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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

 

 Before the Court is Defendants’ Motion for Summary Judgment. (Doc. 58.) For 

the reasons set forth below, Defendants’ Motion for Summary Judgment is granted. 

I. Background

 This case arises out of a collision between an Arizona Department of Public Safety 

(“DPS”) patrol car driven by Defendant Derek Ortiz and a motorcycle ridden by Plaintiff 

Justin Miller. The facts that follow regarding the collision are undisputed. Facts that are 

in dispute, however, are noted and considered in the light most favorable to Plaintiff. 

 On the evening of November 11, 2014, Plaintiff became intoxicated at a friend’s 

home. (Doc. 59 ¶ 1; Doc. 75 ¶ 1.) When it was time to leave, Plaintiff got on his 

motorcycle and rode eastbound on U.S. Highway 60 in Mesa, Arizona. (Doc. 59 ¶ 2; 

Doc. 75 ¶ 2.) Plaintiff did not have a motorcycle license. (Doc. 59 ¶ 3; Doc. 75 ¶ 3.) The 

exact manner and speed at which Plaintiff was traveling is disputed by the parties.1

 DPS 

 

1

 It is disputed whether Plaintiff was “lane splitting.” (Doc. 59 ¶ 8; Doc. 75 ¶ 8.) As described by Defendant, lane splitting is when a motorcyclist “passes other vehicles, 

Justin Miller, 

 

Plaintiff, 

vs. 

Derek Ortiz, et al., 

Defendants. 

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No. CV-15-02498-PHX-SPL

ORDER 
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Officer Hiebert was traveling eastbound on U.S. Highway 60 when he saw Plaintiff and 

radioed to dispatch that a motorcyclist was traveling in excess of the speed limit in the 

high-occupancy vehicle (“HOV”) lane and asked if there were any other officers in the 

area to intercept Plaintiff. (Doc. 59 ¶¶ 8, 10; Doc. 75 ¶¶ 8, 10.) Officer Hiebert began to 

pursue Plaintiff with his emergency lights and sirens activated. (Doc. 59 ¶ 11; Doc. 75 ¶ 

11.) Officer Hiebert then witnessed Plaintiff veer quickly from the HOV lane to the farright shoulder of the highway where DPS Officer Derfus was standing outside of his 

patrol unit attending to an abandoned vehicle. (Doc. 59 ¶¶ 12-14; Doc. 75 ¶¶ 12-14.) The 

parties dispute whether Plaintiff swerved at Officer Derfus. (Doc. 59 ¶¶ 18-23; Doc. 75 

¶¶ 18-23.) 

 Defendant Officer Ortiz was on-duty and parked at a nearby gas station when he 

heard Officer Hiebert’s radio report of a motorcyclist traveling at a high rate of speed 

(Doc. 59 ¶ 29; Doc. 75 ¶ 29), and then Officer Derfus’s subsequent report that the 

motorcyclist had swerved at him. (Doc. 59 ¶ 30; Doc. 75 ¶ 30.) Defendant Ortiz then 

proceeded to U.S. Highway 60 where he began to perform a traffic break2

 in an attempt 

to encourage Plaintiff to stop or slow down. (Doc. 59 ¶ 31; Doc. 75 ¶ 31.) Plaintiff 

estimated that he was one-half mile away when he saw Defendant Ortiz begin to perform 

the traffic break, roughly forty-seconds to one minute before the collision. (Doc. 59 ¶¶ 

42-43; Doc. 75 ¶¶ 42-43.) Plaintiff continued to pass cars that were slowing down in 

response to the traffic break. (Doc. 59 ¶¶ 47-48; Doc. 75 ¶¶ 47-48.) Defendant Ortiz saw 

Plaintiff only briefly before his patrol car and Plaintiff’s motorcycle collided. (Doc. 59 ¶ 

34; Doc. 75 ¶ 34.) In an interview recorded just hours after the collision, Plaintiff could 

not recall whether he had hit Defendant Ortiz or if Defendant Ortiz had hit him. (Doc. 59 

 moving in the same, direction, within the same lane as those vehicles.” (Doc. 58 at 4, n. 

3.) Lane splitting is illegal in Arizona. Ariz. Rev. Stat. § 28-903(B)-(C). Although the exact speed at which Plaintiff was traveling is debated, he admitted to traveling at least seventy miles per hour. (Doc. 59 ¶ 9.) 

2

 “A traffic break is a procedure wherein an officer weaves from one side of the 

road to the other, in front of traffic, to slow or stop traffic and cause a gap or ‘break’ in traffic.” (Doc. 58 at 2, n.1.) 
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¶ 60; Doc. 75 ¶ 60.) Plaintiff pleaded guilty to felony reckless endangerment and driving 

under the influence. (Doc. 59 ¶ 61; Doc. 75 ¶ 61.) 

 Plaintiff has brought suit against the following parties: Defendant Derek Ortiz; 

Defendant Ortiz’s wife, Defendant Jane Doe Ortiz; and Defendant State of Arizona. 

(Doc. 1-1 at 17.) Plaintiff asserts a claim under 42 U.S.C. § 1983 for excessive force in 

violation of the Fourth Amendment against all Defendants (Count I); state law claims for 

negligence (Count II) and battery (Count III) against all Defendants; and respondent 

superior liability against Defendant State of Arizona (Count IV).3

 (Doc. 1-1 at 18-20.) 

II. Standard of Review

 A court shall grant summary judgment if the pleadings and supporting documents, 

viewed in the light most favorable to the non-moving party, “show[] 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 

(1986). Material facts are those facts “that might affect the outcome of the suit under the 

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine 

dispute of material fact arises if “the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party.” Id. 

 The party moving for summary judgment bears the initial burden of informing the 

court of the basis for its motion and identifying those portions of the record, together with 

affidavits, which it believes demonstrate the absence of a genuine issue of material fact. 

Celotex, 477 U.S. at 323. If the movant is able to do such, the burden then shifts to the 

non-movant who, “must do more than simply show that there is some metaphysical doubt 

as to the material facts,” and instead must “come forward with ‘specific facts showing 

that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)). At this stage, the function of 

the judge is “not [] to weigh the evidence and determine the truth but to determine 

 

3

 Plaintiff’s claim for punitive damages against all Defendants (Count V) has been 

withdrawn. (Doc. 66 at 11.) 
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whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; see also Scott v. 

Harris, 550 U.S. 372, 380 (2007). 

III. Discussion 

 Derek Ortiz and the State of Arizona maintain that each are shielded from liability 

by qualified immunity and are entitled to judgment as a matter of law. (Doc. 58 at 1.) 

Because qualified immunity bears prominently on the outcome of Defendants’ summary 

judgment motion, the Court will address it first. 

 More than a mere defense to liability, the doctrine of qualified immunity “protects 

government officials ‘from liability for civil damages insofar as their conduct does not 

violate clearly established statutory or constitutional rights of which a reasonable person 

would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citing Harlow v. 

Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity extends to an official’s 

actions regardless of whether the “error is a mistake of law, a mistake of fact, or a 

mistake based on mixed questions of law and fact.” Pearson, 555 U.S. at 231 (internal 

citation omitted). The doctrine provides government officials “breathing room to make 

reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 

U.S. 731, 743 (2011). “When properly applied, it protects ‘all but the plainly incompetent 

or those who knowingly violate the law.’” Hughes v. Kisela, 862 F.3d 775, 782 (9th Cir. 

2016) (citing al-Kidd, 563 U.S. at 743). 

A. Section 1983 claims 

1. Defendant Derek Ortiz 

 As a preliminary matter, the Court notes that Plaintiff has failed to delineate 

whether he is suing Defendant Ortiz in his official or individual capacity. (Doc. 58 at 3, 

n.2.) In making such a determination, the Court considers the essential nature of the suit. 

Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995). A section 1983 suit against a state 

official for damages “necessarily implies a suit against them in their individual 

capacities.” Rogari v. Cal. Coastal Comm’n, No. 98-55295, 1999 WL 693577, at *2 (9th 

Cir. 1999) (internal citations omitted). For that reason, it is assumed that Plaintiff brings 
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his section 1983 claim against Defendant Ortiz in his individual capacity. 

 Defendant Derek Ortiz moves for summary judgment as to Plaintiff’s section 1983 

claim on the basis that he is shielded from liability by qualified immunity. (Doc. 58 at 8-

13.) To determine whether a government official is entitled qualified immunity, a court 

must consider: (1) whether the official violated the plaintiff’s constitutional rights; and 

(2) whether the right was clearly established at the time of the incident. Morales v. Fry, 

873 F.3d 817, 821 (9th Cir. 2017) (citing al-Kidd, 563 U.S. at 731). Unless Plaintiff can 

prove Defendant Ortiz violated a constitutional right and that Plaintiff’s right was 

“clearly established” at the time of the collision, Defendant Ortiz will be shielded from 

liability under the doctrine of qualified immunity. al-Kidd, 563 U.S. at 735. Courts 

exercise the discretion to determine which prong of the analysis to complete first. Id. 

(citing Pearson, 555 U.S. at 236). Moreover, courts are allowed to grant officials 

qualified immunity after completing only the second prong of the analysis “without 

resolving the often more difficult question whether the purported right exists at all.” 

Reichle v. Howards, 566 U.S. 658, 664 (2012) (citing Pearson, 555 U.S. at 227). 

 “A Government official’s conduct violates clearly established law when, at the 

time of the challenged conduct, the contours of a right are sufficiently clear that every 

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

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

or constitutional question beyond debate.” Id. Clearly established law should not be 

defined at a “high level of generality.” Id. at 742. This is particularly true in the context 

of the Fourth Amendment, where “[i]t is sometimes difficult for an officer to determine 

how the relevant legal doctrine, here excessive force, will apply to the factual situation 

the officer confronts.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal citation 

omitted). 

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 In response to Defendant’s contention that he is shielded from liability under 

section 1983 by qualified immunity, Plaintiff maintains that his right as a motorist, albeit 

one traveling above the posted speed limit, is “to be free from a state trooper using his 

patrol car as a deadly weapon to stop the speeding.” (Doc. 66 at 6.) Yet Plaintiff concedes 

that there is no legal precedent regarding the use of traffic breaks in situations similar to 

the one presented here. (Doc. 66 at 6; Doc. 71 at 2.) Instead Plaintiff directs the Court to 

Mullenix v. Luna for the proposition that the officer’s actions in Mullenix were similar to 

those taken by Defendant Derek Ortiz. (Doc. 66 at 5.) Mullenix, however, serves to 

further illuminate the “hazy legal backdrop” of excessive force cases involving police 

chases. 136 S. Ct. at 310. Moreover, Mullenix lends credence to the conclusion that 

because there is no case that “squarely governs” the facts of this case, Defendant Ortiz 

should be entitled to qualified immunity. Id. 

 Viewing the facts in a light most favorable to Plaintiff, Defendant Derek Ortiz was 

confronted with a situation in which he was alerted to the presence of a motorcyclist 

traveling at high speeds on U.S. Highway 60. (Doc. 59 ¶ 29; Doc. 75 ¶ 29.) Quickly 

thereafter, he was informed that the motorcyclist had swerved at another law enforcement 

officer. (Doc. 59 ¶ 30; Doc. 75 ¶ 30.) By Plaintiff’s own estimation, Defendant Ortiz 

began to perform a traffic break at least one-half mile from Plaintiff with the intent to 

slow down or stop Plaintiff. (Doc. 59 ¶¶ 42-43, 55; Doc. 75 ¶¶ 42-43, 55.) Given these 

facts, Defendant’s decision to perform a traffic break was a reasonable judgment call 

given the information he knew in the moment—that is, there was a speeding motorcyclist 

who was driving recklessly on a heavily trafficked and crowded highway and whose 

behavior presented an immediate threat to other motorists and law enforcement 

personnel. See Longoria v. Pinal Cty., 873 F.3d 699, 704 (9th Cir. 2017) (quoting 

Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014)). In the moment, Defendant could 

hardly be expected to know that Plaintiff would continue to actively bypass other 

motorists to be “towards the front of traffic” (Doc. 75 ¶ 49) and that there would 

ultimately be a collision. Heeding the directive to avoid defining clearly established law 
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at a high level of generality and the lack of binding—or even sufficiently analogous—

precedent, Plaintiff has failed to meet his burden of proving that there is clearly 

established law regarding the use of traffic breaks to slow down a speeding and reckless 

motorist such that Defendant Ortiz would have reasonably known that his actions were 

unconstitutional. Pearson, 555 U.S. at 231; Maraziti v. First Interstate Bank of Cal., 953 

F.2d 520, 523 (9th Cir. 1992); Gillen v. Ariz., No. CV-15-00460-PHX-ROS, 2017 WL 

4586670, at *10, n.13 (D. Ariz. 2017). Defendant Derek Ortiz is entitled to qualified 

immunity on Plaintiff’s section 1983 claim. Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 

(2017). Accordingly, Defendant’s motion for summary judgment is granted as a matter of 

law. 

 2. Defendant State of Arizona 

 Section 1983 provides a “vehicle by which plaintiffs can bring federal 

constitutional and statutory challenges to actions by state and local officials.” Naffe v. 

Fey, 789 F.3d 1030, 1035 (9th Cir. 2015) (internal citation omitted). But a state is not a 

“person” under section 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989) 

(“Section 1983 provides a federal forum to remedy many deprivations of civil liberties, 

but it does not provide a federal forum for litigants who seek a remedy against a State for 

alleged deprivations of civil liberties.”). Because the State of Arizona is not a person 

under section 1983, Plaintiff’s claim pursuant to that provision against the State fails as a 

matter of law.4

B. Negligence and battery claims

Plaintiff brings state law claims for negligence (Count II) and battery (Count III) 

against all Defendants. (Doc. 1-1 at 19.) Defendants Derek Ortiz and the State of Arizona 

have moved for summary judgment on the grounds that each are entitled to qualified 

 

4

 To the extent that Plaintiff argues that Defendant State of Arizona is liable to 

Plaintiff for Defendant Ortiz’s action by virtue of respondeat superior liability (Doc. 1-1 at 19), this claim fails as a matter of law. Mortimer v. Baca, 594 F.3d 714, 721 (9th Cir. 

2010) (“There is no respondeat superior liability under § 1983.” (citing Monell v. Dep’t of 

Soc. Servs., 436 U.S. 658, 691 (1978))). 
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immunity under Ariz. Rev. Stat. § 12-820.02(A)(7). (Doc. 58 at 14-16.) The Court 

agrees, and Defendants’ Motion for Summary Judgment is granted as a matter of law on 

Counts II and III. 

 Section 12-820.02(A)(7) provides that neither a public employee nor a public 

entity are liable for injuries to the driver of a motor vehicle when the injuries are 

attributable to the driver’s violation of § 28-693, § 28-1381, or § 28-13825

 of the Arizona 

Revised Statutes, unless the public employee acting within the scope of employment 

intended to cause injury or was grossly negligent. Ariz. Rev. Stat. § 12-820.02(A)(7). 

Here, Plaintiff pled guilty to felony reckless endangerment and driving under the 

influence. (Doc. 59 ¶ 61; Doc. 75 ¶ 61.) In light of these charges, Plaintiff’s claims 

against Defendant Derek Ortiz and Defendant State of Arizona will only proceed if he 

can establish that Defendant Ortiz intended to cause Plaintiff’s injuries or was grossly 

negligent. 

 Defendant Ortiz is a public employee, and Defendant State of Arizona is a public 

entity. Ariz. Rev. Stat. §§12-820(6)-(7). It follows then that Plaintiff’s claims of ordinary 

negligence (Doc. 1-1 at 19) are insufficient to surpass the qualified immunity protections 

given to public employees and public entities when a person’s injuries are attributable to 

driving under the influence and reckless driving. Ariz. Rev. Stat. § 12-820.02(A)(7); 

DeVries v. State, 221 Ariz. 201, ¶ 20, 211 P.3d 1185, 1191 (App. 2009). Accordingly, 

Plaintiff’s negligence claims against Defendant Derek Ortiz and Defendant State of 

Arizona fail as a matter of law. 

 Similarly, even when viewed in a favorable light, Plaintiff has failed to set forth 

facts that support a finding that Defendant intended to cause Plaintiff harm so as to 

overcome the qualified immunity protections of Section 12-820.02(A)(7). It is undisputed 

that Defendant Ortiz began to perform a traffic break “to encourage [Plaintiff] to stop or 

 

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 Ariz. Rev. Stat. § 28-693 pertains to reckless driving. Ariz. Rev. Stat. § 28-1381 relates to driving a motor vehicle under the influence of an intoxicating liquor or drug, and Ariz. Rev. Stat. § 28-1382 regulates driving a motor vehicle under the extreme

influence of an intoxicating liquor or drug. 
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slow down.” (Doc. 59 ¶ 31; Doc. 75 ¶ 31.) It is undisputed that from his position—

roughly one-half mile away—Plaintiff saw the traffic break being performed by 

Defendant Ortiz, but continued to pass other motorists and was “working [his] way to the 

front of the traffic.” (Doc. 59 ¶¶ 42-43, 47-49; Doc. 75 ¶¶ 42-43, 47-49.) Again, 

Defendant Ortiz only saw Plaintiff briefly before the collision. (Doc. 59 ¶ 34; Doc. 75 ¶ 

34.) Plaintiff also testified immediately after the accident that he was unsure if he had hit 

Defendant. (Doc. 59 ¶ 60; Doc. 75 ¶ 60.) Moreover, in his deposition testimony, Plaintiff 

stated that he did not know whether Defendant Ortiz had hit him intentionally. (Doc. 59 ¶ 

59; Doc. 75 ¶ 59.) Because Plaintiff has not posited any facts that suggest Defendant 

Ortiz intended to harm Plaintiff, Defendant Ortiz and Defendant State of Arizona are 

entitled to qualified immunity. Ariz. Rev. Stat. § 12-820.02(A)(7). Thus, Plaintiff’s 

battery claims fail as a matter of law. 

 C. Claims against Defendant Jane Doe Ortiz

 In addition to his claims against Defendant Ortiz and Defendant State of Arizona, 

Plaintiff also asserts Counts I-III against Defendant Ortiz’s wife, Jane Doe Ortiz. (Doc. 1-

1 at 18-19.) Because there are no facts to suggest Defendant Jane Doe Ortiz had any role 

in the collision between Plaintiff and Defendant Ortiz, Plaintiff’s section 1983 claim 

against Defendant Jane Doe Ortiz fails as a matter of law. Adkins v. Corrs. Corp. of Am., 

681 F. App’x 579, 581 (9th Cir. 2017) (“An individual can be held liable pursuant to § 

1983 only when there is ‘a showing of personal participation in the alleged rights 

deprivation.’”) (internal citation omitted). Similarly, Plaintiff has presented no theory of 

liability or facts to support his claims of battery and negligence against Defendant Jane 

Doe Ortiz. Aside from making her a party to the present suit (Doc. 1-1 at 11, 17-20), 

Plaintiff has not mentioned Defendant Jane Doe Ortiz at any other point during the course 

of this litigation. Accordingly, Plaintiff’s remaining claims against Defendant Jane Doe 

Ortiz fail as a matter of law. 

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IV. Conclusion

 Finding that Defendants Derek Ortiz and the State of Arizona are shielded from 

civil liability by virtue of qualified immunity and that there is no basis for Plaintiff’s 

claims against Defendant Jane Doe Ortiz, the Court grants summary judgment in favor of 

Defendant on each of Plaintiff’s claims. Accordingly, 

 IT IS ORDERED that Defendant’s Motion for Summary Judgment (Doc. 58) is 

granted. 

 IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action 

and enter judgment accordingly. 

 Dated this 22nd day of January, 2018.

Honorable Steven P. Logan

United States District Judge