Kloberdanz v. Arpaio et al

Filing 225

ORDER denying 221 Motion for Reconsideration. Signed by Judge John W Sedwick on 1/1/17.(JWS)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 12 Daniel L. Kloberdanz, Plaintiff, 13 14 vs. 15 16 17 Joseph K. Pellino, Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) 2:13-cv-2182 JWS ORDER FROM CHAMBERS (Motion at Docket 221) 19 20 21 22 23 I. MOTION PRESENTED At docket 221, Defendant Joseph Pellino (“Pellino”) filed a motion asking the court to reconsider its order at docket 220, which denied his motion in limine at docket 218. Plaintiff Daniel Kloberdanz (“Kloberdanz” or “Plaintiff”) responded to the 24 25 26 27 28 motion for reconsideration as directed at docket 224. Oral argument was requested, but would not be of assistance to the court. 1 2 II. BACKGROUND Kloberdanz filed suit in state court against numerous defendants seeking to 3 4 recover damages arising from events which transpired on June 15, 2012. Early in the 5 litigation, Kloberdanz agreed to the dismissal of his claims against the Maricopa County 6 Board of Supervisors, the five individual Supervisors, and the Maricopa County 7 8 Attorney. In an order at docket 20, the court granted defense requests to dismiss Kloberdanz’s claims against defendants Arpaio, the Maricopa County Sheriff’s office 9 10 and Maricopa County. The remaining claims were those pled against Defendants 11 Burghart, Carpenter, and Pellino. Later, the parties stipulated to dism iss Count Three 12 in its entirety as to all defendants and Count Seven, which was directed only at Pellino.1 13 The remaining claims were the subject of a seven-day jury trial in August of 2016. 14 15 During trial, the court granted a directed verdict in favor of Pellino as to the 16 Malicious Prosecution claim. The jury later returned verdicts in favor of Burghart and 17 Carpenter on Kloberdanz’s Fourth Amendment Excessive Force claim, his only claim 18 against them. The jury also returned a verdict in favor of Pellino on Kloberdanz’s false 19 20 21 22 23 24 arrest claim, but could not agree on verdicts on Kloberdanz’s other claims against Pellino. A mistrial was declared as to those claims. They will be litigated in a second trial scheduled for February 6, 2017. Pellino filed a motion in limine at docket 218. In that motion, Pellino asked that the court “issue an order precluding the presentation of any evidence of claim for 25 26 damages regarding Plaintiff’s allegations that, after he was pushed by Pellino and then 27 28 1 Doc. 110. The court approved the parties’ stipulation at docket 112. -2- 1 2 taken to the ground to be arrested, Pellino then pounded/slam med Plaintiff’s head into the ground three times, before he was stood up in handcuffs, and also that he was 3 4 kicked and punched during that same time.”2 Plaintiff filed a response in opposition at 5 docket 219. The court filed a text order denying the motion, indicating that it found 6 Plaintiff’s position to be correct. 3 Pellino then filed his motion for reconsideration, 7 arguing that Plaintiff’s response did not adequately address his arguments nor provide 8 any credible rebuttal for the court to rely upon. The court directed Kloberdanz to 9 10 respond. III. STANDARD OF REVIEW 11 12 13 Under the law of the case doctrine, a court is generally precluded from reconsidering an issue that has already been decided by the same court or a higher 14 15 court in the same case.4 However, as long as a district court retains jurisdiction over a 16 case, it has inherent power to reconsider and modify an interlocutory order for sufficient 17 cause.5 That inherent power is not unfettered: “the court may reconsider previously 18 decided questions in cases in which there has been an intervening change of 19 20 21 controlling authority, new evidence has surfaced, or the previous disposition was clearly erroneous and would work a manifest injustice.”6 Local Rule of Civil 22 23 2 24 3 25 4 26 27 28 Doc. 218 at p. 1. Doc. 220. Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993). 5 City of Los Angeles v. Santa Monica, 254 F.3d 882, 885 (9th Cir. 2001). 6 Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir. 1995); see also School Dist. No. 1J, Multnomah County v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). -3- 1 2 Procedure 7.2(g)(1) recites essentially the same rule, requiring a showing of “manifest error.”7 3 IV. DISCUSSION 4 5 6 7 8 9 10 Pellino’s motion in limine is essentially asking the court to find that collateral estoppel prevents Kloberdanz from retrying the issue of whether any head slamming, kicking, and punching took place during his arrest. Collateral estoppel, or issue preclusion, “prohibits relitigation of issues that have been adjudicated in a prior action.” 8 It applies when the following requirements have been met: (1) the issue sought to be 11 precluded is the same as that involved in the prior action; (2) the issue must have been 12 actually litigated; (3) the issue must have been determined by a valid and final 13 judgment; and (4) the determination must have been essential to the final judgment.”9 14 15 “The party asserting issue preclusion bears the burden of proof as to all elements and 16 must introduce a sufficient record to reveal the controlling facts and the exact issues 17 litigated.”10 18 19 20 The requirement that an issue be actually litigated and determined does not mean that there had to be a specific finding or opinion on the matter.11 Necessary 21 22 7 23 24 25 LRCiv 7.2(g)(1) (“The Court will ordinarily deny a motion for reconsideration of an Order absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought to its attention earlier with reasonable diligence.”). 8 In re Child, 486 B.R. 168, 172 (B.A.P. 9th Cir. 2013). 26 9 27 10 28 11 In re Giangrasso, 145 B.R. 319, 322 (B.A.P. 9th Cir. 1992). In re Child, 486 B.R. at 172. 50 C.J.S. Judgments § 1076. -4- 1 2 inferences from the entire record—the judgment, pleading, evidence, and jury instructions—will be given preclusive effect as well.12 3 4 Here, Pellino asks this court to consider what the jury necessarily determined 5 about Pellino’s conduct based on its verdict in favor of Burghart on the Excessive Force 6 claim. In that claim, which was brought against all three officers, Kloberdanz alleges 7 that Pellino pushed him down to the ground and that when he stood back up Pellino 8 knocked him back down to the ground. He alleges that while he was on the ground 9 10 being handcuffed, Pellino pushed and pounded his head into the g round multiple times 11 and some combination officers kicked and punched him. Burghart and Carpenter are 12 not alleged to have been involved in the push and take down of Kloberdanz, but they 13 are alleged to have participated in the alleged excessive force that occurred after the 14 15 second take down—the head pounding, kicking, and punching. 16 The court’s instruction on Excessive Court included the following paragraph: 17 . . . Kloberdanz must show that the defendant personally participated in actions which allegedly deprived Kloberdanz of his particular rights under the United States Constitution. Personal participation does not req uire that the officer’s actions themselves rise to the level of a constitutional violation but rather only that the officer was an active participant in the constitutional deprivation rather than a mere bystander.13 18 19 20 21 22 23 24 12 25 26 27 28 Chew v. Gates, 27 F.3d 1432, 1438 (9th Cir. 1994) (“Necessary inferences drawn from the judgment, pleadings, and evidence will be given preclusive effect . . . .”); 50 C.J.S. Judgments § 1076 (noting that the court must look to jury instructions as well); Taco Bell Corp. v. TBWA Chiat/Day Inc., 552 F.3d 1137, 1145 (9th Cir. 2009) (finding that the jury instructions underlying the finding left doubt as to what the jury decided). 13 Doc. 192 at p. 12. -5- 1 2 The undisputed evidence showed that Burghart was at least assisting with the handcuffing and arrest of Kloberdanz at the time of the alleged excessive force.14 3 4 Burghart testified that he had control of Kloberdanz’s right arm to secure handcuffs 5 when Kloberdanz was on the ground the second time and that he assisted in lifting 6 Kloberdanz back up to his feet, which is the time during which Kloberdanz alleges 7 Pellino pushed and slammed his head multiple times and the officers kicked and 8 punched him. 9 10 Pellino asserts that,because Burghart was undisputedly hands-on during the 11 arrest and because the jury was instructed to find excessive force in the event a 12 defendant actively participated in the unconstitutional conduct, th e jury members could 13 not have rationally found for Burghart as to the Excessive Force claim if they thought 14 15 Pellino had done any of the alleged beating while Kloberdanz was on the ground. In 16 other words, given that the jury found for Burghart on the excessive force claim, Pellino 17 argues that there is only one rational inference to be drawn from this case record: the 18 jury determined that the head slamming and beating did not happen. 19 Pellino’s rationale is appealing. Indeed, there is some case law suggesting that 20 21 Burghart’s actions would make him liable. In Blankenhorn v. City of Orange,15 the Ninth 22 Circuit explained in a footnote that liability for excessive force is predicated on the 23 officer’s “integral participation.” Integral participation does not require that the officer’s 24 25 26 27 28 14 The facts were contradictory about where Carpenter was during the handcuffing and beating, and therefore the court cannot make any inferences about what the jury necessarily found about the alleged beating based on their verdict in favor of Carpenter on the Excessive Force Claim. 15 485 F.3d 463 (9th Cir. 2007). -6- 1 2 actions themselves be unconstitutional, but that the of ficer had a “fundamental” role in the conduct. 16 The court in Blankenhorn concluded that where excessive force was 3 4 alleged, in part based on the use of hobble restraints on the plaintiff’s wrists and ankles, 5 an officer’s assistance in handcuffing the plaintiff before the other officer applied the 6 hobble restraints was instrumental to the efforts to restrain the plaintiff in an allegedly 7 excessive manner.17 On the other hand, there are district court cases which have held 8 that assistance in handcuffing does not amount to “integral participation.” For example, 9 10 in Mendez v. Montour,18 the district court held that an officer who was holding the 11 plaintiff during his arrest did not actively participate in the excessive force used by his 12 partner, who had suddenly performed a take down of the plaintiff and then later 13 slammed the plaintiff’s head against the patrol car. 19 14 15 As the case law shows, what constitutes active participation is highly fact 16 dependent. The court’s instruction was not that nuanced: it did not provide the jury with 17 specific guidance on what situations have and have not been considered “active 18 19 participation.” The instruction explained that participation does not require each officer’s actions themselves rise to the level of a constitutional violation, but it did not 20 21 otherwise try to define or explain what active participation would mean besides that it 22 does not include “mere bystander[s].” The court did not instruct the jury that any hands- 23 on participation is per se “active participation,” nor does the case law necessarily 24 25 16 Id. at 481 n. 12. 26 17 27 18 28 19 Id. No. 12-cv-04170, 2014 WL 1218665 (N.D. Cal. Mar. 21, 2014). Id. at *4. -7- 1 2 support such an instruction. Therefore, the jury could have found that while Burghart was a participant in the arrest, which they deemed lawful, he was not a participant in 3 4 Pellino’s actions. 5 Pellino cites a Tenth Circuit case, Estate of Booker v. Gomez,20 to argue that 6 active participation includes failing to intervene when another officer uses excessive 7 force. Again, however, the court’s instruction to the jury was not that specific. It did not 8 tell the jury that complicity is tantamount to participation. 9 10 While all jury members necessarily found that Burghart was not actively lifting 11 and dropping Kloberdanz or kicking and hitting him, the court concludes, based on its 12 instruction, that some members of the jury could have potentially found that Pellino 13 must have engaged in some level of force—pressure to the head, pounding of the head 14 15 to some extent, or kicking and hitting—given Kloberdanz’s injuries. It is also possible 16 that, as Pellino suggests, the jury unanimously agreed that Pellino did not engage in the 17 alleged head slamming, but that some members thought the claim against Pellino for 18 excessive force was still valid based on Pellino’s pushing of Kloberdanz. However, the 19 court cannot speculate on which is the most likely scenario. There is simply no way to 20 21 22 23 24 know what specific testimony jury members believed and what they did not. While it is a close call, the court cannot conclude that collateral estoppel on the issue of Pellino’s actions is warranted here. “Where doubt exists as to the basis for the jury’s finding, collateral estoppel does not apply.”21 25 26 27 20 28 21 745 F.3d 405 (10th Cir. 2014). Taco Bell, 552 F.3d at 1145. -8- 1 2 V. CONCLUSION For the reasons above, the court denies the motion at docket 221 and maintains 3 4 5 its denial of Pellino’s motion in limine. DATED this 1st day of January 2017. 6 7 8 /s/ JOHN W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-

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