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 WO 

 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Walter L Cleveland, Jr., 

Plaintiff, 

v. 

County of Cochise, et. al., 

Defendants. 

No. CV-15-00400-TUC-BPV

FINDINGS OF FACT AND 

CONCLUSIONS OF LAW 

 

 Plaintiff Walter L. Cleveland, who is proceeding pro se, brings this action against: 

(1) Cochise County, Arizona, for Cochise County Sheriff’s Department; (2) Cochise 

County Deputy Sheriff Troy Haymore; (3) Cochise County Deputy Sheriff Robin Cronin; 

and (4) Cochise County Deputy Sheriff Marsha Callahan-English. (See Pretrial Order, 

(Doc. 27 at 1)). Plaintiff’s claims are based on 42 U.S.C. § 1983 for alleged violations of 

his rights under the Fourth and Fourteenth Amendments of the United States Constitution 

relating to use of excessive force, unlawful search, unlawful seizure, and placing 

Plaintiff’s life “at risk by withholding...” his blood pressure medication. (Id.). Plaintiff 

also alleges state law claims of: false arrest; assault; and negligence with regard to his 

blood pressure medication. (Id. at 1‒2). 

 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties consented 

to proceed before a United States Magistrate Judge to conduct any and all further 

proceedings in this case, including trial and entry of a final judgment, with direct review 

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by the Ninth Circuit Court of Appeals if an appeal is filed. (Doc. 19). 

 On June 13, 2016, the Court conducted a one-day bench trial in this action. (See

Amended Minute Entry 6/13/16 (Doc. 30)). At trial, Plaintiff was the only witness to 

testify in his case-in-chief. At the close of Plaintiff’s evidence, counsel for Defendants 

made an oral motion for judgment as a matter of law and the Court granted the motion 

with regard to the excessive force claim only.1

 (Id.). Defendants then presented 

testimony from the following witnesses: Assistant Chief Artie Reid of the Willcox Rural 

Fire Department and Defendant Cochise County Deputy Sheriffs Haymore, Cronin, and 

Callahan-English. (Id.). No exhibits were admitted into evidence. Nor did the parties 

submit any stipulations of fact or uncontested issues. (See Doc. 27 at 2). 

 The Court has heard and weighed the testimony presented at trial. The Court has 

observed the witnesses’ demeanor at trial and has evaluated their candor and credibility. 

Having considered the pleadings, testimony of the witnesses, and the Court’s trial notes, 

the Court makes the following Findings of Fact and Conclusion of Law in accordance 

with Rule 52(a) of the Federal Rules of Civil Procedure.2

I. FINDINGS OF FACT

 To the extent that the Findings of Fact stated below are also deemed to be 

 1

 At the close of Plaintiff’s case-in-chief, counsel for Defendants requested judgment as a matter of law. Because such a motion is available only with regard to jury trials, Defendants’ motion is more appropriately considered as a motion for judgment on partial findings under Rule 52(c). See Ritchie v. United States, 451 F.3d at 1022‒23 (9th Cir. 2006); Fed.R.Civ.P. 50(a), 52(c). Under Rule 52(c): If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. Fed.R.Civ.P. 52(c). The Court hereby amends the June 13, 2016 Order (Doc. 30) to reflect that: (1) Defendants’ motion for judgment as a matter of law is construed as a motion for judgment on partial findings under Rule 52(c); and (2) the Court grants the motion with regard to Plaintiff’s excessive force claim only. The Court includes its findings of fact and conclusions of law with regard to the Rule 52(c) motion below. See Fed.R.Civ.P. 52(c) (“A judgment on partial findings must be supported by findings of fact and conclusions of 

law as required by Rule 52(a).”). 

2

 The Court has determined that it is not necessary for the parties to file proposed findings of facts and conclusions of law pursuant to LRCiv 52.1 of the Local Rules of the 

District of Arizona and dispenses with that requirement. 

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Conclusions of Law, they are hereby incorporated into the Conclusions of Law that 

follow. 

 At all relevant times, Plaintiff and his brother, Fred Cleveland, lived in homes 

located next to each other on the same property at or near Willcox, Arizona. The 

property on which both homes are located is fenced with at least one gate leading to 

Plaintiff’s residence. The fence is about 20 feet from Plaintiff’s residence. Late on the 

evening of August 7, 2015, Plaintiff set fire to a mattress and other household trash at his 

residence. The fire was located inside the fence, approximately 10 feet in front of 

Plaintiff’s residence.3

 

 At approximately 11:18 p.m., on August 7, 2015, Deputy Haymore responded to 

Plaintiff’s residence in response to a report of burning. Upon arrival, he saw the fire in 

front of Plaintiff’s residence. He spoke to Fred Cleveland who said that Plaintiff had 

been drinking and had wanted to set a bonfire. 

 At Plaintiff’s residence, Deputy Haymore saw Plaintiff standing on the other side 

of the fire. When Deputy Haymore called out to him, Plaintiff went into his home saying 

something to the effect that he was not going to talk to the deputy. Deputy Haymore 

stepped over a chain link fence which was a little lower than waist high so that he could 

make contact with Plaintiff. After he knocked on the door, he heard the sound of 

someone pushing furniture around, and based on his training, he suspected that Plaintiff 

was barricading himself inside. Due to safety concerns, Deputy Haymore retreated to the 

other side of the fence to wait for back-up to arrive. 

 Deputy Cronin arrived as back-up. She spoke to Fred Cleveland who told her that 

Plaintiff, who had been drinking, wanted to set a bonfire which Fred did not want to do. 

Fred Cleveland also told Deputy Cronin that Plaintiff was not supposed to be drinking per 

 

3

 Plaintiff testified that the fire could have been within ten feet of his residence. 

Assistant Fire Chief Reid testified that the fire was located somewhere between 12 and 20 

feet from the residence and approximately 71⁄2 feet from a power pole. Deputy Haymore testified that the fire was about 5 to 10 feet in front of the residence and Deputy Cronin testified that the fire was about 10 feet from the residence. The evidence establishes that 

the fire was within close proximity to Plaintiff’s home and a power pole. 

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a release order. Deputy Cronin contacted the Willcox Jail and confirmed that Plaintiff 

was subject to conditions of release prohibiting alcohol. 

 Deputy Cronin and Deputy Haymore remained outside the fence and called for 

Plaintiff to come out so that they could talk to him. After about 15 minutes, Plaintiff 

came out of his home. He appeared intoxicated and very agitated, waving his arms and 

yelling to the effect that he: (1) did not want to speak to the deputies, (2) did not want to 

go to jail; and (3) was going to sue them.4

 Plaintiff also admitted that he had started the 

fire. Meanwhile, Assistant Chief Reid of Willcox Rural Fire Department arrived and 

worked to extinguish the fire with a garden hose.5

 

 Eventually, Deputy Callahan-Enlgish, who at that time was acting as a senior night 

officer6

, was summoned to the scene by Deputy Cronin. Upon Deputy CallahanEnglish’s arrival, Plaintiff was standing outside the fence.7

 Plaintiff continued to present 

as very agitated and upset, waving his arms and clenching his fists. His speech was 

slurred and his eyes were blood shot. All three deputies believed Plaintiff was 

intoxicated.8

 When Deputy Callahan-English asked Plaintiff why he ran into the house 

earlier, he responded that he did so because he was not going back to jail. He also stated 

 

4

 Plaintiff informed the deputies that he previously sued Cochise County and received $250 and, now, he would sue for millions. 

5

 This was not Assistant Chief Reid’s first encounter with Plaintiff. In the 18 

months prior to this incident, Assistant Chief Reid had responded to Plaintiff’s residence on two other occasions: one involving a ceiling fire caused by Plaintiff’s wood stove, and the other when Plaintiff was burning weeds too close to his home and without a 

permit. During the weed-burning incident, Assistant Chief Reid told Plaintiff that he 

could not burn without a permit and he could not set a fire any closer than 50 feet to any structure. Plaintiff testified that Assistant Chief Reid never told him not to burn outside. 

Plaintiff’s testimony is not inconsistent with Chief Reid’s.

6

 Deputy Callahan-English has been a deputy sheriff since January 2006 and her responsibilities include being a canine handler. Prior to working as a deputy sheriff, she worked as an animal control officer. 

7

 Deputy Haymore testified that Plaintiff stepped over the fence at some point. 

8

 Plaintiff testified that although he was not intoxicated, he had been drinking Everclear alcohol that day. On August 7, 2015, Plaintiff told Deputies Haymore, Cronin and Callahan-English that he had been drinking. Fred Cleveland had also informed 

Assistant Chief Reid and Deputies Haymore, Cronin and Callahan-English that Plaintiff had been drinking alcohol. 

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that he had a loaded gun and if they came into the house to try to get him, he would shoot 

them.9

 Plaintiff’s behavior fluctuated from extreme agitation and yelling profanities at the 

deputies one minute, to becoming calm, then returning to an agitated state. Due to this 

behavior, Deputy Callahan-English inquired whether Plaintiff, in addition to being 

intoxicated, had any significant medical issues that she should know about. Plaintiff 

responded that he suffered from high blood pressure and high cholesterol.10 Out of 

concern caused by what Deputy Callahan-English described as Plaintiff’s “rollercoaster 

emotions” and “rollercoaster attitude” toward the deputies, she asked him whether it 

would be all right to have paramedics see him and she requested paramedics to respond 

to the scene. 

 Deputy Haymore was with Plaintiff while the paramedics attended to him. 

Although Plaintiff was not aggressive toward the paramedics, he was agitated and they 

had to tell him to calm down several times. Plaintiff told the paramedics that he had high 

blood pressure. The paramedics determined that Plaintiff’s blood pressure was fine and 

informed Deputy Haymore that Plaintiff had no significant medical issues at that time 

and could be released to the deputies. 

 While Plaintiff was with the paramedics, Deputies Callahan-English and Cronin 

spoke with Fred Cleveland and his wife Denise. The Clevelands said that Plaintiff had 

been drinking and he was unpredictable when he was drinking. They also told the two 

deputies that Plaintiff had threatened their family and he had also threatened a juvenile 

named Gage11, who was not related to the Clevelands, but who had been at their 

 

9

 At trial, Plaintiff denied that he told the deputies that he had a loaded gun and would shoot at anyone who came inside to get him. Upon weighing the credibility of the witnesses as well as testimony about Plaintiff’s demeanor during the incident and his threat earlier that night to shoot out his brother’s window, discussed infra, the Court finds 

that Plaintiff did make such a threat. 

10 At the time of the incident, Plaintiff was taking two blood pressure medications, medication to treat high cholesterol, daily aspirin, and allergy medication. 

11 The deputies did not obtain Gage’s full name. 

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residence. They reported that Plaintiff had a BB gun and a machete. They also told the 

deputies that Plaintiff threatened to shoot out a window of their home, and they were 

scared he would follow through on the threat because, on a previous occasion, he shot out 

the windows of a vehicle belonging to Fred.12 The Clevelands said that Plaintiff had 

anger issues and that he previously had spent time in prison in another state for slicing a 

man from his head to his shoulder. The Clevelands warned the deputies to be careful if 

they arrested Plaintiff because he would cause problems. 

 Based on the information from Fred and Denise Cleveland, Deputy CallahanEnglish decided to arrest Plaintiff on charges of domestic violence/disorderly conduct 

and domestic violence/threatening or intimidating. After Plaintiff finished with the 

paramedics, Deputy Callahan-English informed him he was under arrest. She directed 

him to turn around and place his hands behind his back, at which point Plaintiff became 

upset, saying that he did not want to go to jail and did not want to leave his dogs. 

 Deputy Callahan-English told Plaintiff that she would be more than happy to make 

sure his dogs had food and water and that they would be cared for, but to turn around and 

put his hand behind his back. Plaintiff said: “Okay”, but did not turn around or place his 

hands behind his back13 and, instead, began cursing at the deputies and yelling about 

suing them. Deputy Callahan-English again directed Plaintiff to turn around and place 

his hands behind his back or he would be charged with resisting arrest. Plaintiff then 

complied with her command. 

 

12 Plaintiff admitted during trial that in April 2014, he shot out the windows of 

Fred Cleveland’s car over an argument about an electric bill. Plaintiff testified that he 

later pled guilty to domestic violence/criminal damage. 

13 Plaintiff testified that he turned around and placed his hands behind his back on 

Deputy Callahan-English’s first command to do so. He also testified that he may have said that he did not want to leave his three dogs, which were in the house. Although Plaintiff did not remember Deputy Callahan-English saying that she would feed and water the dogs, he did remember her saying that she was going to check on the dogs. Plaintiff testified there was no need for the deputy to tend to the dogs because they already had food and water. Assistant Chief Reid testified that he heard Plaintiff say he did not want to leave his dogs. Assistant Chief Reid also heard Deputy Callahan-English offer to make sure the dogs were fed and watered, and he heard Plaintiff respond: “Okay.” Upon weighing the credibility of the witnesses, the Court credits Deputy Callahan-English’s and Assistant Chief Reid’s testimony. 

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 Deputy Callahan-English understood Plaintiff saying “Okay” as his 

“acquiescence” to her offer to look after the dogs.14 She went on to testify that Plaintiff 

never told her not to check on the dogs. 

 Deputy Callahan-English and the paramedics, who she requested accompany her15, 

entered Plaintiff’s home. Deputy Callahan-English stood inside the doorway while the 

paramedics tended to the dogs and obtained Plaintiff’s blood pressure medication. 

Deputy Callahan-English wanted Plaintiff’s medication16 because she intended to book 

him into jail for the night and she was aware of the possibility that he may have to stay 

there two or three days. She wanted the medication at this time to avoid the need to 

obtain permission later to re-enter the residence to obtain it. Deputy Callahan-English 

did not conduct a search of Plaintiff’s residence and she and the paramedics were not 

inside for an extended period of time. However, while Deputy Callahan-English waited 

for the paramedics, she observed in plain view near the front door where she stood, a 

revolver-style handgun (later determined to be a CO2 BB gun) and, across from her in 

plain view near the television, she saw a large machete. 

 Deputy Callahan-English seized both weapons. She testified that she did so for 

security reasons because Plaintiff’s door did not secure well, because she was dealing 

with a domestic violence issue, and because the area where Plaintiff’s residence is located 

has a high incidence of illegal immigrant traffic and drug smuggling. Her intention was 

to secure the weapons. She did not intend to initiate any charges related to the weapons. 

Later, Deputy Callahan-English made arrangements with Plaintiff’s sister-in-law to care 

 

14 Deputy Callahan-English felt especially qualified to tend to the dogs based on her experience as an animal control officer and canine handler. In her experience, she has never had anyone tell her not to care for their animals. 

15 Deputy Callahan-English requested that the paramedics accompany her to prevent any accusations that she stole something or did something that she should not have done. 

16 Although Deputy Callahan-English did not remember Plaintiff mentioning to her that he was on medication, in her experience, people with high blood pressure and high cholesterol were on medication. She testified that Plaintiff did not request that she get his medication. 

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for the dogs in the event Plaintiff remained in custody for more than a day. 

 While Deputy Callahan-English was storing the weapons in her vehicle, she was 

called over to Deputy Cronin’s patrol car where Plaintiff, who was inside the car, was 

angry and yelling profanity and for the deputies to snap his neck. Inside Deputy Cronin’s 

patrol car, Plaintiff was hitting his head against the partition dividing the back seat from 

the front seat, and he was also throwing his head backwards against the back seat, while 

screaming. Deputy Callahan-English told Plaintiff that she had secured his gun and 

machete, his dogs were fed and watered, and everything would be okay but he needed to 

stop resisting and calm down. She went on to tell him that if he would calm down, he 

would probably just spend the night in jail and be out the next day. Plaintiff continued 

yelling profanity at the deputies and yelling for them to snap his neck. 

 At one point, Deputy Haymore entered the patrol car to prevent Plaintiff from 

hurting himself. Deputy Haymore secured Plaintiff’s head by placing his right arm 

around the back of Plaintiff’s head and placing his left arm around Plaintiff’s left cheek, 

ear and forehead to prevent Plaintiff from hitting his head on the partition or the back 

seat. Deputy Haymore did not initiate any pain compliance; instead, his intention was to 

prevent Plaintiff from harming himself. Deputy Cronin assisted Deputy Haymore by 

holding Plaintiff from the other side. Deputy Cronin used her body weight and placed 

her hand on Plaintiff’s face to prevent him from hitting his head. She did not intend to 

cause Plaintiff pain. Plaintiff told the deputies that he was going to fake an injury in 

order to keep from going to jail. 

 Willcox Police Department (“WPD”) was called to the scene. Deputies Haymore 

and Cronin decided to transfer Plaintiff to the WPD patrol vehicle because it was smaller 

and presented less of an opportunity for Plaintiff to injure himself. Plaintiff resisted 

transfer to the WPD vehicle by tucking his legs under the seat in Deputy Cronin’s 

vehicle. Once outside Deputy Cronin’s vehicle, Plaintiff kicked wildly and refused to 

comply with the deputies’ commands, so the deputies took Plaintiff to the ground to 

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secure his legs.17 During this time, Plaintiff bit at Deputy Cronin’s thigh.18 After her 

encounter with Plaintiff, Deputy Cronin had a bruise on her left forearm and an injured 

pinkie, both of which did not require medical attention. 

 The deputies eventually transferred Plaintiff to the WPD patrol car and transported 

Plaintiff to the Willcox detention center. When Deputy Haymore went to remove 

Plaintiff from the vehicle, Plaintiff appeared unconscious and did not respond to his 

name, although he was breathing. Plaintiff had blood on his head and shoulder. Deputy 

Haymore called paramedics. After checking on Plaintiff, the paramedics informed 

Deputy Haymore that Plaintiff had been faking being unconscious and he was fine, but he 

should probably be seen at to the hospital anyway. Plaintiff, who was on a gurney, was 

taken to the hospital where medical staff informed that Plaintiff’s potassium was off19

and that he should stay at the hospital for treatment to achieve a safe level of potassium. 

 Deputy Callahan-English informed her lieutenant that Plaintiff would be spending 

the night at the hospital to receive medical care. The lieutenant then directed Deputy 

Callahan-English to cite and release Plaintiff, and to also obtain an emergency order of 

protection for Fred Cleveland and his family. Deputy Callahan-English obtained the 

emergency order of protection and informed Plaintiff he was not to return to his residence 

and that if he needed items from there, he should contact the sheriff’s department for 

assistance. She stressed to Plaintiff that if he returned to his residence he might be 

arrested.20 At just before 4:00 a.m., after citing and releasing Plaintiff, Deputy Callahan-

 

17 Plaintiff denies kicking at the deputies when he was outside the patrol vehicles. In light of Plaintiff’s volatile behavior during the entire evening, the Court finds the deputies’ version to be credible. 

18 The Court accepts as true Plaintiff’s testimony that he does not have teeth. The 

absence of teeth does not negate Deputy Cronin’s testimony that Plaintiff used his mouth against her in a biting motion. 

19 On direct examination, Plaintiff testified that hospital staff determined that his potassium level was low. On cross-examination, when Plaintiff was asked by way of a leading question, whether the doctor found he had no injuries but had “elevated potassium”, Plaintiff answered, “Yes.” 

20 Plaintiff testified that he did not remember being told he was not permitted to return to his residence or to call the sheriff’s department if he needed anything from his 

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English left Plaintiff in the hospital’s care. 

 Later at the hospital, Plaintiff indicated that he wished to refuse further treatment 

so that he could return home. When he encountered resistance from medical staff who 

indicated he needed to stay until the IV bag was empty, he became angry, kicked a chair, 

and spilled a container of urine. Hospital staff contacted WPD, who took Plaintiff into 

custody, apparently cited him for disorderly conduct, and transported him to a detention 

facility where Plaintiff remained until the following day. 

 The following day, August 8, 2015, Plaintiff walked home after he was released 

from the detention facility. At home, Plaintiff could not locate his blood pressure 

medication. He contacted the Cochise County Sheriff’s Department and WPD, and both 

denied having the medication. Plaintiff also contacted hospital staff who denied having 

the medication, but called in a prescription. However, Plaintiff’s pharmacy informed him 

that his insurance declined the prescription because he had recently filled a prescription 

for that medication. Plaintiff then sought care at the hospital because his head was 

pounding. According to Plaintiff, when his blood pressure is up, his head feels like it is 

going to explode. At the hospital, Plaintiff’s blood pressure was recorded at 189/122 and 

he was informed that his blood pressure was high and that he was borderline for a stroke 

or heart attack. 

 On August 8, 2015, Deputy Callahan-English received a call reporting that 

Plaintiff had returned to his residence. At approximately 7:30 to 8:00 p.m. that evening, 

she drove to the property and met with Fred Cleveland who said that Plaintiff had been at 

the residence since about 2:30 that afternoon.21 She subsequently spoke to Plaintiff, who 

appeared sober and said he was sorry for what had happened the night before and that he 

acts that way when he drinks. Deputy Callahan-English’s sergeant directed her to issue a 

ticket through the court to avoid any further altercation. She advised Plaintiff that just 

because she was leaving did not mean that he would not be charged with violating the 

 home. The Court finds Deputy Callahan-English’s version to be credible. 

21 On August 8, 2015, Deputy Callahan-English came on duty at 4:00 p.m. 

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protective order. Deputy Callahan-English returned Plaintiff’s medication at that time. 

 Additionally, at some point on August 8, 2015, Plaintiff contacted the Cochise 

County Sheriff’s Department about the removal of his weapons. He was informed that he 

could pick up the weapons that day or wait until his court date. Plaintiff opted to wait 

until the court date because he was low on gas. The weapons were returned to him on 

August 12, 2015. Plaintiff was not charged with any offense related to the weapons. 

 In September 2015, Plaintiff entered a guilty plea to reckless burning and to 

disorderly conduct at the hospital, all arising from the incidents on August 7 and 8, 2015. 

II. CONCLUSIONS OF LAW

 To the extent that any of the Findings of Fact contain or include conclusions of 

law, they are incorporated by reference herein. 

A. JURISDICTION

 Plaintiff has alleged claims under 42 U.S.C. § 1983 and Arizona law. The Court 

has jurisdiction over this action pursuant to 28 U.S.C. § 1331 as it arises under the 

Constitution, Laws, or Treaties of the United States. The Court also has supplemental 

jurisdiction over Plaintiff’s state law claims. See 28 U.S.C. § 1367(a). 

 B. PLAINTIFF’S CLAIMS PURSUANT TO 42 U.S.C. § 1983 

 Under § 1983, every person who, under color of state law, deprives any citizen of 

the United States “of any rights, privileges, or immunities secured by the Constitution 

and laws, shall be liable to the party injured . . . .’” 42 U.S.C. § 1983. Here, Plaintiff 

alleges that Defendants deprived him of his rights under the United States Constitution. 

Thus, to prevail under §1983, Plaintiff must prove by a preponderance of the evidence 

that Defendants acted under color of state law22 and Defendants’ acts deprived Plaintiff 

of his particular rights under the United States Constitution. See e.g. Pavao v. Pagay,

307 F.3d 915, 919 (9th Cir. 2002) (“In a civil case under 42 U.S.C. § 1983, . . . the 

 

22 “An individual acts under color of state law when he or she exercises power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” Naffe v. Frey, 789 F.3d 1030, 1036 (9th Cir. 2015) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). Here, the Defendants were acting under color of state law for purposes of § 1983. 

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plaintiff carries the ultimate burden of establishing each element of his or her claim. . . .”) 

(citing Larez v. Holcomb, 16 F.3d 1513, 1517 (9th Cir. 1994)). 

 Plaintiff must also demonstrate by a preponderance of the evidence that 

Defendants’ conduct was the actionable cause of Plaintiff’s claimed injury. Harper v. 

City of Los Angeles, 533 F.3d 1010, 1027 (9th Cir. 2008) (citation omitted). “To meet 

this causation requirement, the plaintiff must establish both causation-in-fact and 

proximate causation.” Id. (citation omitted); see also Rizzo v. Goode, 423 U.S. 362, 731-

73, 377 (1976) (to prevail, the plaintiff must demonstrate that he suffered a specific injury 

as a result of specific conduct of a defendant and show some affirmative link between the 

injury and that defendant’s conduct.). 

 1. PLAINTIFF’S CLAIMS AGAINST DEFENDANT COCHISE COUNTY 

A local government may not be held liable on a theory of respondeat superior. 

Gibson v. County. of Washoe, Nev., 290 F.3d 1175, 1186 (9th Cir. 2002), overruled on 

other grounds by Castro v. County of Los Angeles, __ F.3d __, 2016 WL 4268955, *11 

(9th Cir. Aug. 15, 2016) (en banc)), (citing Monell v. New York City Dep't of Soc. Servs., 

436 U.S. 658, 694 (1978)). Instead, “a local government may be held liable ‘when 

implementation of its official policies or established customs inflicts the constitutional 

injury.’” Clouthier v. Cty. of Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010), 

overruled on other grounds by Castro, __ F.3d __, 2016 WL 4268955, *6, (quoting 

Monell, 436 U.S. at 708 (Powell, J. concurring)); see also Price v. Sery, 513 F.3d 962, 

966 (9th Cir. 2008) (stating that plaintiffs may “establish municipal liability by 

demonstrating that . . . the constitutional tort was the result of a longstanding practice or 

custom which constitutes the standard operating procedure of the local government 

entity.”) (internal quotations omitted). Additionally, under certain circumstances a local 

government may be held liable where, “through its omissions the [governmental entity] is 

responsible for a constitutional violation committed by one of its employees. . . .” 

Gibson, 290 F.3d at 1186 (citations omitted). In establishing liability on this theory, the 

plaintiff must prove that the governmental entity’s deliberate indifference led to its 

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omission and that the omission caused the employee to commit the constitutional 

violation) overruled on other grounds by Castro, __ F.3d. __, 2016 WL 4268955 at *11-

*12 (holding that objective standard is used to establish deliberate indifference and 

overruling Gibson to the extent that it suggested otherwise). 

 Plaintiff has not established that Defendant Cochise County maintained a policy, 

practice or custom that resulted in the constitutional deprivations of which he claims. 

Nor has he established that Cochise County, through its omissions, is responsible for a 

constitutional violation committed by one of its employees. Consequently, judgment is 

entered in favor of Defendant Cochise County with regard to Plaintiff’s § 1983 claim. 

 2. DETENTION AND ARREST

The Fourth Amendment to the United States Constitution “protects the right to be 

free from ‘unreasonable searches and seizures[.]’” Davis v. United States, 564 U.S. 229, 

231 (2011); see also McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir. 1984) (the Fourth 

Amendment is made applicable to the states through the Fourteenth Amendment). 

Nonetheless, the Supreme Court “has recognized that a law enforcement officer’s 

reasonable suspicion that a person may be involved in criminal activity permits the 

officer to stop the person for a brief time and take additional steps to investigate further” 

without violating the Fourth Amendment. Hiibel v. Sixth Judicial Dist. Court of Nevada,

542 U.S. 177, 185 (2004); see also Terry v. Ohio, 392 U.S. 1 (1963). Reasonable 

suspicion requires the officer to identify “specific and articulable facts which, taken 

together with rational inferences from those facts, reasonably warrant that intrusion.” 

Terry, 392 U.S. at 21 (footnote omitted). When determining whether an officer had 

reasonable suspicion to perform an investigatory detention, “the totality of the 

circumstances—the whole picture—must be taken into account.” United States v. Cortez, 

449 U.S. 411, 417 (1981). 

Additionally, “[t]he [F]ourth [A]mendment . . . prohibits arrests without probable 

cause.” McKenzie, 738 F.2d at 1007 (citing Beck v. Ohio, 379 U.S. 89, 90–91 (1964)). 

Under the Fourth Amendment, a warrantless arrest such as that which occurred in 

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Plaintiff’s case, “‘requires probable cause,’ which ‘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.’” 

Sialoi v. City of San Diego, 823 F.3d 1223, 1232 (9th Cir. 2016) (quoting United States v. 

Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)). “Because the probable cause standard is 

objective, probable cause supports an arrest so long as the arresting officers had probable 

cause to arrest the suspect for any criminal offense, regardless of their stated reason for 

the arrest.” Edgerly v. City & Cty. of San Francisco, 599 F.3d 946, 954 (9th Cir. 2010). 

Whether probable cause to arrest exists depends “on the totality of facts” available to the 

officers. Sialoi, 823 F.3d at 1232 (internal quotation marks and citation omitted). 

When Deputy Haymore responded to the scene after having received a report 

about the fire, he spoke to Fred Cleveland who said that Plaintiff, who was his brother, 

had wanted to set a bonfire. Deputy Haymore saw Plaintiff standing at the fire in front of 

his residence where a mattress and other household debris were burning.23 That fire, 

which was inside the fence surrounding both Plaintiff’s and Fred Cleveland’s homes, was 

in close proximity to Plaintiff’s home as well as to a power pole. When Deputy Haymore 

called out to Plaintiff, Plaintiff retreated into his home saying he did not want to talk to 

the deputy. When Deputy Callahan-Enlgish arrived, Plaintiff was standing outside the 

fence carrying on in an agitated state. Deputy Callahan-English ultimately placed 

Plaintiff under arrest for domestic violence/disorderly conduct24 and domestic 

 23 Defendants have not cited any particular statutes with regard to reckless burning or burning without a permit. In Arizona, “[a] person commits reckless burning by recklessly causing a fire or explosion which results in damage to an occupied structure, a structure, wildland or property.” A.R.S. § 13-1702(A). Reckless burning is a class 1 misdemeanor. A.R.S. § 13-1702(B). At least one Arizona statute prohibits certain types of open fires, discusses the issuance of open burning permits, and provides that first time 

violators will be subject to a civil penalty. A.R.S. § 49-501. 

24 Under Arizona law, in pertinent part: 

A person commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so, such person: 

 1. Engages in fighting, violent or seriously disruptive behavior; or 2. Makes unreasonable noise; or 

3. Uses abusive or offensive language or gestures to any person present in a manner likely to provoke immediate physical retaliation 

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violence/threatening or intimidating25. 

 Plaintiff admitted setting the fire in front of his home and on the property he 

shared with his brother’s family. Plaintiff appeared intoxicated to the deputies and 

Assistant Chief Reid, he admitted to drinking and he was agitated when talking to the 

deputies, demonstrated by waiving his arms, clenching his fists, and using profanity. 

Fred and Denise Cleveland reported that Plaintiff had been drinking and that he was 

unpredictable when drinking. He threatened to shoot out the window of their home and 

they were afraid for their safety, especially given that on a previous occasion, Plaintiff 

shot out the windows of Fred’s car and had served prison time for cutting another man. 

They reported that Plaintiff had a BB gun and a machete. The Clevelands’ reports of 

threats are consistent with Plaintiff’s behavior toward the deputies, including his threat to 

shoot them if they came into the house to get him. The Court concludes that the 

Defendant deputies had reasonable suspicion to detain Plaintiff and their arrest of 

Plaintiff based on charges of domestic violence/disorderly conduct and domestic 

violence/threatening or intimidating was supported by probable cause. 

 by such person; * * * 

6. Recklessly handles, displays or discharges a deadly weapon or dangerous instrument. A.R.S. § 13-2904(A). Such offense involves domestic violence when the victim is 

related to the defendant. A.R.S. § 13-3601(A)(1), (4). 

25 Under Arizona law: 

A person commits threatening or intimidating if the person threatens or intimidates by word or conduct: 

 1. To cause physical injury to another person or serious damage to 

the property of another; or 

2. To cause, or in reckless disregard to causing, serious public 

inconvenience including, but not limited to, evacuation of a building, 

place of assembly or transportation facility; or 

3. To cause physical injury to another person or damage to the 

property of another in order to promote, further or assist in the 

interests of or to cause, induce or solicit another person to participate 

in a criminal street gang, a criminal syndicate or a racketeering 

enterprise. 

A.R.S. § 13-1202(A). Such offense involves domestic violence when the victim is 

related to the defendant. A.R.S. § 13-3601(A)(1), (4). 

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 3. EXCESSIVE USE OF FORCE 

“When a plaintiff alleges excessive force during an investigation or arrest, the 

federal right at issue is the Fourth Amendment right against unreasonable seizures.” 

Tolan v. Cotton, __ U.S. __, 134 S.Ct. 1861, 1865 (2014) (citing Graham v. Connor, 490 

U.S. 386, 394 (1989)); see also Smith v. City of Hemet, 394 F.3d 689,700‒01 (9th Cir. 

2005); Pierce v. Multnomah County, Or., 76 F.3d. 1032, 1042‒43 (9th Cir. 1996) 

(holding that “[t]he Fourth Amendment sets the applicable constitutional limitations on 

the treatment of an arrestee detained without a warrant up until the time such arrestee is 

released or found to be legally in custody based upon probable cause for arrest.”). The 

inquiry into whether the Fourth Amendment right against unreasonable seizures was 

violated “requires balancing ‘the nature and quality of the intrusion’ on a person’s liberty 

with the ‘countervailing governmental interests at stake’ to determine whether the use of 

force was objectively reasonable under the circumstances [confronting the officers].” 

Smith, 394 F.3d at 701 (quoting Graham, 490 U.S. at 396); see also Tolan, __ U.S. at __, 

134 S.Ct. at 1865‒66.		The Ninth Circuit “undertake[s] this inquiry with great caution, 

making ‘allowance[s] for the fact that police officers are often forced to make splitsecond judgments—in circumstances that are tense, uncertain, and rapidly evolving—

about the amount of force that is necessary in a particular situation.’” Marquez v. City of 

Phoenix, 693 F.3d 1167, 1174 (9th Cir. 2012) (quoting Graham, 490 U.S. at 396‒97). 

 The Supreme Court has indicated that relevant factors in the reasonableness 

inquiry include, but are not limited to: (1) the severity of the crime at issue; (2) whether 

the suspect poses an immediate threat to the safety of the officers or others; and (3) 

whether the suspect is actively resisting arrest or attempting to evade arrest by flight. 

Smith, 394 F.3d at 701 (citing Graham, 490 U.S. at 396). Additionally, although the 

existence of less forceful options to capture or subdue a suspect “is relevant, ‘[p]olice 

officers . . . are not required to use the least intrusive degree of force possible.’” Marquez,

693 F.3d at 1174 (quoting Forrester v. City of San Diego, 25 F.3d 804, 807–08 (9th 

Cir.1994)). The Ninth Circuit applies Graham “by first considering the nature and quality 

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of the alleged intrusion. . . .” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) 

(citation omitted). 

 With regard to Defendants’ Rule 52(c) motion, at the close of Plaintiff’s case, the 

evidence established that after Plaintiff, who had been drinking and presented as 

intoxicated, had been placed under arrest, handcuffed and escorted to the patrol car, he 

began to hit his head against the back of the seat and partition between the front and back 

seats because he felt that he should have been issued a citation instead of being arrested. 

He testified that two of the deputies got into the patrol car with him and held his head to 

prevent him from hurting himself. He admitted that when the deputies attempted to 

transfer him to the WPD patrol car, he put his feet under the seat of the Deputy Cronin’s 

patrol car to prevent the transfer. He admitted that once inside the WPD patrol car, he 

continued to hit his head on the back of the seat. Upon arriving at the jail, he appeared 

unconscious and was ultimately taken to the hospital where the doctor found he had no 

injuries, but his potassium level was off. 

 As to the nature and quality of the force used by the deputies, Plaintiff’s evidence 

does not remotely suggest the amount of force used or that it was excessive. With regard 

to the severity of Plaintiff’s crimes, as discussed earlier, the deputies had probable cause 

to arrest Plaintiff for domestic violence/disorderly conduct and domestic 

violence/threatening or intimidating. Given that Plaintiff’s threats against his brother 

involved use of a weapon, the charges were serious, especially in light of the fact that 

Plaintiff previously had exhibited similar conduct directed at his brother by shooting out 

the windows of his brother’s vehicle. Turning to the governmental interests at stake, 

Plaintiff conceded that he was hitting his head against the back seat and partition between 

the seats and that he resisted the deputies’ efforts to remove him from the patrol car by 

tucking his legs under the seat. Here, there were significant governmental interests that 

could lead an objectively reasonable officer in the same situation to believe that the force 

used with Plaintiff was justified given that the deputies had good reason to believe that 

allowing Plaintiff to continue hitting his head against the seat and partition in the patrol 

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car would create a serious harm to himself. Moreover, although Plaintiff testified that 

two of the deputies held his head to prevent him from hitting it back and forth in the 

patrol car, his testimony does not suggest that the deputies employed any more force than 

that which was reasonably necessary to prevent him from harming himself. “Not every 

push or shove . . .” in the course of making an arrest amounts to a constitutional violation. 

Graham, 490 U.S. at 396. Defendants’ oral motion for judgment as a matter of law, 

which is construed as a motion for judgment on partial findings is well taken. Therefore, 

Defendants are entitled to judgment on partial findings in their favor pursuant to Rule 

52(c). 

 Moreover, consideration of all the evidence presented at trial also supports a 

judgment in the Defendant deputies’ favor. Here, Plaintiff’s own actions in an attempt to 

injure himself in order to protest his arrest and to support a law suit precipitated any use 

of force. Deputy Haymore described the manner in which he used his arms to brace 

Plaintiff from hitting himself against the front partition and back seat of the patrol car. 

Deputy Cronin also used her body weight to assist Deputy Haymore to keep Plaintiff 

from flinging himself back and forth in the patrol car. Deputy Haymore stressed that he 

did not attempt any pain compliance. When Plaintiff was removed from Deputy Cronin’s 

patrol car for transfer to the smaller WPD car for Plaintiff’s safety, Plaintiff at first 

resisted and then began kicking at the deputies who took him to the ground to secure his 

legs. Although, upon arrival at the detention center, Plaintiff had blood on his head and 

shoulders, there is no evidence that the bleeding was caused by the deputies’ use of force 

as opposed to Plaintiff’s own efforts to injure himself. The evidence supports the finding 

that the deputies used no more force than was reasonably necessary to restrain Plaintiff 

and to keep Plaintiff from harming himself or the deputies. 

 4. ENTRY INTO PLAINTIFF’S HOME AND SEIZURE OF WEAPONS AND 

 MEDICATION

Because the evidence establishes that Deputy Callahan-English is the only named 

Defendant to have entered Plaintiff’s home and seized the items at issue, judgment is 

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entered in favor of Defendants Haymore and Cronin on this issue. See Barren v. 

Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“Liability under § 1983 must be based 

on the personal involvement of the defendant.”). 

 It is well-settled that under the Fourth Amendment, searches and seizures inside a 

home without a warrant or consent are presumptively unreasonable, subject to a few 

specific and well delineated exceptions. See Groh v. Ramirez, 540 U.S. 551, 559 (2004); 

United States v. Shaibu, 920 F.2d 1423, 1425 (9th Cir. 1990); Sialoi, 823 F.3d at 1237; 

Miranda v. City of Cornelius, 429 F.3d 858, 865 (9th Cir. 2005). 

 a. ENTRY INTO PLAINTIFF’S HOME

Defendants rely exclusively on Plaintiff’s consent to justify Deputy CallahanEnglish’s warrantless entry into Plaintiff’s home. “Consent must be ‘unequivocal and 

specific’ and ‘freely and intelligently given.’” Shaibu, 920 F.2d 1423, 1426 (9th Cir. 

1990) (citation omitted). Further, a “failure to object to the entry[]” does not establish 

consent. Id. at 1427. Cf. United States v. Gilbert, 774 F.2d 962, 964 (9th Cir. 1985) 

(request that officers retrieve clothing from home amounts to consent). In a § 1983 

action, “[P]laintiff carries the ultimate burden of establishing . . . lack of consent.” 

Pavao, 307 F.3d at 919 (citation omitted). 

 Plaintiff told Deputy Callahan-English that he did not want to go to jail because he 

did not want to leave his dogs. Deputy Callahan-English said that she would be more than 

happy to make sure that Plaintiff’s dogs had food and water and would be cared for, and 

for Plaintiff to turn around and put his hands behind his back, to which Plaintiff 

responded, “Okay.” Plaintiff did not turn around or place his hands behind his back, but 

instead, started yelling again, using profanity, about suing the Deputies. Assistant Chief 

Reid also heard Plaintiff say “Okay” when Deputy Callahan-English offered to make sure 

Plaintiff’s dogs were fed and watered. Deputy Callahan-English testified that she 

understood Plaintiff saying “Okay” as “acquiescence” to her offer to look after the dogs. 

 The Court is mindful that “[t]he existence of consent to a search is not lightly to be 

inferred....” Shaibu, 920 F.2d at 1426 (internal quotation marks and citation omitted). 

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Plaintiff was concerned about leaving his dogs. Plaintiff testified that the dogs were in 

his home. While Deputy Callahan-English did not specifically request consent to enter 

Plaintiff’s home, she clearly indicated that she would make sure the dogs had food and 

water. Plaintiff said “Okay” in response to a compound series of statements from Deputy 

Callahan-English, first regarding her offer to care for the dogs and second regarding her 

request that he turn around and place his hand behind his back. Although Plaintiff said 

“Okay”, he did not turn around and he did not put his hands behind his back. Instead, he 

started yelling again about suing the deputies. Given Plaintiff’s refusal to comply with 

Deputy Callahan-English’s command, Plaintiff’s “Okay” could only have been in 

response to her offer to look after the dogs. Accordingly, Deputy Callahan-English’s 

entry into Plaintiff’s home was lawful because she had his consent to go inside. 

 b. SEIZURE OF THE WEAPONS

 Under the Fourth Amendment, “[a] seizure results if ‘there is some meaningful 

interference with an individual’s possessory interests in that property.’” Miranda, 429 

F.3d at 862 (quoting Soldal v. Cook County, 506 U.S. 56, 61 (1992); see also Lavan v. 

City of Los Angeles, 693 F.3d 1022, 1028-29 (9th Cir. 2012) (“‘[T]he Fourth Amendment 

protects against unreasonable interferences in property interests regardless of whether 

there is an invasion of privacy.’” (quoting Miranda, 429 F.3d at 862). 

 Once inside Plaintiff’s home, Deputy Callahan-English saw the BB gun and 

machete in plain view and took them. Under the plain view doctrine, “a law enforcement 

officer may seize items found in ‘plain view[]’” where the officer had a legal right to be 

at the location from which the object was plainly viewed and the object’s incriminating 

character is immediately apparent. United Sates v. Bulacan, 156 F.3d 963, 968 (9th Cir. 

1998) (citing Horton v. California, 496 U.S. 128, 136-137, (1990)). “The plain view 

doctrine ‘merely reflects an application of the Fourth Amendment’s central requirement 

of reasonableness to the law governing seizures of property.’” Soldal, 506 U.S. at 66 

(quoting Texas v. Brown, 460 U.S. 730, 739 (1983), abrogated on other grounds by 

Horton, 469 U.S. 128)). 

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 By the time Deputy Callahan-English saw the weapons in plain view, she had 

consent to be in Plaintiff’s home, and the Clevelands had already reported that earlier that 

evening Plaintiff had threatened their family and had threatened to shoot out the window 

of their home, which was located just next door to Plaintiff’s home. Based on the 

Clevelands’ statements, Deputy Callahan-English had placed Plaintiff under arrest for, 

domestic/violence disorderly conduct and domestic violence/threatening or intimidating. 

Deputy Callahan-English was also aware from the Clevelands’ statements that Plaintiff 

had used his gun to shoot out Fred’s car windows on a previous occasion and that he had 

served time in prison for cutting a man. The weapons certainly constituted incriminating 

evidence, establishing that Plaintiff had the means and opportunity to make good on his 

threats against the Clevelands. On the instant evidence, the seizure of the gun and 

machete were justified under the plain view doctrine. 

 Additionally, Arizona’s domestic violence statute also permits officers responding 

to a domestic violence situation to seize a firearm: 

On learning or observing that a firearm is present on the premises, the peace officer may temporarily seize the firearm if the firearm is in plain view or was found pursuant to a consent to search and if the officer 

reasonably believes that the firearm would expose the victim or another person in the household to a risk of serious bodily injury or death. 

A.R.S. § 13-3601(C). The statute prescribes specific procedures for seizure of a firearm as follows: 

If a firearm is seized pursuant to subsection C of this section, the peace officer shall give the owner or possessor of the firearm a receipt for each seized firearm. The receipt shall indicate the identification or serial number 

or other identifying characteristic of each seized firearm. Each seized 

firearm shall be held for at least seventy-two hours by the law enforcement 

agency that seized the firearm. 

A.R.S. § 13-3601(D). Further, if a firearm is seized pursuant to subsection C, the victim 

shall be notified by a peace officer before the firearm is released from temporary custody. 

A.R.S. § 13-3601(E). 

Under Arizona law, a “firearm” is “any loaded or unloaded handgun, pistol, 

revolver, rifle, shotgun or other weapon that will or is designed to or may readily be 

converted to expel a projectile by the action of expanding gases, except that it does not 

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include a firearm in permanently inoperable condition.” A.R.S. § 13-105(19). Plaintiff 

testified that Deputy Callahan-English took his CO2 BB gun. Plaintiff’s CO2 BB gun 

meets the definition of a firearm. See e.g., State v. Cordova, 198 Ariz. 242, 242, 8 P.3d 

1156, 1157 (App. 1999) (relying on §13-105’s definition of a firearm when holding that a 

carbon dioxide powered pellet gun constituted a deadly weapon because it was a firearm, 

noting that “‘[a] carbon dioxide powered gun expels a projectile by the action of an 

explosive or the expansion of gas.’”) (quoting Commonwealth v. Sterling, 344 Pa.Super. 

269, 496 A.2d 789, 792 (1985)). 

 Here, in compliance with A.R.S. § 13-3601(C), Deputy Callahan-English was 

legally inside Plaintiff’s home based upon his consent and the gun was in plain view. 

When Deputy Callahan-English seized the gun, she was aware that earlier that evening 

Plaintiff threatened to shoot out the window of his brother’s home, which was located 

next to Plaintiff’s home, and that Plaintiff had, in the past, shot out the windows of his 

brother’s vehicle. Fred Cleveland and his wife had reported to Deputy Callahan-English 

that Plaintiff was prone to violence and she also knew that the Clevelands feared for their 

safety. She also anticipated that Plaintiff may be returning to his home in less than 24 

hours after spending the night in jail. After seizing the gun and storing it in her car, 

Deputy Callahan-English informed Plaintiff she had taken it and the machete. Thus, 

there is no question that Plaintiff had notice that the items had been seized. Ultimately, 

the gun was not released to Plaintiff until August 12th–more than 72 hours after it was 

seized. In light of the evidence presented and the Court’s conclusion that the seizure was 

lawful under the Fourth Amendment’s plain view doctrine, the seizure of Plaintiff’s BB 

gun was arguably permissible under subsection C of Arizona’s domestic violence statute, 

as well. Cf. Miranda, 429 F.3d at 865 (“‘The question...upon review of a state- approved 

search or seizure is not whether the search (or seizure) was authorized by state law. The 

question is rather whether the search was reasonable under the Fourth Amendment.’”) 

(quoting Sibron v. New York, 392 U.S. 40, 61 (1968)). 

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Amendment’s plain view doctrine, Plaintiff’s constitutional rights were not violated. 

 c. SEIZURE OF THE MEDICATION

 Seizure of the medication implicates the Fourth and Fourteenth Amendments. As 

to Fourth Amendment concerns, Deputy Callahan-English took Plaintiff’s medication not 

as incriminating evidence, but to have it available for Plaintiff while he was in jail. When 

Deputy Callahan-English took the medication, Plaintiff had already been placed under 

arrest and she intended for him to spend at least the night in jail. She also anticipated he 

could be detained beyond that night. 

 Although Deputy Callahan-English was lawfully inside Plaintiff’s home based 

upon his consent, seizure of the medication deprived Plaintiff of a meaningful possessory 

interest in that property. See e.g. Soldal, 506 U.S. at 69. The question then becomes 

whether the seizure was reasonable under the Fourth Amendment. See Lavan, 693 F.3d 

at 1030. While Deputy Callahan-English’s decision to take the medication was made for 

Plaintiff’s best interest to ensure that it was available to him while he was incarcerated, 

she also testified that she took the medication to avoid having to get consent to return to 

get it later if Plaintiff needed it. Defendants have not argued that the evidence supports 

any basis on which the Court could conclude that the seizure comports with the Fourth 

Amendment. Although Deputy Callahan-English had consent to be in Plaintiff’s home, 

and despite her well-intentioned reason for taking the medication, there is no showing 

that she had consent to take the medication or that taking it was justified under any of the 

exceptions to the Fourth Amendment for warrantless seizures. The Court is constrained 

by Fourth Amendment jurisprudence to conclude that the removal of the medication from 

Plaintiff’s home violated the Fourth Amendment’s proscription against unreasonable 

seizures of property. Plaintiff is entitled to judgment in his favor on this claim. 

 With regard to the Fourteenth Amendment, “although the Constitution protects a 

citizen’s liberty interest in [his] own bodily security, see, e.g., Youngberg v. Romeo, 457 

U.S. 307, 316–17, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the state’s failure to protect that 

interest does not violate the Fourteenth Amendment, unless one of two exceptions 

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applies: (1) the special relationship exception, or (2) the state-created danger exception.” 

Campbell v. State of Washington Dep't of Soc. & Health Servs., 671 F.3d 837, 842 (9th 

Cir. 2011) (citing DeShaney v. Winnebago Cnty. Dep't. of Soc. Servs., 489 U.S. 189 

(1989); Patel v. Kent Sch. Dist., 648 F.3d 965 (9th Cir. 2011)). 

 The special-relationship exception applies: 

when ‘the State takes a person into its custody and holds him there against 

his will.’ DeShaney, 489 U.S. at 199–200, 109 S.Ct. 998 (emphasis added). 

“[I]t is the State's affirmative act of restraining the individual's freedom to 

act on his own behalf—through incarceration, institutionalization, or other 

similar restraint of personal liberty—which is the ‘deprivation of liberty’ 

triggering the protections of the Due Process Clause. . . .” Id. at 200, 109 

S.Ct. 998. In such a situation, the state has a duty to “assume some 

responsibility for [the person's] safety and general well-being” because it 

has “render[ed] him unable to care for himself.” Id. at 200, 109 S.Ct. 998. 

Campbell, 671 F.3d at 842–43 (9th Cir. 2011). Importantly, “[t]he special-relationship 

exception does not apply when a state fails to protect a person who is not in custody.” 

Patel, 648 F.3d at 972. Although Plaintiff was in custody when Deputy Callahan-English 

took his medication, he was later released from custody at the hospital so that he could 

receive medical care. Later, on August 8, 2015, Plaintiff was able to return to the 

hospital for care where, the Court infers Plaintiff received necessary care including 

administration of medication if needed. “In the special relationship situation, the state's 

affirmative duty to protect arises from the limitation the state has imposed on the person's 

freedom to act for himself; the duty does not arise ‘from the State's knowledge of the 

individual's predicament or from [the State's] expressions of intent to help.’” Campbell,

671 F.3d at 843. (citing DeShaney, 498 U.S. at 200). Plaintiff has not established that the 

special-relationship exception applies to his case. 

 Turning to the state-created danger exception, Plaintiff must establish 

“‘affirmative conduct on the part of the state in placing [him]...in danger. . .” and that 

Deputy Callahan-English acted with “‘deliberate indifference’ to a ‘known or obvious 

danger.’” Patel, 648 F.3d at 974 (quoting Munger v. City of Glasglow Police Dep’t., 227 

F.3d 1082, 1086 (9th Cir. 2000); L.W. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)). The 

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Court need not reach “the first requirement here because [Plaintiff] fails on the second.” 

Patel, 648 F.3d at 974. “Deliberate indifference is ‘a stringent standard of fault, requiring 

proof that a municipal actor disregarded a known or obvious consequence of his action.’” 

Id. (quoting Board of Comm’rs. of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997)). 

Here, Plaintiff must prove that Deputy Callahan-English must have recognized an 

“unreasonable risk and actually intend[ed] to expose the plaintiff to such risks without 

regard to the consequences to the plaintiff.’. . . In other words, the defendant ‘knows that 

something is going to happen but ignores the risk and exposes [the plaintiff] to it.’” Id.

(emphasis in original) (quoting Grubbs, 92 F.3d at 899‒900). “[A] lapse in judgment . . 

.” is not enough to meet the standard. Id. at 976. 

 Deputy Callahan-English took the medication because she foresaw the risk that 

Plaintiff might have needed his medication while incarcerated and that he might have 

been incarcerated for longer than just overnight. When she took the medication, the 

paramedics had cleared Plaintiff. She had no reason to anticipate that Plaintiff was going 

anywhere but the jail. However, at the jail, Plaintiff appeared unconscious and although 

paramedics again cleared him, he was ultimately taken to the hospital where he was cited 

and released from custody to remain at the hospital for medical care. Because an order of 

protection had been issued, Plaintiff was not legally permitted to return to his home after 

the hospital released him. 

 Deputy Callahan-English had no way of knowing when she took the medication 

that Plaintiff was not going to be incarcerated at the jail overnight. Nor did she know, 

after leaving him at the hospital, that he would demand release from the hospital against 

the recommendation of medical staff, and that he would be arrested by WPD and taken 

into custody. While Deputy Callahan-English arguably should have realized that she still 

possessed the medication when she left Plaintiff in the hospital’s care, the evidence 

simply does not support the finding that she “‘actually intend[ed] to expose the plaintiff 

to such risks [of being without his medication] without regard to the consequences to 

Plaintiff.’” Id. (quoting Grubbs, 92 F.3d at 899). Instead, she decided to take the 

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medication from Plaintiff’s home to ensure that Plaintiff would have it while he was 

incarcerated if and when he needed it. If Deputy Callahan-English had intended to 

deprive Plaintiff of medication, she certainly would not have left him in care of medical 

staff at the hospital. That it was not Deputy Callahan-English’s intention to expose 

Plaintiff to the risk of being without his medication is further established by the fact that 

she brought the medication to Plaintiff’s home on August 8th after learning that Plaintiff 

was there. Because the evidence does not support liability under the state-created danger 

exception, there is no violation under the Fourteenth Amendment Due Process Clause.26

 d. DAMAGES

Plaintiff has not established any actual damages resulting from violation of his 

constitutional rights under the Fourth Amendment with regard to seizure of his 

medication. Although Plaintiff claims he suffered a pounding headache and high blood 

pressure as a result of being without his medication for less than 16 hours27 on August 

8th, Plaintiff has not established that his headache was caused from lack of medication as 

opposed to his having been heavily intoxicated the night before or having voluntarily hit 

his head repeatedly against the partition and back seat in the patrol car. Nor did Plaintiff 

establish how often he must take his medication or that his high blood pressure reading 

on August 8th was caused by not having his medication. 

 Regardless, in the Ninth “Circuit, nominal damages must be awarded if a plaintiff 

proves a violation of his constitutional rights.” George v. City of Long Beach, 973 F.2d 

 

26 The Ninth Circuit recently held that a pre-trial detainee advancing a failure to protect claim did not have to prove the “subjective elements about the officer’s actual awareness of the level of risk.” Castro F.3d. , 2016 WL4268955 at *7 (re-stating test in light of Kingsley v. Hendrikson, U.S. , 135 S.Ct. 2466 (2015)). To any extent that 

Castro could be applicable to claims of state-created danger, the conclusion here would not change. Under Castro, a reasonable officer in Deputy Callahan-English’s circumstances would not have foreseen that Plaintiff would not have been incarcerated at 

the jail at least overnight. 

27 After arrest, Plaintiff was ultimately taken to the hospital where he received medical treatment until WPD took him to the detention center on other charges. According to Fred Cleveland’s report to Deputy Callahan-English, Plaintiff returned home on August 8th at approximately 2:30 p.m. At some point thereafter, Plaintiff sought treatment at the hospital. Deputy Callahan-English returned the medication to Plaintiff at approximately 7:30 to 8:00 p.m. that evening. 

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706, 708 (9th Cir. 1992); see also Hazel v. Crofoot, 727 F.3d 983, 991‒94	 ሺaccordሻ;	

Larez, 946 F.2d at 640 (“freedom from unreasonable searches and seizures...” falls 

within those rights which are actionable for nominal damages without proof of actual 

injury). This is because “[n]ominal damages are a purely ‘symbolic vindication of [a] 

constitutional right,’ and are awarded regardless of’ whether ‘the constitutional violation 

causes any actual damage.’” Schnieder v. County of San Diego, 285 F.3d 784, (9th Cir. 

2002) (quoting George, 973 F.2d. at 708). “Nominal damages, as the term implies, are in 

name only and customarily are defined as a mere token or ‘trifling’.” Cummings v. 

Connell, 402 F.3d 936, 943 (9th Cir. 2005) (quoting Carey v. Piphus, 435 U.S. 247, 267 

(1978)) (other citations omitted). Although the amount of nominal “damages awarded is 

not limited to one dollar, the nature of the award compels that the amount be minimal.” 

Id. (citations omitted). 

 Under the instant circumstances, where Plaintiff has failed to establish actual 

damages, Plaintiff is entitled to nominal damages in the amount of one dollar. 

C. PLAINTIFF’S STATE LAW CLAIMS

 1. FALSE ARREST

 “Under Arizona law, probable cause is an absolute defense to a claim of false 

arrest and imprisonment.” Gasho v. United States, 39 F.3d 1420, 1427 (9th Cir. 1994) 

(citing Hockett v. City of Tucson, 139 Ariz. 317, 320, 678 P.2d 502, 505 (Ct.App.1983)). 

As discussed, supra, the deputies had probable cause to arrest Plaintiff. Moreover, the 

evidence presented at trial supports the conclusion that the deputies’ actions leading up to 

the development of probable cause were lawful. Cf. George, 973 F.2d at 710 (even 

though probable cause existed for arrest, plaintiff still established claim of false arrest and 

imprisonment where the warrantless arrest in his home was unlawful under both federal 

and state law). Consequently, judgment is entered in favor of Defendants with regard to 

Plaintiff’s claim for false arrest under Arizona law. 

 2. ASSAULT 

To prevail on a claim of assault, Plaintiff must prove by a preponderance of the 

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evidence that Defendants “acted ‘with intent to cause another harmful or offensive 

contact or apprehension thereof, and the other person apprehend[ed] imminent contact.’” 

A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1209 (9th Cir. 2016) 

(quoting Garcia v. United States, 826 F.2d 806, 809 n. 9 (9th Cir.1987) (citing 

Restatement (Second) of Torts § 21)) (applying Arizona law). Contact is offensive if it 

“offends a reasonable sense of personal dignity.” Restatement (Second) of Torts § 19 

(1965). 

 Plaintiff has not specified which actions form the basis of his assault claim, nor 

did he present evidence that the deputies intended him harmful contact or that he was in 

apprehension of same. Moreover, the evidence supports the conclusion that any threats 

by the officers involved the threat to charge Plaintiff with resisting arrest if he did not 

comply with the deputies’ commands to turn around and place his hands behind his back. 

Under Arizona law, “[t]hreatening or using physical force in making an arrest is justified 

as long as (1) a reasonable person would believe that such force is immediately necessary 

to effect the arrest; (2) such 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 to be lawful. A.R.S. § 13–409.” 

Ekweani v. Maricopa County Sherrif’s Office, 2010 WL 2079773 at *7 (D. Ariz. May 24, 

2010) (citing A.R.S. § 13-409). Defendants bear the burden of establishing application of 

Arizona’s justification statute by a preponderance of the evidence. See Pfeil v. Smith,

183 Ariz. 63, 65, 900 P.2d 12, 14 (Ariz.App. 1995) (citations omitted). Here, Plaintiff 

testified that he was informed that he was being arrested for disorderly conduct among 

other things, and the Court has determined, as discussed above, that the arrest was lawful. 

In light of the evidence presented at trial, the Court concludes that during the encounter 

any threats or force, as discussed above with regard to Plaintiff’s excessive force claim, 

were reasonable in the course of making the arrest. Because Defendants’ conduct was 

justified, they are not subject to civil liability. See id. (citing A.R.S. §13-413 (“No person 

in this state shall be subject to civil liability for engaging in conduct otherwise justified 

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pursuant to the provisions of this chapter.”)). Defendants are entitled to judgment in their 

favor with regard to Plaintiff’s claim of assault. 

 3. NEGLIGENCE REGARDING SEIZURE OF MEDICATION

 Under Arizona law, to establish a claim for negligence, a plaintiff must prove four 

elements: (1) a duty requiring the defendants to conform to a certain standard of care; (2) 

a breach by the defendants of that standard by their actions or failure to act; (3) a causal 

connection between the defendants’ conduct and the resulting injury; and (4) actual 

damages. Gipson v. Kasey, 214 Ariz. 141, 143, 150 P.3d 228, 230 (2007) (citation 

omitted). “The proximate cause of an injury is that which, in a natural and continuous 

sequence, unbroken by any efficient intervening cause, produces an injury, and without 

which the injury would not have occurred.” Robertson v. Sixpence Inns of Amer., Inc.,

163 Ariz. 539, 546, 798 P.2d 1040, 1047 (1990) (plaintiff must show some reasonable 

connection between defendant’s act or omission and plaintiff’s damages or injuries). The 

plaintiff bears the burden of proving the defendants’ negligence by a preponderance of 

the evidence. Guardas v. United States, 600 F.Supp. 2d 1059, 1063 (D. Ariz. 2009) 

(citing Harvest v. Craig, 195 Ariz. 521, 523, 990 P.2d 1080, 1082 (Ct. App. 1999)). 

 Plaintiff did not testify as to how often he took his blood pressure medication. The 

Court has discussed in great detail, supra, the circumstances as to why Deputy CallahanEnglish took Plaintiff’s medication. Having obtained the medication sometime after 

11:18 p.m. on August 7th, and after leaving Plaintiff in the care of the hospital sometime 

after 4:00 a.m., and then returning the medication to Plaintiff no more than 16 hours 

later28, Deputy Callahan-English’s actions were not negligent. Although Plaintiff 

testified that he experienced a pounding a headache, which he attributed to high blood 

pressure, and that he was later found to have high blood pressure, he has not established 

any causal connection between this and his lack of access to the medication during the 

 

28 During some portion of this time period, Plaintiff was treated at the hospital and, then, held in a detention facility after his arrest by WPD. Given Fred Cleveland’s report to Deputy Callahan-English that Plaintiff returned home around 2:30 p.m., the evidence suggests Plaintiff was home without his medication for approximately 5 to 5 1⁄2 hours, although he did seek treatment at the hospital at some point during that time. 

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relevant period. For example, in light of the fact that Plaintiff appeared heavily 

intoxicated, with blood shot eyes and slurring his words the previous night during his 

encounter with the deputies, the evidence suggests that his headache could just as easily 

have been attributed to a night of heavy drinking or to Plaintiff having repeatedly hit his 

head against the seat and partition in the patrol vehicles, rather than to high blood 

pressure. Nor is there evidence that the amount of time that Plaintiff was without his 

medication would necessarily result in a spike in blood pressure. Plaintiff has failed to 

establish any causal connection between Deputy Callahan-English’s actions and any 

injury or actual loss or damage caused to him. Judgment is entered in favor of 

Defendants on this claim. 

III. JUDGMENT

 IT IS ORDERED that the Court’s June 13, 2016 Minute Order is AMENDED to 

reflect that Defendants’ oral motion for judgment as a matter of law made during trial is 

construed as a motion for judgment on partial findings under Fed.R.Civ.P. 52(c) and such 

motion is GRANTED in favor of all Defendants as to Plaintiff’s claim under 42 U.S.C. § 

1983 for violation of the Fourth Amendment based on excessive force. 

 IT IS FURTHER ORDERED that: 

 (1) the Clerk of Court shall enter judgment in favor of Plaintiff in the nominal 

amount of $1.00 (one dollar) with regard to his claim pursuant to 42 U.S.C. § 1983 for 

unlawful seizure of his medication in violation of the Fourth Amendment; and 

 (2) the Clerk of Court shall enter judgment in favor of Defendants Cochise 

County, Haymore, Cronin and Callahan-English with regard to all of Plaintiff’s 

remaining claims. 

 Dated this 12th day of September, 2016. 

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