, the Ninth Circuit recently reiterated the stringency of this requirement:

“[C]learly established” means that, at the time of the officer’s conduct, the law 

was sufficiently clear that every reasonable official would understand that what 

he is doing is unlawful. Courts must define the clearly established right at issue 

on the basis of the specific context of the case. Thus, liability will not attach 

unless there exists a case where an officer acting under similar circumstances 

was held to have violated the Fourth Amendment. A plaintiff bears the burden 

of showing that the right at issue was clearly established. [Plaintiff] cited 

several cases that he believes clearly establish that [defendant] used excessive 

force. Those cases, however, do not present sufficiently similar factual 

circumstances to have placed the constitutional question beyond debate. 

... Given the Court’s admonition, we are unable to find a case so precisely 

on point with this one as to satisfy the Court’s demand for specificity. 

[Defendant] is therefore entitled to qualified immunity. 

Emmons v. City of Escondido, 921 F.3d 1172, 1174-75 (9th Cir. 2019) (emphasis added; 

internal quotations and citations omitted).

B. The Phoenix Officers are Entitled to Qualified Immunity on Plaintiff’s

Excessive Force Claim Because the Uses of Force Were Reasonable and did 

not Violate any ‘Clearly Established’ Law

Claims that law enforcement used excessive force in the course of seizing a person 

are analyzed under the Fourth Amendment’s “reasonableness” standard. Graham v. 
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Connor, 490 U.S. 386, 395 (1989). “Determining whether the force used is reasonable 

under the Fourth Amendment requires a careful 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. This balancing test entails consideration of the 

totality of the facts and circumstances in the particular case. Id. 

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. Id. at 396-97. The reasonableness of a particular use of force must be judged

from the perspective of a reasonable officer on the scene, rather than with the benefit of 

20/20 hindsight. Id. at 395. Reasonableness is assessed by weighing the type and amount 

of force used against:

(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.

See Miller v. Clark Cty., 340 F.3d 959, 964 (9th Cir. 2003), citing Chew v. Gates, 27 F.3d 

1432 at 1440 (9th Cir. 1994) and Graham, 490 U.S. at 396. These are commonly referred 

to as the Graham factors. See id. at 1441. “Of all these factors, the ‘most important’ one is 

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

S.B. v. County of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017) (citations omitted); see 

also Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005).

At each decision point where a Phoenix Officer chose to use force, we must

remember that: the arrest was lawful;

27 Muhaymin was actively and physically resisting 

27 The Phoenix Officers were making the arrest pursuant to an outstanding arrest warrant. 

SOF ¶17. 
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arrest throughout both encounters;

28 Muhaymin was in the process of committing a 

felony;

29 and Muhaymin posed a threat to his own safety and to those around him, including 

the Phoenix Officers. The threat was not resolved until Muhaymin was secured with the 

handcuffs behind his back. Notably, once the handcuffs were secured, the Phoenix Officers 

immediately ceased contact. SOF ¶58.

1. The Phoenix Officers Restraints on Muhaymin were Reasonable Under the 

Circumstances.

The Phoenix Officers responded to a reported assault at the Center. SOF ¶10. Upon 

arrival, they calmly spoke to Muhaymin and attempted to de-escalate the situation. SOF 

¶12, 13. The Phoenix Officers allowed Muhaymin to use the restroom30 and, upon 

additional questioning, determined Muhaymin would not be charged or arrested for the 

reported assault. It was discovered while Muhaymin was in the restroom that he had an 

outstanding misdemeanor arrest warrant from City of Mesa. SOF ¶15. Phoenix Police 

Department Operating Order No. 4.10 provides that, absent extraordinary circumstances, 

a Phoenix Officer must execute the warrant. Accordingly, it was the Phoenix Officers’ duty 

and responsibility to arrest Muhaymin pursuant to the warrant. SOF ¶76. Thus, the Phoenix 

Officers’ decision to arrest Muhaymin on the outstanding warrant was lawful. 

The next undisputed fact is critical. At the time of the encounter, Muhaymin was 

under the influence of methamphetamines. SOF ¶66, 67, 68, 70 and 71. When confronted 

with the warrant and arrest, Muhaymin failed to comply with the officers’ orders and, 

instead, immediately resisted arrest. SOF ¶22, 25, 26, 27, 28, 29, 33, 36, 40, 42, 44, 45, 

28 Plaintiff’s own expert agrees Muhaymin resisted arrest. SOF ¶75. 29 Resisting arrest is a class 6 felony in the State of Arizona. See A.R.S. § 13-2508.

30 Muhaymin was in the restroom for over six (6) minutes and with knowledge that the 

Phoenix Officers were waiting outside the door. Muhaymin may have used any 

remaining methamphetamines in his possession while he was in the restroom, which 

may have contributed to additional toxicity. SOF ¶15, 71.
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46. Each officer involved testified about the “extreme” or “super-human” strength 

exhibited by Muhaymin in his resistance. SOF ¶25, 31, 40, 42, 44, 46, 50.

The toxicology report indicated that the level of methamphetamines in Muhaymin’s

blood was .81 mg/L, which is more than five (5) times higher than the expected “toxic” 

(i.e., potentially fatal) level of the drug at .15 g/L – a fact that is acknowledged by the 

experts, including Plaintiff’s experts. SOF ¶67, 68, 69, 70, 71. Setting aside the dispute as 

to whether that extreme level of methamphetamine intoxication caused or substantially 

contributed to Muhaymin’s subsequent cardiac arrest and death, the undisputed fact for 

purposes of this Motion is that Muhaymin was under the influence of large quantities of an 

illegal drug known for its stimulant effects – increased energy, endurance, strength, and 

aggression – all of which were evident that morning at the Center. SOF ¶71.

Despite Muhaymin’s resistance, it is further undisputed that the Phoenix Officers 

never utilized a Taser or punched, hit, or kicked Muhaymin (except for a single elbow 

strike to his shoulder). SOF ¶64. In fact, the Phoenix Officers only used “holds” in their 

efforts to subdue and arrest Muhaymin -- who resisted with extreme strength. The Phoenix 

Officers used only the minimum amount of force necessary to control Muhaymin, secure 

his handcuffs, and effect the arrest. Once Muhaymin was secured with the handcuffs behind 

his back, the Phoenix Officers immediately ceased contact. SOF ¶44, 58, 72.

After years of litigation, Plaintiff can point to no violation of “clearly established 

law” that occurred. To the contrary, the facts demonstrate that the Phoenix Officers were 

making a lawful arrest using the minimal level of force necessary under the circumstances. 

Those circumstances, i.e., the physical struggle that occurred and the duration of that 

struggle, are directly and solely attributable to Muhaymin’s actions. Muhaymin used large 

amounts of methamphetamine and committed a felony by resisting arrest. 

On the body camera videos, the Phoenix Officers can be heard repeatedly pleading 

with Muhaymin to “calm down,” to “stop resisting,” and to “give [his] hands.” SOF ¶77. 
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The officers frequently adjusted their holds and application of body weight as they 

attempted to get Muhaymin’s arms behind his back to be handcuffed. SOF ¶44, 51.

Although Muhaymin yelled at one point that he was having difficulty breathing, he 

continued to yell, resist, and struggle against the officers’ efforts to get his hands behind 

his back and, even during this struggle where Muhaymin demonstrated tremendous 

strength, the officers assessed his breathing, adjusted their weight and positions, and 

continued to plead with Muhaymin to stop resisting. SOF ¶46, 50, 51, 53.

There are no facts to support the allegation that the use of force employed by the 

Phoenix Officers was so extreme as to prove that the officers were “plainly incompetent” 

or “knowingly violating the law.” See Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092 

(1986). The Phoenix Officers’ use of force was objectively reasonable under a totality of 

the circumstances.

31 Not a single expert retained by Plaintiff32 can identify: (1) the officer

involved; (2) the location of weight applied; (3) the amount of weight applied; or (4) the 

duration that weight was applied – which allegedly caused asphyxiation and death.

33

The undisputed facts show that Muhaymin: (a) ignored commands (that, if complied 

with, would have resulted in no use of force); (b) actively and continuously resisted the 

lawful arrest and physically struggled with the officers, showing tremendous strength and 

endurance against their efforts of subdual; and (c) was intoxicated on methamphetamine at 

31 Indeed, Muhaymin’s level of resistance proved nearly too much for four officers to 

control. SOF ¶31, 40. Thus, the four officers requested backup and assistance of 

additional officers to control Muhaymin. SOF ¶41. 32 Plaintiff’s expert, Dr. Omalu, testified he could not quantify how much weight was 

placed on Muhaymin in each and every exposure; that he was not paying attention to 

that because it was of “no significant forensic consequence” because in his opinion it is 

about a spectrum of cumulative exposure, despite the Phoenix Officers and Muhaymin 

changing positions dynamically. SOF ¶78. 33 Plaintiff’s expert, Mr. DeFoe, testified he did not know how long Muhaymin was in 

prone position, did not time the length of any application of body weight, that he could 

not tell how long and how much weight was applied. SOF ¶79.
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levels more than five (5) times the toxic or fatal level of the drug. SOF ¶25-26, 31, 40, 42, 

44, 46, 66-68, 70-71. The undisputed facts further show that the Phoenix Officers: (a) never 

employed a Taser against Muhaymin; (b) never struck him with a baton; (c) never punched, 

kicked or struck him (except for an elbow strike against his shoulder); (d) never used a 

“hog-tie” restraint; and (e) only utilized partial body weights, sporadically at that, against 

primarily the extremities of his body (feet, legs and arms) with only temporary, shortduration and partial body weight applied to his lower back and shoulder only until such 

time as Muhaymin was properly secured in handcuffs. SOF ¶44, 49, 51, 53, 56, 64, 65.

Moreover, the Phoenix Police Department conducted both an internal and criminal 

investigation into this incident. It was investigated by the Phoenix Police Department’s 

Professional Standards Bureau and was reviewed by the Department’s Use of Force Board. 

The Board determined each of the ten officers involved acted in accordance with 

Department policy. SOF ¶80. The incident was also investigated by the Phoenix Police 

Department’s Special Investigation Unit (“SIU”). SIU forwarded its investigation, along 

with the thirteen body worn camera videos of the incident, to the Maricopa County 

Attorney’s Office for potential criminal prosecution of the officers. On February 22, 2018, 

the Maricopa County Attorney’s Office announced its decision, that the officers did not 

commit any act that warranted criminal prosecution. SOF ¶81.

Tatum v. City and County of San Francisco, 441 F.3d 1090, 1095- 1100 (9th Cir. 

2006) is factually analogous. In Tatum, the Ninth Circuit held that a police officer's use of 

force preceding an arrest was objectively reasonable, despite the suspect’s death during the 

arrest. In Tatum, the officer asked the plaintiff, who was high on cocaine, to present 

identification and to cease kicking a police station door. The plaintiff did not respond and 

evaded arrest when the officer tried to place him in handcuffs. Several officers arrived to 

help arrest the plaintiff. The officers kept the plaintiff on his stomach with his face on the 

ground. The plaintiff’s heart stopped, and he died. Id. at 1093. The Ninth Circuit held 
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that the officers’ use of force to arrest the plaintiff was objectively reasonable, despite the 

minimal severity of the crime and the fact of his eventual death. Id. at 1096.

Tatum instructs that the Phoenix Officer’s actions did not violate the Constitution:

The officers needed to incapacitate [decedent], both to protect themselves 

and to protect him. As the district court noted, the summary judgment record 

did not contain evidence that any officer applied crushing pressure to 

[decedent's] back or neck as he lay prone... The officers' conduct underlying 

[plaintiffs] claims did not deprive [decedent] of a constitutional right. 

Consequently, [plaintiff] was not entitled to recover damages from the 

arresting officers under 42 U.S.C. § 1983 and the district court correctly 

granted summary judgment to the defendants.

Tatum at 1097-1100; see also Henderson v. City of San Diego., 2019 WL 11684755, at *11 

(S.D. Cal. 2010) (Tatum compelled a finding “that the Defendant officers acted reasonably 

in light of the circumstances and did not use excessive force in violation of the Fourth 

Amendment” by “handcuffing Decedent in response to his aggressive posture and 911 

domestic violence phone call, bringing him to the floor in a prone position, and applying 

(albeit unsuccessfully) maximum restraint[s], all while Decedent continued to struggle, 

kick and yell profanity with some brief pauses to ask for what while, undisputedly 

threatening the safety of the officers.”); Goldsmith v. Snohomish County, 558 F. Supp. 2d 

1140, 1151-53 (W.D. Wash. 2008) (use of handcuffs, tasers, punches, pain-compliance 

techniques, body weight, and hobble restraints to control a man who apparently had a panic 

attack at home held “objectively reasonable and therefore constitutional.”).

2. No Prior Precedent Holds that the Phoenix Officers’ Uses of Force Were 

Unlawful Under These Circumstances and, Therefore, They Did Not 

Violate “Clearly Established Law”

The Phoenix Officers’ use of partial body weight on Muhaymin’s extremities and 

the application of less than maximum restraints under the totality of the circumstances 

presented here is not a violation of “clearly established law.” It is not the Phoenix Officers’ 

burden to demonstrate to the Court that what transpired fits squarely within the facts of 

particular case where qualified immunity was granted – although it is respectfully 

submitted that the Phoenix Officers have provided such authority with the qualified 
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immunity cases cited supra. Rather, it is Plaintiff’s burden to demonstrate to this Court 

with citation to “clearly established law” (i.e., binding precedent that existed prior to 

January 4, 2017) that the actions taken by the Phoenix Officers had been previously 

recognized as clearly unlawful and unconstitutional.

Under the totality of the facts and circumstances of this case, and applying an 

objective reasonableness standard, the Phoenix Officers’ actions did not violate any clearly 

established law. For this reason, the Phoenix Officers are entitled to qualified immunity 

and summary judgment on all of Plaintiff’s claims pursuant to federal law under § 1983. 

C. Plaintiff’s Claim for Failure to Intervene Fails as a Matter of Law

Plaintiff’s claim that the Phoenix Officers are liable for an alleged failure to 

intervene (Count II) should likewise be dismissed because the arrest was not “unjustifiable” 

and “excessive force” was not utilized, both of which are essential elements of that claim. 

“An officer who fails to intercede is liable for the preventable harm caused by the actions 

of the other officers where that officer observes or has reason to know: (1) that excessive 

force is being used; (2) that a citizen has been unjustifiably arrested; or (3) that any 

constitutional violation has been committed by a law enforcement official.” Anderson v. 

Branen, 17 F.3d 552 (2d Cir. 1994) (citations omitted). 

Plaintiff’s expert, Mr. DeFoe, conceded if no excessive or unreasonable force was 

used, there is no duty to intervene. SOF ¶82. Accordingly, because there was no excessive 

or unreasonable force, Plaintiff’s claim for failure to intervene fails and must be dismissed.

D. Plaintiff’s Claim under the ADA Fails as a Matter of Fact and Law 

Count III of the Amended Complaint asserts a claim under the Americans with 

Disabilities Act (“ADA”). The factual premise for Plaintiff’s ADA claim34 is that 

Muhaymin was allegedly denied access to the Center because of his “service dog,” a 

34 The same applies to Plaintiff’s claim under Arizonans with Disability Act (“AzDA”). 
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Chihuahua named “Chiquita.” SOF ¶83. Yet, Plaintiff has no evidence that Muhaymin 

was, in fact, deemed disabled. That alone is dispositive of this claim. Moreover, even 

assuming arguendo that Muhaymin had a recognized disability under the ADA, Chiquita 

was not a “service animal” as defined. 

A “service animal” is specifically defined as “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.” 28 C.F.R. § 35.104. 

The dog must be specifically trained to perform certain tasks for the benefit of the person 

with the disability. Id. Emotional support, therapy or comfort animals are not considered 

service animals. Id.; see also A.R.S. § 11-11024(A). 

In this case, there is no evidence that Chiquita is a “service animal” as defined by

law. In fact, Chiquita was unregistered, unlicensed and had no vaccinations, including for 

rabies. SOF ¶3-4. Moreover, Plaintiff’s expert, Mr. DeFoe, testified that he was aware of 

no evidence to show that Chiquita was a “service animal” and, instead, merely based that 

erroneous conclusion on what Muhaymin said to the officers. SOF ¶84. 

Finally, even if Muhaymin had a recognized disability (which there is no evidence) 

and Chiquita was a “service animal” as defined under law (which she was not), the Center 

was fully within its legal rights to exclude an unleashed and uncontrolled dog from entry. 

Pursuant to 28 C.F.R. 35.136(b) and A.R.S. §11-1024(B), a service animal must be leashed 

(absent extraordinary circumstances) and the handler must have effective control of the 

animal. In this case, the Center’s reluctance to allow entry was because Chiquita was 

unleased. SOF ¶2, 5-6, 8. As noted above, not only was the dog unleashed, Chiquita had 

no vaccinations and was unlicensed. Furthermore, in the Center’s prior encounters with 

Chiquita, the dog was known to be aggressive and had actually attempted to bite staff 
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members. SOF ¶5. For these reasons, Count III (ADA) of the Amended Complaint should 

be summarily dismissed with prejudice.

35 

E. Because Dismissal of Plaintiff’s § 1983 and ADA Claims Disposes of Federal 

Question Jurisdiction, the Court Should Deny Supplemental Jurisdiction 

Over Plaintiff’s State Law Claims

“[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 (2001) (citing 28 U.S.C. 

§ 1367(c)(3)). And “in the usual case in which all federal-law claims are eliminated before 

trial, the balance of factors to be considered under the pendent jurisdiction doctrine--

judicial economy, convenience, fairness, and comity-- will point toward declining to 

exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. 

Cohill, 484 U.S. 343, 350 at fn. 7 (1988).

Here, the Court’s jurisdiction in this matter is derived from federal questions 

presented with respect to Plaintiff’s causes of action under §1983 and the ADA. But 

because the Phoenix Officers are entitled to qualified immunity on all of the § 1983 claims,

and the ADA claim fails, the Court’s federal question jurisdiction is dissolved. 

Accordingly, it is respectfully submitted this Court should decline to continue exercising 

supplemental jurisdiction over Plaintiffs’ state law claims against the Phoenix Defendants.

F. The Evidence Does Not Support the Phoenix Officers’ Liability under 

Arizona Law

In the event that the Court retains supplemental jurisdiction of Plaintiff’s state law 

claims, summary judgment is also warranted on those claims for reasons set forth below.

1. The Phoenix Officers have Immunity under Arizona law

In Arizona, A.R.S. § 13-409 provides a justification defense for law enforcement 

officers who use physical force in making an arrest:

35 Plaintiff’s state law discrimination claim (Count XIII) also should be dismissed. 
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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 other person, such person uses or threatens to use 

physical force and all of the following exist:

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.

If the officer’s use of force is justified under §13-409, the officer is immune from

any civil liability pursuant to A.R.S. § 13-413. Civil liability cannot be imposed on a law 

enforcement officer for “engaging in [justified] conduct” and this immunity applies 

“regardless of the theory of recovery.” Ryan v. Napier, 245 Ariz. 54, 63, 425 P.3d 230, 

236 (2018), citing A.R.S. § 13-413. 

The Phoenix Officers’ decision to arrest Muhaymin on a warrant was lawful. Once 

Muhaymin resisted arrest, the Phoenix Officers needed to use force to effect the arrest.

36 It 

is further undisputed that the Phoenix Officers continuously pleaded with Muhaymin to 

“stop resisting.” Accordingly, the Phoenix Officers’ conduct was justified pursuant to 

A.R.S. § 13-409 and the Phoenix Officers are immune from civil liability on all claims,

regardless of the theory of recovery pursuant to A.R.S. § 13-413. Id. 

In addition, the Phoenix Officers’ conduct was justified pursuant to A.R.S. § 12-

716. The statute provides, specifically, as follows: 

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 

36 Plaintiff’s expert, Mr. DeFoe testified that Muhaymin physically resisted the Phoenix 

Officers’ attempts to detain him. SOF ¶75.
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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 against another person's use or 

attempted use of physical force or deadly physical force.

(b) Effect an arrest or prevent or assist in preventing a plaintiff's 

escape.

2. This state or a political subdivision of this state is presumed to have 

reasonably hired and trained its peace officers to use physical force or 

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

physical force or deadly physical force to either:

(a) Protect himself or another person against another person's use or 

attempted use of physical force or deadly physical force.

(b) Effect an arrest or prevent or assist in preventing a plaintiff's 

escape.

B. If a party files a motion to dismiss or a motion for summary judgment 

pursuant to this section and the court grants the motion, the court shall 

award the moving party costs and attorney fees.

C. For the purposes of this section: 

1. "Costs" means all costs that are reasonably incurred in connection 

with the motion, including filing fees, record preparation and 

document copying fees, time away from employment, expert witness 

fees, travel expenses and any other costs that the court deems 

appropriate.

2. "Plaintiff" includes the heir or estate of a deceased person who was 

attempting to commit, committing or fleeing after having committed 

or attempting to commit a felony or misdemeanor criminal act or was 

under the influence of an intoxicating liquor or a drug. 

3. "Police tool product" means any weapon, safety equipment or product 

that is used by law enforcement. 

As detailed previously, Muhaymin’s arrest was indisputably lawful. There is also no 

question that Muhaymin was engaged in the commission of a felony by resisting a lawful 

arrest and that Muhaymin was intoxicated on drugs with over five (5) times the fatal level of
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methamphetamine in his system.

37 SOF ¶68. The Phoenix Officers’ use of force was in 

response to Muhaymin’s resistance of a lawful arrest, while under the influence of drugs. 

Pursuant to A.R.S. § 13-409, the Phoenix Officers’ physical contact with Muhaymin 

was justified as a matter of Arizona law. Pursuant to A.R.S. § 13-413, the Phoenix Officers 

are immune from any civil liability arising out of that physical contact with Muhaymin, 

regardless of the legal theory. Moreover, pursuant to A.R.S. § 12-716(A), Muhaymin’s death 

occurred during his commission of a felony and, as a matter of law, the Phoenix Officers are 

“presumed to have [been] reasonably hired and trained” and are “presumed to have acted 

reasonably” under these circumstances. See Ryan, 245 Ariz. at 62-63, 425 P. 3d at 238-39. 

For these reasons, all of Plaintiff’s claims against the Phoenix Officers based on 

Arizona law (Counts VII, VIII, IX, X, XI, XII, XIII and XIV) should be dismissed.

2. Plaintiff’s Claims Based in Negligence Fail as a Matter of Law 

In addition to immunity under A.R.S. § 13-413, which is dispositive of all Plaintiff’s 

state law claims, Plaintiff’s negligence claims also fail because Arizona does not recognize 

claims for negligent use of intentionally inflicted force. Ryan, 245 Ariz. at 59–60, 425 P.3d 

at 235–36 (emphasis added). “Negligence ... claims differ from intentional tort claims... 

each has different elements and different requirements of proof.” Wells Fargo Bank v. Ariz. 

Laborers, Local No. 395 Pension Tr. Fund, 201 Ariz. 474, 483, 38 P.3d 12, 21 (2002). The 

fundamental distinction between negligence and an intentional tort is whether the act was 

intentional or unintentional, and thus “negligence and intent are mutually exclusive 

37 Ariz. Rev. Stat. § 12-711 states: “In any civil action, the finder of fact may find the 

defendant not liable if the defendant proves that the claimant or, if the claimant is an heir 

or the estate of a deceased person, the decedent was under the influence of an 

intoxicating liquor or a drug and as a result of that influence the claimant or decedent 

was at least fifty percent responsible for the accident or event that caused the claimant’s 

or decedent’s harm.” See also Franklin v. Clemett, 240 Ariz. 587, 382 P.3d 802 (App. 

2016) (emphasis added). 
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grounds for liability.” Ryan, 245 Ariz. at 60, 425 P.3d at 235–36 (emphasis added). “It 

follows that if a defendant acts with the intent to cause a harmful or offensive touching 

(battery), that same act cannot constitute negligence.” Id. (emphasis added). 

In this case, the entire factual basis for the Amended Complaint (including 

negligence claims) is premised on intentional actions taken by the Phoenix Officers to 

effect the arrest of Muhaymin. Similar to the scenario in Ryan, this is tantamount to the 

difference between the police officer inadvertently dropping the leash of the K-9 attack 

dog or intentionally releasing that K-9 dog to attack. Id. at 63-64, 425 P. 3d at 239-40. 

As set forth in Ryan, negligence and intentional tort claims are mutually exclusive. 

Id. at 60, 425 P. 3d at 236. As such, Plaintiff cannot simultaneously claim that the Phoenix 

Officers’ use of force was both intentional and negligent. Id. Accordingly, Plaintiff’s 

claims based in negligence fail as a matter of law because the factual basis for these claims 

is premised on intentional acts, not unintentional acts. For these reasons, all of Plaintiff’s 

causes of action based in negligence should be dismissed, i.e., Count XI (Negligence), XII 

(Gross Negligence), Count XIV (Negligent Hiring, Supervision and/or Training)38 and 

Count X (Negligent Infliction of Emotional Distress).

3. Plaintiff’s Infliction of Emotional Distress Claims Fail

In addition to immunity under A.R.S. § 13-413, Plaintiff’s claims for infliction of 

emotional distress also fail because neither Plaintiff, nor Muhaymin’s children, were 

physically present to witness the arrest. The tort of intentional infliction of emotional 

distress requires a plaintiff to prove: (1) the conduct by the defendant was “extreme” and 

“outrageous;” (2) “the defendant either intend[s] to cause emotional distress or recklessly 

disregard[s] the near certainty that such distress will result from his conduct;” and (3) 

38 This claim also fails because an employer cannot be held liable under that theory if the 

underlying negligence claim against the employee fails. Mulhern v. City of Scottsdale, 

165 Ariz. 395, 398, 799 P.2d 15, 18 (App. 1990). 
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“severe emotional distress occur[s] as a result of defendant's conduct.” McKee v. State, 241 

Ariz. 377, 383–84, ¶ 25, 388 P.3d 14, 20–21 (App. 2016), quoting Ford v. Revlon, Inc., 

153 Ariz. 38, 43, 734 P.2d 580, 585 (1987); Cont'l Life & Acc. Co. v. Songer, 124 Ariz. 

294, 304–05, 603 P.2d 921, 931-32 (App. 1979).

For a plaintiff 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. (emphasis added), citing RESTATEMENT 

(SECOND) OF TORTS § 46(2) & **21 *384 cmt. l (limiting liability for intentional infliction 

of emotional distress to plaintiffs that are present at the time of the conduct “as 

distinguished from those who discover later what has occurred”); see also Ford v. Revlon, 

153 Ariz. at 43, 734 P.2d 580, 585 (stating that Arizona follows the elements set out in 

Restatement (Second) of Torts).

In this case, neither Plaintiff nor Muhaymin’s children were physically present to 

witness the allegedly “extreme” and “outrageous” conduct. This is an essential element to 

any claim for Intentional Infliction of Emotional Distress (Count IX). It is also an essential 

element to a claim for Negligent Infliction of Emotional Distress (Count X).39

4. There is No Evidence to Support Award of Compensatory Damages

Even if the Court finds that Plaintiff’s state-based claims are not subject to summary 

dismissal for reasons set forth above, Plaintiff has presented no evidence to support an 

award of compensatory damages. 

A wrongful-death claim is “an original and distinct claim for the damages sustained 

by named statutory beneficiaries; [i]t is not derived from nor is it a continuation of claims 

39 A claim for negligent infliction of emotional distress based upon an injury/death to a 

closely related person requires that the plaintiff actually “witness the injury” and “be 

within the zone of danger” so as to be subject to an unreasonable risk of bodily harm. 

Guerra v. State, 237 Ariz. 183, 186, ¶ 12, 348 P.3d 423, 426 (2015), quoting Villareal v. 

Ariz. Dep't of Transp., 160 Ariz. 474, 481, 774 P.2d 213, 220 (1989). 
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which formerly existed in a decedent.” Duenas v. Life Care Centers of Am., Inc., 236 Ariz. 

130, 138, ¶ 25, 336 P.3d 763, 771 (App. 2014) quoting Huebner v. Deuchle, 109 Ariz. 549, 

549–50, 514 P.2d 470, 470–71 (1973). The damages that may be recovered are the 

beneficiaries', not the decedent's. Estate of DeCamacho v. La Solana Care & Rehab, Inc., 

234 Ariz. 18, 24, 316 P.3d 607, 613 (App.2014).

In the context of a wrongful death claim, the trier of fact is asked to “give such 

damages as it deems fair and just with reference to the injury resulting from the death to 

the surviving parties who may be entitled to recover.” Vasquez v. State, 220 Ariz. 304, 310, 

206 P.3d 753, 759 (App. 2008), quoting A.R.S. § 12–613. Allowable items of injury for 

which damages may be claimed and recovered “are loss of love, affection, companionship, 

consortium, personal anguish and suffering.” Id. quoting Mullen v. Posada del Sol Health 

Care Ctr., 169 Ariz. 399, 400, 819 P.2d 985, 986 (App.1991).

Plaintiff is Muhaymin’s sister and the Personal Representative of Muhaymin’s 

Estate. SOF ¶85. As a matter of law, she is merely acting as the Personal Representative

and is entitled to no damages in this case. It is only Muhaymin’s children who have 

standing under A.R.S. §12–613 to claim damages such as alleged loss of “love, affection, 

companionship, consortium.” See Mullen, 169 Ariz. at 400, 819 P.2d at 986. 

In this case, however, there is no evidence to support these damage claims. Plaintiff 

bears the burden of proof and, despite the length of discovery in this case, has offered no 

factual support for any alleged damages. In fact, when asked directly to provide the factual 

basis and all supporting documents for Muhaymin’s daughter’s claimed damages in this 

lawsuit, Plaintiff responded that such information was not within Plaintiff’s “knowledge” 

and, moreover, argued that “[p]ursuant to Arizona law, the only aspect of this case that 

the statutory plaintiff necessarily establishes for the represented statutory beneficiaries 

is liability, not their damages.” SOF ¶86. Plaintiff then directed Defendants to the 

deposition of Muhaymin’s daughter for proof of damages but no such proof was offered at
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her deposition. In addition, legal counsel appointed to represent Muhaymin’s minor 

daughter has likewise failed to provide any evidence to support damages allegedly 

sustained by his client as a result of Muhaymin’s death. 

The unfortunate truth is that the children’s relationship with their father ended many 

years before January 4, 2017. Muhaymin was homeless for many years, spent several years

in prison,

40 and was otherwise long estranged from his children. SOF ¶87-89. Muhaymin’s

daughter (currently 14 years of age) has spent the majority of her life in foster care due to 

her father’s absence (and her mother’s). The last time she lived with Muhaymin was nine 

(9) years ago, in 2011, for approximately three months. She testified that she rarely, if ever, 

saw her father from 2011 to the time of his death.

41 SOF ¶87. Muhaymin’s adult son 

(currently 27 years of age) did not see his father once in the ten (10) years prior to his death

and testified that he had no relationship with his father. SOF ¶88. 

It is certainly tragic what these children endured in their young lives. However, the 

loss of their father’s love, affection and companionship had occurred for many years prior 

to his death and for the vast majority of their lives. Any emotional harm suffered by 

Muhaymin’s children occurred long before Muhaymin’s death as a result of their father’s

40a) Muhaymin was sentenced to prison on 05/25/2011 for one (1) year, for first degree 

criminal trespassing, a Class 6 Felony that occurred on 03/20/2010, Maricopa 

Superior Court, CR2010-115235;

b) Muhaymin was sentenced to prison on 05/25/2011 for one and a half (1.5) years, for 

aggravated assault, a Class 5 Felony that occurred on 10/09/2010, and he was released 

from prison on 03/22/2012, Maricopa Superior Court, CR2010-154704; 

c) Muhaymin was sentenced to prison on 07/02/2012 for one (1) year, for resisting arrest, 

a Class 6 Felony that occurred on 05/04/2012, and he was released from prison on 

03/14/2013, Maricopa Superior Court, CR2012-123479; and

d) Muhaymin was sentenced to prison on 07/15/2013 for two and half (2.5) years, for 

dangerous drug violation, a Class 4 Felony that occurred on 04/18/2013, and he was 

released from prison on 02/03/2016, Maricopa Superior Court, CR2013-417410.

41 She testified that she spent a few hours with Muhaymin at the park a few days before 

his death on January 4, 2017. SOF ¶88. 
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absence – which was a direct consequence of his choices and lifestyle. Absent evidence to 

support an award of compensatory damages, all claims in the Amended Complaint fail on 

the essential element of damages and should be summarily dismissed. 

5. Any “Claim” for Punitive Damages Should be Dismissed

Plaintiff did not plead a separate claim for punitive damages and it is unclear 

whether Plaintiff is trying to assert a federal claim or state claim for punitive damages.

Phoenix Defendants respectfully request the Court deny Plaintiff’s purported claim for 

punitive damages based on her failure to adequately plead the claim. To the extent the 

Court allows Plaintiff to pursue a punitive damage claim, and because Plaintiff requested 

punitive damages in the “request for relief” portion of the Amended Complaint, Defendants 

respectfully request that Plaintiff’s purported claim be dismissed. 

a. Plaintiff has no punitive damages claim for her state claims.

Public employees acting within the scope of their employment are immune from 

punitive damages claims. A.R.S. § 12-820.04 (“Neither a public entity nor a public 

employee acting within the scope of his employment is liable for punitive or exemplary 

damages.”). Here, there is no question that the Phoenix Officers were acting within the 

scope of their employment during the arrest of Muhaymin. In fact, the Amended Complaint 

specifically alleges that the “acts or omissions were conducted within the scope of the 

[Phoenix Officers’] official duties or employment” in virtually every claim listed in the 

Amended Complaint. See Dkt. No. 16. Accordingly, the Phoenix Officers are entitled to 

immunity from punitive damages under Arizona law. A.R.S. § 12-820.04.

b. There is no evidence to support punitive damages on Plaintiff’s 

federal claims.

Similarly, Plaintiff is not entitled to punitive damages on her federal claims. There 

is no evidence that any of the Phoenix Defendants acted with an evil motive or intent, or a 

reckless or callous indifference to the constitutional rights of others. Davis v. Mason Cty., 

927 F.2d 1473, 1485 (9th Cir. 1991); Smith v. Wade, 461 U.S. 30, 56 (1983). Plaintiff has 
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not provided any evidence that any of the Phoenix Defendants acted with an evil motive or 

intent, were motived by spite or ill will, or acted with reckless and callous indifference to 

constitutional rights that would support any purported claim to punitive damages.

Accordingly, to the extent alleged or sought, Phoenix Defendants respectfully request that 

any alleged punitive damages claim be dismissed. 

G. Plaintiff’s Claims Against City of Phoenix are Exclusively Based on Theory 

of Vicarious Liability 

The bulk of this Motion is focused on the Phoenix Officers because it is well settled 

that the City of Phoenix cannot be held vicariously liable under Plaintiff’s federal § 1983 

claims. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (there is no respondeat 

superior liability under § 1983); Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001).

Under § 1983, the City of Phoenix cannot be held vicariously liable for the wrongful 

acts of its employees. See Monell v. Dep’t of Soc. Servs. Of City of New York, 436 U.S. 

658, 694 (1978) (“[A] local government may not be sued under § 1983 for an injury 

inflicted solely by its employees or agents.”); City of Canton, Ohio v. Harris, 489 U.S. 378, 

385 (1989) (“Respondeat superior or vicarious liability will not attach under § 1983.”). 

Rather, municipal liability for any alleged civil rights’ violations (a/k/a, a “Monell” claim) 

is limited to specific claims, none of which has been plead in this case.42 With respect to 

the ADA claim (and also the AzDA claim), it fails against the City of Phoenix for the same 

reasons noted herein, i.e., that there is no evidence that Muhaymin had a recognized

disability and certainly no evidence that Chiquita was a “service animal” as defined by law. 

Finally, with regard to Plaintiff’s remaining state law claims based upon Arizona’s 

wrongful death statute, negligence, and intentional torts, all of those counts against the City 

42 Plaintiff filed a motion to amend to assert a §1983 “Monell” claim, but the Court has not 

granted the motion. See Dkt No. 192. In the event that motion to amend is later granted 

(and Defendants respectfully submit it is far too late and should be denied), Defendants 

will request the opportunity to address that claim in a future dispositive motion. 
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of Phoenix are premised on a theory of vicarious liability for the actions of the Phoenix 

Officers. Consequently, because the Phoenix Officers are not individually liable on the 

underlying claims, the claim for respondeat superior liability fails against the City of 

Phoenix. Mulhern v. City of Scottsdale, 165 Ariz. 395, 398, 799 P.2d 15, 18 (App. 1990).

VI. CONCLUSION

The Phoenix Defendants move for Summary Judgment on all of Plaintiff’s 

remaining federal claims under the Amended Complaint and respectfully ask the Court to 

decline to exercise supplemental jurisdiction of Plaintiff’s state law claims. In the event the 

Court exercises supplemental jurisdiction, the Phoenix Defendants also move for summary 

judgment on all of Plaintiff’s state law claims for reasons set forth herein. 

Dated: December 17, 2020.

O’CONNOR & DYET, P.C.

By: /s/ Karen J. Stillwell

Daniel J. O’Connor, Jr.

Karen J. Stillwell

Travis B. Hill

Attorneys for Defendants
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CERTIFICATE OF SERVICE

I hereby certify that on December 17, 2020, I electronically filed the foregoing with 

the Clerk of the Court for the U.S. District Court, District of Arizona, using the CM/ECF 

System. A Notice of Electronic Filing will be served to the following registered 

participants:

David A. Chami

PRICE LAW GROUP, APC 

8245 N. 85th Way

Scottsdale, AZ 85258

Attorney for Plaintiff 

Haytham Faraj

LAW OFFICES OF HAYTHAM FARAJ 

1935 W Belmont Ave. 

Chicago, IL 60657

Attorney for Plaintiff

Brian J. Theut

THEUT, THEUT & THEUT

5150 North 16th Street

Phoenix, AZ 85016

Guardian Ad Litem and Statutory 

Representative for A. M. 

By: /s/ Dara J. Wilson