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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Martha Winkler, 

Plaintiff, 

v. 

City of Phoenix, et al., 

Defendants. 

No. CV-15-01786-PHX-DLR 

ORDER 

 Plaintiff Martha Winkler alleges that Defendant Jason Gillespie, a police officer 

with Defendant the City of Phoenix (“City”), used excessive force to unlawfully arrest 

her in violation of her Fourth Amendment rights. Before the Court is Defendants’ 

summary judgment motion, which is fully briefed. (Docs. 68, 74, 79.) For the following 

reasons, Defendants’ motion is granted in part and denied in part. 

BACKGROUND1

 In July 2014, Winkler got into a dispute with Circle K employees over the 

purchase of a lottery ticket. Winkler called the Phoenix Police Department several times 

to report being harassed by the Circle K staff. A Circle K employee likewise contacted 

the police to report that Winkler was harassing customers and refusing to leave. 

 Nearly an hour after Winkler’s initial call, Officer Gillespie arrived at the Circle 

 

1

 Winkler raises a number of hearsay objections to evidence offered by Defendants in support of their separate statement of facts. (Doc. 75.) These objections are overruled. 

See e.g., Fed. R. Evid. 801(d)(2); 803(4); 803(8)(A)(ii), (iii). 
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K. He asked Winkler what she wanted, and Winkler demanded to speak with his 

supervisor. Officer Gillespie then entered the store, where an employee identified 

Winkler and reported that she was trespassing.2

 Officer Gillespie did not ask what 

happened between the employees and Winkler or whether they already informed Winkler 

that she was trespassing and needed to leave. Instead, Officer Gillespie returned to the 

parking lot and informed Winkler that she was trespassing and needed to leave 

immediately. 

 When Winkler failed to leave, Officer Gillespie asked for her 

identification. Winkler was on the phone during this time, but Officer Gillespie 

interpreted her non-responsiveness as a refusal to comply with his orders and decided to 

arrest her. While handcuffing Winkler, Officer Gillespie employed a straight-arm 

takedown, causing her to fall to the ground and strike her head. Officer Gillespie then 

called for emergency services. The entire encounter, from the time Officer Gillespie 

arrived on the scene to the time he called for emergency services, lasted roughly three 

minutes. 

LEGAL STANDARD 

 Summary judgment is appropriate if the evidence, viewed in the light most 

favorable to the nonmoving party, demonstrates “that 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 fact is material if it might affect the outcome of the case, and a dispute is 

genuine if a reasonable jury could find for the nonmoving party based on the competing 

 

2

 The parties use the phrase “wanted [Winkler] trespassed,” which grammatically is confusing. (See, e.g., Docs. 12 ¶ 32; 69 ¶ 14; 69-2 at 54:23-24; 75 PSSOF ¶¶ 8, 35.) Trespassing typically is an act done by a trespasser, not something done to her. Because 

no one defines this phrase as it has been used, and it is not otherwise clear what is meant 

by it. That is, the Court does not know whether store employees requested that Officer Gillespie arrest, cite, or remove Winkler for trespassing, or whether they simply reported that they considered Winkler to be a trespasser. (A cursory Google search yielded some enlightening results. See Neal Whitman, Trespassers Will Be Trespassed (2013), 

available at https://www.visualthesaurus.com/cm/dictionary/trespassers-will-be- trespassed/.) Because at this stage the Court must view the facts in the light most favorable to Winkler, the Court assumes that the Circle K employees merely reported to Officer Gillespie that they considered Winkler to be a trespasser, and did not request or demand that Officer Gillespie take any particular action against her. 
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evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Villiarimo v. Aloha 

Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). 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). 

 The party seeking summary judgment “bears the initial responsibility of informing 

the district court of the basis for its motion, and identifying those portions of [the record] 

which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. 

The burden then shifts to the non-movant to establish the existence of a genuine and 

material factual dispute. Id. at 324. Thus, the nonmoving party must show that the 

genuine factual issues “‘can be resolved only by a finder of fact because they may 

reasonably be resolved in favor of either party.’” Cal. Architectural Bldg. Prods., Inc. v. 

Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (quoting Anderson, 477 

U.S. at 250). 

PRELIMINARY ISSUES 

 Before addressing the merits of Defendants’ summary judgment motion, the Court 

first discusses some preliminary issues touching on the evidentiary basis for Winkler’s 

opposition motion. Specifically, Defendants’ (1) motion to strike Winkler’s declaration 

for purposes of this motion and (2) request that the Court treat their facts as undisputed 

because Winkler’s controverting statement of facts does not comply with Local Rule of 

Civil Procedure 56.1. 

I. Motion to Strike Winkler’s Declaration 

 Winkler submitted a sworn declaration with her response memorandum detailing 

her personal account of the incident, and relies in part on that declaration to establish the 

existence of material factual disputes. (Doc. 75-1.) Defendants argue that the Court 

should strike Winkler’s declaration because it (1) was not timely disclosed, (2) is plainly 

contradicted by her own disclosures and the surveillance video of the incident, and (3) is 

self-serving, conclusory, and lacks foundation. 
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 Motions to strike are generally disfavored and rarely granted. XY Skin Care & 

Cosmetics, LLC v. Hugo Boss USA, Inc., No. CV-08-1467-PHX-ROS, 2009 WL 

2382998, at *1 (D. Ariz. Aug. 4, 2009); Ordahl v. U.S., 646 F. Supp. 4, 6 (D. Mont. 

1985). 

A motion to strike may be filed only if it is authorized by 

statute or rule, such as Federal Rule of Civil Procedure 12(f), 

26(g)(2), or 37(b)(2)(A)(iii), or if it seeks to strike any part of a filing or submission on the ground that it is prohibited (or 

not authorized) by a statute, rule, or court order. 

LRCiv 7.2(m). 

A. Disclosure 

 Federal Rule of Civil Procedure 26(e) requires parties to supplement their 

disclosures “in a timely manner if the party learns that in a material respect the disclosure 

is incomplete or incorrect.” This responsibility to supplement applies regardless of 

whether the opposing party seeks additional disclosure. Moreover, the duty to 

supplement discovery responses is ongoing, and failure to do so can result in the 

exclusion of untimely disclosed information. See Fed. R. Civ. P. 37(c). 

 Winkler disclosed her declaration, which details her personal account of the 

incident, on June 16, 2017, two months after the close of fact discovery and in 

conjunction with her response to Defendants’ summary judgment motion. (Docs. 37, 53; 

75-1.) Defendants argue that the declaration and the information contained within it were 

withheld despite its apparent responsiveness to Defendants’ discovery requests. 

 For example, on December 28, 2015, Defendants requested that Winkler produce 

“all recordings, videos, statements, and notes made by [her] . . . relating to the 

lawsuit.” (Doc. 79-1.) To the extent Defendants contend that Winkler should have 

reduced her anticipated trial testimony to a written declaration back in December 2015 in 

order to respond to Defendants’ request for production (“RFP”), the argument is not welltaken. RFPs are used to obtain documents, electronically stored information, and other 

tangible things. Fed. R. Civ. P. 34. In responding to a RFP, a party typically is not 

required to create documents that do not otherwise exist. Here, Winkler’s declaration did 
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not exist when Defendants’ served their RFP, nor is it apparent why it would or should 

have been created at that time. Indeed, the need for such a declaration would not 

naturally arise unless a defendant moves for summary judgment without having first 

deposed the plaintiff. 

 Similarly, Defendants served Winkler with interrogatories that asked her to 

“[i]dentify with particularity any facts and evidence in support of” her claims. (Doc. 79-

2.) Winkler responded that she had “disclosed the [] requested information within [her] 

26.1 [d]isclosure statement.” (Doc. 79 at 4.) Defendants argue that the information 

contained within the declaration is responsive to the interrogatory and should have been 

disclosed, yet they fail to offer specific examples of how the declaration materially differs 

from Winkler’s 26.1 disclosure. 

 Moreover, contrary to Defendants’ argument, the allegations in Winkler’s 

complaint are consistent with the statements made in her declaration. For example, 

Defendants claim that a number of statements from Winkler’s declaration are found 

nowhere else in the record, including: (1) Winkler was not belligerent; (2) the store 

employees mishandled the situation; (3) Officer Gillespie had an angry demeanor 

towards Winkler upon his arrival on scene; and (4) Winkler was cooperative and 

provided Officer Gillespie with identification. (Doc. 79 at 4-6.) But Winkler’s complaint 

alleges that: (1) she “never raised her voice;” (2) that the “store clerk incorrectly took” 

her lottery ticket order; (3) upon Officer Gillespie’s arrival, he seemed “irritated and 

loudly shouted at” Winkler; and (4) that “Officer Gillespie asked for [Winkler’s] 

identification [and] she complied.” (Doc. 12 ¶¶ 10-13.) Considering Winkler’s 

declaration offers substantially the same information as her complaint, it is disingenuous 

for Defendants to now claim that they were unaware of Winkler’s version of events and 

would have deposed her had they only known earlier. Defendants’ untimely disclosure 

argument is unconvincing. 

B. Inconsistency with Other Evidence 
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 Next, Defendants argue that Winkler’s declaration should be stricken because it is 

inconsistent “with the evidence she herself disclosed and” and that it is wholly 

contradicted by Circle K’s surveillance video. (Doc. 79 at 4-6.) The Court disagrees. 

Again, Defendants do not direct the Court to specific examples of inconsistencies. 

Additionally, the Court has reviewed the surveillance footage and finds that it does not 

utterly discredit Winkler’s account of events. Indeed, the video offers only limited 

insight into what occurred because much of the interaction between Winkler and Officer 

Gillespie takes place off-camera or is partially obstructed by a parked vehicle. 

C. Foundation 

Finally, Defendants assert that statements contained within Winkler’s declaration 

are made without proper foundation. (Id. at 5.) Under Federal Rule 56(c)(4), a 

declaration used to support or oppose a motion “must be made with personal knowledge, 

set out facts that would be admissible in evidence, and show that the [] declarant is 

competent to testify on the matters stated.” After reviewing Winkler’s declaration, it is 

apparent that the non-conclusory statements concern her personal interactions with store 

employees, Officer Gillespie, and medical personnel, topics of which she has personal 

knowledge. Defendants’ motion to strike therefore is denied. 

II. Compliance with LRCiv 56.1 

 This District’s Local Rules of Practice impose specific requirements on the form 

and content of summary judgment motions. “Any party filing a motion for summary 

judgment must file a statement, separate from the motion and memorandum of law, 

setting forth each material fact on which the party relies in support of the motion.” 

LRCiv 56.1(a). Each of these facts “must refer to a specific admissible portion of the 

record where the fact finds support (for example, affidavit, deposition, discovery 

response, etc.).” Id. Likewise: 

Any party opposing a motion for summary judgment must file a statement, separate from that party’s memorandum of law, 

setting forth: 

(1) for each paragraph of the moving party’s separate statement of facts, a correspondingly numbered paragraph 
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indicating whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific 

admissible portion of the record supporting the party’s position if the fact is disputed; and 

(2) any additional facts that establish a genuine issue of 

material fact or otherwise preclude judgment in favor of the moving party. Each additional fact must be set forth in a 

separately numbered paragraph and must refer to a specific admissible portion of the record where the fact finds support. 

LRCiv 56.1(b). 

 The rule distinguishes between a separate statement of facts and a memorandum of 

law because the two documents serve different purposes. The court should be able to 

glean which facts, if any, are genuinely disputed by reviewing the parties’ separate and 

controverting statements of facts. Working from that baseline of facts, the court then 

looks to the parties’ memoranda of law to determine whether any genuinely disputed 

matters are material under governing law, or whether the movant is entitled to judgment 

as a matter of law. Thus, factual disputes should be aired in the parties’ separate 

statements, while legal disputes should be addressed in their memoranda of law. See 

McClure v. Country Life Ins. Co., No. 15-CV-02579-PHX-DLR, 2017 WL 3268841, at 

*2 (D. Ariz. Aug. 1, 2017). The court may deem a movant’s separate statement of facts 

to be true if the nonmoving party does not comply with these rules. See Szaley v. Pima 

Cty., 371 Fed. App’x. 734, 735 (9th Cir. 2010). 

 Defendants argue that many paragraphs in Winkler’s controverting statement of 

facts violate LRCiv 56.1 because they fail to reference specific, admissible portions of 

the record establishing a genuine factual dispute or identify with particularity which facts 

are controverted.3

 (Doc. 79 at 2; Doc. 75 PCSOF ¶¶ 1-10, 12-14, 16-21, 24-27, 29.) At 

the outset, the Court customarily disregards factual statements not supported by citations 

to the record, and does not consider arguments or conclusions made within either party’s 

 

3

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separate statement of facts. To the extent certain paragraphs of Winkler’s separate 

controverting statement of facts fall into these categories, those paragraphs have not been 

considered for purposes of this order. 

 With that said, a number of Defendants’ specific objections are not well-taken. 

Defendants complain that Winkler partially objects “to facts that are undisputed,” but the 

need for partial objections was created by Defendants’ own failure to comply with LRCiv 

56.1(a), which requires each material fact be set forth in a “separately numbered 

paragraph.” For example, in a single paragraph Defendants state that upon Officer 

Gillespie’s arrival (1) Winkler “approached him, appearing irate;” (2) he asked what she 

wanted, to which she responded she wanted to speak to his supervisor; and (3) “[s]ensing 

that he wasn’t going to get anywhere with [Winkler],” he proceeded into the store. (Doc. 

69 ¶ 13.) In response, Winkler partially disputes the fact, but notes that she “does not 

dispute that [she] asked for a supervisor, and that Officer Gillespie spent little with [her] 

before going into the store.” (Doc. 75 PCSOF ¶ 13.) Thus, where Winkler partially 

disputes Defendants’ statements of fact, she specifies the way in which the fact is 

disputed. (See, e.g., Id. ¶ 8.) Additionally, to the extent that Defendant’s admissibility 

objections are based on Winkler’s reliance on her own declaration, the objection is 

overruled for the reasons discussed above. 

DISCUSSION 

 Winkler asserts claims under 42 U.S.C. § 1983 against Officer Gillespie and the 

City, as well as a state law gross negligence claim against the City under a vicarious 

liability theory. Defendants move for summary judgment on all counts.

I. Claims Against Officer Gillespie (Counts III & IV) 

 Section 1983 provides a cause of action for persons who have been deprived of 

their constitutional rights by persons acting under color of law. It is a mechanism “for 

vindicating federal rights elsewhere conferred,” and “is not itself a source of substantive 

rights.” Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005) (internal 

quotations omitted). To succeed on a claim under § 1983, a plaintiff must show “(1) that 
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a right secured by the Constitution or the laws of the United States was violated, and (2) 

that the alleged violation was committed by a person acting under color of State law.” 

Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). Winkler alleges that Officer 

Gillespie violated her Fourth and Fourteenth Amendment rights by falsely arresting her 

and using excessive force. 

 A. False Arrest 

 The Fourth Amendment protects persons against “unreasonable searches and 

seizures.” U.S. Const. amend. IV. The reasonableness of an arrest depends on the 

existence of probable cause. U.S. v. Hoyos, 892 F.2d 1387, 1392 (9th Cir. 1989); see 

also Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (a false arrest 

is one effectuated without probable cause). Probable cause to arrest exists “when officers 

have knowledge or reasonably trustworthy information sufficient to lead a person of 

reasonable caution to believe that an offense has been or is being committed by the 

person being arrested.” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 

2007). The existence of probable cause is “generally a question for the jury” because 

such determinations are highly dependent on the facts and circumstances. McKenzie v. 

Lamb, 738 F.2d 1005, 1008 (9th Cir. 1989). Summary judgment is proper, however, if 

no reasonable jury could find that the officer lacked probable cause to arrest. Id. 

 Defendants contend that Officer Gillespie had probable cause to arrest Winkler for 

criminal trespass, which requires “knowingly entering or remaining unlawfully on any 

real property after a reasonable request to leave by a law enforcement officer, the owner 

or any other person having lawful control over such property.” A.R.S. § 13-1502(A)(1). 

Defendants also argue that, pursuant to the City’s Operations Order 4.10 and 6.2, Winkler 

was not eligible for cite-and-release because she failed to provide him with proper 

identification.4 (Doc. 69 ¶¶ 32-33.) 

 

4

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charges only, may be eligible for release . . . after being issued an Arizona Traffic Ticket 

and Complaint (ATTC).” (Doc. 69-5 at 20). Moreover, according to Operations Order 6.2 “[i]ssuing an ATTC as a citation in lieu of detention (CLD) should be strongly considered when the elements of a lawful misdemeanor arrest are present.” (Doc. 69-6 at 
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 Having reviewed the parties’ briefs and the evidence cited therein, the Court finds 

that genuine factual disputes preclude summary judgment. For example, Winkler 

asserted that neither Officer Gillespie nor the store employees instructed her to leave the 

property or informed her that she was trespassing. (Doc. 75 PCSOF ¶¶ 6,8, 14.) In 

contrast, a store employee testified that he “warned” Winkler about trespassing. (Doc. 75 

PSSOF ¶ 40.) For his part, Officer Gillespie could not remember whether he instructed 

Winkler to leave the property or simply not to reenter the store. (¶ 35.) He also 

acknowledged that he might not have had Winkler’s attention because she was on the 

phone, which calls into question whether a reasonable officer in Officer Gillespie’s 

position would have believed that Winkler was knowingly refusing to leave after being 

asked to do so. (¶¶ 20, 38.) Additionally, in contrast to Defendants’ position, Winkler 

averred that she provided Officer Gillespie with her identification. (¶ 11.) These factual 

disputes, combined with the fact that Officer Gillespie elected to arrest Winkler after less 

than a minute of explaining the situation to her (¶ 13), supply enough doubt about the 

facts and circumstances underlying the arrest to preclude summary judgment on 

Winkler’s § 1983 false arrest claim. 

B. Excessive Force 

“Excessive force claims, like most other Fourth Amendment issues, are evaluated 

for objective reasonableness based upon the information the officers had when the 

conduct occurred.” Saucier v. Katz, 533 U.S. 194, 207 (2001). The operative question is 

“whether the officers’ actions were ‘objectively reasonable’ in light of the facts and 

circumstances confronting them, without regard to their underlying intent or motivation.” 

Graham v. Connor, 490 U.S. 386, 397 (1989). 

 Analyzing a Fourth Amendment excessive force claim requires “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 (internal quotations 

 9.) An exception to this rule is made where there is a question concerning the validity of the perpetrators identification. (Id.) 
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omitted). Traditionally, this balancing is conducted in three steps. First, a court 

evaluates “the type and amount of force inflicted.” Espinosa v. City and Cty. of San 

Francisco, 598 F.3d 528, 537 (9th Cir. 2010) (internal quotations omitted). Second, the 

court considers the government’s interest in using force, relying on factors such as, “(1) 

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

officers’ or public’s safety; and (3) whether the suspect was resisting arrest or attempting 

escape.” Id. The court then “balance[s] the gravity of the intrusion on the individual 

against the government’s need for that intrusion . . .” Miller v. Clark Cty., 340 F.3d 959, 

964 (9th Cir. 2003). “Because questions of reasonableness are not well-suited to precise 

legal determination, the propriety of a particular use of force is generally an issue for the 

jury.” See Chew v. Gates, 27 F.3d 1432, 1440-41 n.5 (9th Cir. 1994). 

It is undisputed that Officer Gillespie used a straight-arm takedown and that 

Winkler was arrested for misdemeanor trespass. (See e.g., Doc. 69 ¶ 20; Doc. 69-2 at 

98:25; 99:1-3, 16-24; Doc. 75 PSSOF ¶ 21.)5

 There are genuine factual disputes about 

whether Winkler posed an immediate threat to Officer Gillespie or resisted arrest. For 

example, Officer Gillespie testified that he used the straight-arm takedown because he 

was concerned about being struck by passing vehicles in the parking lot. Winkler, 

however, stated that neither she nor Officer Gillespie were in danger of being struck by 

vehicles in the parking lot because the takedown took place inside a parking stall away 

from any traffic. (Compare Doc. 69 ¶ 17 with Doc. 75 PCSOF ¶ 17.) As previously 

discussed, the surveillance video offers little clarity. Similarly, the evidence of Winkler 

resisting arrest is ambiguous. For example, Officer Gillespie testified that Winkler tried 

to pull away when he went to handcuff her. In contrast, Winkler stated that she never 

resisted arrest because Officer Gillespie never notified her that she was under arrest. 

(Compare Doc. 69 ¶ 19 with Doc. 75 PCSOF ¶ 19 and Doc. 75 PSSOF ¶¶ 15-18.) 

 For these reasons, the Court finds that there are outstanding questions of fact 

 

5

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regarding the propriety of the force Officer Gillespie used to arrest Winkler, especially 

given the relatively minor nature of the infraction for which she was arrested. 

Defendants’ summary judgment motion on this claim is denied. 

II. Claims Against the City (Counts I & II) 

 A. Gross Negligence 

In Count I, Winkler asserts that the City is grossly negligent under a vicarious 

liability theory. A party is grossly negligent if it “act[s] when he or she knows or has 

reason to know facts which would lead a reasonable person to realize that his conduct not 

only creates an unreasonable risk of bodily harm to others but also involves a high 

probability that substantial harm will result.” Badia v. City of Casa Grande, 988 P.2d 

134, 141-42 (Ariz. Ct. App. 1999) (citation omitted). Under Arizona law, an employer 

may be held vicariously liable under the doctrine of respondeat superior for the negligent 

acts of its employee acting within the course and scope of employment. Baker ex rel. 

Hall Brake Supply, Inc. v. Steward Title & Trust of Phoenix, Inc., 5 P.3d 249, 254 (Ariz. 

Ct. App. 2000); Restatement (Third) of Agency § 7.07(1) (2006). 

 Here, it is undisputed that Officer Gillespie is an employee of the Phoenix Police 

Department and was acting within the course and scope of his employment at the time of 

the incident. Defendants argue, however, that the City cannot be vicariously liable 

because Officer Gillespie is immune from civil liability. Arizona law provides police 

officers immunity from civil liability when their underlying conduct is justified under the 

state’s use of force statutes. See, e.g., A.R.S. §§ 13-409, 13-410. One such statute 

provides that an officer is justified in using physical force against another in making an 

arrest if: (1) “[a] reasonable person would believe that such force is immediately 

necessary to effect the arrest;” (2) “[s]uch person makes known the purpose of the arrest . 

. . or believes that it is otherwise known or cannot reasonably be made known to the 

person to be arrested; and (3) “[a] reasonable person would believe the arrest or detention 

to be lawful.” A.R.S. § 13-409. For largely the same reasons that a reasonable jury could 

find that Officer Gillespie lacked probable cause and used excessive force, it also could 
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find that he acted with gross negligence. See Badia, 988 P.2d at 141 (noting that gross 

negligence may only be resolved on summary judgment “if no evidence is introduced that 

would lead a reasonable person to find gross negligence”). Summary judgment on this 

claim is denied. 

B. Section 1983

 In Count II, Winkler raises a § 1983 against the City for its hiring, training, and 

supervision of Officer Gillespie. (Doc. 12 at 4-5.) “Liability under section 1983 arises 

only upon a showing of personal participation by the defendant.” Taylor v. List, 880 F.2d 

1040, 1045 (9th Cir. 1989). Stated differently, a municipality cannot be vicariously liable 

under § 1983 for the actions of its employees, but it can be liable where its own actions 

cause the constitutional violation. See City of Canton v. Harris, 489 U.S. 378, 385 

(1989). In order to ensure that a municipality is not held liable solely for the actions of 

its employees, “rigorous standards of culpability and causation” apply “where a plaintiff 

claims that the municipality has not directly inflicted an injury, but nonetheless has 

caused an employee to do so.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 

397, 405 (1997). 

 Specifically, a plaintiff seeking to impose liability on a municipality under § 1983 

must identify a deliberate policy or custom that caused the plaintiff’s injury. Id. at 404. 

A custom exists when a practice, which has not been formally approved by the 

appropriate decision-makers, is so persistent and widespread as to have the force of law. 

Id; Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (defining custom as a 

“longstanding practice” which “constitutes the standard operating procedure”). The 

policy or custom must amount to deliberate indifference to the constitutional rights of 

individuals the police officers are likely to come into contact with. See Blankenhorn v. 

City of Orange, 485 F.3d 463, 484-85 (9th Cir. 2007). 

 In support of her claim against the City, Winkler argues that Operations Order 1.5, 

which provides the rules for use of force by Phoenix police offers, is unconstitutional. 

According to Winkler, her “injuries were sustained as a result of an officer complying 
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with Order 1.5,” and that the Order “resulted in the violation of [her] Fourth Amendment 

[r]ights.” (Doc. 75 at 12-13.) The Court disagrees. 

 Order 1.5 states: “Circumstances that may govern the reasonableness of using a 

particular force option include, but are not limited to: (1) [t]he severity of the crime; (2) 

[w]hether the suspect poses an immediate threat to the safety of officers or others; [and] 

(3) [w]hether the suspect is actively resisting arrest or attempting to evade arrest by 

flight.” The order itself is not unconstitutional because its language closely tracks the 

Fourth Amendment’s use of force standards as set out in Graham. 490 U.S. at 396-97. 

The City cannot be held liable under § 1983 for instituting a constitutional use of force 

policy. 

 Indeed, on this point Winkler seems to have her argument backward. If Officer 

Gillespie complied with a policy materially identical to the Fourth Amendment’s use of 

force standards, it necessarily would follow that Officer Gillespie acted constitutionally. 

Winkler, of course, believes that Officer Gillespie acted unconstitutionally, and the Court 

has found summary judgment is inappropriate on the constitutional claims against him. If 

Officer Gillespie violated the constitution in the manner Winkler alleges, then it seems to 

follow that he would not have complied with Order 1.5. Importantly, Winkler has 

offered no evidence that the City customarily disregards its own policies and the Fourth 

Amendment’s use of force standards. Instead, she relies on her encounter with Officer 

Gillespie, which is a single incident and not, alone, indicative of a systemic policy or 

custom of violating people’s constitutional rights. For this reason, Defendants’ are 

entitled to summary judgment on Winkler’s § 1983 claim against the City. 

CONCLUSION 

For the foregoing reasons, the Court grants Defendants’ motion for summary 

judgment on Winkler’s § 1983 claim against the City, but denies Defendants’ motion 

with respect to Winkler’s gross negligence claim against the City and § 1983 claims 

against Officer Gillespie. 

// 
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IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. 68) is 

GRANTED IN PART and DENIED IN PART as explained herein. 

 Dated this 27th day of February, 2018. 

Douglas L. Rayes 

United States District Judge