Ewing et al v. State of California et al

Filing 156

MEMORANDUM AND ORDER re SETTLEMENT OF MINORS' CLAIMS WITH COUNTY DEFENDANTS signed by Judge William B. Shubb on 9/23/11. (Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---11 12 17 HEATHER MARIE EWING; MARK LEE EWING; KATELYN JOYNER EWINGMUNNERLYN, a minor by and through her father MARK LEE EWING; RACHEL MARIE EWING, a minor by and through her parents HEATHER MARIE EWING and MARK LEE EWING; and SAVANNAH JAILYN EWING, a minor by and through her parents HEATHER MARIE EWING and MARK LEE EWING, 18 Plaintiffs, 13 14 15 16 19 20 21 22 23 24 25 26 NO. CIV. 2:05-2270 WBS GGH MEMORANDUM AND ORDER RE: SETTLEMENT OF MINORS’ CLAIMS WITH COUNTY DEFENDANTS v. CITY OF STOCKTON; DISTRICT ATTORNEY JOHN D. PHILLIPS; DEPUTY DISTRICT ATTORNEY LESTER F. FLEMING; OFFICER WILLIAM JEROME HUTTO, individually and in his capacity as a City of Stockton Police Officer; OFFICER STEVEN McCARTHY, individually and in his capacity as a City of Stockton Police Officer; and OFFICER JOHN J. REYES, individually and in his capacity as a City of Stockton Police Officer, 27 28 Defendants. _______________________________/ 1 1 ----oo0oo---2 3 Plaintiffs Heather Marie Ewing and Mark Lee Ewing 4 (“Ewing Parents”) and their minor children Katelyn Joyner 5 Ewing-Munnerlyn, Rachel Marie Ewing, and Savannah Jailyn Ewing 6 (“Ewing Children”) initiated this action under 42 U.S.C. § 1983 7 against numerous defendants, including the City of Stockton and 8 police officers William Jerome Hutto, Steven McCarthy, and John 9 J. Reyes (“City Defendants”) and San Joaquin County and district 10 attorneys John D. Phillips and Lester F. Fleming (“County 11 Defendants”). 12 constitutional rights throughout a series of events culminating 13 in the arrest of the Ewing Parents on murder charges that were 14 ultimately dropped. 15 subjected to negligent treatment and excessive force by the SWAT 16 Team during the November 8, 2004, raid and search of their home. 17 Although the court has not yet addressed the merits of Plaintiffs allege that defendants violated their The Ewing Children allege that they were 18 the Ewing Children’s claims, the court has addressed the merits 19 of the Ewing Parents’ claims in two prior summary judgment 20 orders, Ewing v. City of Stockton, No. Civ. 2:05-2270, 2008 WL 21 366156 (E.D. Cal. Feb. 8, 2009), rev’d in part, Ewing v. City of 22 Stockton, 588 F.3d 1218 (9th Cir. 2009); Ewing v. City of 23 Stockton, No. Civ. 2:05-2270, 2010 WL 3516351 (E.D. Cal. Sept. 2, 24 2010). 25 City Defendants for a total of $550,000.00, with $26,000.00 26 placed in trusts for each of the Ewing Children. 27 previously approved that settlement as to the Ewing Children. 28 (May 12, 2011 Order (Docket No. 149).) Plaintiffs previously settled their claims against the 2 The court 1 With respect to the County Defendants, the court 2 granted San Joaquin County’s motion to dismiss, and San Joaquin 3 County was dismissed from this case on March 24, 2006. 4 2006 Order at 10-11 (Docket No. 24).) 5 subsequently dismissed plaintiffs’ claims against Phillips. 6 Ewing, 588 F.3d at 1235-36. 7 plaintiffs only have remaining claims against Fleming.1 8 engaging in mediation with a Ninth Circuit mediator and 9 conducting continuing negotiations thereafter, the Ewing Parents 10 and Children reached a settlement with the County Defendants and 11 now seek the court’s approval of the settlement as to the Ewing 12 Children. (Mar. 24, The Ninth Circuit Thus, of the County Defendants, After The settlement reached with the County Defendants is in 13 14 the amount of $450,000.00 and the proposed distribution and 15 amounts attributable to the Ewing Children’s claims and 16 representation is as follows: 17 • Payment of $10,000.00 to each of the Ewing Children, to 18 be placed in the separate trust account designated for 19 each child, as part of the total of $246,305.00 paid to 20 plaintiffs under the settlement; 21 • Payment of $24,300.00 in attorneys’ fees to plaintiffs’ 22 counsel Gross Belsky Alonso LLP (“GBA”), as part of the 23 total of $202,500 in attorneys’ fees GBA will receive 24 from the settlement; and 25 • Reimbursement of $143.40 to GBA for costs incurred in 26 1 27 28 Although plaintiffs only have remaining claims against Fleming, the settlement was reached with all of the County Defendants. 3 1 prosecuting this matter on behalf of the Ewing 2 Children, as part of the total of $1,195.00 in costs 3 GBA will receive from the settlement. 4 “It has long been established that the court in which a 5 minor’s claims are being litigated has a duty to protect the 6 minor’s interests.” 7 1363 (9th Cir. 1983). 8 suits involving minor plaintiffs, this special duty requires a 9 district court to conduct its own inquiry to determine whether Salmeron v. United States, 724 F.2d 1357, “In the context of proposed settlements in 10 the settlement serves the best interests of the minor.” Robidoux 11 v. Rosengren, --- F.3d ----, ----, 2011 WL 1136241, at *3 (9th 12 Cir. 2011) (internal quotation marks omitted); see also E.D. 13 Local R. 202(b) (“No claim by or against a minor or incompetent 14 person may be settled or compromised absent an order by the Court 15 approving the settlement or compromise.”). 16 proposed settlement, district courts can consider “whether the 17 net amount distributed to each minor plaintiff in the settlement 18 is fair and reasonable, in light of the facts of the case, the 19 minor’s specific claim, and recovery in similar cases.” 20 Robidoux, 2011 WL 1136241, at *3. In reviewing a 21 Having reviewed the proposed settlement, the 22 circumstances giving rise to each of the plaintiff’s claims, and 23 the psychological evaluations of the Ewing Children from 2007 24 assessing the psychological injuries the children suffered as a 25 result of the raid of their home and separation from their 26 parents, the court concludes that the proposed settlement is fair 27 and reasonable. 28 placed in the existing trusts for each child, Mark Ewing has In addition to the $10,000.00 that will be 4 1 represented that the $246,305.00 that will remain in the Ewing 2 Parents’ control will be used to fund psychological treatment for 3 the children and purchase a new family home so that the family 4 can move out of the home where the incidents giving rise to this 5 lawsuit occurred. 6 psychological evaluations indicate the need for the Ewing 7 Children to receive treatment and express concern that they did 8 not receive consistent treatment after the incident occurred in 9 2004. 10 As the court has previously noted, the 2007 The court continues to believe that it is of paramount importance that the children receive proper treatment. 11 IT IS THEREFORE ORDERED that the unopposed petition to 12 approve settlement of the Ewing Children’s claims against the 13 County Defendants be, and the same hereby is, GRANTED. 14 DATED: September 23, 2011 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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