Willis, et al. v. City Of Fresno, et al.

Filing 141

ORDER Granting 73 Motion for Summary Judgment signed by District Judge Lawrence J. O'Neill on 07/12/2011. CASE CLOSED. (Flores, E)

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1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 CHRIS WILLIS, et al., 13 CASE NO. CV F 09-1766 LJO DLB Plaintiff, SUMMARY JUDGMENT DECISION (Doc. 73.) vs. 14 CITY OF FRESNO, et al., 15 Defendants. 16 / 17 INTRODUCTION 18 Defendants City of Fresno (“City”) and three of its peace officers seek summary judgment on 19 plaintiffs’ excessive force, Monell, and tort claims arising from the fatal shooting of Stephen Willis 20 (“Stephen”). Plaintiffs argue that “facts remain in serious dispute” regarding the shooting to bar 21 summary judgment on most claims. This Court considered defendants’ summary judgment motion on 22 the record without a hearing, pursuant to Local Rule 230(g).1 For the reasons discussed below, this 23 Court GRANTS defendants summary judgment. 24 25 26 27 28 1 This Court carefully reviewed and considered the record, including all evidence, arguments, points and authorities, declarations, testimony, statements of undisputed facts and responses thereto, objections and other papers filed by the parties. Omission of reference to evidence, an argument, document, objection or paper is not to be construed to the effect that this Court did not consider the evidence, argument, document, objection or paper. This Court thoroughly reviewed, considered and applied the evidence it deemed admissible, material and appropriate for summary judgment. This Court does not rule on objections in a summary judgment context, unless otherwise noted. 1 1 BACKGROUND2 2 Summary 3 During the early morning of March 28, 2009, Stephen, a 23-year-old trade school student, was 4 fatally shot after defendant City police officers Greg Catton (“Officer Catton”) and Daniel Astacio 5 (“Officer Astacio”) encountered Stephen who possessed a .38 caliber revolver (“revolver”). Plaintiffs 6 Chris Willis (“Mr. Willis”) and Mary Willis (“Ms. Willis”) are Stephen’s natural parents and pursue 7 wrongful death, excessive force and inadequate training claims against the City, its police chief Jerry 8 Dyer (“Chief Dyer”), and Officers Canton and Astacio (collectively “defendants”). Plaintiff Jennafer 9 Uribe (“Ms. Uribe”) was Stephen’s live-in partner and present in the vicinity of Stephen’s fatal shooting. 10 Ms. Uribe has pursued assault, intentional infliction of emotional distress (“IIED”), and negligent 11 training claims against defendants but has sought to dismiss them in exchange for a waiver of costs.3 12 Defendants appear to reject such offer. 13 Target Shooting 14 On March 27, 2009, Stephen used a six-shot revolver loaned by Mr. Willis for target shooting. 15 Stephen transported the revolver in a holster within a black laptop computer bag. When Stephen 16 departed from target shooting, no .38 caliber ammunition remained in the revolver. Several of Stephen’s 17 friends were unable to fire the revolver because Stephen was out of .38 caliber ammunition. 18 Dinner And Drinking 19 After target shooting, Stephen, Ms. Uribe and a friend had dinner at a restaurant during 5:30 to 20 7 p.m. Stephen and Ms. Uribe shared a quesadilla with rice and beans. Stephen consumed half of a 21 Sierra Nevada beer, and Ms. Uribe consumed a margarita. Stephen and Ms. Uribe left the restaurant and 22 purchased a bottle of tequila from a grocery store. 23 Stephen and Ms. Uribe returned to their apartment to prepare to meet friends at a night club. 24 2 25 26 27 28 This Court derived the following factual recitation by combing through the record. The parties’ factual statements and responses thereto provide little assistance in that they are disjointed, lack sequence and supporting evidence for purported facts, meander at counsel’s whim, and are packed with irrelevant information and argument. This Court ADMONISHES the parties’ counsel that factual statements must distill clearly “facts,” not argument or speculation, and must be coherent, succinct, and well-organized sequentially by the events or claims at issue. This admonishment serves as a predicate to impose sanctions on the parties and their counsel in other actions. 3 Mr. and Ms. W illis and Ms. Uribe will be referred to collectively as “plaintiffs.” 2 1 Stephen and Ms. Uribe consumed shots of tequila before leaving for the night club. 2 At the night club, a bouncer told Ms. Uribe that she had reached her limit and would be served 3 no more alcohol. Stephen and Ms. Uribe decided to meet their friends at their apartment during the late 4 evening, and Stephen drove them from the night club in his dark-colored Infiniti sedan. Ms. Uribe 5 became nauseous from her drinking and asked Stephen to speed up. 6 Erratic Driving 7 At around that time, Officers Canton and Astacio and several other City Police Department 8 (“Department”) officers responded to a call regarding a possible gang disturbance near Stephen and Ms. 9 Uribe’s southeast Fresno apartment complex. Parked near the apartment complex’ entrance were three 10 or four marked Department vehicles, including Officer Astacio’s vehicle with overhead lights 11 illuminated. Officer Canton wore his Department uniform with a duty belt, metal badge on his left 12 breast, and two white Department stars on each shoulder. Officer Astacio wore a Department Class C 13 uniform with lo-bearing vest and white Department stars on his left chest and each shoulder, and 14 “Police” on his back. 15 Stephen and Ms. Uribe’s vehicle traveled past the officers and turned into the apartment 16 complex. Officers perceived what they believed was a vehicle colliding with the entrance gate to the 17 apartment complex. Officers heard an engine revving, screeching tires, and the striking of an unknown 18 object. Officers Catton and Astacio walked into the apartment complex following the path of Stephen 19 and Ms. Uribe’s vehicle to investigate a hit and run and possible driving under the influence. 20 After Stephen parked the vehicle in front of their apartment unit, Ms. Uribe exited the vehicle 21 and ran to the apartment unit’s front door because she felt she would vomit. Ms. Uribe’s mother did not 22 answer her knock to allow her to enter the apartment unit. 23 Initial Encounter With Stephen 24 Officers Catton and Astacio observed Stephen stand at the rear of his vehicle which they believed 25 had been involved in a hit and run or possible driving under the influence. Officers Catton and Astacio 26 note that they identified themselves as police officers and asked to speak to Stephen. Officer Catton 27 illuminated Stephen with his large flashlight, and Officer Astacio notes he was 20-25 feet from Stephen 28 at that point. When Stephen turned to face Officers Catton and Astacio, they observed that Stephen held 3 1 a firearm in a holster. 2 Officers Canton and Astacio note that they again identified themselves as police officers, drew 3 their firearms, and commanded Stephen to drop his firearm. In his deposition, Officer Canton testified 4 that “I reached for the gun when I saw the gun in the holster . . . it was see gun, grab my gun.” Officer 5 Astacio testified: “I think I simultaneously pulled out my firearm when I noticed that he was holding a 6 firearm in the holster.” Officers Catton and Astacio note that Stephen drew the firearm from its holster, 7 pointed it in their direction, and ignored their commands to drop the gun. 8 9 10 Initial Firing On Stephen In his deposition, Officer Astacio testified as to his initial firing on Stephen from ten feet away: Q. So when you first were approaching him and you identified yourself as a police officer and he turned from the trunk you saw he was holding a holster with a gun in it, your first reaction was to yell “Drop the gun” and reach for your own gun? 12 A. Correct. 13 Q. And as you were doing that you saw him withdraw his gun from his holster and then point it at you in a straight arm position? A. Correct. Q. And that’s when you fired at him? A. Correct. Q. Okay. He never got off a shot at you? A. I remember seeing a muzzle flash at that time, but it was after I had already initially fired the first couple of rounds. 11 14 15 16 17 18 19 20 Officer Astacio also testified: 21 Q. What was it that caused you to fire first? 22 A. Just fearing for my safety because . . . the suspect had pulled out the firearm from a holster and it was pointed at us. Q. So your memory is that he was actually pointing the firearm at you when you fired? 25 A. Yes. 26 Officer Catton testified: 27 Q. 23 24 28 When you pulled your gun you were keeping your light on what you’ve called the subject and you were raising your own gun and you felt he was going to point his gun at you, correct? 4 1 A. When I saw his gun, I drew my gun. As I was drawing my gun he reached for his gun, started to pull it out and started to extend towards me. Q. And before he extended towards you you discharged your gun? A. Before it was fully extended, yes, I did. 2 3 4 5 Officer Astacio initially fired three to five rounds at Stephen and recalled a muzzle flash from 6 Stephen’s firearm. Officer Astacio thought he had hit Stephen in his chest. Officer Catton claims he 7 fired once or twice and does not know if he hit Stephen. Defense expert Vincent Di Maio, M.D. (“Dr. 8 Di Maio”), testified that three bullets entered Stephen, including one in his neck area, but could not say 9 “which ones occurred at the initial shooting.” 10 Continued Firing On Stephen 11 Officer Catton claims that Stephen ran between his vehicle and a mini van while he continued 12 to point his firearm toward Officer Canton. Officer Catton recalled seeing a muzzle flash from 13 Stephen’s firearm near the time Stephen started to run from his vehicle toward the mini van. Officer 14 Canton continued to fire at Stephen until he lost visual contact. 15 Officer Catton backed up between Chevrolet and Pontiac vehicles and observed Stephen 16 crouched behind the nearby mini van “pointing his gun at me.” Officer Catton believed Stephen 17 prepared to fire on Officer Astacio or him and that “there was a muzzle flash.” Officer Catton fired upon 18 Stephen in that Stephen still pointed a gun at Officer Catton. 19 Officer Astacio’s version of events at that this point differs. After the “first burst of rounds,” 20 Officer Astacio suspected Stephen “had been hit,” “was falling on the ground,” but did not know “if he 21 was going to stay on the ground.” Officer Astacio testified that after Stephen appeared to fall to the 22 ground, Stephen did not attempt to run.4 Officer Astacio testified: “In my mind it looked like he was 23 in a position where he was going to fall to the ground. So in my mind I just believed that he was going 24 to be on the ground.” 25 26 Officer Catton’s Attempt At A Better Shot Officer Catton desired a better shot and testified: “I came out of cover so that I could get a full 27 4 28 Plaintiffs surmise that Stephen was seriously wounded and tried to crawl to protection from an onslaught of bullets. Plaintiffs point out that 18 bullets were fired into the mini van, Stephen’s vehicle and the apartment dwelling. 5 1 view and a good shot or a good angle. And at that point I started to fire and I felt . . . like I had been hit 2 in the leg by something in the left thigh and I yelled out.” Officer Catton retreated toward the rear of 3 the Pontiac to check for injuries and discovered he was unharmed. Officer Catton does not know if he 4 was hit by a bullet from Officer Astacio. 5 Officer Catton returned toward the front of the Pontiac and resumed firing. He testified: 6 Q. And you began firing again? 7 A. Just a few, just maybe two or three times more. 8 Q. Was Mr. Willis still in a crouched position pointing his gun at you? 9 A. Yes. 10 ... 11 Q. His face was turned in your direction and he was pointing the gun at you? 12 A. When I went back I remember him crouching down. The last time I went back after I checked my leg I don’t remember him pointing the gun at me at that point, but I do remember him still crouched and leaning up against the back of the van. 13 14 Officer Catton further testified: “I just didn’t know if I had hit him based on the way that he was reacting 15 to what I thought I had done. He wasn’t acting in a manner that I felt like I had effectively hit him.” 16 Officer Astacio’s Final Shots 17 Officer Astacio had taken cover behind a truck’s front tire and had heard Officer Catton grunt 18 during gunfire. Officer Astacio observed Stephen kneel behind the mini van and point his firearm west. 19 Officer Astacio testified: “To me it looked like, it looked like he was shooting at Officer Catton in the 20 back.” Officer Astacio further testified: “I then looked out from the cover of the car and noticed that Mr. 21 Willis, that’s when I noticed Mr. Willis was pointing the firearm in the western direction and also 22 discharging the firearm.” Officer Astacio testified that he saw at least two muzzle flashes from 23 Stephen’s firearm. Officer Astacio fired three to five rounds at Stephen, hitting him in the back, as 24 Stephen knelt by the mini van. 25 Officer Catton retreated from the Pontiac’s cover and proceeded to Officer Astacio and his cover 26 behind a truck. Officer Astacio radioed their location to other officers. Officer Astacio believed he was 27 the last to discharge his weapon at Stephen and testified that he did not hear Officer Catton fire after 28 Officer Astacio’s last shots. 6 1 After Officer Catton joined Officer Astacio, they observed Stephen lying on his side and stopped 2 firing because they believed Stephen was no longer a threat although Officer Catton noted that he feared 3 that Stephen had the ability to reach for his firearm. Department Officer Derek Jacobo (“Officer 4 Jacobo”) attributes Officer Catton as saying he “put that hole in his [Stephen’s] back.” 5 Defense expert Dr. Di Maio testified: “There was only one wound that was lethal.” 6 In their declarations, Officers Catton and Astacio both state: “Under the tense, rapidly changing 7 circumstances, and the immediate threat that was presented, I did not believe I had the time or luxury 8 to delay taking action. I firmly believed that my life and the life of Officer [Catton/Astacio] was in 9 jeopardy if I did not use deadly force at the moment I did.” 10 Ms. Uribe’s Status During The Shooting 11 Ms. Uribe did not observe the events involving Stephen and Officers Catton and Astacio during 12 which she stood in front of her apartment door or near a neighbor’s apartment door. The patio of 13 Stephen and Ms. Uribe’s apartment blocked Ms. Uribe’s view of the parking area. Ms. Uribe heard what 14 she thought were firecrackers or fireworks and looked to the sky. Ms. Uribe has neither given a 15 statement nor testified as to bullets flying by or near her to endanger her. 16 Officers Catton and Astacio did not observe Ms. Uribe in the apartment complex parking lot or 17 immediate vicinity when they approached Stephen and his vehicle or during the shooting. When 18 Officers Catton and Astacio contacted Stephen and discharged their weapons, they were unaware that 19 anyone other than Stephen was present in the parking lot and lacked information that anyone else was 20 present or in the near vicinity. 21 Post-Shooting Results 22 Investigating Department officers found that Stephen’s revolver contained five live rounds and 23 one spent cartridge two slots over from where it would have been had it been fired. On March 28, 2009, 24 a box of Ultramax .38 caliber ammunition was recovered from Stephen’s apartment with six cartridges 25 missing from the box of 50. The box of Ultramax .38 caliber ammunition recovered from the apartment 26 is consistent with the ammunition Stephen used for target shooting. 27 Officers Catton and Astacio had fired 41 rounds with Officer Catton reloading twice and Officer 28 Astacio reloading once. Plaintiffs note that Officers Catton and Astacio were no more than 25 feet from 7 1 Stephen when they fired and took up shooting positions in which they were in line with each other from 2 a distance of no more than 36 feet to render Stephen halfway between Officers Catton and Astacio. 3 Department Officer Rafael Villalvazo (“Officer Villalvazo”) headed the Department’s 4 investigation into Stephen’s shooting. He determined that Stephen had fired once at Officers Catton and 5 Astacio based on the empty casing inside the revolver. Officer Villalvazo issued a report to exonerate 6 Officers Catton and Astacio. 7 Toxicology testing indicates that Stephen’s blood alcohol content was .29 and that THC 8 (marijuana) was present in his system. Plaintiffs dispute the results based on the compromised condition 9 of Stephen’s body. 10 Department Accreditation 11 The Department is accredited with minimum standards set by the Peace Officer Standards and 12 Training (“POST”), which govern California police officer training. The Department is also accredited 13 by the Commission on Accreditation for Law Enforcement (“CALEA”), which delineates law 14 enforcement practices. 15 Department officers must attend a POST-certified academy, receive ongoing training, and 16 participate every two years in 24 hours of perishable skills training identified by POST. Department 17 training regarding use of force complies with POST standards. Officers Catton and Astacio attended 18 a POST-certified academy and received basic level POST certification. Officer Astacio also received 19 intermediate level POST certification. 20 Department Use Of Force And Related Policies And Practices 21 Department Deputy Police Chief Robert Nevarez (“Deputy Chief Nevarez”) declares: 22 “Consistent with its policy regarding the use of force, the Fresno Police Department trains its officers 23 that they can use reasonable force to defend themselves or others, affect an arrest or detention, prevent 24 escape and/or overcome resistance. Officers are trained to assess the situation and use that amount of 25 force that is reasonable under the circumstances.” 26 Department administrative staff review incidents involving force to determine whether the force 27 used was reasonable and take necessary corrective action. Deputy Chief Nevarez declares that the 28 Department’s policy and practice is “to conduct thorough investigations into allegations of misconduct 8 1 on the part of its police officers.” Deputy Chief Nevarez further notes that officers “must report crimes, 2 suspicious incidents and incidents in which they use force, resulting in injury or a complaint of pain. 3 It has never been the policy of the Fresno Police Department to allow its officers to falsify reports for 4 any reason.” 5 At the time of Stephen’s shooting, the Department’s practice was to await the results of the 6 Fresno County District Attorney’s Office investigation of an officer involved shooting prior to a 7 Department Internal Affairs investigation. Chief Dyer opines that an outside independent agency 8 investigation ensures that “the investigation is complete and thorough before Internal Affairs completes 9 [its] investigation.” After an officer involved shooting, the officer is placed on administrative leave 10 during an initial criminal investigation to determine whether there is obvious criminal misconduct. The 11 officer undergoes a psychological assessment to determine suitability to return to duty and a separate 12 threat assessment by a Department firearms instructor. The officer returns to duty only after satisfactory 13 completion of the psychological and threat assessments. 14 In his declaration, Chief Dyer states that at no time relevant to this action did the Department 15 have a policy, custom or practice to allow officers to: (1) “undertake unreasonable searches and 16 seizures”; (2) “detain or arrest citizens without reasonable cause of lawful justification”; (3) “file false 17 police reports”; (4) “fabricate evidence”; (5) “subject innocent citizens to unlawful shootings and/or 18 excessive force”; or (6) maliciously arrest citizens for crimes they did not commit.” Chief Dyer further 19 notes the absence of a Department policy, custom or practice to provide “inadequate training, 20 supervision, instruction, oversight or discipline” or to “conspire to violate a person’s constitutional 21 rights.” 22 Department Supervision 23 As of March 2009, Department officers were supervised through a chain of command – sergeant, 24 lieutenant, captain, deputy chief and chief. Officers were supervised on a daily basis by a sergeant and 25 received annual written evaluations through the chain of command. Deputy Chief Nevarez declares that 26 Department officers “are expected to comply with Fresno Police Department policies, practices, 27 procedures, and training requirements, and are subject to disciplinary action if they fail to do so.” 28 Deputy Chief Nevarez notes that “[a]t no time has the Fresno Police Department had a policy, practice, 9 1 or custom of improperly supervising its police officers.” 2 3 4 Absence of Chief Dyer’s Participation In Stephen’s Shooting Chief Dyer did not participate in Stephen’s shooting, was not present during the shooting, and gave no direction to officers involved in the shooting. 5 Plaintiffs’ Claims 6 Plaintiffs proceed on their First Amended Complaint for Damages (“FAC”). The FAC alleges 7 for Mr. and Ms. Willis a wrongful death-negligence claim and 42 U.S.C. § 1983 (“section 1983") claims 8 for Fourth and Fourteenth Amendment violations and Monell liability. Through and for Mr. and Ms. 9 Willis, the FAC seeks recovery for Stephen’s funeral and burial expenses, personal injury prior to death, 10 and loss of care and companionship. The FAC alleges for Ms. Uribe assault, IIED and Monell claims 11 to which plaintiffs agree to dismiss in exchange for a waiver of costs. Plaintiffs offer no opposition to 12 summary judgment on Ms. Uribe’s claims. As such, this Court GRANTS defendants summary judgment 13 on Ms. Uribe’s assault, IIED and Monell claims and turns to Mr. and Ms. Willis’ claims. 14 15 16 DISCUSSION Defendants seeks summary judgment in that Officers Catton and Astacio’s use of force was reasonable and plaintiffs lack facts to support the City’s Monell liability. 17 F.R.Civ.P. 56(a) permits a party to seek summary judgment “identifying each claim or defense 18 – or the part of each claim or defense – on which summary judgment is sought.” “A district court may 19 dispose of a particular claim or defense by summary judgment when one of the parties is entitled to 20 judgment as a matter of law on that claim or defense.” Beal Bank, SSB v. Pittorino, 177 F.3d 65, 68 (1st 21 Cir. 1999). 22 Summary judgment is appropriate when the movant shows “there is no genuine dispute as to any 23 material fact and the movant is entitled to judgment as a matter of law.” F.R.Civ.P. 56(a); Matsushita 24 Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); T.W. Elec. Serv., 25 Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The purpose of summary 26 judgment is to “pierce the pleadings and assess the proof in order to see whether there is a genuine need 27 for trial.” Matsushita Elec., 475 U.S. at 586, n. 11, 106 S.Ct. 1348; International Union of Bricklayers 28 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985). 10 1 On summary judgment, a court must decide whether there is a “genuine issue as to any material 2 fact,” not weigh the evidence or determine the truth of contested matters. F.R.Civ.P. 56(a), (c); Covey 3 v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir. 1997); see Adickes v. S.H. Kress & Co., 4 398 U.S. 144, 157, 90 S.Ct. 1598 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467, 82 5 S.Ct. 486 (1962); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 6 1984). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate 7 inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for 8 summary judgment or for a directed verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 9 S.Ct. 2505 (1986) 10 The evidence of the party opposing summary judgment is to be believed and all reasonable 11 inferences that may be drawn from the facts before the court must be drawn in favor of the opposing 12 party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. The 13 inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or 14 whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251- 15 252, 106 S.Ct. 2505. 16 To carry its burden of production on summary judgment, a moving party “must either produce 17 evidence negating an essential element of the nonmoving party’s claim or defense or show that the 18 nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of 19 persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th 20 Cir. 2000); see Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (2007) (moving party is able to 21 prevail “by pointing out that there is an absence of evidence to support the nonmoving party’s case”); 22 High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990). A 23 “complete failure of proof concerning an essential element of the nonmoving party's case necessarily 24 renders all other facts immaterial” to entitle the moving party to summary judgment. Celotex Corp. v. 25 Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). 26 “[T]o carry its ultimate burden of persuasion on the motion, the moving party must persuade the 27 court that there is no genuine issue of material fact.” Nissan Fire, 210 F.3d at 1102; see High Tech 28 Gays, 895 F.2d at 574. “As to materiality, the substantive law will identify which facts are material. 11 1 Only disputes over facts that might affect the outcome of the suit under the governing law will properly 2 preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. 3 “If a moving party fails to carry its initial burden of production, the nonmoving party has no 4 obligation to produce anything, even if the nonmoving party would have the ultimate burden of 5 persuasion at trial.” Nissan Fire, 210 F.3d at 1102-1103; see Adickes, 398 U.S. at 160, 90 S.Ct. 1598. 6 “If, however, a moving party carries its burden of production, the nonmoving party must produce 7 evidence to support its claim or defense.” Nissan Fire, 210 F.3d at 1103; see High Tech Gays, 895 F.2d 8 at 574. “If the nonmoving party fails to produce enough evidence to create a genuine issue of material 9 fact, the moving party wins the motion for summary judgment.” Nissan Fire, 210 F.3d at 1103; see 10 Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986) (F.R.Civ.P. 56 “mandates the entry 11 of summary judgment, after adequate time for discovery and upon motion, against a party who fails to 12 make the showing sufficient to establish the existence of an element essential to that party’s case, and 13 on which that party will bear the burden of proof at trial.”) 14 “But if the nonmoving party produces enough evidence to create a genuine issue of material fact, 15 the nonmoving party defeats the motion.” Nissan Fire, 210 F.3d at 1103; see Celotex, 477 U.S. at 322, 16 106 S.Ct. 2548. “The amount of evidence necessary to raise a genuine issue of material fact is enough 17 ‘to require a jury or judge to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. 18 v. Loral Corp., 718 F.2d 897, 902 (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288- 19 289, 88 S.Ct. 1575, 1592 (1968)). “The mere existence of a scintilla of evidence in support of the 20 plaintiff’s position will be insufficient.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. 21 22 As discussed below, plaintiffs fail to produce enough evidence to create genuine issues of material fact to avoid summary judgment on their claims. 23 Excessive Force 24 The FAC’s second claim alleges for Mr. and Ms. Willis as successors in interest to Stephen a 25 section 1983 excessive force claim. Defendants argue that Officers Catton and Astacio used reasonable 26 force at all times. 27 28 Section 1983 Requirements “Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person 12 1 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the 2 claimant of some right, privilege, or immunity protected by the Constitution or laws of the United 3 States.” Leer v. Murphy, 844 F.2d 628, 632-633 (9th Cir. 1988). 4 “Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for 5 vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 6 811 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 2694, n. 3 (1979)). 7 Section 1983 and other federal civil rights statutes address liability “in favor of persons who are deprived 8 of ‘rights, privileges, or immunities secured’ to them by the Constitution.” Carey v. Piphus, 435 U.S. 9 247, 253, 98 S.Ct. 1042 (1978) (quoting Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 996 10 (1976)). “The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of 11 a right ‘secured by the Constitution and laws.’” Baker, 443 U.S. at 140, 99 S.Ct. 2689 (1979). Stated 12 differently, the first step in a section 1983 claim is to identify the specific constitutional right allegedly 13 infringed. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 813 (1994). “Section 1983 imposes 14 liability for violations of rights protected by the Constitution, not for violations of duties of care arising 15 out of tort law.” Baker, 443 U.S. at 146, 99 S.Ct. 2689. 16 Reasonableness Standard 17 In Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865 (1989), the U.S. Supreme Court 18 determined that section 1983 excessive force claims are addressed under the Fourth Amendment’s 19 reasonableness standard, not the Fourteenth Amendment’s substantive due process standard: 20 21 22 23 [A]ll claims that law enforcement officers have used excessive force – deadly or not – in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims. 24 25 26 27 28 In Graham, 490 U.S. at 396-397, 109 S.Ct. 1865, the U.S. Supreme Court provided guidance on reasonableness of use of force: . . . the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. . . . Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition 13 1 2 3 4 5 6 or mechanical application . . . however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. ... The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 vision of hindsight. . . . The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation. 7 8 9 As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. (Citations omitted.) 10 11 A section 1983 excessive force plaintiff must establish, as part of his affirmative case, the 12 unreasonableness of the force used. Miller v. Taylor, 877 F.2d 469, 471-472 (6th Cir.1989) (“Plaintiff 13 here was required to show that [defendant] Officer Taylor's use of force was unjustified in order to state 14 a constitutional deprivation."). 15 To determine whether a plaintiff's Fourth Amendment rights were violated, a court must consider 16 whether the defendant officers had probable cause to believe that the plaintiff posed a significant threat 17 of death or serious physical injury to themselves or others, and used reasonable force to alleviate that 18 threat. Herrera v. Las Vegas Metropolitan Police Dept., 298 F.Supp.2d 1043, 1049-1050 (D. Nev. 19 2004). “[A]s the text of the Fourth Amendment indicates, the appropriate inquiry is whether the officers 20 acted reasonably, not whether they had less intrusive alternatives available to them.” Scott v. Henrich, 21 39 F.3d 913, 915 (9th Cir. 1994), cert. denied, 515 U.S. 1159, 115 S.Ct. 2612 (1995). “An officer cannot 22 be expected to accurately anticipate all of the possible responses a subject may have to his commands 23 and then tailor his actions accordingly in order for his conduct to fall into the category of what is 24 considered reasonable.” Reynolds v. County of San Diego, 84 F.3d 1162, 1169 (9th Cir. 1996), overruled 25 on other grounds, Acri v. Varian Assocs., Inc., 114 F.3d 999 (9th Cir. 1997). The Ninth Circuit Court 26 of Appeals has further explained: 27 28 Police officers, however, are not required to use the least intrusive degree of force possible. Rather, as stated above, the inquiry is whether the force that was used to effect a particular seizure was reasonable, viewing the facts from the perspective of a 14 1 2 reasonable officer on the scene. . . . Whether officers hypothetically could have used less painful, less injurious, or more effective force in executing an arrest is simply not the issue. (Citation omitted.) 3 Forrester v. City of San Diego, 25 F.3d 804, 807-808 (9th Cir. 1994), cert. denied, 513 U.S. 1152, 115 4 S.Ct. 1104 (1995). 5 “However, a simple statement by an officer that he fears for his safety or the safety of others is 6 not enough; there must be objective factors to justify such a concern.” Deorle v. Rutherford, 272 F.3d 7 1272, 1281 (9th Cir. 2001), cert. denied, 536 U.S. 958, 122 S.Ct. 2660 (2002). The Ninth Circuit has 8 admonished that “a court may not simply accept what may be a self-serving account by the police 9 officer. It must also look at the circumstantial evidence that, if believed, would tend to discredit the 10 police officer’s story, and consider whether this evidence could convince a rational factfinder that the 11 officer acted reasonably.” Scott, 39 F.3d at 915; see Ting v. United States, 927 F.2d 1504, 1510 (9th Cir. 12 1991) (“We need not decide whether the shooting of [plaintiff] Ting would be objectively reasonable 13 under [officer] Burns' version of the facts because material questions exist regarding the circumstances 14 of the shooting.”) 15 Defendants argue that Officer Catton and Astacio’s use of force was reasonable in that: 16 1. 17 18 commands to drop his revolver after initial contact with Officers Catton and Astacio; 2. 19 20 3. 4. Stephen kneeled behind the mini van and continued to point the revolver at Officer Catton; 5. 25 26 Stephen continued to attempt to evade Officers Catton and Astacio and continued to point the revolver toward them; 23 24 Stephen positioned himself between his vehicle and a mini van from which Officers Catton and Astacio claim they observed a muzzle flash; 21 22 Stephen escalated the situation by drawing the revolver from its holster and ignoring Officer Catton believed he had been struck by Stephen’s bullet and Officer Astacio heard Officer Catton’s grunt; 6. Officers Catton and Astacio faced “tense, rapidly changing circumstances” and feared 27 for their and others’ safety to require “split-second decisions about the amount of force 28 that was necessary”; and 15 1 7. 2 Stephen posed a continuing threat until Officers Catton and Astacio were assured that he was down and unable to use the revolver. 3 Defendants conclude that under the totality of circumstances under which Officers Catton and Astacio 4 were aware, their use of force was reasonable at all times. 5 Plaintiffs respond that Officers Catton and Astacio unreasonably fired too many bullets. 6 Plaintiffs accuse Officers Catton and Astacio of overreacting “to the fact that a man was transporting 7 a gun from his car to his house in location of known gang activity.” Plaintiffs claim that Officers Catton 8 and Astacio “lost track of one another and began firing at each other, panicked and “killed a helpless 9 man by firing bullets into his back as he lay on the ground.” Plaintiffs focus on whether the degree of 10 force was greater than reasonable under the circumstances. Plaintiffs conclude that the evidence “is so 11 garbled that a finder of fact is going to have to weigh the various versions to determine what more than 12 likely happened.” 13 In their reply papers, defendants note plaintiffs’ failure “to cite to the deposition testimony of any 14 individual who contradicts the observations or beliefs” of Officers Catton and Astacio. Defendants 15 contend that plaintiffs present merely “theories, arguments, metaphysical doubts, and alleged factual 16 disputes.” 17 18 Despite the parties’ failure to provide clarity of the events, this Court’s review of the record reveals that: 19 1. Stephen had been drinking and apparently heavily; 20 2. Officers Catton and Astacio responded to apparent erratic driving; 21 3. Officers Catton and Astacio were dressed in Department uniforms and clearly presented 22 as police officers; 23 4. Stephen removed his loaded revolver from his vehicle’s trunk; 24 5. Stephen removed the revolver from its holster; 25 6. Stephen did not drop or discard the revolver despite Officer Catton and Astacio’s 26 /// 27 /// 28 /// 16 commands to do so;5 1 2 7. 3 4 Officers Catton and Astacio perceived that Stephen had the ability to fire the revolver until at or near his death; 8. Stephen took action to remain a threat by positioning himself between his vehicle and 5 the mini van and thus evade Officers Catton and Astacio or no less than prevent their 6 further advance toward him; 7 9. Stephen did not take action to surrender and did not indicate he was willing to do so. 8 Despite plaintiffs’ claim of “garbled” evidence,6 the record reveals that Stephen resisted Officer 9 Catton and Astacio’s initial directives and took action to prevent their further approach of Stephen. The 10 record further reveals that Stephen removed the revolver and posed a threat in that he manipulated and 11 pointed, according to Officers Catton and Astacio, a deadly weapon and failed to discard it. The only 12 reasonable inferences from the evidence are that Stephen was intoxicated and did not want to encounter 13 law enforcement about potential driving under the influence. 14 There is no evidence that Officers Catton and Astacio unreasonably drew their firearms and 15 initially fired on Stephen in response to his pulling his revolver. At that point, the use of deadly force 16 was reasonable. Plaintiffs raise an issue whether Officers Catton and Astacio should have stopped firing 17 and if so, when they should have stopped. They appear to argue that if Officers Catton and Astacio had 18 not fired so many times, Stephen may have been apprehended alive. Plaintiffs offer neither evidence 19 for such speculation nor legal authority. Moreover, had Officers Catton and Astacio stopped firing 20 sooner, there is no evidence that Stephen would have survived Officers Catton and Astacio’s initial 21 reasonable firing. There is no definitive evidence of an unreasonable lethal round. Officers Catton and 22 Astacio were not required to use the least intrusive degree of force possible. 23 Plaintiffs misinterpret the record to criticize Officer Catton and Astacio’s tactics during the 24 events. Such unsupported criticism fails to raise factual issues as to the reasonableness of Officers 25 26 27 5 This Court finds unavailing plaintiffs’ claim that no witnesses heard the commands given the lack of evidence that witnesses were in a position or had ability to hear commands. 6 28 “Garbled evidence” is attributable to plaintiffs’ unwillingness or inability to distill the evidence. This Court surmises that plaintiffs garbled the evidence to attempt unsuccessfully to create factual issues. 17 1 Catton and Astacio’s use of force during the entire course of events they faced. In the absence of direct 2 evidence of unreasonable force, plaintiffs must support their claim with circumstantial evidence. 3 Plaintiffs fail to point to sufficient circumstantial evidence to suggest that Officers Catton and Astacio 4 unreasonably used and continued to use deadly force. 5 6 7 Fourteenth Amendment Familial Claim The FAC’s third claim alleges for Mr. and Ms. Willis a Fourteenth Amendment claim arising out of loss of familial relationship with Stephen. 8 “The concept of ‘substantive due process,’ semantically awkward as it may be, forbids the 9 government from depriving a person of life, liberty, or property in such a way that ‘shocks the 10 conscience’ or ‘interferes with rights implicit in the concept of ordered liberty.’” Nunez v. City of Los 11 Angeles, 147 F.3d 867, 871 (9th Cir. 1998). The substantive component of the Due Process Clause is 12 violated by executive action only when it “can properly be characterized as arbitrary, or conscience 13 shocking, in a constitutional sense.” Collins v. City of Harker Heights, 503 U.S. 115, 128, 112 S.Ct. 14 1061, 1070 (1992). 15 “The protections of substantive due process have for the most part been accorded to matters 16 relating to marriage, family, procreation, and the right to bodily integrity.” Albright, 510 U.S. at 272, 17 114 S.Ct. at 812. 18 against government interference with certain fundamental rights and liberty interests.” Washington v. 19 Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258 (1997). “[R]ecent jurisprudence restricts the reach of 20 the protections of substantive due process primarily to liberties ‘deeply rooted in this Nation's history 21 and tradition.’” Armendariz v. Penman, 75 F.3d 1311, 1319 (9th Cir. 1996) (quoting Moore v. City of 22 East Cleveland, Oh., 431 U.S. 494, 503, 97 S.Ct. 1932, 1937 (1977)). “Thus, the Fourteenth 23 Amendment protects against a State's interferences with ‘personal decisions relating to marriage, 24 procreation, contraception, family relationships, child rearing, and education,’ as well as with an 25 individual's bodily integrity.” Armendariz, 75 F.3d at 1319 (quoting Planned Parenthood v. Casey, 505 26 U.S. 833, 851, 112 S.Ct. 2791, 2807 (1992)). The Fourteenth Amendment’s due process clause “provides heightened protection 27 “[P]arents have a Fourteenth Amendment liberty interest in the companionship and society of 28 their children. Official conduct that “shocks the conscience” in depriving parents of that interest is 18 1 cognizable as a violation of due process.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010). “To 2 prevail on a Fourteenth Amendment claim arising out of the loss of a familial relationship, a plaintiff 3 must show that the Defendant's conduct shocks the conscience. . . . What state of mind shocks the 4 conscience depends on the circumstances of a particular case.” Provencio v. Vazquez, 258 F.R.D. 626, 5 640 (E.D. Cal. 2009) (citation omitted). 6 As to conscience shocking in an excessive force context, the Ninth Circuit has explained: 7 In determining whether excessive force shocks the conscience, the court must first ask “whether the circumstances are such that actual deliberation [by the officer] is practical.” . . .Where actual deliberation is practical, then an officer's “deliberate indifference” may suffice to shock the conscience. . . . On the other hand, where a law enforcement officer makes a snap judgment because of an escalating situation, his conduct may only be found to shock the conscience if he acts with a purpose to harm unrelated to legitimate law enforcement objectives. 8 9 10 11 Wilkinson, 610 F.3d at 554 (citations omitted). “‘[D]eliberation’ should not be interpreted in the narrow, technical sense.” Wilkinson, 610 F.3d 12 13 at 554. 14 Defendants argue that under the “rapidly escalating circumstances” requiring “repeated split- 15 second decisions,” the “purpose-to-harm” standard applies since “actual deliberation was impossible.” 16 Plaintiffs respond that Officer Catton need not have shot Stephen in the back in that Officer Astacio “had 17 already withdrawn from the firing line.” Plaintiffs continue that an “officer cannot bootstrap his/her way 18 into an escalating situation by doing all the escalating him or herself.” 19 This Court agrees with defendants that the “purpose-to-harm” standard applies in the absence 20 of facts to support Officers Catton and Astacio’s opportunity for actual deliberation. Plaintiffs point to 21 no facts that actual deliberation was practical for Officers Catton and Astacio. Plaintiffs’ unsupported 22 claims that Officer Catton panicked fail to substantiate conscience shocking under the circumstances. 23 The record reveals that Officers Catton and Astacio faced a series of snap judgments under which they 24 acted reasonably to negate factual issues as to conscience shocking. As such, Mr. and Ms. Willis 25 familial relationship claims fail. 26 Qualified Immunity 27 Defendants further contend that Officers Catton and Astacio are entitled to qualified immunity 28 because the law at the time did not clearly establish that their conduct would violate Stephen or 19 1 plaintiffs’ constitutional rights. 2 Purpose And Elements 3 Qualified immunity protects section 1983 defendants “from liability for civil damages insofar 4 as their conduct does not violate clearly established statutory or constitutional rights of which a 5 reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 6 (1982). The “heart of qualified immunity is that it spares the defendant from having to go forward with 7 an inquiry into the merits of the case. Instead, the threshold inquiry is whether, assuming that what the 8 plaintiff asserts the facts to be is true, any allegedly violated right was clearly established.” Kelley v. 9 Borg, 60 F.3d 664, 666 (9th Cir. 1995). 10 The issue of qualified immunity is “a pure question of law.” Elder v. Holloway, 510 U.S. 510, 11 514, 114 S.Ct. 1019 (1994); Romero v. Kitsap County, 931 F.2d 624, 627-628 (9th Cir. 1991). To 12 analyze qualified immunity, a court determines: (1) what right has been violated; (2) whether that right 13 was so “clearly established” at the time of the incident that a reasonable officer would have been aware 14 of its constitutionality; and (3) whether a reasonable public officer could have believed that the alleged 15 conduct was lawful. Jensen v. City of Oxnard, 145 F.3d 1078, 1085 (9th Cir. 1998), cert. denied, 525 16 U.S. 1016, 119 S.Ct. 540 (1988). In Skoog v. County of Clackamas, 469 F.3d 1221, 1229 (9th Cir. 2006), 17 the Ninth Circuit Court explained in greater detail: 18 24 Determining whether an official is entitled to summary judgment based on the affirmative defense of qualified immunity requires applying a three-part test. First, the court must ask whether “[t]aken in the light most favorable to the party asserting the injury, [ ] the facts alleged show the officer's conduct violated a constitutional right?” If the answer is no, the officer is entitled to qualified immunity. If the answer is yes, the court must proceed to the next question: whether the right was clearly established at the time the officer acted. That is, “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” If the answer is no, the officer is entitled to qualified immunity. If the answer is yes, the court must answer the final question: whether the officer could have believed, “reasonably but mistakenly . . . that his or her conduct did not violate a clearly established constitutional right.” If the answer is yes, the officer is entitled to qualified immunity. If the answer is no, he is not. (Footnotes omitted.) 25 “The judges of the district courts and the courts of appeals should be permitted to exercise their 26 sound discretion in deciding which of the [] prongs of the qualified immunity analysis should be 27 addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 28 U.S. 223, 129 S.Ct. 808, 818 (2009). In discussing Pearson, the Ninth Circuit recently explained that 19 20 21 22 23 20 1 “lower courts are no longer required to consider whether a constitutional violation occurred before 2 considering whether the right in question was ‘clearly established.’” Moss v. U.S. Secret Service, 572 3 F.3d 962, 968, n. 5 (9th Cir. 2009). 4 Clearly Established Right 5 The “contours” of the allegedly violated right “must be sufficiently clear that a reasonable official 6 would understand that what he is doing violates that right. . . . [I]n the light of preexisting law the 7 unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039 (1987). 8 “The question is what the officer reasonably understood his powers and responsibilities to be, when he 9 acted under clearly established standards.” Saucier v. Katz, 533 U.S. 194, 208, 121 S.Ct. 2151 (2001). 10 “To determine that the law was clearly established, we need not look to a case with identical or 11 even ‘materially similar’ facts.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003), cert. denied, 12 543 U.S. 825, 125 S.Ct. 43 (2004). “Rather, the ‘standard is one of fair warning: where the contours of 13 the right have been defined with sufficient specificity that a state official had fair warning that [his] 14 conduct deprived a victim of his rights, [he] is not entitled to qualified immunity.’” Serrano, 345 F.3d 15 at 1077 (quoting Haugen v. Brosseau, 339 F.3d 857, 873 (9th Cir. 2003)). “[O]fficials can still be on 16 notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 17 536 U.S. 730, 741, 122 S.Ct. 2508 (2002). 18 Defendants note that the law was clearly established that an officer may use deadly force if he/she 19 reasonably believes that a suspect poses an immediate risk of causing death or serious bodily injury to 20 the officer or others. Plaintiffs attribute Officer Catton to admit to shooting Stephen in the back while 21 Stephen remained alive and that the unlawfulness of such act was apparent. 22 As noted above, persons enjoy a right to be free from excessive force. However, Stephen did 23 not enjoy a right to pull a revolver on peace officers responding to perceived erratic driving and initiate 24 a series of events to require peace officers to draw their weapons and fire. Under the circumstances at 25 issue, plaintiffs fail to identify a clearly established violated right. 26 Reasonable Belief 27 “An officer might correctly perceive all of the relevant facts but have a mistaken understanding 28 as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to 21 1 what the law requires is reasonable, however, the officer is entitled to the immunity defense.” Saucier, 2 533 U.S. at 205, 121 S.Ct. 2151. “The question is what the officer reasonably understood his powers 3 and responsibilities to be, when he acted under clearly established standards.” Saucier, 533 U.S. at 208, 4 121 S.Ct. 2151. “Qualified immunity shields an officer from suit when she makes a decision that, even 5 if constitutionally deficient, reasonably misapprehends the law governing the circumstances she 6 confronted.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 599 (2004). “Officers can have 7 reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause or exigent 8 circumstances, for example, and in those situations courts will not hold that they have violated the 9 Constitution.” Saucier, 533 U.S. 194, 121 S.Ct. at 2158. Peace officers in “tense situations” are 10 afforded “broad discretion” and “immunity even when officers make mistakes.” See Jeffers v. Gomez, 11 267 F.3d 895, 909 (9th Cir. 2001). 12 “If the law did not put the officer on notice that his conduct would be clearly unlawful, summary 13 judgment based on qualified immunity is appropriate.” Saucier, 533 U.S. at 202, 121 S.Ct. at 2156- 14 2157. However, determination of qualified immunity on summary judgment is improper if there are 15 disputes “as to the facts and circumstances.” See Acosta v. City and County of San Francisco, 83 F.3d 16 1143, 1147, n. 10 (9th Cir.), cert. denied, 519 U.S. 1009, 117 S.Ct. 514 (1996). When “there is a material 17 dispute as to the facts regarding what the officer or the plaintiff actually did, the case must proceed to 18 trial.” Lalonde v. County of Riverside, 204 F.3d 947, 953 (9th Cir. 2000). 19 A defendant “carries the burden of proving that his ‘conduct was reasonable under the applicable 20 standards even though it might have violated [plaintiff's] constitutional rights.’” Houghton v. South, 965 21 F.2d 1532, 1534 (1992) (quoting Benigni v. City of Hemet, 879 F.2d 473, 480 (9th Cir.1988)). 22 Turning to an excessive force claim, the qualified immunity analysis inquires “whether it would 23 be objectively reasonable for the officer to believe that the amount of force employed was required by 24 the situation he confronted. . . . That is, the first step in the analysis is an inquiry into the objective 25 reasonableness of the officer’s belief in the necessity of his actions, and there is no Fourth Amendment 26 violation if the officer can satisfy this standard.” Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir. 27 2003), cert. denied, 125 S.Ct. 43 (2004) (italics in original). 28 Although “reasonableness traditionally is a question of fact for the jury,” a defendant can prevail 22 1 on summary judgment if the court “concludes, after resolving all factual disputes in favor of the plaintiff, 2 that the officer’s use of force was objectively reasonable under the circumstances.” Scott, 39 F.3d at 3 915. 4 Defendants argue that Officer Catton and Astacio’s belief that Stephen posed a significant threat 5 justified their deadly force as “constitutionally reasonable.” Plaintiffs respond that Officer Catton’s 6 “rambling” immediately after the shooting indicates that he did not act reasonably. Plaintiffs argue that 7 differing versions of events preclude qualified immunity. 8 As discussed above, there are no factual issues as to the reasonableness of Officer Catton and 9 Astacio’s actions. Plaintiffs fail to dispute that Officers Catton and Astacio reasonably drew their 10 weapons and fired after Stephen drew the revolver. As distilled above, the record reveals that Officers 11 Catton and Astacio faced rapidly evolving events with no signs of surrender by Stephen. Plaintiffs 12 attempt to impose on Officers Catton and Astacio a reasonableness standard to ascertain when to stop 13 shooting despite evolving, uncertain events. Such standard evades human ability, especially under the 14 circumstances which Officers Catton and Astacio faced. Moreover, Officer Catton’s purported rambling 15 fails to establish his unreasonable beliefs in the correctness of his actions. Plaintiffs attempt to 16 manufacture factual issues by misinterpreting or distorting the record. Officers Catton and Astacio are 17 entitled to qualified immunity. 18 19 20 Monell Liability The FAC attempts to impose Monell liability on the City for purported Department policies to violate civil rights and to provide inadequate and reckless training to police officers. 21 A local government unit may not be held liable for the acts of its employees under a respondeat 22 superior theory. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018 23 (1978); Davis v. Mason County, 927 F.2d 1473, 1480 (9th Cir.), cert. denied, 502 U.S. 899, 112 S.Ct. 24 275 (1991); Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989). “Federal case law 25 has long barred respondeat superior liability against state actors in suits brought under 42 U.S.C. § 26 1983.” Fed. of African American Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th Cir. 1996). 27 Claimants suing state actors under 42 U.S.C. § 1983 “must establish that their alleged injury was the 28 result of a ‘policy or custom’ of that state actor.” African American Contractors, 96 F.3d at 1215. 23 1 “[A] municipality cannot be held liable solely because it employs a tortfeasor.” Monell, 436 U.S. 2 at 691, 98 S.Ct. at 2018. The local government unit “itself must cause the constitutional deprivation.” 3 Gilette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992), cert. denied, 510 U.S. 932, 114 S.Ct. 345 4 (1993). Because liability of a local governmental unit must rest on its actions, not the actions of its 5 employees, a plaintiff must go beyond the respondeat superior theory and demonstrate that the alleged 6 constitutional violation was the product of a policy or custom of the local governmental unit. City of 7 Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197 (1989); Pembaur v. City of Cincinnati, 475 8 U.S. 469, 478-480, 106 S.Ct. 1292 (1986). To maintain a civil rights claim against a local government, 9 a plaintiff must establish the requisite culpability (a “policy or custom” attributable to municipal 10 policymakers) and the requisite causation (the policy or custom as the “moving force” behind the 11 constitutional deprivation). Monell, 436 U.S. at 691-694, 98 S.Ct. 2018; Gable v. City of Chicago, 296 12 F.3d 531, 537 (7th Cir. 2002). 13 “In addition, a local governmental entity may be liable if it has a ‘policy of inaction and such 14 inaction amounts to a failure to protect constitutional rights.’” Lee v. City of Los Angeles, 250 F.3d 668, 15 681 (9th Cir. 2001) (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)). A local government 16 entity may be liable under section 1983 “if its deliberate policy caused the constitutional violation 17 alleged.” Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007). However, “[l]iability for 18 improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon 19 practices of sufficient duration, frequency and consistency that the conduct has become a traditional 20 method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1995), cert. denied, 520 21 U.S. 1117, 117 S.Ct. 1249 (1997). 22 A municipal policy or custom is established by showing: (1)“a longstanding practice or custom 23 which constitutes the ‘standard operating procedure’ of the local government entity;” (2) “that the 24 decision-making official was, as a matter of state law, a final policymaking authority whose edicts or 25 acts may fairly be said to represent official policy in the area of decision;” or (3) “that an official with 26 final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate.” 27 Ulrich v. City and County of San Francisco, 308 F.3d 968, 984-985 (9th Cir. 2002) (internal quotation 28 marks and citations omitted). 24 1 Inadequate Training 2 The FAC’s sixth claim accuses the City and Chief Dyer of “customs, policies, patterns or 3 practices . . . of deliberate indifference in the training, retraining, supervision and/or discipline” of police 4 officers. 5 “[I]nadequacy of police training may serve as the basis for § 1983 liability only where the failure 6 to train amounts to deliberate indifference to the rights of persons with whom the police come in 7 contact.” City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197 (1989). “Only where a 8 municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate indifference’ 9 to the rights of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’ 10 that is actionable under § 1983.” Harris, 489 U.S. at 389, 109 S.Ct. 1197. Moreover, “it is therefore 11 difficult in one sense even to accept the submission that someone pursues a ‘policy’ of ‘inadequate 12 training,’ unless evidence be adduced which proves that the inadequacies resulted from conscious choice 13 – that is, proof that the policymakers deliberately chose a training program which would prove 14 inadequate. And in the second place, some limitation must be placed on establishing municipal liability 15 through policies that are not themselves unconstitutional . . .” City of Oklahoma City v. Tuttle, 471 U.S. 16 808, 823, 105 S.Ct. 2427 (1985). 17 The U.S. Supreme Court has elaborated on an inadequate training claim: 18 But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury. 19 20 21 22 23 In resolving the issue of a city's liability, the focus must be on adequacy of the training program in relation to the tasks the particular officers must perform. That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may have resulted from factors other than a faulty training program. 24 25 Harris, 489 U.S. at 390-391, 109 S.Ct. 1197 (footnotes omitted). 26 As to failure to train employees, the Ninth Circuit has explained: 27 The custom or policy of inaction, however, must be the result of a “conscious,” . . . or “‘deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing final policy with 28 25 1 2 3 4 5 6 7 respect to the subject matter in question.’” ... A local governmental entity's failure to train its employees can also create § 1983 liability where the failure to train “amounts to deliberate indifference to the rights of persons” with whom those employees are likely to come into contact. . . . “[F]or liability to attach in this circumstance the identified deficiency in a [local governmental entity's] training program must be closely related to the ultimate injury.” . . . In other words, a plaintiff must show that his or her constitutional “injury would have been avoided” had the governmental entity properly trained its employees. . . . Lee, 250 F.3d at 681 (citations omitted.) 8 A section 1983 plaintiff alleging a policy of failure to train peace officers must show: (1) he/she 9 was deprived of a constitutional right; (2) the local government entity had a training policy that amounts 10 to deliberate indifference to constitutional rights of persons’ with whom its peace officers are likely to 11 come into contact; and (3) his/her constitutional injury would have been avoided had the local 12 government unit properly trained those officers. Blankenhorn, 485 F.3d at 463. “[A]bsent evidence of 13 a ‘program-wide inadequacy in training,’ any shortfall in a single officer’s training ‘can only be 14 classified as negligence on the part of the municipal defendant – a much lower standard of fault than 15 deliberate indifference.’” Blankenhorn, 485 F.3d at 484-485 (quoting Alexander v. City and County of 16 San Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994)). 17 18 In short, “the identified deficiency in a city’s training program must be closely related to the ultimate injury.” Harris, 489 U.S. at 391, 109 S.Ct. 1197. 19 Defendants point to the absence of evidence of an unconstitutional policy, practice or custom as 20 to training Department officers. Defendants note the Department’s POST compliance, officers’ 21 graduation (including Officers Catton and Astacio) from a POST-certified academy, and ongoing officer 22 training on use of force pursuant to POST standards. Defendants point out that the Department is 23 certified by CALEA which “delineates best practices for law enforcement agencies, ensures agencies 24 seeking accreditation have adopted these written practices and have proven their members’ conduct is 25 consistent with stated practices.” 26 Plaintiffs fail to challenge meaningfully defendants’ points on Department training of police 27 officers. Plaintiffs offer nothing to suggest that an adequate training policy or practice contributed to 28 alleged constitutional violations. In fact, plaintiffs appear to abandon their claim of inadequate officer 26 1 training. As such, the City is entitled to summary judgment on the FAC’s inadequate training claim. 2 Permitting Excessive Force 3 4 The FAC alleges that the Department maintained customs, policies and/or practices to subject “innocent citizens to unlawful shooting, excessive force.” 5 Defendants point to no policy or procedure to permit inappropriate or excessive force in that the 6 Department “trains its officers that they can use reasonable force to defend themselves or others to affect 7 an arrest or detention, prevent escape and/or overcome resistance.” Defendants continue that the 8 Department trains officers “to assess the situation and use the amount of force that is reasonable under 9 the circumstances.” 10 Plaintiffs identify no specific Department policy or custom to permit excessive force. Plaintiffs 11 claim “numerous officer-involved shootings” during Chief Dyer’s tenure and “lawsuits.” Plaintiffs 12 criticize the limited administrative investigation into Stephen’s shooting which Chief Dyer “has never 13 seen.” Plaintiffs further criticize Officer Villalvazo’s investigation based on its delay and his coaching 14 of Officers Catton and Astacio. Plaintiffs conclude that the City and Chief Dyer “have allowed, fostered, 15 and perpetuated an atmosphere of condolence of officer-involved shootings.” 16 A claim based on a policy to allow excessive force fails in the absence of a policy or custom 17 attributable to City or Department policymakers and the requisite causation of such policy or custom as 18 a moving force behind a constitutional deprivation. Plaintiffs’ criticisms of the investigation of 19 Stephen’s shooting fail to raise inferences of a policy or custom to permit excessive force, especially in 20 light of the record of the reasonableness of Officers Catton and Astacio’s actions. Plaintiffs offer only 21 speculation of a policy or practice to permit excessive force. 22 23 24 Supervision And Discipline Plaintiffs appear to fault the City for the Department’s failure to supervise and discipline properly officers, including Officers Catton and Astacio. 25 To refute such a claim, defendants point to the Department’s chain of command supervision, 26 daily supervision of officers, annual officer evaluations, and officer discipline for failure to comply with 27 Department policies, practices and training requirements. Defendants point to the Department’s 28 administrative review of officer use of force and placing officers involved in shootings on administrative 27 1 leave pending an initial criminal investigation and successful psychological and threat assessments. 2 Plaintiffs offer nothing meaningful to challenge defendants’ points regarding Department 3 supervision and discipline. Plaintiffs merely criticize investigation into Stephen’s shooting to attempt 4 to equate a policy of deliberate indifference. As noted above, plaintiffs’ criticism fails to raise factual 5 issues as to a Department policy or practice of deliberate indifference. 6 Chief Dyer 7 Defendants challenge Chief Dyer’s liability under section 1983 in the absence of evidence of his 8 participation in the events surrounding Stephen’s shooting and implementation of constitutionally 9 deficient policies or practices. 10 “Section 1983 creates a cause of action based on personal liability and predicated upon fault; 11 thus, liability does not attach unless the individual defendant caused or participated in a constitutional 12 deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996), cert. denied, 520 U.S. 1230, 117 S.Ct. 13 1822 (1997); see Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“Liability under section 1983 arises 14 only upon a showing of personal participation by the defendant.”) “The inquiry into causation must be 15 individualized and focus on the duties and responsibilities of each individual defendant whose acts or 16 omissions are alleged to have caused the constitutional deprivation.” Leer, 844 F.2d at 633. Section 17 1983 requires that there be an actual connection or link between the defendant’s actions and the 18 deprivation allegedly suffered. See Monell, 436 U.S. at, 98 S.Ct. 2018; Rizzo v. Goode, 423 U.S. 362, 19 96 S.Ct. 598 (1976). 20 A plaintiff cannot hold an officer liable “because of his membership in a group without a 21 showing of individual participation in the unlawful conduct.” Jones v. Williams, 297 F.3d 930, 935 (9th 22 Cir. 2002) (citing Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996)). A plaintiff must “establish the 23 ‘integral participation’ of the officers in the alleged constitutional violation.” Jones, 297 F.3d at 935. 24 “‘[I]ntegral participation’ does not require that each officer’s actions themselves rise to the level of a 25 constitutional violation.” Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004). Integral 26 participation requires “some fundamental involvement in the conduct that allegedly caused the 27 violation.” Blankenhorn, 485 F.3d at 481, n. 12. “A person ‘subjects’ another to the deprivation of a 28 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in 28 1 another's affirmative acts, or omits to perform an act which he is legally required to do that causes the 2 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 3 In addition, Congress did not intend to “impose liability vicariously on [employers or 4 supervisors] solely on the basis of the existence of an employer-employee relationship with a tortfeasor.” 5 Monell, 436 U.S. at 692, 98 S.Ct. at 2036. Generally, supervisory personnel are not liable under section 6 1983 for actions of their employees under a respondeat superior theory, and thus, when a named 7 defendant holds a supervisory position, the causal link between him and the claimed constitutional 8 violation must be specifically alleged and proved. See Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 9 2001); Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th 10 Cir. 1978), cert. denied, 442 U.S. 941, 99 S.Ct. 2883 (1979). 11 To establish a prima facie case of supervisor liability, a plaintiff must show facts to indicate that 12 the supervisor defendant either: (1) personally participated in the alleged deprivation of constitutional 13 rights; (2) knew of the violations and failed to act to prevent them; or (3) promulgated or implemented 14 a policy “so deficient that the policy itself ‘is a repudiation of constitutional rights’ and is ‘the moving 15 force of the constitutional violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Taylor, 880 16 F.2d at 1045. A supervising official is liable in his individual capacity if he “set[ ] in motion a series 17 of acts by others, or knowingly refused to terminate a series of acts by others, which he kn[e]w or 18 reasonably should [have] know[n], would cause others to inflict the constitutional injury.” Larez v. City 19 of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (ratification, poor investigation, or failure to terminate 20 series of events may make supervisor liable).7 21 The record is clear that Chief Dyer lacked direct involvement in Stephen’s shooting. He was 22 neither present at the shooting nor directed officers during the shooting. Chief Dyer is not subject to 23 section 1983 liability based on his direct participation in a constitutional wrong. As such, attention turns 24 to whether Chief Dyer is subject to section 1983 supervisory liability. 25 Defendants note that Chief Dyer did not establish or ratify policies or customs to allow 26 7 27 28 The Ninth Circuit offered alternative elements to impose section 1983 liability on a supervisor: “‘(1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.’” Jeffers, 267 F.3d at 915 (quoting Redman v. County of San Diego, 942 F.2d 1435, 1446 (9 th Cir. 1991)). 29 1 Department officers “to undertake unreasonable searches and seizures, detain or arrest citizens without 2 reasonable cause or lawful justification, allow the filing of false or fabricated reports, permit use of 3 excessive force or maliciously arrest citizens.” Defendants conclude “there is no evidence that Chief 4 Dyer violated plaintiffs’ constitutional rights.” 5 Defendants are correct. Nothing in the record suggests that Chief Dyer knew of the constitutional 6 violations and failed to act to prevent them or promulgated or implemented a constitutionally deficient 7 policy. Plaintiffs’ criticisms of Chief Dyer’s media conferences fail to raise inferences of deliberate 8 indifference to constitutional rights to support claims against him. Plaintiffs rely on irrelevant deposition 9 testimony and related information to attempt to manufacture a claim that Chief Dyer fostered “an 10 atmosphere of condolence of officer-involved shootings.” Chief Dyer is not subject to liability on 11 plaintiffs’ claims. 12 Wrongful Death – Negligence 13 The FAC alleges a (first) wrongful death – negligence claim for Mr. and Ms. Willis as Stephen’s 14 survivors. The claim alleges that shooting numerous rounds was “in conscious and reckless disregard 15 of the risk of injury and death and under the circumstances there was no objectively reasonable basis for 16 the defendants’ actions.” 17 Plaintiffs note that they do not allege that Officers Catton and Astacio were negligent prior to 18 drawing their firearms. Plaintiff focus their wrongful death – negligence claim on “shooting Stephen, 19 shooting him as often as they did, and shooting him in the manner they did.” 20 Defendants point to California Penal Code section 196 which governs justifiable homicide by 21 public officers and provides in pertinent part: “Homicide is justifiable when committed by public 22 officers . . . [w]hen necessarily committed in overcoming actual resistence to the execution of some legal 23 process, or in discharge of any other legal duty” or “when necessarily committed in arresting persons 24 charged with a felony, and who are fleeing from justice or resisting such arrest.” 25 “There can be no civil liability under California law as the result of justifiable homicide.” 26 Martinez v. County of Los Angeles, 47 Cal.App.4th 334, 349, 54 Cal.Rptr.2d 772 (1996). In Martinez, 27 47 Cal.App.4th at 349-350, 54 Cal.Rptr.2d 772, the California Court of Appeal further explained: 28 The test for determining whether a homicide was justifiable under Penal Code 30 1 2 3 4 5 6 section 196 is whether the circumstances “reasonably create[d] a fear of death or serious bodily harm to the officer or to another.” (Kortum v. Alkire (1977) 69 Cal.App.3d 325, 333, 138 Cal.Rptr. 26; accord Reynolds, supra, 858 F.Supp. at pp. 1074-1075; People v. Rivera (1992) 8 Cal.App.4th 1000, 1007, 10 Cal.Rptr.2d 785 [using Fourth Amendment “reasonableness” analysis to determine existence of probable cause for arrest, held that use of attack dog by police officer was justified because the officer “reasonably feared for his safety, and that of others in the area”].) The same is true of Government Code section 820.2, which provides immunity from liability to public employees for their discretionary acts. (Reynolds, supra, 858 F.Supp. at pp. 1074-1075.)8 10 Since we have already determined that Deputies Gibson and Gleason acted reasonably in shooting Martinez, his death was justified under Penal Code section 196 and appellants' state law wrongful death claim is therefore barred as to them. Because the deputies cannot be liable, there is no basis for respondeat superior liability against the county defendants. (Gov.Code, § 815.2 [public entity not liable for acts of employee if the employee is immune from liability]; Thomas v. City of Richmond (1995) 9 Cal.4th 1154, 1157-1158, 40 Cal.Rptr.2d 442, 892 P.2d 1185; Perez v. City of Huntington Park (1992) 7 Cal.App.4th 817, 819-820, 9 Cal.Rptr.2d 258; Collins v. City and County of San Francisco (1975) 50 Cal.App.3d 671, 673-674, 123 Cal.Rptr. 525.) 11 As explained above, the circumstances objectively and reasonably created fear of death or serious 12 bodily injury to Officers Catton and Astacio. Since shooting Stephen was justifiable, Officers Catton 13 and Astacio are not subject to California wrongful death liability. 7 8 9 14 The wrongful death – negligence claim alleges that the City is “vicariously responsible.” A 15 “governmental entity can be held vicariously liable when a police officer acting in the course and scope 16 of employment uses excessive force or engages in assaultive conduct.” Mary M. v. City of Los Angeles, 17 54 Cal.3d 202, 215, 814 P.2d 1341 (1991). However, California Government Code section 815.2(b), 18 provides that “public entity is not liable for an injury resulting from an act or omission of an employee 19 of the public entity where the employee is immune from liability.” In the absence of Officers Catton and 20 Astacio’s liability, the City is not subject to respondeat superior liability for Stephen’s shooting. 21 Further Discovery 22 At this late date in this action, plaintiffs pursue motions to seek discovery of Department Internal 23 Affairs reports for five years preceding Stephen’s shooting and unidentified Fresno County District 24 Attorney records. Plaintiffs appear to argue that the need for such additional discovery warrants denial 25 26 27 28 8 California Government Code section 820.2 states: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” A public employee’s liability is “subject to any defenses that would be available to the public employee if he were a private person.” Cal. Gov. Code, § 820(b). 31 1 of summary judgment. Plaintiffs appear to rely on this Court’s Local Rule 260(b) which provides: “If 2 a need for discovery is asserted as a basis for denial of the motion, the party opposing such motion shall 3 provide a specification of the particular facts on which the discovery is to be had or the issues on which 4 discovery is necessary.” 5 Plaintiffs fail to specify particular facts or issues or how their requested discovery may assist 6 them. Defendants are correct to criticize plaintiffs’ delay to seek such discovery at such late date. 7 Plaintiffs fail to support summary judgment denial based on their pending discovery motions. 8 CONCLUSION AND ORDER 9 For the reasons discussed above, this Court: 10 1. GRANTS defendants summary judgment; 11 2. DIRECTS the clerk to enter judgment in favor of defendants Greg Catton, Daniel 12 Astacio, Jerry Dyer and the City of Fresno and against plaintiffs Chris Willis, Mary 13 Willis and Jennafer Uribe and to close this action; and9 14 3. 15 IT IS SO ORDERED. 16 Dated: 66h44d VACATES the July 26, 2011 pretrial conference and September 12, 2011 trial. July 12, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 9 Although defendants are granted summary judgment, this Court is not prepared to conclude that plaintiffs’ claims are unreasonable, frivolous, meritless or vexatious. As such, this Court would not well receive a defense motion for attorney fees under 42 U.S.C. § 1988(b) or related authority. 32

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